M. When persons were convicted of manslaughter in England, they
were formerly marked with this letter on the brawn of the thumb.
2. This letter is sometimes put on the face of treasury notes of the
United States, and signifies that the treasury note bears interest at the rate
of one mill per centum, and not one per centum interest. 13 Peters, 176.
MACE-BEARER, Eng. law. An officer attending the court of
MACEDONIAN DECREE, civil law. A decree of the Roman senate,
which derived its name from that of a certain usurer who was the cause of its
being made, in consequence of his exactions. It was intended to protect sons
who lived under the paternal jurisdiction, from the unconscionable contracts
which they sometimes made on the expectations after their fathers' deaths;
another, and perhaps, the principle object, was to cast odium on the rapacious
creditors. It declared such contracts void. Dig. 14, 6, 1; Domat, Lois, Civ.
liv. 1, tit. 6, §4; Fonbl. Eq . B. 1, c. 2, §12, note. Vide Catching
bargain; Post obit.
MACHINATION. The act by which some plot or conspiracy is set on
MACHINE. A contrivance which serves to apply or regulate moving
power; or it is a tool more or less complicated, which is used to render useful
natural instruments, Clef. des Lois Rom. h. t.
2. The act of congress gives to inventors the right to obtain a patent
right for any new and useful improvement on any art, machine, manufacture,
&c. Act of congress, July 4, 1836, s. 6. See Pet. C. C. 394; 3 Wash. C. C.
443; 1 Wash. C. C. 108; 1 Wash. C. C. 168; 1 Mason, 447; Paine, 300; 4 Wash. C.
C. 538; 1 How. U. S., 202; S. C. 17 Pet. 228; 2 McLean, 176.
MADE KNOWN. These words are used as a return to a scire facias,
when it has been served on the defendant.
MAGISTER. A master, a ruler, one whose learning and position
makes him su- perior to others, thus: one who has attained to a high degree, or
eminence, in science and literature, is called a master; as, master of
MAGISTER AD FACULTATES, Eng. eccl. law. The title of an officer
who grants dispensations; as, to marry, to eat flesh on days prohibited, and
the like. Bac. Ab. Eccles. Courts, A 5.
MAGISTER NAVIS. The master of a ship; a sea captain. MAGISTER
SOCIETATIS, Civil law. The principal manager of the business of a society
MAGISTRACY, mun. law. In its most enlarged signification, this
term includes all officers, legislative, executive, and judicial. For example,
in most of the state constitutions will be found this provision; "the powers of
the government are divided into three distinct departments, and each of these
is confided to a separate magistracy, to wit: those which are legislative, to
one; those which are executive, to another; and those which are judiciary, to
another." In a more confined sense, it signifies the body of officers whose
duty it is to put the laws in force; as, judges, justices of the peace, and the
like. In a still narrower sense it is employed to designate the body of
justices of peace. It is also used for the office of a magistrate.
MAGISTRATE, mun. law. A public civil officer, invested with some
part of the legislative, executive, or judicial power given by the
constitution. In a narrower sense this term includes only inferior judicial
officers, as justices of the peace.
2. The president of the United States is the chief magistrate of this
nation; the governors are the chief magistrates of their respective states.
3. It is the duty of all magistrates to exercise the power, vested in
them for the good of the people, according to law, and with zeal and fidelity.
A neglect on the part of a magistrate to exercise the functions of his office,
when required by law, is a misdemeanor. Vide 15 Vin. Ab. 144; Ayl. Pand. tit.
22; Dig. 30, 16, 57; Merl. Rep. h. t.; 13 Pick. R. 523
MAGNA CHARTA. The great charter. The name of an instrument
granted by King John, June 19, 1215, which secured to the English people many
liberties which had before been invaded, and provided against many abuses which
before rendered liberty a mere name.
2. It is divided into thirty-eight chapters,: 1. To the which relate as
follows, namely: freedom of the church and ecclesiastical persons. 2. To the
nobility, knights' service, &c. 3. Heirs and their being in ward. 4.
Guardians for heirs within age, who are to commit no waste. 5. To the land and
other property of heirs, and the delivery of them up when the heirs are of age.
6. The marriage of heirs. 7. Dower of women in the lands of their husbands. 8.
Sheriffs and their bailiffs. 9. To the ancient liberties of London and other
cities. 10. To distress for rent. 11. The court of common pleas, which is to be
located. 12. The assise on disseisin of lands. 13. Assises of darein
presentments, brought by ecclesiastics. 14. The amercement of a freeman for a
fault. 15. The making of bridges by towns. 16. Provisions for repairing sea
banks and sewers. 17. Forbids sheriffs and coroners to hold pleas of the crown.
18. Prefers the king's debt when the debtor dies insolvent. 19. To the
purveyance of the king's house. 20. To the castleguard. 21. To the manner of
taking property for public use. 22. To the lands of felons, which the king is
to have for a year and a day, and afterwards the lord of the fee. 23. To weirs
which are to be put down in rivers. 24. To the writ of praecipe in capite for
lords against tenants offering wrong, &c. 25. To measures. 26. To
inquisitions of life and member, which are to be granted freely. 27. To
knights' service and other ancient tenures. 28. To accusations, which must be
under oath. 29. To the freedom of the subject. No freeman shall be disseised of
his freehold, imprisoned and condemned, but by judgment of his peers, or by the
law of the land. 30. To merchant strangers, who are to be civilly treated. 31.
To escheats. 32. To the power of selling land by a freeman, which is limited.
33. To patrons of abbeys, &c. 34. To the right of a woman to appeal for the
death of her husband. 35. To the time of holding courts. 36. To mortmain. 37.
To escuage and subsidy. 88. Confirms every article of the charter. See a copy
of Magna Charta in 1 Laws of South Carolina; edited by Judge Cooper, p. 78. In
the Penny Magazine for the year 1833, page 229, there is a copy of the original
seal of King John, affixed to this instrument, and a specimen of a facsimile of
the writing of Magna Charta, beginning at the passage, Nullus liber homo
capietur vel imprisonetur, &c. A copy of both may be found in the Magazin
Pittoresque, for the year 1834, p. 52, 53. Vide 4 Bl. Com. 423.
MAIDEN. The name of an instrument formerly used in Scotland for
MAIL. This word, derived from the French malle, a trunk,
signifies the bag, valise, or other contrivance used in conveying through the
post office, letters, packets, newspapers, pamphlets, and the like, from place
to place, under the authority of the United States. The things thus carried are
also called the mail.
2. The laws of the United States have provided for the punishment of
robberies or wilful injuries to the mail; the act of March 3, 1825, 3 Story's
Laws U. S. 1985, provides-
§22. That if any person shall rob any carrier of the mail of the
United States, or other person entrusted, therewith, of such mail, or of part
thereof, such offender or offenders shall, on conviction, be imprisoned not
less than five years, nor exceeding ten years; and, if convicted a second time
of a like offence, he or they shall suffer death; or if, in effecting such
robbery of the mail, the first time, the offender shall wound the person having
the custody thereof, or put his life in jeopardy, by the use of dangerous
weapons, such offender or offenders shall suffer death. And if any person shall
at- tempt to rob the mail of the United States, by assaulting the person having
custody thereof, shooting at him, or his horse or mule, or, threatening him
with dangerous weapons, and the robbery is not effected, every such offender,
on conviction thereof, shall be punished by imprisonment, not less than two
years, nor exceeding ten years. And, if any person shall steal the mail, or
shall steal or take from, or out of, any mail, or from, or out of, any post
office, any letter or packet; or, if any person shall take the mail, or any
letter or packet therefrom, or from any post office, whether with or without
the consent of the person having custody thereof, and shall open, embezzle, or
destroy any such; mail, letter, or packet, the same containing any articles of
value, or evidence of any debt, due, demand, right, or claim, or any release,
receipt, acquittance, or discharge, or any other articles, paper, or thing,
mentioned and described in the twenty-first section of this act; or, if any
person shall, by fraud or deception, obtain from any person having custody
thereof, any mail, letter, or packet, containing any article of value, or
evidence thereof, or either of the writings referred to, or next above
mentioned, such offender, or offenders, on conviction thereof, shall be
imprisoned not less than two, nor exceeding ten years. And if any person shall
take any letter, or packet, not containing any article of value, or. evidence
thereof, out of a post office, or shall open any letter or packet, which shall
have been in a post office, or in custody of a mail carrier, before it shall
have been de-livered to the person to whom it is directed, with a design to
obstruct the correspondence, to pry into another's business or secrets; or
shall secrete, embezzle, or destroy, any such mall, letter, or packet, such
offender, upon conviction, shall pay, for every such offence, a sum not
exceeding five hundred dollars, and be imprisoned not exceeding twelve
3. - §23. That, if any person shall rip, cut, tear, burn, or
otherwise injure, any valise, portmanteau, or other bag used, or designed to be
used, by any person acting under the authority of the postmaster general, or
any person in whom his powers are vested in a conveyance of any mail, letter
packet, or newspaper, or pamphlet, or shall draw or break any staple, or loosen
any part of any lock, chain, or strap, attached to, or belonging to any such
valise, portmanteau, or bag, with an intent to rob, or steal any mail, letter,
packet, newspaper, or pamphlet, or to render either of the same insecure, every
such offender, upon conviction, shall, for every such offence, pay a sum, not
less than one hundred dollars, nor exceeding five hundred-dollars, or be
imprisoned not leas than one year, nor exceeding three years, at the discretion
of the court before whom such conviction is had.
4. - §24. That every person who, from and after the passage of this
act, shall procure, and advise, or assist, in the doing or perpetration of any
of the acts or crimes by this act forbidden, shall be subject to the same
pen-alties and punishments as the persons are subject to, who shall actually do
or perpetrate any of the said acts or crimes, according, to the provision of
5.- §25. That every person who shall be imprisoned by a judgment of
court, under and by virtue of the twenty-first, twenty-second, twenty-third,
or, twenty-fourth sections of this act, shall be kept at hard labor during the
period of such imprisonment.
MAILE, ancient English law. A small piece of money; it also
signified a rent, because the rent was paid with maile.
MAIM, pleadings. This is a technical word necessary to be
introduced into all indictments for mayhem; the words "feloniously did maim,"
must of necessity be inserted, because no other word, or any circumlocution,
will answer the same purpose. 4 Inst. 118; Hawk. B. 2, c. 23, s. 17, 18, 77;
Hawk. B. 2, c. 25, s, 55; 1 Chit. Cr. Law, *244.
TO MAIM, crim. law. To deprive a person of such part of his body
as to ren- der him less able in fighting or defending himself than he would
have otherwise been. Vide Mayhem.
MAINE. One of the new states of the United State's of America.
This state was admitted into the Union by the Act of Congress of March 3, 1820,
3 Story's L. U . S. 1761, from and after the fifteenth day of March, 1820, and
is thereby declared to be one of the United States of America, and admitted
into the Union on an equal footing with the original states in all respects
2. The constitution of this state was adopted October 29th, 1819. The
powers of the government are vested in three distinct departments, the
legislative, executive and judicial.
3. - 1. The legislative power is vested in two distinct branches, a
house of representatives and senate, each to have a negative on the other, and
both to be styled The legislature of Maine. 1. The house of representatives is
to consist of not less than one hundred, nor more than two hundred members; to
be apportioned among the counties according to law; to be elected by the
quali-fied electors for one year from the next day preceding the annual meeting
of the legislature. 2. The senate consists of not less than twenty, nor more
than thirty-one members, elected at the same time, and for the same term, as
the representatives, by the qualified electors of the districts into which the
state shall, from time to time, be divided. Art. 4, part 2, s. 1. The veto
power is given to the governor, by art. 4, part 3, s. 2.
4. - 2. The supreme executive power of the state is vested in a
governor, who is elected by the qualified electors, and holds his office one
year from the first Wednesday of January in each year. On the first Wednesday
of January annually, seven persons, citizens of the United States, and resident
within the state, are to be elected by joint ballot of the senators and
representatives in convention, who are called the council. This council is to
advise the governor in the executive part of government, art. 5, part 2, s. 1
5. - 3. The judicial power of the State is distributed by the 6th
article of the constitution as follows:
6. - §1. The judicial power of this state shall be vested in a
supreme judicial court, and such other courts as the legislature shall, from
time to time, establish.
7. - §2. The justices of the supreme judicial court shall, at
stated times, receive a compensation, which shall not be diminished during
their continuance in office, but they shall receive no other fee or reward.
8. - §3. They shall be obliged to give their opinion upon important
questions of law, and upon solemn occasions, when required by the governor,
council, senate, or house of representatives.
9. - §4. All judicial officers; except justices of the peace, shall
hold their offices during good behaviour, but not beyond the age of seventy
10. - §5. Justices of the peace and notaries public shall hold
their offices during seven years, if they so long behave themselves well, at
the expiration of which term, they may be re-appointed, or others appointed, as
the public interest may require.
11. - §6. The justices of the supreme judicial court shall bold no
office under the United States, nor any state, nor any other office under this
state, except that of justice of the peace. For a history of the province of
Maine, see 1 Story on the Const. §82.
MAINOUR, crim. law. The thing stolen found in the hands of the
thief who has stolen it; hence when a man is found with property which he has
stolen, he is said to be taken with the mainour, that is, it is found in his
2. Formerly there was a distinction made between a larceny, when the
thing stolen was found in the hands of the criminal, and when the proof
depended upon other circumstances not quite so irrefragable; the former
properly was termed pris ove maynovere, or ove mainer, or mainour, as it is
generally written. Barr. on the Stat. 315, 316, note:
MAINPERNABLE. Capable of being bailed; one for whom bail may be
MAINPERNORS, English law. Those persons to whom a man, is
delivered out of custody or prison, on their becoming bound for his
2. Mainpernors differ from bail: a man's bail may imprison or surrender
him up before the stipulated day of appearance; mainpernors can do neither, but
are merely sureties for his appearance at the day; bail are only sureties that
the party be answerable for all the special matter for which they stipulate;
mainpernors are bound to produce him to answer all charges whatsoever. 3. Bl.
Com. 128; vide Dane's Index, h. t.
MAINPRISE, Engl. law. The taking a man into friendly custody,
who might otherwise be committed to prison, upon security given for his
appearance at a time and place assigned. Wood's Inst. B. 4, c. 4.
2. Mainprise differs from bail in this, that a man's mainpernors are
barely his sureties, and cannot imprison him themselves to secure his
appearance, as his bail may, who are looked upon as his gaolers, to whose
custody he is committed.. 6 Mod. 231; 7 Mod. 77, 85, 98; Ld. Raym. 606; Bac.
Ab. Bail in Civil Cases; 4 Inst. 180. Vide Mainpernors. Writ of Mainprise; and
15 Vin. Ab. 146; 3 Bl. Com. 128.
MAINTENANCE, crimes. A malicious, or at least, officious
interference in a suit in which the offender has no interest, to assist one of
the parties to it against the other, with money or advice to prosecute or
defend the action, without any authority of law. 1 Russ. Cr. 176.
2. But there are many acts in the nature of maintenance, which become
justifiable from the circumstances under which they are done. They may be
justi-fied, 1. Because the party has an interest in the thing in variance; as
when he has a bare contingency in the lands in question, which possibly may
never come in esse. Bac. Ab. h. t. 2. Because the party is of kindred or
affinity, as father, son, or heir apparent, or husband or wife. 3. Because the
relation of landlord and tenant or master and servant subsists between the
party to the suit and the person who assists him. 4. Because the money is given
out of charity. 1 Bailey, S. C. Rep. 401. 5. Because the person assisting the
party to the suit is an attorney or counsellor: the assistance to be rendered
must, however, be strictly professional, for a lawyer is not more justified in
giving his client money than another man. 1 Russ. Cr. 179. Bac. Ab
Mainte-nance: Bro. Maintenance. This offence is punishable by fine and
imprisonment. 4 Black Com. 124; 2 Swift's Dig. 328; Bac. Ab. h. t. Vide 3
Hawks, 86; 1 Greenl. 292; 11 Mass. 553 , 6 Mass. 421; 5 Pick. 359; 5 Monr. 413;
6 Cowen, 431; 4 Wend. 806; 14 John. R. 124; 3 Cowen, 647; 3 John. Ch. R. 508 7
D. & R. 846; 5 B. & C. 188.
MAINTENANCE, quasi contracts. The support which one person, who
is bound by law to do so, gives to another for his living; for example, a
father is bound to find maintenance for his children; and a child is required
by law to main-tain his father or mother when they cannot support themselves,
and he has ability to maintain them. 1 Bouv. Inst. n. 284-6.
MAINTAINED, pleadings. This is a technical word, indispensable
in an indict- ment for maintenance, which no other word or circumlocution will
supply. 1 Wils. 325.
MAINTAINORS, criminal law. Those who maintain or support a cause
depending between others, not being retained as counsel or attorney. For this
they may be fined and imprisoned. 2 Swift's Dig. 328; 4 Bl. Com. 124; Bac. Ab.
MAISON DE DIEU. House of God. In England the term, borrowed from
the French, signified formerly a hospital, an almshouse, a monastery. 39 Eliz.
MAJESTY. Properly speaking, this term can be applied only to
God, for it signifies that which surpasses all things in grandeur and
superiority. But it is used to kings and emperors, as a title of honor. It
sometimes means power, as when we say, the majesty of the people. See, Wolff,
MAJOR, persons. One who has attained his full age, and has
acquired all his civil rights; one who is no longer a minor; an adult.
MAJOR. Military language. The lowest of the staff officers; a
degree higher than captain.
MAJOR GENERAL. A military officer, commanding a division or
number of regi- ments; the next in rank below a lieutenant general.
MAJORES. The male ascendant beyond the sixth degree were so
called among the Romaus, and the term is still used in making genealogical
MAJORITY, persons. The state or condition of a person who has
arrived at full age. He is then said to be a major, in opposition to minor,
which is his condition during infancy.
MAJORITY, government. The greater number of the voters; though
in another sense, it means the greater number of votes given in which sense it
is a mere plurality. (q. v.)
2. In every well regulated society, the majority has always claimed and
exercised the right to govern the whole society, in the manner pointed out by
the fundamental laws and the minority are bound, whether they have assented or
not, for the obvious reason that opposite wills cannot prevail at the same
time, in the same society, on the same subject. 1 Tuck. Bl. Com. App. 168, 172;
9 Dane's Ab. 37 to 43; 1 Story, Const. 330.
3. As to the rights of the majority of part owners of vessels, vide 3
Kent, Com. 114 et seq. As to the majority of a church, vide 16 Mass. 488.
4. In the absence of all stipulations, the general rule in partnerships
is, that each partner has an equal voice, and a majority acting bonafide, have
the right to manage the partnership concerns, and dispose of the partnership
property, notwithstanding the dissent of the minority; but in every case when
the minority have a right to give an opinion, they ought to be notified. 2
Bouv. Inst. n. 1954.
5. As to the majorities of companies or corporations, see Angel, Corp.
48, et seq.; 3 M. R. 495. Vide, generally, Rutherf. Inst. 249; 9 Serg. &
Rawle, 99; Bro. Corporation, pl. 63; 15 Vin. Abr. 183, 184; and the article
Authority; Plurality; Quorum.
TO MAKE. English law. To perform or execute; as to make his law,
is to per- form that law which a man had bound himself to do; that is, to clear
himself of an action commenced against him, by his oath, and the oaths of his
neighbors. Old Nat. Br. 161. To make default, is to fail to appear in proper
time. To make oath, is to swear according to the form prescribed by law.
MAKER. This term is applied to one who makes a promissory note
and promises to pay it when due. He who makes a bill of exchange is called the
drawer, and frequently in common parlance and in books of Reports we find the
word drawer inaccurately applied to the maker of a promissory note. See
MAKING HIS LAW. A phrase used to denote the act of a person who
wages his law. Bac. Ab. Wager of law, in pr.
MALA FIDES. Bad faith. It is opposed to bona fides, good
MALA PRAXIS, crim. law. A Latin expression, to signify bad or
unskilful practice in a physician or other professional person, as a midwife,
whereby the health of the patient is injured.
2. This offence is a misdemeanor (whether it be occasioned by curiosity
and experiment or neglect) because, it breaks the trust which the patient has
put in the physician, and tends directly to his destruction. 1 Lord Raym. 213.
See forms of indictment for mala praxis, 3 Chitty Crim. Law, 863; 4 Wentw. 360;
Vet. Int. 231; Trem. P. C. 242. Vide also, 2 Russ. on Cr. 288; 1 Chit. Pr. 43;
Com. Dig. Physician; Vin. Ab. Physician.
3. There are three kinds of mal practice. 1. Wilful mal practice, which
takes place when the physician purposely administers medicines or performs an
operation which he knows and expects will result in danger or death to the
individual under his care; as, in the case of criminal abortion.
4. - 2. Negligent mal practice, which comprehends those cases where
there is no criminal or dishonest object, but gross negligence of that
attention which the situation of the patient requires: as if a physician should
administer medicines while in a state of intoxication, from which injury would
arise to his patient.
5. - 3. Ignorant mal practice, which is the administration of medicines,
calculated to do injury, which do harm, and which a well educated and
scientific medical man would know were not proper in the case. Besides the
public remedy for mal practice, in many cases the party injured may bring a
civil action. 5 Day's R. 260; 9 Conn. 209. See M. & Rob. 107; 1 Saund. 312,
n. 2; l Ld. Raym. 213; 1 Briand, Med. Leg. 50; 8 Watts, 355; 9 Conn. 209.
MALA PROHIBITA. Those things which are prohibited by law, and
2. A distinction was formerly made in respect of contracts, between mala
prohibita and mala in se; but that distinction has been exploded, and, it is
now established that when the provisions of an act of the legislature have for
their object the protection of the public, it makes no difference with respect
to contracts, whether the thing be prohibited alsolutely or under a penalty. 5
B. & A 5, 340; 10 B. & C. 98; 3 Stark. 61; 13 Pick. 518; 2 Bing. N. C.
MALE. Of the masculine sex; of the sex that begets young; the
sex opposed to the female. Vide Gender; Man; Sex; Worthiest of blood.
MALEDICTION, Eccles. law. A curse which was anciently annexed to
donations of lands made to churches and religious houses, against those who
should violate their rights.
MALEFACTOR. He who bas been guilty of some crime; in another
sense, one who has been convicted of having committed a crime.
MALEFICIUM, civil law. Waste, damage, torts, injury. Dig. 5, 18,
MALFEASANCE, contracts, torts. The unjust performance of some
act which the party had no right, or which he had contracted not to do. It
differs from mis- feasance, (q. v.) and nonfeasance. (q. v.) Vide 1 Chit. Pr.
9; 1 Chit. Pl. 134.
MALICE, crim. law. A wicked intention to do an injury. 4 Mason,
R. 115, 505: 1 Gall. R. 524. It is not confined to the intention of doing an
injury to any particular person, but extends to an evil design, a corrupt and
wicked notion against some one at the time of committing the crime; as, if A
intended to poison B, conceals a quantity of poison in an apple and puts it in
the way of B, and C, against whom he had no ill will, and who, on the contrary,
was his friend, happened to eat it, and die, A will be guilty of murdering C
with malice aforethought. Bac. Max. Reg. 15; 2 Chit. Cr. Law, 727; 3 Chit. Cr.
2. Malice is express or implied. It is express, when the party evinces
an intention to commit the crime, as to kill a man; for example, modern
duelling. 3 Bulstr. 171. It is implied, when an officer of justice is killed in
the discharge of his duty, or when death occurs in the prosecution of some
3. It is a general rule that when a man commits an act, unaccompanied by
any circumstance justifying its commission, the law presumes he has acted
advisedly and with an intent to produce the consequences which have ensued. 3
M. & S. 15; Foster, 255; 1 Hale, P. C. 455; 1 East, P. C. 223 to 232, and
340; Russ. & Ry. 207; 1 Moody, C. C. 263; 4 Bl. Com. 198; 15 Vin. Ab. 506;
Yelv. 105 a; Bac. Ab. Murder and Homicide, C 2. Malice aforethought is
deliberate premedi-tation. Vide Aforethought.
MALICE, torts. The doing any act injurious to another without a
2. This term, as applied to torts, does not necessarily mean that which
must proceed from a spiteful, malignant, or revengeful disposition, but a
conduct injurious to another, though proceeding from an ill-regulated mind not
sufficiently cautious before it occasions an injury to another. 11 S. & R.
3. Indeed in some cases it seems not to require any intention in order
to make an act malicious. When a slander has been published, therefore, the
pro-per question for the jury is, not whether the intention of the publication
was to injure the plaintiff, but whether the tendency of the matter published,
was so injurious. 10 B. & C. 472: S. C. 21 E. C. L. R. 117.
4. Again, take the common case of an offensive trade, the melting of
tallow for instance; such trade is not itself unlawful, but if carried on to
the annoyance of the neighboring dwellings, it becomes unlawful with respect to
them, and their inhabitants may maintain an action, and may charge the act of
the defendant to be malicious. 3 B. & C. 584; S. C. 10 E. C. L. R. 179.
MALICE AFORETHOUGHT, pleadings. In an indictment for murder,
these words, which have a technical force, must be used in charging the
offence; for without them, and the artificial phrase murder, the indictment
will be taken to charge manslaughter only. Fost. 424; Yelv. 205; 1 Chit. Cr.
Law, *242, and the authorities and cases there cited.
2. Whenever malice aforethought is necessary to constitute the offence,
these words must be used in charging the crime in the indictment. 2 Chit. Cr.
Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91.
MALICIOUS. With bad, and unlawful motives; wicked.
MALICIOUS ABANDONMENT. The forsaking without a just cause a
husband by the wife, or a wife by her husband. Vide Abandonment, Malicious.
MALICIOUS MISCHIEF, This expression is applied to the wanton or
reckless de- struction of property, and the wilful perpetration of injury to
the person. Alis. Prin. 448; 3 Dev. & Batt. 130; 8 Leigh, 719; 5 Ired. R.
364; 8 Port. 447; 2 Metc. 21; 3 Greenl. 177.
MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies.
These terms import a wanton prosecution or arrest, made by a prosecutor in a
criminal proceeding, or a plaintiff in a civil suit, without probable cause, by
a regular process and proceeding, which the facts did not warrant, as appears
by the result.
2. This definition will be analysed by considering, 1. The nature of the
prosecution or arrest. 2. Who is liable under it. 3. What are malice and
probable cause. 4. The proceedings. 5. The result of the prosecution and
afterwards, 6. The remedy.
3. - 1. Where the defendant commenced a criminal prosecution wantonly
and in other respects against law, he will be responsible. Addis. R. 270; 12
Conn. 219. The prosecution of a civil suit, when malicious, is a good cause of
action, even when there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1
Wend. 345. But no action lies for commencing a civil action, though without
sufficient cause. 1 Penns. R. 235.
4. - 2. The action lies against the prosecutor and even against a mere
informer, when the proceedings are malicious. 5 Stew. & Port. 367. But
grand jurors are not liable to an action for a malicious prosecution, for
information given by them to their fellow jurors, on which a prosecution is
founded. Hardin, 556. Such action lies against a plaintiff in a civil action
who ma- liciously sues out the writ and prosecutes it; 16 Pick. 453; but an
action does not lie against an attorney at law for bringing the action, when
regularly employed. 16 Pick. 478. See 6 Pick. 193.
5. - 3. There must be malice and want of probable cause. 1 Wend. 140,
345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Cooke, 90; Litt. Sel. Cas. 106;
4 Litt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 Call.
446; 2 Hall, 315; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable
6. - 4. The Proceedings under which the original prosecution or action
was held, must have been regular, in the ordinary course of justice, and before
a tribunal having power to ascertain the truth or falsity of the charge, and to
punish the supposed offender, the now plaintiff. 3 Pick. 379, 383. When the
proceedings are irregular, the prosecutor is a trespasser. 3 Blackf. 210 . See
Regular and irregular process.
7. - 5. The malicious prosecution or action must be ended, and the
plain-tiff must show it was groundless, either by his acquittal or by obtaining
a final judgment in his favor in a civil action. 1 Root, R. 553; 1 N. & M.
36; 2 N. & M. 54, 143; 7 Cowen, 715; 2 Dev. & Bat. 492.
8. - 6. The remedy for a malicious prosecution is an action on the case
to recover damages for the injury sustained. 5 Stew. & Porter, 367; 2 Conn.
700; 11 Mass 500; 6 Greenl. 421; 3 Gill. & John. 377. See Case; Regular and
See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493
to 551; Bac. Ab. Actions on the case, H; Bouv. Inst. Index, h. t.
MALUM IN SE. Evil in itself.
2. An offence malum in se is one which is naturally evil, as murder,
theft, and the like; offences at common law are generally mala in sese.
3. An offence malum prohibitum, on the contrary, is not naturally an
evil, but becomes so in consequence of its being forbidden; as playing at
games, which being innocent before, have become unlawful in consequence of
being forbidden. Vide Bac. Ab. Assumpsit, A, note; 2 Rolle's Ab. 355.
MALVEILLES. Ill-will. In some ancient records this word
signifies malicious practices, or crimes and misdemeaners.
MALVERSATION, French law. This word is applied to all punishable
faults committed in the exercise of an office, such as corruptions, exactions,
extortions and larceny. Merl. Repert. b. t.
MAN. A human being. This definition includes not only the adult
male sex of the human species, but women and children; examples: "of offences
against man, some are more immediately against the king, other's more
immediately against the subject." Hawk. P. C. book 1, c. 2, s. 1. Offences
against the life of man come under the general name of homicide, which in our
law signifies the killing of a man by a man." Id. book 1, c. 8, s. 2.
2. In a more confined sense, man means a person of the male sex; and
sometimes it signifies a male of the human species above the age of puberty.
Vide Rape. It was considered in the civil or Roman law, that although man and
person are synonymous in grammar, they had a different acceptation in law; all
persons were men, but all men, for example, slaves, were not persons, but
things. Vide Barr. on the Stat. 216, note.
MANAGER. A person, appointed or elected to manage the affairs of
another, but the term is more usually applied to those officers of a
corporation who are authorized to manage its affairs. 1 Bouv. Inst. n. 190.
2. In banking corporations these officers are commonly called directors,
and the power to conduct the affairs of the company, is vested in a board of
directors. In other private corporations, such as railroad companies, canal,
coal companies, and the like, these officers are called managers. Being agents,
when their authority is limited, they have no power to bind their principal
beyond such authority. 17 Mass. R. 29; 1 Greenl. R. 81.
3. The persons appointed on the part of the house of representatives to
prosecute impeachments before the senate, are called managers.
MANBOTE. In a barbarous age, when impunity could be purchased
with money, the compensation which was paid for homicide was called
MANCIPATIO, civil law. The act of transferring things called res
mancipi. (q. v.) This is effected in the presence of not less than five
witnesses, who must be Roman citizens and of the age of puberty, and also in
the presence of another person of the same condition, who holds a pair of
brazen scales, and hence is called Libripens. The purchaser (qui mancipio
accipit) taking hold of the thing, says I affirm that this slave (homo) is
mine, ex jure quiritium, and he is purchased by me with this piece of money
(sas) and brazen scales. He then strikes the scales with the piece of money and
gives it to the seller as a symbol of the price (quasi pretii loco.) The
purchaser or person to whom the mancipatio was made did not acquire the
possession of the mancipatio; for the acquisition of possession was a separate
act. Gaius. 1, 119; Id. iv. 181.
Both mancipatio and in jure cessio existed before the twelve tables.
Frag. Vat. 50. Mancipation no longer existed in the code of Justinian, who took
away all distinction between res mancipi and nec mancipi. Smith's Dict. Gr.
& Rom. Antiq. Verb. Mancipium; Coop. Jus. 442.
MANDAMUS, practice. The name of a writ, the principal word of
which when the proceedings were in Latin, was mandamus, we command.
2. It is a command issuing in the name of the sovereign authority from a
superior court having jurisdiction, and is directed to some person,
corporation, or, inferior court, within the jurisdiction of such superior
court, requiring them to do some particular thing therein specified, which
appertains to their office and duty, and which the superior court has
previously determined, or at least supposes to be consonant to right and
justice. 20 Pick. 484; 21 Pick. 258; Dudley, 37; 4 Humph. 437.
3. Mandamus is not a writ of right, it is not consequently granted of
course, but only at the discretion of the court to whom the application for it
is made; and this discretion is not exercised in favor of the applicant, unless
some just and useful purpose may be answered by the writ. 2 T. R. 385; 1
Cowen's R. 501; 11 Shepl. 151; 1 Pike, 11.
4. This writ was introduced io prevent disorders from a failure of
justice; therefore it ought to be used upon all occasions where the law has
established no specific remedy, and where in justice and good government there
ought to be one. 3 Burr. R. 1267; 1 T. R. 148, 9.; 2 Pick. 414; 4 Pick. 68; 10
Pick. 235, 244; 7 Mass; 340; 3 Binn. 273; 5 Halst. 57; Cooke, 160; 1 Wend. 318;
5 Pet. 190; 1 Caines, R. 511; John. Cas. 181; 12 Wend. 183; 8 Pet. 291; 12 Pet.
524; 2 Penning. 1024; Hardin, 172; 7 Wheat. 534; 5 Watts. 152; 2 H. & M.
132; 3 H. & M. 1; 1 S. & R. 473; 5 Binn. 87; 3 Conn. 243; 2 Virg. Cas.
499; 5 Call. 548. Mandamus will not lie where the law has given another
specific remedy. 1 Wend. 318; 10 John. 484; 1 Cow. 417; Coleman, 117; 1 Pet.
567; 2 Cowen, 444; 2 M'Cord, 170; Minor, 46; 2 Leigh, 165; Const. Rep. 165,
5. The 13th section of the act of congress of September, 24, 1789, gives
the supreme court power to issue writs of mandamus in cases warranted by the
principles and usages of law, to any courts appointed or persons holding
office, under the authority of the United States. The issuing of a mandamus to
courts, is the exercise of an appellate jurisdiction, and, therefore
constitutionally vested in the supreme court; but a mandamus directed to a
public officer, belongs to original jurisdiction, and by the constitution, the
exercise of original jurisdiction by the supreme court is restricted to certain
specified cases, which do not comprehend a mandamus. The latter clause of the
above section, authorizing this writ to be issued by the supreme court, to
persons holding office under the authority of the United States, is, therefore,
not warranted by the constitution, and void. 1 Cranch, R. 175.
6. The circuit courts of the United States may also issue writs of
mandamus, but their power in this particular, is confined exclusively to those
cases in which it may be necessary to the exercise of their jurisdiction. 7
Cranch, R. 504; 8 Wheat. R. 598; 1 Paine's R. 453. Vide, generally, 3 Bl. Com.
110; Com. Dig. h. t; Bac. Ab. h. t.; Vin. Ab. h. t.; Selw. N. P. h. t.; Chit.
Pr. h. t.; Serg. Const. Index, h. t.; Ang. on Corp. Index, h. t.; 3 Chit. Bl.
Com. 265 n. 7; 1 Kent. Com. 322; Dane's Ab. Index, h. t.; 6 Watts & Serg.
386, 397; Bouv. Inst. Index, h. t.; and the article "Courts of the United
MANDANT. The principal in the contract of mandate is so called.
Story, Ag. 337.
MANDATARIUS. One who is entrusted with and undertakes to perform
a mandate. This word is used by the civilians in the same sense that we use
mandatary. Poth. du Mandat, n. 1.
MANDATARY, contracts. One who undertakes to perform a mandate.
Jones' Bailm. 53; Story on Bailm. 38. Dr. Halifax calls him mandatee. Halif.
Anal. Civ. Law, 70, 16, 17.
2. It is the duty of a mere mandatory, it is said, to take ordinary care
of the property entrusted to him. Vide Negligence. But it has been held that he
is liable only for gross negligence. 14 S. & R. 275; 2 Hawks, R. 145; 2
Murph. R. 373; 3 Dana, R. 205; 3 Mason, R. 132; 11 Wend, R. 25; Wright, R. 598;
1 Bouv. 1st. n. 1073.
MANDATE, practice. A judicial command or precept issued by a
court or magi- trate, directing the proper officer to enforce a judgment,
sentence or decree. Jones'. Bailm. 52; Story on Bailm. 137.
MANDATE. Mandatum or commission, contracts. Sir William Jones defines
a mandate to be a bailment of goods without reward, to be carried from
place to place, or to have some act performed about them. Jones' Bailm. 52; 2
Ld. Raym. 909, 913. This seems more properly an enumeration of the various
sorts of mandates than a definition of the contract. According to Mr. Justice
Story, it is a bailment of personal property, in regard to which the bailee
engages to do some act without reward. Bailm. 137. And Mr. Chancellor Kent
defines it to be when one undertakes, without recompense, to do some act for
the other in respect to the thing bailed. Comm. 443. See, for other
definitions, Story on Bailm. 137; Pothier, Pand. lib. 17, tit. 1; Wood's Civ.
Law, B. 3, c. 5, p. 242; Halifaz's Anal. of the Civ. Law, 70,; Code of Louis.
art. 2954; Code Civ. art. 1984; 1 Bouv. Inst. n. 1068.
2. From the very term of the definition, three things are necessary to
create a mandate. First, that there should exist something which should be the
matter of the contract; secondly, that it should be done gratuitously; and
thirdly, that the parties. should voluntarily intend to enter into the
contract. Poth. Pand. Lib. 17, tit. 1, p. 1, 1; Poth. Contr. de Mandat, c. 1,
3. There is no particular form or manner of entering into the contract
of mandate, prescribed either by the common law, or by the civil law, in order
to give it validity. It may be verbal or in writing; it may be express or
implied it may be in solemn form or in any other manner. Story on Bailm. 160.
The contract may be varied at the pleasure of the parties. It may be absolute
or conditional, general or special, temporary or permanent. Wood's Civ. Law,
242; 1 Domat, B. 1. tit. 15, 1, 6, 7, 8; Poth. Contr. de Mandat, c. 1, 3, n.
34, 35, 36.
4. As to the degree of diligence which the mandatory is bound to
exercise, see Mandatory; Negligence; Pothier, Mandat, h. t; Louis. Code, tit.
15 Code Civ. t. 13, c. 2 Story on Bailm. 163 to 195; 1 Bouv. Inst. n. 1073.
5. As to the duties and obligations of the mandator, see Story on Bailm.
196 to 201; Code Civ. tit. 13, c. 3; Louis. Code, tit. 15, c. 4; 1 Bouv. Inst.
6. The contract of mandate may be dissolved in various ways: 1. It may
be dissolved by the mandatary at any time before he has entered upon its
execution; but in this case, as indeed in all others, where the contract is
dissolved before the act is done which the parties intended, the property
bailed is to be restored to the mandator.
7. - 2. It may be dissolved by the death of the mandatory; for, being
founded in personal confidence, it is not presumed to pass to his
representatives, unless there is some special stipulation to that effect. But
this principally applies to cases where the mandate remains wholly unexecuted;
for if it be in part executed, there may in some cases, arise a personal
obligation on the part of the representatives to complete it. Story on Bailm.
202.; 2 Kent's Com. 504, 4; Pothier, Mandat, c. 4, 1, n. 101.
8. Whenever the trust is of a nature which requires united, advice,
confidence and skill of all, and is deemed a joint personal trust to all, the
death of one joint mandatary dissolves the contract as to all. See Story on
Bailm. 202; Co. Litt. 112, b; Id. 181, b; Com. Dig. Attorney, C 8; Bac. Abr.
Authority, C; 2 Kent's Com. 504 7 Taunt. 403.
9. The death of the mandator, in like manner, puts an end to the
contract. See 2 Mason's R. 342; 8 Wheat. R. 174; 2 Kent's Com. 507; 1 Domat, B.
1, tit. 15, 4, n. 6, 7, 8; Pothier, Contract de Mandat, c. 4, 2, n. 103. But
although an unexecuted mandate ceases with the death of the mandator, yet, if
it be executed in part at that time, it is binding to that extent, and his
representatives must indemnify the mandatory. Story on Bailm. 204, 205.
10. - 3. The contract of mandate may be dissolved by a change in the
state of the parties; as if either party becomes insane, or, being a woman,
marries before the execution of the mandate. Story on Bailm. 206; 2 Roper,
Husb. and Wife, 69, 73; Salk. 117; Bac. Abr. Baron and Feme, E; 2 Kent's Com.
11. - 4. It may be dissolved by a revocation of the authority, either by
operation of law, or by the act of the mandator.
12. It ceases by operation of law when the power of the mandator ceases
over the subject-matter; as, if he be a guardian, it ceases, as to his ward's
property, by the termination of the guardianship. Pothier, Contract de Mandat,
c. 4, 4, n. 112.
13. So, if the mandator sells the property, it ceases upon the sale, if
it be made known to the mandatory. 7 Ves. jr. 276; Story on Bailm. 207.
14. By the civil law the contract of mandate ceases by the revocation of
the authority. Story on Bailm. 208; Code Civ. art. 2003 to 2008; Louis, Code,
15. At common law, the party giving an authority is generally entitled
to revoke it. See 5 T. R. 215; Wallace's R. 126; 5 Binn. 316. But, if it be
given as a part of a security, as if a letter of attorney be given to collect a
debt, as a security for money advanced, it is irrevocable by the party,
although revoked by death. 2 Mason's R. 342; 8 Wheat. 174; 2 Esp. R. 365; 7
Ves. 28; 2 Ves. & Bea. 51; 1 Stark. R. 121; 4 Campb. 272.
MANDATE, civil law. Mandates were the instructions which the
emperor addressed to public functionaries, which were to serve as rules for
their conduct. 2. These mandates resembled those of the pro-consuls, the
mandata jurisdictio, and were ordinarily binding on the legates or lieutenants
of the emperor of the imperial provinces, and, there they had the authority of
the principal edicts. Sav. Dr. Rom. ch. 3, 24, n. 4
. MANDATOR, contracts. The person employing another to perform a
mandate. Story on Bailm. 138; 1 Brown, Civ. Law, 382; Halif. Anal. Civ. Law,
MANDAVI BALLIVO, English law. The return made by a sheriff, when
he has committed the execution of a writ to a bailiff of a liberty, who has the
right to execute the writ.
MANHOOD. The ceremony of doing homage by the vassal to his lord
was de- nominated homagium or manhood, by the feudists. The formula used was
devenio vester homo, I become you Com. 54. See Homage.
MANIA, med. jur. This subject will be considered by examining
it, first, in a medical point of view; and, secondly, as to its legal
2. - 1. Mania may be divided into intellectual and moral.
1. Intellectual mania is that state of mind which is characterised by
certain hallucinations, in which the patient is impressed with the reality of
facts or events which have never occurred, and acts in accordance with such
belief; or, having some notion not altogether unfounded, carries it to an ex-
travagant and absurd length. It may be considered as involving all or most of
the operations of the understanding, when it is said to be general; or as
be-ing confined to a particular idea, or train of ideas, when it is called
3. These will be separately examined. 1st. General intellectual mania is
a disease which presents the most chaotic confusion into which the human mind,
can be involved, and is attended by greater disturbance of the functions of the
body than any other. According to Pinel, Traite d'Alienation Mentale, p. 63,
"The patient sometimes keeps his head elevated and his looks fixed on. high; he
speaks in a low voice, or utters cries and vociferations without any apparent
motive; he walks to and fro, and sometimes arrests his steps as if fixed by the
sentiment of admiration, or wrapt up in profound reverie. Some insane persons
display wild excesses of merriment, with immoderate bursts of laughter.
Sometimes also, as if nature delighted in contrasts, gloom and taciturnity
prevail, with involuntary showers of tears, or the anguish of deep sorrow, with
all the external signs of acute mental suffering. In certain cases a sudden
reddening of the eyes and excessive loquacity give presage of a speedy
explosion of violent madness and the urgent necessity of a strict confinement.
One lunatic, after long intervals of calmness, spoke at first with volubility,
uttered frequent shouts of laughter, and then shed a torrent of tears;
experience had taught the necessity of shutting him up immediately, for his
paroxysms were at such times of the greatest violence. "Sometimes, however, the
patient is not altogether devoid of intelligence; answers some questions very
appropriately, and is not destitute of acuteness and ingenuity. The derangement
in this form of mania is not confined to the intellectual facul-ties, but not
unfrequently extends to the moral powers of the mind.
4. - 2d. Partial intellectual mania is generally known by the name of
monomania. (q. v.) In its most usual and simplest form, the patient has
conceived some single notion contrary to common sense and to common experience,
generally dependent on errors of sensation; as, for example, when a person
believes that he is made of glass, that animals or men have taken their abode
in his stomach or bowels. In these cases the understanding is frequently found
to be sound on all subjects, except those connected with the hallucination.
Sometimes, instead of being limited to a single point, this disease takes a
wider range, and there is a class of cases, where it involves a train of morbid
ideas. The patient then imbibes some notions connected with the various
relations of persons, events, time, space, &c., of the most absurd and
unfounded nature, and endeavors, in some measure, to regulate his conduct
accordingly; though, in most respects, it is grossly inconsistent with his
5. Moral mania or moral insanity, (q. v.) is divided into, first,
general, where all the moral faculties are subject to a general disturbance and
secondly, partial, where one or two only of the moral powers are perverted.
6. These will be briefly and separately examined. 1st. It is certain
that many individuals are living at large who are affected, in a degree at
least, by general moral mania. They are generally of singular habits, wayward
temper, and eccentric character; and circumstances are frequently attending
them which induce a belief that they are not altogether sane. Frequently there
is a hereditary tendency to madness in the family; and, not seldom, the
individual himself has at a previous period of life sustained an attack of a
decided character: his temper has undergone a change, he has become an altered
man, probably from the time of the occurrence of something which deeply
affected him, or which deeply affected his bodily constitution. Sometimes these
alterations are imperceptible, at others, they are sudden and immediate.
Individuals afflicted with this disease not unfrequently "perform most of the
common duties of life with propriety, and some of them, indeed, with scrupulous
exactness, who exhibit no strongly marked features of either temperament, no
traits of superior or defective mental endowment, but yet take violent an-
tipathies, harbor unjust suspicions, indulge strong propensities, affect
singularity in dress, gait, and phraseology; are proud, conceited, and
ostentatious; easily excited and with difficulty appeased; dead to sensi-
bility, delicacy, and refinement; obstinately riveted to the most absurd
opinions; prone to controversy, and yet incapable of reasoning; always the hero
of their own tale, using hyperbolic, high flown language to express the most
simple ideas, accompanied by unnatural gesticulation, inordinate ac- tion, and
frequently by the most alarming expression of countenance. On some occasions
they suspect sinister intentions on the most trivial grounds; on others are a
prey to fear and dread from the most ridiculous and imaginary sources; now
embracing every opportunity of exbibiting romantic courage and feats and
hardihood, then indulging themselves in all manner of excesses. Persons of this
description, to the casual observer, might appear actuated by a bad heart, but
the experienced physician knows it is the head which is defective. They seem as
if constantly affected by a greater or less degree of stimulation from
intoxicating liquors, while the expression of countenance furnishes an
infallible proof of mental disease. If subjected to moral re- straint, or a
medical regimen, they yield with reluctance to the means proposed, and
generally refuse and resist, on the ground that such means are unnecessary
where no disease exists; and when, by the system adopted, they are so far
recovered, as to be enabled to suppress the exhibition of their former
peculiarities, and are again fit to be restored to society, the physician, and
those friends who put them under the physician's care, are generally ever after
objects of enmity, and frequently of revenge." Cox, see cases of this Pract.
Obs. on Insanity, kind of madness cited in Ray, Med. Jur. 112 to 119; Combe's
Moral Philos. lect. 12.
7 .- 2d. Partial moral mania consists in the derangement of one or a few
of the affective faculties, the moral and intellectual constitution in other
respects remaining in a sound state. With a mind apparently in full possession
of his reason, the patient commits a crime, without any extraordinary
temptation, and with every inducement to refrain from it, he appears to act
without a motive, or in opposition to one, with the most perfect consciousness
of the impropriety, of his conduct, and yet he pursues perseveringly his mad
course. This disease of the mind manifests itself in a variety of ways, among
which may be mentioned the following: 1. An irresistible propensity to steal.
2. An inordinate propensity to lying. 3. A morbid activity of the sexual
propensity. Vide Erotic Mania. 4. A morbid propensity to commit arson. 5. A
morbid activity of the propensity to destroy. Ray, Med. Jur. ch. 7.
8. - 2. In general, persons laboring under mania are not responsible nor
bound for their acts like other persons, either in their contracts or for their
crimes, and their wills or testaments are voidable. Vide Insanity; Moral
Insanity. 2 Phiilim. Ecc. R. 69; 1 Hagg. Cons: R. 414; 4 Pick. R. 32; 3 Addams,
R. 79; 1 Litt. R. 371.
MANIA A POTU. Insanity arising from the use of spirituous
liquors. Vide Delirium Tremens.
MANIFEST, com. law. A written instrument containing a true
account of the cargo of a ship or commercial vessel.
2. The Act of March 2, 1799, s. 23, requires that when goods, wares, or
mer- chandise, shall be brought into the United States, from any foreign port
or place, in any ship or vessel, belonging, in whole or in part to a citizen or
inhabitant of the United States, the manifest shall be in writing, signed by
the master of the vessel, and that it shall contain the names of the places
where the goods in such manifest mentioned, shall have been respectively taken
on board, and the places within the United States, for which they are respec
tively consigned, particularly noticing the goods destined for each place,
respectively; the name, description, and build of such vessel, and her true
admeasurement or tonnage, the place to which she belongs, with the name of each
owner, according to her register, the name of her master, and a just and
particular account of the goods so laden on board, whether in package or stowed
loose, of any kind whatsoever, with the marks and numbers on each package, the
numbers and descriptions of the packages in words at length, whether leaguer,
pipe, butt, puncheon, hogshead, barrel, keg, case, bale, pack, truss, chest,
box, bandbox, bundle, parcel, cask, or package of any kind, describing each by
its usual denomination; the names of the persons to whom they are respectively
consigned, agreeably to the bills of lading, unless when the, goods are
consigned to order, when it shall be so expressed; the names of the several
passengers on; board, distinguishing whether cabin or steerage passengers, or
both, with their baggage, specifying the number and description of packages
belonging to each, respectively; together with an account of the remaining sea
stores, if any. And if any merchandise be imported, destined for different
districts, or ports, the quantities and packages thereof shall be inserted in
successive order in the manifest; aud all spirits, wines aud teas, constituting
the whole or any part of the cargo of any vessel, shall be inserted in
successive order, distinguishing the ports to which they may be destined, and
the kinds, qualities and quantities thereof; and if merchandise be imported by
citizens or inhabitants of the United States, in vessels other than of the
United States, the manifests shall be of the form and shall contain the
particulars aforesaid, except that the vessel shall be specially described as
provided by a form in the act. 1 Story's Laws, 593, 594.
3. The want of a manifest, where one is required, or when it is false,
is severely punished.
MANIFEST, evidence. That which is clear and requires no proof;
that which is noto- rious. See Notoriety.
MANIFESTO. A solemn declaration, by the constituted authorities
of a nation, which contains the reasons for its public acts towards
2. On the declaration of war, a manifesto is usually issued in which the
nation declaring the war, states the reasons for so doing. Vattel, liv. 3, c.
4, 64; Wolff, 1187. See Anti-Manifesto.
MANKIND. Persons of the male sex; but in a more general sense,
it includes persons of both sexes; for example, the statute of 25 Hen. VIII.,
c. 6, makes it felony to commit, sodomy with mankind or beast. Females as well
as males axe included under the term mankind. Fortesc. 91; Bac. Ab. Sodomy. See
MANNER AND FORM, pleading. After traversing any allegation in
pleading, it is usual to say "in manner and form as he has in his declaration
in that behalf alleged," which is as much as to include in the traverse, not
only the mere fact opposed to it, but that in the manner and form in which it
is stated by the other party. These words, however, only put in issue the
substantial statement of the manner of tho fact traversed, and do not extend to
the time, place, or other circumstances attending it, if they were not
originally material and necessary to be proved as laid. 3 Bouv. Inst. p. 297.
See Modo et forma.
MANNOPUS. An ancient word which signifies goods taken in the
hands of an ap- prehended thief.
MANOR, estates. This word is derived from the French manoir, and
signifies, a house, residence, or habitation. At present its meaning is more
enlarged, and includes not only a dwelling-house, but also lands. Vide Co.
Litt. 58, 108; 2 Roll. Ab. 121 Merl. Repert. mot Manoir. See Serg. Land Laws of
2. By the English law, a manor is a tract of land originally granted by
the king to a person of rank, part of which was given by the grantee to his
followers, and the rest lie retained under the name of his demesnes; that which
remained uncultivated was called the lord's waste, and served for public roads
and common of pasture for the lord and his tenants.
MANSION. This term is synonymous with house. (q. v.) 1 Chit. Pr.
167; 2 T. R. 502; 1 Tho. Co. Litt. 215, n. 35; 9 B. & C. 681; S. C. 17 E.
C. L. R. 472, and the cases there cited; Com. Dig. Justices, P 5; 3 Serg. &
Rawle, 199. A portion only of a building may come under the description of a
mansion-house. 1 Leach, 89, 428; 1 East, P. C. C. 15, s. 19. 2 Bouv. Inst. n.
MANSLAUGHTER, crim. law. The unlawful killing of another without
malice either express or implied. 4 Bl. Com. 190 1 Hale, P. C. 466. The
distinctions between manslaughter and murder, consists in the following. In the
former, though the act which occasions the death be unlawful, or likely to be
attended with bodily mischief, yet the malice, either express or implied, which
is the very essence of murder, is presumed to be wanting in manslaughter. 1
East, P. C. 218 Foster, 290.
2. It also differs from murder in this, that there can be no accessaries
before the fact, there having been no time for premeditation. 1 Hale, P. C.
437; 1 Russ. Cr. 485. Manslaugbter is voluntary, when it happens upon a sudden
heat; or involuntary, when it takes place in the commission of some unlawful
3. The cases of manslaughter may be classed as follows those which take
place in consequence of, 1. Provocation. 2. Mutual combat. 3. Resistance to
public officers, &c.
4. Killing in the prosecution of an unlawful or wanton act. 5. Killing
in the prosecution of a lawful act, improperly performed, or performed without
4. - 1. The provocation which reduces the killing from murder to
manslaughter is an answer to the presumption of malice which the law raises in
every case of homicide; it is therefore no answer when express malice is
proved. 1 Russ. Cr, 440; Foster, 132; 1 East, P. C. 239; and to be available
the provocation must have been reasonable and recent, for no words or slight
provocation will be sufficient, and if the party, has had time to cool, malice
will be inferred.
5. - 2. In cases of mutual combat, it is generally manslaughter only
when one of the parties is killed. When death ensues from duelling the rule is
different, and such killing is murder.
6. - 3. The killing of an officer by resistance to him while acting
under lawful authority is murder; but if the officer be acting under a void or
illegal authority, or out of his jurisdiction, the killing is manslaughter, or
excusable homicide, according to the circumstances of the case. 1 Moody, C. C.
80, 132; 1 Hale, P. C. 458; 1 East, P. C. 314; 2 Stark. N. P. C. 205; S. C. 3
E. C. L. R. 315.
7. - 4. Killing a person while doing an act of mere wantonness, is
manslaughter as, if a person throws down stones in a coal-pit, by which a man
is killed, although the offender was only a trespasser. Lewin, C. C. 179.
8. - 5. When death ensues from the performance of a lawful act, it may,
in consequence of the negligence of the offender, amount to manslaughter. For
instance, if the death has been, occasioned by negligent driving. 1 East, P. C.
263; 1 C. & P. 320 S. C. 9 E. C. L. R. 408; 6 C. & P. 629; S. C. 25 E.
C. L. R. 569. Again, when death ensues, from the gross negligence of a medical
or surgical practitioner, it is manslaughter. 1 Hale, P. C. 429; 3 C. & P.
632; S. C. 14 E, C. L. R. 495.
MANSTEALING. This word is sometimes used synonymously with
kidnapping. The latter is more technical. 4 Bl. Com. 219.
MANU FORTI. With strong hand. (q. v.) This term is used in
pleading in cases of forcible entry, and no other words are of equal import.
Dane's Ab. ch. 132, a. 6; ch. 203, a. 12.
MANU OPERA. This has the same meaning with mannopus. (q. v.)
MANUAL. That which is employed or used by the hand, of which a
present profit may be made. Things in the manual occupation of the owner cannot
be distrained for rent. Vide Tools.
MANUCAPTIO, practice. In the English law it is a writ which lies
for a man taken on suspicion of felony and the like, who cannot be admitted to
bail by the sheriff, or others having power to let to mainprise. F. N. B.
MANUCAPTORS. The same as mainpernors. (q. v.)
MANUFACTURE. This word is used in the English and American patent
laws. This term includes two classes of things; first, all machinery which
is to be used and is not the object of sale; and, secondly, substances (such,
for example, as medicines) formed by chemical processes, when the vendible
substance is the thing produced, and that which operates preserves no permanent
form. In the first class, the machine, and, in the second the substance
produced, is the subject of the patent. 2 H. Bl. 492. See 8 T. R. 99; 2 B.
& A. 349; Day. Pat. Cas. 278; Webst. on Pat. 8; Phil. on Pat. 77; Perp.
Manuel des Inv. c. 2, s. 1; Renouard, c. 5, s. 1; Westminster Review, No. 44,
April 1835, p. 247; 1 Bell's Com., B. 1, part 2, c. 4, s. 1, p. 110, 6th
MANUMISSION, contracts. The agreement by which the owner or
master of a slave sets him free and at liberty; the written instrument which
contains this agreement is also called a manumission.
2. In the civil law it was different from emancipation, which, properly
speaking, was applied to the liberation of children from paternal power. Inst.
liv. 1, t. 5 & 12; Co. Litt. 137, a; Dane's Ab. h. t.
MANURE, Dung. When collected in a heap, it is considered as
personal property, but, when spread, it becomes a part of the land and acquires
the character of real estate. Alleyn, 31; 2 Ired. R. 326.
MANUS. Anciently signified the person taking an oath as a
compurgator. The use of this word probably came from the party laying his hand
on the New Testament. Manus signifies, among the civilians, power, and is
frequently used as synonymous with potestas. Lec. El. Dr. Rom. 94.
MANUSCRIPT. A writing; a writing which has never been
2. The act of congress securing to authors a copyright passed February
3, 1831, sect. 9, protects authors in their manuscripts, and renders any person
who shall unlawfully publish a manuscript liable to an action, and authorizes
the courts to enjoin the publisher. See Copyright. The right of the author, to
his manuscripts, at common law, cannot be contested. 4 Burr. 2396; 2 Eden, Ch.
R. 329; 2 Story, R. 100; 2 Atk. 342; Ambl. 694; 2 B. & A. 290; 2 Story, Eq.
Jur. 943; Eden, Inj. 322; 2 B. & A. 298; 2 Bro. P. C. (Toml ed.) 138; 4
Vin. Ab. 278; 2 Atk. 342; 2 Ves. & B. 23. These rights will be considered
as abandoned if the author publishes his manuscripts, without securing the
copyright under the acts of congress. See Bouv. Inst. Index, h. t.;
MARAUDER. One who, while employed in the army as a soldier,
commits a larceny or robbery in the neighborhood of the camp, or while
wandering away from the army. Merl. Repert. h. t.
MARC-BANCO. The name of a coin. The marc-banco of Hamburg, as money
of account, at the custom-house, is deemed and taken to be of the value of
thirty-five cents. Act of March 3, 1843.
MARCHES, Eng. law. This word signifies the limits, or confines,
or borders. Bac. Law Tracts, tit. Jurisdiction of the. Marches, p. 246. It was
applied to the limits between England and Wales or Scotland. In Scotland the
term marches is applied to the boundaries between private properties.
MARETUM. Marshy ground overflowed by the sea or great rivers.
Co. Litt. 5.
MARINARIUS. An ancient word which signified a mariner or seaman;
in England marinarius capitaneus, was the admiral or warden of the ports.
MARINE. Whatever concerns the navigation of the sea, and forms
the naval power of a nation is called its marine.
MARINE CONTRACT. One which relates to business done or
transacted upon the sea and in sea ports, and over which the courts of
admiralty have jurisdiction concurrent with the courts of common law; such
contracts include according to civilians and jurists among other things,
charter parties, affreightments, marine hypothecations, contracts for the
marine service in the building, re-pairing, supplying and navigating ships;
contracts and quasi contracts respec- ting averages, contributions and
jettisons, and policies of insurance. 2 Gall. R. 398, where Judge Story gave a
very learned opinion on the subject.
MARINE INSURANCE, contracts. A contract by which one party, for
a stipulated premium, undertakes to indemnify the other, against all perils or
sea risks, to which his ship; freight or cargo, or some of them, may be
exposed, during a certain voyage or fixed period of time. 1 Bouv. Inst. n.
1175, et seq. See Insurance Marine.
MARINE INTEREST, contracts. A compensation paid for the use and
risk of money loaned on respondentia and bottomry; provided the money be loaned
and put in risk, there is no limit as to the amount which may be lawfully
charged by the lender. 2 Marsh. Ins. 749; Hall on Mar. Loans; Pothier, Pret a.
la Grosse, n. 19; 1 Stuart's (L. C.) R. 130.
MARINE LEAGUE. A measure equal to the twentieth part of a
degree. Bouch. Inst. n. 1845, not. Vide Cannon Shot; Sea.
MARINER. One whose occupation is to navigate vessels on the sea.
Vide Seamen Shipping articles.
2. By act of congress, 1 Story, Laws of U. S., ch. 56, s. 4, p. 109, it
is provided, that no sum exceeding one dollar shall be recovered from any
seaman or mariner (in the merchant service,) by any person, for any debt
contracted during the time such seaman or mariner shall actually belong to any
ship or vessel, until the voyage for which such seaman or mariner engaged,
shall be ended.
MARITAGIUM. Anciently that portion which was given with a
daughter in marriage.
2. During the existence of the feudal law, it was the right which the
lord of the fee had, under certain tenures, to dispose of the daughters of his
vassal in marriage. By this word was also understood marriage. Beames' Glanv.
138, n; Bract. 21 a; Spelm. Gl. ad voc.; 2 Bl. Com. 69; Co. Litt. 21 b, 76
MARITAL. That which belongs to marriage; as marital rights,
2. Contracts made by a feme sole with a view to deprive her intended
husband of his marital rights, with respect to her property, are a fraud upon
him, and may be set aside in equity. By the marriage, the husband assumes the
duty of paying her debts, contracted previous to the coverture, and of
supporting her during its existence; and he cannot, therefore, be fraudulently
deprived, by the intended wife, of those rights which enable him to perform the
duties which attach to him. 2 Cha. R. 42; Newl. Contr. 424; 1 Vern. 408; 2
Vern. 17; 2 P. Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves. jr. 22; 2 Cox, R. 28; 2
Beav. 528; 2 Ch. R. 81; White's. L. C. in Eq. *277; 1 Hill, Ch. R. 1, 4; 13
Maine, R. 124; 1 McMull. Eq. R. 237 3 Iredell's Eq. R. 487; 4 Wash. C. C. R.
MARITAL PORTION. In Louisiana, this name is given to that part
of a deceased husband's estate, to which the widow is entitled. Civil Code,
334, art. 55; 3 Mart. N. S. 1.
MARITIME. That which belongs to or is connected with the
MARITIME CAUSE. Maritime causes are those arising from maritime
contracts, whether made at sea or on land, that is, such as relate to the
commerce, business or navigation of the sea; as, charter parties,
affreightments, marine loans, hypothecations, contracts for maritime service in
building, repairing, supplying and navigating ships, contracts and quasi
contracts respecting averages, contributions and jettisons; contracts relating
to marine insurance, and those between owners of ships. 3 Bouv. Inst. n.
2. There are maritime causes also for torts and injuries committed at
3. In general, the courts of admiralty have a concurrent jurisdiction
with courts of law, of all maritime causes: and in some cases they have
MARITIME CONTRACT. One which relates to the navigation of the
2. The admiralty has jurisdiction in case of the breach of such
contract, whether it has been entered into on land or at sea. 4 Wash. C. C. R.
453; see 2 Gallis. 465; 2 Sumn. 1; Gilp. 529.
MARITIME LAW. That system of law which relates to the affairs of
the sea, such as seamen, ships, shipping, navigation, and the like.
MARITIME LOAN. A contract or agreement by which one, who is the
lender, lends to another, who is the borrower, a certain sum of money, upon
condition that if the thing upon which the loan has been made, should be lost
by any peril of the sea, or vis major, the lender shall not be repaid, unless
what remains shall be equal to the sum borrowed; and if the thing arrive in
safety, or in case it shall not have been injured, but by its own defects or
the fault of the master or mariners, the borrower shall be bound to return the
sum borrowed, together with a certain sum agreed upon as the price of the
hazard incurred. Emer. Mar. Loans, c. 1, s. 2; Poth. h. t. Vide Bottomry; Gross
Adventure; Interest, maritime; Respondentia.
MARITIME PROFIT, mar. law. The French writers use the term
maritime profit to signify any profit derived from a maritime lean. Vide
MARK. This term has several acceptations. 1. It is a sign traced
on paper or parchment, which stands in the place of a signature, usually made
by persons who cannot write. 2 Cart. R. 324; M. & M. 516; 12 Pet. 150; 7
Bing. 457; 2 Ves. 455; 1 V. & B. 362; 1 Ves., jr. 11. A mark is now held to
be a good signature, though the party was able to write. 8 Ad. & El. 94; 3
Nev. & Per. 228; 3 Curt. 752; 5 John. 144. Vide Subscription.
2. - 2. It is the sign, writing or ticket put upon manufactured goods to
distinguish them from others. Poph. R. 144; 3 B & C. 541; 2 Atk. R. 485; 2
V. & B. 218; 3 M. & C. 1; Ed. Inj. 814. Vide Trade Marks.
3. - 3. Mark or marc, denotes a weight used in several parts of Europe,
and for several commodities, especially gold and silver. When gold and silver
are sold by the mark, it is divided into twenty-four carats.
4. - 4. Mark is also in England a money of accounts, and in some other
countries a coin. The English marc is two-thirds of a pound sterling, or 13s.
4d., and the Scotch mark is of equal value in Scotch money of account. Encyc.
Amer. h. t.
MARKET. A public place appointed by public authority, where all
sorts of things necessary for the subsistence, or for the conveniences of life,
2. Markets are generally regulated by local laws.
3. By the term market is also understood the demand there is for any
particular article; as, the cotton market in Europe is dull. Vide 15 Vin. Ab.
42; Com. Dig. h. t.
MARKET OVERT, Engl. law. Market overt is an open or public
market; that is, a place appointed by law or custom for the sale of goods and
chattels at stated times in public.
2. In London, every day except Sunday, is market day. In the country,
particular days are fixed for market days. 2 Bl. Com. 449.
3. It is a general rule that sales of vendible articles made in market
overt, are good not only between the parties, but are also binding on all those
who have any property or right therein. Id. 2 Chitt. Com. Law, 148 to 154; Com.
Dig. Market, E; Bac. Abr. Fairs and Market, E; 5 B. & A. 624; Dane's Abr.
chap. 45, a 2.
4. There is no law recognizing the effect of a sale in market overt in
Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130; in New York; 1 Johns,
480; in Massachusetts; 8 Mass. R. 521; 14 Mass. R. 500; in Ohio; 5 Ohio, R.
203; nor in Vermont. 1 Tyl. R. 341; nor indeed in any of the United States. 10
MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52
Hen. III, A. D. 1267, so called because it was enacted at Marlebridge. Barr. on
MARQUE AND REPRISAL. The name given to a commission granted by
the supreme power of a state to a private person for the purpose of seizing the
property of a foreign state or its subjects. Wheat. Law of Nations, 340. Vide
Letters of Marque.
MARRIAGE. A contract made in due form of law, by which a free
man and a free woman reciprocally engage to live with each other during their
joint lives, in the union which ought io exist between husband and wife. By the
terms freeman and freewoman in this definition are meant, not only that they
are free and not slaves, but also that they are clear of all bars to a lawful
marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1; Shelford
on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to contract,
Able to contract, and have actually contracted.
3. - 1. They must be willing to contract. Those persons, therefore, who
have no legal capacity in point of intellect, to make a contract, cannot
legally marry, as idiots, lunatics, and infant; males under the age of
fourteen, and females under the age of twelve, and when minors over those ages
marry, they must have the consent of their parents or guardians.
4. There is no will when the person is mistaken in the party whom he
intended to marry; as, if Peter intending to marry Maria, through error or
mistake of person, in fact marries Eliza; but an error in the fortune, as if a
man marries a woman whom he believes to be rich, and he finds her to be poor;
or in the quality, as if he marry a woman whom he took to be chaste, and whom
he finds of an opposite character, this does not invalidate the marriage,
because in these cases the error is only of some quality or accident, and not
in the person. Poynt. on Marr. and Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear that
there is no consent; it is, therefore, void ab initio, and may be treated as
null by every court in which its validity may incidentally be called in
question. 2 Kent, Com. 66; Shelf. on Marr. and Div. 199; 2 Hagg. Cons. R. 246;
5 Paige, 43.
6. - 2. Generally, all persons who are of sound mind, and have arrived
to years of maturity, are able to contract marriage. To this general rule,
however, there are many exceptions, among which the following may be
7. - 1. The previous marriage of the party to another person who is
8. - 2. Consanguinity, or affinity between the parties within the
prohibited degree. It seems that persons in the descending or ascending line,
however remote from each other, cannot lawfully marry; such marriages are
against nature; but when we come to consider collaterals, it is not so easy to
fix the forbidden degrees, by clear and established principles. Vaugh. 206; S.
C. 2 Vent. 9. In several of the United States, marriages within the limited
degrees are made void by statute. 2 Kent, Com. 79; Vide Poynt. on Marr. and
Div. ch. 7.
9. - 3. Impotency, (q. v.) which must have existed at the time of the
marriage, and be incurable. 2 Phill. Rep. 10; 2 Hagg. Rep. 832.
10. - 4. Adultery. By statutory provision in Pennsylvania, when a person
is convicted of adultery with another person, or is divorced from her husband,
or his wife, he or she cannot afterwards marry the partner of his or her guilt.
This provision is copied from the civil law. Poth. Contr. de Mariage, part 3,
c. 3, art. 7. And the same provision exists in the French code civil, art. 298.
See 1 Toull. n. 555.
11. - 3. The parties must not only be willing and able, but must have
actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid
celebration of marriage. The consent of the parties is all that is necessary,
and as marriage is said to be a contract jure gentium, that consent is all that
is needful by natural or public law. If the contract be made per verba de
presenti, or if made per verba de futuro, and followed by consummation, it
amounts to a valid marriage, and which the parties cannot dissolve, if
otherwise competent; it is not necessary that a clergyman should be present to
give validity to the marriage; the consent of the parties may be declared
before a magistrate, or simply before witnesses; or subsequently confessed or
acknowledged, or the marriage may even be inferred from continual cohabitation,
and reputation as husband and wife, except in cases of civil actions for
adultery, or public prosecutions for bigamy. 1 Silk. 119; 4 Burr. 2057; Dougl.
171; Burr. Settl. Cas. 509; 1 Dow, 148; 2 Dow, 482; 4 John. 2; 18 John. R. 346;
6 Binn, 405; 1 Penn. R. 452; 2 Watts, R. 9. But a promise to marry at a future
time, cannot, by any process of law, be converted into a marriage, though the
breach of such promise will be the foundation of an action for damages.
13. In some of the states, statutory regulations have been made on this
subject. In Maine and Massachusetts, the marriage must be made in the presence,
and with the assent of a magistrate, or a stated or ordained minister of the
gospel. 7 Mass. Rep. 48; 2 Greenl. Rep. 102. The statute of Connecticut on this
subject, requires the marriage to be celebrated by a clergyman or magistrate,
and requires the previous publication of the intention of marriage, and the
consent of parents; it inflicts a penalty on those who disobey its regulations.
The marriage, however, would probably be considered valid, although the
regulations of the statutes had not been observed. Reeve's Dom. Rel. 196, 200,
290. The rule in Pennsylvania is, that the marriage is valid, although the
directions of the statute have not been observed. 2 Watts, Rep. 9; 1 How. S. C.
R. 219. The same rule probably obtains in New Jersey; 2 Halsted, 138; New
Hampshire; 2 N. H. Rep. 268; and Kentucky. 3 Marsh. R. 370. In Louisiana, a
license must be obtained from the parish judge of the parish in which at least
one of the parties is domiciliated, and the marriage must be celebrated before
a priest or minister of a religious sect, or an authorized justice of the
peace; it must be celebrated in the presence of three witnesses of full age,
and an act must be made of the celebration, signed by the person who celebrated
the marriage, by the parties and the witnesses. Code, art. 101 to 107. The 89th
article of the Code declares, that such marriages only are recognized by law,
as are contracted and solemnized according to the rules which it prescribes.
But the Code does not declare null a marriage not preceded by a license, and
not evidenced by an act signed by a certain number of witnesses and the
parties, nor does it make such an act exclusive evidence of the marriage. The
laws relating to forms and ceremonies are directory to those who are authorized
to celebrate marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would, in
general, be held good in this country, unless when it would work injustice, or
be contra bonos mores, or be repugnant to the settled principles and policy of
our laws. Story, Confl. of Laws, 87; Shelf. on M. & D. 140; 1 Bland. 188; 2
Bland. 485; 3 John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure till the
death of one of the contracting parties. It is dissolved by death or
16. In some cases, as in prosecutions for bigamy, by the common law, an
actual marriage must be proved in order to convict the accused. See 6 Conn. R.
446. This rule is much qualified. See Bigamy.
17. But for many purposes it may be proved by circumstances; for
example, cohabitation; acknowledgment by the parties themselves that they were
married; their reception as such by their friends and relations; their
correspondence, on being casually separated, addressing each other as man and
wife; 2 Bl. R. 899; declaring, deliberately, that the marriage took place in a
foreign country; 2 Moo. & R. 503; describing their children, in parish
registers of baptism, as their legitimate offspring; 2 Str. 1073; 8 Ves. 417;
or when the parties pass for husband and wife by common reputation. 1 Bl. R.
639; S. C. 4 Burr. 2057; Dougl. 174; Cowp. 594; 3 Swans. R. 400; 8 S. & R.
159; 2 Hayw. R. 3; 1 Taylor, R. 121; 1 H. & McH. 152; 2 N. & McC. 114;
5 Day, R. 290; 4 R. & M. 507; 9 Mass. R. 414; 4 John. 52; 18 John. 346.
After their death, the presumption is generally conclusive. Cowp. 591; 6 T. R.
18. The civil effects of marriage are the following: 1. It confirms all
matrimonial agreements between the parties.
19. - 2. It vests in the husband all the personal property of the wife,
that which is in possession absolutely, and choses in action, upon the
condition that he shall reduce them to possession; it also vests in the husband
right to manage the real estate of the wife, and enjoy the profits arising from
it during their joint lives, and after her death, an estate by the curtesy when
a child has been born. It vests in the wife after the husband's death, an
estate in dower in the husband's lands, and a right to a certain part of his
personal estate, when he dies intestate. In some states, the wife now retains
her separate property by statute.
20. - 3. It creates the civil affinity which each contracts towards the
relations of the other.
21. - 4. It gives the husband marital authority over the person of his
22. - 5. The wife acquires thereby the name of her husband, as they are
considered as but one, of which he is the head: erunt duo in carne
23. - 6. In general, the wife follows the condition of her husband.
24. - 7. The wife, on her marriage, loses her domicil and gains that of
25. - 8. One of the effects of marriage is to give paternal power over
26. - 9. The children acquire the domicil of their father.
27. - 10. It gives to the children who are the fruits of the marriage,
the rights of kindred not only with the father and mother, but all their
28. - 11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h. t.; Com.
Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr. 194; Ayl. Parergon, 359; 1
Bro. Civ. Law, 94; Rutherf. Inst. 162; 2 Supp. to Ves. jr. 334; Roper on
Husband & Wife; Poynter on Marriage and Divorce; Merl. Repert. h. t.;
Pothier, Traite du Contrat de Marriage; Toullier, h. t.; Chit. Pract.
Index, h. t.; Dane's Ab. Index, h. t., Burge on the Confl. of Laws, Index, h.
t.; Bouv. Inst. Index, h. t.
MARRIAGE BROKAGE. By this expression is meant the act by which a
person interferes, for a consideration to be received by him, between a man and
a woman, for the purpose of promoting a marriage between them. The money paid
for such service is also known by this name.
2. It is a doctrine of the courts of equity that all marriage brokage
contracts are utterly void, as against public policy; and are, therefore,
incapable of confirmation. 1 Fonb. Eq. B. 1, ch. 4, s. 10, note a; 1 Story, Eq.
Jur. 263; Newl. on Contr. 469.
MARRIAGE PORTION. That property which is given to a woman on her
marriage. Vide Dowry.
MARRIAGE, PROMISE OF. A promise of marriage is a contract
entered into between a man and woman that they will marry each other.
2. When the promise is made between persons competent to contract
matrimony, an action lies for a breach of it. Vide Promise of Marriage.
MARRIAGE SETTLEMENT. An agreement made by the parties in
contemplation of marriage by which the title to certain property is changed,
and the property to some extent becomes tied up, and is rendered inalienable.
Rice's Eq. R. 315. See 2 Hill, Ch. R. 3; Ril. Ch. Cas. 76; 8 Leigh, 29; 1 Dev.
& Bat. Eq. 389; 2 Dev. & Bat. Eq. 103; 1 Bald. 344; 15 Mass. 106; 1
Yeates, 221; 7 Pet. 348; 4 Bouv. Inst. n. 3947. Vide Settlement, Contracts.
MARSHAL. An officer of the United States, whose duty it is to
execute the process of the courts of the United States. His duties are very
similar to those of a sheriff.
2. It is enacted by the act to establish the judicial courts of the
United States, 1 Story's L. U. S. 53, as follows:
27. That a marshal shall be appointed, in and for each district, for the
term of four years, but shall be removable from office at pleasure whose duty
it shall be to attend the district and circuit courts, when sitting therein,
and also the supreme court in the district in which that court shall sit: and
to execute throughout the district, all lawful precepts directed to him, and
issued under the authority of the United States, and he shall have power to
command all necessary assistance in the execution of his duty, and to appoint,
as there shall be occasion, one or more deputies, who shall be removable from
office by the judge of the district court, or the circuit court sitting within
the district, at the pleasure of either. And before he enters on the duties of
his office, he shall become bound for the faithful performance of the same, by
himself and by his deputies, before the judge of the district court, to the
United States jointly and severally, with two good and sufficient sureties,
inhabitants and freeholders of such district, to be approved by the district
judge, in the sum of twenty thousand dollars, and shall take before said judge,
as shall also his deputies, before they enter on the duties of their
appointment, the following oath of office: "I, A B, do solemnly swear or
affirm, that I will faithfully execute alI lawful precepts directed to the
marshal of the district of________under the authority of the United States, and
true returns make; and in all things well and truly, and without malice or
partiality, perform the duties of the office of marshal (or marshal's deputy,
as the case may be) of the district of _________ during my continuance in said
office, and take only my lawful fees. So help me God."
3. - 28. That in all causes wherein the marshal, or his deputy, shall be
a party, the writs and precepts therein shall be directed to such disinterested
person, as the court, or any justice or judge thereof may appoint, and the
person so appointed is hereby authorized to execute and return the same. And in
case of the death of any marshal, his deputy or deputies, shall continue in
office unless otherwise specially removed; and shall execute the same in the
name of the deceased, until another marshal shall be appointed and sworn: And
the defaults, or misfeasances in office of such deputy or deputies in the mean
time, as well as before, shall be adjudged a breach of the condition of the
bond given, as before directed, by the marshal who appointed them; and the
executor or administrator of the deceased marshal, shall have like remedy for
the defaults and misfeasances in office of such deputy or deputies during such
interval, as they would be entitled to if the marshal had continued in life,
and in the exercise of his said office, until his successor was appointed, and
sworn or affirmed: And every marshal, or his deputy, when removed from office,
or when the term for which the marshal is appointed shall expire, shall have
power, notwithstanding, to execute all such precepts as may be in their hands,
respectively, at the time of such removal or expiration of office; and the
marshal shall be held answerable for the delivery to his successors of all
prisoners which may be in his custody at the time of his removal, or when the
term for which he is appointed shall expire, and for that purpose may retain
such prisoners in his custody, until his successor shall be appointed, and
qualified as the law directs.
4. By the act making certain alterations in the act for establishing the
judicial courts, &c. passed June 9, 1794, 1 Story's L. U. S. 865, it is
7. That so much of the act to establish the judicial courts of the
United States, as is, or may be, construed to require the attendance of the
marshals of all the districts at the supreme court, shall be, and the same is
hereby repealed: And that the said court shall be attended, during its session,
by the marshal of the district only, in which the court shall sit, unless the
attendance of the marshals of other districts shall be required by special
order of the said court.
5. The act of February 28, 1795, 1 Story's L. U. S. 391, directs,
9. That the marshals of the several districts, and their deputies, shall
have the same powers, in executing the laws of the United States, as sheriffs
and their deputies, in the several states, have by law in executing the laws of
the respective states.
6. There are various other legislative provisions in relation to the
duties and rights of marshals, which are here briefly noticed with reference to
the laws themselves.
7. - 1. The act of May 8, 1792, s. 4, provides for the payment of
expenses incurred by the marshal in holding the courts of the United States,
the payment of jurors, witnesses, &c.
8. - 2. The act of April 16, 1817, prescribes the duties of the marshal
in relation to the proceeds of prizes captured by the public armed ships of the
United States and sold by decree of court.
9. - 3. The resolution of congress of March 3, 1791; the act of February
25, 1799, s. 5; and the resolution of March 3, 1821; all relate to the duties
of marshals in procuring prisons, and detaining and keeping prisoners.
10. - 4. The act of April 10, 1806, directs how and for what, marshals
shall give bonds for the faithful execution of their office.
11. - 5. The act of September 18, 1850, s. 5, prescribes the duties of
the marshal in relation to obeying and executing all warrants and precepts
issued under the provisions of this act, and the penalties he shall incur for
refusing to receive and execute the said warrants when rendered, and for
permitting the fugitive to escape after arrest, Vide Story's L. U. S. Index, h.
t.; Serg. Const. Law, ch. 25; 2 Dall. 402; United States v. Burr, 365; Mason's
R. 100; 2 Gall. 101; 4 Cranch, 96; 7 Cranch, 276; 9 Cranch, 86, 212; 6 Wheat.
194; 9 Wheat. 645; Minot, Stat. U. S. Index, h. t.
MARSHALLING SECURITIES, equity. When a party has two funds by
which his debt is secured, and another creditor has a claim only on one of
these funds, a court of equity will compel the creditor having a double
security to resort to that fund which will leave the other creditor his
security, this is called marshalling assets. 4 Bouv. Inst. n. 3788; 1 Story,
Eq. Jur. 633 Amb. 91; 8 Ves. 389; 9 Ves. 209.
2. Marshalling of assets respects two different funds, and two different
sets of parties, where one set can resort to either fund, the other only to
one. It is grounded on obvious equity. It does no prejudice to anybody, and it
effectuates the testator's intent. It takes place in favor of simple contract
creditors, and of legatees, devisees and heirs, and in a few other cases, but
not in favor of the next of kin. 4 Bro. C. C. 411; 1 P. Wms. 680.
3. The cases in which a court of equity marshals real and personal
assets for the payment of simple contract debts and legacies, may be classed as
follows: 1. Where there are specialty and simple contract debts and legacies
and lands left to descend. In this case if the specialty creditors take a
satisfaction for their debts out of the personal estate, the simple contract
creditors first, and then the legatees, shall stand in the place of the
specialty creditors, for obtaining satisfaction out of the lands, to the amount
of so much as was received by the specialty creditors out of the personal
4. - 2. Where there are specialty and simple contract debts, and lands
are specifically devised. In this case if the creditors take a satisfaction for
their debts out of the personal estate, the simple contract creditors shall
stand in the place of the specialty creditors for obtaining a satisfaction out
of the lands to the amount of so much as was received by the specialty
creditors out of the personal estate, but then there can be no relief for the
legatees, because there is as much equity to support the, specific devise of
the lands, as to support the bequest of the legatees.
5. - 3. Where the debts are charged upon the lands. Here the legatees
shall have the personal estate towards their satisfaction, and if the creditors
take it in payment or towards the discharge of their debts, the legatees shall
stand in their place pro tanto to have a discharge out of the lands.
6. - 4. When simple contract debts and legacies are both charged on the
land. In this case the land shall be sold and all paid equally. 1 Madd. Ch. Pr.
MARSHALSEA, English law. The name of a prison belonging to the
court of the king's bench.
MARTIAL LAW. Vide Law Martial.
MARYLAND. One of the original states of the United States of
America. The province of Maryland was included in the patent of the Southern or
Virginia company; and upon the dissolution of that company, it reverted to the
crown. Charles the First, on the 20th of June, 1632, granted it by patent to
Lord Baltimore. Under this charter Maryland continued to be governed, with some
short intervals of interruption, down to the period of the American Revolution,
by the successors of the original proprietor. 1 Chalmer's Annals, 203.
2. Upon the revolution of 1688, the government of Maryland was seised
into the hands of the crown, and was not again restored to the proprietary
until 1716; from that period no alteration occurred until the American
Revolution. Bacon's Laws of Maryland, 1692, 1716.
3. The original constitution of this state was adopted on the 14th day
of August, 1776. The present constitution was adopted in 1851.
4. The powers of the government are distributed into the legislative,
the executive, and the judicial.
5. - 1st. The legislature shall consist of two distinct branches, a
senate and a house of delegates, which shall be styled "The general assembly of
Maryland." Art. III. s. 1.
6. - 2. The general assembly shall meet on the first Wednesday of
January, 1852, on the same day, in the year 1853, and on the same day, 1854,
and on the same day in every second year thereafter, and at no other time,
unless convened by the proclamation of the governor. Art. III. s. 7.
7. - 3. The senate will be considered with reference to the
qualification of the electors; the qualification of the members; the length of
time for which they are elected; and the time of their election. 1. Every free
white male person of twenty-one years of age or upwards, who shall have been
one year next preceding the election a resident of the state, and for six
months a resident of the city of Baltimore, or of any county in which he may
offer to vote, and being at the time of the election, a citizen of the United
States, shall be entitled to vote in the ward or election district in which he
re-sides, in all elections hereafter to be held; an& at all such elections
the vote shall be taken by ballot. And in case any county or city shall be so
divided as to form portions of different electoral districts for the election
of congressmen, senator, delegate or other officer or officers, then to
en-title a person to vote for such officer, he must have been a resident of
that part of the county or city which shall form a part of the electoral
district in which he offers to vote for six months next preceding the election:
but a person who shall have acquired a residence in such county or city,
entitling him to vote at any such election, shall be entitled to vote in the
election district from which he remoted, until he shall have acquired a
residence in the part of the county or city to which he has removed. Art. I. s.
1. 2. No person shall be eligible as a senator who at the time of his election
is not a citizen of the United States, and who bas not resided at least three
years next preceding the day of his election, in this state, and the last year
thereof in the county or city which he may be chosen to represent, if such
county or city shall have been so long established, and if not, then in the
county from which, in whole or in part, the same may have been formed; nor
shall any person be eligible as a senator unless he shall have attained the age
of twenty-five years. No member of congress, or person bolding any civil or
military office under the United States, shall be eligible as a senator; and if
any person, after his election as a senator, be elected to congress, or be
appointed to any office, civil or military, under the government of the United
States, his acceptance thereof shall vacate his seat. No minister or preacher
of the gospel of any denomination, and no person holding any civil office of
profit or trust under the state, except justices of the peace, shall be
eligible as senator. Art. III. ss. 9, 10, 11. 3. Every county of the state, and
the city of Baltimore, shall be entitled to elect one senator, who shall serve
for four years from the day of their election. The first election shall take
place on the first Wednesday of November, 1851, and an election for one-half
the senators, as nearly as practicable, shall be held on the same day every
second year thereafter. Art. III. 2, 3, 4, 5.
8. - 4. The house of delegates will be treated of in the same manner
which has been observed in considering the senate. 1. The electors are
qualified in the same manner as the electors of the senate. 2. No person shall
be a delegate who shall not have attained the age of twenty-one years; the
other qualifications are the same as those for a senator. 3. The whole number
of delegates shall never exceed eighty, nor be less than sixty-five, and shall
be apportioned among the several counties according to the population of each,
the city of Baltimore to have four more delegates than the most populous
county; no county to have less than two delegates, the apportionment to be made
after the returns of the national census in 1860 are published, and in like
manner after each subsequent census. They are to serve two years from the day
of their election, which takes place on the same day as that for senators.
9. - 1. The executive power of the state shall be vested in a governor,
whose term of office shall commence on the second Wednesday of January next
ensuing his election, and continue for four years, and until his successor
shall have qualified.
10. - 2. The first election for governor under this constitution shall
be held on the first Wednesday of November, in the year eighteen hundred and
fifty-three, and on the same day and month in every fourth year thereafter, at
the places of voting for delegates to the general assembly, and every person
qualified to vote for delegates shall be qualified, and entitled to vote for
governor; the election to be held in the same manner as the election of
dele-gates, and the returns thereof, under seal, to be addressed to the speaker
of the house of delegates, and enclosed and transmitted to the secretary of
state, and delivered to the said speaker at the commencement of the session of
the legislature next ensuing said election.
11. - 3. The speaker of the house of delegates shall then open the said
returns in the presence of both houses, and the person having the highest
number of votes, and being constitutionally eligible, shall be the governor,
and shall qualify in the manner herein prescribed, on the second Wednesday of
January next ensuing his election, or as soon thereafter as may be
12. - 4. If two or more persons shall have the highest and an equal
number of votes, one of them shall be chosen governor by the senate and house
of delegates; and all questions in relation to the eligibility of governor, and
to the returns of said election, and to the number and legality of votes
therein given, shall be determined by the house of delegates. And if the person
or persons having the highest number of votes be ineligible, the governor shall
be chosen by the senate and house of delegates. Every election of governor, by
the legislature, shall be determined by a joint majority of the senate and
house of delegates, and the vote shall be taken viva voce. But if two or more
persons shall have the highest and an equal number of votes, then a second vote
shall be taken, which shall be confined to the persons having an equal number;
and if the votes should again be equal, then the election of governor shall be
determined by lot between those who shall have the highest and an equal number
on the first vote.
13. - 5. The state shall be divided into three districts. St. Mary's,
Charles, Calvert, Prince George's, Anne Arundle, Montgomery, and Howard
counties, and the city of Baltimore to be the first; the eight counties of the
Eastern shore to be the second; and Baltimore, Harford, Frederick, Washington,
Allegany, and Carroll counties, to be the third. The governor, elected from the
third district in October last, shall continue in office during the term for
which he was elected. The governor shall be taken from the first district, at
the first election of governor under this constitution; from the second
district at the second election, and from the third district at the third
election, and in like manner, afterwards, from each district, in regular
14. - 6. A person to be eligible to the office of governor, must have
attained the age of thirty years, and been for five years a citizen of the
United States, and for five years next preceding his election a resident of the
state, and for three years a resident of the district from which he was
15. - 7. In case of the death or resignation of the governor, or of his
removal from the state, the general assembly, if in session, or if not, at
their next session, shall elect some other qualified resident of the same
district, to be the governor for the residue of the term for which the said
governor had been elected.
16. - 8. In case of any vacancy in the office of governor during the
recess of the legislature, the president of the senate shall discharge the
duties of said office till a governor is elected as herein provided for; and in
case of the death or resignation of said president, or of his removal from the
state, or of his refusal to serve, then the duties of said office shall, in
like manner, and for the same interval, devolve upon the speaker of the house
of dele-gates, and the legislature may provide by law for the case of
impeachment or inability of the governor, and declare what person shall perform
the executive duties during such impeachment or inability; and for any vacancy
in said office, not herein provided for, provision may be made by law, and if
such vacancy should occur without such provision being made, the legislature
shall be convened by the secretary of state for the purpose of filling said
17. - 9. The governor shall be commander-in-chief of the land and naval
forces of the state, and may call out the militia to repel invasions, suppress
insurrections, and enforce the execution of the laws; but shall not take the
command in person without the consent of the legislature.
18. - 10. He shall take care that the laws be faithfully executed.
19. - 11. He shall nominate, and by and with the advice and consent of
the senate, appoint all civil and military officers of the state, whose
appointment or election is not otherwise herein provided for, unless a
different mode of appointment be prescribed by the law creating the office.
20. - 12. In case of any vacancy during the recess of the senate, in any
office which the governor has power to fill, he shall appoint some suitable
person to said office, whose commission shall continue in force till the end of
the next session of the legislature, or till some other person is appointed to
the same office, whichever shall first occur, and the nomination of the person
thus a pointed during the recess, or of some other person in his place, shall
be made to the senate within thirty days after the next meeting of the
21. - 13. No person, after being rejected by the senate, shall be again
nominated for the same office at the same seision, unless at the request of the
senate; or be appointed to the same office during the recess of the
22. - 14. All civil officers appointed be the governor and senate shall
be nominated to the senate within fifty days from the commencement of each
regular session of the legislature; and their term of office shall commence on
the first Monday of May next ensuing their appointment, and continue for two
years (unless sooner removed from office) and until their successors,
respectively, qualify according to law.
23. - 15. The governor may suspend or arrest any military officer of the
state for disobedience of orders, or other military offence, and may remove him
in pursuance of the sentence of a court-martial; and may remove for
incompetency or misconduct, all civil officers, who receive appointments from
the executive for a term not succeeding two years.
24. - 16. The governor may convene the legislature, or the senate alone,
on extraordinary occasions; and whenever, from the presence of an enemy or from
any other cause, the seat of government shall become an unsafe place for the
meeting of the legislature, he may direct their sessions to be held at some
other convenient place.
25. - 17. It shall be the duty of the governor semi-annually, and
oftener if he deem it expedient, to examine the bankbook, account books, and
official proceedings of the treasurer anA comptroller of the state.
26. - 18. He shall, from time to time, inform the legislature of the
condition of the state, and recommend to their consideration such measures as
he may judge necessary and expedient.
27. - 19. He shall have power to grant reprieves and pardons, except in
cases of impeachment, and in cases in which he is prohibited by other articles
of this constitution, and to remit fines and forfeitures for offences against
the state; but shall not remit the principal or interest of any debt due to the
state, except in cases of fines and forfeitures; and before granting a nolle
prosequi, or pardon, he shall give notice, in one or more newspapers, of the
application made for it, and of the day on or after which his decision will be
given; and in every case in which he exercises this power, he shall report to
either branch of the legislature. Whenever required, the petitions,
recommendations and reasons which influence his decision.
28. - 20. The governor shall reside at the seat of government, and shall
receive for his services an annual salary of thirty-six hundred dollars.
29. - 21. When the public interest requires it, he shall have power to
employ counsel, who shall be entitled to such compensation as the legislature
may allow in each case after the services of such counsel shall have been
29. - 22. A secretary of state shall be appointed by the governor, by
and with the advice and consent of the senate, who shall continue in office,
unless sooner removed by the governor, till the end of the official term of the
governor from whom he received his appointment, and shall receive an annual
salary of one thousand dollars.
30. - 23. He shall carefully keep and preserve a record of all official
acts an proceedings (which may, at all times, be inspected by a committee of
either branch of the legislature,) and shall perform such other duties as may
be prescribed by law or as may properly belong to his office.
31. - 3d. The judicial power of this state shall be vested in a court of
appeals, in circuit courts, in such courts for the city of Baltimore as may be
hereinafter prescribed, and in justices of the peace.
32. - 2. The court of appeals shall have appellate jurisdiction only,
which shall be co-extensive with the limits of the state. It shall consist of a
chief justice and three associate justices, any three of whom shall form a
quorum, whose judgment shall be final and conclusive in all cases of appeals;
and who shall have the jurisdiction which the present court of appeals of this
state now has, and such other appellate jurisdiction as hereafter may be
provided for by law. And in every case decided, an opinion, in writing, shall
be filed, and provision shall be made, by law, for publishing reports of cases
argued and determined in the said court. The governor, for the time being, by
and with the advice and consent of the senate, shall designate the chief
justice, and the court of appeals shall hold its sessions at the city of
Annapolis, on the first Monday of June, and the first Monday of December, in
each and every year.
33. - 3. The state shall be divided into four judicial districts:
Allegany, Washington, Frederick, Carroll, Baltimore, and Harford counties,
shall compose the first; Montgomery, Howard, Anne Arundel, Calvert, St. Mary's,
Charles and Prince George's, the second; Baltimore city, the third; and Cecil,
Kent, Queen Anne's, Talbot, Caroline, Dorchester, Somerset, ana Worcester,
shall compose the fourth district. And one person from among those learned in
the law having been admitted to practice in this this state at least, five
years, and above the age of thirty years at the time of his election, and a
resident of the judicial district, shall be elected from each of said districts
by the legal and qualified voters therein, as a judge of the said court of
appeals, who shall hold his office for the term of ten years from the time of
his election, or until he shall have attained the age of seventy years,
whichever may first happen, and be reeligible thereto until he shall have
attained the age of seventy years, and not after, subject to removal for
incompetency, wilful neglect of duty, or misbehaviour in office, on conviction
in a court of law, or by the governor upon the address of the general assembly,
two-thirds of the members of each house concurring in such address; and the
salary of each of the judges of the court of appeals shall be two thousand five
hundred dollars annually, and shall not be increased or diminished during their
continuance in office; and no fees or perquisites of any kind, shall be allowed
by law to any of the said judges.
34. - 4. No judge of the court of appeals shall sit in any case wherein
he may be interested, or where either of the parties may be connected with him
by affinity or consanguinity within such degrees as may be prescribed by law,
or when he shall have been of counsel in said case; when the court of appeals,
or any of its members shall be thus disqualified to bear and determine any case
or cases in said court, so that by reason thereof no judgment can be rendered
in said court, the same shall be certified to the governor of the state, who
shall immediately commission the requisite number of persons learned in the law
for the trial and determination of said case or cases.
35. - 5. All judges of the court of appeals, of the circuit courts, and
of the courts for the city of Baltimore, shall, by virtue of their offices, be
conservator's of the peace throughout the state.
36. - 6. All public commissions and grants shall run thus: "The State of
Maryland," &c., and shall be signed by the governor, with the seal of the
state annexed; all writs and process shall run in the same style, and be
tested, sealed and signed as usual; and all indictments shall conclude "against
the peace, government and dignity of the state."
37. - 7. The state shall be divided into eight judicial circuits, in
manner and form following, to wit; St. Mary's, Charles, and Prince George's
counties shall be the first: Anne, Arundel, Howard, Calvert and Montgomery
counties shall be the second; Frederick and Carroll counties shall be the
third; Washington and Allegany counties shall be the fourth; Baltimore city
shall be the fifth; Baltimore, Harford and Cecil counties shall be the sixth;
Kent, Queen Anne's, Talbot and Caroline counties shall be the seventh; and
Dorchester, Somerset and Worcester counties shall be the eighth; and there
shall be elec-ted, as hereinafter directed, for each of the said judicial
circuits, except the fifth, one person from among those learned in the law,
having been admitted to practice in this state, and who shall have been a
citizen of this state at least five years, and above the age of thirty years at
the time of his election, and a resident of the judicial circuit, to be judge
thereof; the said judges shall be styled circuit judges, and shall respectively
hold a term of their courts at least twice in each year, or oftener if required
by law, in each county composing their respective circuits; and the said courts
shall be called circuit courts for the county in which they may be held, and
shall have and exercise in the several counties of this state, all the power,
authority and jurisdiction which the county courts of this state now have and
exercise, or which may hereafter be prescribed by law, and the said judges in
their re-spective circuits, shall have and exercise all the power, authority
and jurisdiction of the present court of chancery of Maryland; provided,
nevertheless, that Baltimore county court may hold its sittings within the
limits of the city of Baltimore, until provision shall be made by law for the
location of a county seat within the limits of the said county proper, and the
erection of a court house and all other appropriate buildings, for the
convenient administration of justice in said court.
38. - 8. The judges of the several judicial circuits shall be citizens
of the United States, and shall have resided five years in this state, and two
years in the judicial circuit for which they may be respectively elected, next
before the time of their election, and shall reside therein while they continue
to act as judges; they shall be taken from among those who, having the other
qualifications herein prescribed, are most distinguished for integrity, wisdom
and sound legal knowledge, and shall be elected by the qualified voters of the
said circuits, and shall hold their offices for the term of ten years,
removable for misbehaviour, on conviction in a court of law or by the governor,
upon the address of the general assembly, provided that two-thirds of the
members of each house shall concur in such address, and the said judges shall
each receive a salary of two thousand dollars a year, and the same shall not be
increased or diminished during the time of their continuance in office; and no
judge of any court in this state, shall receive any perquisite, fee, commission
or reward, in addition thereto, for the performance of any judicial duty.
39. - 9. There shall be established for the city of Baltimore one court
of law, to be styled "the court of common pleas," which shall have civil
jurisdiction in all suits where the debt or damage claimed shall be over one
hundred dollars, and shall not exceed five hundred dollars; and shall, also,
have jurisdiction in all cases of appeal from the judgment of justices of the
peace in the said city, and shall have jurisdiction in all applications for the
benefit of the insolvent laws of this state, and the supervision and control of
the trustees thereof.
40. - 10. There shall also be established, for the city of Baltimore,
another court of law, to be styled the superior court of Baltimore city, which
shall have jurisdiction over all suits where the debt or damage claimed shall
exceed the sum of five hundred dollars, and in case any plaintiff or
plain-tiffs shall recover less than the sum or value of five hundred dollars,
he or they shall be allowed or adjudged to pay costs in the discretion of the
court. The said court shall also have jurisdiction as a court of equity within
the limits of the said city, and in all other civil cases which have not been
heretofore assigned to the court of common pleas.
41. - 11. Each of the said two courts shall consist of one judge, who
shall be elected by the legal and qualified voters of the said city, and shall
bold his office for the term of ten years, subject to the provisions of this
constitution, with regard to the election and qualification of judges and their
removal from office, and the salary of each of the said judges shall be
twenty-five hundred dollars a year; and the legislature shall, wherever it may
think the same proper and expedient, provide, by law, another court for the
city of Baltimore, to consist of one judge to be elected by the qualified
voters of the said city, who shall be subject to the same constitutional
provisions, hold his office for the same term of years, and receive the same
compensation as the judge of the court of common pleas of the said city, and
the said court shall have such jurisdiction and powers as may be prescribed by
42. - 12. There shall also be a criminal court for the city of
Baltimore, to be styled the criminal court of Baltimore, which shall consist of
one judge, who shall also be elected by the legal and qualified voters of the
said city, and who shall have and exercise all the jurisdiction now exercised
by Baltimore city court, and the said judge shall receive a salary of two
thousand dollars a year, and shall be subject, to the provisions of this
constitution with regard to the election and qualifications of judges, term of
office, and removal therefrom.
43. - 13. The qualified voters of the city of Baltimore, and of the
several counties of the state, shall, on the first, Wednesday of November,
eighteen hundred and fifty-one, and on the same day of the same month in, every
fourth year forever thereafter, elect three men to be judges of the orphans'
court of said city and counties respectively, who shall be citizens of the
state of Maryland, and citizens of the city or county for which they may be
severally elected at the time of their eiection. They shall have all the powers
now vested in the orphans' courts of this state, subject to such changes
therein as the legislature may prescribe, and each of said judges shall be paid
at a per diem rate, for the time they are in session, to be fixed by the
legislature, and paid by the said counties and city respectively.
44. - 14. The legislature, at its first session after the adoption of
this constitution, shall fix the number of justices of the peace and constables
for each ward of the city of Baltimore, and for each election district in the
several counties, who shall be elected by the legal and qualified voters
thereof respectively, at the next general election for delegates thereafter,
and shall hold their offices for two years from the time of their election, and
until their successors in office are elected and qualified; and the legislature
may, from time to time, increase or diminish the number of justices of the
peace and constables to be elected in the several wards and election districts,
as the wants and interests of the people may require. They shall be, by virtue
of their offices, conservators of the peace in the said counties and city
respectively, and shall have such duties and compensation as now exist, or may
be provided for by law. In the event of a vacancy in the office of a justice of
the peace, the governor shall appoint a person to serve as justice of the
peace, until the next regular election of said officers, and in case of a
vacancy in the office of constable, the county commissioners of the county, in
which a vacancy may occur, or the mayor and city council of Baltimore, as the
case may be, shall appoint a person to serve as constable until the next
regular election thereafter for said officers. An appeal shall lie in all civil
cases from the judgment of a justice of the peace to the circuit court, or, to
the court of common pleas of Baltimore city, as the case way be, and on all
such appeals, either party shall be entitled to a trial by jury, according to
the laws now existing, or which way be hereafter enacted. And the mayor and
city council may provide, by ordinance, from time to time, for the creation and
government of such temporary additional police, as they may deem necessary to
preserve the public peace.
45. - 15. No judge shall sit in any case wherein he may be interested,
or where either of the parties may be connected with him by affinity or
consan-guinity, within such degrees as may be prescribed by law, or where he
shall have been of counsel in the case and whenever any of the judges of the
circuit courts, or of the courts for Baltimore city, shall be thus
disqualified, or whenever, by reason of sickness, or any other cause, the said
judges, or any of them, may be unable to sit in any cause, the parties may, by
consent, appoint a proper person to try the said cause, or the judges, or any
of them, shall do so when directed by law.
46. - 16. The present chancellor and the register in chancery, and, in
the event of any vacancy in their respective offices, their successors in
office respectively, who are to be appointed as at present, by the governor and
senate, shall continue in office, with the powers and compensation as at
present established, until the expiration of two years after the adoption of
this constitution by the people, and until the, end of the session of the
legislature next thereafter, after which the said offices of chancellor and
register shall be abolished. The legislature shall, in the mean time, provide
by law for the recording, safe-keeping, or other disposition, of the records,
decrees and other proceedings of the court of chancery, and for the copying and
attestation thereof, and for the custody and use of the great seal of the
state, when required, after the expiration of the said two years, and for
transmitting to the said counties, and to the city of Baltimore, all the cases
and proceedings in said court then undisposed of and unfinished, in such
manner, and under such regulations as may be deemed necessary and proper:
Provided, that no new business shall originate in the said court, nor shall any
cause be removed to the same from any other court, from and after the
ratification of this constitution.
47. - 17. The first election of judges, clerks, registers of wills, and
all other officers, whose election by the people is provided for in this
article of the constitution, except justices of the peace and constables, shall
take place throughout the state on the first Wednesday of November next after
the ratification of this constitution by the people.
48. - 18. In case of the death, resignation, removal, or other
disqualification of a judge of any of the courts of law, the governor, by and
with the advice and consent of the senate, shall thereupon appoint a person,
duly quali-fied, to fill said office until the next general election for
delegates thereafter; at which time an election shall be held as hereinbefore
prescribed, for a judge, who shall hold the said office for ten years,
according to the provisions of this constitution.
49. - 19. In case of the death, resignation, removal, or other
disqualification of the judge of an orphans' court, the vacancy shall be filled
by the appointment of the governor, by and with the advice and consent of the
50. - 20. Whenever lands lie partly in one county, and partly in another
or partly in a county and partly in the city of Baltimore, or whenever persons
proper to be made defendants to proceedings in chancery, reside some in one
county and some in another, that court shall have jurisdiction in which
proceedings shall have been first commenced, subject to such rules, regulations
and alterations as may be prescribed by law.
51. - 21. In all suits or actions at law, issues from the orphans' court
or from any court sitting in equity, in petitions for freedom, and in all
pre-sentments and indictments now pending, or which may be pending at the time
of the adoption of this constitution by the people, or which may hereafter be
instituted in any of the courts of law of this state, having jurisdiction
thereof, the judge or judges thereof, upon suggestion in writing, if made by
the state's attorney, or the prosecutor for the state, or upon suggestion in
writing, supported by affidavit, made by any of the parties thereto, or other
proper evidence, that a fair and impartial trial cannot be had in the court
where such suit or action at law, issues or petitions, or presentment and
indictment is depending, shall order and direct the record of proceedings in
such suit or action, issues or petitions, presentment or indictment, to be
transmitted to the court of any adjoining county; provided, that the removal in
all civil causes be confined to an adjoining county within the judicial
circuit, except as to the city of Baltimore, where the removal may be to an
adjoining county, for trial, which court shall hear and determine the same in
like manner as if such suit or action, issues or petitions, presentment or
indictment, had been originally instituted therein; and provided also, that
such suggestion shall be made as aforesaid, before or during the term in which
the issue or issues may be joined in said suit or action, issues or petition,
presentment or indictment, and that such further remedy in the premises may be
provided by law, as the legislature shall from time to time direct and
52. - 22. All election of judges, and other officers provided for by
this constitution, shall be certified, and the returns made by the clerks of
the respective counties to the governor, who shall issue commissions to the
different persons for the offices to which they shall have been respectively
elected; and in all such elections, the person having the greatest number of
votes, shall be declared to be elected.
53. - 23. If, in any case of election for judges, clerks of the courts
of law and registers of wills, the opposing candidates shall have an equal
number of votes, it shall be the duty of the governor to order a new election;
and in case of any contested election, the governor shall send the returns to
the house of delegates, who shall judge of the election and qualification of
the candidates at such election.
MASCULINE. That which belongs to the male sex.
2. The masculine sometimes includes the feminine, vide an example under
the article Man, and see also the articles Gender, Worthiest of blood; Poth.
Intr. au titre 16, des Testamens et Donations Testamentaires, n. 170; Ayl,
Pand. 57; 4 C. & P. 216; S. C. 19 E. C. L. R. 551 3 Fred. Code, pr. 1, b.
1, t. 4, s. 3; 3 Brev. R. 9.
MASSACHUSETTS. One of the original states of the United States
of America. The colony or province of Massachusetts was included in a charter
granted by James the First, by which its territories were extended in breadth
from the 40th to the 48th degree of north latitude, and in length by all the
breadth aforesaid throughout the mainland from sea to sea. This charter
continued until 1684. Holmes' Annals, 412; 1 Story, Const. 71. In 1691 William
and Mary granted a new charter to the colony, and henceforth it became known as
a province, and continued to act under this charter till after the Revolution.
1 Story, Const. 71.
2. The constitution of Massachusetts was adopted by a convention begun
and held at Cambridge, on the first of September, 1779, and continued, by
adjournment, to the second of March, 1780.
3. The style and name of the state is The Commonwealth of Massachusetts.
The government is distributed into a legislative, executive and judicial
4. - 1st. The department of legislation is formed by two branches, a
senate and house of representatives, each of which has a negative on the other,
and both are styled The General Court of Massachusetts. Part 2, c. 1, s. 1.
5. - 1. The senate is elected by the qualified electors, and is composed
of forty persons to be counsellors and senators for the year ensuing their
election. Part 2, c. 1, s. 2, art. 1.
6. - 2. The House of representatives is composed of an indefinite number
of persons elected by the towns in proportion to their population. Part 2, c.
1, s. 3, art. 2.
7. - 2d. The executive power is vested in a governor, lieutenant
governor and council.
8. - 1. The supreme executive magistrate is styled The Governor of the
Commonwealth of Massachusetts. He is elected yearly by the qualified electors.
Part 2, c. 2, s. 1. He is invested with the veto power. Part 2, c. 1, s. 1,
9. - 2. The electors are required to elect annually a lieutenant
governer. When the office of governor happens to be vacant he acts as governor,
and at other times he is a member of the council. Part 2, c. 2, s. 2, art. 2
10. - 3. The council consists of nine persons chosen annually by the
general court; they mast be taken from those returned for counsellors and
senators, unless they will not accept the said office, when they shall be
chosen from the people at large. The council shall advise the governor in the
executive part of the government. Part 2, c. 2, s. 3, art. 1 and 2.
11. - 3d. The judicial power. The third chapter of part second of the
constitution makes the following provisions in relation to the
Art. 1. The tenure that all commissioned officers shall, by law,
have in their office, shall be expressed in their respective commissions; all
judicial officers, duly appointed, commissioned, and sworn, shall hold their
offices during good behaviour; excepting such concerning whom there is
different provision made in this constitution; Provided, nevertheless, the
governor, with consent of the council, may remove them upon the address of both
houses of the legislature.
12. - 2. Each branch of the legislature, as well as the governor and
council, shall have authority to require the opinions of the justices of the
supreme judicial court, upon important questions of law, and upon solemn
13. - 3. In order that the people may not suffer from the long
continuance in place of any justice of the peace, who shall fail of discharging
the important duties of his office with ability or fidelity, all commissions of
jus-tices of the peace shall expire and become void in the term of seven years
from their respective dates; and upon the expiration of any commission, the
same may, if necessary, be renewed, or another person appointed, as shall most
conduce to the well-being of the commonwealth.
14. - 4. The judges of probates of wills, and for granting letters of
administration, shall hold their courts at such place or places, on fixed days,
as the convenience of the people may require; and the legislature shall, from
time to time hereafter, appoint such times and places: until which
appointments, the said courts shall be holden at the times and places which the
respective judges shall direct.
15. - 5. All causes of marriage, divorce, and alimony, and all appeals
from the judges of probate, shall be heard and determined by the governor and
council, until the legislature shall, by law, make other provision.
MASTER. This word has several meanings. 1. Master is one who has
control over a servant or apprentice. A master stands in relation to his
apprentices, in loco parentis, and is bound to fulfil that relation, which the
law generally enforces. He is also entitled to be obeyed by his apprentices, as
if they were his children. Bouv. Inst. Index, h. t.
2. - 2. Master is one who is employed in teaching children, known
generally as a schoolmaster; as to his powers, see Correction.
3. - 3. Master is the name of an officer: as, the ship Benjamin
Franklin, whereof A B is master; the master of the rolls; master in chancery,
4. - 4. By master is also understood a principal who employs another to
perform some act or do something for him. The law having adopted the maxim of
the civil law, qui facit per alium facit per se; the agent is but an
instrument, and the master is civilly responsible for the act of his agent, as
if it were his own, when he either commands him to do an act, or puts him in a
condition, of which such act is a result, or by the absence of due care and
control, either previously in the choice of his agent, or immediately in the
act itself, negligently suffers him to do an injury. Story, Ag. 454, note;
Noy's Max. c. 44; Salk. 282; 1 East. R. 106; 1 Bos. & Pul. 404; 2 H. Bl.
267; 5 Barn. & Cr. 547; 2 Taunt. R. 314; 4 Taunt. R. 649; Mass. 364, 385;
17 Mass. 479, 509; 1 Pick. 47 5; 4 Watts, 222; 2 Harr. & Gill, 316; 6
Cowen, 189; 8 Pick. 23; 5 Munf. 483. Vide Agent; Agency; Driver; Servant.
MASTER AT COMMON LAW, Engl. law. An officer of the superior
courts of law, who has authority for taking affidavits sworn in court, and
administering a variety of oaths; and also empowered to compute principal and
interest on bills of exchange and other engagements, on which suit has been
brought; he has also the power of an examiner of witnesses going abroad, and
MASTER IN CHANCERY. An officer of the court of chancery.
2. The origin of these officers is thus accounted for. The chancellor
from the first found it necessary to have a number of clerks, were it for no
other purpose, than to perform the mechanical part of the business, the
writing; these soon rose to the number of twelve. In process of time this
number being found insufficient, these clerks contrived to have other clerks
under them, and then, the original clerks became distinguished by the name of
masters in chancery. He is an assistant to the chancellor, who refers to him
interlocu-tory orders for stating accounts, computing damages, and the like.
Masters in chancery are also invested with other powers, by local regulations.
Vide Blake's Ch. Pr. 26; 1 Madd. Pr. 8 1 Smith's Ch. Pr. 9, 19.
3. In England there are two kinds of masters in chancery, the ordinary,
and the extraordinary..
4. - 1. The masters in ordinary execute the orders of the court, upon
ref-erences made to them, and certify in writing in what manner they have
executed such orders. 1 Sm. Ch. Pr. 9.
5. - 2. The masters extraordinary perform the duty of taking affidavits
touching any matter in or relating to the court of chancery, taking the
acknowledgment of deeds to be enrolled in the said court, and taking such
recognizances, as may by the tenor of the order for entering them, be taken
before a master extraordinary. 1 Sm. Ch. Pr. 19. Vide, generally, 1 Harg. Law
Tr. 203, a Treatise of the Maister of the Chauncerie.
MASTER OF THE ROLLS. Eng. law. An officer who bears this title,
and who acts as an assistant to the lord chancellor, in the court of
2. This officer was formerly one of the clerks in chancery whose duty
was principally confined to keeping the rolls; and when the clerks in chancery
became masters, then this officer became distinguished as master of the rolls.
Vide Master in Chancery.
MASTER OF A SHIP, mar. law. The commander or first officer of a
ship; a captain. (q. v.)
2. His rights and duties have been considered under the article Captain.
Vide also, 2 Bro. Civ. Adm. Law, 133; 3 Kent, Com. 121; Wesk. Ins. 360; Park.
on Ins. Index, h. t.; Com. Dig. Navigation, I 4.
MATE. The second officer on board of a merchant ship or
2. He has the right to sue in the admiralty as a common mariner for
wages. 1. Pet. Adm. Dee. 246.
3. When, on the death of the master, the mate assumes the command, he
succeeds to the rights and duties of the principal officer. 1 Sumn. 157; 3
Mason, 161; 4 Mason, 196; See 7 Conn. 239; 4 Mason, 641 4 Wash. C. C. 838.
MATER FAMILIAS, civil law. The mother of a family, and, by
extension, the mistress of a family.
MATERIAL MEN. This name is given to persons who furnish
materials for the purpose of constructing or erecting ships, houses, and other
2. By the common law material men have a lien on a foreign ship for
supplies of materials furnished for such ship, which may be recovered in the
admiralty. 9 Wheat. 409. But they have no lien for furnishing materials for
repairs of domestic ships. Wheat. 438.
3. In several of the states, laws have been enacted giving material men
a lien on houses and other buildings when they have furnished materials for
constructing the same.
MATERIALITY. That which is important; that which is not merely of
form but of substance.
2. When a bill for discovery has been filed, for example, the defendant
must answer every material fact which is charged in the bill, and the test in
these cases seems to be that when, if the defendant should answer in the
affirmative, his answer would be of use to the plaintiff, the answer would be
mate-rial, and it must be made. 4 Price, R. 364; 13 Price, R. 291; 2 Y. &
3. In order to convict a witness of a perjury, it is requisite to prove
that the matter he swore to was material to the question then depending. Vide 3
Chit. Pr. 233; 3 Dowl. 104; 10 Bing. 340; Perjury.
MATERIALS. Everything of which anything is made.
2. When materials are furnished to a workman he is bound to use them
according to his contract, as a tailor is bound to employ the cloth I furnish
him with, to make me a coat that shall fit me, for if he so make it that I
cannot wear it, it is not a proper employment of the materials. But if the
undertaker use ordinary skill and care, he will not be responsible, although
the mate-rials may be injured; as, if a gem be delivered to a jeweler, and it
is broken without any unskilfulness, negligence or rashness of the artisan, he
will not be liable. Poth. Louage, n. 428.
3. The workman is to use ordinary diligence in the care of the materials
entrusted with him, or to exercise that caution which a prudent man takes of
his own affairs, and he is also bound to preserve them from any unexpected
danger to which they may be exposed. 1 Gow. R. 30; 1 Camp. 138.
4. When there is no special contract between the parties, and the
materials perish while in the possession of the workman or undertaker, without
his default, either by inevitable casualty, by internal defect, by superior
force, by robbery or by any peril not guarded against by ordinary diligence, he
is not responsible. This is the case only when the material belongs to the
em-ployer and the workman only undertakes to put his work upon it. But a
distinction must be observed in the case when the employer has engaged a
workman to make him an article out of his own materials, for in that case the
employer has no property in it, until the work be completed, and the article be
deli-vered to him; if, in the mean time, the thing perishes, it is the loss of
the workman, who is wholly its owner, according to the maxim res perit domino.
In the former case the employer is the owner; in the latter the workman; in the
first case it is a bailment, in the second a sale of the thing in futuro.
Domat. B. 1, t. 4, 7, n. 3; Id. B. 1, t. 4, 8, n. 10.
5. Another distinction must be made in the case when the thing given by
the employer was to become the property of the workman, and an article was to
be made out of similar materials, and before its completion it perished. In
this case the title to the thing having passed to the workman, the loss must be
his. 1 Blackf. 353; 7 Cowen, 752, 756, note; 21 Wend. 85; 3 Mason, 478; Dig.
19, 2, 31; 1 Bouv. Inst. 1006-7.
6. In some of the states by their laws persons who furnish materials for
the construction of a building, have a lien against such building for the
payment of the value of such materials. See Lien of Mechanics.
MATERNA MATERNIS. This expression is used in the French law to
signify that in a succession the property coming from the mother of a deceased
person, descends to his maternal relations.
MATERNAL. That which belongs to, or comes from the mother: as,
maternal authority, maternal relation, maternal estate, maternal line. Vide
MATERNAL PROPERTY. That which comes from the mother of the
party, and other ascendants of the maternal stock. Domat, Liv. Prel. tit. 3, s.
2, n. 12. MATERNITY. The state or condition of a mother.
2. It is either legitimate or natural. The former is the condition of
the mother who has given birth to legitimate children, while the latter is the
condition of her who has given birth to illegitimate children. Maternity is
always certain, while the paternity (q. v.) is only presumed.
MATERTERA. Maternal aunt; the sister of one's mother. Inst. 3,
4, 3; Dig. 38, 10, 10, 14.
MATHEMATICAL EVIDENCE. That evidence which is established by a
demonstration. It is used in contradistinction to moral evidence. (q. v.)
MATRICULA, civil law. A register in which are inscribed the
names of persons who become members of an association or society. Dig. 50, 3,
1. In the ancient church there was matricula clericorum, which was a catalogue
of the officiating clergy; and matricula pauperum, a list of the poor to be
relieved; hence to be entered in the university is to be matriculated.
MATRIMONIAL CAUSES. In the English ecclesiastical courts there
are five kinds of causes which are classed under this head. 1. Causes for a
malicious jactitation. 2. Suits for nullity of marriage, on account of fraud,
incest, or other bar to the marriage. 2 Hagg. Cons. Rep. 423. 3. Suits for
restitution of conjugal rights. 4. Suits for divorces on account of cruelty or
adultery, or causes which have arisen since the marriage. 5. Suits for
MATRIMONIUM. By this word is understood the inheritance
descending to a man, ex parti matris. It is but little used.
2. Among the Romans this word was employed to signify marriage; and it
was so called because this conjunction was made with the design that the wife
should become a mother. Inst. 1, 9, 1.
MATRIMONY. See Marriage.
MATRINA. A godmother.
MATRON. A married woman, generally an elderly married woman.
2. By the laws of England, when a widow feigns herself with child, in
order to exclude the next heir, and a supposititious birth is expected, then,
upon the writ de ventre inspiciendo, a jury of women is to be, impanneled to
try the question, whether with child or not. Cro, Eliz. 566. So when a woman
was sentenced to death, and she declared herself to be quick with child, a jury
of matrons is impanneled to try whether she be or be not with child. 4 Bl. Com.
395. See Pregnancy; Quick with child.
MATTER. Some substantial or essential thing, opposed to form;
MATTER IN PAYS. Literally, matter in the country; matter of
fact, as distinguished from matter of law, or matter of record. Steph. Pl. 197.
MATTER IN DEED. Matter in deed is such matter as may be proved
or established by a deed or specialty. In another sense it signifies matter of
fact, in contradistinction to matter of law. Co. Litt. 320; Steph. Pl. 197.
MATTER OF FACT, pleading. Matter which goes in denial of a
declaration, and Dot in avoidance of it. Bac. Ab. Pleas, &c. G 3; Hob.
MATTER OF LAW, pleading. That which goes in avoidance of a
declaration or other pleading, on the ground that the law does not authorize
them. It does not deny the matter or fact contained in such pleading, but
admitting them avoids them. Bac. Ab. Pleas, &c. G 3. Matter of law, is that
which is referred to the decision of the court; matter of fact that which is
submitted to the jury.
MATTER OF RECORD. Those facts which may be proved by the
production of a record. It differs from matter in deed, which consists of facts
which may be proved by specialty. Vide Estoppel.
MATTER, IMPERTINENT, Equity pleading. That which is altogether
irrelevant to the case, that does not appertain or belong to it; id est, qui ad
rem non pertinet. 4 Bouv. Inst. n. 4163 . See Impertinent.
MATTER, SCANDALOUS, equity pleading. A false and malicious
statement of facts, not relevant to the cause. But nothing which is positively
relevant, however harsh or gross the charge may be, can be considered
scandalous. 4 Bouv. Inst. n. 4163.
2. A bill cannot by the general practice, be referred for impertinence
after the defendant has answered, or submitted to answer, but it may be
referred for scandal at any time, and even upon the application of a stranger
to the suit, for he has the right to prevent the records of the court from
being made the vehicle of spreading slanders against himself. Id. n. 41f
MATURITY. The time when a bill or note becomes due. In order to
bind the endorsers such note or bill must be protested, when not paid, on the
last day of grace. See Days of grace.
MAXIM. An established principle or proposition. A principle of
law universally admitted, as being just and consonant With reason.
2. Maxims in law are somewhat like axioms in geometry. 1 Bl. Com. 68.
They are principles and authorities, and part of the general customs or common
law of the land; and are of the same strength as acts of parliament, when the
judges have determined what is a maxim; which belongs to the judges and not the
jury. Terms do Ley; Doct. & Stud. Dial. 1, c. 8. Maxims of the law are
holden for law, and all other cases that may be applied to them shall be taken
for granted. 1 Inst. 11. 67; 4 Rep. See 1 Com. c. 68; Plowd. 27, b.
3. The application of the maxim to the case before the court, is
generally the only difficulty. The true method of making the application is to
ascertain bow the maxim arose, and to consider whether the case to which it is
applied is of the same character, or whether it is an exception to an
apparently general rule.
4. The alterations of any of the maxims of the common law are dangerous.
2 Inst. 210. The following are some of the more important maxims.
A communi observantia non est recedendum. There should be no departure
from common observance or usage. Co. Litt. 186.
A l'impossible nul n'est tenu. No one is bound to do what is impossible.
1 Bouv. Inst. n. 601.
A verbis legis non est recedendum. From the words of the law there must
be no departure. Broom's Max. 268; 5 Rep. 119; Wing. Max. 25.
Absentia ejus qui reipublicae causa abest, neque ei, neque alii damnosa
esse debet. The absence of him who is employed in the service of the state,
ought not to be burdensome to him nor to others. Dig. 50, 17, 140.
Absoluta sentetia expositore non indiget. An absolute unqualified
sentence or proposition, needs no expositor. 2 Co. Inst. 533.
Abundans cautela non nocet. Abundant caution does no harm. 11 Co.
Accessorius sequit naturam sui principalis. An accessary follows the
nature of his principal. 3 Co. Inst. 349.
Accessorium non ducit sed sequitur suum principale. The accessory does
not lead, but follow its principal. Co. Ltt 152.
Accusare nemo debet se, nisi coram Deo. No one ought to accuse himself,
unless before God. Hard. 139.
Actio exteriora indicant interiora secreta. External actions show
internal secrets. 8 Co. R. 146.
Actio non datur non damnificato. An action is not given to him who has
received no damages.
Actio personalis moritur cum persona. A personal action dies with the
person. This must be understood of an action for a tort only.
Actor qui contra regulam quid adduxit, non est audiendus. He ought not
to be heard who advances a proposition contrary to the rules of law.
Actor sequitur forum rei. The plaintiff must follow the forum of the
thing in dispute.
Actore non probante reus absolvitur. When the plaintiff does not prove
his case, the defendant is absolved.
Actus Dei nemini facit injuriam. The act of God does no injury; that is,
no one is responsible for inevitable accidents. 2 Blacks. Com. 122. See Act of
Actus incaeptus cujus perfectio pendet, ex voluntate partium, revocari
potest; si autem pendet ex voluntate tertia personae, vel ex contingenti,
revocari non potest. An act already begun, the completion of which depends upon
the will of the parties, may be recalled; but if it depend on the consent of a
third person, or of a contingency, it cannot be recalled. Bacon's Max. Reg.
Actus me invito factus, non est meus actus. An act done by me against my
will, is not my act.
Actus non reum facit, nisi mens sit rea. An act does not make a person
guilty, unless the intention be also guilty. This maxim applies only to
criminal cases; in civil matters it is otherwise. 2 Bouv. Inst. n. 2211.
Actus legitimi non recipiunt modum. Acts required by law to be done,
admit of no qualification. Hob. 153.
Actus legis nemini facit injuriam, The act of the law does no one an
injury. 5 Co. 116.
Ad proximum antecedens fiat relatio, nisi impediatur sententia. The
antecedent bears relation to what follows next, unless it destroys the meaning
of the sentence.
Ad quaestiones facti non respondent judices; ad quaestione legis non
respondent juratores. The judges do not answer to questions of fact; the jury
do not answer to questions of law. Cu. Litt. 295.
Aestimatio praeteriti delicti ex postremo facto nunquam crescit. The
estimation of a crime committed never increased from a subsequent fact. Bac.
Max. Reg. 8.
Ambiguitas verborum latens verificatione suppletur; nam quod ex facto
oritur ambiguum verificatione facti tollitur. A hidden ambiguity of the words
is supplied by the verification, for whatever ambiguity arises concerning the
deed itself is removed by the verification of the deed. Bacon's Max. Reg.
Aqua cedit solo. The water yields or accompanies the soil. The grant of
the soil or land carries the water.
Aqua curit et debet currere. Water runs and ought to run. 3 Rawle, 84,
Aequitas agit in personam. Equity acts upon the person. 4 Bouv. Inst. n.
Aequilas sequitier legem. Equity follows the law. 1 Story, Eq. Jur.
§64.; 3 Wooddes. Lect. 479, 482.
Aequum et bonum, est lex legum. What is good and equal, is the law of
laws. Hob. 224.
Affirmati, non neganti incumbit probatio. The proof lies upon him who
affirms, not on him who denies.
Aliud est celare, aliud tacere. To conceal is one thing, to be silent
Alternatica petitio non est audienda. An alternate petition is not to be
heard. 5 Co. 40.
Animus ad se omne jus ducit. It is to the intention that all law
Animus moninis est anima scripti. The intention of the party is the soul
of the instrument. 3 Bulstr. 67.
Apices juris non sunt jura. Points of law are not laws. Co. Litt. 304; 3
Scott, N. P. R. 773.
Arbitrium est judicium. An award is a judgment. Jenk Cent. 137.
Argumentum a majori ad minus negative non valet; valet e
converso. An argument from the greater to the less is of no force negatively;
conversely it is. Jenk. Cent. 281.
Argumentum a divisione est fortissimum in jure. An argument
arising from a division is most powerful in law. 6 Co. 60.
Argumentum ab inconvenienti est validum in lege; quia lex non permittit
aliquod inconveniens. An argument drawn from what is inconvenient is good in
law, because the law will not permit any inconvenience. Co. Litt. 258.
Argumentum ab impossibili plurmum valet in lege. An argument deduced
from authority great avails in law. Co. Litt. 92.
Argumentum ab authoritate est fortissimum in lege. An argument drawn
from authority is the strongest in law. Co. Litt. 254.
Argumentum a simili valet in lege. An argument drawn from a
similar case, or analogy, avails in law. Co. Litt. 191.
Augupia verforum sunt judice indigna. A twisting of language is unworthy
of a judge. Hob. 343.
Bona fides non patitur, ut bis idem exigatur. Natural equity or good
faith do no allow us to demand twice the payment of the same thing. Dig. 50,
Boni judicis est ampliare jurisdictionem. It is the part of a good judge
to enlarge his jurisdiction; that, his remedial authority. Chan. Prec. 329; 1
Wils 284; 9 M. & Wels. 818.
Boni judicis est causas litium derimere. It is the duty of a good judge
to remove the cause of litigation. 2 Co. Inst. 304.
Bonum defendentis ex integra causa, malum ex quolibet
defectu. The good of a defendant arises from a perfect case, his harm from some
defect. 11 Co. 68.
Bonum judex secundum aequum et bonum judicat, et aequitatem stricto juri
praefert. A good judge decides according to justice and right, and prefers
equity to strict law. Co. Litt. 24.
Bonum necessarium extra terminos necessitatis non est bonum. Necessary
good is not good beyond the bounds of necessity. Hob. 144.
Casus fortuitus non est sperandus, et nemo tenetur devinare. A
fortuitous event is not to be foreseen, and no person is held bound to divine
it. 4 Co. 66.
Casus omissus et oblivione datus dispositioni communis juris
relinquitur. A case omitted and given to oblivion is left to the disposal of
the common law. 5 Co. 37.
Catalla juste possessa amitti non possunt. Chattels justly
possessed cannot be lost. Jenk. Cent. 28.
Catalla repuntantur inter minima in lege. Chattels are considered in law
among the minor things. Jenk Cent. 52.
Causa proxima, non remota spectatur. The immediate, and not the remote
cause, is to be considered. Bac. Max. Reg. 1.
Caveat emptor. Let the purchaser beware.
Cavendum est a fragmentis. Beware of fragments. Bacon, Aph. 26.
Cessante causa, cessat effectus. The cause ceasing, the effect must
C'est le crime qui fait la honte, et non pas l'echafaud. It is the crime
which causes the shame, and not the scaffold.
Charta de non ente non valet. A charter or deed of a thing not in being,
is not valid. Co. Litt. 36.
Chirographum apud debitorem repertum praesumitur solutum. A deed or bond
found with the debtor is presumed to be paid.
Circuitus est evitandus. Circuity is to be avoided. 5 Co. 31.
Clausula inconsuetae semper indicunt suspicionem. Unusual clauses always
induce a suspicion. 3 Co. 81.
Clausula quae abrogationem excludit ab initio non valet. A clause in a
law which precludes its abrogation, is invalid from the beginning. Bacon's Max.
Reg. 19, p. 89.
Clausula vel dispositio inutilis per praesumptionem remotam vel causam,
ex post facto non fulcitur. A useless clause or disposition is not supported by
a remote presumption, or by a cause arising afterwards. Bacon's Max. Reg.
Cogitationis poenam nemo patitur. No one is punished for merely thinking
of a crime.
Commodum ex injuria sua non habere debet. No man ought to
derive any benefit of his own wrong. Jenk. Cent. 161.
Communis error facit jus. A common error makes law. What was af first
illegal, being repeated many times, is presumed to have acquired the force of
usage, and then it would be wrong to depart from it. The converse of this maxim
is communis error no facit just. A common error does not make law.
Confessio facta in judicio omni probatione major est. A confession made
in court is of greater effect than any proof. Jenk. Cent. 102; 11 Co. 30.
Confirmare nemo potest priusquam just ei acciderit. No one can confirm
before the right accrues to him. 10 Co. 48.
Confirmatio est nulla, ubi donum praecedens est invalidum. A
confirmation is null where the preceding gift is invalid. Co. Litt. 295.
Conjunctio mariti et faeminae est de jure naturae. The union of a man
and a woman is of the law of nature.
Consensus non concubitus facit nuptiam. Consent, not lying together,
Consensus facit legem. Consent makes the law. A contract is a law
between the parties, which can acquire force only by consent.
Consensus tollit errorem. Consent removes or obviates a mistake. Co.
Consentientes et agentes pari poena plectentur. Those consenting
and those perpetrating are embraced in the same punishment. 5 Co. 80.
Consequentiae non est consequentia. A consequence ought not to be drawn
from another consequence. Bacon, De Aug. Sci. Aph. 16.
Consilii, non fraudulenti, nulla est obligatio. Advice, unless
fraudulent, does not create an obligation.
Constructio contra rationem introducta, potius usurpatio quam consuetudo
appellari debet. A custom introduced against reason ought rather to be called
an usurpation than a custom. Co. Litt. 113.
Construction legis non facit injuriam. The construction of law works not
an injury. Co. Litt. 183; Broom's Max. 259.
Consuetudo debet esse certa. A custom ought to be certain. Dav. 33.
Consuetudo est optimus interpres legum. Custom is the best expounder of
the law. 2 Co. Inst. 18; Dig. 1, 3, 37; Jenk. Cent. 273.
Consuetudo est altera lex. Custom is another law. 4 Co. 21.
Consuetudo loci observanda est. The custom of the place is to be
observed. 6 Co. 67.
Consuetudo praescripta et legitima vincit legem. A prescriptive and
legitimate custom overcomes the law. Co. Litt. 113.
Consuetudo semel reprobata non potest amplius induci. Custom once
disallowed cannot again be produced. Dav. 33.
Consuetudo voluntis ducit, lex nolentes trahit. Custom leads the
willing, law, law compels or draws the unwilling. Jenk. Cent. 274.
Contestio litis eget terminos contradictaris. An issue requires terms of
contradiction; that is, there can be no issue without an affirmative on one
side and a negative on the other.
Contemporanea expositio est optima et fortissima in lege. A
contemporaneous exposition is the best and most powerful in the law. 2 Co.
Contra negantem principia non est disputandum. There is no
disputing against or denying principles. Co. Litt. 43.
Contra non volentem agere nulla currit praescriptio. No
prescription runs against a person unable to act. Broom's Max. 398.
Contra veritatem lex numquam aliquid permittit. The law never
suffers anything contrary to truth. 2 Co. Inst. 252. But sometimes it allows a
conclusive presumption in opposition to truth. See 3 Bouv. Inst. n. 3061.
Contractus legem ex conventione accipiunt. The agreement of the parties
makes the law of the contract. Dig. 16, 3, 1, 6.
Contractus ex turpi causa, vel contra bonos mores nullus
est. A contract founded on a base and unlawful consideration, or against good
morals, is null. Hob. 167; Dig. 2, 14, 27, 4.
Conventio vincit legem. The agreement of the parties overcomes or
prevails against the law. Story, Ag. § See Dig. 16, 3, 1, 6.
Copulatio verborum indicat acceptionem in eodem sensu. Coupling words
together shows that they ought to be understood in the same sense. Bacom's Max.
in Reg. 3.
Corporalis injuria non recipit aestimationem de futuro. A personal
injury does no receive satisfaction from a future course of proceding. Bacon's
Max. in Reg. 6.
Cuilibet in arte sua herito credendum est. Every one should be believed
skilful in how own art. Co. Litt. 125. Vide Experts; Opinion.
Cujus est commodum ejus debet esse incommodum. He who receives the
benefit should also bear the disadvantage.
Cujus est dare ejus est disponere. He who has a right to give, has the
right to dispose of the gift.
Cujus per errorem dati repetitio est, ejus consulto dati donatio
est. Whoever pays by mistake what he does not owe, may recover it back; but he
who pays, knowing he owes nothing; is presumed to give.
Cujus est solum, ejus est usque ad caelum. He who owns the soil, owns up
to the sky. Co. Litt. 4 a; Broom's Max. 172; Shep. To. 90; 2 Bouv. Inst. n. 15,
Cujus est divisio alterius est electio. Which ever of two parties has
the division, the other has the choice. Co. Litt. 166.
Cujusque rei potissima pars principium est. The principal part of
everything is the beginning. Dig. 1, 2, 1; 10 Co. 49.
Culpa tenet suos auctores. A fault finds its own.
Culpa est immiscere se rei ad se non pertinenti. It is a fault to meddle
with what does not belong to or does not concern you. Dig. 50, 17, 36.
Culpa paena par esto. Let the punishment be proportioned to the
Culpa lata aequiparatur dolo. A concealed fault is equal to a deceit.
Cui pater est populus non habet ille patrem. He to whom the people is
father, has not a father. Co. Litt. 123.
Cum confitente sponte mitius est agendum. One making a voluntary
confession, is to be dealt with more mercifully. 4 Co. Inst. 66.
Cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est.
When two things repugnant to each other are found in a will, the last is to be
confirmed. Co. Litt. 112.
Cum legitimae nuptiae factae sunt, patrem liberi sequuntur. Children
born under a legitimate marriage follow the condition of the father.
Cum adsunt testimonia rerum quid opus est verbis. When the proofs of
facts are present, what need is there of words. 2 Buls. 53.
Curiosa et captiosa intepretatio in lege reprobatur. A curious and
captious interpretation in the law is to be reproved. 1 Buls. 6.
Currit tempus contra desides et sui juris contemptores. Time runs
against the slothful and those who neglect their rights.
Cursus curiae est lex curiae. The practice of the court is the law of
the court. 3 Buls. 53.
De fide et officio judicis non recipitur quaestio; sed de scientia, sive
error sit juris sive facti. Of the credit and duty of a judge, no question can
arise; but it is otherwise respecting his knowledge, whether he be mistaken as
to the law or fact. Bacon's max. Reg. 17.
De jure judices, de facto juratores, respondent. The judges answer to
the law, the jury to the facts.
De minimis non curat lex. The law does not notice or care for trifling
matters. Broom's Max. 333; Hob. 88; 5 Hill, N.Y. Rep. 170.
De morte hominis nulla est cunctatio longa. When the death of a human
being may be the consequence, no delay is long. Col Litt. 134. When the
question is on the life or death of a man, no delay is too long to admit of
inquiring into facts.
De non apparentibus et non existntibus eadem est ratio. The reason is
the same respecting things which do not appear, and those which do not
De similibus ad similia eadem ratione procedendum est. From similars to
similars, we are to proceed by the same rule.
De similibus idem est judicium. Concerning similars the judgment is the
same. 7 Co. 18.
Debet esse finis litium. There ought to be an end of law suits. Jenk.
Debet qui juri subjacere ubi delinquit. Every one ought to be subject to
the law of the place where he offends. 3 Co. Inst. 34.
Debile fundamentum, fallit opus. Where there is a weak foundation, the
work falls. 2 Bouv. Inst. n. 2068.
Debita sequuntur personam debitoris. Debts follow the person of the
debtor. Story, Confl. of Laws, §362.
Debitor non praesumitur donare. A debtor is not presumed to make a gift.
See 1 Kames' Eq. 212; Dig. 50, 16, 108.
Debitum et contractus non sunt nullius loci. Debt and contract are of no
Delegata potestas non potest delegari. A delegated authority cannot be
again delegated. 2 Co. Inst. 597; 5 Bing. N. C. 310; 2 Bouv. Inst. n. 1300.
Delegatus non potest delegare. A delegate or deputy cannot appoint
another. 2 Bouv. Inst. n. 1936; Story, Ag. §33.
Derativa potestas non potest esse major primitiva. The power which is
derived cannot be greater than that from which it is derived.
Derogatur legi, cum pars detrahitur; abrogatur legi, cum prorsus
tollitur. To derogate from a law is to enact something contrary to it; to
abrogate a law, is to abolish it entirely. Dig. 50, 16, 102. See 1 Bouv. Inst.
Designatio unius est exclusio alterius, et expressum facit cessare
tacitum. The appointment or designation of one is the exclusion of another; and
that expressed makes that which is implied cease. Co. Litt. 210.
Dies dominicus non est juridicus. Sunday is not a day in law. Co. Litt.
135 a; 21 Saund. 291. See Sunday.
Dies inceptus pro completo habetur. The day of undertaking or
commencement of the business is held as complete.
Dies incertus pro conditione habetur. A day uncertain is held as a
Dilationes in lege sunt odiosae. Delays in law are odious.
Disparata non debent jungi. Unequal things ought not to be joined. Jenk.
Cent. 24. ,
Dispensatio est vulnus, quod vulnerat jus commune. A dispensation is a
wound which wounds a common right. Dav. 69.
Dissimilum dissimiles est ratio. Of disimilars the rule is dissimilar.
Co. Litt. 191.
Divinatio non interpretatio est, quae omnino recedit a litera. It is a
guess not interpretation which altogether departs from the letter. Bacon's Max.
in Reg. 3, p. 47.
Dolosus versatur generalibus. A deceiver deals in generals. 2 Co.
Dolus auctoris non nocet successori. The fraud of a possessor does not
prejudice the successor.
Dolus circuitu non purgator. Fraud is not purged by circity. Bacon's
Max. in Reg. 1.
Domus sua cuique est tutissimum refugium. Every man's house is his
castle. 5 Rep. 92.
Domus tutissimum cuique refugium atque receptaculum. The habitation of
each one is an inviolable asylum for him. Dig. 2, 4, 18.
Donatio perficitur possesione accipientis. A gift is rendered complete
by the possession of the receiver. See 1 Bouv. Innt. n. 712; 2 John. 52; 2
Donatio non praesumitur. A gift is not presumed.
Donatur nunquam desinit possidere antequam donatarius incipiat
possidere. He that gives never ceases to possess until he that receives begins
to possess. Dyer, 281.
Dormiunt aliquando leges, nunquam moriuntur. The laws sometimes sleep,
but neyer die. 2 Co. Inst. 161.
Dos de dote peti non debet, Dower ought not to be sought from dower. 4
Duas uxores eodem tempore habere non potest. It is not lawful to have
two wives at one time. Inst. 1, 10, 6.
Duo non possunt in solido unam rem possidere. Two cannot possess one
thing each in entirety. Co. Litt. 368.
Duplicationem possibilitatis lex non patitur. It is not allowed to
double a possibility. 1 Roll. R. 321.
Ea est accipienda interpretation, qui vitio curet. That interpretation
is to be received, which will not intend a wrong. Bacon's Max. Reg. 3, p.
Ei incumbit probatio qui dicit, non qui negat. The burden of the proof
lies upon him who affirms, not he who denies. Dig. 22, 3, 2; Tait on Ev. 1; 1
Phil. Ev. 194; 1 Greenl. Ev. §74; 3 Louis. R. 83; 2 Dan. Pr. 408; 4 Bouv
Inst. n. 4411.
Ei nihil turpe, cui nihil satis. To whom nothing is base, nothing is
sufficient. 4 Co. Inst. 53.
Ejus est non nolle, qui potest velle. He who may consent tacitly, may
consent expressly. Dig. 50, 17, 8.
Ejus est periculum cujus est dominium aut commodum. He who has the risk
has the dominion or advantage.
Electa una via, non datur recursus ad alteram. When
there is concurrence of means, he who has chosen one cannot have recourse to
another. 10 Toull. n. 170.
Electio semel facta, et placitum testatum, non patitur regressum.
Election once made, and plea witnessed, suffers not a recall. Co. Litt.
Electiones fiant rite et libere sine interruptione aliqua. Elections
should be made in due form and freely, without any interruption. 2 Co. Inst.
Enumeratio infirmat regulam in casibus non enumeratis. Enumeration
affirms the rule in cases not enumerated. Bac. Aph. 17.
Equality is equity. Francis' Max., Max. 3; 4 Bouv. Inst. n. 3725.
Equity suffers not a right without a remedy. 4 Bouv. Inst. n. 3726.
Equity looks upon that as done, which ought to be done. 4 Bouv. Inst. n.
3729; 1 Fonbl. Eq. b. 1, ch. 6, s. 9, note; 3 Wheat. 563.
Error fucatus nuda veritate in multis est probabilior; et
saepenumero rationibus vincit veritatem error. Error artfully colored is in
many things more probable than naked truth; and frequently error conquers truth
and reasoning. 2 Co. 73.
Error juris nocet. Error of law is injurious. See 4 Bouv. Inst. n.
Error qui non resistitur, approbatur. An error not resisted is approved.
Doct. & Stud. c. 70.
Error scribentis nocere non debet. An error made by a clerk ought not to
injure; a clerical error may be corrected.
Errores ad sua principia referre, est refellere. To refer errors to
their origin is to refute them. 3 Co. Inst. 15.
Est autem vis legem simulans. Violence may also put on the mask of
Est boni judicis ampliare jurisdictionem. It is the part of a good judge
to extend the jurisdiction.
Ex antecedentibus et consequentibus fit optima interpretatio. The best
interpration is made from antecedents and consequents. 2 Co. Inst. 317.
Ex diuturnitate temporis, amnia praesumuntur solemniter esse acta. From
length of time, all things are presumed to have been done in due form. Co.
Litt. 6; 1 Greenl. Ev. §20.
Ex dolo malo non oritur action. Out of fraud no action arises. Cowper,
343; Broom's Max. 349.
Ex facto jus oritur. Law arises out of fact; that is, its application
must be to facts.
Ex malificio non oritur contractus. A contract cannot arise out of an
act radically wrong and illegal. Broom's Max. 851.
Ex multitudine signorum, colligitur identitas vera. From the great
number of signs true identity may be ascertained. Bacon's Max. in Reg. 25.
Ex nudo pacto non oritur action. No actions arises on a naked contract
without a consideration. See Nudum Pactum.
Ex tota materia emergat resolutio. The construction or resolution should
arise out of the whole subject matter.
Ex turpi causa non oritur action. No action arises out of an immoral
Ex turpi contractu non oritur actio. No action arises on an immoral
Ex uno disces omnes. From one thing you can discern all.
Excusat aut extenuat delictum in capitalibus, quod non operatur idem in
civilibus. A wrong in capital cases is excused or palliated which would not be
so in civil matters. Bacon's Max. Reg. 7.
Exceptio ejus rei cujus petitiur dissolutio nulla est. There can be no
plea of that thing of which the dissolution is sought. Jenk. Cent. 37.
Exceptio falsi omnium ultima. A false plea is the basest of all
Exceptio firmat regulam in contrarium. The exception affirms the rule in
contrary cases. Bac. Aph. 17.
Exceptio firmat regulam in casibus non exceptis. The exception affirms
the rule in cases not excepted. Bac. Aph. 17.
Exceptio nulla est versus actionem quae exceptionem perimit. There can
be no plea against an action which entirely destroys the plea. Jenk. Cent.
Exceptio probat regulam de rebus non exceptio. An exception proves the
rule concerning things not excepted. 11 Co. 41.
Exceptio quoque regulam declarat. The exception also declares the rule.
Bac. Aph. 17.
Exceptio semper ultima ponenda est. An exception is always to be put
last. 9 Co. 53.
Executio est finis et fructus legis. An execution is the end and the
first fruit ofthe law. Co. Litt. 259.
Executio juris non habet injuriam. The execution of the law causes no
injury. 2 Co. Inst. 482; Broom's Max. 57.
Exempla illustrant non restringunt legem. Examples illustrate and do not
restrict the law. Co. Litt. 24.
Expedit reipublicae ut sit finis litium. It is for the public good that
there be an end of litigation. Co. Litt. 303.
Expressa nocent, non expressa non nocent. Things expressed may be
prejudicial; things not expressed are not. See Dig. 50, 17, 195.
Expressio eorum quae tacite insunt nihil operatur. The expression of
those things which are tacitly implied operates nothing.
Expressio unius est exclusio alterius. The expression of one thing is
the exclusion of another.
Expressum facit cessare tacitum. What is expressed renders what is
Extra legem positus est civiliter mortuus. One out of the pale of the
law, (an outlaw,) is civilly dead.
Extra territorium jus dicenti non paretur impune. One who exercises
jurisdiction out of his territory is not obeyed with impunity.
Facta sunt potentiora verbis. Facts are more powerful than words.
Factum a judice quod ad ujus officium non spectat, non ratum est.
An act of a judge which does not relate to his office, is of no force. 10 Co.
Factum negantis nulla probatio. Negative facts are not proof.
Factum non dictur quod non perseverat. It cannot be called a deed which
does not hold out or persevere. 5 Co. 96.
Factum unius alteri nocere non debet. The deed of one should not hurt
the other. Co. Litt. 152.
Facultas probationum non est angustanda. The faculty or right of
offering proof is not to be narrowed. 4 Co. Inst. 279.
Falsa demonstratio non nocet. A false or mistaken description does not
vitiate. 6T. R. 676; see 2 Story's Rep. 291; 1 Greenl. Ev. § 301.
Falsa ortho graphia, sive falsa grammatica, non vitiat concessionem.
False spelling or false grammar do not vitiate a grant. 9 Co. 48; Sheph. To.
Falsus in uno, falsus in omnibus. False in one thing, false in
everything. 1 Sumn. 356.
Fiat justitia ruat coelum. Let justice be done, though the heavens
Felonia implicatur in quolibet proditione. Felony is included or implied
in every treason. 3 Co. Inst. 15.
Festinatio justitiae est noverca infortunii. The hurrying of justice is
the stepmother of misfortune. Hob. 97.
Fiat prout, fieri consuerit, nil temere novandum. Let it be done as
formerly, let nothing be done rashly. Jenk. Cent. 116.
Fictio est contra veritatem, sed pro veritate habetur. Fiction is against
the truth, but it is to have truth.
Finis rei attendendus est. The end of a thing is to be attended to. 3
Co. Inst. 51.
Finis finem litibus imponit. The end puts an end to litigation. 3 Inst.
Finis unius diei est principium alterius. The end of one day is the
beginning of another. 2 Buls. 305.
Firmior et potentior est operatio legis quam dispositio hominis. The
disposition of law is firmer and more powerful than the will of man. Co. Litt.
Flumina et protus publica sunt, ideoque jus piscandi omnibus commune
est. Rivers and ports are public, therefore the right of fishing there is
common to all.
Faemina ab omnibus officiis civilibus vel publicis remotae sunt. Women
are excluded from all civil and public charges or offices. Dig. 50, 17, 2.
Forma legalis forma essentialis. Legal form is essential form. 10 Co.
Forma non observata, inferiur adnullatio actus. When form is not
observed a nullity of the act is inferred. 12 Co. 7.
Forstellarius est pauperum depressor, et totius communitatis et patriae
publicus inimicus. A forestaller is an oppressor of the poor, and a public
enemy to the whole community and the country. 3 Co. Inst. 196.
Fortior est custodia legis quam hominis. The custody of the law is
stronger than that of man. 2 Roll. R. 325.
Fortior et potentior est dispositio legis quam hominis. The disposition
of the law is stronger and more powerful than that of man. Co Litt. 234.
Fraus est celare fraudem. It is a fraud to conceal a fraud. 1 Vern.
Fraus est odiosa et non praesumenda. Fraud is odious and not to be
presumed. Cro. Car. 550.
Fraus et dolus nemini patrocianari debent. Fraud and deceit should
excuse no man. 3 Co. 78.
Fraus et jus numquam cohabitant. Fraud and justice never agree together.
Fraus latet in generalibus. Fraud lies hid in general expressions.
Fraus meretur fraudem. Fraud deserves fraud. Plow. 100. This is very
Fructus pendentes pars fundi videntur. Hanging fruits make part of the
land. Dig. 6, 1, 44; 2 Bouv. Inst. n. 1578. See Larceny.
Fructus perceptos villae non esse constat. Gathered fruits do not make a
part of the house. Dig. 19, 1, 17, 1; 2 Bouv. Inst. n. 1578.
Frustra est potentia quae numcquam venit in actum. The power which
never comes to be exercised is vain. 2 Co. 51.
Frustra feruntur legis nisi subditis et obedientibus. Laws are made
to no purpose unless for those who are subject and obedient. 7 Co. 13.
Frustra legis auxilium quaerit qui in legem committit. Vainly does
he who offends against the law, seek the help of the law.
Frustra petis quoa statim alteri reddere cogeris. Vainly you ask
that which you will immediately be compelled to restore to another. Jenk. Cent.
Frustra probatur quod probatum non relevat. It is vain to prove
that which if proved would not aid the matter in question.
Furiosus absentis loco est. The insane is compared to the absent. Dig.
50, 17, 24, 1.
Furiosus solo furore punitur. A madman is punished by his madness alone.
Co. Litt. 247.
Furtum non est ubi initium habet detentionis per dominum rei. It is not
theft where the commencement of the detention arises through the owner of the
thing. 3 Co. Inst. 107.
Generale tantum valet in generalibus, quanium singulare singulis. What
is general prevails or is worth as much among things general, as what is
particular among things particular. 11 Co. 59.
Generale dictum generaliter est interpretandum. A general expression is
to be construed generally. 8 co. 116.
Generale nihil certum implicat. A general expression implies nothing
certain. 2 Co. 34.
Generalia sunt praeponenda singularibus. General things are to be put
before particular things.
Generalia verba sunt generaliter intelligenda. General words are
understood in a general sense. 3 Co. Inst. 76.
Generalis clausula non porrigitur ad ea quae antea specialiter sunt
comprehensa. A general clause does not extend to those things which are
previously provided for specially. 8 Co. 154.
Haeredem Deus facit, non homo. God and not man, make the heir.
Haeredem est nomen collectivum. Heir is a collective name.
Haeris est nomen juris, filius est nomen naturae. Heir is a term of law,
son one of nature.
Haeres est aut jure proprietatis aut jure representationis. An heir is
either by right of property or right of representation. 3 Co. 40.
Haeres est alter ispe, et filius est pars patris. An heir is another
self, and a son is a part of the father.
Haeres est eadem persona cum antecessore. The heir is the same person
with the ancestor. Co. Litt. 22.
Haeres haeredis mei est meus haeres. The heir of my heir is my heir.
Haeres legitimus est quem nuptiae demonstrant. He is the lawful heir
whom the marriage demonstrates.
He who has committed iniquity, shall not have equity. Francis' Max.,
He who will have equity done to him, must do equity to the same person.
4 Bouv. Inst. n. 3723.
Hominum causa jus constitutum est. Law is established for the
benefit of man.
Id quod nostrum est, sine facto nostro ad alium transferi non potest.
What belongs to us cannot be transferred to another without our consent. Dig.
50, 17, 11. But this must be understood with this qualification, that the
government may take property for public use, paying the owner its value. The
title to property may also be acquired, with the consent of the owner, by a
judgment of a competent tribunal.
Id certum est quod certum reddi potest. That is certain which may be
rendered certain. 1 Bouv. Inst. n. 929; 2 Bl. Com. 143; 4 Kernt com. 462; 4
Idem agens et patiens esse non potest. One cannot be agent and patient,
in the same matter. Jenk. Cent. 40.
Idem est facere, et nolle prohibere cum possis. It is the same thing to
do a thing as not to prohibit it when in your power. 3 Co. Inst. 178.
Idem est non probari et non esse; non deficit jus, sed probatio. What
does not appear and what is not is the same; it is not the defect of the law,
but the want of proof.
Idem est nihil dicere et insufficienter dicere. It is the same thing to
say nothing and not to say it sufficiently. 2 Co. Inst. 178.
Idem est scire aut scire debet aut potuisse. To be able to know is the
same as to know. This maxim is applied to the duty of every one to know the
Idem non esse et non apparet. It is the same thing not to exist and not
to appear. Jenk. Cent. 207.
Idem semper antecedenti proximo refertur. The same is always referred to
its next antecedent. Co. Litt. 385.
Identitas vera colligitur ex multitudine signorum. True identity is
collected from a number of signs.
Id perfectum est quod ex omnibus suis partibus constat. That is perfect
which is complete in all its parts. 9 Co. 9.
Id possumus quod de jure possumus. We may do what is allowed by law.
Ignorantia excusatur, non juris sed facti. Ignorance of fact may excuse,
but not ignorance of law. See Ignorance.
Ignorantia legis neminem excusat. Ignorance of fact may excuse, but not
ignorance of law. 4 Bouv. Inst. n. 3828.
Ignorantia facti excusat, ignorantia juris non excusat. Ignorance of
facts excuses, ignorance of law does not excuse. 1 Co. 177; 4 Bouv. Inst. n
3828. See Ignorance.
Ignorantia judicis est calamitas innocentis. The ignorance of the judge
is the misforture of the innocent. 2 Co. Inst. 591.
Ignorantia terminis ignoratur et ars. An ignorance of terms is to be
ignorant of the art. Co. Litt. 2.
Illud quod alias licitum non est necessitas facit licitum, et necessitas
inducit privilegium quod jure privatur. That which is not otherwise permitted,
necessity allows, and necessity makes a privilege which supersedes the law. 10
Imperitia culpae annumeratur. Ignorance, or want of skill, is considered
a negligence, for which one who professes skill is responsible. Dig. 50, 17,
132; 1 Bouv. Inst. n. 1004.
Impersonalitas non concludit nec ligat. Impersonality neither concludes
nor binds. Co. Litt. 352.
Impotentia excusat legem. Impossibility excuses the law. Co. Litt.
Impunitas continuum affectum tribuit delinquenti. Impunity offers a
continual bait to a delinquent. 4 Co. 45.
In alternativis electio est debitoris. In alternatives there is an
election of the debtor.
In aedificiis lapis male positus non est removendus. A stone badly
placed in a building is not to be removed. 11 Co. 69.
In aequali jure melior est conditio possidentis. When the parties have
equal rights, the condition of the possessor is the better. Mitf. Eq. Pl. 215;
Jer. Eq. Jur. 285; 1 Madd. Ch. Pr. 170; Dig. 50, 17, 128. Plowd. 296.
In commodo haec pactio, ne dolus praestetur, rata non est. If in a
contract for a loan there is inserted a clause that the borrower shall not be
answerable for fraud, such clause is void. Dig. 13, 6, 17.
In conjunctivis oportet utramque partem esse veram. In conjunctives each
part ought to be true. Wing. 13.
In consimili casu consilile debet esse remedium. In similar cases the
remedy should be similar. Hard. 65.
In contractibus, benigna; in testamentis, benignior; in restitutionibus,
benignissima interpretatio facienda est. In contracts, the interpretation or
construction should be liberal; in wills, more liberal; in restitutions, more
liberal. Co. Litt. 112.
In conventibus contrahensium voluntatem potius quam verba spectari
placuit. In the agreements of the contracting parties, the rule is to regard
the intention rather than the words. Dig. 50, 16, 219.
In criminalibus, probationes bedent esse luce clariores. In criminal
cases, the proofs ought to be clearer than the light. 3 Co. inst. 210.
In criminalibus sufficit generalis malitia intentionis cum facto paris
gradus. In criminal cases a general intention is sufficient, when there is an
act of equal or corresponding degree. Bacon's Max. Reg. 15.
In disjunctivis sufficit alteram partem esse veram. In disjunctives, it
is sufficient if either part be true. Wing. 15.
In dubiis magis dignum est accipiendum. In doubtful cases the more
worthy is to be taken. Branch's Prin. h.t.
In dubiis non praesumitur pro testamento. In doubtful cases there is no
presumption in favor of the will. Cro. Car. 51.
In dubio haec legis constructio quam verba ostendunt. In a doubtful
case, that is the construction of the law which the words indicate. Br. Pr. h.
In dubio pars melior est sequenda. In doubt, the gentler course is to be
In dubio, sequendum quod tutius est. In doubt, the safer course is to be
In eo quod plus sit, semper inest et minus. The less is included in the
greater. 50, 17, 110.
In facto quod se habet ad bonum et malum magis de bono quam de malo lex
intendit. In a deed which may be considered good or bad, the law looks more to
the good than to the bad. Co. Litt. 78.
In favorabilibus magis attenditur quod prodest quam quod nocet. In
things favored what does good is more regarded than what does harm. Bac. Max.
in Reg. 12.
In fictione juris, semper subsistit aequitas. In a fiction of law,
equity always subsists. 11 Co. 51.
In judiciis minori aetati sucuritur. In judicial proceedings, infancy is
aided or favored.
In judicio non creditur nisi juratis. In law none is credited unless he
is sworn. All the facts must when established, by witnesses, be under oath or
affirmation. Cro. Car. 64.
In jure non remota causa, sed proxima spectatur. In law the proximate,
and not the remote cause, is to be looked to. Bacon's Max. REg. 1.
In majore summa continetur minor. In the greater sum is contained
the less. 5 Co. 115.
In maleficio ratihabitio mandato comparatur. He who ratifies a bad
action is considered as having ordered it. Dig. 50, 17, 152, 2.
In mercibus illicitis non sit commercium. NO commerce should be in
illicit goods. 3 Kent, Com. 262, n.
In maxima potentia minima licentia. In the greater power
is included the smaller license. Hob. 159.
In obscuris, quod minimum est, sequitur. In obscure cases, the milder
course ought to be pursued. Dig. 50, 17, 9.
In odium spoliatoris omnia praesumuntur. All things are presumed in
odium of a despoiler. 1 Vern. 19.
In omni re nascitur res qua ipsam rem exterminat. In everything, the
thing is born which destroys the thing itself. 2 Co. Inst. 15.
In omnibus contractibus, sive nominatis sive innominatis, permutatio
continetur. In every contract, whether nominate or innominate, there is implied
In omnibus quidem, maxime tamen in jure, aequitas spectanda sit. In
all affairs, and principally in those which concern the administration of
justice, the rules of equity ought to be followed. Dig. 50, 17, 90.
In omnibus obligationibus, in quibus dies non ponitar, praesenti die
debutur. In all obligations when no time is fixed for the payment, the thing is
due immediately. Dig. 50, 17, 14.
In praesentia majoris potestatis, minor potestas cessat. In the presence
of the superior power, the minor power ceases. Jenk. Cent. 214.
In pari causa possessor potior haberi debet. When two parties have equal
rights, the advantage is always in favor of the possessor. Dig. 50, 17,
In pari causa possessor potior est. In an equal case, better is the
condition of the possessor. Dig. 50, 17, 128; Poth. Vente, n. 320; 1 Bouv.
Inst. n. 952.
In pari delicto melior est conditio possidentis. When the parties are
equally in the wrong, the condition of the possessor is better. 11 Wheat. 258;
3 Cranch 244; Cowp. 341; Broom's Max. 325; 4 Bouv. Inst. n. 3724.
In propria cuusa nemo judex. No one can be judge in his
In quo quis delinquit, in eo de jure est puniendus. In whatever thing on
offends, in that he is rightfully to be punished. Co. Litt. 233.
In repropria iniquum admodum est alicui licentiam tribuere
sententiae. It is expremely unjust that any one should be judge in his own
In re dubia magis inficiato quam affirmatio intelligenda. In a
doubtful matter, the negative is to be understood rather than the affirmative.
In republica maxime conservanda sunt jura belli. In the
state the laws of war are to be greatly preserved. 2 Co. Inst. 58.
In restitutionem, non in paenam haeres succedit. The heir succeeds to
the restitution not the penalty. 2 Co. Inst. 198.
In restitutionibus benignissima interpretatio facienda est. The most
favorable construction is made in restitutions. Co. Litt. 112.
In suo quisque negotio hebetior est quam in alieno. Every one is more
dull in his own business than in that of another. Co. Litt. 377.
In toto et pars continetur. A part is included in the whole. Dig. 50,
In traditionibus scriptorum non quod dictum est, sed quod gestum est,
inscpicitur. In the delivery of writing, not what is said, but what is done is
to be considered. 9 co. 137.
Incerta pro nullius habentur. Things uncertain are held for nothing Dav.
Incerta quantitas vitiat acium. An uncertain quantity vitiates the act.
1 Roll. R. 465.
In civile est nisi tota sententia inspectu, de aliqua parte judicare. It
is improper to pass an opinion on any part of a sentence, without examining the
whole. Hob. 171.
Inclusio unius est exclusio alterius. The inclusion of one is the
exclusion of another. 11 Co. 58.
Incommodum non solvit argumentum. An inconvenience does not solve an
Indefinitum aequipolet universali. The undefined is equivalent to the
whole. 1 Ventr. 368.
Indefinitum supplet locum universalis. The undefined supplies the place
of the whole Br. Pr. h. t.
Independenter se habet assecuratio a viaggio vanis. The voyage insured
is an independent or distinct thing from the voyage of the ship. 3 Kent, Com.
Index animi sermo. Speech is the index of the mind.
Inesse potest donationi, modus, conditio sive causa; ut modus est; si
conditio; quia causa. In a gift there may be manner, condition and cause; as,
(ut), introduces a manner; if, (si), a condition; because, (quia), a cause. Dy.
Infinitum in jure reprobatur. That which is infinite or endless is
reprehensible in law. 9 Co. 45.
Iniquum est alios permittere, alios inhibere mercaturam. It is
inequitable to permit some to trade, and to prohibit others. 3 Co. Inst.
Iniquum est aliquem rei sui esse judicem. It is against equity for any
one to be judge in his own cause. 12 Co. 13.
Iniquum est ingenuis hominibus non esse liberam rerum suarum
alienationem. It is against equity to deprive freeman of the free disposal of
their own property. Co. Litt. 223. See 1 Bouv. Inst. n. 455, 460.
Injuria non praesumitur. A wrong is not presumed. Co. Litt. 232.
Injuria propria non cadet in beneficium facientis. One's own wrong shall
not benefit the person doing it.
Injuria fit ei cui convicium dictum est, vel de eo factum carmen
famosum. It is a slander of him who a reproachful thing is said, or concerning
whom an infamous song is made. 9 Co. 60.
Intentio caeca, mala. A hidden intention is bad. 2 Buls. 179.
Intentio inservire debet legibus, non leges intentioni. Intentions ought
to be subservient to the laws, not the laws to intentions. Co. Litt. 314.
Intentio mea imponit nomen operi meo. My intent gives a name to my act.
Interest reipublicae ne maleficia remaneant impunita. It concerns the
commonwealth that crimes do not remain unpunished. Jenk. Cent. 30, 31.
Interest reipublicae res judicatas non rescindi. It concerns the common
wealth that things adjudged be not rescinded. Vide Res judicata.
Interest reipublicae quod homines conserventur. It concerns the
commonwealth that we be preserved. 12 Co. 62. Interest reipublicae ut qualibet
re sua bene utatur. it concerns the commonwealth that every one use his
property properly. 6 Co. 37.
Interest reipublicae ut carceres sint in tuto. It concerns the
commonwealth that prisons be secure. 2 Co. Inst. 589.
Interest reipublicae suprema hominum testamenta rata haberi. It concerns
the commonwealth that men's last wills be sustained. Co. Litt. 236.
Interest reipublicae ut sit finis litium. In concerns the commonwealth
that there be an end of law suits. Co. Litt. 303.
Interpretare et concordare leges legibus est optimus interpretandi
modus. To interpret and reconcile laws so that they harmonize is the best mode
of construction. 8 Co. 169.
Interpretatio fienda est ut res magis valeat quam pereat. That
construction is to be made so that the subject may have an effect rather than
none. Jenk. Cent. 198.
Interpretatio talis in ambiguis semper fienda, ut evitetur inconveniens
et absurdum. In ambiguous things, such a construction is to be made, that what
is inconvenient and absurd is to be avoided. 4 Co. Inst. 328.
Interruptio multiplex non tollit praescriptionem semel obtentam.
Repeated interruptions do not defeat a prescription once obtained. 2 Co. Inst.
Inutilis labor, et sine fructu, non est effectus legis. Useless labor
and without fruit, is not the effect of law. Co. Lit. 127.
Invito beneficium non datur. No one is obligedto accept a benefit
against his consent. Dig. 50, 17, 69. But if he does not dissent he will be
considered as assenting. Vide Assent.
Ipsae legis cupiunt ut jure regantur. The laws themselves require that
they should be governed by right. Co. Litt. 174.
Judex ante occulos aequitatem semper habere debet. A judge ought always
to have equity before his eyes. Jenk. Cent. 58.
Judex aeuitatem semper spectare debet. A judge ought always to regard
equity. Jenk. Cent. 45.
Judex bonus nihil ex arbitrio suo faciat, nec propositione domesticae
voluntatis, sed juxta legis et jura pronunciet. A good judge should do nothing
from his own judgment, or from the dictates of his private wishes; but he
should pronounce according to law and justice. 7 co. 27.
Judex debet judicare secundum allegata et probata. The judge ought to
decide according to the allegation and the proof.
Judex est lex loquens. The judge is the speaking law. 7 co. 4.
Judex non potest esse testis in propria causa. A judge
cannot be a witness in his own cause. 4 Co. Inst. 279.
Judex non potest injuriam sibi datum punire. A judge cannot punish a
wrong done to himself. 12 Co. 113.
Judex damnatur cum nocens absolvitur. The judge is condemned when the
guilty are acquitted.
Judex non reddat plus quam quod petens ipse requireat. The judge does
demand more than the plaintiff demands. 2 Inst. 286.
Judici officium suum excedenti non paretur. To a judge who exceeds his
office or jurisdiction no obedience is due. Jenk. Cent. 139.
Judici satis paena est quod Deum habet ultorem. It is punishment enough
for a judge that he is responsible to God. 1 Leon. 295.
Judicia in deliberationibus crebro naturescunt, in accelerato processu
nunquam. Judgments frequently become matured by deliberation, never by hurried
process. 3 Co. Inst. 210.
Judicia posteriora sunt in lege fortiora. The latter decisions are
stronger in law. 8 Co. 97.
Judicia sunt tanquam juris dicta, et pro veritate accipiuntur. Judgments
are, as it were, the dicta or sayings of the law, and are received as truth. 2
Co. Inst. 573.
Judiciis posterioribus fides est adhibenda. Faith or credit is to be
given to the last decisions. 13 Co. 14.
Judicis est in pronuntiando sequi regulam, exceptione non
probata. The judge in his decision ought to follow the rule, when the
exception is not made apparent.
Judicis est judicare secudnum allegata et probata. A judge ought to
decide according to the allegations and proofs. Dyer. 12.
Judicium a non suo judice datum nullius est momenti. A judgment
given by an improper judge is of no moment. 11 Co. 76.
Judicium non debet esse illusorium, suum effectum habere debet. A
judgment ought not to be illusory, it ought to have its consequence. 2 Inst.
Judicium redditur in invitum, in praesumptione legis. In presumption of
law, a judgment is given against inclination. Co. Litt. 248.
Judicium semper pro veritate accipitur. A judgment is always taken for
truth. 2 Co. Inst. 380.
Jura sanguinis nullo jure civili dirimi possunt. The right of blood and
kindred cannot be destroyed by any civil law. Dig. 50, 17, 9; Bacon's Max. Reg.
Jura naturae sunt immutabilia. The laws of nature are unchangeable.
Jura eodem modo distruuntur quo constituuntur. Laws are abrogated or
repealed by the same means by which they are made.
Juramentum est indivisibile, et non est admittendum in parte verum et in
parte falsam. An oath is indivisible, it cannot be in part true and in part
Jurato creditur in judicio. He who makes oath is to be believed in
Jurare est Deum in testum vocare, et est actus divini cultus. To swear
is to call God to witness, and is an act of religion. 3 Co. Inst. 165. Vide 3
Bouv. Inst. n. 3180, note; 1 Benth. Rat. of Jud. Ev. 376, 371, note.
Juratores sunt judices facti. Juries are the judges of the facts. Jenk.
Juris effectus in executione consistit. The effect of a law consists in
the execution. Co. Litt. 289.
Jus accrescendi inter mercatores locum non habet, pro beneficio
commercii. The right of survivorship does not exist among merchants for the
benefit of commerce. Co. Litt. 182; 1 Bouv. Inst. n. 682.
Jus accrescendi praefertur oneribus. The right of survivorship is
preferred to incumbrances. Co. Litt. 185.
Jus accrescendi praefertur ultimae voluntati. The right of survivorship
is preferred to a last will. Co. Litt. 1856.
Jus descendit et non terra. A right descends, not the land. Co. Litt.
Jus est ars boni et aequi. Law is the science of what is good and evil.
Dig. 1, 1, 1, l.
Jus et fraudem numquam cohabitant. Right and fraud never go
Jus ex injuria non oritur. A right cannot arise from a wrong. 4 Bing.
Jus publicum privatorum pactis mutari non potest. A public right cannot
be changed by private agreement.
Jus respicit aequitatem. Law regards equity. Co. Litt. 24.
Jus superveniens auctori accressit successors. A right owing to a
possessor accrues to a successor.
Justicia est virtus excellens et Altissimo complacens. Justice is an
excellent virtue and pleasing to the Most high. 4 inst. 58.
Justitia nemine neganda est. Justice is not to be denied. Jenk. Cent.
Justitia non est neganda, non differenda. Justice is not to be denied
nor delayed. Jenk. Cent. 93.
Justitia non novit patrem nec matrem, solum veritatem spectat justitia.
Justice knows neither father nor mother, justice looks to truth alone. 1 Buls.
La conscience est la plus changeante des regles. Conscience is the most
changeable of rules.
Lata culpa dolo aequiparatur. Gross negligence is equal to fraud.
Le contrat fait la loi. The contract makes the law.
Legatos violare contra jus gentium est. It is contrary to the law of
nations to violate the rights of ambassadors.
Legatum morte testatoris tantum confirmatur, sicut donatio inter vivos
traditione sola. A legacy is confirmed by the death of the testator, in
the same manner as a gift from a living person is by delivery alone. Dyer,
Leges posteriores priores contrarias abrogant. Subsequent laws repeal
those before enacted to the contrary. 2 Rol. R. 410; 11 Co. 626, 630.
Leges humanae nascuntur, vivunt et moriuntur. Human laws are born, live
and die. 7 co. 25.
Leges non verbis sed regus sunt impositae. Laws, not words, are imposed
on things. 10 Co. 101.
Legibus sumptis disinentibus, lege naturae utendum est. When laws
imposed by the state fail, we must act by the law of nature. 2 Roll. R.
Legis constructio non facit injuriam. The construction of law does no
wrong. Co. Litt. 183.
Legis figendi et refigendi consuetudo periculosissima est. The custom of
fixing and refixing (making and annulling) laws is most dangerous. 4 Co. Ad.
Legis interpretatio legis vim obtinet. The construction of law obtains
the force of law.
Legislatorum est viva vox, rebus et non verbis, legem imponere. The
voice of legislators is a living voice, to impose laws on things and not on
words. 10 Co. 101.
Legis minister non tenetur, in executione officii sui fugere aut
retrocedere. The minister of the law is not bound, in the execution of his
office, neither to fly nor retreat. 6 Co. 68.
Legitime imperanti parere necesse est. One who commands lawfully must be
obeyed. Jenk. Cent. 120.
Les fictions naissent de la loi, et non la loi des fictions. Fictions
arise from the law, and not law from fictions.
Lex aliquando sequitur aequitatem. The law sometimes follows equity. 3
Lex aequitate guadet; appetit perfectum; est norma recti. The law
delights in equity; it covets perfection; it is a rule of right. Jenk. Cent.
Lex beneficialis rei consimili remedium praestat. A beneficial law
affords a remedy in a similar case. 2 Co. Inst. 689.
Lex citius tolerare vult privatum damnum quam publicum malum. The law
would rather tolerate a private wrong than a public evil. Co. Litt. 152.
Lex de futuro, judex de praeterito. The law provides for the future, the
judge for the past.
Lex deficere non potest in justitia exhibendaa. The law
ought not to fail in dispensing justice. Co. Litt. 197.
Lex dilationes semper exhorret. The law always abhors delay. 2 Co. Inst.
Lex est ab aeterno. The law is from everlasting.
Lex est dictamen rationis. Law is the dictate of reason. Jenk. Cent.
Lex est norma recti. Law is a rule of right.
Lex est ratio summa, quae jubet quae sunt utilia et necessaria, et
contraria prohibet. Law is the perfection of reason, which commands what is
useful and necessary and forbids the contrary. Co. Litt. 319.
Lex est sanctio sancta, jubens honesta, et prohibens contraria. Law is a
scared sanction, commanding what is right and prohibiting the contrary. 2 Co.
Lex favet doti. The law favors dower.
Lex fingit ubi subsistit aequitas. Law feigns where equity subsists. 11
Lex intendit vicinum vicini facta scire. The law presumes that one
neighbor knows the actions of another. Co. Litt. 78.
Lex judicat de rebus necessario faciendis quasire ipsa factis. The law
judges of things which must necessarily be done, as if actually done.
Lex necessitatis est lex temporis, i.e. instantis. The law of necessity
is the law of time, that is, time present. Hob. 159.
Lex neminem cogit ad vana seu inutilia peragenda. The law forces no one to
do vain or useless things.
Lex nemini facit injuriam. The law does wrong to no one. Lex nemini
operatur iniquum, nemini facit injuriam. The law never works an injury,
or does him a wrong. Jenk. Cent. 22.
Lex nil facit frustra, nil jubet frustra. The law does nothing and
commands nothing in vain. 3 Buls. 279; Jenk. Cent. 17.
Lex non cogit impossibilia. The law requires nothing impossible. Co.
Litt. 231, b; 1 Bouv. Inst. n. 951.
Lex non curat de minimis. The law does not regard small matters. Hob.
Lex non cogit ad impossibilia. The law forces not to impossibilities. Hob.
Lex non praecipit inutilia, quia inutilis labor stultus. The law
commands not useless things, because useless labor is foolish. Co. Litt.
Lex non deficit in justitia exibenda. The law does not fail in showing
Lex non intendit aliquid impossibile. The law intends not anything
impossible. 12 Co. 89.
Lex non requirit verificare quod apparet curiae. The law does not
require that to be proved, which is apparent to the court. 9 Co. 54.
Lex plus laudatur quando ratione probatur. The law is the more praised
when it is consonant to reason.
Lex prospicit, non respicit. The law looks forward, not backward.
Lex punit mendacium. The law punishes falsehood.
Lex rejicit superflua, pugnantia, incongrua. The law rejects
superfluous, contradictory and incongruous things.
Lex reprobat moram. The law dislikes delay.
Lex semper dabit remedium. The law always gives a remedy. 3 Bouv. Inst.
Lex spectat naturae ordinem. The law regards the order of nature. Co.
Lex succurit ignoranti. The laws succor the ignorant.
Lex semper intendit quod convenit ratione. The law always intends what
is agreeable to reason. Co. Litt. 78.
Lex uno ore omnes alloquitur. The law speaks to all with one mouth. 2
Libertas inaestimabilis res est. Liberty is an inestimable good. Dig.
50, 17, 106.
Liberum corpus aestimationem non recipit. The body of a freeman does not
admit of valuation.
Licet dispositio de interesse furture sit inutilis, tamen potest fieri
declaratio praecedens quae fortiatur effectum interveniente novo actu. Although
the grant of a future interest be inoperative, yet a declaration precedent may
be made, which may take effect, provided a new act intervene. Bacon's Max. Reg.
Licita bene miscentur, formula nisi juris obstet. Things permitted
should be well contrived, lest the form of the law oppose. Bacon's Max. Reg.
Linea recta semper praefertur transversali. The right line is always
preferred to the collateral. Co. Litt. 10.
Locus contractus regit actum. The place of the contract governs the
Longa possessio est pacis jus. Long possession is the law of peace. Co.
Longa possessio parit jus possidendi, et tollit actionem vero domino.
Long possession produces the right of possession, and takes away from the true
owner his action. Co. Litt. 110.
Longum tempus, et longus usus qui excedit memoria hominum, sufficit pro
jure. Long time and long use, beyond the memory of man, suffices for right. Co.
Loquendum ut vulgus, sentiendum ut docti. We speak as the common people,
we must think as the learned. 7 Co. 11.
Magister rerum usus; magistra rerum experientia. Use is the master of
things; experience is the mistress of things. Co. Litt. 69, 229.
Manga negligentia culpa est, magna culpa dolus est. Gross negligence is
a fault, gross fault is a fraud. Dig 50, 16, 226.
Magna culpa dolus est. Great neglect is equivalent to fraud. Dig. 50,
16, 226; 2 Spears, R. 256; 1 Bouv. Inst. n. 646.
Maihemium est inter crimina majora minimum et inter minora maximum.
Mayhem is the least of great crimes, and the greatest of small. Co. Litt.
Mahemium est homicidium inchoatum. Mayhem is incipient homicide. 3 Inst.
Major haeriditas venit unicuique nostrum a jure et legibus quam
a parentibus. A greater inheritance comes to every one of us from right
and the laws than from parents. 2 Co. Inst. 56.
Major numerus in se continet minorem. The greater number contains in
itself the less.
Majore poena affectus quam legibus statuta est, non est infamis.
One affected with a greater punishment than is provided by law, is not
infamous. 4 Co. Inst. 66.
Majori continet in se minus. The greater includes the less. 19 Vin. Abr.
Majus dignum trahit in se minus dignum. The more worthy or the greater
draws to it the less worthy or the lesser. 5 Vin. Abr. 584, 586.
Majus est delictum seipsum occidare quam alium. It is a greater crime to
kill one's self than another.
Mala grammatica non vitiat chartam; sed in expositione instrumentorum
mala grammatica quoad fieri possit evitanda est. Bad grammar does not vitiate a
deed; but in the construction of instruments, bad grammar, as far as it can be
done, is to be avoided. 6 Co. 39.
Maledicta est expositio quae corrumpit textum. It is a bad construction
which corrupts the text. 4 Co. 35.
Maleficia non debent remanere impunita, et impunitas continuum affectum
tribuit delinquenti. Evil deeds ought not to remain unpunished, for impunity
affords continual excitement to the delinquent. 4 Co. 45.
Malificia propositus distinguuntur. Evil deeds are distinguished from
evil purposes. Jenk. Cent. 290.
Malitia est acida, est mali animi affectus. Malice is sour, it is the
quality of a bad mind. 2 Buls. 49.
Malitia supplet aetatem. Malice supplies age. Dyer, 104. See Malice.
Malum hominun est obviandum. The malice of men is to be avoided. 4 Co.
Malum non praesumitur. Evil is not presumed. 4 Co. 72.
Malum quo communius eo pejus. The more common the evil, the worse.
Malus usus est abolendus. An evil custom is to be abolished. Co. Litt.
Mandata licita recipiunt strictam interpretationem, sed illicita latam
et extensam. Lawful commands receive a strict interpretation, but unlawful, a
wide or broad construction. Bacon's Max. Reg. 16.
Mandatarius terminos sobi positos transgredi non potest. A mandatory
cannot exceed the bounds of his authority. Jenk. Cent. 53.
Mandatum nisi gratuitum nullum est. Unless a mandate is gratuitous it is
not a mandate. Dig. 17, 1, 4; Inst. 3, 27; 1 Bouv. Inst. n. 1070.
Manifesta probatione non indigent. Manifest things require no proof. 7
Maris et faeminae conjunctio est de jure naturae. The union of husband
and wife is founded on the law of nature. 7 Co. 13.
Matrimonia debent esse libera. Marriages ought to be free.
Matrimonium subsequens tollit peccatum praecedens. A subsequent marriage
cures preceding criminality.
Maxime ita dicta quia maxima ejus dignitas et certissima auctoritas,
atque quod maxime omnibus probetur. A maxim is so called because its
dignity is chiefest, and its authority most certain, and because universally
approved by all. Co. Litt. 11.
Maxime paci sunt contraria, vis et injuria. The greatest enemies to
peace are force and wrong. Co. Litt. 161.
Melior est justitia vere praeveniens quam severe pumens. That justice
which justly prevents a crime, is better than that which severely punishes
Melior est conditio possidentis et rei quam actoris. Better is the
condition of the possessor and that of the defendant than that of the
plaintiff. 4 Co. Inst. 180.
Melior est causa possidentis. The cause of the possessor is preferable.
Dig. 50, 17, 126, 2,.
Melior est conditio possidentis, ubi neuter jus habet. Better is the
condition of the possessor, where neither of the two has a right. Jenk. Cent.
Meliorem conditionem suum facere potest minor, deteriorem nequaquam. A
minor can improve or make his condition better, but never worse. Co. Litt.
Melius est omnia mala pati quam malo concentire. It is better to suffer
every wrong or ill, than to consent to it. 3 Co. Inst. 23.
Melius est recurrere quam malo currere. It is better to recede than to
proceed in evil. 4 Inst. 176.
Melius est in tempore occurrere, quam post causam vulneratum remedium
quaerere. It is better to restrain or meet a thing in time, than to see a
remedy after a wrong has been inflicted. 2 Inst. 299.
Mens testatoris in testamentis spectanda est. In wills, the intention of
the testator is to be regarded. Jenk. Cent. 277.
Mentiri est contra mentem ire. To lie is to go against the mind. 3 Buls.
Merx est quidquid vendi potest. Merchandise is whatever can be sold. 3
Metc. 365. Vide Merchandise.
Mercis appellatio ad res mobiles tantum pertinet. The term merchandise
belongs to movable things only. Dig. 50, 16, 66.
Minima paena corporalis est major qualibet pecuniaria. The
smallest bodily punishment is greater than any pecuniary one. 2 Inst. 220.
Minime mutanda sunt quae certam habuerent interpretationem. Things
which have had a certain interpretation are to be altered as little as
possible. Co. Litt. 365.
Minor ante tempus agere non potest in casu proprietatis, nec etiam
convenire. A minor before majority cannot act in a case of property, nor even
agree. 2 Inst. 291.
Minor minorem custodire non debet, alios enim praesumitur male regere
qui seipsum regere nuscit. A minor ought not to be guardian of a minor, for he
is unfit to govern others who does not know how to govern himself. Co. Litt.
Misera est servitus, ubi jus est vagum aut incertum. It is a miserable
slavery where the law is vague or uncertain. 4 Co. Inst. 246.
Mitius imperanti melius paretur. The more mildly one commands the better
is he obeyed. 3 Co. Inst. 24.
Mibilia personam sequuntur, immobilia situm. Movable things follow the
person, immovable their locality.
Modica circumstantia facti jus mutat. The smallest circumstance may
change the law.
Modus et conventio vincunt legem. Manner and agreement overrule the law.
2 Co. 73.
Modus legel dat donationi. The manner gives law to a gift. Co. Litt. 19
Moneta est justum medium et mensura rerum commutabilium, nam per meduim
monetae fit omnium rerum conveniens, et justa aestimatio. Money is the just
medium and measure of all commutable things, for, by the medium of money, a
convenient and just estimation of all things is made. Dav. 18. See 1 Bouv.
Inst. n. 922.
Mora reprobatur in lege. Delay is disapproved of in law.
Mors dicitur ultimum supplicium. Death is denominated the extreme
penalty. 3 Inst. 212.
Mortuus exitus non est exitus. To be dead born is not to be born. Co.
Litt. 29. See 2 Paige, 35; Domat, liv. prel. t. 2, s. 1, n. 4, 6; 2
Bouv. Inst. n. 1721 and 1935.
Multa conceduntur per obliquum quae non conceduntur de directo. Many
things are conceded indirectly which are not allowed directly. 6 co. 47. Multa
in jure communi contra rationem disputandi pro communi ultilitate introducta
sunt. Many things have been introduced into the common law, with a view to the
public good, whic are inconsistent with sound reason. Co. Litt. 70; Broom's
Max. 67; 2 Co. R. 75. See 3 T. R. 146; 7 T. R. 252.
Multa multo exercitatione facilius quam regulis percipies. You will
perceive many things more easily by practice than by rules. 4 Co. Inst. 50.
Multa non vetat lex. quae tamen tacite damnavit. The law forbids
many things, which yet it has silently condemned.
Multa transeunt cum universitate quae non per se transeunt. Many things
pass as a whole which would not pass separately.
Multi multa, non omnia novit. Many men know many things, no one knows
everything. 4 Co. Inst. 348.
Multiplex et indistinctum parit confusionem; et questiones quo
simpliciores, eo lucidiores. Multiplicity and indistinctness produce confusion;
the more simple questions are the more lucid. Hob. 335.
Multiplicata transgressione crescat paenae inflictio. The
increase of punishment shouldbe in proportion to the increase of crime. 2 Co.
Multitudo errantium non parit errori patrocinium. The multitude of those
who err is no excuse for error. 11 Co. 75.
Multitudo imperitorum perdit curiam. A multitude of ignorant
practitioners destroys a court. 2 Co. Inst. 219.
Natura appetit perfectum, ita et lex. Nature aspires to perfection, and
so does the law. Hob. 144.
Natura non facit saltum, ita nec lex. Nature makes no leap, nor does the
law. Co. Litt. 238.
Natura no facit vacuum, nec lex supervacuum. Nature makes no vacuum, the
law no supervacuum. Co. Litt. 79.
Naturae vis maxima, natura bis maxima. The force of nature is greatest;
nature is doubly great. 2 Co. Inst. 564.
Necessarium est quod non potest aliter se habere. That is necessity
which cannot be dispensed with.
Necessitas est lex temporis et loci. Necessity is the law of a
particular time and place. 8 Co. 69; H. H. P. C. 54.
Necessitaas excusat aut extenuat delicium in capitalibus, quod non
operatur idem in civilibus. Necessity excuses or extentuates delinquency in
capital cases, but not in civil. Vide Necessity.
Necessitas facit licitum quod alias non est licitum. Necessity makes
that lawful which otherwise is unlawful. 10 Co. 61.
Necessitas inducit privililegium quoad jura privata. Necessity gives a
preference with regard to private rights. Bacon's Max. REg. 5.
Necessitas non habet legem. Necessity has no law. Plowd. 18. See
Necessity, and 15 Vin. Ab. 534; 22 Vin. Ab. 540.
Necessitas publica major est quam private. Public necessity is greater
than private. Bacon's Max. in REg. 5.
Necessitas quod cogit, defendit. Necessity defends what it compels. H.
H. P. C. 54.
Necessitas vincit legem. Necessity overcomes the law. Hob. 144.
Negatio conclusionis est error in lege. The negative of a conclusion is
error in law. Wing. 268.
Negatio destruit negationem, et ambae faciunt affirmativum. A negative
destroys a negative, and both make an affirmative. Co. Litt. 146.
Negatio duplex est affirmatio. A double negative is an affirmative.
Negligentia semper habet infortuniam comitem. Negligence has misfortune
for a companion. Co. Litt. 246.
Neminem oportet esse sapientiorem legibus. No man ought to be wiser than
the law. Co. Litt. 97.
Nemo admittendus est inhabilitare seipsum. No one is allowed to
incapacitate himself. Jenk. Cent. 40. Sed vide "To stultify," and 5 Whart.
Nemo agit in seipsum. No man acts against himself; Jenk. Cent. 40;
therefore no man can be a judge in his own cause.
Nemo allegans suam turpitudinem, audiendus est. No one alleging his own
turpitude is to be heard as a witness. 4 Inst. 279.
Nemo bis punitur por eodem delicto. No one can be punished twice for the
same crime or misdemeanor. See Non bis in idem.
Nemo cogitur rem suam vendere, etiam justo pretio. No one is bound to
sell his property, even for a just price. Sed vide Eminent Domain.
Nemo contra factum suum venire potest. No man can contradict his own
deed. 2 Inst. 66.
Nemo damnum facit, nisi qui id fecit quod facere jus non habet. No one
is considered as committing damages, unless he is doing what he has no right to
do. Dig. 50, 17, 151.
Nemo dat qui non habet. No one can give who does not possess. Jenk.
Nemo de domo sua extrahi debet. A citizen cannot be taken by force from
his house to be conducted before a judge or to prison. Dig. 50, 17. This maxim
in favor of Roman liberty is much the same as that "every man's house is his
Nemo debet esse judex in propria causa. No one should be
judge in his own cause. 12 Co. 113.
Nemo debet ex aliena jactura lucrari. No one ought to gain
by another's loss.
Nemo debet immiscere se rei alienae ad se nihil pertinenti. No one
should interfere in what no way concerns him.
Nemo debet rem suam sine facto aut defectu suo amittere. No one should
lose his property without his act or negligence. Co. Litt. 263.
Nemo est haeres viventes. No one is an heir to the living. 2 Bl. Com.
107; 1 Vin. Ab. 104, tit. Abeyance; Merl. Rep. verbo Abeyance; Co. Litt.
342; 2 Bouv. Inst. n. 1694, 1832.
Nemo ex suo delicto melioroem suam conditionem facere potest. No one can
improve his condition by a crime. Dig. 50, 17, 137.
Nemo ex alterius facto praegravari debet. No man ought to be burdened in
consequence of another's act.
Nemo ex consilio obligatur. No man is bound for the advice he gives.
Nemo in propria causa testis ese debet. No one can be a witness in his
own cause. But to this rule there are many exceptions.
Nemo inauditus condemnari debet, si non sit contumax. No man ought to be
condemned unheard, unless he be contumacious.
Nemo nascitur artifex. No one is born an artist. Co. LItt. 97.
Nemo patriam in qua natus est exuere, nec ligeantiae debitum ejurare
possit. No man can renounce the country in which he was born, nor abjure the
obligation of his allegiance. Co. LItt. 129. Sed vide Allegiance; Expatriation;
Nemo plus juris ad alienum transfere potest, quam ispe habent. One
cannot transfer to another a right which he has not. Dig. 50, 17, 54; 10 Pet.
Nemo praesens nisi intelligat. One is not present unless he understands.
Nemo potest contra recordum verificare per patriam. No one can verify by
the country against a record. The issue upon a record cannot be tried by a
Nemo potest esse tenes et dominus. No man can be at the same time tenant
and landlord of the same tenement.
Nemo potest facere per alium quod per se non potest. No one can do that
by another which he cannot do by himself.
Nemo potest sibi devere. No one can owe to himself. See Confusion of
Nemo praesumitur alienam posteritatem suae praetulisse. No one is
presumed to have preferred another's posterity to his own.
Nemo praesumitur donare. No one is presumed to give.
Nemo praesumitur esse immemor suae aeternae salutis, et maxime in
articulo mortis. No man is presumed to be forgetful of his eternal welfare, and
particularly at the point of death. 6 Co. 76.
Nemo praesumitur malus. No one is presumed to be bad.
Nemo praesumitru ludere in extremis. No one is presumed to trifle at the
point of death.
Nemo prohibetur plures negotiationes sive artes exercere. No one is
restrained from exercising several kinds of business or arts. 11 Co. 54.
Nemo prohibetur pluribus defensionibus uti. No one is restrained from
using several defences. Co. Litt. 304.
Nemo prudens punit ut praeterita revocentur, sed ut futura
praeveniantur. No wise one punishes that things done may be revoked, but that
future wrongs may be prevented. 3 Buls. 173.
Nemo punitur pro alieno delicto. No one is to be punished for the crime
or wrong of another.
Nemo punitur sine injuria, facto, seu defalto. No one is punished
unless for some wrong, act or default. 2 Co. Inst. 287.
Nemo, qui condemnare potest, absolvere non potest. He who may condemn
may acquit. Dig. 50, 17, 37.
Nemo tenetur seipsum accusare. No one is bound to accuse himself.
Nemo tenetur ad impossibile. No one is bound to an impossibility.
Nemo tenetur armare adversarum contra se. No one is bound to arm his
Nemo tenetur divinare. No one is bound to foretell. 4 Co. 28.
Nemo tenetur informare qui nescit, sed quisquis scire quod informat. No
one is bound to inform about a thing he knows not, but he who gives information
is bound to know what he says. Lane, 110.
Nemo tenetur jurare in suam turpitudinem. No one is bound to testify to
his own baseness.
Nemo tenetur seipsam infortunis et periculis exponere. No one is bound
to expose himself to misfortune and dangers. Co. Litt. 253.
Nemo tenetur seipsum accusare. No man is bound to accuse himself.
Nemo videtur fraudare eos qui sciunt, et consentiunt. One cannot
complain of having been deceived when he knew the fact and gave his consent.
Dig. 50, 17, 145.
Nihil dat qui non habet. He gives nothing who has nothing.
Nihil de re accrescit ei qui nihil in re quando jus accresceret habet.
Nothing accrues to him, who, when the right accrues, has nothing in the subject
matter. Co. Litt. 188.
Nihil facit error nominis cum de corpore constat. An error in the name
is nothing when there is certainty as to the person. 11 Co. 21.
Nihil habet forum ex scena. The court has nothing to do with what
is not before it.
Nihil infra regnum subditos magis conservat in tranquilitate et
concordia quam debita legum administratio. Nothing preserves in
tranquility and concord those who are subjected to the same government better
than a due administration of the laws. 2 Co. Inst. 158.
Nihil in lege intolerabilius est, eandem rem diverso jure censeri.
Nothing in law is more intolerable than to apply the law differently to the
same cases. 4 Co. 93.
Nihil magis justum est quam quod necessarium est. Nothing is more just
that what is necessary. Dav. 12.
Nihil perfectum est dum aliquid restat agendum. Nothing is perfect while
something remains to be done. 2 co. 9.
Nihil possumus contra veritatem. We can do nothing against truth. Doct.
& Stu. Dial. 2, c. 6.
Nihil quod est contra rationem est licitum. Nothing against reason is
lawful. Co. Litt. 97.
Nihil quod inconveniens est licitum est. Nothing inconvenient is
Nihil simul inventum est et perfectum. Nothing is invented and perfected
at the same moment. Co. Litt. 230.
Nihil tam naturale est, quam eo genere quidque dissolvere, quo
colligatum est. It is very natural that an obligation should not be dissolved
but by the same principles which were observed in contracting it. Dig. 50, 17,
35. See 1 Co. 100; 2 Co. Inst. 359.
Nihil tam conveniens est naturali aequitati, quam voluntatem
domini voluntis rem suam in alium transferre, ratam haberi. Nothing is more
conformable to natural equity, than to confirm the will of an owner who desires
to transfer his property to another. Inst. 2, 1, 40; 1 Co. 100.
Nil tamere novandum. Nothing should be rashly changed. Jenk. Cent.
Nil facit error nominis, si de corpore constat. An error in the name is
immaterial, if the body is certain.
Nimia subtilitas in jure reporbatur. Too much subtlety is reprobated in
Nimium altercando veritas amiltitur. By too much altercation truth is
lost. Hob. 344.
No man is presumed to do anything against nature. 22 Vin. Ab. 154.
No man shall take by deed but parties, unless in remainder.
No man can hold the same land immediately of two several landlords. Co.
No man shall set up his infamy as a defence. 2 W. Bl. 364.
Necessity creates equity.
No one may be judge in his own cause.
Nobiliores et beniginores presumptiones in dubiis sunt praeferendae.
When doubts arise the most generous and benign presumptions are to be
Nomen est quasi rei notamen. A name is, as it were, the note of a thing.
11 Co. 20.
Nomen non sufficit si res non sit de jure aut de facto. A name does not
suffice if there be not a thing by law or by fact. 4 Co. 107.
Nomina si nescis perit cognitio rerum. If you know not the names of
things, the knowledge of things themselves perishes. Co. Litt. 86.
Nomina sunt notae rerum. Names are the notes of things. 11 Co. 20.
Nomina sunt mutabilia, res autem immobiles. Names are mutable, but
things immutable. 6 Co. 66.
Nomina sunt symbola rerum. Names are the symbols of things.
Non accipi debent verba in demonstrationem falsam, quae competunt in
limitationem veram. Words ought not to be accepted to import a false
demonstration which have effect by way of true limitation. Bacons' Max. REg.
Non alio modo puniatur aliquis, quam secundum quod se habet condemnatio.
A person may not be punished differntly than according to what the sentence
enjoins. 3 Co. Inst. 217.
Non concedantur citationes priusquam exprimatur super qua ne fieri debet
citatio. Summonses or citations should not be granted before it is expressed
under the circumstances whether the summons ought to be made. 12 Co. 47.
Non auditor perire volens. One who wishes to perish ought not to be
heard. Best on Evidence, §385.
Non consentit qui errat. He who errs does not consent. 1 Bouv. Inst. n.
Non debet, cui plus licet, quod minus est, non licere. He who is
permitted to do the greater, may with greater reason do the less. Dig. 50, 17,
Non decipitur qui scit se decipi. He is not deceived who knows himself to
be deceived. 5 co. 60.
Non definitur in jure quid sit conatus. What an attempt is, is not
defined in law. 6 Co. 42.
Non differunt quae concordant re, tametsi non in verbis iisdem. Those
things which agree in substance though not in the same words, do not differ.
Jenk. Cent. 70.
Non effecit affectus nisi sequatur effectus. The intention amounts to
nothing unless some effect follows. 1 Roll. R. 226.
Non est arctius vinculum inter homines quam jusjurandum. There is no
stronger link among men than an oath. Jenk. Cent. 126.
Non est disputandum contra principia negantem. There is no disputing
against a man denying principles. Co. Litt. 343.
Non est recedendum a communi abservantia. There is no
departing from a common observance. 2 Co. 74.
Non est regula quin fallat. There is no rule but what may fail. Off. Ex.
Non est certandum de regulis juris. There is no disputing about rules of
Non faciat malum, ut inde veniat bonum. You are not to do evil that good
may come of it. 11 Co. 74.
Non impedit clausula derogatoria, quo minus ab eadem potestate res
dissolvantur a quibus constitutuntur. A derogatory clause does not prevent
things or acts from being dissolved by the same power, by which they were
originally made. Bacon's Max. Reg. 19.
Non in legendo sed in intelligendo leges consistunt. The laws consist
not in being read, but in being understood. 8 co. 167.
Non licet quod dispendio licet. That which is permitted only at a loss,
is not permitted to be done. Co. Litt. 127.
Non nasci, et natum mori, pari sunt. Not to be born, and to be dead
born, is the same.
Non obligat lex nisi promulgata. A law is not obligatory unless it be
Non observata forma, infertur adnullatio actus. When the form is not
observed, it is inferred that the act is annulled. 12 Co. 7.
Non omne quod licet honestum est. Everything which is permitted is not
becoming. Dig. 50, 17, 144.
Non omne damnum inducit injuriam. Not every loss produces an injury. See
3 Bl. Com. 219; 1 Smith's Lead. Cas. 131; Broom's Max. 93; 2 Bouv. Inst. n.
Non omnium quae a majoribus nostris constituta sunt ratio reddit potest.
A reason cannot always be given for the institutions of our ancestors. 4 Co.
Non potest adduci exception ejusdem rei cujus petitur dissolutio. A plea
of the same matter, the dissolution of which is sought by the action, cannot be
brought forward. Bacon's Max. Reg. 2. When an action is brought to annul a
proceeding, the defendant cannot plead such proceeding in bar.
Non praestat impedimentum quod de jure non sortitur effectum. A thing
which has no effect in law, is not an impediment. Jenk. Cent. 162.
Non quod dictum est, sed quod factum est, inspicitur. Not what is said,
but what is done, is to be regarded. Co. Litt. 36.
Non refert an quis assensum suum praefert verbis, an rebus ipsis et
factis. It is immaterial whether a man gives his assent by words or by acts and
deeds. 10 Co. 52.
Non refert quid ex aequipolentibus fiat. What may be gathered from words
of tantamount meaning, is of no consequence when omitted. 5 Co. 122.
Non refert quid notum sit judice si notum non sit in forma judici. It
matters not what is known to the judge, if it is not known to him judicially. 3
Non refert verbis an factis fit revocatio. It matters not whether a
revocation be by words or by acts. Cro. Car. 49.
Non solum quid licet, sed quidest conveniens considerandum, quia nihil
quod inconveniens est licitum. Not only what is permitted, but what is proper,
is to be considered, because what is improper is illegal. Co. Litt. 66.
Non sunt longa ubi nihil est quod demere possis. There is no prolixity
where nothing can be omitted. Vaugh. 138.
Non temere credere, est nervus sapientae. Not to believe rashly is the
nerve of wisdom. 5 Co. 114.
Non videtur quisquam id capere, quod ei necesse est alii restituere. One
is not considered as acquiring property in a thing which he is bound to
restore. Dig. 50, 17, 51.
Non videntur qui errant consentire. He who errs is not considered as
consenting. Dig. 50, 17, 116.
Non videtur consensum retinuisse si quis ex praescripto minantis aliquid
immutavit. He does not appear to have retained his consent, if he have changed
anything through the means of a party threatening. Bacon's Max. Reg. 33.
Novatio non praesumitur. A novation is not presumed. See Novation.
Novitas non tam utilitate prodest quam novitate perturbat. Novelty
benefits not so much by its utility, as it disturbs by its novelty. Jenk. Cent.
Novum judicium non dat novum jus, sed declarat antiquum. A new judgment
does not make a new law, but declares the old. 10 Co. 42.
Nul ne doit s'enrichir aux depens des autres. No one ought to enrich
himself at the expense of others.
Nul prendra advantage de son tort demesne. No one shall take advantage
of his own wrong.
Nulla impossibilia aut inhonesta sunt praesumenda. Impossibilities and
dishonesty are not to be presumed. Co. Litt. 78.
Nulle regle sans faute. There is no rule without a fault.
Nulli enim res sua servit jure servitutis. No one can have a servitude
over his own property. Dig. 8, 2, 26; 17 Mass. 443; 2 Bouv. Inst. n. 1600.
Nullum exemplum est idem omnibus. No example is the same for all
Nullum iniquum praesumendum in jure. Nothing unjust is presumed in law.
4 Co. 72.
Nullum simile est idem. No simile is the same. Co. Litt. 3.
Nullus commodum capere potest de injuria sua
propria. No one shall take advantage of his own wrong. Co. Litt.
Nullus recedat e curia concellaria sine remedio. No one
ought to depart out of the court of chancery without a remedy.
Nunquam fictio sine lege. There is no fiction without law.
Nuptias non concubitas, sed consensus facit. Cohabitation does not make
the marriage, it is the consent of the parties. Dig 50, 17, 30; 1 Bouv. Inst.
n. 239; Co. Litt. 33.
Obedientia est legis essentia. Obedience is the essence of the law. 11
Obtemperandum est con