E CONVERSO. On the other side or hand; on the contrary.
E PLURIBUS UNUM. One from more. The motto of the arms of the
EAGLE, money. A gold coin of the United States, of the value of
ten dollars. It weighs two hundred and fifty-eight grains. Of one thousand
parts, nine hundred are of pure gold, and one hundred of all Act of January 18,
1837, 4 Sharsw. Cont. of Story's L. U. S. 2523, 4. Vide Money.
EAR-WITNESS. One who attests to things he has heard himself.
EARL, Eng. law. A title of nobility next below a marquis and
above a viscount.
2. Earls were anciently called comites, because they were wont comitari
regem, to wait upon the king for counsel and advice. He was also called
shireman, because each earl had the civil government of a shire.
3. After the Norman conquest they were called counts, whence the shires
obtained the names of counties. They have now nothing to do with the government
of counties, which has entirely devolved on the sheriff, the earl's deputy, or
EARLDOM. The seigniory of an earl; the title and dignity of an
EARNEST, contracts. The payment of a part of the price of goods
sold, or the delivery of part of such goods, for the purpose of binding the
2. The effect of earnest is to bind the goods sold, and upon their being
paid for without default, the buyer is entitled to them. But notwithstanding
the earnest, the money must be paid upon taking away the goods, because no
other time for payment is appointed; earnest only binds the bargain, and gives
the buyer a right to demand, but a demand without payment of the money is void;
after earnest given the vendor cannot sell the goods to another, without a
default in the vendee, and therefore if the latter does not come and pay, and
take the goods, the vendor ought to go and request him, and then if he does not
come, pay for the goods and take them away in convenient time, the agreement is
dissolved, and he is at liberty to sell them to any other person. 1 Salk. 113:
2 Bl. Com. 447; 2 Kent, Com. 389; Ayl. Pand. 450; 3 Campb. R. 426.
EASEMENTS, estates. An easement is defined to be a liberty
privilege or advantage, which one man may have in the lands of another, without
profit; it may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5
Barn. & Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131,
194; 2 McCord, R. 451; 14 Mass. R. 49 3 Pick. R. 408.
2. This is an incorporeal hereditament, and corresponds nearly to the
servitudes or services of the civil law. Vide Lilly's Reg. h. t. 2 Bouv. Inst.
n. 1600, et seq.; 3 Kent, Com. 344: Cruise, Dig. t. 31, c. 1, s. 17; 2 Hill.
Ab. c. 5; 9 Pick. R. 51; 1 Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 102;
Whatl. on Eas. passim; and the article Servitude.
EASTER TERM, Eng. law. One of the four terms of the courts. It
is now a fixed term beginning on the 15th of April and ending the 8th of May in
every year. It was formerly a movable term.
EAT INDE SINE DIE. Words used on an acquittal, or when a
prisoner is to be discharged, that he may go without day, that is, that he be
dismissed. Dane's Ab. Index, h. t.
EAVES-DROPPERS, crim. law. Persons as wait under walls or
windows or the eaves of a house, to listen to discourses, and thereupon to
frame mischievous tales.
2. The common law punishment for this offence is fine, and finding
sureties for good behaviour. 4 Bl. Com. 167; Burn's Just. h. t.; Dane's Ab.
Index, h. t.; 1 Russ. Cr. 302.
3. In Tennessee, an indictment will not lie for eaves-dropping. 2 Tenn.
ECCHYMOSIS, med. jur. Blackness. It is an extravasation of blood
by rupture of capillary vessels, and hence it follows contusion; but it may
exist, as in cases of scurvy, and other morbid conditions, without the latter.
Ryan's Med. Jur. 172.
ECCLESIA. In classical Greek this word signifies any assembly,
and in this sense it is used in Acts xix. 39. But ordinarily, in the New
Testament, the word denotes a Christian assembly, and is rendered into English
by the word church. It occurs thrice only in, the Gospels, viz. in Matt. xvi.
18, and xviii. 17; but very frequently in the other parts of the New Testament,
beginning with Acts ii. 47. In Acts xix. 37, the word churches, in the common
English version, seems to be improperly used to denote heathen temples.
Figuratively, the word church is employed to signify the building set apart for
the Christian assemblies; but the word eclesia is not used in the New Testament
in that sense.
ECCLESIASTIC. A clergyman; one destined to the divine ministry,
as, a bishop, a priest, a deacon. Dom. Lois Civ. liv. prel. t. 2, s. 2, n.
ECCLESIASTICAL. Belonging to, or set apart for the church; as,
distinguished from civil or secular. Vide Church.
ECCLESIASTICAL COURTS. English law. Courts held by the king's
authority as supreme governor of the church, for matters which chiefly concern
2. There are ten courts which may be ranged under this class. 1. The
Archdeacon's Court. 2. The Consistory Court. 3. The Court of Arches. 4. The
Court of Peculiars. 5. The Prerogative Court. 6. The Court of Delegates, which
is the great court of appeals in all ecclesiastical causes. 7. The Court of
Convocation. 8. The Court of Audience. 9. The Court of Faculties. 10. The Court
of Commissioners of Review.
ECCLESIASTICAL LAW. By this phrase it is intended to include all
those rules which govern ecclesiastical tribunals. Vide Law Canon.
ECCLESIASTICS, canon law. Those persons who compose the
hierarchial state of the church. They are regular and secular. Aso & Man.
Inst. B. 2, t. 5, c. 4, §1.
ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease
accompanied by apoplectic convulsions, and which produces aberration of mind at
childbirth. The word Eclampsia is of Greek origin - Significat splenaorem
fulgorem effulgentiam, et emicationem quales ex ocuIis aliquando prodeunt.
Metaphorice sumitur de emicatione flammae vitalis in pubertate et aetaeis
vigore. Castelli, Lex. Medic.
2. An ordinary person, it is said, would scarcely observe it, and it
requires the practised and skilled eye of a physician to discover that
the-patient is acting in total unconsciousness of the nature and effect of her
acts. There can be but little doubt that many of the tragical cases of
infanticide proceed from this cause. The criminal judge and lawyer cannot
inquire with too much care into the symptoms of this disease, in order to
discover the guilt of the mother, where it exists, and to ascertain her
innocence, where it does not. See two well reported cases of this kind in the
Boston Medical Journal, vol. 27, No. 10, p. 161.
EDICT. A law ordained by the sovereign, by which he forbids or
commands something it extends either to the whole country, or only to some
2. Edicts are somewhat similar to public proclamations. Their difference
consists in this, that the former have authority and form of law in themselves,
whereas the latter are at most, declarations of a law, before enacted by
congress, or the legislature.
3. Among the Romans this word sometimes signified, a citation to appear
before a judge. The edict of the emperors, also called constitutiones
principum, were new laws which they made of their own motion, either to decide
cases which they had foreseen, or to abolish or change some ancient laws. They
were different from their rescripts or decrees. These edicts were the sources
which contributed to the formation of the Gregorian, Hermogenian, Theodosian,
and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1, 2, 7; Code, 1, 1 Nov.
EDICT PERPETUAL. The title of a compilation of all the edicts.
This collection was made by Salvius Julianus, a jurist who was, selected by the
emperor Adrian for the purpose, and who performed his task with credit to
EDICTS OF JUSTINIAN. These are thirteen constitutions or laws of
that prince, found in most editions of the corpus juris civilis, after the
Novels. Being confined to matters of police in the provinces of the empire,
they are of little use.
EFFECT. The operation of a law, of an agreement, or an act, is
called its effect.
2. By the laws of the United States, a patent cannot be granted for an
effect only, but it may be for a new mode or application of machinery to
produce effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H. R.
EFFECTS. This word used simpliciter is equivalent to property
or, worldly substance, and may carry the whole personal estate, when used in a
will. 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves. 507; 6 Madd. Ch. R. 119. But when
it is preceded and connected with words of a narrower import, and the bequest
is not residuary, it will be confined to species of property ejusdem generis
with those previously described. 13 Ves. 39; 15 Ves. 826; Roper on Leg.
EFFIGY, crim. law. The figure or representation of a person.
2. To make the effigy of a person with an intent to make him the object
of ridicule, is a libel. (q. v.) Hawk. b. 1, c. 7 3, s. 2 14 East, 227; 2 Chit.
Cr. Law, 866.
3. In France an execution by effigy or in effigy is adopted in the case
of a criminal who has fled from justice. By the public exposure or exhibition
of a picture or representation of him on a scaffold, on which his name and the
decree condemning him are written, he is deemed to undergo the punishment to
which he has been sentenced. Since the adoption of the Code Civil, the practice
has been to affix the names, qualities or addition, and the residence of the
condemned person, together with an extract from the sentence of condemnation,
to a post set upright in the ground, instead of exhibiting a portrait of him on
the scaffold. Repertoire de Villargues; Biret, Vo cab.
EFFRACTION. A breach, made by the use of force.
EFFRACTOR. One who breaks through; one who commits a
EGO. I, myself. This term is used in forming genealogical
tables, to represent the person who is the object of inquiry.
EIGNE, persons. This is a corruption of the French word aine,
eldest or first born.
2. It is frequently used in our old law books, bastard eigne. signifies
an elder bastard when spoken of two children, one of whom was; born before the
marriage of his parents, and the other after; the latter is called mulier
puisne. Litt. sect. 399.
EIRE, or EYRE, English law. A journey. Justices in eyre, were
itinerant judges, who were sent once in seven years with a general commission
in divers counties, to hear and determine such causes as were called pleas of
the crown. Vide Justices in eyre.
EJECTMENT, remedies. The name of an action which lies for the
recovery of the possession of real property, and of damages for the unlawful
detention. In its nature it is entirely different from a real action. 2 Term
Rep; 696, 700. See 17 S. & R. 187, and, authorities cited.
2. This subject may be considered with reference, 1st. To the form of
the, proceedings. 2d. To the nature of the property or thing to be recovered.
3d. To the right to such property. 4th. To the nature of the ouster or injury.
5th. To the judgment.
3. - 1. In the English practice, which is still adhered to in some
states, in order to lay the foundation of this action, the party claiming title
enters upon the land, and then gives a lease of it to a third person, who,
being ejected by the other claimant, or some one else for him, brings a suit
against, the ejector in his own name; to sustain the action the lessee must
prove a good title in the lessor, and, in this collateral way, the title is
tried. To obviate the difficulty of proving these forms, this action has been
made, substantially, a fictitious process. The defendant agrees, and is
required to confess that a lease was made to the plaintiff, that he entered
under it, and has been ousted by the defendant, or, in other words, to admit
lease, entry, and ouster, and that he will rely only upon his title. An actual
entry, however, is still supposed, and therefore, an ejectment will not lie, if
the right of entry is gone. 3 Bl. Com. 199 to 206. In Pennsylvania, New York,
Arkansas, and perhaps other states, these fictions have all been abolished, and
the writ of ejectment sets forth the possessionof the plaintiff, and an
unlawful entry on the part of the defendant.
4. - 2. This action is in general sustainable only for the recovery of
the possession of property upon which an entry might in point of fact be made,
and of which the sheriff could deliver actual possession: it cannot, therefore,
in general, be sustained for the recovery of property which, in legal
consideration, is not tangible; as, for a rent, or other incorporeal
heriditaments, a water-course, or for a mere privilege of a landing held in
common with other citizens of a town. 2 Yeates, 331; 3 Bl. Com. 206; Yelv. 143;
Run. Eject. 121 to 136 Ad. Eject. c. 2; 9 John. 298; 16 John. 284.
5. - 3. The title of the party having a right of entry maybe in
fee-simple, fee-tail, or for life or years; and if it be the best title to the
property the plaintiff will succeed. The plaintiff must recover on the
strength. of his title, and not on the weakness or deficiency of that of the
defendant. Addis. Rep. 390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288;
4 Burr. 2487; 1 East, R. 246; Run. Eject. 15; 5 T. R. 110.
6. - 4. The injury sustained must in fact or in point of law have
amounted to an ouster or dispossession of the lessor of the plaintiff, or of
the plaintiff himself, where the fictions have been abolished; for if there be
no ouster, or the defendant be not in possession at the time of bringing the
action, the plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R.
7. - 5. The judgment is that the plaintiff do recover his term, of and
in the tenements, and, unless the damages be remitted, the damages assessed by
the jury with the costs of increase. In Pennsylvania, however, and, it is
presumable, in all those states where the fictitious form of this action has
been abolished, the plaintiff recovers possession of the land generally, and
not simply a term of years in the land. See 2 Seam. 251; 4 B. Monr. 210; 3
Harr. 73; 1 McLean, 87. Vide, generally, Adams on Ej.; 4 Bouv. Inst. n., 3651,
et seq.; Run. Ej.; Com. Dig. h. t.; Dane's Ab. h. t.; 1 Chit. Pl. 188 to 193;
18 E. C. L. R. 158; Woodf. L. & T. 354 to 417; 2 Phil. Ev. 169.; 8 Vin. Ab.
323; Arch. Civ. Pl. 503; 2 Sell. Pr. 85; Chit. Pr. lndex, h. t.; Bac. Ab. h. t
Doct. Pl. 227; Am. Dig. h. t.; Report of the Commissioners to Revise the Civil
Code of Pennsylvania, January 16, 1835, pp. 80, 81, 83; Coop. Justinian,
EJUSDEM GENERIS. Of the same kind.
2. In the construction of laws, wills and other instruments, when
certain things are enumerated, and then a phrase is used which might be
construed to include other things, it is generally confined to things ejusdem
generas; as, where an act (9 Ann. C. 20) provided that a writ of quo warranto
might issue against persons who should usurp "the offices of mayors, bailiffs,
port reeves, and other offices, within the cities, towns, corporate boroughs,
and places, within Great Britain," &c.; it was held that "other offices"
meant offices ejusdem generis; and that the word "places" signified places of
the same kind; that is, that the offices must be corporate offices, and the
places must be corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D.
& Ry. 393; 1 B. & C. 237.
3. So, in the construction of wills, when certain articles are
enumerated, the terra goods is to be restricted to those ejusdem generis. Bac.
Ab. Legacies, B; 3 Rand. 191; 3 Atk. 61; Abr. Eq. 201; 2 Atk. 113.
ELDEST. He or she who has the greatest age.
2. The laws of primogeniture are not in force in the United States; the
eldest child of a family cannot, therefore, claim any right in consequence of
being the eldest.
ELECTION. This term, in its most usual acceptation, signifies
the choice which several persons collectively make of a person to fill an
office or place. In another sense, it means the choice which is made by a
person having the right, of selecting one of two alternative contracts or
rights. Elections, then, are of men or things.
2. - §1. Of men. These are either public elections, or elections by
companies or corporations.
3. - 1. Public elections. These should be free and uninfluenced either
by hope or fear. They are, therefore, generally made by ballot, except those by
persons in their representative capacities, which are viva voce. And to render
this freedom as perfect as possible, electors are generally exempted from
arrest in all cases, except treason, felony, or breach of the peace, during
their attendance on election, and in going to and returning from them. And
provisions are made by law, in several states, to prevent the interference or
appearance of the military on the election ground.
4. One of the cardinal principles on the subject of elections is, that
the person who receives a majority or plurality of votes is the person elected.
Generally a plurality of the votes of the electors present is sufficient; but
in some states a majority of all the votes is required. Each elector has one
5. - 2. Elections by corporations or companies are made by the members,
in such a way its their respective constitutions or charters direct. It is
usual in these cases to vote a greater or lesser number of votes in proportion
as the voter has a greater or less amount of the stock of the company or
corporation, if such corporation or company be a pecuniary institution. And the
members are frequently permitted to vote by proxy. See 7 John. 287; 9 John.
147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend. 509; 1 Wend. 98.
6. - §2. The election of things. 1. In contracts, when a; debtor is
obliged, in an alternative obligation, to do one of two things, as to pay one
hundred dollars or deliver one hundred bushels of wheat, he has the choice to
do the one or the other, until the time of payment; he has not the choice,
however, to pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No. 247; ll
John. 59. Or, if a man sell or agree to deliver one of two articles, as a horse
or an ox, he has the election till the time of delivery; it being a rule that
"in case an election be given of two several things, always be, which is the
first agent, and which ought to do the first act, shall have the election." Co.
Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure of the person who has
the right to make his election in proper time, the right passes to the opposite
party. Co. Litt. 145, a; Viner, Abr. Election, B, C; Poth. Obl. No. 247; Bac.
Ab. h. t. B; 1 Desaus. 460; Hopk. R. 337. It is a maxim of law, that an
election once made and pleaded, the party is concluded, electio semel facta, et
placitum testatum, non patitur regress-um. Co. Litt. 146; 11 John. 241.
7.-2. Courts of equity have adopted the principle, that a person shall
not be permitted to claim under any instrument, whether it be a deed or will,
without giving full effect to it, in every respect, so far as such person is
concerned. This doctrine is called into exercise when a testator gives what
does not belong to him, but to some other person, and gives, to that person
some estate of his own; by virtue of which gift a condition is implied, either
that he shall part with his own estate or shall not take the bounty. 9 Ves.
515; 10 Ves. 609; 13 Ves. 220. In such a case, equity will not allow the first
legatee to, insist upon that by which he would deprive another legatee under
the same will of the benefit to which he would be entitled, if the first
legatee permited the whole will to operate, and therefore compels him to make
his election between his right independent of the will, and the benefit under
it. This principle of equity does not give the disappointed legatee the right
to detain the thing itself, but gives a right to compensation out of something
else. 2 Rop. Leg. 378, c. 23, s. 1. In order to impose upon a party, claiming
under a will, the obligation of making an election, the intention of the
testator must be expressed, or clearly implied in the will itself, in two
respects; first, to dispose of that which is not his own; and, secondly, that
the person taking the benefit under the will should, take under the condition
of giving effect thereto. 6 Dow. P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C.
C. 492;3 Bro. C. C. 255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves. jr.
367, 371; 3 Ves. jr. 65; Amb. 433; 3 Bro. P. C. by Toml. 277; 1 B. & Beat.
1; 1 McClel. R. 424, 489, 541. See, generally, on this doctrine, Roper's
Legacies, c. 23; and the learned notes of Mr. Swanston to the case Dillon v.
Parker, 1 Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3 Desaus. R.
504; 8 Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13
Price, R. 607; 1 McClel. R. 439; 1 Y. & C. 66; 2 Story, Eq. Jur. §1075
to 1135; Domat, Lois Civ. liv. 4, tit. 2, §3, art. 3, 4, 5; Poth. Pand.
lib. 30, t. 1, n. 125; Inst. 2, 20, 4; Dig. 30, 1, 89, 7.
8. There are many other cases where a party may be compelled to make an
election, which it does not fall within the plan of this work to consider. The
reader will easily inform himself by examining the works above referred to.
9. - 3. The law frequently gives several forms of action to the injured
party, to enable him to recover his rights. To make a proper election of the
proper remedy is of great importance. To enable the practitioner to make the
best election, Mr. Chitty, in his valuable Treatise on Pleadings, p. 207, et
seq., has very ably examined the subject, and given rules for forming a correct
judgment; as his work is in the hands of every member of the profession, a
reference to it here is all that is deemed necessary to say on this subject.
See also, Hammond on Parties to Actions; Brown's Practical Treatise on Actions
at Law, in the 45th vol. of the Law Library; U. S. Dig. Actions IV.
ELECTION OF ACTIONS, practice. It is frequently at the choice of
the plaintiff what kind of an action to bring; a skilful practitioner would
naturally select that in which his client can most easily prove what is his
interest in the matter affected; may recover all his several demands against
the defendant; may preclude the defendant from availing himself of a defence,
which be might otherwise establish; may most easily introduce his own evidence;
may not be embarrassed by making too. many or too few persons parties to the
suit; may try it in the county most convenient to himself; may demand bail
where it is for the plaintiff's interest; may obtain a judgment with the least
expense and delay; may entitle himself to costs; and may demand bail in error.
1 Chit. Pl. 207 to 214.
2. It may be laid down as a general rule, that when a statute prescribes
a new remedy, the plaintiff has his election either to adopt such remedy, or
proceed at common law. Such statutory remedy is cumulative, unless the statute
expressly, or by necessary implication takes away the Common law remedy. 1 S.
& R. 32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 John. 220; 1 Call,
243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383; 4 Halst. 384; 3
Chit. Pr. 130.
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle,
that a person shall not be permitted to claim under any instrument, whether it
be a deed or a will, without giving full effect to it in every respect, so far
as such person is concerned. When a testator, therefore, gives what belongs to
another and not to him, and gives to the owner some estate of his own; this
gift is under an implied condition, either that he shall part with his own
estate, or not take the bounty. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves.
697; 1 Suppl. to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator
undertakes to dispose of an estate belonging to B, and devise to B other lands,
or bequeath to him a legacy by the same will, B will not be permitted to keep
his own estate, and enjoy at the same time the benefit of the devise or bequest
made in his favor, but must elect whether he will part with his own estate, and
accept the provisions in the will, or continue in possession of the former and
reject the latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst. 436, 447 1 Rro. C. C.
480; 2 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201; 1 Dev. Eq. R. 283; 3
Desaus. 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1 Whart. 490; 5 Dana, 345;
White's L. C. in Eq. *233.
2. The foundation of the equitable doctrine of election, is the
intention, explicit or presumed, of the author of the instrument to which it is
applied, and such is the, import of the expression by which it is described as
proceeding, sometimes on a tacit, implied, or constructive condition, sometimes
on equity. See Cas. temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. 536; 1
Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432, several very full
3. As to what acts of acceptance or acquiescence will constitute an
implied election, see 1 Swan. R. 381, n. a; and the cases there cited.
ELECTOR, government. One who has the right to make choice of
public officers one, who has a right to vote.
2. The qualifications of electors are generally the same as those
required in the person to be elected; to this, however, there is one exception;
a naturalized citizen may be an elector of president of the United States,
although he could not constitutionally be elected to that office.
ELECTORS OF PRESIDENT. Persons elected by the people, whose sole
duty is to elect a president and vice-president of the U. S.
2. The Constitution provides, Am. art. 12, that "the electors shall meet
in their respective states, and vote by ballot for president and
vice-president, one of whom at least shall not be an inhabitant of the same
state with themselves; they shall name in their ballots the person voted for as
president, and in distinct ballots the person voted for as vice-president; and
they shall make distinct lists of all persons voted fur as president, and of
all persons voted for as vice-president, and of the number of votes for each;
which list they shall sign and certify, and transmit, sealed, to the seat of
the government of the United States, directed to the president of the senate;
the president of the senate shall, in the presence of the senate and the house
of representatives, open all the certificates, and the votes shall then be
counted; the person having the greatest number of, votes for president, shall
be the president, if such number be the majority of the whole number of
electors appointed; and if no, person have such majority, then from the persons
having the highest numbers, not exceeding three, on the list of those voted for
as president, the house of representatives shall choose immediately, by ballot,
the president. But in choosing the president, the votes shall be taken by
states, the representation from each state having one vote; a quorum, for this
purpose, shall consist of a member or members from two-thirds of the states,
and a majority of all the states shall be necessary to a choice. And if the
house of representatives shall not choose a president whenever the right of
choice shall devolve upon them, before the fourth day of March next following,
then the vice-president shall act as president, as in the case of the death or
other constitutional disability of the president.
3. - 2. "The person having the greatest number of votes as
vice-president shall be vice-president, if such number be a majority of the
whole number of electors appointed and if no person have a majority, them from
the two highest numbers on the list, the senate shall choose the
vice-president; a quorum for the purpose shall consist of two-thirds of the
whole number of senators, and a majority of the whole number shall be necessary
to a choice. But no person constitutionally ineligible to the office of
president, shall be eligible to that of vice-president of the United States."
Vide 3 Story, Const. §1448 to 1470.
ELEEMOSYNARY. Charitable alms-giving.
2. Eleemosynary corporations are colleges, schools, and hospitals. 1
Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R. 346.
ELEGIT, Eng. practice, remedies. A writ of execution directed to
the sheriff, commanding him to make delivery of a moiety of the party's land,
and all his goods, beasts of the plough only excepted.
2. The sheriff, on the receipt of the writ, holds an inquest to
ascertain the value of the lands and goods he has seized, and then they are
delivered to the plaintiff, who retains them until the whole debt and damages
have been paid and satisfied; during that term he is called tenant by elegit.
Co. Litt. 289. Vide Pow. Mortg. Index, h. t.; Wats. Sher. 206. As to the law of
the several states on the subject. of seizing land and extending it. see 1
Hill. Ab. 556-6.
ELIGIBILITY. Capacity to be elected.
2. Citizens are in general eligible to all offices; the exceptions arise
from the want of those qualifications which the constitution requires; these
are such as regard his person, his property, or relations to the state.
3.- 1. In. general, no person is eligible to any office, until he has
attained the full age of twenty-one years; no one can be elected a senator of
the United States, who shall not have attained the age of thirty years, been a
'citizen of th e United States nine years and who shall not be an inhabitant of
the, state for which he shall be chosen. Const. art. 1, s. 3. No person, except
a natural born citizen, or a citizen of the United States at the time of the
adoption of this constitution, is eligible to the office of president, and no
person shall be eligible to that office, who shall not have attained the age of
thirty-five years, and been fourteen years a resident within the United States.
Const. art. 2, s. 1.
4. - 2. A citizen may be ineligible in consequence of his relations to
the state; for example, holding an office incompatible with the office sought.
Vide Ineligibility. Because he has not paid the taxes the law requires; because
he has not resided a sufficient length of time in the state.
5. - 3. He may be ineligible for want of certain property qualifications
required by some, law.
ELISORS, practice. Two persons appointed by the court to return
a jury, when the sheriff and the coroner have been challenged as incompetent;
in this case the elisors return the writ of venire directed to them, with a
panel of the juror's names, and their return is final, no challenge being
allowed to their array. 3 Bl. Com. 355,; 3 Cowen, 296; 1 Cowen, 32.
ELL. A measure of length. In old English the word signifies arm,
which sense it still retains in the word elbow. Nature has no standard of
measure. The cubit, the ell, the span, palm, hand, finger, (being taken from
the individual who uses them) varies. So of the foot, pace, mile, or mille
passuum. See Report on Weights and Measures, by the Secretary of State of the
United. States, Feb. 22, 1821; Fathom.
ELOIGNE, practice. This word signifies, literally, to remove to
a distance; to remove afar off. It is used as a return to a writ of replevin,
when the chattels have been removed out of the way of the sheriff. Vide
ELONGATA, practice. There turn made by the sheriff to a writ of
replevin, when the goods have been removed to places unknown to him. See, for
the form of this return, Wats. Sher. Appx. c. 18, .s. 3, p. 454; 3 Bl. Com.
2. On this return the plaintiff is entitled to a capias in withernam.
Vide Withernam, and Wats. Sher. 300, 301. The word eloigne, (q. v.) is
sometimes used as synonymous with elongata.
ELOPEMENT. This term is used to denote the departure of a
married woman from her hushand, and dwelling with an adulterer.
2. While the wife reides with her hushand, and cohabits with him,
however exceptionable her conduct may be, yet he is bound to provide her with
necessaries, and to pay for them; but when she elopes, the hushand is no longer
liable for her alimony, and is not bound to pay debts of her contracting when
the separation is notorious; and whoever gives her credit under these
circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R. 42; 3 Pick. R.
289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12 John. R. 293; Bull.
N. P. 135; Stark. Ev. part 4, p. 699.
ELOQUENCE OR ORATORY. The act or art of speaking well upon any
subject with a view to persuade. It comprehends a good elocution, correct and
appropriate expressions uttered. with fluency, animation and suitable action.
The principal rules of the art, which must be sought for in other works, are
summarily expressed in the following lines:
" Be brief, be pointed; let your matter stand Lucid in order, solid,
and at hand; Spend not your words on trifles, but condense; Strike with the
mass of thoughts, not drops of sense; Press to the close with vigor once begun,
And leave, (how hard the task!) leave off when done; Who draws a labor'd length
of reasoning out, Put straws in lines for winds to whirl about; Who draws a
tedious tale of learning o'er, Counts but the sands on ocean's boundless shore;
Victory in law is gain'd as battle's fought, Not by the numbers, but the forces
brought; What boots success in skirmishes or in fray, If rout and ruin
following close the day? What worth a hundred Posts maintained with skill, If
these all held, the foe is victor still? He who would win his cause, with power
must frame Points of support, and look with steady aim: Attack the weak, defend
the strong with art, Strike but few blows, but strike them to the heart; All
scatter'd fires but end in smoke and noise, The scorn of men, the idle play of
boys. Keep, then, this first great precept ever near, Short be your speech,
your matter strong and clear, Earnest your manner, warm and rich your style,
Severe in taste, yet full of grace the while; So may you reach the loftiest
heights of fame, And leave, when life is past, a deathless name."
ELSEWHERE. In another place.
2. Where one devises all his land in A, B and C, three distinct towns,
and elsewhere, and had lands of much greater value than those in A, B and C, in
another county, the lands in the other county were decreed to pass by the word
elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J., and other
judges, the word elsewhere, was adjudged to be the same as if the testator had
said he devised all his lands in the three towns particularly mentioned, or in
any other place whatever. 3 P. Wms. 5 6. See also Prec. Chan. 202; 2 Vern. 461;
2 Vern. 560; 3 Atk. 492; Cowp. 860; Id. 808; 2 Barr. 912; 5 Bro. P. C. 496; S.
C. 1 East, 456; 1 Vern. 4 n.
3. - 2. As to the effect of the word elsewhere, in the case of lands not
purchased at the time of making the will, see 3 Atk. 254; 2 Vent. 351. Vide
EMANCIPATION. An act by which a person, who was once in the
power of another, is rendered free. B y the laws of Louisiana, minors may be
emancipated. Emancipation is express or implied.
2. Express emancipation. The minor may be emancipated by his father, or,
if be has no father, by his mother, under certain restrictions. This
emancipation takes place by the declaration, to that effect, of the father or
mother, before a notary public, in the presence of two witnesses. The orphan
minor may, likewise, be emancipated by the judge, but not before he has arrived
at the full age of eighteen years, if the family meeting, called to that
effect, be of opinion that he is able to administer his property. The minor may
be emancipated against the will of his father and mother, when they ill treat
him excessively, refuse him support, or give him corrupt example.
3. The marriage of the minor is an implied emancipation.
4. The minor who is emancipated has the full administration of his
estate, and may pass all act's which may be confined to such administration;
grant leases, receive his revenues and moneys which may be due him, and give
receipts for the same. He cannot bind himself legally, by promise or
obligation, for any sum exceeding the amount of one year of his revenue. When
he is engaged in trade, he is considered as leaving arrived to the age of
majority, for all acts which have any relation to such trade.
5. The emancipation, whatever be the manner in. which it may have been
effected, may be revoked, whenever the minor contracts engagements which exceed
the limits prescribed by law.
6. By the English law, filial emancipation is recognized, chiefly, in
relation to the parochial settlement of paupers. See 3 T. R. 355; 6 T. R. 247;
8 T. R. 479; 2 East, 276; 10 East, 88.; 11 Verm. R. 258, 477. See Manumission.
See Coop. Justin. 441, 480; 2 Dall. Rep. 57, 58; Civil Code of Louisiana, B. 1,
tit. 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de Droit, par Ferriere;
Diet. de Jurisp. art. Emancipation.
EMBARGO, maritime law. A proclamation, or order of state,
usually issued in time of war, or threatened hostilities, prohibiting the
departure of ships or goods from some, or all the ports of such state, until
further order. 2 Wheat. 148.
2. The detention of ships by an embargo is such an injury to the owner
as to entitle him to recover on a policy of insurance against "arrests or
detainments." And whether the embargo be legally or illegally laid, the injury
to the owner is the same; and the insurer is equally liable for the loss
occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 Bell's Com.
517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or in the
course of the voyage, does not, of itself, work a dissolution of a charter
party, or the contract with the seamen. It is only a temporary restraint
imposed by authority for legitimate political purposes, which suspends, for a
time, the performance of such contracts, and leaves the rights of parties
untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325, 3
B. & P. 405-434; 4 East, R. 546-566.
EMBEZZLEMENT, crim. law. The fraudulently removing and secreting
of personal property, with which the party has been entrusted, for the purpose
of applying it to his own use.
2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides,
that if any person, within any of the laces under the sole and exclusive
jurisdiction of the United States, or upon the high seas, shall take and carry
away, with an intent to steal or purloin, the personal goods of another; or if
any person or persons, having, at any time hereafter, the charge or custody of
any arms, ordnance, munition, shot, powder, or habiliments of war, belonging to
the. United States, or of any victuals provided for the victualling of any
soldiers, gunners, marines, or pioneers, shall, for any lucre or gain, or
wittingly, advisedly, and of purpose to hinder or impede the service of the
United States, embezzle, purloin, or convey away, any of the said arms,
ordnance, munition, shot or powder, habiliments of war, or victuals, that then,
and in every of the cases aforesaid, the persons so offending, their
counsellors, aiders and abettors, (knowing of, and privy to the offences
aforesaid,) shall, on conviction, be fined, not exceeding the fourfold value of
the property so stolen, embezzled or purloined the one moiety to be paid to the
owner of the goods, or the United States, as the case may be, and the other
moiety to the informer and prosecutor, and be publicly whipped, not exceeding
3. The Act of April 20, 1818, 3 Story, 1715, directs that wines and
distilled spirits shall, in certain cases, be deposited in the public
warehouses of the United States, and then it is enacted, s. 5, that if any
wines, or other spirits, deposited under the provisions of this act, shall be
embezzled, or fraudulently hid or removed, from any store or place wherein they
shall have been deposited, they shall be forfeited, and the person or persons
so embezzling, hiding, or removing the same, or aiding or assisting therein,
shall be liable to the same pains and penalties as if such wines or spirits had
been fraudulently unshipped or landed without payment of duty.
4. By the 21st section of the act to reduce into one the several acts
establishing and regulating the post-office, passed March 3, 1825, 3 Story,
1991, the offence of embezzling letters is punished with fine and imprisonment.
5. The act more effectually to provide for the punishment of certain
crimes against the United States, and for other purposes, passed March 3, 1825,
s. 24, 3 Story, 2006, enacts, that if any of the gold or silver coins which
shall be struck or coined at the mint of the United States, shall be debased,
or made worse, as to the proportion of fine gold or fine silver therein
contained, or shall be of less weight or value than the same ought to be,
pursuant to the several acts relative thereto, through the default or with the
connivance of any of the officers or persons who shall be employed at the said
mint, for the purpose of profit or gain, or otherwise, with a fraudulent intent
and if any of the said officers or persons shall embezzle any of the metals
which shall, at any time, be committed to their charge for the purpose of being
coined; or any of the coins which shall be struck or coined, at the said mint;
every such officer, or person who shall commit any, or either, of the said
offences, shall be deemed guilty of felony, and shall be sentenced to
imprisonment and hard labor for a term not less than one year, nor more than
ten years, and shall be fined in a sum not exceeding ten thousand dollars.
6. When an embezzlement of a part of the cargo takes place on board of a
ship, either from the fault, fraud, connivance or negligence of any of the
crow, they are bound to contribute to the reparation of the loss, in proportion
to their wages. When the embezzlement is fixed on any individual, he is solely
responsible; when it is made by the crew, or some of the crew, but the
particular offender is unknown, and from the circumstances of the case, strong
presumptions of guilt apply to the whole crew, all must contribute. The
presumption of innocence is always in favor of the crew, and the guilt of the
parties must be established, beyond all reasonable doubt, before they can be
required to contribute. 1 Mason's R. 104; 4 B. & P. 347; 3 Johns. Rep. 17;
1 Marsh. Ins. 241; Dane's Ab. Index, h. t.; Wesk. Ins. 194; 3 Kent, Com., 151;
EMBLEMENTS, rights. By this term is understood the crops growing
upon the land. By crops is here meant the products of the earth which grow
yearly and are raised by annual expense and labor, or "great manurance and
industry," such as grain; but not fruits which grow on trees which are not to
be planted yearly, or grass, and the like, though they are annual. Co. Litt.
55, b; Com. Dig. Biens, G; Ham. Part. 183, 184.
2. It is a general rule, that when the estate is terminated by the act
of God in any other way than by the death of the tenant for life, or by act of
the law, the tenant is entitled to the enablements; and when he dies before
harvest time, his executors shall have the emblements, as a return for the
labor and expense of the deceased in tilling the ground. 9 Johns. R. 112; 1
Chit. P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 4; Bac.
Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.; Dane's Ab. Index, h. t.; 1
Penna. R. 471; 3 Penna. 496; Ang. Wat. Co. 1 Bouv. Inst. Index, h. t.
EMBRACEOR, criminal law. He who, when a matter is on trial
between party and party, comes to the bar with one of the parties, and having
received some reward so to do, speaks in the case or privily labors the jury,
or stands there to survey or overlook them, thereby to put them in fear and
doubt of the matter. But persons learned in the law may speak in a case for
their clients. Co. Litt. 369; Terms de la Ley. A person who is guilty of
embracery. (q. v.)
EMBRACERY, crim. law. An attempt to corrupt or influence a jury,
or any way incline them to be more favorable to the one side than to the other,
by money, promises, threats, or persuasions; whether the juror on whom such
attempt is made give any verdict or not, or whether the Verdict be true or
false. Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a; Hob. 294; Dy.
84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod. 111, 118; Com. 601; 5 Cowen,
EMENDALS, Eng. law. This ancient word is said to be used in the
accounts of the inner temple, where so much in emendals at the foot of an
account signifies so much in bank, in stock, for the supply of emergencies.
Cunn. Law Dict.
EMIGRANT. One who quits his country for any lawful reason, with
a design to settle elsewhere, and who takes his family and property, if he has
any, with him. Vatt. b. 1, c. 19, §224.
EMIGRATION. The act of removing from one place to another. It is
sometimes used in the same sense as expatriation, (q. v.) but there is some
difference in the signification. Expatriation is the act of abandoning one's
country, while emigration is, perhaps not strictly, applied to the act of
removing from one part of the country to another. Vide 2 Kent, Com. 36.
EMINENCE; A title of honor given to cardinals.
EMINENT DOMAIN. The right which people or government retain over
the estates of individuals, to resume the same for public use.
2. It belongs to the legislature to decide what improvements are of
sufficient importance to justify the exercise of the right of eminent domain.
See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am. Eq. Dig. 312 3 Toull. n. 30 p. 23;
Ersk. hist. B. 2) tit. 1, s. 2; Grotius, h. t. See Dominium.
EMISSARY. One who is sent from one power or government into
another nation for the purpose of spreading false rumors and to cause alarm. He
differs from a spy. (q. v.)
EMISSION, med. jur. The act by which any matter whatever is
thrown from the body; thus it is usual to say, emission of urine, emission of
2. In cases of rape, when the fact of penetration is proved, it may be
left to the jury whether emission did or did not take place. Proof of emission
would perhaps be held to be evidence of penetration. Addis. R. 143; 2 So. Car.
Const. R. 351; 2 Chitty, Crim. Law, 810; 1 Beck's Med. Jur. 140 1 Russ. C.
& M. 560; 1 East, P. C. 437.
TO EMIT. To put out; to send forth,
2. The tenth section of the first article of the constitution, contains
various prohibitions, among which is the following: No state shall emit bills
of credit. To emit bills of credit is to issue paper intended to circulate
through the-community for its ordinary purposes, as money, which paper is
redeemable at a future day. 4 Pet. R. 410, 432; Story on Const. §1358.
Vide Bills of credit.
EMMENAGOGUES, med. jur. The name of a class of medicines which
are believed to have the power. of favoring the discharge of the menses. These
are black hellebore, savine, (vide Juneperius Sabina,) madder, mercury,
polygala, senega, and pennyroyal. They are sometimes used for the criminal
purpose of producing abortion. (q. v.) They always endanger the life of the
woman. 1 Beck's Medical Jur. 316; Dungl. Med. Diet. h. t.; Parr's Med. Dict. h.
t.; 3 Paris and Fonbl. Aled. Jur. 88.
EMOLUMENT. The lawful gain or profit which arises from an
EMPALEMENT. A punishment in which a sharp polo was forced up the
fundament. Encyc. Lond. h. t.
TO ENPANEL, practice. To make a list or roll, by the sheriff or
other authorized officer, of the names of jurors who are summoned to appear for
the performance of such service as jurors are required to perform.
EMPEROR, an officer. This word is synonymous with the Latin
imperator; they are both derived from the. verb imperare. Literally, it
signifies he who commands.
2. Under the Roman republic, the title emperor was the generic name
given to the commanders-in-chief in the armies. But even then the application
of the word was restrained to the successful commander, who was declared
emperor by the acclamations of the army, and was afterwards honored with the
title by a decree of the senate. 3. It, is now used to designate some sovereign
prince who bears this title. Ayl. Pand. tit. 23.
EMPHYTEOSIS, civil law. The name of a contract by which the
owner of an uncultivated piece of land granted it to another either in
perpetuity, or for a long time, on condition that he should: improve it, by
building, planting or cultivating it, and should pay for it an annual rent;
with a right to the grantee to alienate it, or transmit it by descent to his
heirs, and under a condition that the grantor should never re-enter as long as
the rent should be paid to him by the grantee or his assigns. Inst. 3, 25, 3.
18 Toull. n. 144.
2. This has a striking resemblance to a ground-tent. (q. v.). See
Nouveau Denisart, mot, Emphyteose; Merl. Reper. mot Emphyteose; Faber, De jure
emphyt. Definit. 36; Code, 4, 66, 1.
EMPIRE. This word signifies, first, authority or command; it is
the power to command or govern those actions of men which would otherwise be
free; secondly, the country under the government of an emperor but sometimes it
is used to designate a country subject to kingly power, as the British empire.
Wolff, Inst. §833.
EMPLOYED. One who is in the service of another. Such a person is
entitled to rights and liable to. perform certain duties.
2. He is entitled to a just compensation for his services; when there
has been a special contract, to what has been agreed upon; when not, to such
just recompense as he deserves.
3. He is bound to perform the services for which he has engaged himself;
and for a violation of his engagement he may be sued, but he is not liable to
corporal correction. An exception to this rule may be mentioned; on the ground
of necessity, a sailor may be punished by reasonable correction, when it is
necessary for the safety of the vessel, and to maintain discipline. 1 Bouv.
Inst. n. 1001: 2 Id. n. 2296.
EMPLOYEE. One who is authorized to act for another; a
EMPLOYMENT. An employment is an office; as, the secretary of the
treasury has a laborious and responsible employment; an agency, as, the
employment of an auctioneer; it signifies also the act by which one is engaged
to do something. 2 Mart. N. S. 672; 2 Harr. Cond. Lo. R. 778.
2. The employment of a printer to publish the laws of the United States,
is not an office. 17 S. & R. 219, 223. See Appointment.
EMPLOYER. One who has engaged or hired the services of another.
He is entitled to rights and bound to perform duties.
2. - 1. His rights are, to be served according to the terms of the
contract. 2. He has a right against third persons for an injury to the person
employed, or for harboring him, so as to deprive the employer of his services.
2 Bouv. Inst. n. 2295.
3. His duties are to pay the workman the compensation agreed upon, or if
there be no special agreement, such just recompense as he deserves. Vide Hire;
EMPTION. The act of buying.
EMPTOR. A buyer; a purchaser.
EN DEMEURE. In default. This term is used in Louisiana. 3 N. S.
574. See Moral in.
ENABLING POWERS. A term used in equity. When the donor of a
power, who is the owner of the estate, confers upon persons not seised of the
fee, the right of creating interests to take effect out of it, which could not
be done by the donee of the power, unless by such authority; this is called an
enabling power. 2 Bouv. Inst. n. 1928.
TO ENACT. To establish by law; to perform or effect; to decree.
The usual formula in making laws is, Be it enacted.
ENCEINTE, med. jur. A French word, which signifies pregnant.
2. When a woman is pregnant, and is convicted of a capital crime, she
cannot lawfully be punished till after her delivery.
3. in the English law, where a widow is suspected to feign herself with
child, in order to produce a supposititious heir to the estate, the presumptive
heir may have a writ de ventre inspiciendo, to examine whether she be with
child or not. Cro. Eliz. 566; 4 Bro. C. C. 90. As to the signs of pregnancy,
see 1 Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 P. Wms. 591; 1
Cox, C. C. 297 and Pregnancy; Privement enceinte.
ENCLOSURE. An artificial fence put around one's estate. Vide
ENCROACHMENT. An unlawful gaining upon the right or possession
of another; as, when a man sets his fence beyond his line; in this case the
proper remedy for the party injured is an action of ejectment, or an action of
ENCUMBRANCE. A burden or charge upon an estate or property, so
that it cannot be disposed of without being subject to it. A mortgage, a lien
for taxes, are examples of encumbrances.
2. These do not affect the possession of the grantee, and may be removed
or extinguished by a definite pecuniary value. See 2 Greenl. R. 22; 5 Greenl.
3. There are encumbrances of another kind which cannot be so removed,
such as easements for example, a highway, or a preexisting right to take water
from, the land. Strictly speaking, however, these are not encumbrances, but
appurtenances to estates in other lands, or in the language of the civil law,
servitudes. (q. v.) 5 Conn. R. 497; 10 Conn. R. 422 15 John. R. 483; and see 8
Pick. R. 349; 2 Wheat. R. 45. See 15 Verm. R. 683; l Metc. 480; 9 Metc. 462; 1
App. R. 313; 4 Ala. 21; 4 Humph. 99; 18 Pick. 403; 1 Ala. 645; 22 Pick. 447; 11
Gill & John. 472.
ENDEAVOR, crim. law. An attempt. (q. v.) Vide Revolt.
ENDORSEMENT. Vide Indorsement.
ENDOWMENT. The bestowing or assuring of a dower to a woman. It
is sometimes used: metaphorically, for the setting a provision for a charitable
institution, as the endowment of a hospital.
ENEMY, international law. By this term is understood the whole
body of a nation at war with another. It also signifies a citizen or subject of
such a nation, as when we say an alien enemy. In a still more extended sense,
the word includes any of the subjects or citizens of a state in amity with the
United States, who, have commenced, or have made preparations for commencing
hostilities against the United States; and also the citizens or subjects of a
state in amity with the United States, who are in the service of a state at war
with them. Salk. 635; Bac. Ab. Treason, G.
2. An enemy cannot, as a general rule, enter into any contract which can
be enforeed in the courts of law; but the rule is not without exceptions; as,
for example, when a state permits expressly its own citizens to trade with the
enemy; and perhaps a contract for necessaries, or for money to enable the
individual to get home, might be enforced. 7 Pet. R . 586.
3. An alien enemy cannot, in general, sue during the war, a citizen of
the United States, either in the courts of, the United States, or those of the
several states. 1 Kent, Com. 68; 15 John. R. 57 S. C. 16 John. R. 438. Vide
Marsh. Ins. c. 2, s. 1; Park. Ins. Index. h. t.; Wesk. Ins. 197; Phil. Ins.
Index. h. t.; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, Index, h.
4. By the term enemy is also understood, a person who is desirous of
doing injury to another. The Latins had two terms to signify these two classes
of persons; the first , or the public enemy, they called hostis, and the
latter, or the private enemy, inimicus.
TO ENFEOFF. To make a gift of any corporeal hereditaments to
another. Vide Feoffment.
TO ENFRANCHISE. To make free to incorporate a man in a society
or body politic. Cunn. L. D. h. t. Vide Disfranchise.
ENGAGEMENT. This word is frequently used in the French law to
signify not only a contract, but the obligations arising from a quasi contract.
The terms obligations (q. v.) and engagements, are said to be synonymous 17
Toull. n. 1; but the Code seems specially to apply the term engagement to those
obligations which the law, imposes on a man without the intervention of any
contract, either on the part of the obligor or the obligee. Art. 1370.
ENGLESHIRE. A law was made by Canutus, for the preservation of
his Danes, that when a man was killed, the hundred or town should be liable to
be amerced, unless it could be proved that the person killed was an Englishman.
This proof was called Engleshire. It consisted, generally, of the testimony of
two males on the part of the father of him that had been killed, and two
females on the part of his mother. Hal. Hist. P . C. 447; 4 Bl. Com. 195;
Spelman, Gloss. See Francigena .
TO ENGROSS, practice, conveyancing. To copy the rude draught of
an instrument in a fair and large hand. See 3 Bouv. Inst. n, 2421, note.
ENGROSSER. One who purchases large quantities of any commodities
in order to have the command of the market, and to sell them again at high
TO ENJOIN. To command; to require; as, private individuals are
not only permitted, but enjoined by law to arrest an offender when present at
the time a felony is committed or dangerous wound given, on pain of fine and
imprisonment if the wrong doer escape through their negligence. 1 Hale, 587; 1
East, P. C. 298, 304; Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. In a
more technical sense, to enjoin, is to command or order a defendant in equity
to do or not to do a particular thing by writ of injunction. Vide
TO ENLARGE. To extend; as, to enlarge a rule to plead, is to
extend the time during which a defendant may plead. To enlarge, means also to
set at liberty; as, the prisoner was enlarged on giving bail.
ENLARGING. Extending or making more comprehensive; as an
enlarging statute, which is one extending the common law.
ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab.
2. When partition is voluntarily made among coparceners in England, the
eldest has the first choice, or primer election, (q. v.) and the part which she
takes is called enitia pars. This right is purely personal, and descends; it is
also said that even her as signee shall enjoy it; but this has also been
doubted. The word enitia is said to be derived from the old French, eisne the
eldest. Bac. Ab. Coparceners, C; Keilw. 1 a, 49 a; 2 And. 21; Cro. Eliz.
ENJOYMENT. The right which a man possesses of receiving all the
product of a thing for his necessity, his use, or his pleasure.
ENLISTMENT. Thc act of making a contract to serve the government
in a subordinate capacity, either in the army or navy. The contract so made, is
also called an enlistment. See, as to the power of infants to enlist, 4 Binn.
487; .5 Binn. 423; Binn. 255; 1 S. & R. 87; 11 S. & R. 93.
ENORMIA. Wrongful acts. See Alia Enormia.
TO ENROLL. To register; to enter on the rolls of chancery, or
other court's; to make a record.
ENROLLMENT, Eng. law. The registering, or entering in the rolls
of chancery, king's bench, common pleas, or exchequer, or by the clerk of the
peace in the records of the quarter sessions, of any lawful act; as a
recognizance, a deed of bargain and sale, and the like. Jacob, L. D.
TO ENTAIL. To create an estate tail. Vide Tail.
ENTIRE. That which is not divided; that which is whole.
2. When a contract is entire, it must in general be fully performed,
before the party can claim the compensation which was to have been paid to him;
for example, when a man hires to serve another for one year, he will not be
entitled to leave him at any time before the end of the year, and claim
compensation for the time, unless it be done by the consent or default of the
party hiring. 6 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick. R. 209; 4
McCord's R. 26, 246; 4 Greenl. R. 454; 2 Penna. R. 454; 15 John. R. 224; 4
Pick. R. 114; 9 Pick. R. 298 19 John. R. 337; 4 McCord, 249; 6 Harr. &
John. 38. See Divisible.
ENTIRETY, or, ENTIERTIE. This word denotes the whole, in
contradistinction to moiety, which denotes the half part. A hushand and wife,
when jointly seized of land, are seized by entierties and not "pur mie" as
joint tenants are. Jacob's Law Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. Johnson,
3 Penna. Law Journ. 350, 357.
ENTREPOT. A warehouse; a magazine where goods are deposited, and
which are again to be removed.
ENTRY. criminal law. The unlawful breaking into a house, in
order to commit a crime. In cases of burglary, the least entry with the whole
or any part of the body, hand, or foot, or with any instrument or weapon,
introduced for the purpose of committing a felony, is sufficient to complete
the offence. 3 Inst. 64.
ENTRY, estates, rights. The taking possession of lands by the
2. A person having a right of possession may assert it by a peaceable
entry, and being in possession may retain it, and plead that it is his soil and
freehold; and this will not break in upon any rule of law respecting the mode
of obtaining the possession of lands.
3 Term Rep. B. R. 295. When another person has taken possession of lands
or tenements, and the owner peaceably makes an entry thereon, and declares that
be thereby takes possession of the same, he shall, by this notorious act of
ownership, which is equal to a feodal investiture, be restored to his original
right. 3 Bl. Com. 174. 3. A right of entry is not assignable at common law. Co.
Litt. 214 a. As to the law on this subject in the United States, vide Buying of
titles; 4 Kent, Com. 439 2 Hill. Ab. c. 33, §42 to 52; also,artic le
ReEntry; Bac. Ab. Descent, G; 8 Vin. Ab. 441.
4. In another sense, entry signifies the going upon another man's lands
or his tenements. An entry in this sense may be justifiably made on another's
land or house, first, when the law confers an authority; and secondly, when the
party has authority in fact.
5. First, 1. An officer may enter the close of one against whose person
or property he is charged with the execution of a writ. In a civil case, the
officer cannot open (even by unlatching) the outer inlet to a house, as a door
or window opening into the street 18 Edw. IV., Easter, 19, pl. 4; Moore, pl.
917, p. 668 Cooke's case, Wm. Jones, 429; although it has been closed for the
purpose of excluding him. Cowp. 1. But in a criminal case, a constable may
break open an outer door to arrest one within suspected of felony. 13 Edw. IV.,
Easter, 4, p. 9. If the outer door or window be open, he may enter through it
to execute a civil writ; Palin. 52; 5 Rep. 91; and, having entered, he may, in
every case, if necessary, break open an inner door. 1 Brownl. 50.
6. - 2. The lord may enter to distrain, and go into the house for that
purpose, the outer door being open. 5 Rep. 91.
7. - 3. The proprietors of goods or chattels may enter the land of
another upon which they are placed, and remove them, provided they are there
without his default; as where his tree has blown down into the adjoining close
by the wind, or his fruit has fallen from a branch which overhung it. 20 Vin.
8. - 4. If one man is bound to repair bridge, he has a right of entry
given him by law for that purpose. Moore, 889.
9. - 5. A creditor has a right to enter the close of his debtor to
demand the duty owing, though it is not to be rendered there. Cro. Eliz.
10. - 6. If trees are excepted out of a demise, the lessor has the right
of entering, to prune or fell them. Cro. Eliz. 17; 11. Rep. 53.
11. - 7. Every traveller has, by law, the privilege of entering a common
inn, at all seasonable times, provided the host has sufficient accommodation,
which, if he has not, it is for him to declare.
12.- 8. Ever man may throw down a public nuisance, and a private one may
be thrown down by the party grieved, and this before an prejudice happens, but
only from the probability that it may happen. 5 Rep, 102 and see 1 Brownl. 212;
12 Mod. 510 Wm. Jones, 221; 1 Str. 683. To this end, the abator has authority
to enter the close in which it stands. See Nuisance.
13. - 9. An entry may be made on the land of another, to exercise or
enjoy therein an incorporeal right or hereditament to which he is entitled.
Hamm. N. P. 172. See general Bouv. Inst. Index, h. t.; 2 Greenl. Ev. §627;
ENTRY, commercial law. The act of setting down the particulars
of a sale, or other transaction, in a merchant's or tradesman's accouut books;
such entries are, in general, prima facie evidence of the sale and delivery,
and of work, done; but unless the entry be the original one, it is not
evidence. Vide Original entry.
ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies
in favor of the reversioner, when the tenant for term of life, tenant for term
of another's life, tenant by the curtesy, or tenant in dower, aliens and dies.
ENTRY OF GOODS, commercial law. An entry of goods at the
custom-house is the submitting to the officers appointed by law, who have the
collection of the customs, goods imported. into the United States, together
with a statement or description of such goods, and the original invoices of the
same. The act of March 2, 1799, s. 36, 1 Story, L. U. S. 606, and the act of
March 1, 1823, 3 Story, L. U. S. 1881, regulate the manner of making entries of
ENTRY, WRIT OF. The name of a writ issued for the purpose of
obtaining possession of land from one who has entered unlawfully, and continues
in possession. This is a mere possessor action, and does not decide the right
2. The writs of entry were commonly brought, where the tenant or
possessor of the land entered lawfully; that is, without fraud or force; 13
Edw. I. c. 25; although sometimes they wer6 founded upon an entry made by
wrong. The forms of these writs are very various, and are adapted to the, title
and estate of the demandant. Booth enumerates and particularly discusses twelve
varieties. Real Actions, pp. 175-200. In general they contain an averment of
the manner in which the defendant entered. At the common law these actions
could be brought only in the degrees, but the Statute of Marlbridge, c. 30;
Rob. Dig. 147, cited as c. 29; gave a writ adapted to cases beyond the degrees,
called a writ of entry in the post. Booth, 172, 173. The denomination of these
writs by degrees, is derived from the circumstance that estates are supposed by
the law to pass by degrees from one person to another, either by descent or
purchase. Similar to this idea, or rather corresponding with it, are the
gradations of consanguinity, indicated by the very common term pedigree. But in
reference to the writs of entry, the degrees recognized were only two, and the
writs were quaintly termed writs in the per, and writs in the per and cui.
Examples of these writs are given in Booth on R. A. pp. 173, 174. The writ in
the, per runs thus: " Command A, that be render unto B, one messuage, &c.,
into which he has not entry except (per) by &c. The writ in the per and cui
contains another gradation in the transmission of the estate, and read thus:
Command A, that he render, &c., one messuage, into which he hath not entry
but (per) by C, (cui) to whom the aforesaid B demised it for a term of years,
now expired," &c. 2 Institute, 153; Co. Litt. b, 239, a. Booth, however,
makes three degrees, by accounting the estate in the per, the second degree.
The difference is not substantial. If the estate had passed further, either by
descent or conveyance, it was said to be out of the degrees, and to such cases
the writ of entry on the. statute of Marlbridge, only, was applicable. 3 Bl.
Com. 181, 182; Report of Com. to Revise Civil Code of Penna. January 15, 1835,
p. 85. Vide Writ of entry.
TO ENURE. To take, or have effect or serve to the use, benefit,
or advantage of a person. The word is often written inure. A release to the
tenant for life, enures to him in reversion; that is, it has the same effect
for him as for the tenant for life. A discharge of the principal enures to the
benefit of the surety.
ENVOY, international law. In diplomatic language, an envoy is a
minister of the second rank, on whom his sovereign or government has conferred
a degree of dignity and respectability, which, without being on a level with an
ambassador, immediately follows, and among ministers, yields the preeminence to
2. Envoys are either ordinary or extraordinary; by custom the latter is
held in greater consideration. Vattel, liv. 4, c. 6, §72.
EPILEPSY, med. jur. A discase of the brain, which occurs in
paroxysms, with uncertain intervals between them.
2. These paroxysms are characterized by the loss of sensation, and
convulsive motions of the muscles. When long continued and violent, this
disease is very apt to end in dementia. (q. v.) It gradually destroys the
memory, and impairs the intellect, and is one of the causes of an unsound mind.
8 Ves. 87. Vide Dig. 50, 16, 123; Id. 21, 1, 4, 5.
EPISCOPACY, eccl. law. A form of government by diocesan bishops;
the office or condition of a bishop.
EPISTLES, civil law. The name given to a species of rescript.
Epistles were the answers given by the prince, when magistrates submitted to
him a question of law. Vicle Rescripts.
EQUALITY. Possessing the same rights, and being liable to the
same duties. See 1 Toull. No. l70, 193, Int.
2. Persons are all equal before the law, whatever adventitious
advantages some may possess over others. All persons are protected by the law,
and obedience to it is required from all.
3. Judges in court, while exercising their functions, are all upon an
equality, it being a rule that inter pares non est potestas; a judge cannot,
therefore, punish another judge of the same court for using any expression in
court, although the words used might have been a contempt in any other person.
Bac. Ab., Of the court of sessions, of justices of the peace.
4. In contracts the law presumes the parties act upon a perfect
equality; when, therefore, one party uses any fraud or deceit to destroy this
equality, the party grieved may avoid the contract. In case of a grant to two
or more persons jointly, without designating what each takes, they are presumed
to take in equal proportion. 4 Day, 395.
5. It is a maxim, that when the equity of the parties is equal, the law
must prevail. 3 Call, R. 259. And that, as between different creditors,
equality is equity. 4 Bouv. Inst. n. 3725; 1 Page, R. 181. See Kames on Eq. 75.
Vide Deceit; Fraud.
EQUINOX. The name given to two periods of the year when the days
and nights are equal; that is, when the space of time between the rising and
setting of the sun is one half of a natural day. Dig. 43, 13, 1, 8. Vide
EQUITABLE. That which is in conformity to the natural law.
Wolff, Inst. §83.
EQUITABLE ESTATE. An equitable estate is a right or interest in
land, which, not having the properties of a legal estate, but being merely a
right of which courts of equity will take notice, requires the aid of such
court to make it available.
2. These estates consist of uses, trusts, and powers. See 2 Bouv. Inst.
n. 1884. Vide Cestui que trust; Cestui que use.
EQUITABLE MORTGAGE, Eng. law. The deposit of title-deeds, by the
owner of an estate, with a person from whom he has borrowed money, with an
accompanying agreement to execute a regular mortgage, or by the mere deposit,
without even any verbal agreement respecting a regular security. 2 Pow. on
Mort. 49 to 61; 1 Mad. Ch. Pr. 537; 4 Madd. R. 249; 1 Bro. C. C. 269; 12 Ves.
197; 3 Younge & J. 150; 1 Rus. R. 141.
2. In Pennsylvania, there is no such thing as an equitable mortgage. 3
P. S. R; 233; 3 Penna. R. 239; 17 S. & R. 70; 1 Penna. R. 447.
EQUITY. In the early history of the law, the sense affixed to
this word was exceedingly vague and uncertain. This was owing, in part, to the
fact, that the chancellors of those days were either statesmen or
ecclesiastics, perhaps not very scrupulous in the exercise of power. It was
then asserted that equity was bounded by no certain limits or rules, and that
it was alone controlled by conscience and natural justice. 3 Bl. Com. 43-3,
2. In a moral sense, that is called equity which is founded, ex oequo et
bono, in natural justice, in honesty, and in right. In an enlarged. legal view,
"equity, in its true and genuine meaning, is the soul and spirit of the law;
positive law is construed, and rational law is made by it. In this, equity is
made synonymous with justice; in that, to the true and sound interpretation of
the rule." 3 Bl. Com. 429. This equity is justly said to be a supplement to the
laws; but it must be directed by science. The Roman law will furnish him with
sure guides, and safe rules. In that code will be found, fully developed, the
first principles and the most important consequences of natural right. "From
the moment when principles of decision came to be acted upon in chancery," says
Mr. Justice Story, "the Roman law furnished abundant materials to erect a
superstructure, at once solid, convenient and lofty, adapted to human wants,
and enriched by the aid of human wisdom, experience and learning." Com. on Eq.
Jur. §23 Digest, 54.
3. But equity has a more restrained and qualified meaning. The remedies
for the redress of wrongs, and for the enforcement of rights, are distinguished
into two classes, first, those which are administered in courts of common law;
and, secondly, those which are administered in courts of equity. Rights which
are recognized and protected, and wrongs which are redressed by the former
courts, are called legal rights and legal injuries. Rights which are recognized
and protected, and wrongs which are redressed by the latter courts only, are
called equitable rights and equitable injuries The former are said to be rights
and wrongs at common law, and the remedies, therefore, are remedies at common
law; the latter are said to be rights and wrongs in equity, and the remedies,
therefore, are remedies in equity. Equity jurisprudence may, therefore,
properly be said to be that portion of remedial justice which is exclusively
administered by a court of equity, as contradistinguished from that remedial
justice, which is exclusively administered by a court of law. Story, Eq.
§25. Vide Chancery, and the authiorities there cited; and 3 Chit. Bl. Com.
425 n. 1. Dane's Ab . h. t.; Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes.
Lect. 114 Bouv. Inst. Index, h. t.
EQUITY, COURT OF. A court of equity is one which administers
justice, where there are no legal rights, or legal rights, but courts of law do
not afford a complete, remedy, and where the complainant has also an equitable
right. Vide Chancery.
EQUITY OF REDEMPTION. A right which the mortgagee of an estate
has of redeeming it, after it has been forfeited at law by the non-payment at,
the time appointed of the money secured by the mortgage to be paid, by paying
the amount of the debt, interest and costs.
2. An equity of redemption is a mere creature of a court of equity,
founded on this principle, that as a mortgage is a pledge for securing the
repayraent of a sum of money to the mortgagee, it is but natural justice to
consider the ownership of the land as still vested in the mortgagor, subject
only to the legal title of the mortgagee, so far as such legal title is
necessary to his security.
3. In Pennsylvania, however, redemption is a legal right. 11 Serg. &
4. The phrase equity of redemption is indiscriminately, though perhaps
not correctly applied, to the right of the mortgagor to regain his estate, both
before and after breach of condition, In North Carolina by statute the former
is called a legal right of redemption; and the latter the equity of redemption,
thereby keeping a just distinction between these estates. 1 N. C. Rev. St. 266;
4 McCord, 340.
5. Once a mortgage always a mortgage, is a universal rule in equity. The
right of redemption is said to be as inseparable from a mortgage, as that of
replevying from a distress, and every attempt to limit this right must fail. 2
Chan. Cas. 22; 1 Vern. 33, 190; 2 John. Ch. R. 30; 7 John. Ch. R. 40; 7 Cranch,
R. 218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2 Sumner, R. 487.
6. The right of redemption exists, not only in the mortgagor himself,
but in his heirs, and personal representatives, and assignee, and in every
other person who has an interest in, or a legal or equitable lien upon the
lands; and therefore a tenant in dower, a jointress, a tenant by the curtesy, a
remainder-man and a reversioner, a judgment creditor, and every other
incumbrancer, unless he be an incumbrancer pendente lite, may redeem. 4 Kent,
Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611; 9 Mass. R. 422; 2 Litt. R. 334;
1 Pick. R. 485; 14 Wend. R. 233; 5 John. Ch. R. .482; 6 N. H. Rep. 25; 7 Vin.
Ab. 52. Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, Com. 148; Pow. on
Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab. 458; 2 Supp. to Ves. Jr.
368; 2 Jac. & Walk. 194, n.; 1 Hill. Ab. c. 31; and article Stellionate.
EQUIVALENT. Of the same value. Sometimes a condition must be
literally accomplished in forma specifica; but some may be fulfilled by an
equivalent, per oequi polens, when such appears to be the intention of the
parties; as, I promise to pay you one hundred dollars, and then die, my
executor may fulfil my engagement; for it is equivalent to you whether the
money be paid to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.
EQUIVOCAL. What has a double sense.
2. In the construction of contracts, it is a general rule that when an
expression may be taken in two senses, that shall be preferred which gives it
effect. Vide Ambiguity; Construction; Interpretation; and Dig. 22, 1, 4; Id 45,
1, 80; Id. 50, 17, 67.
EQUULEUS. The name of a kind of rack for extorting confessions.
ERASURE, contracts, evidence. The obliteration of a writing; it
will render it void or not under the same circumstances as an interlineation.
(q. v.) Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4 Cruise, Dig. 368; 13 Vin. Ab.
41; Fitzg. 207; 5 Bing. R. 183; 3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R.
531; 5 M. R. 190; 2 L. R. 291 3 L. R. 56; 4 L. R. 270.
2. Erasures and interlineations are presumed to have been made after the
execution of a deed, unless the contrary be proved. 1 Dall. 67; 1 Pet. 169; 4
Bin. 1; 10 Serg. & R. 64, 170, 419; 16 Serg. & R. 44.
EREGIMUS. We have erected. In England, whenever the. right of
creating or granting a new office is vested in the king, he must use proper
words for the purpose, as eregimus, constituimus, and the like. Bac. Ab.
Offices, &c., E.
EROTIC MANIA, med. jur. A name given to a morbid activity of the
sexual propensity. It is a disease or morbid affection of the mind, which fills
it with a crowd of voluptuous images, and hurries its victim to acts of the
grossest licentiousness, in the absence of any lesion of the intellectual
powers. Vide Mania.
ERROR. A mistake in judgment or deviation from the truth, in
matters of fact and from the law in matters of judgment.
2. - 1 Error of fact. The law has wisely provide that a person shall be
excused, if, intending to do a lawful act, and pursuing lawful means to
accomplish his object, he commit an act which would be criminal or unlawful, if
it were done with a criminal design or in an unlawful manner; for example,
thieves break into my house, in the night time, to commit a burglary; I rise
out of my bed, and seeing a person with a drawn sword running towards my wife,
I take him for one of the burglars, and shoot him down, and afterwards find he
was one of my friends, whom, owing to the dimness of the light, I could not
recognize, who had lodged with me, rose on the first alarm, and was in fact
running towards my wife, to rescue her from the hands of an assassin; still I
am innocent, because I committed an error as to a fact, which I could not know,
and had, no time to inquire about.
3. Again, a contract made under a clear error is not binding; as, if the
seller and purchaser of a house situated in Now York, happen to be in
Philadelphia, and, at the time of the sale, it was unknown to both parties that
the house was burned down, there will be no valid contract; or if I sell you my
horse Napoleon, which we both suppose to be in my stable, and at the time of
the contract he is dead, the sale is void. 7 How. Miss. R. 371 3 Shepl. 45; 20
Wend. 174; 9 Shepl. 363 2 Brown, 27; 5 Conn. 71; 6 Mass. 84; 12 Mass. 36. See
4. Courts of equity will in general correct and rectify all errors in
fact committed in making deeds and contracts founded on good considerations.
5. - 2. Error in law. As the law is, or which is the same thing, is
presumed to be certain and definite, every man is bound to understand it, and
an error of law will not, in general, excuse a man, for its violation.
6. A contract made under an error in law, is in general binding, for
were it not so, error would be urged in almost every case. 2 East, 469; see 6
John. Ch. R. 166 8 Cowen, 195; 2 Jac. & Walk. 249; 1 Story, Eq. Jur. 156; 1
Younge & Coll. 232; 6 B. & C. 671 Bowy. Com. 135; 3 Sav. Dr. Rom. App.
viii. But a foreign law will for this purpose be considered as a fact. 3 Shepl.
45; 9 Pick. 112; 2 Ev. Pothier, 369, &c. See, also, Ignorance; Marriage;
7. By error, is also understood a mistake made in the trial of a cause,
to correct which a writ of error may be sued out of a superior court.
ERROR, WRIT OF. A writ of error is one issued fro a superior to
an inferior court, for the purpose of bringing up the record and correcting an
alleged error committed in the trial in the court below. But it cannot deliver
the body from prison. Bro. Abr. Acc. pl. 45. The judges to whom the writ is
directed have no power to return the record nisi judicium inde redditum sit.
Nor can it be brought except on the final judgment. See Metcalf's Case, 11 Co.
Rep. 38, which is eminently instructive on this subject. Vide Writ of
ESCAPE. An escape is tho deliverance of a person who is lawfully
imprisoned, out of prison, before such a person is entitled to such deliverance
by law. 5 Mass. 310.
2. It will be proper to consider, first, what is a lawful imprisonment;
and, secondly, the different kinds of escapes.
3. When a man is imprisoned in a proper place under the process of a
court having jurisdiction in the case, he is lawfully imprisoned,
notwithstanding the proceedings may be irregular; but if the court has not
jurisdiction the imprisonment is unlawful, whether the process be regular or
otherwise. Bac. Ab. Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1
Cowen, 309 8 Cowen, 192; 1 Root, R. 288.
4. Escapes are divided into voluntary and negligent; actual or
constructive; civil and criminal and escapes on mesne process and
5. - 1. A voluntary escape is the giving to a prisoner, voluntarily, any
liberty not authorized by law. 5 Mass . 310; 2 Chipm. 11. Letting a prisoner
confined under final process, out of prison for any, even the shortest time, is
an escape, although he afterwards return; 2 Bl. Rep. 1048; 1 Roll. Ab. 806; and
this may be, (as in the case of imprisonment under a ca. sa.) although an
officer may accompany him. 3 Co. 44 a Plowd. 37; Hob. 202; 1 Bos. & Pull.
24 2 Bl. Rep. 1048.
6. The effect of a voluntary escape in a civil case, when the prisoner
is confined under final process, is to discharge the debtor, so that he cannot
be retaken by the sheriff; but he may be again arrested if he was confined only
on mesne process. 2 T. R. 172; 2 Barn. & A. 56. And the plaintiff may
retake the prisoner in either case. In a criminal case, on the contrary, the
officer not only has a right to recapture his prisoner, but it is his duty to
do so. 6 Hill, 344; Bac. Ab. Escape in civil cases, C.
7. - 2. A negligent escape takes place when the prisoner goes at large,
unlawfully, either because the building or prison in which he is confined is
too weak to hold him, or because the keeper by carelessness lets him go out of
8. The consequences of a negligent escape are not so favorable to the
prisoner confined under final process, as they are when the escape is
voluntary, because in this case, the prisoner is to blame. He may therefore be
9. - 3. The escape is actual, when the prisoner in fact gets out of
prison and unlawfully regains his liberty.
10. - 4. A constructive escape takes place when the prisoner obtains
more liberty than the law allows, although he still remains in confinement The
following cases are examples of such escapes: When a man marries his prisoner.
Plowd. 17; Bac. Ab. Escape, B 3. If an underkeeper be taken in execution, and
delivered at the prison, and neither the sheriff nor any authorized person be
there to receive him. 5 Mass. 310. And when the keeper of a prison made one of
the prisoners confined for a debt a turnkey, and trusted him with the keys, it
was held that this was a constructive escape. 2 Mason, 486.
11. Escapes in civil cases are, when the prisoner is charged in
execution or on mesne process for a debt or duty, and not for a criminal
offence, and he unlawfully gains his liberty. In this case, we have seen, the
prisoner may be retaken, if the escape have not been voluntary; and that he may
be retaken by the plaintiff when the escape has taken place without his fault,
whether the defendant be confined in execution or not; and that the sheriff may
retake the prisoner, who has been liberated by him, when he was not confined on
12. Escapes in criminal cases take place when a person lawfully in
prison, charged with a crime or under sentence, regains his liberty unlawfully.
The prisoner being to blame for not submitting to the law, and in effecting his
escape, may be retaken whether the escape was voluntary or not. And he may be
indicted, fined and imprisoned for so escaping. See Prison.
13. Escape on mesne process is where the prisoner is not confined on
final process, but on some other process issued in the course of the
proceedings, and unlawfully obtains his liberty, such escape does not make the
officer liable, provided that on the return day of the writ, the prisoner is
14. Escape on final process is when the prisoner obtains his liberty
unlawfully while lawfully confined, and under an execution or other final
decree. The officer is then, in general, liable to the plaintiff for the amount
of the debt.
ESCAPE, WARRANT. A warrant issued in England against a person
who being charged in custody in the king's bench or Fleet prison, in execution
or mesne process, escapes and goes at large. Jacob's L. D. h. t.
ESCHEAT, title to lands. According to the English law, escheat
denotes an obstruction of the course of descent, and a consequent determination
of the tenure, by some unforeseen contingency; in which case the land naturally
results back, by a kind of reversion, to the original grantor, or lord of the
fee.. 2 Bl. Com. 244.
2. All escheats, under the English law, are declared to be strictly
feudal, and to import the extinction of tenure. Wright on Ten. 115 to 117; 1
Wm. Bl. R. 123.
3. But as the feudal tenures do not exist in this country, there are no
private persons who succeed to the inheritance by escheat. The state steps in,
in the place of the feudal lord, by virtue of its sovereignty, as the original
and ultimate proprietor of all the lands within its jurisdiction. 4 Kent, Com.
420. It seems to be the universal rule of civilized society, that when
the-deceased owner has left no heirs, it should vest in the public, and be at
the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. liv. 1, t.
6, s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. 156;
2 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24; Jones
on Land Office Titles in Penna. 5, 6, 93. For the rules of the Roman Civil Law,
see Code Justinian, book 10.
ESCHEATOR. The name of an officer whose duties are generally to
ascertain what escheats have taken place, and to prosecute the claim of the
commonwealth for the purpose of recovering the escheated property. Vide 10 Vin.
ESCROW, conveyancing, contracts. A conditional delivery of a
deed to a stranger, and not to the grantee himself, until certain conditions
shall be performed, and then it is to be delivered to the grantee. Until the
condition be performed and the deed delivered over, the estate does not pass,
but remains in the grantor. 2 Johns. R. 248; Perk. 137, 138.
2. Generally, an escrow takes effect from the second delivery, and is to
be considered as the deed of the party from that time; but this general rule
does not apply when justice requires a resort to fiction. The relation back to
the first delivery, so as to give the deed effect from that time, is allowed in
cases of necessity, to avoid injury to the operation of the deed, from events
happening between the first and second delivery. For example, when a feme sole
makes a deed and delivers it as an escrow, and then marries before the second
delivery, the relation back to the time when she was sole, is necessary to
render the deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 Kent, Com.
446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig. Fait, A 3; 13 Vin. Ab.
29; 5 Mass. R. 60; 2 Root, R. 81; 5 Conn. R. 113; 1 Conn. R. 375; 6 Paige's R.
314; 2 Mass. R. 452; 10 Wend. R. 310; 4 Green]. R. 20; 2 N. H. Rep. 71; 2
Watts', R. 359; 13 John. R. 285; 4 Day's R. 66; 9 Mass. R. 310 1 John. Cas. 81;
6 Wend. R. 666; 2 Wash. R. 58; 8 Mass. R. 238; 4 Watts, R. 180; 9 Mass. Rep.
310; 2 Johns. Rep. 258-9; 13 Johns. Rep. 285; Cox, Dig. tit, Escrow; Prest.
Shep. Touch. 56, 57, 58; Shep. Prec. 54, 56; 1 Prest. Abst. 275; 3 Prest. Ab.
65; 3 Rep. 35; 5 Rep. 84.
ESCUAGE, old Eng. law. Service of the shield. Tenants who hold
their land by escuage, hold by knight's service. 1 Tho. Co. Litt. 272; Littl.
s. 95, 86 b.
ESNECY. Eldership. In the English law, this word signifies the
right which the eldest coparcener of lands has to choose one of the parts of
the estate after it has been divided.
ESPLEES. The products which the land or ground yields; as the
hay of the meadows, the herbage of the pasture, corn or other produce of the
arable, rents and services. Termes de la Ley; see 11 Serg. & R. 2-5; Dane's
Ab. Index, h. t.
ESPOUSALS, contracts. A mutual promise between a man and a woman
to marry each other, at some other time: it differs from a marriage, because
then the contract is completed. Wood's Inst. 57; vide Dig. 23, 1, 1; Code, 5,
1, 4; Novel, 115, c. 3, s. 11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. 1,
t. 6, c. 1, §1.
ESQUIRE. A title applied by courtesy to officers of almost every
description, to members of the bar, and others. No one is entitled to it by
law, and, therefore, it confers, no distinction in law.
2. In England, it is a title next above that of a gentleman, and below a
knight. Camden reckons up four kinds of esquires, particularly regarded by the
heralds: 1. The eldest sons of knights and their eldest sons, in perpetual
succession. 2. The eldest sons of the younger sons of peers, and their eldest
sons in like perpetual succession. 3. Esquires created by the king's letters
patent, or other investiture, and their eldest sons. 4. Esquires by virtue of
their office, as justices of the peace, and others who bear any office of trust
under the crown.
ESSOIN, practice. An excuse which a party bound to be in court
on a particular day, offers for not being there. 1 Sell. Pr. 4; Lee's Dict. h.
2. Essoin day is the day on which the writ is returnable. It is
considered for many purposes as the first day of the term. 1 T. R. 183. See 2
T. R. 16 n.; 4 Moore's R. 425. Vide Exoine.
ESTABLISH. This word occurs frequently in the Constitution of
the United $tates, and it is there used in different meanings. 1. To settle
firmly, to fix unalterably; as, to establish justice, which is the avowed
object of the constitution. 2. To make or form as, to establish an uniform rule
of naturalization, and uniform laws on the subject of bankruptcies, which
evidently does not mean that these laws shall be unalterably established as
justice. 3. To found, to create, to regulate; as, congress shall have power to
establish post roads and post offices. 4. To found, recognize, confirm or
admit; as, congress shall make no law respecting an establishment of religion.
5. To create, to ratify, or confirm; as, we, the people, &c., do ordain and
establish this constitution, 1 Story, Const. §454.
ESTADAL, Spanish law. In Spanish America, this was a measure of
land of sixteen square varas or yards. 2 White's Coll. 139.
ESTATE. This word his several meanings: 1. In its most extensive
sense, it is applied to signify every thing of which riches or, fortune may
consist and includes personal and real property; hence we say personal estate,
real estate. 8 Ves. 504. 2. In its more limited sense, the word estate is
applied to lands, It is so applied in two senses. The first describes or points
out the land itself, without ascertaining the extent or nature of the interest
therein; as "my estate at A." The second, which is the proper and technical
meaning of estate, is the degree, quantity, nature and extent of interest which
one has in real property; as, an estate in fee, whether the same be a fee
simple or fee tail; or an estate for life or for years, &c. Lord Coke says:
Estate signifies such inheritance, freehold, term of years, tenancy by statute
merchant, staple, eligit, or the like, as any man hath in lands or tenements,
&c. Co. Lit. §650, 345 a. See Jones on Land Office Titles in Penna.
2. In Latin, it is called status, because it signifies the condition or
circumstances in which the owner stands with regard to his property..
3. Estates in land may be considered in a fourfold view with regard, 1.
To the quantity of interest which the tenant has in the tenement. 2. To the
time during which that quantity of interest is to be enjoyed. 3. To the number
and connexion of the tenants. 4. To what conditions may be annexed to the
4. - 1. The quantity of interest which the tenant has in his tenement is
measured by its duration and extent. An estate, considered in this point of
view, is said to be an estate of freehold, and an estate less than freehold.
5.- §1. Freehold estates are of inheritance and not of
inheritance. An estate in fee, (q. v.) which is the estate most common in this
country, is a freehold estate of inheritance. Estates of freehold not of
inheritance, are the following:
6. - 1st. Estates for life. An estate for life is a freehold interest in
lands, the duration of which is confined to the life or lives of some
particular person or persons, or to the happening or not happening of some
7. Estates for life are divided into conventional or legal estates. The
first created by the act of the parties, and the second by operation of
8. - 1. Life estates may be created by express words; as, if A conveys
land to B, for the term of his natural life; or they may arise by construction
of law, as, if A conveys land to B, without specifying the term or duration,
and without words of limitation. In the last case, B cannot have an estate in
fee, according to. the English law, and according to the law of those parts of
the United States which have adopted and not altered the common law in this
particular, but he will take the largest estate which can possibly arise from
the grant, and that is an estate for life. Co. Litt. 42, a. So a conveyance "
to I M, and his generation, to endure as long as the waters of the Delaware
should run," passes no more than a life estate. 3 Wash. C. C. Rep. 498. The
life estate may be either for a man's own life, or for the life of another
person, and in this last case it is termed an estate per autre vie. There are
some estates for life, which may depend upon future contingencies, before the
death of the person to whom they are granted; for example, an estate given to a
woman dum sola fuerit, or durante viduitate, or to a man and woman during
coverture, or as long as the grantee shall dwell in a particular house, is
determinable upon the happening of the event. In the same manner, a house
usually worth one hundred dollars a year, may be granted to a person still he
shall have received one thousand dollars; this will be an estate for life, for
as the profits are uncertain, and may rise or fall, no precise time can be
fixed for the determination of the estate. On the contrary, where the time is
fixed, although it may extend far beyond any life, as a terw for five hundred
years, this does not create a life estate.
9. - 2. The estates for life created by operation of law, are, 1st.
Estates tail after possibility of issue extinct. 2d. Estates by the curtesy.
3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit. 3; 4 Kent, Com. 23; 1 Brown's
Civ. Law, 191; 2 Bl. Com. 103. The estate for life is somewhat similar to the
usufruct (q. v.) of the civil law.
10. The incidents to an estate for life, are principally the following:
1. Every tenant for life, unless restrained by covenant or agreement, may of
common right take upon the land demised to him reasonable estovers or bote's.
Co. Litt. 41.
11. - 2. The tenant for life, or his representatives, shall not be
pre-judiced by any sudden determination of his estate, because such
determination is contingent or uncertain. Co. Litt. 55.
12. - 3. Under tenants or lessees of an estate for life, have the same,
and even greater indulgences than the lessors, the original tenants for life;
for when the tenant for life shall not have the emblements, because the estate
determines by his own act, the exception shall not reach his lessee, who is a
third person. l Roll. Ab. 727 2 Bl. Com. 122.
13. - 2d. Estates by the curtesy. An estate by the curtesy is an estate
for life, created by act of law, which is defined as follows: When a man
marries a woman, seised at any time during the coverture of an estate of
inheritance, in severalty, in coparcenary, or in common, and has issue by her
born alive, and which migbt by possibility inherit the same estate as heir to
the wife, and the wife dies in the lifetime of the hushand, he holds the lands
during, his life by the curtesy of England, and it is immaterial whether the
issue be living at the time of the seisin, or at the death of the wife, or
whether it was born before or after the seisin. Litt. s. 35; Co. Litt. 29, b; 8
Co. 34. By Act of Asserably of Pennsylvania, the birth of issue is not
necessary, in all cases where the issue, if any, would have inherited.
14. There are four requisites indispensably necessary to the existence
of this estate: 1. Marriage. 2. Seisin of the wife, which must have been seisin
in deed, and not merely seisin in law; it seems, however, that the rigid rules
of the common law, have been relayed, in this respect, as to what is sometimes
called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death of the wife.
15. - 1. The marriage must be a lawful marriage; for a void marriage
does not entitle the hushand to the curtesy; as if a married man were to marry
a second wife, the first being alive, he would not be entitled to the curtesy
in such second wife's estate. But if the marriage had been merely voidable, he
would be entitled, because no marriage, merely voidable, can be annulled after
the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.
16. - 2. The seisin of the wife must, according to the English law, be a
seisin in deed; but this strict rule has been somewhat qualified by
circumstances in this country. Where the wife is owner of wild uncultivated
land, not held adversely, she is considered as seised in fact, and the hushand
is entitled to his curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 Munf. 162 1
Stow. 590. When the wife's state is in reversion or remainder, the hushand is
not, in general, entitled to the curtesy, unless the particular estate is
elided during coverture. Perk. s. 457, 464; Co. Litt. 20, a; 3 Dev. R. 270; 1
Sumn. 263; but see 3 Atk. 469; 7 Viner, Ab. 149, pl. 11. The wife's seisin must
have been such as to enable her to inherit. 5 Cowen, 74.
17. - 3. The issue of the marriage, to entitle the hushand to the
curtesy, must possess the following qualifications: 1. Be born alive. 2. In the
lifetime of the mother. 3. Be capable of inheriting the estate.
18. - 1st. The issue must be born alive. As to what will be considered
life, see Birth; Death; Life.
19. - 2d. The issue must be born in the lifetime of the mother; and if
the child be born after the death of the mother, by the performance of the
Caesarian operation, the hushand will not be entitled to the curtesy; as there
was no issue born at the instant of the wife's death, the estate vests
immediately on the wife's death to the child, in ventre sa mere, and the estate
being once vested, it cannot be taken from him. Co. Litt. 29, b.; 8 Co. Rep.,
35, a. It is immaterial whether the issue be born before or after the seisin of
the wife. 8 Co. Rep. 35, b.
20. - 3d. The issue must be capable of inheriting the estate; When, for
example, lands are given to a woman and the heirs male of her body, and she has
a daughter, this issue will not enable lier hushand to take his curtesy. Co.
Litt. 29, a.
21. - 4th. The death of the wife is requisite to make the estate by the
22. This estate is generally prevalent in the United States; in some of
them it has received a modification. In Pennsylvania the right of the hushand
takes place although there be no issue of the marriage, in all cases where the
issue, if any, would have inherited. In Vermont, the title by curtesy has been
laid under the equitable restriction of existing only in the event that the
children of the wife entitled to inherit, died within age and without children
in South Carolina, tenancy by the curtesy, eo nomine, has ceased by the
provisions of an act passed in 1791, relative to the distribution of intestates
estates, which gives to the hushand surviving his wife, the same share of her
real estate, as she would have taken out of his, if left a widow, and that is
one moiety, or one-third of it in fee, according to circumstances. In Georgia,
tenancy by the curtesy does not exist, because, since 1785, all marriages vest
the real, equally with the personal estate, in the hushand. 4 Kent, Com. 29. In
Louisiana, where the common Iaw has not been adopted in this respect, this
estate is unknown.
23. This estate is not peculiar to the English law, as Littleton
erroneously supposes; Litt. s. 35; for it is. to be found, with some
modifications, in the ancient laws of Scotland, Ireland, Normandy and Germany.
In France there were several customs, which gave a somewhat similar estate to
the surviving hushand, out of the wife's inheritances. Merlin, Repert. mots
Linotte, et Quarte de Conjoint pauvre.
24. - 3d. Estate in dower. Dower is an estate for life which the law
gives the widow in the third part of the lands and tenements, or hereditaments
of which the hushand was solely seised, at any time during the coverture, of an
estate in fee or in tail, in possession, and to which estate in the lands and
tenements the issue, if any of such widow, might, by possibility, have
inherited. In Pennsylvania, the sole seisin of the. hushand is not necessary.
Watk. Prin. Con. 38; Lit. §36; Act of Penna. March 31, 1812.
25. To create a title to the dower, three things are indispensably
requisite: 1. Marriage. This must be a marriage not absolutely void, and
existing at the death of the hushand; a wife de facto, whose marriage is
voidable by decree, as well as a wife de jure, is entitled to it; and the wife
shall be endowed, though the marriage be within the age of consent, and the
hushand dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud. 22;
Cruise, Dig. t. 6, c. 2, s, 2, et seq.
26. - 2. Seisin. The hushand must have been seised, some time during the
coverture, of the estate of which the wife is dowable. Co. Litt. 31, a. An
actual seisin is not indispensable, a seisin in law is sufficient. As to the
effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. Litt.
27. - 3. Death of the hushand. This must be a natural death; though
there are authorities which declare that a civil death shall have the same
effect. Cruise, Dig. tit. 6, ch. 2, §22. Vide, generally, 8 Vin. Ab. 210;
Bac. Ab. Dower; Com. Dig. Dower; Id. App. tit. Dower; 1 Supp. to. Ves. jr. 173,
189; 2 Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 291; 2 Ves.
jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr. 200; 4 Kent, Com. 35;
Amer. Dig. h. t.; Pothier, Traite du Douaire; 1 Swift's Dig. 85; Perk. 300, et
28. - 4th. Estate tail after possibility of issue extinct. By this
awkward, but perhaps necessary periphrasis, justified by Sir William
Blackstone, 2 Com. 124, is meant the estate which is thus described by
Littleton, §32 when tenements are given to a man and his wife in special
tail, if one of them die without issue, the survivor is tenant in tail after
possibility of issue extinct."
29. This estate though, strictly speaking, not more than an estate for
life, partakes in some circumstances of the nature of an estate tail. For a
tenant in tail after possibility of issue extinct, has eight qualities or
privileges in common with a tenant in tail. 1. He is dispunishable for waste.
2. He is not compellable to attorn. 3. He shall not have aid of the person in
reversion. 4. Upon his alienation no writ of entry in consimili casu lies. 5.
After his death, no writ of intrusion lies. 6. He may join the mise in a writ
of right in a special manner. 7. In a praecipe brought by him he shall not name
himself tenant for life. 8. In a praecipe brought against him, he shall not be
named barely tenant for life.
30. There are, however, four qualities annexed to this estate, which
prove it to be, in fact, only an estate for life. 1. If this tenant makes a
feoffment in fee, it is a forfeiture. 2. If an estate tail or in fee descends
upon him, the estate tail after possibility of issue extinct is merged. 3. If
he is impleaded and makes default, the person in reversion shall be received,
as upon default of any other tenant for life. 4. An exchange between this
tenant and a bare tenant for life, is good; for, with respect to duration,
their. estates are equal. Cruise, Dig. tit. 4; Tho. Co. Litt. B. 2, c. 17; Co.
Lit. 28, a.
31. Nothing but absolute impossibility of having issue, can give rise to
this estate. Thus if a person gives lands to a man and his, wife, and to the
heirs of their two bodies, and they live to a hundred years, without having
issue, yet they are tenants in tail; for the law' sees no impossibility of
their having issue, until the death of one of them. Co. Litt. 28, a. See Tenant
in tail after possibility of issue extinct.
32. - §2. An estate less than freehold is an estate which is not in
fee, nor for life; for although a man has a lease for a thousand years, which
is much longer than any life, yet it is not a freehold, but a mere estate for
years, which is a chattel interest. Estates less than freehold are estates for
years, estates at will, and estates at sufferance.
33. - 1. An estate for years, is one which is created by a leas; for
years, which is a contract for the posspssion and profits of land for a
determinate period, with the recompense of rent; and it is deemed an estate for
years, though the number of years should exceed the ordinary limits of human
life; and it is deemed an estate for years though it be limited to less than a
single year. It is denominated a term, because its duration is absolutely
34. An estate for life is bigher than an estate for years, though the
latter should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1
Brown's Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R. 126;
8 Serg. & Rawle, 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325.
35. - 3. An estate at will is not bounded by any definite limits with
respect to time; but as it originated in mutual agreement, so it depends upon
the concurrence of both parties. As it depends upon the will of both, the
dissent of either may determine it. Such an estate or interest cannot,
consequently, be the subject of conveyance to a stranger, or of transmission to
representatives. Watk. Prin. Con. 1; Litt. §68.
36. Estates at will have become infrequent under the operation of
judicial decisions. Where no certain term is agreed on, they are now construed
to be tenancies from year to year, and each party is bound to give reasonable
notice of an intention to terminate the estate. When the tenant holds over by
consent given, either expressly or by implication, after the determination of a
lease for years, it is held evidence of a new contract, without any definite
period, and is construed. to. be a tenancy from year to year. 4 Kent, Com. 210;
Cruise, Dig. tit. 9, c . 1.
37.-3. An estate at sufferance. The session of land by lawful title, but
holds over by wrong after the determination of his interest. Co. Litt. 57, b.
He has a bare naked possession, but no estate which he can transfer or
transmit, or which is capable of enlargement by. release, for he stands in no
privity to his landlord.
38. There is a material distinction between the case of a person coming
to an estate by act of the party, and afterwards holding over, and by act of
the law and then holding over. In the first case, he is regarded as a tenant at
sufferauce; and in the other, as an intruder, abator, and trespasser. Co. Litt.
57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. &
Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.
39. - II. As to the time of their enjoyment, estates are considered
either in possession, (q. v.) or expectancy. (q. v.) The latter are either
remainders, (q. v.) which are created, by the act of the parties, and these are
vested or contingent, or reversions, (q, v.) created by act of law.
40. - III. An estate way be holden in a variety of ways the most common
of which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In
coparcenary. These will be separately considered.
41. - 1. dn estate in severally, is where only one tenant holds the
estate in his own right, without any other person being joined or connected
with him, in point-of interest, during the continuance of his estate.
42. - 2. dn estate in joint tenancy, is where lands or tenements are
granted to two or more persons, to hold in fee simple, fee tail, for life, for
years, or at will. 2 Bl. Com. 179. Joint tenants always take by purchase, and
necessarily have equal shares; while tenants in common, also coparceners,
claiming under ancestors in different degrees, may have unequal shares and the
proper and best mode of creating an estate in joint tenancy, is to limit to A B
and C D, and their assigns, if it be an estate for life; or to A B and C D, and
their heirs, if in) fee. Watk. Prin. Con. 86.
43. The creation of the estate depends upon the expression in the deed
or devise, by which the tenants hold, for it must be created by the acts of the
parties, and does not result from the operation of law. Thus, an estate given
to a number of persons, without any restriction or explanation, will be
construed a joint tenancy; for every part of the grant can take effect only, by
considering the estate equal in all, and the union of their names gives them a
name in every respect.
44. The properties of this estate arise from its unities; these are, 1.
Unity of title; the estate must have been created and derived from one and the
same conveyance. 2. There must be a unity of time; the estate must be created
and vested at the same period. 3. There must be a unity of interest; the estate
must be for the same duration, and for the same quantity of interest. 4. There
must be a unity of possession; all the tenants must possess and enjoy at the
same time, for each must have an entire possession of every parcel, as of the
whole. One has not possession of one-half, and another of the other half, but
each has an undivided moiety of the whole, and not the whole of an undivided
45. The distinguishing incident of this estate, is the right of
survivorship, or jus accrescendi; at common law, the entire tenancy or estate,
upon the death of any of the joint tenants, went to the survivors, and so on to
the last survivor, who took an estate of inheritance. The right of
survivorship, except, perhaps, in estates held in trust, is abolished in
Pennsylvania, New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, North
and-South Carolina, Georgia, and Alabama. Griffith's Register, h. t. In
Connecticut it never was recognized. 1 Root, Rep. 48; 1 Swift's Digest, 102.
Joint tenancy may be destroyed by destroying any of its constituent unities,
except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 Swift's
Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4;
1 Vern. 353,; Com. Dig. Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com.
181; 1 Litt. see. 304 2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep .
18; Joint tenant; Survivor; Entirety.
46. - 3. An estate in common, is one which is held by two or more
persons by unity of possession.
47. They may acquire their estate by purchase, and hold by several and
distinct titles, or by title derived at the same time, by the same deed or
will; or by descent. In this respect the American law differs from the English
48. This tenancy, according to the common law, is created by deed or
will, or by change of title from joint tenancy or coparcenary; or it arises, in
many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com.
192; 2 Prest. on Abstr. 75.
49. In this country it maybe created by descent, as well as by deed or
will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com. Dig. Estates by Grant, K
50. Estates in common can be dissolved in two ways only; first, by
uniting all the titles and interests in one tenant secondly, by making
51. - 4. An estate in coparcenary, is an estate of inheritance in lands
which descend from the ancestor to two or more persons who are called
coparceners or parceners.
52. This is usually applied, in England, to cases where lands descend to
females, when there are no male heirs.
53. As in the several states, estates generally descend to all the
children equally, there is no substantial difference between coparceners and
tenants in common. The title inherited by more persons than one, is, in some of
the states, expressly declared to be a tenancy in common, as in New York and
New Jersey, and where it is not so declared the effect is the same; the
technical distinction between coparcenary and estates in common may be
considered as essentially extinguished in the United States. 4 Kent, Com. 363.
54. - IV. An estate upon condition is one which has a qualification
annexed to it by which it may, upon the happening or not happening of a
particular event, be created, or enlarged, or destroyed. Conditions may be
annexed to estates in fee, for life, or for years. These estates are divided
into estates upon condition express, or in deed; and upon conditions implied,
or in law.
55. Estates upon express conditions are particularly mentioned 'in the
contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, Dig.
56. Estates upon condition in law are such as have a condition impliedly
annexed to them, without any condition being specified in the deed or will.
Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b.
57. Considered as to the title which may be had in them, estates are
legal and equitable. 1. A legal estate is one, the right to which can be
enforced in a court of law. 2. An equitable, is a right or interest in land,
which not having the properties of a legal estate, but being merely a right of
which courts of equity will take notice, require the aid of such a court to,
make it available. See, generally, Bouv. Inst. Index, h. t.
ESTER EN JUGEMENT, French law. Stare in judicio. To appear
before a tribunal either as plaintiff or defendant.
ESTIMATION OF VALUES. As the value of most things is variable,
according to circumstances, the law in many cases determines the time at which
the value of a thing should be taken; thus, the value of an advancement, is to
be taken at the time of the gift. 1 Serg. & R. 425. Of a gift in
frank-marriage, at the time of partition between the parceners, and the
bringing of the gift in frank-marriage into hotchpot. But this is a case sui
generis. Co. Lit. §273; 1 Serg. & R. 426. Of the yearly value of
properties; at the time of partition. Tho. Co. Lit. 820. Of a bequest of so
pieces of coin; at the time of the will made. Godolph, 0. L. 273, part 3, chap.
1. §3. Of assets to make lineal warranty a bar; at the time of the
descent. Co. Lit. 374, b. Of lands warranted; at the time of the warranty.
Beames' Glanv. 75 n.; 2 Serg. & Rawle, 444, see Eviction 2. Of a ship lost
at sea; her value is to be taken at the port from which she sailed, deducting
one-fifth; 2 Serg. & Rawle, 258; 1 Caines, 572; 2 Condy. Marshall, 545; but
different rules prevail on this subject in different nations. 2 Serg. & R.
259. Of goods lost at sea; their value is to be taken at the port of delivery.
2 Serg. & R. 257. The comparative value of a life estate, and the remainder
in fee, is one-third for the life and two-thirds for the remainder in fee; and
moneys due upon a mortgage of lands devised to one for life, and the remainder
in fee to another, are to be apportioned by the same rule. 1 Vern. 70; 1 Chit.
Cas. 223, 224, 271; Francis' Max. 3, §12, and note. See Exchange, 3-2.
ESTOPPEL, pleading. An estoppel is a preclusion, in law, which
prevents a man from alleging or denying a fact, in consequence o his own
previous act, allegation or denial of a contrary tenor. Stepb. Pl. 239. Lord
Coke says, " an estoppel is, when a man is concluded by his own act or
acceptance, to say the truth." Co. Litt. 352, a. And Blackstone defines "an
estoppel to be a special plea in bar, which happens where a man has done some
act, or executed some deed, which estops or precludes him from averring any
thing to the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. &
R. 444; they are not admitted in equity against the truth. Id. 442. Nor can
jurors be estopped from saying the truth, because they are sworn to do so,
although they are estopped from finding against the admission of the parties in
their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. 662;
Angel on Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. notes.
2. An estoppel may, arise either from matter of record; from the deed of
the party; or from matter in Pays; that is, matter of fact.
3. Thus, any confession or admission made in pleading, in a court of
record, whether it be express, or implied from pleading over without a
traverse, will forever preclude the party from afterwards contesting the same
fact in any subsequent suit with his adversary. Com. Dig. Estoppel, A 1. This
is an estoppel by matter of record.
4. As an instance of an estoppel by deed, may be mentioned the case of a
bond reciting a certain fact. The party executing that bond, will be precluded
from afterwards denying in any action brought upon that instrument, the fact ,
so recited. 5 Barn. & Ald. 682.
5. An example of an estoppel by matter in pays occurs when one man Las
accepted rent of another. He will be estopped from afterwards. denying, in any
action, with that person, that he was, at the time of such acceptance, his
tenant. Com. Dig. Estoppel, A 3 Co. Litt. 352, a.
6. This doctrine of law gives rise to a kind of pleading that is neither
by way of traverse, nor confession. and avoidance: viz. a pleading, that,
waiving any question of fact, relies merely on the estoppel, and, after stating
the previous act, allegation, or denial, of the opposite party, prays judgment,
if he shall be received or admitted to aver contrary to what he before did or
said. This pleading is called pleading by way of estoppel. Steph. 240a
7. Every estoppel ought to be reciprocal, that is, to bind both parties:
and this is the reason that regularly a stranger shall neither take advantage
or be bound by an estoppel. It should be directly affirmative, and not by
inference nor against an estoppel. Co. Lit. 352, a, b; 1 R. 442-3; 9 Serg.
& R. 371, 430; 4 Yeates' 38 1 Serg. & R. 444; Corn. Dig. Estoppel, C 3
Johns. Cas. 101; 2 Johns. R. 382; 8 W. & S. 135; 2 Murph. 67; 4 Mont. 370.
Privies in blood, privies in estate, and privies in law, are bound by, and may
take advantage of estoppels. Co. Litt. 352; 2 Serg. & Rawle, 509; 6 Day, R.
88. See the following cases relating to estoppels by; Matter of record: 4 Mass.
R. 625; 10 Mass. R. 155; Munf. R. 466; 3 East, R. 354; 2 Barn. & Ald. 362,
971; 17 Mass. R. 365; Gilm. R. 235; 5 Esp. R. 58; 1 Show. 47; 3 East, R. 346.
Matter of writing: 12 Johns. R. 347; 5 Mass. R. 395; Id. 286; 6 Mass. R. 421; 3
John. Cas. 174; 5 John. R. 489; 2 Caines' R. 320; 3 Johns. R. 331; 14 Johns. R.
193; Id. 224; 17 Johns. R. 161; Willes, R. 9, 25; 6 Binn. R. 59; 1 Call, R.
429; 6 Munf. R. 120; 1 Esp. R. 89; Id. 159; Id. 217; 1 Mass. R. 219. Matter in
pays: 4 Mass. R. 181; Id. 273 15 Mass. R. 18; 2 Bl. R. 1259; 1 T. R. 760, n.; 3
T. R. 14; 6 T. R. 62; 4 Munf. 124; 6 Esp. R. 20; 2 Ves. 236; 2 Camp. R. 844; 1
Stark. R. 192. And see, in general, 10 Vin. Abr. 420, tit. Estoppel; Bac. Abr.
Pleas, 111; Com. Dig. Estoppel; Id. Pleader, S 5; Arch. Civ. Pl. 218; Doct. Pl.
255; Stark. Ev. pt. 2, p. 206, 302; pt. 4, p. 30; 2 Smith's Lead. Cas. 417-460.
ESTOVERS, estates. The right of taking necessary wood for the
use or furniture of a house or farm, from off another's estate. The word bote
is used synonymously with the word estovers. 2 Bl. Com. 35; Dane's Ab. Index,
h. t.; Woodf. L. & T. 232; 10 Wend. 639; 2 Bouv. Inst. n. 1652 57.
ESTRAYS. Cattle whose owner is unknown.
2. In the United States, generally, it is presumed by local regulations,
they are subject to, being sold for the benefit of the poor, of some other
public use, of the place where found.
ESTREAT. This term is used to signify a true copy or note of
some original writing or record, and specially of flues and amercements imposed
by a court, and extracted from the record, and certified to a proper officer or
officers authorized and required to collect them. Vide F. N. B. 57, 76.
ESTREPE. This word is derived from the French, estropier, to
cripple. It signifies an injury to lands, to the damage of another, as a
reversioner. This is prevented by a writ of estrepemeut.
ESTREPEMENT. The name of a writ which lay at common law to
prevent a party in possession from committing waste on an estate, the title to
which is disputed, after judgment obtained in any real action, and before
possession was delivered by the sheriff.
2. But as waste might be committed in some cases, pending the suit, the
statute of Gloucester gave another writ of estrepement pendente placito,
commanding the sheriff firmly to inhibit the tenant "ne faciat vastum vel
strepementum pendente placito dicto indiscusso." By virtue of either of these
writs, the sheriff may resist those who commit waste or offer to do so; and he
may use sufficient force for the purpose. 3 Bl. Com. 225, 226.
3. This writ is sometimes directed to the sheriff and the party in
possession of the lands, in order to make him amenable to the court as for a
contempt in case of his disobedience to the injunction of the writ. At common
law the process proper to bring the tenant into court is a venire facias, and
thereon an attachment. Upon the defendant's coming in, the plaintiff declares
against him. The defendant usually pleads "that he has done no waste contrary
to the prohibition of the writ." The issue on this plea is tried by a jury, and
in case they find against the defendant, they assess damages which the
plaintiff recovers. But as this verdict convicts the defendant of a contempt,
the court proceed against him for that cause as in other cases. 2 Co. Inst.
329; Rast. Ent. 317; Brev. Judic. 88; More's Rep. 100; 1 Bos. & Pull. 121;
2 Lilly's Reg. tit. Estrepement; 5 Rep. 119; Reg. Brev. 76, 77.
4. In Pennsylvania, by legislative enactment, the remedy by estrepement
is extended for the benefit of any owner of lands leased for years or at will,
at any time during the continuance or after the expiration of such demise, and
due notice given to the tenant to leave the same, agreeably to law, or for any
purchaser at sheriff or coroner's sale of lands. &c., after he has been
declared the highest bidder by the sheriff or coroner; or for any mortgagee or
judgment creditor, after the lands bound by such judgment or mortgage, shall
have been condemned by inquisition, or which may be subject to be sold by a
writ of venditioni exponas or levari facias. Vide 10 Vin. Ab. 497; Woodf.
Landl. & Ten, 447; Archb. Civ. Pl. 17; 7 Com. Dig. 659.
ET CETERA. A Latin phrase, which has been adopted into English;
it signifies. "and the others, and so of the rest," it is commonly abbreviated,
2. Formerly the pleader was required to be very particular in making his
defence. (q. v.) B making full defence, he impliedly admitted the jurisdiction
of the court, and the competency of the plaintiff to sue; and half defence was
used when the defendant intended to plead to the jurisdictions or disability.
To prevent the inconveniences which might arise by pleading full or half
defence, it became the practice to plead in the following form: " And the said
C D, by E F, his attorney, comes and defends the wrong and injury, when,
&c., and says," which was either full or half defence. 2 Saund. 209, c.;
Steph. Pl. 432; 2 Chit. Pl. 455.
3. In practice, the &c. is used to supply the place of words which
have been omitted. In taking recognizance, for example, it is usual to make an
entry on the docket of the clerk of the court, as follows: A B, tent, &c.,
in the sum of $1000, to answer, &c. 6 S. & R. 427.
ET NON. And not. These words are sometimes employed in pleading
to convey a pointed denial. They have the same effect as without this, absque
hoe. 3 Bouv. Inst. n. 2981, note.
EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going,
remaining, and returning. It is employed in cases where a person either as a
party, a witness, or one acting in some other capacity, as an elector, is
privileged from arrest, in order to give him that freedom necessary to the
performance of his respective obligations, to signify that he is protected from
arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.
EUNOMY. Equal laws, and a well adjusted constitution of
EUNUCH. A male whose organs of generation have been so far
removed or disorganized, that he is rendered incapable of reproducing his
species. Domat, Lois Civ. liv. prel. tit. 2, s. 1, n. 10.
EVASION. A subtle device to set aside the truth, or escape the
punishment of the law; as if a man should tempt another to strike him first, in
order that he might have an opportunity of returning the blow with impunity. He
is nevertheless punishable, because he becomes himself the aggressor in such a
case. Wishard, 1 H. P . C. 81 Hawk. P. C. c. 31, §24, 25; Bac. Ab. Fraud,
2. An escape from custody.
EVICTION. The loss or deprivation which the possessor of a thing
suffers, either in whole or in part, of his right of property in such a thing,
in consequence of the right of a third person established before a compenent
tribunal. 10 Rep. 128; 4 Kent, Com. 475-7; 3 Id. 464-5.
2. The eviction may be total or partial. It is total, when the possessor
is wholly deprived of his rights in the whole thing; partial, when he is
deprived of only a portion of the thing; as, if he had fifty acres of land, and
a third person recovers by a better title twenty-five; or, of some right in
relation to the thing. as, if a stranger should claim and establish a right to
some easement over the same. When the grantee suffers a total eviction, and he
has a covenant of seisin, he recovers from the seller, the consideration money,
with interest and costs, and no more. The grantor has no concern with the
future rise or fall of the property, nor with the improvements made by the
purchaser. This seems to be the general rule in the United States. 3 Caines' R.
111; 4 John. R. 1; 13 Johns. R. 50; 4 Dall. R. 441; Cooke's Term. R. 447; 1
Harr. & Munf. 202; 5 Munf. R. 415; 4 Halst. R. 139; 2 Bibb, R. 272. In
Massachusetts, the measure of damages on a covenant of warranty, is the value
of the land at the time of eviction. 3 Mass. R. 523; 4 Mass. R. 108. See, as to
other states, 1 Bay, R. 19, 265; 3 Des. Eq. R. 245; 2 Const. R. 584; 2 McCord's
R. 413; 3 Call's R. 326.
3. When the eviction is only partial the damages to be recovered under
the covenant of seisin, are a rateable part of the original price, and they are
to bear the same ratio to the whole consideration, that the value of land to
which the title has failed, bears to the value of the whole tract. The contract
is not rescinded, so as to entitle the vendee to the whole consideration money,
but only to the amount of the relative value of the part lost. 5 Johns. R. 49;
12 Johns. R. 126; Civ. Code of Lo. 2490; 4 Kent's Com. 462. Vide 6 Bac. Ab. 44;
1 Saund. R. 204: note 2, and 322 a, note 2; 1 Bouv. Inst. n. 656.
EVIDENCE. That which demonstrates, makes clear, or ascertains
the truth of the very fact or point in issue; 3 Bl. Com. 367; or it is whatever
is exhibited to a court or jury, whether it be by matter of record, or writing,
or by the testimony of witnesses, in order to enable them to pronounce with
certainty; concerning the truth of any matter in dispute; Bac. Ab. Evidence, in
pr.; or it is that which is legally submitted to a jury, to enable them to
decide upon the questions in dispute or issue, as pointed out by the pleadings
and distinguished from all comment or argument. 1 Stark. Ev. 8. 2. Evidence may
be considered with reference to, 1. The nature of the evidence. 2. The object
of the evidence. 3. The instruments of evidence. 4. The effect of evidence. 1.
As to its nature, evidence may be considered with reference to its being 1.
Primary evidence. 2. Secondary evidence. 3. Positive. 4. Presumptive. 5.
Hearsay. 6. Admissions.
4. - 1. Primary evidence. The law generally requires that the best
evidence the case admits of should be given; B. N. P. 293; 1 Stark. Ev. 102,
390; for example, when a written contract has been entered into, and the object
is to prove what it was, it is requisite to produce the original writing if it
is to be attained, and in that case no copy or other inferior evidence will be
5. To this general rule there are several exceptions. 1. As it refers to
the quality rather than to the quantity of evidence, it is evident that the
fullest proof that every case admits of, is not requisite; if, therefore, there
are several eye-witnesses to a fact, it may be sufficiently proved by one only.
2. It is not always requisite, when the matter to be proved has been reduced to
writing, that the writing should be produced; as, if the narrative of a fact to
be proved has been committed to writing, it may yet be proved by parol
evidence. A receipt for the payment of money, for example, will not exclude
parol evidence of payment. 14 Esp. R. 213; and see 7 B. & C. 611; S. C. 14
E. C. L. R. 101; 1 Campb. R. 439; 3 B. & A. 566; 6 E. C. L. R. 377.
6. - 2. Secondary evidence. That species of proof which is admissible on
the loss of primary evidence, and which becomes by that event the best
evidence. 3 Yeates, Rep. 530.
7. It is a rule that the best evidence, or that proof which most
certainly exhibits the true state of facts to which it relates, shall be
required, and the law rejects secondary or inferior evidence, when it is
attempted to be substituted for evidence of a higher or superior nature. This
is a rule of policy, grounded upon a reasonable suspicion, that the
substitution of inferior for better evidence arises from sinister motives; and
an apprehension that the best evidence, if produced, would alter the case to
the prejudice of the party. This rule relates not to the measure and quantity
of evidence, but to its quality when compared with some other evidence of
superior degree. It is not necessary in point of law, to give the fullest proof
that every case may admit of. If, for example, there be several eye witnesses
to a fact, it may be proved by the testimony of one only.
8. When primary evidence cannot be had, then secondary evidence will be
admitted, because then it is the best. But before such evidence can be allowed,
it must be clearly made to appear that the superior evidence is not to be had.
The person who possesses it must be applied to, whether he be a stranger or the
opposite party; in the case of a stranger, a subpoena and attachment, when
proper, must be taken out and served; and, in the case of a party, notice to
produce such primary evidence must be proved before the secondary evidence will
be admitted. 7 Serg. & Rawle, 116; 6 Binn. 228; 4 Binn. R. 295, note; 6
Binn. R. 478; 7 East, R. 66; 8 East, R. 278 3 B. & A. 296; S. C. 5 E. C. L.
9. After proof of the due execution of the original, the contents should
be proved by a counterpart, if there be one, for this is the next best
evidence; and it seems that no evidence of a mere copy is admissible until
proof has been given that the counterpart cannot be produced. 6 T. R. 236. If
there be no counterpart, a copy may be proved in evidence. by any witness who
knows that it is a copy, from having compared it with the original. Bull. N. P.
254; 1 Keb. 117; 6 Binn. R. 234; 2 Taunt. R. 52; 1 Campb. R. 469 8 Mass. R.
273. If there be no copy, the party may produce an abstract, or even give parol
evidence of the contents of a deed. 10 Mod. 8; 6 T. R. 556.
10. But it has been decided that there are no degrees in secondary
evidence: and when a party has laid the foundation for such evidence, he may
prove the contents of a deed by parol, although it appear that an attested copy
is in existence. 6 C. & P. 206; 8 Id. 389.
11. - 3. Positive or direct evidence is that which, if believed,
establishes the truth of a fact in issue, and does not arise from any
presumption. Evidence is direct and positive, when the very facts in dispute
are communicated by those who have the actual knowledge of them by means of
their senses. 1 Phil. Ev. 116 1 Stark. 19. In one sense, there is but little
direct or positive proof, or such proof as is acquired by means of one's own
sense, all other evidence is presumptive but, in common acceptation, direct and
positive evidence is that which is communicated by one who has actual knowledge
of the fact.
12. - 4. Presumptive evidence is that which is not direct, but where, on
the contrary, a fact which is not positively known, is presumed or inferred
from one or more other facts or circumstances which are known. Vide article
Presumption, and Rosc. Civ. Ev. 13; 1 Stark. Ev. 18.
13. - 5. Hearsay, is the evidence of those who relate, not what they
know themselves, but what they have heard from others.
14. Such mere recitals or assertions cannot be received in evidence, for
many reasons, but principally for the following: first, that the party making
such declarations is not on oath and, secondly, because the party against whom
it operates, has no opportunity of cross-examination. 1 Phil. Ev. 185. See, for
other reasons, 1 Stark. Ev. pt. 1, p. 44. The general rule excluding hearsay
evidence, does not apply to those declarations to which the party is privy, or
to admissions which he himself has made. See Admissions.
15. Many facts, from their very nature, either absolutely, or usually
exclude direct evidence to prove them, being such as are either necessarily or
usually, imperceptible by the senses, and therefore incapable of the ordinary
means of proof. These are questions of pedigree or relationship, character,
prescription, custom, boundary, and the like; as also questions which depend
upon the exercise of particular skill and judgment. Such facts, some from their
nature, and others from their antiquity, do not admit of the ordinary and
direct means of proof by living witnesses; and, consequently, resort must be
had to the best means of proof which the nature of the cases afford. See
Boundary; Custom; Opinion; Pedigree; Prescription.
16. - 6. Admissions are the declarations which a party by himself, or
those who act under his authority, make of the existence of certain facts. Vide
17.- §2. The object of evidence is next to be considered. It is to
ascertain the truth between the parties. It has been discovered by experience
that this is done most certainly by the adoption of the following rules, which
are now binding as law: 1. The evidence must be confined to the point in issue.
2. The substance of the issue must be proved, but only the substance is
required to be proved. 3. The affirmative of the issue must be proved.
18. - 1. It is a general rule, both in civil and criminal cases, that
the evidence shall be confined to the point in issue. Justice and convenience
require the observance of this rule, particularly in criminal cases, for when a
prisoner is charged with an offence, it is of the utmost importance to him that
the facts laid before the jury should consist exclusively of the transaction,
which forms the subject of the indictment, and, which alone he has come
prepared to answer. 2 Russ. on Cr. 694; 1 Phil. Ev. 166.
19. To this general rule, there are several exceptions, and a variety of
cases which do not fall within the rule. 1. In general, evidence of collateral
facts is not admissible; but when such a fact is material to the issue joined
between the parties, it may be given in evidence; as, for example, in order to
prove that the acceptor of a bill knew the payee to be a fictitious person; or
that the drawer had general authority from him to fill up bills with the name
of a fictitious payee, evidence may be given to show that he had accepted
similar bills before they could, from their date, have arrived from the place
of date. 2 H. Bl. 288.
20. - 2. When special damage sustained by the plaintiff is not stated in
the declaration, it is Dot one of the points in issue, and therefore, evidence
of it cannot be received; yet a damage which is the necessary result of the
defendant's breach of contract, may be proved, notwithstanding it is not in the
declaration. 11 Price's Reports, 19.
21. - 3. In general, evidence of the character of either party to a suit
is inadmissible, yet in some cases such evidence may be given. Vide article
22. - 4. When evidence incidentally applies to another person or thing
not included in the transaction in question, and with regard to whom or to
which it is inadmissible; yet if it bear upon the point in issue, it will be
re-ceived. 8 Bingh. Rep. 376; S. C. 21 Eng. C. L. R. 325 and see 1 Phil. Ev.
158; 2 East, P. C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C.
C. 376; 2 Yeates, 114; 9 Conn. Rep. 47.
23. - 5. The acts of others, as in the case of conspirators, may be
given in evidence against the prisoner, when referable to the issue; but
confessions made by one of several conspirators after the offence has been
completed, and when the conspirators no longer act in concert) cannot be
received. Vide article Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 2 Brec.
R. 269; 3 Serg. & Rawle, 9; 1 Rawle, 362, 458; 2 Leigh's R. 745; 2 Day's
Cas. 205; 3 Serg. & Rawle, 220; 3 Pick. 33; 4 Cranch, 75; 2 B. & A.
573-4 S. C. 5. E. C. L. R. 381.
24. - 6. In criminal cases, when the offence is a cumulative one,
consisting itself in the commission of a number of acts, evidence of those acts
is not only admissible, but essential to support the charge. On an indictment
against a defendant for a conspiracy, to cause himself, to be believed a man of
large property, for the purpose of defrauding tradesmen after proof of a
representation to one tradesman, evidence may therefore be given of a
representation to another tradesman at a different time. 1 Campb. Rep. 399; 2
Day's Cas. 205; 1 John. R. 99; 4 Rogers' Rec. 143; 2 Johns. Cas. 193.
25. - 7. To prove the guilty knowledge of a prisoner, with regard to the
transaction in question, evidence of other offences of the same kind, committed
by the prisoner, though not charged in the indictment, is admissible against
him. As in the case where a prisoner had passed a counterfeit dollar, evidence
that he had. other counterfeit dollars in his possession is evidence to prove
the guilty knowledge. 2 Const. R. 758; Id. 776; 1 Bailey, R. 300; 2 Leigh's R.
745; 1 Wheeler's Cr. Cas. 415; 3 Rogers' Rec. 148; Russ. & Ry. 132; 1
Campb. Rep. 324; 5 Randolph's R. 701.
26. - 2. The substance of the issue joined between the parties must be
proved. 1 Phil. Ev. 190. Under this rule will be considered the quantity of
evidence required to support particular averments in the declaration or
27. And, first, of civil cases. 1. It is a fatal variance in a contract,
if it appear that a party who ought to have been joined as plaintiff has been
omitted. 1 Sauud. 291 b, n.; 2 T. R. 282. But it is no variance to omit a
person who might have been joined as defendant, because the non-joinder ought
to have been pleaded in abatement. 1 Saund. 291 d, n. 2. The consideration of
the contract must be proved but it is not necessary for the plaintiff to set
out in his declaration, or prove on the trial, the several parts of a contract
consisting of distinct and collateral provisions; it is sufficient to state so
much of the contract as contains the entire consideration of the act, and the
entire act to be done in virtue of such consideration, including the time,
manner, and other circumstances of its performance. 6 East, R. 568; 4 B. &
A. 387; 6 E. C. L. R. 455.
28. - Secondly. In criminal cases, it may be laid down, 1. That it is,
in general, sufficient to prove what constitutes an offence. It is enough to
prove so much of the indictment as shows that the defendant has committed a
substantive crime therein specified. 2 Campb. R. 585; 1 Harr. & John. 427.
If a man be indicted for robbery, he may be found guilty of larceny, and not
guilty of the robbery. 2 Hale, P. C. 302. The offence of which the party is
convicted, must, however, be of the same class with that of which he is
charged. 1 i Leach, 14; 2 Stra. 1133.
29. - 2. When the intent of the prisoner furnishes one of the
ingredients in the offence, and several intents are laid in the indictment,
each of which, together with the act done, constitutes an offence, it is
sufficient to prove one intent only. 3 Stark. R. 35; 14 E. C. L. R. 154,
30. - 3. When a person or thing, necessary to be mentioned in an
indictment, is described with circumstances of greater particularity than is
requisite, yet those circumstances must be proved. 3 Rogers' Rec. 77; 3 Day's
Cas. 283. For example, if a party be charged with stealing a black horse, the
evidence must correspond with the averment, although it was unnecessary to make
it. Roscoe's Cr. Ev. 77 4 Ohio, 350.
31. - 4. The name of the prosecutor, or party injured; must be proved as
laid, and the rule is the same with reference to the name of a third person
introduced into the indictment, as. descriptive of some person or thing.
32. - 5. The affirmative of the issue must be proved. The general rule
with regard to the burthen of proving the issue, requires that the party who
asserts the, affirmative should prove it. But this rule ceases to operate the
moment the presumption of law is thrown into the other scale. When the issue is
on the legitimacy of a child therefore, it is incumbent on the party asserting
the illegitimacy to prove it. 2 Selw. N. P. 709. Vide Onus Probandi; Presum 2
Gall. R. 485 and 1 McCord, 573.
33. - §3. The consideration of the instruments of evidence will be
the subject of this head. These consist of records, private writings, or
34. - 1. Records are to be proved by an exemplification, duly
authenticated, (Vide Authentication, in all cases where the issue is nul tiel
record. In other cases, an examined copy, duly proved, will, in general, be
evidence. Foreign laws as proved in the mode pointed out under the article
35. - 2. Private writings are proved by producing the attesting witness;
or in case of his death, absence, or other legal inability to testify, as if,
after attesting the paper, he becomes infamous, his handwriting may be proved.
When there is no witness to the instrument, it may be proved by the evidence of
the handwriting of the party, by a person who has seen him write, or in a
course of correspondence has become acquainted with his hand. See Comparison of
handwriting, and 5 Binn. R. 349; 10 Serg. & Rawle, 110; 11 Serg. &
Rawle, 333 3 W. C. C. R. 31; 11 Serg. & Rawle, 347 6 Serg. & Rawle, 12,
812; 1 Rawle, R. 223; 3 Rawle, R. 312; 1 Ashm. R. 8; 3 Penn. R. 136.
36. Books of original entry, when duly proved, are prima facie evidence
of goods sold and delivered, and of work and labor done. Vide original
37. - 3. Proof by witnesses. The testimony of witnesses is called parol
evidence, or that which is given viva voce, as contra-distinguished from that
which is written or documentary. It is a general rule, that oral evidence shall
in no case be received as equivalent to, or as a substitute for, a written
instrument, where the latter is required by law; or to give effect to a written
instrument which is defective in any particular which by law is essential to
its validity; or to contradict, alter or vary a written instrument, either
appointed by law, or by the contract of the parties, to be the appropriate and
authentic memorial of the particular facts it recites; for by doing so, oral
testimony would be admitted to usurp the place of evidence decidedly superior
in degree. 1 Serg. & Rawle, 464; Id. 27; Addis. R. 361; 2 Dall. 172; 1
Yeates, 140; 1 Binn. 616; 3 Marsh. Ken. R. 333; 4 Bibb, R. 473; 1 Bibb, R. 271;
11 Mass. R. 30; 13 Mass. R. 443; 3 Conn. 9; 20 Johns. 49; 12 Johns. R. 77; 3
Camp. 57; 1 Esp. C. 53; 1 M. & S. 21; Bunb. 175.
38. But parol evidence is admissible to defeat a written instrument, on
the ground of fraud, mistake, &c., or to apply it to its proper subject
matter; or, in some instances, as ancillary to such application, to explain the
meaning of doubtful terms, or to rebut presumptions arising extrinsically. In
these cases, the parol evidence does not usurp the place, or arrogate the
authority of, written evidence, but either shows that the instrument ought not
to be allowed to operate at all, or is essential in order to give to the
instrument its legal effect. 1 Murph. R. 426 4 Desaus. R. 211; 1 Desaus. R. 345
1 Bay, R. 247; 1 Bibb, R. 271 11 Mass. R. 30; see 1 Pet. C. C. R. 85 1 Binn. R.
610; 3 Binn. R. 587: 3 Serg. Rawle, 340; Poth. Obl. Pl. 4, c. 2.
39. - §4. The effect of evidence. Under this head will be
considered, 1st. The effect of judgments rendered in the United States, and of
records lawfully made in this country; and, 2d. The effect of foreign judgments
40. - 1. As a general rule, a judgment rendered by a court of competent
jurisdiction, directly upon the point in issue, is a bar between the same
parties: 1 Phil. Ev. 242; and privies in blood, as an heir 3 Mod. 141; or
privies in estate 1 Ld. Raym. 730; B. N. P. 232; stand in the same situation.
as those they represent; the verdict and judgment may be used for or against
them, and is conclusive. Vide Res Judicata.
41. The Constitution of the United States, art. 4, s. 1, declares, that
"Full faith and credit shall be given, in each state, to the public acts,
records, and judicial proceedings of every other state. And congress may, by
general laws, prescribe the manner in which Such acts, records and proceedings,
shall be proved, and the effect thereof." Vide article Authentication and 7
Cranch, 481; 3 Wheat. R. 234 10 Wheat. R. 469; 17 Mass. R. 546; 9 Cranch, 192;
2 Yeates, 532; 7 Cranch, 408; 3 Bibb's R. 369; 5 Day's R. 563; 2 Marsh. Kty. R.
42. - 2. As to the effect of foreign laws, see article Foreign Laws. For
the force and effect of foreign judgments, see article Foreign Judgments. Vide,
generally, the Treatises on Evidence, of Gilbert, Phillips, Starkie, Roscoe,
Swift, Bentham, Macnally, Peake, Greenleaf, and Bouv. Inst. Index, h. t.; the
various Digests, h. t.
EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually
attend other facts sought to be, proved; that which is not direct evidence. For
example, when a witness testifies that a man was stabbed with a knife, and that
a piece of the blade was found in the wound, and it is found to fit exactly
with another part of the blade found in the possession of the prisoner; the
facts are directly attested, but they only prove circumstances, and hence this
is called circumstantial evidence.
2. Circumstantial evidence is of two kinds, namely, certain and
uncertain. It is certain when the conclusion in question necessarily follows
as, where a man had received a mortal wound, and it was found that the
impression of a bloody left hand had been made on the left arm of the deceased,
it was certain some other person than the deceased must have made such mark. 14
How. St. Tr. 1324. But it is uncertain whether the death was caused by suicide
or by murder, and whether the mark of the bloody hand was made by the assassin,
or by a friendly hand that came too late to the relief of the deceased. Id.
EVIDENCE, CONCLUSIVE. That which, while uncontradicted,
satisfies the judge and jury it is also that which cannot be contradicted.
2. The record of a court of common law jurisdiction is conclusive as to
the facts therein stated. 2 Wash. 64; 2 H. 55; 6 Conn. 508, But the judgment
and record of a prize court is not conclusive evidence in the state courts,
unless it had jurisdiction of the subject-matter; and whether it had or not,
the state courts may decide. 1 Conn. 429. See as to the conclusiveness of the
judgments of foreign courts of admiralty, 4 Cranch, 421, 434; 3 Cranch, 458;
Gilmer, 16 Const. R. 381 1 N. & M. 5 3 7.
EVIDENCE, DIRECT. That which applies immediately to the fadum
probandum, without any intervening process; as, if A testifies he saw B inflict
a mortal wound on C, of which he, instantly died. 1 Greenl. Ev. §13.
EVIDENCE, EXTRINSIC. External evidence, or that which is not
contained in the body of an agreement, contract, and the like.
2. It is a general rule that extrinsic evidence cannot be admitted to
contradict, explain, vary or change the terms of a contract or of a will,
except in a latent ambiguity, or to rebut a resulting trust. 14 John. 1; 1 Day,
R. 8; 6 Conn. 270.
EVOCATION, French law. The act by which a judge is deprived of
the cognizance of a suit over which he had jurisdiction, for the purpose of
conferring on other judges the power of deciding it. This is done with us by
writ of certiorari.
EWAGE. A toll paid for water passage. Cowell. The same as
aquagium. (q. v.)
EX CONTRACTU. This term is applied to such things as arise from
a contract; as an action which arises ex contractu. Vide Action.
EX DELICTO. Those actions which arise in consequence of a crime,
misdemeanor, fault, or tort; actions arising ex delicto are case, replevin,
trespass, trover. See Action.
EX DOLO MALO. Out of fraud or deceit. When a cause of action
arises from fraud or deceit, it cannot be supported: Ex dolo malo, non oritur
EX AEQUO ET BONO. In equity and good conscience. A man is bound
to pay money which ex oequo et bono he holds for the use of another.
EX MERO MOTU. Mere motion of a party's own free will. To prevent
injustice, the courts will, ex mero motu, make rules and orders which the
parties would not strictly be entitled to ask for.
EX MORA. From the delay; from the default. All persons are bound
to make amends for damages which arise from their own default.
EX NECESSITATE LEGIS. From the necessity of law.
EX NECESSITATE REI. From the necessity of the thing. Many acts
may be done ex necessitate ret, which would not be justifiable without it; and
sometimes property is protected, ex necessitate rei, which, under, other
circumstances, would not be so. For example, property put upon the land of
another from necessity, cannot be distrained for rent. See Distress;
EX OFFICIO. By virtue of his office. 2. Many powers are granted
and exercised by public officers which are not expressly delegated. A judge,
for example, may, ex officio, be a conservator of the peace, and a justice of
EX PARTE. Of the one part. Many things may be done ex parte,
when the opposite party has had notice; an affidavit or deposition is said to
be taken ex parte when only one of the parties attends to taking the same. Ex
parte paterna, on the side of the father, or property descended to a person
from his father; ex parte materna, on the part of the mother.
EX POST FACTO, contracts, crim. law. This is a technical
expression, which signifies, that something has been done after another thing,
in relation to the latter.
2. An estate granted, may be made good or avoided by matter ex post
facto, when an election is given to the party to accept or not to accept. 1 Co
3. The Constitution of the United States, art. 1, sec. 10, forbids the
states to pass any ex post facto law; which has been defined to be one which
renders the act punishable in a manner in which it was not punishable when it
was committed. 6 Cranch, 138. This definition extends to laws passed after the
act, and affecting a person by way of punishment of that act, either in his
person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1
Kent, Com. 408; Dane's Ab. Index, h. t.
4. This prohibition in the constitution against passing ex post facto
law's, applies exclusively to criminal or penal cases, and not to civil cases.
Serg. Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, R. 350; 5
Monr. 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1
J. J. Marsh, 563; 2 Pet. R. 681; and the article Retrospective.
EX VI TERMINI. By force of the term; as a bond ex vi termini
imports a sealed instrument.
EX VISITATIONE DEI. By or from the visitation of God. This
phrase is frequently employed in inquisitions by the coroner, where it
signifies that the death of the deceased is a natural one.
EX TEMPORE. From the time without premeditation.
EXACTION, torts. A willful wrong done by an officer, or by one
who, under color of his office, takes more fee or pay for his services than
what the law allows. Between extortion and exaction there is this difference;
that in the former case the officer extorts more than his due, when something
is due to him; in the latter, he exacts what is not his due, when there is
nothing due to him. Wishard; Co. Litt. 368.
EXAMINATION, crim. law. By the common law no one is bound to
accuse himself. Nemo tenetur prodere seipsum. In England, by the statutes of
Philip and Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10,)
the principles of which have been adopted in several of the United States, the
justices before whom any person shall be brought, charged with any of the
crimes therein mentioned, shall take the examination of the prisoner, as well
is that of the witnesses, in writing, which the magistrates shall subscribe,
and deliver to the officer of the court where the trial is to be had. The
signature of the prisoner, when not specially required by statute, is not
indispensable, though it is proper to obtain it, when it can be obtained. 1
Chit. Cr. Law, 87; 2 Leach, Cr. Cas. 625.
2. It will be proper to consider, 1. The requisites of such examination.
2. How it is to be proved. 3. Its effects.
3. - 1. It is required that it should, 1st. Be voluntarily made, without
any compulsion of any kind; and, 2d. It must be reduced to writing. 1st. The
law is particularly solicitous to let the prisoner be free in making
declarations in his examination; and if the prisoner has not been left entirely
free, or did not consider himself to be so, or if he did not feel at liberty
wholly to decline any explanation or declaration whatever, the examination is
not considered voluntary, and the writing cannot be read in evidence against
him, nor can parol evidence be received of what the prisoner said on the
occasion. 5 C. & P. 812; 7 C. & P. 177; 1 Stark. R. 242; 6 Penn. Law
Journ. 120. The prisoner, of course, cannot be sworn, and make his statement
under oath. Bull. N. P. 242; 4 Hawk. P. C. book 2, c. 46, §37; 4 C. &
P. 564. 2a. The statute requires that the examination shall be reduced to
writing, or so much as may be material, and the law presumes the magistrate did
his duty and took down all that was material. Joy on Conf. 89-92; 1 Greenl. Ev.
§227. The prisoner need not sign the examination so reduced to writing, to
give it validity; but, if being asked to sign it, he absolutely refuse, it will
be considered incomplete. 2 Stark. R. 483; 2 Leach, Cr. Cas. 627, n.
4. - 2. The certificate of the magistrate is conclusive evidence of the
manner in which the examination was conducted. 7 C. & P. 177; 9 C. & P.
124; 1 Stark. R. 242. Before it can be given in evidence, its identity must be
proved, as well as the identity of the prisoner. When the prisoner has signed
the examination, proof of his handwriting is sufficient evidence that he has
read it; but if he has merely made his mark, or not signed it at all, the
magistrate or clerk must identify the prisoner, and prove that the writing was
duly read to him, and that he assented to it. l Greenl. Ev. §520; 1 M.
& Rob. 395.
5. - 3. The effect of such an examination, when properly taken and
proved, is sufficient to found a conviction. 1 Greenl. Ev. §216.
EXAMINATION, practice. The interrogation of a witness, in order
to ascertain his knowledge as to the facts in dispute between parties. When the
examination is made by the party who called the witness, it is called an
examination in chief. When it is made by the other party, it is known by the
name of cross-examination. (q. v.)
2. The examination is to be made in open court, when practicable; but
when,: on account of age, sickness, or other cause, the witness cannot be so
examined, then it may be made before authorized commissioners. In the
examination in chief the counsel cannot ask leading questions, except in
particular cases. Vide Cross-examination; Leading question.
3. The laws of the several states require the private examination of a
feme covert before a competent officer, in order to pass her title to her own
real estate or the interest she has in that of her hushand: as to the mode in
which this is to be done, see Acknowledment. See, also, 3 Call, R. 394; 5
Mason's R. 59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3 Rand.
R. 468 1 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3 Yerg. R. 548 1 Yerg. R.
413 3 J. J. Marsh. R. 241 2 A. K. Marsh. R. 67; 6 Wend. R. 9; 1 Dall. 11, 17; 3
Yeates, R. 471; 8 S. & R. 299; 4 S. & R. 273.
EXAMINED COPY. This phrase is applied to designate a paper which
is a copy of a record, public book, or register, and which has been compared
with the original. 1 Campb. 469.
2. Such examined copy is admitted in evidence, because of the public
inconvenience which would arise, if such record, public book, or register, were
removed from place to place, and because any fraud or mistake made in the
examined copy would be so easily, detected. 1 Greenl. Ev. §91; 1 Stark.
Ev. 189-191. But an answer in chancery, on which the defendant was indicted for
perjury, or where the original must be produced in order to identify the party
by proof of handwriting, an examined copy would not be evidence. 1 M. &
Rob. 189. Vide Copy.
EXAMINERS, practice. Persons appointed to question students of
law, in order to ascertain their qualifications before they are admitted to
practice. Officers in the courts of chancery whose duty it is to examine
witnesses, are also called examiners. Com. Dig. Chancery, P 1. For rules as to
the mode of taking examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2.
EXAMPLE. An example is a case put to illustrate a. principle.
Examples illustrate, but do not restrain or change the laws: illustrant non
restringunt legem. Co. Litt. 24, a.
EXCAMBIATOR. The name of an exchanger of lands; a broker. This
term is now obsolete.
EXCAMBIUM. Exchange. (q. v.)
EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which
the defendant alleges that the matter in dispute between the parties has been
before adjudged. See Res judicata.
EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev.
EXCEPTION, legislation, construction. Exceptions are rules which
limit the extent of other more general rules, and render that just and proper,
which would be, on account of its generality, unjust and improper. For example,
it is a general rule that parties competent may make contracts; the rule that
they shall not make any contrary to equity, or contra bonos mores, is the
EXCEPTION, contracts. An exception is a clause in a deed,. by
which the lessor excepts something out of that which he granted before by the
2. To make a valid exception, these things must concur: 1. The exception
must be by apt words; as, saving and excepting, &c. 2. It must be of part
of the thing previously described, and not of some other thing. 3. It must be
part of the thing only, and not of all, the greater part, or the effect of the
thing granted; an exception, therefore, in a lease, which extends to the whole
thing demised, is void. 4. It must be of such thing as is severable from the
demised premises, and hot of an inseparable incident. 5. It must be of a thing
as he that accepts may have, and which properly belongs to him. 6. It must be
of a particular thing out of a general, and not of a particular thing out of a
particular thing. 7. It must be particularly described and set forth; a lease
of a tract of land, except one acre, would be void, because that acre was not
particularly described. Woodf. Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77;
1 Shepl. R. 337; Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. R.
499; 6 N. H. Rep. 421. Exceptions against common right and general rules are
construed as strictly as possible. 1 Barton's Elem. Conv. 68.
3. An exception differs from a reservation; the former is always a part
of the thing granted; the latter is of a thing not in esse but newly created or
reserved. An exception differs also from an explanation, which by the use of a
videlicet, proviso, &c., is allowed only to explain doubtful clauses
precedent, or to separate and distribute generals, into particulars. 3 Pick. R.
EXCEPTION, practice, pleading. This term is used in the civil,
nearly in the same sense that the word plea has in the common law. Merl.
Repert. h. t.; Ayl. Parerg. 251.
2. In chancery practice, it is the allegation of a party in writing,
that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr.
3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5; Britton,
cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do not tend to
defeat the action, but only to retard its progress. Poth. Proc. civ. partie 1,
c. 2, s. 2, art. 1; Code of Pract. of Lo. art. 332. Declinatory exceptions have
this effect, as well as the exception of discussion opposed by a third
possessor, or by a surety in an hypothecary action, or the exception taken in
order to call in the warrantor. Id.; 7 N. S. 282; 1 L. R. 38, 420. These
exceptions must, in general, be pleaded in limine litis before issue joined.
Civ. Code of Lo. 2260; 1 N. S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 546. A
declinatory exception is a species of dilatory exception, which merely declines
the jurisdiction of the judge before whom the action is brought. Code of Pr. of
4. Peremptory exceptions are those which tend to the dismissal of the
action. Some relate to forms, others arise from the law. Those which relate to
formes, tend to have the cause dismissed, owing to some nullities in the
proceedings. These must be pleaded in limine litis. Peremptory exceptions
founded on law, are those which, without going into the merits of the cause,
show that the plaintiff cannot maintain his action, either because it is
prescribed, or because the cause of action has been destroyed or extinguished.
These may be pleaded at any time previous to definitive judgment. Id. art. 343,
346; Poth. Proc. Civ. partie 1, c. 2, s. 1, 2, 3. These, in the French law, are
called Fins de. non recevoir. (q. v.)
5. By exception is also meant the objection which is made to the
decision of a judge in the course of a trial. See Bill of Exception.
EXCHANGE, com. law. This word has several significations.
2. - 1. Exchange is a negotiation by which one person transfers to
another funds which he has in a certain place, either at a price agreed upon,
or which is fixed by commercial usage. This transfer is made by means of an
instrument which represents such funds, and is well known by the name of a bill
3. - 2. The price which is paid in order to obtain such transfer, is
also known among merchants by the name of exchange; as, exchange on England is
five per cent. See 4 Wash. C. C. R. 307. Exchange on foreign money is to be
calculated according to the usual rate at the time of trial. 5 S. & R.
4. - 3. Barter, (q. v.) or the transfer of goods and chattels for other
goods and chattels, is also known by the name of exchange, though the term
barter is more commonly used.
5. - 4. The French writers on commercial law, denominate the profit
which arises from a maritime loan, exchange, when such profit is a per centage
on the money lent, considering it in the light of money lent in one place to be
returned in another, with a difference in amount in the sum borrowed and that
paid, arising from the difference of time and place. Hall on Mar. Loans, 56,
n.; and the articles Interest; Maritime; Premium.
6. - 5. By exchange is also meant, the place where merchants, captains
of vessels, exchange agents and brokers, assemble to transact their business.
Code de Comm. art. 71.
7. - 6. According to the Civil Code of Louisiana, art. 1758, exchange
imports a reciprocal contract, by which. the parties enter into mutual
agreement. 14 Pet. 133. Vide the articles. Bills of Exchange; Damages on Bills
of Exchange and Reexchange. Also Civ. Code of Lo. art. 2630.
EXCHANGE conveyancing. An exchange is a mutual grant of equal
interests in land, the one in consideration of the other. 2 Bl. Com. 323; Litt.
s. 62; Touchs. 289; Watk. Prin. Con. It is said that exchange, in the United
States, does not differ from bargain and sale. 2 Bouv. Inst. n. 2055.
2. There are five circumstances necessary to an exchange. 1. That the
estates given be equal. 2. That the word escambium or exchange be used, which
cannot be supplied by any other word, or described by circumlocution. 3. That
there be an execution by entry or claim in the life of the parties. 4. That if
it be of things which lie in grant, it be by deed. 5. That if the lands lie in
several counties, it be by deed indented; or if the thing lie in grant, though
they be in one county. In practice this mode of conveyancing is nearly
obsolete. Vide Cruise, Dig. tit. 32 Perk. ch. 4 10 Vin. Ab. 125; Com. Dig. h.
t.; Nels. Ab. h. t.; Co. Litt. 51; Hardin's R. 593 1 N. H. Rep. 65 3 Har. &
John. 361; 1 Rolle's Ab. 813 .3 Wils. R. 489. Vide Watk. Prin. Con. b. 2, c. 5;
Horsman, 362 and 3 Wood, 243, for forms.
EXCHEQUER R, Eng. law. An ancient court of record set up by
William the Conqueror. It is called exchequer from the chequered cloth,
resembling a chesshoard, which covers the table there. 3 Bl. Com. 45. It
consists of two divisions; the receipt of the exchequer, which manages the
royal revenue; and the court, or judicial part of it, which is again divided
into a court of equity, and a court of common law. Id. 44.
2. In this court all personal actions may be brought, and suits in
equity commenced, the plaintiff in both (fictitiously for the most part)
alleging himself to be the king's debtor, in order to give the court
jurisdiction of the cause. Wooddes. Lect. 69. But by stat. 2 Will. IV. c. 39,
s. 1, a change has been made in this respect.
EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed.
III. c. 12, to determine causes upon writs of error from the common law side of
the court of exchequer. 3 Bl. Com. 55. Another court of exchequer chamber was
created by the stat. 27 El. c. 8, consisting of the justices of the common
bench, and the barons of the exchequer. It has authority to examine by writ of
err6r the proceedings of the king's bench, not so generally as that erected by
the statute of Edw. III., but in certain enumerated actions.
EXCISES. This word is used to signify an inland imposition, paid
sometimes upon the consumption of the commodity, and frequently upon the retail
sale. 1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. §950.
EXCLUSIVE, rights. Debarring one from participating in a thing.
An exclusive right or privilege, is one granted to a person to do a thing, and
forbidding all others to do the same. A patent right or copyright, are of this
EXCLUSIVE, computation of time. Shut out; not included. As when
an act is to be done within a certain time, as ten days from a particular time,
one day is to be included and the other excluded. Vide Hob. 139; Cowp. 714;
Lofft, 276; Dougl. 463; 2 Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. &
Rawle, 43; 3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig.
Estates, G 8; 2 Chit. Pr. 69, 147.
EXCOMMUNICATION, eccl. law. An ecclesiastical sentence,
pronounced by a spiritual judge against a Christian man, by which he is
excluded from the body of the church, and disabled to bring any action, or sue
any person in the common law courts. Bac. Ab. h. t.; Co. Litt. 133-4. In early
times it was the most frequent and most severe method of executing
ecclesiastical censure, although proper to be used, said Justinian, (Nov. 123,)
only upon grave occasions. The effect of it was to remove the excommunicated
"person not only from the sacred rites but from the society of men. In a
certain sense it interdicted the use of fire and water, like the punishment
spoken of by Caesar, (lib, 6 de Bell. Gall.). as inflicted by the Druids.
Innocent IV. called it the nerve of ecclesiastical discipline. On repentance,
the excommunicated person was absolved and received again to communion. These
are said to be the powers of binding and loosing the keys of the kingdom of
heaven. This kind of punishment seems to have been adopted from the Roman usage
of interdicting the use of fire and water. Fr. Duaren, De Sacris Eccles.
Ministeriis, lib. 1, cap. 3. See Ridley's View of the Civil. and Ecclesiastical
Law, 245, 246, 249.
EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ issuing
out of chancery, founded on a hishop's certificate that the defendant had been
excommunicated, which writ is returnable in the king's bench. F. N. B. 62, 64,
65 Bac. Ab. Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II. c. 12; 2
& 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1 H. V. c. 5; also
Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro. Jac. 567; 1 Vent. 146; 1 Salk. 293,
EXCUSABLE HOMICIDE, crim. law. The killing of a human being,
when the party killing is not altogether free from blame, but the necessity
which renders it excusable, may be said to be partly induce by his own act. 1
East, P. C. 220.
EXCUSE. A reason alleged for the doing or not doing a thing.
This word presents two ideas differing essentially from each other. In one case
an excuse may be made in, order to own that the party accused is not guilty; in
another, by showing that though guilty, he is less so, than he appears to be.
Take, for example, the case of a sheriff who has an execution against an
individual, and who in performance of his duty, arrests him; in an action by
the defendant against the sheriff, the latter may prove the facts, and this
shall be a sufficient excuse for him: this is an excuse of the first kind, or a
complete justification; the sheriff was guilty of no offence. But suppose,
secondly, that the sheriff has an execution against Paul, and by mistake, and
without any malicious design, be arrests Peter instead of Paul; the fact of his
having the execution against Paul and the mistake being made, will not justify
the sheriff, but it will extenuate and excuse his conduct, and this will be an
excuse of the second kind.
3. Persons are sometimes excused for the commission of acts, which
ordinarily are crimes, either because they had no intention of doing wrong, or
because they had no power of judging, and therefore had no criminal will (q.
v.); or having power, of judging they had no choice, and were compelled by
necessity. Among the first class may be placed infants under the age of
discretion, lunatics, and married women committing an offence in the presence
of their hushands, not malum in se, as treason or murder; 1 Hale's P. C. 44, 45
or in offences relating to the domestic concern or management of the house, as
the keeping of a bawdy house. Hawk. b. 1, c. 1, s. 12. Among acts of the second
kind may be classed, the beating or killing another in self-defence; the
destruction of property in order to prevent a more serious calamity, as the
tearing down of a house on fire, to prevent its spreading to the neighboring
property, and the like. See Dalloz, Dict. h. t.
EXEAT, eccl. law. This is a Latin term, which is used to express
the written permission which a hishop gives to an ecclesiastic to exercise the
functions of his ministry in another diocese.
TO EXECUTE. To make, to perform, to do, to follow out. This term
is frequently used in the law; as, to execute a deed is to make a deed.
2. It also signifies to perform, as to execute a contract; hence some
contracts are called executed contracts, and others are called executory
3. To execute also means to put to death by virtue of a lawful sentence;
as, the sheriff executed the convict.
EXECUTED. Something done; something completed. This word is
frequently used in connexion with others to designate a quality of such other
words; as an executed contract; an executed estate; an executed trust, &c.
It is opposed to executory.
2. An executed contract is one which has been fulfilled; as, where the
buyer has paid thrice of the: thing-purchased by him. See Agreement.
3. An executed estate is when there is vested in the grantee a present
and immediate right of present or future enjoyment; and in another sense, the
term applies to the time of enjoyment; and in that sense, an estate is said to
be executed, when it confers a present right of present enjoyment. When the
right of enjoyment in possession is to arise at a future period, only, the
estate is executed that is, it is merely vested in point of interest: when the
right of immediate enjoyment is annexed to the estate, then only is the estate
vested in possession. 1 Prest. on Est. 62.
4. Trusts executed are, when by deed or will, lands are conveyed, or
devised, in terms or in effect , to and for the use of one person or several
persons, in trust for others, without any direction that the trustees shall
make any farther conveyance; so that it does not appear that the author of the
trusts had a view to a future instrument for accomplishing his intention.
Prest. on Est.188.
EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45,
in the following connexion: Et...precipiatur vice comiti quod scire faciat
parti... quod sit ad certum diem ostensura si quid sciat dicere quare
hujustnodi irrotulata vel in fine contenta executionem habere non debeant. This
statute is the origin of the scire facias post annum et diem quare executionem
non, etc. To a plea in bar to such a writ, the defendant should conclude that
the plaintiff ought not to have or maintain his aforesaid execution thereof
against him, which is called the executio non, as in other cases by actio non.
(q. v.) 10 Mod. 112; Yelv. 218.
EXECUTION, contracts. The accomplishment of a thing; as the
execution of a bond and warrant of attorney, which is the signing, sealing, and
delivery of the same.
EXECUTION, crim. law. The putting a convict to death, agreeably
to law, in pursuance of his sentence.
EXECUTION, practice. The act of carrying into effect the final
judgment of a court, or other jurisdiction. The writ which authorizes the
officer so to carry into effect such judgment is also called an execution.
2. A distinction has been made between an execution which is used to
make the money due on a judgment out of the property of the defendant, and
which is called a final execution; and one which tends to an end but is not
absolutely final, as a capias ad satisfaciendum, by virtue of which the body of
the defendant is taken, to the intent that the plaintiff shall be satisfied his
debt, &c., the imprisonment not being absolute, but until he shall satisfy
the same; this is called an execution quousque. 6 Co. 87.
3. Executions are either to recover specific things, or money. 1. Of the
first class are the writs of habere facias seisinam.; (q. v.) habere facias
possessionem; (q. v.) retorno habendo; (q. v.) distringas. (q. v.) 2.
Executions for the recovery of money are those which issue against the body of
the defendant, as the capias ad satisfaciendum, (q. v.); an attachment, (q.
v.); those which issue against his goods and chattels; namely, the fieri
facias, (q. v.); the, venditioni exponas, (q. v.); those which issue against
his lands, the levari facias; (q. v.) the liberari facias; the elegit. (q. v.)
Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h. t.; Com.
Dig. h. t.; the various Digests, h. t.; Tidd's Pr. Index, h. t.; 3 Bouv. Inst.
n. 3365, et seq. Courts will at any time grant leave to amend an execution so
as to make it conformable to the judgment on which it was issued. 1 Serg. &
R. 98. A writ of error lies on an award of execution. 5 Rep. 32, a; 1 Rawle,
Rep. 47, 48; Writ of Bxecution;
EXECUTION PAREE. By the term execution paree, which is used in
Louisiana, is meant a right founded on an authentic act; that is, and passed
before a notary, by which the creditor may immediately, without citation or
summons, seize and cause to be sold, the property of his debtor, out of the
proceeds of which to receive his payment. It imports a confession of judgment,
and is not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6 Toull.
n. 208; 7 Toull. 99.
EXECUTIONER. The name given to him who puts criminals to death,
according to their sentence; a hangman.
2. In the United States, executions are so rare that there are no
executioners by profession. It is the duty of the sheriff or marshal to perform
this office, or to procure a deputy to do it for him.
EXECUTIVE, government. That power in the government which causes
the laws to be executed and obeyed: it is usually. confided to the hands of the
chief magistrate; the president of the United States is invested with this
authority under the national government; and the governor of each state has the
executive power in his hands.
2. The officer in whom is vested the executive power is also called the
3. The Constitution of the United States directs that "the executive
power shall be vested in a president of the United States of America." Art. 2,
s. 1. Vide Story, Const. B. 3, c. 36.
EXECUTOR, trusts. The word executor, taken in its largest sense,
has several accep tations. 1. Executor dativus, who is one called an
administrator to an intestate. 2. Executor testamentarius, or one appointed to
the office by the last will of a testator, and this is what is usually meant by
2. In the civil law, the person who is appointed to perform the duties
of an executor as to goods, is called haeres testamentarius; the term executor,
it is said, is a barbarism unknown to that law. 3 Atk. 304.
3. An executor, as the term is at present accepted, is the person to
whom the execution of a last will and testament of personal estate is , by the
testator's appointment, confided, and who has accepted of the same. 2 Bl. Com.
503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl.
4. Generally speaking, all persons who are capable of making wills may
be executors, and some others beside, as infants and married women. 2 Bl. Corn.
5. An executor is absolute or qualified; his appointment is absolute
when he is constituted certainly, immediately, and without restriction in
regard to the testator's effects, or limitation in point of time. It may be
qualified by limitation as to the time or place wherein, or the subject matters
whereon, the office is to be exercised; or the creation of the office may be
conditional. It may be qualified. 1st. By limitations in point of time, for the
time may be limited when the person appointed shall begin, or when he shall
cease to be executor; as if a man be appointed executor upon the marriage of
testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The appointment may be
limited to a place; as, if one be appointed executor of all the testator's
goods in the state of Pennsylvania. 3. The power of the executor may be limited
as to the subject matter upon which if is to be exercised; as, when a testator
appoints. A the executor of his goods and chattels in possession; B, of his
choses in action. One may be appointed executor of one thing, only, as of a
particular claim or debt due by bond, and the like. Off. Ex. 29; 3 Phillim.
424. But although a testator may thus appoint separate executors of distinct
parts of his property, and may divide their authority, yet quoad the creditors
of the testator they are all executors, and act as one executor, and may be
sued as one executor. Cro. Car. 293. 4. The appointment may be conditional, and
the condition may be either precedent or subsequent. Godolph. Orph. Leg. pt. 2,
c. 2, s. 1; Off. Ex. 23. 6. An executor derives his interest in the estate of
the deceased entirely from the will, and it vests in him from the moment of the
testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. &
A. 745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the
personalty by appointment, but nothing in the lands of the testator, except by
devise. He can touch nothing which was not personal at the testator's decease,
except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec. 93. Still
his interest in the goods of the deceased is not that absolute, proper and
ordinary interest, which every one has in his own proper goods. He is a mere
trustee to apply the goods for such purposes as are sanctioned by law. 4 T. R.
645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the testator, and
therefore may sue and recover all the claims he had at the time of his death
and may be sued for all debts due by him. 1 Will. Ex. 508, et seq. By the
common law, however, such debts as were not due by some writing could not be
recovered against the executors of a deceased debtor. The remedy was only in
conscience or by a quo minus in the exchequer. Afterwards an action on the case
in banco regis was given. Crom t. Jurisdic. 66, b; Plowd. Com. 183: 11 H. VII.
7. The following are the principal duties of an executor: 1. Within a
convenient time after the testator's death, to collect the goods of the
deceased, provided he can do so peaceably; when he is resisted, he must apply
to the law for redress.
8. - 2. To bury the deceased in a manner suitable to the estate he
leaves behind him; and when there is just reason to believe he died insolvent,
he is not warranted in expending more in funeral expenses (q. v.) than is
absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204
14 Serg. & Rawle, 64.
9. - 3. The executor should prove the will in the proper office.
10. - 4. He should make an inventory (q. v.) of the goods of the
intestate, which should be filed in the office.
11. - 5. He should ascertain the debts and credits of the estate, and
endeavor to collect all claims with as little delay as possible, consistently
with the interest of the estate.
12. - 6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
13. - 7. He should reduce the whole of the goods, not specifically
bequeathed into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with his own,
or he may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an account
within a year.
16. - 10. Pay the debts and legacies in the order required by law.
17. Co-executors, however numerous, are considered, in law, as an
individual person, and; consequently, the acts of any one of them, in respect
of the administration of the assets, are deemed, generally, the acts of all.
Bac. Ab. Executor, D; Touch. 484; for they have all a joint and entire
authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig.
Administration, B 12. On the death of one or more of several joint executors,
their rights and powers survive to the survivors.
18. When there are several executors and all die, the power is in common
transferred to the executor of the last surviving executor, so that he is
executor of the first testator; and the law is the same when a sole executor
dies leaving an executor, the rights are vested in the latter. This rule has
been changed, in Pennsylvania, and, perhaps, some other states, by legislative
provision; there, in such case, administration cum testamento annexo must be
obtained, the right does not survive to the executor of the executor. Act of
Pennsylvania, of March 15 1832. s. 19. In general, executors are not
responsible for each other, and they have a right to settle separate accounts.
See Joint, Executors.
19. Executors may be classed into general and special; instituted and
substituted; rightful and executor de son tort; and executor to the tenor.
20. A general executor is one who is appointed to administer the whole
estate, without any limit of time or place, or of the subject-matter.
21. A special executor is one. who is appointed or constituted to
administer either a part of the estate, or the whole for a limited time, or
only in a particular place.
22. An instituted executor is one who is appointed by the testator
without any condition, and who has the first right of acting when there are
substituted executors. An example will show the difference between an
instituted and substituted executor: suppose a man makes his son his executor,
but if he will not act, he appoints his brother, and if neither will act, his
cousin; here the son is the instituted executor, in the first degree, the
brother is said to be substituted in the second degree, and the cousin in the
third degree, and so on. See Heir, instituted, and Swinb. pt. 4, s. 19, pl.
23. A substituted executor is a person appointed executor, if another
person who has been appointed refuses to act.
24. A rightful executor is one lawfully appointed by the testator, by
his will. Deriving his authority from the will, he may do most acts, before he
obtains letters testamentary, but he must be possessed of them before. he can
declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex. 173.
25. An executor de son tort, or of his own wrong, is one, who, without
lawful authority, undertakes to act. as executor of a person deceased. To make
fin executor de son tort, the act of the party must be, 1. Unlawful. 2. By
assertingownership, as taking goods or cancelling a bond, and not committing a
mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done before probate
of will, or granting letters of administration. 1 Salk. 313. One may be
executor de son tort when acting under a forged will, which has been set aside.
3 T. R. 125 . An executor de son tort. The law on this head seems to have been
borrowed from the civil law doctrine of pro hoerede gestio. See Heinnec. Antiq.
Syntagma, lib. 2, tit., 17, §16, p. 468. He is, in general, held
responsible for all his acts, when he does anything which might prejudice the
estate, and receives no, advantage whatever in consequence of his assuming the
office. He cannot sue a debtor of the estate, but may be sued generally as
executor. See a good reading on the liabilities of executors de son tort, in:
Godolph. Orph. Legacy, 91, 93, and 10 Wentw. Pl. 378, for forms of declaring;
also, 5 Co. Rep. 50 31 a; Yelv. 137; 1 Brownlow, 103; Salk. 28; Ham. Parties,
273; Imp. Mod. Pl. 94. As to what acts will make a person liable as executor de
son tort, see Godolph. O ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac.
Ab. Executor, &c., B 3; 11 Vin. Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48;
Com. Dig. Administration C 3 Ham. on Part. 146 to 156; 8 John. R. 426; 7 John.
R. 161; 4 Mass. 654; 3 Penna. R. 129; 15 Serg. & Rawle, 39.
26. - 2. The ussurpation of an office or character cannot confer the
rights and privileges of it, although it may charge the usurper with the duties
and obligations annexed to it. On this principle an executor de son tort is an
executor only for the purpose of being sued, not for the purpose, of suing. In
point of form, he is sued as if he were a rightful executor. He is not
denominated in the declaration executor (de son tort) of his own wrong. It
would be improper to allege that the deceased person with whose estate he has
intermeddled died intestate. Nor can he be made a co-defendant with a rightful
executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190, note; Com. Dig.
Abatement, F 10. If he take out letters of administration, he is still liable
to be sued as executor, and in general, it is better to sue him as executor
than as administrator. Godolph. 0. Leg. 93, 94, 95, §§2, 3.
27. An executor to the tenor. This phrase is ased in the ecclesiastical
law, to denote a person who is not directly appointed by the will an executor,
but who is charged with the duties which appertain to one; as, "I appoint A B
to discharge all lawful demands against my will." 3 Phill. 116; 1 Eccl. Rep.
374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide. generally, Bouv. Inst.
Index, h. t.; 11 Vin. Ab. h. t.; Bac. Ab. h. t.; Rolle, Ab. h. t.; Nelson's Ab.
h. t.; Dane's Ab. Index, h. t.; Com. Dig. Administration; 1 Supp. to Ves. jr.
8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C.
L. Rep. 185; 10 East, 295; 2 Phil. Ev. 289; 1 Rop. Leg.' 114; American Digests,
h. t.; Swinburne, Williams, Lovelass, and Roberts' several treatises on the law
of Executors; Off. Ex. per totum; Chit. Pr. Index; h. t. For the various pleas
that may be pleaded by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378;
Cowp. 292. For the origin and progress of the law in relation to executors, the
reader is referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par
Delauriere, verbo Executeurs Testamentaires, and the same author on art. 297,
of the Custom of Paris; Poth. Des Donations Testamen taires.
EXECUTORY. Whatever may be executed; as an executory sentence or
judgment, an executory contract.
EXECUTORY DEVISE, estates. An executory devise is a limitation
by will of a future contingent interest in lands, contrary to the rules of
limitation of contingent estate is in conveyances at law. When the limitation
by will does not depart from those rules prescribed for the government of
contingent remainders, it is, in that case, a contingent remainder, and not an
executory devise. 4 Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in three
material points. 1. It needs no particular estate to precede and support it;
for example, a devise to A B, upon his marriage. 2. A fee may be limited after
a fee, as in the case of a devise of land to C D, in fee, and if he dies
without issue, or before the age of twenty-one, then to E F, in fee. 3. A term
for years may be limited over after a life estate created in the same. 2 Bl.
Com. 172, 173.
3. To prevent perpetuities, a rule has been adopted that the contingency
must happen during the time of a life or lives in being and twenty-one years
after, and the months allowed for gestation in order to reach beyond the
minority of a person not in esse at the time of making the executory devise. 3
P. Wms. 258; 7 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456; 1 Gilm. 194; 2 Hayw.
4. There are several kinds of executory devises; two relative to real
estate, and one in relation to personal estate.
5. - 1. When the devisor parts with his whole estate, but upon some
contingency, qualifies the disposition of it, and limits an estate on that
contingency. For example, when the testator devises to Peter for life,
remainder to Paul, in fee, provided that if James should within three months
after the death of Peter pay one hundred dollars to Paul, then to James in fee;
this is an executory devise to James, and if he dies during the life of Peter,
his heir may perform the condition. 10 Mod. 419; Prec. in Ch. 486; 2 Binn. 532;
5 Binn. 252; 7 Cranch, 456; 6 Munf. 187; 1 Desaus. 137, 183; 4 Id. 340, 459; 5
6. - 2. When the testator gives a future interest to arise upon a
contingency, but does not part with the fee in the meantime; as in the case of
a devise of the estate to the heirs of John after the death of John; or a
devise to John in fee, to take effect six months after the testator's death; or
a devise to the daughter of John, who shall marry Robert within fifteen, years.
T. Raym. 82; 1 Salk. 226; 1 Lutw. 798.
7. - 3. The executory bequest of a chattel interest is good, even though
the ulterior legatee be not at the time in esse, and chattels so limited are
protected from the demands of creditors beyond the life of the first taker, who
cannot pledge them, nor dispose of them beyond his own life interest in them. 2
Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4 Desaus.340; 1 Bay, 78.
But such a bequest, after an indefinite failure of issue, is bad. See 2 Serg.
& R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1 Tho. Co. Litt. 595-6,
515-16. Vide, Com. Dig. Estates by Devise., N 16; Fearne on Rem. 381; Cruise's
Dig. Index, h. t.; 4 Kent, Com. 357 to 381; 2 Hill. Ab. c. 43, p. 533.
EXECUTORY PROCESS, via executoria. In Louisiana, this is a
process which can be resorted to only in two. cases, namely: 1. When the
creditor's right arises-from an act importing a confession of judgment, and
which contains a privilege or mortgage in his favor. 2. When the creditor
demands the execution of a judgment which has been rendered by a tribunal
different from that within whose jurisdiction the execution is sought. Code of
Practice, art. 732.
EXECUTORY TRUST. A trust is said to be executory where some
further act is requisite to be done by the author of the trust himself or by
the trustees, to give it its full, effect; as, in the case of marriage
articles; or, as in the case of a will, where, property is vested in trustees
in trust to settle or convey.; for, it is apparent in both of these cases, a
further act, namely, a settlement or a conveyance, is contemplated.
2. The difference between an executed and an executory trust, is this,
that courts of equity in cases of executed trusts will construe the limitations
in the same manner as similar legal limit-ations. White's L. C. in Eq. 18. But,
in cases of executory trusts, a court of equity is not, as in the case of
executed trusts, bound to construe technical expressions with legal strictness,
but will mould the trusts according to the intent of the creator of such trusts
White's L. C. Eq. 18.
3. When a voluntary trust is executory, and not executed, if it could
not be enforced at law, because it is a defective conveyance, it is not helped
in equity, in favor of a volunteer. 4 John. Ch. 498, 500; 4 Paige, 305; 1 Dev.
Eq. R. 93.
4. But where the trust, though voluntary, has been executed in part, it
will be sustained or enforced, in equity. 1 John. Ch. R. 329; 7 Penn. St. R.
175, 178; White's L. C. in Eq. *176; 18 Ves. 140; 1 Keen's R. 551; 6 Ves. 656;
3 Beav. 238.
EXECUTRIX, A woman who has been appointed by. will to execute
such will or testament. See Executor.
EXEMPLIFICATION, evidence. A perfect copy of a record, or office
book lawfull kept, so far as relates to the matter in question. 3 Bouv. Inst.
n. 3107. Vide, generally, 1 Stark. Ev. 151; 1 Phil. Ev. 307; 7 Cranch, 481; 3
Wheat. 234; 10 Wheat. 469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 John.
Cas. 238. As to the mode of authenticating records of other states, see
articles Authentication, and Evidence.
EXEMPTION. A privilege which dispenses with the general rule;
for example, in Pennsylvania, and perhaps in all the other staies, clergymen
are exempt from serving on juries. Exemptions are generally allowed, not for
the benefit of the individual, but for some public advantage.
EXEMPTS. Persons who are not bound by law, but excused from the
performance of duties imposed upon others.
2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S. 252, it is
provided, §2. That the vice-president of the United States the officers,
judicial and executive, of the government of the United States; the members of
both houses of congress, and their respective officers; all custom-house
officers, with their clerks; all post officers, and stage drivers, who are
employed in the care and conveyance of the mail of the post office of the
United States; all ferrymen employed at any ferry on the post road; all
inspectors of exports; all pilots; all mariners, actually employed in the sea
service of any citizen or merchant within the United States; and all persons
who now are, or may hereafter be, exempted by the laws of the respective
states, Shall be, and are hereby, exempted from militia duty, notwithstanding
their being above the age of eighteen, and under the age of forty-five
EXEQUATUR, French law. This Latin word was, in the ancient
practice, placed at the bottom of a judgment emanating from another tribunal,
and was a permission and authority to the officer to execute it within the
jurisdiction of the judge who put it below the judgment.
2. We have something of the same kind in our practice. When a warrant
for the arrest of a criminal is issued by a justice of the peace of one county,
and he flies into another, a justice of the latter county may endorse the
warrant and then the ministerial officer may execute it in such county. This is
called backing a warrant.
EXEQUATUR, internat. law. A declaration made by the executive of
a government near to which a consul has been nominated and appointed , after
such nomination and appointment has been notified, addressed to the people, in
which is recited the appointment of the foreign state, and that the executive
having approved of the consul as such, commands all the citizens to receive,
countenance, and, as there may be occasion, favorably assist the consul in the
exercise of his place, giving and allowing him all the privileges, immunities,
and advantages, thereto belonging. 3 Chit. Com. Law, 56; 3 Maule & Selw.
290; 5 Pardes. 1445.
EXERCITOR. A term in the civil law, to denote the person who
fits out, and equips a vessel, whether he be the absolute or qualified owner,
or even a mere agent. Emer. on Mar. Loans, c. 1, s. 1.
2. In English, we generally use the word "ship's hushand," but exercitor
is generally used to designate and distinguish from among several part owners
of a ship, the one who has the immediate care an management of her. Hall on
Mar. Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; Vicat, Vocab.;
EXHEREDATION, civil law. The act by which a forced heir is
deprived of his legitimate or legal portion which the law gives him;
disinherison. (q. v.)
EXHIBIT, practice. Where a paper or other writing is on motion,
or on other occasion, proved; or if an affidavit to which the paper writing is
annexed, refer to it, it is usual to mark the same with a capital letter, and
to add, " This paper writing marked with the letter A, was shown to the
deponent at the time of his being sworn by me, and is the writing by him
referred to in the affidavit annexed hereto." Such paper or other writing, with
this attestation, signed by the judge or other person before whom the affidavit
shall have been sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410;
Gresl. Eq. Ev. 98.
TO EXHIBIT. To produce a thing publicly, so that it may be taken
possession of, or seized. Dig. 10, 4, 2. To exhibit means also to file of
record; as, it is the practice in England in personal actions, when an officer
or prisoner of the king's bench is defendant, to proceed against such defendant
in the court in which he is an officer, by exhibiting, that is, filing a bill
against him. Stepb. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical language, to.
exhibit signifies to ad minist er, to cause a thing to be taken by a patient.
Chit. bled. Jur. 9.
EXHIBlTANT. One who exhibits any thing; one who is complainant
in articles of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124.
EXHIBITION, Scotch law. An action for compelling the production
of writings. In Pennsylvania, a party possessing writings is compelled, to
produce them on proper notice being given, in default of which judgment is
rendered against him.
EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course
of proceedings to out lawry, deriving its name and application from the
mandatory words found therein, signifying, "that you cause to be exacted or
required; and it is that proceeding in an outlawry which, with the writ of
proclamation, issued at the same time, immediately precedes the writ of capias
utlagatum. 2 Virg. Cas. 244.
EXIGIBLE. That which may be exacted demandable; requirable.
EXILE, civil law. The: interdiction of all places except one in
which the party is foreed to make his residence.
2. This punishment did not deprive the sufferer of his right of
citizenship or of his property, unless the exile were perpetual, in which case
confiscation not unfrequently was a part of the sentence. Exile was temporary
or perpetual. Dig. 48, 22, 4; Code, 10, 59, 2. Exile differs from deportation,
(q. v.) and relegation. (q. v.) Vide, 2 Lev. 191; Co. Litt. 133, a.
EXILIUM. By this term is understood that kind of waste which
either drove away the inhabitants into a species of exile, or had a tendency to
do so; as the prostrating or extirpating of trees in an orchard or avenue, or
about any house. Bac. Ab. Waste, A; Bract. lib. 4, c. 18, s. 13; 1 Reeves'
Hist. Law, 386.
EXITUS. Issue,, child, or offspring; rents or profits of land.
Cowell, h. v. In pleading, it is the issue, or the end, terminaion, or
conclusion of the pleadings, and is so called, because an issue brings the
pleadngs to a close. 3 Bl. Com. 314.
EXIGENDARY, Eng. law. An officerwho makes out exigents.
EXOINE, French law. An act or instrument in writing, which
contains the reasons why a party in a civil suit, or a person accused, who has
been summoned, agreeably to the requisitions of a decree, does not appear.
Poth. Proced. Crim. s. 3, art. 3. Vide Essoin.
EXONERATION. The taking off a burden or duty.
2. It is a rule in the distribution of an intestate's estate that the
debts which he himself contracted, and for which be mortgaged his land as
security, shall be paid out of the personal estate in exoneration of the
3. But when the real estate is charged with the payment of a mortgage at
the time the intestate buys it, and the purchase is made subject to it, the
personal. is not in that case to be applied, in exoneration of the real estate.
2 Pow. Mortg. 780; 5 Hayw. 57; 3 Johns. Ch. R. 229.
4. But the rule for exonerating the real estate out of the personal,
does not apply against specific or pecuniary legatees, nor the widow's right to
paraphernalia, and with reason not against the interest of creditors. 2 Ves.
jr. 64; 1 P. Wms. 693; Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow. Mortg.
Index, h. t.
EXONERATUR, practice. A short note entered on a bail piece, that
the bail is exonerated or discharged in consequence of having fulfilled the
condition of his obligation, made by order of the court or of a judge upon a
proper cause being shown.
2. A surrender is the most usual cause; but an exoneratur may be entered
in other cases, as in case of death of the defendant, or his bankruptcy. 1
Arch. Pr. 280, 281, 282; Tidd's Pr. 240.
EXPATRIATION. The voluntary act of abandoning one's country and
becoming the citizen or subject of another.
2. Citizens of the United States have the right to expatriate themselves
until restrained by congress; but it seems that a citizen cannot renounce his
allegiance to the United States without the permission of government, to be
declared by law. To be legal, the expatriation must be for a purpose which is
not unlawful, nor in fraud of the duties of the emigrant at home.
3. A citizen may acquire in a foreign country commercial privileges
attached to his domicil, and be exempted from the operation of commercial acts
embracing only persons resident in the United States or under its protection. 2
Cranch, 120. Vide Serg. Const. Law, 318, 2d ed; 2 Kent, Com. 36; Grotius, B. 2,
c. 5, s. 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, c. 19, s. 218, 223,
224, 225 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7 Wheat. 342; 1 Pet. C. C. R.
161; 4 Hall's Law Journ. 461; Bracken. Law Misc. 409; 9 Mass. R. 461. For the
doctrine of the English courts on this subject, see 1 Barton's Elem.
Conveyancing, 31, note; Vaugh, Rep. 227, 281, 282, 291; 7 Co. Rep. 16 Dyer, 2,
224, 298 b, 300 b; 2 P. Wms. 124; 1 Hale, P. C. 68; 1 Wood. 382.
EXPECTANCY, estates. Having a relation to or dependence upon
2. Estates are of two sorts, either in possession, sometimes called
estates executed; or in expectancy, which are executory. Expectancies are,
first, created by the parties, called a remainder; or by act of law, called a
3. A bargain in relation to an expectancy is, in general, considered
invalid. 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C. C. 10; Jer. Eq. Jur.
EXPECTANT. Having relation to, or depending upon something; this
word is frequently used in connexion with fee, as fee expectant.
EXPECTATION. That which may be expected, although contingent. In
the doctrine of life annuities, that share or number of the years of human life
which a person of a given age may expect to live, upon an equality of
2. In general, the heir apparent will be relieved from a contract made
in relation to his expectancy. See Post Obit.
EXPENSAE LITIS. Expenses of the suit; the costs which are
generally allowed to the successful party.
EXPERTS. From the Latin experti,which signifies, instructed by
experience. Persons who are selected by the courts or the parties in a cause on
account of their knowledge or skill, to examine, estimate, and ascertain
things, and make a report of their opinions. Merl. Repert. mot Expert; 2 Lois
des Batimens, 253; 2 N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S.
& R. 336; Ray. Med. Jur. Prel. Views, §29; 3 Bouv. Inst. n. 3208.
EXPILATION, civil law. The crime of abstracting the goods of a
2. This is said not to be a theft, because the property no longer
belongs to the deceased, nor to the heir before he has taken possession. In the
common law, the grant of letters testamentary, or letters of administration,
relate back to the time of the death of the testator or intestate, so that the
property of the estate is vested in the executor or administrator from that
EXPIRATION. Cessation; end. As, the expiration of, a lease, of a
contract, or statute.
2. In general, the expiration of a contract puts an end to all the
engagements of the parties, except to those which arise from the
non-fulfilinent of obligations created during its existence. For example, the
expiration of a partnership so dissolves it, that the parties cannot in general
create any new liability, but it still subsists, to enable the parties to
fulfil engagements in which the partners have engaged, or to compel others to
perform their obligations towards them. See Dissolution; Contracts.
3. When a statute is limited as to time, it expires by mere lapse of
time, and then it has no force whatever; and, if such a statute repealed or
supplied a former statute, the first statute is, i so facto, revived by the
expiration of the repealing statute; 6 Whart. 294; 1 Bland, R. 664 unless it
appear that such was not the intention of the legislature. 3 East, 212 Bac. Ab.
EXPORTATION, commercial law. The act of sending goods and
merchandise from one country to another. 2 Mann. & Gran. 155; 3 Mann. &
2. In order to preserve equality among the states, in their commercial
relations, the constitution provides that " no tax or duty shall be laid on
articles exported from any state." Art. 1, s. 9. And to prevent a pernicipus
interference with the commerce of the nation, the 10th section of the 1st
article of the constitution contains the following prohibition: " No state
shall, without the consent of congress, lay any imposts or duties on imports or
exports, except what may be absolutely necessary for executing its inspection
laws; and the net produce of all duties and imposts, laid by any state on
imports or exports, shall be for the use of the treasury of the United States;
and all such laws shall be subject to the revision and control of the
congress." Vide 12 Wheat. 419; and the article Importation.
EXPOSE' A French word, sometimes applied to a written document,
containing the reasons or motives for doing a thing. The word occurs in
EXPOSITION DE PART, French law. The abandonment of a child,
unable to take care of itself, either in a public or private place.
2. If the child thus exposed should be killed in consequence of such
exposure; as, if it should be devoured by animals, the person thus exposing it
would be guilty of murder. Rose. Cr. Ev. 591.
EXPRESS. That which is made known, and not left to implication.
The opposite of implied. It is a rule, that when a matter or thing is
expressed, it ceases to be implied by law: expressum facit cessare tacitum. Co.
Litt. 183; 1 Bouv. Inst. n. 97.
EXPRESSION. The term or use of language employed to explain a
2. It is a general rule, that expressions shall be construed, when they
are capable of several significations, so as to give operation to the
agreement, act, or will, if it can be done; and an expression is always to be
understood in the sense most agreeable to the nature of the contract. Vide
Clause; Construction; Equivocal; Interpretation; Words.
EXPROMISSION, civil law. The act by which a creditor accepts a
new debtor, who becomes bound instead of the old, the latter being released. It
is a species of novation. (q. v.) 1 Bouv. Inst. n. 802. Vide Delegation.
EXPROMMISSOR, civil law. By this term is understood the person
who alone becomes bound for the debt of another, whether the latter were
obligated or not. He differs from a surety, who is bound together with his
principal. Dig. 12, 4, 4; Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37,
EXPULSION. The act of depriving a member of a body politic,
corporate, or of a society, of his right of membership therein, by the vote of
such body or society, for some violation of hi's. duties as such, or for some
offence which renders him unworthy of longer remaining a member of the
2. By the Constitution of the United States, art. 1, s. 5, §2, each
house may determine the rules of its proceedings, punish its members for
disorderly behaviour, and, with the concurrence of two-thirds' expel a member.
In the case of John Smith, a senator from Ohio, who was expelled from the
senate in 1807, the committee made a report which embraces the following
3. - 1. That the senate may expel a member for a high misdemeanor, such
as a conspiracy to commit treason. Its authority is not confined to an act done
in its presence.
4. - 2. That a previous conviction is, not requisite, in order to
authorize the senate to expel a member from their body, for a high: offence
against the United States.
5. - 3. That although a bill of indictment against a party for treason
and misdemeanor has been abandoned, because a previous indictment against the
principal party had terminated in an acquittal, owing to the inadmissibility of
the evidence upon that indictment, yet the senate may examine the evidence for
themselves, and if it be sufficient to satisfy their. minds that the party is
guilty of a high misdemeanor it is a sufficient ground of expulsion.
6. - 4. That the 6th and 6th articles of the amendments of the
Constitution of the United States, containing the general rights and privileges
of the citizen, as to criminal prosecutions, refer only to prosecutions at law,
and do not affect the jurisdiction of the senate as to expulsion.
7. - 5. That before a committee of the senate, appointed to report an
opinion relative to the honor and privileges of the senate, and the facts
respecting the conduct of the member implicated, such member is not entitied to
be heard in his defence by counsel, to have compulsory process for witnesses,
and to be confronted with his accusers. It is before the senate that the member
charged is entitled to be heard.
8. - 6. - In determining on expulsion, the senate is not bound by the
forms of judicial proceedings, or the rules of judicial evidence; nor, it
seems, is the same degree of proof essential which is required to convict of a
crime. The power of expulsion must, in its nature, be discretionary, and its
exercise of a more summary character. 1 Hall's Law Journ. 459, 465.
9. Corporations have the right of expulsion in certain cases, as such
power is necessary to the good order and government of corporate bodies; and
the cases in which the inherent power may be exercised are of three kinds. 1.
When an offence is committed which has no immediate relation to a member's
corporate duty, but is of so infamous a nature as renders him unfit for the,
society of honest men; such as the offences of perjury, forgery, and the like.
But before an expulsion is made for a cause of this kind, it is necessary that
there should be a previous conviction by a jury, according to the law of the
land. 2. When the offence is against his duty as a corporator, in which case he
may be expelled on trial and conviction before the corporation. 3. The third is
of a mixed nature, against the member's duty. as a corporator, and also
indictable by the law of the land. 2 Binn.448. See, also, 2 Burr., 536.
10. Members of what are called joint stock incorporated companies, or
indeed members of any corporation owning property, cannot, without express
authority in the charter, be expelled, and thus deprived of their interest in
the general fund. Ang. & Ames on Corp. 238. See; generally, Ang. & Ames
on Corp. ch. 11; Willcock, on Mun. Cor . 270; 1 Co. 99; 2 Bing. 293.; 5 Day
329; Sty. 478; 6 Conn. R. 532; 6 Serg. & Rawle, 469; 5 Binn. 486.
EXTENSION, comm. law. This term is applied among merchants to
signify an agreement made between a debtor and his creditors, by which the
latter, in order to enable the former, embarrassed in his circumstances, to
retrieve his standing, agree to wait for a definite length of time after their
several claims should become due and payable, before they will demand
2. Among the French, a similar agreement is known by the name of
atermoiement. Merl. Rep. mot Atermoiement.
EXTENT IN AID, English practice. An exchequer process, formerly
much used, and now liable to be abused; it is regulated by 57 Geo. III. o.
EXTENT IN CHIEF, English practice. An execution issuing out of
the exchequer at the suit 'of the crown. It is a mere "fiscal writ. See. West
on Extents; 2 Tidd. Index.
2. When land was extended at a valuation too low, there was no remedy at
common law but to pay the money. 15 H. VII. Nor yet in chancery, unless there
was fraud, because the extent was made by the oath of a jury, and deemed
reasonable according to the writ of extent for that cause: otherwise every
verdict might be examined in a court of chancery. Crompt. on. Jurisdic. 55
EXTENUATION. That which renders a crime or tort less heinous
than it would be without it: it is opposed to aggravation. (q. v. )
2. In general, extenuating circumstances go in mitigation of punishment
in criminal cases, or of damages in those of a civil nature. See Aggravation;
EXTERRITORIALITY. This term is used by French jurists to signify
the immunity of certain persons, who, although in the state, are not amenable
to its laws; foreign sovereigns, ambassadors, ministers plenipotentiary, and
ministers from a foreign power, are of this class. Foelix, Droit Intern. Prive,
liv. 2, tit. 2, c. 2, s. 4. See Ambassador; Conflict of Laws; Minister.
EXTINCTION OF A THING. When a thing which is the subject of a
contract has been destroyed, the contract is of course rescinded as, for
example, if Paul sell his horse Napoleon to Peter, and promises to deliver him
to the buyer in ten days, and in the mean time the horse dies, the contract is
rescinded, as it is impossible to deliver a thing which is not in esse; but if
Paul engage to deliver a horse to Peter in ten days, and, for the purpose of
fulfilling his contract, he buys a horse and it die, this is no cause for
rescinding the contract, because he can buy another and complete it afterwards.
When the subject of the contract is an individual, and not generally one of a
species, the contract may be rescinded; when it is one of a species which has
been destroyed, then, it may still be completed, and it will be enforced. Lec.
El. Dr. Rom. §1009.
EXTINGUISHMENT, contracts. The destruction of a right or
contract - the act by which a contract is made void.
2. Art extinguishment may be by matter of fact and by matter of law. 1.
It is by matter of fact either express, as when one receives satisfaction and
full payment of a debt, and the creditor releases the debtor 11 John. 513'; or
implied, as when a person hath a yearly rent out of, lands and becomes owner
either by descent or purchase, of the estate subject to the payment of the
rent, the latter is extinguished 3 Stew. 60; but the person must have as high
an estate in the land as in the rent, or the rent will not be extinct. Co.
Litt. 147. See Merger.
3. There are numerous cases where the claim is extinguished b operation
of law; for example, where two persons are jointly, but not severally liable,
for a simple contract debt, a judgment obtained against one is at common law an
extinguishment of the claim on the other debtor. Pet. C. C. 301; see 2 John.
213. Vide, generally, Bouv. Inst. Index, h. t.; 2 Root, 492; 3 Conn. 62; 1
Hamm. 187; 11 John. 513; 4 Conn. 428; 6 Conn. 373; 1 Halst. 190 4 N. H. Rep.
251 Co. Litt. 147 b; 1 Roll. Ab. 933 7 Vin. Ab. 367; 11 Vin. Ab. 461; 18 Vin.
Ab. 493 to 515 3 Nels. Ab. 818; 14 Serg. & Rawle, 209; Bac. Ab. h. t.; 5
Whart. R. 541. Vide Discharge of a Debt.
EXTORSIVELY. A technical word used in indictments for extortion.
In North Carolina, it seems, the crime of extortion may be charged without
using this word. 1 Hayw. R. 406.
EXTORTION, crimes. In a large sense it, signifies any
oppression, under color of right: but in a more strict sense it means the
unlawful taking by any officer, by color of his office, of any money or thing
of value that is not due to him, or more than is due, or before it is due. 4
Bl. Com. 141; 1 Hawk. P. C. c. 68, s. 1; 1 Russ. Cr. *144. To constitute
extortion, there must be the receipt of money or something of value; the taking
a promissory note, which is void, is. not sufficient to make an extortion. 2
Mass. R. 523; see Bac. Ab. h. t.; Co. Litt. 168. It is extortion and oppression
for an officer to take money for the performance of his duty, even though it be
in the exercise of a discretionary power. 2 Burr. 927. It differs from
exaction. (q. v.) See 6 Cowen, R. 661; 1 Caines, R. 130; 13 S. & R. 426 1
Yeates, 71; 1 South. 324; 3 Penna. R. 183; 7 Pick. 279; 1 Pick. 171.
EXTRA-DOTAL PROPERTY. In Louisiana this term is used to
designate that property which forms no part of the dowry of a woman, and which
is also called paraphernal property. Civ. Co. Lo. art. 2315. Vide Dotal
EXTRA VIAM. Out of the way. When, in an action of trespass, the
defendant pleads a right of way, the defendant may reply extra viam, that the
trespass was committed beyond the way, or make a new assignment. 16 East, 343,
EXTRACT. A part of a writing. In general this is not evidence,
because the whole of the writing may explain the part extracted, so as to give
it a different sense; but sometimes extracts from public books are evidence, as
the extracts from the registers of births, marriages and burials, kept
according to law, when the whole of the matter has been extracted which relates
to the cause or matter in issue.
EXTRADITION, civil law. The act of sending, by authority of law,
a person accused of a crime to a foreign jurisdiction where it was committed,
in' order that he may be tried there. Merl. Rep. h. t.
2. By the constitution and laws of the United States, fugitives from
justice (q. v.) may be demanded by the executive of the one state where the
crime has been committed from that of another where the accused is. Const.
United States, art. 4, s. 2, 2 3 Story, Com. Const. U. S. §1801, et
3. The government of the United States is bound by some treaty
stipulation's to surrender criminals who take refuge within the country, but
independently of such conventions, it is questionable whether criminals can be
surrendered. 1 Kent. Com. 36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg.
& Rawle, 125; 22 Amer. Jur. 330; Story's Confl. of Laws, p. 520; Wheat.
Intern. Law, 111.
4. As to when the extradition or delivery of the supposed criminal is
complete is not very certain. A case occurred in, France of a Mr. Cassado, a
Spaniard, who had taken refuge in Bayonne. Upon an application made to the
French government, he was delivered to the Spanish consul who had authority to
take him to Spain, and while in the act of removing him with the assistance of
French officers, a creditor obtained an execution against his person, and made
an attempt to execute it and retain Cassado in France, but the council of
state, (conseil d'etat) on appeal, decided that the courts could not interfere,
and directed Cassado to be delivered to the Spanish authorities. Morrin, Dict.
du Dr. Crim. h.v.
EXTRAJUDICIAL. That which does not belong to the judge or his
jurisdiction, notwithstanding which he takes. cognizance of it. Extrajudicial
judgments and acts are absolutely void. Vide Coram non judice, and Merl.
Repert. mots Exces de Pouvoir.
EXTRAVAGANTES, canon law. This is the name given to the
constitutions of the popes posterior to the Clementines; they are thus called
quasi vagantes extra corpus juris, to express that they were out of the
canonical law, which at first contained only the decrees of Gratian; afterwards
the decretals of Gregory IX., the sexte of Boniface. VIII., the Clementines,
and at last the extravagantes were added to it. There are the extravagantes of
John XXII., and the common 'extravagantes.' The first contain twenty epistles,
decretals or constitutions of that pope, divided under fifteen titles, without
any subdivision into books. The others are epistles, decretals or constitutions
of the popes who occupied the holy see, either before or after John XXII. they
are divided into books like the decretals.
EXTREMIS. When a person is sick beyond the hope of recovery, and
near death, he is said to be in extremism.
2. A will made in this condition, if made without undue influence, by a
person of sound mind, is valid.
3. The declarations of persons in extremis, when made with a full
consciousness of approaching death, ate admissible in evidence when the death
of the person making them is the subject of the charge, and the circumstances
of the death the subject of such declarations. 2 B. & C. 605 S. C. 9 Eng.
C. L. Rep..196; and see 15 John. 286; 1 John. Rep. 159; 2 John. R. 31; 7 John.
95; 2 Car. Law. Repos. 102; 5 whart, R. 396-7.
EY. A watery place; water. Co. Litt 6.
EYE-WITNESS. One who saw the act or fact to which he testifies.
When an eye-witness testifies, and is a man of intelligence and integrity, much
reliance must be placed on his testimony, for he has the means of making known
EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2,
s. b; Bract. lib. 2, c. 2. See lsand.
EYRE. Vide Eire Justiciarii Itinerantes.