JACTITATION. OF MARRIAGE, Eng. eccl. law. The boasting by an
individual that he or she has married another, from which it may happen that
they will acquire the reputation of being married to each other.
2. The ecclesiastical courts may in such cases entertain a libel by the
party injured; and, on proof of the facts, enjoin the wrong-doer to perpetual
silence; and, as a punishment, make him pay the costs. 3 Bl. Com. 93; 2 Hagg.
Cons. R. 423 Id. 285; 2 Chit. Pr. 459.
JACTURA. The same as jettison. (q. v.) 1 Bell's Com. 586, 5th
JAIL. A prison; a place appointed by law for the detention of
prisoners. A jail is an inhabited dwelling-house within the statute of New
York, which makes the malicious burning of an inhabited dwelling-house to be
arson. 8 John. 115; see 4 Call, 109. Vide Gaol; Prison.
JEOFAILE. This is a law French phrase, which signifies, "I am
in an error; I have failed." There are certain statutes called statutes of
amendment and jeofails because, where a pleader perceives any slip in the form
of his proceedings, and acknowledges the error, (jeofaile,) he is at liberty by
those statutes to amend it. The amendment, however, is seldom made, but the
benefit is attained by the court's overlooking the exception. 3 Bl. Com. 407; 1
Saund. 228, n. 1; Doct. Pl. 287; Dane's Ab. h. t.
JEOPARDY. Peril, danger. 2. This is the meaning attached to this
word used in the act establishing and regulating the post office department.
The words of the act are, "or if, in effecting such robbery of the mail the
first time, the offender shall wound the person having the custody thereof, or
put his life in jeopardy by the use of dangerous weapons, such offender shall
suffer death." 3 Story's L. U. S. 1992. Vide Baldw. R. 93-95.
3. The constitution declares that no person shall "for the same offence,
be twice put in jeopardy of life and limb." The meaning of this is, that the
party shall, not be tried a second time for the same offence after he has once
been convicted or acquitted of the offence charged, by the verdict of a jury,
and judgment has passed thereon for or against him; but it does not mean that
he shall not be tried for the offence, if the jury have been discharged from
necessity or by consent, without giving any verdict; or, if having given a
verdict, judgement has been arrested upon it, or a new trial has been granted
in his favor; for, in such a case, his life and limb cannot judicially be said
to have been put in jeopardy. 4 Wash. C. C. R. 410; 9 Wheat. R. 579; 6 Serg.
& Rawle, 577; 3. Rawle, R. 498; 3 Story on the Const. §1781. Vide 2
Sumn. R. 19. This great privilege is secured by the common law. Hawk. P. C., B.
2, 35; 4 Bl. Com. 335.
4. This was the Roman law, from which it has been probably engrafted
upon the common law. Vide Merl. Rep. art. Non bis in idem. Qui de crimine
publico accusationem deductus est, says the Code, 9, 2, 9, ab alio super eodem
crimine deferri non potest. Vide article Non bis in idem.
JERGUER, Engl. law. An officer of the custom-house, who oversees
the waiters. Techn. Dict. h. t.
JETTISON, or JETSAM. The casting out of a vessel, from
necessity, a part of the lading; the thing cast out also bears the same name;
it differs from flotsam in this, that in the latter the goods float, while in
the former they sink, and remain under water; it differ; also from ligan. (q.
2. The jettson must be made for sufficient cause, and not from
groundless timidity. In must be made in a case of extremity, when the ship is
in danger of perishing by the fury of a storm, or is laboring upon rocks or
shallows, or is closely pursued by pirates or enemies.
3. If the residue of the cargo be saved by such sacrifice, the property
saved is bound to pay a: proportion of, the loss. In ascertaining such average.
loss, the goods lost and saved are both to be valued at the price they would
have brought at the place of delivery, on the ship's arrival there, freight,
duties and other charges being deducted. Marsh. Ins. 246; 3 Kent, Com. 185 to
187; Park. Ins., 123; Poth. Chartepartie, n. 108, et suiv; Boulay-Paty, Dr.
Com. tit. 13; Pardessus, Dr. Com. n. 734; 1 Ware's R. 9.
JEUX DE BOURSE, French law. This is a kind of gambling or
speculation, which consists of sales and purchase's, which bind neither of the
parties to deliver the things which are the object of the sale, and which are
settled by paying the difference in the value of the things sold between the
day of the sale, and that appointed for delivery of such things. 1 Pard. Dr.
Com. n. 162.
JEWS. See De Judaismo Statutum.
JOB. By this term is understood among workmen, the whole of a
thing which is to be done. In this sense it is employed in the Civil Code of
Louisiana, art. 2727; "to build by plot, or to work by the job," says that
article, "is to undertake a building for a certain stipulated price." See
Durant. du Contr. de Louage, liv. 8, t. 8, n. 248, 263; Poth. Contr. de Louage,
n. 392, 394 and Deviation.
JOBBER, commerce. One who buys end sells articles for others.
Stock jobbers are those who buy, and sell stocks for others; this term is also
applied to those who speculate in stocks on their own account.
JOCALIA. Jewels; this term was formerly more properly applied to
those ornaments which women, although married, call their own. When these
jocalia are not suitable to her degree, they are assets for the payment of
debts. 1 Roll. Ab. 911. Vide Paraphernalia.
JOINDER OF ACTIONS, practice. The putting two or more causes of
action in the same declaration.
2. It is a general rule, that in real actions there can never be but
one count. 8 Co. 86, 87; Bac. Ab. Action, C; Com. Dig. Action, G. A count in a
real, and a count in a mixed action, cannot be joined in the same declaration;
nor a count in a mixed action, and a count in a personal action; nor a count in
a mixed action with a count in another, as ejectment and trespass.
3. In mixed actions, there may be two counts in the same declaration;
for example, waste lies upon several leases, and ejectment upon several demises
and ousters. 8 Co. 87 b Poph. 24; Cro. Eliz. 290; Ow. 11. Strictly, however,
ejectment at common law, is a personal action, and a count in trespass for an
assault and battery, may be joined with it; for both sound in trespass, and the
same judgment is applicable to both.
4. In personal actions, the use of several counts in the same
declaration is quite common. Sometimes they are applied to distinct causes of
actions, as upon several promissory notes; but it more frequently happens that
the various counts introduced, do not really relate to different claims, but
are adopted merely as so many different forms of propounding the same demand.
The joinder in action depends on the form of action, rather than on the
subject-matter of it; in an action against a carrier, for example, if the
plaintiff declare in assumpsit, he cannot join a count in trover, as he may if
he declare against him in case. 1 T. R. 277 but see 2 Caines' R. 216; 3 East,
R. 70. The rule as to joinder is, that when the same plea may be pleaded, and
the same judgment given on all the counts of the declaration, or when the
counts are all of the same nature, and the same judgment is to be given upon
them all, though the pleas be different, as in the case of debt upon bond and
simple contract, they may be joined. 2 Saund. 117, c. When the same form of
action may be adopted, th may join as many causes of action as he may choose,
though he acquired the rights affected by different titles; but the rights of
the plaintiffs, and the liabilities of the defendant, must be in his own
character, or in his representative capacity, exclusively. A, plaintiff cannot
sue, therefore, for a cause of, action in his own right, and another cause in
his character as executor, and join them; nor can he sue the defendant for a
debt due by himself, and another due, by him as executor.
5. In criminal case s, different offences may be joined in the same
indictment, if of the same nature, but an indictment may be quashed, at the
discretion of the court, when the counts are joined in such a manner as will
confound the evidence. 1 Chit. Cr. Law, 253-255. In Pennsylvania, it has been
decided that when a defendant was indicted at one session of the court for a
conspiracy to cheat a third person, and at another session of the same court he
was indicted for another conspiracy to cheat another person, the two bills
might be tried by the same jury against the will of the defendant, provided he
was not thereby deprived of any material right, as the right to challenge;
whether he should be so tried or not seems to be a matter of discretion with
the court. 5 S. & R. 59 12 S. R. 69. Vide Separate Trial. Vide, generally,
2 Saund. 117, b. to 117, c.; Com. Dig. Action, G; 2 Vin. Ab. 38; Bac. Ab.
Actions in General, C; 13 John. R. 462; 10 John. R. 240; 11 John. R. 479; 1
John. R. 503; 3 Binn. 555; 1 Chit Pl. 196 to 205; Arch. Civ. Pl. 172 to 176;
Steph. Pl. Index, h. t. Dane's Ab. h. t.
JOINDER IN DEMURRER. When a demurrer is offered by one party,
the adverse party joins with him in demurrer, and the answer which he makes is
called a joinder in demurrer. Co. Litt. 71 b. But this is a mere formality.
JOINDER OF ISSUE, pleadings. The act by which the parties to a
cause arrive at that stage of it in their pleadings, that one asserts a fact to
be so, and the other denies it. For example, when one party denies the fact
pleaded by his antagonist, who has tendered the issue thus, "And this he prays
may be inquired of by the country," or, "And of this he puts himself upon the
country," the party denying the fact may immediately subjoin, "And the said A B
does the like;" when the issue is said to be joined.
JOINDER OF PARTIES TO ACTIONS. It is a rule in actions ex
contractu that all who have a legal interest in the contract, and no others,
must join in action founded on a breach of such contract; whether the parties
are too many or too few, it is equally fatal. 8 S. & R. 308: 4 Watts, 456;
1 Breese, 286; 6 Pick. 359. 6 Mass. 460; 2 Conn. 697; 6 Wend. 629; 2 N. &
M. 70; 1 Bailey, 13; 5 Verm. 116; 3 J. J. Marsh. 165; 16 John. 34; 19 John.
213; 2 Greenl. 117; 2 Penn. 817.
2. In actions ex contractu all obligors jointly and not severally
liable, and no others, must be made defendants. 1 Saund. 153, note 1; 1 Breese,
128; 11 John. 101; J. J. Marsh. 38; 2 John. 213.
3. In actions ex. delicto, when an injury is done to the property of
two or more joint owners, they must join in the action. 1 Saund. 291, g; 11
Pick. 269; 12 Pick. 120; 7 Mass. 135; 13 John. 286.
4. When a tort is of such a nature that it may be committed by several,
they may all be joined in an action ex delicto, or they may be sued severally.
But when the tort cannot be committed jointly, as, for example, slander, two or
more persons cannot be sued jointly, although they may have uttered the same
words. 6 John. 32. See, generally, 3 Bouv. Inst. n. 2648, et seq.
JOINT. United, not separate; as, joint action, or one which is
brought by several persons acting together; joint bond, a bond given by two or
JOINT CONTRACT. One in which the contractors are jointly bound
to perform the promise or obligation therein contained, or entitled to receive
the benefit of such promise or obligation.
2. It is a general rule that a joint contract survives, whatever may be
the beneficial interests of the parties under it; where a partner, covenantor,
or other person entitled, having a joint interest in a contract not running
with the land, dies, the right to sue survives in the other partner, &c. 1
Dall. 65, 248; Addis. on Contr. 285. And when the obligation or promise is to
perform something jointly by the obligor or promissors, and one dies, the
action must be brought against the survivor. Ham. on Part. 156.
3. When all the parties interested in a joint contract die, the action
must be brought by the executors or administrators of the last surviving,
obligee, against the executors or administrators of the last surviving obligor.
Addis. on Contr. 285. See Contracts; Parties to Actions; Co-obligor.
JOINT EXECUTORS. It is proposed to consider, 1. The interest
which they have in the estate of the deceased. 2. How far they are liable for
each other's acts. 3. The rights of the survivor.
2. - §1. Joint executors are considered in law as but one person,
representing the testator, and, therefore, the acts of any one of them, which
relate either to the delivery, gift, sale, payment, possession or release of
the testator's goods, are deemed, as regards the persons with whom they
contract, the acts of all. Bac. Abr. h. t.; 11 Vin. Abr. 358; Com. Dig.
Administration, B 12; 1 Dane's Abr. 583; 2 Litt. (Kentucky) R. 315; Godolph.
314; Dyer, 23, in marg. 16 Serg. & Rawle, 337. But an executor cannot,
without the knowledge of his co-executor, confess a judgment for a claim, part
of which was barred by the act of limitations, so as to bind the estate of the
testator. 6 Penn. St. Rep. 267.
3. - §2. As a general rule, it may be laid down that each,
executor is liable for his own wrong, or devastavit only, and not for that of
his colleague. He may be rendered liable, however, for the misplaced confidence
which he may have reposed in his coexecutor. As, if he signs a receipt for
money, in conjunction with another executor, and he receives no part of the
money, but agrees that the other, executor shall retain it, and apply it to his
own use, this is his own misapplication, for which he is responsible. 1 P. Wms.
241, n. 1; 1 Sch. & Lef. 341; 2 Sch. & Lef. 231; 7 East, R. 256; 11
John. R. 16; 11 Serg. & Rawle, 71; Hardr. 314; 5 Johns. Ch. R. 283; and see
2 Bro. C. C. 116; 3 Bro. C. C. 112; 2 Penn. R. 421; Fonb. Eq. B. 2, c. 7, s. 5,
4. - §3. Upon the death of one of several joint executors, the
right of administering the estate of the testator devolves upon the survivor. 3
Atk. 509 Com. Dig. Administration, B 12; Hamm. on Parties, 148.
5. In Pennsylvania, by legislative enactment, it is provided, "that
where testators may devise their estates to their executors to be sold, or
direct such executors to sell and convey such estates, or direct such real
estate to be sold, without naming, or declaring who shall sell the same, if one
or more of the executors die, it shall or may be lawful for the surviving
executor to bring actions for the recovery of the possession thereof, and
against trespassers thereon; to sell and "convey such real estate, or manage
the same for the benefit of the persons interested therein." Act of March 12,
1800, 3 Sm. L. 433.
JOINT STOCK BANKS. In England they are a species of quasi
corporations, or companies regulated by deeds of settlement; and, in this
respect, the stand in the same situation as other unincorporated bodies. But
they differ from the latter in this, that they are invested by certain statutes
with powers and privileges usually incident to corporations. These enactments
provide for the continuance of the partnership, notwithstanding a change of
partners. The death, bankruptcy, or the sale by a partner of his share, does
not affect the identity of the partnership; it, continues the same body, under
the same name, by virtue of the act of parliament, notwithstanding these
changes. 7 Geo. IV., c. 46, s. 9.
JOINT TENANTS, estates. Two or more persons to whom are granted
land's or tenements to hold in fee simple, fee tail, for life, for years, or at
will. 2 Black. Com. 179. The estate which they, thus hold is called an estate
in joint tenancy. Vide Estate in joint tenancy; Jus accrescendi; Survivor.
JOINT TRUSTEES. Two or more persons who are entrusted with
property for the benefit of one or more others.
2. Unlike joint executors, joint trustees cannot act separately, but
must join both in conveyances and receipts, for one cannot sell without the
others, or receive more of the consideration money, or be more a trustee than
his partner. The trust having been given to the whole, it requires their joint
act to do anything under it. They are not responsible for money received by
their co-trustees, if the receipt be given for the mere purposes of form. But
if receipts be given under circumstances purporting that, the money, though not
received by both, was under the control of both, such a receipt shall charge,
and the consent that the other shall misapply the money, particularly where he
has it in his power to secure it, renders him responsible. 11 Serg. &
Rawle, 71. See 1 Sch. & Lef. 341; 5 Johns. Ch. R. 283; Fonbl. Eq. B. 2, c.
7, s. 5; Bac. Abr. Uses and Trusts, K; 2 Bro. Ch. R. 116; 3 Bro. Ch. R. 112. In
the case of the Attorney General v. Randall, a different doctrine was held. Id.
JOINTRESS or JOINTURESS. A woman who has an estate settled on
her by her hushand, to hold during her life, if she survive him. Co. Litt.
JOINTURE, estates.. A competent livelihood of freehold for the
wife, of lands and tenements; to take effect in profit or possession, presently
after the death of the hushand, for the life of the wife at least.
2. Jointures are regulated by the statute of 27 Hen. VIII. o. 10,
commonly called the statute of uses.
3. To make a good jointure, the following circumstances must concur,
namely; 1. It must take effect, in possession or profit, immediately from the
death of the hushand. 2. It must be for the wife's life, or for some greater
estate. 3. It must be limited to the wife herself, and not to any other person
in trust for her. 4. It must be made in satisfaction for the wife's whole
dower, and not of part of it only. 5. The estate limited to the wife must be
expressed or averred to be, in satisfaction of her whole dower. 6. It must be
made before marriage. A jointure attended with all these circumstances is
binding on the widow, and is a complete bar to the claim of dower; or rather it
prevents its ever arising. But there are other. modes of limiting an estate to
a wife, which, Lord Coke says, are good jointures within the statute, provided
the wife accepts of them after the death of the hushand. She may, however,
reject them, and claim her dower. Cruise, Dig. tit. 7; 2 Bl. Com. 137; Perk. h.
t. In its more enlarged sense, a jointure signifies a joint estate, limited to
both hushand and. wife. 2 131. Com. 137. Vide 14 Vin. Ab. 540; Bac. Ab. h. t.;
2 Bouv. Inst. n. 1761, et seq.
JOUR. A French word, signifying day. It is used in our old law
books, as, tout jours, for ever. It is also frequently employed in the
composition of words, as, journal, a day book; journeyman, a man 'who works by
the day; journeys account. (q. v.)
JOURNAL, mar. law. The book kept on board of a ship or other
vessel, which contains an account of the ship's course, with a short history of
every occurrence during the voyage. Another name for logbook. (q. v.) Chit. Law
of Nat. 199. JOURNAL, common law. A book used among merchants, in which
the contents of the waste-book are separated every month, and entered on the
debtor and creditor side, for more convenient posting in the ledger.
JOURNAL, legislation. An account of the proceedings of a
2. The Constitution of the United States, art. 1, s. 5, directs that
"each house shall keep a journal of its proceedings; and from time to time
publish the same, excepting such parts as may, in their judgment, require
secrecy." Vide 2 Story, Const., 301.
3. The constitutions of the several states contain similar
4. The journal of either house is evidence of the action of that house
upon all matters before it. 7 Cowen, R. 613 Cowp. 17.
JOURNEYS ACCOUNT, Eng. practice. When a writ abated without any
fault of the plaintiff, he was permitted to sue out a new writ, within as
little time as he possibly could after abatement of the first writ, which was
quasi a continuance of the first writ, and placed him in a situation in which
he would have been, supposing he had still, proceeded on that writ. This was
called journeys account.
2. This mode of proceeding has fallen into disuse, the practice now
being to permit that writ to be quashed, and torque out another. Vide Termes de
la Ley, h. t.; Bac. Ab. Abatement, Q; 14 Vin. Ab. 558; 4 Com. Dig. 714; 7 Mann.
& Gr. 762.
JUDEX. This word has several significations: 1. The judge, one
who declares the law, quijus dicit; one who administers justice between the
parties to a cause, when lawfully submitted to him. 2. The judicial power, or
the court. 3. Anciently, by judex was also understood a juror. Vide Judge.
JUDEX A Quo. A judge from whom an appeal may be taken; a judge
of a court below. See A quo; 6 Mart. Lo. Rep. 520.
JUDEX AD OUEM. A judge to whom an appeal may be taken: a
JUDGE. A public officer, lawfully appointed to decide litigated
questions according to law. This, in its most extensive sense, includes all
officers who are appointed to decide such questions, and not only judges
properly so called, but also justices of the peace, and jurors, who are judges
of the facts in issue. See 4 Dall. 229; 3 Yeates, IR. 300. In a more limited
sense, the term judge signifies an officer who is so named in his commission,
and who presides in some court.
2. Judges are appointed or elected, in a variety of ways, in the United
States they are appointed by the president, by and with the consent of the
senate; in some of the states they are appointed by the governor, the governor
and senate, or by the legislature. In the United States, and some of the
states, they hold their offices during good behaviour; in others, as in New
York, during, good behaviour, or until they shall attain a certain age and in
others for a limited term of years.
3. Impartiality is the first duty of a judge; before he gives an
opinion, or sits in judgment in a cause, he ought to be certain that he has no
bias for or against either of the parties; and if he has any (the slightest)
interest in the cause, he is disqualified from sitting as judge; aliquis non
debet esse judex in propria causa; 8 Co. 118; 21 Pick. Rep. 101; 5 Mass. 92; 13
Mass. 340; 6 Pick. R. 109; 14 S. & R. 157-8; and when he is aware of such
interest, he ought himself to refuse to sit on the case. It seems it is
discretionary with him whether he will sit in a cause in which he has been of
counsel. 2 Marsh. 517; Coxe, 164; see 2 Binn. 454. But the delicacy which
characterizes the judges in this country, generally, forbids their sitting in
such a cause.
4. He must not only be impartial, but he must follow and enforce the
law, whether good or bad. He is bound to declare what the law is , and not to
make it; he is not an arbitrator, but an interpreter of the law. It is his duty
to be patient in the investigation of the case, careful in considering it, and
firm in his judgment. He ought, according to Cicero, "never to lose sight that
he is a man, and that he cannot exceed the power given him by his commission;
that not only power, but public confidence has been given to him; that he ought
always seriously to attend not to his wishes but to the requisitions of law, of
justice and religion." Cic. pro. Cluentius. A curious case of judicial
casuistry is stated by Aulus Gellius Att. Noct. lib: 14, cap. 2, which may be
interesting to the reader.
5. While acting within the bounds of his jurisdiction, the judge is hot
responsible for any error of judgment, nor mistake he may commit as a judge.
Co. Litt. 294; 2 Inst. 422; 2 Dall. R. 160; 1 Yeates, R. 443; N. & M'C.
168; 1 Day, R. 315; 1 Root, R. 211; 3 Caines, R. 170; 5 John. R. 282; 9 John.
R. 395; 11 John. R. 150; 3 Marsh. R. 76; 1 South. R. 74; 1 N. H. Rep. 374; 2
Bay, 1, 69; 8 Wend. 468; 3 Marsh. R. 76,. When he acts corruptly, he may be
impeached. 5 John. R. 282; 8 Cowen, R. 178; 4 Dall. R. 225.
6. A judge is not competent as a witness in a cause trying before him,
for this, among other reasons, that he can hardly be deemed capable of
impartially deciding on the admissibility of his own testimony, or of weighing.
it against that of another. a Martln's R, N. S. 312. Vide, Com. Dig. Courts, B
4, C 2, E 1, P 16 justices, 1 1, 2, and 3; 14 Vin. Ab. 573; Bac. Ab. Courts,
&c., B; 1 Kent, Com. 291; Ayl. Parerg. 309; Story, Const. Index, h. t. See
U. S. Dig. Courts, I, where will be found an abstract of various decisions
relating to the appointment and powers of judges in different states. Vide
JUDGE ADVOCATE. An officer who, is a member of a court martial.
2. His duties are to prosecute in the name of the United States, but he shall
so far consider himself as counsel for the prisoner, after the prisoner shall
have made his plea, as to object to leading questions to any of the witnesses,
or any question to the prisoner, the answer to which might tend to criminate
himself. He is further to swear the members of the court before they proceed
upon any trial. Rules and Articles of War, art. 69, 2 Story, L. U. S. 1001;
Lid. Jud. Adv. passim.
JUDGE'S NOTES. They are short statements, made by a judge on
the trial of a cause, of what transpires in the course of such trial. They
usually contain a statement of the testimony of witnesses; of documents offered
or admitted in evidence; of offers of evidence and whether it has been received
or rejected, and the like matters.
2. In general judge's notes are not evidence of what transpired at a
former trial, nor can they be read to prove what a deceased witness swore to on
such former trial, for they are no part of the record, and he is not officially
bound to make them. But in chancery, when a new trial is ordered of an issue
sent out of chancery to a court of law, and it is suggested that some of the
witnesses in the former trial are of an advanced age, an order may be made
that, in the event of death or inability to attend, their testimony may be read
from the judge's notes. 1 Greenl. Ev. §166.
JUDGMENT, practice. The decision or sentence of the law, given
by a court of justice or other competent tribunal, as the result of proceedings
instituted therein, for the redress of an injury.
2. The language of judgments, therefore, is not that "it is decreed,"
or " resolved," by the court; but " it is considered," (consideratum est per
curiam) that the plaintiff recover his debt, damages, or possession, as the
case may require, or that the defendant do go without day. This implies that
the judgment is not so much the decision of the court, as the sentence of the
law pronounced and decreed by the court, after due deliberation and
3. To be valid, a judicial judgment must be given by a competent judge
or court, at a time and place appointed by law, and in the form it requires. A
judgment would be null, if the judge had not jurisdiction of the matter; or,
having such jurisdiction, he exercised it when there was no court held, or but
of his district; or if be rendered a judgment before the cause was prepared for
4. The judgment must confine itself to the question raised before the
court, and cannot extend beyond it. For example, where the plaintiff sued for
an injury committed on his lands by animals owned and kept carelessly by
defendant, the judgment may be for damages, but it cannot command the defendant
for the future to keep his cattle out of the plaintiff's land. That would be to
usurp the power of the legislature. A judgment declares the rights which belong
to the citizen, the law alone rules future actions. The law commands all men,
it is the same for all, because it is general; judgments are particular
decisions, which apply only to particular persons, and bind no others; they
vary like the circumstances on which they are founded.
5. Litigious contests present to the courts facts to appreciate,
agreements to be construed, and points of law to be resolved. The judgment is
the result of the full examination of all these.
6. There are four kinds of judgments in civil cases, namely: 1. When
the facts are admitted by the parties, but the law is disputed; as in case of
judgment upon demurrer. 2. When the law is admitted, but the facts are
disputed; as in, case of judgment upon a verdict. 3. When both the law and the
facts are admitted by confession; as, in the case of cognovit actionem, on the
part of the defendant; or nolle prosequi, on the part of the plaintiff. 4. By
default of either party in the course of legal proceedings, as in the case of
judgment by nihil disit, or non sum informatus, when the defendant has omitted
to plead or instruct his attorney to do so, after a proper notice or in cases
of judgment by non pros; or, as in case of nonsuit, when the plaintiff omits to
follow up his proceedings.
7. These four species of judgments, again, are either interlocutory or
final. Vide 3 Black. Com. 396; Bingh. on Judgm. 1. For the lien of judgment in
the several estates, vide Lien.
8. A list of the various judgments is here given.
9. Judgment in assumpsit is either in favor of the plaintiff or
defendant; when in favor of the plaintiff, it is that he recover a specified
sum, assessed by a jury, or on reference to the prothonotary, or other proper
officer, for the damages which he has sustained, by reason of the defendant's
non-performance of his promises and undertakings, and for full costs of suit. 1
Chit. Pl. 100. When the judgment is for the defendant, it is that he recover
10. Judgment in actions on the case for torts, when for the plaintiff,
is that he recover a sum of money ascertained by a jury for his damages
occasioned by the committing of the grievances complained of, and the costs of
suit. 1 Ch. Pl. 147. When for the defendant, it is for costs.
11. Judgment of cassetur breve, or billa, is in cases of pleas in
abatement where the plaintiff prays that his "writ" or " bill" "may be quashed,
that he may sue or exhibit a better one." Steph. Pl. 130, 131, 128 Lawes, Civ.
12. Judgment by confession. When instead of entering a plea, the
defendant chooses to confess the action; or, after pleading; he does, at any
time before trial, both confess the action and withdraw his plea or other
allegations; the judgment against him, in these two cases, is called a judgment
by confession or by confession relicta verificatione. Steph. Pl. 130.
13. Contradictory judgment. By this term is understood, in the state of
Louisiana, a judgment which has been given after the parties have been heard,
either in support of their claims, or in their defence. Code of Pract. art.
535; 11 L. R. 366, 569. A judgment is called contradictory to distinguish it
from one which is rendered by default.
14. Judgment in covenant; when for the plaintiff, is that he recover an
ascertained sum for his damages, which he has sustained by reason of the breach
or breaches of the defendant's covenant, together with costs of suit. 1
Chitty's Plead. 116, 117. When for the defendant, the judgment, is for
15. Judgment in the action of debt; when for the plaintiff, is that he
recover his debt, and in general, nominal damages for the detention thereof;
and in cases under the 8 and 9 Wm. III. c. 11, it is also awarded, that the
plaintiff have execution for the damages sustained by the breach of a bond,
conditioned for the performance of covenants; and that plaintiff recover full
costs of suit. 1 Chitty's Pl. 108, 9.
16. In some penal and other particular actions the plaintiff does not,
however, always recover costs. Espinasse on Pen. Act. 154: Hull. on Costs, 200;
Bull. N. P. 333; 5 Johns. R. 251.
17. When the judgment is for the defendant, it is generally for costs.
In some penal actions, however, neither party can recover costs, 5 Johns. R.
18. Judgment by default, is a judgment rendered in consequence of tho
non-appearance of the defendant, and is either by nil dicit; vide Judgment by
nil dicit, or by non sum informatus; vide Judgment by non sum informatus.
19. This judgment is interlocutory in assumpsit, covenant, trespass,
case, and replevin, where the sole object of the action is damages; but in
debt, damages not being the principal object of the action, the plaintiff
usually signs final judgment in the first instance. Vide Com. Dig. Pleader, B
11 and 12, E 42; 7 Vin. Ab. 429; Doct. Pl. 208; Grah. Pr, 631 Dane's Ab. Index,
h. t.; 3 Chit. Pr. 671 to 680; Tidd's Pr. 563; 1 Lillv's Reg. 585; and article
20. Judgment in the action of detinue; when for the plaintiff, is in the
alternative, that he recover the goods, or the value thereof, if he cannot have
the goods themselves, and his damage for the detention and costs. 1 Ch. Pl.
l21, 2; 1 Dall. R. 458.
2l. Judgment in error, is a judgment rendered by a court ot error, on a
record sent up, from an inferior court. These judgments are of two kinds, of
affirmance and reversal. When the judgment is for the defendant in error,
whether the errors assigned be in law or in fact, it is "that the former
judgment be affirmed, and stand in full force and effect, the said causes and
matters assigned for error notwithstanding, and that the defendant in error
recover $____ for his damages, charges and costs which he hath sustained,"
&c. 2 Tidd's Pr. 1126; Arch. Forms, 221. When it is for the plaintiff in
error, the judgment is that it be reversed or recalled. It is to be reversed
for error in law, in this form, that it be reversed, annulled and altogether
holden for nought." Arch. Forms, 224. For error in fact the, judgment is
recalled, revocatur. 2 Tidd, Pr. 1126.
22. A final judgment is one which puts an end to the suit.
23. When the issue is one in fact, and is tried by a jury, the jury at
the time that they try the issue, assess the damages, and the judgment is final
in the first instance, and is that the plaintiff do recover the damages
24. When an interlocutory judgment has been rendered, and a writ of
inquiry has issued to ascertain the damages, on the return of the inquisition
the plaintiff is entitled to a final judgment, namely, that he recover the
amount of damages so assessed. Steph. Pl. 127, 128.
25. An interlocutory judgment, is one given in the course of a cause,
before final judgment. When the action sounds in damages, and the issue is an
issue in law, or when any issue in fact not tried by a jury is decided in favor
of the plaintiff, then the judgment is that the plaintiff ought to recover his
damages without specifying their amount; for, as there has been no trial by
jury in the case, the amount of damages is not yet ascertained. The judgment is
then said to be interlocutory.
26. To ascertain such damages it is the practice to issue a writ of
inquiry. Steph. Pl. 127. When the action is founded on a promissory note, bond,
or other writing, or any other contract by which the amount due may be readily
computed, the practice is, in some courts, to refer it to the prothonotary or
clerk to assess the damages.
27. There is one species of interlocutory judgment which establishes
nothing but the inadequacy of the defence set up this is the judgment for the
plaintiff on demurrer to a plea in abatement, by which it appears that the
defendant has mistaken the law on a point which does not affect the merits of
his case; and it being but reasonable that he should offer, if he can, a
further defence, that judgment is that he do answer over, in technical
language, judgment of respondeat ouster. (q. v.) Steph. Plead, 126; Bac. Ab.
Pleas, N. 4; 2 Arch. Pr. 3.
28. Judgment of nil capiat per breve or per billam. When an issue arises
upon a declaration or peremptory plea, and it is decided in favor of the
defendant, the judgment is, in general, that, the plaintiff take nothing by his
writ, (or bill,) and that the defendant go thereof without day, &c. This is
called a judgment of nil capiat per breve, or per billam. Steph. Pl. 128.
29. Judgment by nil dicit, is one rendered against a defendant for want
of a plea. The plaintiff obtains a rule on the defendant to plead within a time
specified, of which he serves a notice on the defendant or his attorney; if the
defendant neglect to enter a plea within the time specified, the plaintiff may
sign judgment against him.
30. Judgment of nolle prosequi, is a judgment entered against the
plaintiff, where, after appearance and before judgment, he says, "he will not
further prosecute his suit." Steph. Pl. 130 Lawes Civ. Pl. 166.
31. Judgment of non obstante veredicto, is a judgment rendered in favor
of the plaintiff, without regard to the verdict obtained by the defendant.
32. The motion for such judgment is made where after a pleading by the
defendant in confession and avoidance, as, for example, a plea in bar, and
issue joined thereon, and verdict found for, the defendant, the plaintiff on
retrospective examination of the record, conceives that such plea was bad in
substance, and might have been made the subject of demurrer on that ground. If
the plea was itself substantially bad in law, of course the verdict, which
merely shows it to be true in point of fact, cannot avail to entitle the
defendant to judgment; while on the other hand the plea being in confession and
avoidance, involves a confession of the plaintiff's declaration, and shows that
he was entitled. to maintain his action. In such case, therefore, this court
will give judgment for the plaintiff, without regard to the verdict; and this,
for the reasons above explained, is called a judgment upon confession.
Sometimes it may be expedient for the plaintiff to move for judgment non
obstante, &c., even though the verdict be in his own favor; for, if in such
case as above described, he takes judgment as upon the verdict, it seems that
such judgment would be erroneous, and that the only safe course is to take it
as upon confession. 1 Wils. 63; Cro. Eliz, 778 2 Roll. Ab. 99. See also, Cro.
Eliz. 2 1 4 6 Mod. 1 0; Str. 394; 1 Ld. Raym. 641; 8 Taunt. 413; Rast. Ent.
622; 1 Wend. 307; 2 Wend. 624; 5 Wend. 513; 4 Wend. 468; 6 Cowen, R. 225. See
this Dict. Repleader, for the difference between a repleader and a judgment non
33. Judgment by non sum informatus, is one which is rendered, when
instead of entering a plea, the defendant's attorney says he is not informed of
any answer to be given to the action. Steph. Pl. 130.
34. Judgment of non pros. (from non prosequitur,) is one given against
the plaintiff, in any class of actions, for not declaring, or replying, or
surrejoining, &c., or for not entering the issue.
35. Judgment of nonsuit, Practice, is one against the plaintiff, which
happens when, on trial by jury, the plaintiff, on being called or demanded, at
the instance of the defendant, to be present while the jury give their verdict,
fails to make his appearance.
36. In this case, no verdict is given, but the judgment of nonsuit
passes against the plaintiff. So if, after issue be joined, the plaintiff
neglect to bring such issue on to be tried in due time, as limited by the
practice of the court, in the particular case, judgment will be also given
against him for this default; and it is called judgment as in case of nonsuit.
Stepb. Pl. 131.
37. After suffering a nonsuit, the plaintiff may commence another
action for the same cause for which the first had been instituted.
38. In some cases, plaintiffs having obtained information in what
manner the jury had agreed upon their verdict before it was delivered in court,
have, when the jury were ready to give in such verdict against them, suffered a
nonsuit for the purpose of commencing another action and obtaining another
trial. To prevent this abuse, the legislature of Pennsylvania have provided, by
the Act of March 28, 1814, 6:Reed's L. 208, that "whenever on the trial of any
cause, the jury shall be ready to give in their verdict, the plaintiff shall
not be called, nor shall he then be permitted to suffer a nonsuit."
39. Judgment quod computet. The name of an interlocutory judgment in an
action of account render that the defendant do account, quod computet. Vide 4
Wash. C. C. R. 84; 2 Watts, R. 95; 1 Penn. R. 138.
40. Judgment quod recuperet. When an issue in law, other than one
arising on a dilatory plea, or an issue in fact, is decided in favor of the
plaintiff, the judgment is, that the plaintiff do recover, which is called a
judgment guod recuperet. Steph. Pl. 126; Com. Dig. Abatement, I 14, I 15; 2
Arch. Pr. 3. This judgment is of two kinds, namely, interlocutory or final.
41. Judgment in replevin, is either for the plaintiff or defendant.
42. - §1. For the plaintiff. 1. When the declaration is in the
detinuit, that is, where the plaintiff declares, that the chattels "were
detained until replevied by the sheriff," the judgment is that he recover the
damages assessed by the jury for the taking and unjust detention, or for the
latter only, where the former was justifiable, as also his costs. 5 Serg. &
Rawle, 133 Ham. N. P. 488.
43. - 2. If the replevin is in the detinet, that is, where the
plaintiff declares that the chattels taken are " yet detained," the jury must
find, 'in addition to the above, the value of the chattels, (assuming that they
are still detained,) not in a gross sum, but each separate article; for tho
defendant, perhaps, will restore some, in which case the plaintiff is to
recover the value of the remainder. Ham. N. P. 489; Fitz. N. B. 159, b; 5 Serg.
& Rawle, 130.
44. - §2. For the defendant. 1. If the replevin be abated, the
judgment is, that the writ or plaint abate, and that the defendant (having
avowed) have a return of the chattels.
46. - 2. When the plaintiff is nonsuited) the judgment for the
defendant, at common law, is, that the chattels be restored to him, and this
without his first assigning the purpose for which they were taken, because, by
abandoning his suit, the plaintiff admits that he had no right to dispossess
the defendant by prosecuting the replevin. The form of this judgment. is simply
" to have a return, " without adding the words " to hold irreplevisable." Ham.
N. P. 490.
46. As to the form of judgments in cases of nonsuit, under the 21 Hen.
VIII. c. 19, and 17 Car. II. c. 7, see Ham. N. P. 490, 491; 2 Ch. Pleacd. 161;
8 Wentw. Pl. 116; 5 Serg. & Rawle, 132; 1 Saund. 195, n. 3; 2 Saund. 286,
n. 5. It is still in the defendant's option in these cases, to take his
judgment pro retorno habendo at common law. 5 Serg. & Rawle, 132; 1 Lev.
265; 3 T. R. 349.
47. - 3. When tho avowant succeeds upon the merits of his case, the
common law judgment is, that he "have return irreplevisable," for it is
apparent that he is by law entitled to keep possession of the goods. 5 Serg.
& Rawle, 135; Ham. N. P. 493; 1 Chit. Pl. 162. For the form of judgments in
favor of the avowant, under the last mentioned statutes, gee Ham. N. P.
48. Judgment of respondeat ouster. When there is an issue in law,
arising on a dilatory plea, and it is decided in favor of the plaintiff, the
judgment is only that the defendant answer over, which is called a judgment of
respondeat ouster. The pleading is accordingly resumed, and the action
proceeds. Steph. Pl. 126; see Bac. Abr. Pleas, N 4; 2 Arch. Pr. 3.
49. Judgment of retraxit, is one where, after appearance and before
judgment, the, plaintiff enters upon the record that he "withdraws his suit;"
in such case judgment is given against him. Stepb. Pl. 130.
50. Judgment in an action on trespass, when for the plaintiff, is, that
he recover the damages assessed by the jury, and the costs. For the defendant,
that he recover the costs.
51. Judgment in action on the case for trover, when for the plaintiff,
is, that he recover damages and costs. 1 Ch. Pl. 157, For the defendant, the
judgment is, that he recover his costs.
52. Judgment of capiatur. At common law, on conviction, in a civil
action, of a forcible wrong, alleged to have been committed vi et armis,
&c., the defendant was obliged to pay a fine to the king, for the breach of
the peace implied in the act, and a judgment of capiatur pro fine was rendered
against him, under which he was liable to be arrested, and imprisoned till the
fine was paid. But by the 5 W. & M. c. 12, the judgment of capiatur pro
fine was abolished. Gould on Pl. §38, 82; Bac. Ab. Fines and Amercements,
C 1; 1 Ld. Raym. 273, 4; Style, 346. See Judgment of misericordia,
53. Judgment of misericordia. At common law, the party to, a suit who
did not prevail was punished for his unjust vexation, and therefore judgment
was given against him, quod sit in misericordia pro falso clamore. Hence, when
the plaintiff sued out a writ, the sheriff was obliged to take pledges of
prosecution before he returned it, which when fines and amercements were
considerable, were real and responsible persons, and answerable for those
amercements; but now they are never levied, and the pledges are merely formal,
namely, John Doe and Richard Roe. Bac. Ab. Fines, &c., C 1 1 Lord Ray. 273,
54. In actions where the judgment was against the defendant, it was
entered at common law, with a misericordia or a capiatur. With a misericordia
in actions on contracts, with a capiatur in actions of trespass, or other
forcible wrong, alleged to have been committed vi et armis. See Judgment of
capiatur; Gould on Pl. c. 4, §§38, 82, 83.
55. Judgment quod partitio fiat, is a judgment, in a writ of partition,
that partition be made; this is not a final judgment. The final judgment is,
quod partitio facta firma et stabilis in perpetuum teneatur. Co. Litt. 169; 2
Bl. Rep. 1159.
56. Judgment quod partes replacitent. The name of a judgment given when
the court award a repleader.
57. When issue is joined on an immaterial point, or a point on which
the court cannot give a judgment determining the right, they award a repleader
or judgment quod partes replacitent. See Bac. Ab. Pleas, &c., M; 3 Hayw.
159; Peck's R. 325. See, generally, Bouv. Inst. Index, h. t.
JUDGMENT, ARREST OF, practice. This takes place when the court
withhold judgment from the plaintiff on the ground that there is some error
appearing on the face of the record, which vitiates the proceedings. In
consequence of such error, on whatever part of the record it may arise, from
the commencement of the suit to the time when the motion in arrest of judgment
is made, the court are bound to arrest the judgment.
2. It is, however, only with respect to objections apparent on the
record, that such motions can be made. They cannot, in general, be made in
respect to formal objections. This was formerly otherwise, and judgments were
constantly arrested for matters of mere form; 3 Bl. Corn. 407; 2 Reeves, 448;
but this abuse has been long remedied by certain statutes passed at different
periods, called the statutes of amendment and jeofails, by the effect of which,
judgments, cannot, in general, now be arrested for any objection of form.
Steph. Pl. 117; see 3 Bl. Com. 393; 21 Vin. Ab. 457; 1 Sell. Pr. 496.
JUDGMENT POLL, Eng. law. A record made of the issue roll, (q.
v.) which, after final judgment has been given in the cause, assumes this name.
Steph. Pl. 133. Vide Issue Roll.
JUDICATURE. The state of those employed in the administration
of justice, and in this sense it is nearly synonymous with judiciary. This term
is also used to signify a tribunal; and sometimes it is employed to show the
extent of jurisdiction, as, the judicature is upon writs of error, &c. Com.
Dig. Parliament, L 1; and see Com. Dig. Courts, A.
JUDICES PEDANEOS. Among the Romans, the praetors, and other
great magistrates, did not themselves decide the actions which arose between
private individuals these were submitted to judges chosen by the parties, and
these judges were called judices pedaneos. In choosing them, the plaintiff had
the right to nominate, and the defendant to accept or reject those nominated.
Heinnee. Antiq. lib. 4, tit. b, n. 40 7 Toull. n. 353.
JUDICIAL. Belonging, or emanating from a judge, as such.
2. Judicial sales, are such as are ordered by virtue of the process of
courts. 1 Supp. to Ves. jr., 129, 160; 2 Ves. jr., 50.
3. A judicial writ is one issued in the progress of the cause, in
contradistinction to an original writ. 3 Bl. Com. 282.
4. Judicial decisions, are the opinions or determinations of the judges
in causes before them. Hale, H. C. L. 68; Willes' R. 666; 3 Barn. & Ald.
122 4 Barn. & Adol. 207 1 H. B1. 63; 5 M. & S. 185.
5. Judicial power, the authority vested in the judges. The constitution
of the United States declares, that "the judicial power of the United States
shall be vested in one supreme court, and in such inferior courts as the
congress may, from time to time, ordain and establish." Art. 3, s. 1. 6. By the
constitutions of the several states, the judicial power is vested in such
courts as are enumerated in each respectively. See the names Of, the several
states. There is nothing in the constitution of the United States to forbid or
prevent the legislature of a state from exercising judicial functions; 2 Pet.
R. 413; and judicial acts have occasionally been performed by the legislatures.
2 Root, R. 350; 3 Greenl. R. 334; 3 Dall. R. 386; 2 Pet. R. 660; 16 Mass. R.
328; Walk. R. 258; 1 New H. Rep. 199; 10 Yerg. R. 59; 4 Greenl. R. 140; 2
Chip., R. 77; 1 Aik. R. 314. But a state legislature cannot annul the
judgments, nor determine the jurisdiction of the courts of the United States; 5
Cranch, It. 116; 2 Dall. R. 410; nor authoritatively declare what the law is,
or has been, but what it shall be. 2 Cranch, R. 272; 4 Pick. R. 23. Vide Ayl.
Parerg. 27; 3 M. R. 248; 4 M. R. 451; 9 M. R. 325; 6 M. R. 668; 12 M. R. 349; 3
N. S. 551; 5 N. S. 519; 1 L. R. 438 7 M. R. 325; 9 M. R. 204; 10 M. R. 1.
JUDICIAL ADMISSIONS. Those which are generally made in writing
in court by the attorney of the party; they appear upon the record, as in the
pleadings and the like.
JUDICIAL CONFESSIONS, criminal law. Those voluntarily made
before a magistrate, or in a court, in the due course of legal proceedings. A
preliminary examination, taken in writing, by a magistrate lawfully authorized,
pursuant to a statute, or the plea of guilty, made in open court to an
indictment, are sufficient to found a conviction upon them.
JUDICIAL CONVENTIONS. Agreements entered into in consequence of
an order of court; as, for example, entering into a bond on taking out a writ
of sequestration. 6 N. S. 494.
JUDICIAL MORTGAGE. In Louisiana, it is the lien resulting from
judgments, whether these be rendered on contested cases, or by default, whether
they be final or provisional, in favor of the person obtaining them. Civ. Code
of Lo. art. 3289.
JUDICIAL SALE. A sale by authority of some competent tribunal,
by an officer authorized by law for the purpose.
2. The officer who makes the sale, conveys all the rights of the
defendant, or other person against whom the process has been issued, in the
property sold. Under such a sale there is no warranty, either express or
implied, of the thing sold. 9 Wheat. 616. When real estate is sold by the
sheriff or marshal, the sale is subject to the confirmation of the court, or it
may be set aside. See 4 Wash. C. C. R. 45 Wallace, 128; 4 Wash. C. C. R.
JUDICIAL WRITS, Eng. practice. The capias and all other writs
subsequent to the original writ not issuing out of chancery, but from the court
into which the original was returnable, and being grounded on what had passed
in that court in consequence of the sheriff's return, were called judicial
writs, in contradistinction to the writs issued out of chancery, which were
called original writs. 3 Bl. Com. 282.
JUDICIARY. That which is done while administering justice; the
judges taken collectively; as, the liberties of the people are secured by a
wise and independent judiciary. See Courts; and 3 Story, Const. B. 3, c. 3
JUDICIUM DEI. The judgment of God. The English law formerly
impiously called the judgments on trials by ordeal, by battle, and the like,
the judgments of God.
JUICIO DE CONCURSO. This term is Spanish, and is used in
Louisiana. It is the name of an action brought for the purpose of making a
distribution of an insolvent's estate. It differs from all other actions in
this important particular, that all the parties to it except the insolvent, are
at once plaintiffs and defendant. Each creditor is plaintiff against the
failing debtor, to recover the amount due by him, and against the co-creditors,
to diminish the amount they demand from his estate, and each is, of necessity,
defendant against the opposition made by the other creditors against his
demand. From the peculiar situation in which the parties are thus placed, many
distinct and separate suits arise, and are decided during the pendancy of the
main one, by the insolvent in which they originate. 4 N. S. 601, 3 Harr. Cond.
Lo. R. 409.
2. This has been held to be no part of a man's name, but an addition by
use, and a convenient distinction between a father and son of the same name. 10
Mass. R. 203 10 Paige, 170; 1 Pick. R. 388; 7 John . It. 549; 2 Caines, 164 1
Pick. 388 15 Pick. 7; 17 Pick. 200 3 Metc. 330.
3. Any matter that distinguishes persons renders the addition of junior
or senior unnecessary. 1 Mod. Ent. 35; Salk. 7. But if father and son have both
the same name, the father shall be, prima facie, intended, if junior be not
added, or some other matter of distinction. Salk, 7; 6 Rep. 20 11 Rep. 39; Hob.
330. If father and son have the same name and addition, and the former sue the
latter, the writ is abateable unless the son have the further addition of
junior, or the younger. But if the father be the defendant and the son the
plaintiff, there is no need of the further addition of senior, or the elder, to
the name of the father. 2 Hawk. 187; Laws of Women, 380.
JUNIPERUS SABINA, med. jur. This plant is commonly called
2. It is used for lawful purposes in medicine, but too frequently for
the criminal intent of producing abortion, generally endangering the life of
the woman. It is usually administered in powder or oil. The dose of oil for
lawful purposes, for a grown person, is from two to four drops. Parr's Med.
Dictionary, article Sabina. Fodere mentions a case where a large dose of
powdered savine had been administered to an ignorant girl, in the seventh month
of her pregnancy, which had no effect on the foetus. It was, however, near
taking the life of the girl. Fodere, tome iv. p. 431. Given in sufficiently
large doses, four or six grains in the form of powder, kills a dog in a few
hours, and even its insertion into a wound has tho same effect. Orfila, Traite
des Poisons, tome iii. p. 42. For or a form of indictment for administering
savine to a woman quick with child, see 3 Chit. Cr. Law, 798. Vide 1 Beck's
Med. Jur. 316,
JURA PERSONARUM. The rights and duties of persons are so
JURA RERUM. The rights which a man may acquire in and to such
external things as are unconnected with. his person, are called jura rerum. 2
Bl. Com. 1.
JURA SUMMA IMPERII. Rights of sovereignty or supreme
JURAMENTAE CORPORALIA. Corporal oaths. These oaths are so
called, because the party making oath must touch the Bible, or other thing by
which he swears.
JURAMENTUM JUDICIALE. A term in the civil law. The oath called
juramentum judiciale is that which the judge, of his wwn accord, defers to
either of the parties.
2. It is of two kinds. 1st. That which the judge defers for the
decision of the cause, and which is understood by the general name juramentum
judiciale, and is sometimes called suppletory oath, juramentum
3. - 2d. That which the judge defers in order to fix and determine the
amount of the condemnation which he ought to pronounce, and which is called
juramentum in litem. Poth. on Oblig. P. 4, s. 3, art. 3.
JURAT Practice. That part of an affidavit where the officer
certifies that the same was "sworn" before him.
2. The jurat is usually in the following form, namely "Sworn and
subscribed before me, on the ____ day of _______, 1842, J. P. justice of the
3. In some cases it has been holden that it was essential that the
officer should sign the jurat, and that it should contain his addition and
official description. 3 Caines, 128. But see 6 Wend. 543; 12 Wend. 223; 2
Cowen. 552 2 Wend. 283; 2 John. 479; Harr. Dig. h. t.; Am. Eq. Dig.
JURATA. A certificate placed at the bottom of an affidavit,
declaring that the witness has been sworn or affirmed to the truth of the facts
therein alleged. Its usual form is,: Sworn (or affirmed) before me, the ____
day of ____, 10 __." The Jurat. (q. v.)
JURATS, officers. In some English corporations, jurats are
officers who have much the same power as aldermen in others. Stat. 1 Ed. IV.
Stat. 2 & 3 Ed. VI. c. 30; 13 Ed. I., c. 26.
JURE. By law; by right; in right; as, jure civilis, by the
civil law; jure gentium, by the law of nations; jure representationis, by right
of representation; jure uxoris, in right of a wife.
JURIDICAL. Signifies used in courts of law; done in conformity
to the laws of the country, and the practice which is there observed.
JURIDICAL DAYS. Dies juridici. Days in court on which the law
JURIS ET DE JURE. A phrase employed to denote conclusive
presumptions of law, which cannot be rebutted by evidence. The words signify of
law and from law. Best on Presumption, §17.
JURISCONSULT. One well versed in jurisprudence; a jurist: one
whose profession it is to give counsel on questions of law.
JURISDICTION, Practice. A power constitutionally conferred upon
a judge or magistrate, to take cognizance of, and decide causes according to
law, and to carry his sentence into execution. 6 Pet. 591; 9 John. 239. The
tract of land or district within which a judge or magistrate has jurisdiction,
is called his territory, and his power in relation to his territory is called
his territorial jurisdiction.
2. Every act of jurisdiction exercised by a judge without his
territory, either by pronouncing sentence or carrying it into execution, is
null. An inferior court has no jurisdiction beyond what is expressly delegated.
1 Salk. 404, n.; Gilb. C. P. 188; 1 Saund. 73; 2 Lord Raym. 1311; and see Bac.
Ab. Courts, &c., C, et seq; Bac. Ab. Pleas, E 2.
3. Jurisdiction is original, when it is conferred on the court in the
first instance, which is called original jurisdiction; (q. v.) or it is
appellate, which is when an appeal is given from the judgment of another court.
Jurisdiction is also civil, where the subject-matter to be tried is not of a
criminal nature; or criminal, where the court is to punish crimes. Some courts
and magistrates have both civil and criminal jurisdiction. Jurisdiction is also
concurrent, exclusive, or assistant. Concurrent jurisdiction is that which may
be entertained by several courts. It is a rule that in cases of concurrent
jurisdictions, that which is first seized of the case shall try it to the
exclusion of the other. Exclusive jurisdiction is that which has alone the
power to try or determine the Suit, action, or matter in dispute. assistant
jurisdiction is that which is afforded by a court of chancery, in aid of a
court of law; as, for example, by a bill of discovery, by the examination of
witnesses de bene esse, or out of the jurisdiction of the court; by the
perpetuation of the testimony of witnesses, and the like.
4. It is the law which gives jurisdiction; the consent of, parties,
cannot, therefore, confer it, in a matter which the law excludes. 1 N. & M.
192; 3 M'Cord, 280; 1 Call. 55; 1 J. S. Marsh. 476; 1 Bibb, 263; Cooke, 27;
Minor, 65; 3 Litt. 332; 6 Litt. 303; Kirby, 111; 1 Breese, 32; 2 Yerg. 441; 1
Const. R. 478. But where the court has jurisdiction of the matter, and the
defendant has some privilege which exempts him from the jurisdiction, he may
wave the privilege. 5 Cranch, 288; 1 Pet. 449; 8 Wheat. 699; 4 W. C. C. R. 84;
4 M'Cord, 79; 4 Mass. 593; Wright, 484. See Hardin, 448; 2 Wash. 213.
5. Courts of inferior jurisdiction must act within their jurisdiction,
and so it must appear upon the record. 5 Cranch, 172 Pet. C. C. R. 36; 4 Dall.
11; 2 Mass. 213; 4 Mass. 122; 8 Mass. 86; 11 Mass. 513; Pr. Dec. 380; 2 Verm.
329; 3 Verm. 114; 10 Conn. 514; 4 John. 292; 3 Yerg. 355; Walker, 75; 9 Cowen,
227; 5 Har. & John. 36; 1 Bailey, 459; 2 Bailey, 267. But the legislature
may, by a general or special law, provide otherwise. Pet. C. C. R. 36. Vide 1
Salk. 414; Bac. Ab. Courts, &c., C. D; Id. Prerogative, E 6; Merlin, Rep.
h. t.; Ayl. Pat. 317, and the art. Competency. As to the force of municipal law
beyond the territorial jurisdiction of the state, see Wheat. Intern. Law, part
a, c. 2, §7, et seq.; Story, Confl. of Laws, c. 2; Huberus, lib. 1, t. 3;
13 Mass. R. 4 Pard. Dr. Com. part. 6, t. 7, c. 2, §1; and the articles
Conflict of Laws; Courts of the United States. See generally, Bouv. Inst.
Index, h. t.
JURISDICTION CLAUSE. That part of a bill in chancery which is
intended to give jnrisdiction of the suit to, the court, by a general averment
that the' acts complained of are contrary to equity, and tend to the injury of
the plaintiff, and that. he has no remedy, or not a complete remedy, without
the assistance of a court of equity, is called the jurisdiction clause. Mitf.
Eq. Pl. by Jeremy, 43.
2. This clause is unnecessary, for if the court appear from the bill,
to have jurisdiction, the bill will be sustained without this clause; and if
the court have not jurisdiction, the bill will be dismissed though the clause
may be inserted. Story, Eq. Pl. §34.
JURISPRUDENCE. The science of the law. By science here, is
understood that connexion of truths which is founded on principles either
evident in themselves, or capable of demonstration; a collection of truths of
the same kind, arranged in methodical order. In a more confined sense,
jurisprudence is the practical science of giving a wise interpretation to the
laws, and making a just application of them to all cases as they arise. In this
sense, it is the habit of judging the same questions in the same manner, and by
this course of judgments forming precedents. 1 Ayl. Pand. 3 Toull. Dr. Civ. Fr.
tit. prel. s. 1, n. 1, 12, 99; Merl. Rep. h. t.; 19 Amer. Jurist, 3.
JURIST. One well versed in the science of the law. The term i's
usually applied to students and practitioners of law.
JUROR, practice. From juro, to swear; a man who is sworn or
affirmed to serve on a jury.
2. Jurors are selected from citizens, and may be compelled to serve by
fine; they generally receive a compensation for their services while attending
court they are privileged from arrest in civil cases.
JURY. A body of men selected according to law, for the purpose
of deciding some controversy.
2. This mode of trial by jury was adopted soon after the conquest of
England, by William, and was fully established for the trial of civil suits in
the reign of Henry II. Crabb's C. L. 50, 61. In the old French law they are
called inquests or tourbes of ten men. 2 Loisel's Instit. 238, 246, 248.
3. Juries are either grand juries, (q. v.) or petit juries. The former
having been treated of elsewhere, it will only be necessary to consider the
latter. A petit jury consists of twelve citizens duly qualified to serve on
juries, impanneled and sworn to try one or more issues of facts submitted to
them, and to give a judgment respecting the same, which is called a
4. Each one of the citizens so impanneled and sworn is called a juror.
5. The constitution of the United States directs, that "the trial of
all crimes, except in cases of impeachment, shall be by jury;" and this
invaluable institution is also, secured by the several state constitutions. The
constitution of the United States also provides that in suits at common law,
where the value in controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved. Amendm. VII.
6. It is scarcely practicable to give the rules established in the
different states to secure impartial juries; it may, however, be stated that in
all, the selection of persons who are to serve on the jury is made by
disinterested officers, and that out of -the lists thus made out, the jurors
are selected by lot.
JURY BOX. A place set apart for the jury to sit in during the
trial of a cause. JURY LIST. A paper containing the names of jurors
impanneled to try a cause, or it contains the names of all the jurors summoned
to attend court.
JUS. Law or right. This term is applied in many modern phrases.
It is also used to signify equity. Story, Eq. Jur. §1; Bract, lib. 1, c.
4, p. 3; Tayl. Civ. Law, 147; Dig. 1, 1, 1.
2. The English law, like the Roman, has its jus antiquum and jus novum
and jus novissimum. The jus novum may be supposed to have taken its origin
about the end of the reign of Henry VII. A. D. 1509. It assumed a regular form
towards the end of the reign of Charles II. A. D. 1685, and from that period
the jus novissimum may be dated. Lord Coke, who was born 40 years after the
death of Henry VII. is most advantageously considered as the connecting link of
the jus antiquum and jus novissimum of English law. Butler's Remin.
JUS ABUTENDI. The right to abuse. By this phrase is understood
the right to abuse property, or having full dominion over property. 3 Toull. n.
JUS ACCRESCENDI. The right of survivorship.
2. At common law, when one of several joint tenants died, the entire
tenancy or estate went to the survivors, and so on to the last survivor, who
took an estate of inheritance. This right, except in estates held in trust, has
been abolished by statute in Alabama, Delaware, Georgia, Illinois, Indiana,
Kentucky, Michigan, Missouri Mississippi, New York, North Carolina,
Pennsylvania, South-Carolina, Tennessee, and Virginia. Griff. Reg. h. t.; 1
Hill. Ab. 439, 440. In Connecticut, 1 Root, Rep. 48; 1 Swift's Dig. 102. In
Louisiana, this right was never recognized. See 11 Serg. & R. 192; 2
Caines, Cas. Err. 326; 3 Verm. 543; 6 Monr. R. 15; Estate in common; Estate in
JUS AD REM. property, title. This phrase is applied to
designate the right a man has in relation to a thing; it is not the right in
the thing itself, but only against the person who has contracted to deliver it.
It is a mere imperfect or inchoate right. 2 Bl. Com. 312 Poth. Dr. de Dom. de
Propriete, ch. prel. n. 1. This phrase is nearly equivalent to chose in action.
2 Wooddes. Lect. 235. See, 2 P. Wms. 491; 1 Mason, 221 1 Story, Eq. Jur. 506; 2
Story, Eq. Jur. §1215; Story, Ag. §352; and Jus in re.
JUS AQUAEDUCTUS, CIV. law. The name of a servitude which Lives
to the owner of land the right to bring down water through or from the land of
another, either from its source or from any other place.
2. Its privilege may be limited as to the time when it may be
exercised. If the source fails, the servitude ceases, but revives when the
water returns. If the water rises in, or naturally flows through the land, its
proprietor cannot by any grant divert it so as to prevent it flowing to the
land below. 2 Roll. Ab. 140, l. 25; Lois des Bat. part. 1, c. 3, s. 1, art. 1.
But if it had been brought. into his land by artificial means, it seems it
would be, strictly his property, and that it would be in his power to grant it.
Dig. 8, 3, 1 & 10; 3 Burge on the Confl. of Laws, 417. Vide Rain water.;
JUS CIVILE. Among the Romans by jus civile was understood the
civil law, in contradistinction to the public law, or jus gentium. 1 Savigny,
Dr. Rom. c. 1, §1.
JUS CIVITATIS. Among the Romans the collection of laws which
are to be observed among all the members of a nation were so called. It is
opposed to jus gentium, which is the law which regulates the affairs of nations
among themselves. 2 Lepage, El. du Dr. ch. 5, page l.
JUS CLOACAE, civil law. The name of a servitude which requires
the paity who is subject to it, to permit his neighbor to conduct the waters
which fall on his grounds over those of the servient estate.
JUS DARE. To give or to make the law. Jus dare belongs to the
legislature; jus dicere to the judge.
JUS DICERE. To declare the law. This word is used to explain
the power which the court has to expound the law; and not to make it, jus
JUS DELIBERANDI. The right of deliberating, which in some
countries, where the heir may have benefit of inventory, (q. v.) is given to
him to consider whether he will accept or renounce the succession.
2. In Louisiana he is allowed ten days before he is required to make
his election. Civ. Code, art. 1028.
JUS DISPONENDI. The right to dispose of a thing.
JUS DUPLICATUM, property, title. When a man has the possession
as well as the property of anything, he is said to have a double right, jus
duplicatum. Bract. 1. 4, tr. 4, c. 4 2 Bl. Com. 199.
JUS FECIALE. Among the Romans it was that species of
international law which had its foundation in the religious belief of different
nations, such as the international law which now exists among the Christian
people of Europe. Sav. Dr. Rom. ch. 2,
JUS FIDUCIARUM, Civil law. A right to something held in trust;
for this there was a remedy in conscience. 2 Bl. Com. 328.
JUS GENTIUM. The law of nations. (q. v.) Although the Romans
used these words in the sense we attach to law of nations, yet among them the
sense was much more extended. Falck, Encyc. Jur. 102, n. 42.
2. Some modern writers have made a distinction between the laws of
nations which have for their object the conflict between. the laws of different
nations, which they call jus gentium privatum, or private international law;
and those laws of nations which regulate those matters which nations, as such,
have with each other, which is de nominated jus gentium publicum, or public
international law. Foelix, Droit Interm. Prive, n. 14.
JUS GLADII. Supreme jurisdiction. The right to absolve from, or
condemn a man to death.
JUS HABENDI. The right to have and enjoy a thing.
JUS INCOGNITUM. An unknown law. This term is applied by the
civilians to obsolete laws, which, as Bacon truly observes, are unjust, for the
law to be just must give warning before it strikes. Bac. Aphor. 8, s. 1: Bowy.
Mod. Civ. Law, 33. But until it has become obsolete no custom can prevail
against it. Vide Obsolete.
JUS LEGITIMUM, civil law. A legal right which might have been
enforced by due course of law.. 2 Bl. Com. 328.
JUS MARITI, Scotch law. The right of the hushand to administer,
during the marriage, his wife's goods and the rents of her heritage.
2. In the common law, by jus mariti is understood the rights of the
hushand; as, jus mariti cannot attach upon a bequest to the wife, although
given during coverture, until the executor has assented to the legacy. 1 Bail.
Eq. R. 214.
JUS MERUM. A simple or bare right; a right to property in land,
without possession, or the right of possession.
JUS PATRONATUS, eccl. law. A commission from the bishop,
directed usually to his chancellor and others of competent learning, who are
required to summon a jury composed of six clergymen and six laymen, to inquire
into and examine who is the rightful patron. 3 Bl. Com. 246.
JUS PERSONARUM. The right of persons.
2. A branch of the law which embraces the theory of the different
classes of men who exist in a state which has been formed by nature or by
society; it includes particularly the theory of the ties of families, and the
legal form and juridical effects of the relations subsisting between them. The
Danes, the English, and the learned in this country, class under this head the
relations which exist between men in a political point of view. Blackstone,
among others, has adopted this classification. There seems a confusion of ideas
when such matters are placed under this head. Vide Bl. Com. Book 1.
JUS PRECARIUM, civil law. A right to a thing held for another,
for which there was no remedy. 2 Bl. Com. 328.
JUS POSTLIMINII, property, title. The right to claim property
after re-capture. Vide, Postliminy; Marsh. Ins. 573; 1 Kent, Com. 108. Dane's
Ab. Index, h. t.
JUS PROJICIENDI, Civil law. The name of a servitude; it is the
right which the owner of a building has of projecting a part of his building
towards the adjoining house, without resting on the latter. It is extended
merely over the ground. Dig. 50, 16, 242, 1; Dig. 8, 2, 25; Dig. 8, 5, 8,
JUS PROTEGENDI, civil law. The name of a servitude; it is a
right by which a part of the roof or tiling of one house is made to extend over
the adjoining house. Dig. 50, 16, 242, 1 Dig. 8, 2, 25; Dig. 8, 5, 8, 5.
JUS QUAESITUM. A right to ask or recover; for example, in an
obligation there is a binding of the obligor, and a jus quaesitum in the
obligee. 1 Bell's Com. 323, 5th ed.
JUS IN RE, property, title. The right which a man has in a
thing by which it belongs to him. It is a complete and full right. Poth. Dr. de
Dora. de Prop. n. 1.
2. This phrase of the civil law conveys the same idea as thing, in
possession does with us. 4 Wooddes. Lect. 235; vide 2 P. Wins. 491; 1 Mason,
221; 1 Story, Eq. Jur. §506; 2 Story, Eq. Jur. §1215; Story, Ag.
§352; and Jus ad rem.
JUS RELICTA, Scotch law. The right of a wife, after her
hushand's death, to a third of movables, if there be children; and to one-half,
if there be none.
JUS RERUM. The right of things. Its principal object is to
ascertain how far a person can have a permanent dominion over things, and how
that dominion is acquired. Vide Bl. Com. Book 2.
JUS STRICTUM. A Latin phrase, which signifies law interpreted
without any modification, and in its utmost rigor.
JUS UTENDI. The right to use property, without destroying its
substance. It is employed in contradistinction to the jus abutendi. (q. v.) 3
Toull. n. 86.
JUST. This epithet is applied to that which agrees with a given
law which is the test of right and wrong. 1 Toull. prel. n. 5 Aust. Jur. 276,
n. It is that which accords with the perfect rights of others. Wolff, Inst.
§83; Swinb. part 1, s. 2, n. 5, and part 1, §4, n. 3. By just is also
understood full and perfect, as a just weight Swinb. part 1, s. 3, U. 5.
JUSTICE. The constant and perpetual disposition to render every
man his due. Just. Inst. B. 1, tit. 1. Toullier defines it to be the conformity
of our actions and our will to the law. Dr. Civ. Fr. tit. prel. n. 5. In the
most extensive sense of the word, it differs little from virtue, for it
includes within itself the whole circle of virtues. Yet the common distinction
between them is that that which considered positively and in itself, is called
virtue, when considered relatively and with respect to others, has the name of
justice. But justice being in itself a part of virtue, is confined to things
simply good or evil, and consists in a man's taking such a proportion of them
as he ought.
2. Justice is either distributive or commutative. Distributive justice
is that virtue whose object is to distribute rewards and punishments to each
one according to his merits, observing a just proportion by comparing one
person or fact with another, so that neither equal persons have unequal things,
nor unequal persons things equal. Tr. of Eq. 3, and Toullier's learned note,
Dr. Civ. Fr. tit. prel. n. 7, note.
3. Commutative justice is that virtue whose object it is to render to
every one what belongs to him, as nearly as may be, or that which governs
contracts. To render commutative justice, the judge must make an equality
between the parties, that no one may be a gainer by another's loss. Tr. Eq.
4. Toullier exposes the want of utility and exactness in this division
of distributive and commutative justice, adopted in the compendium or
abridgments of the ancient doctors, and prefers the division of internal and
external justice; the first being a conformity of our will, and the latter a
conformity of our actions to the law: their union making perfect justice.
Exterior justice is the object of jurisprudence; interior justice is the object
of morality. Dr. Civ. Fr. tit. prel. n. 6 et 7.
5. According to the Frederician code, part 1, book 1, tit. 2, s. 27,
justice consists simply in letting every one enjoy the rights which he has
acquired in virtue of the laws. And as this definition includes all the other
rules of right, there is properly but one single general rule of right, namely,
Give every one his own. See, generally, Puffend. Law of Nature and Nations, B.
1, c. 7, s. 89; Elementorum Jurisprudentiae Universalis, lib. 1, definito, 17,
3, 1; Gro. lib. 2, c. 11, s. 3; Ld. Bac. Read. Stat. Uses, 306; Treatise of
Equity, B. 1, c. 1, s. 1.
JUSTICES. Judges. Officers appointed by a competent authority
to administer justice. They are so called, because, in ancient times the Latin
word for judge was justicia. This term is in common parlance used to designate
justices of the peace.
JUSTICES IN EYRE. They were certain judges established if not
first appointed, A. D. 1176, 22 Hen. II. England was divided into certain
circuits, and three justices in eyre, or justices itinerant, as they were
sometimes called, were appointed to each district, and made the circuit of the
kingdom once in seven years for the purpose of trying causes. They were
afterwards directed by Magna Charta, c. 12, to be sent into every county once a
year. The itinerant justices were sometimes mere justices of assize or dower,
or of general gaol delivery, and the like. 3 Bl. Com. 58-9; Crabb's Eng. Law,
103-4. Vide Eire.
JUSTICES OF THE PEACE. Public officers invested with judicial
powers for the purpose of preventing breaches of the peace, and bringing to
punishment those who have violated the law.
2. These officers, under the Constitution of the United States and some
of the states, are appointed by the executive in others, they are elected by
the people, and commissioned by the executive. In some states they hold their
office during good behaviour, in others for a limited period.
3. At common law, justices of the peace have a double power in relation
to the arrest of wrong doers; when a felony or breach of the peace has been
committed in their presence, they may personally arrest the offender, or
command others to do so; and in order to prevent the riotous consequences of a
tumultuous assembly, they may command others to arrest affrayers, when the
affray has been committed in their presence. If a magistrate be not present
when a crime is committed, before he can take a step to arrest the offender, an
oath or affirmation must be made by some person cognizant of the fact that the
offence has been committed, and that the person charged is the offender, or
there is probable cause to believe that he has committed the offence.
4. The Constitution of the United States directs, that "no warrants
shall issue, but upon probable cause, supported by oath or affirmation."
Amendm. IV. After his arrest, the person charged is brought before the justice
of the peace, and after bearing he is discharged, held to bail to answer to the
complaint, or, for want of bail, committed to prison.
5. In some, perhaps all the United States, justices of the peace have
jurisdiction in civil cases, given to them by local regulations. In
Pennsylvania, their jurisdiction in cases of contracts, express or implied,
extends to one hundred dollars. Vide, generally, Burn's Justice; Graydon's
Justice Baches Manual of a Justice of the Peace Com. Dig. h. t.; 15 Vin. Ab. 3;
Bac. Ab. h. t.; 2 Sell. Pr. 70; 2 Phil. Ev. 239; Chit. Pr. h. t.; Amer. Dig. h.
JUSTICIAR, or JUSTICIER. A judge, or justice the same as
JUSTICIARII ITINERANTES, Eng. law. They were formerly justices,
who were so called because they went from county to county to administer
justice. They were usually called justices in eyre, (q. v.) to distinguish them
from justices residing at Westminster, who were called justicii residentes. Co.
Litt. 293. Vide Itinerant.
JUSTICIARII RESIDENTES, Eng. law. They were justices or judges,
who usually resided in Westminster; they were so called to distinguish them
from justices in eyre. Co. Litt. 293. Vide Justiciarii Itinerantes.
JUSTICIARY, officer. Another name for a judge. In Latin, he was
called justiciciarius, and in French, justicier. Not used. Bac. Ab. Courts and
their Jurisdiction, A.
JUSTICIES, Eng. law. The name of a writ which acquires its name
from the mandatory words which it contains, "that you do A B justice."
2. The county court has jurisdiction in cases where damages are claimed,
only to a certain amount; but sometimes suits are brought there, when greater
damages are claimed. In such cases, an original writ, by this name, issues out
of chancery, in order to give the court jurisdiction. See 1 Saund. 74, n.
JUSTIFIABLE HOMICIDE. That which is committed with the
intention to kill, or to do a grievous bodily injury, under circumstances which
the law holds sufficient to exculpate the person who commits it.
2. It is justifiable, 1. When a judge or other magistrate acts in
obedience to the law. 2. When a ministerial officer acts in obedience to a
lawful warrant, issued by a competent tribunal. 3. When a subaltern officer, or
soldier, kills in obedience to the lawful commands of his superior. 4. When the
party kills in lawful self-defence.
3. - §1. A judge who, in pursuance of his duty, pronounces sentence
of death, is not guilty of homicide; for it is evident, that as the law
prescribes the punishment of death for certain offences, it must protect those
who are entrusted with its execution. A judge, therefore, who pronounces
sentence of death, in a legal manner, on a legal indictment, legally brought
before him, for a capital offence committed within his jurisdiction, after a
lawful trial and conviction, of the defendant, is guilty of no offence.
4. - 2. Magistrates, or other officers entrusted with the preservation
of the public peace, are justified in committing homicide, or giving orders
which lead to it, if the excesses of a riotous assembly cannot be otherwise be
5 - §2. An officer entrusted with a legal warrant, criminal or
civil, and lawffully commanded by a competent tribunal to execute it, will be
justified in committing homicide, if, in the course of advancing to discharge
his duty, he be brought into such perils that, without doing so, he cannot
either save his life, or discharge the duty which he is commanded by the
warrant to perform. And when the warrant commands him to put a criminal to
death, he is justified in obeying it.
6. - §3. A soldier on duty is justified in committing homicide, in
obedience to the command of his officer, unless the command was something
7. - §4. A private individual will, in many cases, be justified in
committing homicide, while acting in self-defence. See Self-defence. Vide,
generally, 1 East, P. C. 219; Hawk. B. 1, c. 28, s. 1, n. 22; Allis. Prin.
126-139; 1 Russ. on Cr. 538; Bac. Ab. Murder, &c., E; 2 Wash. C. C. 515; 4
Mass. 891; 1 Hawkes, 210; 1 Coxes R. 424; 5 Yerg. 459; 9 C. & P. 22; S. C.
38 Eng. C. L. R. 20.
JUSTIFICATION. The act by which a party accused shows and
maintains a good and legal reason in court, why he did the thing he is called
upon to answer.
2. The subject will be considered by examining, 1. What acts are
justifiable. 2. The manner of making the justification. 3. Its effects.
3. - §1. The acts to be justified are those committed with a
warrant, and those committed without a warrant. 1. It is a general rule, that a
warrant or execution, issued by a court haviug jurisdiction, whether the same
be right or wrong, justifies the officer to whom it is directed and who is by
law required to execute it, and is a complete justification to the officer for
obeying its command. But when the warrant is not merely voidable, but is
absolutely void, as, for want of jurisdiction in the court which issued it, or
by reason of the privilege of the defendant, as in the case of the arrest of an
ambassador, who cannot waive his privilege and immunities by submitting to be
arrested on such warrant, the officer is no longer justified. 1 Baldw. 240; see
4 Mass. 232; 13 Mass. 286, 334; 14 Mass. 210. 2. A person may justify many
acts, while acting without any authority from a court or magistrate. He may
justifiably, even, take the life of an aggressor, while acting in the defence
of himself, his wife, children, and servant, or for the protection of his
house, when attacked with a felonious intent, or even for the protection of his
personal property. See Self-defence. A man may justify what would, otherwise,
have been a trespass, an entry on the land of another for various purposes; as,
for example, to demand a debt due to him by the owner of the land to remove
chattels which belong to him, but this entry must be peaceable; to exercise an
incorporeal right; ask for lodging's at an inn. See 15 East, 615, note e; 2
Lill. Ab. 134; 15 Vin. Ab. 31; Ham. N. P. 48 to 66; Dane's Ab. Index, h. t.;
Entry. It is an ancient principle of the common law, that a trespass may be
justified in many cases. Thus: a man may enter on the land of another, to kill
a fox or otter, which are beasts against the common profit. 11 H. VIII. 10. So,
a house may be pulled down if the adjoining one be on fire, to prevent a
greater destruction. 13 H. VIII. 16, b. Tua res agitur paries cum proximus
ardet. So, the suburbs of a city may be demolished in time of war, for the good
of the commonwealth. 8 Ed. IV. 35, b. So, a man may enter on his neighbor to
make a bulwark in defence of the realm. 21 H. VIII. b. So, a house may be
broken to arrest a felon. 13 Ed. IV. 9, a; Dodd. Eng. Lawy. 219, 220. In a
civil action, a man may justify a libel, or slanderous words, by proving their
truth, or because the defendant had a right, upon the particular occasion,
either to write and publish the writing, or to utter the words; as, when
slanderous words are found in a report of a committee of congress, or in an
indictment, or words of a slanderous nature are uttered in the course of debate
in the legislature by a member, or at the bar, by counsel, when properly
instructed by his client on the subject. See Debate; Slander; Com. Dig.
Pleader, 2 L 3 to 2 L 7.
4.- §2. In general, justification must be specially pleaded, and it
cannot be given in evidence under the plea of the general issue.
5. - §3. When the plea of justification is supported by the
evidence, it is a complete bar to the action. Vide Excuse.
JUSTIFICATORS. A kind of compurgators, or those who, by oath,
justified the innocence or oaths of others, as in the case of wagers of
JUSTIFYING BAIL, practice. The production of bail in court, who
there justify themselves Against the exception of the plaintiff.