S:
SABBATH. The same as Sunday. (q. v.)
SABINIANS. A sect of lawyers, whose first chief was Atteius
Capito, and the second, Caelius Sabiaus, from whom they derived
their name. Clef des Lois Rom. h. t.
SACRAMENTUM. An oath; as, qui dicunt supra sacramentum suum.
SACQUIER, maritime law. The same of an ancient officer, whose
business "was to load and unload vessels laden with salt, corn,
or fish, to prevent the ship's crew defrauding the merchant by
false tale, or cheating him of his merchandise otherwise." Laws
of Oleron, art. 11, published in an English translation in an
Appendix to 1 Pet. Adm. R. XXV. See Arrameur; Stevedore.
SACRILEGE. The act of stealing from the temples or churches
dedicated to the worship of God, articles consecrated to divine
uses. Pen. Code of China, B. 1, s. 2, §6; Ayl. Par. 476.
SAEVETIA. Cruelty. (q. v.) It is required in order to
constitute saevetia that there should exist such a degree of
cruelty as to endanger the party's suffering bodily hurt. 1 Hagg.
Cons. R. 85; 2 Mass. 150; 3 Mass. 821; 4 Mass. 587.
SAFE-CONDUCT, comm. law, war. A passport or permission from a
neutral state to persons who are thus authorized to go and return
in safety, and, sometimes, to carry away certain things, in
safety. According to common usage, the term passport is employed
on ordinary occasions, for the permission given to persons when
there is no reason why they should not go where they please: and
safe-conduct is the name given to the instrument which authorizes
certain persons, as enemies, to go into places where they could
not go without danger, unless thus authorized by the government.
2. A safe-conduct is also the name of an instrument given to
the captain or master of a ship to proceed on a particular
voyage: it usually contains his name and residence, the name,
description and destination of the ship, with such other matters
as the practice of the place requires. This document is
indispensably necessary for the safety of every neutral ship.
3. The act of congress of April 30th, 1790, s. 27, punishes the
violation of any safe-conduct or passport granted under the
authority of the United States, on conviction, with imprisonment,
not exceeding three years, and a fine at the discretion of the
court. Vide Conduct; Passport; and 18 Vin. Ab. 272.
SAFE PLEDGE, salvus-plegius. A surety given that a man shall
appear upon a certain day. Bract. lib. 4, c. 1.
SAID. Before mentioned.
2. In contracts and pleadings it is usual and proper when it is
desired to speak of a person or thing before mentioned, to
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designate them by the term said or aforesaid, or by some similar
term, otherwise the latter description will be ill for want of
certainty. 2 Lev. 207: Com. Dig. Pleader, C IS; Gould on Pl:
c. 3, §63.
SAILING INSTRUCTIONS, mar. law. Written or printed directions,
delivered by the commanding officer of a convoy to the several
masters of the ships under his care, by which they are enabled to
understand and answer his signals, to know the place of
rendezvous appointed for the fleet, in case of dispersion by
storm, by an enemy, or by any other accident.
2. Without sailing instructions no vessel can have the full
protection and benefit of convoy. Marsh. Ins. 368.
SAILORS. Seamen, mariners. Vide Mariners; Seamen; Shipping
Articles.
SAISIE-EXECUTION, French law. This term is used in Louisiana.
It is a writ of execution by which the creditor places under the
custody of the law, the movables, which are liable to seizure, of
his debtor, in order that out of them he may obtain payment of
the debt due by him Code of Practice, art. 641 , Dall. Diet. h.
t.. It is a writ very similar to the fieri facias.
SAISIE-FORAINE. A term used in Louisiana and in the French law;
this is a permission given by the proper judicial officer, to
authorize a creditor to seize the property of his debtor in the
district which he inhabits. Dall. Dict. h. t. It has the effect
of an attachment of property, which is applied to the payment of
the debt due.
SAISIE-GAGERIE, French law. A conservatory act of execution, by
which the owner, or principal lessor of a house or farm, causes
the furniture of the house or farm leased, and on which he has a
lien, to be seized, in order to obtain the rent due to him. It is
similar to the distress of the common law. Dall. Dict. h. t.
SAISIE-IMMOBILIERE. A writ by which the creditor puts in the
custody of the law the immovables of his debtor, that out of the
proceeds of their sale, he may be paid his demand. The term is
French, and is used in Louisiana.
SALARY. A reward or recompense for services performed.
2. It is usually applied to the reward paid to a public officer
for the performance of his official duties.
3. The salary of the president of the United States is
twenty-five thousand dollars per annum; Act of l8th Feb. 1793;
and the constitution, art. 2, s. 1, provides that the
compensation of the president shall not be increased or
diminished, during the time for which he shall have been elected.
4. Salary is also applied to the reward paid for the
performance of other services; but if it be not fixed for each
year, it is called honorarium. Poth. Pand. h. t. According to M.
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Duvergier, the distinction between honorarium and salary is this.
By the former is understood the reward given to the most
ele-vated professions for services performed; and by the latter
the price of hir-ing of domestic servants and workmen. 19 Toull.
n. 268, p. 292, note.
5. There is this difference between salary and price; the
former is the re-ward paid for services, or for the hire of
things; the latter is the consideration paid for a thing sold.
Lec. Elem. §907, 908.
SALE, contracts. An agreement by which one of the contracting
parties, called the seller, gives a thing and passes the title to
it, in exchange for a certain price in current money, to the
other party, who is called the buyer or purchaser, who, on his
part, agrees to pay such price. Pard. Dr. Com. n. 6; Noy's Max.
ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth. Vente, n. 1;
1 Duverg. Dr. Civ. Fr. n. 7.
2. This contract differs from a barter or exchange in this,
that in the latter the price or consideration, instead of being
paid in money, is paid in goods or merchandise, susceptible of a
valuation. It differs from accord and satisfaction, because in
that contract, the thing is given for the purpose of quieting a
claim, and not for a price. An onerous gift, when the burden it
imposes is the payment of a sum of money, is, when accepted, in
the nature of a sale. When partition is made between two or more
joint owners of a chattel, it would seem, the contract is in the
nature of a barter. See 11 Pick. 311.
3. To constitute a valid sale there must be, 1. Proper parties.
2. A thing which is the object of the contract. 3. A price agreed
upon; and, 4. The consent of the contracting parties, and the
performance of certain acts required to complete the contract.
These will be separately considered.
4. - §1. As a general rule all persons sui juris may be either
buyers or sellers. But to this rule there are several exceptions.
1. There is a class of persons who are incapable of purchasing
except sub modo, as infants, and married women; and, 2. Another
class, who, in consequence of their peculiar relation with regard
to the owner of the thing sold, are totally incapable of becoming
purchasers, while that relation exists; these are trustees,
guardians, assignees of insolvents, and generally all persons
who, by their connexion with the owner, or by being employed
concerning his affairs, have acquired, a knowledge of his
property, as attorneys, conveyancers, and the like. See
Purchaser.
5. - §2. There must be a thing which is the object of the sale,
for if the thing sold at the time of the sale had ceased to exist
it is clear there can be no sale; if, for example, Paul sell his
horse to Peter, and, at the time of the sale the horse be dead,
though the fact was unknown to both parties: or, if you and I
being in Philadelphia, I sell you my house in Cincinnati, and, at
the time of the sale it be burned down, it is manifest there was
no sale, as there was not a thing to be sold. It is evident, too,
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that no sale can be made of things not in commerce, as the air,
the water of the sea, and the like. When there has been a mistake
made as to the article sold, there is no sale; as, for example,
where a broker, who is the agent of both parties, sells an
article and delivers to the seller a sold note describing the
article sold as "St. Petershurg clean hemp," and bought note to,
the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786,
788; 5 B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N.
S. 747 9 M. &, W. 805. Holt. N. P. Cas. 173; 1 M. & P. 778.
6. There must be an agreement as to the specific goods which
form the basis of the contract of sale; in other words, to make
a perfect sale, the parties must have agreed the one to part with
the title to a specific article, and the other to acquire such
title; an agreement to sell one hundred bushels of wheat, to be
measured out of a heap, does not change the property, until the
wheat has been measured. 3 John. 179; Blackb. on Sales, 122 , 5
Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick.
280; 15 John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.
7. - §3. To constitute a sale there must be a price agreed
upon; but upon the maxim id certum est quod reddi certum potest,
a sale may be valid although it is agreed that the rice for the
thing sold shall be determined by a third person. 4 Pick. 179.
The price must have the three following qualities, to wit: 1. It
must be an actual or serious price. 2. It must be certain or
capable of being rendered certain. 3. It must consist of a sum of
money.
8. - 1. The price must be an actual or serious price, with an
intention on the part of the seller, to require its payment; if,
therefore, one should sell a thing to another, and, by the same
agreement, he should release the buyer from the payment, this
would not be a sale but a gift, because in that case the buyer
never agreed to pay any price, the same agreement by which the
title to the thing is passed to him discharging him from all
obligations to pay for it. As to the quantum of the price that is
altogether immaterial, unless there has been fraud in the
transaction. 2. The price must be certain or determined, but it
is sufficiently certain, if, as before observed, it be left to
the deterimination of a third person. 4 Pick. 179; Poth. Vente,
n. 24. And an agreement to pay for goods what they are worth, is
sufficiently certain. Coxe, 261; Poth. Vente, n. 26. 3. The
price must consist in a sum of money which the buyer agrees to
pay to the seller, for if paid for in any other way, the contract
would be an exchange or barter, and not a sale, as before
observed.
9. - §4. The consent of the contracting parties, which is of
the essence of a sale, consists in the agreement of the will of
the seller to sell a certain thing to the buyer, for a certain
price, and in the will of the buyer, to purchase the same thing
for the same, price. Care must be taken to distinguish between an
agreement to enter into a future contract, and a present actual
agreement to make a sale. This consent may be shown, 1. By an
express agreement. 2. By all implied agreement.
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10. - 1. The consent is certain when the parties expressly
declare it. This, in some cases, it is requisite should be in
writing. By the 17tth section of the English statute, 29 Car. II.
c. 3, commonly called the Statute of Frauds, it is enacted, "that
no contract for the sale of any goods, wares, or merchan-dise,
for the price of œ10 or upwards, shall be allowed to be good,
except the buyer shall accept part of the goods so sold, and
actually receive the same, or give something in earnest to bind
the bargain, or in part payment, or some note or memorandum in
writing of the said bargain be made and signed by the parties to
be charged by such contract or their agents thereunto lawfully
authorized." This statute has been renacted in most of the states
of the Union, with amendments and alterations,
11. It not unfrequently happens that the consent of the parties
to a contract of sale is given in the course of a correspondence.
To make such contract valid, both parties must concur in it at
the same time. See Letter, com. law, crim. law, §2; 4 Wheat.
225; 6 Wend. 103; 1 Pick. 278 10 Pick. 326.
12. An express consent to a sale may be given verbally, when it
is not required by the statute of frauds to be in writing.
13. - 2. When a party, by his acts, approves of what has been
done, as if he knowingly uses goods which have been left at his
house by another who intended to sell them, he will, by that act,
confirm the sale.
14. The consent must relate, 1. To the thing which is the
object of the contract; 2. To the price; and, 3. To the sale
itself. 1st. Both parties must agree upon the same object of the
sale; if therefore one give consent to buy one thing, and the
other to sell another, there is no sale; nor is there a sale if
one sells me a bag full of oats, which I understand is full of
wheat; because there is no consent as to the thing which is the
object of the sale. But the sale would be valid, although I might
be mistaken as to the quality of the tiling sold. 20 John. 196 3
Rawle, 23, 168. 2d. Both parties must agree as to the same price,
for if the seller intends to sell for a greater sum than the
buyer intends to give, there is no mutual consent; but if the
case were reversed, and the seller intended to sell for a less
price than the buyer intended to give, the sale would be good for
the lesser sum. Poth. Vente, n. 36. 3d. The consent must be on
the sale itself, that is, one intends to sell, and the other to
buy. If, therefore, Peter intended to lease his house for three
hundred dollars a year for ten years, and Paul intended to buy it
for three thousand dollars, there would not be a contract of sale
nor a lease. Poth. Vente, n. 37.
15. In order to pass the property by a sale, there must be an
express or implied agreement that the title shall pass. An
agreement for the sale of goods is prima facie a bargain and sale
of those goods; but this arises merely from the presumed
intention of the parties, and if it appear that the parties have
agreed, not that there shall be a mutual credit by which the
property is to pass from the seller to the buyer, and the buyer
is bound to pay the price to the seller, but that the exchange of
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the money for the goods shall be made on the. spot, no property
is transferred, for it is not the intention of the parties to
transfer any. 4 Wash. C. C. R. 79. But, on the contrary, when the
making of part payment, or naming a day for payment, clearly
shows an intention in the parties that they should have some time
to complete the sale by payment and delivery, and that they
should in the meantime be trustees for each other, the one of the
property in the chattel, and the other in the price. As a general
rule, when a bargain is made for the purchase of goods, and
nothing is said about payment and. delivery, the property passes
immediately, so as to cast upon the purchaser all future risk, if
nothing remains to be done to the goods, although he cannot take
them away without paying the price. 5 B. & C. 862.
16. Sales are absolute or conditional. An absolute sale is one
made and completed without any condition whatever. A conditional
sale is one which depends for its validity upon the fulfilment of
some condition. See 4 Wash. C. C. R. 588; 4 Mass. 405; 17 Mass.
606; 10 Pick. 522; 13 John. 219; 18 John. 141; 8 Verm. 154;
2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2 A.K.
Marsh. 430.
17. Sales are also voluntary or forced, public or private.
18. - 1. A voluntary sale is one made without constraint freely
by the owner of the thing sold; to such the usual rules relating
to sales apply. 2. A forced sale is one made without the consent
of the owner of the property by some officer appointed by law, as
by a marshal or a sheriff in obedience to the mandate of a
competent tribunal. This sale has the effect to transfer all the
rights the owner had in the property, but it does not, like a
voluntary sale of personal property, guaranty a title to the
thing sold it merely transfers the rights of the person as whose
property it has been seized. This kind of a sale is sometimes
called a judicial sale. 3. A public sale is one made at auction
to the highest bidder. Auction sales sometimes are voluntary, as
when the owner chooses to sell his goods in this way, and then as
between the seller and the buyer the usual rules relating to
sales apply; or they are involuntary or foreed when the same
rules do not apply. 4. Private sales are those made voluntarily
and not at auction.
19. The above rules apply to sales of personal property. The
sale of real estate is governed by other rules. When a contract
has been entered into for the sale of lands, the legal estate in
such lands still remains vested in the vendor, and it does not
become vested in the vendee until he shall have re-ceived a
lawful deed of conveyance from the vendor to him; and the only
remedy of the purchaser at Iaw, is to bring an action on the
contract, and recover pecuniary damages for a breach of the
contract. In equity, however, after a contract for the sale, the
lands are considered as belonging to the purchaser, and the court
will enforce his rights by a decree for a specific performance;
and the seller will be entitled to the purchase money. Will. on
Real Prop. 127. See Specific performance.
20. In general, the seller of real estate does not guaranty the
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title; and if it be desired that he should, this must be done by
inserting a warranty to that effect. See, generally, Brown on
Sales; Blackb. on Sales; Long on Sales; Story on Sales, Sugd.
on Vendors; Pothier, Vente; Duvergier, Vente; Civil Code of
Louisiana, tit. 7; Bouv. Inst. Index, h. t.; and Contracts;
Delivery; Purchaser; Seller; Stoppage in transitu.
SALE NOTE. A memorandum given by a broker to a seller or buyer
of goods, stating the fact that certain goods have been sold by
him on account of a person called the seller to another person
called the buyer. Sale notes are also called bought notes, (q.
v.) and sold notes. (q. v.)
SALE AND RETURN. When goods are sent from a manufacturer or
wholesale dealer to a retail trader, in the hope that he may
purchase them, with the understanding that what he may choose to
take he shall have as on a contract of sale, and what he does not
take he will retain as a consignee for the owner, the goods are
said to have been sent on sale and return.
2. The goods taken by the receiver as on a sale, will be
considered as sold, and the title to them is vested in the
receiver of them; the goods he does not buy are considered as a
deposit in the hands of the receiver of them, and the title is in
the person who sent them. 1 Bell's Com., 268, 5th ed.
SALIQUE LAW. The name of a code of laws so called from the
Salians, a people of Germany, who settled in Gaul under their
king Phararaond.
2. The most remarkable law of this code is that which regards
succession. De terra vero salica nulla portio haereditatis
transit in mulierem, sed hoc vir-iles sextus acquirit, hoc est
filii in ipsa haereditate succedunt; no part of the salique land
passes to females, but the males alone are capable of taking,
that is, the sons succeed to the inheritance. This rule has ever
excluded females from the throne of France.
SALVAGE, maritime law. This term originally meant the thing or
goods saved from shipwreck or other loss; and in that sense it
is generally to be understood in our old books. But it is at
present more frequently understood to mean the compensation made
to those by whose means the ship or goods have been saved from
the effects of shipwreck, fire, pirates, enemies, or any other
loss or misfortune. 1 Cranch, 1.
2. This compensation, which is now usually made in money, was,
before the use of money became general, made by a delivery of
part of the effects saved. Marsh. Ins. B. 1, c. 12, s. 8; Pet.
Adm. Dec. 425; 2 Taunt. 302; 3 B. & P. 612; 4 M. & S. 159; 1
Cranch, 1; 2 Cranch, 240; Cranch, 221; 3 Dall. 188; 4 Wheat.
98 9 Cranch, 244; 3 Wheat. 91; 1 Day, 193 1 Johns. R. 165; 4
Cranch, 347; Com. Dig. Salvage; 3 Kent, Com. 196. Vide Salvors.
SALVAGE CHARGES. The expenses incurred to remunerate services
rendered to a ship and cargo, which have prevented its being a
total loss. Stev. on Av. c. 2, s. 1.
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SALVAGE LOSS. By salvage loss is understood the difference
between the amount of salvage, after deducting the charges, and
the original value of the property. Stev. on Av. c. 2, s. 1.
SALVORS, mar. law. When a ship and cargo, or any part thereof,
are saved at sea by the exertions of any person from impending
perils, or are recovered after an actual abandonment or loss,
such persons are denominated salvors; they are entitled to a
compensation for their services, which is called salvage. (q. v.)
2. As soon as they take possession of property for the purpose
of preserving it, as if they find a ship derelict at sea, or if
they recapture it, or if they go on board a ship in distress, and
take possession with the assent of the master or other person in
possession, they are deemed boua fide possessors, and their
possession cannot be lawfully displaced. 1 Dodson's Rep. 414.
They have a lien on the property for their salvage, which the,
laws of all maritime countries will respect and enforce. Salvors
are responsible not only for good faith, but for reasonable
diligence in their custody of the salvage property. Story, Bail.
§623.
SAMPLE, contracts. A small quantity of any commodity or
merchandise, exhibited as a specimen of a larger quantity called
the bulk. (q. v.)
2. When a sale is made by sample, and it afterwards turns out
that the bulk does not correspond with it, the purchaser is not,
in general, bound to take the property on a compensation being
made to him for the difference. 1 Campb. R. 113; vide 2 East,
314; 4, Campb. R. 22; 12 Wend. 566 9 Wend. 20; 6 Cowen, 354;
12 Wend. 413. See 5 John. R. 395.
SANCTION. That part of a law which inflicts a penalty for its
violation, or bestows a reward for its observance. Sanctions are
of two kinds, those which redress civil injuries, called civil
sanctions; and those which punish crimes, called penal
sanctions. 1 Hoffm. Leg. Outl. 279; Just. Ins. lib. 2, t. 1,
§10; Ruthf. Inst. b. 2, c. 6, s. 6; Toull. tit. prel. 86;
Ferguss. Inst. of Mor. Phil. p. 4, c. 3, s. 13, and p. 6, c. 1,
et seq; 1 Bl. Com. 56.
SANCTUARY. A place of refuge, where the process of the law
cannot be executed.
2. Sanctuaries may be divided into religious and civil. The
former were very common in Europe; religious houses affording
protection from arrest to all persons, whether accused of crime,
or pursued for debt. This kind was never known in the United
States.
3. Civil sanctuary, or that protection which is afforded to a
man by his own house, was always respected in this country. The
house protects the owner from the service of all civil process in
the first instance but not if he is once lawfully arrested and
takes refuge in his own house. Vide Door; House.
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4. No place affords protection from arrest in criminal cases;
a man may, therefore, be arrested in his own bouse in such cases,
and the doors may be broken for the purpose of making the arrest.
Vide Arrest in criminal cases.
SANE MEMORY. By this is meant that understanding which enables
a man to make contracts and his will, and to perform such other
acts as are authorized by law; Vide Lunacy; Memory; Non compos
mentis.
SANG or SANC. Blood. These words are nearly obsolete.
SANITY, med. jur. The state of a person who has a sound
understanding; the reverse of insanity.
2. The sanity of an individual is always presumed. 5 John. R.
144; 1 Pet. R. 163; 1 Hen. & M. 476; 4. Cowen, R. 207; 4 W.
C. C. R. 262. See 9 Conn. 102; 9 Mass. 225; 3 Mass. 336 1 Mass.
71; 8 Mass. 371; 8 Greenl. 42; 15 John. 503; 4 Pick. 32.
SANS CEO QUE. The same as Absque hoc. (q. v.)
SANS NOMBRE. This is a French phrase, which signifies without
number.
2. In England it is used in relation to the right of putting
animals on a common. The term common sans nombre does not mean
that the beasts are to be innumerable, but only indefinite, not
certain; Willes, 227; but they are limited to the commoner's
own commonable cattle, levant et couchant, upon his lands, or as
many cattle as the land of the commoner can keep and maintain in
winter. 2 Brownl. 101; Vent. 54; 5 T. R. 48; 1 Saund. 28, n.
4.
SANS RECOURS. Without recourse.
2. These words are sometimes put on a bill before the payee
endorses it; they have the effect of transferring the bill
without responsibility to the endorser. Chit. on Bills, 179; 7
Taunt. 160; 1 Cowen, 538; 3 Cranch, 193; 7 Cranch, 159; 12
Mass. 172; 14 S. & R. 325.
SATISDACTION, civil law. This word is derived from the same
root as satisfaction; for, in the same manner that to fulfil the
demand which is made upon us, is called satisfaction, so
satisdaction takes place when he who demands something has agreed
to receive sureties instead of the thing itself. Dig. 2, 8, 1
SATISFACTION, practice. An entry made on the record, by which a
party in whose favor a judgment was rendered, declares that he
has been satisfied and paid.
2. In Alabama, Delaware, Illinois, Indiana, Massachusetts, New
Hampshire, Pennsylvania, Rhode Island, South Carolina, and,
Vermont, provision is made by statute, requiring the mortgagee to
discharge a mortgage upon the record, by entering satisfaction in
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the margin. The refusal or neglect to enter satisfaction after
payment and demand, renders the mortgagee liable to an action,
after the time given him by the respective statutes for doing the
same has elapsed, and subjects him to the payment of damages,
and, in some cases, treble costs. In Indiana and New York, the
register or recorder of deeds may himself discharge the mortgage
upon the record on the exhibition of a certificate of payment and
satisfaction signed by the mortgagee or his representatives, and
attached to the mortgage, which shall be recorded. Ind. St. 1836,
64; 1 N. Y. Rev. St. 761.
SATISFACTION, construction by courts of equity. Satisfaction is
defined to be the donation of a thing, with the intention,
express or implied, that such donation is to be an extinguishment
of some existing right or claim in the donee.
2. Where a person indebted bequeaths to his creditor a legacy,
equal to, or exceeding the amount of the debt, which is not
noticed in the will, courts of equity, in the absence of any
intimation of a contrary intention, have adopted the rule that
the testator shall be presumed to have meant the legacy as a
satisfaction. of the debt.
3. When a testator, being indebted, bequeaths to his creditor a
legacy, simpliciter, and of the same nature as the debt, and not
coming within the exceptions stated in the next paragraph, it has
been held a satisfaction of the debt, when the legacy is equal
to, or exceeds the amount of the debt. Pre. Ch. 240; 3 P. Wms.
353.
4. The following are exceptions to the rule: 1. Where the
legacy is of, less amount than the debt, it shall not be deemed a
part payment or satisfaction. 1 Ves. pen. 263.
5. - 2. Where, though the debt and legacy are of equal amount,
there is a difference in the times of payment, so that the legacy
may not be equally beneficial to the legatee as the debt. Prec.
Ch. 236; 2 Atk. 300; 2 Ves. sen. 63 5; 3 Atk. 96; 1 Bro. C.
C. 129; 1 Bro. C. C. 195; 1 M'Clel. & Y. Rep. Exch. 41; 1
Swans. R. 219.
6. - 3. When the legacy and the debt are of a different nature,
either with reference, to the subjects themselves, or with
respect to the interests given. 2 P. Wms. 614; 1 Ves. jr. 298;
2 Ves. jr. 463.
7. - 4. When the provision by the will is expressed to be given
for a particular purpose, such purpose will prevent the
testamentary gift being construed a satisfaction of the debt,
because it is given diverse intuitu. 2 Ves. sen. 635.
8. - 5. When the debt of the testator is contracted
subsequently to the, making of the will; for, in that case, the
legacy will not be deemed a satisfaction. 2 Salk. 508.
9. - 6. When the legacy is uncertain or contingent. 2 Atk. 300;
2 P. Wms. 343.
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10. - 7. Where the debt itself is contingent, as where it
arises from a running account between the testator and legatee;
1 P. Wms. 296; or it is a negotiable bill of exchange. 3 Ves.
jr. 561.
11. - 8. Where there is an express direction in the will for
the payment of debts end legacies, the court will infer from the
circumstance, that the testator intended that both the debt owing
from him to the legatee and the legacy, should, be paid. 1 P.
Wms. 408; 2 Roper, Leg. 54.
See, generally, Tr. of Eq. 333; Yelv. 11, n.; 1 Swans. R.
221; 18 Eng. Com. Law Rep. 201; 4 Ves. jr. 301; 7 Ves. jr.
507; 1 Suppl. to Ves. jr. 204, 308, 311, 342, 348, 329; 8 Com.
Dig. Appen. tit. Satisfaction, p. 917; Rob. on Frauds, 46, n.
15; 2 Suppl. to Ves. jr. 22, 46, 205; 1 Vern. 346; Roper, Leg.
c. 17; 1 Roper on Hush. and Wife, 501 to 511; 2 Id. 53 to 63;
Math. on Pres. c. 6, p. 107; 1 Desaus. R. 814; 2 Munf. Rep.
413; Stallm. on El. and Sat.
SATISFACTION PIECE, Eng. practice. An instrument of writing in
which it is declared that, satisfaction is acknowledged between
the plaintiff and defendant. It is signed by the attorney, and on
its production and the warrant of attorney to the clerk of the
judgments, satisfactio is entered on payment, of certain fees.
Lee's Dict. of Pr. tit. Satisfaction.
SATISFACTORY EVIDENCE. That which is sufficient to induce a
belief that the thing is true; in other words, it is credible
evidence. 3 Bouv. Inst. n. 3049.
SCANDAL. A scandalous verbal report or rumor respecting some
person.
2. The remedy is an action on the case.
3. In chancery practice, when a bill or other pleading contains
scandal, it will be referred to a master to be expunged, and till
this has been done, the opposite party need not answer. 3 Bl.
Com. 342. Nothing is considered scandalous which is positively
relevant to the cause, however harsh and gross the charge may be.
The degree of relevancy is not deemed material. Coop. Eq. Pl. 19;
2 Ves. 24; 6 Ves. 514, 11 Ves. 626; 15 Ves. 477; Story Eq.
Plo. §269 Vide Impertinent.
SCANDALUM MAGNATUM. Great scandal or slander. In England it. is
the slander of the great men, the nobility of the realm.
SCHEDULE, practice. When an indictment is returned, from au
inferior court in obedience to a writ of certiorari, the,
statement of the previous proceedings sent with it, is termed the
schedule. 1 Saund. 309, a, n. 2.
2. Schedules are also frequently annexed to answers in a court
of equity, and to depositions and other documents, in order to
show more in detail the matter they contain, than could otherwise
be conveniently shown.
3. The term is frequently used instead of inventory.
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SCHOOLMASTER. One employed in teaching a school.
2. A schoolmaster stands in loco parentis in relation to the
pupils committed to his charge, while they are under his care, so
far as to enforce obedience to his, commands, lawfully given in
his capacity of school-master, and he may therefore enforce them
by moderate correction. Com. Dig. Pleader, 3 M 19; Hawk. c. 60,
sect. 23. Vide Correction.
3. The schoolmaster is justly entitled to be paid for his
important and arduous services by those who em ploy him. See 1
Bing. R. 357 8 Moore's Rep. 368. His duties are to teach his
pupils what he has undertaken, and to have a special care over
their morals. See 1 Stark. R. 421.
SCIENDUM, Eng. law. The name given to a clause inserted in the
record by which it is made " known that the justice here in
court, in this same term, delivered a writ thereupon to the
deputy sheriff of the county aforesaid, to be executed in due
form of law." Lee's Dict. art. Record.
SCIENTER, knowingly.
2. A man may do many acts which are justifiable or not, as he
is ignorant or not ignorant of certain facts. He may pass a
counterfeit coin, when he is ignorant of its being counterfeit,
and is guilty of no offence; but if he knew the coin to be
counterfeit, which is called the scienter, he is guilty of
passing counterfeit money. A man who keeps an animal which
injures some person, or his property, is answerable for damages,
or in some cases he may be indicted if he had a knowledge of such
animal's propensity to do injury. 3 Blackst. Comm. 154; 2 Stark.
Ev. 178; 4 Campb. 198; 2 Str. 1264; 2 Esp. 482; Bull. N. P.
77; Burr. 2092; 2 Lev. 172; Lord Raym. 110; 2 B. & A. 620; 2
C. M. & R. 496; 5 C. & P. 1; S. C. 24 E. C. L. R. 187; 1
Leigh, N. P. 552, 553; 7 C. & P. 755.
4. In this respect the civil law agrees with our own. Domat,
Lois Civ. liv. 2, t. 8, s. 2. As to what evidence maybe given to
prove guilty knowledge, see Archb. Cr. Pl. 109. Vide Animal;
Dog.
SCILICET. A Latin adverb, signifying that is to say; to wit;
namely.
2. It is a clause to usher in the sentence of another, to
particularize that which was too general before, distribute what
was too gross, or to explain what was doubtful and obscure. It
neither increases nor diminish the premises or habendum, for it
gives nothing of itself; it may make a restriction when the
preceding words may be restrained. Hob. 171 P. Wms. 18; Co.
Litt. 180 b, note 1.
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3. When the scilicet is repugnant to the precedent matter, it
is void; for example, when a declaration in trover states that
the plaintiff on the third day of May was possessed of certain
goods which on the fourth day of May came to the defendant's
hands, who afterwards, to wit, on the first day of May converted
them, the scilicet was rejected as surplusage. Cro. Jac. 428;
and vide 6 Binn. 15; 3 Saund. 291, note 1, and the cases there
cited. This word is sometimes abbreviated, ss. or sst.
SCINTILLA JURIS, estates; A spark of right. A legal fiction,
resorted to for the purpose of enabling feoffees to uses to
support contingent uses when they come into existence, thereby to
enable the statutes of uses, 27 Henry VIII., to execute them. 4
Kent's Com. 238, et seq., and the authorities there cited, for
the learning upon this subject.
SCIRE FACIAS, remedies, practice. The name of a judicial writ,
founded upon some record, and requiring the defendant to show
cause why the plaintiff should not have the "advantage of such
record; or, when it is issued to repeal letters-patent, why the
record should not be annulled and vacated. 3 Sell. Pr. 187;
Grah. Pr. 649; 2 Tidd's Pr. 982; 2 Arch. Pr. 76; Bac. Abr. h.
t.
2. It is, however, considered as an action, and in the nature
of a new original. Skin. 682; Com. 455.
3. The scire facias against a bail, against pledges in
replevin, to repeal letters-patent, or the like, is an original
proceeding; but when brought to revive a judgment after a year
and a day, or upon the death or marriage of the parties, when in
the latter case one of them is a woman; or when brought on a
judgment quando, &c., against an executor, it is but a
continuation of the original action. Vide 1 T. R. 388. Vide
generally, 11 Vin. Ab. 1; 19 Vin. Ab. 280 Bac. Ab. Execution, H;
Bac. Ab. h. t. 2 Saund. 72 e, note, 3; Doct. Pl. 436 Bouv. Inst.
Index, h. t.
SCIRE FACIAS AD AUDIENDUM ERRORES. The name of a writ which is
sued out after the plaintiff in error has assigned his errors. F.
N. B. 20; Bac. Ab. Error F.
SCIRE FACIAS AD DISPROBANDUM DEBTTUM. The name of a writ in use
in Pennsylvania, which lies by a defendant in foreign attachment
against the plaintiff, in order to enable him, within a year and
a day next ensuing the time of payment to the plaintiff in the
attachment, to disprove or avoid the debt recovered against him.
Act relating to the commencement of actions, s. 61, passed June
13th, 1836.
SCIRE FECI, practice. The return of the sheriff, or other
proper officer, to the writ of scire facias, when it has been
served; scire feci, "I have made known."
SCIRE FIERI INQUIRY, Eng. law. The name of a writ, the history
of the origin of which is as follows: when on an execution de
bonis testatoris against an executor the sheriff returned nulla
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bona and also a devastavit, a fieri fac-ias, de bonis propriis,
might formerly have been issued against the executor, without a
previous inquisition finding a devastavit and a scire facias. But
the most usual practice upon the sheriff's return of nulla bona a
to a fieri facias de bonis testatoris, was to sue out a special
writ of fieri facias de bonis testatoris, with a clause in it,
"et si tibi constare, poterit," that the executor had wasted the
goods, then to levy de bonis propriis. This was the practice in
the king's bench till the time of Charles I.
2. In the common pleas a practice had prevailed in early times
upon a suggestion in the special writ of fieri facias of a
devastavit by the executor, to direct the sheriff to inquire by a
jury, whether the executor had wasted the goods, and if the jury
found he had, then a scire facias was issued out against him, and
unless he made a good defence thereto, an execution de bonis
propriis was awarded against him.
3. The practice of the two courts being different, several
cases were brought into the king's bench on error, and at last it
became the practice of both courts, for the sake of expedition,
to incorporate the fieri facias inquiry, and scire facias, into
one writ, thence called a scire fieri inquiry, a name compounded
of the first words of the two writs of scire facias and fieri
facias, and that of inquiry, of which it consists.
4. This writ recites the fieri facias de bonis testatoris sued
out on the judgment against the executor, the return of nulla
bona by the sheriff, and then suggesting that the executor bad
sold and converted the goods of the testator to the value of the
debt and damages recovered, commands the sheriff to levy the said
debt and damages of the goods of the testator in the hands of the
executor, if they could be but if it should appear to him by the
inquisition of a jury that the executor had wasted the goods of
the testator, then the sheriff is to warn the executor to appear,
&c. If the judgment had been either by or against the testator or
intestate, or both, the writ of fieri facias recites that fact,
and also that the court had adjudged, upon a scire facias to
revive the judgment, that the executor or administrator should
have execution for the debt, &c. Clift's Entr. 659; Lilly's
Entr. 664; 3 Rich. Pr. K. B. 523.
5. Although this practice is sometimes adopted, yet the most
usual proceeding is by action of debt on the judgment, suggesting
a devastavit, because in the proceeding by scire fieri inquiry
the plaintiff is not entitled to costs, unless the executor
appears and pleads to the scire facias. 1 Saund. 219, n. 8. See 2
Archb. Pr. 934.
SCITE. The setting or standing of may place. The seat or
situation of a capital messuage, or the ground on which it Stood.
Jacob, L. D. h. t.
SCOLD. A woman who by her habit of scolding becomes a nuisance
to the neighborhood, is called a common scold. Vide Common Scold.
SCOT AND LOT, Eng. law. The name of a customary contribution,
laid upon all the subjects according to their ability.
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SCOUNDREL. An opprobrious title given to a person of bad
character. General damages will not lie for calling a man a
scoundrel, but special damages may be recovered when there has
been an actual loss. 2 Bouv: Inst. n. 2250; 1 Chit. Pr. 44.
SCRIPT, conv. The original or principal instrument, where there
are part and counterpart. Vide Chirograph; Part, Rescript.
SCRIVENER. A person whose, business it is to write deeds and
other instruments for others; a conveyancer.
2. Money scriveners are those who are engaged in procuring
money to be lent on mortgages and other securities, and lending
such money accordingly. They act also as agents for the purchase
and sale of real estates.
3. To be considered a money scrivener, a person must be
concerned in carrying on the trade or profession as a means of
making a livelihood. He must in the course of his occupation
receive other men's moneys into his trust and custody, to lay out
for them as occasion offers. 3 Camp. R. 538; 2 Esp. Cas. 555.
SCROLL. A mark which is to supply the place of a seal, made
with a pen or other instrument on a writing.
2. In some of the states this has all the efficacy of a seal.
1, S. & R. 72; 1 Wash. 42; 2 McCord, 380; 4 McCord 267; 3
Blackf. 161; 3 Gill & John. 234; 2 Halst. 272. Vide Seal; 2
Serg. & Rawle, 504; 2 Rep. 5. a; Perk. §129. In others, a
scroll has no such effect; and when a suit is brought on an
instrument sealed with a scroll, the act of limitations may be
pleaded to it, as to a simple contract. 2 Rand. 446; 6 Halst.
174; 5 John. 239; 1 Blackf. 241; Griff. Law Reg., answers to
question No 110.
SCUTAGE, old Eng. law. The name of a tax or contribution raised
for the use of the king's armies by those who held lands by
knight's service.
SCYREGEMOTE. The name of a court among the Saxons. It was the
court of the shire, in Latin called curia comitatus, and the
principal court among the Saxons. It was holden twice a year for
determining all causes both ecclesias-tical and secular.
SE DEFENDENDO, criminal law. Defending himself.
2. Homicide, se defendendo, is that which takes place upon a
sudden rencounter, where two persons upon a sudden quarrel,
without premeditation or malice, fight upon equal terms, and one,
before a mortal stroke has been given, declines any further
combat, and retreats as far as he can with safety, and kills his
adversary, through necessity, to avoid immediate death. 2 Swift's
Dig. 289 pamphl. Rep. of Selfridge's, Trial in, 1805 Hawk. bk. 1,
c. 11, s. 13; 2 Russ. on Cr. 543; Bac. Ab. Murder, &c F 2.
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SEA. The ocean; the great mass of waters which surrounds the
land, and which probably extends from pole to pole, covering
nearly three quarters of the globe. Waters within the ebb and
flow of the tide, are to be considered the sea. Gilp. R. 526.
2. The sea is public and common to all people, and every person
has an equal right to navigate it, or to fish there; Ang. on
Tide Wat. 44 to 49; Dane's Abr. c. 68, a. 3, 4; Inst. 2, 1, 1;
and to land upon the sea, shore. (q. v.)
3. Every nation has jurisdiction to the distance of a cannon
shot, (q, v.) or marine league, over the water adjacent to its
shore. 2 Cranch, 187, 234; 1 Circuit Rep. 62; Bynk. Qu. Pub.
Juris. 61; 1 Azuni Mar. Law, 204; Id. 185; Vattel, 207:
SEA LETTER OR SEA BRIEF, maritime law. A document which should
be found on board of every neutral ship; it specifies the nature
and quantity of the cargo, the place from whence it comes, and
its destination. Chit. Law of Nat. 197; 1 John. 192.
SEA SHORE, property. That space of land, on the border of the
sea, which is alternately covered and left dry, by the rising and
falling of the tide or, in other words, that space of land
between high and low water mark. Hargr, Tr. 12; 6 Mass. 435,
439; 1 Pick. 180, 182; 5 Day, 22.
2. Generally, the sea shore belongs to the public. Angell on
Tide Wat. 34, 5; 3 Kent's Com. 347.
3. By the Roman law, the shore included the land as far as the
greatest wave extended in winter; est autem littus, maris,
quatenus hibernus, fluctus maximus excurrit. Inst. lib. 2, t. 1,
s. 3. Littus publicum est eatenus qua maxime fluctus exaestuat.
Dig., lib, 50, t. 16, s. 112.
4. The Civil Code of Louisiana seems to have followed the law
of the Insti-tutes and the Digest, for it enacts, art. 442, that
the "sea shore is that space, of land over which the waters of
the sea are spread in the highest water, during the winter
season." Vide. 5 Rob. Adm. R. 182; Dougl. 425; 1 Halst. R. 1;
2 Roll. Ab. 170; Dyer, 326; 5 Co. 107; Bac. Ab., Courts of
Admiralty,, A; 1 Am. Law Mag. 76; 16 Pet. R. 234, 367 Ang. on
Tide Waters, Index, tit. Shore; 2 Bligh's N, S. 146; 5 M. & W.
327 Merl. Quest. de Droit, mots Rivage de la Mer; Inst. 2, 1, 2;
22 Maine, R. 350. For the law of Mass. vide Dane's Ab. c. 68, a
3, 4.
SEA WEED. A species of grass which grows in the sea.
2. When cast upon land, it belongs to the owner of the land
adjoining the sea shore; upon the grounds, that it increases
gradually, that it is useful as manure and a protection to the
ground, and that it is some compensation for the encroachments of
the sea upon the land. 2 John. R. 313, 323. Vide 5 Verm. R. 223.
3. The French differs from our law in this respect, as sea
weeds there, when cast on the beach, belong to the first
occupant. Dall. Dict. Propriete, art. 3, §2, n. 128.
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SEA WORTHINESS, mer. law. The ability of a ship or other vessel
to make a sea voyage with probable safety: there is, in every
insurance, whether on ship or goods, an implied warranty that the
ship shall be worthy when she sails on the voyage insured; that
is, that she shall be "tight, staunch, and strong, properly
manned, provided with all necessary stores, and in all respects
fit for the intended voyage." Marsh. Ins. 153 2 Phil. Ev. 60 10
Johns. R. 58.
2. The following rules have been established in regard, to the
warranty of sea-worthiness.
3. - 1. That it is of no consequence whether the insured was
aware of the condition of the ship, or not. His innocence or
ignorance is no answer to the fact that the ship was not
sea-worthy.
4. - 2. - The opinion of carpenters who have repaired the
vessel, however they may strengthen the presumption that the ship
is sea-worthy, when it is favorable, is not conclusive of the
fact of sea-worthiness. 4 Dow's Rep. 269.
5. - 3. The presumption, prima facie, is for sea-worthiness. 1
Dow's R. 336; And it is presumed that a vessel continues
sea-worthy, if she was so at the inception of the risk. 20 Pick.
389. See 1 Brev. 252.
6. - 4. Any sort of disrepair left in the ship, by which she,
or the cargo may suffer, is a breach of the warranty of
sea-worthiness.
7. - 5. A deficiency of force in the crew, or of skill in the
master, mate, &c., is a want of sea-worthiness. 1 Campb. 1; 14
East, R. 481. But if there was once a sufficient crew, their
temporary absence will not be considered a breach of the
warranty. 2 Barn. & Ald. 73; 1 John. Cas. 184; 1 Pet. 183.
8. - 6. A vessel may be rendered not sea-worthy by being
overloaded. 2 Barn. & Ald . 320.
9. - 7. When the sea-worthiness arises from justifiable
ignorance of the cause of the defect, and is discovered and
remedied before any injury occurs, it is not to be considered as
a defect. Ib. See, generally, 2 John. 124, 129; 3 John. Cas. 76;
1 John. 241; 1 Caines, 217 3 S. & R. 25 1 Whart. 399.
10. By an act of congress, approved July 20, 1840, as amended,
by the act of July 29, 1850, it is provided, that if the first
officer, (or a second and third officer,) and a majority of the
crew of any vessel, shall make complaint in writing that she is
in an unsuitable condition to go to sea, because she is leaky, or
insufficiently supplied with sails, rigging, anchors, or any
other equipment, or that the crew is insufficient to man her, or
that her provisions, stores, and supplies are not, or have not
been, during the voyage, sufficient and wholesome, thereupon, in
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any of these or like cases, the consul or commercial agent who
may discharge any duties of a consul shall appoint two
disinterested, competent, practical men, acquainted with maritime
affairs, to examine into the causes of complaint, who shall, in
their report, state what defects and deficiencies, if any they
find to be well founded, as well as what, in their judgment ought
to be done, to put the vessel in order for the continuance of her
voyage.
SEAL, conveyancing, contracts. A seal is an impression upon
wax, wafer, or some other tenacious substance capable of being
impressed. 5 Johns. R. 239. Lord Coke defines a seal to be wax,
with an impression. 3 Inst. 169. " Sigillum," says he, "est cera
impressa, quia cera sine impressione non est sigillum." This is
the common law definition of a seal. Perk. 129, 134; Bro. tit.
Faits, 17, 30; 2 Leon 21; 5 John. 239; 2 Caines, R. 362; 21
Pick. R. 417.
2. But in Pennsylvania, New Jersey, and the southern and
western states generally, the impression upon wax has been
disused, and a circular, oval, or square mark, opposite the name
of the signer, has the same effect as a seal the shape of it
however is indifferent; and it is usually written with a pen. 2
Serg. & Rawle, 503; 1 Dall. 63; 1 Serg. & Rawle, 72; 1 Watts,
R. 322; 2 Halst. R. 272.
3. A notary must use his official seal, to authenticate his
official acts, and a scroll will not answer. 4 Blackf. R. 185. As
to the effects of a seal, vide Phil. Ev. Index, h. t. Vide,
generally, 13 Vin. Ab. 19; 4 Kent, Com. 444; 7 Caines' Cas. 1;
Com. Dig. Fait, A 2.
4. Merlin defines a real to be a plate of metal with a flat
surface, on which is engraved the arms of a prince or nation, or
private individual or other device, with which an impression may
be made on wax or other substance on paper or parchment, in order
to authenticate them: the impression thus made is also called a
seal. Repert. mot Sceau; 3 McCord's R. 583; 5 Whart. R. 563.
5. When a seal is affixed to an instrument, it makes it a
specialty, (q. v.) and whether the seal be affixed by a
corporation or an individual the effect is the same. 15 Wend.
256.
6. Where an instrument concludes with the words, "witness our
hands and seals," and is signed by two persons, with only one
seal, the jury may infer, from the face of the paper, that the
person who signed last, adopted the seal of the first. 6 Penn.
St. Rep. 302. Vide 9 Am Jur. 290-297; 1 Ohio Rep. 368; 3 John.
470. 12 ohu. 76; as to the origin and use of seals, Addis. on
Cont. 6; Scroll.
7. The public seal of a foreign state, proves itself; and
public acts, decrees and judgments, exemplified under this seal,
are received as true and genuine. 2 Cranch, 187, 238; 4 Dall.
416; 7 Wheat. 273, 335; 1 Denio, 376; 2 Conn. 85, 90; 6 Wend.
475; 9 Mod. 66. But to entitle its seal to such authority, the
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foreign state must have been acknowledged by the government,
within whose jurisdiction the forum is located. 3 Wheat. 610; 9
Ves. 347.
SEAL-OFFICE, English practice. The office at which certain
judicial writs are sealed with the prerogative seal, and without
which they are of no author-ity. The officer whose duty it is to
seal such writs is called "sealer of writs;"
SEAL OF THE UNITED STATES, government. The seal used by the
United States in congress assembled, shall be the seal of the
United States, viz.: ARMS, pale-ways of thirteen pieces argent
and gules; a chief azure; the escutcheon on the breast of the
American eagle displayer proper, holding in his dexter talon, an
olive branch, and in his sinister, a bundle of thirteen arrows,
all proper, and in his beak a scroll, inscribed with this motto,
"E pluribus unum." For the CREST: over the head of the eagle
which appears above the escutcheon, a glory, or breaking through
a cloud, proper, and surrounding thirteen stars, forming a
constellation argent on an azure field. REVERSE, a pyramid
unfin-ished. In the zenith an eye in a triangle, surrounded with
a glory proper: over the eye, these words, "Annuit caeptis." On
the base of the pyramid, the numerical letters, MDCCLXXVI; and
underneath, the following motto, "Novus ordo sectorum."
Resolution of Congress, June 20, 1782; Gordon's Dig. art. 207.
SEALING OF A VERDICT, practice. The putting a verdict in
writing, and placing it in an envelop, which is sealed. To
relieve jurors after they have agreed, it is not unusual for the
counsel to agree that the jury shall seal their verdict, and then
separate. When the court is again in session, the jury come in
and give their verdict, in all respects as if it had not been
sealed, and a juror may dissent from it, if since the sealing, he
has honestly changed his mind. 8 Ham. 405; Gilm. 333; 3 Bouv.
Inst. n. 3257.
SEALS, matters of succession. On the death of a person,
according to the laws of Louisiana, if the heir wishes to obtain
the benefit of inventory, and the delays for deliberating, he is
bound as soon as he knows of the death of the deceased to whose
succession he is called, and before committing any act of
heirship, to cause the seals to be affixed on the effects of the
succession, by any judge or justice of the peace. Civ. Code, of
Lo. art. 1027.
2. In ten days after this affixing of the seals, the, heir is
bound to present a petition to the judge of the place in which
the succession, is opened, praying for the removal of the seals,
and that a true and faithful inventory of the effects of the
succession be made. Id. art. 1028.
3. In case of vacant estates, and estates of which the heirs
are absent and not represented, the seals, after the decease,
must be affixed by a judge or justice of the peace within the
limits of his jurisdiction, and may be fixed by him, either ex
officio, or at the request of the parties. Civ. Code of Lo. art.
1070. The seals are affixed at the request of the parties, when a
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widow, a testamentary executor, or any other person who pretends
to have an interest in a succession or community of property,
requires it. Id. art. 1071.; They are affixed ex officio, when
the presumptive heirs of the deceased do not all reside in the
place where be died, or if any of them happen to be absent. Id.
art 1072.
4. The object of placing the seals on the effects of a
succession, is for the purpose of preserving them, and for the
interest of third persons. Id. art. 1068.
5. The seals must be placed on the bureaus, coffers, armoires,
and other things, which contain the effects and papers of the
deceased, and on the doors of the apartments which contain these
things, so that they cannot be opened without tearing off,
breaking, or altering the seals. Id. art. 1069.
6. The judge or justice of the peace, who affixes the seals, is
bound to appoint guardian, at the expense of the succession, to
take care of the seals and of the effects, of which an account is
taken at the end of the proces-verbal of the affixing of the
seals; the guardian must be domiciliated in the plaze where the
inventory is taken. Id. art. 1079. And the judge; when he
retires, must take with him the keys of all things and apartments
upon which the seals have been affixed. lb.
7. The raising of the seals is done by the judge of the place,
or justice of the peace appointed by him to that effect, in the
presence of the witnesses of the vicinage, in the same manner as
for the affixing of the seals. Id. art. 1084. See, generally;
Benefit of Inventory, Succession; Code de Pro. Civ. 2e part.
lib. 1, t. 1, 2, 3; Dict. de Jurisp. Scelle.
SEAMAN. A sailor; a mariner; one whose business is
navigation. 2 Boulay Paty, Dr. Com. 232; Code de Commerce art.
262; Laws of Oleron, art. 7; Laws of Wishuy, art. 19. The term
seamen, in it most enlarged sense, includes the captain a well as
other persons of the crew; in a more confined signification, it
extends only to the common sailors; 3 Pardes. n. 667; the mate;
1 Pet. Adm. Dee. 246; the cook and steward; 2 Id. 268; are
considered, as to their rights to sue in the admiralty, as common
seamen; and persons employed on board of steamboats and
lighters, engaged in trade or commerce, on tide water, are within
the admiralty jurisdiction, while those employed in ferry boats
are not. Gilp. R. 203, 532. Persons who do not contribute their
aid in navigating the vessel or to its preservation in the course
of their occupation, as musicians, are not to be considered as
seamen with a right to sue in the admiralty for their wages.
Gilp. R. 516, See 1 Bell's Com. 509, 5th ed.; 2 Rob. Adm. R.
232; Dunl. Adm. Pr. h . t.
2. Seamen are employed either in merchant vessels for private
service, or in public vessels for the service of the United
States.
3. - 1. Seamen in the merchant vessels are required to enter
into a contract in writing commonly called shipping articles. (q.
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v.) This contract being entered into, they are bound under,
severe penalties, to render themselves on board the vessel
according to the agreement: they are not at liberty to leave the
ship without the consent of the captain or commanding officer,
and for such absence, when less than forty-eight hours, they
forfeit three day's wages for every day of absence; and when the
absence is more than forty-eight hours, at one time, they forfeit
all the wages due to them, and all their goods and chattels which
were on board the vessel, or in any store where they may have
been lodged at the time of their desertion, to the use of the
owners of the vessel, and they are liable for damages for hiring
other hands. They may be imprisoned for desertion until the ship
is ready to bail.
4. On board, a seaman is bound to do his duty to the utmost of
his ability; and when his services are required for
extraordinary exertions, either in consequence of the death of
other seamen, Or on account of unforeseen perils, he is not
entitled to an increase of wages, although it may have been
promised to him. 2 Campb. 317; Peake's N. P. Rep. 72; 1 T. R.
73. For disobedience of orders he may be imprisoned or punished
with stripes, but the correction (q. v.) must be reasonable; 4
Mason, 508; Bee, 161; 2 Day, 294; 1 Wash. C. C. R. 316; and,
for just cause, may be put ashore in a foreign country. 1 Pet.
Adm. R. 186; 2 Ibid. 268; 2 East, Rep. 145. By act of Congress,
September 28, 1850, Minot's Stat. at Large, U. S. p. 515, it is
provided, that flogging in the navy and on board vessels of
commerce, be, and the same is hereby abolished from and after the
passage of this act.
5. Seamen are entitled to their wages, of which one-third is
due at every port at which the vessel shall unlade and deliver
her cargo, before the voyage be ended; and at the end of the
voyage an easy and speedy remedy is given them to recover all
unpaid wages. When taken sick a seaman is entitled to medical
advice and aid at the expense of the ship: such expense being
considered in, the nature of additional wages, and as
constituting a just remuneration for his labor and services.
Gilp. 435, 447; 2 Mason, 541; 2 Mass. R. 541.
6. The right of seamen to wages is founded not in the shipping
articles, but in the services performed; Bee, 395; and to
recover such wages the seaman has a triple remedy, against the
vessel, the owner, and the master. Gilp. 592; Bee, 254.
7. When destitute in foreign ports, American consuls and
commercial agents are required to provide for them, and for their
passages to some port of the United States, in a reasonable
manner, at the expense of the United States; and American
vessels are bound to take such seamen on board at the request of
the consul, but not exceeding two men for every hundred tons of
the ship, and transport them to the United States, on such terms,
not exceeding ten dollars for each person, as may be agreed on.
Vide, generally, Story's Laws U. S. Index, h. t.; 3 Kent, Com,
136 to 156; Marsh. Ins. 90; Poth. Mar. Contr. translated by
Cushing, Index, h. t.; 2 Bro. Civ. and Adm. Law, 155.
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8. - 2. Seamen in the public service are governed by particular
laws.
SEAMEN'S FUND. By the act of July 16, 1798, a provision is made
for raising a fund for the relief of disabled and sick seamen:
the master of every vessel arriving from a foreign port into the
United States is required to pay to the collector of customs at
the rate of twenty cents per month for every seaman employed on
board of his vessel, which sum he may, retain out of the wages of
such seaman: vessels engaged in the coasting trade, and boats,
rafts or flats navigating the Mississippi, with intention to
proceed to New Orleans, are also laid under similar obligations.
The fund thus raised is to be employed by the president of the
United States as circumstances shall require, for the benefit and
convenience of sick and disabled American seamen. Act of March 3,
1802, s. 1.
2. By the act of congress, passed February 28, 1803, c. 62, 2
Story's L. U. S. 884, it is provided, that when a seaman is
discharged in a foreign country with his own consent, or when the
ship is sold there, he shall, in addition to his usual wages, be
paid three months' wages into the hands of the American consul,
two-thirds of which are to be paid to such seaman, on his
engagement on board any vessel to return home, and the remaining
one-third is retained in aid of a fund for the relief of
distressed American seamen in foreign ports. See 11 John. R. 66;
12 John. Rep. 143; 1 Mason, R. 45; 4 Mason, R. 541; Edw. Adm.
R. 239.
SEARCH, crim. law. An examination of a man's house, premises or
person, for the purpose of discovering proof of his guilt in
relation to some crime or misdemeanor of which be is accused.
2. The constitution of the United. States, amendments, art. 4,
protects the people from unreasonable searches and seizures. 3
Story, Const. §1895; Rawle, Const. ch. 10, p. 127; 10 John. R.
263; 11 John. R. 500; 3 Cranch, 447.
3. By the act of March 2, 1799, s. 68, 1 Story's L. U. S. 632,
it is enacted, that every collector, naval officer, and surveyor,
or other person specially appointed, by either of them, for that
purpose, shall have fall power and authority to enter any ship or
vessel, in which they shall have reason to suspect any goods,
wares, or merchandise, subject to duty, are concealed, and
therein to search for, seize, and secure any such goods, wares,
or merchandise; and if they shall have cause to suspect a
concealment thereof in any particular dwelling house, store,
building, or other place they or either of them shall; upon
proper application, on oath, to any justice of the peace, be
entitled to a warrant to enter such house, store, or other place,
(in the day time only, and there to search for such goods; and
if any shall be found, to seize and secure the same for trial;
and all such goods, wares, and merchandise, on which the duties
shall not have been paid, or secured to be paid, shall be
forfeited.
SEARCH, practice. An examination made in the proper lien office
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for mortgages, liens, judgments, or other encumbrances, against
real estate. The certificate given by the officer as to the
result of such examination is also called a search.
2. Conveyancers and others who cause searches to be made ought
to be very careful that they should be correct, with regard, 1.
To the time during which the person against whom the search has
been made owned the premises. 2. To the property searched
against, which ought to be properly described. 3. To the form of
the certificate of search.
SEARCH, RIGHT OF, mar. law. The right existing in a belligerent
to examine and inspect the papers of a neutral vessel at sea. On
the continent of Europe, this is called the right of visit.
Dalloz, Dict. mots Prises Maritimes, n. 104-111.
2. The right does not extend to examine the cargo; nor does it
extend to a ship of war, it being strictly confined to the
searching of merchant vessels. The exercise of the right is to
prevent the commerce of contraband goods. Although frequently
resisted by powerful neutral nations, yet this right appears now
to be fixed beyond contravention. The penalty for violently
resisting this right is the confiscation of the property so
withheld from visitation. Unless in extreme cases of gross abuse
of his right by a belligerent, the neutral has no right to resist
a search. 1 Kent, Com. 154; 2 Bro. Civ. and Adm. Law, 319;
Mann. Comm. B. 3, c. 11.
SEARCH WARRANT, crim. law, practice. A warrant (q. v.)
requiring the officer to whom it is addressed, to search a house
or other place therein specified, for property therein alleged to
have been stolen; and if the same shall be found upon such
search, to bring the goods so found, together with the body of
the person occupying the same, who is named, before the justice
or other officer granting the warrant, or some other justice of
the peace, or other lawfully authorized officer. It should be
given under the hand and seal of the justice, and dated.
2. The constitution of the United States, amendments, art. 4,
declares that "the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated; and no warrants
shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the person or things to be seized."
3. Lord Hale, 2 P. C. 149, 150, recommends great caution in
granting such warrants. 1. That they be, not granted without oath
made before a justice of a felony committed, and that the
complainant has probable cause to suspect they are in such a
house or place, and his reasons for such suspicion. 2. That such
warrants express that the search shall be made in day time. 3.
That they ought to be directed to a constable or other proper
officer, and not to a private person. 4. A search warrant ought
to command the officer to bring the stolen goods and the person
in whose custody they are, before some justice of the peace. Vide
1 Chit. Cr. Law, 57, 64; 4 Inst. 176; Hawk. B. 2, c. 13, s. 17,
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n. 6; 11 St. Tr; 321; 2 Wils. 149, 291; Burn's Just. h. t.;
Williams' Just. h. t.
SEARCHER, Eng. law. An officer of the customs, whose duty it is
to examine and search all ships outward bound, to ascertain
whether they have any prohibited or uncustomed goods on board.
SECK. This word has two significations. 1. It means a warrant
of remedy by distress. Litt. s. 218; and vide Rent. 2. It
imports want of present fruit or profit, as in the case of the
reversion without rent or other service, except fealty. Co. Litt.
151 b, note 5.
SECOND. A measure equal to one sixtieth part of a minute. Vide
Measure.
SECOND DELIVERANCE, practice. The name of a writ given by
statute of Westminster the second, 13 Edw. 1. c. 2, founded on
the record of a former action of replevin. 2 Inst. 341. It
commands the sheriff, if the plaintiff make him secure of
prosecuting his claim, and returning the chattels which were
adjudged to the defendant by reason of the plaintiff's default,
to make deliver-ance. On being nonsuited, the plaintiff in
replevin might, at common law, have brought another replevin, and
so in infinitum, to the intolerable vexation of the defendant.
The statute of Westminster restrains the plaintiff When nonsuited
from so doing, but allows him this writ, issuing out of the
original record, in order to have the same distress delivered
again to him, on his giving the like security as before. 3 Bl.
Com. 150,; Hamm. N. P. 495; F. N. B. 68; 19 Vin. Ab. 1.
SECOND SURCHARGE, WRIT OF. The name of a writ issued in England
against a commoner who has a second time surcharged the common. 3
Bl. Com. 239.
SECONDARY, construction. That which comes after the first,
which is primary: as, the primary law of, nations the secondary
law of nations.
SECONDARY, English law. An officer who is second or next to the
chief officer; as secondaries to the prothonotaries of the
courts of king's bench, or common pleas; secondary of the
remembrancer in the exchequer, &c. Jacob, L. D. h. t.
SECONDARY EVIDENCE. That species of proof which is admissible
on the loss of primary evidence, and which becomes, by that
event, the best evidence. 3 Bouv. Inst. n. 3055.
SECONDS, crim. law. Those persons who assist, direct and
support others engaged in fighting a duel.
2. As they are often much to blame in inciting the duellists to
their rash act, and as they are always assisting in the
commission of the crime, the laws generally punish them with
severity but, in consequence of the false ideas too generally
entertained on the subject of honor, the are too seldom enforced.
SECRET. That which is not to be revealed.
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2. Attorneys and counsellors, who have been trusted
professionally with the secrets of their clients, are not allowed
to reveal them in a court of justice. The right of secrecy
belongs to the client, and not to the attorney and counsellor.
3. As to the matter communicated, it extends to all cases where
the client applies for professional advice or assistance; and it
does not appear that the protection is qualified by any reference
to proceedings pending or in contem-plation. Story, Eq. Pl. §600;
1 Milne & K. 104; 3 Sim. R. 467.
3. Documents confided professionally to the counsel cannot be
demanded, unless indeed the party would himself be bound to
produce them. Hare on Discov. 171. Grand jurors are sworn the
commonwealth's secrets, their fellows and their own to keep. Vide
Confidential comunications; Witness.
SECRET, rights. A knowledge of something which is unknown to
orthers, out of which a profit may be made; for example, an
invention of a machine, or the discovery of the effect of the
combination of certain matters.
2. Instances have occurred of secrets of that kind being kept
for many years, but they are liable to constant detection. As
such secrets are not pro-perty, the possessors of them in general
prefer making them public, and securing the exclusive right for
years, under the patent laws, to keeping them in an insecure
manner, without them. See Phil. on Pat. ch. 15; Gods. on Pat.
171; Dav. Pat. Cas. 429; 8 Ves. 215; 2 Ves. & B. 218; 2 Mer.
446; 3 Mer. 157; 1 Jac. & W. 394; 1 Pick. 443; 4 Mason, 15;
3 B. & P. 630.
SECRETARY. An officer who, by order of his superior, writes
letters and other instruments. He is so called because he is
possessed of the secrets of his employer. This term wag used in
France in 1343, and in England the term secretary was first
applied to the clerks of the king, who being always near his
person were called clerks of the secret, and in the reign of
Henry VIII. the term secretary of state came into it.
SECRETARY OF EMBASSY or OF LEGATION. An officer appointed by
the sovereign power, to accompany a minister of first or secoud
rank, and sometimes, though not often, of an inferior rank. He
is, in fact, a species of public minister; for independently of
his protection as attached to an ambassador's suite, be enjoys,
in his own rights, the same protection of the law of nations, and
the same immunities as an ambassador. But private secretaries of
a minister must Dot be confounded with secretaries of embassy or
of legation. Such private secretaries are entitled to protection
only as belonging to the suite of the ambassador.
2. The functions of a secretary of legation consist in his
employment by his minister for objects of ceremony; in making
verbal reports to the secretary of state, or other foreign
ministers; in taking care of the archives of the mission; in
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ciphering and deciphering despatches; in sometimes making rough
draughts of the notes or letters whicb the minister writes to his
colleagues or to the local authorities; in drawup proces
verbaux; in presenting passports to the minister for his
signature, and delivering them to the persons for whom they are
intended; and, finally, in assisting the minister, under whom be
is placed, in everything concerning the affairs of the mission.
In the absence of the minister he is admitted to conferences and
to present notes signed by the minister. Vide Ambassador;
Minister; Suite.
SECRETARY OF LEGATION. An officer employed to attend a foreign
mission, and to perform certain duties as clerk.
2. His salary is fixed by the act of congress of May 1, 1810,
s. 1, at such a sum as the president of the United States may
allow, not exceeding two thousand dollars.
3. The salary of a secretary of embassy, or the secretary of a
minister plenipotentiary, is the same as that of a secretary of
legation.
SECRETARY OF THE NAVY, government. This officer is appointed by
the president. His duties are to execute all such orders as he
shall receive from the president, relative to the procurement of
naval stores and materials, and the construction, armament,
equipment and employment of vessels of war; as well as all other
matters connected with the naval establishment of the United
States; act of 30th April, 1798, s. 1, 1 Story's Laws, 498; he
appoints his own clerks and subordinate officers. Various other
duties are imposed upon him by sundry acts of congress. Vide
Gordon's Dig. art. 370 to 375.
2. His salary is six thousand dollars. Act of 20th Feb. 1819, 3
Story's Laws, 1720.
SECRETARY OF STATE OF THE UNITED STATES, government. The
principal officer in the Department of State. (q. v.) He shall
perform such duties as shall be enjoined on or entrusted to him
by the president, agreeably to the constitution, refative to the
correspondences, commissions or instructions to or with public
ministers or consuls from the United States, or to negotiations
with foreign states or princes, or to memorials or other
applications from foreign public ministers or foreigners, or to
such other matters respecting foreign affairs as the president of
the United States shall assign to such department. The secretary
shall conduct the business of his department in such manner as
the president shall, from time to time, order or instruct. Act of
27th July, 1789 act of 15th Sept: 1789, s. 1. Besides these
general laws, there are various, others which impose upon him
inferior and less important duties.
2. His salary is six thousand dollars per annum. Act of 20th
Feb. 1819.
SECRETARY OF THE TREASURY OF THE UNITEE STATES, government. An
officer appointed by the president. His principal duties are, 1.
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To superintend the collection of the revenue. 2. To digest,
prepare, and lay before congress at the commencement of every
session, a report on the subject of finance. 3. To annex to the
annual estimates of the appropriations required for the public
service, a statement of the appropriations for the service of the
year, which may have been made by former acts. 4. To give
information to either house of congress, respecting all matters
connected with his office. Besides these, there are other minor
duties imposed upon him by various acts of congress.
2. His salary is six thousand dollars. Gord. Dig. art. 249 to
262.
SECRETARY FOR THE DEPARTMENT OF WAR, government. This officer
is appointed by the president. He is required to perform and
execute such duties as shall, from time to time, be enjoined on
or entrusted to him by the president, agreeably to the
constitution, relative to military commissions or to the land
forces, or warlike stores of the United States, or to such other
matters respecting military affairs as the president shall assign
to the department of war, (q. v.) or relative to granting of
lands to persons entitled thereto for military services rendered
to the United States, or relative to Indian affairs. Act of 27th
Aug., 1789, 1 Story's Laws, 31.
2. His salary is six thousand dollars per annum. Act of 20th
Feb. 1819, 3 Story's Laws, 1720.
3. Various other duties are imposed upon the secretary by
sundry acts of congress. Vide Laws, Index, Departments, &c.;
Gordon's Dig. art. 368 to 382.
SECTA pleading. In ancient times the plaintiff was required to
establish the truth of his declaration in the first instance, and
before it was called in question, upon the pleading, by the
simultaneous production of his secta, that is, a number of
persons prepared to confirm his allegations. Bract. 214, a.
2. The practice of thus producing a secta, gave rise to the
very. ancient formula almost invariably used at the conclusion of
a declaration, as entered on the record, et inde producit sectam;
and, though the actual production has, for many centuries, fallen
into disuse, the formula still remains. Accordingly, except the
count on a writ of right, and in dower, all declarations
constantly conclude thus, "And therefore he brings his suit, &c.
The count on a writ of right did not, in ancient times, conclude
with the ordinary production of suit, but with the following
formula peculiar to itself, "Et quod tale sit jus suum offert
disrationare per corpus, talis liberi hominis, &c., and it
concludes, at the present day, with an abbreviated. translation
of the same phrase: "And, that such is his right, he offers,"
&c. The count in dower is an exception to the rule in question,
and concludes without any production of suit, a peculiarity which
appears always to have belonged to that action. Steph. Pl. 427,
8; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399.
SECTION OF LAND. The lands of the United States are surveyed
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into parcels of six hundred and forty acres; each such parcel is
called a section. 1 Story's L. U. S. 422.
2. These sections are divided into half sections, each of which
contains three hundred and twenty acres, and into quarter
sections of one hundred and sixty acres each.
SECTORES. Among the Romans the bidders at an auction were so
called. Bab. on Auct. 2.
TO SECURE. To protect, insure, or save a right.
2. The constitution of the United States, art. 1, s. 8, gives
power to congress "to promote the progress of science and the
useful arts by securing, for Iimited times, to authors and
inventors the exclusive right to their respective writings and
discoveries." The inventor of a machine has the right to it
exclusively at common law, and the author a right to his
manuscript. But they may abandon the, right by publishing the
book without having secured a copy-right, (q. v.) or by using
publicly the machine, and suffering others to use it, without
having obtained a patent. (q. v.) Vide Secret.
SECURITY. That which renders a matter sure; an instrument
which renders certain the performance of a contract. The term is
also sometimes applied to designate a person who becomes the
surety for another, or who engages himself for the performance of
another's contract. See 3 Blackf. R. 431.
SECURITY FOR COSTS, practice. In some courts there is a rule
that when the plaintiff resides abroad he shall give security for
costs, and until that has been done, when demanded, he cannot
proceed in his action.
2. This is a right which the defendant must claim in proper
time, for if he once waives it, he cannot afterwards claim it;
the waiver is seldom, or perhaps never expressly made, but is
generally implied from the acts of the de-fendant. When the
defendant had undertaken to accept short notice of trial; 2 Hen.
Bl. 573; 3 Taunt. 272 or after issue joined, and when he knew of
plain-tiff's residence abroad; or, with such knowledge, when the
defendant takes any step in the cause these several acts will
amount to a waiver. 5 Bar & Ald. 702; S. C. 1 Dow. & Ryl. 348;
1 M. & P. 30; S. C. 17 E. C. L. R. 164. Vide 3 John. Ch. R. 520;
1 John. Ch. Rep. 202; 1 Ves. jun. 396.
3. The fact that the defendant is out of the jurisdiction of
the court, will not, alone, authorize the requisition of security
for costs; he must have his domicil abroad. 1 Ves. jr. 396.
When, the defendant resides abroad, he will be required to give
such security, although he is a foreign prince. 33 E. C. L. Rep.
214. Vide 11 S. & Rawle, 121 1 Miles, R. 321; 2 Miles, 402.
SECUS. Otherwise.
SEDITION, crimes. The raising commotions or disturbances in the
state; it is a revolt against legitimate authority, Ersk. Princ.
Laws, Scotl. b. 4, t. 4, s. 14; Dig. Lib. 49, t. 16, 1. 3, §19.
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2. The distinction between sedition and treason consists in
this, that though its ultimate object is a violation of the
public peace, or at least such a course of measures as evidently
engenders it, yet it does not aim at direct and open violence
against the laws, or the subversion of the constitution. Alis.
Crim. Law of Scotl. 580.
3. The. obnoxious and obsolete act of July 14, 1798, 1 Story's
Laws U. S. 543, was called the sedition law, because its
professed object was to prevent disturbances.
4. In the Scotch law, sedition is either verbal or real. Verbal
is inferred from the uttering of words tending to create discord
between the king and his people; real sedition is generally
committed by convocating together any considerable number of
people, without lawful authority, under the pretence of
redressing some public grievance, to the disturbing of the public
peace. 1 Ersk. ut supra.
SEDUCTION. The offence of a man who abuses the simplicity and
confidence of a woman to obtain by false promises what she ought
not to grant.
2. The woman being particeps criminis, has no remedy for the
mere seduction, nor is there, to the discredit of the law, a
direct remedy in her parents. The seducer may be sued, though
not. directly or ostensibly for the seduction; but for the
consequent inability to perform those services for which she was
accountable to her master, or to her parent, who, for this
purpose, is obliged to assume that less endearing relation; and
if it cannot be proved that she filled that office, the action
cannot be sustained. 7 Mann. & Gr. 1033. It follows, therefore,
that when the daughter is of full age, and the father is not
entitled to her services, and actually, she is not in his
service, the father can maintain no action for the seduction. 5
Harr. & J. 27; 1 Wend. 447; 3 Pennsyl. 49; 10 John. 115. Vide
2 Watts 474; 9 John. 387; 2 Wend. 459; 5 Cowen 106; 2 Penn.
583; 6 Munf. 587; 2 A. K. Marsh. 128; 2 Overt. 93; 9 John. R.
387; 2 New Reports, 476; 6 East, 887; Peake's Rep. 253; 11
East, 24; 5 East, 45; 2 T. R. 4; 2 Selw. N. P. 1001; 2 Phil.
Ev. 156; 3 Chitt. Bl. Com. 140, n.; 7 Com. Dig. 318; 6 M. & W.
55.
SEEDS. The substance which nature prepares for the reproduction
of plants or animals.
2. Seeds which have been sown in the earth immediately become a
part of the land in which they have been sown; quae sata solo
cedere intelliguntur. Inst. 2, 1, 32.
SEIGNIOR or SEIGNEUR. Among the feudists, this name signified
lord of the fee. F. N. B. 23. The most extended signification of
this word includes not only a lord or peer of parliament, but is
applied to the owner or proprietor of a thing; hence, the owner
of a hawk, and the master of a fishing vessel, is called a
seigneur. 37 Edw. Ill. c. 19; Barr. on the Stat. 258.
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SEIGNIORY, Eng. law. The rights of a lord as such, in lands.
Swinb. 174.
SEISIN, estates. The possession of an estate of freebold. 8 N.
H. Rep. 57; 3 Hamm. 220; 8 Litt. 134; 4 Mass. 408. Seisin was
used in contradistinction to that precarious kind of possession
by which tenants in villenage held their lands, which was
considered to be the possession of their lords in, whom the
freehold continued.
2. Seisin is either in fact or in law.
3. Where a freehold estate is conveyed to a person by
feoffment, with livery of seisin, or by any of those conveyances
which derive their effect from the statute of uses, he acquires a
seisin in deed or in fact, and a freehold in deed: but where the
freehold comes to a person by act of law, as by descent, he only
acquires a seisin in law, that is, a right of possession, and
his-estate is called a freehold In law.
4. The seisin in law, which the heir acquires on the death of
his ancestor, May be defeated by the entry of a stranger,
claiming a right to the land, which is called an abatement. (q.
v.)
5. The actual seisin of an estate may be lost by the forcible
entry of a stranger who thereby ousts or dispossesses the owner
this act is called a disseisin. (q. v.)
6. According to Lord Mansfield, the various alterations which
have been made in the law for the last three centuries, "have
left us but the name of feoffment, seisin, tenure, and,
freeholder, without any precise knowledge of the thing originally
signified by these sounds."
7. In the United States, a conveyance by deed executed and
acknowledged, and properly recorded according to law, and the
descent cast upon the heir are, in general, considered as a
seisin in deed without entry; and a grant by letters- patent
from the commonwealth has the same effect. 4 Mass. R. 546; 7
Mass. R. 494; 15. Mass. R. 214 1 Munf. R. 17O. The recording of
a deed is equivalent to livery of seisin. 4 Mass. 546.
8. In Pennsylvania, Connecticut, Massachusetts and Ohio, seisin
means merely, ownership, and the distinction between seisin in
deed and in law is not known in practice. Walk. Intr. 324, 330;
1 Hill. Abr. 24 4 Day, R. 305; 4 Mass.; R. 489 14 Pick. R. 224.
A patent by the commonwealth, in Kentucky, gives a, right entry,
but not actual seisin. 3 Bibb, Rep. 57. Vide 1 Inst. 31; 19 Vin.
Ab. 306; Dane's Abr. c. 104, a. 3; 4 Kent, Com. 2, 381;
Cruise's Dig. t. 1, §23; Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 1,
n. 80; Poth. Traite des Fiefs, part 1, c. 2; 3 Sumn. R. 170.
Vide Livery of Seisin.
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SEIZURE, practice. The act of taking possession of the property
of a person condemned by the judgment of a competent tribunal, to
pay a certain sum of money, by a sheriff, constable, or other
officer, lawfully authorized thereto, by virtue of an execution,
for the purpose of having such property sold according to law to
satisfy the judgment. By seizure is also meant the taking
possession of goods for a violation of a public law; as the
taking possession of a ship for attempting an illicit trade. 2
Cranch, 18 7; 6 Cowen, 404; 4 Wheat. 100; 1 Gallis. 75; 2
Wash. C. C. 127, 567.
2. The seizure is complete as soon as the goods are within the
power of the officer. 3 Rawle's Rep. 401; 16 Johns. Rep. 287; 2
Nott & McCord, 392; 2 Rawle's Rep. 142; Wats. on Sher. 172;
Com. Dig. Execution, C 5.
3. The taking of part of the goods in a house, however, by
virtue of a fieri facias in the name of the whole, is a good
seizure of all. 8 East, R. 474. As the seizure must be made by
virtue of an execution, it is evident that it cannot be made
after the return day. 2 Caine's Rep. 243; 4 John. R. 450. Vide
Door; House; Search Warrant.
SELECTI JUDICES. Judges among the Romans who were selected very
much like our juries. They were returned by the praetor, drawn by
lot, subject to be challenged and sworn. 3 Bl. Com. 366.
SELF-DEFENCE, crim. law. The right to protect one's person and
property from injury.
2. It will be proper to consider, 1. The extent of the right of
self-defence. 2. By whom it may be exercised. 3. Against whom. 4.
For what causes.
3. - 1. As to the extent of the right, it may be laid down,
first, that when threatened violence exists, it is the duty of
the person threatened to use all, prudent and precautionary
measures to prevent the attack; for example, if by closing a
door which was usually left open, one could prevent an attack, it
would be prudent, and perhaps the law might require, that it
should be closed, in order to preserve the peace, and the
aggressor might in such case be held to bail for his good
behaviour; secondly, if, after having taken such proper
precautions, a party should be assailed, he may undoubtedly repel
force by force, but in most instances cannot, under the pretext
that he has been attacked, use force enough to kill the assailant
or hurt him after he has secured himself from danger; as, if a
person unarmed enters a house to commit a larceny, while there he
does not threaten any one, nor does any act which manifests an
intention to hurt any one, and there are a number of persons
present, who may easily secure him, no one will be justifiable to
do him any injury, much less to kill him; he ought to be secured
and delivered to the public authorities. But when an attack is
made by a thief under such circumstances, and it is impossible to
ascertain to what extent he may push it, the law does not requite
the party assailed to weigh with great nicety the probable extent
of the attack, and he may use the most violent means against his
assailant, even to the taking of his life. For homicide may be
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excused, se defendendo, where a man has no other probable means
of preserving his life from one who attacks him, while in the
commission of a felony, or even on a sudden quarrel, he beats
him, so that he is reduced to this inevitable necessity. Hawk.
bk. 2, c. 11, s. 13. And the reason is that when so reduced, he
cannot call to his aid the power of society or of the
commonwealth, and, being unprotected by law, he reassumes his
natural rights, which the law sanctions, of killing his adversary
to protect himself. Toull. Dr. Civ. Fr. ]iv. 1, tit. 1, n. 210.
See Pamph. Rep. of Selfridge's Trial in 1806 2 Swift's Ev. 283.
4. - 2. The party attacked may undoubtedly defend himself, and
the law further sanctions the mutual and reciprocal defence of
such as stand in the near relations of hushand and wife, patent
and child, and master and servant. In these cases, if the party
himself, or any of these his relations, be forcibly attacked in
their person or property, it is lawful for him to repel force by
force, for the law in these cases respects the passions of the
human mind, and makes, it lawful in him, when external violence
is offered to himself, or to those to whom he bears so near a
connexion, to do that immediate justice to which he is prompted
by nature, and which no prudential motives are strong enough to
restrain. 2 Roll. Ab. 546; 1 Chit. Pr. 592.
5. - 3. The party making the attack may be resisted, and if
several persons join in such attack they may all be resisted, and
one may be killed although he may not himself have given the
immediate cause for such killing, if by his presence and his
acts, he has aided the assailant. See Conspiracy.
6. - 4. The cases for which a man may defend himself are of two
kinds; first, when a felony is attempted, and, secondly, when,
no felony is attempted or apprehended.
7. - 1st. A man may defend himself, and even commit a homicide
for the prevention of any forcible and atrocious crime, which if
completed would amount to a felony; and of course under the like
circumstances, mayhem, wounding and battery would be excusable at
common law. 1 East, P. C. 271; 4 Bl. Com. 180. A man may repel
force by force in defence of his person, property or habitation,
against any one who manifests, intends, attempts, or endeavors,
by violence or surprise, to commit a forcible felony, such as
murder, rape, robbery, arson, burglary and the like. In these
cases he is not required to retreat, but he may resist, and even
pursue his adversary, until he has secured himself from all
danger.
8. - 2d. A man may defend himself when no felony has been
threatened or attempted; 1. When the assailant attempts to beat
another and there is no mutual combat; as, where one meets
another and attempts to commit or does commit an assault and
battery on him, the person attacked may defend himself; and an
offer or, attempt to strike another, when sufficiently near, so
that that there is danger, the person assailed may strike first,
and is not required to wait until he has been struk. Bull. N. P.
18; 2 Roll. Ab. 547. 2. When there is a mutual combat upon a
sudden quarrel. In these cases both parties are the aggressors;
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and if in the fight one is killed it will be manslaughter at
least, unless the survivor can prove two things: 1st. That
before the mortal stroke was given be had refused any further
combat, and had retreated as far as he could with safety; and
2d. That he killed his adversary from necessity, to avoid his own
destruction.
9. A man may defend himself against animals, and he may during
the attack kill them, but not afterwards. 1 Car. & P. 106; 13
John. 312; 10 John. 365.
10. As a general rule no man is allowed to defend himself with
force if he can apply to the law for redress, and the law gives
him a complete remedy, See Assault; Battery; Necessity;
Trespass.
SELECTMEN. The name of certain officers in several of the
United States, who are invested by the statutes of the several
states with various powers.
SELLER, contracts. One who disposes of a thing in consideration
of money; a
vendor.
2. This term is more usually applied in the sale of chattels,
that of vendor in the sale of estates.
3. The duties of the seller are, 1. To deal with fairness. 2.
To deliver the thing sold at the time and place appointed, and to
take care of it until deli-very; but when everything the seller
has to do with the goods is complete, the property and the risk
of accident to the goods, rests in the buyer, even before
delivery, or payment. Noy's Max. ch. 24; 7 East, 571; 2 Bl.
Com. 448. 3. To warrant the title of personal property when he
sells it as his own, when it is in his possession. 2 Kent, Com.
374; 1 Lord Raym. 593; 1 Salk. 210.
4. The rights of the seller are, 1. To be paid the price agreed
upon. 2. To be indemnified for any expenses he may have incurred
to preserve the thing sold for the buyer, after the title to it
has passed to the latter. 3. To stop the thing in transitu when
the buyer has failed and the price has not been paid . See
Stoppage, in transitu. Vide Purchaser, and the authorities there
cited; Bouv. Inst. Index, h. t.
SEMBLE. A French word which signifies, it seems. It is commonly
used before the statement of a point of law which has not been
directly settled; but about which the court have expressed an
opinion, and intimated what it is.
SEMI-PROOF, civ. law. Presumptions of fact are so called. This
degree of proof is thus deaned: "Non est ignorandum, probationem
semiplenam eam esse, per quam rei gestae fides aliqua fit judici;
non tamen tanta ut jure debeat in pronuncianda sententia eam
sequi." Mascardus, De Prob. vol. 1, Quaest. 11, n. 1, 4.
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SEMINAUFRAGIUM. A term used by Italian lawyers, which literally
signifies half-shipwreck, and by which they understand the
jetsam, or casting merchan-dise into the sea to prevent
shipwreck. Locre, Esp. du Code de Com. art. 409. It also
signifies the state of a vessel which has been so much injured by
tem-pest or accident, that to repair the damages, after being
brought into port, and prepare her for sea, would cost more than
her worth. 4 Law Rep. 120.
SEMPER PARATUS. The name of a plea by which the defendant
alleges that he has always been ready to perform what is demanded
of him. 3 Bl. Com. 303. The same as Tout temps prist. (q. v.)
SEN. This is said to be an ancient word which signified
justice. Co. Litt. 61 a.
SENATE, government. The less numerous branch of the
legislature.
2. The constitution of the United States, article 1, s. 3, cl.
1, directs that "the senate of the United States shall be
composed of two senators from each state, chosen by the
legislature thereof for six years; and each senator shall have
one vote." The vice president of the United States," to use the
language of the constitution, art. 1, s. 3, cl. 4, "shall be
president of the senate, but shall have no vote unless they be
equally divided." In the senate each state in its political
capacity, is represented, upon a footing of perfect equality,
like a congress of sovereigns or ambassadors, or like an assembly
of peers. It is unlike the house of representatives. where the
people are represented. Story, Const. ch. 10.
3. The senate of the United States is invested with
legislative, executive and judicial powers.
4. - 1. It is a legislative body whose concurrence is requisite
to the passage of every law. It may originate any bill, except
those for raising rev-enue, which shall originate in the house of
representatives; but the senate may propose or concur with
amendments as on other bills. Const. art. 1, s. 7, el. I.
5. - 2. The senate is invested with executive authority in
concluding treaties and making appointments. Vide President of
the United States of America.
6. - 3. It is invested with judicial power when it is formed
into a court for the trial of impeachments. See Courts of the
United States.
7. In most of the states the less numerous branch of the
legislature bears the title of senate. In such a body the people
are represented as well as in the other house. Vide article
Congress; and, for the senates of the several states, the name
of each state. See, also, articles Courts of the United States,
I; House of Representatives; Vice-President of the United
States.
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SENATOR, government. One who is a member of a senate.
2. No person shall be a senator [of the national senate] who
shall not have attained the age of thirty years, and been nine
years a citizen of the United States and who shall not when
elected, be an inhabitant of that state for which he shall be
chosen. Const. U. S. art. 1, s. 3, cl. 5. Vide 1 Kent, Com. 224
Story on the Const. 726 to 730.
SENATUS CONSULTUM, civ. law. A decree or decision of the Roman
senate, which had the force of law.
2. When the Roman people had so increased that there was no
place where they could meet, it was found necessary to consult
the senate instead of the people, both on public affairs and
those which related to individuals. The opinion which was
rendered on such an occasion was called senatus consultum. Inst.
1, 2, 5; Clef des Lois Rom. h. t.; Merl. Repert. h. t. These
decrees frequently derived their titles from the names of the
consuls or magistrates who proposed them; as, senatus-consultum
Claudianum, Libonianum, Velleianum, &c. from Claudius, Libonius,
Valleius. Ail. Pand. 30.
SENESCHALLUS. A steward. Co. Litt. 61 a.
SENILITY. The state of being old.
2. Sometimes in this state it is exceedingly difficult to know
whether the individual is or is not so deprived of the powers of
his mind as to be unable to manage his affairs. In general,
senility of energy in some of the intellectual operations, while
the affections remain natural and unperverted; such a state may,
however, be followed by actual dementia or idiocy.
3. When on account of senility the party is unable to manage
his affairs, a committee will be appointed as in case of lunacy.
1 Coll. on Lunacy, 66; 2 John. Ch. R. 232; 12 Ves. 446; 4
Call's R. 423; 5 John. Ch. R. 158; 8 Mass. 129; 2 Ves. sen.
407; 19 Ves. 285; 2 Cyclop. of Pract. Med. 872. See Aged
Witness.
SENIOR. The elder. This addition is sometimes made to a man's
name, when two persons bear the same, in order to distinguish
them. In practice when nothing is mentioned, the senior is
intended. 3 Miss. R. 59. See Junior.
SENTENCE. A judgment, or judicial declaration made by a judge
in a cause. The term judgment is more usually applied to civil,
and sentence to criminal proceedings.
2. Sentences are final, when they put, an end to the case; or
interlocutory, when they settle only some incidental matter which
has arisen in the course of its progress. Vide Aso & Man. Inst.
B. 3, t. 8, c. 1.
SEPARALITER. Separately.
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2. This word is sometimes used in indictments to show that the
defendants are charged separately with offences, which, without
the addition of this word, would seem, from the form of the
indictment, to be charged jointly; as, for example, when two
persons are indicted together for perjury, and the indictment
states that A and B came before a commissioner, &c., this is
alleging that they were both guilty of the same crime, when by
law their crimes are distinct, and the indictment is vicious;
but if the word separaliter is used, then the affirmation is that
each was guilty of a separate offence. 2 Hale, P. C. 174.
SEPARATE ESTATE. That which belongs to one only of several
persons; as, the separate estate of a partner, which does not
belong to the partnership. 2 Bouv. Inst. n. 1519.
2. The separate estate of a married woman, is that which
belongs to her, and over which her hushand has no right in
equity. It may consist of lands or chattels. 4 Barb. S. C. Rep.
407; 1 Const. R. 452; 4 Bouv. Inst. n. 3996.
SEPARATE MAINTENANCE, contracts. An allowance made by a hushand
to his wife for her separate support and maintenance.
2. When this allowance is regularly paid, and notice of it has
been given, no person who has received such notice will be
entitled to recover against the hushand for necessaries furnished
to the wife, because the liability of the hushand, depends on a
presumption of authority delegated by him to the wife, which is
negatived by the facts of the case. 2 Stark. Ev. 699.
SEPARATE TRIAL, practice. The trial of one person by himself,
when he is jointly indicted with others for an alleged offence.
2. On a joint indictment against two or more defendants for a
crime of misdemeanor, it is in the discretion of the court
whether to allow a separate trial for each prisoner, or to order
the whole of them to be tried together. 1 Baldw. Rep. 81; 12
Wheat. 480; 5 Serg. & Rawle, 60; but see 1 Pet., C. C. Rep.
118.
SEPARATION, contracts. When the hushand and wife agree to live
apart they are said to have made a separation.
2. Contracts of this kind are generally made by the hushand for
himself and by the wife with trustees. 4 Paige's R. 516; 3
Paige's R. 483; 5 Bligh, N. S. 339; 1 Dow & Clark, 519. This
contract does not affect the marriage, and the parties may, at
any time agree to live together as hushand and wife. The hushand
who has agreed to a total separation cannot bring an action for
criminal conversation with the wife. Roper, Hush. and Wife,
passim; 4 Vin. Ab. 173; 2 Stark. Ev. 698; Shelf. on Mar. &
Div. ch. 6, p. 608.
3. Reconciliation after separation supersedes special articles
of separation in courts of law and equity. 1 Dowl. P. C. 245; 2
Cox, R. 105; 3 Bro. C. C. 619, n.; 11 Ves. 532. Public policy
forbids that parties should be permitted to make agreements for
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themselves to hold good whenever they choose to live separate. 5
Bligh, N. S. 367, 375; and see 1 Carr. & P. 36. See 5 Bligh, N.
S. 339; 2 Dowl. P. C. 332; 2 C. & M. 388; 3 John. Ch. R. 521;
2 Sim. & Stu. 372; 1 Edw. R. 380; Desaus. R. 45, 198; 1 Y. &
C. 28; 11 Ves. 526; 2 East, R. 283; 8 N. H. Rep. 350; 1 Hoff.
R. 1.
SEPULCHRE. The place where a corpse is buried. The violation of
sepulchres is a misdemeanor at common law. Vide Dead bodies.
TO SEQUESTER, civil and eccles. law. To renounce. Example, when
a widow comes into court and disclaims having anything to do, or
to intermeddle with her deceased hushand's estate, she is said to
sequester. Jacob, L. D. h. t.
SEQUESTRATION, chancery practice. The process of sequestration
is a writ of commission, sometimes directed to the sheriff, but
most usually, to four or more commissioners of the complainant's
own nomination, authorizing them to enter upon the real or
personal estate of the defendant, and to take the rents, issues
and profits into their own hands, and keep possession of, or pay
the same as the court shall order and direct, until the party who
is in contempt shall do that which he is enjoined to do, and
which is specially mentioned in the writ. 1 Harr. Ch. 191; Newl.
Ch. Pr. 18; Blake's Ch. Pr. 103.
2. Upon the return of non est inventus to a commission of
rebellion, a ser-geant-at-arms may be moved for; and if he
certifies that the defendant cannot be taken, a motion may be
made upon his certificate, for an order for a sequestration. 2
Madd. Chan. 203; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
3. Under a sequestration upon mesne process, as in respect of a
contempt for want of appearance or answer, the sequestrators may
take possession of the party's personal property and keep him out
of possession; but no sale can take place, unless perhaps to pay
expenses; for this process is only to form the foundation of
taking the bill pro confesso. After a decree it may be sold. See
3 Bro. C. C. 72; 2 Cox, 224; 1 Ves. jr. 86; 3 Bro. C. C. 372;
2 Madd. Ch. Pr. 206. See, generally, as to this species of
sequestration, 19 Vin. Abr. 325; Bac. Ab. h. t.; Com.;
Chancery, D 7, Y 4; 1 Hov. Supp. to Ves. jr. 25 to 29; 1 Vern.
by Raith. 58, note 1; Id. 421, note 1.
SEQUESTRATION, contracts. A species of deposit, which two or
more persons, engaged in litigation about anything, make of the
thing in contest to an indifferent person, who binds himself to
restore it when the issue is decided, to the party to whom it is
adjudged to belong. Louis. Code, art. 2942; Story on Bailm:
§45. Vide 19 Vin. Ab. 325; 1 Supp. to Yes. jr. 29; 1 Vern. 58,
420; 2 Ves. jr. 23; Bac. Ab. h. t. 2. This is called a
conventional sequestration, to distinguish it from a judicial
sequestration, which is considered in the preceding article. Sec
Dalloz, Dict. mot Sequestre.
SEQUESTRATION, Louisiana practice. The Code of Practice in
civil cases in Louisiana, defines and makes the following
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provisions on the subject of sequestration. Art. 269.
Sequestration is a mandate of the court, ordering the sheriff, in
certain cases, to take in his possession, and to keep a thing of
which another person has the possession, until after the decision
of a suit, in order that it be delivered to him who shall be
adjudged entitled to have the property or possession of that
thing. This is what is properly called a judicial sequestratian.
Vide 1 Mart. R. 79; 1 L. R. 439; Civil Code of Lo. 2941; 2948.
2. - Art. 270. In this acceptation, the word sequestration does
not mean a judicial deposit, because sequestration may exist
together with the right of administration, while mere deposit
does not admit it.
3. - Art. 271. All species of property, real or personal, as
well as the revenue proceeding from the same, may be sequestered.
4. - Art. 272. Obligations and titles may also be sequestered,
when their ownership is in dispute.
5. - Art. 273. Judicial sequestration is generally ordered only
at the request of one of the parties to a suit; there are cases,
nevertheless, where it is decreed by the court without such
request, or is the consequence of the execution of judgments.
6. - Art. 274. The court may order, ex officio, the
sequestration of real property in suits, where the ownership of
such property is in dispute and when one of the contending
parties does not seem to have a more apparent right to the
possession than the other. In such cases, sequestration may be
ordered to continue, until the question of ownership shall have
been decided.
7. - Art. 275. Sequestration may be ordered at the request of
one of the parties in a suit in the following cases: 1. When one
who had possessed for more than one year, has been evicted
through violence, and sues to be restored to his possession. 2.
When one sues for the possession of movable property, or of a
slave, and fears that the party having possession, may ill treat
the slave or send either that slave, or the property in dispute,
out of the jurisdiction of the court, during the pendency of the
suit. 3. When one claims the ownership, or the possession of real
property, and has good ground to appre-hend, that the defendant
may make use of his possession to dilapidate or to waste the
fruits or revenues produced by such property, or convert them to
his own use. 4. When a woman sues for a separation from bed and
board, or only for a separation of property from her hushand, and
has reason to apprehend that he will ruin her dotal property, or
waste the fruits or revenues produced by the same during the
pendency of the action. 5. When one has petitioned for a stay of
proceedings, and a meeting of his creditors, and such creditors
fear that he may avail himself of such stay of proceedings, to
place the whole, or a part of his property, out of their reach.
6. A creditor by special mortgage shall have the power of
sequestering the mortgaged property, when he appre-hends that it
will be removed out of the state before he can have the benefit
of his mortgage, and will make oath of the facts which induced
his apprehension.
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8. - Art. 276. A plaintiff wishing to obtain an order of
sequestration in any one of the cases above provided, must annex
to the petition in which he prays for such an order, an
affidavit, setting forth the cause for which he claims such
order, he must besides, execute his obligation in favor of the
defendant, for such sum as the court shall determine, with the
surety of one good and solvent person, residing within the
jurisdiction of the court, to be responsible for such damages as
the defendant may sustain, in case such sequestration should have
been wrongfully obtained.
9. - Art. 277. When security is given in order to obtain the
sequestration of real property which brings a revenue, the judge
must require that it be given for an amount sufficient to
compensate the defendant, not only for all damage which he may
sustain, but also for the privation of such revenue, during the
pendency of the action.
10. - Art. 278. The plaintiff when he prays for a sequestration
of the property of one who has failed, is not required to give
such security, though that property bring in a revenue.
11. - Art. 279. A defendant against whom a mandate of
sequestration has been obtained, except in cases of failure, may
have the same set aside, by executing his obligation in favor of
the sheriff, with one good and solvent surety, for whatever
amount the judge may determine, as being equal to the value of
the property to be left in his possession.
12. - Art. 280. The security thus given by the defendant, when
the property sequestrated consists in movables or in slaves,
shall be responsible that he shall not send away the same out of
the jurisdiction of the court; that he shall not make an
improper use of them; and that he will faithfully present them,
after definitive judgment, in case he should be decreed to
restore the same to the plaintiff.
13. - Art. 281. As regards landed property, this security is
given to prevent the defendant, while in possession, from wasting
the property, and for the faithful restitution of the fruits that
he may have received since the demand, or of their value in the
event of his being cast in the suit.
14. - Art. 282. When the sheriff has sequestered property
pursuant to an order of the court, he shall, after serving the
petition and the copy of the order of sequestration on the
defendant, send him return in writing to the clerk of the court
which gave the order, stating in the same in what manner the
order was executed, and annex to such return a true and minute
inventory of the property sequestered, drawn by him, in the
presence of two witnesses.
15. - Art. 283. The sheriff, while he retains possession of
sequestered property, is bound to take proper care of the same
and to administer the same, if it be of such nature as to admit
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of it, as a prudent father of a family administers his own
affairs. He may confide them to the care of guardians or
overseers, for whose acts he remains responsible, and he will be
entitled to receive a just compensation for his administration,
to be determined by the court, to be paid to him out of the
proceeds of the property sequestered, if judgment be given in
favor of the plaintiff.
SEQUESTRATOR. One to whom a sequestration is made.
2. A depositary of this kind cannot exonerate himself from the
care of the thing sequestered in his hands, unless for some cause
rendering it indispens-able that he should resign his trust.
Louis. Code, art. 2947. See Stakeholder. Sequestrators are also
officers appointed by a court of chancery, and named in a writ of
sequestration. As to their powers and duties, see 2 Madd. Ch. Pr.
205, 6; Blake's Ch. Pr. 103; Newl. Ch. Pr. 18, 19; 1 Harr. Ch.
191.
SERF. During the feudal times certain persons who were bound to
perform very onerous duties towards others, were so called. Poth.
Des Personnes, p. 1, t. 1, a. 6, s. 4. There is this essential
difference between a serf and a slave; the serf was bound simply
to labor on the soil where he was born, without any right to go
elsewhere without the consent of his lord; but he was free to
act as he pleased in his daily action: the slave on the contrary
is the property of his master, who may require him to act as he
pleases in every respect, and who may sell him as a chattel.
Lepage, Science du Droit, c. 3, art. 2, §2.
SERGEANT or SERJEANT, Engl. law. An officer in the courts of
the highest grade among the practitioners of the law.
SERGEANT or SERJEANT, in the army. An inferior officer of a
company of foot, or troop of dragoons appointed to see discipline
observed, to teach the soldiers the exercise of their arms, and
to order, straighten and form ranks, files, &c.
SERGEANT AT ARMS, An officer appointed by a legislative body,
whose duties are to enforce the orders given by such bodies,
generally under the warrant of its presiding officer.
SERIATIM. In a series, severally; as, the judges delivered
their opinions seriatim.
SERJEANTY, Eng. law. A species of service which cannot be due
or performed from a tenant to any lord but the king; and is
either grand or petit serjeanty.
SERVANTS, (negro or mulatto,) Pennsylvania. By the fourth
section of the act for the gradual abolition of slavery, passed
the first day of March, 1780, 1 Smith's Laws of Penn. 492, it is
"provided that every negro or mulatto child, born within this
state after the passing of this act, (who would in case this act
had not been made, have been a servant for years, or life, or a
slave) shall be by virtue of this act the servant of such person,
or his assigns who would in such case have been entitled to the
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service of such child, until such child attain unto the age of
twenty-eight years, in the manner and on the conditions, whereon
servants bound by indenture for four years are or may be retained
or holden; and shall be liable to like correction and
punishment, and entitled to like relief, in case he be evilly
treated by his master, and to like freedom dues and privileges,
as servants bound by indenture for four years are entitled,
unless the person to whom such services belong shall abandon his
claim to the same; in which case the overseers of the poor where
such child shall be abandoned shall by indenture bind out every
such child so abandoned as an apprentice for a time not exceeding
the age hereinbefore limited for the service of such children."
And by the thirteenth section it is enac-ted, "that no covenant
of personal servitude or apprenticeship whatsoever shall be valid
or binding on a negro or mulatto for a longer time than seven
years, unless such servant or apprentice were at the commencement
of such servitude or apprenticeship, under the age of twenty-one
years, in which case such negro or mulatto may be holden as a
servant or apprentice, respectively, according to the covenant,
as the case shall be, until he shall attain the age of
twenty-eight years, but no longer." See 6 Binn. 204; 1 Browne's
R. 369, n.
2. The act requires that a register of such children as would
have been slaves shall be kept by a public officer therein
designated. The want of registry entitles such child to freedom.
SERVANTS. In Louisiana they are divided into free servants and
slaves. See Slaves; Slavery.
2. Free servants are, in general, all free persons who let,
hire, or engage their services to another in the state, to be
employed therein at any work, commerce, or occupation whatever,
for the benefit of him who has contracted with them, for a
certain sum or retribution, or upon certain conditions.
3. There are three kinds of free servants in the state, to wit:
4. - 1. Those who only hire out their services by the day,
week, month, or year, in consideration of certain wages.
5. - 2. Those who engage to serve for a fixed time for a
certain consideration, and who are therefore considered not as
having hired out, but as having sold their services.
6. - 3. Apprentices that is, those who engage to serve any one,
in order to learn some art, trade, or profession. Civ. Code of
Lo. art. 155, 156, 157.
SERVANTS, menial. Domestics those who receive wages, and who
are lodged and fed in the house of another, and who are employed
in his services. Such servants are not particularly recognized by
law. They are called menial servants, or domestics, from living
infra moenia, within the walls of the house. 1 Bl. Com. 324;
Wood's Inst. 53; 1 Sw. Syst. 218. The right of the master to
their services in every respect is grounded on the contract
between them. 2. Labor-ers, or persons hired by the day's work,
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or any longer time, are not considered servants. 1 Sw. Syst. 218;
5 Binn. 167; 3 Serg. & Rawle, 351. Vide 12 Ves. 114; 2 Vern.
546; 16 Ves. 486; 1 Rop. on Leg. 121; 3 Deac. & Chit. 332; 1
Mont. & Bligh. 413; 2 Mart. N. S. 652; Poth. Proc. Civ. sect.
2, art. 5, §5; Poth. Ob. n. 710, 828, French ed.; 9 Toull. n.
314; Domestic; Operative.
SERVI. This name was given by the Romans to their slaves; they
were so called from servare, to preserve, from the ancient
practice of the generals of the army, who were accustomed to sell
their captives, and preserved them rather than kill them: servi
autem ex eo appellati sunt, quod imperatores captivos vendere, ac
per hoc servare, nec occidere solent. Inst. 1 3, 3.
SERVICE, contracts. The being employed to serve another.
2. In cases of seduction, the gist of the action is not injury
which the seducer has inflicted on the parent by destroying his
peace of mind, and the reputation of his child, but for the
consequent inability to perform those services for which she was
accountable to her master or her parent who assumes this
character for the purpose Vide Seduction, and 2 Mees. & W. 539;
7 Car. & P. 528.
SERVICE, feudal law. That duty which the tenant owes to his
lord, by reason of his fee or estate.
2. The services, in respect of their quality, were either free
or base, and in respect of their quantity and the time of
exacting them, were either certain or uncertain. 2 Bl. Com. 62.
3. In the civil law by service is sometimes understood
servitude. (q. v.)
SERVICE, practice. To execute a writ or process; as, to serve
a writ of capias signifies to arrest a defendant under the
process; Kirby, 48; 2 Aik. R. 338; 11 Mass. 181; to serve a
summons, is to deliver a copy of it at the house of the party, or
to deliver it to him personally, or to read it to him; notices
and other papers are served by delivering the same at the house
of the party, or to him in person.
2. When the service of a writ is prevented by the act of the
party on whom it is to be served, it will, in general, be
sufficient if the officer do everything in his power to serve it.
39 Eng. C. L. R. 431 1 M. & G. 238.
SERVIENT, civil law. A term applied to an estate or tenement by
which a servitude is due to another estate or tenement. See
Dominant; Servitude.
SERVITUDE, civil law. A term which indicates the subjection of
one person to another person, or of a person to a thing, or of a
thing to a person, or of a thing to a thing.
2. Hence servitudes are divided into real, personal, and mixed.
Lois des Bat. P. 1, c. 1.
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3. A real or predial servitude is a charge laid on an estate
for the use and utility of another estate belonging to another
proprietor. Louis. Code, art. 643. When used without any adjunct,
the word servitude means a real or predial servitude. Lois des
Bat. P. 1, c. 1.
4. The subjection of one person to another is a purely personal
servitude; if it exists in the right of property which a person
exercises over another, it is slavery. When the subjection of one
person to another is not slavery, it consists simply in the right
of requiring of another what he is bound to do, or not to do;
this right arises from all kinds of contracts or quasi con
tracts. Lois des Bat. P. 1, c. 1, art. 1.
5. The subjection of persons to things or of things to persons,
are mixed servitudes. Lois des Bat. P. 1, c. 1, art. 2.
6. Real servitudes are divided into rural and urban. Rural
servitudes are those which are due by an estate to another
estate, such as the right of passage over the serving estate, or
that which owes the servitude, or to draw water from it, or to
water cattle there, or to take coal, lime and wood from it, and
the like. Urban servitudes are those which are established over a
building fur the convenience of another, such as the right of
resting the joists in the wall of the serving building, of
opening windows which overlook the serving estate, and the like.
Dict. de Jurisp. tit. Servitudes. See, generally, Lois des Bat.
Part 1 Louis. Code, tit. 4; Code Civil, B. 2, tit. 4; This
Dict. tit. Ancient Lights; Easements; Ways; Lalaure, Des
Servitudes, passim.
SERVITUDES, NATURAL, civil law. Those servitudes which arise in
consequence of the nature of the soil.
2. By law the inferior heritages, are submitted in relation to
the natural flow of waters, and the like, to the superior. An
inferior field is, therefore, subject to the injury or prejudice
which the situation of the ground, in its natural state, way
cause it.
SERVITUDES, personal. Those by which the property of a subject,
in Scotland, is burdened in favor, not of a tenement, but of a
person. Ersk. Pr. L. Scot. B. 2, t. 9, s. 23. Life rent is the
only personal servitude there.
SERVITUS, civil law. A service or servitude; a burden imposed
by law, or the agreement of parties upon certain persons, for the
benefit of others; or upon one estate for the advantage of
another, or for the benefit of another person than the owner.
SERVITUS. Servitude; slavery; a state of bondage. "Servitus
autem, est constitutio," say the Institutes of Justinian, 1, 3,
2, "qua quis dominio alieno contra naturam subjicitur." Servitude
is a disposition of the law of nations, by which, against common
right, one man has been subjected to the dominion of another. See
Bract. 4 b; Co. Litt. 116.
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SERVITUS LUMINUM, civil law. The name of a servitude by which
an obligation is imposed on the owner of a house to allow windows
or lights to be put in his wall by the owner of the adjoining
house. Dig. 4, 14, 40.
SERVITUS STILLIClDII, civil law. The name of a servitude which
obliges the owner of an estate to receive, or his right to turn
aside, the droppings or stream from his neighbor's house. Dig. 8,
2, 20 and 21, 41; Voet, h. t. n. 13. Vide Stillicidium.
SERVITUS TIGNI IMMITTENDI, civil law. The name of a servitude
which consists in requiring him who owes it, to permit his
neighbor to place his joists on his wall. It differs from the
servitude Oneris ferendi. (q. v.) in this, that in the former the
owner of the servient building is bound to repair and rebuild the
wall; whereas, in the latter he is not. Dig. lib. 8, §2.
SESSION. The time during which a legislative body, a court or
other assembly sits for the transaction of business; as, a
session of congress, which commences on the day appointed by the
constitution, and ends when congress finally adjourns before the
commencement of the next session; the session of a court, which
commences at the day appointed by law, and ends when the court
finally rises a term.
SESSION COURT, or COURT OF SESSION. The highest civil court in
the kingdom of Scotland. The judges, called lords of the session,
are fifteen in number.
2. It has extensive original jurisdiction, and its powers of
review as a court of appeal have no limits. In 1808, it was
divided into two chambers, called the first and second division;
the lord president and seven judges constituting the former, and
the lord justice clerk, who is head of the court of justiciary,
with six judges, the latter. These divisions have independent but
coordinate jurisdiction.
3. The high court of justiciary, or supreme criminal
jurisdiction for Scotland consists of six judges, who are lords
of the session, the lord justice clerk presiding. In this court
the number of the jury is fifteen, and a majority decides. The
court of session is divided into the inner house and outer house,
with appeal from the latter to the former, and from the former to
the house of lords of the United Kingdom. Encycl. Amer.
SET, contracts. Foreign bills of exchange are generally drawn
in parts; as, "pay this my first bill of exchange, second and
third of the same tenor and date not paid;" the whole of these
parts, which make but one bill, are called a set. Chit. Bills,
175, 6, (edition of 1836); 2 Pardess. n. 342.
TO SET ASIDE. To annul; to make void; as to set aside an
award.
2. When proceedings are irregular they may be set aside on,
motion of the party whom they injuriously affect.
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SET-OFF, contracts, practice. Defalcation; (q. v.) a demand
which a defen-dant makes against the plaintiff in the suit for
the purpose of liquidating the whole or a part of his claim.
2. A set-off was unknown to the common law, according to which
mutual debts were distinct and inextinguishable except by actual
payment or release. 1 Rawle's R. 293; Babb. on Set-off, 1.
3. The statute 2 Geo. II., c. 22, which has been generally
adopted in the United States with some modifications however,
allowed, in cases of mutual debts, the defendant to set his debt
against the other, either by pleading it in bar, or giving it in
evidence, when proper notice had been given of such intention,
under the general issue. The statute being made for the benefit
of the defendant, is not compulsory; 8 Watts, R. 39; the
defendant may Waive his right, and bring a cross action against
the plaintiff. 2 Campb. 594; 5 Taunt. 148; 9 Watts, R. 179
4. It seems, however, that in some cases of intestate estates,
and of insolvent estates, perhaps owing to the peculiar wording
of the law, the statute has been held to operate on the rights of
the parties before action brought, or an act done by either of
them. 2 Rawle's R. 293; 3 Binn. Rep. 135; Bac. Ab. Bankrupt K.
5. Set-off takes place only in actions on contracts for the
payment of money, as assumpsit, debt and covenant. A set-off is
not allowed in actions arising ex delicto, as, upon the case,
trespass, replevin or detinue. Bull. N. P. 181.
6. The matters which may be set off, may be mutual liquidated
debts or damages, but unliquidated damages cannot be set off. 1
Black. R. 394; 2 John. 150; 8 Conn. 325; 1 M'Cord, 7; 3 Wend.
400; 1 Stew. & Port. 19; 2 Yeates, 208; 1 Sumn. 471; 2
Blackf. 31; 1 A. K. Marsh. 41; 6 Halst. 397; 5 Wash. C. C. 232
3 Bibb, 49; 2 Caines, 33. The statutes refer only to mutual
unconnected debts; for at common law, when the nature of the
employment, transaction or dealings necessarily constitute an
account consisting of receipts and payments, debts and credits,
the balance only is considered to be the debt, and therefore in
an action, it is not necessary in such cases either to plead or
give notice of set-off. 4 Burr. 2221.
7. In general, when the government is plaintiff, no set-off
will be allowed. 9 Pet. 319; 4 Dall. 303. See 9 Cranch, 313;
Paine, 156. But when an act of congress authorizes such set-off,
it may be made. 9 Cranch, 213.
8. Judgments in the same rights may be set off against each
other at the discretion of the court. 3 Bibb 233; 3 Watts 78; 3
Halst. 172; 4 Hamm. 90; 1 Stew. & Port. 24; 7 Mass. 140, 144;
8 Cowen 126. Vide Compensation; also Mon-tagu on Set-off;
Babington on Set-off; 3 Stark. Ev. h. t.; Amer. Dig. h. t.;
Whart. Dig. h. t.; 3 Chit. Bl. Com. 304, n.; 1 Chit. Pl. Index,
h. t.; 8 Vin. Ab. 556; Bac. Ab. h. t. 1 Sell. Pr. 321; 5 Com.
Dig. 595; 6 Id. 335; 7 Id. 336; 8 Id. 927; Chit. Pr. Index,
h. t.; Bouv. Inst. Index, h. t. Vide Factor.
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TO SETTLE. To adjust or ascertain to pay.
2. Two contracting parties are said to settle an account when
they ascertain what is justly due by one to the other; when one
pays the balance or debt due by him, he is said to settle such
debt or balance. 11 Alab. R. 419
SETTLEMENT, domicil. The right which a person has of being
considered as resident of a particular place.
2. It is obtained in various ways, to wit: 1. By birth. 2. By
the legal settlement of the father, in the case of minor
children. 3. By marriage. 4. By continued residence. 5. By the
payment of requisite taxes. 6. By the lawful exercise of a public
office. 7. By hiring and service for a year. 8. By serving an
apprenticeship; and perhaps some others which depend upon the
local statutes of the different states. Vide 1 Bl. Com. 363; 1
Dougl. 9; 2 Watts' Rep. 44, 342; 2 Penna. R. 432; 5 Serg. &
Rawle, 417; 2 Yeates' R. 51; 5 Binn. R. 81; 3 Binn. R.. 22; 6
Serg. & Rawle, 103, 565; 10 Serg. & Rawle, 179. Vide Domicil.
SETTLEMENT, contracts. The conveyance of an estate, for the
benefit of some person or persons.
2. It is usually made on the prospect of marriage for the
benefit of the married pair, or one of them, or for the benefit
of some other persons, as their children. Such settlements vest
the property in trustees upon specified terms, usually for the
benefit of the hushand and wife during their joint lives, and
then for the benefit of the survivor for life, and afterwards for
the benefit of children. Ante-nuptial agreements of this kind
will be enforced in equity by a specific performance of them,
provided they are fair and valid, and the intention of the
parties is consistent with the principles and policy of law.
Settlements after marriage, if made in pursuance of an agreement
in writing entered into prior to the marriage, are valid, both
against creditors and purchasers.
4. When made without consideration, after marriage, and the
property of the hushand is settled upon his wife and children,
the settlement will be valid against subsequent creditors, if, at
the time of the settlement being made, he was not indebted; but,
if he was then indebted, it will be void as to the creditors
existing at the time of the settlement; 3 John. Ch. R. 481; 8
Wheat. R. 229; unless in cases where the hushand received a fair
consideration in value of the thing settled, so as to repel the
presumption of fraud. 2 Ves. 16 10 Ves. 139. Vide 1 Madd. Ch.
459; 1 Chit. Pr. 57; 2 Kent, Com. 145; 2 Supp. to Ves. jr. 80,
375; Rob. Fr. Conv. 188. See Atherl. on Mar. passim.
5. The term settlement is also applied to an agreement by which
two or more persons, who have dealings together, so far arrange
their accounts, as to ascertain the balance due from one to the
other; and settlement sometimes signifies a payment in full.
TO SEVER, practice. When defendants who are sued jointly have
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separate defences, they may in general sever, that is, each one
rely on his own separate defence; each may plead severally and
insist on his own separate plea. See Severance.
SEVERAL. A state of separation or partition. A several
agreement or cove-nant, is one entered into by two or more
persons separately, each binding himself for the whole; a
several action is one in which two or more persons are separately
charged; a several inheritance, is one conveyed so as to
descend, or come to two persons separately by moieties. Several
is usually opposed to joint. Vide 3 Rawle, 306. See Contract;
Joint Contract, Parties to action.
SEVERALTY, title to an estate. An estate in severalty is one
which is held by the tenant in his own right only, without any
other being joined or connected with him in point of interest,
during the continuance of his estate. 2 Bl. Com. 179. Cruise,
Dig. 479, 480.
SEVERANCE, pleading. When an action is brought in the name of
several plain-tiffs, in which the plaintiffs must of necessity
join, aud one or more of the persons so named do not appear, or
make default after appearance, the other may have judgment of
severance, or, as it is technically called, judgment ad sequendum
solum.
2. But in personal actions, with the exception of those by
executors, and of detinue for charters, there can be no summons
and severance. Co. Lit. 139.
3. After severance, the party severed can never be mentioned in
the suit, nor derive any advantage from it.
4. When there are several defendants, each of them may use such
plea as, he may think proper for his own defence; and they may
join in the same plea, or sever at their discretion; Co. Litt.
303, a except perhaps, in the case of di-latory pleas. Hob. 245,
250. But when the defendants have once united in the plea, they
cannot afterwards sever at the rejoinder, or other later stage of
the pleading. Vide, generally, Bro. Summ. and Sev.; 2 Rolle,
488; Archb. Civ. Pl. 59.
SEVERANCE, estates. The act by which any one of the unities of
a joint tenancy is effected, is so called; because the estate is
no longer a joint tenancy, but is severed.
2. A severance may be effected in various ways, namely: 1. By
partition, which is either voluntary or compulsory. 2. By
alienation of one of the joint tenants, which turns the estate
into a tenancy in common. 3. By the purchase or descent of all
the shares of the joint tenants, so that the whole estate becomes
vested in one only. Com. Dig. Estates by Grant, K 5; 1 Binn. R.
175.
3. In another and a less technical sense, severance is the
separation of a part of a thing from another; for example, the
separation of malchinery from a mill, is a severance, and, in
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that case, the machinery which while annexed to the mill was real
estate, becomes by the severance; personalty, unless such
severance be merely temporary. 8 Wend. R. 587.
SEWER. Properly a trench artificially made for the purpose of
carrying water into the sea, river, or some other place of
reception. Public sewers are, in general, made at the public
expense. Crabb, R. P. §113.
SEX. The physical difference between male and female in
animals.
2. In the human species the male is called man, (q. v.) and the
female, woman. (q. v.) Some human beings whose sexual organs are
somewhat imperfect, have acquired the name of hermaphrodite. (q.
v.)
3. In the civil state the sex creates a difference among
individuals. Women cannot generally be elected or appointed to
offices or service in public capa-cities. In this our law agrees
with that of other nations. The civil law excluded women from all
offices civil or public: Faemintae ab omnibus officiis civilibus
vel publicis remotae sunt. Dig. 50, 17, 2. The principal reason
of this exclusion is to encourage that modesty which is natural
to the female sex, and which renders them unqualified to mix and
contend with men; the pre-tended weakness of the sex is not
probably the true reason. Poth. Des Personnes, tit. 5; Wood's
Inst. 12; Civ. Code of Louis. art. 24; 1 Beck's Med. Juris. 94.
Vide Gender; Male; Man; Women; Worthiest of blood.
SHAM PLEA. One entered for the mere purpose of delay; it must
be of a matter which the pleader knows to be false; as judgment
recovered, that is, that judgment has already been recovered by
the plaintiff for the same cause of action.
2. These sham pleas are generally discouraged, and in some
cases are treated as a nullity. Barn. & Ald. 197, 199; 5 Id.
750; 1 Barn. & Cr. 286; Archb. Civ. Pl. 249; 1 Chit. Pl. 401.
SHARE. A portion of anything. Sometimes shares are equal, at
other times they are unequal.
2. In companies and corporations the whole of the capital stock
is usually divided into equal proportions called shares. Shares
in public companies have sometimes been held to be real estate,
but most usually they are considered as personal property.
Wordsw. Jo. Sto. Co. ch. 1 P, p. 288. 3. The proportion which
descends to one of several children from his ancestor, is called
a share. The term share and share alike, signifies in equal
proportions. See Pwrpart.
SHEEP. A wether more than a year old. 4 Car. & Payne, 216; 19
Engl. Com. Law Rep. 331, S. C.
SHELLEY'S CASE. This case, reported in 1 Rep. 93, contains a
rule usually known as the rule in Shelley's case, which has
caused more commentaries perhaps than any other case. It has been
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expressed with great precision, though not with much elegance, to
be "in any instrument, if a freehold be limited to the ancestor
for life, and the inheritance to his heirs, either mediately or
immediately, the first taker takes the whole estate; if it be
limited to the heirs of his body, he takes a fee tail; if to his
heirs a fee simple." Co. Litt. 376, b and Mr. Butler's note, 1;
3 Binn. R. 139 1 Day, Rep. 299; 1 Prest. on Estates, ch. 3; 4
Kent, Com. 206; Cruise, Dig. tit. 32, c. 22; 2 Yeates, R. 410;
1 Hargr. Law Tracts, article "Observations concerning the rule in
Shelley's case, chiefly with a view to the application of that
rule in Last Wills;" 5 Ohio R. 465.
SHERIFF. The name of the chief officer of the county. In Latin
he is called vice comes, because in England he represented the
comes or earl. His name is said to be derived from the Saxon
seyre, shire or county, and reve, keeper, bailiff, or guardian.
2. The general duties of the sheriff are, 1st. To keep the
peace within the county; he may apprehend, and commit to prison
all persons who break the peace or attempt to break it, and bind
any one in a recognizance to keep the peace. He is required ex
officio, to pursue and take all traitors, murderers, felons and
rioters. He has the keeping of the county gaol and he is bound to
defend it against all attacks. He may command the posse
comitatus. (q. v.)
3. - 2d. In his ministerial capacity, the sheriff is bound to
execute within his county or bailiwick, all process issuing from
the courts of the commonwealth.
4. - 3d. The sheriff also possesses a judicial capacity, but
this is very much circumscribed to what it was at common law in
England. It is now generally confined to ascertain damages on
writs of inquiry and the like.
5. Generally speaking the sheriff has no authority out of his
county. 2 Rolle's Rep. 163; Plowd, 37 a. He may, however, do
mere ministerial acts out of his county, as making a return.
Dalt. Sh. 22. Vide, generally, the various Digests and
Abridgments, h. t.; Dalt. Sher.; Wats. Off. and Duty of
Sheriff; Wood's Inst. 75; 18 Engl. Com. Law Rep. 177; 2 Phil.
Ev. 213; Chit. Pr. Index, h. t.; Chit. Pr. Law, Index, h. t.
SHERIFFALTY. The office of sheriff, the time during which a
sheriff is to remain in office.
SHIFTING USE, estates. One which takes effect in derogation of
some other estate, and is either limited by the deed creating it,
or authorized to be created by some person named in it. This is
sometimes called a secondary use.
2. The following is an example: If an estate be limited to A
and his heirs, with a proviso that if B pay to A one hundred
dollars by a time named, the use to A shall ease, and the estate
go to B in fee; the estate is vested in A subject to the
shifting or secondary use in fee in B. Again, if the proviso be
that C may revoke the use to A, and limit it to B, then A is
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seised in fee, with a power in C of revocation and limitation of
a new use. These shifting uses must be confined within proper
limits, so as not to create a perpetuity. 4 Kent, Com. 291;
Cornish on Uses, 91; Bac. Ab. Uses and Trusts, K; Co. Litt.
327, a, note Worth on Wills, 419; 2 Bouv. Inst. n. 1890. Vide
Use.
SHILLING, Eng. law. The name of an English coin, of the value
of one twen-tieth part of a pound. In the United States, while
they were colonies, there were coins of this denomination, but
they greatly varied in their value.
SHIP. This word, in its most enlarged sense, signifies a vessel
employed in navigation; for example, the terms the ship's
papers, the ship's hushand, shipwreck, and the like, are employed
whether the vessel referred to be a brig, a sloop, or a
three-masted vessel.
2. In a more confined sense, it means such a vessel with three
masts 4 Wash. C. C. Rep. 530; Wesk. Inst. h. t. p. 514 the boats
and rigging; 2 Marsh. Ins. 727 together with the anchors, masts,
cables, pullies, and such like objects, are considered as part of
the ship. Pard. n. 599; Dig. 22, 2, 44.
3. The capacity of a ship is ascertained by its tonnage, or the
space which may be occupied by its cargo. Vide Story's Laws U. S.
Index, h. t.; Gordon's Dig. h. t.; Abbott on Ship. Index, h.
t.; Park. Ins. Index, h. t.; Phil. Ev. Index, h. t. Bac. Ab.
Merchant, N; 3 Kent, Com. 93 Molloy, Jure Mar. Index, h. t.; l
Chit. Pr. 91; Whart. Dig. h. t.; 1 Bell's Com. 496, 624; and
see General Ships; Names of Ships.
SHIP BROKER. One who transacts business between the owners of
vessels and merchants who send cargoes.
SHIP DAMAGES. In the charter parties with the English East
India Company, these words occur; their meaning is damage from
negligence, insufficiency or bad stowage in the ship. Dougl. 272;
Abbott, on Ship. 204.
SHIP'S HUSBAND, mar. law. An agent appointed by the owner of a
ship, and invested with authority to make the requisite repairs,
and attend to the management, equipment, and other concerns of
the ship he is usually authorized to act as the general agent of
the owners, in relation to the ship in her home port.
2. By virtue of his agency, he is authorized to direct all
proper repairs, equipments and outfits of the ship; to hire the
officers and crew; to enter into contraets for the freight or
charter of the ship, if that is her usual employment; and to do
all other acts necessary and proper to prepare and despatch her
for and on ber intended voyage. 1 Liverm. on Ag. 72, 73; Story
on Ag. §35.
3. By some authors, it is said the ship's hushand must be a
part owner. Hall on Mar. Loans, 142, n.; Abbott on Ship. part 1,
c. 3, s. 2. 4. Mr. Bell, Comm. 410, §428, 5t ed. p. 503, points
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out the duties of the ship's hushand, as follows, namely: 1. To
see to the proper outfit of the vessel, in the repairs adequate
to the voyage, and in the tackle and furniture necessary for a
sea-worthy ship.
5. - 2. To have a proper master, mate, and crew, for the ship,
so that, in this respect, it shall be sea-worthy.
6. - 3. To see the due furnishing of provisions and stores,
according to the necessities of the voyage.
7. - 4. To see to the regularity of the clearance's from the
custom-house, and the regularity of the registry.
8. - 5. To settle the contracts, and provide for the payment of
the furnishings which are requisite to the performance of those
duties.
9. - 6. To enter into proper charter parties, or engage the
vessel for general freight, under the usual conditions; and to
settle for freight, and adjust averages with the merchant; and,
10. - 7. To preserve the proper certificates, surveys and
documents, in case of future disputes with insurers and
freighters and to keep regular books of the ship.
11. These are his general powers, but of course, they may be
limited or enlarged by the owners; and it may be observed, that
without special authority, he cannot, in general, exercise the
following enumerated acts:
1. He cannot borrow money generally for the use of the ship;
though, as above observed, he may settle the accounts for
furnishings, or grant bills for them, which form debts against
the concern, whether or not he has funds in his hands with which
he might have paid them. 1 Bell, Com. 411, 499.
12. - 2. Although he may in general, levy the freight which is,
by the bill of lading, payable on the delivery of the goods, it
would seem that he would not have power to take bills for the
freight, and give up the possession of the lien over the cargo,
unless it has been so settled by the charter party. Id.
13. - 3. He cannot insure, or bind the owners for premiums.
Id.; 5 Burr. 2627; Paley on Ag. by Lloyd, 23, note 8; Abb. on
Ship. part 1, c. 3, s. 2; Marsh. Ins. b. 1, c. 8, s. 2; Liv. on
Ag. 72, 73.
14. As the power of the master to enter into contracts of
affreightments, is superseded in the port of the owners, so it is
by the presence of the ship's hushand, or the knowledge of the
contracting parties that a ship's hushand has been appointed.
Bell's Com. ut supra.
SHIP'S PAPERS. Those documents which are required on board of
neutral ships, as evidence of their neutrality, These are the
passports, sea-letter, muster-roll, charter party, bill of
lading, invoices, log book, bill of health, register, and papers
containing proofs of property. 1 Chit. Com. Law 487.
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2. The want of these papers, or either of them, renders the
character of a vessel suspicious. Vide Clearance, and 2 Boulay
Paty, Dr. Com. 14.
SHIPPER. One who ships or puts goods on board of a vessel, to
be carried to another place during her voyage. In general, the
shipper is bound to pay for the hire of the vessel, or the
freight of the goods. 1 Bouv. Inst. n. 1030.
SHIPPING ARTICLES, contr. mar. law. The act of congress of July
20, 1790, s. 1, directs that a master of any vessel bound from a
port in the United States to any foreign port, or of any vessel
of fifty tons or upwards, bound from a port in one state to a
port in any other than at adjoining state, shall, before he
proceed on such voyage, make an agreement in writing or in print,
with every seaman or mariner on board such vessel, (except such
as shall be apprenticed or servant to himself or owners)
declaring the voyage or voyages, term or terms of time, for which
such seaman or mariner shall be shipped.
2. And by sect. 2, it is required that at the foot of every
such coutract, there shall be a memorandum in writing, of the day
and the hour on which such seaman or mariner who shall so ship
and subscribe, shall render himself on board to begin the voyage
agreed upon.
3. This instrument is called the shipping articles. For want of
which, the seaman is entitled to the highest wages which have
been given at the port or place where such seaman or mariner
shall have been shipped for a similar voyage within three months
next before the time of such shipping, on his performing the
service, or during the time he shall continue to do duty on board
such vessel, without being bound by the regulations, nor subject
to the penalties and forfeitures contained in the said act of
congress; and the master is further liable to a penalty of
twenty dollars.
4. The shipping articles ought not to contain any clause which
derogates from the general rights and privileges of seamen, and
if they do, such clause will be declared void. 2 Sumner, 443; 2
Mason, 541.
5. A seaman who signs shipping articles, is bound to perform
the voyage, and he has no right to elect to pay damages for
non-performance of the contract. 2 Virg. Cas. 276.
Vide, generally, Gilp. 147, 219, 452; 1 Pet. Ad. Dec. 212;
Bee, 48; 1 Mason, 443; 5 Mason, 272; 14 John. 260.
SHIPWRECK. The loss of a vessel at sea, either. by being
swallowed up by the waves, by running against another vessel or
thing at sea, or on the coast. Vide Naufrage; Wreck.
SHIRE, Eng. law. A district or division of country. Co. Lit. 50
a.
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SHOP BOOK. This name is given to a book in which a merchant,
mechanic, or other person, makes original entries of goods sold
or work done.
2. In general, such a book is prima facie evidence of the sale
of the goods and of the work done, but not of their value. Vide
Original entry.
SHORE. Land on the side of the sea, a lake, or a river, is
called the shore. Strictly speaking, however, when the water does
not ebb and flow, in a river, there is no shore. See 4 Hill, N.
Y. Rep. 375; 6 Cowen, 547; and Seashore.
SHORT ENTRY. A term used among bankers, which takes, place when
a note has been sent to a bank for collection, and an entry of it
is made in the cus-tomer's bank book, stating the amount in an
inner column, and carrying it out into the accounts between the
parties when it has been paid.
2. A bill of this kind remains the property of the depositor. 1
Bell's Com. 27l; 9 East, 12; 1 Rose, 153; 2 Rose, 163; 2 B. &
Cr. 422; Pull. Mer. Acc. 56.
SI FACERIT TE SECUREM. If he make you secure. These words occur
in the form of writs, which originally requited, or still
require, that the plaintiff should give security to the sheriff
that he will prosecute his claim, before the sheriff can be
required to execute such writ.
SICKNESS. By sickness is understood any affection of the body
which deprives it temporarily of the power to fulfil iis usual
functions.
2. Sickness is either such as affects the body generally, or
only some parts of it. Of the former class, a fever is an
example; of the latter, blindness. When a process has been
issued against an individual for his arrest, the she-riff or
other officer is authorized, after he has arrested him, if he be
so dangerously sick, that to remove him would endanger his life
or health, to let him remain where he found him, and to return
the facts at large, or simply languidus. (q. v.)
SIDE BAR RULES, Eng practice. Rules which were formerly moved
for by attorneys on the side bar of the court; but now may be
had of the clerk of the rules, upon a praecipe. These rules are,
that the sheriff return his writ; that he bring in the body;
for special imparlance; to be present at the taxing of costs,
and the like.
SIENS. An obsolete word, formerly used for scion, which
figuratively signified a person who descended from another. "The
sien," says Lord Coke, "takes all his nourishment from the
stocke, and yet it produceth his own fruit." Co. Lit. 123 a. Vide
Branch.
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SIGILLUM. A seal. (q. v.) Vide Scroll.
SIGHT, contracts. Bills of exchange are frequently made payable
at sight, that is, on presentment, which might be taken naturally
to mean that the bill should then be paid without further delay;
but although the point be not clearly settled, it seems the
drawee is entitled to the days of grace. Beaw. Lex Mer. pl. 256;
Kyd on Bills, 10; Chit. on Bills, 343-4; Bayley on Bills, 42,
109, 110; Selw. N. P. 339.
2. - The holder of a bill payable at sight, is required to use
due diligence to put it into circulation, or have it presented
for acceptance within a reasonable time. 20 John. 146; 7 Cowen,
705; 12 Pick. 399 13 Mass. 137; 4 Mason, 336; 5 Mason's 118;
1 McCord, 322; 1 Hawks, 195.
3. When the bill is payable any number of days after sight, the
time begins to run from the period of presentment and acceptance,
and not from the time of mere presentment. 1 Mason, 176; 20
John. 176.
SIGN, contracts, evidence. A token of anything; a note or
token given without words.
2. Contracts are express or implied. The express are manifested
viva voce, or by writing; the implied are shown by silence, by
acts, or by signs.
3. Among all nations find and at all times, certain signs have
been considered as proof of assent or dissent; for example, the
nodding of the head, and the shaking of hands; 2 Bl. Com. 448;
6 Toull. D. 33; Heinnec., Antiq. lib. 3, t. 23, n. 19; silence
and inaction, facts and signs are sometimes very strong evidence
of cool reflection, when following a question. I ask you to lend
me one hundred dollars, without saying a word you put your hand
in your pocket, and deliver me the money. I go into a hotel and I
ask the landlord if he can accommodate me and take care of my
trunk; without speaking he takes it out of my hands and sends it
into his chamber. By this act he doubtless becomes responsible to
me as a bailee. At the expiration of a lease, the tenant remains
in possession, without any objection from the landlord; this may
be fairly interpreted as a sign of a consent that the lease shall
be renewed. 13 Serg. & Rawle, 60.
4, The learned author of the Decline and Fall of the Roman
Empire, in his 44th chapter, remarks, "Among savage nations, the
want of letters is imperfectly supplied by the use of visible
signs, which awaken attention, and perpetuate the remembrance of
any public or private transaction. The jurisprudence of the first
Romans exhibited the scenes of a pantomime; the words were
adapted to the gestures, and the slightest error or neglect in
the forms of proceeding was sufficient to annul the substance of
the fairest claim. The communion of the marriage-life was denoted
by the necessary elements of fire and water: and the divorced
wife resigned, the bunch of keys, by the delivery of which she
had been invested with the government of the family. The
manumission of a son, or a slave, was performed by turning him
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round with a gentle blow on the cheek: a work was prohibited by
the casting of a stone; prescription was interrupted by the
breaking of a branch; the clenched fist was the symbol of a
pledge or deposits; the right hand was the gift of faith and
confidence. The indenture of covenants was a broken straw;
weights and, scales were introduced into every payment, and the
heir who accepted a testament, was sometimes obliged to snap his
fingers, to cast away his garments, and to leap and dance with
real or affected transport. If a citizen pursued any stolen goods
into a neighbor's house, he concealed his nakedness with a linen
towel, and hid his. face with a mask or basin, lest he should
encounter the eyes of a virgin or a matron. In a civil action,
the plaintiff touched the ear of his witness seized his reluctant
adversary by the neck and implored, in solemn lamentation, the
aid of his fellow-citizens. The two competitors grasped each
other's hand, as if they stood prepared for combat before the
tribunal of the praetor: he commanded them to produce the object
of the dispute; they went, they returned with measured steps,
and a clod of earth was cast at his feet to represent the field
for which they contended. This occult science of the words and
actions of law, was the inheritance of the pontiffs and
patricians. Like the Chaldean astrologers, they announced to
their clients the days of business and repose; these important
trifles wore interwoven with the religion of Numa; and, after
the publication of the Twelve Tables, the Roman people were still
enslaved by the ignorance of judicial proceedings. The treachery
of some plebeian officers at length revealed the profitable
mystery: in a more enlightened age, the legal actions were
derided and observed; and the same antiquity which sanctified
the practice, obliterated the use and meaning, of this primitive
language."
SIGN, measures. In angular measures, a sign is equal to thirty
degrees. Vide Measure.
SIGN, mer. law. A board, tin or other substance, on which is
painted the name and business of a merchant or tradesman.
2. Every man has a right to adopt such a sign as he may please
to select, but he has no right to use another's name, without his
consent. See Dall. Dict. mot Propriete Industrielle, and the
article Trade marks.
To SIGN. To write one's name to an instrument of writing in
order to give the effect intended; the name thus written is
called a signature.
2. The signature is usually made at the bottom of the
instrument but in wills it has been held that when a testator
commenced his will With these words;, "I, A B, make this my
will," it was a sufficient signing. 3 Lev. 1; and vide Rob. on
Wills, 122 1 Will. on Wills, 49, 50; Chit. Cont. 212 Newl.
Contr. 173; Sugd. Vend. 71; 2 Stark. Ev. 605, 613; Rob. on Fr.
121; but this decision is said to be absurd. 1 Bro. Civ. Law,
278, n. 16. Vide Merl. Repert. mot Signature, for a history of
the origin, of signatures; and also 4 Cruise, Dig. h. t. 32, c.
2, s. 73, et seq.; see, generally, 8 Toull. n. 94-96; 1 Dall.
64; 5 Whart. R. 386; 2 B. & P 238; 2 M. & S. 286.
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3. To sign a judgment, is to enter a judgment for want of
something which was required to be done; as, for example, in the
English practice, if he who is bound to give oyer does not give
it within the time required, in such cases, the adverse party may
sign judgment against him. 2 T. R. 40; Com. Dig. Pleader, P 1;
Barnes, 245.
SIGNA, civil law. Those species of indicia (q. v.) which come
more immediately under the cognizance of the senses, such as
stains of blood on the person of one accused of murder,
indications of terror at being charged with the offence, and the
like.
2. Signa, although not to be rejected as instruments of
evidence, cannot always be relied upon as conclusive evidence,
for they are frequently explained away; in the instance
mentioned the blood may have been that of a beast, and
expressions of terror have been frequently manifested by innocent
persons who did not possess much firmness. See Best on Pres. 13,
n. f.; Denisart, h. v.
SIGNATURE, eccl. law. The name of a sort of rescript, without
seal, containing the supplication, the signature of the pope or
his delegate, and the grant of a pardon Dict. Dr. Can. h. v.
SIGNATURE, pract. contr. By signature is understood the act of
putting down a man's name, at the end of an instrument, to attest
its validity. The name thus written is also called a signature.
2. It is not necessary that a party should write his name
himself, to constitute a signature; his mark is now beld
sufficient though he was able to write. 8 Ad. & El. 94; 3 N. &
Per. 228; 3 Curt. 752; 5 John. 144, A signature made by a
party, another person guiding his band with his consent, is
sufficient. 4 Wash. C. C. 262, 269. Vide to Sign.
SIGNIFICATION, French law. The notice given of a decree,
sentence or other judicial act.
SIGNIFICAVIT, eccl. law. When this word is used alone, it means
the bishop's certificate to the court of chancery, in order to
obtain the writ of excommunication; but where the words writ of
significavit are used, the meaning is the same as writ de
excommunicato capiendo. 2 Burn's Eccl. L. 248; Shelf. on Mar. &
Div. 502.
SILENCE. The state of a person who does not speak, or of one
who refrains from speaking.
2. Pure and simple silence cannot be considered as a consent to
a contract, except in cases when the silent person is bound in
good faith to explain himself, in which case, silence gives
consent. 6 Toull. liv. 3, t. 3, n. 32, note; 14 Serg. & Rawle,
393; 2 Supp. to Ves. jr. 442; 1 Dane's Ab. c. 1, art. 4, §3; 8
T. R. 483; 6 Penn. St. R. 336; 1 Greenl. Ev. 201; 2 Bouv.
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Inst. n. 1313. But no assent will be inferred from a man's
silence, unless, 1st. He knows his rights and knows what he is
doing and, 2d. His silence is voluntary.
3. When any person is accused of a crime, or charged with any
fact, and he does not deny it, in general, the presumption is
very strong that the charge is correct. 7 C. & P. 832 5 C. & P.
332; Joy on Conf. s. 10, p. 77.
4. The rule does not extend to the silence of a prisoner, when
on his exanination before a magistrate he is charged by another
prisoner with having joined him in the commission of an offence:
3 Stark. C. 33.
5. When an oath is administered to a witness, instead of
expressly promising to keep it, he gives his assent by his
silence, and kissing the book.
6. The person to be affected by the silence must be one not
disqualified to act as non compos, an infant, or the like, for
even the express promise of such a person would not bind him to
the performance of any contract.
7. The rule of the civil law is that silence is not an
acknowledgment or denial in every case, qui tacet, non utique
fatetur: sed tamen verum est, eum non negaro. Dig. 50, 17, 142.
SILVA CAEDUA. By these words in England is understood every
sort of wood, except gross wood of the age of twenty years. Bac.
Ab. Tythes, C.
SIMILITER, pleading. When the defendant's plea contains a
direct contradiction of the declaration, and concludes with
referring the matter to be tried by a jury of the country, the
plaintiff must do so too; that is, he must also submit the
matter to be tried by a jury, without offering any new answer to
it, and must stand or fall by his declaration. Co. Litt. 126 a.
In such case, he merely replies that as the defendant has put
himself upon the country, that is, has submitted his cause to be
tried by a jury of the country, he, the plaintiff, does so
likewise, or the like. Hence this sort of replication is called a
similiter, that having been the effective word when the
proceedings were in Latin. 1 Chit. Pl. 549; Arch. Civ. Pl. 250.
See Steph. Pl. 255; 2 Saund. 319, b; Cowp. 407; 1 Str. Rep.
551; 11 S. & R. 32.
SIMONY, eccl. law. The selling and buying of holy orders, or an
ecclesiastical benefice. Bac. Ab. h. t.; 1 Harr. Dig. 556. By
simony is also understood an unlawful agreement to receive a
temporal reward for something holy or spiritual. Code, 1, 3, 31
Ayl. Parerg. 496.
SIMPLE. Not compounded, alone; as, simple interest, which is
interest on the principal sum lent only and not interest on the
interest; simple contract, &c.
SIMPLE CONTRACT. One, the evidence of which is merely oral, or
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in writing, not under seal, nor of record. 1 Chit. Contr. 1 1
Chit. Pl. 88; and vide 11 Mass. R. 30 ll East, R. 312; 4 Barn.
& Ald. 588; Stark. Ev. 995; 2 Bl. Com. 472.
2. As contracts of this nature are frequently entered into
without thought or proper deliberation, the law requires that
there be some good cause, consideration or motive, before they
can be enforced in the courts. The party making the promise must
have obtained some advantage, or the party to whom it is made
must have sustained some injury or inconvenience in consequence
of such promise; this rule has been established for the purpose
of protecting weak and thoughtless persons from the consequences
of rash, improvident, and inconsiderate engageinents. See Nudum
pactum. But it must be recollected this rule does not apply to
promissory notes, bills of exchange or commercial papers. 3 M. &
S. 352.
SlMPLE LARCENY. The felonious taking and carrying away the
personal goods of another, unattended by acts of violence; it is
distinguished from compound larceny, which is the stealing from
the person or with violence.
SIMPLE OBLIGATION. An unconditional obligation, one which is to
be performed without depending upon any event provided by the
parties to it.
SIMPLE TRUST. A simple trust corresponds with the ancient use,
and is where property is simply vested in one person for the use
of another, and the nature of the trust, not being qualified by
the settler, is left to the construction of law. It differs from
a special trust. (q. v.) 2 Bouv. Inst. n. 1896.
SIMPLEX. Simple or single; as, charta simplex, is a deed-poll,
of single deed. Jacob's L. Dict. h. t.
SIMPLICITER. Simply, without ceremony; in a summary manner.
SIMUL CUM, pleading. Together with. These words are used in
indictments and declarations of trespass against several persons,
when some of them are known and others are unknown.
2. In cases of riots it is usual to charge that A B, together
with others unknown, did the act complained of. 2 Chit. Cr. Law,
488; 2 Salk. R. 593.
3. When a party sued with another pleads separately, the plea
is generally entitled in the name of the person pleading, adding
"sued with___," naming the other party. When this occurred, it
was, in the old phraseology, called pleading with a simul cum.
SIMULATION, French law. This word is derived from the Latin
simul, together. It indicates, agreeably to its etymology, the
concert or agreement of two or more persons to give to one thing
the appearance of another, for the purpose of fraud. Merl.
Repert. h. t.
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2. With us such act might be punished by indictment for a
conspiracy; by avoiding the pretended contract; or by action to
recover back the money or property which may have been thus
fraudulently obtained.
SINE DIE. Without day. A judgment for a defendant in many cases
is quod eat sine die, that he may go without day. While the cause
is pending and undeter-mined, it may be continued from term to
term by dies datus. (q. v.) See Huxley's Judgments & Rastal's
Entries, passim; Co. Litt. 362b & 363a. When the court or other
body rise at the end of a session or term they adjourn sine die.
SINECURE. In the ecclesiastical law, this term is used to
signify that an ecclesiastical officer is without a charge or
cure.
2. In common parlance it means the receipt of a salary for an
office when there are no duties to be performed.
SINGLE. By itself, unconnected.
2. A single bill is one without any condition, and does not
depend upon any future event to give it validity. Single is also
applied to an unmarried person; as, A B, single woman. Vide
Simplex.
SINGLE ENTRY. A term used among merchants signifying that the
entry is made to charge or to credit an individual or thing,
without, at the same time, pre-senting any other part of the
operation; it is used in contradistinction to double entry. (q.
v.) For example, a single entry is made, A B debtor, or A B
creditor, without designating what are the connexions between the
entry and the objects which composed the fortune of the merchant.
SINGULAR, construction. In grammar the singular is used to
express only one,
not plural. Johnson.
2. In law, the singular frequently includes the plural. A
bequest to "my nearest relation," for example, will be considered
as a bequest to all the relations in the same degree, who are
nearest to the testator. 1 Ves. sen. 337; 1 Bro. C. C. 293. A
bequest made to "my heir," by a person who had three heirs, will
be construed in the plural. 4 Russ. C. C. 384.
3. The same rule obtains in the civil law: In usu juris
frequenter uti nos singulari appellationie, am plura significari
vellemus. Dig. 50, l6, 158.
SINKING FUND. A fund arising from particular taxes, imposts, or
duties, which is appropriated towards the payment of the interest
due on a public loan and for the gradual payment of the
principal. See Funding System.
SIRE. A title of honor given to kings or emperors in speaking
or writing to them.
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SISTER. A woman who has the same father and mother with
another, or has one of them only. In the first case she is called
sister, simply; in the second, half sister. Vide Brother;
Children; Descent; Father; Mother.
SITUS. Situation;, location. 5 Pet. R. 524.
2. Real estate has always a fixed situs, while personal estate
has no such fixed situs; the law rei site regulates real but not
the personal estate. Story, Confl. of Laws, §379.
SKELETON BILL, com. law. A blank paper, properly stamped, in
those countries where stamps are required, with the name of a
person signed at the bottom.
2. In such case the person signing the paper will be held as
the drawer or acceptor, as it may be, of any bill which shall
afterwards be written above his name to the sum of which the
stamp is applicable. 1 Bell's Com. 390, 5th ed.
SKILL, contracts. The art of doing a thing as it ought to be
done.
2. Every person who purports to have skill in la business, and
undertakes for hire to perform it, is bound to do it with
ordinary skill, and is res-ponsible civilly in damages for the
want of it; 11 M. & W. 483; and sometimes he is responsible
criminally. Vide Mala Praxis; 2 Russ. on Cr. 288,
3. The degree of skill and diligence required, rises in
proportion to the value of the article, and the delicacy of the
operation: more skill is required, for example, to repair a very
delicate mathematical instrument, than upon a common instrument.
Jones' Bailm. 91; 2 Kent, Com. 458, 463; 1 Bell's Com. 459; 2
Ld. Raym. 909, 918; Domat, liv. 1, t. 4, §8, n. 1; Poth.
Louage, n. 425; Pardess. n. 528; Ayl. Pand. B. 4, t. 7, p. 466;
Ersk. Inst. B. 3, t. 3, §16; 1 Rolle, Ab. 10; Story's Bailm.
§431, et seq.; 2 Greenl. Ev. §144.
SLANDER, torts. The defaming a man in his reputation by
speaking or writing words which affect his life, office, or
trade, or which tend to his loss of preferment in marriage or
service, or in his inheritance, or which occasion any other
particular damage. Law of Nisi Prius, 3. In England, if slander
be spoken of a peer, or other great man, it is called Scandalum
Magnatum. Falsity and malice are ingredients of slander. Bac.
Abr. Slander. Written or printed slanders are libels; see that
word.
2. Here it is proposed to treat of verbal slander only, which
may be considered with reference to, 1st. The nature of the
accusation. 2d. The falsity of the charge. 3d. The mode of
publication. 4th. The occasion; and 5th. The malice or motive of
the slander.
3. - §1. Actionable words are of two descriptions; first,
those actionable in themselves, without proof of special damages
and, secondly, those actionable only in respect of some actual
consequential damages.
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4. - 1. Words of the first description must impute: 1st. The
guilt of some offence for which the party, if guilty, might be
indicted and punished by the criminal courts; as to call a
person a "traitor," "thief," "highwayman;" or to say that he is
guilty of "perjury," "forgery," "murder," and the like. And
although the imputation of guilt be general, without stating the
particulars of the pretended crime, it is actionable. Cro. Jac.
114, 142; 6 T. R. 674; 3 Wils. 186; 2 Vent. 266; 2 New Rep.
335. See 3 Serg. & Rawle, 255 7 Serg. & Rawle, 451; 1 Binn. 452;
5 Binn. 218; 3 Serg. & Rawle, 261; 2 Binn. 34; 4 Yeates, 423;
10 Serg. & Rawle, 44; Stark. on Slander, 13 to 42; 8 Mass. 248;
13 Johns. 124; Id. 275.
5. - 2d. That the party has a disease or distemper which
renders him unfit for society. Bac. Abr. Slander, B 2. An action
can therefore be sustained for calling a man a leper. Cro. Jac.
144 Stark. on Slander, 97. But charging another with having had a
contagious disease is not actionable, as he will not, on that
account, be excluded from society. 2 T. R. 473, 4; 2 Str. 1189;
Bac. Abr. tit. Slander, B 2. A charge which renders a man
ridiculous, and impairs the enjoyment of general society, and
injures those imperfect rights of friendly intercourse and mutual
benevolence which man has with respect to man, is also
actionable. Holt on Libels, 221.
6. - 3d. Unfitness in an officer, who holds an office to which
profit or emolument is attached, either in respect of morals or
inability to discharge the duties of the office in such a case an
action lies. 1 Salk. 695, 698; Rolle, Ab. 65; 2 Esp. R. 500; 5
Co. 125; 4 Co. 16 a; 1 Str. 617; 2 Ld. Raym. 1369; Bull. N.
P. 4; Holt on Libels, 207; Stark. on Slander, 100.
7. - 4th. The want of integrity or capacity, whether mental or
pecuniary, in the conduct of a profession, trade or business, in
which the party is engaged, is actionable, 1 Mal. Entr. 244 as to
accuse an attorney or artist of inability, inattention, or want
of integrity; 3 Wils. 187; 2 Bl. Rep. 750; or a clergyman of
being a drunkard; 1 Binn. 178; is actionable. See Holt on
Libels, 210; Id. 217.
8. - 2. Of the second class are words which are actionable only
in respect of special damages sustained by the party slandered.
Though the law will not permit in these cases the inference of
damage, yet when the damage has actually been sustained, the
party aggrieved may support an action for the publication of an
untruth; 1 Lev. 53; 1 Sid. 79, 80; 3 Wood. 210; 2 Leon. 111;
unless the assertion be made for the assertion of a supposed
claim; Com. Dig. tit. Action upon the case for Defamation, D 30;
Bac. Ab. Slander, B; but it lies if maliciously spoken. See 1
Rolle, Ab. 36 1 Saund. 243 Bac. Abr. Slander, C; 8 T. R. 130 8
East, R. 1; Stark. on Slander, 157.
9. - §2. The charge must be false; 5 Co. 125, 6; Hob. 253;
the falsity of the accusation is to be implied till the contrary
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is shown. 2 East, R. 436; 1 Saund. 242. The instance of a master
making an unfavorable representation of his servant, upon an
application for his character, seems to be an exception, in that
case there being a presumption from the occasion of the speaking,
that the words were true. 1 T. R. 111; 3 B. & P. 587; Stark. on
Slander, 44, 175, 223.
10. - §3. The slander must, of course, be published, that is,
communicated to a third person; and if verbal, then in a
language which he understands, otherwise the plaintiff's
reputation is not impaired. 1 Rolle, Ab. 74; Cro. Eliz. 857; 1
Saund. 2425 n. 3; Bac. Abr. Slander, D 3. A letter addressed to
the party, containing libelous matter, is not sufficient to
maintain a civil action, though it may subject the libeler to an
indictment, as tending to a breach of the peace; 2 Bl. R. 1038;
1 T. R. 110; 1 Saund. l32, n. 2; 4 Esp. N. P. R. 117; 2 Esp.
N. P. R. 623; 2 East, R. 361; the slander must be published
respecting the plaintiff; a mother cannot maintain an action for
calling her daughter a bastard. 11 Serg. & Rawle, 343. As to the
case of a man who repeats the slander invented by another, see
Stark. on Slander, 213; 2 P. A. Bro. R. 89; 3 Yeates, 508; 3
Binn. 546.
11. - §4. To render words actionable, they must be uttered
without legal occasion. On some occasions it is justifiable to
utter slander of another, in others it is excusable, provided it
be uttered without express malice. Bac. Ab. Slander, D 4; Rolle,
Ab. 87; 1 Vin. Ab. 540. It is justifiable for au attorney to use
scandalizing expressions in support of his client's cause and
pertinent thereto. 1 M. & S. 280; 1 Holt's R. 531; 1 B. & A.
232; see 2 Serg. & Rawle, 469; 1 Binn. 178; 4 Yeates, 322; 1
P. A. Browne's R. 40; 11 Verm. R. 536; Stark. on Slander, 182.
Members of congress and other legislative assemblies cannot be
called to account for anything said in debate.
12. - §5. Malice is essential to the support of an action for
slanderous words. But malice is in general to be presumed until
the contrary be proved; 4 B. & C. 247; 1 Saund. 242, n. 2; 1
T. R. 1 11, 544; 1 East, R. 563; 2 East, R. 436; 2 New Rep.
335; Bull. N. P. 8; except in those cases where the occasion
prima facie excuses the publication. 4 B. & C. 247. See 14 Serg.
& Rawle, 359; Stark. on Slander, 201. See, generally, Com. Dig.
tit. Action upon the case for Defamation; Bac. Abr. Slander; 1
Vin. Abr. 187; 1 Phill. Ev. ch. 8; Yelv. 28, n.; Doctr. Plac.
53 Holt's Law of Libels; Starkie on Slander, Ham. N. P. ch. 2,
s. 3.
SLANDERER. A calumniator, who maliciously and without reason
imputes a crime or fault to another, of which he is innocent.
2. For this offence, when the slander is merely verbal, the
remedy is an action on the case for damages; when it is reduced
to writing or printing, it is a libel. (q. v.)
SLAVE. A man who is by law deprived of his liberty for life,
and becomes the property of another.
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2. A slave has no political rights, and generally has no civil
rights. He can enter into no contract unless specially authorized
by law; what he acquires generally, belongs to his master. The
children of female slaves follow the condition of their mothers,
and are themselves slaves.
3. In Maryland, Missouri and Virginia slaves are declared by
statute to be personal estate, or treated as such. Anth. Shep.
To. 428, 494; Misso. Laws, 558. In Kentucky, the rule is
different, and they are considered real estate. 1 Kty. Rev. Laws,
566 1 Dana's R. 94.
4. In general a slave is considered a thing and not a person;
but sometimes he is considered as a person; as when he commits a
crime; for example, two white persons and a slave can commit a
riot. 1 McCord, 534. See Person.
5. A slave may acquire his freedom in various ways: 1. By
manumission, by deed or writing, which must be made according to
the laws of the state where the master then acts. 1 Penn. 10; 1
Rand. 15. The deed may be absolute which gives immediate freedom
to the slave, or conditional giving him immediate freedom, and
reserving a right of service for a time to come; 6 Rand. 652;
or giving him his freedom as soon as a certain condition shall
have been fulfilled. 2 Root, 364; Coxe, 4. 2. By manumission by
will. When there is an express emancipation by will, the slave
will be free, and the testator's real estate shall be charged
with the payment of his debts, if there be not enough personal
property without the sale of the slaves. 9 Pet. 461. See Harper,
R. 20. The manumission by will may be implied, as, where the
master devises property real or personal to his slave. 2 Pet;
670; 5 Har. & J. 190. 3. By the removal of the slave with the
consent of the master, animo morandi, into one of the United
States where slavery is forbidden by law; 2 Mart. Lo. Rep. N. J.
401; or when he sojourns there longer than is allowed by the law
of the state. 7 S. & R. 378; 1 Wash. C. C. Rep. 499. Vide Stroud
on Slavery; Bouv. Inst. Index, h. t.; and as to the rights of
one who, being free, is held as a slave, 2 Gilman, 1; 3 Yeates,
240.
SLAVE TRADE, criminal law. The infamous traffic in human flesh,
which though not prohibited by the law of nations, is now
forbidden by the laws and treaties of most civilized states.
2. By the constitution of the United States, art. 1, s. 9, it
is provided, that the "migration or importation of such persons
as any of the states now existing (in 1789,) shall think proper
to admit, shall not be probibited by the congress, prior to the
year one thousand eight hundred and eight." Previously to that
date several laws were enacted, which it is not within the plan
of this work to cite at large or to analyze; they are here
referred to, namely; act of 1794, c. 11, 1 Story's laws U. S.
319; act of 1800, c. 51, 1 Story's Laws U. S. 780 act of 1803,
c. 63, 2 Story's Laws U. S 886; act of 1807, c. 77, 2 Story's
Laws U. S. 1050; these several acts forbid citizens of the
United States, under certain circumstances, to equip or build
vessels for the purpose of carrying on the slave trade, and the
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last mentioned act makes it highly penal to import slaves into
the United States after the first day of January, 1808. The act
of 1818, c. 86, 3 Story's Laws U. S. 1698 the act of 1819, c.
224, 3 Story's Laws U. S. 1752; and the act of 1820, c. 113, 3
Story's Laws U. S. 1798, contain further prohibition of the slave
trade , and punish tho violation of their several provisions with
the highest penalties of the law. Vide, generally, 10 Wheat. R.
66; 2 Mason, R. 409; 1 Acton, 240; 1 Dodson, 81, 91, 95; 2
Dodson, 238; 6 Mass. R. 358; 2 Cranch, 336; 3 Dall. R. 297; 1
Wash. C. C. Rep. 522; 4 Id. 91; 3 Mason, R. 175; 9 Wheat. R.
391; 6 Cranch, 330; 5 Wheat. R. 338; 8 Id. 380; 10 Id. 312;
1 Kent, Com. 191.
SLAVERY. The state or condition of a slave.
2. Slavery exists in most of the southern states. In
Pennsylvania, by the act of March, 1780, for the gradual
abolition of slavery, it has been almost entirely removed in
Massachusetts it was held, soon after the Revolution, that
slavery had been abolished by their constitution; 4 Mass. 128;
in Connecticut, slavery has been totally extinguished by
legislative provisions; Reeve's Dom. Bel. 340; the states north
of Delaware, Maryland and the river Ohio, may be considered as
free States, where slavery is not tolerated. Vide Stroud on
Slavery; 2 Kent, Com. 201; Rutherf. Inst. 238.
SMUGGLING. The fraudulent taking into a country, or out of it,
merchandise which is lawfully prohibited. Bac. Ab. h. t.
SO HELP YOU GOD. The formula at the end of a common oath, as
administered to a witness wlio testifies in chief.
SOCAGE, Eng. law. A tenure of lands by certain inferior
services in husbandry, and not knight's service, in lieu of all
other services. Litt. sect. 117.
SOCER. The father of one's wife; a father-in-law.
SOCIDA, civ. law. This is the name of a contract by which one
man delivers to another, either for a small recompense, or for a
part of the profits, certain animals, on condition that if any of
them perish they shall be replaced by the bailer, or he shall pay
their value.
2. This is a contract of hiring, with this condition, that the
bailee takes upon him the risk of the loss of the thing hired.
Wolff, §638.
SOCIETAS LEONINA. Among the Roman lawyers this term signified
that kind of society or partnership by which the entire profits
should belong to some of the partners in exclusion of the rest.
2. It was so called in allusion to the fable of the lion and
other animals, who having entered into partnership for the
purpose of hunting, the lion appropriated all the prey to
himself. Dig. 17, 2, 29, 2; Poth. Traite de Societe, n. 12. See
2 McCord's R. 421; 6 Pick. 372.
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SOCIETE EN COMMENDITE. This term is borrowed from the laws of
France, and is used in Louisiana; the societe en commendite, or
partnership in commendam, is formed by a contract, by which one
person or partnership agrees to furnish another person or
partnership a certain amount, either in property or money, to be
employed by the person or partnership to whom it is furnished, in
his or their own name or firm, on condition of receiving a share
in the profits, in the proportion determined by the contract, and
of being liable to losses and expenses to the amount furnished
and no more. Civ. Code of Lo. art. 2810; Code de Comm. 26, 33;
4 Pard. Dr. Com. n. 1027; Dall. Dict. mots Societe Commerciale,
n. 166. Vide Commendam; Partnership.
SOCIETY. A society is a number of persons united together by
mutual consent, in order to deliberate, determine, and act
jointly for some common purpose.
2. Societies are either incorporated and known to the law, or
unincorporated, of which the law does not generally take notice.
3. By civil society is usually understood a state, (q. v.) a
nation, (q. v.) or a body politic. (q. v.) Rutherf. Inst. c. 1
and 2.
4. In the civil law, by society is meant a partnership. Inst.
3, 26; Dig. 17, 2 Code, 4, 37.
SODOMITE. One who his been guilty of sodomy. Formerly such
offender was punished with great severity, and was deprived of
the power of making a will.
SODOMY, crim. law. The crime against nature, committed either
with man or beast.
2. It is a crime not it to be named; peccatum illud horrible,
inter christianos non nominandum. 4 Bl. Com. 215; 1 East, P. C.
480, 487; Bac. Ab. h. t.; Hawk. b. 1, c. 4; 1 Hale, 669; Com.
Dig. Justices, S 4; Russ. & Ry. 331.
3. This crime was punished with great severity by the civil
law. Nov. 141; Nov. 77; Inst. 4, 18, 4. See 1 Russ. on Cr. 568;
R. & R. C. C. 331, 412; 1 East, P. C. 437.
SOIL. The superficies of the earth on which buildings are
erected, or may be
erected.
2. The soil is the principal, and the building, when erected,
is the accessory. Vide Dig. 6, 1, 49.
SOIT DROIT FAIT AL PARTIE, Eng. law. Let right be done to the
party. This phrase is written on a petition of right, and
subscribed by the king. See Petition of right.
SOKEMANS, Eng. law. Those who hold their land in socage. 2 Bl.
Com. 100.
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SOLARES, Spanish law. Lots of ground. This term is frequently
found in grants from the Spanish government of lands in America.
2 White's Coll. 474.
SOLD NOTE, contracts. The name of an instrument in writing,
given by a broker to a buyer of merchandise, in which it is
stated that the goods therein mentioned have been sold to him. 1
Bell's Com. 5th ed. 435 Story on Ag. §28. Some confusion may be
found in the books as to the name of these notes; they are
sometimes called bought notes. (q. v.)
SOLDIER. A military man; a private in the army.
2. The constitution of the United States, amendm. art. 3,
directs that no soldier shall, in time of peace, be quartered in
any house, without the 'consent of the owner; nor in time of
war, but in a manner to be prescribed by law.
SOLE. Alone, single; used in contradistinction to joint or
married. A sole tenant, therefore, is one who holds lands in his
own right, without being joined with any other. A feme sole is a
single woman; a sole corporation is one composed of only one
natural person.
SOLEMNITY. The formality established by law to render a
contract, agreement, or other act valid.
2. A marriage, for example, would not be valid if made in jest,
and without solemnity. Vide Marriage, and Dig. 4, 1, 7; Id. 45,
1, 30.
SOLICITATION OF CHASTITY. The asking a person to commit
adultery or fornication.
2. This of itself, is not an indictable offence. Salk. 382; 2
Chit. Pr. 478. The contrary doctrine, bowever, has been held in
Connecticut. 7 Conn. Rep. 267.
3. In England, the bare solicitation of chastity is punished in
the ecclesiastical courts. 2 Chit. Pr. 478. Vide Str. 1100; 10
Mod. 384; Sayer, 33; 1 Hawk. ch. 74; 2 Ld. Raym. 809.
4. The civil law punished arbitrarily the person who solicited
the chastity of another. Dig. 47, 11, 1. Vide To persuade; 3
Phill. R. 508.
SOLICITOR. A person whose business is to be employed in the
care and management of suits depending in courts of chancery.
2. A solicitor, like an attorney, (q. v.) will be required to
act with perfect good faith towards his clients. He must conform
to the authority given him. It is said that to institute a suit
he must have a special authority, although a general authority
will be sufficient to defend one. The want of a written
authority, may subject him to the expenses incurred in a suit. 3
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Mer. R. 12; Hov, Fr. ch. 2, p. 28 to 61. Vide 1 Phil. Ev. 102;
19 Vin. Ab. 482; 7 Com. ]big. 357; 8 Com. Dig. 985; 2 Chit.
Pr. 2. See Attorney at law; Counsellor at law; Proctor.
SOLICITOR OP THE TREASURY. The title of one of the officers of
the United States, created by the act of May 29, 1830, 4 Sharsw.
cont. of Story, L. U. S. 2206, which prescribes his duties aud
his rights.
2. - 1. His powers and duties are, 1. Those which were by law
vested and required from the agent of the treasury of the United
States. 2. Those which theretofore belonged to the commissioner,
or acting commissioner of the revenue, as relate to the
superintendence of the collection of outstanding direct and
internal duties. 3. To take charge of all lands which shall be
conveyed to the United States, or set off to them in payment of
debts, or which are vested in them by mortgage or other security;
and to release such lands which had, at the passage of the act,
become vested in the United States, on payment of the debt for
which they were received. 4. Generally to superintend the
collection of debts due to the United States, and receive
statements from different officers in relation to suits or
actions commenced for the recovery of the same. 5. To instruct
the district attorneys, marshals, and clerks of the circuit and
district courts of the United States, in all matters and
proceedings appertaining to suits in which the United States are
a party or interested, and to cause them to report to him any
information he may require in relation to the same. 6. To report
to the proper officer from whom the evidence of debt was
received, the fact of its having been paid to him, and also all
credits which have by due course of law been allowed on the same.
7. To make rules for the government of collectors, district
attorneys and marshals, as may be requisite. 8. To obtain from
the district attorneys full accounts of all suits in their hands,
and submit abstracts of the same to congress.
3. - 2. His rights are, 1. To call upon the attorney-general of
the United States for advice and direction as to the manner of
conducting the suits, proceedings and prosecutions aforesaid. 2.
To receive a salary of three thousand five hundred dollars per
annum. 3. To employ, with the approbation of the secretary of the
treasury, a clerk, with a salary of one thousand five hundred
dollars; and a messenger, with a salary of five hundred dollars.
To receive and send all letters, relating to the business of his
office, free of postage.
SOLIDO, IN, civil law. In solido, is a term used to designate
those contracts in which the obligors are bound, jointly and
severally, or in which several obligees are each entitled to
demand the whole of what is due.
2. - 1. There is an obligation in solido on the part of
debtors, when they are all obliged to the same thing, so that
each may be compelled to pay the whole, and when the payment
which is made by one of them, exonerates the others towards the
creditor.
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3. - 2. The obligation is in solido, or joint and several
between several creditors, when the title expressly gives to each
of them the right of demanding payment of the total of what is
due, and when the payment to any one of them discharges the
debtor. Civ. Code of La. 2083,2086; Merl. Repert. h. t.; Domat,
Index, h. t. See In solido.
SOLITARY IMPRISONMENT. The punishment of separate confinement.
This has been adopted in Pennsylvania, with complete success.
Vide Penitentiary.
SOLUTION, civil law. Payment.
2. By this term, is understood, every species of discharge or
liberation, which is called satisfaction, and with which the
creditor is satisfied. Dig. 46, 3, 54; Code 8, 43, 17; Inst. 3,
30. This term has rather a reference to the substance of the
obligation, than to the numeration or counting of the money. Dig.
50, 16, 176. Vide Discharge of a contract.
SOLVENCY. The state of a person who is able to pay all his
debts; the opposite of insolvency. (q. v.)
SOLVENT. One who has sufficient to pay his debts, and all
obligations. Dig. 50, 16, 114.
SOLVERE. To unbind; to untie; to release; to pay; solvere
dicimus eum qui fecit quod facere promisit. 1 Bouv. Inst. n. 807.
SOLVIT AD DIEM, pleading. The name of a plea to an action on a
bond, or other obligation to pay money, by which the defendant
pleads that he paid the money on the day it was due. Vide 1 Stra.
652; Rep. Temp. Hardw. 133; Com. Dig. Pleader, 2 W 29.
2. This plea ought to conclude with an averment, and not to the
country. 1 Sid. 215; 12 John. R. 253; vide 2 Phil. Ev. 92;
Coxe, R. 467.
SOLVITPOSTDIEM, pleading. The name of a special plea in bar to
an action of debt on a bond, by which the defendant asserts that
he paid the money after the day it became due. 1 Chit. Pl. 480,
555; 2 Phil. Ev. 93.
SOMNAMBULISM, med. juris. Sleep walking.
2. This is sometimes an inferior species of insanity, the
patient being unconscious of what he is doing. A case is
mentioned of a monk who was remarkable for simplicity, candor and
probity, while awake, but who during his sleep in the night,
would steal, rob, and even plunder the dead. Another case is
related of a pious clergyman, who during his sleep, would plunder
even his own church. And a case occurred in Maine, where the
somnambulist attempted to hang himself, but fortunately tied the
rope to his feet, instead of his neck. Ray. Med. Jur. §294.
3. It is evident, that if an act should be done by a sleep
walker, while totally unconscious of his act, he would not be
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liable to punishment, because the intention (q. v.) and will (q.
v.) would be wanting. Take, for example, the following singular
case: A monk late one evening, in the presence of the prior of
the convent, while in a state of somnambulism, entered the room
of the prior, his eyes open but fixed, his features contracted
into a frown, and with a knife in his hand. He walked straight up
to the bed, as if to ascertain if the prior were there, and then
gave three stabs, which penetrated the bed clothes, and a mat
which served for the purpose of a mattress; he returned. with an
air of satisfaction, and his features relaxed. On being
questioned the next day by the prior as to what he had dreamed
the preceding night, the monk confessed he had dreamed that his
mother had been murdered by the prior, and that her spirit had
appeared to him and cried for vengeance, that he was transported
with fury at the sight, and ran directly to stab the assassin;
that shortly after be awoke covered with perspiration, and
rejoiced to find it was only a dream. Georget, Des Maladies
Mentales, 127.
4. A similar case occurred in England, in the last century. Two
persons, who had been hunting in the day, slept together at
night; one of them was renewing the chase in his dream, and,
imagining himself present at the death of the stag, cried out
aloud, "I'll kill him! I'll kill him!" The other, awakened by the
noise, got out of bed, and, by the light of the moon, saw the
sleeper give several deadly stabs, with a knife, on the part of
the bed his companion had just quitted. Harvey's Meditations on
the Night, note 35; Guy, Med. Jur. 265.
SON, kindred. An immediate male descendant. In its technical
meaning in devises, this is a word of purchase, but the testator
may make it a word of descent. Sometimes it is extended to more
remote descendants.
SON ASSAULT DEMESNE, pleading. His own first assault. A form of
a plea to justify an assault and battery, by whicb the defendant
asserts that the plaintiff committed an assault upon him, and the
defendant merely defended himself.
2. When the plea is supported by evidence, it is a sufficient
justification, unless the retaliation by the defendant were
excessive, and bore no proportion to the necessity, or to the
provocation received. 1 East, P. C. 406; 1 Chit. Pr. 595.
SON-IN-LAW, in Latin called gener. The hushand of one's
daughter.
SOUND MIND. That state of a man's mind which is adequate to
reason and comes to a judgment upon ordinary subjects, like other
rational men.
2. The law presumes that every person who has acquired his full
age is of sound mind, and consequently competent to make
contracts and perform all his civil duties; and he who asserts
to the contrary must prove the affirmation of his position by
explicit evidence, and not by conjectural proof. 2 Hagg Eccl. R.
434; 3 Addams' R. 86; 8 Watts, R. 66; Ray, Med. Jur. §92; 3
Curt. Eccl. R. 671. Vide Unsound mind.
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SOUNDING IN DAMAGES. When an action is brought, not for the
recovery of lands, goods, or sums of money, (as is the case in
real or mixed actions, or the personal action of debt or
detinue,) but for damages only, as in covenant, trespass, &c.,
the action is said to be sounding in damages. Steph. Pl. 126,
127.
SOUNDNESS. In usual health; without any permanent disease. 1
Carr. & Marsh. 291. To create unsoundness, it is requisite that
the animal should not be useful for the purpose for which he is
bought, and that inability to be so useful should arise from
disease or accident. 2 M. & Rob. 137; 9 M. & W. 670. 2 M. & Rob.
113.
2. In the sale of slaves and animals they are sometimes
warranted by the seller to be sound, and it becomes important to
ascertain what is soundness. Roaring; (q. v.) a temporary
lameness, which renders a horse less fit for service; 4 Campb.
271; sed vide 2 Esp. Cas. 573; a cough, unless proved to be of
a temporary nature; 2 Chit. R. 245, 416; and a nerved horse,
have been held to be unsound. But crib-biting is not a breach of
a general warranty of soundness. Holt, Cas. 630.
3. An action on the case is the proper remedy for a verbal
warrant of soundness. 1 H. Bl. R. 17; 3 Esp. 82; 9 B. & Cr.
259; 2 Dow. & Ry. 10; 1 Bing. 344; 5 Dow. & R. 164; 1 Taunt.
566; 7 East, 274; Bac. Ab. Action on the Case, E.
SOURCES OF THE LAW. By this expression is understood the
authority from which the laws derive their force.
2. The power of making all laws is in the people or - their
representatives, and none can have any force whatever, which is
derived from any other source. But it is not required that the
legislator shall expressly pass upon all laws, and give the
sanction of his seal, before they can have life or existence. The
laws are therefore such as have received ala express sanction,
and such as de-rive their force and effect from implication. The
first, or express, are the constitution of the United States, and
the treaties and acts of the legislature which have been made by
virtue of the authority vested by the constitution. To these must
be added the constitution of the state and the laws made by the
state legislature, or by other subordinate legislative bodies, by
virtue of the authority conveyed by such constitution. The
latter, or tacit, received their effect by the general use of
them by the people, when they assume the name of customs by the
adoption of rules by the courts from systems of foreign laws.
3. The express laws, are first, the constitution of the United
States; secondly, the treaties made with foreign powers;
thirdly, the acts of congress; fourthly, the constitutions of
the respective states; fifthly, the laws made by the several
state legislatures; sixthly, laws made by inferior legislative
bodies, such as the councils of municipal corporations, and
general rules made by the courts.
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4. - 1. The constitution is an act of the people themselves,
made by their representatives elected for that purpose. It is the
supreme law of the land, and is binding on all future legislative
bodies, until it shall be altered by tho authority of the people,
in the manner, provided for in the instrument itself, and if an
act be passed contrary to the provisions of the constitution, it
is, ipso facto, void. 2 Pet. 522; 12 Wheat. 270; 2 Dall. 309;
3 Dall. 386; 4 Dall. 18; 6 Cranch, 128.
5. - 2. Treaties made under the authority of the constitution
are declared to be the supreme law of the land, and therefore
obligatory on courts. 1 Cranch, 103. See Treaty.
6. - 3. The acts and resolutions of congress enacted
constitutionally, are of course binding as laws and require no
other explanation.
7. - 4. The constitutions of the respective states, if not
opposed to the provisions of the constitution of the United
States, are of binding force in the states respectively, and no
act of the state legislature has any force which is made in
contravention of the state constitution.
8. - 5. The laws of the several states, constitutionally made
by the state legislatures, have full and complete authority in
the respective states.
9. - 6. Laws are frequently made by inferior legislative bodies
which are authorized by the legislature; such are the municipal
councils of cities or boroughs. Their laws are generally known by
the name of ordinances, and, when lawfully ordained, they are
binding on the people. The courts, perhaps by a necessary
usurpation, have been in the practice of making general rules and
orders, which sometime affect suitors and parties as much as the
most regular laws enacted by congress. These apply to all future
cases. There are also rules made in particular cases as they
arise, but these are rather decrees or judgments than laws.
10. The tacit laws, which derive their authority from the
consent of the people, without any legislative enactment, may be
subdivided into 1st. The common law, which is derived from two
sources, the common law of England, and the practice and
decisions of our own courts. It is very difficult, in many cases,
to ascertain what is this common law, and it is always
embarrassing to the courts. Kirl. Rep. Pref. In some states, it
has been enacted that the common law of England shall be the law,
except where the same is inconsistent with our constitutions and
laws. See Law.
2d. Customs which have been generally adopted by the people,
have the force of law.
3d. The principles of the Roman law, being generally founded in
superior wisdom, have insinuated themselves into every part of
the law. Many of the refined rules which now adorn the common law
appear there without any acknowledgment of their paternity, and
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it is at this source that some judges dipt to get the wisdom
which adorns their judgments. The proceedings of the courts of
equity and many of the admirable distinctions which manifest
their wisdom are derived from this source. To this fountain of
wisdom the courts of admiralty owe most of the law which governs
in admiralty cases.
4th. The canon law, which was adopted by the ecclesiastical
courts, figures in our laws respecting marriage, divorces, wills
and testaments, executors and administrators and many other
subjects.
5th. The jurisprudence, or decisions of the various courts,
have contributed their full share of what makes the law. These
decisions are made by following precedents, by borrowing from the
sources already mentioned, and, sometimes by the less excusable
disposition of the judges to legislate on the bench.
11. The monuments where the common law is to be found, are the
records, reports of cases adjudicated by the courts, and the
treatises of learned men. The books of reports are the best proof
of what is the common law, but owing to the difficulty of finding
out any systematic arrangement, recourse is had to treatises upon
the various branches of the law. The records, owing to their
being kept in one particular place, and therefore not generally
accessible, are seldom used.
SOUS SEING PRIVE. An act sous seingprive, in Louisiana and by
the French law, is an act or contract evidenced by writing under
the private signature of the parties to it. The term is used in
opposition to the authentic act, which is an agreement entered
into in the presence of a notary or other public officer.
2. The form of the instrument does not give it its character so
much as the fact that it appears or does not appear to have been
executed before the officer. 7 N. S. 548 5 N. S. 196.
3. The effect of a sous seing prive is not the same as that of
the authentic act. The former cannot be given in evidence until
proved, and, unless accompanied by possession, it does not, in
general, affect third persons; 6 N. S. 429, 432; the latter, or
authentic acts, are full evidence against the parties and those
who claim under them. 8 N. S. 132. See Act; Authentic act.
SOUTH CAROLINA. The name of one of the original states of the
United States of America. For an account of its colonial history,
see article North Carolina.
2. The constitution of this state was adopted the third day of
June, 1790, to which two amendments have been made, one, ratified
December 17, 1808, and the other, December 19, 1816. The powers
of the government are distributed into three branches, the
legislative, the executive, and the judicial.
3. - 1st. The legislative authority is vested in a general
assembly, which consists of a senate and house of
representatives.
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4. - 1. The senate will be considered with reference to the
qualifications of the electors; the qualifications of the
members; the number of members; the duration of their office,
and the time of their election. 1. Every free white man, of the
age of twenty-one years, being a citizen of this state, and
having resided therein two years previous to the day of election,
and who hath a freehold of fifty acres of land, or a town lot, of
which he hath been legally seised and possessed, at least six
months before such election, or, not having such freehold or town
lot, hath been a resident in the election district, in which he
offers to give his vote, six mouths before the said election, and
hath paid a tax the preceeding year of three shillings sterling
towards the support of this government, shall have a right to
vote for a member or members, to serve in either branch of the
legislature, for the election district in which he holds such
property, or is so resident. 2. No person shall be eligible to a
seat in the senate, unless he is a free white man, of the age of
thirty years and hath been a citizen and resident in this state
five years previous to his election. If a resident in the
election district, he shall not be eligible unless he be legally
seised and possessed in his own right, of a settled freehold
estate of the value of three hundred pounds sterling, clear of
debt. If a non-resident in the election district, he shall not be
eligible unless he be legally seised and possessed in his own
right, of a settled freehold estate in the said district, of the
value of one thousand pounds sterling, clear of debt. 3. The
senate is composed of one member from each district as now
established for the election of the house of representatives,
except the district formed by the districts of the parishes of
St. Philip and St. Michael, to which shall be allowed two
senators as heretofore. Amend. of Dec. 17, 1808. 4. They are
elected for four years. Ibid. 5. The election takes place on the
second Monday in October. Art. 1, s. 10.
5. - 2. The house of representatives will be considered in the
same order which has been observed in considering the senate. 1.
The qualification of electors are the same as those of electors
of senators. 2. No person shall be eligible to a seat in the
house of representatives, unless he is a free white man, of the
age of twenty-one years, and hath been a citizen and resident in
this state three years previous to his election. If a resident in
the election district, he shall not be eligible to a seat in the
house of representatives, unless he be legally seised and
possessed in his own right, of a settled free-hold estate of five
hundred acres of land, and ten negroes; or of a real es-tate, of
the value of one hundred and fifty pounds sterling, clear of
debt. If a non-resident, he shall be legally seised and possessed
of a settled freehold estate therein, of the value of five
hundred pounds sterling, clear of debt. 3. The house consists of
one hundred and twenty-four members. Amend. of Dee. 17, 1808. 4.
The members are elected for two years. Art. l, s. 2 . 5. The
election is at the same time that the election of senators is
held.
6. - 2. The executive authority is vested in a governor, and in
certain cases, a lieutenant-governor.
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7. - 1. Of the governor. It will be proper to consider his
qualifications; by whom he is to be elected; when to be
elected; duration of office; and his powers and duties. 1. No
person shall be eligible to the office of governor, unless he
bath attained the age of thirty years, and hath resided within
this state, and been a citizen thereof, ten years, and unless he
be seised and possessed of a settled estate within the same, in
his own right, of the value of fifteen hundred pounds sterling,
clear of debt. Art. 2, s. 2. 2. He is elected by the senate and
house of representatives jointly, in the house of
representatives. Art. 2, sect. 1. 3. He is to be elected whenever
a majority of both houses shall be present. lb. 4. He is elected
for two years, and until a new election shall be made. Ibid. 5.
The governor is commander-in-chief of the army and navy of the
state, and of the militia, except when they shall be called into
the actual Service of the United States. He may grant reprieves
and pardons, after conviction, except in cases of impeachment,
and remit fines and forfeitures, unless otherwise directed by law
shall cause the laws to be faithfully executed in mercy - may
prohibit the exportation of provisions, for any time not
exceeding thirty days-may require information from the executive
departments - shall recommend such measures as he may deem
necessary, and give the assembly information as to the condition
of the state-may on extraordinary occasions convene the assembly,
and in case of disagreement between the two houses with respect
to the time of adjournment, adjourn them to such time as he shall
think proper, not beyond the fourth Monday in the mouth of
November then next ensuing.
8. - 2. A lieutenant-governor is to be chosen at the same time,
in the same manner, continue in office for the same period, and
be possessed of the same qualifications as the governor. Art. 2,
sect. 3. In case of the impeachment of the governor, or his
removal from office, death, resignation, or absence from the
state, the lieutenant-governor shall succeed to his office. And
in case of the impeachment of the lieutenant-governor, or his
removal from office, death, resignation, or absence from the
state, the president of the senate shall succeed to his office,
till a nomination to those offices respectively shall be made by
the senate and house of representatives, for the remainder of the
time for which the officer so impeached, removed from office,
dying, resigning, or being absent, was elected. Art. 2, s. 5.
9. - 3. The judicial power shall be vested in such superior and
inferior courts of law and equity, as the legislature shall, from
time to time, direct and establish. The judges of each shall hold
their commissions during good behaviour; and judges of the
superior courts shall, at stated times, receive a compensation
for their services, which shall neither be increased nor
diminished during their continuance in office: but they shall
receive no fees or perquisites of office, nor, hold any other
office of profit or trust, under this state, the United States,
or any other power. Art. 3, sect. 1. The judges are required to
meet at such times, and places, as shall be prescribed by the act
of the legislature, and sit for the purpose of hearing and
determining all motions which may be made for new trials, and in
arrest of judgment, and such points of law as may be submitted to
them. Amend. of Dec. 19, 1816.
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SOVEREIGN. A chief ruler with supreme power; one possessing
sovereignty. (q. v.) It is also applied to a king or other
magistrate with limited powers.
2. In the United States the sovereignty resides in the body of
the people. Vide Rutherf. Inst. 282.
SOVEREIGN, Eng. law. The name of a gold coin of Great Britain
of the value of one pound sterling.
SOVEREIGN STATE. One which governs itself independently of any
foreign power.
SOVEREIGNTY. The union and exercise of all human power
possessed in a state; it is a combination of all power; it is
the power to do everything in a state without accountability; to
make laws, to execute and to apply them: to impose and collect
taxes, and, levy, contributions; to make war or peace; to form
treaties of alliance or of commerce with foreign nations, and the
like. Story on the Const. §207.
2. Abstractedly, sovereignty resides in the body of the nation
and belongs to the people. But these powers are generally
exercised by delegation.
3. When analysed, sovereignty is naturally divided into three
great powers; namely, the legislative, the executive, and the
judiciary; the first is the power to make new laws, and to
correct and repeal the old; the second is the power to execute
the laws both at home and abroad; and the last is the power to
apply the laws to particular facts; to judge the disputes which
arise among the citizens, and to punish crimes.
4. Strictly speaking, in our republican forms of government,
the absolute sovereignty of the nation is in the people of the
nation; (q. v.) and the residuary sovereignty of each state, not
granted to any of its public func-tionaries, is in the people of
the state. (q. v.) 2 Dall. 471; and vide, generally, 2 Dall.
433, 455; 3 Dall. 93; 1 Story, Const. §208; 1 Toull. n. 20
Merl. Reper. h. t.
SPADONES, civil law. Those who, on account of their
temperament, or some accident they have suffered, are unable to
procreate. Inst. 1, 11, 9; Dig. 1, 7, 2, 1; and vide Impotence.
SPARSIM. This Latin adverb signifies scatteredly, here and
there, in a scattered manner, sparsedly, dispersedly. It is
sometimes used in law; for example, the plaintiff may recover
the place wasted, not only where the injury has been total, but
where trees, growing sparsim in a close, are cut. Bac. Ab. Waste,
M; Brownl. 240; Co. Litt. 54, a; 4 Bouv. Inst. n. 3690.
TO SPEAK. This term is used in the English law, to signify the
permission given by a court to the prosecutor and defendant in
some cases of misdemeanor, to agree together, after which the
prosecutor comes into court and declares himself to be satisfied;
when the court pass a nominal sentence. 1 Chit. Pr. 17.
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SPEAKER. The presiding officer of the house of representatives
of the United States is so called. The presiding officer of
either branch of the state legislatures generally bears this
name.
SPEAKING DEMURRER, equity pleading. One which contains an
argument in the body of it; as, for instance, when a demurrer
says, "in or about the year 1770," which is upwards of twenty
years before the bill filed. 2 Ves. jr. 83; S. C. 4 Bro. C. C.
254.
SPECIAL. That which relates to a particular species or kind,
opposed to general; as special verdict and general verdict;
special imparlance and general imparlance; special jury, or one
selected for a particular case, and general jury; special issue
and general issue, &c.
SPECIAL AGENT. A special agent is one whose authority is
confined to a particular, or an individual instance. It is a
general rule, that he who is invested with a special authority,
must act within the bounds of his authority, and he cannot bind
his principal beyond what he is authorized to do. 2 Bouv. Inst.
n. 1299; 2 John. 48; 1 Wash. C. C. lT4; 5 John. 48; 15 John.
44; 8 Wend. 494.
SPECIAL ASSUMPSIT, practice. Where an action of assumpsit (q.
v.) has been brought on a special contract, and the plaintiff
declares upon it, setting out its particular language, or its
legal effect. It is distinguished from a general assumpsit, where
the plaintiff, instead of setting out the particular language, or
effect of the original contract, declares as for a debt, arising
out of the execution of the contract, where that constitutes the
debt. 3 Bouv. Inst. n. 3426.
SPECIAL BAIL. A person who becomes specially bound to answer
for the appearance of another; the recoguizance or act by which
such person thus becomes bound, is also called special bail. Vide
Bail.
SPECIAL CONSTABLE. One who has been appointed a constable for a
particular occasion, as in the case of an actual tumult or a
riot, or for the purpose of serving a particular process.
SPECIAL DAMAGES. Such as actually have been suffered, and are
not implied by law. Vide Damages, Special; and 1 Chit. Pl. 385;
Com. Dig. Action on the case for Defamation, D 30, G 11.
SPECIAL DEMURRER, pleading. One which excepts to the
sufficiency of the pleadings on the opposite side, and shows
specifically the nature of the objection, and the particular
ground of the exception. 3 Bouv. Inst. n. 3022. See Demurrer.
SPECIAL DEPOSIT. A deposit made of a particular thing with the
depositary: it is distinguished from an irregular deposit.
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2. When a thing has been specially deposited with a depositary,
the title to it remains with the depositor, and if it should be
lost, the loss will fall upon him. When, on the contrary, the
deposit is irregular, as where money is deposited in a bank, the
title to which is transferred to the bank, if it be, lost, the
loss will be borne by the bank. This will result from the same
principle; the loss will fall, in both instances, on the owner
of the thing, according to the rule res perit domino. See 1 Bouv.
Inst. n. 1 054.
SPECIAL ERRORS. Special pleas in error are those which assign
for error matters in confession and avoidance, as a release of
errors, the act of limitations, and the like, to which the
plaintiff in error may reply or demur.
SPECIAL IMPARLANCE, pleading. One which contains the clause,
"saving to himself all advantages and exceptions, as well to the
writ, as to the declaration aforesaid." 2 Chit. Pl. 407, 8.
2. This imparlance admits the jurisdiction of the court, but
the defendant may plead in abatement or to the action; that is,
to the writ or the count. Gould. on Pl. c. 2, §18; Lawes on Pl.
84. See imparlance.
SPECIAL INJUNCTION. One obtained only on motion and petition,
with notice to the other party, and is applied for, sometimes on
affidavit before answer, but more frequently upon merits
disclosed in the defendant's answer. 4 Bouv. lust. n. 3756. See
Injunction.
SPECIAL ISSUE, pleading. A plea to the action which denies some
particular material allegation, which is in effect a denial of
the entire right of action. It differs from the general issue
whicli traverses or denies the whole declaration or indictment.
Gould. on Pl. c. 2, §38. See General Issue; Issue.
SPECIAL JURY. One selected in a particular way by the parties.
A pannel is made out, and each party is entitled to strike from
it the names of a certain number of jurors, as provided for by
the local statutes, and from those who remain, the jury in that
case must be selected. This is also called a struck jury.
SPECIAL NON EST FACTUM. The name of a plea by which the
defendant says that the deed which he has executed is not his own
or binding upon him, because of some circumstance which shows
that it was not intended to be his deed, or because it was not
binding upon him for some lawful reason; as, when the defendant
delivered the deed to a third person as an escrow to be delivered
upon a condition, and it has been delivered without the
performance of the condition, he may plead non est factum, state
the fact, of the conditional delivery, the non-performance of the
condition, and add, "and so it is not his deed;" or if the
defendant be a feme covert, she may plead non est factum, that
she was a feme covert at the time the deed was made, "and so it
is not her deed." Bac. Ab. Pleas, &c. H 3, 1 2; Gould. on Pl. c.
6, part 1, §64. See Issint.
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SPECIAL OCCUPANT, estates. When an estate is granted to a man
and his heirs during the life, of cestui que vie, and the grantee
die without alienation, and while the life for which he held
continues, the heir will succeed, and is called a special
occupant. 2 Bl. Com. 259. In the United States the statute
provisions of the different states vary considerably upon this
subject. In New York and New Jersey, special occupancy is
abolished. Virginia, and probably Maryland, follow the English
statutes; in Massachusetts and other states, where the real and
personal estates of intestates are distributed in the same way
and manner, the question does not seem to be material. 4 Kent,
Com. 27.
SPECIAL PARTNERSHIP. Special or limited partnerships are of two
kinds; 1. Those at common law. 2. Limited partnerships, or those
in commendam.
2. Special partnerships at common law, are those formed for a
particular or special branch of business, as contradistinguished
from the general business of the parties, or of one of them.
3. A limited or special partnership, under special acts of
assembly, may be found in several states. In such partnerships
some of the partners are liable as general partners, while others
are responsible only to the extent of the capital they have
furnished. See 2 Bouv. Inst. n. 1472, 1473, and In Commendam;
Partnership.
SPECIAL PLEA IN BAR. One which advances new matter. It differs
from the general in this, that the latter denies some material
allegation, but never advances new matter. Gould on Pl. c. 2,
§38.
SPECIAL PLEADER, Engl. practice. A special pleader is a lawyer
whose professional occupation is to give verbal or written
opinions upon statements submitted to him, either in writing or
verbally, and to draw pleadings, civil or criminal, and such
practical proceedings as may be out of the general course. 2
Chit. Pr. 42.
SPECIAL PLEADING. The allegartion of special or new matter, as
distinguished from a direct denial of matter previously alleged
on the opposite side. Gould on Pl. c. 1, s. 18; Co. Litt. 282;
3 Wheat. R. 246 Com. Dig. Pleader, E 15.
SPECIAL PROPERTY. This term is used as synonymous with
qualified or limited property. It is that property which is not
perfect in the hands of the possessor, but his right is qualified
or limited; as, where a person is possessed of an animal ferae
naturae, he has a property in such animal, but this is not a
general right, for if the animal should escape, and be taken by
another person, the latter only would have a special property in
it.
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2. Again, a person may have a special property in a chattel in
consequence of the peculiar circumstances of the owner; a
bailee, for example, has a special property in the thing bailed.
1 Bouv. Inst. n. 475 to 477.
SPECIAL REQUEST. One actually made, at a particular time and
place; this term is used in contradistinction to a general
request, which need not state. the time when, nor place where
made. 3 Bouv. Inst. n. 2843.
SPECIAL RULE. A rule or order of court made in a particular
case, for a particular purpose; it is distinguished from a
general rule, which applies to a class of cases. It differs also
from a common rule, or rule of course.
SPECIAL TRAVERSE, pleading. A technical special traverse begins
in most cases, with the words absque hoc, (without this,) which
words in pleading form a technical form of negation. Lawes' Pl.
116 to 120.
2. A traverse commencing with these words is special, because,
when it thus commences, the inducement and the negation are
regularly both special; the former consisting of new matter, and
the latter pursuing, in general, the words of the allegation
traversed, or at least those of them which are material. For
example, if the defendant pleads title to land in himself, by
alleging that Peter devised the land to him, and then died seised
in fee; and the plaintiff replies that Peter died seised in fee
intestate, and alleges title in himself, as heir of Peter without
this, that Peter devised the land to the defendant; the traverse
is special. Here the allegation of Peter's intestacy, &c., forms
the special inducement; and the absque hoc, with what follows
it, is a special denial of the alleged devise, i. e. a denial of
it in the words of the allegation. Lawes on Pl. 119, 120; Gould,
Pl. ch. 7, §6, 7; Steph. Pl. 188. Vide Traverse; General
Traverse.
SPECIAL TRUST. A special trust, is one where a trustee is
interposed for the execution of some purpose particularly pointed
out, and is not, as in the case of a simple trust, a mere passive
depositary of the estate, but is required to exert himself
actively in the execution of the settler's intention; as, where
a conveyance is made to trustees upon trust to reconvey, or to
sell for the payment of debts. 2 Bouv. Inst. n. 1896. See Trust.
SPECIAL VERDICT, practice. A special verdict is one by which
the facts of the case are put on the record, and the law is
submitted to the judges. Vide Verdict; Bac. Ab. Verdict, D.
SPECIALTY, contracts. A writing sealed aud delivered,
containing some agreement. 2 Serg. & Rawle, 503; 1 Binn. Rep.
261; Willes, 189; 1 P. Wms. 130. In a more confined meaning, it
signifies a writing sealed and delivered, which is given as a
security for the payment of a debt, in which such debt is
particularly specified. Bac. Ab. Obligation, A.
2. Although in the body of the writing it is not said, that the
parties have set their hands and seals, yet if the instrument be
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really sealed it is a specialty, and if it be not sealed, it is
not a specialty, although the parties in the body of the writing
make mention of a seal. 2 Serg. & Rawle, 504; 2 Rep. 5 a; Perk.
§129. Vide Bond; Debt; Obligation.
SPECIE. Metallic money issued by public authority.
2. This term is used in contradistinction to paper money, which
in some countries is emitted by the government, and is a mere
engagement which repre-sents specie. Bank paper in the United
States is also called paper money. Specie is the only
constitutional money in this country. See 4 Monr. 483.
SPECIFIC LEGACY. A bequest of a particular thing.
2. It follows that a specific legacy may be of animals or
inanimate things, provided they are specified and separated from
all other things; a specific legacy may therefore be of money in
a bag, or of money marked and so described; as, I give two
eagles to A B, on which are engraved the initials of my name. A
specific legacy may also be given out of a general fund. Touch.
433 Amb. 310; 4 Ves. 565; 3 Ves. & Bea. 5. If the specific
article given be, not found among the assets of the testator, the
legatee loses his legacy; but on the other hand, if there be a
deficiency of assets, the specific legacy will not be liable to
abate with the general legacies. 1 Vern. 31; 1 P. Wms. 422; 3
P. Wms. 365; 3 Bro. C. C. 160; vide 1 Roper on Leg. 150; 1
Supp. to Ves. jr. 209 . Id. 231; 2 Id. 112; and articles
Legacy; Legatee.
SPECIFIC PERFORMANCE, remedies. The actual accomplishment of a
contract by the party bound to fulfil it.
2. Many contracts are entered into by parties to fulfil certain
things, and then the contracting parties neglect or refuse to
fulfil their engagements. In such cases the party grieved has
generally a remedy at law, and he may recover damages for the
breach of the contract; but, in many cases, the recovery of
damages is an incompetent remedy, and the party seeks to recover
a specific performance of the agreement.
3. It is a general rule, that courts of equity will entertain
jurisdiction for a specific performance of agreements, whenever
courts of law can give but an inadequate remedy; and it is
immaterial whether the subject relate to real or personal estate.
1 Madd. Ch. Pr. 295; 2 Story on Eq. §717; 1 Sim, & Stu. 607; 1
P. Wms. 570; 1 Sch. & Lef. 553; 1 Vern. 159.
4. But the rule is confined to cases where courts of law cannot
give an adequate remedy. 2 Story on Eq. §718; Eden on Inj. ch.
3, p. 27. Vide, generally, 2 Story on Eq. ch. 18, §712 to 792; 1
Supp. to Ves. jr. 96, 148, 184, 211, 495; 2 Supp. to Ves. jr.
65, 164; Fonb. Eq. b. 1, c. 1, s. 5; Sugd. Vend. 145.
SPECIFICATION, civil law. A term used in the civil law, by
which is meant a person's making a new species or subject from
materials belonging to another. Bouv. Inst. Theolo. ps. 1, c. 1,
art. 1, §4, Is. 4, p. 74.
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2. When the new species can be again reduced to the matter of
which it was made, the law considers the former mass as still
existing, and, therefore, the new species as an accessory to the
former subject; but where the thing made cannot be so reduced,
as in the case of wine, which cannot be again turned into grapes,
there is no place for the fictio juris; and, there, the
workmanship draws after it the property of the material. Inst. 2,
1, 25 Dig. 41, 1, 7, 7. See Accession; Confusion; Mixtion; and
Aso & Man. Inst. B. 2, t. 2, c. 8.
SPECIFICATION, practice, contracts. A particular and detailed
account of a thing: example, in order to obtain a patent for an
invention, it is necessary to file a specification or an
instrument of writing, which must lay open and disclose to the
public every part of the process by which the invention can be
made useful if the specification does not contain the whole truth
relative to the discovery, or contains more than is requisite to
produce the desired effect, and the concealment or addition was
made for the purpose of deception, the patent would be void; for
if the specification were insufficient on account of its want of
clearness, exactitude or good faith, it would be a fraud on
society that the patentee should obtain a monopoly without giving
up his invention. 2 Kent, Com. 300; 1 Bell's Com. part 2, c. 3,
s. 1, p. 112; Perpigna on Pat. 67; Renouard, Des Brevets d'Inv.
252.
2. In charges against persons accused of military offences,
they must be particularly described and clearly expressed; this
is called the specification. Tytl. on Courts Mart. 109.
SPECIMEN. A sample; a part of something by which the other may
be known.
2. The act of congress of July 4, 1836, section 6, requires the
inventor or discoverer of an invention or discovery to accompany
his petition and specification for a patent with specimens of
ingredients, an of the composition of matter, sufficient in
quantity for the purpose of experiment, where the invention or
discovery is of the composition of matter.
SPECULATION, contracts. The hope or desire of making a profit
by the purchase and resale of a thing. Pard. Dr. Com. n. 12. The
profit so made; as, be made a good speculation.
SPEECH. A formal discourse in public.
2. The liberty of speech is guarantied to members of the
legislature, to counsel in court in debate.
3. The reduction of a speech to writing and its publication is
a libel, if the matter contained in it is libelous; and the
repetition of it upon occasions not warranted by law, when the
matter is slanderous, wili be slander and. tho character of the
speaker will be no protection to him from an action. 1 M. & S.
273; 1 Esp. C. 226 Bouv. Inst. Index, h. t. See Debate; Liberty
of speech.
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SPELLING, The art of putting the proper letters in words.
2. It is a rule that when it appears with certainty what is
meant, bad spelling will not avoid a contract; for example,
where a man agreed to pay thirty pounds, he was held bound to pay
thirty pounds; and seutene was holden to be seventeen. Cro. Jac.
607; 10 Coke, 133, a; 2 Roll. Ab. 147.
3. Even in an indictment undertood has been holden as
understood. 1 Chit. Cr. Law.
4. A misspelling of a name in a declaration, will not be
sufficient to defeat the plaintiff, on the ground of variance
between the writing produced, and the declaration, if such name
be idem sonans; as Kay for Key. 16 East, 110; 2 Stark. 29;
Segrave for Seagrave. 2 Str. 889. See Idem Sonans.
SPENDTHRIFT. By the Rev. Stat. of Vermont, tit. 16, c. 65, s.
9, spendthrift is defined to be a person who by excessive
drinking) gaming, idleness or debauchery of any kind, shall so
spend, waste, or lessen his estate as to expose himself or his
family to want or suffering, or expose the town to charge or
expense, for support of himself or family.
SPERATE. That of which there is hope.
2. In the accounts of an executor and the inventory of the
personal assets, he should distinguish between those assets which
are sperate, and those which are desperate; he will be prima
facie responsible for the former, and discharged for the latter.
1 Chit. Pr. 520; 2 Williams Ex. 644; Toll. Ex. 248. See
Desperate.
SPES RECUPERANDI. The hope of recovery. This term is applied to
cases of capture of an enemy's property as a booty or prize. As
between the belligerent parties, the title to the property taken
as a prize passes the moment there is no longer any hope of
recovery. 2 Burr. Rep. 683. Vide Infra praesidea; Jus
Postliminy; Bopty; Piize.
SPINSTER. An addition given, in legal writings, to a woman who
never was married. Lovel. on Wills, 269.
SPLITTING A CAUSE OF ACTION. The bringing an action for only a
part of the cause of action. This is not permitted either at law
nor in equity. 4 Bouv. Inst. n. 4167.
SPOLIATION, Eng. eccl. law. The name of a suit sued out in the
spiritual court to recover for the fruits of the church, or for
the church itself. F. N. B. 85.
2. It is also a waste of church property by an ecclesiastical
person. 3 Bl. Com. 90.
SPOLIATION, torts. Destruction of a thing by the act of a
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stranger; as, the erasure or alteration of a writing by the act
of a stranger, is called spoliation. This has not the effect to
destroy its character or legal effect. 1 Greenl. Ev. §566. 2. By
spoliation is also understood the total destruction of a thing;
as, the spoliation of papers, by the captured party, is generally
regarded as proof of. guilt, but in America it is open to
explanation, except in certain cases where there is a vehement
presumption of bad faith. 2 Wheat. 227, 241; 1 Dods. Adm. 480,
486. See Alteration.
SPONSALIA, or STIPULATIO SPONSALITIA. A promise lawfully made
between persons capable of marrying each other, that at some
future time they will marry. See Espousals; Ersk. Inst. B. 1, t.
6, n. 3.
SPONSIONS, international law. Agreements or engagements made by
certain public officers, as generals or admirals, in time of war,
either without author-ity, or by exceeding the limits of
authority under which they purport to be made.
2. Before these conventions can have any binding authority on
the state, they must be confirmed by express or tacit
ratification. The former is given in positive terms and in the
usual forms; the latter is justly implied from the fact of
acting under the agreement as if bound by it, and from any other
circumstance from which an assent may be fairly presumed. Wheat.
Intern. Law, pt. 3, c. 2, §3; Grotius, de Jur. Bel. ac Pac. 1.
2, c. 15, §16; Id. 1. 3, c. 22, 1-3: Vattel, Law of Nat, B. 2,
c. 14, 209 -212; Wolff, 1156.
SPONSOR, civil law. He who intervenes for another voluntarily
and without being requested. The engagement which he enters into
is only accessory to the principal. Vide Dig. 17, 1, 18; Nov. 4,
ch. 1 Code de Com. art. 158, 159; Code Nap. 1236 Wolff, Inst.
§1556.
SPRING. A fountain.
2. The owner of the soil has the exclusive right to use a
spring arising on his grounds. When another has an easement, or
right to draw water from such a spring, acquired by grant or
prescription, if the spring fails the easement ceases, but if it
returns, the right revives.
3. The waters which flow from the spring give rise to a variety
of diffi-culties, the principal of which are, 1st. The owner of
the inheritance in which the spring arises turns their course.
The owner of the inferior estate, whose, meadow they fertilized,
and who is deprived of them, claiming the right to them. 2d. The
owner of the spring does not prevent the water from flowing on
the inferior estate, but gives them a new direction injurious to
it. 3d. The owner of the superior inheritance disposes of the
water in such a way as to deprive the owner of the estate below
him. The rights of these different owners will be separately
considered.
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4. - l. The owner of land on which there is a natural spring,
has a right to use it for domestic and culinary purposes and for
watering his cattle, and he may make an aqueduct to another part
of his land, and use all the water required to keep the aqueduct
in order, or to keep the water pure. 15 Conn. 366. He may also
use it for irrigation, provided the volume be not materially
decreased. Ang. W. C. 34. Vide Irrigation; and 1 Root, 535; 2
Watts. 327; 2 Hill, S. C. 634; Coxe, 460; 2 Dev. & Bat. 50; 9
Conn. 291; 3 Pick. 269; 13 Mass. 420; 8 Mass. 136; 8 Greenl.
253.
5. - 2. The owner of the spring cannot lawfully turn the
current or give it a new direction. He is bound to let it enter
the inferior estate on the same level it has been accustomed to,
and at the same place; for every man is entitled to a stream of
water flowing through his land, without diminution or alteration.
6 East, 206; 2 Conn. 584. Vide 3 Rawle, 84 12 Wend. 330; 10
Conn. 213; 14 Verm. 239.
6. - 3. The owner of the superior inheritance, or of the land
on which there is a spring, has no right to deprive the owner of
the estate below him; 1 Yeates, 574; 5 Pick. 175; 3 Har. &
John. 231; 12 Verm. 178; 13 Conn. 303; 3 Scam. 492; nor can
be detain the water unreasonably. 17 John. 306; 2 B. C. 910.
Vide Ham. N. P. 199; 1 Dall. 211; 3 Rawle's R. 256; Jus
Aquaeductus; Pool; Stagnum; Back Water; lrrigation, Mill;
Rain Water; Water Course.
SPRINGING USE, estates. One to arise on a future event, when no
preceding estate is limited, and does not take effect in
derogation of any preceding interest. Example: a grant is made
to A in fee, to the use of B in fee, after the fourth of July;
no use arises till the limited period. The use in the mean time
results to the grantor, who has a determinable fee. A springing
use differs from a resulting use, (q. v.) or a shifting use. (q.
v.) 4 Kent, Com. 292; Com. Dig. Uses, K 7 Wils. on Springing
Uses; Corn. on Uses, 91; 2 Bouv. Inst. n. 1889.
SPY. One who goes into a place for the purpose of ascertaining
the best way of doing an injury there.
2. The term is mostly applied to an enemy who comes into the
camp for the purpose of ascertaining its situation in order to
make an attack upon it. The punishment for, this crime is death.
See Articles of War, 1 Story's Laws U. S. 992; Vattel, Droit des
Gens. liv. 3, §179.
SQUATTER. One who settles on the lands of others without any
legal author-ity; this term is applied particularly to persons
who settle on the public land. 3 Mart. N. S. 293.
TO STAB. To make a wound with a pointed instrument; a stab
differs from a cut, (q. v.) or a wound. (q. v.) Russ. & Ry. 356;
Russ. on Cr. 597; Bac. Ab. Maihem, B.
STAGNUM, estates. A pool. It is said to consist of land and
water, and therefore by the name of stagnum, the water and the
land may be passed. Co. Litt. 5.
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STAKEHOLDER, contracts. A third person, chosen by two or more
persons, to keep in deposit property, the right or possession of
which is contested between them and to be delivered to the one
who shall establish his right to it. Thus each of them is
considered as depositing the whole thing. This distin-guishes
this contract from that which takes place when two or more
tenants in common deposit a thing with a bailee. Domat, Lois Civ.
liv. 1, t. 7, s. 4; 1 Vern. R. 44, n. 1.
2. A person having in his hands money or other property claimed
by several others, is considered in equity as a stakeholder. 1
Vern. R. 144.
3. The duties of a stakeholder are to deliver the thing holden
by him to the person entitled to it on demand. It is frequently
questionable who is entitled to it. In case of an unlawful wager,
although be may be justified for delivering the thing to the
winner, by the express or implied consent of the loser; 8, John.
147; yet if before the event has happened he has been required
by either party to give up the thing deposited with him by such
party, he is bound so to deliver it; 3 Taunt. 377; 4 Taunt.
492; or if, after the event has happened, the losing party give
notice to the stakeholder not to pay the winner, a payment made
to him afterwards will be made in his own wrong, and the party
who deposited the money or thing may recover it from the
stakeholder. 16 S. & R. 147; 7 T. R. 536; 8 T. R. 575; 4
Taunt. 474; 2 Marsh. 542. See 3 Penns. R. 468; 4 John. 426; 5
Wend. 250; 2 P. A. Browne, 182; 1 Bailey, 486, 503. See Wagers.
STALE DEMAND. A stale demand is a claim which has been for a
long time undemanded; as, for example, where there his been a
delay of twelve years, unexplained. 3 Mason, 161.
STAMP, revenue. An impression made on paper, by order of the
government, which must be used in reducing certain contracts to
writing, for The purpose of raising a revenue. Vide Stark. Ev. h.
t.; 1 Phil. Ev. 444.
2. Maryland is the only state in the United States that has
enacted a stamp.
TO STAND. To abide by a thing; to submit to a decision; to
comply with an agreement; to have validity, as the judgment must
stand.
STAND SEISED TO USES. This phrase is frequently used in
relation to conveyances under the statute of uses. A covenant to
stand seised to uses is a species of conveyance which derives its
effect from the statute of uses, by which a man, seised of lands,
covenants, in consideration of blood or marriage, that he will
stand seised of the same, to the use of his child, wife, or
kinsman, for life, in tail or in fee. 2 Bouv. Inst. n. 2080.
STANDARD, in war. An ensign or flag used in war.
STANDARD, measure. A weight or measure of certain dimensions,
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to which all other weights and measures must correspond; as, a
standard bushel. Also the quality of certain metals, to which all
others of the same kind ought to be made to conform; as,
standard gold, standard silver. Vide Dollar; Eagle; Money.
STAPLE, intern. law. The right of staple as exercised by a
people upon foreign merchants, is defined to be, that they may
not allow them to set their merchandises and wares to sale but in
a certain place.
2. This practice is not in use in the United States. 1 Chit.
Com. Law, 103; 4 Inst. 238; Malone, Lex Mere. 237; Bac. Ab.
Execution, B 1. Vide Statute Staple.
STAR CHAMBER, Eng. law. A court which formerly had great
jurisdiction and power, but which was abolished by stat. 16, C.
I., c. 10, on account of its usurpations and great unpopularity.
It consisted of several of the lords spir-itual and temporal,
being privy counsellors, together with two judges of the courts
of common law, without the intervention of a jury. Their legal
jurisdiction extended over riots, perjuries, mishehaviour of
public officers, and other great misdemeanors. The judges
afterwards assumed powers, and stretched those they possessed to
the utmost bounds of legality. 4 Bl. Com. 264.
STARE DECISIS. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by
decision, it forms a precedent which is not afterwards to be
departed from. The doctrine of stare decisis is not always to be
relied upon, for the courts find it necessary to overrule cases
which have been hastily decided, or contrary to principle. Many
hundreds of such overruled cases may be found in the American and
English books of reports. Mr. Greenleaf has made a collection of
such cases, to which the reader is referred. Vide 1 Kent, Com.
477; Livingst. Syst. of Pen. Law, 104, 5.
STARE IN JUDICIO. The act of appearing before a tribunal,
either as plaintiff or defendant. Vide Ester en jugement.
STATE, government. This word is used in various senses. In its
most enlarged sense, it signifies a self-sufficient body of
persons united together in one community for the defence of their
rights, and to do right and justice to foreigners. In this sense,
the state means the whole people united into one body politic;
(q. v.) and the state, and the people of the state, are
equivalent expressions. 1 Pet. Cond. Rep. 37 to 39; 3 Dall. 93;
2 Dall. 425; 2 Wilson's Lect. 120; Dane's Appx. §50, p. 63 1
Story, Const. §361. In a more limited sense, the word 'state'
expresses merely the positive or actual organization of the
legislative, or judicial powers; thus the actual government of
the state is designated by the name of the state; hence the
expression, the state has passed such a law, or prohibited such
an act. State also means the section of territory occupied by a
state, as the state of Pennsylvania.
2. By the word state is also meant, more particularly, one of
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the commonwealths which form the United States of America. The
constitution of the United States makes the following provisions
in relation to the states.
3. Art. 1, s. 9, §5. No tax or duty shall be laid on articles
exported from any state. No preference shall be given by any
regulation of commerce or revenue to the ports of one state over
those of another, nor shall vessels bound to or from one state be
obliged to enter, clear, or pay duties in another.
4. - §6. No money shall be drawn from the treasury but in
consequence of appropriations made by law; and a regular
statement and account of the receipts and expenditures of all
public money shall be published from time to time.
5. - §7. No title of nobility shall be granted by the United
States, and no person holding any office of profit or trust under
them shall, without the consent of congress, accept of any
present, emolument, office, or title of any kind whatever, from,
any king, prince, or foreign state.
6. - Art. 1, s. 10, §1. No state shall enter into any treaty,
alliance, or confederation; grant letters of marque and
reprisal; coin money; emit bills of credit; make anything but
gold and silver coin a tender in payments of debts; pass any
bill of attainder, ex post facto, or law impairing the obligation
of contracts; or grant any title of nobility.
7. - §2. No state shall, without the consent of congress, lay
any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws; and the
net produce of all duties and imposts laid by any state on
imports or exports shall be for the use of the treasury of the
United States, and all such laws shall be subject to the revision
and control of congress. No state, shall, without the consent of
congress, lay any duty on tonnage, keep troops or ships of war in
time of peace, enter into any agreement or compact with another
state, or with a foreign power, or engage in war, unless actually
invaded, or in such imminent danger as will not admit of delay.
8. The district of Columbia and the territorial districts of
the United States, are not states within the meaning of the
constitution and of the judiciary act, so as to enable a citizen
thereof to sue a citizen of one of the states in the federal
courts. 2 Cranch, 445; 1 Wheat. 91.
9. The several states composing the United States are sovereign
and independent, in all things not surrendered to the national
government by the constitution, and are considered, on general
principles, by each other as foreign states, yet their mutual
relations are rather those of domestic independence, than of
foreign alienation. 7 Cranch, 481; 3 Wheat. 324; 1 Greenl. Ev.
§489, 504. Vide, generally, Mr. Madison's report in the
legislature of Virginia, January, 1800; 1 Story's Com. on Const.
§208; 1 Kent, Com. 189, note b; Grotius, B. 1, c. 1, s. 14;
Id. B. 3, c. 3, s. 2; Burlamaqui, vol. 2, pt. 1, c. 4, s. 9;
Vattel, B. 1, c. 1; 1 Toull. n. 202, note 1 Nation; Cicer. de
Repub. 1. 1, s. 25.
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STATE, condition of persons. This word has various
acceptations. If we inquire into its origin, it will be found to
come from the Latin status, which is derived from the verb stare,
sto, whence has been made statio, which signifies the place where
a person is located, stat, to fulfil the obligations which are
imposed upon him.
2. State is that quality which belongs to a person in society,
and which secures to, and imposes upon him different rights and
duties in consequence of the difference of that quality.
3. Although all men come from the hands of nature upon an
equality, yet there are among them marked differences. It is from
nature that come the distinctions of the sexes, fathers and
children, of age and youth, &c.
4. The civil or municipal laws of each people, have added to
these natural qualities, distinctions which are purely civil and
arbitrary, founded on the manners of the people, or in the will
of the legislature. Such are the differences, which these laws
have established between citizens and aliens, between magistrates
and subjects, and between freemen and slaves; and those which
exist in some countries between nobles and plebeians, which
differences are either unknown or contrary to natural law.
5. Although these latter distinctions are more particularly
subject to the civil or municipal law, because to it they owe
their origin, it nevertheless extends its authority over the
natural qualities, not to destroy or to weaken them, but to
confirm them and to render them more inviolable by positive rules
and by certain maxims. This union of the civil or municipal and
natural law, form among men a third species of differences which
may be called mixed, because they participate of both, and derive
their principles from nature and the perfection of the law; for
example, infancy or the privileges which belong to it, have their
foundation in natural law; but the age and the term of these
prerogatives are determined by the civil or municipal law.
6. Three sorts of different qualities which form the state or
condition of men may then be distinguished: those which are
purely natural, those purely civil, and those which are composed
of the natural and civil or municipal law. Vide 3 Bl. Com. 396;
1 Toull. n. 170, 171; Civil State.
TO STATE. To make known specifically; to explain particularly;
as, to state an account, or to show the different items of an
account; to state the cause of action in a declaration.
STATEMENT, pleading and in practice. In the courts of
Pennsylvania, by the act to regulate arbitrations and proceedings
in courts of justice, passed March 21, 1806, 4 Smith's Laws of
Penn. 828, it is enacted, "that in all cases where a suit may be
brought in any court of record for the recovery of any debt
founded on a verbal promise, book account, note, bond, penal or
single bill, or all or any of them, and which from the amount
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thereof may not be cognizable before a justice of the peace, it
shall be the duty of the plaintiff, either by himself, his agent
or attorney, to file in the office of the pro-thonotary a
statement of his, her or their demand, on or before the third day
of the term to which the process issued is returnable,
particularly specifying the date of the promise, book account,
note, bond, penal or single bill or all or any of them, on which
the demand is founded, and the whole amount which he, she, or
they believe is justly due to him, her or them from the
defendant."
2. This statement stands in the place of a declaration, and is
not restric-ted to any particular form; 3 Serg. & Rawle, 406;
it is an immethodical declaration, stating in substance the time
of the contract, the sum, and on what founded, with (what is an
important principle in a statement, 6 Serg. & Rawle, 21,) a
certificate of the belief of the plaintiff or his agent, of what
is really due. Serg. & Rawle, 28. See 6 Serg. & Rawle, 53; 8
Serg. & Rawle, 567; 2 Serg. & Rawle, 537; 2 Browne's R. 40; 8
Serg. & R. 316.
STATES. By this name are understood in some countries, the
assembly of the different orders of the people to regulate the
affairs of the commonwealth, as, the states general.
STATION, civil law. A place where ships may ride in safety.
Dig. 49, 12, 1, 13; id. 50, 15, 59.
STATING-PART OF A BILL, chancery practice. That part of a bill
which contains a narrative of the facts and circumstances of the
plaintiff's case, and the wrong or grievance of which he
complains, and the names of the persons by whom done, and against
whom he seeks redress, is called the stating part of the bill.
Bart. Suit in Eq. 27; Coop. Eq. Pl. 9; Story, Eq. Pl. §27.
STATU LIBERI, in Louisiana. Slaves for a time, who have
acquired the right of being free at a time to come, or on a
condition which is not fulfilled, or in a certain event which has
not happened, but who, in the mean time, remain in a state of
slavery. Code, art. 37. See 8 M. R. 219; 3 L. R. 176; 6 L. R.
571; 4 N. S. 102; 7 N. S. 351. This is substantially the
definition of the civil law. Hist. de la Jur. 1. 40; Dig. 40, 7,
1; Code, 7, 2, 13.
STATUS. The condition of persons. It also means estate, because
it signifies the condition or circumstances in which the owner
stands with regard to his property. 2 Bouv. Inst. n. 1689.
STATUTE. The written will of the legislature, solemnly
expressed according to the forms prescribed in the constitution;
an act of the legislature.
2. This word is used in contradistinction to the common law.
Statutes acquire their force from the time of their passage
unless otherwise provided. 7 Wheat. R. 104: 1 Gall . R. 62.
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3. It is a general rule that when the provision of a statute is
general, everything which is necessary to make such provision
effectual is supplied by the common law; Co. Litt. 235; 2 Inst.
222; Bac. Ab. h. t. B; and when a power is given by statute,
everything necessary for making it effectual is given by
implication: quando le aliquid concedit, concedere videtur et id
pe quod devenitur ad aliud. 12 Co. 130, 131 2 Inst. 306.
4. Statutes are of several kinds; namely, Public or private.
1. Public statutes are those of which the judges will take notice
without pleading; as, those which concern all officers in
general; acts concerning trade in general or any specific trade;
acts concerning all persons generally. 2. Private acts, are those
of which the judges wiil not take notice without pleading; such
as concern only a particular species, or person; as, acts
relating to any particular place, or to several particular
places, or to one or several particular counties. Private
statutes may be rendered public by being so declared by the
legislature. Bac. Ab. h. t. F; 1 Bl. Com. 85. Declaratory or
remedial. 1. A declaratory statute is one which is passed in
order to put an end to a doubt as to what the common law is, and
which declares what it is, and has ever been. 2. Remedial
statutes are those which are made to supply such defects, and
abridge such superfluities in the common law as may have been
discovered. 1 Bl. Com. 86. These remedial statutes are themselves
divided into enlarging statutes, by which the common law is made
more comprehensive and extended than it was before; and into
restraining statutes, by which it is narrowed down to that which
is just and proper. The term remedial statute is also applied to
those acts which give the party injured a remedy, and in some
respects those statutes are penal. Esp. Pen. Act. 1.
6. Temporary or perpetual. 1. A temporary statute is one which
is limited in its duration at the time of its enactment. It
continues in force until the time of its limitation has expired,
unless sooner repealed. 2. A perpetual statute is one for the
continuance of which there is no limited time, although it be not
expressly declared to be so. If, however, a statute which did not
itself contain any limitation, is to be governed by another which
is temporary only, the former will also be temporary and
dependent upon the existence of the latter. Bac. Ab. h. t. D.
7. Affirmative or negative. 1. An affirmative statute is one
which is enacted in affirmative terms; such a statute does not
take away the common law. If, for example, a statute without
negative words, declares that when certain requisites shall have
been complied with, deeds shall, have in evidence a certain
effect, this does not prevent their being used in evidence,
though the requisites have not been complied with, in the same
manner as they might have been before the statute was passed. 2
Cain. R. 169. 2. A negative statute is one expressed in negative
terms, and so controls the common law, that it has no force in
opposition to the statute. Bro. Parl. pl. 72; Bac. Ab. h. t. G.
8. Penal statutes are those which order or prohibit a thing
under a certain penalty. Esp. Pen. Actions, 5 Bac. Ab. h. t. I,
9. Vide, generally, Bac. Ab. h. t.; Com. Dig. Parliament; Vin.
Ab. h. t.; Dane's Ab. Index, h. t.; Chit. Pr. Index, h. t.; 1
Kent, Com. 447-459; Barrington on the Statutes, Boscaw. on Pen.
Stat.; Esp. on Penal Actions and Statutes.
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9. Among the civilians, the term statute is generally applied
to all sorts of laws and regulations; every provision of law
which ordains, permits, or prohibits anything is a statute
without considering from what source it arises. Sometimes the
word is used in contradistinction to the imperial Roman law,
which, by way of eminence, civilians call the common law. They
divide statutes into three classes, personal, real and mixed.
10. Personal statutes are those which have principally for
their object the person, and treat of property only incidentally;
such are those which regard birth, legitimacy, freedom, the fight
of instituting suits, majority as to age, incapacity to contract,
to make a will, to plead in person, and the like. A personal
statute is universal in its operation, and in force everywhere.
11. Real statutes are those which have principally for their
object, property, and which do not speak of persons, except in
relation to property; such are those which concern the
disposition, which one may make of his property either alive or
by testament. A real statute, unlike a personal one, is confined
in its operation to the country of its origin.
12. Mixed statutes are those which concern at once both persons
and property. But in this sense almost all statutes are mixed,
there being scarcely any law relative to persons, which does not
at the same time relate to things. Vide Merl. Repert. mot Statut;
Poth. Cout. d'Orleans, ch. 1; 17 Martin's Rep. 569-589; Story's
Confl. of Laws, §12, et seq.; Bouv. Inst. Index, h. t.
STATUTE MERCHANT, English law. A security entered before the
mayor of London, or some chief warden of a city, in pursuance of
13 Ed. 1. stat. 3, c. 1, whereby the lands of the debtor are
conveyed to the creditor, till out of the rents and profits of
them, his debt may be satisfied. Cruise, Dig. t. 14, s. 7; 2 Bl.
Com. 160.
STATUTES STAPLE, English law. The statute of the staple, 27 Ed.
HI. stat. 2, confined the sale of all commodities to be exported
to certain towns in England, called estaple or staple, where
foreigners might resort. It authorized a security for money,
commonly called statute staple, to be taken by traders for the
benefit of commerce; the mayor of the place is entitled to take
a recognizance of a debt, in proper form, which has the effect to
convey the lands of the debtor to the creditor, till out of the
rents and profits of them he may be satisfied. 2 Bl. Com. 160;
Cruise, Dig. tit. 14, s. 10; 2 Rolle's Ab. 446; Bac. Ab.
Execution, B. 1 4 Inst. 238.
STATUTI, Rom. civ. law. From Constantine to Justinian,
advocates, were arranged in two classes: viz. those called
Statuti, and the supernumeraries. (q. v.) The Statute were those
advocates whose names were inscribed in the registers of
matriculation, and formed a part of the college of advocates. The
number of advocates of this class was limited. See Calvini Lex ad
vocem.
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STAY OF EXECUTION, practice. A term during which no execution
can issue on a judgment.
2. It is either conventional, when the parties agree that no
execution shall issue for a certain period; or it is granted by
law, usually on condition of entering bail or security for the
money.
3. An execution issued before the expiration of the stay is
irregular and will be set aside; and the plaintiff in such case
may be liable to an action for damages. What is said above refers
to civil cases.
4. In criminal cases when a woman is capitally convicted, and
she is proved to be enceinte, (q. v.) there shall be a stay of
execution till after her delivery. Vide Pregnancy.
STAYING PROCEEDINGS. The suspension of an action.
2. Proceedings are stayed absolutely or conditionally.
3. - 1. They are peremptorily stayed when the plaintiff is
wholly incapaci-tated from suing; as, for example, when the
plaintiff is not the holder, nor beneficially interested in a
bill on which he has brought his action; 2 Cr, & M. 416; 2
Dowl. 336; Chitty on Bills, 335; 3 Chitty, Pr. 628; or when
the plaintiff admits in writing, that he has no cause of action;
3 Chit. Prac. 370, 630; or when an action is brought contrary to
good faith. Tidd's Prac. 515, 529, 1134; 3 Chit. Pr. 633.
4. - 2. Proceedings are sometimes stayed until some order of
the court shall have been complied with; as, when the plaintiff
resides in a foreign country, or in another estate, or is
insolvent, and he has been ruled to give security for costs, the
proceedings are stayed until such security shall be given; see
Security for Costs; 3 Chit. Pr, 633, 635; or until the payment
of costs in a, former action. 1 Chit. R. 195; 18 E. C. L. R. 64.
STEALING. This term imports, ex vi termini, nearly the same as
larceny; but in common parlance, it does not always import a
felony; as, for example, you stole an acre of my land.
2. In slander cases, it seems that the term stealing takes its
complexion from the subject-matter to which it is applied, and
will be considered as intended of a felonious stealing, if a
felony could have been committed of such subject-matter. Stark.
on Slan. 80; 12 Johns. Rep. 239; 3 Binn. R. 546; Whart. Dig.
tit. Slander.
STELLIONATE, civil law. A name given generally, to all species
of frauds committed in making contracts.
2. This word is said to be derived from the Latin stellio, a
kind of lizard remarkable for its cunning and the change of its
color, because those guilty of frauds used every art and cunning
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to conceal them. But more particularly it was the crime of a
person who fraudulently assigned, sold, or engaged the thing
which he had before assigned sold, or engaged to another, unknown
to the person with whom be was dealing. Dig. 47, 20, 3; Code, 9,
34, 1; Merl. Repert. h. t.; Code Civil, art. 2069; 1 Bro. Civ.
Law, 426.
3. In South Carolina and Georgia, a mortgagor who makes a
second mortgage without disclosing in writing, to the second
mortgagee, the existence of the first mortgage, is not allowed to
redeem and, in the foraier state, when a person suffers a
judgment, or enters into a statute or recognizance binding his
land, afterwards mortgages it, without giving notice, in writing,
of the prior incumbrance, he shall not be allowed to redeem,
unless, within six months from a written demand, he discharges
such incumbrauce. Prin. Dig. 161; 1 Brev. Dig. 166-8.
4. In Ohio a fraudulent conveyance is punished as a crime;
Walk. Intr. 350; and, in Indians, any party to a fraudulent
conveyance is subjected to a flue and to double damages. Ind.
Rev. Laws, 189. See 12 Pet. 773.
STEP-DAUGHTER. In Latin privigna, is the daughter of one's
wife, or of one's hushand.
STEP-FATHER. In Latin vitricus, is the hushand of one's mother
who is not the father of the person spoken of.
STEP-MOTHER. In Latin noverca, is the wife of one's father, who
is not the mother of the person spoken of.
STEP-SON. In Latin privignus, is the son of one's wife, or of
one's hushand.
STERE. A French measure of solidity used in measuring wood. It
is a cubic metre. Vide Measure.
STERILITY. Barrenness; incapacity to produce a child. It is
curable and incurable; when of the latter kind, at the time of
the marriage, and arising from impotency, it is a good cause for
dissolving a marriage. 1 Fodere, Med. Leg. §254. See Impotency.
STERLING. Current money of Great Britain, but anciently a small
coin, worth about one penny; and so called, as some suppose,
because it was stamped with the figure of a small star, or, as
others suppose, because it was first stamped in England in the
reign of King John, by merchants from Germany called Esterlings.
Pounds sterling, originally signified so many pounds in weight of
these coins. Thus we find in Matthew Paris, A.D. 1242, the
expression "Accepit a rege pro stipendio tredecim libras
esterlingorum." The secondary or derived sense is a certain value
in current money, whether in coins or other currency. Lowndes,
14. Watts' Gloss. Ad verbum.
STET PROCESSUS, practice. An order made, upon proper cause
shown, that the process remain stationary. As where a defendant
having become insolvent would, by moving judgment in the case of
nonsuit, compel a plaintiff to proceed, the court will, on an
affidavit, of the fact of insolvency, award a stet proces-sus.
See 7 Taunt. Rep. 180, 1 Chit. Rep. 738; 10 Wentw. Pl. 43.
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STEVEDORE. A person employed in loading and unloading vessels.
Dunl. Adm. Pr. 98. Vide Arrameurs; Sac
STEWARD OF ALL ENGLAND. Seneschallus totius Angliae. An officer
among the English who was invested with various powers, and,
among others, it was his duty to preside on the trial of peers.
STEWS, Eng. law., Places formerly permitted in England to women
of professed lewdness, and who, for hire, would prostitute their
bodies to all comers.
2. These places were so called because the dissolute persons
who visited them prepared themselves by bathing; the word stews
being derived from the old French estuves, stove, or hot bath. 3
Inst. 205.
STILLICIDIUM, civ. law. The rain water that falls from the roof
or eaves of a house by scattered drops. When it is gathered into
a spout it is called flumen.
2. Without the constitution of one or other of these
servitudes, no proprietor can build so as to throw the rain that
falls from his house directly on his neighbor's grounds; for it
is a restriction upon all property, nemo pro-test immitere in
alienum; and he who in building breaks through that res-traint,
truly builds on another man's property; because to whomsoever
the area belong's, to him also belongs whatever is above it:
cujus est solum, ejas est usque ad caelum. 3 Burge on the Conf.
of Laws, 405. Vide Servitus Stillicidii. Inst. 3, 2, 1; Dig. 8,
2, 2.
STINT, Eng. law. The proportionable part of a man's cattle,
which he may keep upon the common.
2. To use a thing without stint, is to use it without limit.
STIPULATED DAMAGES, contracts. The sum agreed by the parties to
be paid, on a breach of a contract, by the party violating his
engagement to the other.
2. It is difficult to distinguish, in some cases, between
stipulated damages and a penalty; (q. v.) 3 Chitty's Commer.
Law, 627; 2 Bos. & Pull. 346. The effect of inserting stipulated
damages, either at law or equity, a pears to be, that both
parties must abide by the stipulation, and the prescribed sum
must be given. Holt, C. N. P. 46 Newl. Contr. 313; see 5 Taunt.
Rep. 247. Vide Damages, Liquidated.
STIPULATION, contracts. In the Roman law, the contract of
stipulation was made in the following manner, namely; the person
to whom the promise was to be made, proposed a question to him
from whom it was to proceed, fully expressing tho nature and
extent of the engagement and, the question so proposed being
answered in the affirmative, the obligation was complete.
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2. It was essentially necessary that both parties should speak,
(so that a dumb man could not enter into a stipulation) that the
person making the promise should answer conformably to the
specific question, proposed, without any material interval of
time, and with the intention of contracting an obligation.
3. From the general use of this mode of contracting, the term
stipulation has been introduced into common parlance, and, in
modern language, frequently refer's to any thing which forms a
material article of an agreement; though it is applied more
correctly and more conformably to its original meaning to denote
the insisting upon and requiring any particular engagement. 2
Evans' Poth. on Oblig. 19.
4. In this contract the Roman law dispensed with an actual
consideration. See, generally, Pothier, Oblig. P. 1, c. 1, s. 1,
art. 5.
5. In the admiralty courts, the first process is freq uently to
arrest the defendant, and then they take the recognizances or
stipulation of certain fide jussors in the nature of bail. 3 Bl.
Comm. 108; vide Dunlap's Adm. Practice, Index, h. t.
6. These stipulations are of three sorts, namely: l. Judicatum
solvi, by which the party is absolutely bound to pay such sum as
may be adjudged by the court. 2 De judico sisti, by which he is
bound to appear from time to time, during the pendency of the
suit, and to abide the sentence. 3. De ratio, or De rato, by
which he engages to ratify the acts of his proctor: this
stipulation is not usual in the admiralty courts of the United
States.
7. The securities are taken in the following manner, namely:
1. Cautio fide jussoria, by sureties. 2. Pignoratitia; by
deposit. 3. Juratoria, by oath: this security is given when the
party is too poor to find sureties, at the discretion of the
court. 4. Aude promissoria, by bare promise: this security is
unknown in the admiralty courts of the United States. Hall's Adm.
Pr. 12; Dunl. Adm. Pr. 150, 151. See 17 Am. Jur. 51.
STIRPES, descents. The root, stem, or stock of a tree.
Figuratively, it signifies, in law, that person from whom a
family is descended, and also the kindred or family.
2. It is chiefly used in estimating the several interests of
the different kindred, in the distribution of an intestate's
estate. 2 Bl. Com. 517 and vide Descent; Line.
STOCK, mer. law. The capital of a merchant tradesman, or other
person including his merchandise, money and credits. In a
narrower sense it signifies only the goods and wares he has for
sale and traffic. The capital of corporations is also called
stock; this is usually divided into shares of a definite value,
as one hundred dollars, fifty dollars per share.
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2. The stock held by individuals in corporations is generally
considered as personal property. 4 Dane's Ab. 670; Sull. on
Land. Titl. 71; Walk. Introd. 211; 1 Hill, Ab. 1 8.
STOCK, descents. This is a metaphorical expression which
designates, in the genealogy of a family, the person from whom
others are descended: those persons who have so descended are
called branches. Vide 1 Roper on Leg. 103; 2 Suppl. to Ves. 307
and Branch; Descent Line; Stirpes.
STOCKS, crim. law. A machine commonly made of wood, with boles
in it, in which to confine persons accused of or guilty of a
crime.
2. It was used either to confine unruly offenders by way of
security, or convicted criminals for punishment.
3. This barbarous punishment has been generally abandoned in
the United States.
STOPPAGE IN TRANSITU, contracts. This is the name of that act
of a vendor of goods, upon a credit, who, on learning that the
buyer has failed, resumes the possession of the goods, while they
are in the hands of a carrier or middle-man, in their transit to
the buyer, and before they get, into his actual possession.
2. The subject will be considered with reference to, 1. The
person who has a right to stop goods in transitu. 2. The property
whicli may be stopped. 3. The time when to be stopped. 4. The,
manner of stopping. 5. The failure of the buyer. 6. The effect of
stopping.
3. - 1. The right of stopping property in transitu is confined
to cases in which the consignor is substantially the seller; and
does not extend to a mere surety for the price, nor to any person
who does not rest his claim on a proprietor's right. 6 East, R.
371; 4 Burr. 2047; 3 T. R. 119, 783; 1 Bell's Com. 224.
4. - 2. The property stopped must be personal property actually
sold or bartered, on a credit. 2 Dall. 180; 1 Yeates, 177.
5. - 3. It must be stopped during the transit, and while
something remains to be done to complete the delivery; for the
actual or symbolical, delivery of the goods to the buyer puts an
end to the right of the seller to stop the goods in transitu; 3
T. R. 464; 8 T. R. 199; but it has been decided that if, before
delivery, the seller annex a condition that security, shall be
given before taking possession; or that the price shall be paid
in ready money; or that a bill shall be delivered; the property
will not pass by the mere act of the buyer's attaining the
possession. 3 Esp. Rep. 58., When the seller has given the buyer
documents sufficient to transfer the property, and the buyer,
upon the strength of such documents, has sold the goods to a bona
fide purchaser without notice, the seller is divested of his
rights 2 W. C. C. R. 283; but a resale by the buyer does not, of
itself, and without other circumstances, destroy the vendor's
right of stoppage in transitu. 6 Taunt. R. 433 Vide Delivery;
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and 1 Rawle's R. 9; 1 Ashm. R. 103; Harr. Dig. Sale, III. 4; 7
Taunt. R. 59; 2 Marsh. R. 366; Holt's R. 248; 1 Moore's R.
526; 3 B. & P. 320; Id. 119; 5 East, R. 175.
6. - 4 The manner of stopping the goods is usually by taking
corporal possession of them; but this is not the only way it may
be done; the seller may put in his claim or demand of his right
to the goods either verbally or in writing. 2 B. & P. 257, 462;
2 Esp. R. 613; Co. Bankr. Law, 494; Holt's Cases, N. B. 338.
Vide Corporal Touch.
7. - 5. The buyer must have actually failed, or be in actual
and immediate danger of insolvency.
8. - 6. The stopping of goods in transitu does not of itself
rescind the contract. 1 Atk. 245; Co. B. L. 394; 6 East, R. 27,
n. The seller may, therefore, upon offering to deliver them,
recover the price. 1 Campb. 109; 6 Taunt. 162. But inasmuch as
the seller is permitted in equity to annul the transfer he has
made, by stopping the goods on their transit, and by that means
to deprive the general creditors of the buyer of property, which,
in strict law, has passed to their debtor, it has been considered
as equitable, on the other hand, that this act should be
accompanied by a rescinding of the whole contract, and a
renunciation of any further claim; since it would be a great
bardship to give a preference to the seller over, the other
creditors; and subject the divisible funds, which have derived
no benefit from the contract, to a further claim of
indemnification. 1 Bell's Com. B. 2, pt. 3, c. 2, s. 2, §5.
Vide, generally, 2 Kent, Com. 427; Bac. Abr. Merchant, L;
Ross on Vend., Index, h. t. Selw. N. P. 1206; Whitaker on
Stoppage in Transitu; Abbott on Ship. 351; 3 Chit. Com. Law,
340; Chit. on Contr. 124-126; 2 Com. Dig. 268; 8 Com. Dig.
952; 2 Supp. to Ves. jr. 231, 481; 2 Leigh's N. P. 1472; 1
Bouv. Inst. n. 959-65.
STORES. the victuals and provisions collected together for the
subsistence of a ship's company, of a camp, and the like.
STOUTHRIEFF, Scotch law. Formerly this word included in its
signification every species of theft, accompanied with violence
to the person; but of late years it has become the vox signata
for forcible and masterful depredation within or near the
dwelling house; while robbery has been more particularly applied
to violent depredation on the highway, or accompanied by
house-breaking. Alison, Princ. Cr. Law of Scot]. 227.
STOWAGE, mar. law. The proper arrangement in a ship, of the
different articles of which a cargo consists, so that they may
not injure each other by friction, or be damaged by the leakage
of the ship.
2. The master of the ship is bound to attend to the stowage,
unless, by custom or agreement, this business is to be performed
by persons employed by the mercbant. Abbott on Shipp. 228;
Pardes. Dr. Com. n. 721.
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STRANDING, maritime law. The running of a ship or other vessel
on shore; it is either accidental or voluntary.
2. It is accidental where the ship is driven on, shore by the
winds and waves; it is voluntary where she is run on shore,
either to preserve her from a worse fate, or for some fraudulent
purpose. Marsh. Ins. B. 1, c. 12, s. 1.
3. It is of great consequence to define accurately what shall
be deemed a stranding, but this is no easy matter. In one case a
ship having run on some wooden piles, four feet under water,
erected in Wisheach river, about nine yards from shore, which
were placed there to keep up the banks of the river, and having
remained on these piles until they were cut away, was considered
by Lord Kenyon to have been stranded. Marsh. Ins. B. 7, s. 3 . In
another case, a ship arrived in the river Thames, and, upon
coming up to the Pool, which was full of vessels, one brig ran
foul of her bow, and another of her stern, in consequence of
which she was driven aground, and continued in that situation an
hour, during which period several other vessels ran foul of her;
this, Lord Kenyon told the jury, that unskilled as he was in
nautical affairs, he thought he could safely pronounce to be no
stranding. lb.; 1 Camp. 131; 3 Camp. 431; 4 M. & S. 503; 7 B.
& C. 224; 5 B. & A. 225; 4 B. & C. 736. See Perils of the Sea.
STRANGER, persons, contracts. This word has several
significations. 1. A person born out of the United States; but
in this sense the term alien is more properly applied, until he
becomes naturalized. 2. A person who is not privy to an act or
contract; example, he who is a stranger to the issue, shall not
take advantage of the verdict. Bro. Ab. Record, pl. 3; Vin. Ab.
h. t. pl. 1 and vide Com. Dig. Abatement, H 54.
2. When a man undertakes to do a thing, and a stranger
interrupts him, this is no excuse. Com. Dig. Condition, L 14.
When a party undertakes that a stranger shall do a certain thing,
he becomes liable as soon as the stranger refuses to perform it.
Bac. Ab. Conditions, Q 4.
STRATAGEM. A deception either by words or actions, in times of
war, in order to obtain an advantage over an enenly.
2. Such stratagems, though contrary to morality, have been
justified, unless they have been accompanied by perfidy,
injurious to the rights of humanity, as in the example given by
Vattel of an English frigate, which during a war between France
and England, appeared off Calais and made signals of distress in
order to allure some vessel to come to its relief, and seized a
shallop and its crew, who had generously gone out to render it
assistance. Vattel, Droit des Gens, liv. 3, c. 9, §178.
3. Sometimes stratagems are employed in making, contracts, this
is unlawful and fraudulent, and avoids the contract. See Fraud.
STRATOCRACY. A military government; government by military
chiefs of an army.
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STREAM. A current of water. The right to a water course is not
a right in the fluid itself so much as a right in the current of
the stream. 2 Bouv. Inst. n. 1612. See River; Water Course.
STREET. A road in a village or city. In common parlance the
word street is equivalent to highway. 4 Serg. & Rawle, 108.
2. A permission to the public for the space of eight, or even
of six years, to use a street without bar or impediment, is
evidence from which a dedication to the public maybe inferred. 11
East, R. 376; See 2 N. Hamp. 513; 4 B. & A. 447; 3 East, R.
294; 1 Law lntell. 134; 2 Smith's Lead. Cas. 94, n.; 2 Pick.
R. 162; 2 Verm. R. 480; 5 Taunt. R. 125; S. C. 1 E. C. L. R.
34; 4 Camp. R. 169; 1 Camp. R. 260: 7 B. & C. 257; S. C. 14
E. C. L. R. 39; 5 B & Ald. 454; S. C. 7 E. C. L. R. 159; 1
Blackf. 44; 2 Wend. 472; 8 Wend. 85; 11 Wend. 486; 6 Pet.
431; 1 Paige, 510; and the article Dedication.
STRICT SETTLEMENT. When lands are settled to the parent for
life, and after his death to his first and other sons in tail,
and trustees are interposed to preserve the contingent
remainders, this is called a strict settlement.
STRICTISSIMI JURIS. The most strict right or law. In general,
when a person receives an advantage, as the grant of a license,
he is bound to conform strictly to the exercise of the rights
given him by it, and in case of a dispute, it will be strictly
construed. See 3 Story, Rep. 159.
STRICTUM JUS. This phrase is used to denote mere law, in
contradistinction to equity.
STRUCK, pleadings. In an indictment for murder, when the death
arises from any woundng, beating or bruising, it is said, that
the word "struck" is essential. 1 Bulstr. 184; 5 Co. 122; 3
Mod. 202; Cro. Jac. 655; Palm. 282; 2 Hale, 184, 6, 7: Hawk.
B. 2, c. 23, s. 82; 1 Chit. Cr. Law, *243 6 Binn. R. 179.
STRUCK JURY. A special jury selected by striking from the
pannel of jurors, a certain number by each party, so as to leave
a number required by law to try the cause. In general, a list of
forty-eight jurors is made out for each case; the plaintiff
strikes off twelve, aud the defendant the same number from those
who remain twelve are to be selected to try the cause, unless
they are challenged for cause. See Challenge.
STRUCK OFF. A case is said to be struck off, where the court
has no jurisdiction, aud can give no judgment, and order that the
case be taken off the record, which is done by an entry to that
effect.
STRUMPET. A harlot, or courtezan: this word was formerly used
as an addition. Jacob's Law Dict. h. t.
TO STULTIFY. To make or declare insane. It is a general rule in
the English law, that a man shall not be permitted to stultify
himself; that is, he shall not be allowed to plead his insanity
to avoid a contract. 2 Bl. Com. 291; Fonbl. Eq. b. 1, c. 2, 1;
Pow. on Contr. 19.
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2. In the United States, this rule seems to have been exploded,
and the party may himself avoid his acts except those of record,
and contracts for necessaries and services rendered, by
allegation and proof of insanity. 5 Whart. R. 371, 379; 2 Kent,
Com. 451; 3 Day, R. 90; 3 Conn. R. 203: 5 Pick. R. 431; 5
John R. 503.; 1 Bland. R. 376. Vide Fonbl. Eq b. 1, c. 2, §1,
note 1; 2 Str. R. 1104; 3 Camp. R. 125; 7 Dowl. & Ryl. 614; 3
C. & P. 30; 1 Hagg. C. R. 414.
STUPIDITY, med. jur. That state of the mind which cannot
perceive and embrace the data presented to it by the senses; and
therefore the stupid person can, in general, form no correct
judgment. It is a want of the perceptive powers. Ray, Med. Jur.
c. 3, §40. Vide Imbecility.
STUPRUM, civ. law. The criminal sexual intercourse which took
place between a man and a single woman, maid or widow, who before
lived honestly. Inst. 4, 18, 4; Dig. 48, 5, 6; Id. 50, 16, 101;
1 Bouv. Inst. Theolo. ps. 3, quaest. 2, art. 2, p. 252.
SUB-AGENT. A person appointed by an agent to perform some duty,
or the whole of the business relating to his agency.
2. Sub-agents may be considered in two points of view. 1. With
regard to their rights and duties or obligations, towards their
immediate employers. 2. As to their rights and obligations
towards their superior or real principals.
3. - 1. A sub-agent is generally invested with the same rights,
and incurs the same liabilities in regard to his immediate
employers, as if he were the sole and real principal. To this
general rule there are some exceptions for example, where by the
general usage of trade or the agreement of the parties,
sub-agents are ordinarily or necessarily employed, to accomplish
the ends of the agency, there, if the agency is avowed, and the
credit is exelusively given to the principal, the intermediate
agent may be entirely exempted from all liability to the
sub-agent. The agent, however, will be liable to the sub-agent,
unless such exclusive credit has been given, although the real
principal or superior may also be liable. Story on Ag. §386;
Paley on Ag. by Lloyd, 49. When the agent employs a sub-agent to
do the whole, or any part of the business of the agency, without
the knowledge or consent of his principal, either express or
implied, the latter will only be entitled to recover from his
immediate employer, and his sole responsibility is also to him.
In this case the superior or real principal is not responsible to
the sub-agent, because there is no privity between them. Story on
Ag. §13, 14, 15, 217, 387.
4. - 2. Where by an express or implied agreement of the
parties, or by the usages of trade, a sub-agent is to be
employed, a privity exists between the principal and the
sub-agent, and the latter may justly maintain his claim for
compensation, both against the principal and his immediate
employer, unless exclusive credit is given to one of them; and,
in that case, his remedy is limited to that party. 1 Liv. on Ag.
64; 6 Taunt. R. 147.
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SUBALTERN. A kind of officer who exercises his authority under
the superintendence and control of a superior.
TO SUBDIVIDE. To divide a part of a thing which has already
been divided. For example, when a person dies leaving children,
and grandchildren, the children of one of his own who is dead,
his property is divided into as many shares as he had children,
including the deceased, and the share of the deceased is
subdivided into as many shares as he had children.
SUBINFEUDATION, estates, English law. The act of an inferior
lord by which he carved out a part of an estate which he held of
a superior, and granted it to an inferior tenant to be held of
himself.
2. It was an indirect mode of transferring the fief, and
resorted to as an artifice to elude the feudal restraint upon
alienation: this was forbidden by the statute of Quia Emptores,
18 Ed. I; 2 Bl. Com. 91; 3 Kent, Com. 406.
SUBJECT, contracts. The thing which is the object of an
agreement. This term is used in the laws of Scotland.
SUBJECT, persons, government. An individual member of a nation,
who is subject to the laws; this term is used in
contradistiction to citizen, which is applied to the same
individual when considering his political rights.
2. In monarchical governments, by subject is meant one who owes
permanent allegiance to the monarch. Vide Body politic; Greenl.
Ev. §286; Phil. & Am. on Ev. 732, n. 1.
SUBJECT-MATTER. The cause, the object, the thing in dispute.
2. It is a fatal objection to the jurisdiction of the court
when it has not cognizance of the subject-matter of the action;
as, if a cause exclusively of admiralty jurisdiction were brought
in a court of common law, or a criminal proceeding in a court
having jurisdiction of civil cases only. 10 Co. 68, 76 1 Ventr.
133; 8 Mass. 87; 12 Mass. 367. In such case, neither a plea to
the jurisdiction, nor any other plea would be required to oust
the court of jurisdiction. The cause might be dismissed upon
motion, by the court, ex officio.
SUBJECTION. The obligation of one or more persons to act at the
discretion, or according to the judgment and will of others.
2. Subjection is either private or public. By the former is
meant the subjection to the authority of private persons; as, of
children to their parents, of apprentices to their masters, and
the like. By the latter is understood the subjection to the
authority of public persons. Rutherf. Inst. B. 2, c. 8.
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SUBLEASE. A lease by a tenant to another tenant of a part of
the premises held by him; an underlease.
SUBMISSION. A yielding to authority. A citizen is bound to
submit to the laws; a child to his parents; a servant to his
master. A victor may enforce, the submission of his enemy.
2. When a captor has taken a prize, and the vanquished have
submitted to his authority, the property, as between the
belligerents, has been transferred. When there is complete
possession on one side, and submission upon the other, the
capture is complete. 1 Gallis. R. 532.
SUBMISSION, contracts. An agreement by which persons who have a
law-suit or difference with one another, name arbitrators to
decide the matter, and bind themselves reciprocally to perform
what shall be arbitrated.
2. The submission may be by the act of the parties simply, or
through the medium of a court of law or equity. When it is made
by the parties alone it may be in writing or not in writing. Kyd
on Aw. 11; Caldw. on Arb. 16; 6 Watts' R. 357. When it is made
through the medium of a court, it is made a matter of record by
rule of court. The extent of the submission may be various,
according to the pleasure of the parties; it may be of only one,
or of all civil matters in dispute, but no criminal matter can be
referred. It is usual to put in a time within which the
arbitrators shall pronounce their award. Caldw. on Arb. ch. 3;
Kyd on Awards, ch. 1; Civ. Code of Lo. tit. 19 3 Vin. Ab. 131;
1 Supp. to Ves. jr. 174; 6 Toull. n. 827; 8 Toull. n. 332;
Merl. Repert. mot Compromis; 1 S. & R. 24; 5 S. & R. 51; 8 S.
& R. 9; 1 Dall. 164; 6 Watts, R. 134; 7 Watts, R. 362; 6
Binn. 333, 422; 2 Miles, R, 169; 3 Bouv. Inst. n. 2483, et seq.
SUB MODO. Under a qualification; a legacy may be given sub
modo, that is, subject to a condition or qualification.
SUBNOTATIONS, civ. law. The answers of the prince to questions
which had been put to him respecting some obscure or doubtful
point of law. Vide Rescripts.
SUBORNATION OF PERJURY, crim. law. The procuring another to
commit legal perjury, who in consequence of the persuasion takes
the oath to which be has been incited. Hawk. B. 1, c. 69, s. 10.
2. To complete the offence, the false oath must be actually
taken, and no abortive attempt (q. v.) to solicit will complete
the crime. Vide To Dissuade; To persuade.
3. But the criminal solicitation to commit perjury, though
unsuccessful, is a misdemeanor at common law. 2 East, Rep. 17; 6
East, R. 464; 2 Chit. Crim. Law, 317; 20 Vin. Ab. 20. For a
form of an indictment for an attempt to suborn a person to commit
perjury, vide 2 Chit. Cr. Law, 480; Vin. Ab. h. t.
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4. The act of congress of March 3, 1825, §13, provides, that if
any person shall knowingly or wilfully procure any such perjury,
mentioned in the act, to be committed, every such person so
offending, shall be guilty of subornation of perjury, and shall,
on conviction thereof, be punished by fine, not exceeding two
thousand dollars, and by imprisonment and confinement to hard
labor, not exceeding five years, according to the aggravation of
the offence.
SUBPOENA, practice, evidence. A process to cause a witness to
appear and give testimony, commanding him to lay aside all
pretences and excuses, and appear before a court or magistrate
therein named, at a time therein mentioned, to testify for the
party named, under a penalty therein mentioned. This is usually
called a subpoena ad testificandum.
2. On proof of service of a subpoena upon the witness, and that
he, is material, an attachment way be issued against him for a
contempt, if he neglect to attend as commanded.
SUBPOENA, chancery practice. A mandatory writ or process,
directed to and requiring one or more persons to appear at a time
to come, and answer the matters charged against him or them; the
writ of subpoena was originally a process in the courts of common
law, to enforce the attendance of a witness to give evidence;
but this writ was used in the court of chancery for the game
purpose as a citation in the courts of civil and canon law, to
compel the appearance of a defendant, and to oblige him to answer
upon oath the allegations of the plaintiff.
2. This writ was invented by John Waltham, bishop of Salishury,
and chancellor to Rich. II. under the authority of the statutes
of Westminster 2, and 13 Edw. I. c. 34, which enabled him to
devise new writs. 1 Harr. Prac. 154; Cruise, Dig. t. 11, c. 1,
sect. 12-17. Vide Vin. Ab. h. t.; 1 Swanst. Rep. 209.
SUBPOENA DUCES TECUM, practice. A writ or process of the same
kind as the subpoena ad testificandum, including a clause
requiring the witness to bring with him and produce to the court,
books, papers, &c., in his hands, tending to elucidate the matter
in issue. 3 Bl. Com. 382.
SUB PEDE SIGILLI. Under the foot of the seal; under seal. This
expression is used when it is required that a record should be
certified under the seal of the court.
SUB POTESTATE. Under or subject to the power of another; as, a
wife is under the power of her hushand; a child subject to that
of his father; a slave to that of his master.
SUBREPTION, French law. By this word is understood the fraud
committed to obtain a pardon, title, or grant, by alleging facts
contrary to truth.
SUBROGATION, civil law, contracts. The act of putting by a
transfer, a person in the place of another, or a thing in the
place of another thing. It is the substitution (q. v.) of a new
for an old creditor, and the succession to his rights, which is
called subrogation; transfusio unius creditoris in alium. It is
precisely the reverse of delegation. (q. v.)
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2. There are three kinds of subrogation: 1. That made by the
owner of a thing of his own free will; example, when be
voluntarily assigns it. 2. That which arises in consequence of
the law, even without the consent of the owner; example, when a
man pays a debt which could not be properly called his own, but
which nevertheless it was his interest to pay, or which he might
have been compelled to pay for another, the law subrogates him to
all the rights of the creditor. Vide 2 Binn. Rep. 382; White's
L. C. in Eq.* 60-72. 3. That which arises by the act of law
joined to the act of the debtor; as, when the debtor borrows
money expressly to pay off his debt, and with the intention of
substituting the lender in the place of the old creditor. 7
Toull. liv. 3, t. 3, c. 5, sect. 1, §2. Vide Civ. Code of
Louisiana, art. 2155 to 2158; Merl. Repert. h. t.; Dig. lib.
20; Code, lib. 8, t. 18 et 19 9 Watts. R. 451; 6 Watts & Serg.
190; 2 Bouv. Inst. n. 1413.
SUBSCRIBING WITNESS. One who subscribes his name to a writing
in order to be able at a future time to prove its due execution;
an attesting witness.
2. In order to make a good subscribing witness, it is requisite
he Should sign his name to the instrument himself, at the time of
its execution, and at the request or with the assent of the
party. 6 Hill, N. Y. R. 303; 11 M. & W. 168; 1 Greenl. Ev. §569
a, 4th ed. See Witness instrumentary; 5 Watts, 399.
SUBSCRIPTION, contracts. The placing a signature at the bottom
of a written or printed engagement; or it is the attestation of
a witness by so writing his name; but it has been holden that
the attestation of an illiterate witness, by making his mark, is
a sufficient subscription. 7 Bing. 457; 2 Ves. 454; Atk. 177;
1 Yes. jr. 11; 3 P. Wms. 253; 1 V. & B. 362. Vide To sign.
2. By subscription is also understood the act by which a person
contracts, in writing, to furnish a sum of money for a particular
purpose; as, a subscription to a charitable institution, a
subscription for a book, for a newspaper, and the like.
SUBSCRIPTION LIST. The names of persons who have agreed to take
a newspaper, magazine or other publication, placed upon paper, is
a subscription list.
2. This is, an incident to a newspaper, and passes with the
sale of the printing materials. 2 Watts, 111.
SUBSIDY, Engl. law. An aid, tax or tribute granted by
parliament to the king for the urgent occasions of the kingdom,
to be levied on every subject of ability, according to the value
of his lands or goods. Jacob's Law. Dict. h. t.
2. The assistance given in money by one nation to another to
enable it the better to carry on a war, when such nation does not
join directly in the war, is called a subsidy. Vattel, liv. 3,
§82. See Neutrality.
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SUB SILENTIO. Under silence, without any notice being taken.
Sometimes passing a thing sub silentio is evidence of consent.
See Silence.
SUBSTANCE, evidence. That which is essential; it is used in
opposition to form.
2. It is a general rule, that on any issue it is sufficient to
prove the substance of the issue. For example, in a case where
the defendant pleaded payment of the principal sum and all
interest due, and it appeared in evidence that a gross sum was
paid, not amounting to the full interest, but accepted by the
plaintiff as full payment, the proof was held to be sufficient. 2
Str. 690; 1 Phil. Ev. 161.
SUBSTITUTE, contracts. One placed under another to transact
business for him; in letters of attorney, power is generally
given to the attorney to nominate and appoint a substitute.
2. Without such power, the authority given to one person cannot
in general be delegated to another, because it is a personal
trust and confidence, and is not therefore transmissible. The
authority is given to him to exercise his judgment and
discretion, and it cannot be said that the trust and confidence
reposed in him shall be exercised at the discretion of another. 2
Atk. 88; 2 Ves. 645. But an authority may be delegated to
another, when the attorney has express power to do so. Bunb.
166; T. Jones, 110. See Story, Ag. §§13, 14. When a man is drawn
in the militia, he may in some cases hire a substitute.
SUBSTITUTES, Scotch law. Where an estate is settled on a long
series of heirs, substituted one after another, in tailzie, the
person first called in the tailzies, is the institute; the rest,
the beirs of tailzie; or the substitutes. Ersk. Princ. L. Scotl.
3, 8, 8. See Tailzie; Institute.
SUBSTITUTION, civil law. In the law of devises, it is the
putting of one person in the place of another, so that he may, in
default of ability in the former, or after him, have the benefit
of a devise or legacy.
2. It is a species of subrogation made in two different ways;
the first is direct substitution, and the latter a trust or fidei
commissary substitution. The first or direct substitution, is
merely the institution of a second legatee, in case the first
should be either incapable or unwilling to accept the legacy;
for example, if a testator should give to Peter his estate, but
in case he cannot legally receive it, or he wilfully refuses it,
then I give it to Paul; this is a direct substitution. Fidei
commissary substitution is that which takes place when the person
substituted is not to receive the legacy until after the first
legatee, and consequently must receive the thing bequeathed from
the hands of the latter for example, I institute Peter my heir,
and I request that at his death he shall deliver my succession to
Paul. Merl. Repert. h. t.; 5 Toull. 14.
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SUBSTITUTION, chancery practice. This takes place in a case
where a creditor has a lien on two different parcels of land, and
another creditor has a subsequent lien on one only of the
parcels, and the prior creditor elects to have his whole demand
out of the parcel of land on which the subsequent creditor takes
his lien; the latter is entitled, by way of substitution, to
have the prior lien assigned to him for his benefit. 1 Johns. Ch.
R. 409; 2 Hawk's Rep. 623; 2 Mason, R. 342. And in a case where
a bond creditor exacts the whole of the debt from one of the
sureties, that surety is entitled to be substituted in his place,
and to a cession of his rights and securities, as if be were a
purchaser, either against the principal or his co-sureties. Id.
413; 1 Paige's R. 185; 7 John. Ch. Rep. 211; 10 Watts, R. 148.
2. A surety on paying the debt is entitled to stand in the
place of the cre-ditor and to be subrogated to all his rights
against the principal. 2 Johns. Ch. R. 454. 4 Johns. Ch. R. 123;
1 Edw. R. 164; 7 John. R. 584; 3 Paige's R. 117; 2 Call, R.
125; 2 Yerg. R. 346; 1 Gill & John. 346; 6 Rand. R. 98,; 8
Watts, R. 384. In Pennsylvania it is provided by act of assembly,
that in all cases where a constable shall be entrusted with the
execution of any process for the collection of money, and by
neglect of duty shall fail to collect the same, by means whereof
the bail or security of such constable shall be compelled to pay
the amount of any judgment shall vest in the person paying, as
aforesaid, the equitable interest in such judgment, and the
amount due upon any such judgment may be collected in the name of
the plaintiff for the use of such person. Pamphlet Laws, 1828-29,
p. 370. Vide 2 Binn. R. 382, and Subrogation.
SUBSTRACTION, French law. The act of taking something
fraudulently; it is generally applied to the taking of the goods
of the estate of a deceased person fraudulently. Vide Expilation.
SUB-TENANT. The same as under-tenant. See Under-leaser;
Under-tenant, and 1 Bell's Com. 76.
SUBTRACTION. The act of withhold ing or detaining anything
unlawfully.
SUBTRACTION OP CONJUGAL RIGHTS. The act of a hushand or wife by
living separately from the other without a lawful cause. 3 Bl.
Com. 94.
SUCCESSION, in Louisiana. The right and transmission of the
rights an obligations of the deceased to his heirs. Succession
signifies also the estate, rights and charges which a person
leaves after his death, whether the property exceed the charges,
or the charges exceed the property, or whether he has left only
charges without property. The succession not only includes the
rights and obligations of the deceased, as they exist at the time
of his death, but all that has accrued thereto since the opening
of the succession, as also of the new charges to which it becomes
subject. Finally, succession signifies also that right by which
the beir can take possession of the estate of the de-ceased, such
as it may be.
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2. There are three sorts of successions, to wit: testamentary
succession; legal succession; and, irregular succession. 1.
Testamentary succession is that which results from the
constitution of the heir, contained in a testament executed in
the form prescribed by law. 2. Legal succession is that which is
established in favor of the nearest relations of the deceased. 3.
Irregular succession is that which is established by law in favor
of certain persons or of the state in default of heirs either
legal or instituted by testament. Civ. Code, art. 867-874.
3. The lines of a regular succession are divided into three,
which rank among themselves in the following order: 1.
Descendants. 2. Ascendants. 3. Collaterals. See Descent. Vide
Poth. Traite des Successions lbid. Coutumes d'Orleans, tit. 17
Ayl. Pand. 348; Toull. liv. 3, tit. 1; Domat, h. t.; Merl.
Repert. h. t.
SUCCESSION, com. law. The mode by which one set of persons,
members of a corporation aggregate, acquire the rights of another
set which preceded them. This term in strictness is to be applied
only to such corporations. 2 Bl. Com. 430.
SUCCESSOR. One who follows or comes into the place of another.
2. This term is applied more particularly to a sole
co6-oration, or to any corporation. The word beir is more
correctly applicable to a common person who takes an estate by
descent. 12 Pick. R. 322; Co. Litt. 8 b.
3. It is also used to designate a person who has been appointed
or elected to some office, after another person.
TO SUE. To prosecute or commence legal proceedings for the
purpose of recovering a right.
SUFFRAGE, government. Vote; the act of voting.
2. The right of suffrage is given by the constitution of the
United States, art. 1, s. 2, to the electors in each state, as
shall have the qualifications requisite for electors of the most
numerous branch of the state legislature. Vide 2 Story on the
Const. §578, et seq.; Amer. Citiz. 201; 1 Bl. Com. 171; 2
Wils. Lect. 130; Montesq. Esp. des Lois, Ii v. 11, c. 6; 1
Tucker's Bl. Com. App. 52, 3. See Division of opinion.
SUFFRANCE. The permitting a tenant who came in by a lawful
title, to remain after his right has expired. Vide Estates at
suffrance.
SUGGESTIO FALSI. A statement of a falsehood. This amounts to a
fraud when-ever the party making it was bound to disclose the
truth.
2. The following is an example of a case where chancery will
interfere and. set aside a contract as fraudulent, on account of
the suggestio falsi: a purchaser applied to the seller to
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purchase a lot of wild land, and represented to him it was worth
nothing, except for a sheep pasture, when he knew there was a
valuable mine on the lot, of which the seller was ignorant. The
sale was set aside. 2 Paige, 390; 4 Bouv. Inst. n. 3837, et seq.
Vide Concealment; Misrepresentation; Representation;
Suppressio veri.
SUGGESTION. In its literal sense this word signifies to inform,
to insin-uate, to instruct, to cause to be remembered, to
counsel. In practice it is used to convey the idea of
information; as, the defendant suggests the death of one of the
plaintiffs. 2 Sell. Pr. 191.
2. In wills, when suggestions are made to a testator for the
purpose of procuring a devise of his property in a particular
way, and when such suggestions are false, they generally amount
to a fraud. Bac. Ab. Wills, G 3; 5 Toull. n. 706.
SUGGESTIVE INTERROGATION. This phrase has been used by some
writers to signify the same thing as leading question. (q. v.) 2
Benth. on Ev. b. 3, c. 3. It is used in the French law. Vide
Question.
SUI JURIS. One who has all the rights to which a freemen is
entitled; one who is not under the power of another, as a slave,
a minor, and the like.
2. To make a valid contract, a person must, in general, be sui
juris. Every one of full age is presumed to be sui juris. Story
on Ag. p. 10.
SUICIDE, crimes, med. jur. The act of malicious self-murder;
felo de se. (q. v.) 3 Man. Gran. & Scott, 437, 457, 458; 1 Hale,
P. C.. 441. But it has been decided in England that where a man's
life was insured, and the policy contained a proviso that "every
policy effected by a person on his or her own life should be
void, if such person should commit suicide, or die by duelling or
the hands of justice," the terms of the condition included all
acts of voluntary self-destruction, whether the insured at the
time such act was committed, was or was not a moral responsible
agent. 3 Man. Gr. & Scott, 437. In New York it has been held,
that an insane person cannot commit suicide, because. such person
has no will. 4 Hill' 3 R. 75.
2. It is not punishable it is believed in any of the United
States, as the unfortunate object of this offence is beyond the
reach of human tribunals, and to deprive his family of the
property he leaves would be unjust.
3. In cases of sudden death, it is of great consequence to
ascertain, on finding the body, whether the deceased has been
murdered, died suddenly of a natural death, or whether he has
committed suicide. By a careful examination of the position of
the body, and of the circumstances attending it, it can be
generally ascertained whether the deceased committed suicide, was
murdered, or died a natural death. But there are sometimes cases
of suicide which can scarcely be distinguished from those of
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murder. A case of suicide is mentioned by Doctor Devergie,
(Annales d'Hygiene, transcribed by Trebuchet, Jurisprudence de la
Medecine, p. 40,) which bears a striking analogy to a murder. The
individuul went to the cemetery of Pere la Chaise, near Paris,
and with a razor inflicted a wound on himself immediately below
the os hyoide; the first blow penetrated eleven lines in depth;
a second, in the wound made by the first, pushed the instrument
to the depth of twenty-one lines; a third extended as far as the
posterior of the pharynx, cutting the muscles which attached the
tongue to the oshyoide, and made a wound of two inches in depth.
Imagine an enormous wound, immediately under the chin, two inches
in depth, and three inches and three lines in width, and a foot
in circumference; and then judge whether such wound could not be
easily mistaken as having been made by a stranger, and not by the
deceased. Vide Death, and 1 Briand, Med. Leg. 2e partie, c. 1,
art. 6.
SUIT. An action. The word suit in the 25th section of the
judiciary act of 1789, applies to any proceeding in a court of
justice, in which the plaintiff pursues, in such court, the
remedy which the law affords him. An application for a
prohibition is therefore a suit. 2 Pet. 449. According to the
code of practice of Louisiana, art. 96, a suit is a real,
personal or mixed demand, made before a competent judge, by which
the parties pray to obtain their rights, and a decision of their
disputes. In that acceptation, the words suit, process and cause,
are in that state almost synonymous. Vide Secta, and Steph. Pl.
427; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399; Wood's
Civ. Law, b. 4, c. p. 315; 4 Mass. 263; 18 John. 14; 4 Watts,
R. 154; 3 Story, Const. §1719. In its most extended sense, the
word suit, includes not only a civil action, but also a criminal
prosecution, as indictment, information, and a conviction by a
magistrate. Ham. N. P. 270.
SUITE. Those persons, who by his authority, follow or attend an
ambassador or other public minister.
2. In general the suite of a minister are protected from
arrest, and the inviolability of his person is communicated to
those who form his suite. Vattel, lib. 4, c. 9, §120. See 1 Dall.
177; Baldw. 240; and Ambassador.
SUITOR. One who is a party to a suit or action in court. One
who is a party to an action. In its ancient sense, suitor meant
one Who was bound to attend the county court, also, one who
formed part of the secta. (q. v.)
SULTAN. The title of the Turkish sovereign and other Mabometan
princes.
SUMMARY PROCEEDINGS. When cases are-to be adjudged promptly,
without any unnecessary form, the proceedings are said to be
summary.
2. In no case can the party be tried summarily unless when such
proceedings are authorized by legislative autliority, except
perhaps in the cases of contempts, for the common law is a
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stranger to such a mode of trial. 4 Bl. Com. 280; 20 Vin. Ab.
42; Boscawen on Conv.; Paley on Convict.; vide Convictions.
SUMMING UP, practice. The act of making a speech before a court
and jury, after all the evidence has been heard, in favor of one
of the parties in the cause, is called summing up. When the judge
delivers his charge to the jury, he is also said to sum up the
evidence in the case. 6 Harg. St. Tr. 832; 1 Chit. Cr. Law, 632.
2. In summing up, the judge should, with much precision and
clearness, state the issues joined between the parties, and what
the jury are required to find, either in the affirmative or
negative. He should then state the substance of the plaintiff's
claim and of the defendant's ground of defence, and so much of
the evidence as is adduced for each party, pointing out as he
proceeds, to which particular question or issue it respectively
applies, taking care to abstain as much as possible from giving
an opinion as to the facts. It is his duty clearly to state the
law arising in the case in such terms as to leave no doubt as to
his meaning, both for the purpose of directing the jury, and with
a view of correcting, on a review of the case on a motion for a
new trial, or on a writ of error, any error he may, in the hurry
of the trial, have committed. Vide 8 S. & R. 150; 1 S. & R. 515;
4 Rawle, R. 100, 195, 356; 2 Penna. R. 27; 2 S. & R. 464. Vide
Charge; Opinion, (Judgment.)
TO SUMMON, practice. The act by which a defendant is notified
by a compepetent officer, that an action has been instituted
against him, and that he is required to answer to it at a time
and place named. This is done either by giving the defendant a
copy of the summons, or leaving it at his house; or by reading
the summons to him.
SUMMONERS. Petty officers who cite men to appear in any court.
SUMMONS, practice. The name of a writ commanding the sheriff,
or other authorized officer, to notify a party to appear in court
to answer a complaint made against him and in the said writ
specified, on a day therein mentioned. 21 Vin. Ab. 42 2 Sell. Pr.
356; 3 Bl. Com. 279.
SUMMONS AND SEVERANCE. Vide Severance; and 20 Vin. Ab. 51;
Bac. Ab. h. t.; Archb. Civil Plead. 59.
SUMMUM JUS. Extreme right, strict right. It is seldom that
extreme right can be administered without the danger of doing
injustice, for extreme right may produce extreme wrong. Summum
jus, summa injuria.
SUMPTUARY LAWS. Those relating to expenses, and made to
restrain excess in apparel.
2. In the United States the expenses of every man are left to
his own good judgment, and not regulated by Arbitrary laws.
SUNDAY. The first day of the week.
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2. In some of the New England states it begins at sun setting
on Saturday, and ends at the same time the next day. But in other
parts of the United States, it generally commences at twelve
o'clock on the night between Saturday and Sunday, and ends in
twenty-four hours thereafter. 6, Gill. & John. 268; and vide
Bac. Ab. Heresy, &c. D; Id. Sheriff, N 4; 1 Salk. 78; 1 Sell.
Pr. 12; Hamm. N. P. 140. The Sabbath, the Lord's Day, and
Sunday, all mean the same thing. 6 Gill. & John. 268; see 6
Watts, 231; 3 Watts, 56, 59.
2. In some states, owing to statutory provisions, contracts
made on Sunday are void; 6 Watts, R. 231; Leigh, N. P. 14; 1
P. A. Browne, 171; 5 B. & C. 406; 4 Bing. 84; but in general
they are binding, although made on that day, if good in other
respects. 1 Crompt. & Jervis, 130; 3 Law Intell. 210; Chit. on
Bills, 59; Wright's R. 764;,10 Mass. 312 1 Cowen, R. 76, n.;
Cowp. 640; 1 Bl. Rep. 499; 1 Str. 702; see 8 Cowen, R. 27; 6
Penn. St. R. 417, 420.
4. Sundays are computed in the time allowed for the performance
of an act, but if the last day happen to be a Sunday, it is to be
excluded, and the act must in general be performed on Saturday;
3 Penna. R. 201; 3 Chit. Pr. 110; promissory notes and bills of
exchange, when they fall due on Sunday, are gen-erally paid on
Saturday. See, as to the origin of keeping-Sunday as a holiday,
Neale's F. & F. Index, Lord's day; Story on Pr. Notes, §220;
Story on Bills, §233; 2 Hill's N. Y. Rep. 587; 2 Applet. R.
264.
SUPER ALTUM MARE. Upon the high sea. Vide High Seas.
SUPER VISUM CORPORE. Upon view of the body. When an inquest is
held over a body found dead, it must be super visum corpore. Vide
Coroner; Inquest.
SUPERCARGO, mar. law. A person specially employed by the owner
of a cargo to take charge of the merchandise which has been
shipped, to sell it to the best advantage, and to purchase
returning cargoes and to receive freight, as he may be
authorized.
2. Supercargoes have complete control over the cargo, and
everything which immediately concerns it, unless their authority
is either expressly or impliedly restrained. 12 East, R. 381.
Under certain circumstances, they are responsible for the cargo;
4 Mass. 115; see 1 Gill & John. 1; but the supercargo has no
power to interfere with the government of the ship. 3 Pardes. n.
646; 1 Boulay-Paty, Dr. Com. 421.
SUPERFOETATION, med. jur. The conception of a second embryo,
during the gestation of the first, or the conception of a child
by a woman already pregnant with another, during the time of such
pregnancy.
2. This doctrine, though doubted, seems to be established by
numerous cases. Beck's Med. Jur. 193; Cassan on Superfoetation;
New York Medical Repository; 1 Briand, Med. Leg. prem. partie,
c. 3, art. 4; 1 Fodere, Med. Leg. §299; Buffon, Hist. Nat. de
l'Homme, Puberte.
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SUPERFICIARIUS, civ. law. He who has built upon the soil of
another, which he has hired for a number of years or forever,
yielding a yearly rent. This is not very different from the owner
of a lot on ground rent in Pennsylvania. Dig. 43, 18, 1 and 2.
SUPERFICIES. A Latin word used among civilians. It signifies in
the edict of the praetor whatever has been erected on the soil,
quidquid solo inoedificdtum est. Vide Dig. 43, tit. 18, 1. 1 and
2.
SUPERIOR. One who has a right to command; one who holds a
superior rank; as, a soldier is bound to obey his superior. 2.
In estates, some are superior to others; an estate entitled to a
servitude or easement over another estate, is called the superior
or dominant, and the other the inferior or servient estate. 1
Bouv. Inst. n. 1612.
3. Of courts, some are supreme or superior, possessing in
-general appellate jurisdiction, either by writ of error or by
appeal; 3 Bouv. Inst. n. 2527; the others are called inferior
courts.
SUPERNUMERARII, Rom. civil law. From the reign of Constantine
to Justinian, advocates were divided into two classes: viz.
advocates in title, who were called statute, and supernumeraries.
The statutis were inscribed in the mat-riculation books, and
formed a part of the college of advocates in each jurisdiction.
The supernumeraries were not attached to any bar in particular,
and could reside where, they pleased; they took the place of
advocates by title, as vacancies occurred in that body. Code
Justin., de adv. div. jud. c. 3, 11, 13; Calvini Lex, ad voc.;
also Statuti.
SUPERSEDEAS, practice, actions. The name of a writ containing a
command to stay the proceedings at law.
2. It is granted on good cause shown that the party ought not
to proceed. F. N. B. 236. There are some writs which though they
do not bear this name have the effect to supersede the
proceedings, namely, a writ of error, when bail is entered,
operates as a supersedeas, and a writ of certiorari to remove the
proceedings of an inferior into a superior court has, in general,
the same effect. 8 Mod. 373; 1 Barnes, 260; 6 Binn. R. 461.
But, under special circumstances, the certiorari has not the
effect to stay the proceedings, particularly where summary
proceedings, as to obtain possession under the landlord and
tenant law, are given by statute. 6 Binn. R. 460; 1 Yeates, R.
49; 4 Dall. R. 214; 1 Ashm. R. 230; Vide Vin. Ab. h. t.; Bac.
Ab. h. t.; Com. Dig. h. t.; Yelv. R. 6, note.
SUPERSTITIOUS USE, English law. When lands, tenements, rents,
goods or chattels are given, secured or appointed for and toward
the maintenance of a priest or chaplain to say mass; for the
maintenance of a priest, or other man, to pray for the soul of
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any dead man, in such a church or elsewhere; to have and
maintain perpetual obits, lamps, torches, &c., to be used at
certain times to help to save the souls of men out of purgatory;
in such cases the king by force of several statutes, is
authorized to direct and appoint all such uses to such purposes
as are truly charitable. Bac. Ab. Charitable Uses and Mortmain,
D; Duke on Char. Uses, 105; 6 Ves. 567; 4 Co. 104.
2. In the United States, where all religious opinions are free,
and the right to exercise them is secured to the people, a
bequest to support a catholic priest, aud perhaps certain other
uses in England, would not in this country be considered as
superstitious uses. 1 Pa. R. 49; 8 Penn. St. R. 327; 17 S. & R.
388; 1 Wash. 224. It is not easy to see how there can be a
supersti-tious use in this country, at least in the acceptation
of the British courts. 1 Watts, 224; 4 Bouv. Inst. n. 3985.
SUPERVISOR. An overseer; a surveyor.
2. There are officers who bear this name whose duty it is to
take care of the highways.
SUPPLEMENTAL. That which is added to a thing to complete it as
a supplemental affidavit, which is an additional affidavit to
make out a case; a supplemental bill. (q. v.)
SUPPLEMENTAL BILL, equity plead. A bill already filed to supply
some defect in the original bill. See Bill supplemental.
SUPPLICAVIT, Eng. law. The name of a writ issuing out of the
king's bench or chancery, for taking sureties of the peace; it
is commonly directed to the justices of the peace, when they are
averse to acting in the affair in their judicial capacity. 4 Bl.
Com. 233; vide Vin. Ab. h, t.; Com. Dig. Chancery, 4 R.; Id.
Forcible Entry, D 16, 17.
SUPPLICIUM, civil law. A corporal punishment ordained by law;
the punishment of death, so called because it was customary to
accompany the guilty man to the place of execution and there
offer supplications for him.
SUPPLIES, Eng. Law. Extraordinary grants to the king by
parliament, to supply the exigencies of the state. Jacob's Law
Dict. h. t.
SUPPORT. The right of support is an easement which one man,
either by contract or prescription, enjoys, to rest the joists or
timbers of his house upon the wall of an adjoining building,
owned by another person. 3 Kent, Com. 435. Vide Lois des Bat.
part. 1, c. 3, s. a. 1, §T; Party wall.
SUPPRESSIO VERI. Cocealment of truth.
2. In general a suppression of the truth, when a party is bound
to disclose it, vitiates a contract. In the contract of insurance
a knowledge of the facts is required to enable the underwriter to
calculate the chances and form a due estimate of the risk; and,
in this contract perhaps more than any other, the parties are
required to represent every thing with fairness. 1 Bla. Rep. 594;
3 Burr. 1809.
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3. Suppressio veri as well as suggestio falsi is a ground to
rescind an agreement, or at least not to carry it into execution.
3 Atk. 383; Prec. Ch. 138; 1 Fonb. Eq. c. 2, s. 8; 1 Ball &
Beatty, 241; 3 Munf. 232 1 Pet. 383; 2 Paige, 390 4 Bouv. Inst.
n. 3841. Vide Concealment; Mis-representation; Representationl:
Suggestio falsi.
SUPRA PROTEST. Under protest. Vide Acceptance supra protest;
dcceptor supra protest; Bills of Exchange.
SUPREMACY. Sovereign dominion, authority, and preeminence; the
highest state. In the United States, the supremacy resides in the
people, and is exercises by their constitutional representatives,
the president and congress. Vide Sovereignty.
SUPREME. That which is superior to all other things; as the
supreme power of the state, which is an authority over all
others. The supreme court, which is superior to all other courts.
SUPREME COURT. The court of the highest jurisdiction in the
United States, having appellate jurisdiction over all the other
courts of the United. States, is so called. Its powers are
examined under the article Courts of the United States.
2. The following list of the judges who have had seats on the
bench of this court is given for the purpose of reference:
Chief Justices. John Jay, appointed September 26, 1789, resigned
in 1795.
John Rutledge, appointed July 1, 1795, resigned in 1796.
Oliver Ellsworth, appointed March 4, 1796, resigned in 1801.
John Marshall, appointed January 31, 1801, died July 6, 1835.
Roger B. Taney, appointed March 15, 1836. Associate Justices.
William Cushing, appointed September 27, 1789, died in 1811.
James Wilson, appoiuted September 29, 1789, died in 1798.
John Blair, appointed September 30, 1789, died in 1796.
James Iredell, appointed February 10, 1790, died in 1799.
Thomas Johnson, appointed November 7, 1791, resigned in 1793.
William Patterson, appointed March 4, 1793, in the place of Judge
Johnson, died in 1806.
Samuel Chase, appointed January 7, 1796, in the place of Judge
Blair, died in 1811.
Bushrod Washington, appointed December 20,1798, in the place of
Judge Wilson, died November 26, 1829.
Alfred Moore, appointed December 10, 1799 in the place of Judge
Iredell, resigned in 1864.
William Johnson, appointed March 6, 1804, in the place of Judge
Moore, died in 1835.
Brockholst Livingston, appointed November 10, 1806, in the place
of Judge Patterson, died in 1823.
Thomas Todd, appointed March 3, 1807, under the act of congress
of February, 1807, providing for an additional justice, died in
1826.
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Gabriel Duval, appointed November 18, 1811, in the place of Judge
Chase, resigned in January, 1835.
Joseph Story, appointed November 18, 1811, in the place of Judge
Cushing.
Smith Thompson, appointed December 9, 1823, in the place of Judge
Livingston, deceased.
Robert Trimble, appointed May 9, 1826, in the place of Judge
Todd, died in 1829.
John McLean, appointed March 1829, in the place of Judge Trimble,
deceased.
Henry Baldwin, appointed January 1830, in the place of Judge
Washington, deceased.
James M. Wayne, appointed January 9, 1835, in the place of Judge
Johnson, deceased.
Philip P. Barbour, appointed March 15, 1836, died February
25,1841.
John Catron, appointed March 8, 1837, under the act of congress
providing for two additional judges.
John McKinley, appointed September 25, 1837, under the last
mentioned act.
Peter V. Daniel, appointed March 3, 1841, in the place of Judge
Barbour, deceased.
Samuel Nelson, appointed February 14, 1845, in the place of Judge
Thompson, deceased.
Levi Woodbury, appointed September 20, 1845, in the recess of
senate, in the place of Judge Story, deceased: his nomination
confirmed January 3, 1846.
Robert C. Grier, appointed August 4, 1846, in the place of Judge
Baldwin, deceased.
Benj. Robbins Curtis, appointed 1851, in the recess of the
senate, in the place of Judge Woodbury, deceased: his nomination
confirmed
The present judges of the supreme court are,
Chief Justice. Roger B. Taney. Associate Justices. John McLean,
James M. Wayne, John Catron, John McKinley, Peter V. Daniel,
Samuel Nelson, Robert C. Grier, and B. Robbins Curtis.
3. In the several states there are also supreme courts; their
powers aud jurisdiction will be found under the names of the
several states.
SUR. A French word which signifies upon, on. It is very
frequently used in connexion with other words as, sur rule to
take deposition, sur trover and conversion, and the like.
SUR CUI ANTE DIVORTIUM. The name of a writ issued in favor of
the heir of the wife, where the hushand alienated the wife's
lands, during the coverture, and afterwards they were divorced
and she died, to recover the lands from the alienee. Vide Cui
ante divortium.
SURCHARGE, chancery practice. When a bill is filed to open an
account, stated, liberty is sometimes given to the plaintiff to
surcharge and falsify such account. That is, to examine not only
errors of fact, but errors of law. 2 Atk. 112; 11 Wheat. 237; 2
Ves. 565.
2. "These terms, `surcharge,' and `falsify,'" says Mr. Justice
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Story, 1 Eq. Jur. §525, "have a distinct sense in the vocabulary
of courts of equity, a little removed from that, which they bear
in the ordinary language of common life. In the language of
common life, we understand `surcharge' to import an overcharge in
quantity, or price, or degree, beyond what is just and
reasonable. In this sense, it is nearly equivalent to `falsify;'
for every item, which is not truly charged, as it should be, is
false; and by establishing such overcharge it is falsified. But,
in the sense of courts of equity, these words are used in
contradistinction to each other. A surcharge is appropriately
applied to the balance of the whole account; and supposes
credits to be omitted, which ought to be allowed. A falsification
applies to some item in the debets; and supposes, that the item
is wholly false, or in some part erroneous. This distinction is
taken notice of by Lord Hardwicke; and the words used by him are
so clear, that they supersede all necessity for farther
commentary. `Upon a liberty to the plaintiff to surcharge, and
falsify,' says he, `the onus probandi is always on the party
having that liberty; for the court takes it as a stated account,
and establishes it. But, if any of the parties can show an
omission, for which credit ought to be, that is, a surcharge, or
if anything is inserted, that is a wrong charge, he is at liberty
to show it, aud that is a falsification. But that must be by
proof on his side. And that makes a great difference between the
general cases of an open account, and were only [leave] to
surcharge and falsify; for such must be made out."
SURETY, contracts. A person who binds himself for the payment
of a sum of money or for the performance of something else, for
another, who is already bound for the same. A surety differs from
a guarantor, and the latter cannot be sued until after a suit
against the principal. 10 Watts, 258.
2. The surety differs from bail in this, that the latter
actually has, or is by law presumed to have, the custody of his
principal, while the former has no control over him. The bail may
surrender his principal in discharge of his obligation; the
surety cannot be discharged by such surrender.
3. In Pennsylvania it has been decided that the creditor is
bound to sue the principal when requested by the surety, and the
debt is due; and that when proper notice is given by the surety
that unless the principal be sued, be will consider himself
discharged, he will be so considered, unless the principal be
sued. 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30; S. P. in
Alabama, 9 Porter, R. 409. But in general a creditor may resort
to the surety for the payment of his debt in the first place,
without applying to the principal. 1 Watts, 28O; 7 Ham. part 1,
223. Vide Bouv. Inst. Index, h. t.; Contribution; Contracts;
Suretyship.
SURETY OF THE PEACE, crim. law. A security entered into before.
Some competent court or officer, by a party accused, together
with some other person, in the form of recognizance to the
commonwealth in a certain sum of money, with, a condition that
the accused shall keep the peace towards all the citizens of the
commonwealth. A security for good behaviour is a similar
recognizance with a condition that the accused shall be of good
behaviour.
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2. This security may be demanded by a court or officer having
jurisdiction from all persons who threatened to kill or to,
injure others, or who by their acts give reason to believe they
will commit a breach of the peace. And even after an acquittal a
prisoner may be required to give scourity of the peace or good
behaviour, when the circumstances of the case justify a court in
believing the public good requires it. 2 Yeates, R. 437 Bac. Ab.
h. t.; 1 Binn. R. 98, note; Com. Dig. h. t.; Yin. Ab. h. t.;
Bl. Com. B. 4, c. 18, p. 251.
3. To obtain surety to keep the peace, the party requiring it
must swear or affirm be fears a present or future danger, and not
merely swear or affirm to a breach of the peace which is past;
it is usual, however, to state such injuries, and when the
circumstances warrant it, a threat of their repetition, as a
legitimate ground for fearing future injury, which fear must
always be stated. 1 Chit. Pr. 677.
4. A recognizance to keep the peace is forfeited only by an
actual attack or threat of bodily harm, or burning a house, and
the like, but not by bare words Of h an choler. Hawk. h. 1, c.
60, s. 2. Vide Good Behaviour.
SURETYSHIP, contracts. An accessory agreement by which a person
binds himself for another already bound, either in whole or in
part, as for his debt, default or miscarriage.
2. The person undertaken for must be liable as well as the
person giving the promise, for otherwise the promise would be a
principal and not a collateral agreement, and the promissor would
be liable in the first instanee; for example, a married woman
would. Not be liable upon her contract, and the person who should
become surety for her that she would perform it would be
responsi-ble as a principal and not as a surety. Pitm. on P. & S.
13; Burge on Sur. 6; Poth. Ob. n. 306. If a Person undertakes
as a surety when he knows the obligation, of the principal is
void, he becomes a principal: 2 Id. Raym. 1066; 1 Burr. 373.
3. As the contract of suretyship must relate to the same
subject as the principal obligation, it follows that it must not
be of greater extent or more onerous' either in its amount, or in
the time or manner, or place of performance, than such principal
obligation; and if it so exceed, ii will be void, as to such
excess. But the obligation of the surety may be less onerous,
both in its amount, and in the time, place and manner of its
performance, that of the principal debtor; it may be for a less
amount, or the time may be more protracted. Burge, on Sur. 4, 5.
4. The contract of suretyship may be entered into by all
persons who are sui juris, and capable of entering into other
contracts. See Parties to contracts.
5. It must be made upon a sufficient consideration. See
Consideration.
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6. The contract of suretyship or guaranty, requires a present
agreement between the contracting parties; and care must be
taken to observe the distinction between an actual guaranty, and
an offer to guaranty at a future time; when an offer is made, it
must be accepted before it becomes binding. 1 M. & S. 557; 2
Stark. 371; Cr. M. & Ros. 692.
7. Where the statute of frauds, 29 Car. II., c. 3, is in force,
or its principles have been adopted, the contract of suretyship
"to answer for the debt, default or miscarriage of another
person," must be in writing, &c.
8. The contract of suretyship is discharged and becomes
extinct, 1st. Either by the terms of the contract itself. 2d. By
the acts to which both the credi-tor and principal alone are
parties. 3d. By the acts of the creditor and sure-ties. 4th. By
fraud. 5th. By operation of law.
9. - §1. When by his contract the surety limits the period of
time for which he is willing to be responsible, it is clear he
cannot be beld liable for a longer period; as when he engages
that an officer who is elected annually shall faithfully perform
his duty during his continuance in office; his obligation does
not extend for the performance of his duty by the same officer
who may be elected for a second year. Burge on Sur. 63, 113; 1
McCord, 41; 2 Campb. 39; 3 Ad. & Ell. N. S. 276; 2 Saund. 411
a; 6 East, 512; 2 M. & S. 370; New R. (5 B. & P.) 180; 2 M. &
S. 363; 9 Moore, 102.
10. - §2. The contract of suretyship becomes extinct or
discharged by the acts of the principal and of the creditor
without any act of the surety. This may be done, 1. By payment,
by the principal. 2. By release of the principal. 3. By tender
made by principal to the creditor. 4. By compromise. 5. By accord
and satisfaction. 6. By novation. 7. By delegation. 8. By
set-off. 9. By alteration of the contract.
11. - 1. When the principal makes payment, the sureties are
immediately dis- charged, because the obligation no longer
exists. But as payment is the act of two parties, the party
tendering the debt and the party receiving it, the money or thing
due must be accepted. 7 Pick 88; 4 Pick. 83; 8 Pick. 122. See
Payment.
12. - 2. As the release of the principal discharges the
obligation, the surety is also discharged by it.
13. - 3. A lawful tender made by the principal or his
authorized agent, to the creditor or his authorized agent, will
discharge the surety. See. 2 Blackf. 87; 1 Rawle, 408; 2 Fairf.
475; 13 Pet. 136.
14. - 4. When the creditor and principal make a compromise by
which the principal is discharged, the surety is also discharged.
11 Ves. 420; 3 Bro. C. C. 1; Addis. on Contr. 443.
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15. - 5. Accord and satisfaction between the principal and the
creditor will discharge the surety, as by that the whole
obligation becomes extinct. See Accord and satisfaction.
16. - 6. It is evident that a simple novation, or the making a
new contract and annulling the old, must, by the destruction of
the obligation, discharge the surety.
17. - 7. An absolute delegation, where the principal procures
another person to assume the payment upon condition that he shall
be discharged, will have the effect to discharge the surety. See
Delegation.
18. - 8. When the principal has a just set-off to the whole
claim of the creditor, the surety is discharged.
19. - 9. If the principal and creditor change the nature of the
contract, so that it is no longer the same, the surety will be
discharged; and even extending the time of payment, without the
consent of the surety, when the agreement to give time is founded
upon a valuable consideration, is such an alteration of the
contract as discharges the surety. See Giving Time.
20. - §3. The contract is discharged by the acts of the
creditor and surety, 1. By payment made by the surety. 2. By
release of the surety by the creditor. 3. By compromise between
them. 4. By accord and satisfaction. 5. By set off.
21. - §4. Fraud by the creditor in relation to the obligation
of the surety, or by the debtor with the knowledge or assent of
the creditor, will discharge the liability of the surety. 3 B. &
C. 605; S. C. 6 Dowl. & Ry. 505; 6 Bing. N. C. 142.
22. - §5. The contract of suretyship is discharged by operation
of law, 1. By confusion. - 2. prescription, or the act of
limitations. 3. By bankruptcy.
23. - 1. The contract of suretyship is discharged by confusion
or merger of rights; as, where the obligee marries the obligor.
Burge on Sur. 256; 2 Ves. p. 264; 1 Salk. 306; Cro. Car. 551.
24. - 2. The act of limitations or prescription is a perfect
bar to a recovery against a surety, after a sufficient lapse of
time, when the creditor was sui juris and of a capacity to sue.
25. - 3. The discharge of the surety under the bankrupt laws,
will put an end to his liability, unless otherwise provided for
in the law.
26. The surety has the right to pay and discharge the
obligation the moment the principal is in default, and have
immediate recourse to his principal. He need not wait for the
commencement of an action, or the issue of legal process, but he
cannot accelerate the liability of the principal, and if he pays
money voluntarily before the time of payment arrives, he will
have no cause of action until such time, or if he pays after the
principal obligation has been discharged, when he was under no
obligation to pay, he has no ground of action,.
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27. Co-sureties are in general bound in solido to pay the debt,
when the principal fails, and if one be compelled to pay the
whole, he may demand contribution from the rest, and recover from
them their several proportions of their common liability in an
action for money paid by him to their use. 6 Ves. 807; 12 M. &
W. 421 8 M. & W. 589; 4 Scott, N. S. 429. See, generally, 15
East, R. 617; Yelv. 47 n.; 20 Vin. Ab. 101; 1 Supp. to Ves.
jr. 220, 498, 9; Ayliffe's Pand. 559; Poth. Obl. part 2, c. 6;
1 Bell's Com. 350, 5th ed.; Git-ing time; Principal; Surety.
SURGERY, med. jur. That part of the healing art which relates
to external diseases; their treatment; and, specially, to the
manual operations adopted for their cure.
2. Every lawyer should have some acquaintance with surgery;
his knowledge on this subject will be found useful in cases of
homicide and wounds.
SURNAME. A name which is added to the christian name, and
which, in modern times, have become family names.
2. They are called surnames, because originally they were
written over the name in judicial writings and contracts. They
were and are still used for the purpose of distinguishing persons
of the same name. They were taken from something attached to the
persons assuming them, as John Carpenter, Joseph Black, Samuel
Little, &c. See Name.
SURPLUS. That which is left from a fund which has been
appropriated for a particular purpose; the remainder of a thing;
the overplus the residue. (q. v.) See 18 Ves. 466.
2. The following is an example of a surplus; if a thing be put
in pledge as a security to pay one hundred dollars, and it be
afterwards sold for one hundred and fifty dollars, the fifty
dollars will be the surplus. Wolff, Inst. §697. See Overplus;
Residue.
SURPLUSAGE, pleading. A superfluous and useless statement of
matter wholly foreign and impertinent to the cause.
2. In general surplusagium non nocet, according to the maxim
utile per inutile non vitiatur; therefore if a man in his
declaration, plea, &c., make mention of a thing which need, not
be stated, but the matter set forth is grammatically right, and
perfectly sensible, no advantage can be taken on demurrer. Com.
Dig. Pleader, C 28, E 2; 1 Salk. 325; 4 East, 400; Gilb. C. P.
131; Bac. Ab. Pleas, 1, 4; Co. Litt. 303, b; 2 Saund. 306, n.
14; 5 East 444; 1 Chit. Pl. 282; Lawes on Pl. 63; 7 John.
462; 3 Day, 472; 2 Mass. R. 283; 13 John. 80.
3. When, by an unnecessary allegation the plaintiff shows he
has no cause of action, the defendant may demur. Com. Dig.
Pleader, c. 29; Bac. Ab. Pleas, 1, 4; see 2 East, 451; 4 East,
400; Dougl. 667; 2 Bl. Rep. 842; 3 Cranch, 193; 2 Dall. 300;
1 Wash. R. 257.
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4. When the surplusage is not grammatically set right, or it is
unintelligible and, no sense at all can be given it, or it be
contradictory or repugnant to what is before alleged, the
adversary may take advantage of it on special demurrer. Gilb. C.
P. 132; Lewes on Pl. 64.
5. When a party alleges a material matter with an unnecessary
detail of circumstances, and the essential and non-essential
parts of a statement are, in their nature, so connected as to be
incapable of separation, the opposite party may include under his
traverse the whole matter alleged. And as it is an established
rule that the evidence must correspond with the allegations, it
follows that the party who has thus pleaded such unnecessarly
matter will be required to prove it, and thus he is required to
sustain an increased burden of proof, and incurs greater danger
of failure at the trial. For example, if in justifying the taking
of cattle damage feasant, in which case it is sufficient to
allege that they were doing damage to his freehold, he should
state a seisin in fee, which is traversed, be must prove a seisin
in fee. Dyer, 365; 2 Saund. 206, a, note 22 Steph. on Pl. 261,
262; 1 Smith's Lead. Cas. 328, note; 1 Greenl. Ev. §51 1 Chit.
Pl. 524, 525; U. S. Dig. Pleading, VII. c.
SURPLUSAGE, accounts. A greater dishursement than the charges
of the accountant amount to.
SURPRISE. This term is frequently used in courts of equity and
by writers on equity jurisprudence. It signifies the act by which
a party who is entering into a contract is taken unawares, by
which sudden confusion or perplexity is created, which renders it
proper that a court of equity should relieve the party so
surprised. 2 Bro. Ch. R. 150; 1 Story, Eq. Jur. §120, note. Mr.
Jeremy, Eq. Jur. 366, seems to think that the word surprise is a
technical expression, and nearly synonymous. with fraud. Page
383, note. It is sometimes, used in this sense when it is deemed
presumptive of, or approaching to fraud. 1 Fonbl. Eq. 123 3 Chan.
Cas. 56, 74, 103, 114. Vide 6 Ves. R. 327, 338; 2 Bro. Ch. R.
826; 16 Ves. R. 81, 86, 87; 1 Cox, R. 340; 2 Harr. Dig. 92.
2. In practice, by surprise is understood that situation in
which a party is placed, without any default of his own, which
will be, injurious to his interest. 8 N. AS. 407. The courts
always do everything in their power to relieve a party from the
effects of a surprise, when he has been diligent in endeavouring
to avoid it. 1 Clarke's R. 162; 3 Bouv. Inst. n. 3285.
SURREBUTTER, pleading. The plaintiff's answer to the
defendant's rebutter is governed by the same rules as the
replication. (q. v.) Vide 6 Com. Dig. 185; 7 Com. Dig. 389
SUBREJOINDER, pleading. The plaintiff's answer to the
defendant's rejoinder. It is governed in every respect by the
same rules as the replication. (q. v.) Steph. Pl. 77; Arch.,
Civ. Pl. 284; 7 Com. Dig. 389.
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SURRENDER, estates, conveyancing. A yielding up of an estate
for life or years to him who has an immediate estate in reversion
or remainder, by which the lesser estate is merged in the greater
by mutual agreement, Co. Litt. 337, b.
2. A surrender is of a nature directly opposite to a release;
for, as the latter operates by the greater estate descending upon
the less, the former is the falling of a less estate into a
greater, by deed. A surrender immediately divests the estate of
the surrenderer, aud vests it in the surrenderee, even without
the assent (q. v.) of the latter. Touchs. 300, 301.
3. The technical and proper words of this conveyance are,
surrender and yield up; but any form of words; by which the
intention. of the parties is sufficiently manifested, will
operate as a surrender, Perk. §607; 1 Term Rep. 441; Com. Dig.
Surrender, A.
4. The surrender may be express or implied. The latter is when
an estate, incompatible with the existing estate, is accepted or
the lessee takes a new lease of the same lands. 16 Johns. Rep.
28; 2 Wils. 26; 1 Barn. & A. 50; 2 Barn. & A. 119; 5 Taunt.
518, and see 6 East, R. 86; 9 Barn. & Cr. 288 7 Watts, R. 128.
Vide, generally, Cruise, Dig. tit. 32, c. 7; Com. Dig. h. t.;
Vin. Ab. h. t.; 4 Kent, Com. 102; Nels. Ab. h. t.; Rolle's Ab.
h. t. 11 East, R. 317, n.
5. The deed or instrument by which a surrender is made, is also
called a surrender. For the law of presumption of surrenders, see
Math. on Pres. ch. 13, p. 236; Addis. on Contr. 658-661.
SURRENDER OF CRIMINALS. The act by which the public authorities
deliver a person accused of a crime, and who is found in their,
jurisdiction, to the authorities within whose jurisdiction it is
alleged the crime has been committed. Vide Extradition;
Fugitives from justice.
SURRENDEREE. One to whom a surrender has been made.
SURRENDEROR. One who makes a surren der; as when the tenant
gives up the estate and cancels his lease before the expiration
of the term; one who yields up a freehold estate for the purpose
of conveying it.
SURREPTITIOUS. That which is done in a fraudulent stealthy
manner.
SURROGATE. In some of the states, as in New Jersey, this is the
name of an officer who has jurisdiction in granting letters
testamentary and letters of administration.
2. In some states, as in Pennsylvania, this officer is called
register of wills and for granting letters, of administration in
others, as in Massachusetts, he is called judge of probates.
SURVEY, The act by which the quantity of a piece of land is
ascertained; the paper containing a statement of the courses,
distances, and quantity of land, is also called a survey.
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2. A survey made by authority of law and duly returned into the
land office, is a matter of record, and of equal dignity with the
patent. 3 Marsh. 226; 2 J. J. Marsh, 160. See 3 Greenleaf, 126;
5 Greenleaf, 24; 14 Mass. 149 1 Harr. & John. 20 1 1 Overt. 199;
1 Dev. & Bat. 76.
3. By survey is also understood an examination; as, a survey
has been made of your house, and now the insurance company will
insure it.
SURVIVOR. The longest liver of two or more persons.
2. In crises of partnership, the surviving partner is entitled
to have all the effects of the partnership, and, is bound to pay
all the debts owing by the firm. Gow on Partn. 157; Watson on
Partn. 364. He is, however, bound to account for the surplus to
the representatives of his deceased partners, agreeably to their
respective rights.
3. A surviving trustee is generally vested with all the powers
of all the trustees, and the surviving administrator is
authorized to act for the estate as if he had been sole
administrator. As to the presumption of survivorship, when two or
more persons have perished by the same event, see Civ. Code of
Lo. art. 930 to 933 and vide Death; Cro. Eliz. 503; 1 Bl. Rep.
610 2 Phill. Rep. 261; S. C. 1 Eccles. Reports, 250; Fearne on
Rem. iv.; Poth. on Obli. by Evans, vol. 2, p. 346; 8 Ves. 10;
14 Ves. 578 17 Ves. 482; 6 Taunt. 213; Cowp. 257; 5 Ves. 485.
Vide, generally, 2 Fonbl. Eq. 102; 8 Vin. Ab. 323; 20 Vin. Ab.
146; 8 Com. Dig. 475, 594; 1 Suppl. to Ves. jun. 115, 186, 407,
8, 2 Suppl. to Ves. jun. 47, 296, 340, 391,477; 1 Fodere, Med.
Leg. §424-483.
4. The right of survivorship among joint-tenants has been
abolished, except as to estates beld in trust, in Pennsylvania,
New York, Kentucky, Virginia, Indiana, Missouri, Tennessee,
Alabama, Georgia, North and South Carolina. Vide Estates in
Joint-tenancy. In Connecticut it never existed. 1 Swift's Dig.
102 see 1 Hill. Ab. 440. As to survivorship among legatees, see 1
Turn. & R. 413; 1 Br. C. C. 574; 3 Russ. 217. See Death;
Estates in Joint-tenancy; Joint-tenants; Partnership.
SUS' PER COLL', EngI. law. In the English practice, a calendar
is made out of attainted criminals, and the judge signs the
calendar with their separate judgments in the margin. In the case
of a capital felony. it is written opposite the prisoner's name,
"let him be hanged by the neck," which, when the proceedings were
in Latin, was, "suspendatur per collum," or, in the abbreviated
form, "sus' per coll'." 4 Bl. Comm. 403.
SUSPENDER, Scotch law. He in whose favor a suspension is made.
2. In general a suspender is required to give caution to pay
the debt in the event it shall be found due. Where the suspender
cannot, from his low or sus-pected circumstances, procure
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unquestionable security, the lords admit jura-tory caution; but
the reasons of suspension are in that case, to be considered with
particular accuracy at passing the bill. Act. S. 8 Nov. 1682;
Ersk. Prin. L. Scot. 4, 3, 6.
SUSPENSE. When a rent, profit a prendre, and the like, are, in
consequence of the unity of possession of the rent, &c., of the
land out of which they issue, not in esse for a time, they are
said to be in suspense, tunc dormiunt, but they may be revived or
awakened. Co, Litt. 313 a.
SUSPENSION. A temporary stop of a right, of a law, and the
like.
2. In times of war the habeas corpus act maybe suspended by
lawful authority.
3. There may be a suspension of an officer's duties or powers,
when he is charged with crimes. Wood's Inst. 510.
4. Suspension of a right in an estate is a partial
extinguishment, or an extinguishment for a time. It differs from
an extinguishment in this. A suspended right may be revived; one
extinguished is absolutely dead. Bac. Ab. Extinguishment, A.
5. The suspension of a statute for a limited time operates so
as to prevent its operation for the time, but it hits not the
effect of a repeal. 3 Dall. 365.
SUSPENSION, Scotch law. That form of law by which the effect of
a sentence-condemnatory, that has not yet received execution, is
stayed or postponed, till the cause be again considered. Ersk.
Prin. L. Scotl. 4, 3, 5. Suspension is competent also, even where
there is no decree, for putting a stop to any illegal act
whatsoever. Id. 4, 3, 7.
2. Letters of suspension bear the form of a summons, which
contains a warrant to cite the charger, Ib.
SUSPENSION, eccl. law. An ecclesiastical censure, by which a
spiritual person is either interdicted tho exercise of his
ecclesiastical function, or hin-dered from receiving the profits
of his benefice. It may be partial or total; for a limited time,
or forever, when it is called deprivation or amotion. Ayl.
Parerg. 501.
SUSPENSION OF ARMS. An agreement between belligerents, made for
a short time or for a particular place, to cease hostilities
between them. See Armistice. Truce.
SUSPENSION OF A RIGHT. The act by which a party is deprived of
the exercise of his right, for a time.
2. When a right is suspended by operation of law, the right is
revived the moment the bar is removed; but when the right is
suspended by the act of the party, it is gone forever. See 1
Roll. Ab. tit. Extinguishment, L, M.
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SUBPENSIVE CONDITION. One which prevents a contract from going
into operation until it has been fulfilled; as if I promise to
pay you one thousand dollars on condition that the ship Thomas
Jefferson shall arrive from Havre, the contract is suspended
until the arrival of the ship. 1 Bouv. Inst. n. 731.
SUSPICION. A belief to the disadvantage of another, accompanied
by a doubt.
2. Without proof, suspicion, of itself, is evidence of nothing.
When a crime has been committed, an arrest may be made when, 1st.
There are such circumstances as induce a strong presumption of
guilt; as being found in possession of goods recently stolen,
without giving a probable account of having obtained the
possession honestly. 2d. The absconding of the party accused. 3d.
Being found in company of known offenders. 4th. Living an idle
disorderly life, without any apparent means of support. In such
cases the arrest must be made as in other cases. Vide 20 Vin. Ab.
150; 4 Bl. Com. 290.
SUTLER. A man whose employment is to sell provisions aud liquor
to a camp.
2. By the articles of war, art. 29, no sutler is permitted to
sell any kind of liquor or victuals, or to keep his house or shop
open for the entertainment of soldiers, after nine at night, or
before the beating of the reveillee, or upon Sundays during
divine service or sermon, on penalty of being dismissed all
future sutling. And by art. 60, all sutlers are to be subject to
orders according to the rules and discipline of war.
SWAINMOTE COURT, Engl. law. The court within the forest to
which all the freeholders owe suit and service. Bac. Ab. Courts
of the Forest, 2.
TO SWEAR. To take an oath, judicially administered. Vide
Affirmation; Oath.
2. To swear also signifies to use such profane language as is
forbidden by law. This is generally punished by statutory
provisions in the several states.
SWINDLER, criminal law. A cheat; one guilty of defrauding
divers persons. 1 Term Rep. 748; 2 H. Blackst. 531; Stark. on
Sland. 135.
2. Swindling is usually applied to a transaction, where the
guilty party procures the delivery to him, under a pretended
contract, of the personal property of another, with the felonious
design of appropriating it to his own use. 2 Russel on Crimes,
130; Alison, Prine. Cr. Law of Scotland, 250; Mass. 406.
SYMBOL. A sign; a token; a representation of one thing by
another.
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2. A symbolical delivery is equivalent, in many cases, in its
legal effects, to actual delivery; as, for example, the delivery
of the keys of a warehouse in which goods are deposited, is a
delivery sufficient to transfer the property. 1 Atk. 171; 5
John. 335; 2 T. R. 462; 7 T. R. 71; 2 Campb. 243; 1 East, R.
194; 3 Caines, 182; 1 Esp. 598; 3 B. & C. 423.
SYNALLAGMATIC CONTRACT, civil law. A synallagmatic or bilateral
contract is one by which each of the contracting parties binds
himself to the other; such are the contracts of sale, hiring,
&c. Poth. Ob. n. 9. Vide Contract.
SYNDIC. A term used in the French law, which answers in one
sense to our word assignee, when applied to the management of
bankrupts' estates; it has also a more extensive meaning; in
companies and communities, syndics are they who are chosen to
conduct the affairs and attend to the concerns of the body
corporate or community; and in that sense the word corresponds
to director or manager. Rodman's Notes to Code. de Com. p. 351;
Civ. Code of Louis. art. 429; Dict. de Jurisp. art. Syndic.
SYNGRAPH. A deed, bond, or other instrument of writing, under
the band and seal of all the parties. It was so called because
the parties wrote together.
2. Formerly such writings were attested by the subscription and
crosses of the witnesses; afterwards, to prevent frauds and
concealmenta, they made deeds of mutual covenant in a script and
rescript, or in a part and counterpart, and in the middle between
the two copies they wrote the word syngraphus in large letters,
which being cut through the parchment, and one being delivered to
each party, on being afterwards put together, proved their
authenticity.
3. Deeds thus made were denominates syngraphs by the canonists,
and by the common lawyers chirographs. (q. v.) 2 Blackstone's
Commentaries, 296.
SYNOD. An ecclesiastical assembly.
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