PERPETUITY
Perpetuate testimony.
'
If
pending. 1
Such bills are indispensable
may be
PERQUISITE. See Emolument.
PERSON. Persons in law are either nat-
a witness to
a disputed fact is old and infirm, or going
abroad, it is not unusual to file a bill to " perpetuate " his testimony, although no suit be
it
PERSON
7T0
in securing justice, as
impossible for a party to bring Us rights
presently to a judicial decision; and unless, in the
meantime, he may perpetuate his proofs, the rights
may be lost without default in him. The
law adopted similar means of preserving testimony. Bills to take testimony de bene esse arise when
themselves
ural or
PERPETUITY.
Of the sovereign!
1.
absolute immortality in his political capacity.
The settlemeht of an interest in property, which will go in the succession prescribed, without any power of alienation.^
3.
A grant of property wherein the vesting of
an
interest is unlawfully postponed.*
So called, not because the grant, as written, would
actually make the estate perpetual, but because it
transgresses the limits which the law has set in restraint of grants that tend to a perpetual suspense of
the title, or of its vesting, or, as it Is sometimes expressed, with less accuracy, to a perpetual prevention
of alienation,^
A limitation
which renders it
inalienable beyond the period allowed by
law,8
a life or lives in being and twenty-
—
one years more, with a fraction of a year
added for the term of gestation, in cases of
posthumous birth.
All that is required is that the estate shall vest
within the prescribed period. The right Of possession
may be postponed longer.'
by the law. They make
com-
Perpetuities are abhorred
estates incapable of answering the ends of social
merce, and providing for the sudden contingencies of
private life, for which property was at first established.^
Com.
2;
450.
1
3 Bl.
2 Story, Eq. §§ 1505-13; Hall v. Stout, 4 Del. Oh. 873
(1871); 3 Daniel,
» 1 Bl.
»
2 Bl.
Com.
Com.
Oh. Pr. 955;
1
Pomeroy, Eq.
§§ 83, 810.
tion. =
In internal revenue laws, includes a partnership,
company, or coiporation, as well as a
natural person.*
association,
In the Revised Statutes, or any act or resolution of
Congress passed subsequently to February 35, 1874, the
word may extend and be applied to partnerships and
corporations, unless the context
limited sense
A private
V.
J.
shows that a more
intended. =
corporation
is
included within the prohi-
one of the Fourteenth Amendment,
that no State shall deny to any person the equal protection of the laws.*
May include a State, or the United States.'
Includes Indians, within habeas corpus ^ and intercourse acts.*
In a statute, includes women, unless the context
shows an intention to
liihit it to
men."
In short, while " any person or persons " comprehends every human being, the terms will be limited to
the class or classes in the mind of the legislature.
While a natural person may do any act which he
is not prohibited by law from doing, an artificial person can do none which the charter giving it existence
does not expressly or by fair inference authorize."
" Injuries to the person " import hm-t to the body,
physical injuries; as, in a civil damage law.'"
Offenses against the person are: homicide, mayhem, rape, robbery, buggery, battery, wounding, false
imprisonment, kidnaping, abduction. ^^
The rights of persons are those which concern and
are annexed to the persons of men; and they are
either absolute or relative. See Right, 2.
Bl.
Com.
123, 467.
1
1
"
United States
"
«
R. S. § 5013.
R. S. § 3140; 15 Op. Att.-Gen. 230.
»
R. S. §
Saw.
1; 11
v.
Fox, 94 U.
Wheat.
S. 331 (1876).
412; 12 Pet.
Pembina Mining Co.
v.
94 U. S. 321; 8
R. 404; 87 Ind. 696.
1.34;
239, 269, 274-75, 281, 283-92; 18 F.
Pennsylvania, 125 U.
S. 189
174.
City of Philadelphia v. Girard's Heirs, 45 Pa. 26
(1868), Lowrie, C. J.; 10 id. 334; 88 td. 495.
s
«Ould
Swayne,
is
bition of section
"
249.
legislation. ^
In the bankruptcy acts, person included a corpora-
Mortmain.
=
—
and powers from
Trusts created for charitable or public pmT)oses are
not subject to the rule.'
See Accumulation; Charity,
are
and government
corporations or
bodies politic, i which derive their existence
society
clearly
of property
persons
;
civil
suits are actually pending."
Ifattiral
artificial.
such as the God of nature formed us artificial persons, such as are created and devised by human laws for the purposes of
Washington Hospital,
See also Perin
v.
95 U. S. 318 (1877),
Carey, 24
How.
494 (1860)
Saund. Uses, &c. 196; MoArthur v. Scott, 113 U. S. 38383 (1885), cases. Gray, J.
' Bruce v. Nickerson, 141 Mass. 403 (1886).
« 3 Bl. Com. 174; Quid's Case, sapra; De Wolf v.
Lawson, 61 Wis). 474 (1884); 76 Va. 147.
« Jones V. Habersham, 107 U. S. 185 (1882); Detwiller
V. Hartman, 87 N. J. E. 354 (1888).
'Alabama
i6. 217; 9
St. 611
;
Certificates, 12
Kan.
Op. Att.-Gen. 179
194; 33 Minn. 436; 8 N. J. E. 590;
(1867);
^ Ohio
24 Tex. 61.
United States v. Crook, 5 Dill. 458 (1879).
• United States v. Shaw-mux, 2 Saw. 364 (1873).
" Opinions of the Justices, 136 Mass. 680 (1883); 74 Ga,
'
795.
' Smith V. Alabama Life Ins. &
Trust Co., 4 Ala. 568
(1843).
" Calloway v. Laydon, 47 Iowa, 458 (1877).
" 4 Bl. Com. 205-19.
PERSONA
771
Person, fictitious.
See Decoy;
For-
gery.
Persons in public employment.
Libel,
1;
diction, 2; Name,
Bail, 8; Body, 1; Citizen; ExIndividual; Inspection, 2; Juris-
personal or
a personal
— action,
asset,
baggage, chattel, contract, covenant, credit,
disability,
knowledge,
of action or a defense.
estate,
goods, injury,
liability, liberty, note,
perform-
ance, property, representative, security, service, servitude, tax.
Referring to some subjects
—
—
as,
an action,
" personal
property
means simply movable, transitory: that
which may follow the person of the owner
asset, chattel, estate,
lesser;
— "per-
contrasted with real, or that which
concerns real estate.
See those substantives.
Personalty. Personal property,
q. v.
To assume the character of
another without authority and do something
Personate.
to his or a third person's detriment.
Known
as "false personation," whicli
meanor both at common law and,
is
a misde-
generally,
by
for
—
a
A
Formal written application
a superior for the exercise of his authority.
to
See Petitio.
An application, in writing, to bring before
a court a matter in regard to which judicial
action is necessary, a suit being inappropriate from there being as yet no adversary
party. 5
Under code practice, the first pleading filed by a
plaintiff, wherein he states the facts of his case as they
actually occurred.'
" Petition " describes an application in writing, in
contradistinction to a " motion," which may be viva
voce.''
felony, punishable with penal servitude
There may be a false
personation of an ofScer for
the purpose of maldng a pretended arrest, or collecting fines, taxes, or other alleged dues.
Falsely personating any person under the provisions
of the naturalization laws,' or any person holding a
claim against the government, are criminal ofEenses.*
See Chinese, p. 177, sec. 7; Pretense, False.
A person.
L.
He who
The person adversely
presents a petition.
interested
is
called the " re-
spondent."
any
life.'
PERSONA.
the
petty
Petitio prineipii.
begging of the
question: assuming as conceded or settled
the question at issue.^
Petitioner.
is
as,
tition.
In England, since 1874, to personate any person or
his heir, executor, etc., with intent to claim succession
family,
opposed to gfrand and high:
g. v.; petit or petty
jury, larceny, treason, qq. v. See also PETTiFoaGEK.
Petty-bag office. Proceedings to cancel letterspatent were in the " Petty Bag " office of the court of
chancery, in which common-law proceedings were
cai^ied on, and all were entitled "In the Petty Bag
Office in Chancery." = See Hanapeb.
PETITIO. L. Requesting, seeking: pe-
statute.^
to property, or falsely- to claim relationship to
little;
PETITION.
—
Again, referring to some subjects
as, an
action, contract or covenant, defendant, inis
;
Small,
constable,
or defendant.
jury, privilege, security, service, tax
is useful in proving a cause
See Impertinence Eelevant.
PETIT; PETTY.2
1.
;
sonal "
Relevant;
materially
Opposed, impertinent.
Said of evidence which
2;
Personal. Pertaining to the person belonging to an individual person; individual:
by
PERTENTENT.
relevant.
See also Arrest,
demand,
soever the influence is brought to bear, whether
parents, uncles, or others.'
See
5.
pose; IpENTiTT,
as,
PETITION
The use of
petitions to induce the exercise of judi-
power is manifold. By means of
them proceedings are begun, expedited, and termicial discretion or
nated in the settlement of decedents' and insolvents'
estates; in the appointment, change, and discharge of
guardians, committees, assignees, and other trustees,
in the filing, auditing, and settling of their accounts; in the appointment of viewers under laws re-
and
lating to the opening of highways, the construction
of bridges, canals, etc. In equity practice, they are
generally ancillary to suits already begun.
See Actio, Personalis; Delectus, Desceiptio, PerPersonam, Propria, etc.; Mobilia.
There are also petitions for alimony and other
al-
sonse: In,
PERSUADE.
To
See Influence.
"inveigle, persuade, or entice" a child into in-
voluntary servitude, necessarily implies assent yielded
as the result of the persuading or enticing, by whom-
J
United States
Blatchford,
^
'
v.
Aucarola, 17 Blatch.
423, 430 (1880),
J.
" Petty " is the anglicised word.
F. petit.
Attorney-General v. Euraford Chemical Worlrs, 38
F. E. 618 (1876).
See 4
'
Bl.
Stat. 37
Com.
248; 2 Euss. Cr. 479.
& 38 Vict. c. 36.
»
E. S. § 5434.
<
E. S. §
54315.
•107D. S. 507; 29V7is. 197.
«Bergen v. Jones, 4 Meto., Mass., 376 (1842), Shaw,
C. J.; 67 N. Y. 547; 48 Miss. 36.
• See Atchison, &c. E. Co. v. Eice, 36 Kan. 599 (1887).
«
PLEDGE
New,
Special; MtjLTrpARiousNEss; Negative;
Paper,
Oyer;
Practice; Procedure; Profeht; Protestation; Eepugnant; Said; State, 1; Surplus ase;
5;
Traverse; Videlicet.
PLEDGE.! A bailment of personal propsome debt
erty as a security for
or engage-
ment.2
A
PTLURIES
780
Where there
no express agreement, the intentionmode by which the security
shall be converted into money, must be implied from
the nature of the property pledged and the circumstances of the transaction.*
See Bailment; Condition; Factor; Foreclosure
Mortgage; Pawn; Eeueem; Replevin; Security, 1,
Compare PiGNUs; Vadium.
deposit of personal property as security,
with an implied power of
The thing
Pledgee.
itself
sale
PLEDGES. See Doe.
PLENA. See Peobatio.
PLENE. See Administeaee
upon default.'
thus deposited or bailed.
receives a pledge; a
He who
PLENIPOTEIfTIARY.
Pledgor;* pledger.
He who
delivers
a
a pawnor.
;
.
a chattel is a conveyance of the
legal title upon condition, and becomes absolute at
law if not redeemed by a given time. A " pledge " is
a deposit of goods, redeemable on certain terms, with
or without a fixed period for redemption. In a pledge
the general property does not pass, as in the case of a
mortgage, and the pawnee has only a special property
in the thing. He must choose between two reiriedies:
a bill in chancery for a judicial sale under a decree of
foreclosure, or a sale without iudicial process, on the
refusal of the debtor to redeem^ after reasonable notice to do so.^
Delivery of the thing
is
essential to the completion
of the contract. When possession is retained by the
pledgor the contract is an hypothecation,* q. v.
The pledgee of bills receivable may hand them back
to the debtor for collection, or to be replaced by others
and collections made thereon are for the pledgee.'
When the pledgee parts with the pledge to a bona
fide purchaser (without notice of any right in the
pledgor), the pledgor cannot recover against such purcl/aser without first tendering him the amount due.^
The possession which is essential need not be actual:
it may be constructive; as, where the key of a warehouse containing the property is delivered, or a bill of
lading is assigned. In such case, the act done will be
considered as a token, standing for an actual delivery.
It puts the property under the control of the creditor.*
1
»
M. E. plegge, a hostage, security: F. plege, a surety.
Story, BaUm. § 286; 37 Cal. 25; 59 id. lOT; 41 N. Y.
241; 2 Kent, 577.
Jones, Pledges,-|_l. See also 78 lU. 452; 83 id. 326.
if spelled pledge-or, i. e., pledj-or.
s
<
Pronounced as
*
Pledgcor
is
v.
;
Roberts, 17 E. E. 778, 782U883), cases.
Wall. 368-69 (1874): White v.
Piatt, 5 Denio, 271 (1848); Casey v. Cavaroo, 96 U. S.
Mitchell
'Clark
v.
Iselin, 21
V.
476-80 (1877), eases.
'
26
Talty
V.
.
Freedman's Savings, &c.
Co., 93 U. S. 324-
Casey
v.
Minis-
In old English law, the habit
or quality of a thing, whether property, real
or personal, or an estate or right therein. 2
To deliver a thing in " the same plight and condition " is-a
common
PLOT.
expression.^
See Plat.
PLUNDER.*
ing
The most common meanproperty from persons or
to take
is,
places by open force, as in the case of pirates
In another
or banditti.
(in
some degree
common meaning
figurative),
idea of taking property
expresses the
from a person or
place without just right, but not stating the
nature or quality of the wrong done.'
Embraces robbery and fraudulent taking, or emThus, a vessel may be said to be plunif openly attacked and robbed, but if
property be taken from her furtively, in the night
time, or after she has been abandoned by the crew."
bezzlement.
dered, not only
PLURAL.
Plurality.
PLURIES.
See Number.
See Bigamy; Majority.
Many times;
L.
often; for-
merly.
The emphatic word in the Latin form of a
writ issued after a second writ of a like kind
had been returned unexecuted.
If the sheriff cannot find the defendant upon the
first writ of capias, and returns a non est inventus^
there issues an alias writ, and after that a pluries.
writ to the same effect as the former, except that after
the words " we command you as we have — " often "
*'
Cavaroc, 96 U.
British
of
Columbia
S. 477 (1877),
Bradley, J.;
v.
Marshall, 11 F. E.
19-
(1882).
*
Merchants' Nat. Bank
v.
Thompson,
133 Mass. 48&-
87 (1882), cases; Story, Bailm. | 308.
2
Coke, Litt.
221.
See 95 U. S. 764; 101 id. 406, 738; 2 Bl. Com. 485.
<Gr. plunder, trash, trumpery: to strip of even
worthless stuff.
» Carter v. Andrews, 16 Pick. 9 (1834), Shaw, C. J.
•United States v. Pitman, 1 Sprague, 198 (1852): 14
St. L. 121 R. S. § 6361 United States v. Stone, 8 F. E.
s
:
;
846-49, 233 (1881); 1 Pet.
(1876), cases.
»
See
3.
Bank
Darlington, 5 Blaokf. *322(1840); Wright
». Ross, 36 Cal. 428, 441 (1868); 8 Johns. 98: 2 Barb. 543;
43 id. 610; 38 Md. 251 2 Ves. 378.
•See 2 Bl. Com. 159; Jones, Pledges, § 23; Story,
Bailm. §§ 286, 308; Brewster v. Hartley, 37 Cal. 25
(1869);
CoMpu-
rarely found in standard law publications.
Compare Mortgagor.
'Evans
ter,
PLIGHT.
A " mortgage " of
;
TAEE.
pawnee.
pledge
is
of the parties, as to the
2 Euss. Cr. 150.
Adm.
842; 1 Bish. Cr. L. § 141;
PREBEND
powers. It serves as a guide to the intentions of the
framers, -B-hich is only the first stage on the road to
construction. Not being an essential part of a statute, it is frequently omitted. *
A recital in a contract declaring the
3.
tention of the parties.
FBEBEND. An
in-
endowment
in land, or
Revocable at the will
of the creator
or owner: as, a precarious
right or loan.
See Precaeium.
Compare
The circumstances of an executor are
" precari-
ous " ijphen his conduct evidences such improvidence
as, in the opinion of prudent men, endangers the security of the trust estate."
PRECARIUM.
L.
A thing held by en-
— at the will of another.
A contract by which a thing was
See Minister, 3 Precedent; Priority; Privilege; Rank.
PRECEDENT.^ 1, adj. Going before;
to happen or be performed before any right
under it can vest or be claimed as, a preced;
ent condition q. v.
3, n. An authoritative example.
,
A decision
Describes an expression
in a will which requests that something be
— recommendatory words.
Courts of equity have gone great lengths in creating implied or constructive trusts from such words.
The tendency is to discourage extending the doctrine.
Whenever the object, or the property, of the supposed trust is not certain or definite, or a clear discre-
and choice to act is given, and whenever prior dispositions Import uncontrollable ownership, the comts
will not create a trust from precatory words."
Words of entreaty, recommendation or wish, addressed by a testator to a devisee or legatee, make
him a trustee for the person in whose favor such expressions are used, provided the testator has pointed
out with clearness the objects of the trust, and the
subject-matter on which it is to attach or from which
tion
and be administered.'
there be a trust sufficiently expressed and capable of enforcement, it does not disparage, much less
it is
his beneficiary.*
PRECEDENCE.
back.*
PKECATORY.5
done
upon
:
delivered into the
custody of a person until such time as the owner
it
may be
defeat and limit the extent of the interest conferred
Precatory.
might want
when he used them. On
the one hand,
merely those of suggestion, counsel,
or advice, intended only to influence, and not to take
away the discretion of the legatee growing out of the
right to use and dispose of the propertj^ given as his
own. On the other hand, the language may be imperative in fact, though not in form, conveying the
intention of the testator in words equivalent to a command, and leaving to the legatee no discretion to defeat his wishes, although there may be a discretion to
accomplish them by a choice of methods, or even to
the words
prebendary. 2
PRECAKIOITS.
defeat it, to call it "precatory." The question of its
existence depends, after all, upon the intention of the
testator as expressed by the words he has used, according to their natural meaning, modified only by
the context and the situation and circumstances of
the testator
See Contract.
a pension in money, given to a cathedral or
conventual church in prcebendam: for maintaining a secular priest or regular canon as a
treaty
PRECINCT
799
to arise
U
cited in support of a proposi-
See further Decisum, Stare, etc.
A draught of a deed, pleading, will, or
other instrument serviceable as a model or
tion.'
form.
As the
of a law book, " precedents " denotes a
forms approved by usage and, perhaps,
title
collection of
by
judicial decision.
PRECEPT. A command or
mandate in
Of equal import with writ or proSee Precipe.
cess.-'
PRECINCT. The limits of an officer's
jurisdiction, or of an election district.
writing.
As used
in the return to a process, the ter-
ritory within
which the
officer
may
legally
discharge the duties of his office.*
general word, indicating any district
marked out and defined. In a given connec-
A
may signify a district inferior to a
county and superior to a township."
tion,
Copeland v. Memphis, &c. R. Co., 3 Woods, 600
Pet. *317 (1835);
(1878), Woods, J.; Beard v. Eowan. 9
Smith, 76 Va. 484-85 (1882), cases; IB
Irish Law Times; 15
27-29 (1884), cases
Pick. 251; 69 Pa. 3.33; Dwar. Stat. 107.
Commonwealth
Cent.
Law
Johns. 116;
s
1
Randolph
'Shields
4
J.
v.
v.
—
In Wisconsin, formerly referred to certain districts
having similar functions toithose of towns, and which
passed away upon the formation of the first legislative
B., 4 C. P. *in a868j.
Barb. 61 (1870), Potter, J.
Milman, L.
v. Shields, 60
See Story, Bailm. §§
227, 253 6;
Hadley, Rom. Law,
Colton
V.
Matthews,
J.
(1885),
178.
5
L. precari, to pray, entreat, request.
•2Story, Eq. §§ 1086-70.
'Warner v. Bates, 98 Mass. 276-78 (1867), cases,
198-206
Bigelow, C. J. Handley v. Wrightson, 60 Md.
59 Wis. 172, 178-85 (1884),
(1883), cases; Knox v. Knox,
1
Colton, 127 U. S. 312-21
See generally 20 Cent,
cases; 27
Am. Law Reg.
(1888),
Law
J.
cases,
63-66
459-63 (1888), cases;
Perry, Trusts, §§ 112-23, cases.
'1. Pre-oed'-ent.
2.
PrSc'-e-dent.
On the value of, see 10 Va. Law J. 582 (1886).
• Adams v. Vose, 1 Gray, 58 (1854), Dewey, J.
>
;
cases;
Howard
Dec. 365, 369;
v.
Carusi, 109 U.
Hawk.
S. 725 (1884);
Wills, 159 (1885), cases.
44
Am.
Brooks V. Norris, 124 Mass. 173 (1878),
•Union Pacific E. Co. -v. Cheyenne,
»
(1886),
Bradley, J.
Colt, J.
118
U.
S. 524
,
PREGNANCY
PREJUDICE
801
Preference. A payment to one creditor
which will or, possibly, may give him an ad-
A woman
"with child" is a "pregnant woman,'
meaning of a statute punishing assault
witliin the
with intent to procure a miscarriage.'
vantage over others. 1
See Quicken-
ing.
In the absence, of a bankrupt law, a failing debtor
may prefer one creditor to another by a deed, a judg-
ment, or other means, except, in some States, by an
assignment in trust. The effect may be to delay a
creditor not preferred, in fact to prevent his obtaining
payment at all; but if the honest intent was to pay
^he preferred debt, the transaction is not invalidated
bj the statute of 13 Elizabeth. That statute Is aimed
at transfers of property or preferat intended fraud,
ences which are not bona fide, but collusive arrangements " to delay, hinder, or defraud " particular cred-
—
As to pretended or alleged pregnancy, see Reprieve; Venter, 1.
Pregnant.
In pleading, see AffirmaNegative.
PREJUDICE. Fore-judgment, pre-judgment; detriment, disadvantage.
A prejudice is a pre-judgment. The popular meaning involves some grudge or ill-
tive
The mere existence of a desire that a particular
may succeed by suit,, judgment, execution,
creditor
and levy, in obtaining a preference, is not sufficient to
establish that the debtor "procured or suffered" his
property to be taken on legal process with intent to
prefer such creditor, if the proceedings were the usual
proceedings in a suit, unaided by any act of the debtor,
either by facilitating the proceedings as to time or
method, or by obstructing other creditors who Otherwise would obtain priority."
If debtors could not give preferences to bona fide
creditors, while they yet retain dominion over their
property, the transaction of business would be em-
will, as
See Conveyance,
Being with
with others, or from reading imperfect newspaper reThe opinion must be upon the merits of the
question, and be such as would be likely to bias or
prevent a candid judgment, upon a full hearing of
child.
ports.
If one has formed what in ^ome sense
might be called an opinion, but which yet falls short
of exciting any bias or prejudice, he may consistently
discharge bis duty as a juror.*
The right to a trial by an impartial jury does not
mean that the jurors must have no prejudice or opin-
the evidence.
203 (1873), Lowell, J.
Carter, 38 Pa. 453 (1861),
Wolfersberger, 19 id. 61 (1853);
Smith V. Craft, 11 Biss. 347 (ia52); Clarke v. White, 12
Pet. 200 (1886); Lucas v. Claflin, 76 Va. 276-79(1882),
Worman
v.
v.
ion as to the policy of enforcing the laws.* See further Bias Impartial, 1 Opinion, 2.
The " prejudice " in the mind of a judge which will
afford ground for a change of venue refei-s to an
opinion in regard to the case, formed beforehand,
Jewett V. Noteware, 30 Hun, 194 (1883), cases; Sartwell
V. North, 144 Mass, 192-95 (1887), cases; 48 Ala. 376; 10
Cal. 277; 19 id. 46; 4 Del. Ch. 5.36; 4 B. Mon. 296; 13 K. L
without examination, or a prepossession; not, an
opinion on the questions of law involved; » prejudice
against the party personally.'
463;
'
(1881),
Blatchf ord, J.
;
Wilson
v.
17 Wall. 483-87 (1873), Miller, J.
U.
'
S. 434 (18^7),
19 Blatch. 316-17
Bank
Jewell
t-.
itt,
or done
mission of
cases.
V.
Reynolds, 3 Allen, 609
liability,
(1862);
Leavitt
v.
Leav-
(1884),
cases;
or
Bish. Mar.
1
-
(3)
to affect the rights
Foss, 12 Allen, 26 (1866);
Crehore, 99 Mass. 330 (1867); Hedden v.
Farr«. Farr, 2 McArthur,
Allen's Appeal, 99 Pa. 198 (1883); State v.
Shoemaker, 62 Iowa, 344
Sup. Ct. Mich.
(51)
(1887),
(1884);
Sissung
cases; 18 Cent.
v.
Sissung,
Law
J. 115-16
Am.
People, 83 N. Y. 464
Eckhardt
State, 12 Ga. 448-50 (1863), Nisbet, J.
Commonwealth v. Webster, 5 Cush. 297 (1850),
8
Willis
v.
'
Hungei-f ord
;
«.
v.
Noelke, 17 Blatch. 562-63
3 McCrary, 237.
Cushing, 2 Wis. *405
Chief Justice.
"
(1881).
V.
cases, Choate, J.
v.
§§ 179-91, cases; 44
1
v.
Foss
& D.
'
21 N. J. E. 61 (1870);
35 (1875);
said
B. 112, cases.
Shaw, C. J.
4 United States
13 Mich. 452 (1865);
Crehore
Hedden,
is
not(l) to be construed as an ad-
is
v.
Woonsocket Rubber Co. v. Falley, 30 F. R. 808, 811-12
(1887), cases; Weil v. Polack, ib. 813 (1887), cases.
5 See Hoffman v.
Hoffman, 30 Pa. 417, 481 (1858);
Baker v. Baker, 13 Cal. 87, 92-106 (1869), cases; Reynolds
Without prejudice. That what
of St. Paul,
Knight, 123
Colorado Coal & Iron Co., 9 Col. 64-65
cases. As to assignments with preferences, see
Campbell
(1885),
;
City
;
;
cases; Tootle v. Coldwell, 30 Kan. 134 (1883), cases;
Bump, Fraud. Conv. 220, cases.
Brown v. Jefferson County Bank,
as to guilt or inno-
opinion, or is insensible of any bias or prejudice,"" intends to exclude any person who has made up his
mind, or formed a judgment in advance. Yet. the
opinion or judgment must be something more than a
vague impression, formed from casual conversations
band was without knowledge of the woman's condition, either from her confession or appearance.'
Strong, J.;
a fixed
A man cannot be "prejudiced" against another
without being "biased "against-him; but he maybe
biased without being prejudiced.'
Implies nearly the same thing as opinion; a prejudgment of the case, and not necessarily enmity
or ill-will against a party. A statute excluding as a
juror a person who has " formed or expressed an
Existing at the time of marriage by another'than
the husband, is ground for divorce, provided the hus-
[Re Hapgood, 2 Low.
York County Bank
is
cence.*
Fraudulent; Suffer.
2,
PREGN-AJTCY.
A
well as a pre-conceived opinion.
judgment or opinion
barrassed.*
2
;
disqualifying prejudice in a juror
itors.'
'
(2)
Wheeler
v.
Lawson,
57 Wis. 402
(
(1863),
(1880),
Whiton,
PRELIMINARY
of the party before the law or his standing
in court.
Thus, an offer in compromise (g. v.) of litigation is
presumed to have been made *' without prejudice."
A letter marked "without prejudice," and the reply, although the latter is not so marked, cannot be
used as an admission.^
When a bill in equity is dismissed without a con'
sideration of the merits, the practice
is
for the court
decree that the dismissal is "without
prejudice." An omission of the qualification will be
corrected. 8 The decree of dismissal is not a bar to a
subsequent suit for the same cause of action, if the
complainant, in another suit, can obviate the defects
to express in
its
of the existing
bill.*
PEELIMINARY.
Peace,
3,
PREMISES
802
Injunction;
See
Articles of; Peoof.
PREMEDITATE.
But the time need not be
must be suiflcient for some reflection and
consideration upon the matter, for choice to kill or not
to kill, and for the formation of a definite purpose to
appreciable space of time.
long.
It
When the time is sufBcient for this, it
how brief it is. The mind acts with a
kill.
not
matters
celerity
which it is sometimes impossible to measure, and
whether a deliberate and premeditated design to kill
was formed must be determined from all the circumstances of the case.'
The killing must be a pre-determined killing upon
and not a sudden killing' upon a momentary excitement and impulse of passion, upon
consideration,
provocation given at the time, or so recently before .as
not to allow time for reflection. This design may be
formed at the moment of the commission of the act.*
The law leaves the existence of a fully formed
by the jury from
tent as a fact to be determined
To think
of in ad-
vance; to determine upon beforehand; to
in-
all
the facts in evidence.'
See DELmERATioN, 3; .Drunkenness; Murder.
PREMISES.*
intend, design.
Something sent or put be-
foregoing statements;
already
scheme beforehand. ^
A " premeditated design" to kill means
simply an intent to kill. Design means intent, and both words essentially imply " pre-
fore:
meditation." Premeditation does not exclude
ant expects to recover. (2) In a declaration,
the statements, in the early part, out of which
To
plan, contrive, or
sudden
intent,
and need not be slow or
last
long.'
" Premeditated " has been invariably defined by
the supreme court of Missouri as " thought of before-
hand for any length of time, however.short." '
The execution of the guilty purpose must be settled
upon reflection. A full and determined pm*pose is
necessary, as distinguished from an impulsive fatal
act.
No
particular period of time
is requisite,
but
deliberation must take place. ^
" Deliberation and premeditation " imply that the
act has been " done with reflection," " conceived bestill
Some time
forehand."
for deliberate reflection
is
mentioned
1.
A charge
of killing with " premeditation "
was design or
means
intent before the act; that
is,
that the accused planned, contrived and schemed beforehand to kill.
killing with " deliberation " means
A
that the act was determined upon after reflection, and
that " the consequences, chances, and means were
weighed, carefully considered and estimated." *"
A design to kill must precede the killing by some
1
!
s
West V. Smith, 101 U. S. 273 (1879), cases.
Hoghton V. Hoghton, 15 Beav. 321 (1858).
Durant v. Essex Company, 7 Wall. 109 (1868),
County of Mobile v. Kimball, 102 U.
Field, J. Eagsdale v. Vicksburg, &c. R.
Co., 63 Miss.
488 (1884); Mobile, &c. E. Co. v. Davis,
271 (1884).
*
;
»
S. 705 (1880),
[Craft V. State, 3 Kan. 483 (1866), Crozier, C. J.
»
[Hogan
'
State V. Harris, 76 Mo. 363
'
People
•
Simmerman
>°
ib.
V.
V.
State, 36 Wis. 244 (1874),
Mangano,
89
(1882),
Hun,
v. State, 14
C. J.
Norton, J.
262 (1883), Cullen, J.
Neb. 569
State V. McGafflu, 36 Kan. 319
ston, J.
Ryan,
(1883),
Lake, C. J.
John-
(1887), cases,
"by
pressions,
:
as,
in the ex-
reason of the premises," "in
consideration of the premises."
2.
In a deed, all that precedes the habenthat is, the date, parties, consideration,
dum;
grant, description, recitals, exceptions, etc'
The premises being the part of a deed in which the
thing is granted, the habendum, which serves to limit
the certainty of the estate, cannot increase the grant.*
3.
A
distinct portion of realty; land, or
lands; tenements, buildings.'?.
In
common
parlance, land with
its
ap-
purtenances. In a conveyance, "the thing
demised or granted by the deed." 8
In a policy of insurance on a vessel, " insured premmeans the vessel."
In a policy upon a habitation, covers the whole
dwellings, out-houses, and appurproperty insured
tenances, which together compose the establishment.
ises "
—
"^
'
'
Judge.
in equity, the stating part,
the defendant's liability gi-ows
People
Majone, 91 N.
V.
'McDaniel
Field,
bill
the narrated facts upon which the complain-
necessary.*"
that there
In a
(1)
facts
introductory matter.
;
Hinton,
"X".
812 (1883), Earl, J.
Commonwealth,
v.
77
Va. 284
(1883),
J.
Drum, 58
Pa. 16 (1868),
Agnew, J.
which
stated be-
'
Commonwealth
*
L. prcemissa (sententia), that
v.
is
forehand.
Com.
298; 44
'
See 8
•
Brown u Manter,
Bl.
'See Bowers
v.
81
Me. 416; 15 Md.
N. H. 633
Pomeroy,
81
63.
(1869).
Ohio
St. 190 (1871);
4
Duer, 191.
8 Zinc Co. V. Franklmite Co., 13 N. J. E. 331 (1861),
Green, Ch. 15 id. 468.
"Reidu Lancaster Fire Ins. Co., 19 Hun, 386(1879).
" Herman v. Adriatic Fire Ins. Co., 45 N. Y. Super.
;
PRESIDENT
or of his Death. Resignation, or Inability to discharge
Powers and Duties of the said Office, the Same
shall devolve on the Vice President, and the Congress
may by Law provide for the Case of Removal, Death,
Resignation, or Inability, both of the President and
Vice President, declaring what Officer shall then act
as President, and such Officer shall act accordingly,
until the Disability be removed, or a President shall be
the.
elected."
^
An
act approved January 19, 1886 (34 St. L. 1), provides, section one, that " in case of the removal, death,
resignation, or inability of both the President and
Vice-President, the secretary of state, or if there be
none, or in case of his removal, death, resignation, or
inability," then each of the following officials, in the
order here given and subject to the same conditions
as to removal, death, etc., the secretary of the
—
treasury, the secretary of war, the attorney -general,
the postmaster-general, the secretary of the navy, and
the secretary of the interior,— " shall act as President until the disability of the President or Vice-President is removed or a President shall be elected
Provided, That whenever the powers and duties of the
office of President
shall devolve upon any of the
persons named herein, if Congress be not then in session, or if it would not meet in accordance with law
within twenty days thereafter, it shall be the duty of
such person
to issue a proclamation convening
Congress in extraordinary session, giving twenty days'
notice of the time of meeting."
Sec. 3. The act shall only apply to officers appointed
by the consent of the Senate, and to such as are eligible to the office of President, and not under impeachment by the House of Representatives at the time.
Sec. 3. Repeals Rev. St. §§ 146-50.
" The President shall, at stated Times, receive for
his Services, a Compensation, which shall neither be
encreased nor diminished during the Period for which
he shall have been elected, and he shall not receive
within that Period any other Emolument from the
United States or any of them." ^
His salary is at present fifty thousand dollars a
:
.
.
PRESUME
806
.
year. 5
"Before he enter on the Execution of his Office, he
shall take the following Oath or Affirmation
I do
solemnly swear (or affirm) that I will faithfully execute the Office -of President of the United States, and
will to the best of my Ability, preserve, protect and
defend the Constitution of the United States." *
" The Prt*3ident shall be Commander in Chief of the
Army And Navy of the United States, and of the Militia
:
—
of the several States, when called into the actual Service of the United States; he may require the Opinion,
in writing, of the principal Officer in each of the ex-
ecutive Departments {q. v.), upon any Subject relating
to the Duties of their respective Offices, and he shall
have Power to grant Reprieves and Pardons iq. v.) for
Offences against the United States, except in Cases of
Impeachment." "
He may meet invasion
force, previous to
or insurrection by military
any declaration of war by Congress.
*
See War.
" He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties (g. v.), provided two thirds of the Senators present concur; and
he' shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint (g. v.) Ambassadors, other public Ministers (g. v.) and Consuls, Judges
supreme Court, and
of the
other Officers of the
all
United States, whose Appointments are not herein
otherwise provided for, and which shall be established
by Law but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law,
or in the Heads of Departments." ^ See Office.
"The President shall have Power to fill up all Vacancies (q. V.) that may happen during the Recess of
the Senate, by granting Commissions which shall expire at the End of their next Session." ^
" He shall from time to time give to the Congress
Information of the State of the Union, and recommend
to their Consideration such Measiu-es as he shall judge
necessary and expedient [see Message] he may, on
extraordinary Occasions, convene both Houses, or
either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he
may adjourn them to such Time as he shall think
proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be
:
;
faithfully executed,
ficers of the
and
shall
United States,"
Commission
all
the Of-
^
He and the Vice-President
" shall be
removed from
and Conviction of.
Treason, Bribery, or other high Crimes and MisdeOffice
on Impeachment
(g. v.) for,
meanors." ^
See subjects relating to the Constitution and government of the United States; in particular Congress;
Service,
3. Civil.
PRESS.
See Copy; Liberty,
press.
1,
Of the
'
PRESUME.
ter beforehand,
To' take or assume a matwithout proof; to take for
granted.
Infer
The law does not
See Infer.
stronger than presume.
is
.presume,
much less
infer, fraud."
Presumption.
Next
to positive is cir-
cumstantial evidence, or the doctrine of presumptions. When a fact cannot itself be
demonstrated, that which comes nearest to
Acts 28 Feb.
1
R. S,
2
Constitution, Art.
§ 1642;
1795, 3
March,
II, sec. 2, cl, 2.
sent of the Senate been
"
1807.
Had
made necessary to
the con-
displace &s
well as to appoint, the Executive would have suffered
degradation and the relative importance of the House
;
of Representatives
a grave diminution." 2 Bancroft,
Const. 191.
1
Constitution, Art. H, sec.
^Ibid.,
1, cl. 6.
cl. 7.
Act 3 March,
3
R. S. § 153:
*
Constitution, Art. II, sec.
^Ibid., sec.
2, cl. 1.
1873, c. 22G.
1, cl., 8.
3
Constitution, Art.
*
Constitution,
^
Ibid., sec.
4.
II, sec. 2, cl. 3.
H, sec. 3.
Seegenerally 2 Bancroft, Const. 166-94;
Ai*t.
3 Story, Const. §§ 1410-1572.
«
Morford
v.
Peck, 46 Conn. 385
(1878),
Loomis,
J.
PEBSUMPTION
proof of
it is
A logical argument from a fact to a fact
an argument which infers a fact otherwise
doubtful from a fact already proved.!
proof of the circumstances nec-
essarily, or usually, attending it: this proof
creates a presumption,
the contrary
which
is relied
upon
An
established.!
Presumptive evidence proceeds upon the theory
that the jiuy can infer the existence o£ a fact from
another fact that is proved, and which most usually
accompanies it.'*
till
is
A
Presumption of law.
certain
either
cases,
nectiort
or dispenses
universally assignable to a particular
Derives its force from jurisprudence. Probability
not necessary to it. It relieves from producing evidence. Its conditions are fixed and uniform. It is
irrebuttable or absolute, and rebuttable or provisional.*
is
imperative,
or
force
from
logic.
It requires evidence.
To
it
probability
is
Its conditions fluct-
There are certain departments of scientific knowledge where an entire series of facts or forms may always be inferred from the existence of any one,
according to the maxim ex pede Herculem. The conclusion in such cases is deduced from the observed
uniformity of physical nature, which by a necessity
of our own minds we believe to be invariable. But
this mode of reasoning has but a very limited application in the law of evidence as judicially applied to
ascertain the facts and motives of human conduct. It
is the foundation of the doctrine of presumptions to
the extent to which they are admitted. ^
Psychological presumptions. These are of knowledge of law; of ^ fact from a known fact; of innocence; of love of life; of good faith; of sanity; of prudence; against danger; as to supremacy of husband;
subject.^
It is founded upon the first principles of justice, a
law 01" laws of nature, or the experienced course of
human conduct and affairs, and the connection usuaUy found to exist between certain things.^
Conclusive,
its
uate. ^
A judicial postulate that a particular predis
with other facts which are known.2
Derives
necessary.
rule which, in
forbids
inference of the existence of a certain
from its necessary and usual con-
fact arising
with any ulterior inquiry.'
icate
PRESUMPTION
807
absolute pre-
Rules determining the
quantity of evidence requisite to support any
particular averment, which may not be overcome by proof that the fact is otherwise.'
sumptions of law.
of intent as to probable consequences; of malice;
against a spoliator.*
Physical presumptions.
Of incompetency through
infancy; of identity; of death; of survivorship in
Cases in which the long experienced connection between things has been found so uniform as to make it
expedient for the common good that this cormectiou
be taken as inseparable and universal,^ and indispu-
common catastrophe;
table.
value; that foreign law
Disputable or rebuttable presumptions of
law. These are such presumptions as may
be overcome by opposing proof that facts,
stancy of nature
of loss of
a
a ship from lapse of
time.*
Presumptions of uniformity and continuance.
As
to residence, occupancy, habit, coverture, solvency,
— of
is like our law; as to conphysical sequence, animal hab-
conduct of men in masses.*
Presumptions of regularity.
its,
As to marriage, and
legitimacy negotiation of paper; judicial proceedings;
dates; formalities of documents; appointments of
officers and agents; acts of public officers, of business and professional men; of the due delivery of
:
;
usually together, were so in a given case.*
The law infers one fact from the proved existence
of its common companion directs how much shall be
proved to make a prima facie case, and that that may
be overcome by counter-proof.*
mere arguPresumption of fact.
;
letters.*
Presumptions of
title.
In favor of possession of
— not tortious, and independent; and of personalty — as to vessels, and papers; that the proprie-
A
realty
ment upon the facts in a case a natural presumption derived wholly and directly from
the circumstances of the particular case, by
;
means
of the
common
a road owns the soil thereof; as to
ownership of hedges, land covered by water, alluvion,
trees, and minerals. Missing links are proven from
long possession, and grants from lapse of time. Ap-
tor adjacent to
experience of man-
from use.*
Presumption as to payment. This arises after the
lapse of twenty years.'
" Facts presumed are as effectually established as
*
facts proved, where no presumption is allowed."
plied, also, to licenses
kind, without the aid or control of rules of
law.*
Bl.
Com.
'
[.3
'
Home Ins.
371.]
Co. v. Weide, 11 Wall. 440
See also 26 Ala.
27 N. J. L. ISO, 153; 6
Wend.
(1870),
Davis, J.
Me. 146; 34 N. H. 365;
1
181; 7 id. 66; 97 Pa. 34; 16
2
30; 66 Ind. 438; 11
*
Vt. 71; 12 Wis. 257.
Greerd. Ev. § 14;
' [1
Wall. 449
1
Improvement
thews,
Co. v. Munson, 14
• [1
qireenl.
Ev. §33; 39 Minn.
Greenl. Ev.
Cal. 276.
§ 44;
15.
4 Whart. 173; 107 U. S. 502-3; 71
I
J.
Whart. Ev. §§ 1240-69.
>2Whart. Ev. §§1270-S3.
« 2 Whart. Ev. §§ 1331-S9.
' 2 Whart. Ev. §§ 1360-65.
* Dickens v. Maliana, 21 How. 383
«
(1871).
Whart. Ev. ch. XTV.
1
» 1
Whart. Ev. ch. XIV.
Roberts u People, 9 Col. 474 (1886), Beck, C. J.
Sabariego v. Maverick, 124 U. S. 395 1(1888), Mat1
2
(1858).
PRETENSE
PRETENSE
If the evidence offered conduces in aHy reasonable
degree to establish the probability or improbability of
the fact in controversy, it should go to the jury.^
Inferences from Inferences are not permitted: only
immediate inferences from facts proved. If the presumed fact has no immediate connection with or re^
lation to the established fact
it is
prima
and the facts constituting
(1)
that the pol-
(2)
that the re-
newals were paid to the plaintiff's sub-agent; and (3)
paid over by the agent to the defendant. ^
A judge, in deciding that evidence of a particular
circumstance is not receivable, impliedly decides that
no presumption can be drawn from it which ought to
have effect with the jury. A presumption which the
jury is to draw is not a circumstance in proof, and it
is not, therefore, a legitimate foundation for a presumption. There is no " open and visible connection "
between the facts out of which the two presumptions
arise.* An inference from an inference, if allowed at
all, has little probative force.*
See PRiESUMPTio Evidence.
;
Representation; simula-
tion; device.
False pretenses. The offense of " obtaining property by false pretenses."
Four things must concur: an intent
An offense
;
of facts to
come
into existence.
two things are necessary, viz., that it should
statement likely to impose upon one exercising
common prudence and caution, and that it should be
the statement of an existing fact; A " promissory "
statement is not, ordinarily, the subject either of an
indictment or of an action. The law also gives a different effect to promissory statements based upon
general knowledge, information^ and judgment, and
to representations which, from knowledge peculiarly
his own, a party may certainly loiow will prove to be
be^ a
true or false.*
Collecting
money by
falsely personating
property), the offense
30 Geo. II (1757),
— ' knowingly
and designedly, by false prepei-son money, goods,
wares, or merchandise, with intent to cheat and defraud any person of the same;" and from S4 and 25
Vict, (1861), c. 96 — obtaining "any chattel, money, or
"from any
other valuable security with intent to defraud."
some
*
fact or circum-
which
stance, calculated to mislead,
is
not
1
Home Ins.
2
Unite4 States
Co.
v.
v.
Weide,
Wall. 440
(1871).
Ross, 92 U. S. 283-84
(1875),
11
Strong,
;
V. Mitchell, 35
Pa. 446-47
(1860),
Strong, J.;
McAleer v. McMurray, 58 id. 126 (1868).
6 Ayer v. Glaucus, 4 Cliff. 171 (1870).
L. pro&tensus: prce-tendere, to
'
«
»
false pretenses.*
false pretenses, is indictable;
but otherwise,
seems,
it
New York.''
in
Any words equivalent to "by means of a
maybe used in the indictment.^
false pre-
tense,"
The indictment must set forth distinctly that there
was an actual transaction between the parties, a payment of money or a delivery of property; that it was
Commonwealth
t!..McDuffy, 126 Mass. 470
spread before, hold
s
Commonwealth v. Drew,
(1879),
4
Commonwealth v. Drew, ante.
Sawyer v. Prickett, 19 Wall. 160
(1873),
Hunt, J.;
Law
J. 105-6
(1882), cases.
State
V.
Goble, 70 Iowa, 447
(1883).
Zinc
V.
People, 77
id. 114 (1879),
326-29 (1876), cases;
cases 53
;
id. Ill
;
43
111.
397; 57 Ind. 341; 39 Mich. 505; 26 Ohio, 15; 11 Ind. 154;
12 Johns. 293.
966.
1175, 1186-89;
(1878),
cases.
6*Loomisu People, 67 N. Y.
Broom, Com.
'
Commonwealth
v.
Whitcomb, 107 Mass. 486
Wend. 351 (1837).
(1871),
Walker, 108 Mass. 312
(1871),
cases; People v. Ciough, 17
L. 9G3.
ton, J.
is
In England, and Massachusetts, and perhaps in
other States, obtaining money as a charitable gift by
6
Spelled also pretence.
[Broom, Common Law,
Whart. Cr. L. §§ 1130,
2
the owner parts with the possession of his
a felonious receiving is "larceny." When
he parts with the possession and title (his right of
4Hill,9; 23N.Y.413; 99 Pa. 575; 26 Alb.
698 (1879), Strong, J.
out, pretend.
When
property,
2
J. Grand Trunk R. Co. v. Richardson, 91 id. 470 (1875).
5,Manning v. Hancock Mut. Life Ins. Co., 100 U. S.
Douglass
a creditor
1 Bardlaugh v. The Queen, L. R., 3 QVB. D. 623
Bramwell, L. J.
true. 9
rep-
action,
thereby. 7
from
To make a false
resentation the subject of an indictment, or of an
constitutes false pretenses.^
*
to defraud;
=*
:
A representation of
where
forth, I
understood a knowingly false statement of
a supposed by -gone or existing fact with intent to defraud, and an obtaining of property
c* 24
offense
stated;
these facts consist in words, the words must be set
variously defined by statutes; as generally
tenses," obtaining
The
.
fraud accomplished by means of those pretenses.
There must be a scient^^and a fraudulent intent.
The representation must relate, to past events: a representation for the future may be only a promise it
may be made in any of the ways by which ideas are
communicated; and it maybe inferred. The reason
of the law is to protect the weak and creduloiM from
the stratagems of the artful and cunning; it does not
extend to those who, having the means in their own
hands, neglect to protect themselves.^
The law gives a different effect to a representation
of existing facts, from that given to a representation
was held that the jury could not infer
icy did not lapse but was renewed;
statutes are copied
.
must be
it
Thus, the presumption
In a case where the ultimate fact was whether a
renewal premium had been paid to the defendant, it
Many
facie imports a misrepre-
actual fraud committed; false pretenses used; the
it is
that a public officer has done his duty does not supply
proof of independent and substantial facts.^
PRETENSE.6
false -pvetense
inferred,
from which
regarded as too remote.
A
sentation as to something existing.
19 Pick. 184r-86 (1837),
Mor-
e
Commonwealth
cases.
v.
PRETIUM
the accused's purpose, in making the false pretenses,
to effect such a transaction; and that the party alleged to have been defrauded was actually deceived
by the
See further Cheat; Larceny; Obtain: Spirittjalisu.
PRETIUM.
Price; value.
L.
on account
of associa-
tion or endearment.
As, regard for a house as an inheritance or a home,
for a jewel as a present, for a picture as an heirloom.
Unless expressly provided for, this extrinsic value is
not recoverable under a contract of insurance. When,
it ever, the law affords no adequate remedy for withholding an article thus enhanced, equity will grant relief by ordering a delivery to the owner."
Pretium perieuli. Price of the risk.
assumed
in consideration of which a risk is
in particular, the risk in a contract
;
;
of his claim.
To be a prevailing party does not depend upon the
degree of success at different stages of the suit; but
whether at the end of the suit or proceeding the party
who has made a claim against the other has successit.*
See Costs.
Defense, 1
Homicide; Injunction; Police, 2; Prohibition Quia Timet Suffer.
PREVIOUS. Compares an act or state
PREVENTIOIf. See Crime
;
;
;
subsequent in
the order of time, for the purpose of asserting the priority of the first.5 Compare Pre-
named, to another act or
state,
Existing Prior.
;
PRICE. The sum of money for which an
article is
in this sense. ^
The
price paid for a thing,
goodB.2
Prices-current.
as, for
Prepared by parties furnishing
may be used
as evidence of the value of the articles mentioned in
them. 3 See Book, 1; Science.
See also Cash; Cost; Inade<jcacy; Market-price;
in the ordinary course of business,
Value.
PRIEST.
leged,
See
Communication,
Privi-
1.
PRIMA. See Primus.
PRIMAGE. A small
payment
to the
master of a vessel for his care and trouble,
paid by the owners of the merchandise laden
on board, and for his own personal use, unless otherwise agreed with the owners of the
;
also,
the equivalent or com-
pensation, in whatever
considered a gratuity to the master, unIt belongs to the owners
less specially so stipulated.
PREVAIL. He is the prevailing party,
within the meaning of a statute entitling
such party to costs, who prevails on the main
issue, to a greater extent than admitted by
his adversary, though not to the full extent
sold
used
No longer
Compare Pr^mitim Premium.
maintained
still
pretium, reward, value, estimation,
is some-
is
Webster shows that "price"
vessel.*
of insurance.
fully
times
them
Price from afiec-
affectionis.
tion ; value bestowed
Payment
The Latin
equivalent.
Cost price.
false pretenses.^
Pretium
PRIMUS
809
form received,
for
property sold.
The first and general meaning originates in the fact
money not because
that property is ordinarily sold for
or freighters, as an increase of the freight rate.=
PRIMARY.
First:
principal,
chief,
leading, the best: as, a primary conveyance
dbligation,
v.), primary evidence (g. v.),
{q.
See Primus.
power.
Primarily. " Designed primarily " for advertis"
ing purposes was held to mean chiefly or principally
intended " for such purposes."
PRIMOGENITURE.
The
rule of de-
scent, in English law, that of two or more
males in equal degree, the eldest inherits;
while females
all inherit
remogenituxe.
The
together.
Post-
right of the youngest
son to inherit.^
When the emperors began to create honorary feuds,
in order toor titles of nobility, it was found necessary,
preserve their dignity, to make them hnpartible, and
consequence descendible, to the eldest son alone.
in
inconvenThis example was further enforced by the
iences which attended the splitting of estates.'
PRIMUS.
L.
First.
See Primary.
Imprimis. In4he first place. See First,
Prima facies.
Prima facie.
At
2.
First view, or appearance.
first
view
;
on
first
appear-
ance.
;
the
word has necessarily such a
restricted meaning.'
Hudson Iron Co. v. Alger, ante.
Buck V. Buck, 18 N. Y. 340 (18.5S).
Wall.
s Cliquot's Champagne, 3
>
Commonwealth v. Howe, 133 Mass.
see
Allen, J. As to title to the property,
1
,
858 (1883), C.
34
Cent Law
"
Bened.
J. 103 (1887), Eng. cases.
4
I
'
' 1
Story, Eq. § 709.
3
[Weston V. Cushing, 45 Vt. 537 (1873).
•
Sanger, &c. R. Co.
v.
Chamberlain, 60 Me. 886 (1878);
v. Nowland, 5S Mo. 330 (1873).
Lebrecht v. WUcoxon, 40 Iowa, 04 (1874), Beck, J.
• Hudson Iron Co. v. Alger, 54 N, Y. 177 (1873), Earl, C.
115 (1805); 1
[Peters
v.
Speights, 4 Md. Ch. 381 (1853): Abbott,
Shipp. 492.]
•
«
Hawkins
•
141,
849.
F. R. 421 (1883).
v. Austin, &c. E. Co., 18
Advertising Publications, Postage on, 16 Op. Att.-
Carr
Gen. 304
'
3 Bl.
(1879).
Com.
314-16.
PROSEQUI
Legal malice is made out by showing that the proceeding was instituted from any improper or wrongful
motiverit is not essential that actual malevolence or
corrupt design be shown.
The criminal prosecution must have terminated—
by a verdict ot not guilty, by an ignoring of the bill,
by the entry of a nolle prosequi, or by a discharge of
the accused from bail or imprisonment. ^
No
action lies to recover
a
tion of
civil suit,
damages for the prosecuhowever unfounded, where there
has been no actual interference with either the person
or the property of the defendant.
See Cacse, Probable; Crihs; Indictment; Malice;
Sdspioion,
Prosecutor. He who carries on or mainany criminal proceeding. Prosecutrix. The feminine form of the Latin word.
An ofBcer of government, as the attorney-general, or a district
or county attorney, whose duty it is to conduct criminal proceedings on behalf of the
people.
See Attorney-General.
PROSEQUI. L. To pursue: sue, prosePublic prosecutor.
cute.
To not wish
to prose-
See Nolle, Prosequi.
cute.
suffers loss,
a non pros., and the plaintiff is
be "nonpros'd."^ Compare Non-
briefly, as
to
suit.
PROSPECT. See Landscape Light.
PROSPECTIVE. See Damages; Re;
trospective; Statdte.
PROSPECTUS.
The purpose
pectus of an intended
persons
invite
to
company
become
is
of a prosmerely to
allottees of the
shares, or original stockholders in the
a prospectus of an intended company ought not to
misrepresent actual and material facts, or to conceal
facts material to be known, the misrepresentation or
concealment of which may improperly influence and
Brewer
v.
Jacobs,
J. 663 (1887),
2-3
F. E. 217-44 (1885), cases; 24 Cent.
cases; 26
id. 886-88 (1888); 13 F.
253; 35 Ind. 15, 286; 43 id. 65;
239; 30 Minn. 518; 76
PROSTITUTE. A
Mo.
M
thus
female given to
in-
Common
A
prostitute.
who makes a
public prosti-
business of selling the use
of her person to the
of
sexual intercourse
illicit
male sex for thepurpose
intercourse.''
illicit
A woman may be a prostitute
nection with one
man
and have
only; but, to be a "
prostitute, her lewdness
illicit
con-
common "
must be more general and
in-
discriminate.*
Prostitution.
1.
In
i(;s
most general
up for sale,
sense, the act of setting one's self
or of devoting to infamous purposes
in one's
power
:
as,
what
is
the prostitution of talents
v.
In a more restricted sense, the act or praca female offering her body to an indiscriminate intercourse with men the common
lewdness of a female.^
2.
;
Not defined at common law; offenses of the nature
not being punishable b.v common-law tribunals. The
definitions of Walker, Webster, and Johnston refer to
the act of permitting illicit intercourse for hire, an indiscriminate intercourse, or what is deemed '' public "
prostitution: common, indiscriminate, sexual intercourse, in distinction from sexual intercourse confined
The word has been
exclusively to one individual.
used in a more loose and general sense."*
While the testimony of prostitutes is to be closely
scrutinized, credit is not to be withheld if the testimony appears to be worthy of confidence.' See Abduction; Bawd.
PROTECTION.
fense,
"Nor
within
laws.'"
3
Lowe
»
Muldoon
V.
Wartman.
V.
Chouteau,
Paul, &c. R.
Co.',
38
Mmn.
242-45 (18&4), cases; 32 Alb.
(1885), cases.
See 3
Bl.
Com.
296, 316, 376.
Assault;
De-
any State
shall
its
jurisdiction the
.
deny to any person
equal protection of the
.
"^
equal protection of the laws " is meant
equal security to every one in his private
By
'
rights
I.
617; 64
'
— in
his right to
life,
to liberty, to
91
1 Peek V. Gurney, L. R., 6 Eng. & Ir. Ap. 377
Simons v. Vulcan Oil, &c. Co., 61 Pa. 202 (1869).
Mo. 149
47 N. J. L. 413 (1685).
Rickey, 103 Pa. 112
See
1.
La. An. 246; 4 Cush.
669; 100 Pa. 94; 13 R.
'Cooley, Torts, 185; Peck
4
who
A
rendered herself to
with men.4
(1886), cases.
St.
against those
R.
673.
Law J.
may proceed
discriminate lewdness for gain.^
But incontinence with one or two may suffice.'
woman who is unchaste, who has sur-
com-
pany.
t-.
he
misled him.'
tice of
Ifon prosequitur. He does not prosecute.
Said of a judgment in a civil action for some
default in the plaintiflE, as, a failure to file a
declaration or other pleading. Spoken of,
Tex.
it he is thereby deceived into
allottee of shares, and, in consequence,
becoming an
or abilities, the prostitution of the press, etc.
Nolle prosequi.
Law
mislead the reader; for
tute,
3.
tains
said
PROTECTION
839
(1883),
cases; Burton
191 (1885);
Law J.
2
State
V.
Stoyell, 54 Me. 27 (1866), Appleton, C. J.
s
State
V.
Rice, 66 Iowa, 431 (1881).
•
Springer v. State, 16 Tex. Ap. 593 (1881), Willson, J.
[Carpenter v. People, 8 Barb. 610 (1850), Welles, P. J.
Commouwealth v. Cook, 12 Mete. 07 (1846). Dewey,
=
18 Cent
124-26, 145-48
»
J.
(187.3);
;
Fahnestock
v. State, 102
Paul
'
Constitution,
V.
Ind. 163-63 (1885), cases.
Paul, 37 N. J. E. 25 (18&3), cases.
'
Amd. XIV,
sec.
1.
,
PROTEST
PROTEST
840
property, and to the pursuit of happiness.
implies not only that the
It
means which the
laws afford for such security shall be equally
accessible to him, but that no one shall be
subject to any greater burdens or charges
than such as are imposed upon all others
under like circumstances. i
See Citizen,
page 184.
The inhibition qiloted was designed to prevent any
person or class of persons from being singled out as a
special subject for discriminating and hostile legislation. Under the designation " person " a private cor-
promissory note. The word, however, by
general usage has acquired a more extensive
signification, and in a given case may include all the acts which by law are necessary
an indorser on such paper.i
The formal declaration drawn up and
signed by a notary that he presented a
[foreign] bill of exchange for acceptance or
payment and that that was refused. But,
with business men, includes all the steps
necessary to charge an indorser.^
to charge
Demand
poration
is included."
Legislation which applies to particular bodies or as-
imposing upon them additional liabilities,
not forbidden, if all persons brought under its influence are treated alike under the same conditions. ^
form and
of -payment of a note in proper
at a proper time; and, in case of
sociations,
non-payment, due and reasonable notice to
is
the indorsers, by any suitable person.
PROTEST." A declaration, more
or less
formal, against an act about to be done or
al-
ready done, intended to express dissent on
the ground of impropriety or illegality, to
preserve a right which otherwise might be
held relinquished, or to exonerate from a liability which might otherwise attach.
1.
Objection, disapproval, dissent: as, to
pay money under
tary."
relating to the recovery of duties paid
under protest, a written puotest, signed by the party
making it, with a definite statement of the grounds, is
a condition precedent to the right to sue for a recovery.®
Protests against the levy of duties are commercial
documents, and if they are sufficiently formal and accurate to inform the collector distinctly of the position of the importer, the object of the statute requiring
them
is
accomplished. They have always been liberby the courts, and great formality or
ally construed
fullness
is
not required.'
See further Payment, Involuntary.
3.
Referring to commercial paper, in a
strictly technical sense, not applicable to
demand of the maker
non-payment to indorsers.*
Mercantile paper which has " gone to protest "
said to be dishonored, q. v.
of
.
Protest includes, in a popular sense, all
steps taken to fix the liability of a
an
When
indorser.
there
is
is
tiie
drawer or
nothing else in
waiver of protest to limit the meaning,
the word must be taken as used in that
a
sense,
protest.
Duties or taxes illegally demanded may be paid
" under protest " and the receiver afterv.'ard be compelled to refund them. Such payments are involun-
Under acts
In the popular sense, includes
and notice
bills
whether applied to foreign or domestic
or to promissory notes. ^
The object of the notice is to enable the indorser to
take measures for his own security. The language
used should be such as to reasonably apprise the party
of the particular paper on which he is sought to be
charged.'
Supra protest. Over protest: said of
acceptance of a bill of exchange by a person
not a party to it, after a protest for nonacceptance by the drawee; also, of a payment, by such a person, after protest for
non-payment.
When a bill
is
protested for non-acceptance or for
any person may accept it siipra protest, for the honor of the drawer or of any indorser.
The acceptor personally appears before a notary, with
a witness, and declares that he accepts the bill in
better security,
a
Coddington v. Davis, 1 N. Y. 189 (1848), Gardiner, J.
Comst. 186; 3 Denio, 25; 1 Pars. Bills & N. 471, 575,
1
Southern Pacific E. Co.,
18 F. E. 398 (1888), Field, J.; ib. 450-51, cases. See also
Claybrook v. City of Ownesboro, 16 id. 302-3 (1883),
1
^
County of Santa Clara
Pembina Mining
Co.
v.
v.
Pennsylvania, 125 U.
S. 188
(1888).
Mackey, 137 U.
»
Missouri E. Co.
«
L. profestari, to bear witness.
=
Philadelphia
v.
v.
The
S. 309 (1888).
Pet. 207; 17F. E. 505.
'Nichols
V.
United States, 7 Wall. 126(1808); E.
Herman
United States
v.
Leng,
ib. 15 (1883).
579, 582, cases.
"Townseud v. Lorain Bank, 3 Ohio St. 353 (1883),
Eanney, J. See also MoFarland v. Pice, 8 Cal. 636-37
(1837); Sprague v. Fletcher, 8 Greg. 370 (1S80).
s [Ayrault v. Pacific Bank, 47 N. Y. 575 (1872), Allen, J.
* [Brannon v. Hursell, 113 Ma-ss. 70 (1873), Morton, J.
2 Bl.
Collector, 5 Wall. 732 (1866); 13
§§ 3931-33, 3011-12, oases.
'
v. Schell, 18 F. E. 892 (1884), cases,
1
S.
Com.
469.
Woltord V. Andrews, 29 Minn 261 (1882); Baker v.
Scott, 29 Kan. 137 (1883); Annville Nat. Bank v. Ketter'
Neg. Inst. §§ 929, 1094Mo. 91; 63 Barb. 467; 7 Hun, 362.
« Bank of Cooperstown v. Woods, 28 N. Y. 559 (1864):
19 id. 518; Edwards, BUls, 289.
ing, 106 Pa. 531 (1884); 2 Daniel,
95; 42 Miss. 807; 37
Coxe,
J.
PROVINCE
PUBLIC
843
as being within the words as well as within the reason of the law.'
An " exception " is of that which otherwise would be
Included in the category from which it is excepted~'
See Exception, 2.
it,
PROVHTCE. In a figurative sense,
power, authority, prerogative: as, in saying
that it is the province of the jury to decide
the facts, and the province of the court or
judge to decide the law.
PBOVISION. That which is provided,
arranged, or stipulated for as, the provisions
of a contract, of a will, of a constitution,
the defendant cannot .give in evidence, in mitigation
of damages, matters of provocation on the part of the
plaintiff, unless they happened ooniemporaneously
with the assault and battery, or so recently as to induce the presumption that the assault was committed
under the immediate influence of the passions excited
by the provocation.!
PROXIMATE,
See Cause,
1;
Damages;
Dominion.
PROXY. A shortened form
of " procu-
racy " procuration, agency.
person empowered to act for another,
:
A
as,
:
is
a
the
or doctrine established
by judicial
decision
provision of law," equally with one enacted
*'
legislature. 3
a corporation
of
statute, treaty.
A rule
to vote a share or shares of the capital stock
also,
provision in the charter
Temporary; for the
time being as, a provisional
assignee, committee, court, injunction or other remedy.
PEOVISIOIfS. See Geoceeies; Health;
Maeket Perishable.
The "provisions " of a ship mean articles of food
—
:
;
;
the authority
itself to
thei constituent.''
Shareholders cannot vote by proxy without special
by
See Provided.
PBOVISIONAL.
represent
so' to
do."
proxy at the meetings of an
incorporated company is not a general right, and the
party who clai^is it must show a special authority;
but where, rejecting all votes cast by proxy, there is
still a majority, the minority are bound.*
A shareholder in a national bank may vote by
proxy, but no officer or employee of the bank may act
The
right of voting by
or sustenance: her "stores" include wood, coal, and
the like.*
as proxy."
Fat cattle,' Indian corn," wine and brandy,' have
been held to be provisions.
that require vigilance and attention, con-
fiEOVISO.
See Peovided.
PBOVOCATIOM".
See Defense,
1.
provocation by words, however opprobrious,
will mitigate an intentional homicide, so as to reduce
it to manslaughter."
In the law of voluntary manslaughter, it is not the
degree of the force with which a blow may be struck
assault inflicted that constitutes " legal provo-
it consists in an assault or battery of some
degree which, under the attending circumstances, or
by reason of its force, is calculated to create, and does
create, sudden heat and passion.^
No provocation can render homicide justifiable or
excusable; but it may reduce it to manslaughter. ^o
That circumstances of mitigation must form part
of the res gestce has been repeatedly ruled."
to the circumstances un-
to be exercised.
"Ordinary care and prudence" imports that degree of care and prudence which a careful and prudent
man would exercise in the same circumstances.^ See
Cake; Discretion.
it is
PSYCHOLOGY.
See Insanity;
Pee-
SUMPTION.
PUBIiIC.7
cation," but
In an action of trespass for an assault and battery
Varies with the exigencies
forming in degree
der which
No
or an
PRUDENCE.
1,
n,
"The public"
are the
body of the people at large the people of the
neighborhood the community at large the
;
;
;
people.
Belonging to, concerning, of interimportance to, affecting the people or
3, adj.
est or
community
at large
or benefit of
;
for the
persons
all
;
accommodation
generally
also,
known.
United States v. Dickson, ante.
'United States t;. Cook, 17 Wall. 177 (1872), cases: 1
Ld. Bay. ISO; 1 B. & A. 48.
3 Clark V. Lake Shore, &c. E. Co., 94 N. T. S20 (1883).
' Crooke v. Slack, 20 Wend. 177 (1833), Nelson, C. J.
5 United States u Barber, 9 Cranch, 248 (1815); United
States V. Sheldon, 8 Wheat. 119 (1817).
« Atkinson v. Gatcher, 23 Ark. 103 (1861).
' Mooney v. Evans, 6 Ired. Eq. 363 (1849).
"Commonwealth v. Webster, 6 Cush. 805 (1850),
'
Shaw, C. J.
» Williams
—
I
Reiser
Field,
v.
Dam.
Smith, 71 Ala, 481
§ 604; S Sedg.
§ 266; 1 Sutherl.
17
Dam.
Iowa, 468; 17 Mo.
=
See
'
Brown
1 Bl.
v.
(1882j:
Dam.
287;
1.
547;
2 Greenl. Ev. § 93;
1 Waterm. Tresp.
Mass. 11; 19 Johns. 319;
637.
Com. 168, 478; 1 Paige, 590.
Commonwealth, 3 Grant, 209
(1856).
Craig V. "First Presby. Church, 88 Pa. 47 (1878): 2
Kent, 894; Angell & Ames, Coip. §§ 127, 131, 493.
•
v.
Commonwealth,
80
Ky. 316
(1382),
Har-
gis, J.
'"Honesty v. Commonwealth, 81 Va. 298 (1886).
11 Bonino v. Caledonio, li4 Mass. 302 (1887); 2 Greenl.
Ev. § 267.
Opposed, private, q. v.
As in speaking of public or a public act,
administration, agent, assembly, attorney,
«
H. S. § 5144.
»
Fassett
V.
Roxbury, 55 Vt. 655-56
(1883),
Eowell,
28 id. 180; 36 id. 580; 51 id. 131.
'
L. publicus, belonging to the people.
,
J.
SET-OFF
self of
that debt in the existiiig
suit, either
to reduce the plaintiff's recovery or to defeat
it altogether; and, as the case may be, to recover a judgment in his own favor for the
balance.!
The defendant's case must be made out in the same
manner as if he sought to maintain a separate action
upon it."
At common law, the right was not recognized the
defendant had his cross-action. To obviate this circu:
allowed mutual
debts to be set one against the other, and the matter
to be given in evidence under the general issue, or
to be pleaded in bar, notice of the particular debt
being given beforehand. And 8 Geo. 11 (173,5), c. 24,
§ 4, enacted that said § 13 should apply to all mutual
debts of a different nature except debts acci*uiDg as a
penalty, which were to be pleaded in bar.^
The substance of those statutes has been re-enacted
in the States generally, and the principle extended.
Antecedently, equity, under peculiar circumstances
of right, would compel a plaintiff to submit to a setoff,; but, to obtain this relief, the defendant had to file
ity of action, 2 Geo. II (1729), c. 22, § 13,
a sel)arate
SETTLE
944
bill in equity.
When the government is plaintiff, no set-off will be
allowed, unless Congress has authorized
Since the statutes of set-off of mutual debts and
have generally followed the
course adopted in the construction of the statutes by
courts of law, and have applied the doctrine to equicredits, courts of equity
They have rarely, if
table debts.
ever,
broken in upon
the decisions at law, unless some other equity intervened, which justified them in granting relief beyond
the rules of law. On the other hand, courts of law
sometimes set off equitable against legal debts. ^
In Pennsylvania, set-off is permitted of claims
,
this is not in accordance
with the general rules of equity. " In Kansas, set-off
ia allowed for unliquidated damages.^
Compare Defalcation, 1; Recoupment.
which are not mutual, but
SETTLE.
form of
To
1.
an
interrogatories,
determine the
set or
as, to settle
;
—a
issue.
bill
of exceptions,
See under Excep-
tion, 4.
To
to gain a right to maina pauper to be settled or to
acquire a settlement in a particular township or county.* See Belong.
3. (1)
tenance
reside
;
as, for
:
The right is obtained by birth, parentage, marriage,
continued residence, payment of taxes, exercise of a
an apprentice-
public office, hiring and service, serving
it.*
"Offset" has been used, to a limited extent, for
set-off. 5
ship, etc., as local statutes pi'ovide.^
To establish one's self upon to occupy,
upon as, to settle land.
Settler. Within the meaning of preemption laws, one who actually resides upon
(8)
In equity, that right which exists between two persons, each of whom, under an
2.
independent contract, owes an ascertained
amount to the other, to set off their mutual
debts by way of deduction, so that in an action brought for the larger debt, the residue
only, after such deduction, shall be recov-
;
reside
the land in question.^
The mere existence of cross-demands
will
not be
Indeed, a setoff is there ordinarily allowed only when the party
seeking the benefit of it can show some equitable
ground for being protected against his adversary's de-
See further Pre-
emption, 2.
3. Sometimes, to pay; sometimes, to account together and strike a balance by computation
ered.6
:
;
at other times, to adjust matters
in controversy,
and
strike a balance by agree-
sufBcient to justify a set-off in equity.
ment.^
mand.*^
"Settle" implies the mutual adjustment of acand an agreement upon the balance. ^
An admission that a money demand has been " settled " is evidence tending to show payment.^
^he settlement of an account between parties, resulting in a fixed balance, takes the case out of the
But set-off is not allowed of a joint debt as against
a separate debt, nor vice versa; that is, more generally
stated,
rights
it is
not allowed of debts accruing in different
— except under special circumstances, as, where
'
Cook
V.
663; 49
Brown,
31 Conn. 401 (1863), Sanford, J.
Bulkley, 49 Conn. 91 (1881). See also
Mills, 5 Allen, 37 (1862), Bigelow, C. J.; 64 Mi.ss.
Avery
v.
Mo.
v.
572.
See 3 Bl.
Com.
805; 2 Story,
6 Wall. 488 (1867).
'United States v. Robeson, 9 Pet. *324 (1835); 9
Cranch,236; 39 Cal. 389.
5 Mandeville v. Union Bank, 9 Cranch, 11 (1815).
«
Adams, Equity,
'
2 Story, Eq. § 1436;
Quick v. Lemon, 105 111. 686 0883).
8
2 Story, Eq. § 1437 ;
Gray v. Hollo,
Blake
v.
Langdon,
=
Wulschner v. Sells,
Gray v. RoUo, 18 Wall.
=
St.
(1854);
87 Ind. 75 (1882), cases.
682 (1873).
Louis, &c. E. Co. V. Chenault, 36 Kan. 53
(1886),
Washington, 19 Me. 300
(1841),
cases.
Eq. §§ 1431-33; Adams,
Eq. 222; Chitty, Contr. 12S7; United States v. Eckford,
3
Greene v. Darling, 5 Mas. 212 (1828), Story, J. ; Howe
Sheppard, 2 Sumn. 414-16 (1836); Gordon v. Lewis,
ib. 633-34 (1837); Hendrickson v. Hinckley, 17 How. 447
"
V.
fraud has been practiced.*
2Gorham
counts,
222.
19 Vt. 492 (1847).
<See Jefferson
132 Mass. 499.
See Peterson v. St. Paid, &c. E. Co., 27 Minn. 322
(1880); 3 Op. Att.-Gen. 126; 3 id. 182; 16 id. 88, 183; 1
'
Oreg.
'
18 Wall. 632 (1873)
u.
Whitman, C. J.
» 1 Bl. Com. 303-64:
166.
See Moore
"Baxter
v.
Hyman,
v. State, 9
13 Ired. L. 274 (1862).
Wis. *44
(1869); 8
Denio, 225; 9 Barb. 371.
• Applegate v. Baxley, 93 Ind. 149
(
Wend.
600; 4
SETTLE
statute of limitations, without
pay the balance.^
A settled
>
account
an express promise to
is
Settle up. Referring to the estate of a
decedent or an insolvent, means to collect the
assets, pay the debts, and distribute the balance, if any, according to law. Compare
Administkk, 4.
Final settlement. May refer to the payment of the final balance of cash ascertained
to be in the
hands of an executor or adminleave nothing to be done to
istrator, so as to
complete the execution of his trust.*
Partial settlement. When founded on
regular proceedings is oalj prima facie evidence of its own correctness.'
A
" final settlement " is a conclusive determination
of all the past administration.^
When an executor or administrator presents his
account, purporting to charge himself with everything received and to credit himself with everything
and showing a balance for distribution, and
the court, after due notice to parties interested, approves and allows the account, that is a "final settlement " though there is outlying property which may
disbursed,
come
into the accountant's possession for adminis-
As
tration.
to the subject-matter
ates the settlement
4.
promise to settle property on an intended wife is
under the Statute ot Frauds; and, made after
marriage, is void for want of a consideration.
on which
it
oper-
The
deed
old doctrine that if the settlor is in debt his
void has been generally abandoned. The rule
is that prior indebtedness is presumptive, not
is
now
conclusive, proof of fraud. Where there is no fraud
there will be no infirmity in the deed. Every case de-
pends upon its own circumstances. The vital question is the good faith of the transaction: there is no
other
test.'
The
right of a husband to settle a portion of his
property upon his wife, and thus provide against the
vicissitudes of fortune, when this can be done without
impairing existing claims of creditors, is Indisputable.
Its exercise tends to the future comfort of wife and
The right
children.
possesses over his
make any
arises from the absolute
own
disposition
property,
power he
by which he can
which does not interfere with
The transfer, moreover,
be directly to her: the technical reasons of the
common law for conveying through a trustee having
long since ceased to exist. A power reserved to revoke or to appoint to other uses does not impair the
efficacy of the transfer; nor wiU such power pass to
an assignee in bankruptcy. ^
An ante-nuptial settlement, though made with a
fraudulent design on the part of the husband, should
not be annulled without the clearest proof of the wife's
the existing rights of others.
may
participation in the intended fraud; for, upon its annulment, there can follow no dissolution of the marriage,
the consideration of the settlement.^
See
Conveyance, 2, Fraudulent.
A post-nuptial settlement will be presumed to have
been " voluntary." The burden of proof that there
was a valid consideration rests upon one claiming a
benefit under such settlement.^
—
is final.
Equity of settlement. The
To transfer property,
real or personal,
for the benefit of another.
Whence
A
void,
only prima facie evidence ot
correctness. It may be impeached by proof of unf airness or mistake, in law or in fact. If it be confined to
particular items it concludes nothing in relation to
other items not stated.^
Where an account is settled by the parties with aU
the facts equally known to both, and no unfairness is
practiced, the adjustment is conclusive.'*
yet
SETTLE
94,j
settlor or settler,
and settlement:
ante-nuptial, post-nuptial, or marriage settle-
right of a
wife to have a portion of her equitable estate settled upon herself and her children.
Termed the " wife's equity " and her "equity
to a settlement."
ment, articles or deed of settlement, lawful
and fraudulent settlements.
Deed of settlement. An instrument by
which the use of property is settled upon
one or more persons (the beneficiaries), with
directions as to the mode and time of holding, enjoying, and disposing of the corpus
By marriage, at common law, the husband acquires
an absolute property in all his wife's personalty which
is capable of immediate possession, and a qualified
right in such property as he may, by legal measures,
reduce to possession. But, inasmuch as he cannot
of the property.
The beneficiary
to
the settlor's wife or intended
wife, wife and children, near relative, or creditors.
is
reach his interest in her equitable rights (as, for example, in an estate vested in a trustee), which interest
is even less than a qualified one, without application
a, court of equity, in which she must join, that
court will not aid him, unless he agrees to " do equity,"
'
'Johns
West, TO
Lantz, 63 Pa. 326
V.
(1809);
ii.
s
Hager v.
Dufour V. Dufour, 28 Ind. 424
Dixon,
v.
(1867),
Frazer, C. J.
U. S. 118(18(M), cases;
(60)
Bean
v.
Patterson, 122 id. 4C9
(1887), cases.
Prewit V. Wilson. 103 U. S. 25, 24 (1880). cases.
Periy ti. Ruby, 81 Va. 317, .326 (1886), cases; Adams
Edgerton, 48 Ark. 424 (1886), cases.
3
*
V.
J.
Fulton, 91 U. S. 485 X1875), cases, Swayne,
J.;
v.
Tucker, 87 id. 114-15 (1882), cases.
' Sims V. Waters, 65 Ala. 445 (1880).
•Pomeroy v. Mills, 37 N. J. E. 580 (1883), oases,
Stevens
V.
Jones I'. Clifton, 101 U. S. 227-^0 (1879), cases. Field,
Clark V. Killian, 103 id. 766 (1880); Wallace v. Penfield, 106 id. 260 (1882): 59 Mo. 158; Moore v. Page, 111
Hart, 11 Wheat. 256 (1826).
Thomson, 1 Black, 93 (1861).
Perkins
Lloyd
Ju.stice.
>
id. 187 (1871).
2
*
Moaelland
SEVER
by making
suitable provision for her out of that or
other property in the event of her surviving him. The
rule applies, also, as against his assignee and, also,
when she as plaintiff seeks like relief against her hus;
band or
his assignee.'
settlement
by
to a parent for
life,
and, after his death, to his son, sons, or chil-
dren in tail, with one or more trustees interposed to preserve contingent remainders.^
In substance, a limitation iirst to the use of the seta contemplated marriage took place,
then to the use of the husband and wife for life, with
remainder to the use of their first or other sons in tail;
this being as far as a limitation could go without the
tlor himself until
intervention of a trustee."
See Perpetuity.
The object was to put it out
of the
power of parents
to deal with the corpus of an estate to the prejudice of
their issue.
SEVER.
To
separate, divide, disjoin.
Co-defendants may either all plead jointly the same
defease, or each may plead a separate defense. The
latter course is termed " severing " and '* severance."
Severable.
Susceptible of separation ad;
mitting of distinct division, or of independent
existence or maintenance
:
as,
a severable
—
consideration, covenant, contract, g. v.
As to severing crops from realty, see Crop; Emblement; Fructus.
Several.
Separated, separate distinct
;
— action,
covenant
Opposed, joint,
Compare Sep abate, 3 Divers.
or obligation, fishery, plea.
;
A testator
directed that his property should be divided after the " several " deaths of persons named.
Held, that several v^as not synonymous with " respective; " that the division was to be postponed until all
had
SEWER.
Will apply to an underground
ural stream, as well as to a structure used
exclusively for surface flpw.s
The duties of municipal authorities, in adopting a
general plan of drainage, and determining when and
where sewers shall be built, of what size ajid at what
level, are of a quasi judicial nature, involving the exercise of deliberate
In a case in Alabama, six to seven hundred was held
the recomincluded in " several " hundred dollars
mended limit of credit to a retailer of groceries.^
May mean all, as, " my several children," used in a
—
judgment and large
discretion,
depending upon considerations affecting the public
health and general convenience throughout an extensive teiTitory. The exercise of such judgment and
discretion, in the selection and adoption of the general
plan or system of drainage, is not subject to revision
by a court or jury in a private action for not properly
draining a sufficient lot of land. But the construction
and repair of sewers, according to the general plan so
adopted, are simply ministerial duties; and for negh-
^ence in so constructing a sewer, or keeping it in rewhich has constructed and owns
the sewer may be sued by a person whose property is
thereby injured.
See Drainage; Negligence; Repair, 3.
pair, the municipality
SEX.
See Citizen
SHAIili.
Dubess Influence.
;
;
As
against the government, in
a statute construed " may,'' unless a contrary
is
manifest.^
Construed " must " in order to sustain or enforce
an existing right; but need not be, to create a new
right." See further May.
Whether "shall" imports futurity depends upon
the subject-matter and the context.**
Shall be allowed. An appeal from the circuit
court "shall be allowed". R. S. § 692. This means
ynust be allowed, when asked for by one in a position
—
demand
to
died.*
More than two, but not many.
(3)
Partition.
intention
(1)
individual: as, a sevei:al
the persons
Unless expressly declared otherwise, all estates are
supposed to be of this sort.' Conapa,re Entirety. See
structure for conducting the water of a nat-
A
Strict settlement.
which laud was limited
q. V.
SHALL
946
it.'
Shall be given. An act provided that certain lands
" shall be given to Major-General Nathaniel Greene.'*
Held, those are words of absolute donation, and convey a present right. ^
Shall be law^ful. The meaning of " it shall be
lawful," in a statute, depends upon the subject-mat-
will."
Severalty.
alty, or is sole
He
that holds lands in sever-
he that
right only, without
occupant thereof,
is
them in his own
any other person being joined or connected
with him in point of interest, during his
Also termed a " sevestate therein.
holds
.
.
eral tenancy."
1
See 2 Story, Eq. §§
1404-8, 1403; 3
Pomeroy, Eq.
1
3 Bl.
Com.
179.
Bennett v. New Bedford, 110 Mass. 436 (1872).
'Johnston v. District of Columbia, 118 U. S. 20-21
(1686), Gray, J., citing, as " the leading authorities,!'
Child'-u. Boston, 4 Allen, 41, 51-53 (1862), Hoar, J.;
Mills V. Brooklyn, 32 N. Y. 469, 495-50O (1865), Denio,
See ftlso cases collected, 118 U. S. 20; Gilluly v.
C. J.
City of Madison, 63 Wis. 528 (1886); Attorney -General
V. Northampton, 143 Mass. 589 (1887), cases; Hitchins v.
Frostburg, Md. Gt. Ap. (1887), cases; 24 Cent. Law J.
2
133, 411 (1887), cases.
§§ 1114 et seq.
2 [1
Steph. Com. 333.
*
Cairo, &c. E. Co. v. Hecht, 95 U. S. 170 (1877).
3 [2
Washb.
"
West Wisconsin R. Co.
'
Hannibal, &c. E. Co.
*
'
«
E. P. 358.
Colton V. Fox, 67 N. T. 352 (1876).
Einstein v. Marshall, 58 Ala. 163, 164 (1877).
Outealt V. Outcalt, 43 N. J. E. 501 (1886).
'2B1. Com.
179.
v.
v.
Foley, 94 U.
S. 103 (1876).
Board of Equalization,
Mo. 304 (1876).
' Exp. Jordan, 94 U. S. 251 (1876).
6 Rutherford v. Greene's Heirs, 3 Wheat.
198 (1817).
64
i
STALL
To let in a defense that a claim is stale it is not
necessary that a foundation he laid in the answer. If
the ease, as it appears at the hearing, is liable to
the obiection by- reason of laches, the court will, upon
that ground, be passive, and refuse
relief.
Every case
governed chiefly by its own cireumstances; sometimes the analogy of the Statute of Limitations is applied sometimes a longer period than that prescribed
by the statute is required; in some cases a shorter
time is sufficient; and sometimes the rule is applied
where there is no statutable bar. It is competent for
the court to apply the inherent principles of its own
system of jurisprudence, and to decide accordingl3\^
Length of time necessarily obscures all human eviis
;
dence, and deprives parties of the means of ascertaining the nature of original transactions; it operates by
way
STAPLE
964
of presumption in favor of the party in posses-
STAND. Pleadings and transactions
which cannot be shown to be illegal are said
"to stand " and a person who has or has not
a right to sue is said to have or not to have
" standing in court." Compare St.4.tus.
Stand aside. Statute 33 Edw. I (1308)
forbade the crown to challenge jurors except
;
A
for cause shown.
rule of practice then
which permitted the prosecution to dijurors to " stand aside until the whole
arose
rect
panel be gone through and it appear that
there will be a full jury without the persons
so challenged."
The practice was
inherited
by
and has been
us,
re-
possession are productive of
peatedly recognized by the courts. It is precisely the
same here as in England, and exists in cases of misde-
justice to others
meanor as
sion.
Long acquiescence and laches by
parties out of
much hardship and i^
and cannot be excused but by shelving some actual hinderance or impediment caused by
the fraud or concealment of the party in possession,
which will appeal to the conscience of the chancellor.^
See Delay; Limitation, 3.
STALL.
See Homestall Marketstall.
STALLIOIf. See Horse.
;
STAMP.
Compare Brand.
ing.
See Writ-
/
1. The act of March 3, 1875, required that every bank
check, draft, .order, or voucher for the payment of
money, drawn upon any bank, banker, or trust-com-
pany, should have a two-cent stamp,^ This act was
repealed by act of March 3, 1883.
Regard was had to the form of the instrument
rather than to its operation, though the device was intended to evade the revenue acts.^
If not attached to a document which the law requires
to be stamped, the document is not evidence; but it
may be
attached before it is offered in evidence.*
2. Although a statute designates stamps as " distiller's warehouse " and " tax paid " stamps, a designation in an indictment as " United States internalrevenue distillery warehouse stamps," and " tax -paid
stamps for distilled spirits," will be sufficient — the
offense charged being the removal, without destroying, of stamps from a cask of distilled spirits.' See
Coupon-stamp.
3. A-S to postage-stamps, see Mail,
cases,
Swayne,
J.;
another's interest has been
2
Wagner «.
2 Story, Eq. §§ 1519-20 c; 16 Blatch.
Baird, 7
Throckmorton,
" Standing by " does not import actual presence,
but knowledge under such circumstances as to render
it the duty of the possessor to communicate it.^
The expression, often used in discussing cases of
estoppel, does not mean actual presence or actual participation in the transaction, but silence where there
See
is knowledge and a duty to make a disclosure.^
Estoppel, Equitable.
Stand by precedents.
See Dectsum,
Stare, etc.
Stand committed. To be committed.*
Stand mute. See Mute.
STAPLE. A settled,
established mart or
market. The grand mart for the principal
commodities or manufactures of the kingdom, formerly held by act of Parliament, in
certain trading towns, and presided over by a
mayor. 5
The hereditary customs of the crown,
which were certain customs due on the ex-
"the
staple
commodities" of the
v.
How, 690 (1855);
Commonwealth, 100 Pa. 322-23 (1882); Zell v.
Commonwealth, 94 id. 272-73 (1880); 14 Cent. Law J.
402-6 (1882), cases; Baldw. 78, 82; 4 Bl. Com. 853; 2 Bac.
Abr, 365; Coke, Litt. 166; 2 Hale, P. C. 271; 26 How. St.
'
See United States
Haines
How.
materially af-
fected.
(1876),
661; 4 Cliff. 2S6, cases.
V.
of a thing being done
portation of wool, skins, and leather, were
2.
Sullivan v. Portland, &c. E. Co., 94 U. S. 811
To know
against one's right and not to protest until
styled
1
well as in felonies. ^
Stand. by.
258 (1849); United States
98 U. S. 65 (1878); Spidal v. Henrici,
120 id. 887 (1887), cases; Richards v. Mackall, 124 id.
Shackleford, 18
v.
187-88 (1888), cases; Bell v. Hndson, 78 Cal. 287 (1887),
cases: 2 Am. St. E. 796-808 (1888), cases; 1 Pom. Eq.
Tr. 1281;92E. C. L. 92; 7 Watts, 586; 37Pa.54-55; IBish.
§§ 418-19.
M., Juries, 147.
1875: 1 Sup. E. S. 132; E. S. § 3418.
'
Act 3 March,
«
22 St. L. 488, c. 121.
United States i-. Isham, 17 Wall. 496(1873).
«R. S. |§ 3431-22; 1 Whart. Ev. §§ 697-99; 47 N. Y. 467;
58 Pa. 176; 82 id. 280; 39 Vt. 412; 26 Wis. 163.
6
'
United-States v. Bayaud, 16 F. E. 376 (1883): E.S.§ 3324.
Cr. Proc, § 938; 2
2
Hatling
»
Anderson
liott, C. J.
N. H.
v.
Whart. Am. Cr. L.
Eodman,
§ 2966;
6 Ind. 292 (1855); 8 Blackf. 47.
386, 384-S5 (1660), cases.
Young
&
Hubble, 93 Ind. 573 (1883), cases, ElSee generally Richardson v. Pickering, 41
v.
V. Makepe«ioe, 103 Mass. 57
\
'2B1. Com.160.
*
Thomp.
(1869).
TREE
TREE. See At, 2; Boundary; Crop;
Emblements Fixtuees Land Logs Per;
;
;
;
sonalty; Stump: Timber.
TRESPASS.2
any
transgression or ofifense against the law of
nature, of society, or of the country in which
we live, whether it relates to a man's person
In
its
largest sense,
or his property. 3
means misdemeanor.*
Also, a form of action, at common law, to recover damages for any wrongful use of force.
Beating another
is
a
which an
armis (with force
trespass, for
action of trespass vi et
and arms) in assault and battery
will lie;
taking or detaining a man's goods is a trespass, for which a similar action, or an action
on the case in trover and conversion, is given
by the law; so, also, non-pei'formance of a
promise or undertaking is a trespass, upon
which an action of trespass on the case in
is
grounded.
an action of trespass
is
vi et
armis
lie.'
Trespass on the case
is
a universal rem-
edy, given for all personal wrongs and injuries without force or unaccompanied by
force so called because the plaintiff's whole
;
case or cause of complaint is set forth at
length in the original writ.^
In the sense of a wrong to a man's lands,
tenements, or hereditaments, trespass signifies no more than an entry on another man's
ground without lawful authority, and doing
some damage, however inconsiderable,
to
Grandona
v.
Lovdal, 70 Cal. 162
B. 390;
Wood, Nuis.
'
F. trespasser, to pass over or
'
3 El.
Com.
(1882); 107
3 Bl.
•
3 Bl.
'
3 Bl.
Mass.
§ 112.
trespass, one
porary, in the
soil,
and actual possession by entry;
having the freehold
is
not enough.
by
ansvi'erable for trespasses
A man
is
also
his cattle, ' or fowls, as
see Damaoe-feasant.
In trespasses of a permanent nature, where the injury is renewed, the declaration may allege the injury
as committed by continuation from one day to anIn
some
1.
cases entry on another's land or into his
not accounted trespass; as, an entry to demoney there payable, or to execute in*a
legal manner the process of the law. The keeper of a
public house gives a general license to enter his doors.
A landlord may justify entering to distrain for rent;
house
mand
is
or pay
and a reversioner to see if any waste be committed on
the estate, from the apparent necessity of the thing.
But in such cases, where a man misdemeans himself or makes an ill use of the authority with which
the law entrusts him, he shall be accounted a trespasser ab initio; as, if one comes into a tavern and
will not go out in a reasonable time, this wrongful
act affects and has relation back to his first entry, and
makes the whole a trespass. But a bare non-feasance,
as, not paying for an accommodation received at an
inn. is only a breach of contract.
A mere omission of duty, or neglect to do what another has a right to exact, or any other mere nonfeasance, does not amount to such an abuse of
authority as will render the party a trespasser ab
initio. Not doing a thing is not a trespass.*
The criterion of "trespass" is force directly applied.'
The force may be sufih as is implied in law. As the
law always implies force where the injury is immediate to the person or property of another, the sub" trespass " and
stantial distinction between actions of
" case " is between direct and immediate, and mediate
or consequential, injuries.'
In its widest scope, trespass on property is any inIts synonym in law-Latin was
jury to property.
any infraction of a legal right. In this
comprehends not only forcible wrongs, where
the damages are direct and immediate, but also acts
which are tortious in their consequences.'
Where the defendant flred a pistol, the ball from
which glanced and hit the plaintiff, and it was found
that the injury was unintentional but the result of
transgressio:
sense
(1886).
Com. 208; .34
Com. 122.
Com. 209-12;
it
beyond.
Ala. 554.
9
111.
170.
v.
Watts, 48
Com.
209-12; 9
111.
it
was held that
170.
1
3 Bl.
2
3B1. Com.
«
3 Bl.
«
Averill v. Smith, 17 Wall. 91 (1872), cases.
H. "'360 (1816).
Smith V. Rutherford, 2 S.
208.
<1 Bishop, Cr. L. §§568-69,625; State
Ark. 58
But, to be able to maintain an action for the
must have a property, absolute or tem-
Q. V.
culpable negligence in the defendant,
his real property.'
&
Every unwarrantable entry on another's
the law entitles a trespass by breaking his close,
soil
will lie; but, if
only consequential, a special action of
trespass on the case will
234; 16 S.
satisfaction is determined
far the offense
'^
In general, any misfeasance or act of one man
whereby another is injuriously treated or damnified is
a transgression or trespass in its largest sense: for
which whenever the act itself is directly and immediately injurious to the person or property of another,
and therefore necessarily accompanied with some
the injury
by conwas willful or inadvertent,
and by estimating the value of the actual damage
how
other," as see Continuance,
In Blackstone^s commentaries, in some connections,
assumpsit
The quantum of
sidering
sustained.
Overhanging branches are a nuisance; and the person over whoso land they hang may cut them off, or
have his action for damages and an abatement of the
nuisance. He cannot cut down the trees, nor remove
the roots further than they produce damage.'
force,
TRESPASS
1053
'
Com.
112.
212-14.
&
•Jordan v. Wyatt, 4 Gratt. 153 (1847).
' Ten Eyck v. Bunk, 31 N. J. L. 429-30 (1866), Beasley,
On trespass and negligence, see 14 Am. Law Bev.
C. J.
1-35 (1880), cases.
TRIAL
trespass m' et armis would
and immediate
direct
TRIAL
1054
the injury
lie;
result of the
was the
motion recklessly
given to the bullet.
See further Case,
3; Contribdtion; Damages, Exemplary; Joint akd Sevebal; Malice; Replevin;
ToET, 2; Waiver.
TRIAJj.
The examination
of the matter
Where a jury is discharged without a verjdict, the
proceeding is properly a " mistrial; " the proceeding
has miscarried, and the consequence is no trial at
all.'
New trial. A re-trial awarded for defeat
of justice happening at the former trial,
of fact in issue.^
In
its
A re-examination,
general use, the investigation and
between parties
decision of a matter in issue
before a competent tribunal; including
restricted sense, the investigation of the
facts only. 3
The examination before a competent
tri-
bunal, according to the law of the land, of the
law put in issue in a cause for the
purpose of determining such issue.*
A judicial examination of the issues,
facts or
whether of law or
fact, in
an action or pro-
ceeding.5
sitting in equity."
\
The hearing of a demurrer is a " trial," within the
act of March 3, 188".' /
The trial of a ca^e i^ not any trial, but the final
— the one that' stands as a thing accomplished
in
the case. 8
In criminal law, an actual trial by a jury
and pleadings prepara-
not, the arraignment,
See Arraign.
tory thereto.9
civil cases, trials
An erroneous
Mistrial.
lar trial,
due to
or fatally irregu-
disqualification in a juror or
jurors or in the judge, or to
an incurable de-
fect or deficiency in the pleadings.'"
1
Welch
V.
Durand, 33 Conn.
See
188, 185-86 (1869).
also Morris v. Piatt, 33 id. 75, 87 (1864).
^3
3
Bl.
Com.
[Jenks
Bruce
330; 9 F. R. 437.
V. State, 39
v. State,
*Tregambo
MoKee,
(1881),
Hun,
87 id.
v.
Ind. 9-10 (1872), Busku-k, C. J.
Co., 57 Cal.
505
See also 2 Fla. 573; 63 Mo. 444; 2
444; 54 Wis. 545.
Ohio Rev. St. 5187; 44 Ohio St. 528.
"Minnett v. Milwaukee, &c. R. Co., 3 Dill. 464 (1875),
Nelson, J.; Home Lite Ins. Co. v. Dunn, 19 Wall. 225
5
(1873);
Vannevar
339; 80
Ohio
v.
St. 181
;
Bryant, 21
id. 43 (1874); 118
6
Fisk
V.
Mass.
40 Ind. 179.
'Lookout Mountain R. Co. v. Huston,
(1887), cases; Laidly v. Huntmgton, 121 U.
Henarie, 32 F. R. 427
32 F. R. 711
S. 179 (1887).
(1887).
United States v. Curtis, 4 Mas. 236-37 (1836), Story, J.
i» See Wilbridge u Case, 8 Ind. 37 (1850); 4 Blaokt. 309.
»
once before. ^
least
A re-examination of an issue of fact in the
same
court, after a trial
and decision by a
jury, court, or referee.*
Has always been used in the sense of a complete
re-trial of a cause, except in instances. Being a retrial of the facts of a case, defined as a "re-examina'
an issue in fact." "
The cause is in the same condition as if no Judgment had been rendered, so that the action is- in no
sense "new," but identically the original suit. The
eri'or is extirpated, and everything else is in statu
tion of
quo.'^
A motion
new
for a
trial is
and the
addressed to the
dis-
court's action is not re-
viewable.'
To
justify granting
a new
trial,
there
must be more
than a strong preponderance Of evidence in favor of
the defeated party; it must be so palpable that the
jury have erred as to suggest that the verdict was the
result of misapprehension or partial ity.^
The statute conferring jurisdiction upon the Federal courts to grant new trials expressly provides that
such power should be exercised " for reasons for
which new trials have been usually granted in courts
This provision applies only to jury trials,
directory to the courts, to be governed by the
of law."
and
is
and principles of the common law. The courts
common law have usually granted new trials: when
of
is against the weight of the evidence, or
contrary to law; when excessive or manifestly insufficient damages have been awarded; for the admission
of illegal evidence, or the rejection of competent evidence; when a party has been deprived of evidence by
accident, and without fault on his part, or is taken b.v
surprise in a matter that he could not reasonably anticipate; for misdirection upon material questions of
law, or for serious irregularity in the trial or misconduct of the jury; for unfair conduct of the prevailing
party; when manifest in justice has been done; when
the verdict
4.53 (1882).
Comanche Mining
J.
before a court and jury,
which has been tried at
rules
are by record, by inspection,
by certificate, by witnesses, and by a jury, qq. v.
In
issue in fact
cretion of the court,
In acts of Congress regulating the removal of
causes, a trial by jury of aii issue which will determine
the facts in an actibn of law; " final hearing " meaning the hearing of the cause upon its merits by a judge
trial
an
of
all
the steps taken in the case from submission
to the jury to the rendition of judgment. In
its
by
surprise, inadvertence, or misconduct.^
'
Fisk
' [3
V.
Bl.
Henarie, 38 F. R. 487
Com.
(1887),
Deady,
J.
387.
« Silvey v. United States, 7 Ct. CI. 331 (1871); Ford u.
United States, 18 id. 70 (1883).
< Jenkins v. Frink, 30 Cal. 596 (1866).
'Zaleski v. Clark, 45 Conn. 401 (1877), Loomis, J.;
,
Steph. Plead. 94-98.
^
Lockwood
'
See R.
V.
Jones, 7 Conn. 436
S. § 726;
(1829), cases.
Indianapolis, &c. R. Co.
v.
Horst, 93
Railway Co. v. Heck, 102 id. 120
(1876), cases; 17 F. E. 793; 2 N, M. 468, 475.
' Mengis v. Lebanon Manut. Co., 13 Hep. 198 (S. D.
U.
S. 301 (1876), cases;
N. T.,
1882),
Wallace,
J.
TRIAL
the losing party, who was duly diligent in preparing
for trial, has discovered new evidence which will tend
to prove a material fact not directly in issue before,
or not then investigated, which
a different
result,
and which
probably produce
not merely cumula-
vrill
is
tive.'
In an issue out of chancery, a motion for a new trial
is to be made to that court
the verdict being only
advisory.^
—
In criminal cases, a
most
TROOPS
1055
jurisdictions,
new
trial will
be granted, in
on the application of the accused,
for cause shown.*
Public trial. Not necessarily a trial to
which the public generally or a large concourse is admitted.
The requirement of a public
;
importance.
See Calendar, 3; Deposition: Evidence; Jury;
List; Peer; Punished, Twice; Record, 3; Slander,!;
Venire.
TRIBE. Whether a class of Indians have
is primarily
a question forthe political department of the
government.! See Indian.
ceased to hold the tribal relation
TBIBirNAL.2
A
1.
the place where justice
trial Is for
of the accused; that the public
fairly dealt with
State trial. In England, a prosecution
conducted by the government in particular,
a public prosecution of more than ordinary
may
the benefit
see that he
is
and not unjustly condemned, and
3.
Any
is
magistrate's
seat;
dispensed.
court, forum, or judicial body. See
Court; Forum.
Tlie tribunal before
which matters pertaming
to
that the presence of interested spectators may keep
his triers keenly alive to a sense of their responsi-
railroads are discussed, and by which they are decided,
may, with propriety, be called a '* court of justice; "
and to the importance of their functions; and
the requirement is fairly observed, if, without partiality or favoritism, a reasonable proportion of the
public is suffered to attend.'
not an ordinary court, but a special tribunal authorized to administer justice in a class of cases which
experience proves cannot so satisfactorily be tried
before the regular courts.^
Except as otherwise provided, the decisions of
special tribunals are binding and conclusive adjudications upon all parties, like the judgment of a court of
record; and this is true independently of any express
bility
Separate
trial of
A
trial.
single or
different
each of two or more persons accused
of participation in the same offense.
Error cannot be assigned for refusal to grant such
a trial; the granting being discretionary with the
court.*
Speedy
The constitutions
trial.
of the
States provide that persons held on a criminal charge have the right to a "speedy
which was guaranteed by
trial,"
Magna Charta. The meaning is that the
a right
trial shall take place as soon as possible after
found, without depriving
the prosecution of a reasonable time for
an indictment
is
preparation. 6
A trial at such a time after the finding of
the indictment, regard being had to the
terms of court, as will afford the prosecution
a reasonable opportunity, by the fair and
honest exercise of reasonable diligence, to
prepare for a trial."
A trial
for
an offense under a
not be such a public
trial
as
is
statutory provision
termine.
Chandler
2
Watt V.
v.
Thompson,
lenged for favor, is favorable or unfavorable.^
The ofHce is abolished in nearly all of the States,
the judge who presides at the trial of the cause being
empowered to decide upon the fitness of jurymen."
TRINODA. See Necessitas, Trinoda.
TRIPARTITE. See Part, 1.
TROOPS. Conveys the idea of an
body of
'
«
armed
war
sole occupation is
Dick, J.;
a magistrate, judgmentseat: tribunus, chief of a tribe: tribus, one of the
30 F. E.
U
(1880),
Starke, 101 U. S. 250-66 (1879), cases.
III.
265 (1887).
(1868),
Lewis, J.
United States v. Fox, 3 Monta. 517 (1880), Wade,
See also Exp. Jefferson, 62 Miss. 227 (1884).
State V. Topeka, 36 Kan. 87-^ (1886), cases.
0. J.
whose
may
city ordinance
93.
Spies et al. v. People, 182
[Exp. Stanley, 4 Nev. 116
soldiers
intended.*
United States v. Williams, 1 Cliff. 17 (1858), cases.
«Cooley, Const. Lim. *383; 1 Bishop, Cr. Proc. § 959;
Grimmett v. State, 33 Tex. Ap. 41 (18S6).
•
whose
determine whether a juror, chal-
or service, answering to the regular army.'
The organization of the active militia of a State
bears no likeness to such a body. It is simply a do-
'
»
When a stat-
Sewer.
2;
office is to
'
1
final.
TRICYCLE. See Bicycle.
TRIERS, or TRIORS. Persons
••i
Steph. PI.
making them
ute creates a special tribunal to determine a class of
questions, it is a necessary implication that the determinations are intended to have force and validity,
otherwise the proceeding would be useless.* See De-
United States
v.
Holliday, 3 Wall. 419
(1865).
L. tribunal, platform for
three original families: fri-, three.
' Smith V. City of Waterbury, 54 Conn, 178 (1886).
• United States v. Leng, 18 F. R. 20 (1883), cases.
Brown,
(1832)
;
J.
;
United States
Belcher
».[4 Bl.
v.
Linn, 34
v.
Arredondo,
How.
6 Pet.
*729
523 (1800) ; 132 Mass. 43.
Com. 363.
See Reynolds v. United States, 98 U. S. 157 (1876); 5
Cal. 347; 23 Ga. 57; 43 Me. 11 14 N. J. L. 195; 15 S. & R.
•
;
156.
'
Dunne u.
State, 94
111.
126 (1879),
SooH,
J.
UNAVOIDABLE
TJlf
AVOIDABLE.
See Accident
;
Cas-
UNBORN. See Child.
UNCERTAIN. See Certain.
UNCERTIFIED.
may be implied from circumstances.
It
be provided by statute that a grantee shall not be
personally liable for an ihciunbrance unless, in some
See Certificate.
See Condition.
he shall expressly have assumed personal
words "under and subject" alone
shall not be construed to create it; and that such liability shall not be enforced by any person other than
he with whom it was incurred, nor continue after the
grantee has bojui fide parted with the property, unless
there is an express agreement for continuing the liawriting,
bUity.'
UNDER AGE.
UNDERBILLING.
Db-
than, beneath, below;
of,
that
is,
subject
to,
the law.i
Under and
subject. Used in relation to
the mutual and dependent rights and duties of mortgagees, mortgagors, the grantees
of mortgagors and the alienees of such grantees
;
also, of rights affected
by ground-rents,
and other incumbrances.
An agreement merely to take land subject to a speciincumbrance is not an agreement to assume and
pay the incumbrance. The grantee of an equity of
redemption, without words in the grant importing in
some form that he assumes the payment of a mortgage, does not bind himself personally to pay the debt.
To make him personally liable, there must be words
importing that he will pay the debt.'
"
In Pennsylvania, a conveyance of land under and
subject " to a mortgage executed by the grantor crefied
of indemnity to the grantor on the
part of the grantee. If the grantee aliens by a deed
containing the same " under and subject " clause,
ates
a covenant
without more, the alienee does not assume a liabilmortgagee, or undertake to discharge the
grantee's covenant of indemnity. The mortgagee may
show, however, that the alienee has taken upon himself not only the grantor's duty to indemnify the mortity to the
gagor, but a personal obligation to
See
Commerce,
p. 201.
UNDER IMPROVEMENT.
See Im-
provement.
I
UNDERLET.
See Lease.
PROTEST. See Protest,
UNDER-SHERIFF. See Sheriff.
UNDER
;
ment, mortgage, or other incumbrance;
under sentence; under the hammer. Compare Over, 1.
No right can be acquired " under a law " which is
not in pursuance
See Agent; Dele-
gate.
subject to; subordinate: as, under a law or
jurisdiction under the law under a judg;
See Age.
UNDER-AGENT.
3.
Lower
.
liability; that the
tution.
UNDER.
.
may
UNCONSCIONABLE. See Conscience.
UNCONSTITUTIONAL. See Consti-
•fense,
stipulations in the
taking
UNCLAIMED. See Claim.
UNCLE. See Consanguinity.
UNCOLLECTIBLE. See Collect.
UNCONDITIONAL, or UNCONDI-
UNCONTESTED. See Contest.
UNDE. See Dower, Writ of.
UNDECIDED. See Decision.
UNDENIED. See Admission, 3;
The evidence may consist of
debt.
deed, of written articles outside of its terms, or of a
verbal contemporaneous agreement; and the under-
.UALTY.
TIONED.
UNDERTAKEE
1067
UNDERSTANDING. An
1.
ambiguous
word, unless accompanied by an expression
showing that it constitutes a meeting of
minds as to something respecting which the
parties intend to be bound. It may be used
to express the expectation of confidence
which
upon
parties frequently are willing to rely
without their exacting a binding stipulation. 2
"Understanding" and "agreement" are
An understanding is "anysynonymous.
thing mutually understood or agreed Upon." «
"It is imderstood," in ordinary use, when adopted
" it is
a, written contract, has the same force as
in
agreed."
^
It falls short of alleging
a
distinct,
express con-
tract.'
Expresses a valid contract engagement of a somecharacter." See Assent; Prouisb.
what informal
UNDERTAKE.
To assume, engage;
to
agree, promise, obligate one's self. The technical word used in declaring upon an engage-
or promise of any nature. See ASSUMPCare; Covenant.
ment
SIT;
UNDERTAKER.
One who has charge
of a funeral.
pay the mortgage
Merriman v. Moore, 90 Pa. 80 (1879), cases, Paxson,
Act 12 June, 1878, P. L. 235; 121 Pa. 139.
» LCamp u Weed, 33 Conn. .'529 (1857), Storra, C. J.]
s Barkow v. Sanger, 47 Wis. 607-8 (1879), Taylor, J.
'
Mills V. Stoddard, 8 How. 366 (1830).
!>
Elliott V. Sackett, 108 U. S. 140 (188.3), Blatchford, J.
'
See also Shepherd ti. May, 115 id. SIO (188.5); Fiske v.
Tolman, V2A Mass. 256 (1878); Belmont v. Coman, S3
N. T. 43S (1860); Hoy v. Bramhall, 19 N. J. E. 74 (1868);
Fowler v. Fay, 62 111. 375 (1872).
J.;
Weld.
Gray, 170
*
Higginson
»
City of Columbia, 19 S. C. 419 (1883).
Winslow V. Dakota Lumber Co., 32 Minn. 238
•
Black
v.
14
(1859).
V.
(1884).
UNITY
UNITY.
an
of
unity
1.
The peculiar
— of
A
charter continuing " until the first day of Januthirty-flrst day of December.'
" Until " or " till " the next term of court does not
characteristic
estate in joint tenancy
a four-fold
is
and posses-
interest, title, time,
See Tenant.
sion.
USE
1089
2. At common law, a husband and wife
were one person, and he that person.
of " unity of person " depended
the legal rights, duties, and disabilities that either
party acquired by the marriage. Hence, the wife
could neither sue nor be sued without joining the husband and neither could convey directly to the other
a principle which does not now operate, at least in the
Upon this principle
ary " expires the
include any part of that term. And when time is given
for filing exceptions until a particular day in a term,
a
filing
" Until
all
case of a voluntary transfer as a settlement upon the
wife.i See Husband.
summer
June; " until
is
too late.^
" ordinarily
fall." to
UNTRUE.
—
;
on that day
Otherwise held where a party had until a certain
day for filing a motion for a new trial,"
the
first
means
to the first of
of September.*
See True.
One; the same.
With one voice with one
UNUS. L.
Una voce.
;
sis-
sent.
Uno acto.
Uno flatu.
Assent to the same thing in the same
sense.
See Agreement Assent.
3.
In one act by the same act.
In one breath in the same
;
;
;
UNIVEBSAL.
All; Gen-
See' Agent;
eral; Partnership.
UNIVEESITY.
See
Abode College, 3
Lectures; School; Tax,
UNJUSTrPIABLE.
;
3.
one utterance.
UNUSUAL. See Punishment; Usual.
Two is not an " unusual " number, when applied to
persons who violently enter premises in dispute."
UNVERIFIED. See Verify.
breath
See Defense, 3;
UNWAIVED. See Waive.
UNWRITTEN. See Law,
Homicide.
UlfKNOWN.
See Knowledge, 1 ; Contents, 1; Indictment; Owner.
UNIiAWPUIi. See Lawi-ul.
UNLESS. See Condition Nisi.
UNLIQUXDATED. See Liquidate;
:
Damages.
UPLIFTED HAND. See Oath.
UPON. 1. Resting on, united with
tained
UNO. See Unus.
UNOCCUPIED.
UNOFFICIAL.
3.
See Assumpsit; Payment.
See Satisfy.
UNSEATED. See Seated.
UNSOUND. See Sound, 3.
UNSUITABLE. See Suitable.
UNTAXED. See Tax.
1076,
French, 12
111.
1,
(1876), cases,
V.
To employ,
2,
page
hold, occupy,
,
.
<
Abel
V.
5
Pike
V.
"Brown
1
„.
Alexander, 45 Ind. 528
Adams V.
Williams. 2
Deeds, 37 Iowa, 508
»
Gray,
1
(1874).
Witt, 104 Mass. 597 (1870).
v. Wyman. 56 Iowa, 454 (1881); 55 Vt. 149.
L. us%is, q.
W. &
S. 228 (1841);
Courtright
(1873); 10 Ala. 414.
Conrow v. Conrow,
Appeal, 59 Pa. 72
304 (1850).
See Use,
c. 3.
USE.9
•>
v.
Compare After; On.
Then.
67 id. 765.
448; 101 U. S. 228, 243.
Kingsley, 120 Mass. 95
1;
enjoy, take the benefit of."
the parties.2
v.
was held equivalent
I People V.
Walker, 17 N. Y. B03 (1868). See also
People V. Crissey, 91 id. 631 (1883).
= Corbin v. Ketcham, 87 Ind. 139 (1888), cases.
' Rogers u. Cherokee Iron & Ey Co. 70 Ga. 717 (1883)
See Landlord.
Generally excludes the day to
which it relates, but this construction will
yield to the manifest contrary intention of
Webster
the death " of a devisee
UPPER. See Bench.
UPSET. See Bid.
USAGE; USANCE.
UNTENANTABLE.
C. J.;
Upon
See Case,
UNTIL.
Com.
such case means
in
to " in case of " his death.^
1.
UNSATISFIED.
"Upon"
"when."
Reason; Search-warrant.
(3).
upon " or " on "
a tender of dethe payment, the covenants
delivered "
of the purchase-money,
being dependent.
See Cause, Prob-
UNRECORDED. See Record,
UNREDEEMED. See Redeem.
UNREGISTERED. See Register.
UNREPORTED. See Report, 1
1 Bl.
con-
in case of.
livery is precedent to
See Occupy.
See Ofotcial; Report,
UNREASONABLE.
Kendall
;
payment
"
UNPAID.
When
Where a deed is to be
the
1(3).
a
;
in, q. V.
Breaking and turning over the soil of land does not
an improvement "lipon" land, within the
meaning of a mechanic's lien law."
;
'
Common;
Parol; Writing.
constitute
UNMARKETABLE. See Market.
UNMAERIED. See Man, 2 Marriage.
UNMORTGAGED. See Mortgage.
able;
in
;
14
W.
N. C. 483 (1884); Roberts's
(1868).
V.
Snow V. Columbian
Ins. Co., 48 N.
Y. 627
(1872).
UXOR
" Uttering " a paper is declaring that it is good, with
offer to pass it. " Passing " a paper
(
VACANCY
1078
an intention or an
putting it off in payment or exchange.^
To " utter and publish " forged paper means to declare or assert directly or indirectly, by words or ac-
But it does not follow that its derivatives
have acquired exclusively equivalent mean-
is
ings in popular, legislative, or legal usage.
'
a note is good, as, in offering it in payment.
But such paper is not " passed " until received by the
person to whom it is offered.^
"Uttering and publishing " import a disposal or negotiation of a forged instrument to another person.^
The party accused of uttering or passing counterfeit paper must be present when the act is done, privy
to it, or aiding, consenting, or procuring it to be done. *
An intent to defraud is a material element in the
crime of uttering forged paper.'
tions, that
TJXOB.. L. A wife. Plural, uxores.
Et uxor, usually abbreviated et ux., and
wife as, in the case of a conveyance from A
;
B
et ux. to B, or to
et
ux.
:
mariti, in right of the husband.
See Hus-
band.
See Homicide.
V.
An
V.
abbreviation of vacation, verb,
volume; also, of the Latin words,
versus, vice, vide and voce, qq. v.
Victoria,
V. A.
V. C.
V.
Vice-admiral.
Vice-chancellor.
C.
C.
cant
;
to be void of, free
want a
lack or
thing."
from or without, to
Vacant lands were
lands that were "uninhabited or
unculti-
Vacant possessions were such as
vated."
were "free, unoccupied, ownerless." Many
derivatives from the English verb retain the
exact meaning of the original Latin word.
"To be vacant," in its primary sense, is " to
be deprived of contents to be empty, or not
filled."
Usage has warranted the employment of these words in an enlarged and
broader sense but the primary and strictly
grammatical meaning which they still retain
is identical with their exclusive
original
signification.
The result is that "vacancy"
aptly describes the condition of an ofiioe
when it is first created and has been filed by
no incumbent. 1
Vacancy is the state of being empty or unfilled.
Vacant lands are unoccupied lands.
A vacant house is an untenanted house. An
old oflSoe is vacated by death, resignation, or
removal. An office newly created is ipso
;
Jure uxoris. In right of the w^ife said
of a claim made or of an act done by a hustand in behalf of his wife. Opposed, jure
Uxoreide.
In Latin, the word defined the state and
condition of some existing thing at a particular point of time: it had no intransitive
power; it meant "to be empty, void or va-
Vice-chancellor's
See
court.
Chancellor.
V. E. Venditioni exponas.
See
Ven-
DITIO;
,
.
;
facto vacant at creation.^
Vacancy is properly applicable
to the ofilce, rather
than to the term of office or service;' but the word
may apply to the term to which the event causing the
vacancy relates.*
A vacancy de facto exists where there is an absence from sickness or other cause. A vacancy de
j«re imports an entire legal emptiness.*
An existing office without an incumbent is vacant,
whether the office is new or old.*
An office may not be regarded as vacant when an'
incumbent lawfully holds over until a successor is duly
>
VACAKCY; VACANT; VACATE.s
"To vacate" has acquired an active sense,
through a long period of transition, by popular usage and in consequence of its early
adoption as a technical, legal term. " To
leave empty; to cease from occupying; to
annul to make void," express its meaning.
qualified.'^
The reference may be to a case where there has been
;
'United States
Mitchell, Baldw.
v.
367-68
a failure to
elect. ^
(1831),
cases, Baldwin, J.
1
Walsh V. Commonwealth,
89 Pa. 425 (1879),
Wood-
» Commonwealth
Searle, 2 Binn. *339 (1810), Tilgham, C. J. People v. Brigham, 2 Mich- 663 (1853); State
ward,
Horner, 48 Mo. 522 (1871).
People V. Eathbum, 21 Wend. 527 fl839); Lindsey «.
State, 38 Ohio St. 611 (1882).
« United States v. Nelson, 1 Abb. U. S. 135-38 (1867);
Green, 2 Wend. 273 (1829).
* (bounty of Scott v. Ring, 29 Minn. 404 (1888).
» Woodworth v. Hall, 1 Woodb. & M.'a91-94 (1846).
» Stocking V. State, 7 Ind. 329 (1855); Clarke v. Irwin,
6 Nev. 129-30 (1869), cases; State v. Jones, 3 Oreg. 637
(1869); State v. Boecker, 56 Mo. 21 (1874); ll3 Ind. 439.
' State ex rel
Attorney-General v. Brewster, 44 Ohio
•,.
;
V.
=
United States
V.
N.
v. Carter,
2 Oranch, C. C. 244 (1821);
Jones, 38 E. C. L. 826 (1841); State
J. L. 367-71 (1877),
v.
Hex
Eedstrake,,39
cases; 2 Bish. Cr. L.
§ 605.
'L. vacare, to be empty: to be void of, free from;
to lack, want.
'
=
J.
State
V.
People
Askew, 48 Ark.
St. 593 (1886);
9
People
89 (1886), cases.
V.
V.
State
v.
Howe,
26 id. 696 (1874).
Crissey, 91 N. Y. 634 (1883).
VACATION
In Virginia, the failure of any county, corporation,
or district officer to qualify before the commencement
of his term of ofQce creates a vacancy in the
As to a person suspended from office, the
comes as
if it
did not exist,
and he
office. ^
may not be
entitled
the cause of suspension be afterward declared insufficient.'
The President shall have Power to fill up all Vacanwhich may happen dm'ing the Recess of the
Senate, by granting Commissions which shall expire
at the end of their next Session." This authorizes him
to fill a vacancy happening during a session and which
'
'
cies
continues after adjournment.^
administration or trusteesliip
is
which began and ended on fixed days,
aggregated ninety-one days. The vacations embraced
all days not included in the terms.
The word
may embrace the period, after adjournment, in which
a court does not sit and transact business, as, in a
statute authorizing judgments by confession in vacation; and not embrace all the time the court is not
actually in session, or the time of adjournment from
land, the terms,
.
office be-
to salary during the period of suspension, although
A vacant
VAGRANT
1079
any such
day
.
to day.
VACATUE. L. Let it be set aside.
VADIUM. Law Lat. A pledge.
Vadium mortuum. A dead pledge;
mortgage. A security with the condition
that
if
money be not promptly
the
or without an occupant or incumbent
from any cause whatever. •
dwelling-house does not become vacant or unoccupied when the tenant leaves it for a few hours only
the debtor's estate will be forfeited.^
when there
received the
office unfilled
A
Vadium vivum. A
security to be held
repaid
A
living pledge.
by the creditor
till
he has
5
is
a cessation to use
it
as a dwelling."
Vacant lands are such as have not been appropriated by individuals.*
Vacate, (l) To leave empty or unoccupied.''
amount
of his debt out of the
income of the property pledged.- See Pledge.
VAGRANT.s One who wanders about,
and has no certain calling an idle fellow *
a vagabond a tramp, q. v.
A person who roams about from place to
place, begging, or living without labor or
;
;
;
(2)
as, to
To declare void, deprive of force, annul
vacate a judgment or proceeding for
irregularity, surprise, or fraud.
A writ of error does not vacate the judgment below
that continues in force until reversed.^ See Set Aside.
VACATION.
The
two
interval between
successive terms of a court.
Dming this period orders signed by a judge are
said to be issued " at chambers," g. u.
In this country all courts have terms and vacations.
The time of the commencement of every term is fixed
by statute, and the end of it by the final adjournment
of the court for that term."
The English year was divided into four terms of
the
different lengths, separated by the vacations
seasons of the great festivals or feasts, or deemed
necessary on account of the avocations of rural busi-
—
The legal definition of " vacation " is, the period
of time between the end of one term- and the beginning of another; and this meaning will be given to the
word in a statute, unless it appears that a more popular sense was intended. The intervals between the
ness.
actual sessions of court when conducting the business
of a term cannot be called vacations.'"
Under the earlier organization of courts in Eng'
Vaughan
Mann,
v.
Johnson, 77 Va. 300
(1883);
Johnson
v.
*
Cir. J.
[Cline V.
Constitution, Art.
Greenwood,
II, sec. 2, cl. 3.
10 Oreg. 238-39 (1882), cases.
'Laselle v. Hoboken Ins. Co., 43 N. J. L. 470
Sleeper v. N. H. Ins. Co., 66 N. H. 404 (1876).
« Marshall v. Bompart, 18 Mo. 87 (1863).
(1881);
See Walsh v. Commonwealth, ante.
Kansas Pacific E. Co. v. Twombly, 100 U. S. 81 (1879).
e Bronson v. Schulten, 104 U. S. 415 (1881).
i»Brayman v. Whitcomb, 134 Mass, 526 C1883), C.
means
of support.''
Any person going about from place to place begging,
asking or subsisting upon charity, and for the purpose
of acquiring money or a living, and who shall have no
fixed place of residence or lawful occupation in the
county or city in which he shall be arrested, shall be
taken and deemed to be a tramp and guilty of a mis-
demeanor.*
Any
act of begging or vagrancy
prima
facie evi-
Vagrancy is distinct from disorderly conduct and
breach of the peace, and includes only such cases of
vagabondage as are known to the common law.^
Such statutes, designed to suppress vagrancy, as
are in derogation of the right of trial by jury, are to
be strictly construed." See Conviction, Summary.
A statute authorizing two overseers of the poor, by
under their hands, to commit vagrants and
paupers to the work-house, is in violation of the Fourteenth Amendment." See Process, 1, Of law.
writing,
Conkling
don,
v.
Eidgely, 112
111. 36, 40,
43 (1884), Shel-
J.
Com.
157; 21 N.
T.
2
2 Bl.
*
L. vagari, to wander.
[Jacob's
344.
Law Diet.
1879, No. 81.
See Del. Laws, 1879, No. 223; North Car. Laws,
1879, No. 355; Ohio Act, 1879, No. 191; Mary. Laws,
1880, No. 43; Mass. Laws, 1880, No. 231, o. 257, §§ 8-3; 1
N. T. Laws, 1880, No. 296.
' Re Way, 41 Mich. 301 (1879), Campbell, C. J.
* Bullock V. Geomble, 46 111. 222 (1867); People v.
»
Penn. Act,
*
id. 287 (1870);
Wynehamer v.
T
Turner, 55
8
426 (1856); 41 Mich. 303, supra.
Allen, J.
is
dence.*
»
ib. 271 (1883).
SteubenvUle v. Gulp, 38 Ohio St. 18, 23 (1882).
' Be Farrow and Bigby, 4 Woods, 492-94 (1880), cases.
'
Woods,
visible
People, 13
JI.
Y.
Bangor, 65 Me. 120 (1876). See also
Ohio St. 184 (1869); Johnson v,
Waukesha County, 64 Wis. 288 (1886).
'Portland
Prescott
v.
V. State, 19
VEST
A
statute, deed, or will is said to vest
an
him
confer upon him
estate or property in a person, or to vest
with the estate, meaning to
ownership in the subject thereof; and an
estate
VEXAEI
1088
is
and to become yested,
becomes his property.
said to vest,
in a person
when
it
The law favors the vesting of estates, rather than
upon contingencies.*
VETO. L. I oppose, protest, forbid.
their resting
word in which the Roman
and the praetor expressed dissent
from a measure proposed by the senate or the
Originally, the
tribunes,
contract for the sale Qf ascertainecl goods " vests "
the property immediately in the buyer, and the right
to the price in the seller, unless that is not the inten-
magistrates.
tion.'
refuse (executive) assent to a
A
Devest. To remove, take away, withdraw: as, to devest a person of authority,
power, right,
title
invest.
Divest is common, but' not approved.
Adjudication in bankruptcy ipso facto devests the
debtor of all rights of property.
The repeal of a statute does not devest vested rights.
See Repeal; Retrospective.
Invest. To clothe.
(1) To put a thing upon one to confer, put
into one's possession, convey the exercise of
as, to invest with discretion or authority.
to lay out
(2) To surround with, place in
money, or its equivalent, so as to produce an
income to put out money at interest. See
;
;
;
further Invest.
Vested.
Not subject to a condition
interest, right
;
:
as,
pre-
a vested estate,
which may be
either present
or immediate, or even future but uncotitingent, and, therefore, transmissible,
and may
be qualified by a condition which does not
delay the actual vesting.
Other examples are " vested " legacies and
remainders, qq. v. Opposed, contingent.
An estate is vested when there is a person
in being
who
will
have an immediate right
to the possession of the lands upon the ceasing
of the intermediate or precedent estate; 2
—
when
there
is
an immediate right of present
enjoyment, or a present fixed right of future
enjoyment.'
In the widest sense, vested rights are rights
which are complete and consummated, so
that nothing remains to be done to fix the
right of the citizen to enjoy them.* See further Eight, 3 (2); Vested.
I
Hatch
=
Tayloe
V.
Standard Oil Co., 100 U. S. 134 (1879), cases.
Gould, 10 Barb. 396 (1851), Parker, J.; 38
v.
id. 367.
3
4 Kent, 203; 3
«
Moore
Sm.
v. State,
&
M.
347.
43 N. J. L. 343 (1881),
Van
7 t«igh, 496; 6 Yerg. 164; 4 Q. B. D. 116-36.
Sycel, J.;
'
bill
enactment into a law.
Whence veto power, message,
Opposed,
to property.
cedent or unperformed
The power in the President of the United
and in the governors of the States, to
States,
"
Every
proposed for
clause.
have passed the House of
Bill vphich shall
Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the
United States; If he approve he shall sign it, but if
not he shall return it, with his Objections to that
House
in
which
it
shall
have originated, who shall
enter the Objections at large on their Journal, and
proceed to reconsider it. If after such Reconsidera-
House shall agree to pass the
be sent, together with the Objections, to
the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House,
If any Bill shall not be
it shall become a Law.
returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him,
the Same shall be a Law, in like Mannner as if he had
signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a
Law." 2 Failure to sign a bill constitutes what is
sometimes called a " pocket " or "silent " veto.
This makes the President in effect a third branch of
the legislature. Whether the proposed law is necessary or expedient, whether it is constitutional, or
whether it is so framed as to accomplish its intent, are
tion
two
thirds of that
Bill, it shall
from the two Houses to the Presan extraordinary
power, to be exercised only in peculiar and marked
vested in the President as a guard
cases
against hasty and inconsiderate legislation, and
against any act, inadvertently passed, which might
seem to encroach upon the just authority of other
branches of government, or on the rights of States or
questions transferred
ident.
.
Said.'Vyebster: This is
.
.
.
of individuals. 2
VEX.
To hara^,
trouble, annoy.
Said
of a second suit or prosecution after another
has been fairly tried on the merits and a verdict of acquittal or conviction rendered.
" Vexatious litigation " is a common expression.
See Vexaei.
VEXABI.
nQ,y, trouble,
'
L.
To shake:
to molest, an-
prosecute, vex, q. v.
Fairfax v. Brown, 60 Md. 60
Ohio St, 365.
(1883),
cases; 50 Mich.
399; 38
!>
Constitution, Art.
»
Cooley, Princ. Const. Law,
Works.
I,
sec.
7, cl. 2.
50, 160-63: 1
Webster's
267; Federalist, No. 73; 4 Madison's
369; 1 Story, Const. § 878;
1
Kent,
239.
Works,
VOLUNTAS
S.
Without consideration
—a
valuable or
adequate consideration; gratuitous: as, a
voluntary
conveyance, deposit, settlement,
—
trust, qq. v.
One who
Volunteer.
VOTE
1094
—
twenty-one years;
idence tor a given period; age
payment of taxes; and registration; freedom from infamy, q. v.; sanity." See Insanity, 2 (2).
At common law,
Casting vote.
signi-
sometimes, the single vote of a person
who ordinarily does not vote and, in case of
an equality of votes, sometimes, the double
vote of a person who first votes with the
others and, upon an equality, creates a majority by giving a second vote
as, in the New
fies,
receives a volun-
;
tary conveyance,! that is, a conveyance made
without a good or valuable consideration.
In contests between different volunteers equity will
generally not interfere, but leaves the parties where
it
them as
finds
to title
— their
equities being equal.
Equity favors a transterree for value, as against a
mere voluntary contract of any nature, except, perhaps, n settlement upon wife and children. Exceptions are made, in the cases of bona pie grantees for
value, without notice, from volunteers
such innocent persons always being favorites in equity.^ See
especially Convktanoe, S; Settle, 3.
—
VOLUNTAS.
L.
Will; intention; vo-
lition.
Stat pro ratione voluntas.
sufficient reason for its being
The
will
is
made.'
Voluntas reputatixr pro
facto.
The
will is to be taken for the deed.
In cases of treason, the rule at common law was,
that the intention to commit treason was sufficient to
constitute the crime without an overt act.*
Voluntas testatoris ambulatoria est
usque ad mortem. The will of a testator
See further
is ambulatory up to death. =
Ambulatory.
VOTE.6 The will of a member of a body,
formally manifested toward the decision of a
question by the body as whole also, the aggregate of the expressions of the will of the
;
members.'
The word, with
its inflections, is
used in speaking of the election of
and of government.
most commonly
officers of corpo-
rations
A " vote " is
—
but the expression of the will of the
whether the formula of expression be by bal-
or viva voce.^
lot
—
A 'Woter" is an elector who votes an elector in
the exercise of his franchise or privilege of voting."
*'
Voting " and "giving in a vote " are synonymous.^**
The
qualifications of voters are similar in all the
Among those generally required are: citizenship, by birth or naturalization; res-
States,
statute relating to religious corpora-
tions. 2
The President of the Senate " shall have no Vote,
unless they be equally divided."
^
See Abode; Ballot; Bkibery; Citizen; Election,!;
Franchise, 2, Elective; Majority, 2; Precinct; Qualified, 1; Registry; Residence; Suffrage.
Cumulative voting.
for directors or
stands for the reason.
The fact that a testamentary disposition is made,
voter
—
York
each
member
" In all elections
managers of a corporation,
or shareholder
may
cast the
whole number of his votes for one candidate
or distribute them upon two or more candidates as he may prefer."*
By " whole number " is meant, as many votes for
each share as there are directors to be elected.^
/
The section confers upon the individual stockholder
the right to cast all the votes which his stock represents, multiplied by the number of directors or managers to be elected, for a single candidate. The intent
was to work a radical change in the method of conducting corporate elections. The innovation, being
made part of the supreme law, is thus placed beyond
the power of legislative interference. ^
The provision is unambiguous. If there are six directors to be elected, the single shareholder has six
votes, and, contrary to the old rule, he may cast them
for one candidate or distribute them to two or more
candidates. The ordinary manner of conducting corporate elections is in nowise interfered with. Legislation directing the manner of exercising the right is not
required: the provision is self-operative; and it applies
to all private corporations, including railway and
canal companies.'
The purpose of the provision is to enable the stockholders who are in the minority, on any question of
administration or policy, to secure representation in
the directory or management; but the right to cumulate does not exist unless expressly conferred: each
shareholder being entitled, at common law, to but one
but not uniform.
See McCrary, Elections, § 4.
[People ex rel. Remington v. Rector of Church of
Atonement, 48 Barb. 606 (1866).
I
>
[Mitchell
V.
Mitchell, 40 Ga. 16 (1869),
Story, Eq. §§ 433-34, 176.
See Dietz's Case, 41 N. J. E. 298
'See 4 Bl. Com. 80; 4 Mass. 439.
Brown, C.
s
J.
= 1
'
»2B1. Com.
'
h. votum,
'
[Abbott's
•
(1886).
originally,
a vow.
Pitts.
Law Diet,
People V. Pease, S7 N. T. 57 (1863).
» Sanford v. Prentice, 28 Wis. 362 (1871), Dixon, C.
" State V. Moore, 27 N. J. L. 107 (1858).
I,
sec. 3, cl. 4.
Penn. Const. Art. XVI, sec. 4.
'Commonwealth ex rel. Donnelly
603.
a wish;
Constitution, Art.
*
"
Leg.
v.
Tintsman, 23
J. 123 (1876).
Hays V. Commonwealth ex rel, McCutcheon, 82 Pa.
521 (1876).
s
J.
'
Pierce
(1833).
v.
Commonwealth ex rel.
Pierce, 104 Pa. 154
VOUCH
WAGER
1095
and of the .ludges of orphans' courts, " to
distinct and definite form of. proof to establish the validity of demands against dead mens'
vote on each shar^ for each member of the proposed
new board. *
SeeCoEPORATioN; Election, 1; Majority, 1; Pkoxy.
VOUCH.2
To
call
upon
tors, etc.,
require
— in attestation
estates."
A
vparrant.
Vouclier. 1. Calling in a person, to answer in a real action, who warranted the title
;
such warrantor him-
also,
i
Negotiable.
is true.
Vouched by witnesses " imports the same as testified by witnesses, called into court. A note subscribed
by two persons cannot be said to be vouched by witnesses, until the persons are called and testify before
a court respecting the note.^
Vouchee.
person called to attest or
"
to the defendant
'
That municipal vouchers are non-negotiable, see
to attest; to affirm, confirm, support, prove;
to aver that a thing
some
VOYAGE.2 A
passage by water from
one place to another.
As applied
engaged
to vessels
State commerce,
is
from one body of water
trips
Thus, in a common recovery, the tenant vouched
another to warrant his title. If the vouchee appeared,
he was made defendant in place of the voucher.*
An
3.
instrument which
attests,
warrants,
A
vouch the
confirm and estab-
document which
serves to
truth of an account, or to
lish facts of any kind.
Evidence, written or otherwise, of the
as, that services have been
truth of a fact
performed, or expenses paid or incurred.'
An account-book in which charges and acquittances are entered also, any acquittance
or receipt, discharging a person or being evi-
to another.'
may include several ports.
A voyage to some port
to another, but
Foreign voyage.
or place within the territory of a foreign naNot, then, a whaling voyage into the northern seas.*
But may include, as within the meaning of the
Coasting Act of 1793, a voyage to a place within the
waters of the United States, for trade.'
See CoDRSE, 1 Deviation Insdkahce, Marine.
;
VS. See Versus.
VTJLGtAE. See Indecent Obscene.
;
w.
—
;
dence of payment.8
W.
In connection with the disbursement of moneys,
some written or printed instrument in the
nature of a receipt, note, account, bill of particulars,
or something of that character which shows on what
account or by what authority a particular payment
has been made, and which may be kept or filed away
hy the party receiving it, for his own convenience or
protection, or that of the public."
While it is true that receipts are not indispensable,
"the imperative duty " of registers of wills,
it is still
of auditors of the accounts of executors, admiaistra476 o. As to the meaning
1 1 Morawetz, Friv. Corp. §
of " majority of votes cast," in popular elections, see
Walker v. Oswald, 68 Md. 146 (1887) High License Act
contra.
of 1888: 27 Am. Law Beg. 516-19 (1888), cases,
s F. voucher, to cite, pray in aid of a suit: L. vocare,
-
to call to or upon.
wills,
W.
Baker v. Coit, 1 Eoot, 235 (1790).
« [3 Bl. Com. 300; Coke, Litt. 101 b.
• State V. Hickman, 8 N. J. L. 301 (1826).
N. T.
V.
Green, 5 Daly, 199
v.
(1874),
Daly, 0. J.; 66
Green, 46 How. Fr. 301
(1873):
People
Haws, 12 Abb. Pr. 202 (1861).
B Whitwell V. Willard, 1 Mete. 218 (Mass., 1840),
v.
Shaw,
V.
Western
D.
WAGE.'
security;
denote
See D,
District.
(king),
3.
Swigert, 107 HI. 504(1883), Mulkey, J.
See Seal.
To
also,
and wages,
pledge, give assurance of
a pledge.
Whence wager,
qq. v.
WAGER.
1.
A pledge or gage.
of battel or battle. Trial by combat.
When the tenant in a writ of right pleaded the general
issue and offered to prove it by his champion, and the
tender was accepted, the tenant produced his champion, who, by throvring down his glove as a gage or
pledge, waged or stipulated battel with the champion
of the demandant. The latter, by taking up the gage,
Wager
stipulated to accept the challenge.
'
Eomig's Appeal, 84 Pa. 237 (1877), Woodward,
2
F. veiage, voyage;
6
Be George Moncan,
»
Taber
'
The
v.
J.
L. viaticum, provision for
journey: via, a way.
2 Abb. U. S. 181 (1870).
» The John Martin,
••
[Friend v. Gloucester Ins. Co., 113 Mass. 333
8
Saw. 853
United States,
1
a
(1873).
(1882).
Story, 7 (1839), Story, J.
Lart£, 1 Gall. 57 (1812);
The Three Brothers,
ib.
143 (1812).
*
C!hief Justice.
People
may
WiUiam
Washington, Wyoming.
WAFER.
476.
Brown
abbreviation
In law-French, interchanged with g: as in wages
and gage, ward and guardian, warn and garnish, warranty and guaranty.
s
[People
As an
1.
west, western, Westminster,
2.
implies
»
inter-
In a policy of marine insurance, the enterprise begun; not, the route taken.*
Not limited to the passage of a vessel from one port
;
maintains, bears witness.^
'
and
tion.
self.
•
in foreign
not used of a tug making short
F. ivage, gage, pledge.
wadium;
old Scotch, wad-.
L. fas, vod-^ L. L.
vadium,
See Gagb; Vadium.
WITHIN
WITNESS
1118
with, to end responsibility in, as, to with-
draw from a
cause.
" Withdrawing a juror " describes a
a court may resort when it appears
2, V. To bear testimony to; to have personal knowledge of the execution of an in-
which
owing to
some accident or surprise, defect of proof, unexpected
and difficult question of law, or like reason, a trial
strument.
cannot proceed without injustice to a party. ^
The clerk, under direction from the court, calls a
against, a party.
juror out of the box, whereupon the plaintiff objects,
or is supposed to object, to proceeding with eleven jurors, and the trial goes over to the next term, the
instrument, certifying that
fiction to
that,
rights of the litigants remaining unimpaired. The
court may resort to this practice rather than nonsuit
the plaintift. The costs may be imposed upon one
party, be divided between both, or abide the event of
May
refer to a place or a
Compare Contained.
Referring to place, may mean on the line or outside
period of time.
Thus, a horse in the street, breaking down a fence,
doing damage " within the inclosure." ^
of.
is
from May thirteenth includes
June twelfth as the last day; that is, the first day is
excluded and the last included.'' See further Day.
Outside, beyond: as,
1.
"without the State; "5 "without the alle" Within thirty days "
WITHOUT.
giance;"
<>
With
3.
" without the jurisdiction.''
the omission of with the exclu-
out any: as, without appeal, or exception;
without children, heirs, or issue; without
day, defalcation, notice, recourse, reserve,
qq. V.
"Without being licensed" is of the same import
" not being licensed." '
, and effect as "not licensed " or
Without this,
WITNESS.8
etc.
1,
n.
See Teatersb.
One who
gives evi-
dence in a cause before a court.'
A most general term, including every person from whose lips testimony is extracted
to be used in any judicial proceeding. i"
"affiant" or "deponent" is always a witness,
is not necessarily an affiant or depo-
but a witness
nent.'"
[Abbott's
See People
v.
cases; Winsor
v.
Judges of New York, 8 Cow. 130(1888),
The Queen, L. R., 1 Q. B. *a98-99 (1866J,
cases; 3 Chitty, Pr. 917.
a Pettit V. May, 34 Wis. 672
McDonald
v.
'91U. 3.377;
'
9
Mass.
(1874).
Vinette, 58 Wis. 630 (1883).
A.
1
S.,
u.
Thompson,
3 Allen, 508 (1861),
witnes, knowledge, testimony.
See Wit;
1.
Barker
v.
'» [Bliss V.
Attest.
A
Competent witness.
person who is
Opposed,
incompetent witness.
In some States wUls devising land must be
attested
by competent witnesses, unless wholly written by the
devisor, as, in Kentucky. In Pennsylvania the " competent witnesses " who are to prove a will need not be
subscribing witnesses.'"
In Virginia, by the code of 1873,
c. 118, sec. 4,
unless
the will, about to be attested, be olograph, the witnesses must subscribe as witnesses, though that word
need not be used." See further Competent.
A witness who is dea person who, being
Credible witness.
serving of confidence
competent to
;
testify, is
worthy of
belief.
In some States a will is to be attested by *' credible
witnesses. " It has been held that " credible " in this
connection means " competent." *
In a statute empowering an examined copy to be
to. by " credible witnesses," in the
made and sworn
absence or inability of the clerk of a probate court,
held to mean witnesses giving testimony under the
sanction of an oath, and who could be cross-examined
as to the existence of the record" and the accuracy of
the copy.^ See further Credible, 3.
A
Interested witness.
witness
who
is
directly interested in the result of the suit,
or in the record as evidence.
The common-law rules disqualifying for interest
have been generally abrogated, except as to personal
communications with a dead paj-ty. See post.
A
Subscribing witness.
person who,
being present at the execution of an instrument, at that time and at the request of the
Coit,
'Jenkins
v.
Dawes, 115 Mass.
1
Root, 325 (Coun,,
Shuman,
1790).
47 Me. 252 (1859), Appleton, J.
601 (1874),
Haven v. Hilliard, 23 Pick. 17-18 (1839),
' Frew V. Clarke, 80 Pa. 178-79 (187B).
»
Peake
•
See
v.
Jenkins, 80 Va. 396
Amory
v.
Gray, C.
J.;
cases.
(1885).
Fellowes, B Mass. *298 (1809); Sears
id. *361 (1815);
Bacon
Hawes
v.
Humphrey,
v.
9
Bacon, 17 id. 135 (1835);
Haven v. Hilliard, 23 id. 17-18(1889); Hall u. HaU, 18
Ga. 44-45 (1855); Jones v. Larrabee, 47 Me. 476 (1860);
Estep u Morris, 38 Me. 424 (1873). Contra, Windham
V. Chetwynd, 1 Burr. 417 (1758), Ld. Mansfield, consid-,
Pick. *356 (1830);
456.
'Commonwealth
*
in his presence.
At the time of attestation he must be " competent
to testify in court on the subject-matter.' See further
Dillingham, 12
97 id. 637.
cases.
Suit,
an
Law Diet.
'
'
*
signs
execlited
;
sion of, excluding; independently of; with-
An
One who
it was
Attesting witness.
legally qualified to give testimony.
the continued suit.'
See Guilty; Noksifit; Retraxit.
WITHIIT.
Adverse witness. A witness who is
toward, or who testifies strongly
hostile
v.
ering 99 Charles II, c. 3.
* Dibble v. Morris, 26 Conn. 425
(1857).
WITNESS
it
or, a person who, though not so present, yet subsequently in the presence of the party, who
acknowledges the signature and requests him
In trials at common law a party to the record could
not be a witness for or against himself or his adver-
to sign, afl&xes his signature.!
At common law it subscribing witness was to be
called to prove the execution of the instrument, but
never as to a collateral matter; a party was not suffi-
and compellable to testify for others. The statutes
are remedial, and to be construed accordingly.* See
except when the subscribing witness was incaHe is not called when an opponent produces a writing on notice and claims an interest under
the writing, nor when he refuses to produce the writing, nor where an acknowledgment makes a writing
evidence. An attesting witness proves his own signa-
guardians leaves other suitors, including the United
States, under the operation of the common law.'*
A wife is not given capacity to testify for (or
against) her husband."
ture only. 2
himself a witness shall create no presumption against
him.*
Like remedial statutes have been enacted in all the
States, Delaware and New Mexico excepted. In a few
party, attaches his signature to
;
cient,
pacitated.
A
Swift witness.
witness
who
is
very
eager to testify.
Zealous witness.
A witness who evinces
partiality for the party
The tendency is to admit
_
WOMAN
1119
who
all
calls
him.
persons to testify
who
'
That enactment was intended to admit the testimony of witnesses previously incompetent on account
of interest or of being parties. It introduced a principle extensively adopted in the States.'
" Provided, that in actions by or against executors,
administrators, or guardiaps, in which judgment may
be rendered for or against them, neither party shall
be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or
ward, unless called to testify thereto by the opposite
party, or required to testify thereto by the court. In
other respects the laws of the State in which the
is held shall be the rules of decision as to the
competency of witnesses in the courts of the United
States in trials at common law, and in equity, and adall
court
miralty."
action."
Huston
V.
Ticknor, 99 Fa. 238
(1881),
Paxson,
J.
H
§
;
Whart. Ev.
§§.705-40, cases; 1 Greenl. Ev. §§ 273-
Act 2 July, 1864, § 3 E. S. § 8.58.
United States v. Ten Thousand Cigars, Woolw. 125
(1867); Eison v. Cribbs, 1 Dill. 184 (1870).
See also Eice
» Act3 March, 1865: R. S. § 858, cases.
V. Martin, 7 Saw. 338-40 (1881), cases.
• Roberts v. Briscoe, 44 Ohio St. 601 (1887); Dudley v.
As to testifying to communi-
cations with deceased persons, see 33 Alb.
90 (1886), eases.
Law J.
1.
In a criminal case the defendant, at his own request,
a competent witness.
shall be
But failure
States persons charged with homicide
own
to
make
may not testify
behalf.^
In civil suits a witness may demand prepayment of
expenses." N on-attendance, after a subpoena has been
is an offense against public justice, and a
contempt of court, for which an attachment may issue
and a fine, or a fine and imprisonment, be imposed. A
writ of habeas corpxis will secure the attendance of an
imprisoned witness. By common law in criminal
cases, and by statutes in civil cases, a witness likely to
disappear before trial may te required to give bail for
duly served,
his appearance.'
On
house of Conand Con-
calling witnesses before either
gress or a committee thereof, see R.
tempt,
S. § 859,
3.
See further Aged; Ancient, 3; Akbest, 3 (2, 3);
Call, 1 Communication, Privileged, 1 Confront; Contempt, 1 Crime Decision, Rules of Deposition ; Dumb ;
Examination, 9; Expert; Evidence; Falsus, In uno;
Going; Husband; Impeach, 3; Infamy; Infant; InSANiTT, 2 (1); Letters, 4, Rogatory; Oath; Opinion, 1;
Party, 2; Question, 1; Refresh; Reputation; Slander, 1 ;' Suepcena, 3; Testify; Testimony; Testis;
;
;
;
;
;
Turpitude: Vouch; When.
WITTINGLY. See Wit.
"WOLF'S HEAD. See Caput, Lupinum.
WOMAN". May mean any human being
of the female sex, or an adult female.
In the United States unmarried women have all the
civil rights of men; they may make contracts, sue and
'
2
84-
Texas v. Chiles, 21 Wall. 490-91 (1874), Swayne, J.
Green u United States, 9 Wall. USS (1869); 1 Whart.
Ev. §§ 457-90, cases.
' Lucas V. Brooks, 8 Wall. 4B2 (1813).
• Act 16 March, 1876: 1 Sup. R. S. 312.
»
:
4
Steele, 71 Ala. 426 (1882).
admissible to testify for themselves,
1
78, cases.
2
all
The exception of executors, administrators, and
&
cases.
2 1
make
to
Interest,
M.
S69 a, cases; Cussons v. Skinner,
168 (1843); Hollenback v. Fleming, 6 Hill, 304 (1844),
Greenl. Ev.
W.
is,
'
The purpose in preventing a party from testifying,
where the adverse party is an executor or administraagainst fraudtor, is to guard the estates of decedents
ulent defenses and claims, or unfounded causes of
1
ties
in their
can furnish relevant, material evidence, leaving the
jury to judge of the credibility of each witness.
' In the courts of the United States no witness shall
be excluded in any action on account of color, or in
any civil action because he is a party to or interested
in the issue tried."
The purpose of the statutes is to put the paron a footing of equality with other witnesses, that
sary.
1
Whart. Ev.
(1888),
«
1
|§ 464-72, cases; 37 Cent.
cases; 4 Cr,
O'Neil
-0.
Law M.
Kansas
Whart. Ev. § 464.
' 1 Whart. Ev. §§
Law J. 328-32
333, 807.
City, &c. R. Co., 31 F. R. C06 (1887);
381-85, 414, cases.
As
to privileges
of witnesses, see 31 Alb. Law J. 144, 183, 244, 323, 344,
383, 403 (1885), cases; as to "utterances," 27 Am. Law
Reg. 714-19
cases.
(1888), cases,
and
36 Cent.
Law J.
2-8
(