LABEL. A narrow slip of paper or parchment, affixed to a deed or
writing hanging at or out of the same. This name is also given to an appending
LABOR. Continued operation; work.
2. The labor and skill of one man is frequently used in a partnership,
and valued as equal to the capital of another.
3. When business has been done for another, and suit is brought to
recover a just reward, there is generally contained in the declaration, a count
for work and labor.
4. Where penitentiaries exist, persons who have committed crimes are
condemned to be imprisoned therein at labor.
LACHES. This word, derived from the French lecher, is nearly
synonymous with negligence.
2. In general, when a party has been guilty of laches in enforcing his
right by great delay and lapse of time, this circumstance will at common law
pre-judice, and sometimes operate in bar of a remedy which it is discretionary
and not compulsory in the court to afford. In courts of equity, also delay will
generally prejudice. 1 Chit. Pr. 786, and the cases there cited; 8 Com. Dig.
684; 6 Johns. Ch. R. 360.
3. But laches may be excused from, ignorance of the party's rights; 2
Mer. R. 362; 2 Ball & Beat. 104; from the obscurity of the transaction; 2
Sch. & Lef. 487; by the pendency of a suit; 1 Sch. & Lef. 413; and
where the party labors under a legal disability, as insanity, coverture,
infancy, and the like. And no laches can be imputed to the public. 4 Mass. Rep.
522; 3 Serg. & Rawle, 291; 4 Henn. & Munf. 57; 1 Penna. R. 476. Vide 1
Supp. to Ves. Jr. 436; 2 Id. 170; Dane's Ab. Index, h. t.; 4 Bouv. Inst. n.
LADY'S FRIEND. The name of a functioner in the British house of
commons. When the husband sues for a divorce, or asks the passage of an act to
divorce him from his wife, he is required to make a provision for her before
the passage of the act; it is the duty of the lady's friend to see that such a
provision is made. Macq. on H. & W. 213. LAGA. The law; Magna Carta;
hence Saxon-lage, Mercen-lage, Dane-lage, &c.
LAGAN.Goods tied to a buoy and cast into the sea are so called.
The same as Ligan. (q.v.)
LAIRESITE. The name of a fine imposed upon those who committed
adultery or fornication. Tech. Dict. h. t.
LAITY. Those persons who do not make a part of the clergy. In
the United States the division of the people into clergy and laity is not
authorized by law, but is, merely conventional.
LAMB. A ram, sheep or ewe, under the age of one year. 4 Car.
& P. 216; S. C. 19 Eng. Com. Law Rep. 351.
LAND. This term comprehends any found, soil or earth whatsoever,
as meadows, pastures, woods, waters, marshes, furze and heath. It has an
indefinite extent upwards as well as downwards; therefore land, legally
includes all houses and other buildings standing or built on it; and whatever
is in a direct line between the surface and the centre of the earth, such as
mines of metals and fossils. 1 Inst. 4 a; Wood's Inst. 120; 2 B1. Com. 18; 1
Cruise on Real Prop. 58. In a more confined sense, the word land is said to
denote "frank tenement at the least." Shepp. Touch. 92. In this sense, then,
leaseholds cannot be said to be included under the word lands. 8 Madd. Rep.
635. The technical sense of the word land is farther explained by Sheppard, in
his Touch. p. 88, thus: "if one be seised of some lands in fee, and possessed
of other lands for years, all in one parish, and he grant all his lands in that
parish (without naming them) in fee simple or for life; by this grant shall
pass no, more but the lands he hath in fee simple." It is also said that land
in its legal acceptation means arable land. 11 Co. 55 a. See also Cro. Car.
293; 2 P. Wms. 458, n.; 5 Ves. 476; 20 Vin. Ab. 203.
2. Land, as above observed, includes in general all the buildings
erected upon it; 9 Day, R. 374; but to this general rule there are some
exceptions. It is true, that if a stranger voluntarily erect buildings on
another's land, they will belong to the owner of the land, and will become a
part of it; 16 Mass. R. 449; yet cases are, not wanting where it has been
decided that such an erection, under peculiar circumstances, would be
considered as personal property. 4 Mass. R. 514; 8 Pick. R. 283, 402; 5 Pick,
R. 487; 6 N. H. Rep. 555; 2 Fairf. R. 371; 1 Dana, R. 591; 1 Burr. 144.
LAND MARK. A monument set up in order to ascertain the
boundaries between two contiguous estates. For removing a land mark an action
lies. 1 Tho. Co. Litt. 787. Vide Monuments.
LAND TENANT. He who actually possesses the land. He is
technically called the terre-tenant. (q. v.)
LANDLORD. He who rents or leases real estate to another.
2. He is bound to perform certain duties and is entitled to certain
rights, which will here be briefly considered. 1st. His obligations are, 1. To
perform all the express covenants into which he has entered in making the
lease. 2. To secure to the tenant the quiet enjoyment of the premises leased;
but a tenant for years has no remedy against his landlord, if he be ousted by
one who has no title, in that case the law leaves him to his remedy against the
wrong doer. Y. B. 22 H. VI. 52 b, and 32 H. VI. 32 b; Cro. Eliz. 214; 2 Leon.
104; and see Bac. Ab. Covenant, B. But the implied covenant for quiet enjoyment
may be qualified, and enlarged or narrowed according to the particular
agreement of the parties; and a general covenant for quiet enjoyment does not
extend to wrongful evictions or disturbances by a stranger. Y. B. 26 H. VIII. 3
b. 3. The landlord is bound by his express covenant to repair the premises, but
unless he bind himself by express covenant the tenant cannot compel him to
repair. 1 Saund. 320; 1 Vent. 26, 44; 1 Sed. 429; 2 Keb. 505; 1 T. R. 812; 1
Sim. R. 146.
3. His rights are, 1. To receive the rent agreed upon, and to enforce
all the express covenants into which the tenant may have entered. 2. To require
the lessee to treat the premises demised in such manner that no injury be done
to the inheritance, and prevent waste. 3. To have the possession of the
premises after the expiration of the lease. Vide, generally, Com. L. & T.,
B. 3, c. 1; Woodf. L. & T. ch. 10; 2 Bl. Com. by Chitty, 275, note; Bouv.
Inst. Index, h. t.; 1 Supp. to Ves. Jr. 212, 246, 249; 2 Id. 232, 403; Com.
Dig. Estate by Grant, G 1; 5 Com. Dig. tit. Nisi Prius Dig. page 553; 8 Com.
Dig. 694; Whart. Dig. Landlord & Tenant. As to frauds between landlord and
tenant, see Hov. Pr. c. 6, p. 199 to 225.
LANGUAGE. The faculty which men possess of communicating their
perceptions and ideas to one another by means of articulate sounds. This is the
definition of spoken language; but ideas and perceptions may be communicated
without sound by writing, and this is called written language. By conventional
usage certain sounds have a definite meaning in one country or in certain
countries, and this is called the language of such country or countries, as the
Greek, the Latin, the French or the English language. The law, too, has a
peculiar language. Vide Eunom. Dial. 2; Technical.
2. On the subjugation of England by William the Conqueror, the French
Norman language was substituted in all law proceedings for the ancient Saxon.
This, according to Blackstone, vol. iii. p. 317, was the language of the
records, writs and pleadings, until the time of Edward III. Mr. Stephen thinks
Blackstone has fallen into an error, and says the record was, from the earliest
period to which that document can be traced, in the Latin language. Plead.
Appx. note 14. By the statute 36 Ed. III. st. 1, c. 15, it was enacted that for
the future all pleas should be pleaded, shown, defended, answered, debated and
judged in the English tongue; but be entered and enrolled in Latin. The Norman
or law French, however, being more familiar as applied to the law, than any
other language, the lawyers continued to employ it in making their notes of the
trial of cases, which they afterwards published, in that barbarous dialect,
under the name of Reports. After the enactment of this statute, on the
introduction of paper pleadings, they followed in the language, as well as in
other respects, the style of the records, which were drawn up in Latin. This
technical language continued in use till the time of Cromwell, when by a
statute the records were directed to be in English; but this act was repealed
at the restoration, by Charles II., the lawyers finding it difficult to express
themselves as well and as concisely in the vernacular as in the Latin tongue;
and the language of the law continued as before till about the year 1730, when
the statute of 4 Geo. II. c. 26, was passed. It provided that both the
pleadings and the records should thenceforward be framed in English. The
ancient terms and expressions which had been so long known in French and Latin
were now literally translated into English. The translation of such terms and
phrases were found to be exceedingly ridiculous. Such terms as nisi prius,
habeas corpus, fieri facias, mandamus, and the like, are not capable of an
English dress with any degree of seriousness. They are equally absurd in the
manner they are employed in Latin, but use and the fact that they are in a
foreign language has made the absurdity less apparent.
3. By statute of 6 Geo. II., c. 14, passed two years after the last
mentioned statute, the use of technical words was allowed to continue in the
usual language, which defeated almost every beneficial purpose of the former
statute. In changing from one language to another, many words and technical
expressions were retained in the new, which belonged to the more ancient
language, and not seldom they partook of both; this, to the unlearned student,
has given an air of confusion, and disfigured the language of the law. It has
rendered essential also the study of the Latin and French languages. This
perhaps is not to be regretted, as they are the keys which open to the ardent
student vast stores of knowledge. In the United States, the records, pleadings,
and all law proceedings are in the English language, except certain technical
terms which retain their ancient French and Latin dress.
4. Agreements, contracts, wills and other instruments, may be made in
any language, and will be enforced. Bac. Ab. Wills, D 1. And a slander spoken
in a foreign language, if understood by those present, or a libel published in
such language, will be punished as if spoken or written in the English
language. Bac. Ab. Slander, D 3; 1 Roll. Ab. 74; 6 T. R. 163. For the
construction of language, see articles Construction; Interpretation; and
Jacob's Intr. to the Com. Law Max. 46.
5. Among diplomatists, the French language is the one commonly used. At
an early period the Latin was the diplomatic language in use in Europe. Towards
the end of the fifteenth century that of Spain gained the ascendancy, in
consequence of the great influence which that country then exercised in Europe.
The French, since the age of Louis XIV. has become the almost universal
diplomatic idiom of the civilized world, though some states use their national
language in treaties and diplomatic correspondence. It is usual in these cases
to annex to the papers transmitted, a translation in the language of the
opposite party; wherever it is understood this comity will be reciprocated.
This is the usage of the Germanic confederation, of Spain, and of the Italian
courts. When nations using a common language, as the United States and Great
Britain, treat with each other, such language is used in their diplomatic
Vide, generally, 3 Bl. Com. 323; 1 Chit., Cr. Law, *415; 2 Rey,
Institutions Judiciaires de l'Angleterre, 211, 212.
LANGUIDUS, practice. The name of a return made by the sheriff,
when a defendant whom he has taken by virtue of process is so dangerously sick
that to remove him would endanger his life or health. In that case the officer
may and ought unquestionably to abstain from removing him, and may permit him
to remain even in his own house, in the custody of a follower, though not named
in the warrant, he keeping the key of the house in his possession the officer
ought to remove him as soon is sufficiently recovered. If there be a doubt as
to the state of health of the defendant, the officer should require the
attendance and advice of some respectable medical man, and require him, at the
peril of the consequences of misrepresentation, to certify in writing whether
it be fit to remove the party, or take him to prison within the county. 3 Chit.
Pr. 358. For a form of the return of languidus, see 3 Chit. P. 249; T. Chit.
LAPSE, eccl. law. The transfer, by forfeiture, of a right or
power to present or collate to a vacant benefice, from, a person vested with
such right, to another, in consequence of some act of negligence of the former.
Ayl. Parerg. 331.
LAPSED LEGACY. One which is extinguished. The extinguishment may
take place for various reasons. See Legacy, Lapsed.
2. A distinction has been made between a lapsed devise of real estate
and a lapsed legacy of personal estate. The real estate which is lapsed does
not fall into the residue, unless so provided by the will, but descends to the
heir at law; on the contrary, personal property passes by the residuary clause
where it is not otherwise disposed of. 2 Bouv. Inst. 2154-6.
LARCENY, crim. law. The wrongful and fraudulent taking and
carrying away, by one person, of the mere personal goods, of another, from any
place, with a felonious intent to convert them to his, the taker's use, and
make them his property, without the consent of the owner. 4 Wash. C. C. R.
2. To constitute larceny, several ingredients are necessary. 1. The
intent of the party must be felonious; he must intend to appropriate the
property of another to his own use; if, therefore, the accused have taken the
goods under a claim of right, however unfounded, he has not committed a
3. - 2. There must be a taking from the possession, actual or implied,
of the owner; hence if a man should find goods, and appropriate them to his own
use, he is not a thief on this account. Mart. and Yerg. 226; 14 John. 294;
4. - 3. There must be a taking against the will of the owner, and this
may be in some cases, where he appears to consent; for example, if a man
suspects another of an intent to steal his property, and in order to try him
leaves it in his way, and he takes it, he is guilty of larceny. The taking must
be in the county where the criminal is to be tried. 9 C. & P. 29; S. C. 38
E. C. L. R. 23; Ry. & Mod. 349. But when the taking has been in the county
or state, and the thief is caught with the stolen property in another county
than that where the theft was committed, he may be tried in the county where
arrested with the goods, as by construction of law, there is a fresh taking in
every county in which the thief carries the stolen property.
5. - 4. There must be an actual carrying away, but the slightest
removal, if the goods are completely in the power of the thief, is sufficient
to snatch a diamond from a lady's ear, which is instantly dropped among the
curls of her hair, is a sufficient asportation or carrying away.
6. - 5. The property taken must be personal property; a man cannot
commit larceny of real estate, or of what is so considered in law. A familiar
example will illustrate this; an apple, while hanging on the tree where it
grew, is real estate, having never been separated from the freehold; it is not
larceny, therefore, at common law, to pluck an apple from the tree, and
appropriate it to one's own use, but a mere trespass; if that same apple,
however, had been separated from the tree by the owner or otherwise, even by
accident, as if shaken by the wind, and while lying on the ground it should be
taken with a felonious intent, the taker would commit a larceny, because then
it was personal property. In some states there are statutory provisions to
punish the felonious taking of emblements or fruits of plants, while the same
are hanging by the roots, and there the felony is complete, although the thing
stolen is not, at common law, strictly personal property. Animals ferae
naturae, while in the enjoyment of their natural liberty, are not the subjects
of larceny; as, doves; 9 Pick. 15; Bee. 3 Binn. 546. See Bee; 5 N. H. Rep. 203.
At common law, choses in action are not subjects of larceny. 1 Port. 33.
7. Larceny is divided in some states, into grand and petit larceny this
depends upon the value of the property stolen. Vide 1 Hawk, 141 to 250, ch. 19;
4 Bl. Com. 229 to 250; Com. Dig. Justices, O 4, 5, 6, 7, 8; 2 East's P. C. 524
to 791; Burn's Justice, Larceny; Williams' Justice, Felony; 3 Chitty's Cr. Law,
917 to 992; and articles Carrying Away; Invito Domino; Robbery; Taking; Breach,
LARGE. Broad; extensive; unconfined. The opposite of strict,
narrow, or confined. At large, at liberty.
LAS PARTIDAS. The name of a code of Spanish law; sometimes
called las siete partidas, or the seven parts, from the number of its principal
divisions. It is a compilation from the civil law, the customary law of Spain,
and the canon law. Such of its provisions is are applicable are in force in
Louisiana, Florida, and Texas.
LASCIVIOUS CARRIAGE, law of Connecticut. An offence, ill
defined, created by statute, which enacts that every person who shall be guilty
of lascivious carriage and behaviour, and shall be thereof duly convicted,
shall be punished by fine, not exceeding ten dollars, or by imprisonment in a
common gaol, not exceeding two months, or by fine and imprisonment, or both, at
the discretion of the court. This law was passed at a very early period. Though
indefinite in its terms, it has received a construction so limiting it, that it
may be said to punish those wanton acts between persons of different sexes, who
are not married to each other, that flow from the exercise of lustful passions,
and which are not otherwise punished as crimes against chastity and public
decency. 2 Swift's Dig. 343; 2 Swift's Syst. 331.
2. Lascivious carriage may consist not only in mutual acts of wanton and
indecent familiarity between persons of different sexes, but in wanton and
indecent actions against the will, and without the consent of one of them, as
if a man should forcibly attempt to pull up the clothes of a woman. 5 Day,
LAST RESORT. A court of last resort, is one which decides,
definitely, without appeal or writ of error, or any other examination whatever,
a suit or action, or some other matter, which has been submitted to its
judgment, and over which it has jurisdiction.
2. The supreme court is a court of last resort in all matters which
legally come before it; and whenever a court possesses the power to decide
without appeal or other examination whatever, a subject matter submitted to it,
it is a court of last resort; but this is not to be understood as preventing an
examination into its jurisdiction, or excess of authority, for then the
judgment of a superior does not try and decide so much whether the point
decided has been so done according to law, as to try the authority of the
LAST SICKNESS. That of which a person died.
2. The expenses of this sickness are generally entitled to a preference,
in payment of debts of an insolvent estate. Civ. Code of Lo. art. 3166; Purd.
3. To prevent impositions, the statute of frauds requires that
nuncupative wills shall be made during the testator's last sickness. Rob. on
Frauds, 556; 20 John. R. 502.
LATENT, construction. That which is concealed; or which does not
appear; for example, if a testator bequeaths to his cousin Peter his white
horse; and at the time of making his will and at his death he had two cousins
named Peter, and he owned two white horses, the ambiguity in this case would be
latent, both as respects the legatee, and the thing bequeathed. Vide Bac. Max.
Reg. 23, and article Ambiguity. A latent ambiguity can only be made to appear
by parol evidence, and may be explained by the same kind of proof. 5 Co.
LATITAT, Eng. law. He lies hid. The name of a writ calling a
defendant to answer to a personal action in the king's bench; it derives its
name from a supposition that the defendant lurks and lies hid, and cannot be
found in the county of Middlesex, (in which the said court is holden,) to be
taken there, but is gone into some other county, and therefore requiring the
sheriff to apprehend him in such other county. Fitz. N. B. 78.
LAUNCHES. Small vessels employed to carry the cargo of a large
one to and from the shore; lighters. (q. v.)
2. The goods on board of a launch are at the risk of the insurers till
landed. 5 N. S. 887. The duties and rights of the master of a launch are the
same as those of the master of a lighter.
LAW. In its most general and comprehensive sense, law signifies
a rule of action; and this term is applied indiscriminately to all kinds of
action; whether animate or inanimate, rational or irrational. 1 Bl. Com. 38. In
its more confined sense, law denotes the rule, not of actions in general, but
of human action or conduct. In the civil code of Louisiana, art. 1, it is
defined to be "a solemn expression of the legislative will." Vide Toull. Dr.
Civ. Fr. tit. prel. s. 1, n. 4; 1 Bouv. Inst. n. 1-3.
2. Law is generally divided into four principle classes, namely; Natural
law, the law of nations, public law, and private or civil law. When considered
in relation to its origin, it is statute law or common law. When examined as to
its different systems it is divided into civil law, common law, canon law. When
applied to objects, it is civil, criminal, or penal. It is also divided into
natural law and positive law. Into written law, lex scripta; and unwritten law,
lex non scripta. Into law merchant, martial law, municipal law, and foreign
law. When considered as to their duration, laws are immutable and arbitrary or
positive; when as their effect, they are prospective and retrospective. These
will be separately considered.
LAW, ARBITRARY. An arbitrary law is one made by the legislator
simply because he wills it, and is not founded in the nature of things; such
law, for example, as the tariff law, which may be high or low. This term is
used in opposition to immutable.
LAW, CANON. The canon law is a body of Roman ecclesiastical law,
relative to such matters as that church either has or pretends to have the
proper jurisdiction over:
2. This is compiled from the opinions of the ancient Latin fathers, the
decrees of general councils, and the decretal epistles and bulls of the holy
see. All which lay in the same confusion and disorder as the Roman civil law,
till about the year 1151, when one Gratian, an Italian monk, animated by the
discovery of Justinian's Pandects, reduced the ecclesiastical constitutions
also into some method, in three books, which he entitled Concordia
discordantium canonum, but which are generally known by the name of Decretum
Gratiani. These reached as low as the time of Pope Alexander III. The
subsequent papal decrees to the pontificate of Gregory IX., were published in
much the same method, under the auspices of that pope, about the year 1230, in
five books, entiled Decretalia Gregorii noni. A sixth book was added by
Boniface VIII., about the year 1298, which is called Sextus decretalium. The
Clementine constitution or decrees of Clement V., were in like manner
authenticated in 1317, by his successor, John XXII., who also published twenty
constitutions of his own, called the Extravagantes Joannis, all of which in
some manner answer to the novels of the civil law. To these have since been
added some decrees of the later popes, in five books called Extravagantes
communes. And all these together, Gratian's Decrees, Gregory's Decretals, the
Sixth Decretals, the Clementine Constitutions, and the Extravagants of John and
his successors, form the Corpus juris canonici, or body of the Roman canon law.
1 Bl. Com. 82; EncyclopÇdie, Droit Canonique, Droit Public
Ecclesiastique; Dict. de Jurispr. Droit Canonique; Ersk. Pr. L. Scotl. B. 1, t.
1, s. 10. See, in general, Ayl. Par. Jur. Can. Ang.; Shelf. on M. & D. 19;
Preface to Burn's Eccl. Law, by Thyrwhitt, 22; Hale's Hist. C. L. 26-29; Bell's
Case of a Putative Marriage, 203; Dict. du Droit Canonique; Stair's Inst. b. 1,
t. 1, 7.
LAW, CIVIL. The term civil law is generally applied by way of
eminence to the civil or municipal law of the Roman empire, without distinction
as to the time when the principles of such law were established or modified. In
another sense, the civil law is that collection of laws comprised in the
institutes, the code, and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Ersk. Pr. L. Scotl. B. 1,
t. l, s. 9; 6 L. R. 494.
2. The Institutes contain the elements or first principles of the Roman
law, in four books. The Digests or Pandects are in fifty books, and contain the
opinions and writings of eminent lawyers digested in a systematical method,
whose works comprised more than two thousand volumes, The new code, or
collection of imperial constitutions, in twelve books; which was a substitute
for the code of Theodosius. The novels or new constitutions, posterior in time
to the other books, and amounting to a supplement to the code, containing new
decrees of successive emperors as new questions happened to arise. These form
the body of the Roman law, or corpus juris civilis, as published about the time
3. Although successful in the west, these laws were not, even in the
lifetime of the emperor universally received; and after the Lombard invasion
they became so totally neglected, that both the Code and Pandects were lost
till the twelfth century, A. D. 1130; when it is said the Pandects were
accidentally discovered at Amalphi, and the Code at Ravenna. But, as if fortune
would make an atonement for her former severity, they have since been the study
of the wisest men, and revered as law, by the politest nations.
4. By the term civil law is also understood the particular law of each
people, opposed to natural law, or the law of nations, which are common to all.
Just. Inst. l. 1, t. 1, §1, 2; Ersk. Pr. L. Scot. B. 1, t. 1, s. 4. In
this sense it, is used by Judge Swift. See below.
5. Civil law is also sometimes understood as that which has emanated
from the secular power opposed to the ecclesiastical or military.
6. Sometimes by the term civil law is meant those laws which relate to
civil matters only; and in this sense it is opposed to criminal law, or to
those laws which concern criminal matters. Vide Civil.
7. Judge Swift, in his System of the Laws of Connecticut, prefers the
term civil law, to that of municipal law. He considers the term municipal to be
too limited in its signification. He defines civil law to be a rule of human
action, adopted by mankind in a state of society, or prescribed by the supreme
power of the government, requiring a course of conduct not repugnant to
morality or religion, productive of the greatest political happiness, and
prohibiting actions contrary thereto, and which is enforced by the sanctions of
pains and penalties. 1 Sw. Syst. 37. See Ayl. Pand. B. 1, t. 2, p. 6.
See, in general, as to civil law, Cooper's Justinian the Pandects; 1 Bl.
Com. 80, 81; EncyclopÇdie, art. Droit Civil, Droit Romain; Domat, Les
Loix Civiles; Ferriere's Dict.; Brown's Civ. Law; Halifax's Analys. Civ. Law;
Wood's Civ. Law; Ayliffe's Pandects; Heinec. Elem. Jur.; Erskine's Institutes;
Pothier; Eunomus, Dial. 1; Corpus Juris Civilis; Taylor's Elem. Civ. Law.
LAW, COMMON. The common law is that which derives its force and
authority from the universal consent and immemorial practice of the people. It
has never received the sanction of the legislature, by an express act, wbich is
the criterion by which it is distinguished from the statute law. It has never
been reduced to writing; by this expression, however, it is not meant that all
those laws are at present merely oral, or communicated from former ages to the
present solely by word of mouth, but that the evidence of our common law is
contained in our books of Reports, and depends on the general practice and
judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of
England, and the practice and decision of our own courts. In some states the
English common law has been adopted by statute. There is no general rule to
ascertain what part of the English common law is valid and binding. To run the
line of distinction, is a subject of embarrassment to courts, and the want of
it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be
observed generally, that it is binding where it has not been superseded by the
constitution of the United States, or of the several states, or by their
legislative enactments, or varied by custom, and where it is founded in reason
and consonant to the genius and manners of the people.
3. The phrase "common law" occurs in the seventh article of the
amendments of the constitution of the United States. "In suits at common law,
where the value in controversy shall not exceed twenty dollar says that
article, "the right of trial by jury shall be preserved. The "common law" here
mentioned is the common law of England, and not of any particular state. 1
Gallis. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. The term
is used in contradistinction to equity, admiralty, and maritime law. 3 Pet.
446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that
of the United States, or of the several states; its general principles are
adopted only so far as they are applicable to our situation. 2 Pet, 144; 8 Pet.
659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har.
& John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5 Pet.
241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55; 3 Gill
& John. 62; Sampson's Discourse before the Historical Society of New York;
1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1
Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628;
2 Stew. R. 362.
LAW, CRIMINAL. By criminal law is understood that system of laws
which provides for the mode of trial of persons charged with criminal offences,
defines crimes, and provides for their punishments.
LAW, FOREIGN. By foreign laws are understood the laws of a
foreign country. The states of the American Union are for some purposes foreign
to each other, and the laws of each are foreign in the others. See Foreign
LAW, INTERNATIONAL. The law of nature applied to the affairs of
nations, commonly called the law of nations, jus gentium; is also called by
some modern authors international law. Toullier, Droit Francais, tit. rel.
§12. Mann. Comm. 1; Bentham. on Morals, &c., 260, 262; Wheat. on Int.
Law; Foelix, Du Droit Intern. PrivÇ, n. 1.
LAW, MARTIALMartial law is a code established for the government
of the army and navy of the United States.
2. Its principal rules are to be found in the articles of war. (q. v.)
The object of this code, or body of regulations is to, maintain that order and
discipline, the fundamental principles of which are a due obedience of the
several ranks to their proper officers, a subordination of each rank to their
superiors, and the subjection of the whole to certain rules of discipline,
essential to their acting with the union and energy of an organized body. The
violations of this law are to be tried by a court martial. (q. v.)
3. A military commander has not the power, by declaring a district to be
under martial law, to subject all the citizens to that code, and to suspend the
operation of the writ of habeas corpus. 3 Mart. (Lo.) 531. Vide Hale's Hist. C.
L. 38; 1 Bl. Com. 413; Tytler on Military Law; Ho. on C. M.; M'Arth. on C. M.;
Rules and Articles of War, art. 64, et seq; 2 Story, L. U. S. 1000.
LAW, MERCHANT. A system of customs acknowledged and taken notice
of by all commercial nations; and those customs constitute a part of the
general law of the land; and being a part of that law their existence cannot be
proved by witnesses, but the judges are bound to take notice of them ex
officio. See Beawes' Lex Mercatoria Rediviva; Caines' Lex Mercatoria Americana;
Com. Dig. Merchant, D; Chit. Comm. Law; Pardess. Droit Commercial; Collection
des Lois Maritimes antÇrieure au dix hutiäme siäcle, par
Dupin; Capmany, Costumbres Maritimas; II Consolato del Mare; Us et Coutumes de
la Mer; Piantandia, Della Giurisprudenze Maritina Commerciale, Antica e
Moderna; Valin, Commentaire sur l'Ordonnance de la Marine, du Mois
d'Aoñt, 1681; Boulay-Paty, Dr. Comm.; Boucher, Institutions au Droit
LAW, MUNICIPAL. Municipal law is defined by Mr. Justice
Blackstone to be "a rule of civil conduct prescribed by the supreme power in a
state, commanding what is right and prohibiting what is wrong." This definition
has been criticised, and has been perhaps, justly considered imperfect. The
latter part has been thought superabundant to the first; see Mr. Christian's
note; and the first too general and indefinite, and too limited in its
signification to convey a just idea of the subject. See Law, civil. Mr. Chitty
defines municipal law to be "a rule of civil conduct, prescribed by the supreme
power in a state, commanding what shall be done or what shall not be done." 1
Bl. Com. 44, note 6, Chitty's edit.
2. Municipal law, among the Romans, was a law made to govern a
particular city or province; this term is derived from the Latin municipium,
which among them signified a city which was governed by its own laws, and which
had its own magistrates.
LAW OF NATIONS. The science which teaches the rights subsisting
between nations or states, and the obligations correspondent to those rights.
Vattel's Law of Nat. Prelim. §3. Some complaints, perhaps not unfounded,
have been made as to the want of exactness in the definition of this term.
Mann. Comm. 1. The phrase "international law" has been proposed, in its stead.
1 Benth. on Morals and Legislation, 260, 262. It is a system of rules deducible
by natural reason from the immutable principles of natural justice, and
established by universal consent among the civilized inliabitants of the world;
Inst. lib. 1, t. 2, §1; Dig. lib. 1, t. 1, l. 9; in order to decide all
disputes, and to insure the observance of good faith and justice in that
intercourse which must frequently occur between them and the individuals
belonging to each or it depends upon mutual compacts, treaties, leagues and
agreements between the separate, free, and independent communities.
2. International law is generally divided into two branches; 1. The
natural law of nations, consisting of the rules of justice applicable to the
conduct of states. 2. The positive law of nations, which consist of, 1. The
voluntary law of nations, derived from the presumed consent of nations, arising
out of their general usage. 2. The conventional law of nations, derived from
the express consent of nations, as evidenced in treaties and other
international compacts. 3. The customary law of nations, derived from the
express consent of nations, as evidenced in treaties and other international
compacts between themselves. Vattel, Law of Nat. Prel.
3. The various sources and evidence of the law of nations, are the
1. The rules of conduct, deducible by reason from the nature of
society existing among independent states, which ought to be observed among
nations. 2. The adjudication of international tribunals, such as prize courts
and boards of arbitration. 3. Text writers of authority. 4. Ordinances or laws
of particular states, prescribing rules for the conduct of their commissioned
cruisers and prize tribunal's. 5. The history of the wars, negotiations,
treaties of peace, and other matters relating to the public intercourse of
nations. 6. Treaties of peace, alliance and commerce, declaring, modifying, or
defining the pre-existing international law. Wheat. Intern. Law, pt. 1, c. 1,
4. The law of nations has been divided by writers into necessary and
voluntary; or into absolute and arbitrary; by others into primary and
secondary, which latter has been divided into customary and conventional.
Another division, which is the one more usually employed, is that of the
natural and positive law of nation's. The natural law of nations consists of
those rules, which, being universal, apply to all men and to all nations, and
which may be deduced by the assistance of revelation or reason, as being of
utility to nations, and inseparable from their existence. The positive law of
nations consists of rules and obligations, which owe their origin, not to the
divine or natural law, but to human compacts or agreements, either express or
unplied; that is, they are dependent on custom or convention.
5. Among the Romans, there were two sorts of laws of nations, namely,
the primitive, called primarium, and the other known by the name of
secundarium. The primarium, that is to say, primitive or more ancient, is
properly the only law of nations which human reason suggests to men; as the
worship of God, the respect and submission which children have for their
parents, the attachment which citizens have for their country, the good faith
which ought to be the soul of every agreement, and the like. The law of nations
called secundarium, are certain usages which have been established among men,
from time to time, as they have been felt to be necessary. Ayl. Pand. B. 1, t.
2, p. 6.
As to the law of, nations generally, see Vattel's Law of Nations; Wheat.
on Intern. Law; Marten's Law of Nations; Chitty's Law of Nations; Puffend. Law
of Nature and of Nations, book 3; Burlamaqui's Natural Law, part 2, c. 6;
Principles of Penal Law, ch. 13; Mann. Comm. on the Law of Nations; Leibnitz,
Codex Juris Gentium Diplomaticus; Binkershoek, Quaestionis Juris Publici, a
translation of the first book of which, made by Mr. Duponceau, is published in
the third volume of Hall's Law Journal; Kuber, Droit des Gens Modeme de
I'Europe; Dumont, Corps Diplomatique; Mably, Droit Public de l'Europe; Kent's
Comm. Lecture 1.
LAW OF NATURE. The law of nature is that which God, the
sovereign of the universe, has prescribed to all men, not by any formal
promulgation, but by the internal dictate of reason alone. It is discovered by
a just consideration of the agreeableness or disagreeableness of human actions
to the nature of man; and it comprehends all the duties which we owe either to
the Supreme Being, to ourselves, or to our neighbors; as reverence to God,
self-defence, temperance, honor to our parents, benevolence to all, a strict
adherence to our engagements, gratitude, and the like. Erskines Pr. of L. of
Scot. B. 1, t. 1, s. 1. See Ayl. Pand. tit. 2, p. 5; Cicer. de Leg. lib. 1.
2. The primitive laws of nature may be reduced to six, namely: 1.
Comparative sagacity, or reason. 2. Self-love. 3. The attraction of the sexes
to each other. 4. The tendemess of parents towards their children. 5. The
religious sentiment. 6. Sociability.
3. - 1. When man is properly organized, he is able to discover moral
good from moral evil; and the study of man proves that man is not only an
intelligent, but a free being, and he is therefore responsible for his actions.
The judgment we form of our good actions, produces happiness; on the contrary
the judgment we form of our bad actions produces unhappiness.
4. - 2. Every animated being is impelled by nature to his own
preservation, to defend his life and body from injuries, to shun what may be
hurtful, and to provide all things requisite to his existence. Hence the duty
to watch over his own preservation. Suicide and duelling are therefore contrary
to this law; and a man cannot mutilate himself, nor renounce his liberty.
5. - 3. The attraction of the sexes has been provided for the
preservation of the human race, and this law condemns celibacy. The end of
marriage proves that polygamy, (q. v.) and polyendry, (q. v.) are contrary to
the law of nature. Hence it follows that the husband and wife have a mutual and
exclusive right over each other.
6. - 4. Man from his birth is wholly unable to provide for the least of
his necessities; but the love of his parents supplies for this weakness. This
is one of the most powerful laws of nature. The principal duties it imposes on
the parents, are to bestow on the child all the care its weakness requires, to
provide for its necessary food and clothing, to instruct it, to provide for its
wants, and to use coercive means for its good, when requisite.
7. - 5. The religious sentiment which leads us naturally towards the
Supreme Being, is one of the attributes which belong to humanity alone; and its
importance gives it the rank of the moral law of nature. From this sentiment
arise all the sects and different forms of worship among men.
8. - 6. The need which man feels to live in society, is one of the
primitive laws of nature, whence flow our duties and rights; and the existence
of society depends upon the condition that the rights of all shall be
respected. On this law are based the assistance, succors and good offices which
men owe to each other, they being unable to provide each every thing for
LAW, PENAL. One which inflicts a penalty for a violation of its
LAW, POSITIVE. Positive law, as used in opposition to natural
law, may be considered in a threefold point of view. 1. The universal voluntary
law, or those rules which are presumed to be law, by the uniform practice of
nations in general, and by the manifest utility of the rules themselves. 2. The
customary law, or that which, from motives of convenience, has, by tacit, but
implied agreement, prevailed, not generally indeed among all nations, nor with
so permanent a utility as to become a portion of the universal voluntary law,
but enough to have acquired a prescriptive obligation among certain states so
situated as to be mutually benefited by it. 1 Taunt. 241. 3. The conventional
law, or that which is agreed between particular states by express treaty, a law
binding on the parties among whom such treaties are in force. 1 Chit. Comm.
LAW, PRIVATE. An act of the legislature which relates to some
private matters, which do not concern the public at large.
LAW, PROSPECTIVE. One which provides for, and regulates the
future acts of men, and does not interfere in any way with what has past.
LAW, PUBLIC. A public law is one in which all persons have an
LAW, RETROSPECTIVE. A retrospective law is one that is to take
effect, in point of time, before it was passed.
2. Whenever a law of this kind impairs the obligation of contracts, it
is void. 3 Dall. 391. But laws which only vary the remedies, divest no right,
but merely cure a defect in proceedings otherwise fair, are valid. 10 Serg.
& Rawle, 102, 3; 15 Serg. & Rawle, 72. See Ex post facto.
LAW, STATUTE. The written will of the legislature, solemnly
expressed according to the forms prescribed by the constitution; an act of the
legislature. See Statute.
LAW, UNWRITTEN, or lex non scripta. All the laws which do not
come under the definition of written law; it is composed, principally, of the
law of nature, the law of nations, the common law, and customs.
LAW, WRITTEN, or lex scripta. This consists of the constitution
of the United States the constitutions of the several states the acts of the
different legislatures, as the acts of congress, and of the legislatures of the
several states, and of treaties. See Statute.
LAWFUL. That which is not forbidden by law. Id omne licitum est,
quod non est legibus prohibitum, quamobrem, quod, lege permittente, fit, poenam
non meretur. To be valid a contract must be lawful.
LAWLESS. Without law; without lawful control.
LAWS EX POST FACTO. Those which are made to punish actions
committed before the existence of such laws, and which had not been declared
crimes by preceding laws. Declar. of Rights, Mass. part 1, s. 24 Declar. of
Rights, Maryl. art. 15. By the constitution of the United States and those of
the several states, the legislatures are forbidden to pass ex post facto laws.
Const. U. S. art. 1, s. 10, subd. 1.
2. There is a distinction between ex post facto laws and retrospective
laws; every ex post facto law must necessarily be retrospective, but every
retro-spective law is not an ex post facto law; the former only are
3. Laws under the following circumstances are to be considered ex post
facto laws, within the words and intents of the prohibition 1st. Every law that
makes an act done before the passing of the law, and which was innocent when
done, criminal, and punishes such action. 2d. Every law that aggravates a
crime, or makes it greater than it was when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment than the law annexed
to the crime when committed. 4th. Every law that alters the legal rules of
evidence and receives less, or different testimony, than the law required at
the time of the commission of the offence, in order to convict the offender. 3
4. The policy, the reason and humanity of the prohibition against
passing ex post facto laws, do not extend to civil cases, to cases that merely
affect the private property of citizens. Some of the most necessary acts of
legislation are, on the contrary, founded upon the principles that private
rights must yield to public exigencies. 3 Dall. 400; 8 Wheat. 89; see 1 Cranch,
109; 1 Gall. Rep. 105; 9 Cranch, 374; 2 Pet. S. C. R. 627; Id. 380; Id.
LAWS OF THE TWELVE TABLES. Laws of ancient Rome composed in part
from those of Solon, and other Greek legislators, and in part from the
unwritten laws or customs of the Romans. These laws first appeared in the year
of Rome 303, inscribed on ten plates of brass. The following year two others
were added, and the entire code bore the name of the Laws of the Twelve Tables.
The principles they contained became the source of all the Roman law, and serve
to this day as the foundation of the jurisprudence of the greatest part of
See a fragment of the Law of the twelve Tables in Coop. Justinian, 656;
Gibbon's Rome, c. 44.
LAWS OF THE HANSE TOWNS. A code of maritime laws known as the
laws of the Hanse towns, or the ordinances of the Hanseatic towns, was first
published in German, at Lubec, in 1597. In an assembly of deputies from the
several towns held at Lubec, these laws were afterwards, May 23, 1614, revised
and enlarged. The text of this digest, and a Latin translation, are published
with a commentary by Kuricke; and a French translation has been given by
LAWS OF OLERON, maritime law. A code of sea laws of deserved
celebrity. It was originally promulgated by Eleonor, duchess of Guienne, the
mother of Richard the First of England. Returning from the Holy Land, and
familiar with the maritime regulations of the Archipelago, she enacted these
laws at Oleron in Guienne, and they derive their title from the place of their
publication. The language in which they were originally written is the Gascon,
and their first object appears to have been the commercial operations of that
part of France only. Richard I., of England, who inherited the dukedom of
Guienne from his mother, improved this code, and introduced it into England.
Some additions were made to it by King John; it was prormulgated anew in the
50th year of Henry III., and received its ultimate confirmation in the 12th
year of Edward III. Brown's Civ. and Adm. Law, vol. ii. p. 40.
2. These laws are inserted in the beginning of the book entitled "Us et
Coutumes de la Mer," with a very excellent commentary on each section by
Clairac, the learned editor. A translation is to be found in the Appendix to 1
Pet. Adm. Dec.; Marsh. Ins. B. 1, c. 1, p. 16. See Laws of Wisbuy: Laws of the
Hanse Towns; Code
LAWS OF WISBUY, maritime law. A code of sea laws established by
"the merchants and masters of the magnificent city of Wisbuy." This city was
the ancient capital of Gothland, an island in the Baltic sea, anciently much
celebrated for its commerce and wealth, now an obscure and inconsiderable
place. Malyne, in his collection of sea laws, p. 44, says that the laws of
Oleron were translated into Dutch by the people of Wisbuy for the use of the
Dutch coast. By Dutch probably means German, and it cannot be denied that many
of the provisions contained in the Laws of Wisbuy, are precisely the same as
those which are found in the Laws of Oleron. The northern writers pretend
however that they are more ancient than the Laws of Oleron, or than even the
Consolato del Mare. Clairac treats this notion with contempt, and declares that
at the time of the promulgation of the laws of Oleron, in 1266, which was many
years after they were compiled, the magnificent city of Wisbuy had not yet
acquired the denomination of a town. Be this as it may, these laws were for
some ages, and indeed still remain, in great authority in the northern part of
Europe. "Lex Rhodia navalis," says Grotius, "pro jure gentium, in illo mare
Mediteraneo vigebat; sicut apud Gallium leges Oleronis, et apud omnes
transrhenanos, leges Wisbuenses." Grotius de Jure bel. lib. 2, c. 3.
A translation of these laws is to be found in 1 Peter's Adm. Dee.
Appendix. See Code; Laws of Oleron.
LAWS, RHODIAN, maritime. law. A code of laws adopted by the
people of Rhodes, who had, by their commerce and naval victories, obtained the
sovereignty of the sea, about nine hundred. years before the Christian era.
There is reason to suppose this code has not been transmitted to posterity, at
least not in a perfect state. A collection of marine constitutions, under the
denomination of Rhodian Laws, may be seen in Vinnius, but they bear evident
marks of a spurious origin. See Marsh. Ins. B. 1, c. 4, p. 15; this Dict. Code;
Laws of Oleron; Laws of Wisbuy; Laws of the Hanse Towns.
LAWYER. A counsellor; one learned in the law. Vide dttorney.
LEGACY. A bequest or gift of goods or chattels by testament. 2
Bl. Com. 512; Bac. Abr. Legacies, A. See Merlin, RÇpertoire, mot Legs,
s. 1; Swinb. 17; Domat, liv. 4, t. 2, §1, n. 1. This word, though properly
applicable to bequests of personal estate only, has nevertheless been extended
to property not technically within its import, in order to effectuate the
intention of the testator, so as to include real property and annuities. 5 T.
R. 716; 1 Burr. 268; 7 Ves. 522; Id. 391; 2 Cain. R. 345. Devise is the term
more properly applied to gifts of real estate. Godolph. 271.
2. As the testator is presumed at the time of making his will to be
inops concilii, his intention is to, be sought for, and any words which
manifest the intention to give or create a legacy, are sufficient. Godolph.
281, pt. 3, c. 22, s. 21; Com. Dig. Chancery, 3 Y 4; Bac. Abr. Legacies, B
3. Legacies are of different kinds; they may be considered as general,
specific, and residuary. 1. A legacy is general, when it is so given as not to
amount to a bequest of a specific part of a testator's personal estate; as of a
sum of money generally, or out of the testator's personal estate, or the like.
1 Rop. Leg. 256; Lownd. Leg. 10. A general legacy is relative to the testator's
death; it is a bequest of such a sum or such a thing at that time, or a
direction to the executors, if such a thing be not in the testator's possession
at that time, to procure it for the legatee. Cas. Temp. Talb. 227; Ambl. 57; 4
Ves. jr. 675; 7 Ves. jr. 399.
4. - 2. A specific legacy is a bequest of a particular thing, or money
specified and distinguished from all other things of the same kind; as of a
particular horse, a particular piece of plate, a particular term of years, and
the like, which would vest immediately, with the assent of the executor. 1 Rop.
Leg. 149; Lownd. Leg. 10, 11; 1 Atk. 415. A specific legacy has relation to the
time of making the will; it is a bequest of some particular thing in the
testator's possession at that time, if such a thing should be in the testator's
possession at the time of his death. If it should not be in the testator's
possession, the legatee has no claim. There are legacies of quantity in the
nature of specific legacies, as of so much money with reference to a particular
fund for their payment. Touchst. 433; Amb. 310; 4 Ves. 565; 3 Ves. & Bea.
5. This kind of legacy is so far general, and differs so much in effect
from a specific one, that if the funds be called in or fail, the legatees will
not be deprived of their legacies, but be permitted to receive them out of the
general assets; yet the legacies are go far specific, that they will not be
liable to abate with general legacies upon a deficiency of assets. 2 Ves. jr.
640; 5 Ves. jr. 206; 1 Meriv. 178.
6. - 3. A residuary legacy is a bequest of all the testator's personal
estate, not otherwise effectually disposed of by his will. Lownd. Leg, 10; Bac.
Abr. Legacies, I.
7. As to the interest given, legacies may be considered, as absolute,
for life, or in remainder. 1. A legacy is absolute, when it is given without
condition, and is to vest immediately. See 2 Vern. 181; Ambl. 750; 19 Ves. 86;
Lownd. 151; 2 Vern. 430; 1 Vern. 254; 5 Ves. 461; Com. Dig. Appendix, Chancery
8. - 2. A legacy for life is sometimes given, with an executory
limitation after the death of the tenant for life to another person; in this
case, the tenant for life is entitled to the possession of the legacy, but when
it is of specific article's, the first legatee must sign and deliver to the
second, an inventory of the chattels expressing that they are in his custody
for life only, and that afterwards they are to be delivered and remain to the
use and benefit of the second legatee. 3 P. Wms. 336; 1 Atk. 471; 2 Atk. 82; 1
Bro. C. C. 279; 2 Vern. 249. See 1 Rop. Leg. 404, 5, 580. It seems that a
bequest for life, if specific of things quo ipso usu consumuntur, is a gift of
the property, and that there cannot be a limitation over, after a life interest
in such articles. 3 Meriv. 194.
9. - 8. In personal property there cannot be a remainder in the strict
sense of the word, and therefore every future bequest of personal property,
whether it be preceded or not by any particular bequest, or limited on a
certain or uncertain event, is an executory bequest, and falls under the rules
by which that mode of limitation is regulated. Fearne, Cont. R. 401, n. An
executory bequest cannot be prevented or destroyed by any alteration
whatsoever, in the estate, out of which, or after, which it is limited. Id.
421; 8 Co. 96, a; 10 Co. 476. And this privilege of executory bequests, which
exempts them from being barred or destroyed, is the foundation of an invariable
rule, that the event on which an interest of this sort is permitted to take
effect, is such as must happen within a life or lives in being, and twenty-one
years, and the fraction of another year, allowing for the period of gestation
afterwards. Fearne, Cont. R. 431.
10. As to the right acquired by the legatee, legacies may be considered
as vested and contingent. 1. A vested legacy is one;, by which a certain
interest, either present or future in possession, passes to the legatee. 2. A
contingent legacy is one which is so given to a person, that it is uncertain
whether any interest will ever vest in him.
11. A legacy may be lost by abatement, ademption, and lapse. I.
Abatement, see Abatement of Legacies. 2. Ademption, see, Ademption. 3. When the
legatee dies before the testator, or before the condition upon which the legacy
is given be performed, or before the time at which it is directed to vest in
interest have arrived, the legacy is lapsed or extinguished. See Bac. Abr.
Legacies, E; Com. Dig. Chancery, 3 Y. 13; 1 P. Wms. 83; Lownd. Leg. ch. 12, p.
408 to 415; 1 Rop. Leg. ch. 8, p. 319 to 341.
12. In Pennsylvania, by legislative enactment, no legacy in favor of a
child or other lineal descendant of any testator, shall be deemed or held to
lapse or become void, by reason of the decease of such devisee or legatee, in
the lifetime of the testator, if such devisee or legatee shall leave issue
surviving the testator, but such devise or legacy shall be good and available,
in favor of such surviving issue, with like effect, as if such devisee or
legatee had survived the testator. The testator may however, intentionally
exclude such survlving issue, or any of them. Act of March 19, 1810, 5 Smith's
L. of Pa. 112.
13. As to the payment of legacies, it is proper to consider out of what
fund they are to be paid; at what time; and to whom. 1. It is a general rule,
that the personal estate is the primary fund for the payment of legacies. When
the real estate is merely charged with those demands, the personal assets are
to be applied in the first place towards their liquidation. 1 Serg. &
Rawle, 453; 1 Rop. Leg. 463.
14. - 2. When legacies are given generally to persons under no
disability to receive them, the payments ought to be made at the end of a year
next after the testator's decease. 5 Binn. 475. The executor is not obliged to
pay them sooner although the testator may have directed them to be discharged
within six months after his death, because the law allows the executor one year
from the demise of the testator, to ascertain and settle his testator's
affairs; and it presumes that at the expiration of that period, and not before,
all debts due by the estate have been satisfied, and the executor to be then
able, properly to apply the residue among the legatees according to their
several rights and interests.
15. When a legacy is given generally, and is subject to a limitation
over upon a subsequent event, the divesting contingency will not prevent the
legatee from receiving his legacy at the end of the year after the testator's
death, and he is under no obligation to give security for re-payment of the
money, in case the event shall happen. The principle seems to be, that as the
testator has entrusted him without requiring security, no person has authority
to require it. 1 Ves. Jr. 97; 18 Ves. 131; Lownd. on Legacies, 403.
16. As to the persons to whom payment to be made, see, where the legacy
is given to an infant 1 Rop. Leg. 589 ;1 P. Wms. 285; 1 Eq. Cas. Abr. 300; 3
Bro. C. C. 97, edit. by Belt; 2 Atk. 80; 2 Johns. C. R. 614; where the legacy
is given to a married woman; 1 Rop. Leg. 595; Lownd. Leg 399; where the legacy
is given to a lunatic, 1 Rop. Leg. 599; where it is given to a bankrupt; Id.
600; 2 Burr. 717.; where it is given to a person abroad, who has not been heard
of for a long time. Id. 601 Finch, R. 419; 3 Bro. C. C. 510; 5 Ves. 458; Lownd.
Leg. 398. See, generally, as to legacies; Roper on Legacies; Lowndes on
Legacies; Bac. Abr. Legacy; Com. Dig. Administration, C 3, 5; Id. Chancery, 3
A; 3 G; 8 Y 1; Id. Prohibition, G 17; Vin. Abr. Devise; Id. Executor; Swinb. 17
to 44; 2 Salk. 414 to 416.
17. By the Civil Code of Louisiana, legacies are divided into universal
legacies, legacies under an universal title, and particular legacies. 1. An
universal legacy is a testamentary disposition, by which the testator gives to
one or several persons the whole of the property which he leaves; at his
decease. Civ. Code of Lo. art. 1599.
18. - 2. The legacy under an universal title, is that by which a
testator bequeaths a certain proportion of the effects of which the law permits
him to dispose, as a half, a third, or all his immovables, or all his movables,
or a fixed proportion of all his immovables, or of all his movables. Id.
19. - 3. Every legacy not included in the definition given of universal
legacies, and legacies under a universal title, is a legacy under a particular
title. Id. 1618. Copied from Code Civ. art. 1003 and 1010. See Toullier, Droit
Civil Francais, tome 5, p. 482, et seq.
LEGACY, ACCUMULATIVE. An accumulative legacy is a second bequest
given by the same testator to the same legatee, whether it be of the same kind
of thing, as money, or whether it be of different things, as, one hundred
dollars, in one legacy, and a thousand dollars in another, or whether the sums
are equal or whether the legacies are of a different naturer 2 Rop. Leg.
LEGACY, ADDITIONAL. An additional legacy is one which is given
by a codicil, besides one before given by the will; or it is an increase by a
codicil of a legacy before given by the will. An additional legacy is generally
subject to the same qualities and conditions as the original legacy. 6. Mod.
31; 2 Ves. jr. 449; 3 Mer. 154; Ward on Leg. 142.
LEGACY, ALTERNATIVE. One where the testator gives one of two
things to the legatee without designating which of them; as, one of my two
horses. Vide Election.
LEGACY, CONDITIONAL. A bequest which is to take effect upon the
happening or, not happening of a certain event. Lownd. Leg. 166; Rop. Leg.
Index, tit. Condition.
LEGACY, DEMONSTRATIVE. A demonstrative legacy is a bequest of a
certain sum of money; intended for the legatee at all events, with a fund
particularly referred to for its payment; so that if the estate be not the
testator's property at his death, the legacy will not fail: but be payable out
of general assets. 1 Rop. Leg. 153; Lownd. Leg 85; Swinb. 485; Ward on Leg.
LEGACY, INDEFINITE. A bequest of things which are not enumerated
or ascertained as to numbers or quantities; as, a bequest by a testator of all
his goods, all his stocks in the funds. Lownd. on Leg. 84; Swinb. 485; Amb.
641; 1 P. Wms. 697.
LEGACY, LAPSED. A legacy is said to be lapsed or extinguished,
when the legatee dies before the testator, or before the condition upon which
the legacy is given has been performed, or before the time at which it is
directed to vest in interest has arrived. Bac. Ab. Legacy, E; Com. Dig.
Chancery, 3 Y 13; 1 P. Wms. 83. Lownd. Leg. 408 to 415; 1 Rop. Leg. 319 to 341.
See, as to the law of Pennsylvania in favor of lineal descendants, 5 Smith's
Laws of Pa. 112. Vide, generally, 8 Com. Dig. 502-3; 5 Toull. n. 671.
LEGACY, M0DAL. A modal legacy is a bequest accompanied with
directions as to the mode in which it should be applied for the legatee's
benefit; for example, a legacy to Titius to put him an apprentice. 2 Vern. 431;
Lownd. Leg. 151.
LEGACY, PECUNIARY, A pecuniary legacy is one of money; pecuniary
legacies are most usually general legacies, but there may be a specific
pecuniary legacy; for example, of the money in a certain bag. 1 Rop. Leg. 150,
LEGACY, RESIDUARY. That which is of the remainder of an estate
after the payment of all the debts and other legacies. Madd. Ch. P. 284.
LEGAL. That which is according to law. It is used in opposition
to equitable, as the legal estate is, in the trustee, the equitable estate in
the cestui que trust. Vide Powell on Mortg. Index, h. t.
2. The party who has the legal title, has alone the right to seek a
remedy for a wrong to his estate, in a court of law, though he may have no
beneficial interest in it. The equitable owner, is he who has not the legal
estate, but is entitled to the beneficial interest.
3. The person who holds the legal estate for the benefit of another, is
called a trustee; he who has the beneficiary interest and does not hold the
legal title, is called the beneficiary, or more technically, the cestui que
4. When the trustee has a claim, he must enforce his right in a court of
equity, for he cannot sue any one at law, in his own name; 1 East, 497; 8 T. R.
332; 1 Saund. 158, n. 1; 2 Bing. 20; still less can he in such court sue his
own trustee. 1 East, 497.
LEGAL ESTATE. One, the right to which may be enforced in a court
of law. It is distinguished from an equitable estate, the rights to which can
be established only in a court of equity. 2 Bouv. Inst. n. 1688.
LEGALIZATION. The act of making lawful.
2. By legalization, is also understood the act by which a judge or
competent officer authenticates a record, or other matter, in order that the
same may be lawfully read in evidence. Vide Authentication.
LEGATES. Legates are extraordinary ambassadors sent by the pope
to catholic countries to represent him, and to exercise his jurisdiction. They
are distinguished from the ambassadors of the pope who are sent to other
2. The canonists divide them into three kinds, namely: 1. Legates A
latere. 2. Legati missi. 3. Legati nati.
3. - 1. Legates latere hold the first rank among those who are honored
by a legation; they are always chosen from the college of cardinals, and are
called a latere, in imitation of the magistrates of ancient Rome, who were
taken from the court, or side of the emperor.
4. - 2. The legati missi are simple envoys.
5. - 3. The legati nati, are those who are entitled to be legates by
LEGATEE. A legatee is a person to whom a legacy is given by a
last will and testament.
2. It is proposed to consider, 1. Who may be a legatee. 2. Under what
description legatees may take.
3. - 1. Who may be a legatee. In general, every person may be a legatee.
2 Bl. Com. 512. But a person civilly dead cannot take a legacy.
II. Under what description legatees may take.
4. - §1. Of legacies to legitimate children. 1. When it appears
from express declaration, or a clear inference arising upon the face of the
will, that a testator in giving a legacy to a class of individuals generally,
intended to apply the terms used by him to such persons only as answered the
description at the date of the instrument, those individuals alone will be
entitled, although if no such intention had been expressed, or appeared in the
will, every person failing within that class at the testator's death, would
have been included in the terms of the bequest. 1 Meriv. 320; and see 3 Ves.
611; Id. 609; 15 Ves. 363; Ambl. 397; 2 Cox, 291; 4 Bro. C. C. 55; 3 Bro. C. C.
148; 2 Cox, 384.
5. - 2. Where a legacy is given to a class of individuals, as to
children, in general terms, and no period is appointed for the distribution of
it, the legacy is due at the death of the testator; the payment of it being
merely postponed to the end of a year after that event, for the convenience of
the executor or administrator in administering the assets. The rights of the
legatees are finally settled, and determined at the testator's decease. 1 Ball
& B. 459; 2 Murph. 178. Upon this principal, is founded the well
established rule that children in existence at that period, or legally
considered so to be, are alone entitled to participate in the bequest. 1 Bro.
C. C. 532, n.; 2 Bro. C. C. 658; 2 Cox, 190.; 1 Dick. 344; 14 Ves. 576; 1 Ves.
jr. 405; 1 Cox, 68; 3 Bro. C. C. 391; Amb. 448; 1 Ves. sen. 485; 5 Binn.
6. - 3. A child in ventre sa mere takes a share in a fund bequeathed to
children, under the general description of "children," or of "children living
at the testator's death." 1 Ves. sen. 85; and see 1 P. Wms. 244, 341; 2 Bro. C.
C. 63; 1 Salk. 229; 2 Cox, 425; 5 Serg. & Rawle, 38. See tit. In ventre sa
7. - 4. When legacies are given to a class of individuals, generally,
payable at a future period, as to the children of B, when the youngest shall
attain the age of twenty-one, or to be divided among them upon the death of C;
any child who can entitle itself under the description, at the time when the
fund is to be divided, may claim a share, viz: as well children living at the
period of distribution, although not born till after the testator's death, as
those born before, and living at the happening of that event. 1 Supp. to Ves.
jr. 115, note 3, to Hill v. Chapman; 2 Supp. to Ves. jr. 157, note 1, to
Lincoln v. Pelham. This general rule may be divided into two branches. First,
when the division of the fund is postponed until a child or children attain a
particular age; as, when a legacy is given to the children of A, at the age of
twenty-one; in that case, so soon as the eldest arrives at that period, the
fund is distributable among so many as are in existence at that time; and no
child born afterwards can be admitted to a share, because the period of
division fixes the number of legatees. Distribution is then made, and nothing
remains for future partition. 1 Ball & Beat. 459; 3 Bro. C. C. 402; 5 Binn.
607; 2 Ves. jr. 690; 3 Ves. 730; 3 Bro. C. C. 352, ed. by Belt; 14 Ves. 256; 6
Ves. 345; 10 Ves. 152; 11 Ves. 238. Second, when the distribution of the fund
is deferred during the life of a person in esse. In these cases, when the
enjoyment of the thing given, is by the testator's express declaration not to
be immediate by those, among whom it is to be finally divided, but is postponed
to a particular period, as the death of A, then the children or individuals who
answer the general description at that time, when distribution is to be made,
are entitled to take, in exclusion of those afterwards coming in esse. 1 Ves.
sen. 111; 1 Bro. C. C. 386; Id. 530; Id. 582; Id. 537; 1 Atk. 509; 2 Atk. 329;
5 Ves. 136; 3 Bro. C. C. 417; 1 Cox, 327; 8 Ves. 375; 15 Ves. 122; 1 Madd. R.
290; 1 Ball & Beat. 449.
8. - 5. The word "children " does not, ordinarily and properly speaking,
comprehend grandchildren or issue generally; these are included in that term
only in two cases, namely, 1. From necessity, which occurs where the will would
remain inoperative unless the sense of the word "children" were extended beyond
its natural import; and, 2. Where the testator has shown by other words, that
he did not intend to use the term children in its proper and actual meaning,
but in a more extended sense. 1 Supp. to Ves. jr. 202, note 2, to Bristow v.
Ward. In the following cases, the word children was extended beyond its natural
import from necessity. 6 Rep. 16; 10 Ves. 201; 2 Desauss. 123, in note. The
following are instances where by using the words children and issue,
indiscriminately, the testator showed his intention to use the former term in
the sense of issue so as to entitle grandchildren, &c. to take. 1 Ves. sen.
196; S. C. Ambl. 555; 3 Ves. 258; 3 Ves. & Bea. 68; 4 Ves. 437; 2 Supp. to
Ves. jr. 158. There is another class of cases wherein it was determined that
grandchildren, &c. were not included in the word children. 2 Vern. 107; 4
Ves. 692; 10 Ves. 195; 3 Ves. & Bea. 59; see 2 Desauss. 308.
9. - §2. Of legacies to natural children. 1. Natural children
unborn at the date of the will, cannot take under a bequest to the children
generally, or to the illegitimate children of A B by Mary C; because a natural
child cannot take as the issue of a particular person, until it has acquired
the reputation of being the child of that person, which cannot be before its
birth. Co, Litt. 3, b.
10. - 2. Natural children, unborn at the date of the will and described
as children of the testator or another man, to be born of a particular woman,
cannot take under such a description. 1 Peere, Wms. 529; 18 Ves. 288.
11. - 3. A legacy to an illegitimate child in ventre sa mere, described
as the child of the testator or of another man, will fail, since whether the
testator or such person were or were not in truth the father, is a fact which
can only be ascertained by evidence that public policy forbids to be admitted.
1 Meriv. 141 to 152.
12. - 4. A child in ventre sa mere described merely as a child with
which the mother is enceinte, without mentioning its putative father; or if the
testator express a belief that the child is his own, and provide for it under
that impression, regardless of the chance of being mistaken; then the child
will in the first place be capable of taking and in the second, as presumed, be
also, entitled in consequence of the testator's intent to provide for it,
whether he be the father or not. 1 Meriv. 148, 152.
13. - 5. Natural children in existence, having acquired by reputation
the name and character of children of a particular person, prior to the date of
the will, are capable of taking under the name of children. 1 P. Wms. 529; 1
Ves. & Bea. 467. But the term child, son, issue, and every other word of
that species, is to be considered as prima facie to mean legitimate child, son,
or issue. Id.
14. - 6. Whether such children take or not depends upon the evidence of
the testator's intention, manifested by the will, to include them in the term
children; these cases are instances where the evidence of such intention was
deemed insufficient. 5 Ves. 530; 1 Ves. & Bea. 454; 6 Ves. 43, 48; 1 Ves.
& Bea. 4619; and see 1 Ves. & Bea. 456; 2 East, 530, 542. In the
following, the evidence of intention was held to be sufficient. 1 Ves. &
Bea. 469; Blundell v. Dunn, cited in 1 Madd. 433; Beachcroft v. Beachcroft,
cited in 1 Madd. 430; 2 Meriv. 419.
15. - §3. Of legacies of personal estate to a man and his heirs. 1.
A legacy to A and his heirs, is an absolute legacy to A, and the whole interest
of the money vests in him for his use. 4 Mad. 361. But when no property in the
bequest is given to A, and the money is bequeathed to his heirs, or to him with
a limitation to his heirs, if he die before the testator, and the contingency
happens, then if there be nothing in the will showing the sense in which the
testator made use of the word heirs, the next of kin of A, are entitled to
claim under the description, as the only persons appointed by law to succeed to
personal estate. 5 Ves. 403; 4 Ves. 649; 1 Jac. & Walk. 388.
16. - 2. A bequest to the heirs of an individual, without addition or
explanation, will belong to the next of kin; the rule, however, is subject to,
alteration by the intention of the testator. If then the contents of the will
show, that by the word heirs the testator meant other persons than the next of
kin, those persons will be entitled. Ambl. 273; 1 P. Wms. 432; Forrest, 56; 2
Atk. 89; See, also, 1 Ves. jr. 145; 4 Madd. 361; 14 Ves. 488; 1 Car. Law R.
17. - §4. Legacies to issue. 1. The term issue, is of very
extensive import, and when used as a word of purchase, and unconfined by any
indication of intention, will comprise all persons who can claim as descendants
from or through the person to whose issue the bequest is made; and in order to
restrain the legal sense of the term, a clear intention must appear upon the
will. 3 Ves. 257; Id. 421; 1 Meriv. 434; 13 Ves. 344.
18. - 2. Where it appears clearly to be a testator's meaning to provide
for a class of individuals living at the date of his will, and he provides
against a lapse by the death of any of them in his lifetime, by the
substitution of their issue; in such case, although the word will include all
the descendants of the designated legatees, yet if any person who would have
answered the description of an original legatee when the will was made, be then
dead, leaving issue, that issue will be excluded, because the issue of those
individuals only who were capable of taking original shares, at the date of the
will, were intended to take by substitution; so that as the person who was dead
when the will was made, could never have taken an original share, there is
nothing for his issue to take in his place. 1 Meriv. 320.
19. - 3. When it can be collected from the will that a testator in
using the word issue, did not intend it should be understood in its common
acceptation, the import of it will be confined to the persons whom it was
intended to comprehend. 7 Ires. 531; 3 Ves. 383; 7 Ves. 522; 1 Ves. jr.
20. - §5. Of legacies to relations. 1. Under a bequest to
relations, none are entitled but those, who in the case of intestacy, could
have claimed under the statute of distribution. Forrest. 251; 4 Bro. C. C. 207;
1 Bro. C. C. 31; 3 Bro. C. C. 234; 5 Ves. 529; Ambl. 507; Dick. 380; 1 P. Wms.
327; 2 Ves. sen. 527; 19 Ves. 403; 1 Taunt. 263; 1 T. R. 435; n. See the
following cases where the bequests were to "poor relations;" 1 P. Wms. 327; 8
Serg. & Rawle, 45; 1 Scho. & Lef. 111; "most necessitous relations;"
21. - 2. To this general rule there are several exceptions, namely,
first, when the testator has delegated a power to an individual to distribute
the fund among the testator's relations according to his discretion; in such an
instance whether the bequest be made to "relations" generally, or to "poor," or
"poorest," or "most necessitous" relations, the person may exercise his
discretion in distributing the property among the testator's kindred although
they be not within the statute of distributions. 1 Scho. & Lef. 111, and 16
Ves. 43; 1 T. R. 485, n.; Ambl. 708; 16 Ves. 27, 43. Secondly. Another
exception occurs where a testator has fixed ascertain test, by which the number
of relatives intended by him to participate in his property, can be
ascertained; as if a legacy be given to such of the testator's relations as
should not be worth a certain sum, in such case, it seems, all the testator's
relatives answering the description would take, although not within the degrees
of the statute of distributions. Ambl. 798. Thirdly. Another exception to the
general rule is, where a testator has shown an intention in his will, to
comprehend relations more remote than those entitled nuder the statute; in that
case his intention will prevail. 1 Bro. C. C. 32, n., and see 1 Cox, 235 .
22. - 3. The word "relation" or "relations," may be so qualified as to
exclude some of the next of kin from participating in the bequest; and this
will also happen when the terms of the bequest are to my "nearest relations;"
19 Ves. 400; Coop. 275; 1 Bro. C. C. 293; and see 1 Ves. sen. 337; Ambl. 70; to
testator's relations of his name 1 Ves. sen. 336; or stock, or blood; 15 Ves.
23. - 4. The word relations being governed by the statute of
distributions, no person can regularly answer the description but those who are
of kin to the testator by blood, consequently relatives by marriage are not
included in a bequest to relations generally. 1 Ves. sen. 84; 3 Atk. 761; 1
Bro. C. C. 71, 294.
24. - §6. Legacies to next of kin. 1. When a bequest is made to
testator's next of kin, it is understood the testator means such as are related
to him by blood. But it is not necessary that the next of kin should be of the
whole blood, the half blood answering the description of next of kin, are
equally entitled with the whole, and if nearer in degree, will exclude the
whole blood. 1 Ventr. 425; Alleyn, 36; Styl. 74.
25 - 2. Relations by marriage are in general excluded from participating
in a legacy given to the next of kin. 18 Ves. 53; 14 Ves. 376, 381, 386; and,
see 3 Ves. 244; 18 Ves. 49. But this is only a prima facie construction, which
may be repelled by the contrary intention of a testator. 14 Ves. 382.
26. - 3. A testator is to be understood to mean by the expression "next
of kin," when he does not refer to the statute, or to a distribution of the
property as if he had died intestate, those persons only who should be nearest
of kin to him, to the exclusion of others who might happen to be within the
degree limited by the statute. 3 Bro. C. C. 69; 19 Ves. 404; 14 Ves. 385. See 3
Bro. C. C. 64.
27. - 4. Nearest of kin will alone be entitled under a bequest to the
next of kin in equal degree. 12 Ves. 433; 1 Madd. 36.
28. - §7. Legacies to legal personal representatives or to personal
representatives. 1. Where there is nothing on the face of the will to manifest
a different intention, the legal construction of the words "personal
representatives," or "legal personal representatives," is executors or
administrators of the person described. 6 Ves. 402; 6 Mead. 159. A legacy
limited to the personal or legal personal representatives of A, unexplained by
anything in the will, will entitle A's executors or administrators to it, not
as representing A, or as part of his estate, or liable to his debts, but in
their own right as personae designated by the law. 2 Mad. 155.
29. - 2. In the following cases the executors or administrators were
held to be entitled under the designation of personal, or legal personal
representatives. 3 Ves. 486; Anstr. 128.
30. - 3. The next of kin and not the executors or administrators, were,
in the following cases, held to be entitled under the same designation. 3 Bro.
C. C. 224, approved by Lord Rosslyn in 3 Ves. 486; 3 Ves. 146; 19 Ves. 404.
31. - 4. The same words were held to mean children, grandchildren,
&c. to the exclusion of those persons who technically answer the
description of "personal representatives." 3 Ves. 383.
32. - 5. A husband or wife may take as such, if there is a manifest
intention in the will that they should and if either be clothed with the
character of executor or administrator of the other, the prima facie legal
title attaches to the office, which will prevail, unless an intention to the
contrary be expressed or clearly apparent in the instrument. See 14 Ves. 382;
18 Ves. 49; 3 Ves. 231; 2 Ves. sen. 84; 3 Atk. 758; 1 Rop. Husb. and Wife, 326;
2 Rop. Husb. and. Wife, 64.
33. - §8. The construction of bequests when limited to executors
and administrators. 1. Where personal estate is given to B, his executors and
administrators, the law transfers to B the absolute interest in the legacy. 15
Ves. 537; 2 Mad. 155.
34. - 2. If no interest were given to B, and the bequest were to his
executors and administrators, it should seem that the individual answering the
description would be beneficially entitled as personal designatae, in analogy
to the devise of real estate to the heir of B, without a previous limitation to
B, whose heir would take by purchase in his own right, and not by force of the
word "heir" considered as a term of limitation. 2 Mad. 155. See 8 Com. Dig.
Devise of Personal Property, xxxvi.
35: - §9. Legacies to descendants. 1. A legacy to the descendants
of A, will comprehend all his children, grandchildren, &c.; and if the will
direct the bequest to be divided equally among them, they are entitled to the
fund per capita. Ambl. 97; 3 Bro. C. C. 369.
36. - §10. Legacies to a family. 1. The word family, when applied
to personal property, is synonymous with "kindred," or "relations;" see 9 Ves.
323. This being the ordinary acceptation of the word family, it may
nevertheless be confined to particular relations by the context of the will; or
the term may be enlarged by it, so that the expression may, in some cases, mean
children, or next of kin, and in others may even include relations by marriage.
See 8 Ves. 604; Dy. 333; 5 Ves. 166; Hob. 33; Coop. 122; 5 M. & S. 126; 17
Ves. 263; 1 Taunt. 266; 14 Ves. 488; 9 Ves. 319; 3 Meriv. 689.
37. - §11. Legacies to servants. 1. To entitle himself to a
bequest "to servants," the relation of master and servant must have arisen out
of a contract by which the claimant must have formed an engagement which
entitled the master to the service of the individual during the whole period,
or each and every part of the time for which he contracted to, serve. 12 Ves.
114; 2 Vern. 546.
38. - 2. To claim as a servant, the legatee must in general be in the
actual service of the testator at the time of his death. Still a servant may be
considered by a testator as continuing in his employment, and be intended to
take under the bequest, although he quitted the testator's house previous to
his death, so as to answer the description in the instrument; and to establish
which fact declarations of the testator upon the subject cannot be rejected;
but testimony that the testator meant a servant notwithstanding his having left
the testator's service, to take a legacy bequeathed only to servants in his
employment at his death, cannot be received as in direct opposition to the
will. 16 Ves. 486, 489.
39. - §12. The different periods of time at which persons
answering the descriptions of next of kin, family relations, issue, heirs,
descendants and personal representatives, (to whom legacies are given by those
terms generally, and without discrimination,) were required to be in esse, for
the purpose of participating in the legatory fund. 1. When the will expresses
or clearly shows that a testator in bequeathing to the relations, &c. of a
deceased individual, referred to such of them as were in existence when the
will was made, they only will be entitled; as if the bequest was, "I give
ú1000 to the descendants of the late A B, now living," those descendants
only in esse at the date of the will can claim the legacy. Ambl. 397.
40. - 2. But, in general, a will begins to speak at the death of the
testator, and consequently in ordinary cases, relations, next of kin, issue,
descendants, &c., living at that period will alone divide the property
bequeathed to them by those words. See 1 Ball &. Beat. 459; 1 Bro. C. C.
532; 3 Bro. C. C. 224; 5 Ves. 399; 1 Jac. & Walk, 388, n.; 3 Meriv. 689; 5
Binn. 607; 2 Murph. 178.
41. - 3. If a testator express, or his intention otherwise appear from
his will, that a bequest to his relations, &c., living at the death of a
person, or upon the happening of any other event, should take the fund, his
next of kin only in existence at the period described, will be entitled, in
exclusion of the representatives of such of them as happened to be then dead. 3
Ves. 486; 9 Ves. 325; 1 Atk. 469; 15 Ves. 27; 4 Vin. Abr. 485, pl. 16; 8 Ves.
38; 5 Binn. 606; see 6 Munf. 47.
42. - §13. When the fund given to legatees, by the description of
"family," "relations" "next in kin," &c., is to be divided among them
either per capita, or per stirpes, or both per stirpes et capita. 1. Where the
testator gives a legacy to his relations generally, if his next of kin be
related to him in equal degree, as brothers, there being no children of a
deceased brother, the brothers will divide the fund among them in equal shares,
or per capita; each being entitled in his own right to an equal share. So it
would be if all the brothers had died before the testator, one leaving two
children, another three, &c., all the nephews and nieces would take in
equal shares, per capita, in their own rights, and not as representing their
parents; because they are sole next of kin, and related to the testator in
equal degree. Pre. Ch. 54; and see 1 P. Wms. 595; 1 Atk. 454; 3 P. Wms. 50. But
if the testator's next of kin happen not to be related to him in equal degrees,
as a brother, and the children of a deceased brother, so as that under the
statute the children would take per stirpes as representing their parent,
namely, the share he would have taken had he been living; yet if the testator
has shown au intention that his next of kin shall be entitled to his property
in equal shares, i. e. per capita, the distribution by the statute will be
superseded. This may happen where the bequest is to relations, next of kin,
&c., to be equally divided among them; or by expressions of like import.
Forrest. 251; and see 1 Bro. C. C. 33; 8 Serg. & Rawle, 43; 11 Serg. &
Rawle 103; 1 Murph. 383.
43. - 2. Where a bequest is to relations, &c., those persons only
who are next of kin are entitled, and the statute of distributions is adopted,
not only to ascertain the persons who take, but also the proportions and manner
in which the property is to be divided; the will being silent upon the subject,
if the next of kin of the person described be not related to him in equal
degree, those most remote can only claim per stirpes, or in right of those who
would have been entitled under the statute if they had been living. Hence it
appears that taking per stirpes, always supposes an inequality in
relation-ship. For example, where a testator bequeaths a legacy to his
"relations," or "next of kin," and leaves at his death two children, and three
grandchildren, the children of a deceased child; the grandchildren would take
their parents' share, that is, one-third per stirpes under the statute, as
representing their deceased parent. 1 Cox, 235.
44. - 3. Where a testator bequeaths personal estate to several persons
as tenants in common, with a declaration that upon all or any of their deaths
before a particular time, their respective shares shall be equally divided
among the issue or descendants of each of them, and they die before the arrival
of the period, some leaving children, others grandchildren, and great
grandchildren, and other grandchildren and more remote descendants in such case
the issue of each deceased person will take their parents share per stirpes;
and such issue, whether children only, or children and grandchildren, &c.,
will divide each parent's share among them equally per capita. 1 Ves. sen.
45. - §14. The effect of a mistake in the names of legatees. 1.
Where the name has been mistaken in a will or deed, it will be corrected from
the instrument, if the intention appear in the description of the legatee or
donee, or in other parts of the will or deed. For example, if a testator give a
bequest to Thomas second son of his brother John, when in fact John had no son
named Thomas, and his second son was called William; it was held William was
entitled. 19 Ves. 381; Coop. 229; and see Ambl. 175; Co. Litt. 3, a; Finch's R.
403; 3 Leon, 18. When a bequest is made to a class of individuals, nomin-atim,
and the name or christian name of one of them is omitted, and the name or
christian name of another is repeated; if the context of the will sbow that the
repetition of the name was error, and the name of the person omitted was
intended to have been inserted, the mistake will be corrected. As where a
testator gave his residuary estate to his six grandchildren, by their christian
names. The name of Ann, one of them, was repeated, and the name of Elizabeth,
another of them, was omitted. The context of the will clearly showed the
mistake which had occurred, and Elizabeth was admitted to an equal share in the
bequest. 1 Bro. C. C. 30; see 2 Cox, 186. And is to cases where parol evidence
will be received to prove the mistakes in the names or additions of legatees,
and to ascertain the proper person, see 3 B. & A. 632 to 642; 6 T. R. 676;
2 P. Wms. 137; 1 Atk. 410: 1 P. Wms. 421; 5 Rep. 68, b; 6 Ves. 42; 7 East, 302;
46. - §15. The effect of mistakes in the descriptions of legatees,
and the admission of parol evidence in those cases. 1. Where the description of
the legatee is erroneous, the error not having been occasioned by any fraud
practiced upon the testator, and there is no doubt as to the person who was
intended to be described, the mistake will not disappoint the bequest. Hence if
a legacy be given to a person by a correct name, but a wrong description or
addition, the mistaken description will not vitiate the bequest, but be
rejected; for it is a maxim that veritas nominis tollit errorem
demonstrationis. Ld. Bac. Max. reg. 25; and see 2 Ves. jr. 589; Ambl. 75; 4
Ves. 808; Plowd. 344; 19 Ves. 400.
47. - 2. Wherever a legacy is given to a person under a particular
description and character which he himself has falsely assumed; or, where a
testator, induced by the false representations of third persons to regard the
legatee in a relationship which claims his bounty, bequeaths him a legacy
according with such supposed relationship, and no motive for such bounty can be
supposed, the law will not, in either case, permit the legatee to avail himself
of the description, and therefore he cannot demand his legacy. See 4 Ves. 802;
4 Bro. C. C. 20.
48. - 3. The same principle which has establisbed the admissibility of
parol evidence to correct errors in naming legatees, authorizes its allowance
to rectify mistakes in the description of them. Ambl. 374; 1 Ves. jr. 266; 1
49. - 4. If neither the will nor extrinsic evidence is sufficient to
dispel the ambiguity arising from the attempt to apply the description of the
legatee to the person intended by the testator, the legacy must fail from the
uncer-tainty of its object. 7 Ves. 508; 6 T. R. 671.
50. - §16. The consequences of imperfect descriptions of, or
reference to legatees, appearing upon the face of wills, and when parol
evidence is admissible. These cases occur, 1. When a blank is left for the
Christian name of the legatee. 2. When the whole name is omitted. 3. When the
testator has merely written the initials of the name; and, 4. When legatees
have been once accurately described, but in a subsequent reference to one of
them, to take an additional bounty, the person intended is doubtful, from
ambiguity in the terms.
51. - 1. When a blank is left for the Christian name of the legatee,
evidence is admissible to supply the omission. 4 Ves. 680.
52. - 2. When the omission consists of the entire name of the legatee,
parol evidence cannot be admitted to supply the blank. 2 Ch. Ca. 51.; 2 Atk.
239; 3 Bro. C.C. 311.
53. - 3. When a legatee is described by the initials of his name only,
parol evidence may be given to prove his identity. 3 Ves. 148. When a patent
ambiguity arises from an imperfect reference to one of two legatees correctly
described in a prior part of the will, parol evidence is admitted to show which
of them was intended, so that the additional legacy intended for the one will
depend upon the removal of the obscurity by a sound interpretation of the whole
will. 3 Atk. 257 and see 2 Ves. 217; 2 Eden, 107.
See further, upon this subject, Lownd on Leg. ch. 4; 1 Roper on Leg. ch.
2; Com. Dig. Chancery, 3 Y; Bac. Abr. h.. t. Vin. Abr. h. t.; Nels. Abr. h. t.;
Whart. Dig. Wills, G. P.; Hamm. Dig. 756; GrimkÇ on Exec. ch. 5; Toll.
on Executors, ch. 4.
LEGALIS HOMO. A person who stands rectus in curia, who possesses
all his civil rights. A lawful man. One who stands rectus in curia, not
outlawed nor infamous. In this sense are the words probi et legates
LEGANTINE CONSTITUTIONS. The name of a code of ecclesiastical
laws, enacted in national synods under Pope Gregory IX., and Pope Clement IV.,
about the years from 1220 to 1230.
LEGATARY. One to whom anything is bequeathed; a legatee. This
word is sometimes though seldom used to designate a legate or nuncio.
LEGATION. An embassy; a mission.
2. All persons attached to a foreign legation, lawfully acknowledged by
the government of this country, whether they are ambassadors, envoys,
winisters, or attaches, are protected by the act of April 30, 1790, 1 Story's
L. U. S. 83, from violence, arrest or molestation. 1 Dall. 117; 1 W. C. C. R.
232; 11 Wheat. 467; 2 W. C. C. Rep. 435; 4 W. C. C. R. 531; 1 Miles, 366; 1 N
& M. 217; 1 Bald. 240; Wheat. Int. Law, 167. Vide Ambassador; Envoy;
LEGATORY, dead man's part or share. (q. v.) The third part of a
freeman's personal estate, which by the custom of London, in case he had a wife
and children, the freeman might always have disposed of by will. Bac. Ab.
Customs of London, D 4.
LEGISLATIVE POWER. The authority under the constitution to make
laws and to alter or repeal them.
LEGISLATOR. One who makes laws.
2. In order to make good laws, it is necessary to understand those which
are in force; the legislator ought therefore, to be thoroughly imbued with a
knowledge of the laws of his country, their advantages and defects; to
legislate without this previous knowledge is to attempt to make a beautiful
piece of machinery with one's eye shut. There is unfortunately too strong a
propensity to multiply our laws and to change them. Laws must be yearly made,
for the legislatures meet yearly but whether they are always for the better may
be well questioned. A mutable legislation is always attended with evil. It
renders the law uncertain, weakens its effects, hurts credit, lessens the value
of property, and as they are made frequently, in consequence of some
extraordinary case, laws sometimes operate very unequally. Vide 1 Kent, Com.
227 and Le Magazin Universel, tome ii. p. 227, for a good article against
excessive legislation; Matter, De l'Influence des Lois sur les Moeurs, et de
l'Influence des Moeurs sur les Lois.
LEGISLATURE, government. That body of men in the state which has
the power of making laws.
2. By the Constitution of the United States, art. 1, s. 1, all
legislative powers granted by it are vested in a congress of the United States,
which shall consist of a senate and house of representatives.
3. It requires the consent of a majority of each branch of the
legislature in order to enact a law, and then it must be approved by the
president of the United States, or in case of his refusal, by two-thirds of
each house. Const. U. S. art. 1, s. 7, 2.
4. Most of the constitutions of the several states, contain provisions
nearly similar to this. In general, the legislature will not exercise judicial
functions; yet the use of supreme power upon particular occasions, is not
without example. Vide Judicial.
LEGITIMACY. The state of being born in wedlock; that is, in a
2. Marriage is considered by all civilized nations as the only source of
legitimacy; the qualities of husband and wife must be possessed by the parents
in order to make the offspring legitimate; and furthermore the marriage must be
lawful, for if it is void ab initio, the children who may be the offspring of
such marriage are not legitimate. 1 Phil. Ev. Index, h. t.; Civ. Code L. art.
203 to 216.
3. In Virginia, it is provided by statute of 1787, "that the issue of
marriages deemed null in law, shall nevertheless be legitimate." 3 Hen. &
Munf. 228, n.
4. A conclusive, presumption of legitimacy arises from marriage and
cohabitation; and proof of the mother's irregularities will not destroy this
presumption: pater est quem nuptiae demonstrant. To rebut this presumption,
circumstances must be shown which render it impossible that the husband should
be the father, as impotency and the like. 3 Bouv. Inst. n. 300-2. Vide Bastard;
Bastardy; Paternity; Pregnancy.
LEGITIMATE. That which is according to law; as, legitimate
children, are lawful children, born in wedlock, in contradistinction to
bastards; legitimate autbority, or lawful power, in opposition to
LEGITIMATION. The act of giving the character of legitimate
cbildren to those who were not so born.
2. In Louisiana, the Civil Code, art. 217, enacts that "children born
out of marriage, except those who are born of an incestuous or adulterous
connexion, may be legitimated by the subsequent marriage of their father and
mother whenever the latter have legally acknowledged them for their children,
either before their marriage, or by the contract of marriage itself."
3. In most of the other states the character of legitimate children is
given to those who are not so, by special acts of assembly. In Georgia, real
estate may descend from a mother to her illegitimate children and their
representatives, and from such child, for want of descendants, to brothers and
sisters, born of the same mother, and their representatives. Prince's Dig. 202.
In Alabama, Kentucky, Mississippi, Vermont and Virginia, subsequent marriages
of parents, and recognition by the father, legitimatize an illegitimate child
and in Massachusetts, for all purposes except inheriting from their kindred.
Mass. Rev. St. 414.
4. The subsequent marriage of parents legitimatizes the child in
Illinois, but he must be afterwards acknowledged. The same rule seems to have
been adopted in Indiana and Missouri. An acknowledgment of illegitimate
children, of itself, legitimatizes in Ohio, and in Michigan and Mississippi
marriage alone between the reputed parents has the same effcct. In Maine, a
bastard inherits to one who is legally adjudged, or in writing owns himself to
be the father. A bastard may be legitimated in North Carolina, on application
of the putative father to court, either where he has married the mother, or she
is dead, or married another or lives out of the state. In a number of the
states, namely, in Alabama, Connecticut, Illinois, Indiana, Kentucky, Maine,
Massachusetts, Michigan, North Carolina, Ohio, Rhode Island, Tennessee,
Vermont, and Virginia, a bastard takes by descent from his mother, with
modifications regulated by the laws of these states. 2 Hill, Ab. s. 24 to 35,
and the authori-ties there referred to. Vide Bastard; Bastardy; Descent.
LEGITIME, civil law. That portion of a parent's estate of which
he cannot disinherit his children, without a legal cause. The civil code of
Louisiana declares that donations inter vivos or mortis causa cannot exceed
two-thirds of the property of the disposer if he leaves at his decease a
legitimate child; one half if he leaves two children; and one-third if he
leaves three or a greater number. Under the name of children are included
descendants of wbatever degree they may be; it must be understood that they are
only counted for the child they represent. Civil. Code of Lo. art. 1480.
3. Donation inter vivos or mortis causa, cannot exceed two-thirds of the
property if the disposer having no children have a father, mother, or both. Id.
art. 1481. Where there are no descendants, and in case of the previous decease
of the father and mother, donations inter vivos and mortis causa, may, in
general, be made of the whole amount of the property of the disposer. Id. art.
1483. The Code Civil makes nearly similar previsions. Code Civ. L. 3, t. 2, c.
3, s. 1, art. 913 to 919.
4. In Holland, Germany, and Spain, the principles of the Falcidian law,
more or less limited, have been generally adopted. Coop. Just. 616.
5. In the United States, other than Louisiana and in England, there is
no restriction on the right of bequeathing. But this power of bequeathing did
not originally extend to all a man's personal estate; on the contrary, by the
common law, as it stood in the reian of Henry II, a man's goods were to be
divided into three equal parts, one of which went to his heirs or lineal
descendants, another to his wife, and the third was at his own disposal; or if
he died without a wife, he might then dispose of one moiety, and the other went
to his children; and so e converso if he had no children, the wife was entitled
to one moiety, and he might bequeath the other; but if he died without either
wife or issue, the whole was at his own disposal. Glanv. 1. 2, c. 6;, Bract. 1.
2, c. 26. The shares of the wife and children were called their reasonable
part. 2 Bl. Comm. 491-2. See Death's part; Falcidian law.
LENDER, contracts. He from whom a thing is borrowed.
2. The contract of loan confers rights, and imposes duties on the
lender. 1. The lender has the right to revoke the loan at his mere pleasure; 9
Cowen, R. 687; 8 Johns. Rep. 432; 1 T. R. 480; 2 Campb. Rep. 464; and is deemed
the owner or proprietor of the thing during the period of the loan; so that au
action for a trespass or conversion will lie in favor of the lender against a
stranger, who has obtained a wrongful possession, or has made a wrongful
conversion of the thing loaned; as mere gratuitous permission to a third person
to use a chattel does not, in contemplation of the common law, take it out of
the possession of the owner. 11 Johns. Rep. 285; 7 Cowen, Rep. 753; 9 Cowen,
Rep. 687; 2 Saund. Rep. 47 b; 8 Johns. Rep. 432; 13 Johns. Rep. 141, 661; Bac.
Abr. Trespass, c 2; Id. Trover, C 2. And in this the Civil agrees with the
common law. Dig. 13, 6, 6, 8; Pothier, PrÇt Ö, Usage, ch. 1,
§1, art. 2, n. 4; art. 3, n. 9; Ayliffe's Pand. B. 4, t. 16, p. 517;
Domat, B. 1, t. 5, §1, n. 4; and so does the Scotch law. Ersk. Pr. Laws of
Scotl. B. 3, t. 1 §8.
3. - 2. In the civil law, the first obligation on the part of the
lender, is to suffer the borrower to use and enjoy the thing loaned during the
time of the loan, according to the original intention. Such is not the doctrine
of the common law. 9 Cowen, Rep. 687. The lender is obliged by the civil law to
reimburse the borrower the extraordinary expenses to which he has been put for
the preservation of the thing lent. And in such a case, the borrower would have
a lien on the thing, and may detain it, until these extraordinary expenses are
paid, and the lender cannot, even by an abandonment of the thing to the
borrower, excuse himself from re-payment, nor is he excused by the subsequent
loss of the thing by accident, nor by a restitution of it by the borrower,
without insisting upon repayment. Pothier, PrÇt Ö Usage, ch. 3, n.
82, 83; Dig. 13, 6, 18, 4; Ersk. Pr. Laws of Scotl. B. 3, t. 1, §9. What
would be decided at common law does not seem very clear. Story on Bailm.
§274. Another case of implied obligation on the part of the lender by the
civil law is, that he is bound to give notice to the borrower of the defects of
the thing loaned; and if he does not and conceals them, and any injury occurs
to the borrower thereby, the lender is responsible. Dig. 13, 6, 98, 3; Poth.
PrÇt Ö Usage, n. 84; Domat, Liv. 1, t. 5, s. 3, n. 3. In the civil
law there is also an implied obligation on the part of the lender where the
thing has been lost by the borrower, and after he has paid the lender the value
of it, the thing has been restored to the lender; in such case the lender must
return to the borrower either the price or thing. Dig. 13, 6, 17, 5; Poth. Id.
n. 85. "The common law seems to recognize the same principles, though," says
Judge Story, Bailm. §276, "it would not perhaps be easy to cite a case on
a gratuitous loan directly on the point." See Borrower; Commodate; Story,
Bailm. ch. 4; Domat. Liv. 2, tit. 5; 1 Bouv. Inst. n. 1078, et seq.
LESION, contracts. In the civil law this term is used to signify
the injury suffered, in consequence of inequality of situation, by one who does
not receive a full equivalent for what he gives in a commutative contract.
2. The remedy given for this injury, is founded on its being the effect
of implied error or imposition; for in every commutative contract, equivalents
are supposed to be given and received. Louis. Code, 1854. Persons of full age,
however, are not allowed in point of law to object to their agreements as being
injurious, unless the injury be excessive. Poth. Oblig. P. 1, c. 1, s. 1, art.
3, §4. But minors are admitted to restitution, not only against any
excessive inequality, but against any inequality whatever. Poth. Oblig. P. 1,
c. 1, s. 1, art. 3, §5; Louis. Code, art. 1858.
3. Courts of chancery relieve upon terms of redemption and set aside
contracts entered into by expectant heirs dealing for their expectancies, on
the ground of mere inadequacy of price. 1 Vern. 167; 2 Cox, 80; 2 Cas. in Ch.
136; 1 Vern. 141; 2 Vern. 121; 2 Freem. 111; 2 Vent. 359; 2 Vern. 14; 2 Rep. in
Ch. 396; 1 P. W. 312; 1 Bro. C. C. 7; 3 P. Wms. 393, n.; 2 Atk. 133; 2 Ves.
125; 1 Atk. 301; 1 Wils. 286; 1 Wils. 320; 1 Bro. P. 6. ed. Toml. 198; 1 Bro.
C. C. 1; 16 Ves. 512; Sugd. on Vend. 231, n. k.; 1 Ball & B. 330; Wightw.
25; 3 Ves. & Bea. 117; 2 Swanst. R. 147, n.; Fonb. notes to the Treatise of
Equity, B, 1, c. 2, s. 9. A contract cannot stand where the party has availed
himself of a confidential situation, in order to obtain some selfish advantage.
Note to Crowe v. Ballard. 1 Ves. jun. 125; 1 Hov. Supp. 66, 7. Note to Wharton
v. May. 5 Ves. 27; 1 Hov. Supp. 378. See Catching bargain; Fraud; Sale.
LESSEE. He to whom a lease is made. The subject will be
considered by taking a view, 1. Of his rights. 2. Of his duties.
2. - 1. He has a right to enjoy the premises leased for the term
mentioned in the lease, and to use them for the purpose agreed upon. He may,
unless, restrained by the covenants in the lease, either assign it, or underlet
the premises. 1 Cruise, Dig. 174. By an assignment of the lease is meant the
transfer of all the tenant's interest in the estate to another person; on the
contrary, an underletting is but a partial transfer of the property leased, the
lessee retaining a reversion to himself.
3. - 2. The duties of the lessee are numerous. First, he is bound to
fulfil all express covenants he has entered into in relation to the premises
leased; and, secondly, he is required to fulfil all implied covenants, which
the relation of lessee imposes upon him towards the lessor. For example, he is
bound to put the premises to no other use than that for which it was hired;
when a farm is let to him for common farming purposes, he cannot open a mine
and dig ore which may happen to be in the ground; but if the mine has been
opened, it is presumed both parties intended it should be used, unless the
lessee were expressly restrained; 1 Cruise, Dig. 132. He is required to use the
property in a tenant-like and proper manner; to take reasonable care of it and
to restore it at the end of his term, subject only to the deterioration
produced by ordinary wear and the reasonable use for which it was demised. 12
M. & W. 827. Although he is not bound, in the absence of an express
covenant, to rebuild in case of destruction by fire or other accident, yet he
must keep the house in a habitable state if he received it in good order. See
Repairs. The lessee is required to restore the property to the lessor at the
end of the term.
4. The lessee remains chargeable, after an assignment of his term, as
before, unless the lessor has accepted the assignee; and even then he continues
liable in covenant on an express covenaut, as for repairs, or to pay rent; 2
Keb. 640; but not for the performance of an implied one, or, as it is usually
termed, a covenant in law. By the acceptance, he is discharged from debt for
arrears of future rent. Cro. Jac. 309, 334; Ham. on Parties, 129, 130. Vide
Estate for years; Lease;, Notice to quit: Tenant for years; Underlease.
LESSOR. contr. He who grants a lease. Civ. Code of L. art.
LESTAGE, Eng: law. Duties paid for unlading goods in port. Harg.
L. Tr. 75.
LET. Hinderance, obstacle, obstruction; as, without let,
molestation or hinderance.
TO LET. To hire, to lease; to grant the use and possession of
something for a compensation.
2. This term is applied to real estate and the words to hire are more
commonly used when speaking of personal estate. See Hire, Hirer, and
3. Letting is very similar to selling; the difference consists, in this;
that instead of selling the thing itself, the letter sells only the use of
LETTER, com. law, Crim. law. An epistle; a despatch; a written
message, usually on paper, which is folded up and sealed, sent by one person to
2. A letter is always presumed to be sealed, unless the presumption be
rebutted. 1 Caines, R. 682. 1
3. This subject will be considered by 1st. Taking a view of the law
relating to the transmission of letters through the post office; and, 2. The
effect of letters in making contracts. 3. The ownership of letters sent and
4. - §1. Letters are, commonly sent through the post office, and
the law has carefully provided for their conveyance through the country, and
their delivery to the persons to whom they are addressed. The act to reduce
into one the several acts establishing and regulating the post office
department, section 21, 3 Story's Laws United States, 1991, enacts, that if any
person employed in any of the departments of the post office establishment,
shall unlawfully detain, delay, or open, any letter, packet, bag, or mail of
letters, with which he shall be entrusted, or which shall have come to his
possession, and which are intended to be conveyed by post or, if any such
person shall secrete, embezzle, or destroy, any letter or packet entrusted to
such person as aforesaid, and which shall not contain any security for, or
assurance relating to money, as hereinafter described, every such offender,
being thereof duly convicted, shall, for every such offence, be fined, not
exceeding three hundred dollars, or imprisoned, not exceeding six months, or
both, according to the circumstances and aggravations of the offence. And if
any person, employed as aforesaid, shall secrete, embezzle, or destroy any
letter, packet, bag, or mail of letters, with which he or she shall be
entrusted, or which shall have come to his or her possession, and are intended
to be conveyed by post, containing any bank nots, or bank post bill, bill of
exchange, warrant of the treasury of the United States, note of assignment of
stock in the funds, letters of attorney for receiving annuities or dividends,
or for, selling stock in the funds, or for receiving the interest thereof, or
any letter of credit, or note for, or relating to, payment of moneys or any
bond, or warrant, draft, bill, or promissory note, covenant, contract, or
agreement whatsoever, for, or relating to, the payment of money, or the
delivery of any article of value, or the performance of any act, matter, or
thing, or any receipt, release, acquittance, or discharge of, or from, any
debt; covenant, or demand, or any part thereof, or any copy of any record of
any judgment or decree, in any court of law or chancery, or any execution which
way may have issued thereon; or any copy of any other record, or any other
article of value, or any writing representing the same or if any such person,
employed as aforesaid, shall steal, or take, any of the same out of any letter,
packet, bag, or mail of letters, that shall come to his or her possession, such
person shall, on conviction for any such offence, be imprisoned not less than
ten years, nor exceeding twenty-one years; and if any person who shall have
taken charge of the mails of the United States, shall quit or desert the same
before such person delivers it into the post office kept at the termination of
the route, or some known mail carrier, or agent of the general post office,
authorized to receive the same, every such person, so offending, shall forfeit
and pay a sum not exceeding five hundred dollars, for every such offence; and
if any person concerned in carrying the mail of the United States, shall
collect, receive, or carry any letter, or packet, or shall cause or procure the
same to be done, contrary, to this act, every such offender shall forfeit and
pay for every such offence a sum, not exceeding fifty dollars.
5. - §2. Most contracts may be formed by correspondence; and cases
not unfrequently arise where it is difficult to say whether the concurrence of
the will of the contracting parties took place or not. In order to form a
contract both parties must concur at the same time, or there is no agreement.
Suppose, for example, that Paul of Philadelphia, is desirous of purchasing a
thousand bales of cotton, and offers by letter to Peter of New Orleans, to buy
them from him at a certain price; but on the next day he changes his mind, and
then he writes to Peter that he withdraws his offer; or on the next day he
dies; in either case, there is no contract, because Paul did not continue in
the same disposition to buy the cotton, at the time that his offer was
accepted. The precise moment when the consent of both parties is perfect, is,
in strictness, when the person who made the offer becomes acquainted with the
fact that it has been accepted. But this may be presumed from circumstances.
The acceptance must be of the same precise terms without any variance whatever.
4 Wheat. 225; see 1 Pick. 278; 10 Pick. 326; 6 Wend. 103.
6. - §3. A letter received by the person to whom it is directed,
is the qualified property of such person: but where it is of a private nature,
the receiver has no right to publish it without the consent of the writer,
unless under very extraordinary circumstances; as, for example, when it is
requisite to the defence of the character of the party who received it. 2 Ves.
& B. 19; 2 Atk. 542; Amb. 737; 1 Ball. & B. 207; 1 Mart. (Lo.) R. 297;
Denisart, verbo Lettres Missives. Vide Dead Letter; Jeopardy; Mail; Newspaper;
Postage; Post Master General.
LETTER, contracts. In the civil law, locator, and in the French
law, locateur, loueur, or bailleur, is he who, being the owner of a thing, lets
it out to another for hire or compensation. See Hire; Locator; Conductor; Story
on Bailm. §369.
2. According to the French and civil law, in virtue of the contract, the
letter of a thing to hire impliedly engages that the hirer shall have the full
use and enjoyment of the thing hired, and that he will fulfil his own
engagements and trusts in respect to it, according to the original intention of
the parties. This implies an obligation to deliver the thing to the hirer; to
refrain from every obstruction to the use of it by the hirer during the period
of the bailment; to do no act which shall deprive the hirer of the thing; to
warrant the title and possession to the hirer, to enable him to use the thing
or to perform the service; to keep the thing in suitable order and repair for
the purpose of the bailment; and finally to warrant the thing from from any
fault inconsistent with the use of it. These are the main obligations deduced
from the nature of the contract, and they seem generally founded on
unexceptionable reasoning. Pothier, Louage, n. 53; Id. n. 217; Domat, B. 1,
tit. 4, §3 Code Civ. of L. tit. 9, c. 2, s. 2. It is difficult to say how
far (reasonable as they are in a general sense) these obligations are
recognized in the common law. In some respects the common law certainly
differs. See Repairs; Dougl. 744, 748; 1 Saund. 321, 32e, and ibid. note 7; 4
T. R. 318; 1 Bouv. Inst. n. 980 et seq.
LETTER, civil law. The answer which the prince gave to questions
of law which had been submitted to him by magistrates, was called letters or
epistles. See Rescripts.
LETTER OF ADVICE. comm. law. A letter containing information of
any circumstances unknown to the person to whom it is written; generally
informing him of some act done by the writer of the letter.
2. It is usual and perfectly proper for the drawer of a bill of exchange
to write a letter of advice to the drawee, as well to prevent fraud or
alteration of the bill, as to let the drawee know what provision has been made
for the payment of the bill. Chitt. Bills 185. (ed. of 1836.)
LETTER OF ATTORNEY, practice. A written instrument under seal,
by which one or more persons, called the constituents, authorize one or more
other persons called the attorneys, to do some lawful act by the latter, for or
instead, and in the place of the former. 1 Moody, Cr. Cas. 52, 70.
2. The authority given in the lettor of attorney is either general, as
to transact all the business of the constituent; or special, as to do some
special business, particularly named; as, to collect a debt.
3. It is revocable or irrevocable; the former when no interest is
conveyed to the attorney, or some other person. It is irrevocable when the
constituent conveys a right to the attorney in the matter which is the subject
of it; as, when it is given as part security. 2 Esp. R. 565. Civil Code of Lo:
art. 2954 to 2970.
LETTER BOOK, commerce. A book containing the copies of letters
written by a merchant or trader to his correspondents.
2. After notice to the plaintiff to produce a letter which he admitted
to have received from the defendant, it was held that an entry by a deceased
clerk, in a letter book professing to be a copy of a letter from the defendant
to the plaintiff of the same date, was admissible evidence of the contents,
proof having been given, that according to the course of business, letters of
business written by the plaintiff were copied by this clerk and then sent off
by the post. 3 Campb. R. 305. Vide 1 Stark Ev. 356; Bouv. Inst. n. 3139.
LETTER CARRIER. A person employed to carry letters from the post
office to the persons to whom they are addressed.
2. The act of congress of March 3, 1851, Statutes at Large of U. S. by
Minot, 591, directs, §10, That it shall be in the power of the postmaster
general, at all post offices where the postmaster's are appointed by the
president of the United States, to establish post routes within the cities or
towns, to provide for conveying letters to the post office by establishing
suitable and convenient places of deposit, and by employing carriers to receive
and deposit them in the post office; and at all such offices it shall be in his
power to cause letters to be delivered by suitable carriers, to be appointed by
him for that purpose, for which not exceeding one or two cents shall be
charged, to be paid by the person receiving or sending the same, and all sums
so received shall be paid into the post office department: Provided, The amount
of compensation allowed by the postmaster general to carriers shall in no case
exceed the amount paid into the treasury by each town or city under the
provisions of this section.
3. It is further enacted by c. xxi. s. 2, That the postmaster general
shall be, and he is hereby, authorized to appoint letter carriers for the
delivery of letters from any post office in California or Oregon, and to allow
the letter carriers who may be appointed at any such post office to demand and
receive such sum for all letters, newsapers, or other mailable matter delivered
by them, as may be recommended by the postmaster for whose office such letter
carrier may be appointed, not exceeding five cents for every letter, two cents
for every newspaper, and two cents for every ounce of other mailable matter and
the postmaster general shall be, and he is hereby, authorized to empower the
special agents of the post office department in California and Oregon to
appoint such letter carriers in their districts respectively, and to fix the
rates of their compensation within the limits aforesaid, subject to, and until
the final action of, the postmaster general thereon. And such appointments may
be made, and rates of compensation modified from time to time, as may be deemed
expedient and the rates of compensation may be fixed, and graduated in respect
to the distance of the place of delivery from the post office for which such
carriers are appointed, but the rate of compensation of any such letter carrier
shall not be changed after his appointment, except by the order of the
postmaster general; and such letter carriers shall be subject to the provisions
of the forty-first section of the act entitled "An Act to change the
organization of the post office, department, and to provide more effectually
for the settlement of the accounts thereof," approved July second, eighteen
hundred and thirty-six, except in cases otherwise provided for in this act.
LETTER OF CREDENCE, international law. A written instrument
addressed by the sovereign or chief magistrate of a state, to the sovereign or
state to whom a public minister is sent, certifying his appointment as such,
and the general objects of his mission, and requesting that full faith and
credit may be given to what he shall do and say ou the part of his court.
2. When it is given to an ambassador, envoy, or minister accredited to a
sovereign, it is addressed to the sovereign or state to whom the minister is
delegated in the case of a chargÇ d'affaires, it is addressed by the
secretary or minister of state charged with the department of foreign affairs
to the minister of foreign affairs of the other government. Wheat.
International Law, pt. 3, c. 1, §7; Wicquefort, de l'Ambassadeur, l. 1,
LETTER OF CREDIT, contracts. An open or sealed letter, from a
merchant in one place, directed to another, in another place or country,
requiring him that if a person therein named, or the bearer of the letter,
shall have occasion to buy commodities, or to want money to any particular or
unlimited amount, either to procure the same, or to pass his promise, bill, or
other engagement for it, the writer of the letter undertaking to provide him
the money for the goods, or to repay him by exchange, or to give him such
satisfaction as he shall require, either for himself or the bearer of the
letter. 3 Chit Com. Law, 336; and see 4 Chit. Com. Law, 259, for a form of such
2. These letters are either general or special; the former is directed
to the writer's friends or correspondents generally, where the bearer of the
letter may happen to go; the latter is directed to some particular person. When
the letter is presented to the person to whow it is addressed, he either agrees
to comply with the request, in which case he immediately becomes bound to
fulfil all the engagements therein mentioned; or he refuses in which case the
bearer should return it to the giver without any other proceeding, unless,
indeed, the merchant to whom the letter is directed is a debtor of the merchant
who gave the letter, in which case he should procure the letter to be
protested. 3 Chit. Com. Law, 337; Malyn, 76; 1 Beaw. Lex Mer. 607; Hall's Adm.
Pr. 14; 4 Ohio R. 197; 1 Wllc. R. 510.
3. The debt which arises on such letter, in its simplest form, when
complied with, is between the mandator and the mandant; though it may be so
conceived as to raise a debt also against the person who is supplied by the
mandatory. 1. When the letter is purchased with money by the person wishing for
the foreign credit; or, is granted in consequence of a check on his cash
account, or procured on the credit of securities lodged with the person who
granted it; or in payment of money due by him to the payee; the letter is, in
its effects, similar to a bill of exchange drawn on the foreign merchant. The
payment of the money by the person on whom the letter is granted raises a debt,
or goes into account between him and the writer of the letter; but raises no
debt to the person who pays on the letter, against him to whom the money is
paid. 2. When not so purchased, but truly an accommodation, and meant to raise
a debt on the person accommodated, the engagement, generally is, to see paid
any advances made to him, or to guaranty any draft accepted or bill discounted
and the compliance with the mandate, in such case, raises a debt, both against
the writer of the letter, and against the person accredited. 1 Bell's Com. 371,
6th ed. The bearer of the letter of credit is not considered bound to receive
the money; he may use the letter as he pleases, and he contracts an obligation
only by receiving the money. Poth. Contr. de Change, 237.
LETTER OP LICENSE, contracts. An instrument or writing made by
creditors to their insolvent debtor, by which they bind themselves to allow him
a longer time than he had a right to, for the payment of his debts and that
they will not arrest or molest him in his person or property till after the
expiration of such additional time.
LETTER OF MARQUE AND REPRRISAL, War. A commission granted by the
government to a private individual, to take the property of a foreign state, or
of the citizens or subjects of such state, as a reparation for an injury
committed by such state, its citizens or subjects. A vessel loaded with
merchandise, on a voyage to a friendly port, but armed for its own defence in
case of attack by an enemy, is also called a letter of marque. 1 Bouly-Paty,
tit. 3, s. 2, p. 300.
2. By the constitution, art. 1, s. 8, cl. 11, congress has power to
grant letters of marque and reprisal. Vide Chit. Law of Nat. 73; 1 Black. Com.
251; Vin. Ab. Prerogative, N a; Com. Dig. Prerogative, B 4; Molloy, B. 1, c. 2,
s. 10; 2 Wooddes. 440; 6 Rob. Rep. 9; 5 Id. 360; 2 Rob. Reb. 224. And vide
LETTER missive, Engl. law. After a bill has been filed against a
peer or peeress, or lord of parliament, a petition is presented to the lord
chancellor for his letter, called a letter missive, which requests the
defendant to appear and answer to the bill. A neglect to attend to this, places
the defendant, in relation to such suit, on the same ground as other
defendants, who are not peers, and a subpoena may then issue. Newl. Pr. 9; 2
Madd. Ch. Pr. 196; Coop. Eq. Pl. 16.
LETTER of RECFALL. A written document addressed by the executive
of one government to the executive of another, informing the latter that a
minister sent by the former to him, has been recalled.
LETTER OF RECOMMENDATION, com. law. An instrument given by one
person to another, addressed to a third, in which the bearer is represented as
worthy of credit. 1 Bell's Com. 371, 6th, ed.; 9 T. R. 51; 7 Cranch, Rep. 69;
Fell on Guar. c. 8; 6 Johns. R. 181; 13 Johns. R. 224; 1 Day's Cas. Er 22; and
the article Recommendation.
LETTER OF RECREDENTIALS. A document delivered to a minister, by
the secretary of state of the government to which he was accredited. It is
addressed to the executive of the minister's country. This is in reply to the
letter of recall.
LETTERS CLOSE, Engl. law. Close letters are grants, of the king,
and being of private concern, they are thus distinguished from letters
LETTERS AD COLLIGENDUM BONA DE FUNCTI, practice. In default of
the representatives and creditors to administer to the estate of an intestate,
the officer entitled to grant letters of administration, may grant to such
person as he approves, letters to collect the goods of the deceased, which
neither make him executor nor administrator; his only busness being to collect
the goods and keep them in his safe custody. 2 Bl. Com. 505.
LETTERS PATENT. The name of an instrument granted by the
government to convey a right to the patentee; as, a patent for a tract of land;
or to secure to him a right which he already possesses, as a patent for a new
invention or discovery; Letters patent are a matter of record. They are so
called because they are not sealed up, but are granted open. Vide Patent.
LETTERS OF REQUEST, Eng. eccl. law, An instrument by which a
judge of an inferior court waives or remits his own jurisdiction in favor of a
court of appeal immediately superior to it.
2. Letters of request, in general, lie only where an appeal would lie,
and lie only to the next immediate court of appeal, waiving merely the primary
jurisdiction to the proper appellate court, except letters of request from the
most inferior ecclesiastical court, which may be direct to the court of arches,
although one or two courts of appeal may, by this, be ousted of their
jurisdiction as courts of appeal. 2 Addams, R. 406. The effect of letters of
request is to give jurisdiction to the appellate court in the first instance.
Id. See a form of letters of request in 2 Chit. Pr. 498, note.
LETTERS ROGATORY. A letter rogatory is an instrument sent in the
name and by the authority of a judge or court to another, requesting the latter
to cause to be examined, upon interrogatories filed in a cause depending before
the former, a witness who is within the jurisdiction of the judge or court to
whom such letters are addressed. In letters rogatory there is always an offer
on the part of tbe court whence they issued, to render a similar service to the
court to which they may be directed whenever required. Pet. C. C. Rep. 236.
2. Though formerly used in England in the courts of common law, 1 Roll.
Ab. 530, pl. 13, they have been superseded by commissions of Dedimus
potestatem, which are considered to be but a feeble substitute. Dunl. Pr. 223,
n.; Hall's Ad. Pr. 37. The courts of admiralty use these letters, which are
derived from the civil law, and are recognized by the law of nations. See
Foelix, Dr. Intern. liv. 2, t. 4, p. 800; Denisart, h. t.
LETTERS TESTAMENTARY, AND OF ADMINISTRATION. It is proposed to
consider, 1. Their different kinds. 2. Their effect.
2. - §1. Their different kinds. 1. Letters testamentary. This is an
instrument in writing, granted by the judge or officer having jurisdiction of
the probate of wills, under his hand and official seal, making known that on
the day of the date of the said letters, the last will of the testator, (naming
him,) was duly proved before him; that the testator left goods, &c., by
reason, whereof, and the probate of the said will, he certifies "that
administration of all and singular, the goods, chattels, rights and credits of
the said deceased, any way concerning his last will and testament, was
committed to the executor, (naming him,) in the said testament named." 2.
Letters of administration may be described to be an instrument in writing,
granted by the judge or officer having jurisdiction and power of granting such
letters, thereby giving the administrator, (naming him,)," full power to
administer the goods, chattels, rights and credits, which were of the said
deceased, in the county or, district in which the said judge or officer has
jurisdiction; as also to ask, collect, levy, recover and receive the credits
whatsoever, of the said deceased, which at the time of his death were owing, or
did in any way belong to him, and to pay the debts in which the said deceased
stood obliged, so far forth as the said goods and chattels, rights and credits
will extend, according, to the rate and order of law." 3. Letters of
administration pendente lite, are letters granted during the pendency of a suit
in relation to a paper purporting to be the last will and testament of the
deceased. 4. Letters of administration de bonis non, are granted, where the
former executor or administrator did not administer all the personal estate of
the deceased, and where he is dead or has been discharged or dismissed. Letters
of administration, durante minori aetate, are granted where the testator, by
his will, appoints an infaut executor, who is incapable of acting on account of
his infancy. Such letters remain in force until the infant arrives at an age to
take upon himself the execution of the will. Com. Dig. Administration, F; Off.
Ex. 215, 216. And see 6 Rep. 67, b; 5 Rep. 29, a; 11 Vin. Abr. 103; Bac. Ab. h.
t. 6. Letters of administration durante absentia, are granted when the executor
happens to be absent at the time when the testator died, and it is necessary
that some person should act immediately in the management of the affairs of the
3. - §2. Of their eltect. 1. Generally. 2. Of their effect in the
different states, when granted out of the state in which legal proceedings are
4. - 1. Letters testamentary are conclusive as to personal property,
while they remain unrevoked; as to realty they are merelly primÉ facie
evidence of right. 3 Binn. 498; Gilb. Ev. 66;. 6 Binn. 409; Bac. Abr. Evidence,
F. See 2 Binn. 511. Proof that the testator was insane, or that the will was
forged, is inadmissible. 16 Mass. 433; 1 Lev. 236. But if the nature of his
plea allow the defendant to enter into such proof, he may show that the seal of
the supposed probate has been forged, or that the letters have been obtained by
surprise; 1 Lev. 136; or been revoked; 15 Serg. & Rawle, 42; or that the
testator is alive. 15 Serg. & Rawle, 42; 3 T. R. 130.
5. - 2. The effect of letters testametary, and of administration
granted, in some one of the United States, is different in different states. A
brief view of the law on this subject will here be given, taking the states in
6. Alabama. Administrators may sue upon letters of administration
granted in anothor state, where the intestate had no known place of residence
in Alabama at the time of his death, and no representative has been appointed
in the state; but before rendition of the judgment, he must produce to the
court his letters of administration, authenticated according to the laws of the
United States, and the certificate of the clerk of some county court in this
state, that the letters have been recorded in his office. Before he is entitled
to the money on the judgment, he must also give bond, payable to the judge of
the court where the judgment is rendered, for the faithful administration of
the money received. Aiken's Dig. 183 Toulm. Dig. 342.
7. Arkansas. When the deceased had no residence in Arkansas, and he
devised lands by will, or where the intestate died possessed of lands, letters
testa-mentary or of administration shall be granted in the county where the
lands lie, or of one of them, if they lie in several counties; and if the
deceased had no such place of residence and no lands, such letters may be
granted in the county in which the testator or intestate died, or where the
greater part of his estate may be. Rev. Stat. c. s. 2.
8. Connecticut. Letters testamentary issued in another state, are not
available in this. 3 Day 303. Nor are letters of administration. 3 Day, 74; and
see 2 Root, 462.
9. Delaware. By the act of 1721, 1 State Laws, 82, it is declared in
substance, that when any person shall die, leaving bona notabilia, in several
counties in the state and in Pennsylvania or elsewhere; and, any person not
residing in the state, obtains letters of administration out of the state, the
deceased being indebted to any of the inhabitants of the state, for a debt
contracted within the same to the value of ú20, then, and in such case,
such administrator, before he can obtain any judgment in any court of record
within the state against any inhabitant thereof, by virtue of such letters of
administration, is obliged to file them with some of the registers in this
state; and must enter into bonds with sufficient sureties, who have visible
estates here, with condition to pay and satisfy all such debts as were owing by
the intestate at the time of his death to any person residing in this state, so
far as the effects of the deceased in this state will extend. By the act of
June 16, 1769, 1 State Laws, 448, it is enacted in substance that any will in
writing made by a person residing out of the state, whereby any lands within
the state are devised, which shall be proved in the chancery in England,
Scotland, Ireland, or any colony, plantation, or island in America, belonging
to the king of Great Britain, or in the hustings, or mayor's court, in London,
or in some manor court, or before such persons as have power or authority at
the time of proving such wills, in the places aforesaid, to take probates of
wills, shall be good and available in law for granting the lands devised, as
well as of the goods and chattels bequeathed by such will. The copies of such
will, and of the bill, answer, depositions and decree, where proved in any
court of chancery, or copies of such wills and the probate thereof, where
proved in any other court, or in any office as aforesaid, being transmitted to
this state, and produced under the public or common-seal of the court or office
where the probate is taken, or under the great seal of the kingdom, colony,
plantation or island, within which such will is proved (except copies of such
wills and probates as shall appear to be revoked), are declared to be matter of
record, and to be good evidence in an any court of law or equity in this state,
to prove the gift or devise made in such will; and such probates are declared
to be sufficient to enable executors to bring their actions within any court
within this state, as if the same probates or letters testamentary were granted
here, and produced under the seal of any of the registers offices within this
state. By the 3d section of the act, it is declared that the copies of such
wills and probates so produced, and given in evidence, shall not be returned by
the court to the persons producing them, but shall be recorded in the office of
the recorder of the county where the same are given in evidence, at the expense
of the party producing the same.
10. Florida. Copies of all wills, and letters testamentary and of
administration, heretofore recorded in any public office of record in the
state, when duly certified by the keeper of said records, shall be received in
evidence in all courts of record in this state and the probate of wills granted
in any of the United States or of the territories thereof, in any foreign
country or state, duly authenticated and certified according to the laws of the
state or territory, or of the foreign country or state, where such probate may
have been granted, shall likewise be received in evidence in all courts of
record in this state.
11. Georgia. To enable executors and administrators to sue in Georgia,
the former must take out letters testamentary in the county where the property
or debt is; and administrators, letters of administration. Prince's Dig. 238;
Act of 1805, 2 Laws of Geo. 268.
12. Illinois. Letters testamentary must be taken out in this state, and
when the will is to be proved, the original must be produced; administrators of
other states must take out letters in Illinois, before they can maintain an
action in the courts of the state. 3 Griff. L. R. 419.
13. Indiana. Executors and administrators appointed in another state may
maintain actions and suits and do all other acts coming within their powers, as
such, within this state, upon producing authenticated copies of such letters
and filing them with the clerk of the court in which such suits are to be
brought. Rev. Code, c. 24, Feb. 17, 1838, sec. 44.
14. Kentucky executors and administrators appointed in other states may
sue in Kentucky "upon filing with the clerk of the court where the suit is
brought, an authenticated copy of the certificate of probate, or orders
granting letters of administration of said estate, given in such non-resident's
state." 1 Dig. Stat. 536; 2 Litt. 194; 3 Litt. 182.
15. Louisiana. Executors or administrators of other states must take out
letters of curatorship in this state. Exemplifications of wills, and testaments
are evidence. 4 Griff. L. R. 683; 8 N. S. 586.
16. Maine. Letters of administration must be taken from some court of
probate in this state. Copies of wills which have been proved in a court of
probate in any of the United States, or in a court of probate of any other
state or kingdom, with a copy of the probate thereof, under the seal of the
court where such wills have been proved, may be filed and recorded in any
probate court in this state, which recording shall be of the same force as the
recording and proving the original will. Rev. Stat. T. 9, c. 107 §20; 3
Mass, 514; 9 Mass. 337; 11 Mass. 256; 1 Pick. 80; 3 Pick. 128.
17. Maryland. Letters testamentary or of administration granted out of
Maryland have no effect in this state, except only such letters issued in the
District of Columbia, and letters granted there authorize executors or
administrators to claim and sue in this state. Act of April 1813, chap. 165. By
the act of 1839, chap. 41, when non-resident owners of any public or state of
Maryland stocks, or stocks of the city of Baltimore, or any other corporation
in this state die, their executors or administrators constituted under the
authority of the state, district, territory or country, where the deceased
resided at his death, have the same power as to such stocks, as if they were
appointed by authority of the state of Maryland. But, before they can transfer
the stocks, they must, during three months, give notice to two newspapers
published in Baltimore, of the death of the testator or intestate, and of the
"amount and description of the stock designed to be transferred."
Administration must be granted in this state, in order to recover a debt due
here to a decedent, or any of his property, with the exceptions above
18. Massachusetts. When any person shall die intestate in any other
state or country, leaving estate to be administered within this state,
administration thereof shall be granted by the judge of probate of any county,
in which there is any estate to be administered; and the administration, which
shall be first lawfully granted shall extend to all the estate of the deceased
within the state, and shall exclude the jurisdiction of the probate court in
every other county. Rev. Stat., ch. 64, s. 3. See 3 Mass. 514; 5 Mass. 67; 11
Mass. 256 Id. 314; 1 Pick. 81.
19. Michigan. Letters testamentary or letters of administration granted
out of the state are not of any validity in it. In order to collect the debts
or to obtain the property a deceased person who was not a resident of the
state, it is requisite to take out letters testamentary or letters of
administration from a probate court of this stafe, within whose jurisdiction
the property lies, which letters operate over all the state, and then sue in
the name of the executor or administrator so appointed. Rev. Stat. 280. When
the deceased leaves a will executed according to the laws of this state, and
the same is admitted to proof and record where he dies, a certified transcript
of the will and probate thereof, may be proved and recorded in any county in
this state, where the deceased has property real or personal, and letters
testamentary may issue thereon. Rev. Stat. 272, 273.
2O. Mississippi. Executors or administrators in another state or
territory cannot as such, sue nor be sued in this state. In order to recover a
debt due to a deceased person or his property, there must be taken out in the
state, letters of administration or letters with the will annexed, as the case
may be. These may be taken out from the probate court of the county where the
proprty is situated, by a foreign as well as a local creditor, or any person
interested in the estate of the deceased, if properly qualified in other
respects. Walker's R. 211.
21. Missouri. Letters testamentary or of administration granted in
another state have no validity in this; to maintain a suit, the executors or
adminis-trators must be appointed under the laws of this state. Rev. Code,
§2, pt 41.
22. New Hampshire. One who has obtained letters of administrition;
Adams' Rep. 193, or letters testamentary under the authority of another state,
cannot maintain an action in New Hampshire by virtue of such letters. 3 Griff.
L. R. 41.
23. New Jersey. Executors having letter testamentary, and administrators
letters of administration granted in another state, cannot sue thereon in New
Jersey, but must obtain such letters in that state as the law prescribes. 4
Griff. L R. 1240. By the act of March 6, 1828, Harr. Comp. 195, when a will has
been admitted to probate in any state or territory of the United States, or
foreign nation, the surrogate of any county or this state is authorized, on
applicaton of the executor or any person interested, on filing a duly
exemplified copy of the will, to appoint a time not less than thirty days, and
not more than six-months distant, of which notice is to be given as he shall
direct, and if at such time, no sufficient reason be shown to the contrary, to
a omit such will to probate, and grant letters testamentary or of
administration cum testamento annexo, which shall have the same effect as
though the original will had been produced and proved under form. If the person
to whom such letters testamentary or of administration be granted, is not a
resident of this state, he is required to give security for the faithful
administration of the estate. By the statute passed February 28, 1838, Elmer's
Dig. 602, no instrument of writing can be admitted to probate under the
preceding act unless it be signed and published by the testator as his will.
See Saxton's Ch. R. 332.
24. New York. An executor or administrator appointed in another state
has no authority to sue in New York. 6 John. Ch. Rep. 353; 7 John. Ch. Rep. 45;
1 Johns. Ch. Rep. 153. Whenever an intestate, not being an inhabitant of this
state, shall die out of the state, leaving assets in several counties, or
assets shall after his death come in several counties, the surrogate of any
county in which assets shall be, shall have power to grant letters of
administration on the estate of such intestate; but the surrogate, who shall
first grant letters of administration on such estate, shall be deemed thereby
to have acquired sole and exclusive jurisdiction over such estate, and shall be
vested with the powers incidental thereto. Rev. Stat. part 2, c. 6. tit. 2,
art. 2, s. 24; 1 R. L. 455 §3; Laws, of 1823, p. 62, s. 2, 1824, p.
25. North Carolina. It was decided by the court of conference, then the
highest tribunal in North Carolina, that letters granted in Georgia were
insufficient. Conf. Rep. 68. But the supreme court have since held that letters
testamentary granted in South Carolina, were sufficient to enable an executor
to sue in North Carolina. 1 Car. Law Repos. 471. See 1 Hayw. 364.
26. By the revised statutes, ch. 46, s. 6, it is provided, that "where a
testator or testatrix shall appoint any person, residing out of this state,
executor or executrix of his or her last will and testament, it shall be the
duty of the court of pleas and quarter sessions, before which the said will
shall be offered for probate, to cause the executor or executrix named therein,
to enter into bond with good and sufficient security for his or her faithful
administration of the estate of the said testator or testatrix and for the
distribution thereof in the manner prescribed by law; the penalty of said bond
shall be double the supposed amount of the personal estate of the said testator
or testatrix; and until the said executor or executrix shall enter into such
bond, he or she shall have no power nor authority to intermeddle with the
estate of the said testator or testatrix; and the court of the county in which
the testator or testatrix had his or her last usual place of resi-dence, shall
proceed to, grant letters of administration with the will annexed, which shall
continue in force until the said executor or executrix shall enter into bond as
aforesaid. Provided nevertheless, and it is hereby declared, that the said
executor or executrix shall enter into bond as by this act directed within the
space of one year after the death of the said testator, or testatrix, and not
27. Ohio. Executors and administrators appointed under the authority of
another state, may, by virtue of such appointment, sue in this. Ohio Stat. vol.
38, p. 146; Act. of March 23, 1840, which, went into effect the first day of
November following; Swan's Coll. 184.
28. Pennsylvania. Letters testamentary or of administration, or
otherwise purporting to authorize any person to intermeddle with the estate of
a decedent, granted out of the commonwealth, do not in general confer on any
such person any of the powers, and authorities possessed by an executor or
administrator, under letters granted within the state. Act of March 15, 1832 s.
6. But by the act of April 14, 1835, s. 3, this rule is declared not to apply
to any public debt or loan of this commonwealth; but such public debt or loan
shall pass and be transferable, and the dividends thereon accrued and to
accrue, be receivable in like manner and in all respects and under the same and
no other regulations, powers and authorities as were used and practiced before
the passage of the above mentioned act. And the act of June 16, 1836, s. 3,
declares that the above act of March 15, 1832, s. 6, shall not apply to shares
of stock in any bank or other incorporated company, within this commonwealth,
but such shares of stock shall pass and be transferable, and the dividends
thereon accrued and to accrue, be receivable in like manner in all respects,
and under the same regulations, powers and authorities as were used and
practiced with the loans or public debts of the United States and were used and
practiced with the loans or public debt of this commonwealth, before the
passage of the, said act of March 15, 1832, s. 6, unless the by-laws, rules and
regulations of any such bank or corporation, shall, otherwise provide and
declare. Executors and administrators who had been lawfully appointed in some
other of the United States, might, by virtue of their letters duly
authenticated by the proper officer, have sued in this state. 4 Dall. 492; S.
C. 1 Binn. 63. But letters of administration granted by the archbishop of York,
in England, give no authority to the administrator in Pennsylvania. 1 Dall.
29. Rhode Island. It does not appear to be settled whether executors and
administrators appointed in another state, may, by virtue of such appointment,
sue in this. 3 Griff. L. R. 107, 8.
30. South Carolina. Executors and administrators of other states,
cannot, as such, sue in South Carolina; they must take out letters in the
state. 3 Griff. L. R. 848.
31. Tennessee. §1. Where any person or persons may obtain,
administration on the estate of any intestate, in any one of the United States,
or territory thereof, such person or persons shall be enabled to prosecute
suits in any court in this state, in the same manner as if administration had
been granted to such person or persons by any court in the state of Tennessee.
Provided, that such person or persons shall, produce a copy of the letters of
administration, authenticated in the manner which has been prescribed by the
congress of the United States, for authenticating the records or judicial acts
of any one state, in order to give them validity in any other state and that
such letters of administration had been granted in pursuance of, and agreeable
to the laws of the state or territory in which such letters of administration
32. § 2. When any executor or executors may prove the last will
and testament of any deceased person, and take on him or themselves the
execution of said will in any state in the United States, or in any territory
thereof, such person or persons shall be enabled to prosecute suits in any
court in this state, in the same manner as if letters testamentary had been
granted to him or them, by any court within the state of Tennessee. Provided,
That such executor or executors shall, produce a certified copy of the letters
testa-mentary under the hand and seal of the clerk of the court where the same
were obtained, and a certificate by the chief justice, presiding judge, or
chairman of such court, that the clerk's certificate is in due form, and that
such letters testamentary had been granted in pursuance of, and agreeable to,
the laws of the state or territory in which such letters testamentary were
granted. Act of 1839, Carr. & Nich. Comp. 78.
33. Vermont. If the deceased person shall, at the time of his death,
reside in any other state or country, leaving estate to be administered in this
state, administration thereof shall be granted by the probate court of the
district in which there shall be estate to administer; and the administration
first legally granted, shall extend to all the estate of the deceased in this
state, and shall exclude the jurisdiction of the probate court of every other
district. Rev. Stat. tit. 12, c. 47, s. 2.
34. Virginia. Authenticated copies of wills, proved according to the
laws of any of the United States, or of any foreign country, relative to any
estate in Virginia, may be offered for probate in the general court, or if the
estate lie altogether in any other county or corporation, in the circuit,
county or corporation court of such county or corporation. 3 Griff. L. R. 345.
It is understood to be the settled law of Virginia, though there is no
statutory provision on the subject, that no probate of a will or grant of
administration in another state of the Union, or in a foreign country, and no
qualification of an executor or administrator, elsewhere than in Virginia, give
any such executor or administrator any right to demand the effects or debts of
the decedent, which may happen to be within the jurisdiction of the state.
There must be a regular probate or grant of administration and qualification of
the executor or administrator in Virginia, according to her laws. And the
doctrine prevails in the federal courts held in Virginia, as well as in the
state courts. 3 Graff. L. R. 348.
LEVANT ET COUCHANT. This French phrase, which ought perhaps more
properly to be couchant et levant, signifies literally rising and lying down.
In law, it denotes that space of time which cattle have been on the land in
which they have had time to lie down and rise again, which, in general, is held
to be one night at least. 3 Bl. Com. 9; Dane's Ab. Index, h. t; 2 Lilly's Ab.
167; Wood's Inst. 190; 2 Bouv. Inst. n. 1641.
LEVARI FACIAS, Eng. law. A writ of execution against the goods
and chattels of a clerk. Also the writ of execvtion on a judgment at the suit
of the crown. When issued against an ecclesiastic, this writ is in effect the
writ of fieri facias directed to the bishop of the diocese, commanding him to
cause execution to be made of the goods and chattels of the defendant in his
diocese. The writ also recites, that the sheriff had returned that the
defendant had no lay fee, or goods or chattels whereof he could make a levy,
and that the defendant was a beneficed clerk; &c. See 1, Chit. R. 428; Id.
589, for cases when it issues at the suit of the crown. This writ is also used
to recover the plain-tiff's debt; the sheriff is commanded to levy, such debt
on the lands and goods of the defendant, in virtue of which he may seize his
goods, and receive the rents and profits of his lands, till satisfaction be
made to the plain-tiff. 8 Bl. Com. 417; Vin. Ab. 14; Dane's Ab. Index, h.
2. In Pennsylvania, this writ is used to sell lands mortgaged after a
judgment has been obtained by the mortgagee, or his assignee, against the
mortgagor, under peculiar. proceeding authorized by statute. 3 Bouv. Inst. n.
LEVITICAL DEGREES. Those degrees of 'kindred set forth' in the
eighteenth chapter of Leviticus, within which persons are prohibited to marry.
Vide Branch; Descent; Line.
LEVY, practice. A seizure (q. v.) the raising of the money for
which an execution has been issued.
2. ln order to make a valid levy on personal property, the sheriff must
have it within his power and control, or at least withn his view, and if,
having it so, he makes a levy upon it, it will be good if followed up
afterwards within a reasonable time, by his takikng possession in such manner
as to apprize everybody of the fact of its having been taken into execution. 3
Rawle R. 405-6; 1 Whart. 377; 2 S. & R. 142; 1 Wash C. C. R. 29; 6 Watts,
468; 1 Whart. 116. The usual mode of making levy upon real estate, is to
describe the land which has been seised under the execution, by metes and
bounds, as in a deed of conveyance. 3 Bouv. Inst. n. 3391.
3. It is a general rule, that hwen a sufficient levy has been made, the
officer cannot make a second. 12 John. R. 208; 8 Cowen, R. 192. LEVYING WAR,
crim. law. The assembling of a body of men for the purpose of effecting by
force a treasonable object; and all who perform any part however minute, or
however remote from the scene of action, and who are leagued in the general
conspiracy, are considered as engaged in levying war, within the meaning of the
constitution. 4 Cranch R. 473-4; Const. art. 3, s. 3. Vide Treason;
Fries'Trial; Pamphl. This is a technical term, borrowed from the English law,
and its meaning is the same as it is when used in stat. 25 Ed. III.; 4 Cranch's
R. 471; U. S. v. Fries, Pamphl. 167; Hall's Am. Law Jo. 351; Burr's Trial; 1
East, P. C. 62 to 77; Alis. Cr. Law of Scotl. 606; 9 C. & P. 129.
LEX. The law. A law for the government of mankind in society.
Among the ancient Romans, this word was frequently used as synonymous with
right, jus. When put absolutely, lex meant the Law of the Twelve Tables.
LEX FALCIDIA, civ. law. The name of a law which permitted a
testator to dispose of three-fourtbs of his property, but he could not deprive
his heir of the other fourth. It was made during the reign of Augustus, about
the year of Rome 714, on the requisition of Falcidius, a tribune. Inst. 2, 22;
Dig. 35, 2; Code, 6, 50;. and Nov. 1 and 131. Vide article Legitime, and Coop.
Just. 486; Rob. Frauds, 290, note 113.
LEX FORI, practice. The law of the court or forum.
2. The forms of remedies, the modes of proceeding, and the execution of
judgments, are to be regulated solely and exclusively, by the laws of the place
where the action is instituted or as the civilians uniformly express it,
according to the lex fori. Story, Confl. of Laws, §550; 1 Caines' Rep.
402; 3 Johns. Ch. R. 190; 5 Johns. R. 132; 2 Mass. R. 84; 7 Mass. R. 515; 3
Conn. R. 472; 7 M. R. 214; 1 Bouv. Inst. n. 860.
LEX LOCI CONTRACTUS, contracts. The law of the place where an
agreement is made.
2. Generally, the validity of a contract is to be decided by the law of
the place where, the contract is made; if valid, there it is, in general, valid
everywhere. Story, Confl. of Laws, §242, and the cases there cited. And
vice versa if void or illegal there, it is generally void everywhere. Id
§243; 2 Kent Com. 457; 4 M. R. 584; 7 M. R. 213; 11 M. R. 730; 12 M. R.
475; 1 N. S. 202; 5 N. S. 585; 6 N. S. 76; 6 L. R. 676; 6 N. S. 631; 4 Blackf.
3. There is an exception to the rule as to the universal validity of
contracts. The comity of nations, by virtue of which such contracts derive
their force in foreign countries, cannot prevail in cases where it violates the
law of our own country, the law of nature, or the law of God. 2 Barn. &
Cresw. 448, 471. And a furthIer exeeption may be mentioned, namely, that no
nation will regard or enforce the revenue laws of another country. Cas. Tem.
85, 89, 194.
4. When the contract is entered into in one place, to be executed in
another, there are two loci contractus; the locus celebrate contractus, and the
locus solutionis; the former governs in everything which relates to the mode of
construing the contract, the meaning to be attached to the expressions, and the
nature and validity of the engagement; but the latter governs the performance
of the agreement. 8 N. S. 34. Vide 15 Serg. & Rawle 84; 2 Mass. R. 88; 1
Nott & M'Cord, 173; 2 Harr. & Johns. 193, 221; 2 N. H. Rep. 42; 5 Id.
401; 2 John. Cas. 355; 5 Pardes. n. 1482; Bac. Abr. Bail in Civil Causes, B 5;
Com. Dig. 545, n.; 1 Supp. to Ves. jr. 270; 8 Ves. 198; 5 Ves. 750.
LEX LONGOBARDORUM. The name of an ancient code in force among
the Lombards. It contains many evident traces of feudal policy. It survived the
destruction of the ancient government of Lombardy by Charlemagne, and is said
to be still partially in force in some districts of Italy.
LEX MERCATORIA. That system of laws which is adopted by all
commercial nations, and which, therefore, constitutes a part of the law of the
land. Vide Law Merchant.
LEX TALIONIS. The law of retaliation an example of which is
given in the law of Moses, an eye for an eye, a tooth for a tooth, &c.
2. Jurists and writers on international law are divided as to the right
of one nation punishing with death, by way of retaliation, the citizen's or
subjects of another nation; in, the United States no example of such barbarity
has ever been witnessed but, prisoners have been kept in close confinement in
retaliation for the same conduct towards American prisoners. Vide Rutherf.
Inst. b. 2, c. 9; Mart. Law of Nat. b. 8, c. 1, s. 3, note 1 Kent, Com. 93.
3. Writers on the law of nations have divided retaliation into
vindictive and amicable: By the former are meant those acts of retaliation
which amount to a war; the latter those acts of retaliation which correspond to
the acts of the other nation under similar circumstances. Wheat. Intern. Law,
pt. 4, c. 1, §1.
LEX TERAE. The law of the land. The phrase is used to
distinguisb this from the civil or Roman law.
2. By lex terrae, as used in Magna Charta, is meant one process of law,
namely, proceeding by indictment or presentment of good and lawful men. 2 Inst.
50; 19 Wend. 659; 4 Dev. R. 15. in the constitution of Tennessee, the words
"the law of the land" signify a general and public law, operating equally upon
every member of the community. 10 Yerg. 71.
LEY. This word is old French, a corruption of loi, and signifies
law; for example, Termes de la Ley, Terms of the Law. In another, and an old
technical sense, ley signifies an oath, or the oath with compurgators; as, il
tend sa ley aiu pleyntiffe. Brit. c. 27.
LEY-GAGER. Wager of Law. (q. v.)
LIABILITY. Responsibility; the state of one who is bound in law
and justice to do sometbing which may be enforced by action. This liability may
arise from contracts either express or implied, or in consequence of torts
2. The liabilities of one man are not in general transferred to his
representative's further than to reach the estate in his hands. For example, an
executor is not responsible for the liabilities of his testator further than
the estate of the testator which has come to his hands. See Hamm. on Pait. 169,
3. The husband is liable for his wife's contracts made dum sola, and for
those made during coverture for necessaries, and for torts committed either
while she was sole or since her marriage with him; but this liability continues
only during the coverture; as to her torts, or even her contracts made before
marriage; for the latter, however, she may be sued as her executor or
administiator, when she assumes that character.
4. A master is liable for the acts of his servant while in his employ,
performed in the usual course of his business, upon the presumption that they
have been authorized by him; but he is responiible only in a civil point of
view and not criminally, unless the acts have been actually authorized by him.
See Bouv. Inst. Index, h. t.; Driver; Quasi Offence; Servant.
LIBEL, practice. A libel has been defined to be "the plaintiff's
petition or allegation, made and exhibited in a judicial process, with some
solemnity of law;" it is also, said to be "a short and well ordered writing,
setting forth in a clear manner, as well to the judge as to the defendant, the
plaintiff's or accuser's intention in judgment." It is a written statement by a
plaintiff, of his cause of action, and of the relief he seeks to obtain in a
suit. Law's Eccl. Law, 147; Ayl. Par. 346; Shelf. on M. & D. 506; Dunf Adm.
Pr. 111; Betts. Pr. 17; Proct. Pr. h. t.; 2 Chit. Pr. 487, 533.
2. The libel should be a narrative, specious, clear, direct, certain,
not general, nor alternative. 3 Law's Eccl. Law. 147. It should contain,
substantially, the following requisites: 1. The name, description, and addition
of the plaintiff, who makes his demand by bringing his action. 2 The name,
description, and addition of the defendant. 3. The name of the judge with a
respectful designation of his office and court. 4. The thing or relief, general
or special, which is demanded in the suit. 5. The grounds upon which the suit
is founded. All these things are summed up in Latin, as follows;
Quis, quid, coram quo, quo jure petitur, et a quo, Recte compositus
quique libellus habet:
which has been translated,
Each plaintiff and defendant's name, and eke the judge who tries the
same, The thing demanded and the right whereby You urge to have it granted
instantly: He doth a libel write and well compose, Who forms the same, emitting
none of those.
3. The form of a libel is either simple or articulate. The simple form
is, when the cause of action is stated in a continuous narration, when the
cause of action can be briefly set forth. The articulate form, is when the
cause of action is stated in distinct allegations, or articles. 2 Law's Ecel.
Law, 148; Hall's Adm. Pr. 123; 7 Cranch, 349. The material facts should be
stated in distinct articles in the libel, with as much exactness and attention
to times and circumstances, as in a declaration at common law. 4 Mason, 541.
Pompous diction and strong epithets are out of place in a legal paper designed
to obtain the admission of the opposite party of the averments it contains, or
to lay before the court the facts which the actor will prove.
4. Although there is no fixed formula for libels and the court will
receive such an instrument from the party in such form as his own skill or that
of his counsel may enable him to give it, yet long usage has sanctioned forms,
which it may be most prudent to adopt. The parts and arrangement of libels
commonly employed are,
5. - 1. The address to the court; as, To the Honorable John K. Kane,
Judge of the district court of the United States, within and for the eastern
district of Pennsylvania.
6. - 2. The names and descriptions of the parties. Persons competent to
sue at common law may be parties libellants, and similar regulations obtain in
the admiralty courts and the common law courts, respecting those disqualified
from suing in their own right or name. Married women prosecute by their
husbands, or by prochein ami, when the husband has an adverse interest to hers;
minors, by guardians, tutors, or prochein ami; lunatics and persons non compos
mentis, by tutor, guardian ad litem, or committee; the rights of deceased
persons are prosecuted by executors or administrators; and corporations are
represented, and proceeded against as at common law.
7. - 3. The averments or allegations setting forth the cause of action
should be conformable to the truth, and so framed as to correspond with the
evidence. Every fact requisite to establish the libellant's right should be
clearly stated, so that it may be directly met by the opposing party by
admission, denial or avoidance; this is the more necessary because no proof can
be given, or decree rendered, not covered by and conformable to the
allegations. 1 Law's Eccl. Laws, 150; Hall's Pr. 126; Dunl. Adm. Pr. 113; 7
8. - 4. The conclusion, or prayer for relief and process; the prayer
should be for the specific relief desired; for general relief, as is usual in
bills in chancery; the conclusion should also pray for general, or particular
process. Law's Eccl. Law, 149; and see 3 Mason, R. 503. Interrogatories are
sometimes annexed to the libel; when this is the case, there is usually a
special prayer, that the defendant may be required to answer the libel, and the
interrogatories annexed and propounded. This, however, is a dangerous practice,
because it renders the answers of the defendant evidence, which must be
disproved by two witnesses, or by one witness, corroborated by very strong
9. The libel is the first proceeding in a suit in admiralty in the
courts of the United States. 3 Mason, R., 504. It is also used in some other
courts. Vide, generally, Dunl. Adm. Pr. ch. 3; Bett's Adm. Pr. s. 3; Shelf. on.
M. & D. 606; Hall's Adm. Pr. Index, h. t.; 3 Bl. Com. 100; Ayl. Par. Index,
h. t.; Com. Dig. Admiralty, E; 2 Roll. &b. 298.
LIBEL, libellus, criminal law. A malicious defamation expressed
either in printing or writing, or by signs or pictures, tending to blacken the
memory of one who is dead, with intent to provoke the living; or the reputation
of one who is alive, and to expose him to public hatred, contempt, or ridicule.
Hawk. b. 1, c. 73, s. 1; Wood's Inst, 444; 4 Bl. Com. 150; 2 Chitty, Cr. Law,
867; Holt on Lib. 73; 5 Co. 125; Salk. 418; Ld. Rgym. 416; 4. T. R. 126; 4
Mass. R. 168; 9 John. 214; 1 Den. Rep. 347; 2 Pick. R. 115; 2 Kent, Com. 13. It
has been defined perhaps with more precision to be a censorious or ridiculous
writing, picture or sign made with a malicious or mischievous intent, towards
government magistrates or individuals. 3 John. Cas. 354; 9 John. R. 215; 5
2. In briefly considering this offence, we will inquire, 1st. By what
mode of expression a libel may be conveyed. 2d. Of what kind of defamation it
must consist. 3d. How plainly it must be expressed. 4th. What mode of
publication is essential.
3. - 1. The reduction of the slanderous matter to writing, or printing,
is the most usual mode of conveying it. The exhibition of a picture, intimating
that which in print would be libelous, is equally criminal. 2 Camp. 512; 5 Co.
125; 2 Serg. & Rawle 91. Fixing a gallows at a man's door, burning him in
effigy, or exhibiting him in any ignominious manner, is a libel. Hawk. b. 1, c.
73, s. 2,; 11 East, R. 227.
4. - 2. There is perhaps no branch of the law which is so difficult to
reduce to exact, principles, or to compress within a small compass, as the
requisites of a libel. All publications denying the Christian religion to be
true; 11 Serg. & Rawle, 394; Holt on Libels, 74; 8 Johns. R. 290; Vent.
293; Keb. 607; all writings subversive of morality and tending to inflame the
passions by indecent language, are indictable at common law. 2 Str. 790; Holt
on Libels, 82; 4 Burr. 2527. In order to constitute a libel, it is not
necessary that anything criminal should be imputed to the party injured; it is
enough if the writer has exhibited him in a ludicrous point of view; has
pointed him out as an object of ridicule or disgust; has, in short, done that
which has a natural tendency to excite him to revenge. 2 Wils. 403; Bacon's
Abr. Libel, A 2; 4 Taunt. 355; 3 Camp. 214; Hardw. 470; 5 Binn. 349. The case
of Villars v. Monsley, 2 Wils. 403, above cited, was grounded upon the
following verses, which were held to be libelous, namely:
"Old-Villers, so strong of brimstone you smell,
As if not long
since you had got out of hell,
But this damnable smell I no longer can
Therefore I desire you would come no more here;
stinking; old nasty, old itchy, old toad,
If you come any more you shall
pay for your board,
You'll therefore take this as a warning from me,
And never enter the doors, while they belong to J. P.
Wilncot, December 4,
5. Libels against the memory of the dead which have a tendency to create
a breach of the peace by inciting the friends and relatives of the deceased to
avenge the insult of the fanlily, render their authors liable to legal
animadversion. 5 co. 123; 5 Binn. 281; 2 Chit. Cr. Law, 868; 4 T. R. 186.
6. - 3. If the matter be understood as scandalous, and is calculated to
excite ridicule or abhorrence against the party intended, it is libelous,
however it may be expressed. 5 East, 463; 1 Price, 11, 17; Hob. 215; Chit. Cr.
Law, 868; 2 Campb. 512.
7. - 4. The malicious reading of a libel to one or more persons, it
being on the shelves in a bookstore, as other books, for sale; and where the
defendant directed the libel to be printed, took away some and left others;
these several acts have been held to be publications. The sale of each copy;
where several copies have been sold, is a distinct publication, and a fresh
offence. The publication must be malicious; evidence of the malice may be
either express or implied. Express proof is not necessary: for where a man
publishes a writing which on the face of it is libelous, the law presumes he
does so from that malicious intention which constitutes the offence, and it is
unnecessary, on the part of the prosecution, to prove any circumstance from
which malice may be inferred. But no allegation, however false and malicious,
contained in answers to interrogatories, in affidavits duly made, or any other
proceedings, in courts of justice, or petitions to the legislature, are
indictable. 4 Co. 14; 2 Burr. 807; Hawk. B. 1, c. 73, s. 8; 1 Saund. 131, n. 1;
1 Lev. 240; 2 Chitty's Cr. Law, 869; 2 Serg. & Rawle, 23. It is no defence
that the matter published is part of a document printed by order of the house
of commons. 9 A. &E. 1.
8. The publisher of a libel is liable to be punished criminally by
indictment; 2 Chitty's Cr. Law, 875; or is subject to an action on the case by
the party grieved. Both remedies may be pursued at the same time. Vide)
generally, Holt on Libels; Starkie on Slander; 1 Harr. Dig. Case, I.; Chit. Cr.
L. Index, h. t.; Chit. Pr. Index, h. t.
LIBEL OF ACCUSATION. A term used in Scotland to designate the
instrument which contains the charge against a person accused of a crime.
Libels are of two kinds, namely, indictments and crimiual letters.
2. Every libel assumes the form of what is termed in logic, a syllogism.
It is first stated that some partioular kind of act is criminal; as, that
"theft is a crime of a heinous nature, and severely punishable." This
proposition is termed the major. It is next stated that the person accused is
guilty, of the crime so named, "actor, or art and part." This, with the
narrative of the manner in which, and the time when the offence was committed,
is called the, minor proposition of the libel. The conclusion is that all or
part of the facts being proved, or admitted by confession, the panel "ought to
be punished with the pains of the law, to deter others from committing the like
crime in all time coming." Burt Man. Pub. L. 300, 301.
LIBELLANT. The party who fires a libel in a chancery or
admiralty case, correspondes to the plaintiff in actions in the common law
courts, is called the libellant.
LIBELLEE. A party against whom a libel has been filed in
chancery proceedings, or in admiralty, corresponding to the defendant in a
common law suit.
LIBER. A book; a principal subdivision of a literary work: thus,
the Pandects, or Digest of the Civil Law, is divided into fifty books.
LIBER ASSISARUM. The book of assizes, or pleas of the crown;
being the fifth part of the Year Books. (q. v.)
LIBER FEUD RUM. A code of the feudal law, which was compiled by
direction of the emperor Frederick Barbarossa, and published in Milan, in 1170.
It was called the Liber Feudorum, and was divided into five books, of which the
first, second, and some fragments of the other's still exist and are printed at
the end of all the modern editions of the Corpus Juris Civilis. Giannone, B.
13, c, 3; Cruise's Dig. Prel. Diss. c. 1, §31.
LIBER HOMO. A freeman lawfully competent to act as a juror.
Raym. 417; Keb. 563.
LIBERATE, English practice. A writ which issues on lands,
tenements, and chattels, being returned under an extent on a statute staple,
commanding the sheriff to deliver them to the plaintiff, by the extent aud
appraisement mentioned in the writ of extent, and in the sheriff's return
thereto. See Com dig. Statute Staple, D 6.
LIBERATION, civil law. This term is synonymous with payment.
Dig. 50, 16, 47. It is the extinguishment of a contract by which he who was
bound become's free, or liberated. Wolff, Dr. de la Nat. § 749.
LIBERTI, LIBERTINI. These two words were, at different times,
made to express among the Romans, the condition of those who, having been
slaves, had been made free. 1 Brown's Civ. Law, 99. There is some distinction
between these words. By libertus, was understood the freedman, when considered
in relation to his patron, who had bestowed liberty upon him and he was called
libertinus, when considered in relation to the state he occupied in society
since his manumission. Lec. El. Dr. Rom. §93.
LIBERTY. Freedom from restraint. The power of acting as one
thinks fit, without any restraint or control, except from the laws of
2. Liberty is divided into civil, natural, personal, and political.
3. Civil liberty is the power to do whatever is permitted by the
constitution of the state and the laws of the land. It is no other than natural
lib-erty, so far restrained by human laws, and no further, operating equally
upon all the citizens, as is necessary and expedient for the general advantage
of the public. 1 Black. Com. 125; Paley's Mor. Phil. B. 6, c.5; Swifts Syst.
4. That system of laws is alone calculated to maintain civil liberty,
which leaves the citizen entirely master of his own conduct, except in those
points in which the public good requires some direction and restrant. When a
man is restrained in his natural liberty by no municipal laws but those which
are requisite to prevent his violating the natural law, and to promote the
greatest moral and physical welfare of the community, he is legally possessed
of the fullest enjoyment of his civil rights of individual liberty. But it must
not be inferred that individuals are to judge for themselves how far the law
may justifiably restrict their individual liberty; for it is necessary to-the
welfare of the commonwealth, that the law should be obeyed; and thence is
derived the legal maxim, that no man may be wiser than the law.
5. Natural liberty is the right which nature gives to all mankind, of
diposing of their persons and property after the manner they judge most
consonant to their happiness, on condition of their acting within the limits of
the law of nature, and that they do not in any way abuse it to the prejudice of
other men. Burlamaqui, c. 3, s. 15; 1 Bl. Com. 125.
6. Personal liberty is the independence of our actions of all other will
than our own. Wolff, Ins. Nat. §77. It consists in the power of
locomotion, of changing situation, or removing one's person to whatever place
one's inclination may direct, without imprisonment or restraint, unless by due
course of law. 1 Bl. Com. 134.
7. Political liberty may be defined to be, the security by which, from
the constitution, form and nature of the established government, the citizens
enjoy civil liberty. No ideas or definitions are more distinguishable than
those of civil aud political liberty, yet they are generally confounded. 1 Bl.
Com. 6, 125. The political liberty of a state is based upon those fundamental
laws which establish the distribution of legislative and executive powers. The
political liberty of a citizen is that tranquillity of mind, which is the
effect of an opinion that he is in perfect security; and to insure this
security, the government must be such that one citizen shall not fear
8. In the English law, by liberty is meant a privilege held by grant or
prescription, by which some men enjoy greater benefits than ordiuary subjects.
A liberty is also a territory, with some extraordinary privilege.
9. By liberty or liberties, is understood a part of a town or city, as
the Northern Liberties of the city of Philadelphia. The same as Faubourg. (q.
LIBERTY OF THE PRESS. The right to print and publish the truth,
from good motives, and for justifiable ends. 3 Johns. Cas. 394.
2. This right is secured by the constitution of the United States.
Amendments, art. 1. The abuse of the right is punished criminally, by
indictment; civilly, by action. Vide Judge Cooper's Treatise on the Law of
Libel, aud the Liberty of the Press, passim; and article Libel.
LIBERTY OF SPEECH. The right given by the constitution and the
laws to public support in speaking facts or opinions.
2. In a republican government like ours, liberty of speech cannot be
extended too far, when its object is the public good. It is, therefore, wisely
provided by the constitution of the United States, that members of congress
shall not be called to account for anything said in debate; and similar
provisions are contained in the constitutions of the several states in relation
to the members of their respective legislatures. This right, however, does not
extend beyond the mere speaking; for if a member of congress were to reduce his
speech to writing and cause it to be printed, it would no longer bear a
privileged character and he might be held responsible for a libel, as any other
individual. Bac. Ab. Libel, B.* See Debate.
3. The greatest latitude is allowed by the common law to counsel; in the
discharge of his professional duty he may use strong epithets, however
derogatory to other persons they may be, if pertinent to the cause, and stated
in his instructions, whether the thing were true or false. But if he were
maliciously to travel out of his case for the purpose of slandering another, he
would be liable to an action, and amenable to a just and often more efficacious
punishment inflicted by public opinion. 3 Chit. Pr. 887. No respectable counsel
will indulge himself with unjust severity; and it is doubtless the duty of the
court to prevent any such abuse.
LIBERUM TENEMENTUM, pleading. The name of a plea in an action of
trespass, by which the defendant claims the locus in quo to be his soil and
freehold, or the soil and freehold of a third person, by whose command he
entered. 2 Salk. 453; 7 T. R. 355; 1 Saund. 299, b, note.
LIBERUM TENEMENTUM, estate. The same as, freehold, (q. v.) or
frank tenement. 2 Bouv. Inst. n. 1690.
LICENSE, contracts. A right given by some competent authority to
do an act, which without such authority would be illegal. The instrument or
writing which secures this right, is also called a license. Vide Ayl. Parerg,
353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.
2. A license is express or implied. An express license is one which in
direct terms authorizes the performance of a certain act; as a license to keep
a tavern given by public authority.
3. An implied license is one which though not expressly given, may be
presumed from the acts of the party having a right to give it. The following
are examples of such licenses: 1. When a man knocks at another's door, and it
is opened, the act of opening the door licenses the former to enter the house
for any lawful purpose. See Hob. 62. A servant is, in consequence of his
employment, licensed to admit to the house, those who come on his master's
business, but only such persons. Selw. N. P. 999; Cro. Eliz. 246. It may,
however, be inferred from circumstances that the servant has authority to
invite whom he pleases to the house, for lawful purposes. See 2 Greenl. Ev.
4. A Iicense is either a bare authority, without interest, or it is
coupled with an interest. 1. A bare license must be executed by the party to
whom it is given in person, and cannot be made over or assigned by him to
another; and, being without consideration, may be revoked at pleasure, as long
as it remains executory; 39 Hen. VI. M. 12, page 7; but when carried into
effect, either partially or altogether, it can only be rescinded, if in its
nature it will admit of revocation, by placing the other side in the same
situation in which he stood before he entered on its execution. 8 East, R. 308;
Palm. 71; S. C. Poph. 151; S. C. 2 Roll. Rep. 143, 152.
5. - 2. When the license is coupled with an interest the authority
conferred is not properly a mere permission, but amounts to a grant, which
cannot be revoked, and it may then be assigned to a third person. 5 Hen. V., M.
1, page 1; 2 Mod. 317; 7 Bing. 693; 8 East, 309; 5 B. & C. 221; 7 D. &
R. 783; Crabb on R. P. §521 to 525; 14 S. & R 267; 4 S. & R. 241;
2 Eq. Cas. Ab. 522. When the license is coupled with an interest, the
formalities essential to confer such interest should be observed. Say. R. 3; 6
East, R. 602; 8 East, R. 310, note. See 14 S. & R. 267; 4 S. & R. 241;
2 Eq. Cas. Ab. 522; 11 Ad. & El. 34, 39; S. C. 39 Eng, C. L. R. 19.
LICENSE, International law. An authority given by one of two
belligerent parties, to the citizens or subjects of the other, to carry on a
2. The effects of the license are to suspend or relax the rules of war
to the extent of the authority given. It is the assumption of a state of peace
to the extent of the license. In the country which grants them, licenses to
carry on a pacific commerce are stricti juris, as being exceptions to the
general rule; though they are not to be construed with pedantic accuracy, nor
will every small deviation be held to vitiate the fair effect of them. 4 Rob.
Rep. 8; Chitty, Law of Nat. 1 to 5, and 260; 1 Kent, Com. 164, 85.
LlCENSE, pleading. The name of a plea of justification to an
action of trespass. A license must be specially pleaded, and cannot, like
liberum tenementum, be given in evidence under the general issue. 2. T. R. 166,
LICENSEE. One to whom a license has been given. 1 M. Q. & S.
LICENTIA CONCORDANDI, estates, conveyancing, practice. When an
action is brought for the purpose of levying a fine, the defendant, knowing
himself to be in the wrong, is supposed to make overtures of accommodation to
the plaintiff, who accepts them; but having given pledges to prosecute his
suit, applies to the court, upon the return of the writ of covenant, for leave
to make the matter up; this, which is readily granted, is called the, licentia
concordandi. 5 Rep. 39; Cruise, Dig. tit. 35, c. 2, 22.
LICENTIA LOQUENDI. Imparlance. (q. v.)
LICENTIOUSNESS. The doing what one pleases without regard to the
rights of others; it differs from liberty in this, that the latter is
restrained by natural or positive law, and consists in doing whatever we
please, not inconsistent, with the rights of others, whereas the former does
not respect those rights. Wolff, Inst. §84.
LICET SAEPIUS REQUISITUS, pleading. practice. Although often
requested. It is usually alleged in the declaration that the defendant, licet
saepius requisitus, &c., he did not perform the contract, the violatioin of
which is the foundation of the action. The allegation is generally sufficient
when a request is not parcel of the contract. Indeed, in such cases it is
unneccssary even to lay a general request, for the bringing of the suit is
itself a sufficient request. 1 Saund. 33, n. 2; 2 Saund, 118 note 3; Plowd.
128; 1 Wils. 33; 2 H. BI. 131; 1 John. Cas. 99, 319; 7 John. R. 462; 18 John.
R. 485; 3 M. & S. 150. Vide Demand.
LICET. It is lawful; not forbidden by law. Id omne licitum est, quod non
est legibus prohibitum; quamobrem, quod, lege permittente, fit, poenam non
LICITATION. A sale at auction; a sale to the highest bidder.
LIDFORD LAW. Vide Lynch Law.
TO LIE. That which is proper, is fit; as, an action on the case
lies for an injury committed without force; corporeal hereditaments lie in
livery, that is, they pass by livery; incorporeal hereditaments lie in grant,
that is, pass by the force of the grant, and without any livery. Vide Lying in
LIEGE, from the Latin, ligare, to bind. The bond subsisting
between the subject and chief, or lord and vassal, binding the one to
protection and just government, the other to tribute and due subjection. The
prince or chief is called liege lord; the subjects liege men. The word is now
applied as if the liegance or bond were only to attach the people to the
prince. Stat. 8 Hen. VI. c. 10; 14 Hen. VIII. c. 2; 1 Bl. Com. 367.
LIEGE POUSTIE, Scotch law. The condition or state of a person
who is in his ordinary health and capacity, and not a minor, nor cognosced as
an idiot or madman, nor under interdiction. He is then said to be in Iiege
poustie, or in legitima potestati, and he has full power of disposal of his
property. 1 Bell's Com. 85, 5th ed.; 6 Clark & Fin. 540. Vide Sui
LIEN, contracts. In its most extensive signification, this term
includes every case in which real or personal property is charged with the
payment of any debt or duty; every such charge being denominated a lien on the
property. In a more limited sense it is defined to be a right of detaining the
property of another until some claim be satisfied. 2 East 235; 6 East 25; 2
Campb. 579; 2 Meriv. 494; 2 Rose, 357; 1 Dall. R. 345.
2. The right of lien generally arises by operation of law, but in some
cases it is created by express contract.
3. There are two kinds of lien; namely, particular and general. When a
person claims a right to retain property, in respect of money or labor expended
on such particular property, this is a particular lien. Liens may arise in
three ways: 1st. By express contract. 2d. From implied contract, as from
general or particular usage of trade. 3d. By legal relation between the
parties, which may be created in three ways; When the law casts an obligation
on a party to do a particular act, and in return for which, to secure him
payment, it gives him such lien; 1 Esp. R. 109; 6 East, 519; 2 Ld. Raym. 866;
common carriers and inn keepers are among this number. 2. When goods are
delivered to a tradesman or any other, to expend his labor upon, he is entitled
to detain those goods until he is remunerated for the labor which he so
expends. 2 Roll. Ab. 92; 3 M. & S. 167; 14 Pick. 332; 3 Bouv. Inst. n.
2514. 3. When goods have been saved from the perils of the sea, the salvor may
detain them until his claim for salvage is satisfied; but in no other case has
the finder of goods, a lien. 2 Salk. 654; 5 Burr. 2732; 3 Bouv. Inst. n. 2518.
General liens arise in three ways; 1. By the agreement of the parties. 6 T.
R.14; 3 Bos. & Pull. 42. 2. By the general usage of trade. 3. By particular
usage of trade. Whitaker on Liens 35; Prec. Ch. 580; 1 Atk. 235; 6 T. R.
4. It may be proper to consider a few, general principles: 1. As to the
manner in which a lien may be acquired. 2. To what claims liens properly
attach. 3. How they may be lost. 4. Their effect.
5. - 1. How liens may be acquired. To create a valid lien, it is
essential, 1st. That the party to whom or by whom it is acquired should have
the absolute property or ownership of the thing, or, at least, a right to vest
it. 2d. That the party claiminig the lien should have an actual or
constructive, possession, with the assent of the party against whom the claim
is made. 3 Chit. Com. Law, 547; Paley on Ag. by Lloyd, 137; 17 Mass. R. 197; 4
Campb. R. 291; 3 T. R. 119 and 783; 1 East, R. 4; 7 East, R. 5; 1 Stark. R.
123; 3 Rose, R. 955; 3 Price, R. 547; 5 Binn. R. 392. 3d. That the lien should
arise upon an agreement, express or implied, and not be for a limited or
specific purpose inconsistent with the express terms, or the clear, intent of
the contract; 2 Stark. R. 272; 6 T. R. 258; 7 Taunt. 278;. 5 M. & S. 180;
15 Mass. 389, 397; as, for example, when goods are deposited to be delivered to
a third person, or to be transported to another place. Pal. on Ag. by Lloyd,
6. - 2. The debts or claims to which liens properly attach. 1st. In
general, liens properly attach on liquidated demands, and not on those which
sound only in damages; 3 Chit. Com. Law, 548; though by an express contract
they may attach even in such a case as, where the goods are to be held as an
indemnity against a future contingent claim or damages. Ibid. 2d. The claim for
which the lien is asserted, must he due to the party claiming it in his own
right, and not merely as agent of a third person. It must be a debt or demand
due from the very person for whose benefit the party is acting, and not from a
third person, although the goods may be claimed through him. Pal. Ag. by Lloyd,
7. - 3. How a lien may be lost. 1st. It may be waived or lost by any act
or agreement between the parties, by which it is surrendered, or becomes
inaplicable. 2d. It may also be lost by voluntarily parting with the possession
of the goods. But to this rule there are some exceptions; for example, when a
factor by lawful authority sells the goods of his principal, and parts with the
possession under the sale he is not, by this act, deemed to lose his lien, but
it attaches to the proceeds of the sale in the hands of hte vendee.
8. - 4. The effect of liens. In general, the right of the holder of the
lien is confined to the mere right of retainer. But when the creditor has made
advances on the goods of a factor, he is generally invested with the right to
sell. Holt's N P. Rep. 383; 3 Chit. Com. Law, 551; 2 Liverm. Ag. 103; 2 Kent's
Com. 642, 3d ed. In some cases where the lien would not confer power to sell, a
court of equity would decree it. 1 Story Eq. Jur. §566; 2 Story, Eq. Jur.
§1216; Story Ag. §371. And courts of admiralty will deeree a sale to
satisfy maritime liens. Abb. Ship. pt. 3, c10. §2; Story, Ag.
9. Judgments rendered in courts of record are generally liens on the
real estate of the defendants or parties against whom such judgments are given.
In Alabama, Georgia and Indiana, judgment is a lien; in the last mentioned
state, it continues for ten years from January 1, 1826, if it was rendered from
that time; if, after ten years from the rendition of the judgment, and when the
proceedings are stayed by order of the court, or by an agreement recorded, the
time of its suspension is not reckoned in the ten years. A judgment does not
bind lands in Kentucky, the lien commences by the delivery of execution to the
sheriff, or officer. 4 Pet. R. 366; 1 Dane's R. 360. The law seems to be the
same in Mississippi. 2 Hill. Ab. c. 46, s. 6., In New Jersey, the judgments
take priority among themselves in the order the executions on them have been
issued. The lien of a judgment and the decree of a court of chancery continue a
lien in New York for ten years, and bind after acquired lands. N. Y. Stat. part
3, t. 4, s. 3. It seems that a judgment is a lien in North Carolina, if an
elegit has been sued out, but this is perhaps not settled. 2 Murph. R. 43. The
lien of a judgment in Ohio is confined to the county, and continues only for
one year, unless revived. It does not, per se, bind after acquired lands. In
Pennsylvania, it commences with the rendering of judgment, and continues five
years from the return day of that term. It does not, per se, bind after
acquired lands. It may be revived by scire facias, or an agreement of the
parties, and terre tenants, written and filed. In South CaroIina and Tennessee
a judgment is also a lien. In the New England states, lands are attached by
mesne process or on the writ, and a lien is thereby created. See 2 Hill. Ab. c.
10. Liens are also divided into legal and equitable. The former are
those which may be enforeed iu a court of law; the latter are valid only in a
court of equity. The lien which the vendor of real estate has on the estate
sold, for the purchase money remaining unpaid, is a familiar example of an
equitable lien. Math. on Pres. 392. Vide Purchase money. Vide, generally, Yelv.
67, a; 2 Kent, Com. 495; Pal Ag. 107; Whit. on Liens; Story on Ag. ch. 14,
§351, et seq: Hov. Fr. 35.
11. Lien of mechanics and material men. By virtue of express statutes in
several of the states, mechanics and material men, or persons who furnish
materials for the erection of houses or other buildings, are entitled to a lien
or preference in the payment of debts out of the houses and buildings so
erected, and to the land, to a greater or lessor extent, on which they are
erected. A considerable similarity exists in the laws of the different states
which have legislated on this subject.
12. The lien generally attaches from the commencement of the work or the
furnishing of materials, and continues for a limited period of time. In some
states, a claim must be filed in the office of the clerk or prothonotary of the
court, or a suit brought within a limited time. On the sale of the building
these liens are to be paid pro rata. In some states no lien is created unless
the work done or the goods furnished amount to a certain specified sum, while
in others there is no limit to the amount. In general, none but the original
contractors can claim under the law; sometimes, however, sub-coutractors have
the same right.
13. The remedy is various; in some states, it is by scire facias on the
lien, in others, it is by petition to the court for an order of sale: in some,
the property is subject to foreclosure, as on a mortgage; in others, by a
common action. See 1 Hill. Ab. ch. 40, p. 354, where will be found an abstract
of the laws of the several states, except the state of Louisiana; for the laws
of that state, see Civ. Code of Louis. art. 2727 to 2748. See generally, 5
Binn. 585; 2 Browne, R. 229, n. 275; 2 Rawle R. 316; Id. 343; 3 Rawle, R. 492;
5 Rawle R. 291; 2 Whart. R. 223; 2 S. & R. 138; 14 S. & R. 32; 12 S.
& R. 301; 3 Watts, R. 140, 141; Id. 301; 5 Watts, R. 487; 14 Pick. P,. 49;
Serg. on Mech. Liens.
LIEU, place. Iu lieu of, instead, in the place of.
LIEUTENANT. This word has now a narrower meaning than it
formerly had; its true meaning is a deputy, a substitute, from the French lieu,
(place or post) and tenant (holder). Among civil officers we have lieutenant
governors, who in certain cases perform the duties of governors; (vide, the
names of the several states,) lieutenants of police, &c. Among military
men, lieutenant general was formerly the title of a commanding general, but now
it signifies the degree above major general. Lieutenant colonel, is the officer
between the colonel and the major. Lieutenant simply signifies the officer next
below a captain. In the navy, a lieutenant is the second officer next in
command to the captain of a ship.
LIFE. The aggregate of the animal functions which resist death.
2. The state of animated beings, while they possess the power of feeling
and motion. It commences in contemplation of law generally as soon as the
infant is able to stir in the mother's womb; 1 Bl. Com. 129; 3 Inst. 50; Wood's
Inst. 11; and ceases at death. Lawyers and legislators are not, however, the
best physiologists, and it may be justly suspected that in fact life commences
before the mother can perceive any motion of the feotus. 1 Beck's Med. Jur.
3. For many purposes, however, life is considered as begun from the
moment of conception in ventre sa mere. Vide Foetus. But in order to acquire
and transfer civil rights the child must be born alive. Whether a child is born
alive, is to be ascertained from certain signs which are always attendant upon
life. The fact of the child's crying is the most certain. There may be a
certain motion in a new born infant which may last even for hours, and yet
there may not be complete life. It seems that in order to commence life the
child must be born with the ability to breathe, and must actually have
breathed. 1 Briand, MÇd. LÇg. 1ere partie, c. 6, art. 1.
4. Life is presumed to continue at least till one hundred years. 9
Mart. Lo. R. 257 See Death; Survivorship.
5. Life is considered by the law of the utmost importance, and its most
anxious care is to protect it. 1 Bouv. Inst. n. 202-3.
LIFE ANNUITY. An annual income to be paid during the continuance
of a particular life.
LIFE-ASSURANCE. An insurance of a life, upon the payment of a
premium; this may be for the whole life, or for a limited time. On the death of
the person whose life has been insured, during the time for which it is
insured, the insurer is bound to pay to the insured. the money agreed upon. See
1 Bouv. Inst. n. 1231.
LIFE-ESTATE. Vide Estate for life, and 3 Saund. 338, h. note; 2
Kent Com. 285; 4 Kent, Com. 23.; 1 Hov. Suppl. to Ves. jr. 371, 381; 2 Id. 45,
249, 330, 340, 398, 467; 8 Com. Dig. 714.
LIFE-RENT, Scotch law. A right to use and enjoy a thing during
life, the substance of it being preserved. A life-rent cannot, therefore, be
constituted upon things which perish in the use; and though it may upon
subjects which gradually wear out by time, as household furniture, &c., yet
it is generally applied to heritable subjects. Life-rents are divided into
conventional and legal.
2. - 1. The conventional are either simple or by reservation. A simple
life- rent, or by a separate constitution, is that which is granted by the
proprietor in favor of another. A life-rent by reservation is that which a
proprietor reserves to himself, in the same writing by which he conveys the fee
3. - 2. Life-rents, by law, are the terce and the courtesy. See Terce;
LIGAN or LAGAN. Goods cast into the sea tied to a buoy, so that
they may be found again by the owners, are so denominated. When goods are cast
into the sea in storms or shipwrecks, and remain there without coming to land,
they are distinguished by the barbarous names of jetsam, (q. v.) flotsam, (q.
v.) and ligan. 5 Rep. 108; Harg. Tr. 48; 1 Bl. Com. 292.
LIGEANCE. The true and faithful obedience of a subject to his
sovereign, of a citizen to his government. It signifies also the territory of a
soverqign. See Allegiance.
LIGHTERMAN. The owner or manager of a lighter. A lighterman is
considered as a common Carrier. See Lighters.
LIGHTERS, commerce. Small vessels employed in loading and
unloading larger vessels.
2. The owners of lighters are liable, like other common carriers for
hire; it is a term of the contract on the part of the carrier or lighterman,
implied by law, that his vessel is tight and fit for the purpose or employments
for which he offers and holds it forth to the public; it is the immmediate
foundation and substratum of the contract that it is so: the law presumes a
promise to that effect on the part of the carrier without actual proof, and
every principle of sound policy and public convenience requires it should be
so. 5 East, 428; Abbott on Sh. 225; 1 Marsh. on Ins. 254; Park on Ins. 23;
Wesk. on Ins. 328.
LIGHTS. Those openings in a wall which are made rather for the
admission of light, than to look out of. 6 Moore, C. B. 47; 9 Bingh. R. 305; 1
Lev. 122; Civ. Code of Lo. art. 711. See Ancient Lights; Windows.
LIMBS. Those members of a man which may be useful to him in
flight, and the unlawful deprivation of which by another amounts to a mayhem at
common law. 1 Bl. Com. 130. If a man, se defendendo, commit homicide, he will
be excused; and if he enter into an apparent contract, under a well-grounded
apprehension of losing his life or limbs, he may afterwards avoid it. 1 Bl.
LIMITATION, estates. When an estate is so expressly confined and
limited by the words of its creation, that it cannot endure for a longer time
than till the contingency shall happen, upon which the estate is to fail, this
is denom-inated a limitation; as, when land is granted to a man while he
continues unmarried, or until the rents and profits shall have made a certain
sum, and the like; in these cases the estate is limited, that is, it does not
go beyond the happening of the contingency. 2 Bl. Com. 155; 10 Co. 41; Bac. Ab.
Conditions, H; Co. Litt. 236 b; 4 Kent. Com. 121; Tho. Co. Litt. Index, h. t.;
10 Vin. Ab. 218; 1 Vern. 483, n. 4; Ves. Jr. 718.
2. There is a difference between a limitation and a condition. When a
thing is given until an event shall arrive, this is called a limitation; but
when it is given generally, and the gift is to be defeated upon the happening
of an uncertain event, then the gift is conditional. For example, when a man
gives a legacy to his wife, while, or as long as, she shall remain his widow,
or until she shall marry, the estate is given to her only for the time of her
widowhood and, on her marriage, her right to it determines. Bac. Ab.
Conditions, H. But if, instead of giving the legacy to the wife, as above
mentioned, the gift had been to her generally with a proviso, or on condition
that she should not marry, or that if she married she should forfeit her
legacy, this would be a condition, and such condition being in restraint of
marriage, would be void.
LIMITATION, remedies. A bar to the alleged right of a plaintiff
to recover in an action, caused by the lapse of a certain time appointed by
law; or it is the end of the time appointed by law, during which a party may
sue for and recover a right. It is a maxim of the common law, that a right
never dies and, as far as contracts were concerned, there was no time of
limitation to actions on such contracts. The only limit there was to the
recovery in cases of torts was the death of one of the parties; for it was a
maxim actio personalis moritur cum persona. This unrestrained power of
commencing actions at any period, however remote from the original cause of
action, was found to encourage fraud aud injustice; to prevent which, to assure
the titles to land, to quiet the possession of the owner, and to prevent
litigation, statutes of limitation were passed. This was effected by the
statutes of 32 Hen. VIII. c. 2, and 21 Jac, I. c. 16. These statutes were
adopted and practiced upon in this country, in several of the states, though
they are now in many of the states in most respects superseded by the
enactments of other acts of limitation.
2. Before proceeding to notice the enactments on this subject in the
several states, it is proper to call the attention of the reader to the rights
of the government to sue untrammeled by any statue of limitations, unless
expressly restricted, or by necessary implication included. It has therefore
been decided that the general words of a statute ought not to include the
government, or affect its rights, unless the construction be clear and
indisputable upon the text of the act; 2 Mason's R. 314; for no laches can be
imputed to the government. 4 Mass. R. 528; 2 Overt. R. 352; 1 Const. Rep. 125;
4 Henn. & M. 53; 3 Serg. & Rawle, 291; 1 Bay's R. 26. The acts of
limitation passed by the several states are not binding upon the government of
the United States, in a suit in the courts of the United States. 2 Mason's R.
3. For the following abstract of the laws of the United States and of
the several states, regulating the limitations of actions, the author has been
much assisted by the appendix of Mr. Angell's excellent treatise on the
Limitation of Actions.
4. United States. 1. On contracts. All suits on marshals' bonds shall be
commenced and prosecuted within six years after the right of action shall have
accrued, and not after; saving the rights of infants, femes covert, and persons
non compos mentis, so that they may sue within three years after disability
removed. Act of April 10, 1806, s. 1.
5. - 2. On legal proceedings. Writs of error must be brought within five
years after judgment or decree complained of; saving in cases of disability the
right to bring them five years after its removal. Act of September 24, 1789, s.
22. And the like limitation is applied to bills of review. 10 Wheat. 146.
6. - 3. Penalties. Prosecutions under the revenue laws, must be
commenced within three years. Act of March 2, 1799, Act of March 1, 1823. Suits
for penalties respecting copyrights, within two years. Act of April 29, 1802,
s. 3. Suits in violation of the provisions of the act of 1818, respecting the
slave trade, must be commenced within five years. Act of April 20, 1818, s.
7. - 4. Crimes. Offences punishable by a court martial must be proceeded
against within two years unless the person by reason of having absented
himself, or some other manifest impediment, has not been amenable to justice
within that period. The act of April 30, 1790, s. 31, limits the prosecution
and trial of treason or other capital offence, wilful murder or forgery
excepted, to three years next after their commission; and for offences not
capital to two years, unless the party has fled from justice. 2 Cranch,
8. Alabama. 1. As to real estate. 1. After twenty years after title
accrued, no entry can be made into lands. 2. No action for the recovery of land
can be maintained, if commenced after thirty vears after title accrued. 3.
Actions on claims by virtue of any title which has not been confirmed by either
of the boards of commissioners of the United States, for adjusting land claims
&c., and not recognized or confirmed by any act of congress, are barred
after three years; there is a proviso as to lands formerly in West Florida, and
in favor of persons under disabilities.
9. - 2. As to personal actions. 1. Actions of trespass, quare clausum
fregit; trespass; detinue; trover; replevin for taking away of goods and
chattels; of debt, founded on any lending or contract, without specialty, or
for arrearages of rent on a parol demise of account and upon the case, (except
actions for slander, and such as concern the trade of merchandise between
merchant and merchant, their factors or agents, are to be commenced within six
years next after the cause of action accrued, and not after.
10. - 2. Actions of trespass for assaults, menace, battery, wounding and
imprisonment, or any of them, are limited to two years.
11. - 3. Actions for words to one year.
12. - 4. Actions of debt or covenant for rent or arrearages of rent,
founded upon any lease under seal, or upon any single or penal bill for the
payment of money only, or on any obligation with condition for the payment of
money only, or upon any award under the hands and seals of arbitrators, are to
be commenced within sixteen years after the cause of action accrued, and not
after; but if any payment has been made on the same at any time, then sixteen
years from the time of such payment.
13. - 5. Judgments cannot be revived after twenty years.
14. - 6. A new action must be brought within one year when the former
has been reversed on error, or the judgment has been arrested.
15. - 7. Actions on book accounts must be commenced within three years,
except in the case of trade or merchandise between merchant and merchant, their
factors or agents.
16. - 8. Writs of error must be sued out within three years after final
17. Arkansas. 1. As to lands. No action for the recovery of any lands or
tenements, or for the recovery of the possession thereof, sball be maintained,
unless it appears that the plaintiff, his ancestor, predecessor, or grantor,
was seised or possessed of the promises in question within ten years before the
commencement of such suit. Act of March 3, 1838, s. 1. Rev. Stat. 527. No entry
upon lands or tenements shall be deemed sufficient or valid as a claim, unless
an action be commenced thereon within one year after such entry, and within ten
years from the time when the right to make such entry descended and accrued.
Id. s. 2. The right of any person to the possession of any lands or tenements,
shall not be impaired or affected by a descent cast in consequence of the death
of any person in possession of such estate. Id. s. 3.
18. The savings are as follows: If any person entitled to commence any
action in the preceding sections specified, or to make an entry, be, at the
time such title shall first descend or accrue; first, within the age of
twenty-one years; second, insane; third, beyond the limits of the state; or,
fourth, a married woman; the time during which such disabilities shall
continue, shall not be deemed any portion of the time in this act limited for
the commencement of such suit, or the making of such entry; but such person may
bring such action, or make such entry, after the time so limited, and within
five years after such disability is removed, but not after that period. Id. S.
4. If any person entitled to commence any such action, or make such entry, die
during the continuance of such disability specified in the preceding section,
and no determination or judgment be had of the title, right, or action to him
accrued, his heirs may commence such action, or make such entry, after the time
in this act limited for that purpose, and within five years after his death,
and not after that period. Id. s. 5, Rev. Stat. 527.
19. - 2. As to personal actions. 1. The following actions shall be
commenced within three years after the cause of action shall accrue: first, all
actions founded upon any contract, obligation, or liability, (not under seal,)
excepting such as are brought upon the judgment or decree of some court of
record of the United States, of this, or some other state; second, all actions
upon judgments rendered in any court not being a court of record; third, all
actions for arrearages of rent, (not reserved by some instrument under seal);
fourth, all actions of account, assumpsit, or on the case, founded on any
contract or liability, expressed or implied; fifth, all actions of trespass on
lands, or for libels; sixth, all actions for taking or injuring any goods or,
chattels. Id. s. 6, Rev. Stat. 527, 528.
20. - 2. The following actions shall be commenced within one year after
the cause of action shall accrue, and not after: first, all special actions on
the case for criminal conversation, assault and battery and false imprisonment;
second, all actions for words spoken, slandering the character of another;
third, all words spoken whereby special damages are sustained. Id. s. 7.
21. - 3. All actions against sheriffs or other officers, for the escape
of any person imprisoned on civil process, shall be commenced within one year
from the time of such escape, and not after. Id. s. 8.
22. - 4. All actions against sheriffs and coroners, upon any liability
incurred by them, by doing any act in their official capacity, or by the
omission of any official duty, except for escapes, shall be brought within two
years after the cause of action shall have accrued, and not thereafter. Id. s.
23. - 5. All actions upon penal statutes where the penalty or any part
thereof, goes to the state, or any county, or person suing for the same, shall
be commenced within two years after the offence shall have been committed, or
the cause of action shall have accrued. Id. s. 10.
24. - 6. All actions not included in the foregoing provisions, shall be
commenced within five years after the cause of action shall have accrued. Id.
25. - 7. In all actions of debt, account or assumpsit, brought to
recover any balance due upon a mutual, open account current, the cause of
action shall be deemed to have accrued from the time of the last item proved in
such account Id. s. 12.
26. The savings are as follows: 1. If any person entitled to bring any
action in the preceding seven sections mentioned, except in actions against
sheriffs for escapes, and actions of slander, shall, at the time of action
accrued, be either within the age of twenty-one years, or insane, or beyond the
limits of this state, or a married woman, such person shall be at liberty to
bring such action within the time specified in this act, after such disability
is removed. Id. s. 13.
27. - 2. If any person entitled to bring an action in the preceding
provisions of this act specified, die before the expiration of the time limited
for the commencement of such suit, and such cause of action shall survive to
his representatives, his executors or administrators may, after the expiration
of such time, and within one year after such death, commence such suit, but not
after that period. Id. s. 19.
28. - 3. If at any time when any cause of action specified in this act
accrues against any person, he be out of the state, such action may be
commenced within the times herein respectively limited, after the return of
such person into the state; and if, after such cause of action shall have
accrued, such person depart from, and reside out of the state, the time of his
absence shall not be deemed or taken as any part of the time limited for the
commencement of such action. Id. s. 20. If any person, by leaving the county
absconding or concealing himself, or any other improper act of his own, prevent
the commencement of any action in this act specified, such action may be
commenceed within the times respectively limited, after the commencement of
such action shall have ceased to be so prevented. Id. s. 26.
29. - 4. None of the provisions of this act shall apply to suit's
brought to enforced payment on bills, notes, or evidences of debt issued by any
bank, or moneyed corporation. Id. s. 18.
30. Connecticut. 1. As to lands. No person can make an entry into lands
after fifteen years next after his right or title first accrued to the same;
and no such entry is valid unless an action is afterwards commenced thereupon,
and is prosecuted with effect within one year next after the making thereof;
there is a proviso in favor of disabled persons, who may sue within five years
after the disability has been removed.
31. - 2. As to personal actions. 1. In actions on specialties and
promissory notes, not negotiable, the limitation is seventeen years, with a
saving that "persons legally incapable to bring an action on such bond or
writing at the accruing of the right of action, may bring the same within four
years after becoming legally capable."
32. - 2. Actions of account, of debt on book, on simple contract, or
assumpsit, founded on an implied contract, or upon any contract in writing, not
under seal, (except promissory notes not negotiable,) within six years, saving
as above three years.
33. - 3. In trespass on the case, six years, but no savings.
34. - 4. Actions founded upon express contracts not reduced to writing;
upon trespass; or upon the case for word; three years and no savings.
35. - 5. Actions founded on penal statutes one year after the commission
of the offence.
36. - 6. A new suit must be commenced within one year after reversal of
the former, or when it was arrested.
37. Delaware. 1. As to lands. Twenty years of adverse possession of land
is a bar. The general principles of the English law on this subject, have been
adopted in this state.
38. - 2. As to personal actions. All actions of trespass quare clausum
fregit; of detinue; trover and replevin, for taking away goods or chattels;
upon account and upon the case; (other than actions between merchant and
merchant, their factors and servants, relating to merchandise;) upon the case
for words; of debt grounded upon any lending or contract without specially; of
debt for arrearages of rent; and all actions of trespass, assault, battery,
menace, wounding or imprisonment, shall be commenced and sued within three
years next after the cause of such action or suit accrues, and not after.
39. The 2d section of the same act contains a saving, in favor of
persons who, at the time of the cause of action accrued, are within the age of
twenty-one years; femes covert; persons of insane memory, or imprisoned. Such
persons must bring their actions within one year next after the removal of such
disability as aforesaid.
40. In the 3d section of the same act, provision is made, that no person
not keeping a day book, or regular book of accounts, shall be admitted to prove
or require payment of any account of longer standing than one year against the
estate of any person dying within the state, or if it consist of many
particulars, unless every charge therein shall have accrued within three years
next before the death of the deceased, and unless the truth and justice thereof
shall be made to appear by one, sufficient witness; and in case of a regular
book of accounts, unless such account shall have accrued or arisen within three
years before the death of the deceased person.
41. In section 6th, there is a saving of the rights or demands of
infants, femes covert, persons of insane memory, or imprisoned, so their
accounts be proved and their claims prosecuted within one year after the
removal of such disability.
42. By a supplementary act, it is declared, that nothing contained in
this act, shall extend to any intercourse between merchant and merchant,
according to the usual course of mercantile business nor to any demands founded
on mortgages: bonds, bills, promissory notes, or settlements under the hands of
the parties concerned.
43. All actions upon administration, guardian and testamentary bonds,
must be commenced within six years after passing the said bonds; and actions on
sheriff's recognizances, within seven years after the entering into such
recognizances, and not after; saving in all these cases, the rights of infants,
femes covert, persons of insane memory, or imprisoned, of bringing such actions
on administration, guardian or testamentary bonds, within three years after the
removal of the disability, and on sheriff's recognizances within one year after
such disability removed.
44. No appeal can be taken from any interlocutory order, or final
decrees of the chancellor, but within one year next after making and signing
the final decree, unless the person entitled to such appeal be an infant, feme
covert, non compos mentis, or a prisoner.
45. No writ of error, can be brought upon any judgment, but within five
years after the confessing, entering or rendering thereof, unless the person
entitled to such writ, be an infant, feme covert, non compos mentis, or a
prisoner, and then within five years exclusive of the time of such disabi-
lity. Constitution, article 5, s. 13.
46. There is no saving in favor of foreigners or citizens of other
states. The courts of this state have adopted the general principles of the
47. Florida. 1. As to lands. Writs of formedon in descender, remainder,
or reverter, must be brought within twenty years. Act of Nov. 10, 1828, sec. 1,
Duval; 154. Infants, femes covert, persons non compos mentis, or prisoners,
may. sue within ten years after disability is removed. Id. s. 2. A writ of
right on seisin of ancestor or predecessor within fifty years; other possessory
action on seisin of ancestor or predecessor, within forty years; real action on
plaintiff's possession or seisin within thirty years. Id. sec. 3.
48. - 2. As to personal actions. All actions upon the case, other than
for slander, actions for accounts, for trespass, debt, detinue, and replevin
for goods and chattels, and actions of trespass quare clausum fregit, within
five years. Actions of trespass, assault, battery, wounding and imprisonment,
or any of them, within three years; and actions for words within one year. Id.
s. 4. There is a saving in favor of infants, femes covert, persons non compos
mentis, imprisoned, or beyond seas, or out of the country, who may bring suit
within the same time after the disability has been removed. All actions on book
accounts shall be brought within two years.
49. - 3. As to crimes. All offences not punishable with death, shall be
prosecuted within two years. Act of Feb. 10, 1882, s. 78. All actions, suits
and presentments upon penal acts of the general assembly, shall be prosecuted
within one year. Act of Nov. 19, 1828, s. 18.
50. Georgia. 1. As to lands. Seven years' adverse possession of lands is
a bar, with a saving in favor of infants, femes covert, persons non compos
mentis, imprisoned or beyond seas.
51. - 2. As to personal actions. Twenty years is a bar in personal
actions, on bonds under seal; other obligations not under seal, six years;
trespass quare clausum fregit, three years trespass, assault and battery, two
years; slander and qui tam actions, six months. There are savings in favor of
infants, femes covert, persons non composmentis, imprisoned and beyond
52. No other savings in favor of citizens of other states or
53. As to crimes. In cases of murder there is no limitation. In all
other criminal cases where the punishment is death or perpetual imprisonment,
seven years; other felonies, four years; cases punishable by fine and
imprisonment, two years. Prince's Dig. 573-579. Acts of 1767, 1813, and 1833.
See 1 Laws of Geo. 33; 2 Id. 344; 3 Id. 30; Pamphlet Laws, 1833, p. 143.
54. Illinois. 1. As to lands. No statute on this subject.
55. - 2. As to personal actions. All actions of trespass quare clausum
fregit; all actions of trespass, detinue, actions sur trover, and replevin for
taking away goods and chattels, all actions of account, and upon the case,
other than such accounts as concern the trade of merchandise between merchant
and merchant, their factors and servants; all actions of debt, grounded upon
any lending or contract without specialty; all actions of debt for arrearages
of rent; all actions of assault, menace, battery, wounding, and imprisonment,
or any of them, which shall be sued or brought, shall be commenced within the
following times, and not after actions upon the case, other than for slander;
actions of account, and actions of trespass, debt, detinue and replevin for
goods and chattels, and actions of trespass quare clausum fregit, within five
years next after the cause of action or suit, and not after; and the actions of
trespass for assault, battery, wounding, imprisonment, or any of them, within
three years next after cause of action or suit, and not after; and actions for
slander, within one year next after the words spoken. There are no savings, by
the statute, in favor of citizens of other states, or foreigners.
56. Indiana. 1. As to lands. "No action of ejectment shall be commenced
for the recovery of lands or tenements against any person or persons who may
have been in the quiet and peaceable possession of the same under an adverse
title for twenty years, either in his own right, or the right of any other
person or persons under whom he claims; and any action of ejectment commenced
against the provisions of this act shall be dismissed at the cost of the party
commencing the same. Provided, however, that this act shall not be so construed
as to affect any person who may be a feme covert, non compos mentis, a minor,
or any person beyond the seas, within five years after such disability is
removed." Rev. Code, c. 36, see. 3, January 13, 1831.
57. - 2. As to personal actions. "All actions of debt on simple
contract, and for rent in arrear, action on the case, (other than slander,)
actions of account, trespass quare clausum fregit, detinue, and replevin for
goods and chattels, shall be commenced within five years after the cause of
action accrued, and not after. All actions of trespass, for assault and
battery, and for wounding and imprisonment, shall be commenced within three
years, and not after." Rev. Code, 6. 81, sec. 12, January 29, 1831.
58. - 3. Crimes. "All criminal prosecutions for offences, the affixed
penalty of which is three dollars, or less, shall be commenced within thirty
days," &c. "All prosecutions for offences, except those the fixed penalties
of which do not exceed three dollars, and except treason, murder, arson,
burglary, man stealing, horse stealing, and forgery, shall be instituted within
two years, &c." Revised Code, c. 26, Feb. 10, 1831.
59. - 4. Penal actions. "All actions upon any act of assembly, now or
hereafter to be made, when the right is limited to the party aggrieved, shall
be commenced within two years, &c., and all actions of slander shall be
commenced within one year, &c., saving the right of infants, femes covert,
persons non compos mentis, or without the jurisdiction of the United States,
until one year after their several disabilities are removed." Sec. 12.
60. - 5. Savings. Provided, that no statute of limitation shall ever be
pleaded as a bar, or operate as such on an instrument or contract in writing,
whether the same be sealed or unsealed, nor to running accounts between
merchant and merchant. Rev. Code, eh. 81, s. 12.
61. And provided further, that on all contracts made in this state, if
the defendant shall be without the same when the cause of action accrued, said
action shall not be barred until the times above limited shall have expired,
after the defendant shall have come within the jurisdiction thereof, and on all
contracts made without the state, if the defendant shall have left the state or
territory when the same was made, and come within the jurisdiction of this
state before the cause of action accrued thereon, the plaintiff shall not be
barred his right of action, until the time above limited after the said demand
shall have been brought within the jurisdiction of this state. Rev. Code, ch.
81, s. 12.
62. Kentucky. 1. As to lands. The act of limitation takes effect in a
writ of right or other possessory action, in thirty years from the seisin of
the demandant or his ancestors. In ejectment, in twenty years. See 1 Litt. 380,
and Sessions Acts 1838-9, page 330. In the action of ejectment, there is a
saving in favor of infants; persons insane or imprisoned; femes covert, to whom
lands have descended during the coverture, when their cause of action ac-
crued. These persons may sue within three years after the removal of the
disability. 5 Litt. 90; Id. 97. There is no saving, in favor of non-residents
or absent persons. 5 Litt. 90; 4 Bibb, 561. But when the possession has been
held for seven years under a connected title in law or equity deducible of
record from the commonwealth, claiming title under an adverse entry, survey or
patent, no writ of ejectment or other possessory action can be commenced. In
this case there is a saying in favor of infants, &c., as above, and of
persons out of the United States, in the service of the United States, or of
this state, who may bring actions seven years after the removal of the
disability. 4 Litt. 55.
63. - 2. As to personal actions. The act of limitation operates on
simple contracts (except store accounts) in five years. Torts to the person,
three years. Torts, except torts to the person, five years. Slander, one year.
Store accounts, one year from the delivery of each article; except in cases of
the death of the creditor or debtor before the expiration of one year, when the
further time of one year is allowed after such death.
64. Savings in such actions of simple contracts, tort, slander, and upon
store accountt, in favor of infants, femes covert, persons imprisoned or insane
at the time such action accrued, who have the full time aforesaid after the
removal of their respective disabilities to commence their suit. But if the
defendant, in any of said personal actions, absconds, or conceals himself by
removal out of the country or county where he resides when the cause of action
accrues, or by any other indirect ways or means defeats or obstructs the
bringing of such suit or action, such defendant shall not be permitted to plead
the act of limitations. 1 Litt. 380. There is no saving in favor of
non-residents or persons absent. Act of 1823, s. 3, Session Acts, p. 287.
65. Louisiana. The Civil Code, book 3, title 23, chapter 1, section 3,
provides as follows:
66. - §I. Of the prescription of one year. Art. 3499. The action of
justices of the peace and notaries, and persons performing their duties, as
well as constables, for the fees and emoluments which are due to them in their
official capacity that of muters and instructors in the arts and sciences, for
lessons which they give by the month; that of innkeepers and such others, on
account of lodging and board which they furnish; that of retailers of
provisions and liquors; that of workmen, laborers, and servants, for the
payment of their wages; that for the payment of the freight of ships and other
vessels, the wages of the officers, sailors, and others of the crew; that for
the supply of wood and other things necessary for the construction, equipment,
and provisioning of ships and other vessels, are prescribed by one year.
67. - 3500. In the cases mentioned in the preceding article, the
prescription takes place, although there may have been a regular coutinuauce of
supplies, or of labor, or other service. It only ceases, from the time when
there has been an account acknowledged, a note or bond, or a suit instituted.
However, with respect to the wages of officers, sailors, and others of the crew
of a ship, this prescription runs only from the day when the voyage is
68. - 3501. The actions for injurious words, whether verbal or written,
and that for damages caused by slaves or animals, or resulting from offences or
quasi offences; that which a possessor may institute, to have himself
main-tained or restored to his possession, when he has been disturbed or
evicted; that for the delivery of merchandise or other effects, shipped on
board any kind of vessels; that for damage sustained by merchandise on board
ships, or which may have happened by ships running foul of each other, are
prescribed by one year.
69.- 3502. The prescription mentioned in the preceding article, runs,
with respect to the merchandise injured or not delivered from the day of the
arrival of the vessel, or that on which she ought to have arrived; and in the
other cases, from that on which the injurious words, disturbance, or damage
70. - §II. Of the prescription of three years. Art. 3503. The
action for arrearages of rent charge, annuities and alimony, or of the hire of
movables or immovables; that for the payment of money lent; for the salaries of
overseers, clerks, secretaries, and of teachers of the sciences, for lessons by
the year or quarter; that of physicians, surgeons, and apothecaries, for
visits, opera- tions, and medicines: that of parish judges sheriffs, clerks,
and attorneys, for their fees and emoluments, are prescribed by three years,
unless there be an account acknowledged, a note or bond given, or an action
commenced before that time.
71. - 3504. The action of parties against their attorneys for the return
of papers delivered to them for the interest of their suits, is prescribed also
by three years, reckoning from the day when judgment was rendered in the suit,
or from the revocation of the powers of the attorneys.
72. - §III. Of the prescription of five years. Art. 3505. Actions
on bills of exchange, notes payable to order or bearer, except bank notes,
those on all effects negotiable or transferable by endorsement or delivery, are
prescribed by five years, reckoning from the day when these engagements were
73. - 3506. The prescription mentioned in the preceding article, and
those described above in the paragraphs, I. and II., run against minors and
interdicted persons, reserving, however, to them their recourse against their
tutors or curators. They run also against persons residing out of the
74. - 3507. The action of nullity or rescission of contracts,
testaments, or other acts; that for the reduction of excessive donations; that
for the rescission of partitions and guaranty of the portions, are prescribed
by five years when the person entitled to exercise them is in the state, and
ten years if he be out of it. This prescription only commences against minors
after their majority.
75. - §IV. Of the prescription of ten years. Art. 3508. In general,
all personal actions, except those above enumerated, are prescribed by ten
years, if the creditor be present, and by twenty years, if he be absent.
76. - 3509. The action against an undertaker or architect, for defect of
construction of buildings of brick or stone, is prescribed by ten years.
77. - 3610. If a master suffer a slave to enjoy his liberty for ten
years, during his residence in the state, or for twenty years while out of it,
he shall lose all right of action to recover possession of the slave, unless
the slave be a runaway or fugitive.
78. - 3511. The rights of usufruct, use and habitation, and services,
are lost, by non-use for ten years, if the person having a right to enjoy them,
be in the state, and by twenty years, if he be absent.
79. - §V. Of the prescription of thirty years. Art. 3512. All
actions for immovable property, or for an entire estate as a succession, are
prescribed by thirty years, whether the parties be present, or absent from the
80. - 3513. Actions for the revindication of slaves are prescribed by
fifeen years, in the same manner as in the preceding article.
81. - §VI. Of the rules relative to the prescription operating a
discharge from debts. Art. 3514. In cases of prescription releasing debts, one
may prescribe against a title created by himself, that is, against an
obligation which be has contracted.
82. - 3515. Good faith not being required on the part of the person
pleading this prescription, the creditor cannot compel him or his heirs to
swear whether the debt has or has not been paid, but can only blame himself for
not having taken his measures within the time directed by law; and it may be
that the debtor may not be able to take any positive oath on the subject.
83. - 3516. The prescription releasing debts is interrupted by all such
causes as interrupt the prescription by which property is acquired, and which
have been explained in the first section of this chapter. It is also
interrupted by the causes explained in the following articles.
84. - 3517. A citation served upon one joint debtor or his
acknowledgment of the debt, interrupts the prescription with regard to all the
others and, even their heirs. A citation served on one of the heirs of a joint
debtor, or the acknowledgment of such heir, does not interrupt the prescription
with regard to the other heirs, even if the debt was by mortgage, if the
obligation be not indivisible. This citation or acknowledgment does not
interrupt the prescription, with regard to the other co-debtors, except for
that portion for which such heir is bound. To interrupt this prescription for
the whole, with regard to the other co-debtors, it is necessary, either that
the citations be served on all, or the acknowledgment be made by all the
85. - 3518. A citation served on the principal debtor, or his
acknowledgment, interrupts the prescription on the part of the surety.
86. - 3519. Prescription does not run against minors and persons under
interdiction, except in the cases specified above.
87. - 3520. Prescription runs against the wife, even although she be not
separated of property by marriage contract or by authority of law, for all such
credits as she brought in marriage to her husband, or for whatever has been
promised to her in dower; but the husband continues responsible to her.
88. Maine. 1. As to real actions. The writ of right is limited to thirty
years writ of ancestral seisin, twenty-five years writ of entry on party's own
seisin, twenty years. Stat. of Maine, eh. 62, §1, 2, 3. But by the revised
statutes, all real actions are limited to twenty years, from the time the right
accrues. They took effect on the first day of April, 1843. Rev. Stat. T. 10,
ch. 140, §1. And writs of right and of formedon are abolished after that
time. Rev. Stat. ch. 145, §1.
89. - 2. As to personal actions. When founded on simple contract, they
are limited after six years; Rev. Stat. T. 10, ch. 146, §1; on
specialties, twenty years. Id. §11. Personal actions founded on torts are
limited to six years, except trespass for assault and battery, false
imprisonment, slanderous words and libels, which are limited to two years. Id.
90. - 3. As to penal actions. When brought by individuals having an
interest in the penalty or forfeiture, they are limited to one year; Rev. Stat.
T. 10, c. 146, §15; when prosecuted by the state, two years. Id.
91. - 4. As to crimes. Prosecutions for crimes must be commenced within
six years when the party charged has publicly resided within the state, except
in cases of treason, murder, arson, and manslaughter. Rev. Stat. T. 12, c. 167,
92. Maryland. 1. As to lands. The statute of 21 Jac. I. c. 16, is in
force in this state.
93. - 2. As to personal actions. By the Act of Assembly, 1715, c. 23,
actions of account; upon the case; or simple contract; or book debt or account;
and of debt not of specialty; detinue and replevin for taking away goods and
chattels; and trespass quare clausum fregit; must be brought within three years
ensuing the cause of action, and not after; other actions of trespass, of
assault, battery, wounding and imprisonment, within one year from the time of
the cause of action accruing; from these provisions are excepted, however, such
accounts as concern the trade of merchandise between merchant and merchant,
their factors and servants which are not resident within this [province] state.
This statute also enacts, that no bill, bond, judgment, or recognizance,
statute merchant or of the staple, or other specialty whatsoever, (except such
as shall be taken in the name or for the use of our sovereign the king,
&c.) shall be "good and pleadable, or admitted in evidence" against any
person of this [province] state, after the principal debtor and creditor have
both been dead twelve years, or the debt or thing in action above twelve years
94. Persons laboring under the impediments of infancy, coverture,
insanity or imprisonment, are not barred until five years after the disability
has been removed. And when a personal action abates by the death of the
defendant, the plaintiff may at any time renew his suit, provided it be
commenced without delay after letters testamentary have been granted.
95. Defendants, when absent from the state at the time the cause of
action accrued, cannot compute the time of their absence in order to bar the
plaintiff, but the latter may prosecute the same after the presence in the
state of the persons liable thereto, within the time or times limited by the
acts of limitation in such actions.
96. Massachusetts. By the Revised Statutes, ch. 120, it is provided as
follows, to wit:
97. - §1. The following actions shall be commenced within six years
next after the cause of action shall accrue, and not afterwards
98. First, all actions of debt, founded upon any contract, or liability
not under seal, except such as are brought upon the judgment or decree of some
court of record of the United States, or of this, or some other of the United
99. Secondly, all actions upon judgments rendered in any court, not
being a court of record:
100. Thirdly, all actions for arrears of rent:
101. Fourthly, all actions of assumpsit, or upon the case, founded on
any contract or liability, express or implied:
102. Fifthly, all actions for waste and for trespass upon land:
103. Sixthly, all actions of replevin and all other actions for taking,
detaining or injuring goods or chattels:
104. Seventhly, all other actions on the case, except actions for
slanderous words and for libels.
105. - §2. All actions for assault and battery, and for false
imprisonment, and all actions for slanderous words and for libels, shall be
commenced within two years next after the cause of action shall accrue, and not
106. - §3. All actions against sheriffs, for the misconduct or
negligence of their deputies, shall be commenced within four years next after
the cause of action shall accrue, and not afterwards.
107. - §4. None of the foregoing provisions shall apply to any
action brought upon a promissory note, which is signed in the presence of an
attesting witness, provided the action be brought by the original payee, or by
his executor or administrator, nor to an action brought upon any bills, notes,
or other evidences of debt, issued by any bank.
108. - §5. In all actions of debt or assumpsit brought to recover
the bal-ance due upon a mutual and open account current, the cause of action
shall be deemed to have accrued, at the time of the last item proved in such
109. - §6. If any person entitled to bring any of the actions
before mentioned in this chapter shall, at the time when the cause of action
accrues, be within the age of tweuty-one years, or a married woman, insane,
imprisoned, or absent from the United States, such person may bring the said
actions within the times in this chapter respectively limited, after the
disability shall be removed, or within six years after the disability mentioned
in the preceding section.
110. - §7. All personal actions on any contract, not limited by the
foregoing sections, or by any other law of this commonwealth, shall be brought
within twenty years after the accruing of the cause of action.
lll. - §8. When any person shall be disabled to prosecute an action
in the courts of this commonwealth, by reason of his being an alien subject or
citizen of any country at war with the United States, the time of the
continuance of such war shall not be deemed any part of the respective periods,
herein Iimited for the commencement of any of the actions before mentioned.
112. - §9. If, at the time when any cause of action, mentioned in
this chapter, shall accrue against any person, he shall be out of the state,
the action may be commenced within the time herein limited therefor, after such
person shall come into the state and if after any cause of action shall have
accrued, the person against whom it has accrued shall be absent from and reside
out of the state, the time of his absence shall not be taken as any part of the
time limited for the commencement of the action.
113. - §10. If any person, entitled to bring any of the actions,
before mentioned in this chapter, or liable to any such action, shall die
before the expiration of the time herein limited therefor, or within thirty
days after the expiration of the said time, and if the cause of action does by
law survive, the action may be commenced by or against the executor or
administrator of the deceased person, as the case may be, at anytime within two
years after the grant of letters testamentary or of administration, and not
afterwards, if barred by the provisions of this chapter.
114. - §11. If, in any action duly commenced within the time in
this chapter limited and allowed therefor, the writ shall fail of a sufficient
service or return, by any unavoidable accident, or by any default or neglect of
the officer to whom it is committed, or if the writ shall be abated, or the
action otherwise avoided or defeated, by the death of any party thereto, or for
any matter of form, or if after a verdict for the plaintiff, the judgment shall
be arrested, or if a judgment for the plaintiff shall be reversed on a writ of
error, the plaintiff may commnence a new action for the same cause, at any time
within one year after the abatement or other determination of the original
suit, or after the reversal of the judgment therein; and if the cause of action
does by law survive, his executor or administrator may, in case of his death,
commence such new action within the said one year.
115. - §12. If any person, who is liable to any of the actions
mentioned in this chapter, shall fraudulently conceal the cause of such action
from the knowledge of the person entitled thereto, the action may be commenced,
at any time within six years after the person who is entitled to bring the
same, shall discover that he has such cause of action, and not afterwards.
116. Michigan. 1. As to lands. Sec. 1. In all real actions the statute
of limitation takes effect as follows, to wit: In all actions for the recovery
of land the statute runs after twenty years from the time the cause of action
accrued, or within twenty-five years after the plaintiff or those from, by or
under whom he claims, shall have been seised or possessed of the premises,
except as specified below.
117. - Sec. 2. If the right or title accrued to an ancestor or
predecessor of the person who brings the action or makes the entry upon the
land, or to any other person from, by or under whom he claims, the said
twenty-five years shall be computed from the time when the right or title so
first accrued to such ancestor, predecessor or other person.
118. - Sec. 3. The right to bring an action for the recovery of land or
to make an entry thereon shall be deemed first to accrue when any person is
disseised, at the time of such disseisin.
119. When any person claims as heir or devisee of one who died seised,
his right shall be deemed to have accrued at the time of such death; unless
there is a tenancy by the curtesy or other estate, intervening after the death
of such ancestor or devisor, in which case the right shall be deemed to accrue
when such intermediate estate shall expire, or when it would have expired by
its own limitation.
120. When there is such an intermediate estate, and in all other cases
when the party claims by force of any remainder or reversion, his right, so far
as it is affected by the limitation herein prescribed, shall be deemed to
accrue when the intermediate or precedent estate would have expired by its own
limi-tation, notwithstanding any forfeiture thereof for which he might have
entered at an earlier time; but if the person claims by reason of any
forfeiture or breach of the condition, the statute runs from the time when the
forfeiture was incurred or the condition was broken.
121. In all other cases not otherwise provided for, the right shall be
deemed to accrue when the claimant or the person under whom he claims first
became entitled to the possession of the premises, under the title upon which
the entry or action is founded.
122. - Sec. 4. If any minister or other sole corporation shall be
disseised, any of his successors may enter upon the premises, or bring an
action for the recovery thereof at any time within five years after death,
resignation or removal of the person so disseised, notwithstanding the
twenty-five years after such disseisin shall have expired.
123. - Sec. 5. If the person first entitled to make such entry or bring
such action shall die within the age of twenty-one years, or be a married
woman, insane, imprisoned in the state prison, or absent from the United
States, and no determination or judgment shall have been had of or upon the
title, right or action which accrued to him, the entry may be made or the
action brought by his heirs, or any other person claiming from, by or under
him, at any time within ten years after his death, notwithstanding the said
twenty-five years shall have expired.
124.- Sec. 6. No person shall be deemed to have been in possession of
any lands within the meaning of the foregoing provisions merely by reason of
having made an entry thereon, unless he shall have continued open and peaceable
possession of the premises for the space of one year next after such entry, or
unless an action shall be commenced upon such entry and seisin within one year
after he shall be ousted or dispossessed of the premises. R. S., p. 573 and
125. No actions for the recovery of an estate sold by an executor or
administrator shall be maintained by the heir or other person claiming under
the deceased testator or intestate, unless it be commenced within five years
next after the sale. And no actions for any estate sold by a guardian shall be
maintained by the ward or any other person claiming under him, unless it be
commenced within five years after the termination of the guardianship. Except
that persons out of the state and minors and others under any legal disability
to sue at the time when the right of action shall first accrue, may commence
such action at any time within five years after the disability is removed, or
after their return to the state. R. S., p. 317, see. 35.
126. - 2. As to personal actions. The following actions shall be
commenced within six years next after the cause of action shall accrue and not
afterwards, to wit:
127. - 1st. All actions of debt founded upon any contract or liability
not under seal, except such as are brought upon the judgment or decree of some
court of record, or of general equity jurisdiction of the United States, or of
this or some other of the United States.
128. - 2d. All actions upon judgments rendered in any court other than
those above excepted.
129. - 3rd. All actions for arrears of rent.
130. - 4th. All actions of assumpsit or upon the case founded on any
contract or liability express or implied.
131. - 6th. All actions for waste.
132. - 6th. All actions of replevin and trover and all other actions for
taking, detaining, or injuring goods and chattels.
133. - 7th. All other actions on the case, except actions for slanderous
words or for libels.
134. - Sec. 2. All actions for trespass upon land or for assault and
battery, and for false imprisonment, and all actions for slanderous words and
for libels, shall be commenced within two years next after the cause of action
shall, accrue and ]lot afterwards.
135. - Sec. 3. All actions against sheriffs for the misconduct or
neglect of their deputies shall be commenced within four years next after the
cause of action shall accrue and not afterwards.
136. - Sec. 4. None of the foregoing provisions shall apply to any
action brought, upon any bills, notes or other evidence of debt issued by any
137. - Sec. 5. ln all actions of debt or assumpsit brought to recover
the balance due upon mutual and open account current the cause of action shall
be deemed to have accrued at the time of the last item proved in such
138 .- Sec. 6. If any person entitled to bring any of the actions before
mentioned in this chapter shall, at the time when the cause of action accrues,
be within the age of twenty-one years, or a married woman, insane, imprisoned
in the state prison, or absent from the United States, such person may bring
the said actions within the time in this chapter respectively limited after the
disability shall be removed.
139. - Sec. 7. All personal actions or any contract not limited by the
foregoing sections or by an other laws of this state shall be brought within
twenty years after the accruing of the cause of action.
140. - Sec. 8. When any person shall be disabled to prosecute an action
in the courts of this state by reason of his being an alien subject or citizen
of any country at war with the United States, the time of the continuance of
such war shall not be deemed any part of the respective period herein limited
for the commencement of an of the actions before mentioned.
141. - Sec. 9. If at the time when a cause of action mentioned in this
chapter shall accrue against any person, he shall be out of the state, the
action may be commenced within the time herein limited therefor after such
person shall come into this state. And if, after any cause of action shall have
accrued, the person against whom it has accrued shall be absent from, and
reside out of the state, the time of his absence shall not be taken as any part
of the time limited for the commencement of the action.
142. - Sec. 10. If any person entitled to bring any of the actions
before mentioned shall die before the expiration of the time herein limited or
within thirty days after the expiration of the said time, and if the cause of
action does by law survive; the action may be commenced by or against the
executor or administrator of the deceased person as the case may be, at any
time within two years after the granting of the letters testamentary or of
administration, and not afterwards, if barred by the provisions of this
143. - Sec. 11. If in any action, duly commenced within the time limited
in this chapter and allowed therefor, the writ shall fail of a sufficient
service or return, by an unavoidable accident or by any default or neglect of
the officer to whom it is committed, or if the suit shall be abated, or the
action otherwise avoided or defeated by the death of any party thereto, or for
any other matter of form, or if after a verdict for the plaintiff the judgment
shall be arrested, or if a judgment for the plaintiff shall be reversed on a
writ of error, the plaintiff may commence a new action for the same cause at
any time within one year after the abatement or other determination of the
original suit or after the reversal of the judgment therein. And if the cause
of action does by law survive, the executor or administrator may in case of his
death commence such action within said one year.
144. - Sec. 12. ln case of the fraudulent concealment of the right of
action, such action may be commenced at any time within six years after the
person entitled to the same shall discover that he has such cause of action. R.
S., p. 576, 577 and 578.
145. - Sec. 21. All actions and suits for any penalty or forfeiture on
any penal statute brought by any person to whom the penalty or forfeiture is
given in the whole or in part, shall be commenced within one year next after
the offence was committed, and not afterwards.
146. - Sec. 22. If the penalty or forfeiture is given in whole or in
part to the state, a suit therefor may be commenced by or in behalf of the
state at any time within two years after the offence was committed and not
afterwards. Rev. Stat., p. 579.
147. - 3. As to crimes. The statute of limitations in criminal cases
takes effect after six years from the time the offence was committed; but any
period during which the party charged was not usually and publicly resident
within this state shall not be reckoned as a part of the six years. In case of
murder, however, there is no limitation. Rev. Stat., p. 666, sec. 15.
148. Mississippi. 1. As to lands. Real, possessory, ancestral and mixed
actions for lands, tenements, or hereditaments must be instituted within twenty
years next after the right or title thereto, or cause of action accrued. How.
& Hutch. page 568, ch. 43, sec. 88 , L. 1822. Right or title of entry is
barred after twenty years. Id. sec. 89, L. 1822. Fifty years actual possession
uninterruptedly continued by occupancy, descent, conveyance or otherwise, vests
a complete title in the occupier. Id. sec. 90, L. 1822. Real estate, which may
have escheated to the state, must be claimed within two years next after the
inquisition, or it will be sold. How. & Hutch. page 263, ch. 34, sec. 84,
L. 1822. If real estate escheat to the state and be sold, the moneys arising
from such sale may be claimed within twelve years next from the day of such
sale; Id. sec. 87, L. 1822; and moneys arising from sale of personal estate,
escheated, may be claimed within six years next after the sale thereof. Ib. All
persons claiming real estate escheated, either by descent or otherwise, must
appear and traverse the office of inquest within twelve years from the date
thereof, and in case of personal estate, within six years, or they will be
forever barred of their claim. Id. sec. 88, L. 1822.
149. - 2. As to personal actions. 1st. On contracts. These are, 1.
Actions on simple contracts must be commenced and sued within six years next
after the cause of action accrued. Except such actions as concern the trade or
merchan-dise between merchant and merchant, their factors, agents and servants
where there are mutual dealings and mutual credits. How. & Hutch. page.
569, ch. 43, sec. 91, L. 1822 How. Rep. 2, 786.
150. Actions founded upon any account for goods, wares or merchandise,
sold and delivered, or for any articles charged in any store account, must be
commenced and sued within three years next after cause of action accrued.
Post-dating any article in such account is highly penal. How. & Hutch. page
570, ch. 43, sec. 98, L. 1822.
151. - 2. Actions on specialties must be commenced and sued within
sixteen years next after cause of action accrued. How. & Hutch. page 569,
ch. 43, sec. 95, L. 1822.
152. Judgments recovered in any court of record as well without as
within this state, may be revived by scire facias, or an action of debt brought
thereon within twenty years next after the date of such judgment. How. &
Hutch. pages 570 and. 574, ch. 43, sec. 96 and 111, Laws 1822 and 1830. This
extends to decrees of the chancery court. How. Rep. 4, 31.
153. - 3. Suits on bonds, or recognizances against sureties for public
officers must be commenced and sued within five years next after cause of
action accrued. Id. sec. 97, page 570, L. 1822.
154. - 2d. On torts. Actions for torts affecting the person must be sued
within two years next after cause accrued. How. & Hutch. page 569, ch. 43,
sec. 92, L. 1822. Actions of slander for words spoken or written must be sued
within one year. Id. sec. 93, L. 1822; How. Rep. 2, 698. Actions of trespass
quare clausum fregit; trespass; detinue; trover; replevin, for taking away
goods and chattels, actions on the case, must be sued within six years next
after cause of action accrued. Id. How. & Hutch. page 569, ch. 43, sec. 91,
155. - 3. As to penal actions. Penal actions are limited to twelve
months from the time of incurring the fine or forfeiture. (Persons absconding
or fleeing from justic are excepted:) How. & Hutch 49, see. 19, L.
156. - 4. As to crimes. Indictments, presentments or informations for
offences (crimes) must be found or exhibited within one year next after the
offence committed, (except for wilful murder, arson, forgery, counterfeiting
and larceny; as to which there is no limitation.) How. & Hutch. p. 668, ch.
49; sec. 19, L. 1822.
157. Missouri. 1. As to lands. That from henceforth no person or persons
whatsoever shall make entry into any lands, tenements or hereditaments, after
the expiration of twenty years next after his, her or their right or title to
the same first descended or accrued; nor shall any person or persons whatsoever
have or maintain any writ of right, or any other real or possessory writ or
action for any lands, tenements, or hereditaments of the seisin or possession
of him, her or them, his, her or their ancestors or predecessors, nor declare
or allege any other seisin or possession of him, her or them, his, her or their
ancestors or predecessors, than within twenty years next before such writ,
action, or suit, so hereafter to be sued, commenced or brought. Act of 1848.
Infants, femes covert, persons of unsound memory, imprisoned, beyond seas, or
without the jurisdiction of the United States, may sustain such actions
commenced within twenty years after the disability has been removed.
158. - 2. As to personal actions. In all actions upon the case (other
than for slander;) actions for accounts, (other than such accounts as concern
the trade of merchandise between merchant and merchant, their factors and
servants;) actions for debt, grounded upon any lending or contract without
specialty, or of debt for arrearages of rent; and actions of trespass quare
clausum fregit, shall be brought within five years after the cause of action
159. All actions upon accounts for goods, wares and merchandise sold and
delivered, or for any article in any store account; all actions of trespass vi
et armis, assault and battery, and imprisonment, shall be brought within two
years after the cause of action shall accrue.
160. Actions on the case for words, one year after the words spoken; and
writs of error shall be brought within five years after the judgment or order
of complaint shall be rendered and not after. Act of July 4, 1807.
161. The plaintiff may within one year commence a new suit when a former
judgment has been reversed, or the plaintiff has suffered a nonsuit.
162. - 3. As to criminal actions. Actions, suits, indictments, or
informations, (if the punishment be fine and imprisonment,) must be brought
within two years after the offence has been committed, and not after.
163. New Hampshire. 1. As to lands. No action can be maintained for the
recovery of lands, unless upon a seisin within twenty years, except by persons
under disability, that is, by those under twenty-one years of age, femes
covert, non compos mentis, imprisoned, or without the limits of the United
States, who may sue within five years after the disability has been
164. - 2. As to personal actions. Actions in general are limited to be
brought within six years after they have accrued; but actions of trespass,
assault and battery, are limited to three years and actions of slander to two.
Infants, femes covert, persons imprisoned, or beyond sea, without the Iimits of
the United States, or non compos mentis, may bring an action within the same
time, after the disability has been removed. When the defendant has left the
state before the action accrued, and left no property there which could have
been attached, then the whole time is allowed after his return.
165. New Jersey. 1. As to lands. By the act of June 5, 1787, it was
166. - §1. At the aforesaid date, that sixty years actual
possession of lands, tenements or other real estate uninterruptedly continued
by occupancy, descent, conveyance or otherwise, in whatever way or manner such
possession might have commenced or been continued, shall vest a full and
complete right and title in every actual possessor or occupier of such lands,
tenements or other real estate, and shall be a good and sufficient bar to all
claims that may be made or actions commenced, by any person or persons
whatsoever for the recovery of such lands, &c.
167. - §2. And that thirty years' actual possession of lands,
&c. uninterruptedly continued as aforesaid, wherever such possession
commenced or is founded upon a proprietory right duly laid thereon, and
recorded in the surveyor general's office of the division in which such
location was made, or in the secretary's office, agreeably to law; or, wherever
such possession was obtained by a fair bona fide purchase of such land, &c.
of any person in possession, and supposed to have a legal right and title
thereto, or of the agent or agents of such person or persons, shall be a good
and sufficient bar to all prior locations, rights, titles, conveyances or
claims whatever, not followed by actual possession as aforesaid, and shall vest
an absolute right and title in the actual possessor or occupier of all such
168. Provided, That if any person or persons having a right or title to
lands, &c. shall, at the time of the said right or title first descended or
accrued, be within twenty-one years of age, feme covert, non compos,
imprisoned, or without the United States, then such person or persons, and his
heir or heirs may, notwithstanding the aforesaid times are expired, be
en-titled to his or their action for the same, so as such person or persons, or
his or their heirs, commence or sue forth his or their actions within five
years, after his or their full age, discoverture, coming of sound mind,
enlargement out of prison, or coming within any of the United States, and at no
169. And provided that any citizens of this, or any of the United
States, and his or their heirs, having such right, &c. may, notwithstanding
the aforesaid times expired, commence his or their action for such lands,
&c., at any time within five years next after the passing of this act, and
170. By the act of February 7, 1799, s. 9, it is enacted, that no person
who now hath, or hereafter may have, any right or title of entry, into lands,
tenements or hereditaments, shall make entry therein, but within twenty years
next after such right or title shall accrue, and such person shall be barred
from any entry afterwards.
171. Provided, That the time during which the person who hath or shall
have such right or title of entry shall have been under the age of twenty-one
years, feme covert, or insane, shall not be computed as part of the said
limited period of twenty years.
172. By section 10, of the same act, from and after the first day of
January, 1803, every real, possessory, ancestral, mixed or other action for any
lands, tenements or hereditaments, shall be brought or instituted within twenty
years next after the, right or title thereto or cause of such action shall
accrue, and not after.
173. Provided, That the time during which the person who hath or shall
have such right or title or cause of action, shall have been under the age of
twenty-one years, feme covert, or insane, shall not be computed as part of the
said twenty years.
174. - Section 11. That if a mortgagee and those under him be in
possession, of lands, &c. contained in the mortgage or any part thereof,
for twenty years after default of payment, then the right or equity of
redemption therein, shall be barred, forever.
175. - Section 13. That no person or persons, bodies politic or
corporate, shall be sued or impleaded by the state of New Jersey, for any land,
&c. or any rents, revenues, or profits thereof, but within twenty years
after the right, title or cause of action to the same shall accrue and not
176. - 2. As to personal actions. It is enacted that all actions of
trespass quare clausum fregit; trespass; detinue; trover; replevin; debt,
founded on any lending or contract without specialty, or for arrearages of rent
due on a parol demise; of account, (except such actions as concern the trade of
merchandise between merchant and merchant, their factors, agents and servants;)
and on the case, (except actions for slander,) shall be commenced and sued
within six years next after the cause of such actions shall have accrued, and
not after. That all actions of trespass for assault, menace, battery, wounding
and imprisonment, or any of them, shall be commenced and sued within four years
next after the cause of such actions shall have accrued and not after. That
every action upon the case for words, shall be commenced and sued within two
years next after the words spoken, and not after. Persons within the age of
twenty-one years, femes covert or insane, may institute such actions within
such time as is before limited after his or her coming to or being of full age,
discoverture, or sane memory,
177. The act of February 7, 1799, s. 6, provides that every action of
debt, or covenant for rent, or arrearages of rent, founded upon lease under
seal; debt on any bill or obligation for the payment of money only, or upon any
award, under the hands and seals of arbitrators, for the payment of money only,
shall be commenced and sued within sixteen years next after the cause of such
action shall have accrued, and not after; but if any payment shall have been
made on any such lease, specialty or award, within or after the said period of
sixteen years, then an action, instituted on such lease, specialty or award,
within sixteen years after such payment, shall be effectual in law, and not
after. Provided, That the time during which the person, who is or shall be
entitled to any of the actions specified in this section, shall have been
within the age of twenty-one years, feme covert, or insane, shall not be taken
or computed as part of the said limited period of sixteen years.
178. As to crimes. By the statute passed February 17,1829, Harr. Comp.
243, all indictments for offences punishable with death, (except murder,) must
be found within three years, and all offences not punishable with death, must
be brought within two years; except, as to both, where the offender flies.
179. - 4. As to penal actions. By the statute of February 7, 1799, Rev.
Laws, 410, all popular and qui tam actions, and also all actions on penal
statutes by the party grieved, must be brought within two years.
180. New York. The provisions limiting the time of commencing actions,
are contained in the Revised Statutes, part 3, chapter 4, tit. 2, and are
substantially as follows:
181. - 1. As to lands. The people of this state will not sue or implead
any person for, or in respect to any lands, tenements, or hereditaments, or for
the issues or the profits thereof, by reason of any right or title of the said
people to the same, unless, 1. Such right shall have accrued within twenty
years before any suit, or other proceeding for the same shall have been
commenced; or unless, 2. The said people or those from whom they claim, shall
have received the rents and profits of such real estate, or some part thereof,
within the said space of twenty years. Grantees of the state cannot recover, if
the state could not; and when patents granted by the state are declared void
for fraud, a suit may be brought at any time within twenty years
182. No action for the recovery of any lands, tenements, or
hereditaments, or for the recovery of the possession thereof, shall be
maintained, unless it appear that the plaintiff, his ancestor, predecessor or
grantor, was seised or possessed of the premises in question within twenty
years before the commencement of such action.
183. No avowry or cognizance of title of real estate, or to any rents or
services, shall be valid, unless it appear that the person making the avowry,
or the person in whose right the cognizance is made, or the ancestor, pre-
decessor, or grantor of such person, was seised or possessed of the premises in
question, within twenty years before committing the act, in defence of which
the avowry or cognizance is made.
184. No entry upon real estate shall be deemed sufficient or valid as a
claim, unless an action be commenced thereupon within one year after the making
of such entry, and within twenty years from the time when, the right of making
such entry accrued.
185. All writs of scire facias upon fines, heretofore levied, of any
manors, lands, tenements, or hereditaments, shall be sued out within twenty
years next after the title or cause of action first descended or fallen, and
not after that period.
186. If any person entitled to commence any action as above specified,
or to make any entry, avowry, or cognizance, be at the time such title shall
first descend or accrue, either, 1. Within the age of twenty-one years or, 2.
Insane; or, 3. Imprisoned on any criminal charge or in execution upon some con-
viction of a criminal offence for any term less than for life; or, 4. A married
woman; the time during which such disability shall continue shall not be deemed
any portion of the time above limited, for the commencement of such suit, or
the making such entry, avowry, or cognizance; but such person may bring such
action, or make such entry, avowry, or cognizance, after the said time so
limited, and within ten years after such disability removed and not after. In
case of the death of the person entitled to such action, &c., before any
determination or judgment in the case, his heirs may institute the same within
ten years after his death, but not after. Rev. Statutes, part 3, c. 4, tit. 2,
187. The 68th section of the act "to simplify and abridge the practice,
pleadings and proceedings of the courts of this state," (New York,) passed the
12th of April 1848, known as the Code of Procedure, enacts that the provisions
of the Revised Statutes, contained in the article entitled, "Of the time of
commencing actions relating property," shall, until otherwise provided by
statute, continue in force, and be applicable to actions for the recovery of
188. - 2. Other actions than for the recovery of real property, and
actions already commenced, or cases where the right of action has accrued, to
which the statutes in force when the said act was passed shall be applicable,
according to the subject of the action, and without regard to the form, must be
commenced within the times as provided for in part 2, t. 2, c. 3 and 4, of the
code of procedure in the following sections, namely:
§70. Within twenty years:
1. An action upon a judgment or decree of any court of the United
States, or of any state or territory within the United States. 2. An action
upon a sealed instrument.
§ 71. Within six years:
§72. Within three years:
1. An action upon a contract, obligation or liability, express or
implied; excepting those mentioned in section seventy.
2. An action upon a liability created by statute, other than a
penalty or forfeiture.
3. An action for trespass upon real property.
4. An action for taking, detaining or injuring any goods or
chattels, including actions for the specific recovery of personal property.
5. An action for criminal conversation, or for any other injury to
the person or rights of another, not arising on contract, and not hereinafter
6. An action for relief, on the ground of fraud; the cause of action
in such case not to be deemed to have accrued, until the discovery by the
aggrieved party, of the facts constituting the fraud.
§73. Within two years:
1. An action against a sheriff or coroner, upon a liability
incurred by the doing of an act in his official capacity, and in virtue of his
office, or by the omission of an official duty; including the non-payment of
money collected upon an execution. But this section shall not apply to an
action for an escape.
2. An action upon a statue, for a penalty or forfeiture, where the
action is given to the party aggrieved, or to such party and the people of this
state, except where the statute imposing it prescribes a different
1. An action for libel, slander, assault, battery, or false
2. An action upon a statute, for a forfeiture or penalty to the
people of this state.
§74. Within one year:
1. An action against a sheriff or other officer, for the escape of a
prisoner arrested, or imprisoned on civil process.
§75. In an action brought to recover a balance due upon a mutual,
open and current account, where there have been reciprocal demands between the
parties, the cause of action shall be deemed to have accrued from the time of
the last item in the account, on the adverse side.
§76. An action upon a statute for a penalty or forfeiture, given
in whole or in part to any person who will prosecute for the same, must be
commenced with-in one year after the commission of the offence, and if the
action be not commenced within the year, by a private party, it may be
commenced within two years thereafter, in behalf of the people of this state,
by the attorney-general, or the district attorney of the county where the
offence was committed.
§77. An action for relief, not hereinbefore provided for, must be
commenced within ten years after the cause of action shall have accrued.
§78. The limitations prescribed in this title shall apply to
actions brought in the name of the people of this state or for their benefit,
in the same manner as to actions by private parties.
§79. An action shall not be deemed commenced, within the meaning
of this title, unless it appear:
§ 80. If, when the cause of action shall
accrue against a person, he be out of the state, the action may be commenced
within the term herein limited, after his return to the state; and if, after
the cause of action shall have accrued, he depart from and reside out of the
state, the time of his absence shall not be part of the time limited for the
commencement of the action.
1. That the summons or other process therein was duly served upon
the defendants, or one of them; or
2. That the summons was delivered, with the intent that it should be
actually served, to the sheriff of the county in which the defendants, or one
of them, usually or last resided; or, if a corporation be defendant, to the
sheriff of the county in which such corporation was established by law, or
where its general business was transacted, or where it kept an office for the
transaction of business.
§81. If a person entitled to bring an action, except for a
penalty or forfeiture, or against a sheriff or other officer for an escape be
at the time the cause of action accrued, either:
§82. If a person entitled to bring an action,
die before the expiration of the time limited for the commencement thereof, and
the cause of action survive, his representatives may commence the action, after
the expiration of that time, and within one year from his death.
1. Within the age of twenty-one years; or,
2. Insane; or,
3. Imprisoned on a criminal charge, or in execution under the
sentence of a criminal court, for a term less than his natural life; or,
4. A married woman: The time of such disability shall not be part of
the time limited for the commencement of the action.
§83. When a person shall be an alien, subject or citizen of a
country at war with the United States, the time of the continuance of the war
shall not be part of the period limited for the commencement of the action.
§84. If an action shall be commenced within the time prescribed
therefor, and a judgment therein for the plaintiff be reversed, on appeal, the
plain-tiff, or if be die and the cause of action survive, his heirs or
representatives may commence a new action within one year after the
§85. When the commencement of an action shall be stayed by
injunction, the time of the continuance of the injunction shall not be part of
the time limited for the commencement of the action.
§86. No person shall avail himself of a disability, unless it
existed when his right of action accrued.
§87. When two or more disabilities shall exist, the limitation
shall not attach until they all be removed.
§88. This title shall not affect actions to enforce the payment
of bills, notes, or other evidences of debt issued by moneyed corporations, or
issued or put in circulation as money.
§89. This title shall not affect actions against directors or
stockholders of a moneyed corporation, to recover a penalty or forfeiture
imposed, or to enforce a liability created by the second title of the chapter
of the Revised Statutes, entitled "Of Incorporations;" but such actions must be
brought within six years after the discovery, by the aggrieved party, of the
facts upon which the penalty or forfeiture attached, or the liability was
§90. Where the time for commencing an action arising on contract
shall have expired, the cause of action shall not be deemed revived by an
acknowledgment or new promise, unless the same be in writing, subscribed by the
party to be charged thereby.
189. North Carolina. By the Revised Statutes, chapter 65, it is provided
as follows, to wit:
190. 1. As to lands. 1. That no person or persons nor their heirs, which
hereafter shall have any right or title to any lands, tenements, or
hereditaments, shall thereunto enter or make any claim, but within seven years
next after his, her, or their right or title descended or accrued, and in
default thereof, such person or persons, so not entering or making claim, shall
be utterly excluded and disabled from any entry or claim thereafter to be made:
Provided, nevertheless, that if any person or persons, that is or hereafter
shall be entitled to any right or claim of lands, tenements or hereditaments,
shall be, at the time the said right or title first descended, accrued, come or
fallen, within the age of twenty-one years, feme covert, non compos mentis,
imprisoned or beyond seas, that then such person or persons shall and may,
notwithstanding the said seven years be expired, commence his, her or their
suit, or make his, her, or their entry, as he, she, or they might have done
before this act, so as such person or persons shall, within three years next
after full age, discoverture, coming of sound mind, enlargement out of prison,
or persons beyond seas, within eight years after the title or claim becomes
due, take benefit and sue for the same, and at no time after the times or
limitations herein specified; but that all possessions, held without suing such
claim as aforesaid, shall be a perpetual bar against all, and all manner of
persons whatsoever, that the expectation of heirs may not, in a short time,
leave much land unpossessed, and titles so perplexed, that no man will know of
whom to take or buy land. Provided also, that if in any action of ejectment for
the recovery of any lands, tenements or hereditaments, judgment be given for
the plaintiff, and the same be reversed for error, or a verdict pass for the
plaintiff, and, upon matter alleged in arrest of judgment, the judgment be
given against the plaintiff that he take nothing by his plaint, writ or bill,
or a verdict be given against the plaintiff, in all such cases the party
plaintiff, his heirs or executors, as the case shall require, may commence a
new action or suit from time to time, within one year after such judgment
reversed, or judgment given against the plaintiff.
191. - §2. Where any person or persons, or the person or persons
under whom he, she, or they claim, shall have been, or shall continue to be, in
possession of any lands, tenements or hereditaments whatsoever, under titles
derived from sales, made either by creditors, executors or administrators of
any person deceased, or by husbands and their wives, or by endorsement of
patents or other colorable title, for the space of twenty-one years, all such
possessions of lands, tenements or, hereditaments, under such title, shall be
and are hereby ratified, confirmed and declared to be a good and legal bar,
against the entry of any person or persons, under the right or claim of the
state, to all intents and purposes whatsoever; Provided, nevertheless, that the
possession so set up shall have been ascertained and identified under known and
visible lines or boundaries.
192. - 2. As to personal actions. §3. All actions of trespass,
detinue, actions sur trover and replevin for taking away of goods and chattels,
all actions of account and upon the case, all actions of debt for arrearages of
rent, all actions of debt grounded upon any lending or contract without
specialty, and all actions of assault, menace, battery, wounding, and
imprisonment, or any of tbem, which shall be sued or brought, shall be
commenced or brought within the time and limitation in this act expressed, and
not after; that is to say, actions of account render, actions upon the case,
ac- tions of debt for arrearages of rent, actions of debt upon simple contract,
actions of detinue, replevin, and trespass either for goods and chattels or
quare clausum fregit, within three years next after the cause of such action or
suit, and not after; except such accounts as concern the trade of merchandise,
between merchant and merchant, and their factors, or servants; and the said
actions of trespass, of assault and battery, wounding, imprisonment, or any of
them, within one year after the cause of such action or suit, and not after;
and the said actions upon the case for words, within six months after the words
spoken, and not after.
193. - §4. Provided, nevertheless, that if, on any of the said
actions or suits, judgment be given for the plaintiff, and the same be reversed
by error, or a verdict pass for the plaintiff, and upon matter alleged in
arrest of judgment, the judgment be given against the plaintiff, that he take
nothing by his plaint, writ or bill; or if any of the said actions shall be
brought by original writ, and the defendant cannot be attached or legally
served with process, in all such cases, the party plaintiff, his heirs,
executors or administrators, as the case shall require, may commence a new
action or suit, from time to time, within a year after such judgment reversed,
or such judgment given against the plaintiff, or till the defendant can be
attached or served with the process, so as to compel him to appear and answer.
And provided further, that if any person or persons, that is or shall be
entitled to any such action or trespass, detinue, action sur trover, replevin,
actions of accompt and upon the case, actions of debt for arrearages of rent,
actions of debt grounded upon any lending or contract without specialty,
actions of assault, menace, battery, wounding, and imprisonment, actions of
trespass quare clausum fregit, actions upon the case for slanderous words, be,
or shall be, at the time of any such cause of action given or accrued, fallen
or come, within the age of twenty-one years, feme covert, non compos mentis,
imprisoned or beyond the seas, then such person or persons shall be at liberty
to bring the same actions, so as they bring the same within such times as are
before limited, after their coming to or being of full age, discovert, of sound
memory, at large or returned from beyond seas, as other persons having no such
impediment might have done. And provided further, that when any person or
persons, against whom there is cause of action, shall be beyond sea at the time
of such cause of action given or accrued, fallen or come, the person, who shall
have such cause of action, may bring his action against them within such time
or times as are hereinbefore limited, for bringing such actions after their
194. - §5. The limitation of actions shall apply to all bonds,
bills, and other securities made transferable by law, after the assignment or
endorsement thereof, in the same manner as it operates against promissory
195. - 3. As to penal Actions. §6. All actions and suits to be
brought on any penal act of the general assembly, for the recovery of the
penalty therein set forth, shall be brought within three years after the cause
of such action or suit shall or may have accrued, and not after: Provided, that
this act shall not affect the time of bringing suit on any penal act of the
general assembly, which hath a time limited therein for bringing the same.
196. Ohio. 1. As to lands. Twenty-one years adverse possession of lands
operates a bar, with a saving in favor of infants, femes covert, persons
insane, imprisoned or beyond the sea, when the right of action accrues. And if
a person shall have left the state, and remain out of the same at the time the
cause of action accrued; or shall have left the state or county at any time
during the period of limitation, (that is, after the right of action has
accrued,) and remain out of the same in a place unknown to the person having
the right of action, suit may be brought at any time within the period of
limitation, after the return of such person to the state or county.
197. - 2. As to personal actions. 1st. Actions upon the case, covenant
and debt founded upon a specialty, or any agreement, contract or promise in
writing, may be brought within fifteen years after the cause of action shall
198. - 2d. Actions upon the case and debt founded upon any simple
contract, not in writing, and actions on the case for consequential damages,
within six years.
199. - 3d. Actions of trespass upon property, real or personal, detinue,
trover and replevin, within four years.
200. - 4th. Actions of trespass for any injury done to the person,
actions of slander for words spoken, or for a libel, actions for malicious
prosecution, and for false imprisonment; actions against officers for
malfeasance or nonfeasance in office, and actions of debt qui tam, within one
201. - 5th. Actions for forcible entry and detainer, or forcible
detainer only, within two years.
202. - 6th. All other actions within four years; and all penalties and
forfeitures given by statute and limited by the statute, within the times so
203. - 7th. Infants, femes covert, persons insane or imprisoned,
entitled to an action of ejectment, may, after the twenty-one years have
elapsed, bring their actions within ten years after such disability removed.
They may bring all other actions, within the respective times Iimited for
bringing such actions, after the disability removed.
204. - 8th. Actions, founded on contracts between persons resident at
the time of the contract without this state, which are barred by the laws of
the country where the contract was made, are barred in the courts of this
205. - 9th. In all actions on contracts express or implied, in case of
payment of an part, principal or interest, acknowledgment of an existing
liability, debt or claim, or any promise to pay the same, within the time
herein limited, the action may be commenced within the time limited after such
payment, acknowledgment or promise.
206. - 10th. If judgment be arrested or reversed, the suit abate or the
plaintiff become nonsuit, and the time limited shall have expired, the
plain-tiff may bring a new action within one year after such arrest, reversal,
abatement or nonsuit.
207. - 11th. A person who has left the state, or resides out of it, or
whose place of residence is unknown although in the state, at the time the
cause of action accrues, may be sued within the time limited by the act, after
his return or to removal the state, or his place of residence, if in the state,
becomes known. O. Stat. vol. 29, 214; Act of Feb. 18, 1831. Took effect, June
1, 1831. Swan's Col. Laws, 553, 4, 5, 6.
208. This act only operates upon causes of action accruing after the
act took effect, and all causes of action previously subsisting are governed by
the statutes (and there have been several) in force when the respective causes
of action accrued, none of the statutes being retrospective in their operation.
7 O. R. p. 2, 235, West's Adm'r. v. Hymer; Id. 153, Hazlett et al.
v.Critchfield et al.; 6 Id. 96, Bigelow's Ex'r. v. Bigelow's Adm'r.
209. - 3. As to penal actions. Prosecutions for any forfeitures under a
penal statute, must be instituted within two years, unless otherwise specially
210. Pennsylvania. 1. As to lands. From henceforth no person or persons
whatsoever, shall make entry into any manors, lands, tenements or
hereditaments, after the expiration of twenty-one years next after his, her or
their right or title to the same first descended or accrued; nor shall any
person or persons whatsoever have or maintain any writ of right, or any other
real or possessory writ or action, for any manor, lands, tenements or
hereditaments, of the seisin or possession of him, her or themselves, his, her,
or their ancestors, or predecessors, nor declare or allege any other seisin or
possession of him, her or themselves, his, her or their ancestors or
predecessors, than within twenty-one years next before such writ, action, or
suit so hereafter to be sued, commenced or brought. Act of March 26, 1785, s.
2, 2 Smith's Laws Pa. 299.
211. Section 4, provides, that if any person or persons having such
right or title be, or shall be at the time such right or title first descended
or accrued, within the age of twenty-one years, feme covert, non compos mentis,
imprisoned or beyond the seas, or from and without the United States of
America, then such person or persons, and the heir or heirs of such person or
persons, shall and may, notwithstanding the said twenty-one years be expired,
bring his or their action, or make his or their entry, as he, she or, they
might have done, before the passing of this act, so as such person or persons,
or the heir or heirs of such person or persons, shall within ten years next
after attaining full age, discoverture, soundness of mind, enlargement out of
prison, or coming into the said United States, take benefit of or sue for the
same, and no time after the said ten years; and in case such person or persons
shall die within the said term of ten years, under any of the disbilities
aforesaid, the heir or heirs of such person or persons shall have the same
benefit, that such person or persons could or might have had; by living until
the disabilities should, have ceased or been removed; and if any abatement
happen in any proceeding or proceedings upon such right or title, such
proceeding or proceedings may be renewed and continued, within three years from
the time of such abatement, but not afterward.
212. By the act of March 11, 1815, the provision above contained, so far
as the same relates to persons beyond the seas, and from and without the United
States of America, is repealed.
213. - 2. As to personal actions. All actions of trespass quare clausum
fregit, all actions of detinue, trover and replevin, for taking away goods and
cattle, all actions upon account, and upon the case, (other than such accounts
as concern the trade of merchandise between merchant and merchant, their
factors or servants,) all actions of debt, grounded upon any lending or con-
tract without specialty, all actions of debt for arrearages of rent, except the
proprietaries' quit rents, and all actions of trespass, of assault, menace,
battery, wounding and imprisonment, or any of them, which shall be sued or
brought at any time after the five and twentieth day of April, which shall be
in the year of our Lord one thousand seven hundred and thirteen, shall be
commenced and sued within the time and limitation hereafter expressed, and not
after; that is to say, the said actions upon the case, other than for slander,
and the said actions for account, and the said actions for trespass, debt,
detinue, and replevin for goods or chattels, and the said actions of trespass
quare clausum fregit, within six years next after the cause of such actions or
suit, and not after. And the said actions of trespass, of assault, menace,
battery, wounding, imprisonment, or any of them, within two years next after
the cause of such actions or suit, and not after. And the said actions upon the
case for words, within one year next after the words spoken, and not after.
Act. of March 27, 1713, s. 1.
214. If in any of the said actions or suits, judgment be given for the
plaintiff and the same be reversed by error, or a verdict passed for the
plaintiff, and upon matter alleged in arrest of judgment, the judgment be given
against the plaintiff, that he take nothing by his plaint, writ or bill, then
and in every such case, the party plaintiff, his heirs, executors, or
administrators, as the case may require, may commence a new action or suit,
from time to time, within a year after such judgment reversed, or given against
the plaintiff, as aforesaid, and not after. Id. s. 2.
215. In all actions upon the cause, for slanderous words, to be sued or
prosecuted by any person or persons, in any court within this province, after
the said twenty-fifth day of April next, if the jury upon trial of the issue in
such action, or the jury that shall inquire of the damages, do find or assess
the damages under forty shillings, then the plaintiff or plaintiffs in such
action shall have and recover only so much costs as the damages so given or
assessed do amount unto without any further increase of the same. Id. s. 4.
216. Provided nevertheless, that if any person or persons who is or
shall be entitled to any such action or trespass, detinue, trover, replevin,
actions of account, debt, actions for trespass, for assault, menace, battery,
wounding or imprisonment, actions upon the case for words, be, or, at the time
of any cause of such action given or accrued, fallen, or come, shall be within
the age of twenty-one years, feme covert, non compos mentis, imprisoned or
beyond the sea, that then such person or persons shall be at liberty to bring
the same actions, so as they take the same within such times as are hereby
before limited, after their coming to or being of full age, discoverture, of
sound memory, at large, or returning into this province as other persons. id.
217.-3. As to penal actions. All actions, suits, bills, indictments or
information, which shall be brought for any forfeiture upon any penal act of
assembly made or to be made, whereby the forfeiture is or shall be limited to
the commonwealth only, shall hereafter be brought within two years after the
offence was committed, and at no time afterwards, and all actions, suits,
bills, or informations which shall be brought for any forfeiture upon any penal
act of assembly made or to be made, the benefit and suit whereof is or shall be
by the said act limited to the commonwealth, and to any person or persons that
shall prosecute in that behalf, shall be brought by any person or persons that
may lawfully sue for the same, within one year next after the offence was
committed; and in default of such pursuit, then the same shall be brought for
the commonwealth, any time within one year after that year ended; and if any
action, suit, bill, indictment or information shall be brought after the time
so Iimited, the same shall be void, and where a shorter time is limited by any
act of assembly, the prosecution shall be within that time. Act of March 26,
1785, s. 6.
218. Rhode Island. 1. As to lands. It is enacted that where any person
or persons, or others from whom he or they derive their titles, either by
themselves, tenants or lessees, shall have been for the space of twenty years,
in the uninterrupted, quiet, peaceable and actual seisin and possession of any
lands, tenements or hereditaments in the, state, during the said time, claiming
the same as his, her or their proper, sole and rightful estate in fee simple,
such actual seisin and possession shall be allowed to give and make a good and
rightful title to such person or persons, their heirs and assigns, forever;
saving and excepting however, the rights and claims of persons under age, non
compos mentis, feme covert, and persons imprisoned, or beyond seas, they
bringing their suits for the recovery of such lands, &c., within the space
of ten years next after the removal of such impediment saving also, the rights
and claims of any person or persons, having any estate in reversion or
remainder, expectant or dependent on any lands, &c., after the
determination of the estate for years, life, &c.; such person or persons
pursuing his or their title by due course of law, within ten years after his or
their right of action shall accrue.
219. - 2, As to personal actions. It provides that all actions upon the
case, (except actions for slander,) all actions of account, (except such as
concern trade and merchandise between merchant and merchant, their actors or
servants,) all actions of detinue, replevin and trover, all actions of debt
founded upon any contract without specialty, and all actions of debt for
arrearages of rents, must be commenced within six years next after the accruing
of the cause of said actions, and not after. That all actions of trespass for
breaking enclosures, and all other actions of trespass for any assault,
battery, wounding and imprisonment, must be commenced within four years next
after the accruing of such cause of action, and not after. And that actions
upon the case for words spoken, must be commenced within two years next after
the words spoken, and not after. If the person against whom there is any such
cause of action, at the time the same accrued, was without the limits of the
state, and did not leave property or estate therein, that could, by common and
ordinary process of law be attached, in that case, the person who is entitled
to such action, may commence the same, within the respective periods limited in
the preceding clause, after such person's return into the state. If a person,
entitled to any of the before described actions, is at the time any such cause
of action accrues, within the age of twenty-one, feme covert, non compos
mentis, imprisoned, or beyond sea, such person may commence the same within the
times respectively, limited as above, after being of full age, discovert, of
sane memory, at large, or returned from beyond sea.
220. - South Carolina. 1. As to lands. By the act of 1712, s. 2, it is
enacted, that if any person or persons to whom any right or title to lands,
tenements or hereditaments within this province, shall hereafter descend or
come, do not prosecute the same within five years after such right or title
accrued, that then he or they, and all claiming under him or them, shall be
forever barred to recover the same.
221. By section 5, that not only the persons who have not made claim
within the time limited shall be barred, but also all persons that shall come
under such as have lost their claim.
222. And by section 2, that any person or persons beyond the seas, or
out of the limits of this province, feme covert, or imprisoned, shall be
allowed the space of seven years to prosecute their right or title, or claim to
any lands, tenements, or hereditaments in this province, after such right and
title accrued to them or any of them, and at no time after the said seven
years; and also, any person or persons that are under the age of twenty-one
years, shall be allowed to prosecute their claims at any time within two years
after they come of age, and if beyond the seas, three years." But a subsequent
act, in 1778; Pub. L. 455, s. 2; as to persons under twenty-one, allows five
years to prosecute their right to lands, after coming to twenty-one.
223. - 2. As to personal actions. By the act of 1712, s. 6, actions of
account, and upon the case, (other than case for slander, and upon such
accounts as concern the trade of merchandise between merchant and merchant,
their factors or servants;) of debt grounded upon any lending or contract
without specialty, or for arrearages of rent reserved by indenture; of
covenant; of trespass, and trespass quare clausum fregit; of detinue, and of
replevin for taking away of goods and chattels; must be commenced within four
years next after the cause of such action or suits, and not after. Actions of
trespass, of assault and battery, wounding, imprisonment, or any of them,
within one year next after the cause of action; and actions on the case for
words, within six months next after the words spoken, and not after.
224. There are various minute provisions in the savings, in favor of
persons under age, insane, beyond seas, imprisoned, and of femes covert.
225. When the defendant is beyond seas at the time any personal action
accrues, the plaintiff may sue, after his return, within such times as is
limited for bringing such action. Act of 1712, s. 6.
226. Tennessee. 1. As to lands. The act of Nov. 16, 1819, c. 28, 2
Scott, 482, enacts in substance: §l. That any persons, their heirs or
assigns, who shall, at the passing of the act, or at any time after, have had
seven years possession of any lands, tenements, or hereditaments, which have
been granted by this state, or the state of North Carolina, holding or claiming
the same under a deed or deeds of conveyance, devise, grant, or other
assurance, purporting to convey an estate in fee simple, and no claim by suit
in law or equity effectually prosecuted shall have been set up, or made to said
land, &c., within the aforesaid time, in that case, the persons, or their
heirs or assigns, so holding possession, shall be entitled to keep and hold in
possession, such quantity of land as shall be specified and described in his or
their deed, of conveyance, devise, grant, or other assurance, as aforesaid, in
preference to and against all and all manner of persons whatsoever; and any
persons or their heirs, who shall neglect or have neglected, for the said term
of seven years, to avail themselves of any title legal or equitable which they
may have had to any lands, &c., by suit in law or equity, effectually
prosecuted against the persons in possession, shall be for ever barred; and the
persons so holding, their heirs. or assigns, for the term aforesaid, shall have
an indefeasible title in fee simple to such lands. See 3 Am. Jur. 255.
227. - §2. That no persons, or their heirs, shall maintain any
action in law or equity for any lands, &c., but within seven years next
after his, her, or their right to commence, have, or maintain such suit, shall
have come, fallen, or accrued; and that all suits in law or equity shall be
commenced and sued within seven years next after the title or cause of action
accrued or fallen, and at no time after the said seven years shall have
228. Persons who, when title first accrued, were within twenty-one years
of age, femes covert, non compos mentis, imprisoned, or beyond the limits of
the United States, or the territories thereof, may bring their action at any
time, so as such suit is commenced within three years next after his, her, or
their respective disabilities or death, and not after; and it is further
provided, that in the construction of the savings, no cumulative disability
shall prevent the bar.
229. - §3. That if, in any of the said actions or suits, judgment
is given for the plaintiff and is reversed for error, or verdict pass for the
plain-tiff, and upon matter alleged in arrest of judgment, the judgment be
given against the plaintiff, that he take nothing, &c.; or, if the action
be commenced by original writ, and the defendant cannot be legally attached, or
served with process, in such case the plaintiff, his heirs, executors, or
administrators, as the case is, may commence a new action, from time to time,
within a year after such judgment reversed or given against the plaintiff, or
until the defendant can be attached, or served with process, so as to compel
him, her, or them to appear and answer.
230. - §4. Provided, that this act shall have no bearing on the
lands reserved for the use of schools.
231. - 2. As to personal actions. Actions of account render; upon the
case; debt for arrearages of rent; detinue; replevin; and trespass quare
clausum fregit; must be brought within three years next after the cause of such
action, and not after: except such accounts as concern the trade of mer-
chandise, between merchant and merchant, and their factors or servants. Actions
of trespass, assault and battery, wounding, and imprisonment, or any of them,
within one year after the cause of such action, and not after: and actions of
the case for words, within six months after the words spoken, and not after.
Act of 1715, c. 27, s. 5. Persons who, at the time the cause of action accrued,
are within the age of twenty-one years, femes covert, non compos mentis,
imprisoned, or beyond seas, may bring their actions within the time above
limited, after the removal of the disability.. Id. s. 9.
232. The act of 1756, c. 4, 1 Scott, 89, contains the following
enactment: 1. Where the plaintiff founds his demand upon a book account for
goods, wares, and merchandise, sold and delivered, or work done, and solely
relies for proof of delivery of the articles upon his oath, such oath shall not
be admitted to prove the delivery of any articles in the book, of longer
standing than two years.
233. - 2. And no such book of accounts, although proved by witnesses,
shall be received in evidence for goods, &c., sold, or work done, above
five years before action brought, except of persons being out of the
government, or where the account shall be settled and signed by the
234. - 3. Creditors of any deceased person, residing in the state,
shall, within two years, and out of the state, within three years, from the
qualifi-cation of the executors or administrators, make demand of their
respective accounts, debts, and demands, of every kind whatsoever, to such
executors, and administrators, and on failure to make the demand, and bring
suit within those times, shall be for ever barred; saving to infants, non
compotes, and femes covert, one year to sue, after the disability removed. But
if any creditor, after making demand of his debt, &c., of the executor or
administrator, shall delay his suit at their special request, then the demand
shall not be barred during the time of indulgence.
235. Vermont. 1. Criminal cases. Sect. 1. All actions, suits, bills,
complaints, informations, or indictments, for any crime or misdemeanor, other
than theft, robbery, burglary, forgery, arson, and murder, shall be brought,
had, commenced, or prosecuted within three years next after the offence was
committed, and not after.
236. - Sect. 2. All complaints and prosecutions for theft, robbery,
burglary and forgery, shall be commenced and prosecuted within six years next
after the commission of the offence, and not after.
237. - Sect. 3. If any action, suit, bill, complaint, information, or
indictment, for any crime or misdemeanor, other than arson and murder, shall be
brought, had, commenced, or prosecuted, after the time limited by the two
preceding sections, such proceedings shall be void, and of no effect.
238. - Sect. 4. All actions and suits, upon any statute, for any penalty
or forfeiture, given in whole or in part to any person who will prosecute for
the same, shall be commenced within one year after the offence was committed,
and not after.
239. - Sect. 5. If the penalty is given in whole or in part to the
state, or to any county or town, or to the treasury thereof, a suit therefor
may be commenced by or in behalf of the state, county, town or treasury, at any
time within two years after the offence was committed, and not afterwards,
240. - Sect. 6. All actions upon any statute, for any penalty or
forfeiture, given in whole or in part to the party aggrieved, shall be
commenced within four years after the offence was committed, and not after.
241. - Sect. 7. The six preceding sections shall not apply to any bill,
complaint, information, indictment or action, which is or shall be limited by
any statute, to be brought, had, commenced or prosecuted within a shorter or
longer time than is prescribed in these six sections; but such bill, complaint,
information, indictment or other suit, shall be brought and prosecuted within
the time that may be limited by such statute.
242. - Sect. 8. When any bill, complaint, information or indictment
shall be exhibited in any of the cases mentioned in this chapter, the clerk of
the court, or magistrate, to whom it shall be exhibited, shall, at the time of
exhibiting, make a minute thereon, in writing, under his official signature, of
the true day, month and year, when the same was exhibited.
243. - Sect. 9. When any action shall be commenced, in any of the cases
men- tioned in this chapter, the clerk or magistrate, signing the writ, shall
enter upon it a true minute of the day, month and year, when the same was
244. - Sect. 10. Every bill, complaint, information, indictment or writ,
on which a minute of the day, month and year, shall not be made, as provided by
the two preceding sections, shall, on motion, be dismissed.
245. - Sect. 11. None of the provisions of this chapter shall apply to
suits against moneyed corporations, or against the directors or stockholders
thereon to recover any penalty or forfeiture imposed, or to enforce any
liability created by the act of incorporation or any other law; but all such
suits shall be brought within six years after the discovery, by the aggrieved
party, of the facts upon which such penalty or forfeiture attached, or by which
such liability was created.
246. - 2. Real and personal actions and rights of entry. Sec. 1. No
action for the recovery of any lands, or for the recovery of the possession
thereof, shall be maintained, unless such action is commenced within fifteen
years next after the cause of action first accrued to the plaintiff, or those
under whom he claims.
247. - Sect. 2. No person having right or title of entry into houses or
lands, shall tbereinto enter, but within fifteen years next after such right of
entry shall accrue.
248. - Sect. 3. The right of any person to the possession of any real
estate shall not be impaired or affected, by a descent being hereafter cast in
consequence of the death of any person in possession of such estate.
249. - Sect. 4. The first two sections of this chapter, so far as they
relate to or affect lands granted, given, sequestered or appropriated to any
public, pious or charitable use, shall take effect from and after the first day
of January, in the year of our Lord eighteen hundred and forty-two, and, until
that day, the laws now in force relating to such lands, shall continue in
250 . - Sect. 5. The following actions shall be commenced within six
years next after the cause of action accrued, and not after:
First. All actions of debt founded upon any contract, obligation or
liabili-ty, not under seal, excepting such as are brought upon the judgment or
decree of some court of record of the United States, or of this or some other
Second. All actions upon judgments rendered in any court not being a
court of record:
Third. All actions of debt for arrearages of rent:
Fourth. All actions of account, assumpsit or on the case, founded on
any contract or liability, express or implied:
Fifth. All actions of trespass upon land:
Sixth. All actions of replevin, and all other actions for taking,
detaining or injuring goods or chattels:
Seventh. All other actions on the case, except actions for slanderous
words, and for libels.
251. Sect. 6. All actions for assault and battery, and for false
imprisonment, shall be commenced within three years next after the cause of
action shall accrue, and not afterwards.
252. - Sect. 7. All actions for slanderous words, and for libels, shall
be commenced within two years next after the cause of action shall accrue, and
253. - Sect. 8. All actions against sheriffs, for the misconduct or
negligence of their deputies, shall be commenced within four years next after
the cause of action shall accrue, and not afterwards.
254.-Sect. 9. None of the foregoing provisions shall apply to any action
brought upon a promissory note, which is signed in the presence of an attesting
witness but the action, in such case, shall be commenced within fourteen years
next after the cause of action shall accrue thereon, and not after- wards.
255. - Sect. 10. All actions of debt or scire facias on judgment shall
be brought within eight years, next after the rendition of such judgment, and
all actions of debt on specialties within eight years after the cause of action
accrued, and not afterwards.
256. - Sect. 11. All actions of covenant, other than the covenants of
warranty, and seisin, contained in deeds of conveyance of lands, shall be
brought within eight years next after the cause of action shall accrue, and not
257. - Sect. 12. All actions of covenant, brought on any covenant of
warranty contained in any deed of conveyance of land, shall be brought within
eight years next after there shall have been a final decision against the title
of the covenantor in such deed; and all actions of covenant brought on any
covenant of seisin, contained in any such deed, shall be brought within fifteen
years next after the cause of action shall accrue, and not after.
258.-Sect. 13. When any person shall be disabled to prosecute an action
in the courts of this state, by reason of his being an alien, subject or
citizen of any country at war with the United States, the time of the
continuance of such war shall not be deemed any part of the respective periods
herein limited for the commencement of any of the actions before mentioned.
259. - Sect. 14. If, at the time when any cause of action of a personal
nature, mentioned in this chapter, shall accrue against any person, he shall be
out of the state, the action may be commenced, within the time herein Iimited
therefor, after such person shall come into the state; and if, after any cause
of action shall have accrued, and before the statute has run, the person
against whom it has accrued, shall be absent from and reside out of the state,
and shall not have, known property within this state, which could, by the
common and ordinary process of law, be attached, the time of his absence shall
not be taken as any part of the time limited for the commencement of the
260. - Sect. 15. If any person, entitled to bring any of the actions,
before mentioned in this chapter, or liable to any such acion, shall die before
the expiration of the time herein limited therefor, or within thirty days after
the expiration of the said time, and if the cause of action does by law sur-
vive, the action may be commenced, by the executor or administrator, within two
years after such death, or against the administrator or executor of the
deceased person, or the same may be presented to the commissioners on said
estate, as the case may be, at any time within two years after the grant of
letters testamentary or of administration, and not afterwards, if barred by the
provisions of this chapter; provided, however, if the commissioners on such
estate are required to make their report to the probate court before, the,
expiration of said two years, the claim against the deceased shall be presented
to the commisioners within the time allowed other creditors to present their
261. - Sect. 16. If, in any action, duly commenced within the time in
this chapter limited and allowed therefor, the writ shall fail of a sufficient
service, or return, by any unavoidable accident, or by any default or neglect
of the officer to whom it is committed, or if the writ shall be abated, or the
action otherwise defeated or avoided, by the death of any party thereto, or for
any matter of form, or if after a verdict for the plaintiff, the judgment shall
be arrested, or if a judgment for the plaintiff shall be reversed on a writ of,
error, or on exceptions, the plaintiff may commence a new action for the same
cause, at any time within one year after the abatement or other determination
of the original suit, or after the reversal of the judgment therein; and if the
cause of action does by law survive, his executor or administrator may, in case
of his death, commence such new action within the said one year; or, if no
executor or administrator be appointed within that time, then within one year
after letters testamentary or of administration shall have been granted to
262. - Sec. 17. Whenever the commencement of any suit shall be stayed by
an injunction of any court of equity, the time, during which such injunction
shall be in force, shall not be deemed any portion of the time in this chapter
limited, for the commencement of suit.
263. - Sect. 18. If any person entitled to bring any action in this
chapter specified, shall, at the time when the cause of action accrues, be a
minor or a married woman, insane or imprisoned, such person. may bring the said
action, within the times in this chapter respectively limited, after the
disability shall be removed.
264. - Sect. 19. None of the provisions of this chapter shall apply to
suits brought to enforce payment on bills, notes or other evidences of debt,
issued by moneyed corporations.
265. - Sect. 20. All, the provisions of this chapter shall apply to the
case of a debt or contract, alleged by way of set-off; and the time of
limitation of such debt shall be computed in like manner as if an action had
been commenced therefor, at the time when the plaintiff's action was
266. - Sect. 21. The limitations herein before prescribed for the
commencement of actions, shall apply to the same actions, when brought in the
name of the state, or in the name of any officer, or otherwise, for the benefit
of the state, in the same manner as to actions brought by citizens.
267. - Sect. 22. In actions of debt or upon the case founded on any
contract, no acknowledgment or promise shall be evidence of a new or continuing
contract, whereby to take any case out of the provisions of this chapter, or to
deprive any party of the benefit thereof, unless such acknowledgment or promise
be made or contained by or in some writing, signed by the party chargeable
268. - Sect. 23. If there are two or more joint contractors, or joint
executors or administrators of any contractor, no such joint contractor,
executor or administrator shall lose the benefit of the provisions of this
chapter, so as to be chargeable by reason only of any acknowledgment or
promise, made or signed by any other or others of them.
269. - Sect. 24. In actions commenced against two or more joint
contractors, or joint executors or administrators of any contractor, if it
shall appear on the trial, or otherwise, that the plaintiff is barred by the
provisions of this chapter, as to one or more of the defendants, but is
entitled to recover against any other or others of them, by virtue of a new
acknowledgment or promise, or otherwise, judgment shall be given for the
plaintiff as to any of the defendants against whom he is entitled to recover,
and for the other defendant. or defendants against the plaintiff.
270. - Sect. 25. If, in any action on contract, the defendant shall
plead in abatement, that any other person ought to have been, jointly sued, and
issue be joined on that plea, and it shall appear on the trial, that the action
was, by reason of the provisions of this chapter, barred against the person so
named in the plea, the said issue shall be found for, the plaintiff.
271. - Sect. 26. Nothing, contained in the four preceding sections,
shall alter, take away or lessen the effect of a payment of any principal or
interest, made by any person.
272. - Sect. 27. If there are two or more joint contractors or joint
executors or administrators of any contractor, no one of them shall lose the
benefits of the provisions of this chapter, so as to be chargeable by reason
only of any payment, made by any other or others of them.
273. - Sect. 28. None of the provisions of this chapter, respecting the
acknowledgment of a debt, or a new promise to pay it, shall apply to any such
acknowledgment or promise, made before the first day of January, in the year of
our Lord eighteen hundred and forty-two, but every such last mentioned
acknowledgment or promise, although not made in writing, shall have the same
effect as if no provisions, relating thereto, had been herein contained.
274. - Sect. 29. The provisions of this chapter which alter or vary the
law now in force relative to the limitation of actions shall not apply to any
case where the cause of action accrues before this chapter shall take effect,
and go into operation; and in all cases, where the cause of action accrues
before this chapter takes effect, the laws now in force limiting the time for
the commencement of suits thereon, shall continue in operation.
275. Virginia. 1. As to lands. All writs of formedon in descender,
remainder, or reverter, of any lands, tenements or hereditaments, shall be sued
out within twenty years next after the title or cause of action accrued, and
not afterwards: and no person having any right or title of entry into any
lands, &c. shall make any entry but within twenty years next after such
right or title accrued. Persons entitled to such writ or right or title of
entry, who are under twenty-one years of age, femes covert, non compos mentis,
imprisoned, or not within the commonwealth, at the time such right or title
accrues, may themselves or their heirs, notwithstanding the said twenty years
have expired, bring and maintain his action, or make his entry, within ten
years next after such disabilities removed, or the death of the person so
276. In all writs of right, and other actions possessory, any person may
maintain a writ of right upon the possession or seisin of his ancestor or
predecessor within fifty years, or any other possessory action upon the
possession or seisin of his ancestor or predecessor, within forty years; but no
person shall maintain a real action upon his own possession or seisin, but
within thirty years next before the teste of the writ.
277. - 2. As to personal actions. The provisions in relation to personal
actions are as follows: 1. Upon all actions upon the case, (other than for
slander,) actions of account or assumpsit, (other than such accounts as concern
the trade of merchandise between merchant and merchant, their factors or
servants,) debt grounded upon any lending or contract without specialty, debt
for arrears of rent, trespass, detinue, trover, or replevin for goods and
chattels, and trespass quare clausum fregit, five years: 2. Upon actions of
assault, battery, wounding, or imprisonment, three years: 3. Upon actions of
slander, one year. Infants, femes covert, persons non compos mentis,
imprisoned, beyond seas, or out of the country, are allowed full time to bring
all such actions, except that of slander, after the disability has been
278. All actions or suits, founded upon any account for goods, sold and
delivered, or for articles charged in any store account, must be commenced
within one year next after the cause of action, or the delivery of the goods,
and not after; except that, in the case of the death of the creditors or
debtors, before the expiration of the said term of one year, the farther time
of one year, from the death of such creditor or debtor, shall be allowed. In
suits in the name of any person residing beyond the seas, or out of this
country, for recovery of any debt due for goods actually sold and delivered
here by his factor or factors, the saving in favor of persons beyond the seas
at the time their causes of action accrued, is not to be allowed; but, if any
factor shall happen to die before the expiration of the time in which suit
should have been brought, his principal shall be allowed two years from his
death, to bring suit for any debt due on account of any contract or dealing
with such factor. 1 Rev. Code, 489-491.
LINE, descents. The series of persons who have descended from a common
ancestor, placed one under the other, in the order of their birth. It connects
successively all the relations by blood to each other. Vide Consanguinity;
≥ A ≥
≥ s ≥ /ƒ 6. Tritavus, Tritavia.
≥ c ≥ √ƒ 5. Atavus, Atavia.
≥ e ≥ √ƒ 4. Abavus, Abavia.
≥ n ≥ Great grand- ≥ ≥
≥ d ƒ¥ father, great √ƒ √ƒ 3. Proavus, Proavia.
≥ i ≥ grandmother, ≥ ≥
≥ n ≥ ≥
≥ g ≥ Grand father, ≥ ≥
≥ ≥ grandmother √ƒ √ƒ 2. Avus, Avia.
≥ l ≥ ≥
≥ i ≥ Father, mother √ƒ 1. Pater, Mater.
≥ n ≥ ≥
≥ e ≥ ≥
EGO. √ƒ EGO.
≥ D ≥ ≥
≥ e ≥ ≥
≥ s ≥ Son. √ƒ 1. Filius.
≥ c ≥ Granson √ƒ 2. Nepos, Nepti.
≥ e ≥ Great Grandson. √ƒ 3. Pronepos, Proneptis.
≥ n ≥ √ƒ 4. Abnepos, Abneptis.
≥ d ≥ √ƒ 5. Adnepos, Adneptis.
≥ i ≥ √ƒ 6. Trinepos, Trineptis.
≥ n ≥
≥ g ≥
≥ L ≥
≥ i ≥
≥ n ≥
≥ e ≥
2. The line is either direct or collateral. The direct line is composed
of all the persons who are descended from each other. If, in the direct line,
any one person is assumed §the propositus, in order to count from him
upwards and downwards, the line will be divided into two parts, the ascending
and descending lines. The ascending line is that, which counting from the
proposi-tus, ascends to his ancestors, to his father, grandfather,
great-grandfather, &c. The descending line, is that which, counting from
the same person, descends to his children, grandchildren, great-grand-children,
&c. The preceding table is an example.
3. The collateral line considered by itself, and in relation to the
common ancestor, is a direct line; it becomes collateral when placed along side
of another line below the common ancestor, in whom both lines unite for
Direct ≥ ≥ Collateral
line. o o line.
4. These two lines are independent of each other; they have no
connexion, except by their union in the person of the common ancestor. This
reunion is what forms the relation among the persons composing the two
5. A line is also paternal or maternal. In the examination of a person's
ascending line, the line ascends first to his father, next to his paternal
grandfather, his paternal great-grandfather, &c. so on from father to
father; this is called the paternal line. Another line will be found to ascend
from the same person to his mother, his maternal grandmother, and so from
mother to mother; this is the maternal line. These lines, however, do not take
in all the ascendants, there are many others who must be imagined. The number
of ascendants is double at each degree, as is shown by the following table:
≥ ¿ƒƒƒƒƒ o
F ≥ ≥ /ƒƒƒƒƒ o
a ≥ ≥ ≥
t ≥ ¿ƒƒƒƒƒoƒƒƒƒ¥
h ≥ ≥
e ≥ ¿ƒƒƒƒƒ o
P ≥ O ≥ /ƒƒƒƒƒ o
a ≥ t ≥ ≥
t ≥ h ≥ /ƒƒƒƒƒoƒƒƒƒ¥
e ≥ e ≥ ≥ ≥
r ≥ r ≥ ≥ ¿ƒƒƒƒƒ o
n ≥ ≥ ≥
a ≥ L ¿ƒƒƒƒƒƒ¥
l ≥ i ≥
≥ n ≥ /ƒƒƒƒƒ o
L ≥ e ≥ ≥
i ≥ ¿ƒƒƒƒƒoƒƒƒƒ¥
n ≥ ≥
e ≥ ¿ƒƒƒƒƒ o
M ≥ /ƒƒƒƒƒ o
a ≥ ≥
t ≥ /ƒƒƒƒƒoƒƒƒƒ¥
e ≥ ≥ ≥
r ≥ O ≥ ¿ƒƒƒƒƒ o
n ≥ t ≥
a ≥ h /ƒƒƒƒƒ¥
l ≥ e ≥ ≥
≥ r ≥ ≥ /ƒƒƒƒƒ o
l ≥ ≥ ≥ ≥
i ≥ l ≥ ¿ƒƒƒƒƒoƒƒƒƒ¥
n ≥ i ≥ ≥
e ≥ n ≥ ¿ƒƒƒƒƒ o
≥ e ≥
M ≥ /ƒƒƒƒƒ o
o ≥ ≥
t ≥ /ƒƒƒƒƒoƒƒƒƒ¥
h ≥ ≥ ≥
e ≥ ≥ ¿ƒƒƒƒƒ o
r ≥ ≥
≥ /ƒƒƒƒƒ o
Vide 2 Bl. Com. 200, b. 2, c. 14; Poth. Des Successions, ch. 1, art. 3,
§ 2; and article Ascendants.
LINE, measures. A line is a lineal measure containing the one
twelfth part of a on inch.
LINE, estates. The division between two estates. Limit; border;
2. When a line is mentioned in a deed as ending at a particular
monument, (q. v.) it is to be extended in the direction called for, without
regard to distance, until it reach the boundary. 1 Taylor, 110, 303 2 Hawks,
219; 3 Hawks, 21; 2 Taylor, 1. And a marked line is to be adhered to although
it depart from the course. 7 Wheat. 7; 2 Overt. 304; 3 Call, 239; 7 Monr. 333;
2 Bibb, 261; 4 Bibb, 503; 4 Monr. 29; see further, 2 Dana, 2; 6 Wend. 467; 1
Bibb, 466; 1 Marsh. 382; 3 Marsh. 382; 3 Murph. 82; 13 Pick. 145; 13 Wend. 300;
5 J. J. Marsh. 587.
3. Where a number of persons settle simultaneously or at short
intervals in the same neighborhood, and their tracts, if extended in certain
directions, would overlap each other, the settlers sometimes by agreement
determine upon dividing lines, which are called consentible lines. These lines,
when fairly agreed upon, have been sanctioned by the courts; and such
agreements are conclusive upon all persons claiming under the parties to them
with notice, but not upon bona fide purchasers for a valuable consideration
without notice, actual or constructive. 5 S. & R. 273; 9 W. & S. 66; 3
S & R. 323; 5 Binn. 129; 10 Watts, 324; 17 S. &. R. 57; Jones, L. 0.
4. Lines fixed by compact between nations are binding on their citizens
and subjects. 11 Pet. 209; 1 Overt. 269; 1 Ves. sen., Rep. 450; 1 Atk. R. 2; 1
Ch. Cas. 85; 1 P. Wms. 723727; 2 Atk. R. 592; 1 Vern. 48; 1 Ves. 19; 2 Ves.
284; 3 S. & R. 331.
LINEAGE. Properly speaking lineage is the relationship of
persons in a direct line; as the grandfather, the father, the son, the
LINEAL. That which comes in a line. Lineal consanguinity is that
which subsists between persons, one of whom is descended in a direct line from
the other. Lineal descent, is that which takes place among lineal kindred.
LINEAL WARRANTY, old English law. A warranty by the heir, when
he derived title to the land warranted, either from or through, the ancestor
who made the warranty. See Warranty.
LIQUIDATED. That which is made clear, certain, and manifest; as,
liquidated damages, ascertained damages liquidated debt, an ascertained debt,
as to amount. A debt is liquidated when it is certain what is due, and how much
is due, cum certum est an et quantum debeatur; for although it may appear that
something is due, if it does not also appear how much is due, the debt is not
liquidated. An unliquidated claim is one which one of the parties to the
contract cannot alone render certain. 5 M. R. 11; 1 N. S. 130; 6 N S. 715; 6 N.
S. 10, 13 L. R. 275; 7 L. R. 134, 599. Such a claim cannot be set off. 2 Dall.
237; S. C. 1 Yeates' R. 571; 10 Serg. & Rawle, 14; see Poth. Ob. n. 628;
Dig. 50, 17, 24; Id. 42, 1, 64; Id. 1, 45, 112; Id. 46, 5, 11; Code, 7, 47.
Dom. Lois Civ. l. 4, t. 2, s. 2, n. 2; Arg. Inst. 1. 4, c. 7; 7 Toull. n. 369;
6 Duv. Dr. Civ. Fr. n. 304.
LIQUIDATED DAMAGES. By this term is understood the fixed amount
which a party to an agreement promises to pay to the other, in case he shall
not fulfil some primary or principal engagement into which he has entered by
the same agreement it differs from a penalty. (q. v.) Vide Damages
2. The damages will be considered as liquidated in the following cases:
1. When the damages are uncertain, and not capable of being ascertained by any
satisfactory or known rule; whether the uncertainty lies in the nature of the
subject itself, or in the particular circunstances of the case. 2 T. R. 32 1
Ale. & N. 389; 2 Burr. 2225 10 Ves. 429; 7 Cowen, 307; 4 Wend. 468. 2.
When, from the nature of the case, and the tenor of the agreement, it is clear,
that the damages have been the subject of actual and fair calculation and
ad-ustment between the parties. 2 Greenl. Ev. §259; 2 Story, Eq.
§1318; 3 C. & P. 240; 10 Mass. 450, 462; 6 Bro. P. C. 436; 3 Taunt.
473; 7 John. 72; 4 Mass. 433; 3 Conn. 58; 1 Bouv. Inst. n. 655, 765.
LIQUIDATION. A fixed and determinate valuation of things which before
LIRA. The name of a foreign coin. In all computations at the
custom house, the lira of Sardinia shall be estimated at eighteen cents and six
mills. Act of March 22, 1846. The lira of the Lombardo-Venitian Kingdom, and
the lira of Tuscany, at sixteen cents. Act of March 22, 1846.
LIS. A suit; an action; a controversy in court; a dispute.
LIS MOTA. The cause of the suit or action. By this term is
understood the commencement of the controversy, and the beginning of the suit.
4 Campb. R. 417; 6 Carr. & P. 552, 561; 2 Russ. & My. 161; Greenl. Ev.
LIS PENDENS. The pendancy of a suit; the time between which it
is instituted and finally decided.
2. It has been decided that the mere serving of a subpoena in chancery,
unless a bill be also filed, is not a sufficient lis pendens, but the bill
being filed, the lis pendens commences from the service of the subpoena,
although that may not be returnable till the following term 1 Vern. 318; and
after a decree, final in its nature, there remains no lis pendens. 1 Vern.
3. It is a general rule, that Iis pendens is a general notice of an
equity to all the world. 3 Atk. 343; 2 P. Wms. 282; Amb. 676; 1 Vern. 286. Vide
2 Fonbl. Eq. 152, note; 1 Supp. to Ves. jr. 284; 3 Rawle, R. 14; Pow. Mortg.
index, h. t.; 1 John. Ch. R. 566; 2 John. Ch. R. 158; 4 John. Ch. Rep. 83; 2
Rand. Rep. 93; 1 M'Cord, Ch. R. 264; Harp. Eq. R. 224; 1 Bibb, R. 314; 5 Ham.
Rep. 462; 4 Cowen, R. 667; 1 Wend. R. 583; 1 Desaus. R. 167, 170; 2 Edw. R.
115; 1 Hogan, R. 69; 6 Har. & John. 21; 2 Dana, R. 480; Jac. R. 202; 1
Russ. & My. 617 Corn. Dig. Chancery, 4 C 3; 2 Bell's Com. 152, 5th ed.; 1
Bail. Eq. R. 479; 7 Dana, R. 110; 7 J. J. Marsh. 529; 1 Clarke, R. 560, 584; 14
Ohio, 109, 323.
4. When a defendant is arrested pending a former suit or action, in
which he was held to bail, he will not, in general, be held to bail, if the
second suit be for the same cause of action. Grah. Prac. 98; Troub. &
Haly's Prac. 44; 4 Yeates' R. 206. But under special circumstances, he may be
held to bail twice, and of these circumstances the court will judge. 2 Miles,
Rep. 99, 100, 142. See 14 John. R. 347. When such a second action is commenced,
the first ought to be discontinued and the costs paid; but, it seems, it is
sufficient if they are paid before the replication of nul tiel record to a plea
of autre action pendant. in the second suit. Grab. Pr. 98; and see 1 John. Cas.
397; 7 Taunt. 151; 1 Marsh. R. 395; Merl. Rep. Litispendance; 5 Ohio R. 462; 6
Ohio R. 225; 1 Blackf. R. 53; Id. 315; Autre action pendent; Bail;
LIST. A table of cases arranged for trial or argument; as, the
trial list, the argument list. See 3 Bouv. Inst. n. 3031.
LISTERS. This word is used in some of the states to designate
the persons appointed to make lists of taxables. See Verm. Rev. Stat. 538.
LITERAL CONTRACT, civil law. A contract, the whole of the
evidence of which is reduced to writing. This contract is perfected by the
writing, and binds the party who subscribed it, although he has received no
consideration. Leg. Elem. §887.
LITERARY PROPERTY. This name has been given to the right which
authors have in their works. This is secured to them by copyright. (q. v.) Vide
2 Bl. Com. 405-6; 4 Vin. Ab. 278; Bac. Ab. Prorogation, F 5; 2 Kent, Com. 306
to 315; 1 Supp. to Ves. jr. 360, 376; 2 Id. 469; Nicklin on Literary Property;
Dane's Ab. Index, b. t.; 1 Chit. Pr. 98; 2 Amer. Jur. 248; 10 Amer. Jur. 62; 1
Law Intell. 66; Curt. on Copyr. 11; 1 Bell's Com. B. 1, part 2, c. 4, s. 2, p.
115; 1 Bouv. Inst. n. 508, et seq. Vide Copyright.
LITIGANT. One engaged in a suit; one fond of litigation.
LITIGATION. A contest authorized by law, in a court of justice,
for the purpose of enforcing a right.
2. In order to prevent injustice, courts of equity will restrain a party
from further litigation, by a writ of injunction; for example, after two
verdicts on trials at bar, in favor of the plaintiff, a perpetual injunction
was decreed. Str. 404. And not only between two individuals will a court of
equity grant this relief, as in the above case of several ejectments, but also,
when one general-legal right, as a right of fishery, is claimed against
several, distinct persons, in which case there would be no end of bringing
actions, since each action would only bind the particular right in question,
between the plaintiff and defendant in such action, without deciding the
general right claimed. 2 Atk. 484; 2 Ves. jr. 587. Vide Circuity of
LITIGI0SITY, Scottish law. The pendency of a suit; it is an
implied prohibition of alienation to the disappointment of an action, or of
diligence, the direct object of which is to obtain possession, or to acquire
the property of a particular subject. The effect of it is analogous to that of
inhibition. (q. v.) 2 Bell's Com. 152, 5th ed. Vide Lis Pendens.
LITIGIOUS. That which is the subject of a suit or action; that
which is contested in a court of justice. In another sense, litigious signifies
a disposition to sue; a fondness for litigation.
LTTIGIOUS RIGHTS, French law. Those which are or may be
contested either in whole or in part, whether an action has been commenced, or
when there is reason to apprehend one. Poth. Vente, n. 584; 9 Mart. R. 183;
Troplong, De la Vente, n. 984 a 1003; Civ. Code of Lo. art. 2623; Id. 3522, n.
22. Vide Contentious jurisdiction.
LITIS CONTESTATIO, civil law. "Contestari." It is when each
party to a suit (uterque reus) says "Teste estote." It was therefore, so
called, because persons were called on by the parties to the suit "to bear
witness," "to be witnesses." It is supposed that this contestatio was the usual
termination of certain acts before the magistratus or in jure, of which the
persons called to be witnesses were at some future time to bear record before
the judex, in judicio. The Iis contestata, in the system of Justinian,
consisted in the statements made by. the parties to a suit before the
magistrate respecting the claim or demand, and the answer or defence to it.
When this was done, the cause was ready for hearing. Savig. Traite de Droit
Romain, tom. vi. § cclviii.; Smith, Dict. Gr. & Rom. Antiq. h. v. The
contesting of the suit, or pleading the general issue. Vide 2 Bro. Civ. and
Adm. Law, 358.
LITISPENDENCE. The part of an action being depending and
undetermined; the time during which an action is pending. See Lis pendens.
LITRE. A French measure of capacity. It is of the size of a
decimetre, or one-tenth part of a cubic metre. It is equal to 61.028 cubic
inches. Vide Measure.
LIVERY, Engl. law. 1. The delivery of possession of lands to
those tenants who hold of the king in capite, or knight's service. 2. Livery
was also the name of a writ which lay for the heir of age, to obtain the
possession of seisin of his lands at the king's hands. F. N. B. 155. 3. It
signifies, in the third place, the clothes given by a nobleman or gentleman to
LIVERY OF SEISIN, estates. A delivery of possession of lands,
tenements, and hereditaments, unto one entitled to the same. This was a
ceremony used in the common law for the conveyance of real estate; and the
livery was in deed, which was performed by the feoffor and the feoffee going
upon the land, and the latter receiving it from the former; or in law, where
the game was not made on the land, but in sight of it. 2 Bl. Com. 315, 316.
2. In most of the states, livery of seisin is unnecessary, it having
been dispensed with either by express law or by usage. The recording of the
deed has the same effect. In Maryland, however, it seems that a deed cannot
operate as a feoffment, without livery of seisin. 5 Harr. & John. 158. Vide
4 Kent, Com. 381 2 Hill, Ab. c. 26, s. 4; 1 Misso. R. 553; 1 Pet. R. 508; 1
Bay's R. 107; 5 Har. & John. 158; Fairf. R. 318; Dane's Abridgment, h. t.;
and the article Seisin.
LIVRE TOURNOIS, com. law. A coin used in France before the
revolution. It is to be computed in the ad valorem duty on goods, &c., at
eighteen and a half cents. Act of March 2, 1798, s. 61, 1 Story's L. U. S. 626.
Vide Foreign Coins.
LOADMANAGE, maritime law, contracts. The pay to loadsmen; that
is, persons who sail or row before ships, in barks or small vessels, with
instruments for towing the ship, and directing her course, in order that she
may escape the dangers in her way. Poth. Des Avaries, n. 147; Guidon de la Mer,
ch. 14; Bac. Ab. Merchant and Merchandise, F.
LOAN, contracts. The act by which a person lets another have a
thing to be used by him gratuitously, and which is to be returned, either in
specie or in kind, agreeably to the terms of the contract. The thing which is
thus transferred is also called a loan. 1 Bouv. Inst. n. 1077.
2. A loan in general implies that a thing is lent without reward; but,
in some cases, a loan may be for a reward; as, the loan of money. 7 Pet. R.
3. In order to make a contract usurious, there must be a loan; Cowp.
112, 770; 1 Ves. jr. 527; 2 Bl. R. 859; 3 Wils. 390 and the borrower must be
bound to return the money at all events. 2 Scho. & Lef. 470. The purchase
of a bond or note is not a loan ; 3 Scho. & Lef. 469; 9 Pet. R 103; but if
such a purchase be merely colorable, it will be considered as a loan. 2 John.
Cas. 60; Id. 66; 12 S. & R. 46; 15 John. R. 44.
LOAN FOR CONSUMPTION, or, MUTUTUM. (q. v.) A contract by which
the owner of a personal chattel, called the lender, delivers it to another,
known as the borrower, by which it is agreed that the borrower shall consume
the chattel loaned, and return at the time agreed upon, another chattel, of the
same quality, kind, and number, to the lender, either gratuitously or for a
con- sideration; as, if Peter lends to Paul one bushel of wheat, to be used by
the latter, so that it shall not be returned to Peter, but instead of which
Paul will return to Peter another bushel of wheat of the same kind and quality,
at a time agreed upon.
2. It is evident that this contract differs essentially from a loan for
use. In the latter, the property of the thing lent remains with the lender,
and, if it be destroyed without the fault or negligence of the borrower, it is
his loss, and the thing to be returned is the identical thing lent; but in the
loan for consumption, the property passes to the borrower, and in case of its
destruction, he must bear the loss, and the identical property is never to be
returned, but other property of the like kind, quality, and number. This
contract bears a nearer resemblance to a barter or exchange; in a loan for
consumption the borrower agrees to exchange with the lender a bushel of wheat,
which he has not, but expects to obtain, for another bushel of wheat which the
lender now has, and with which he is willing to part; or a more familiar
example may be given: Debtor borrows from Creditor, one hundred dollars to use
as he shall deem best, and he promises to return to Creditor another hundred
dollars at a future time.
3. In cases of loan for consumption, the lender may charge for the use
of the thing loaned or not; as, if I lend one thousand dollars to a friend for
a month, I may charge interest or not but a loan for use is always gratuitous
when anything is charged for the use, it becomes a hiring. See Hire; and also
LOAN FOR USE, or COMMODATUM, contracts. A bailment, or loan of
an article for a certain time, to be used by the borrower, without paying for
it. 2 Kent's Com. 446, 447. Sir William Jones defines it to be a bailment of a
thing for a certain time, to be used by the borrower, without paying for it.
Jones' Bailm. 118. According to the Louisiana Code, art. 2864, it is an
agreement by which a person delivers a thing to another, to use it according to
its natural destination, or according to the agreement, under an obligation on
the part of the borrower, to return it after he shall have done using it. This
loan is essentially gratuitous. The Code Civil, art. 1875, defines it in nearly
the same words. Lord Holt has defined this bailment to be, when goods or
chattels, that are useful, are lent to a friend gratis, to be used by him: and
it is called commodatum, he adds, because the thing is to be restored in
specie. 2 Ld. Ray. 909, 913.
2. The loan for use resembles somewhat a gift, for the lender, as in a
gift, gives something to the borrower; but it differs from the latter, because
there the property of the thing given is transferred to the donee; instead of
which, in the loan for use, the thing given is only the use, and the property
in the thing lent remains in the lender. This contract has also some analogy to
the mutuum, or loan for consumption; but they differ in this, that in the loan
for use the lender retains the property in the thing lent, and it must be
returned in individuo; in the loan for consumption, on the contrary, the things
lent are to be consumed, such as money, corn, oats, grain, cider, &c., and
the property in them is transferred to the borrower, who becomes a debtor to
the lender for the same quantity of like articles. Poth. Pret a. Usage, n. 9,
3. Several things are essential to constitute this contract; first,
there must be a thing which is lent; and this, according to the civil law, may
be either a thing movable, as a horse, or an immovable, as a house or land, or
goods, or even a thing incorporeal. But in our law, the contract seems confined
entirely to goods and chattels, or personal property, and not to extend to real
estate. It must be a thing lent, in contradistinction to a thing deposited or
sold, or entrusted to another for the purpose of the owner. Story on Bailm.