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 consuetudini rationabili tanquam legi. A reasonable
custom is to be obeyed like law. 4 Co. 38.
Officers may not examine the judicial acts of the court.
Officia magistratus non debent esse venalia. The offices of magistrates
ought not to be sold. Co. Litt. 234.
Officia judicialia non concedantur antequam vacent. Judicial offices
ought not to be granted before they are vacant. 11 Co. 4.
Officit conatus si effectus sequatur. The attempt becomes of
consequence, if the effect follows.
Officium nemini debet esse damnosum. An office ought to be injurious to
Omissio eorum quae tacite insunt nihil operatur. The omission of those
things which are silently expressed is of no consequence.
Omne actum ab intentione agentis est judicandum. Every act is to be
estimated by the intention of the doer.
Omne crimen ebrietas et incendit et detegit. Drunkenness inflames and
produces every crime. Co. Litt. 247.
Omne magis dignum trahit ad se minus dignum sit antiquius. Every
worthier thing draws to it the less worthy, though the latter be more ancient.
Co. Litt. 355.
Omne magnum exemplum habet aliquid ex iniquio, quod publica utilitate
compensatur. Every great example has some portion of evil, which is compensated
by its public utility. Hob. 279.
Omne majus continet in se minus. The greater contains in itself the
less. Co. Litt. 43.
Omne majus minus in se complecitur. Always the greater is embraced in
the minor. Jenk. Cent. 208.
Omne testamentum morte consummatum est. Every will is consummated by
death. 3 Co. 29.
Omne sacramentum debet esse de certa scientia. Every oath ought
to be founded on certain knowledge. 4 Co. Inst. 279.
Omnia delicta in aperto leviora sunt. All crimes committed openly are
considered lighter. 8 co. 127.
Omnia praesumuntur contra spoliatorem. All things are presumed against a
Omnia praesumuntur legitime facta donec probetur in contrarium. All
things are presumed to be done legitimately, until the contrary is proved. Co.
Omnia praesumuntur rite esse acta. All things are presumed to be done in
Omnia praesumuntur solemniter esse acta. All things are presumed to be
done solemnly. Co. Litt. 6.
Omnia quae sunt uxoris sunt ipsius viri. All things which are of the
wife, belong to the husband. Co. Litt. 112.
Omnis actio est loquela. Every action is a complaint. Co. Litt. 292.
Omnis conclusio boni et veri judicii sequitur ex bonis et veris
praemissis et dictis juratorem. Every conclusion of a good and true judgment
arises from good and true premises, and the sayings of jurors. Co. Litt.
Omnis consensus tollit errorem. Every consent removes error. 2 Inst.
Omnis definitio in jure periculosa est; parum est enim ut non subverti
posset. Every devinition in law is perilous, and but a little may reverse it.
Dig. 50, 17, 202.
Omnis exceptio est ipsa quoque regula. An exception is, in itself, a
Omnis innovatio plus novitate perturbat quam utilitate prodest. Every
innovation disturbs more by its novelty than it benefits by its utility.
Omnis interpretatio si fieri potest ita fienda est in instrumentis, ut
omnes contrarietates amoveantur. The interpretation of instruments is to be
made, if they will admit of it, so that all contradictions may be removed.
Jenk. Cent. 96.
Omnis interpretatio vel declarat, vel extendit, vel restringit. Every
interpretation either declares, extends or restrains.
Omnis regula suas patitur exceptiones. All rules of law are liable to
Omnis privatio praesupponit habitum. Every privation presupposes former
enjoyment. Co. Litt. 339.
Omnis ratihabitio retro trahitur et mandato aequiparatur. Every consent
given to what has already been done, has a retrospective effect and equals a
command. Co. Litt. 207.
Once a fraud, always a fraud. 13 Vin. Ab. 539.
Once a mortgage always a mortgage.
Once a recompense always a recompense. 19 Vin. Ab. 277.
One should be just before he is generous.
One may not do an act to himself.
Oportet quod certa res deducatur in judicium. A thing, to be brought to
judgment, must be certain or definite. Jenk. Cent. 84.
Oportet quod certa sit res venditur. A thing, to be sold, must be
certain or definite.
Optima est lex, quae minimum relinquit arbitrio judicis. That is the
best system of law which confides as little as possible to the discretion of
the judge. Bac. De Aug. Sci. Aph. 46.
Optimam esse legem, quae minimum relinquit arbitrio judicis; id quod
certitudo ejus praestat. That law is the best which leaves the least discretion
to the judge; and this is an advantage which results from certainty. Bacon, De
Aug. Sc. Aph. 8.
Optimus judex, qui minimum sibi. He is the best judge who relies as
little as possible on his own discretion. Bac. De Aug. Sci. Aph. 46.
Optimus interpretandi modus est sic legis interpretare ut leges legibus
accordant. The best mode of interpreting laws is to make them accord. 8 Co.
Optimus interpres rerum usus. Usage is the best interpreter of things. 2
Optimus legum interpres consuetudo. Custom is the best interpreter of
laws. 4 Inst. 75.
Ordine placitandi servato, servatur et jus. The order of pleading being
preserved, the law is preserved. Co. Litt. 363.
Origo rei inspici debet. The origin of a thing ought to be inquired
into. 1 Co. 99.
Paci sunt maxime contraria, vis et injuria. Force and wrong are greatly
contrary to peace. Co. Litt. 161.
Pacta privata juri publico derogare non possunt. Private contracts
cannot derogate from the public law. 7 Co. 23.
Pacto aliquod licitum est, quid sine pacto non admittitur. By a contract
something is permitted, which, without it, could not be admitted. Co. Litt.
Par in parem imperium non habet. An equal has no power over an equal.
Jenk. Cent. 174. Example: One of two judges of the same court cannot commit the
other for contempt.
Paria copulantur paribus. Things unite with similar things.
paribus sententiis reus absolvitur. When opinions are equal, a defendant
is acquitted. 4 Inst. 64.
Parte quacumque integranta sublata, tollitur totum. An integral part
being taken away, the whole is taken away. 3 Co. 41.
Partus ex legitimo thoro non certius noscit matrem quam genitorem suam.
The offspring of a legitimate bed knows not his mother more certainly than his
father. Fortes. c. 42.
Partus sequitur ventrem. The offspring follow the condition of the
mother. This is the law in the case of slaves and animals; 1 Bouv. Inst. n.
167, 502; but with regard to freemen, children follow the condition of the
Parum differunt quae re concordant. Thing differ but little which agree
in substance. 2 Buls. 86.
Parum est latam esse sententiam, nisi mandetur executioni. It is not
enough that sentence should be given unless it is put in execution. Co. Litt.
Parum proficit scire quid fieri debet, si non cognoscas quomodo sit
facturum. It avails little to know what ought to be done, if you do not know
how it is to be done. 2 Co. Inst. 503.
Patria potestas in pietate debet, non in atrocitate consistere. Paternal
power should consist in affection, not in atrocity.
Pater is est quem nuptiae demonstrant. The father is he whom the
marriage points out. 1 Bl. Com. 446; 7 mart. N. S. 548, 553; Dig. 2, 4, 5; 1
Bouv. Inst. n. 273, 304, 322.
Peccata contra naturam sunt gravissima. Offences against nature are the
heaviest. 3 Co. Inst. 20.
Peccatum peccato addit qui culpae quam facit patrocinium defensionis
adjungit. He adds one offence to another, who, when he commits a crime, joins
to it the protection of a defence. 5 Co. 49.
Per rerum naturam, factum negantis nulla probatio est. It is in the
nature of things that he who denies a fact is not bound to prove it.
Per varius actus, legem experientia facit. By various acts experience
framed the law. 4 Co. Inst. 50.
Perfectum est cui nihil deest secundum suae perfectionis vel naturae
modum. That is perfect which wants nothing in addition to the measure of its
perfection or nature. Hob. 151.
Periculosum est res novas et inusitatas inducere. It is dangerous to
introduce new and dangerous things. Co. Litt. 379.
Periculum rei venditae, nondum traditae, est emptoris. The purchaser
runs the risk of the loss of a thing sold, though not delivered. 1 Bouv. Inst.
n. 939; 4 B. & C. 941; 4 B. & C. 481.
Perpetua lex est, nullam legem humanum ac positivam perpetuam esse; et
clausula quae abrogationem excludit initio non valet. It is a perpetual law
that no human or positive law can be perpetual; and a clause in a law which
precludes the power of abrogation is void ab initio. Bacon's Max. in Reg.
Perpetuities are odious in law and equity.
Persona conjuncta aequiparatur interesse proprio. A person united equal
one's own interest. Bacon's Max. Reg. 18. This means that a personal connexion,
as nearness of blood or kindred, may in some cases, raise a use.
Perspicua vera non sunt probanda. Plain truths need not be proved. Co.
Pirata est hostis humani generis. A pirate is an enemy of the human
race. 3 Co. Inst. 113.
Pluralis numerus est duobus contentus. The plural number is contained in
two. 1 Roll. R. 476.
Pluralities are odious in law.
Plures cohaeredes sunt quasi unum corpus, propter unitatem juris quod
habent. Several co-heirs are as one body, by reason of the unity of right which
they possess. Co. Litt. 163.
Plures participes sunt quasi unum corpus, in eo quod unum jus habent.
Several partners are as one body, by reason of the unity of their rights. Co.
Plus exempla quam peccata nocent. Examples hurt more than offences.
Plus peccat auctor quam actor. The instigator of a crime is worse than
he who perpetrates it. 5 Co. 99.
Plus valet unus oculatus testis, quam auriti de cem. One eye witness is
better than ten ear ones. 4 Inst. 279.
Paena ad paucos, metus ad omnes perveniat. A punishment inflicted
on a few, causes a dread to all. 22 Vin. Ab. 550.
Paena non potest, culpa perennis erit. Punishment may have an
end, crime is perpetual. 21 Vin. Ab. 271.
Paena ad paucos, metus ad omnes. Punishment to few, dread or fear
Paenae potius molliendae quam exasperendae sunt. Punishments should
rather be softened than aggravated. 3 Co. Inst. 220.
Posito uno oppositorum negatur alterum. One of two opposite positions
being affirmed, the other is denied. 3 Ro..l R. 422.
Possessio est quasi pedis positio. Possession is, as it were, the
position of the foot. 3 Co. 42.
Possession of the termer, possession of the reversioner.
Possession is a good title, where no better title appears. 20 Vin. Ab.
Possessor has right against all men but him who has the very right.
Possibility cannot be on a possibility.
Posteriora derogant prioribus. Posterior laws derogate former ones. 1
Bouv. Inst. n. 90.
Potentia non est nisi ad bonum. Power is not conferred, but for the
Potentia debet sequi justiciam, non antecedere. Power ought to follow,
not to precede justice. 3 Buls. 199.
Potentia inutilis frustra est. Useless power is vain.
Potest quis renunciare pro se, et suis, juri quod pro se introductum
est. A man may relinquish, for himself and his heirs, a right which was
introduced for his own benefit. See 1 Bouv. Inst. n. 83.
Potestas stricte interpretatur. Power should be strictly
Postestas suprema seipsum dissolvare potest, ligare non potest. Supreme
power can dissolve, but cannot bind itself.
Potior est conditio defendentis. Better is the condition of the
defendant, than that of the plaintiff.
Potior est conditio possidentis. Better is the condition of the
Praepropera consilia, raro sunt prospera. Hasty counsels are seldom
prosperous. 4 Inst. 57.
Praestat cautela quam medela. Prevention is better than cure. Co. Litt.
Praesumptio violenta, plena probatio. Strong presumption is full
Praesumptio violenta valet in lege. Strong presumption avails in
Praetextu liciti non debet admitti illicitum. Under pretext of legality,
what is illegal ought not to be admitted. 10 Co. 88.
Praxis judicim est interpres legum. The practice of the judges is the
interpreter of the laws. Hob. 96.
Precedents that pass sub silentio are of little or no authority. 16 Vin.
Precedents has as much law as justice.
Praesentia corporis tollit errorem nominis, et veritas nominis tollit
errorem demonstrationis. The presence of the body cures the error in the name;
the truth of the name cures an error in the description. Bacon's Max. Reg.
Pretium succedit in locum rei. The price stands in the place of the
thing sold. 1 Bouv. Inst. n. 939.
Prima pars aequitatis aequalitas. The radical element of justice is
Principia data sequuntur concomitantia. Given principles follow their
Principia probant, non probantur. Principles prove, they are not proved.
3 Co. 40. See Principles.
Principiorum non est ratio. There is no reasoning of principles. 2 Buls.
239. See Principles.
Principium est potissima pars cujusque rei. The principle of a thing is
its most powerful part. 10 Co. 49.
Prior tempore, potior jure. He who is before in time, is preferred in
Privatorum conventio juri publico non derogat. Private agreements cannot
derogate from public law. Dig. 50, 17, 45, 1.
Privatum incommodum publico bono peusatur. Private inconvenience is made
up for by public benefit.
Privilegium est beneficium personale et extinguitur cum persona.
A privilege is a personal benefit and dies with the person. 3 Buls. 8.
Privilegium est quasi privata lex. A privilege is, as it were, a private
law. 2 Buls. 8.
Probandi necessitas incumbit illi ui agit. The necessity of proving lies
with him who makes the charge.
Probationes debent esse evidentes, id est, perspicuae et faciles
intelligi. Proofs ought to be made evident, that is, clear and easy to be
understood. Co. Litt. 283.
Probatis extremis, praesumitur media. The extremes being proved, the
intermediate proceedings are presumed. 1 Greenl. Ev. §20.
Processus legis est gravis vexatio, executio legis coronat opus. The
process of the law is a grievous vexation; the execution of the law crowns the
work. Co. Litt. 289.
Prohibetur ne quis faciat in suo quod nocere possit alieno. It is
prohibited to do on one's own property that which may injure another's. 9 co.
Propinquior excludit propinquum; propinquus remotum; et remotus
remotiorem. He who is nearer excludes him who is near; he who is near, him who
is remote; he who is remote, him who is more remote. co. Litt. 10.
Proprietas verborum est salus proprietatum. The propriety of words is
the safety of property.
Protectio trahit subjectionem, subjectio projectionem. Protection draws
to it subjection, subjection, protection. Co. Litt. 65.
Proviso est providere praesentia et futura, non praeterita. A proviso is
to provide for the present and the future, not the past. 2 Co. 72.
Proximus est cui nemo antecedit; supremus est quem nemo sequitur. He is
next whom no one precedes; he is last whom no one follows.
Prudentur agit qui praecepto legis obtemperat. He acts prudently who
obeys the commands of the law. 5 Co. 49.
Pueri sunt de sanguine parentum, sed pater et mater non sunt de sanguine
puerorum. Children are of the blood of their parents, but the father and mother
are not the blood of their children. 3 Co. 40.
Purchaser without notice not obliged to discover to his own hurt. See 4
Bouv. Inst. n. 4336.
Quae ab hostibus capiuntur, statim capientium fiunt. Things taken from
public enemies immediately become the property of the captors. See Infra
Quae ad unum finem loquuta sunt; non debent ad alium detorqueri. Words
spoken to one end, ought not to be perverted to another. 4 Co. 14.
Quae cohaerent personae a persona separari nequeunt.
Things which belong to the person ought not to be separated from the person.
Jenk. Cent. 28.
Quae communi legi derogant stricte interpretantur. Laws which derogate
from the common law ought to be strictly construed. Jenk. Cent. 231.
Quae contra rationem juris introducta sunt, non debent trahi in
consequentiam. Things introduced contrary to the reason of the law, ought not
to be drawn into precedents. 12 Co. 75.
Quae dubitationis causa tollendae inseruntur communem legem non
laedunt. Whatever is inserted for the purpose of removing doubt, does not hurt
or affect the common law. Co. Litt. 205.
Quae incontinenti vel certo fiunt inesse videntur. Whatever is done
directly and certainly, appears already in existence. Co. Litt. 236.
Quae in auria acta sunt rite agi praesummuntur. Whatever is done
in court is presumed to be rightly done. 3 Buls. 43.
Quae in partes dividi nequeunt solida, a singulis praestantur. Things
which cannot be divided into parts are rendered entire severally. 6 Co. 1.
Quae inter alios acta sunt nemini nocere debent, sed prodesse possunt.
Transactions between strangers may benefit, but cannot injure, persons who are
parties to them. 6 Co. 1.
Quae malasunt inchoata in principio vex bono peragantur exitu. Things
bad in the commencement seldom end well. 4 Co. 2.
Quae non valeant singula, juncta juvant. Things which do not avail
singly, when united have an effect. 3 Buls. 132.
Quae praeter consuetudinem et morem majorum fiunt, neque placent, necque
recta videntur. What is done contrary to the custom of our ancestors, neither
pleases nor appears right. 4 Co. 78.
Quae rerum natura prohibentur, nulla lege confirmata sunt.
Whatis prohibited in the nature of things, cannot be confirmed by law. Finch's
Quaecumque intra rationem legis inveniuntur, intra legem ipsam esse
judicantur. Whatever appears within the reason of the law, ought to be
considered within the law itself. 2 Co. Inst. 689.
Quaelibet concessio fortissime contra donatorem interpretanda est. Every
grant is to be taken most strongly against the grantor. Co. Litt. 183.
Quaelibet jurisdictio cancellos suos habet. Every jurisdiction has its
Qualibet paena corporalis, quam vis minima, major est qualibet
paena pecuniaria. Every corporal punishment, although the very
least, is greater than pecuniary punishment. 3 Inst. 220.
Quaeras de dubiis, legem bene discere si vis. Inquire into them, is the
way to know what things are really true. Litt. §443.
Qualitas quae inesse debet, facile praesumitur. A quality which ought to
form a part, is easily presumed.
Quam longum debet esse rationabile tempus, non definitur in lege, sed
pendet ex discretione justiciariorum. What is reasonable time, the law does not
define; it is left to the discretion of the judges. Co. Litt. 56. See 11 Co.
Quamvis aliquid per se non sit malum, tamen si sit mali exemple, non est
faciendum. Although, in itself, a thing may not be had, yet, if it holds out a
bad example, it is not to be done. 2 Co. Inst. 564.
Quamvis lex generaliter loquitur, restringenda tamen est, ut cessante
ratione et ipsa cessat. Although the law speaks generally, it is to be
restrained when the reason on which it is founded fails. 4 Co. Inst. 330.
Quando abest provisio partis, adest provisio legis. A defect in the
provision of the party is supplied by a provision of the law. 6 Vin. Ab.
Quando aliquid prohibetur ex directo, prohibetur et per obliquum. When
anything is prohibited directly, it is prohibited indirectly. Co. Litt.
Quando charta continet generalem clausulam, posteaque descendit ad verba
specialia quae clausulae generali sunt constnanea interpretanda est charta
secundum verba specialia. When a deed contains a general clause, and afterwards
descends to special words, consistent with the general clause, the deed is to
be construed according to the special words. 8 Co. 154.
Quando do una et eadem re, duo onerabiles existunt, unus, pro
insufficientia alterius, de integro onerabitur. When two persons are liable on
a joint obligation, if one makes default the other must bear the whole. 2 Co.
Quando dispositio referri potest ad duas res, ita quod secundum
relationem unam vitiatur et secundum alteram utilis sit, tum facienda est
relatio ad illam ut valeat dispositio. When a disposition may be made to refer
to two things, so that according to one reference, it would be vitiated, and by
the other it would be made effectual, such a reference must be made to the
disposition which is to have effect. 6 co. 76.
Quando diversi considerantur actus ad aliquem statum perficiendum, plus
respicit lex acium originalem. When two different acts are required to the
formation of an estate, the law chiefly regards the original act. 10 Co.
Quando duo juro concurrunt in und persona, aequum est ac si
essent in diversis. When two rights concur in one person, it is the same as if
they were in two separate persons. 4 Co. 118.
Quando lex aliquid alicui concedit, concedere videtur id sine quo res
ipsa esse non potest. When the law gives anything, it gives the means of
obtaining it. 5 Co. 47.
Quando lex aliquid alicui concedit, omnia incidentia tacite conceduntur.
When the law gives anything, it gives tacitly what is incident to it. 2 Co.
Inst. 326; Hob. 234.
Quando lex est specialis, ratio autem generalis, generaliter lex est
intelligenda. When the law is special, but its reason is general, the law is to
be understood generally. 2 co. Inst. 83; 10 Co. 101.
Quando licet id quod majus, videtur licere id quod minus. When the
greate is allowed, the less seems to be allowed also.
Quando plus fit quam fieri debet, videtur etiam illud fieri quod
faciendum est. When more is done than ought to be done, that shall be
considered as performed, which should have been performed; as, if a man having
a power to make a lease for ten years, make one for twenty years, it shall be
void for the surplus. Broom's Max. 76; 8 Co. 85.
Quando verba et mens congruunt, non est interpretationi locus. When the
words and the mind agree, there is no place for interpretation.
Quem admodum ad quaestionem facti non respondent judices, ita ad
quaestionem juris non respondent juratores. In the same manner that judges do
not answer to questions of fact, so jurors do not answer to questions of law.
Co. Litt. 295.
Qui accusat integrae famae sit et non criminosus. Let him who accuses be
of a clear fame, and not criminal. 3 Co. Inst. 26.
Qui adimit medium, dirimit finem. He who takes away the means, destroys
the end. Co. Litt. 161.
Qui aliquid staruerit parte inaudita altera, aequum licet dixerit, haud
aequum facerit. He who decides anything, a party being unheard, though he
should decide right, does wrong. 6 Co. 52.
Qui bene interrogat, bene docet. He who questions well, learns well. 3
Qui bene distinguit, bene docet. He who distinguishes well, learns well.
2 Co. Inst. 470.
Qui concedit aliquid, concedere videtur et id sine quo concessio est
irrita, sine quo res ipsa esse non potuit. He who grants anything, is
considered as granting that, without which his grant would be idle, without
which the thing itself could not exist. 11 Co. 52.
Qui confirmat nihil dat. He who confirms does not give. 2 Bouv. Inst. n.
Qui contemnit praeceptum, contemnit praecipientem. He who contemns the
precept, contemns the party giving it. 12 Co. 96.
Qui cum alio contrahit, vel est, vel debet esse non ignarus conditio
ejus. He who contracts, knows, or ought to know, the quality of the person with
whom he contracts, otherwise he is not excusable. Dig. 50, 17, 19; 2 Hagg.
Consist. Rep. 61.
Qui destruit medium, destruit finem. He who destroys the means, destroys
the end. 11 Co. 51; Shep. To. 342.
Qui doit inheritoer al pere, doit inheriter al fitz. He who ought
to inherit from the father, ought to inherit from the son.
Qui ex damnato coitu nascuntur, inter liberos non computantur. He who is
born of an illicit union, is not counted among the children. Co. Litt. 8. See 1
Bouv. Inst. n. 289.
Qui evertit causam, evertit causatum futurum. He who overthrows the
cause, overthrows its future effects. 10 Co. 51.
Qui facit per alium facit per se. He who acts by or through another,
acts for himself. 1 Bl. Com. 429; Story, Ag. §440; 2 Bouv. Inst. n. 1273,
1335, 1336; 7 Man. & Gr. 32, 33.
Qui habet jurisdictionem absolvendi, habet jurisdictionem ligandi. He
who has jurisdiction to loosen, has jurisdiction to bind. 12 Co. 59.
Qui haeret in litera, haeret in cortice. He who adheres to the letter,
adheres to the bark. Co. Litt. 289.
Qui ignorat quantum solvere debeat, non potest improbus videre.
He who does not know what he ought to pay, does not want probity in not paying.
Dig. 50, 17, 99.
Qui in utero est, pro jam nato habetur quoties de ejus commodo
quaeritur. He who is in the womb, is considered as born, whenever it is for his
Qui jure suo utitur, nemini facit injuriam. He who uses his legal
rights, harms no one.
Qui jussu judicis aliquod fuerit non videtur dolo malo fecisse, quia
parere necesse est. He who does anything by command of a judge, will not be
supposed to have acted from an improper motive, because it was necessary to
obey. 10 Co. 76.
Qui male agit, odit lucem. He who acts badly, hates the light. 7 Co.
Qui melius probat, melius habet. He who proves most, recovers most. 9
Vin. Ab. 235.
Qui molitur insidias in patriam, id facit quod insanusnauta perforans
navem in qua vehitur. He who betrays his country, is like the insane sailor who
bores a hole in the ship which carries him. 3 Co. Inst. 36.
Qui nascitur sine legitimo matrimonio, matrem sequitur. He who is born
out of lawful matrimony, follows the condition of the mother.
Qui non cadunt in constantem virem, vani timores sunt astinandi. Those
are vain fears which do not affect a man of a firm mind. 7 Co. 27.
Qui non libere veritatem pronunciat, proditor est verilatis. He who does
not willingly speak the truth, is a betrayer of the truth.
Qui non obstat quod obstare potest facere videtur. He who does not
prevent what he can, seems to commit the thing. 2 Co. Inst. 146.
Qui non prohibit quod prohibere potest assentire videtur. He who does
not forbid what he can forbid, seems to assent. 2 Inst. 305.
Qui non propulsat injuriam quando potest, infert. He who does not repel
a wrong when he can, induces it. Jenk. Cent. 271.
Que obstruit aditum, destruit commodum. He who obstructs an entrance,
destroys a convenience. Co. Litt. 161.
Qui omne dicit, nihil excludit. He who says all, excludes nothing. 4
Qui parcit nocentibus, innocentibus punit. He who spares the guilty,
punishes the innocent.
Qui peccat ebuius, luat sobrius. He who offends drunk, must be punished
when sober. Car. R. 133.
Qui per alium facit per seipsum facere videtur. He who does anything
through another, is considered as doing it himself. Co. Litt. 258.
Qui per fraudem agit, frustra agit. He who acts fraudulently acts in
vain. 2 Roll. R. 17.
Qui potest et debet vetare, jubet. He who can and ought to forbid, and
does not, commands.
Qui primum peccat ille facit rixam. He who first offends, causes the
Qui prior est tempore, potior est jure. He who is first or before in
time, is stronger in right. Co. Litt. 14 a; 1 Story, Eq. Jur. §64 d; Story
Bailm. §312; 1 Bouv. Inst. n. 952; 4 Bouv. Inst. n. 3728.
Qui providet sibi, providet haredibus. He who provides for himself,
provides for his heirs.
Qui rationem in omnibus quarunt, rationem subvertunt. He who seeks a
reason for everything, subverts reason. 2 Co. 75.
Qui semel actionem renunciaverit, amplius repetere non potest. He who
renounces his action once, cannot any more repeat it. 8 Co. 59. See
Qui semel malus, semper prasumitur esse malus in eodem genere. He who is
once bad, is presumed to be always so in the same degree. Cro. Car. 317.
Que sentit commodum, sentire debet et onus. He who derives a benefit
from a thing, ought to feel the disadvantages attending it. 2 Bouv. Inst. n.
Qui tacet consentire videtur. He who is silent appears to consent. Jenk.
Qui tardius solvit, minus solvit. He who pays tardily, pays less than he
ought. Jenk. Cent. 38.
Qui timent, cavent et vitant. They who fear, take care and avoid. Off.
Qui vult decipi, decipiatur. Set him who wishes to be deceived, be
Quicpuid acquiritur servo, acquiritur domino. Whatever is acquired by
the servant, is acquired for the master. 15 Bin. Ab. 327.
Quicquid plantatur solo, solo cedit. Whatever is affixed to the soil
belongs to it. Went. Off. Ex. 145.
Quicquid plantatur solo, solo cedit. Whatever is affixed to the soil or
the realty, thereby becomes a parcel. See Amb: 113; 3 East, 51; and article
Qnicquid est contra normam recti est injuria. Whatever is against the
rule of right, is a wrong. 3 Buls. 313.
Quicquid in excessu actum est, lege prohibitur. Whatever is done in
excess is prohibited by law. 2 Co. Inst. 107.
Quicquid judicis auctoritati subjictur, novitati nonsubjiclur. Whatever
is subject to the authority of a judge, is not subject to novelty. 4 Co. Inst
Quicquid solvitur, solvitur secundum modum solventis. Whatever is paid,
is paid according to the manner of the payor. 2 Vern. 606. See
Quilibet potest renunciare juri pro se inducto. Any one may renounce a
law introduced for his own benefit. To this rule there are some exceptions. See
1 Bouv. Inst. n. 83.
Qusquis est qui velit juris consultus haberi, continuet studium, velit a
quocunque doceri. Whoever wishes to be a lawyer, let him continually study, and
desire to be taught everything.
Quod ab initio non valet, in tractu temporis non convalescere. What is
not good in the beginning cannot be rendered good by time. Merl. Rep. verbo
Regle de Droit. This, though true in general, is not universally so.
Quod ad jus naturale attinet, omnes homenes aequales sunt. All men are
equal before the natural law. Dig. 50, 17, 32.
Quod alias bonum et justum est, si per vim vel fraudem petatur, malum et
injustum efficitur. What is otherwise good and just, if sought by force or
fraud, becomes bad and unjust. 3 Co. 78.
Quod constat clare, non debet verificari. What is clearly apparent need
not be proved.
Quod constat curiae opere testium non indiget. What appears to the court
needs not the help of witnesses. 2 Inst. 662.
Quod contra legem fit, pro infecto habetur. What is done contrary to the
law, is considered as not done. 4 Co. 31. No one can derive any advantage from
such an act.
Quod contra juris rationem receptum est, non est producendum ad
consequentias. What has been admitted against the spirit of the law, ought not
to be heard. Dig. 50, 17, 141.
Quod demonstrandi causa additur rei satis demonstratae, frusta
fit. What is added to a thing sufficiently palpable, for the purpose of
demonstration, is vain. 10 Co. 113.
Quod dubitas, ne feceris. When you doubt, do not act.
Quod est ex necessitate nunquam introducitor, nisi quando necessarium.
What is introduced of necessity, is never introduced except when necessary. 2
Roll. R. 512.
Quod est inconveniens, aut contra rationem non permissum est in lege.
What is inconvenient or contrary to reason, is not allowed in law. Co. Litt.
Quod est necessarium est licitum. What is necessary is lawful.
Quod factum est, cum in obscuro sit, ex affectione cujusque capit
interpretationem. Doubtful and ambigious clauses ought to be construed
according to the intentions of the parties. Dig. 50, 17, 168, 1.
Quod fieri non debet, factum valet. What ought not to be done, when
done, is valid. 5 Co. 38.
Quod inconsulto fecimus, consultius revocemus. What is done without
consideration or reflection, upon better consideration we should revoke or
Quod in minori valet, valebit in majori; et quod in majori non valet,
nec valebit in minori. What avails in the less, will avail in the greater; and
what will not avail in the greater, will not avail in the less. Co. Litt.
Quod in uno similium valet, valebit in altere. What avails in one of two
similar things, will avail in the other. co. Litt. 191.
Quod initio vitiosum est, non potest tractu temporis convalescere. Time
cannot render valid an act void in its origin. Dig. 50, 17, 29.
Quod meum est sine me auferri non potest. What is mine cannot be taken
away without my consent. Jenk. Cent. 251. Sed vide Eminent Domain.
Quod necessarie intelligitur id non deest. What is necessarily
understood is not wanting. 1 Buls. 71.
Quod necessitas cogit, defendit. What necessity forces, it justifies.
Hal. Pl. Cr. 54.
Quod non apparet non est, et non apparet judicialiter ante judicium.
What appears not does not exist, and nothing appears judicially before
judgment. 2 Co. Inst. 479.
Quod non habet principium non habet finum. What has no beginning has no
end. Co. Litt. 345.
Quod non legitur, non creditor. What is not read, is not believed. 4 Co.
Quod non valet in principalia, in accessoria seu consequentia non
valebit; et quod non valet in magis propinquo, non valebit in magis remoto.
What is not good in its principle, will not be good as to accessories or
consequences; and what is not of force as regards things near, will not be of
force as to things remote. 8 co. 78.
Quod nullius est id ratione naturali occupanti conceditur. What belongs
to no one, naturally belong to the first occupant. Inst. 2, 1, 12; 1 Bouv.
Inst. n. 491.
Quod nullius esse potest, id ut alicujus fieret nulla obligatio valet
efficere. Those things which cannot be acquired as property, cannot be the
object of an agreement. Dig. 50, 17, 182.
Quod pendet, non est pro eo, quasi sit. What is in suspense is
considered as not existing. Dig. 50, 17, 169, 1.
Quod per me non possum, nec per alium. What I cannot do in person, I
cannot do by proxy. 4 Co. 24.
Quod per recordum probatum, non debet esse negatum. What is proved by
the record, ought not to be denied.
Quod populus postremum jussit, id just ratum esto. What the people have
last enacted, let that be the established law.
Quod prius est verius est; et quod prius est tempore potius est jure.
What is first is truest; and what comes first in time, is best in law. Co. Litt.
Quod pro minore licitum est, et pro majore licitum est. What is lawful
in the less, is lawful in the greater. 8 Co. 43.
Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire.
He who suffers a damage by his own fault, has no right to complain. Dig. 50,
Quod quisquis norat in hoc se exerceat. Let every one employ himself in
what he knows. 11 Co. 10.
Quod remedio destituitur ipsa re valet si culpa absit. What is without a
remedy is valid by the thing itself. Bacon's Max. Reg. 9.
Quod semel meum est amplius meum esse non potest. Co. Litt. 49; Shep To.
Quod sub certa forma concessum vel reservatum est, non trahitur
advalorem vel compensationem. That which is granted or reserved under a certain
form, is not to be drawn into a valuation. Bacon's Max. Reg. 4.
Quod solo inaedificatur solo cedit. Whatever is built on the soil is an
accessory of the soil. Inst. 2, 1, 29; 16 Mass. 449; 2 Bouv. Inst. n. 1571.
Quod taciti intelligitur deessee non videtur. What is tacitly understood
does not appear to be wanting. 4 Co. 22.
Quod vanum et inutile est, lex non requirit. The law does not require
what is vain and useless. Co. Litt. 319.
Quotiens dubia interpretatio libertatis est, secundum libertatem
respondendum erit. Whenever there is a doubt between liberty and slavery, the
decision must be in favor of liberty. Dig. 50, 17, 20.
Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba
fienda est. When there is no ambiguity in the words, then no exposition
contrary to the words is to be made. Co. Litt. 147.
Ratihabitiio mandato aequiparatur. Ratification is equal to a command.
Dig. 46, 3, 12, 4.
Ratio est formalis causa consueetudinis. Reason is the formal cause of
Ratio est legis anima, mutata legis ratione mutatur et lex. Reason is
the soul of the law; the reason of the law being changed, the law is also
Ratio est radius divini luminis. Reason is a ray of divine light. Co.
Ratio et auctoritas duo clarisima mundi limina. Reason and authority are
the two brightest lights in the world. 4 Co. Inst. 320.
Ratio in jure aequitas integra. Reason in law is perfect equity.
Ratio legis est anima legis. The reason of the law is the soul of the
Ratio non clauditur loco. Reason is not confined to any place.
Ratio potest allegari deficiente lege, sed vera et legalis et non
apparens. Reason may be alleged when the law is defective, but it must be true
and legal reason, and not merely apparent. 6 Co. Litt. 191.
Re, verbis, scripto, consensu, traditione, junctura vestes, sumere pacta
solent. Compacts are accustomed to be clothed by thing itself, by words, by
writing, by consent, by delivery. Plow. 161.
Receditur a placitis juris, potius quam injuriae et delicta maneant
impunita. Positive rules of law will be receded from, rather than crimes and
wrongs should remain unpunished. Bacon's Max. Reg. 12. This applies only to
such maxims as are called placita juris; these will be dispensed with rather
than crimes should go unpunished, quia salus populi suprema lex, because the
public safety is the supreme law.
Recorda sunt vestigia vetustatis et veritatis. Records are vestiges of
antiquity and truth. 2 Roll. R. 296.
Recurrendum est ad extraordinarium quando non valet ordinarium. We must
have recourse to what is extraordinary, when what is ordinary fails.
Regula pro lege, si deficit lex. In default of the law, the maxim
Regulariter non valet pactum dare mea non alienanda. Regularly a
contract not to alienate my property is not binding. Co. Litt. 223.
Rei turpis nullum mandatum est. A mandate of an illegal thing is void.
Dig. 17, 1, 6, 3.
Reipublicae interest voluntates defunctorum effectum sortiri. It
concerns the state that the wills of the dead should have their effect.
Relatio est fictio juris et intenta ad unum. Reference is a fiction of
law, and intent to one thing. 3 Co. 28.
Relatio semper fiat ut valeat dispositio. Reference should always be had
in such a manner that a disposition in a will should avail. 6 Co. 76.
Relation never defeats collateral acts. 18 Vin. Ab. 292.
Relation shall never make good a void grant or devise of the party. 18
Vin. Ab. 292.
Relatiorum cognito uno, cognoscitur et alterum. Of things relating to
each other, one being known, the other is known. Cro. Jac. 539.
Remainder can depend upon no estate but what beginneth at the same time
the remainder doth.
Remainder must vest at the same instant that the particular estate
Remainder to a person not of a capacity to take at the time of appointing
it, is void. Plowd. 27.
Remedies ought to be reciprocal.
Remedies for rights are ever favorably extended. 18 Vin. Ab. 521.
Remisus imperanti melius paretur. A man commanding not too strictly is
best obeyed. 3 Co. Inst. 233.
Remoto impedimento, emergit actio. The impediment begin removed the
action arises. 5 Co. 76.
Rent must be reserved to him from whom the state of the land moveth. Co.
Repellitur a sacramento infamis. An infamous person is repelled or
prevented from taking an oath. Co. Litt. 158.
Reprobata pecunia liberat solventum. Money refused liberates the debtor.
9 Co. 79. But this must be understood with a qualification. See Tender.
Reputatio est vulgaris opinio ubi non est veritas. Reputation is a
vulgar opinion where there is no truth. 4 Co. 107. But see, Character.
Rerum ordo confunditur, si unicuique jurisdictio non servetur. The order
of things is confounded if every one preserves not his jurisdiction. 4 Co.
Rerum progressus ostendunt multa, quae in initio praecaveri seu
praevideri non possunt. The progress of time shows many things, which at the
beginning could not be guarded against, or foreseen. 6 Co. 40.
Rerum suarum quilibet est moderator et arbiter. Every one is the manager
and disposer of his own. Co. Litt. 233.
Res denominator a principaliori parte. A thing is named from its
principal part. 5 Co. 47.
Res est misera ubi jus est vagam et invertum. It is a miserable state of
tings where the law is vague and uncertain. 2 Salk. 512.
Res, generalem habet significationem, quia tam corporea, quam
incorporea, cujuscunque sunt generis, naturae sive speciei, comprehendit. The
word things has a general significaiton, which comprehends corporeal and
incorporeal objects, of whatever nature, sort or specie. 3 Co. Inst. 482; 1
Bouv. Inst. n. 415.
Res inter alios acta alteri nocere non debet. Things done between
strangers ought not to injure those who are not parties to them. Co. Litt.
Res judicata pro veritate accipitur. A thing adjudged must be taken for
truth. Co. Litt. 103; Dig. 50, 17, 207. See Res judicata.
Res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex
recto curvum. A thing adjudged makes what was white, black; what was black,
white; what was crooked straight; what was straight, crooked. 1 Bouv. Inst. n.
Res per pecuniam aestimatur, et non pecunia per res. The value of a
thing is estimated by its worth in money, and the value of money is not
estimated by reference to one thing. 9 Co. 76; 1 Bouv. Inst. n. 922.
Res perit domino suo. The destruction of the thing is the loss of its
owner. 2 Bouv. Inst. n. 1456, 1466.
Reservatio non debet esse de proficuis ipsis quia ea conceduntur, sed de
redditu nova extra proficua. A reservation ought not to be of the profits
themselves, because they are granted, but from the new rent out of the profits.
Co. Litt. 142.
Resignatio est juris porprii spontanea refutatio. Resignation is the
spontaneous relinquishment of one's own right. Godb. 284.
Respondeat superior. Let the principal answer. 4 Co. Inst. 114; 2 Bouv.
Inst. n. 1337; 4 Bouv. Inst. n. 3586.
Responsio unius non omnino auditur. The answer of one witness shall not
be heard at all. 1 Greenl. Ev. §260. This is a maxim of the civil law,
where everything must be proved by two witnesses.
Rights never die.
Reus laesae majestatis punitur, ut pereat unus ne pereant omnes. A
traitor is punished, that by the death of one, all may not perish. 4 Co.
Sacramentum habet in se tres comites, varitatem, justitiam et judicium;
veritas habenda est in jurato; justitia et justicium in judice. An oath has in
it three component parts - truth, justice and judgment; truth in the party
swearing; justice and judgment in the judge administering the oath. 3 Co. Inst.
Sacramentum si fatuum fuerit, licet falsum, tamen non committit
perjurium. A foolish oath, though false, makes not perjury. 2 Co. Inst.
Saepe viatorim nova non vetus orbita fallit. Often it is the new road,
not the old one, which deceives the traveller. 4 Co. Inst. 34.
Saepenumero uvb proprietas verboem attenditur, sensus veritatis
amittitur. Frequently where the propriety of words is attended to, the meaning
of truth is lost. 7 Co. 27.
Salus populi est suprema lex. The safety of the people is the supreme
law. Bacon's Max. in Reg. 12; Broom's Max. 1.
Salus ube multi consiliarii. In many counsellors there is safety. 4 Co.
Sapiens incipit a fine, et quod primum est in intentione, ultimum est in
executione. A wise man begins with the last, and what is first in intention is
last in execution. 10 Co. 25.
Sapiens omnia agit cum consilio. A wise man does everything advisedly. 4
Co. Inst. 4.
Sapientia legis nummario pretio non est aestemanda. The wisdom of law
cannot be valued by money.
Sapientis judicis est cogitare tantum sibi esse permissum, quantum
commissum et creditum. A wise man should consider as much what he premises as
what he commits and believes. 4 Co. Inst. 193.
Satisfaction should be made to that fund which has sustained the loss. 4
Bouv. Inst. n. 3731.
Satius est petere fontes quam sectari rivulos. It is better to search
the fountain than to cut rivulets. 10 Co. 118. It is better to drink at the
fountain than to sip in the streams.
Scientia sciolorum est mixta ignorantia. The knowledge of smatterers is
mixed ignorance. 8 Co. 159.
Scientia et volunti non fit injuria. A wrong is not done to one who
knows and wills it.
Scientia utrimque per pares contrahentes facit. Equal knowledge on both
sides makes the contracting parties equal.
Scire leges, non hoc est verba eorum tenere, sed vim et potestatem. To
know the laws, is not to observe their mere words, but their force and power.
Dig. 1, 3, 17.
Scire proprie est, rem ratione et per causam cognoscere. To know
properly is to know the reason and cause of a thing. Co. Litt. 183.
Scire debes cum quo contrahis. You ought to know with whom you deal.
Scribere est agere. To write is to act. 2 Roll. R. 89.
Scriptae obligationes scriptis tolluntur, et nude consensus obligatio,
contrario consensu dissolvitur. Written obligations are dissolved by writing,
and obligations of naked assent by similar naked assent.
Secundum naturam est, commoda cujusque rei eum sequi, quem sequentur
incommoda. It is natural that he who bears the charge of a thing, should
receive the profits. Dig. 50, 17, 10.
Securius expediuntur negotia commissa pluribus, et plus vident oculi
quam oculus. Business entrusted to several speeds best, and several eyes see
more than one eye. 4 Co. 46.
Semel malus semper praesumitur esse malus in eodem genere. Whatever is
once bad, is presumed to be so always in the same degree. Cro. Car. 317.
Semper ita fiat relatio ut valeat dispositio. Let the reference always
be so made that the disposition may avail. 6 Co. 76.
Semper necessitas probandi incumbit qui agit. The claimant is always
bound to prove: the burden of proof lies on him.
Semper praesumitur pro legitimatione puerorem, et filiatio non potest
probari. Children are alwasy presumed to be legitimate, for filiation cannot be
proved. Co. Litt. 126. See 1 Bouv. Inst. n. 303.
Semper praesumitur pro sententia. Presumption is always in favor
of the sentence. 3 Buls. 43.
Semper specialia generalibus insunt. Special clauses are always
comprised in general ones. Dig. 50, 17, 147.
Sensus verborum est anima legis. The meaning of words is the spirit of
the law. 5 Co. 2.
Sensus verborum ex causa dicendi accipiendus est, et sermones semper
accipiendi sunt secundum subjectam materiam. The sense of words is to be taken
from the occasion of speaking them, and discourses are always to be interpreted
according to the subject-matter. 4 Co. 14.
Sententia facit jus, et legis interpretatio legis vim obtinet. The
sentence gives the right, and the interpretation has the force of law.
Sententia interlocutoria revocari potest, difinitiva non potest. An
interlocutory sentence or order may be revoked, but not a final.
Sententia non fertur de rebus non liquidis. Sentence is not given upon a
thing which is not clear.
Sequi debet potentia justitiam, non praecedere. Power should follow
justice, not precede it. 2 Co. Inst. 454.
Sermo index animi. Speech is an index of the mind. 5 Co. 118.
Sermo relatus ad personam, intelligi debet de conditione personae. A
speech relating to the person is to be understood as relating to his condition.
4 Co. 16.
Si a jure discedas vagus eris, et erunt omnia omnibus incerta. If you
depart from the law, you will wander without a guide, and everything will be in
a state of uncertainty to every one. Co. Litt. 227.
Si assuetis mederi possis nova non sunt tentanda. If you can be relieved
by accustomed remedies, new ones should not be tried. 10 Co. 142.
Si judicas, cognasce. If you judge, understand.
Si meliores sunt quos ducit amor, plures sunt quos corrigit timer. If
many are better led by love, more are corrected by fear. Co. Litt. 392.
Si nulla sit conjectura quae ducat alio, verba intelligenda sunt ex
proprietate, non grammatica sed populari ex usu. if there be no conjecture
which leads to a different result, words are to be understood, according to the
proper meaning, not in a grammatical, but in a popular and ordinary sense. 2
Kent, Com. 555.
Si quis custos fraudem pupillo fecerit, a tutela removendus est. If a
guardian behave fraudently to his ward, he shall be removed from the
guardianship. Jenk. Cent. 39.
Si quis praegnantum uxorem reliquit, non videtur sine liberis
decessisse. If a man dies, leaving his wife pregnant, he shall not be
considered as having died childless.
Si suggestio non sit vera, literae patentes vacuae sunt. If the
suggestion of a patent is false, the patent itself is void. 10 Co. 113.
Si quid universitate debetur singulis non debetur, nec quod debet,
universitas singuli debent. If anything is due to a corporation, it is not due
to the individual members of it, nor do the members individually owe what the
corporation owes. Dig. 3, 4, 7.
Sic interpretandum est ut verba accipiantur cum effectu. Such an
interpretation is to be made, that the words may have an effect.
Sic utere tuo ut alienum non laedas. So use your own as not to injure
another's property. 1 Bl. Com. 306; Broom's max. 160; 4 McCord, 472; 2 Bouv.
Inst. n. 2379.
Sicut natura nil facit per saltum, ita nec lex. As nature does nothing
by a bound or leap, so neither does the law. Co. Litt. 238.
Silent leges inter arma. Laws are silent amidst arms. 4 Co. Inst.
Simplicitas est legibus amica. Simplicity is favorable to the law. 4 Co.
Sine possessione usucapio procedere non potest. There can be no
prescription without possession.
Solemnitas juris sunt observandae. The solemnities of law are to be
observed. Jenk. Cent. 13.
Solo cedit quod solo implantatur. What is planted in the soil belongs to
the soil. inst. 2, 1, 29. See 1 Mackeld. civ. Law, §268; 2 Bouv. Inst. n.
Solo cedit quodquod solo implantatur. What is planted in the soil
belongs to the soil. Inst. 2, 1, 32; 2 Bouv. Inst. n. 1572.
Solus Deus haeredem facit. God alone makes the heir.
Solutio pretii, emptiones loco habetur. The payment of the price stands
in the place of a sale.
Spes est vigilantis somnium. Hope is the dream of the vigilant. 4 Co.
Spes impunitatis continuum affectum tribuit delinquendi. The hope of
impunity holds out a continual temptation to crime. 3 Co. Inst. 236.
Spoliatus debet ante omnia restitui. Spoil ought to be restored before
anything else. 2 Co. Inst. 714.
Spondet peritiam artis. He promises to use the skill of his art. Poth.
Louage, n. 425; Jones, Bailm. 22, 53, 62, 97, 120; Domat, liv. 1, t. 4, s. 8,
n. 1; 1 Story Bailm. §431; 1 Bell's Com. 459, 5th ed.; 1 Bouv. Inst. n.
Stabit praesumptio donec probetur in contrarium. A presumption will
stand good until the contrary is proved. Hob. 297.
Statuta pro publico commodo late interpretantur. Statutes made for the
public good ought to be liberally construed. Jenk. Cent. 21.
Statutum affirmativum non derogat communi legi. An affirmative statute
does not take from the common law. Jenk. Cent. 24.
Statutum generaliter est intelligendum quaudo verva statuti sunt
specialia, ratio autem generalis. When the words of a statute are special, but
the reason of it general, it is to be understood generally. 10 Co. 101.
Statutum speciale statuto speciali non derogat. One special statute does
not take away from another special statute. Jenk. Cent. 199.
Sublata causa tollitur effectus. Remove the cause and the effect will
cease. 2 Bl. Com. 203.
Sublata veneratione magistraiuum, respublica ruit. The commonwealth
perishes, if respect for magistrates be taken away.
Sublato fundamento cadit opus. Remove the foundation, the structure or
Sublato principali tollitur adjunctum. If the principal be taken away,
the adjunct is also taken away. Co. Litt. 389.
Summum jus, summa injuria. The rigor or height of law, is the height of
wrong. Hob. 125; 1 Chan. Rep. 4.
Superflua non nocent. Superfluities do no injury.
Surplusagium non nocet. Surplusage does no harm. 3 Bouv. Inst. n.
Tacita quaedam habentur pro expressis. Things silent are sometimes
considered as expressed. 8 Co. 40.
Talis interpretatio semper fienda est, ut evitetur absurdum, et
inconveniens, et ne judicium sit illusorium. Interpretation is always to be
made in such a manner, that what is absurd and inconvenient is to be avoided,
so that the judgment be not nugatory. 1 Co. 52.
Talis non est eadem, nam nullum simile est idem. What is like is not the
same, for nothing similar is the same. 4 Co. 18.
Tantum bona valent, quantum vendi possunt. Things are worth what they
will sell for. 3 Co. Inst. 305.
Terminus annorum certus debet esse et determinatus. A term of years
ought to be certain and determinate. Co. Litt. 45.
Terra transit cum onere. Land passes with the incumbrances. Co. Litt.
Testamenta latissimam interpretationem habere debent. Wills ought to have
the broadest interpretation.
Testamentum omne morte consumatum. Every will is completed by death. Co.
Testatoris ultima voluntas est perimplenda secundum veram intentionem
suam. The last will of a testator is to be fulfilled according to his real
intention. Co. Litt. 232.
Testibus deponentibus in pari numero dignioribus est credendum. When the
number of witnesses is equal on both sides, the more worthy are to be believed.
4 Co. Inst. 279.
Testis de visu praeponderat aliis. An eye witness outweighs others. 4
Co. Inst. 470.
Testis nemo in sua causa esse potest. No one can be a
witness in his own cause.
Testis oculatus unus plus valet quam auriti decem. One eye witness is
worth ten ear witnesses. See 3 Bouv. Inst. n. 3154.
Timores vani sunt aestimandi qui non cadunt in constantem virum. Fears,
which have no fixed persons for their object, are vain. 7 Co. 17.
That which I may defeat by my entry, I make good by my confirmation. Co.
The fund which has received the benefit should make the satisfaction. 4
Bouv. Inst. n. 3730.
Things shall not be void which may possibly be good.
Totum prefertur uni cuique parte. The whole is preferable to any single
part. 3 Co. 41.
Tout ce que la loi ne defend pas est permis. Everything is permitted,
which is not forbidden by law.
Tonte exception non surveillee tend a prendre la place du
principe. Every exception not watched tends to assume the place of the
Tractent fabrilia fabri. Let smiths perform the work of smiths. 3 Co.
Traditio loqui facit chartam. Delivery makes the deed speak. 5 Co.
Transgressione multiplicata, crescat paena inflictio. When transgression
is multiplied, let the infliction of punishment be increased. 2 Co. Inst.
Triatio ibi semper debet fieri, ubi juratores meliorem possunt habere
notitiam. Trial ought always to be had where the jury have the best knowledge.
7 Co. 1.
Trupis est pars quae non convenit cum suo toto. That part is bad which
accords not with the whole. Plow. 161.
Tuta est custodia quae sibimet creditur. That guardianship is secure
which trusts to itself alone.
Tutius erratur ex parte mittioro. It is safer to err on the side of
mercy. 3 inst. 220.
Ubi aliquid impeditur propter unum, eo remoto, tollitur impedimentum.
When anything is impeded by one single cause, if that be removed the impediment
is removed. 7 Co. 77.
Ubi cessat remedium ordinarium ibi decurritur ad extraordinarium. When a
common remedy ceases to be of service, recourse must be had to an extraordinary
one. 4 Co. 93.
Ubi culpa est ibi paena subesse debet. Where there is culpability, there
punishment ought to be.
Ubi eadem ratio, ibi idem lex. Where there is the same reason, there is
the same law. 7 co. 18.
Ubi damna dantur, victus victori in expensis condemnari debet. Where
damages are given, the losing party should pay the costs of the victor. 2 Inst.
Ubi factum nullum ibi sortia nulla. Where there is no deed committed,
there can be no consequence. 4 Co. 43.
Ubi jus, ibi remedium. Where there is a right, there is a remedy. 1 T.
R. 512; Co. Litt. 197, b; 3 Bouv. Inst. n. 2411; 4 Bouv. Inst. n. 3726.
Ubi jus incertum, ibi jus nullum. Where the law is uncertain, there is
Ubi lex aliquem cogit ostendere causam, necesse est quod causa sit justa
et letitima. Where the law compels a man to show cause, the cause ought to be
just and legal. 2 Co. Inst. 269.
Ubi lex est specialis, et ratio ejus generalis, generaliter accipienda
est. Where the law is special and the reason of it is general, it ought to be
taken as being general. 2 Co. Inst. 43.
Ubi lex non distinguit, nec nos distinguere debemus. Where the law does
not distinguish, we ought not to distinguish. 7 Co. 5.
Ubi major pars est, ibi totum. Where is the greater part, there is the
whole. Moor, 578.
Ubi non adest norma legis, omnia quasi pro suspectis habenda sunt. When
the law fails to serve as a rule, almost everything ought to be suspected.
Bacon, De Aug. Sci. Aph. 25.
Ubi non est condendi auctoritas, ibi non est parendi necessitas. Where
there is no authority to enforce, there is no authority to obey. Dav. 69.
Ubi non est directa lex, standum est arbitrio judicis, vel procedendum
ad similia. Where there is no direct law, the opinion of the judges ought to be
taken, or reference made to similar cases.
Ubi non est lex, non est transgressio quoad mundum. Where there is no
law there is no transgression, as it regards the world.
ubi non est principalis non potest esse accessorius. Where there is no
principal there is no accessory. 4 co. 43.
ubi nullum matrimonium ibi nullum dos. Where there is no marriage there
is no dower. Co. Litt. 32.
Ubi periculum, ibi et lucrum collocatur. He at whose risk a thing is,
should receive the profits arising from it.
Ubi quid generaliter conceditur, in est haec exceptio, si non aliquid
sit contra jus fasque. Where a thing is concealed generally, this exception
arises, that there shall be nothing contrary to law and right. 10 Co. 78.
Ubi quis delinquit ibi punietur. Let a man be punished when he commits
the offence. 6 Co. 47.
Ubicunque est injuria, ibi damnum sequitur. Wherever there is a wrong,
there damages follow. 10 Co. 116.
Ultima voluntas testatoris est perimplenda secundum veram intentionem
suam. The last will of a testator is to be fulfilled according to his true
intention. Co. Litt. 322.
Ultra posse non est esse, et vice versa. What is beyond possibility
cannot exist, and the reverse, what cannot exist is not possible.
Una persona vix potest supplere vices duorum. One person can scarcely
supply the place of two. 4 co. 118.
Universalia sunt notoria singularibus. Things universal are better known
than things particular. 2 Roll. R. 294.
Universitas vel corporatio non dicitur aliquid facere nisi id sit
collegialiter deliberatum, etiamsi major pars id faciat. An university or
corporation is not said to do anything unless it be deliberated upon
collegiately, although the majority should do it. Dav. 48.
Uno absurdo dato, infinita sequuntur. One absurdity begin allowed, an
infinity follow. 1 co. 102.
Unumquodque eodem modo quo colligatum est dissolvitur. In the same
manner in which a thing is bound, it is loosened. 2 Roll. Rep. 39.
Unumquodque est id quod est principalius in ipso. That which is the
principal part of a thing is the thing itself. Hob. 123.
Unumquodque dissolvatur eo modo quo colligatur. Everything is dissolved
by the same mode in which it is bound together.
Usury is odious in law.
Ut paena ad paucos, metus ad omnes perveniat. That by the punishment of
a few, the fear of it may affect all. 4 Inst. 63.
Ut res magis valeat quam pereat. That the thing may rather have effect
than be destroyed.
Utile per inutile non vitiatur. What is useful is not vitiated by the
useless. 3 Bouv. Inst. n. 2949, 3293; 2 Wheat. 221; 2 S. & R. 298; 17 S.
& R. 297; 6 Mass. 303.
Valeat quantum valere potest. It shall have effect as far as it can have
Vana est illa potentia quae numquam venit in actum. Vain is that power
which is never brought into action. 2 Co. 51.
Vani timores sunt aestimandi, qui non cadunt in constantem virum. Vain
are those fears which affect not a valiant man. 7 Co. 27.
Vendens eandem rem doubus falsarius est. It is fraudulent to sell the
same thing twice. Jenk. Cent. 107. See Stalionat.
Veniae facilitas incentivum est delinquendi. Facility of pardon is an
incentive to crime. 3 inst. 236.
Vreba aliquid operari debent, verba cum effectu sunt accipienda. Words
are to be taken so as to have effect. Bacon's Max. Reg. 3, p. 47. See 1 Duer.
on ins. 210, 211, 216.
Verba aequivoca ac in dubio sensu posita, intelliguntur dignori et
potentiori sensu. Equivocal words and those in a doubtful sense are to be taken
in their best and most effective sense. 6 Co. 20.
Verba currentis monetae, tempus solutionis designat. The words current
money, refer to the time of payment. Dav. 20.
Verba dicta de persona, intelligi debent de conditione personae. Words
spoken of the person are to be understood of the condition of the person. 2
Roll. R. 72.
Verba fortius accipientur contra proferentum. Words are to be taken most
strongly against him who uses them. Bacon's Max. REg. 3; 1 Bouv. Inst. n.
Verba generalia generaliter sunt intelligenda. General words are to be
generally understood. 3 Co. Inst. 76.
Verba ganeralia restringuntur ad habilitatem rei vel personae. General
words must be confined or restrained to the nature of the subject or the
aptitude of the person. Bacon's max. Reg. 10.
Verba intentioni, non e contra, debent inservire. Words ought to be made
subservient to the intent, not contrary to it. 8 Co. 94.
Verba ita sunt intelligenda, ut res magis valeat quam pereat. Words are
to be so understood that the subject-matter may be preserved rather than
destroyed. Bacon's Max. in Reg. 3.
Verba nihil operandi melius est quam absurde. It is better that words
should have no operation, than to operate absurdly.
Verba posteriora propter certitudinem addita, ad priora quae certitudine
indigent, sunt referenda. Words added for the purpose of certainty are to be
referred to preceding words, in which certainty is wanting.
Verga relata hac maximi operantur per referentiam ut in eis in esse
videntur. Words referred to other words operate chiefly by the reference which
appears to be impled towards them. Co. Litt. 359.
Veredictum, quasi dictum veritas; ut judicium quasi juris dictum. A
verdict is, as it were, the saying of the truth, in the same manner that a
judgment is the saying of the law. Co. Litt. 226.
Veritas demonstrationis tollit errorem nominis. The truth of the
demonstration removes the error of the name. Ld. Raym. 303. See Legatee.
Veritas nihil veretur nisi abscondi. Truth fears nothing but
concealment. 9 co. 20.
Veritas nimium altercando amittitur. By too much altercation truth is
lost. Hob. 344.
Veritatem qui non libere pronunciat, proditor est veritatis. He who does
not speak the truth, is a traitor to the truth.
Vicarius non habet vicaruim. A deputy cannot appoint a deputy. Branch's
max. 38; Broom's max. 384; 2 Bouv. Inst. n. 1300.
Vigilantibus et non dormientibus serviunt leges. The laws serve the
vigilant, not those who sleep upon their rights. 2 Bouv. Inst. n. 2327. See
Viperina est expositio quae corrodit viscera textus. That is a viperous
exposition which gnaws or eats out the bowels of the text. 11 Co. 34.
Vir et uxor consentur in lege una persona. Husband and wife are
considered one person in law. Co. Litt. 112.
Vis legibus est inimica. Force is inimical to the laws. 3 Co. inst.
Vitium clerici nocere non debet. Clerical errors ought not to hurt.
Voluit sed non dixit. He willed but did not say.
Voluntas testatoris ambulatoria est usque ad mortem. The will of a
testator is ambulatory until his death; that is, he may change it at any time.
See 1 Bouv. inst. n. 83.
Voluntas in delictis non exitus spectatur. In offences, the will and not
the consequences are to be looked to. 2 Co. inst. 27.
Voluntas reputabatur pro facto. The will is to be taken for the deed. 3
Co. Inst. 69.
Volunti non fit injuria. He who consents cannot receive an injury. 2
Bouv. Inst. n. 2279, 2327; 4 T. R. 657; Shelf. on mar. & Div. 449.
What a man cannot transfer, he cannot bind by articles.
When the common law and statute law concur, the common law is to be
preferred. 4 Co. 71.
When many join in one act, the law says it is the act of him who could
best do it; and things should be done by him who has the best skill. Noy's Max.
When the law presumes the affirmative, the negative is to be proved. 1
Roll. R. 83; 3 Bouv. Inst. n. 3063, 3090.
When no time is limited, the law appoints the most convenient.
When the law gives anything, it gives a remedy for the same.
When the foundation fails, all fails.
Where two rights concur, the more ancient shall be preferred.
Where there is equal equity, the law must prevail. 4 Bouv. Inst. n.
Vide, generally, Dig. 50, 17; 1 Ayl. Pand. b. 1, t. 6; Merl.
Repert. Regles de Droit; Pow. Mint. Index, h. t.; Dane's Ab. Index, h.
t.; Wooddes. Lect. lxxi. note; and collections of Bacon, Noy, Francis, Branch
and Heath; Duval, Le Droit dans ses Maximes.
MAY. To be permited; to be at liberty; to have the power.
2. Whenever a statute directs the doing of a thing for the sake of
justice or the public good, the word may is the same as shall. For example, the
23 H. VI. says, the sheriff may take bail, that is construed he shall, for he
is compellable to do so. Carth. 293 Salk. 609; Skin. 370.
3. The words shall and may in general acts of the legislature or in
private constitutions, are to be construed imperatively; 3. Atk. 166; but the
construction of those words in a deed depends on circumstances. 3 Atk. 282. See
1 Vern. 152, case. 142 9 Porter, R. 390.
MAYHEM, crimes. The act of unlawfully and violently depriving
another of the use of such of his members as may render him less able in
fighting either to defend himself or annoy his adversary; and therefore the
cutting or disabling, or weakening a man's hand or finger, or striking out his
eye or foretooth, or depriving him of those parts the loss of which abates his
courage, are held to be mayhems. But cutting off the ear or nose or the like,
are not held to be mayhems at common law. 4 Bl. Com. 205.
2. These and other severe personal injuries are punished by the Coventry
act, (q. v.) which has been re-enacted in several of the states; Ryan's Med.
Jurispr. 191, Philad. ed. 1832; and by congress. Vide act of April 30, 1790, s.
13, 1 Story's Laws U. S. 85; act of March 3, 1825, s. 22, 3 Story's L. U. S.
MAYHEMAVIT. Maimed. This is a term of art which cannot be
supplied in pleadings by any other word; as, mutilavit, truncavit, &c. 3
Tho. Co. Litt. 548.
MAYOR, officer. The chief or executive magistrate of a city who
bears this title.
2. It is generally his duty to cause the laws of the city to be
enforeed, and to superintend inferior officers, such as constables, watchmen
and the like. But the power and authority which mayors possess being given to
them by local regulations, vary in different places.
MAYOR'S COURT. The name of a court usually established in cities,
composed of a mayor, recorder and aldermen, generally having jurisdiction of
offences committed within the city, and of other matters specially given them
by the statute.
MEASURE. That which is used as a rule to determine a quantity. A
certain quantity of something, taken for a unit, and which expresses a relation
with other quantities of the same thing.
2. The constitution of the United States gives power to congress to "
fix the standard of weights and measures." Art. 1, B. 8. Hitherto this has
remained as a dormant power, though frequently brought before the attention of
3. The states, it seems, possess the power to legislate on this
subject, or, at least, the existing standards at the adoption of the
constitution remain in full force. 3 Sto. Const. 21; Rawle on the Const.
4. By a resolution of congress, of the 14th of June, 1836, the secretary
of the treasury is directed to cause a complete set of all weights and measures
adopted as standards, and now either made or in the progress of manufacture,
for the use of the several custom-houses and for other purposes, to be
delivered to the governor of each state in the Union, or to such person as he
may appoint, for the use of the states respectively, to the end that an uniform
standard of weights and measures may be established throughout the United
5. Measures are either, 1. Of length. 2. Of surface. 3. Of solidity or
capacity. 4. Of force or gravity, or what is commonly called weight. (q. v.) 5.
Of angles. 6. Of time. The measures now used in the United States, are the same
as those of England, and are as follows
1. MEASURES OF LENGTH.
12 inches = l foot
3 feet = l yard
51/2 yards = l rod or pole
40 poles = 1 furlong
8 furlongs = l mile
69 1/15 miles = l degree of a great circle
of the earth.
An inch is the smallest lineal measure to which a name is given, but
subdivisions are used for many purposes. Among mechanics, the inch is commonly
divided into eighths. By the officers of the revenue and by scientific persons,
it is divided into tenths, hundredths, &c. Formerly it was made to consist
of twelve parts called lines, but these have fallen into disuse.
Particular measures of length.
1st. Used for measuring cloth of all kinds.
1 nail = 2 1/4 inches
1 quarter = 4 inches
1 yard = 4 quarters
1 ell = 5 quarters. 2d. used for the height of horses.
1 hand = 4 inches. 3d. Used in measuring depths.
1 fathom = 6 feet.
4th. Used in land measure, to facilitate computation of the contents,
10 square chains being equal to an acre.
1 link = 7 92/100 inches
1 chain = 100 links. 6.-2. MEASURES OF SURFACE.144 square inches = l square foot
9 square feet = l square yard
30 1/4 square yards = l perch or rod
40 perches = l rood
4 roods or 160 perches = l acre
640 acres--l square mile. 7. - 3. MEASURES OF SOLTDITY AND CAPACITY.1st. Measures of solidity.1728 cubic inches = l cubic foot
27 cubic feet = l cubic yard.
2d. Measures of capacity for all liquids, and for all goods, not liquid,
except such as are comprised in the next division.
4 gills = l pint = 34 2/3 cubic inches nearly.
2 pints = l quart = 691/2 " "
4 quarts = 1 gallon = 277 1/4 " "
2 gallons = l peck = 554 1/2 " "
8 gallons= 1 bushel = 2218 1/2 " "
8 bushels = l quarter = 10 1/4 cubic feet "
5 quarters = l load = 51 1/2 " "
The last four denominations are used only for goods, not liquids. For
liquids, several denominations have heretofore been adopted, namely, for beer,
the firkin of 9 gallons, the kilderkin of 18 , the barrel of 36, the hogshead
of 54; and the butt of 108 gallons. For wine or spirits there are the anker,
runlet, tierce, hogshead, puncheon, pipe, butt, and tun; these are, however,
rather the names of the casks, in which the commodities are imported, than as
express any definite number of gallons. It is the practice to gauge all such
vessels, and to charge them according to their actual contents.
3d. Measures of capacity, for coal, lime, potatoes, fruit, and other
commodities, sold by heaped measure.
2 gallons = 1 peck-704 cubic in. nearly.
8 gallons = 1 bushel=28151/2 " "
3 bushels = 1 sack = 41 cubic feet "
12 sacks=l chaldron = 58 2/3 " "8.-4. MEASURES OF WEIGHTS. See art. Weights.9.-5., ANGULAR MEASURE; or, DIVISION OF THE CIRCLE.
60 seconds = l minute
60 minutes = l degree
30 degrees = 1 sign
90 degrees = 1 quadrant
360 degrees, or 12 signs = 1 circumference.
Formerly the subdivisions were carried on by sities; thus, the second
was divided into 60 thirds, the third into sixty fourths, &c. At present,
the second is more generally divided decimally into tens, hundreds, &c. The
degree is frequently so divided.
or 10. - 6. MEASURE OF TIME.60 seconds = 1 minute 60 minutes = 1 hour
24 hours = l day 7 days = 1 week 28 days, or 4 weeks = 1 lunar month 28, 29,
30, or 31 days = 1 calendar month 12 calendar months = 1 year 365 days = 1
common year 366 day = l leap year. The second of time is subdivided like that
of angular measure.
11. As the French system of weights and measures is the most scientific
plan known, and as the commercial connexions of the United States with France
are daily increasing, it has been thought proper here to give a short account
of that system.
12. The fundamental, invariable, and standard measure, by which all
weights and measures are formed, is called the metre, a word derived from the
Greek , which signifies measure. It is a lineal measure, and is equal to 3
feet, 0 inches, 44/1000, Paris measure, or 3 feet, 3 inches, 370/1000 English.
This unit is divided into ten parts; each tenth, into ten hundreths; each
hundreth, into ten thousandths, &c. These divisions, as well as those of
all other mea- sures, are infinite. As the standard is to be invariable,
something has been sought, from which to make it, which is not variable or
subject to any change. The fundamental base of the metre is the quarter of the
terrestrial meridian, or the distance from the pole to the equator, which has
been divided into ten millions of equal parts, one of which is the length of
the metre. All the other measures are formed from the metre, as follows:
2. MEASURE OF CAPACITY
13. The litre. This is the decimetre; or one-tenth part of the cubic
metre; that is, if a vase is made of a cubic form, of a decimetre every way, it
would be of the capacity of a litre. This is divided by tenths, as the metre.
The measures which amount. to more than a single, litre, are counted by tens
hundreds, thousands, &c., of litres.
3. MEASURES OF WEIGHTS.
14. The gramme. This is the weight of a cubic centimetre of distilled
water, at the temperature of zero; that is, if a vase be made of a cubic form,
of a hundredth part of a metre every way, and it be filled with distilled
water, the weight of that water will be that of the gramme.
4. MEASURES OF SURFACES.
15. The arc, used in surveying. This is a square, the sides of which are
of the length of ten metres, or what is equal to one hundred square metres. Its
divisions are the same as in the preceding measures.
5. MEASURES OF SOLIDITY.
16. The stere, used in measuring firewood. It is a cubic metre. Its
subdivisions are similar to the preceding. The term is used only for measuring
fire-wood. For the measure of other things, the term cube metre, or cubic metre
is used, or the tenth, hundredth, &c., of such a cube.
17. The franc. It weighs five grammes. it is made of nine-tenths of
silver, and one-tenth of copper. Its tenth part is called a decime, and its
hundredth part a centime.
18. One measure being thus made the standard of all the rest, they must
be all equally invariable; but, in order to make this certainty perfectly sure,
the following precautions have been adopted. As the temperature was found to
have an influence on bodies, the term zero, or melting ice, has been selected
in making the models or standard of the metre. Distilled water has been chosen
to make the standard of the gramme, as being purer, and less encumbered with
foreign matter than common water. The temperature having also an influence on a
determinate volume of water, that with which the experiments were made, was of
the temperature of zero, or melting ice. The air, more or less charged with
humidity, causes the weight of bodies to vary, the models which represent the
weight of the gramme, have, therefore, been taken in a vacuum.
19. It has already been stated, that the divisions of these measures are
all uniform, namely by tens, or decimal fractions, they may therefore be
written as such. Instead of writing,
1 metre and 1 tenth of a metre, we may write, 1 m. 1.
2 metre and 8 tenths, 2 m. 8.
10 metre and 4 hundredths, 10 m. 04.
7 litres, 1 tenth, and 2 hundredths, 7 lit. 12, &c.;
20. Names have been given to, each of these divisions of the principal
unit but these names always indicate the value of the fraction, and the unit
from which it is derived. To the name of the unit have been prefixed the
particles deci, for tenth, centi, for hundredth, and milli, for thousandth.
They are thus expressed, a decimetre, a decilitre, a decigramme, a decistere, a
deciare, a centimetre, a centilitre, a centigramme, &c. The facility with
which the divisions of the unit are reduced to the same expression, is very
apparent; this cannot be done with any other kind of measures.
21. As it may sometimes be necessary to express great quantities of
units, collections have been made of them in tens, hundreds, thousands, tens of
thousands, &c., to which names, derived from the Greek, have been given;
namely, deca, for tens hecto, for hundreds; kilo, for thousands and myria, for
tens of thousands; they are thus expressed; a decametre, a decalitre, &c.;
a hectometre, a hectogramme, &c.; a kilometre, a kilogramme, &c.
22. The following table will facilitate the reduction of these weights
and measures into our own.
The Metre, is 3.28 feet, or 39.871 in.
Are, is 1076.441 square feet.
Litre, is 61.028 cubic inch
Stere, is 35.317 cubic feet.
Gramme, is 15.4441 grains troy, or 5.6481 drams, averdupois.
MEASURE OF DAMAGES, prac. Those principles or rules of law which
control a jury in adjusting or proportioning the damages, in certain cases. 1
Bouv. Inst. n. 636.
MEAN. This word is sometimes used for mesne. (q. v.)
MEASON-DUE. A corruption of Maison de Dieu. (q. v.)
MEDIATE, POWERS. Those incident to primary powers, given by a
principal to Iiis agent. For example, the general authority given to collect,
receive and pay debts due by or to the principal is a primary power. In order
to accomplish this it is frequently required to settle accounts, adjust
disputed claims, resist those which are unjust, and answer and defend suits;
these subordinate powers are sometimes called mediate powers. Story, Ag. 58.
See Primary powers, and 1 Camp. R. 43, note 4 Camp. R. 163; 6 S. & R.
MEDIATION. The act of some mutual friend of two contending
parties, who brings them to agree, compromise or settle their disputes. Vattel,
Droit des Gens, liv. 2, eh. 18, 328.
MEDIATOR. One who interposes between two contending parties,
with their consent, for the purpose of assisting them in settling their
differences. Sometimes this term is applied to an officer who is appointed by a
sovereign nation to promote the settlement of disputes between two other
nations. Vide Minister; Mediator.
MEDICAL JURISPRUDENCE. That science which applies the principles
and practice of the different branches of medicine to the elucidation of
doubtful questions in courts of justice. By some authors, it is used in a more
extensive sense and also comprehends Medical Police, or those medical precepts
which may prove useful to the legislature or the magistracy. Some authors,
instead of using the phrase medical jurisprudence, employ, to convey the same
idea, those of legal medicine, forensic medicine, or, as the Germans have it,
2. The best American writers on this subject are Doctors T. R. Beck and
J. B. Beck, Elements of Medical Jurisprudence; Doctor Thomas Cooper; Doctor
James S. Stringham, who was the first individual to deliver a course of
lectures on medical jurisprudence, in this country; Doctor Charles Caldwell.
Among the British writers may be enumerated Doctor John Gordon Smith; Doctor
Male; Doctor Paris and Mr. Fonblanque, who published a joint work; Mr. Chitty,
and Dr. Ryan. The French writers are numerous; Briand, Biessy, Esquirol,
Georget, Falret, Trebuchet, Mare, and others, have written treatises or
published papers on this subject; the learned Fodere published a work entitled
"Les Lois eclairees par les sciences physiques ou Traite de
Medecine Legale et d'hygiene publique;" the "Annale
d'hygiene et de Medecine Legale," is one of the most
valued works on this subject. Among the Germans may be found Rose's Manual on
Medico Legal Dissection; Metzger's Principles of Legal Medicine, and others.
The reader is referred for a list of authors and their works on Medical
Jurisprudence, to Dupin, Profession d'Avocat, tom. ii., p. 343, art. 1617 to
1636, bis. For a history of the rise and progress of Medical Jurisprudence, see
Traill, Med. Jur. 13.
MEDICINE CHEST. A box containing an assortment of medicines.
2. The act of congress for the government and regulation of seamen in
the merchant service, sect. 8, 1 Story's L. U. S. 106, directs that every ship
or vessel, belonging to a citizen or citizens of the United States, of the
burthen of one hundred and fifty tons or upwards, navigated by ten or more
persons in the whole, and bound on a voyage without the limits of the United
States, shall be provided with a chest of medicines, put up by some apothecary
of known reputation, and accompanied by directions for administering the same;
and the said medicines shall be examined by the same or some other apothecary,
once, at least, in every year, and supplied with fresh medicines in the place
of such as shall have been used or spoiled; and in default of having such
medicine chest so provided, and kept fit for use, the master or commander of
such ship or vessel shall provide and pay for all such advice, medicine, or
attendance of physicians, as any of the crew shall stand in need of in case of
sickness, at every port or place where the ship or vessel may touch or trade at
during the voyage, without any deduction from the wages of such sick seaman or
3. And by the act to amend the above mentioned act, approved March 2,
1805, 2 Story's Laws U. S. 971, it is provided that all the provisions,
regulations, and penalties, which are contained in the eighth section of the
act, entitled "An act for the, government and regulation of seamen in the
merchants' service," so far as relates to a chest of medicines to be provided
for vessels of one hundred and fifty tons burthen and upwards, shall be
extended to all merchant vessels of the burthen of seventy-five tons or
upwards, navigated with six persons, or more, in the whole, and bound from the
United States to any port or ports in the West Indies.
MEDIETAS LINGUAE. Half tongue. This expression was used to
signify that a jury for the trial of a foreigner or alien for a crime, was to
be composed one half of natives and the other of foreigners. The jury de
medietate linguae is used in but a few if any of the United States. Dane's Ab.
vol. 6, c. 182, a, 4, n. 1. Vide 2 Johns. R. 381; 1 Chit. Cr. Law, 525; Bac.
Ab. Juries, E 8.
MELANCHOLIA, med. jur. A name given by the ancients to a species
of par- tial intellectual mania, now more generally known by the name of
monomania. (q. v.) It bore this name because it was supposed to be always
attended by dejection of mind and gloomy ideas. Vide Mania.,
MELIORATIONS, Scotch law. Improvements of an estate, other than
mere repairs; betterments. (q. v.) 1 Bell's Com. 73.
MELIUS INQUIRENDUM VEL INQUIRENDO. English practice. A writ
which in certain cases issues after an imperfect inquisition returned on a
capias utlugatum in outlawry. This melius inquirendum commands the sheriff to
summon another inquest in order that the value, &c., of lands, &c., may
be better or more cor- rectly ascertained. Its use is rare.
MEMBER. This word has various significations: 1. The limits of
the body use- ful in self-defence. Membrum est pars corporis habens destinatum
operationem in corpore. Co. Litt. 126 a. See Limbs.
2. - 2. An individual who belongs to a firm, partnership, company or
corporation. Vide Corporation; Partnership.
3. - 3. One who belongs to a legislative body, or other branch of the
government; as, a member of the house of representatives; a member of the
MEMBER OF CONGRESS. A member of the senate or house of
representatives of the United States.
2. During the session of congress they are privileged from arrest,
except for treason, felony, or breach of the peace; they receive a compensation
of eight dollars per day while in session, besides mileage. (q. v.)
3. They are authorized to frank letters and receive them free of postage
for sixty days before, during, and for sixty days after the session.
4. They are prohibited from entering into any contracts with the United
States, directly or indirectly, in whole or in part for themselves and others,
under the penalty of three thousand dollars. Act of April 21, 1808, 2 Story's
L. U. S. 1091. Vide Congress; Frank.
MEMBERS, English law. Places where a custom-house has been kept
of old time, with officers or deputies in attendance; and they are lawful
places of exportation or importation. 1 Chit. Com. L. 726.
MEMORANDUM. Literally, to be remembered. It is an informal
instrument recording some fact or agreement, so called from its beginning, when
it was made in Latin. It is sometimes commenced with this word, though written
in English; as "Memorandum, that it is agreed," or it is headed with the words,
"Be it remembered that," &c. The term memorandum is also applied to the
clause of an instrument.
MEMORANDUM, insurance. A clause in a policy limiting the
liability of the insurer. Its usual form is as follows, namely, "N. B. Corn,
fish, salt, fruit, flour and seed, are warranted free from average, unless
general, or the ship be stranded: sugar, tobacco, hemp, flax, hides and skins,
are warranted free from average, under five percent; and all other goods, also
the ship and freight, are warranted free from average, under three percent
unless general, or the ship be stranded." Marsh. Ins.223; 5 N. S. 293; Id. 540;
4 N. S. 640; 2 L. R. 433; Id. 435.
MEMORANDUM OR NOTE. These words are use in the 4th section of
the statute 29 Charles II., c. 3, commonly called the statute of frauds and
perjuries, which enact, that "no action shall be brought whereby to charge any
person upon any agreement made upon consideration of marriage, or upon any
contract or sale of lands, tenements, or hereditaments, or any interest in or
concerning them, unless the agreement upon which such action shall he brought,
or some memorandum or note thereof, Shall be in writing," &c.
2. Many cases have arisen out of the words of this part of the statute;
the general rule seems to be that the contract must be stated with reasonable
certainty in the memorandum or note so that it can be understood from the
writing itself, without having recourse to parol proof. 3 John., R. 399; 2
Kent, Com. 402; Cruise, Dig. t. 32, c. 3, s. 18. See 1 N. R. 252; 3 Taunt. 169;
15 East, 103; 2 M. & R. 222; 8 M. & W. 834 6 M. & W. 109.
MEMORANDUM CHECK. It is not unusual among merchants, when one
makes a tem- porary loan from another, to give the lender a check on a bank,
with the express or implied agreement that it shall be redeemed by the maker
himself, and that it shall not be presented at the bank for payment. If passed
to a third person, it will be valid in his hands, like any other check. 11
Paige, R. 612.
MEMORIAL. A petition or representation made by one or more
individuals to a legislative or other body. When such instrument is addressed
to a court, it is called a petition.
MEMORY. Understanding; a capacity to make contracts, a will, or
to commit a crime, so far as intention is necessary.
2. Memory is sometimes employed to express the capacity of the
understanding, and sometimes its power; when we speak of a retentive memory, we
use it in the former sense; when of a ready memory, in the latter. Shelf. on
Lun. Intr. 29, 30.
3. Memory, in another sense, is the reputation, good or bad, which a man
leaves at his death. This memory, when good, is highly prized by the relations
of the deceased, and it is therefore libelous to throw a shade over the memory
of the dead, when the writing has a tendency to create a breach of the peace,
by inciting the friends and relations of the deceased to avenge the insult
offered to the family. 4 T. R. 126; 5 Co. R. 125; Hawk. b. 1, c. 73, s. 1.
MEMORY, TIME OF. According to the English common law, which has
been altered by 2 & 3 Wm. IV., c. 71, the time of memory commenced from the
reign of Richard the First, A. D. 1189. 2 Bl. Com. 31.
2. But proof of a regular usage for twenty years, not explained or
contradicted, is evidence upon which many public and private rights are held,
and sufficient for a jury in finding the existence of an immemorial custom or
prescription. 2 Saund. 175, a, d; Peake's Ev. 336; 2 Price's R. 450; 4 Price's
MENACE. A threat; a declaration of an intention to cause evil to
happen to another.
2. When menaces to do an injury to another have been made, the party
making them may, in general, be held to bail to keep the peace; and, when
followed by any inconvenience or loss, the injured party has a civil action
against the wrong doer. Com. Dig. Battery, D; Vin. Ab. h. t.; Bac. Ab. Assault;
Co. Litt. 161 a, 162 b, 253 b; 2 Lutw. 1428. Vide Threat.
MENIAL. This term is applied to servants who live under their
master's roof Vide stat. 2 H. IV., c. 21.
MENSA. This comprehends all goods and necessaries for livelihood.
MENSA ET THORO. The phrase a mensa et thoro is applied to a
divorce which separates the husband and wife but does not dissolve the
marriage. Vide Divorce.
MERCHANDISE. By this term is understood all those things which
merchants sell either wholesale or retail, as dry goods, hardware, groceries,
drugs, &c. It is usually applied to personal chattels only, and to those
which are not required for food or immediate support, but such as remain after
having been used or which are used only by a slow consumption. Vide Pardess. n.
8; Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8 Pet. 277; 2 Story, R. 16, 53,
54; 6 Wend. 335.
MERCHANT. One whose business it is to buy and sell merchandise;
this applies to all persons who habitually trade in merchandise. 1 Watts &
S. 469; 2 Salk. 445.
2. In another sense, it signifies a person who owns ships, and trades,
by means of them, with foreign nations, or with the different States of the
United States; these are known by the name of shipping merchants. Com. Dig.
Merchant, A; Dyer, R. 279 b; Bac. Ab. h. t.
3. According to an old authority, there are four species of merchants,
namely, merchant adventurers, merchant dormant, merchant travellers, and
merchant residents. 2 Brownl. 99. Vide, generally, 9 Salk. R. 445; Bac. Ab. h.
t.; Com. Dig. h. t.; 1 Bl. Com. 75, 260; 1 Pard. Dr. Com. n. 78
MERCHANTMAN. A ship or vessel employed in a merchant's service.
This term is used in opposition to a ship of war.
MERCHANTS' ACCOUNTS. In the statute of limitations, 21 Jac. 1. c.
16, there is an exception which has been copied in the acts of the legislatures
of a number of the States, that its provisions shall not apply to such accounts
as concern trade and merchandise between merchant and merchant, their factors
2. This exception, it has been holden, applies to actions of assumpsit
as well as to actions of account. 5 Cranch, 15. But to bring a case within the
exception, there must be an account, and that account open and current, and it
must concern trade. 12 Pet. 300. See 6 Pet. 151; 5 Mason, R. 505; Bac. Ab.
Limitation of Actions, E 3; and article Limitation.
MERCY, Practice. To be in mercy, signifies to be liable to
punishment at the discretion of the judge.
MERCY, crim. law. The total or partial remission of a punishment
to which a convict is subject. When the whole punishment is remitted, it is
called a pardon; (q. v.) when only a part of the punishment is remitted, it is
frequently a conditional pardon; or before sentence, it is called clemency or
mercy. Vide Rutherf. Inst. 224; 1 Kent, Com. 265; 3 Story, Const. 1488.
MERE. This is the French word for mother. It is frequently used
as, in ventre sa mere, which signifies; a child unborn, or in the womb.
MERGER. Where a greater and lesser thing meet, and the latter
loses its separate existence and sinks into the former. It is applied to
estates, rights, crimes, and torts.
MERGER, estates. When a greater estate and less coincide and meet
in one and the same person, without any intermediate estate, the less is
immediately merged, that is, sunk or drowned in the latter; example, if there
be a tenant for years, and the reversion in fee simple descends to, or is
purchased by him, the term of years is merged in the inheritance, and no longer
exists; but they must be to one and the same person, at one and the same time,
in one and the same right. 2 BL Com. 177; 3 Mass. Rep. 172; Latch, 153; Poph.
166; 1 John. Ch. R. 417; 3 John. Ch. R. 53; 6 Madd. Ch. R. 119.
2. The estate in which the merger takes place, is not enlarged by the
accession of the preceding estate; and the greater, or only subsisting estate,
continues, after the merger, precisely of the same quantity and extent of
ownership, as it was before the accession of the estate which is merged, and
the lesser estate is extinguished. Prest. on Conv. 7. As a general rule, equal
estates will not drown in each other.
3. The merger is produced, either from the meeting of an estate of
higher degree, with an estate of inferior degree; or from the meeting of the
particular estate and the immediate reversion, in the same person. 4 Kent, Com.
98. Vide 3 Prest. on Conv. which is devoted to this subject. Vide, generally,
Bac. Ab. Leases, &c. R; 15 Vin. Ab. 361; Dane's Ab. Index, h. t.; 10 Verm.
R. 293;; 8 Watts, R. 146; Co. Litt. 338 b, note 4; Hill. Ab. Index, h. t.;
Bouv. Inst; Index, h. t.; and Confusion; Consolidation; Unity of
MERGER, crim. law. When a man commits a great crime which
includes a lesser, the latter is merged in the former.
2. Murder, when committed by blows, necessarily includes an assault and
battery; a battery, an assault; a burglary, when accompanied with a felonious
taking of personal property, a larceny in all these, and similar cases, the
lesser crime is merged in the greater.
3. But when one offence is of the same character with the other, there
is no merger; as in the case of a conspiracy to commit a misdemeanor, and the
misdemeanor is afterwards committed in pursuance of the conspiracy. The two
crimes being of equal degree, there can be no legal merger. 4 Wend. R. 265.
Vide Civil Remedy.
MERGER, rights. Rights are said to be merged when the same person
who is bound to pay is also entitled to receive. This is more properly called a
confusion of rights, or extinguishment.
2. When there is a confusion of rights, and the debtor and creditor
become the same person, there can be no right to put in execution; but there is
an immediate merger. 2 Ves. jr. 264. Example: a man becomes indebted to a woman
in a sum of money, and afterwards marries her, there is immediately a confusion
of rights, and the debt is merged or extinguished.
MERGER, torts. Where a person in committing a felony also commits
a tort against a private person; in this case, the wrong is sunk in the felony,
at least, until after the felon's conviction.
2. The old maxim that a trespass is merged in a felony, has sometimes
been supposed to mean that there is no redress by civil action for an injury
which amounts to a felony. But it is now established that the defendant is
liable to the party injured either after his conviction; Latch, 144; Noy, 82;
W. Jones, 147; Sty. 346; 1 Mod. 282; 1 Hale, P. C. 546; or acquittal. 12 East,
R. 409; 1 Tayl. R. 58; 2 Hayw. 108. If the civil action be commenced before,
the plaintiff will be nonsuited. Yelv. 90, a, n. See Hamm. N. P. 63; Kely. 48;
Cas. Tempt. Hardw. 350; Lofft. 88; 2 T.R. 750; 3 Greenl. R. 458. Butler, J.,
says, this doctrine is not extended beyond actions of trespass or tort. 4 T. R.
333. See also 1 H. Bl. 583, 588, 594; 15 Mass. R. 78; Id. 336. Vide Civil
3. The Revised Statutes of New York, part 3, c. 4, t. 1, s. 2, direct
that the right of action of any person injured by any felony, shall not, in any
case, be merged in such felony, or be in any manner affected thereby. In
Kentucky, Pr. Dec. 203, and New Hampshire, 6 N. H. Rep. 454, the owner of
stolen goods, may immediately. pursue his civil remedy. See, generally, Minor,
8; 1 Stew. R. 70; 15 Mass. 336; Coxe, 115; 4 Ham. 376; 4 N. Hanp. Rep. 239; 1
Miles, R. 212; 6 Rand. 223; 1 Const. R. 231; 2 Root, 90.
MERITS. This word is used principally in matters of defence.
2. A defence upon the merits, is one that rests upon the justice of the
cause, and not upon technical grounds only; there is, therefore, a difference
between a good defence, which may be technical or not, and a defence on the
merits. 5 B. & Ald. 703 1 Ashm. R. 4; 5 John. R. 536; Id. 360; 3 John. R.
245 Id. 449; 6 John. R. 131; 4 John. R. 486; 2 Cowen, R. 281; 7 Cowen, R. 514;
6 Wend. R. 511; 6 Cowen, R. 895.
MERTON, STATUTTE OF. A statute so called, because the parliament
or rather council, which enacted it, sat at Merton, in Surrey. It was made the
20 Hen. III. A. D. 1236. See Barr. an the Stat. 41.
MESCROYANT. Used in our ancient books. An unbeliever. Vide
MESE. An ancient word used to signify house, probably from the
French maison; it is said that by this word the buildings, curtilage, orchards
and gardens will pass. Co. Litt. 56.
MESNE. The middle between two extremes, that part between the
commencement and the end, as it relates to time.
2. Hence the profits wbich a man receives between disseisin and recovery
of lands are called mesne profits. (q. v.) Process which is issued in a suit
between the original and final process, is called mesne process. (q . v.)
3. In England, the word mesne also applies to a dignity: those persons
who hold lordships or manors of some superior wbo is called lord paramount, and
grant the same to inferior persons, are called mesne lords.
MESNE PROCESS. Any process issued between original and final
process; that is, between the original writ and the execution. See Process,
MESNE PROFITS, torts, remedies. The value of the premises,
recovered in ejectment, during the time that the lessor of the plaintiff has
been illegally kept out of the possession of his estate by the defendant; such
are properly recovered by an action of trespass, quare clausum fregit, after a
recovery in ejectment. 11 Serg. & Rawle, 55; Bac. Ab. Ejectment, H; 3 Bl.
2. As a general rule, the plaintiff is entitled to recover for such time
as be can prove the defendant to have been in possession, provided he does not
go back beyond six years, for in that case, the defendant may plead the statute
of limitations. 3 Yeates' R, 13; B. N. P. 88.
3. The value of improvements made by the defendant, may be set off
against a claim for mesne profits, but profits before the demise laid, should
be first deducted from the value of the improvement's. 2 W. C. C. R. 165. Vide,
generally, Bac. Ab. Ejectment, H; Woodf. L. & T. ch. 14, s. 3; 2 Sell. Pr.
140; Fonbl. Eq. Index, h. t.; Com. L & T. Index, h. t.; 2 Phil. Ev. 208;
Adams on Ej. ch. 13; Dane's Ab. Index, h. t.; Pow. Mortg. Index, h. t.; Bouv.
Inst. Index, h. t.
MESNE, WRIT of. The name of an ancient writ, which lies when: the
lord para- mount distrains on the tenant paravail; the latter shall have a writ
of mesne against the lord who is mesne. F. N. B. 316.
MESSENGER. A person appointed to perform certain duties,
generally of a ministerial character.
2. In England, a messenger appointed under the bankrupt laws, is an
officer who is authorized to execute the lawful commands of commissioners of
MESSUAGE, property. This word is synonymous with dwelling-house;
and a grant of a messuage with the appurtenances, will not only pass a house,
but all the buildings attached or belonging to it, as also its curtilage,
garden and orchard, together with the close on which the house is built. 1
Inst. 5, b.; 2 Saund. 400; Ham. N. P. 189; 4 Cruise, 321; 2 T. R. 502; 1 Tho.
Co. Litt. 215, note 35; 4 Blackf. 331. But see the cases cited in 9 B. &
Cress. 681; S. C. 17 Engl. Com. L. R. 472. This term, it is said, includes a
church. 11 Co. 26; 2 Esp. N. P. 528; 1 Salk. 256; 8 B. & Cress. 25; S. C.
15 Engl. Com. L. Rep. 151. Et vide 3 Wils. 141; 2 Bl. Rep. 726; 4 M. & W.
567; 2 Bing. N. C. 617; 1 Saund. 6. METHOD. The mode of operating or the means
of attaining an object. 2. It has been questioned whether the method of making
a thing can be patented. But it has been considered that a method or mode may
be the subject of a patent, because, when the object of two patents or effects
to be produced is essentially the same, they may both be valid, if the modes of
attaining the desired effect are essentially different. Dav. Pat. Cas. 290; 2
B. & Ald. 350; 2 H. Bl. 492; 8 T. R. 106; 4 Burr. 2397; Gods. on Pat. 85;
Perpigna, Manuel des Inventeurs, &c., c. 1, sect. 5, 1, p. 22.
METRE or METER. This word is derived from the Greek, and
signifies a measure.
2. This is the standard of French measure.
3. The fundamental base of the metre is the quarter of the terrestrial
meridian, or the distance from the pole to equator, which has been divided into
ten millions of equal parts, one of which is of the length of the metre. The
metre is equal to 3.28 feet, or 39.371 inches. Vide Measure.
MEUBLES MEUBLANS. A French term used in Louisiana, which
signifies simply household furniture. 4 N. S. 664; 3 Harr. Cond. R. 431.
MICEL GEMOT, Eng. law. In Saxon times, the great council of the
nation bore this name, sometimes also called the witena gemot, or assembly of
wise men; in aftertimes, this assembly assumed the name of parliament. Vide 1
Bl. Comm. 147.
MICHAELMAS TERM. Eng. law. One of the four terms of the courts;
it begins on the 2d day of November, and ends on the 25th of November. It was
formerly a movable term. St. 11 G. IV. and 1 W. IV. 70.
MICHIGAN. One of the new, states of the United States of
America. This state was admitted into the Union by the Act, of Congress of
January 26th, 1837, Sharsw. cont. of Story's L. U. S. 2531, which enacts "that
the state of Michigan shall be one and is hereby declared to be one, of the
United States of Amaerica, and admitted into the Union on an equal footing with
the original states, in all respects whatever."
2. The first constitution of this state was adopted by a convention of
the people, begun and held at the capital in the city of Detroit, on Monday,
the eleventh day of May, 1835. This was superseded by the present constitution,
which was adopted 1850. It provides, article 3, l; The powers of the government
shall be divided into three distinct departments; the legislative, the
executive, and the judicial; and one department shall never exercise the powers
of another, except in such cases as are expressly provided for in this
3. - 1. Art. 4, relates to the Legislative department, and provides
1. The legislative power shall be vested in a senate and house of
4. - 6. No person holding any office under the United States [or this
state] or any county office, except notaries public, officers of the militia
and officers elected by townships, shall be eligible to, or have a seat in
either house of the legislature, and all votes given for any such person shall
5. - 7. Senators and representatives shall, in all cases except treason,
felony, or breach of the peace, be privileged from arrest, nor shall they be
subject to any civil process, during the session of the legislature, nor for
fifteen days next before the commencement and after the terraination of each
session. They shall not be questioned in any other place for any speech in
6. - 8. A majority of each house shall constitute a quorum to do
business; but a smaller number may adjourn from day to day, and may compel the
attendance of absent members, in such manner and under such penalties as each
house may provide.
7. - 9. Each house shall choose its own officers, determine the rules of
its proceeding, and judge of the qualifications, elections, and return of its
own members and may, with the concurrence of two-thirds of all the members
elected, expel a member; no member shall be expelled a second time for the same
cause, nor for any cause known to his constituents antecedent to his election.
The reason for such expulsion shall be entered upon the journal, with the names
of the members voting on the question.
8. - 10. Each house shall keep a journal of its proceedings, and publish
the same, except such parts as may require secrecy; the yeas and nays of the
members of either house, on any question, shall be entered on the journal at
the request of one-fifth of the members present. Any member of either house may
dissent from and protest against any act, proceeding or resolution which he may
deem injurious to any person or the public, and have the reason of his dissent
entered on the journal.
9. - 11. In all elections by either house, or in joint convention, the
votes shall be given viva voce. All votes on nominations to the senate shall be
taken by yeas and nays, and published with the journal of its proceedings.
10. - 12. The doors of each house shall be open, unless the public
welfare require secrecy; neither house shall, without the consent of the other,
adjourn for more than three days, nor to any other place than where the
legislature may then be in session.
11. - 1st. In considering the house of representatives, it will be
proper to take a view of the qualifications of members; the qualification of
the electors; the number of members; the time for wbich they are elected.
12. - 1. The representatives must be citizens of the United States, and
qualified electors in the respective counties which they represent. Art. 4,
5. 2. In all elections, every white male citizen, every white male
inhabitant residing in the state on the twenty-fourth day of June, one thousand
eight hundred and thirty-five; every white male inhabitant residing in the
first day of January, one thousand eight hundred and fifty, who has declared
his in- tention to become a citizen of the United States pursuant to the laws
thereof six months preceding an election, or who has resided in this state two
years and six months and declared his intention as aforesaid and every
civilized male inhabitant of Indian descent, a native of the United States, and
not a member of any tribe, shall be an elector and entitled to vote; but no
citizen or inhabitant shall be an elector or entitled to vote at any election,
unless he shall be above the age of twenty-one years, and has resided in this
state three months and in the township or ward in which he offers to vote ten
days next preceding such election. Art. 7, 1. 3. The house of representatives
shall consist of not less than sixty-five nor more than one hundred members.
Art. 4, s. 3. 4. The election of representatives, pursuant to the provisions of
this constitution, shall be held on the Tuesday succeeding the first Monday of
November, in the year one thousand eight hundred and fifty-two, and on the
Tuesday succeeding the first Monday of November of every second year
thereafter. Art. 4, s. 34. Representatives shall be chosen for two years. Art.
4, s. 3.
13. - 2d. The senate will be considered in the same order. 1. Senators
must be citizens of the United States, and be qualified electors in the
district which they represent. Art. 4, s. 5. 2. They are elected by the
electors of representatives. Art. 7, s. 1. 3. The senate shall consist of
thirty-two members. Art. 4, s. 2. 4. The senators shall be elected for two
years, at the same time and in the same manner as the representatives are
required to be chosen. Art. 4, section 2, 34.
14. - 2. The executive department is regulated by the fifth article of
the constitution as follows, namely:
1. The executive power is vested in a governor, who shall hold his
office for two years; a lieutenant governor shall be chosen for the same
l5. - 2 No person shall be eligible to the office of governor or
lieutenant governor, who has not been five years a citizen of the United
States, and a resident of this state two years next preceding the election; nor
shall any person be eligible to either office who has not attained the age of
16. - 3. The governor and lieutenant governor shall be elected at the
times and places of choosing members of the legislature. The Person having the
highest number of votes for governor and lieutenant governor shall be elected;
in case two or more persons have an equal and the highest number of votes for
governor or lieutenant governor, the legislature shall by joint vote choose one
of such persons.
17. - 4. The governor shall be commander-in-chief of the military and
naval forces, and may call out such forces to execute the laws, to suppress
insurrections and to repel invasions.
18. - 5. He shall transact all necessary; business with the officers of
government; and may require information, in writing, from the officers of the
executive department, upon any subject relating to the duties of their
19. - 6. He shall take care that the laws be faithfully executed.
20. - 7. He may convene the legislature on extraordinary occasions.
21. - 8. He shall give to the legislature, and at the close of his
official term to the next legislature, information by message of the condition
of the state, and recommend such measures to them as he shall deem
22. - 9. He may convene the legislature at some other place, when the
seat of government becomes dangerous from disease or a common enemy.
23. - 0. He shall issue writs of election to fill such vacancies as
occur in the senate or house of representatives.
24. - 1. He may grant reprieves, commutations and pardons after
convictions, for all offences except treason and cases of impeachment, upon
such conditions, and with such restrictions and limitations, as he may think
proper, subject to regulations provided by law, relative to the manner of ap-
plying for pardons. Upon conviction for treason, he may suspend the execution
of the sentence until the case shall be reported to the legislature at its next
session, when the legislature shall either pardon, or commute the sentence,
direct the execution of the sentence, or grant a further reprieve. He shall
communicate to the legislature at each session information of each case of
reprieve, commutation or pardon granted, and the reasons therefor.
25. - 12. In case of the impeachment of the governor, his removal from
office, death, inability, resignation, or absence from the state, the powers
and duties of the office shall devolve upon the lieutenant governor for the
residue of the term, or until the disability ceases. When the governor shall be
out of the state in time of war, at the head of a military force thereof, he
shall continue commander-in-chief of all the military force of the state.
26. - 13. During a vacancy in the office of governor, if the lieutenant
governor die, resign, be impeached, displaced, be incapable of performing the
duties of his office, or absent from the state, the president pro tempore of
the senate shall act as governor until the vacancy be filled, or the disability
27. - 14. The lieutenant governor shall, by virtue of his office, be
president of the senate. In committee of the whole he may debate all questions;
and when there is an equal division, he shall give the casting vote.
28. - 15. No member of congress, nor any person holding office under the
United States, or this state, shall execute the office of governor.
29. - 16. No person elected governor or lieutenant governor shall be
eligible to any office or appointment from the legislature, or either house
thereof, during the time for which he was elected. All votes for either of
them, for any such office, shall be void.
30.- 17. The lieutenant governor and president of the senate pro
tempore, when performing the duties of governor, shall receive the same
compensation as the governor.
31. - 18. All official acts of the governor, his approval of the laws
excepted, shall be authenticated by the great seal of the state, which shall be
kept by the secretary of state.
32. - 19. All commissions issued to persons holding office under the
provisions of this constitution, shall be in the name and by the authority of
the people of the state of Michigan, sealed with the great seal of the state,
signed by the governor, and countersigned by the secretary of state.
32. - 3. The judicial department is regulated by the sixth article as
33. - 1. The judicial power is vested in one supreme court, in circuit
courts, in probate courts, and in justices of the peace. Municipal courts of
civil and criminal jurisdiction may be established by the legislature in
34. - 2. For the term of six years, and thereafter, until the
legislature otherwise provide, the judges of the several circuit courts shall
be judges of the supreme court, four of whom shall constitute a quorum. A
concurrence of three shall be necessary to a final decision. After six years
the legislature may provide by law for the organization of a supreme court,
with the jurisdiction and powers prescribed in this constitution, to consist of
one chief justice and three associate justices, to be chosen by the electors of
the state. Such supreme court, when so organized, shall not be changed or
discontinued by the legislature for eight years thereafter. The judges thereof
shall be so classified that but one of them shall go out of office at the same
time. Their term of office, shall be eight years.
35. - 3. The supreme court shall have a general superintending control
over all inferior courts, and shall have power to issue writs of error, habeas
corpus, mandamus, quo warrants, procedendo, and other original and remedial
writs, and to hear and determine the same. In all other cases it shall have
appellate jurisdiction only.
36. - 4. Four terms of the supreme court shall be held annually, at such
times and places, as may be designated by law.
37. - 5. The supreme court shall, by general rules, establish, modify
and amend the practice in such court and in the circuit courts, and, simplify
the same. The legislature shall, as far as practicable, abolish distinctions
between law and equity proceedings. The office of master in chancery is
38. - 6. The state shall be divided, into eight judicial circuits; in
each of which the electors thereof shall elect one circuit judge, who shall
hold his office for the term of six years, and until his successor is elected
39. - 7. The legislature may alter the limits of circuits, or increase
the number of the same. No alteration or increase shall have the effect to
remove a judge from office. In every additional circuit established the judge
shall be elected by the electors of such circuit, and his term of office shall
continue as provided in this constitution for judges of the circuit court.
40. - 8. The circuit courts shall have original jurisdiction in all
matters civil and criminal, not excepted in this constitution, and not
probibited by law; and, appellate jurisdiction from all inferior courts and
tribunals, and a supervisory control of the same. They shall also have power to
issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari,
and other writs necessary to carry into effect their orders, judgments and
decrees, and give there a general control over inferior courts and tribunals
within their respective jurisdictions.
41. - 9. Each of the judges of the circuit courts shall receive a salary
payable quarterly. They shall be ineligible to any other than a judicial office
during the term for which they are elected, and for one year thereafter. All
votes for any person elected such judge for any office other than judicial,
given either by the legislature or the people, shall be void.42. - 10. The
supreme court may appoint a reporter of its decisions. The decisions of the
supreme court shall be in writing, and signed by the judges concurring therein.
Any judge dissenting there from, shall give the reasons of such dissent in
writing, under his signature. All such opinions shall be filed in the office of
the clerk of the supreme court. The judges of the circuit court, within their
respective jurisdictions, may fill vacancies in the office of county clerk and
of prosecuting, attorney; but no judge of the supreme court, or, circuit court,
shall exercise any other power of appointment to public office.
43. - 11. A circuit court shall be held at least twice in each year, in
every county organized for judicial purposes, and four times in each year in
counties containing ten thousand inhabitants. Judges of the circuit court may
hold courts for each other, and shall do so when required by law.
44. - 12. The clerk of each county organized for judicial purposes shall
be the clerk of the circuit court of such county, and of the supreme court when
held within the same.
45. - 13. In each of the counties organized for judicial purposes, there
shall be a court of probate. The judge of such court shall be elected by the
electors of the county in which he resides, and shall hold his office for four
years, and until his successor is elected and qualified. The jurisdiction,
powers, and duties of such court, shall be prescribed by law.
46. - 14. When a vacancy occurs in the office of judge of the supreme,
circuit or probate court, it shall be filled by appointment of the governor,
which shall continue until a successor is elected and qualified. When elected,
such successor shall hold his office the residue of the unexpired term.
47. - 15. The supreme court, the circuit and probate court of each
county, shall be courts of record, and shall each have a common seal.
48. - 16. The legislature may provide by law for the election of one or
more persons in each organized county, who may be vested with judicial powers,
not exceeding those of a judge of the circuit court at chambers.
49. - 17. There shall be not exceeding four justices of the peace in
each organized township. They shall be elected by the electors of the
townships, and shall hold their offices for four years, and until their
successors are elected and qualified. At the first election in any township,
they shall be classified as shall be prescribed by law. A justice elected to
fill a vacancy shall hold his office for the residue of the unexpired term. The
legislature may increase the number of justices in cities.
50. - 18. In civil cases justices of the peace shall have exclusive
jurisdiction to the amount of one hundred dollars, and concurrent jurisdiction
to the amount of three hundred dollars, which may be increased to five hundred
dollars, with such exceptions and restrictions as may be provided by law. They
shall also have such criminal jurisdiction and perform such duties as shall be
prescribed by the legislature.
51. - 19. Judges of the supreme court, circuit judges, and justices of
the peace, shall be conservators of the peace within their respective
52. - 20. The first election of judges of the circuit courts shall be
held on the first Monday in April, one thousand eight hundred and fifty-one,
and every sixth year thereafter. Whenever an additional circuit is created,
provision. shall be made to hold the subsequent election of such additional
judges at the regular elections herein provided.
53. - 1. The first election of judges of the probate courts shall be
held on the Tuesday succeeding the first Monday of November, one thousand eight
hundred and fifty-two, and every fourth year thereafter.
54. - 22. Whenever a judge shall remove beyond the limits of the
jurisdiction for which he was elected or a justice of the peace from the
township in which he was elected, or by a change in the boundaries of such
township shall be placed without the same, they shall be deemed to have vacated
their respective offices.
55. - 23. The legislature may establish courts of conciliation, with
such powers and duties as shall be prescribed by law.
56. - 24. Any suitor in any court of this state shall have the right to
prosecute or defend his suit, either in his own proper person, or by an
attorney or agent, of his choice.
57. - 5. In all prosecutions for libels, the truth may be given in
evidence to the jury; and if it shall appear to the jury that the matter
charged as libelous is true, and was published with good motives and for
justifiable ends, the party shall be acquitted. The jury shall have the right
to determine the law and the fact.
58. - 26. The person, houses, papers, and possessions of every person
shall be secure from unreasonable searches and seizure. No warrant to search
any place, or to seize any person or things shall issue without describing
them, nor without probable cause, supported by oath or affirmation.
59. - 27. The right of trial by jury shall remain, but shall be deemed
to be waived in all civil cases unless demanded by one of the parties, in such
manner as shall be prescribed by law.
60. - 8. In every criminal prosecution, the accused shall have the right
to a speedy and public trial by an impartial jury, which may consist of less
than twelve, men in all courts not of record; to be informed of the nature of
the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and have the
assistance of counsel for his defence.
61. - 29. No person, after acquittal upon the merits, shall be tried for
the same offence; all persons shall, before conviction, be bailable by
sufficient sureties, except for murder and treason, when the proof is evident
or the presumption great.
62. - 30. Treason against the state shall consist only in levying war
against, or in adhering to its enemies, giving them aid and comfort. No person
shall be convicted of treason unless upon the testimony of two witnesses to the
same overt act, or on confession in open court.
63. - 31. Excessive bail shall not be required; excessive fines shall
not be imposed; cruel or unusual punishment shall not be inflicted, nor, shall
witnesses be unreasonably detained.
64. - 32. No person shall be compelled, in any criminal case, to be a
witness against himself; nor be deprived of life, liberty, or property, without
due process of law.
65. - 33. No person shall be imprisoned for debt arising out of, or
founded on a contract, express or implied, except in cases of fraud or breach
of trust, or of moneys collected by public officers, or in any professional
employment. No person shall be imprisoned for a militia fine in time of
66. - 34. No person shall be rendered incompetent to be a witness, on
account of his opinions on matters of religious belief.67. - 35. The style of
all process shall be, "In the name of the people of the State of Michigan."
MIDDLEMAN contracts. A person who is employed both by the seller
and purchaser of goods, or by the purcbaser alone, to receive them into his
possession, for the purpose of doing something in or about them; as, if goods
be delivered from a ship by the seller, to a wharfinger, to be by him forwarded
to the purchaser, who has been appointed by the latter to receive them; or if
goods be sent to a packer, for and by orders of the vendee, the packer is to be
considerpd as a middleman.
2. The goods in both, these cases will be considered in transitu,
provided the purchaser has not used the wharfinger's or the packer's warehouse
as his own, an have an ulterior place of delivery in view. 3 B. & P. l27,
469; 4 Esp. R. 82; 2 B. & P. 457; 1 Campb. 282; 1 Atk. 245; 1 H. Bl. 364; 3
East, R. 93; Whit. on Trans. 195.
3. By middleman is also understood one who has been employed as an agent
by a principal, and who has employed a subagent under him by authority of the
principal, either express or implied. He is not in general Iiable for the
wrongful acts of the sub-agent, the principal being alone responsible. 3 Campb.
N. P. Cas. 4; 6 T. R. 411; 14 East, 65.
MIDWIFE, med. jur. A woman who practices midwifery; a woman who pursues
the business of an account.
2. A midwife is required to perform the business she undertakes with
proper skill, and if she be guilty of any mala praxis, (q. v.) she is liable to
an action or an indictment for the misdemeanor. Vide Vin. Ab. Physician; Com.
Dig. Physician; 8 East, R. 348; 2 Wils. R. 359; 4 C. & P. 398; S. C. 19 E.
C. L. R. 440; 4 C. & P. 407, n. a; 1 Chit. Pr. 43; 2 Russ. Cr. 288.
MILE, measure. A length of a thousand paces, or seventeen hundred
and sixty yards, or five thousand two hundred and eighty feet. It contains
eight furlongs, every furlong being forty poles, and each pole sixteen feet six
inches. 2 Stark. R. 89.
MILEAGE. A compensation allowed by law to officers, for their
trouble and expenses in travelling on public business.
2. The mileage allowed to members of congress, is eight dollars for
every twenty miles of estimated distance, by the most usual roads, from his
place of residence to the seat of congress, at tbe commencement and end of
every session. Act of Jan. 22, 1818; 3 Story, Laws U. S. 1657.
3. In computing mileage the distance by the road usually travelled is
that which must be allowed, whether in fact the officer travels a more or less
distant way to suit his own convenience. 5 Shepl. R. 431.
MILITARY. That which belongs or relates to the army.
MILITIA. The military force of the nation, consisting of citizens
called forth to execute the laws of the Union, suppress insurrection and repel
2. The Constitution of the United States provides on this subject as
follows: Art. 1, s. 8, 14. Congress shall have power to provide for calling
forth the militia to execute the laws of the Union, suppress insurrections, and
3. - 15. to provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed in the service
of the United States, reserving to the states respectively, the appointment of
the officers, and the authority of training the militia, according to the
discipline prescribed by congress.
4. Under the clauses of the constitution, the following points have been
1. If congress had chosen, they might by law, have considered a militia
man, called into the service ot the United States, as being, from the time of
such call, constructively in that service, though not actually so, although he
should not appear at the place of rendezvous. But they have not so considered
him, in the acts of congress, till after his appearance at the place of
rendezvous: previous to that, a fine was to be paid for the delinquency in not
obeying the call, which fine was deemed an equivalent for his services, and an
atonement for disobedience.
5. - 2. The militia belong to the states respectively, and are subject,
both in their civil and military capacities, to the jurisdiction and laws of
the state, except so far as these laws are controlled by acts of congress,
6. - 3. It is presumable the framers of the constitution contemplated a
full exercise of all the powers of organizing, arming, and disciplining the
militia; nevertheless, if congress had declined to exercise them, it was
competent to the state governments respectively to do it. But congress has ex-
ecuted these powers as fully as was thought right, and covered the whole ground
of their legislation by different laws, notwithstanding important provisions
may have been omitted, or those enacted might be beneficially altered or
7. - 4. After this, the states cannot enact or enforce laws on the same
subject. For although their laws may not be directly repugnant to those of
congress, yet congress, having exercised their will upon the subject, the
states cannot legislate upon it. If the law of the latter be the same, it is
inoperative: if they differ, they must, in the nature of things, oppose each
other, so far as they differ.
8. - 5. Thus if an act of congress imposes a fine, and a state law fine
and imprisonment for the same offence, though the latter is not repugnant,
inasmuch as it agrees with the act of the congress, so far as the latter goes,
and add another punishment, yet the wills of the two legislating powers in
relation to the subject are different, and cannot subsist harmoniously
9. - 6. The same legislating power may impose cumulative punishments;
but not different legislating powers.
10. - 7. Therefore, where the state governments have, by the
constitution, a concurrent power with the national government, the former
cannot legislate on any subject on which congress has acted, although the two
laws are not in terms contradictory and repugnant to each other.
11. - 8. Where congress prescribed the punishment to be inflicted on a
militia man, detached and called forth, but refusing to march, and also
provided that courts martial for the trial of such delinquent's, to be composed
of militia officers only, should be held and conducted in the manner pointed
out by the rules and articles of war, and a state had passed a law enacting the
penalties on such delinquents which the act of congress prescribed, and
directing lists of the delinquents to be furnished to the comptroller of the
United States and marshal, that further proceeding might take place according
to the act of congress, and providing for their trial by state courts martial,
such state courts martial have jurisdiction. Congress might have vested
exclusive jurisdiction in courts martial to be held according to their laws,
but not having done so expressly, their jurisdiction is not exclusive.
12. - 9. Although congress have exercised the whole power of calling out
the militia, yet they are not national militia, till employed in actual
service; and they are not employed in actual service, till they arrive at the
place of rendezvous. 5 Wheat. 1; Vide 1 Kent's Com. 262; 3 Story, Const. 1194
13. The acts of the national legislature which regulate the militia are
the following, namely: Act of May 8, 1792, 1 Story, L. U. S. 252; Act of
February 28, 1795, 1 Story, L. U. S. 390; Act of March 2, 1803, 2 Story, L. U.
S. 888; Act of April 10, 1806, Story, L. U. S. 1005; Act of April 20, 1816, 3
Story, L. U. S. 1573; Act of May 12, 1820, 3 Story, L. U. S. 1786 Act of March
2, 1821, 3 Story; L. U. S. 1811.
MILL, estates. Mills are so very different and various, that it
is not easy to give a definition of the term. They are used for the purpose of
grinding and pulverising grain and other matters, to extract the juices of
vegetables, to make various articles of manufacture. They take their names from
the uses to which they are employed, hence we have paper-mills, fulling-mills,
iron-mills, oil-mills, saw-mills, &c. In another respect their kinds are
various; they are either fixed to the freehold or not. Those which are a part
of the freehold, are either watermills, wind-mills, steam-mills, &c.; those
which are not so fixed, are hand-mills, and are merely personal property. Those
which are fixed, and make a part of the freehold, are buildings with machinery
calculated to obtain the object proposed in their erection.
2. It has been held that the grant of a mill; and its appurtenances,
even without the land, carries the whole right of water enjoyed by the grantor,
as necessary to its use, and as a necessary incident. Cro. Jac. 121, And a
devise of a mill carries the land used with it, and the right to use the water.
1 Serg. & Rawle, 169; and see 5 Serg. & Rawle, 107; 2 Caine's Ca. 87;
10 Serg. & Rawle, 63; 1 Penna. R. 402; 3 N. H. Rep. 190; 6 Greenl. R. 436;
Id. 154; 7 Mass. Rep. 6; 5 Shepl. 281.
3. A mill means not merely the building, in which the business is
carried on, but includes the site, the dam, and other things annexed to the
freehold, necessary for its beneficial enjoyment. 3 Mass R. 280. See Vide 6
Greenl. R. 436.
4. Whether manufacturing machinery will pass under the grant of a mill
must depend mainly on the circumstances of each case. 5 Eng. C. L. R. 168; S.
C. 1 Brod. & Bing. 506. In England the law appears not to be settled. 1
Bell's Com. 754, note 4, 5th ed. In this note are given the opinions of Sir
Samuel Romily and Mr. Leech, on a question whether a mortgage of a piece of
land on which a mill was erected, would operate as a mortgage of the machinery.
Sir Samuel was clearly of opinion that such a mortgage would bind the
machinery, and Mr. Leech was of a directly opposite opinion.
5. The American law on this subject, appears not to be entirely fixed. 1
Hill. Ab. 16; 1 Bailey's R. 540; 3 Kent, Com. 440; see Amos & Fer., on
Fixt., 188, et seq.; 1 Atk. 165; 1 Ves. 348; Sugd. Vend. 30; 6 John. 5; 10
Serg. & Rawle, 63; 2 Watts & Serg. 116; 6 Greenl. 157; 20 Wend. 636; 1
H. Bl. 259, note; 17 S. & R. 415; 10 Amer. Jur. 58; 1 Misso. R. 620; 3
Mason, 464; 2 Watts & S. 390. Vide 15 Vin. Ab. 398; Dane's Ab. Index, h. t.
6 Cowen, 677.
MILL, money. An imaginary money, of which ten are equal to one
cent, one hundred equal to a dime, and one thousand equal to a dollar. There is
no coin of this denomination. Vide Coin; Money.
MILLED MONEY. This term means merely coined money, and it is not
necessary that it should be marked or rolled on the edges. Running's case,
MIL-REIS. The name of a coin. The mil-reis of Portugal is taken
as money of account, at the custom-house, to be of the value of one hundred and
twelve cents. Act of March 13, 1843.
2. The mil-reis of Azores, is deemed of the value of eighty-three and
one-third cents. Act of Match 3, 1843.
3. The mil-reis of Maderia, is deemed of the value of one hundred
MIND AND MEMORY. It is usual in considering the state of a
testator at the time of making his will, to ascertain whether he was of sound
mind and memory; that is, whether he had capacity to make a will. These words
then import capacity, ability.
MINE. An excavation made for obtaining minerals from the bowels
of the earth, and the minerals themselves are known by the name of mine.
2. Mines are therefore considered as open and not open. An open mine is
one at which work has been done, and a part of the materials taken out. When
land is let on which there is an open mine, the tenant may, unless restricted
by his lease, work the mine; 1 Cru. Dig. 132; 5 Co. R. 12; 1 Chit. Pr. 184, 5;
and he may open new pit's or shafts for working the old vein, for otherwise the
working of the same mine might be impracticable. 2 P. Wms. 388; 3 Tho. Co.
Litt. 237; 10 Pick. R. 460. A mine not opened, cannot be opened by a tenant for
years unless authorized, nor even by a tenant for life, without being guilty of
waste. 5 Co. 12.
3. Unless expressly excepted, mines would be included in the conveyance
of land, without being expressly named, and so vice versa, by a grant of a
mine, the land itself, the surface above the mine, if livery be made, will
pass. Co. Litt. 6; 1 Tho. Co. Litt. 218; Shep. To. 26. Vide, generally, 15 Vin.
Ab. 401; 2 Supp. to Ves. jr. 257, and the cases there cited, and 448; Com. Dig.
Grant, G 7; Id. Waifs, H. 1; Crabb, R. P. 98-101; 10 East, 273; 1 M. & S.
84; 2 B. & A. 554; 4 Watts, 223-246.
4. In New York the following provisions have been made in relation to
the mines in that state, by the revised statutos, part 1, chapter 9, title 11.
It is enacted as follows, by
1. The following mines are, and shall be, the property of this state,
in its right of sovereignty. 1. All mines of gold and silver discovered, or
hereafter to be discovered, within this state. 2. All mines of other metals
discovered, or hereafter to be discovered, upon any lands owned by persons not
being citizens of any of the United States. 3. All mines of other metals
discovered, or hereafter to be discovered, upon lands oned by a citizen of any
of the United States, the ore of which, upon an average, shall contain less
than two equal third parts in value, of copper, tin, iron or lead, or any of
6. - 2. All mines, and all minerals and fossils discovered, or hereafter
to be discovered, upon any lands belonging to the people of this state, are,
and shall be the property of the people, subject to the provisions hereinafter
made to encourage the discovery thereof.
6. - 3. All mines of whatever description, other than mines of gold and
silver, discovered or hereafter to be discovered, upon any lauds owned by a
citizen of the United states, the ore of which, upon an average, shall contain
two equal third parts or more, in value, of copper, tin, iron and lead, or any
of those metals, shall belong to the owner of such land.
7. - 4. Every person who shall make a discovery of any mine of gold or
silver, within this state, and the executors, administrators or assigns of such
person, shall be exempted from paying to the people of this state, any part of
the ore, profit or produce of such mine, for the term of twenty-one years, to
be computed from the time of giving notice of such discovery, in the manner
8. - 5. No person discovering a mine of gold or silver within this
state, shall work the same, until he give notice thereof, by information in
writing, to the secretary of this state, describing particularly therin the
nature and situation of the mine. Such notice shall be registered in a book, to
be kept the secretary for that purpose.
9. - 6. After the expiration of the term above specified, the discoverer
of the mine, or his representatives, shall be preferred in any contract for the
working of such mine, made with the legislature or under its authority.
10. - 7. Nothing in this title contained shall affect any grants
heretofore made by the legislature, to persons having discovered mines; nor be
construed to give to any person a right to enter on, or to break up the lands
of any other person, or of the people of this state, or to work any mines in
such lands, unless the consent, in writing, of the owner thereof, or of the
commissioners of the land office, when the lands belong to the people of this
state, shall be previously obtained.
MINISTER, government. An officer who is placed near the
sovereign, and is invested with the administration of some one of the principal
branches of the government.
2. Ministers are responsible to the king or other supreme magistrate who
has appointed them. 4 Conn. 134.
MINISTER, international law. This is the general name given to
public functionaries who represent their country abroad, such as ambassadors,
(q.v.) envoys, (q.v.) and residents. (q.v.) A custom of recent origin has
introduced a new kind of ministers, without any particular determination of
character; these are simply called ministers, to indicate that they are
invested with the general character of a sovereign's mandatories, without any
particular assignment of rank or character.
2. The minister represents his government in a vague and indeterminate
manner, which cannot be equal to the first degree; and be possesses all the
rights essential to a public minister.
3. There are also ministers plenipotentiary, who, as they possess full
powers, are of much greater distinction than simple ministers. These also, are
without any particular attribution of rank and character, but by custom are now
placed immediately below the ambassador, or on a level with the envoy
extraordinary. Vattel, liv. 4, c. 6, 74; Kent, Com. 38; Merl. Repert. h.
t. sect. 1, n. 4.
4. Formerly no distinction was made in the different classes of public
ministers, but the modern usage of Europe introduced some distinctions in this
respect, which, on account of a want of precision, became the source of
controversy. To obviate these, the congress of Vienna, and that of Aix la
Chapelle, put an end to these disputes by classing ministers as follows: 1.
Ambassadors, and papal legates or nuncios. 2. Envoys, ministers, or others
accredited to sovereigns, (aupres des souverains). 3. Ministers resident,
accredited to sovereigns. 4. Charges d'Affaires, accredited to the
minister of foreign affairs. Recez du Congres de Vienne, du 19
Mars, 1815; Protocol du Congres d' Aix la Chapelle, du 21 Novembre, 1818;
Wheat, Intern. Law, pt. 3, c. 6.
5. The act of May 1, 1810, 2 Story's L. U. S. 1171, fixes a compensation
for public, ministers, as follows
1. Be it enacted, &c. That the president of the United States shall
not allow to any minister plenipotentiary a greater sum than at the rate of
nine thousand dollars per annum, as a compensation for all his personal
services and expenses; nor to any charge des affaires, a greater sum than
at the rate of four thousand five bundred dollars per annum, as a compensation
for all his personal services and expenses, nor to the secretary of any
legation, or embassy to any foreign country, or secretary of any minister
plenipotentiary, a greater sum than at the rate of two thousand dollars per
annum, as a compensation for all his personal services and expenses; nor to any
consul who shall be appointed to reside at Algiers, a greater sum than at the
rate of four thousand dollars per annum, as a compensation for all his personal
services and expenses; nor to any other consul who shall be appointed to reside
at any other of the states on the coast of Barbary, a greater sum than at the
rate of two thousand dollars per annum, as a compensation for all his personal
services and expenses; nor shall there be appointed more than one consul for
any one of the said states: Provided, it shall be lawful for the president of
the United States to allow to a minister plenipotentiary, or charge des
affaires, on going from the United States to any foreign country, an outfit,
which shall in no case exceed one year's full salary of such minister or
charge des affaires; but no consul shall be allowed an outfit in any case
whatever, any usage or custom' to the contrary notwithstanding.
6. - 2. That to entitle any charge des affaires, or secretary of
any legation or embassy to any foreign country, or secretary of any minister
pleni-potentiary, to the compensation hereinbefore provided, they shall,
respectively, be appointed by the president of the United Staies, by and with
the advice and consent of the senate; but in the recess of the senate, the
president is hereby authorized to make such appointments, which shall be
submitted to the senate at the next session thereafter, for their advice and
consent; and no compensation shall be allowed to any charge des affaires,
or any of the secretaries hereinbefore described, who shall not be appointed as
aforesaid: Provided, That nothing herein contained shall be construed to
authorize any appointment, of a secretary to a charge des affaires, or to
any consul residing on the Barbary coast; or to sanction any claim against the
United States for expenses incident to the same, any usage or custom to the
7. The Act of August 6, 1842, sect. 9, directs, that the president of
the United States shall not allow to any minister, resident a greater sum than
at the rate of six thousand dollars per annum, as a compensation for all his
personal services and expenses: Provided, that it shall be lawful for the
president to allow to such minister resident, on going from the United States
to any foreign country, an outfit, which shall in no case exceed one year's
full salary of such minister resident.
MINISTER, eccles. law. One ordained by some church to preach the
2. Ministers are authorized in the United States, generally, to marry,
and are liable to fines and penalties for marrying minors contrary to the local
regulations. As to the right of ministers or parsons, see Am. Jur. No. 30, p.
268; Anth. Shep. Touch. 564; 2 Mass. R. 500; 10 Mass. R. 97; 14 Mass. R. 333; 3
Fairf. R. 487.
MINISTER, mediator. An officer appointed by the government of one
nation, with the consent of two other nations, who have a matter in dispute,
with a view by his interference and good office to have such matter
MINISTERIAL. That which is done under the authority of a
superior; opposed to judidial; as, the sheriff is a ministerial officer bound
to obey the judicial commands of the court.
2. When an officer acts in both a judicial and ministerial capacity, he
may be compelled to perform ministerial acts in a particular way; but when he
acts in a judicial capacity, he can only be required to proceed; the manner of
doing so is left entirely to his judgment. See 2 Fairf. 377; Bac. Ab. Justices
of the Peace, E; 1 Conn. 295; 3 Conn. 107; 9 Conn. 275; 12 Conn. 464; also
Judicial; Mandamus; Sheriff.
MINISTERIAL TRUSTS. These which are also called instrumental
trusts, demand no further exercise of reason or understanding, than every
intelligent agent must necessarily employ as to convey an estate. They are a
species of special trusts, distinguished from discretionary trusts, which
necessarily require much exercise of the understanding. 2 Bouv. Inst. A.
MINOR, persons. One under the age of twenty-one years, while in a
state of infancy; one who has not attained the age of a major. The terms major
and minor, are more particularly used in the civil law. The common law terms
are adult and infant. See Infant.
MINORITY. The state or condition of a minor; infancy. In another
sense, it signifies the lesser number of votes of a deliberative assembly;
opposed to majority. (q.v.)
MINT. The place designated by law, where money is coined by
authority of the government of the United States.
2. The mint was established by the Act of April 2, 1792, 1 Story's L. U.
S. 227, and located at Philadelphia, where, by virtue of sundry acts of
congress, it still remains. Act of April 24, 1800, 1 Story, 770; Act of March
3, 1801, 1 Story, 816; Act of May 19, 1828, 4 Sharsw. cont. of Story's L. U. S.
3. Below will be found a reference to the acts of congress now in force
in relation to the mint. Act of January 18, 1837, 4 Sharsw. cont. of Story, L.
U. S. 2120; Act of May 19, 1828, 4 Id. 2120; Act of May 3, 1835; Act of
February 13, 1837; Act of March 3, 1849; Act of March 3, 1851, s. 11. Vide
Coin; Foreign Coin; Money.
MINUTE, measures. In divisions of the circle or angular measures,
a minute is equal to sixty seconds, or one sixtieth part of a degree.
2. In the computation of time, a minute is equal to sixty seconds, or
the sixtieth part of an hour. Vide Measure.
MINUTE, practice. A memorandum of what takes place in court; made
by authority of the court. From these minutes the record is afterwards made up.
2. Toullier says, they are so called because the writing in which they were
originally, was small, that the word is derived, from the Latin minuta,
(scriptura) in opposition to copies which were delivered to the parties, and
which were always written in a larger hand. 8 Toull. n. 413.
3. Minutes are not considered as any part of the record. 1 Ohio R. 268.
See 23 Pick. R. 184.
MINUTE BOOK. A book kept by the clerk or prothonotary of a court,
in which minutes of its proceedings are entered. It has been decided that
minutes are no part of the record. 1 Ohio R. 268.
MIRROR DES JUSTICES. The Mirror of Justices, a treatise written
during the reign of Edward II. Andrew Horne is its reputed author. It was first
published in 1642, and in 1768 it was translated into English by William
Hughes. Some diversity of opinion seems to exist as to its merits. Pref. to 9
& 10 Co. Rep. As to the history of this celebrated book see St. Armand's
Hist. Essays on the Legislative power of England, 68, 59.
MIS. A syllable which prefixed to some word signifies some fault
or defect; as, misadventure, misprision, mistrial, and the like.
MISADVENTURE, crim. law, torts. An accident by which an injury
occurs to another.
2. When applied to homicide, misadventure is the act of a man who, in
the performance of a lawful act, without any intention to do harm, and after
using proper precaution to prevent danger, unfortunately kills another person.
The act upon which the death ensues, must be neither malum in se, nor malum
prohibitum. The usual examples uuder this head are, 1. When the death ensues
from innocent recreations. 2. From moderate and lawful correction (q. v.) in
foro domestico. 3. From acts lawful and indifferent in themselves, done with
proper and ordinary caution. 4 Bl. Com. 182; 1 East, P C. 221.
MISBEHAVIOUR. Improper or unlawful conduct. See 2 Mart. N. S.
2. A party guilty of misbehaviour; as, for example, to threaten to do
injury to another, may be bound to his good behaviour and thus restrained. See
3. Verdicts are not unfrequently set aside on the ground of misbehaviour
of jurors; as, when the jury take out with them papers which were not given in
evidence, to the prejudice of one of the parties. Ld. Raym. 148. When they
separate before they have agreed upon their verdict. 3 Day, 237, 310., When
they cast lots for a verdict; 2 Lev. 205; or, give their verdict because they
have agreed to give it for the amount ascertained by each juror putting down a
sum, adding the whole together, and then dividing by twelve the number of
jurors, and giving their verdict for the quotient. 15 John. 87. See Bac. Ab.
4. A verdict will be set aside if the successful party has been guilty
of any misbehaviour towards the jury; as, if he say to a juror, "I hope you
will find a verdict for me;" or " the matter is clearly of my side." 1 Vent.
125; 2 Roll. Ab. 716, pl. 17. See Code, 166, 401; Bac. Ab. Verdict, I.
MISCARRIAGE, med. jurisp. By this word is technically understood the
expul- sion of the ovum or embryo from the uterus within the first six
weeks after conception; between that time and before the expiration of the
sixth month, when the child may possibly live, it is termed abortion. When the
delivery takes place soon after the sixth month, it is denominated premature
labor. But the criminal act of destroying the foetus at any time before birth,
is termed in law, procuring miscarriage. Chit. Med. Jur. 410; 2 Dunglison's
Human Physiology, 364. Vide Abortion; Foetus.
MISCARRTAGE, contracts, torts. By the English statute of frauds,
29, C. II., c. 3, s. 4, it is enacted that "no action shall be brought to
charge the defendant upon any special promise to answer for the debt, default,
or miscarriage of another person, unless the agreement," &c. "shall be in
writing," &c. The word miscarriage, in this statute comprehends that
species of wrongful act, for the consequences of which the law would make the
party civilly responsible. The wrongful riding the horse of another, without
his leave or license, and thereby causing his death, is clearly an act for
which the party is reasonsible in damages, and therefore, falls within the
meaning of the word miscarriage. 2 Barn. & Ald. 516; Burge on Sur. 21.
MISCASTING. By this term is not understood any pretended
miscasting or mis- valuing, but simply an error in auditing and numbering. 4
Bouv. Inst. n. 4128.
MISCOGNlSANT. This word, which is but little used, signifies
ignorant or not knowing. Stat. 32 H. VIII. c. 9.
MISCONDUCT. Unlawful behaviour by a person entrusted in any
degree: with the administration of justice, by which the rights of the parties
and the justice of the, case may have been affected.
2. A verdict will be set aside when any of the jury have been guilty of
such misconduct, and a court will set aside an award, if it has been obtained
by the misconduct of an arbitrator. 2 Atk. 501, 504; 2 Chit. R. 44; 1 Salk. 71;
3 P. Wms. 362; 1 Dick. 66.
MISCONTINUANCE, practice. By this term is understood a
continuance of a suit by undue process. Its effect is the same as a
discontinuance. (q. v.) 2 Hawk. 299; Kitch. 231; Jenk. Cent. 57.
MISDEMEANOR, crim. law. This term is used to express every
offence infe- rior to felony, punishable by indictment, or by particular
prescribed proceedings; in its usual acceptation, it is applied to all those
crimes and offences for which the law has not provided a particular name; this
word is generally used in contradistinction to felony; misdemeanors
comprehending all indictable offences, which do not amount to felony, as
perjury, battery, libels, conspiracies and public nuisances.
2. Misdemeanors have sometimes been called misprisions. (q. v.) Burn's
Just. tit. Misdemeanor; 4 Bl. Com. 5, n. 2; 2 Bar. & Adolph. 75: 1 Russell,
43; 1 Chitty, Pr. 14; 3 Verm. 347; 2 Hill, S. C. 674; Addis. 21; 3 Pick. 26; 1
Greenl. 226; 2 P. A. Browne, 249; 9 Pick. 1; 1 S. & R. 342; 6 Call. 245; 4
Wend. 229; 2 Stew. & Port. 379. And see 4 Wend. 229, 265; 12 Pick. 496; 3
Mass. 254; 5 Mass. 106. See Offence.
MISDIRECTION, practice. An error made by a judge in charging the
jury in a special case.
2. Such misdirection is either in relation to matters of law or matters
3. - 1. When the judge at the trial misdirects the jury, on matters of
law, material to the issue, whatever may be the nature of the case, the verdict
will be set aside, and a new trial granted; 6 Mod. 242; 2 Salk. 649; 2 Wils.
269; or if such misdirection appear in the bill of exceptions or otherwise upon
the record, a judgment founded on a verdict thus obtained, will be reversed.
When the issue consists of a mixed question of law and fact and there is a
conceded state of facts, the rest is a question for the court; 2 Wend. R. 596;
and a misdirection in this respect will avoid the verdict.
4. - 2. Misdirection as to matters of fact will in some cases be
sufficient to vitiate the proceedings. If, for example, the judge should
undertake to dictate to the jury. When the, judge delivers, his opinion to the
jury on a matter of fact, it should be delivered as mere opinion, and not as
direc- tion. 12 John. R. 513. But the judge is in general allowed to very
liberal discretion in charging a jury on matters of fact. 1 McCl. & Y.
5. As to its effects, misdirection must be calculated to do injustice;
for if justice has been done, and a new trial would produce the same result, a
new trial will not be granted on that account, 2 Salk. 644, 646; 2 T. R. 4; 1
B. & P. 338; 5 Mass. R. 1; 7 Greenl. R. 442; 2 Pick. R. 310; 4 Day's R. 42;
5 Day's R. 329; 3 John. R. 528; 2 Penna. R. 325.
MISE, English law. In a writ of right which is intended to be
tried by the grand assize, the general issue is called the mise. Lawes, Civ.
Pl. 111; 7 Cowen, 51. This word also signifies expenses, and it is so commonly
used in the entries of judgments in personal actions; as when the plaintiff
recovers, the judgment is quod recuperet damna sua for such value, and pro
mises et custagiis for costs and charges for so much, &c.
MISERABILE DEPOSITUM, civ. law. The name of an involuntary
deposit, made under pressing necessity; as, for instance, shipwreck, fire, or
other inevitable calamity. Poth. Proced. Civ. 5eme part., ch. 1, 1 Louis. Code,
MISERICORDIA, mercy. An arbitrary or discretionary
2. To be in mercy, is to be liable to such punishment as the judge may
in his discretion inflict. According to Spelman, misericordia is so called,
because the party is in mercy, and to distinguish this fine from redemptions,
or heavy fines. Spelm. GI. ad voc.; see Co. Litt. 126 b, and Madox's Excheq. c.
14. See Judgment of Misericordia.
MISFEASANCE, torts, contracts. The performance of an act which
might lawfully be done, in an improper manner, by which another person receives
an injury. It differs from malfeasance, (q. v.) or, nonfeasance (q. v.) Vide,
generally, 2 Vin. Ab. 35; 2 Kent, Com. 443; Doct. Pl. 62; Story, Bail. 9.
2. It seems to be settled that there is a distinction between
misfeasance and nonfeasance in the case of mandates. In cases of nonfeasance,
the mandatary is not generally liable, because his undertaking being
gratuitous, there is no consideration to support it; but in cases of
misfeasance, the common law gives a remedy for the injury done, and to the
extent of that injury. 5 T. R. 143; 4 John. Rep. 84; Story, Bailment, 165; 2
Ld. Raym. 909, 919, 920; 2 Johns. Cas. 92; Doct. & Stu. 210; 1 Esp. R. 74;
1 Russ. Cr. 140; Bouv. Inst. Index h. t.
MISJOINDER, pleading. Misjoinder of causes of action, or counts,
consists in joining, in different counts in one declaration, several demands,
which the law does not permit to be joined, to enforce several distinct,
substantive rights of recovery; as, where a declaration joins a count in
trespass with another in case, for distinct wrongs or a count in tort, with
another in contract. Gould. 6n PI. c. 4, 98; Archb. Civ. PI. 61, 78 176; Serg.
and Rawle, 358; Dane's Ab. Index, h. t.
2. Misjoinder of parties, consists in joining as plaintiffs or
defendants, persons, who have not a joint interest. When the misjoinder relates
to the plaintiffs, the defendants may, at common law, plead the matter in
abatement, whether the action be real; 12 H. IV., 15; personal; Johns. Ch. R.
350, 438; 12 John. R. 1; 2 Mass. R. 293; or mixed; or it will be good cause of
nonsuit at the trial. 3 Bos. & Pull. 235. Where the objection appears upon
the face of the declaration, the defendant may demur generally; 2 Saund. 145;
or move in arrest of judgment; or bring a writ of error.
3. When in actions ex contractu against several, there is a misjoinder
of the defendants, as if there be too many persons made defendants, and the
objection appears on the pleadings, either of the defendants may demur, move in
arrest of judgment, or support a writ of error; and, if the objection do not
appear on the pleadings, the plaintiff may be nonsuited upon the trial, if he
fail in proving a joint contract. 5 Johns. R. 280; 2 Johns. R. 213; 11 Johns.
R. 101; 5 Mass. R. 270.
4. In actions ex delicto, the misjoinder cannot in general be objected
to, because in actions for torts, one defendant may be found guilty and the
others acquitted. Archb. Civ. Pl. 79. As to the cases in which a misjoinder may
be aided by a nolle prosequi, see 2 Archb. Pr. 218-220.
MISNOMER. The act of using a wrong name.
2. Misnomers, may be considered with regard to contracts, to devises and
bequests, and to suits or actions.
3. - 1. In general, when the party can be ascertained, a mistake in the
name will not avoid the contract. 11 Co. 20, 21; Lord Raym. 304; Hob. 125.
Nihil facit error nominis, cum de corpori constat, is the rule of the civil
4. - 2. Misnomers of legatees will not in general avoid the legacy, when
tho person intended can be ascertained from the context. Example: Thomas
Stockdale bequeathed "to his nephew Thomas Stockdale, second son of his brother
John Stockdale," 1000ú, John had no son named Thomas, his second son was
named William, and he claimed the legacy. It was determined, in his favor,
because the mistake of the name was obviated by the correct description given
of the person, namely, the second son of John Stockdale. 19 Ves. 381; S. C.
Coop. 229; and see Ambl. 175; 3 Leon. 18; Co; Litt. 3 a; Finch's R. 403; Domat
l. 4, t. 2, s. 1, n. 22; 1 Rop. Leg. 131.
5. - 3. Misnomers in suits or actions, when the mistake is in the name
of one of the parties, must be pleaded in abatement; 1 Chit. Pl. 440; 1 Mass.
76; 5 Mass. 97; 15 Mass. 469; 16 Mass: 146; 10 S. & R. 257; 4 Cowen, R.
148; Coxe, 138; 6 Munf. 219; 2 Wash. C. C. R. 200; 2 Penna. R. 984; 5 Halst. R.
295; 1 Pen. R. 75, 137; 6 Munf. 580; 3 Caines, 170; 1 Tayl. R. 148; 8 Yerg.
101; Harp. R. 49; for the misnomer of one of the parties sued is not material
on the general issue, when the identity is proved. 16 East, R. 110.
6. The names of third persons must, be correctly laid, for the error
will not be helped by pleading the general issue; but, if a sufficient
description be given, it has been held, in a civil case, that the misnomer was
immaterial. Example: in an action for medicines alleged to have been furnished
to defendant's wife, Mary, and his wife was named Elizabeth, the misnomer was
held to be immaterial, the word wife being the material word. 2 Marsh. R. 159.
In indictments, the names of third persons must be correctly given. Rose. Cr.
Ev. R. 78. Vide, generally, 18 E. C. L. R. 149; 10 East, R. 83, n; Bac. Ab. h.
t.; Dane's Ab. h. t.; 1 Vin. Ab. 7; 15 Vin. Ab. 466; 2 Phil, Ev. 2, note b;
Bac. Ab. Abatement, D; Archb. Civ. Pl. 305; 1 Metc. & Perk. Dig. Abatement,
V; and this Dictionary, Abatement; Contracts; Parties to Contracts; Parties to
MISPLEADING. Pleading incorrectly, or omitting anything in
pleading which is essential to the support or defence of an action, is so
2. Pleading not guilty to an action of debt, is an example of the
first; and when the plaintiff sets out a title not simply in a defective
manner, but sets out a defective title, is an example of the second. See 3
MISPRISION, crim. law. 1. In its larger sense, this word is used
to signify every considerable misdemeanor, which has not a certain name given
to it in the law; and it is said that a misprision is contained in every
treason or felony whatever. 2. In its narrower sense it is the concealment of a
2. Misprision of treason, is the concealment of treason, by being merely
passive; Act of Congress of April 30, 1790, 1 Story's L. U. S. 83; 1 East, P.
C. 139; for if any assistance be given, to the traitor, it makes the party a
principal, as there is no accessories in treason.
3. Misprison of felony, is the like concealment of felony, without
giving any degree of maintenance to the felon; Act of Congress of April 30,
1790, s. 6, 1 Story's L. U. S. 84; for if any aid be given him, the party
becomes an accessory after the fact.
4. It is the duty of every good citizen, knowing of a treason or felony
having been committed; to inform a magistrate. Silently to observe the
commission of a felony, without using any endeavors to apprehend the offender,
is a misprision. 1 Russ. on Cr. 43; Hawk. P. C. c. 59, s. 6; Id. Book 1, c. s.
1; 4 Bl. Com. 119.
5. Misprisions which are merely positive, are denominated contempts or
high misdemeanors; as, for example, dissuading a witness from giving evidence.
4 Bl. Com. 126.
MISREADING, contracts. When a deed is read falsely to an
illiterate or blind man, who is a party to it, such false reading amounts to a
fraud, because the contract never had the assent of both parties. 5 Co. 19; 6
East, R. 309; Dane's Ab. c. 86, a, 3, 7; 2 John. R. 404; 12 John. R. 469; 3
Cowen, R. 537.
MISRECITAL, contracts, pleading. The incorrect recital of a
matter of fact, either in an agreement or a plea; under the latter term is here
understood the declaration and all the subsequent pleadings. Vide Recital, and
the cases there cited; and Bac. Ab. Pleas, &c. B. 5, n. 3.
MISREPRESENTATION, contracts. The statement made by a party to a
contract, that a thing relating to it is in fact in a particular way, when he
knows it is not so.
2. The misrepresentation must be both false and fraudulent, in order to
make the party making it, responsible to the other for damages. 3 Com. R. 413;
10 Mass. R. 197; 1 Rep. Const. Court, 328, 475, Yelv. 21 a, note l; Peake's
Cas. 115; 3 Campb. 154; Marsh. Ins. B. 1, c. 10, s. 1. And see Representation.
It is not every misrepresentation which will make a party liable; when a mere
misstatement of a fact has been erroneously made, without fraud, in a casual,
improvident communication, respecting a matter which the person to whom the
communication was made, and who had an interest in it, should not have taken
upon trust, but is bound to inquire himself, and had the means of ascertaining
the truth, there would be no responsibility; 5 Maule & Selw. 380; 1 Chit.
Pr. 836; 1 Sim. R. 13, 63; and when the informant was under no legal pledge or
obligation as to the precise accuracy and correctness of his statement, the
other party can maintain no action for the consequences of that statement, upon
which it was his indiscretion to place reliance. 12 East, 638; see also, 2 Cox,
R. 134; 13 Ves. 133; 3 Bos. & Pull. 370; 2 East, 103; 3 T. R, 56, 61; 3
Bulstr. 93; 6 Ves. 183; 3 Ves. & Bea. 110; 4 Dall. R. 250. Vide
Concealment; Representation; Suggestio falsi; Suppressio veri.
MISSING SHIP, mar. law. When a ship or other vessel has been at
sea for a much longer time than she ought to have been, she is presumed to have
perished there with all on board, and such a vessel is called a missing
2. There is no precise time fixed as to when the presumption is to
arise, and this must depend upon the circumstances of each case. 2 Str. R.
1199; Park. Ins. 63; Marsh. Ins. 488; 2 Johns. R. 150; 1 Caines' R. 525; Holt's
N. P. Rep. 242.
MISSISSIPPI. The name of one of the new states of the United
States of America. This state was admitted into the Union, by a resolution of
congress, passed the 10th day of December, 1817; 3 Story's L. U. S. 1716; by
which it is "Resolved, that the state of Mississippi, shall be one, and is
hereby declared to be one of the United States of America, and admitted into
the Union on an equal footing with these original states, in all respects
2. The constitution of this state was adopted at the town of Washington,
the 15th day of August, 1817. It was revised by a convention, and adopted on
the 26th day of October, 1832, when it went into operation.
3. By the second article of the constitution, a provision is made for
the distribution of powers as follows, namely;
1. The powers of the government of the state of Mississippi, shall be
divided into three distinct departments, and each of them confided to a
separate body of magistracy; to wit; those which are, legislative to one, those
which are judicial to another, and those which are executive to another.
4. - 2. No person, or collection of persons, being of one of these
departments, shall exercise any power properly belonging to either of the
others, except in the instances hereinafter expressly directed or
5. - 1st. The legislative power of this state is vested in two distinct
branches the one styled "the senate" the other, "the house of representatives;"
and both together, "the legislature of the state of Mississippi.
6. The following regulations, contained in the third article of the
constitution, apply to both branches of the legislature.
7. - 16. Each house may determine the rules of its own proceedings
punish members for disorderly behaviour, and, with the consent of two-thirds,
expel a member, but not a second time for the same cause; and shall have all
other powers necessary for a branch of the legislature of a free and
8. - 17. Each house shall keep a journal of its proceedings, and publish
the same; and the yeas and nays of the members of either house, on any
question, shall, at the desire of any three members present, be entered on the
9. - 18. When vacancies happen in either house, the governor, or the
person exercising the powers of the governor, shall issue writs of election to
fill such vacancies.
10. - 19. Senators and representatives shall, in all cases, except of
treason, felony, or breach of the peace, be privileged from arrest during the
session of the legislature and in going to and returning from the same,
allowing one day for every twenty miles such member may reside from the place
at which the legislature is convened.
11. - 20. Each house may punish, by imprisonment, during the session,
any person, not a member, for disrespectful or disorderly behaviour in its
presence, or for obstructing any of its proceedings: Provided, such
imprisonment shall not, at any one time, exceed forty-eight hours.
12. - 21. The doors of each house shall be open, except on such
occasions of great emergency, as, in the opinion of the house, may require
13. - 22. Neither house shall, without the consent of the other, adjourn
for more than three days, nor to any other place than that in which they may be
14. - 23. Bills may originate in either house, and be amended, altered
or rejected by the other, but no bill shall have the force of a law, until on
three several days, it be read in each house, and free discussion be allowed
thereon, unless four-fifths of the house in which the bill shall be pending,
may deem it expedient to dispense with this rule; and every bill having passed
both houses, shall be signed by the speaker and president of their respective
15. - 24. All bills for raising revenue shall originate in the house of
representatives, but the senate may amend or rejec
t them as other bills.16. - 25. Each member of the legislature shall
receive from the public treasury a compensation for his services, which may be
increased or diminished by law, but no increase of compensation shall take
effect during the session at which such increase shall have been made.
17. - 26. No senator or representative shall, during the term for which
be shall have been elected, nor for one year thereafter, be appointed to any
civil office of profit under this state, which shall have been created, or the
emoluments of which shall have been increased, during such term, except such
offices as may be filled, by elections by the people; and no member of either
house of the legislature shall, after the commencement of the first session of
the legislature after his election and during the remainder of the term for
which he is elected, be eligible to any office or place, the appointment to
which may be made in whole or in part by either branch of the legislature.
18. - 27. No judge of any court of law or equity, secretary of state,
attorney general, clerk of any court of record, sheriff or collector, or any,
person bolding a lucrative office under the United States or this state, shall
be eligible to the legislature: Provided, That offices in the militia, to which
is attached no annual salary, and the office of justice of the peace,
shall not be deemed lucrative. 19. - 28. No person who hath heretofore been, or
hereafter may be, a collector or holder of public moneys, shall have a seat in
either house of the legislature, until such person shall have accounted for,
and paid into the treasury, all sums for which he may be accountable.
20.- 29. The first election for senators and representatives shall be
general throughout the state, and shall be held on the first Monday and day
following in November 1833; and thereafter, there shall be biennial elections
for senators to fill the places of those whose term of service may have
21. - 30. The first and all future sessions of the legislature shall be
held in the town of Jackson, in the county of Hinds, until the year 1850.
During the first session thereafter, the legislature shall have power to
designate by law the permanent seat of government: Provided, however, That
unless such designation be then made by law, the seat of government shall
continue permanently at the town of Jackson. The first session shall commence
on the third Monday in November, in the year 1833. And in every two years
thereafter, at such time as may be prescribed by law.
22. - 1. The senate. Under this lead will be considered the
qualification of senators; their number; by whom they are elected; the time for
which they are elected.
1. No person shall be a senator unless he be a citizen of the United
States; and shall have been an inhabitant of this state for four years next
preceding his election, and the last year thereof a resident of the district
for which he shall be chosen, and have attained the age of thirty years. Art.
3, s. 14.
2. The number of senators shall never be less than one-fourth, nor more
than one-third, of the whole number of representatives. Art. 3, s. 10. 3. The
qualifications of electors is as follows: every free white male person of the
age of twenty-one years or upwards, who shall be a citizen of the United
States, and shall have resided in this state one year next preceding an
election, and the last four months within the county, city, or town in which he
offers to vote, shall be deemed a qualified elector. Art. 3, s. 1. 4. The
senators shall be chosen for four years, and on their being convened in
consequence of the first election, they shall be divided by lot from their
respective districts into two classes, as nearly equal as can be. And the seats
of the senators of the first class shall be vacated at the expiration of the
23. - 2. The house of representatives, will be considered in the same
order that has been observed in relation, to the senate. 1. No person shall, be
a representative unless he be a citizen of the United States, and shall have
been an inhabitant of this state two years next prceeding his election, and the
last year thereof a resident of the county, city or town for which be shall be
chosen; and shall have attained the age of twenty-one years. Art. 3, s. 7. 2.
The number of representatives shall not be less than thirty-six, nor more than
one hundred. Art. 3, s. 9. 3. They are elected by the same electors who elect
senators. Art. 3, s. 1. 4. The representatives are chosen every two years on
the first Monday and day following in November. They serve two years from the
day of the commencement of the general election and no longer. Art. 3, s. 5,
24. - 2d. The judicial power. By the fourth article of the constitution,
the judicial power is distributed as follows, namely:
1. The judicial power of this state shall be vested in one high court
of errors and appeals, and such other courts of law and equity as are hereafter
provided for in this constitution.
25. - 2. The high court of errors and appeals shall consist of three
judges, any two of whom shall form a quorum. The legislature shall divide the
state into three districts, and the qualified electors of each district shall
elect one of said judges for the term of six years.
26. - 3. The office of one of said judges shall be vacated in two years,
and of one in four years, and of one in six years, so that at the expiration of
every two years, one of said judges shall be elected as aforesaid.
27. - 4. The high court of errors and appeals shall have no
jurisdiction, but such as properly belongs to a court of errors and
28. - 5. All vacancies that may occur in said court, from death,
resignation or removal, shall be filled by election as aforesaid. Provided,
however, that if the unexpired term do not exceed one year, the vacancy sbalI
be filled by executive appointment.
29. - 6. No person shall be eligible to the office of judge of the high
court of errors and appeals, who shall not have attained, at the time of his
election, the age of thirty yers.
30. - 7. The high court of errors and appeals shall be held twice in
each year, at such place as the legislature shall direct, until the year
eighteen hundred and thirty-six, and afterwards at the seat of government of
31. - 8. Tbe secretary of state, on receiving all the official returns
of the first election, shall proceed, forthwith, in the presence and with the
assistance of two justices of the peace, to determine by lot among the three
candidates having the highest number of votes, which of said judges elect shall
serve for the term of two years, which shall serve for the term of four years,
and which shall serve for the term of six years, and having so determined the
same, it shall be the duty of the governor to issue commissions
32. - 9. No judge shall sit on the trial of any cause when the parties
or either of them shall be connected with him by affinity or consanguinity, or
when he may be interested in the same, except by consent of the judge and of
the parties; and whenever a quorum of said court are situated as aforesaid, the
governor of the state shall in such case specially commission two or more men
of law knowledge for the determination thereof.
33. - 10. The judges of said court shall, receive for their services a
compensation to be fixed by law, which shall not be diminished during their
continuance in office.
34. - 11. The judges of the circuit court shall be elected by the
qualified electors of each judicial district, and hold their offices for the
term of four years, and reside in their respective districts.
35. - 12. No person shall be eligible to the office of judge of the
circuit court, who shall not, at the time of his election, have attained the
age of twenty-six years.
36. - 13. The state shall be divided into convenient districts, and each
district shall contain not less than three nor more than twelve counties.
37. - 14. The circuit court shall have original jurisdiction in all
matters, civil and criminal, within this state; but in civil cases only when
the principal of the sum in controversy exceeds fifty dollars.
38.- 15. A circuit court shall be held in each county of this state, at
least twice in each year; and the judges of said courts shall interchange
circuits with each other, in such manner as may be prescribed by law, and shall
receive for their services a compensation to be fixed by law, which shall not
be diminished during their continuance in office.
39. - 16. A separate superior court of chancery, shall be establisbed,
with full jurisdiction in all matters of equity; Provided, however, the
legislature may give to the circuit courts of each county equity jurisdiction
in all cases where the value of the thing, or amount in controversy, does not
exceed five hundred dollars; also, in all cases of divorce, and for the
foreclosure of mortgages. The chancellor shall be elected by the qualified
electors of the whole state, for the term of six years, and shall be at least
thirty years old at the time of his election.
40. - 17. The style of all process, shall be "The state of Mississippi,"
and all prosecutions shall be carried on in the name and by the authority of
"The state of Mississippi," and shall conclude "against the peace and dignity
of the same."41. - 18. A court of probates shall be established in each county
of this state, with jurisdiction in all matters testamentary and of
administration in orpbans' business and the allotment of dower, in cases of
idiotcy and lunacy, and of persons non compos mentis; the judge of said court
shall be elected by the qualified electors of the respective counties, for the
term of two years.
42. - 19. The clerk of the high court, of errors and appeals shall be
appointed by said court, for the term of four years, and the clerks of the
circuit, probate, and other inferior courts, shall be elected by the qualified
electors of the respective counties, and shall hold their offices for the term
of two years.
43. - 20. The qualified electors of each county shall elect five persons
for the term of two years, who shall constitute a board of police for each
county, a majority of whom may transact business; which body shall have full
jurisdiction over roads, highways, ferries, and bridges, and all other matters
of county police, and shall order all county elections to fill vacancies that
may occur in the offices of their respective counties: the clerk of the court
of probate shall be the clerk of the board of county police.
44. - 21. No person shall be eligible as a member of said board, who
shall not have resided one year in the county: but this qualification shall not
extend to such new counties as may hereafter be established until one year
after tbeir orgainization; and all vacancies that may occur in said board shall
be supplied by election as aforesaid to fill the unexpired term.
45. - 22. The judges of all the courts of the state, and also the
members of the board of county police, shall in virtue of their offices be
conservators of tbe peace, and shall be by law vested with ample powers in this
46. - 23. A competent number of justices of the peace and constables
shall be chosen in each county by the qualified electors thereof, by districts,
who shall hold their offices for the term of two years. The jurisdiction of
justices of the peace shall be limited to causes in which the principal of the
amount in controversy shall not exceed fifty dollars. In all causes tried by a
justice of the peace, the right of appeal shall be secured under such rules and
regulations as shall be prescribed by law.
47. - 24. The legislature may from time to time establish, such other
inferior courts as may be deemed necessary, and abolish the same whenever they
shall deem it expedient.
48. - 25. There shall be an attorney general elected by the qualified
electors of the state: and a competent number of district attorneys shall be
elected by qualified voters of their respective districts, whose compensation
and term of service, shall be prescribed by law.
49. 26. The legislature shall, provide by law for determining contested
elections of judges of the high court of errors and appeals, of the circuit and
probate courts, and other officers.
50. - 27. The judges of the several courts of this state, for wilful
neglect of duty or other reasonable cause, shall be removed by the governor on
the address of two-thirds of both houses of the legislature; the address to be
by joint vote of both houses. The cause or causes for which such removal shall
be required, shall be stated at length in such address, and on the journals of
each house. The judge so intended to be removed, shall be notified and admitted
to a hearing in his own defence before any vote for such address shall pass;
the vote on such address shall be taken by yeas and nays, and entered on the
journals of each house.
51. - 28. Judges of probate, clerks, sheriffs, and other county
officers, for wilful neglect of duty, or misdemeanor in office, shall be liable
to presentment or indictment by a grand jury, and trial by a petit jury, and
upon conviction shall be removed from office.
52. - 3d. The chief executive power of this state shall be vested in a
governor. It will be proper to consider his qualifications; by whom he is
elected; the time for which he is elected; his rights, duties and powers; and
how, vacancies are supplied when the office of governor becomes vacant.
53. - 1. The governor shall be at least thirty years of age, shall have
been a citizen of the United States for twenty years, shall have resided in
this state at least five years next preceding the day of his election, and
shall not be capable of holding the office more than four in any term of six
years. Art. 5, s. 3.
54. - 2. The governor shall be elected by the qualified elector's of the
state. Art. 5, s. 2.
55. - 3. He shall hold his office for two years from the time of his
installation. Art 5, s. 1.
56. - 4. He shall, at stated times, receive for his services a
compensation which shall not be increased or diminished during the term for
which he shall be elected. Art. 5 s. 4.
57. - 5. He shall be commander-in-chief of the army and navy in this
state, and of the militia, except when they shall be called into the service of
the United States. Art. 5, s. 5.
58. - 6. He may require information in writing, from the officers in the
executive department, on any subject relating to the duties of their respective
offices. Art. 5, s. 6.
59. - 7. He may, in cases of emergency, convene the legislature at the
seat of government, or at a different place, if that shall have become, since
their last adjournment, dangerous from an enemy or from disease; and in case of
disagreement between the two houses with respect to the time of adjournment,
adjourn them to such time as he shall think proper, not beyond the day of the
next stated meeting of the legislature. Art. 5, s. 7.
60. - 8. He shall from time to time give to the legislature information
of the state of the government, and recommend to their consideration, such
measures as he may deem necessary and expedient. Art. 5, s. 8.
61. - 9. He shall take care that the laws be faithfully executed. Art.
5, s. 9.
62. - 10. In all criminal and penal cases, except in those of treason
and impeachment, he shall have power to grant reprieves and pardons, and remit
fines; and in cases of forfeiture to stay the collection until the end of the
next session of the legislature, and to remit forfeitures by and with the
advice and consent of the senate. In cases of treason he shall have power to
grant reprieves by and with the advice and consent of the senate, but may
respite the sentence until the end of the next session of the legislature. Art.
5, s. 10.
63. - 11. All commissions shall be in the name and by the authority of
the state of Mississippi; be sealed with the great seal, and signed by the
governor, and be attested by the secretary of state. The governor is also
invested with the veto power. Art. 5, s. 15 and 16.
64. Whenever the office of governor shall become vacant by death,
resignation, removal from office, or otherwise, the president of the senate
shall exercise the office of governor until another governor shall be duly
qualified; and in case of the death, resignation, removal from office, or other
disqualifications of the president of the senate so exercising the office of
governor, the speaker of the house of representatives shall exercise the
office, until a president of the senate shall have been chosen; and when the
office of governor, president of the senate, and speaker of the house shall
become vacant, in the recess of the senate, the person acting as secretary of
state for the time being, shall by proclamation convene the senate, that a
president may be chosen to exercise the office of governor. Art. 5, s. 17.
MISSOURI. The name of one of the new states of the United States
of America. This state was admitted into the Union by a resolution of congress,
approved March 2, 1821, 3 Story's L. U. S. 1823, by which it is resolved, that
Missouri shall be admitted into this Union on an equal footing with the
original states, in all respects whatever. To this resolution there is a
condition, which having been fulfilled, it is now useless here to repeat.
2. The convention which formed the constitution of this state assembled
at St. Louis, on Monday the 12th of June, 1820, and continued by adjournment,
till the 19th day of July, 1820, when the constitution was adopted,
establishing "an independent republic by the name of the `state of
3. The powers of the government are divided into three distinct
departments, each of which is confided to a separate magistracy. Art. 2.
4. - 1st. The legislative power is vested in a general assembly, which
consists of a senate and house of representatives. 1. The senate is to consist
of not less than fourteen nor more than thirty-three members. The senators are
chosen by tho electors for the term of four years; one-half of the senators are
chosen every second year. 2. The house of representatives is never to consist
of more than one hundred members. The members are chosen by the qualified
electors every second year.
5. - 2d. The executive power is vested in a governor and
lieutenant-governor. 1. The supreme executive power is vested in a chief
magistrate, styled "the governor of the state of Missouri." Art. 4, s. 1, He is
elected by the people, and holds his office for four years, and until a
successor be duly appointed and qualified. Art. 4, s. 3. He is invested with
the veto power. Art. 4, s. 10. The lieutenant-governor is elected at the same
time, in the same manner, for the same term, and is required to possess the
same qualifications as the governor. Art. 4, s. 14. He is by virtue of his
office president of the senate, and when the office of governor becomes vacant
by death, resignation, absence from the state, removal from office, refusal to
qualify, or otherwise, the lieutenant-governor possesses all the powers and
discharges all the duties of governor until such vacancy be filled, or the
governor, so absent or impeached, shall return or
be acquitted. And in such case there shall be a new election after
three months previous notice.
6. - 3d. The judicial powers are vested by the 5th article of the
constitution as follows:
1. The judicial powers, as to matters of law and equity, shall be
vested in a "supreme court," in a "chancellor," in "Circuit courts," and in
such inferior tribunals as the general assembly may, from time to time, ordain
7. - 2. The supreme court, except in cases otherwise directed by this
constitution, shall have appellate jurisdiction only, which shall be
coextensive with the state, under the restrictions and limitations in this
8. - 3. The supreme court shall have a general superintending control
over all inferior courts of law. It shall have power to issue writs of habeas
corpus, mandamus, quo warranto, certiorari, and other original remedial writs;
and to hear and determine the same.
9. - 4. The supreme court shall consist of three judges, any two of whom
shall be a quorum, and the said judges shall be conservators of the peace
throughout the state.
10. - 5. The state shall be divided into convenient districts, not to
exceed four; in each of which the supreme court shall hold two sessions
annually, at such place as the general assembly shall appoint; and when sitting
in either district, it shall exercise jurisdiction over causes originating in
that district only: provided, however, that the general assembly may, at any
time hereafter, direct by law, that the said court shall be held at one place
11. - 6. The circuit court shall have jurisdiction over all criminal
cases which shall not be otherwise provided for by law; and exclusive original
jurisdiction in all civil cases which shall not be cognizable before justices
of the peace, until otherwise directed by the general assembly. It shall hold
its terms in such place in each county as may be by law directed.
12. - 7. The state shall be divided into convenient circuits, for each
of which a judge shall be appointed, who, after his appointment, shall reside,
and be a conservator of the peace, within the circuit for which he shall be
13. - 8. The circuit courts shall exercise a superintending control over
all such inferior tribunals as the general assembly may establish; and over
justices of the peace in each county in their respective circuits.
14. - 9. The jurisdiction of the court of chancery shall be co-extensive
with the state and the times and places of holding its sessions shall be
regulated in the same manner as those of the supreme court.
15. - 10. The court of chancery shall have original and appellate
jurisdiction in all matters of equity, and a general control over executors,
administrators, guardians, and minors, subject to appeal, in all cases, to the
supreme court, under such limitations as the general assembly may by law
16. - 11. Until the general assembly shall deem it expedient to
establish inferior courts of chancery, the circuit courts shall have
jurisdiction in matters of equity, subject to appeal to the court of chancery,
in such manner, and under such restrictions, as shall be prescribed by law.
17. - 12. Inferior tribunals shall be established in each county, for
the transaction of all county business; for appointing guardians; for granting
letters testamentary, and of administration; and for settling the accounts of
executors, administrators, and guardians.
18. - 13. The governor shall nominate, and, by and with the advice and
consent of the senate, appoint the judges of the supreme court, the judges of
the circuit courts, and the chancellor, each of whom shall hold his office
during good behaviour, and shall receive for his services a compensation, which
shall not be diminished during his continuance in office, and which shall not
be less than two thousand dollars annually.
19. - 14. No person shall be appointed a judge in the supreme court, nor
of a circuit court, nor chancellor, before he shall have attained to the age of
thirty years; nor shall any person continue to exercise the duties of any of
said offices after he shall have attained to the age of sixty-five years.
20. - 15. The courts respectively shall appoint their clerks, who shall
hold their offices during good behaviour. For any misdemeanor in office, they
shall be liable to be tried aud removed by the Supreme court, in such manner as
the general assembly shall by law provide.
21. - 16. Any judge of the supreme court, or of the circuit court, or
the chancellor, may be removed from office on the address of two-thirds of each
house of the general assembly to the governor for that purpose; but each house
shall state on its respective journal the cause for which it shall wish the
removal of such judge or chancellor, and give him notice thereof; and he shall
have the right to be heard in his defence in such manner as the general
assembly shall by law direct; but no judge nor chancellor shall be removed in
this manner for any cause for which he might have been impeached.
22. - 17. In each county there shall be appointed as many justices of
the peace as the public good may be thought to require. Their powers and
duties, and their duration in office, shall be regulated by law.
23. - 18. An attorney general shall be appointed by the governor, by and
with the advice and consent of the senate. He shall remain in office four
years, and shall perform such duties as shall be required of him by law.
24.- 19. All writs and process shall run, and all prosecutions shall be
conducted in the name of the "state of Missouri;" all writs shall be tested by
the clerk of the court from which they shall be issued, and all indictments
shall conclude, "against the peace and dignity of the state."
MISTAKE, contracts. An error committed in relation to some matter
of fact affecting the rights of one of the parties to a contract.
2. Mistakes in making a contract are distinguished ordinarily into,
first, mistakes as to the motive; secondly, mistakes as to the person, with
whom the contract is made; thirdly, as to the subject matter of the contract;
and, lastly, mistakes of fact and of law. See Story, Eq. Jur. 110; Bouv. Inst.
Index, h. t.; Ignorance; Motive.
3. In general, courts of equity will correct and rectify all mistakes in
deeds and contracts founded on good consideration. 1 Ves. 317; 2 Atk. 203;
Mitf. Pl. 116; 4 Vin. Ab. 277; 13 Vin. Ab. 41; 18 E. Com. Law Reps. 14; 8 Com.
Digest, 75; Madd. Ch. Prac. Index, h. t.; 1 Story on Eq. ch. 5, p. 121;
Jeremy's Eq. Jurisd. B. 3, part 2, p. 358. See article Surprise.
4. As to mistakes in the names of legatees, see 1 Rop. Leg. 131; Domat,
l. 4, t. 2, s. 1, n. 22. As to mistakes made in practice, and as to the
propriety or impropriety of taking advantage of them, see Chitt. Pr. Index, h.
t. As to mistakes of law in relation to contracts, see 23 Am. Jur. 146 to
MISTRIAL. An erroneous trial on account of some defect in the
persons trying, as if the jury come from the wrong county or because there was
no issue formed, as if no plea be entered; or some other defect of
jurisdiction. 3 Cro. 284; Hob. 5; 2 M. & S. 270.
MISUSE OF PROPERTY. The unlawful use of property.
2. The misuse of personal property delivered lawfully to the defendant,
is a conversion which will enable the owner immediately to maintain trover. 6
Shepl. 382; 8 Leigh, 565; 3 Bouv. Inst. n. 3525.
MISUSER. An unlawful use of a right.
2. In cases of public officers and corporations, a misuser is sufficient
to cause the right to be forfeited. 2 Bl. Com. 153; 5 Pick. R. 163.
MITIGATION. To make less rigorous or penal.
2. Crimes are frequently committed under circumstances which are not
justifiable nor excusable, yet they show that the offender has been greatly
tempted; as, for example, when a starving man steals bread to satisfy his
hunger, this circumstance is taken into consideration in mitigation of his
3. In actions for damages, or for torts, matters are frequently proved
in mitigation of damages. In an action for criminal conversation with the
plaintiff's wife, for example, evidence may be given of the wife's general bad
character for want of chastity; or of particular acts of adultery committed by
her, before she became acquainted with the defendant; 12 Mod. R. 232; Bull. N.
P. 27, 296; Selw. N. P. 25; 1 Johns. Cas, 16: or that the plaintiff has carried
on a criminal conversation with other women; Bull. N. P. 27; or that the
plaintiff's wife has made the first advances to the defendant, 2 Esp. N. P. C.
562; Selw. N. P. 25. See 3 Am. Jur. 287, 313; Bouv. Inst. Index, h. t.
4. In actions for libel, although the defendant cannot under the
general issue prove the crime, which is imputed to the plaintiff, yet he is in
many cases allowed to give evidence of the plaintiff's general character in
mitigation of damages. 2 Campb. R. 251; 1 M. & S. 284.
MITIOR SENSUS, construction. The more lenient sense. It was
formerly held in actions for libel and slander, that when two or more
constructions could be put upon the words, one of which would not be actionable
the words were to be so construed, for verba accipienda sunt in mitiore sensu.
4 Co. 13, 20. It is now, however, well established, that they are not to be
taken in the more lenient, or more severe sense, but in the sense which fairly
belongs to them, and which they were intended to convey. 2 Campb. 403; 2 T. R.
MITTER, law-French. To put, to send, or to pass; as mitter'
l'estate, to pass the estate; mitter le droit, to pass a right. 2 Bl. Com. 324;
Bac. Ab. Release, C; Co. Lit. 193, 273, b. Mitter a large, to put or, set at
large. Law French Dict. h. t.
MITTIMUS, English practice. A writ enclosing a record sent to be
tried in a county palatine; it derives its name from the Latin word mittimus,
"we send." It is the jury process of these counties, and commands the proper
officer of the county palatine to command the sheriff to summon the jury for
the trial of the cause, and to return the record, &c. 1 M. R. 278; 2 M. R.
MITTIMUS, crim. law, practice. A precept in writing, under the
hand and seal of a justice of the peace, or other competent officer, directed
to the gaoler or keeper of a prison, commanding him to receive and safely keep,
a person charged with an offence therein named until he shall be delivered by
due course of law. Co. Litt. 590.
MIXED. To join; to mingle. A compound made of several simples is
said to be something mixed.
MIXED ACTIONS, practice. An action partaking of a real and
personal action by which real property is demanded, and damages for a wrong
sustained: an ejectment is of this nature. 4 Bouv. Inst. n. 3650.
MIXED OR COMPOUND LARCENY, crim. law. A larceny which has all the
properties of simple larceny, and is accompanied with one or both the
aggravations of violence to the person or taking from the house.
MIXED GOVERNMENT. A government composed of some of the powers of
a monarchical, aristocratical, and democratical government. See Government.
MIXED PROPERTY. That kind of property which is not altogether
real nor personal, but a compound of both. Heir-looms, tomb-stones, monuments
in a church, and title deeds to an estate, are of this nature. 1 Ch. Pr. 95; 2
Bl. Com. 428; 3 Barn. Adolph. 174; 4 Bingh. R. 106; S. C. 13 Engl. Com. Law
MIXT CONTRACT, civil law. One in which one of the parties confers
a benefit on the other, and requires of the latter something of less value than
what he has given; as a legacy charged with something of less value than the
legacy itself. Poth. Oblig. n. 12. See Contract.
MIXTION. The putting of different goods or chattels together in
such a manner that they can no longer be separated; as putting the wines of two
different persons into the same barrel, the grain of several persons into the
same bag, and the like. 2. The intermixture may be occasioned by the wilful act
of the party, or owner of one of the articles; by the wilful act of a stranger;
by the neglilence of the owner or a stranger; of by accident. See, as to the
rights of the parties under each of these circumstances, the article Confusion
of goods. Vide Aso & Man. Inst. B. 2, t.
MOBBING AND RIOTING, Scotch law. The general term mobbing and
rioting includes all those convocations of the lieges for violent and unlawful
purposes, which are attended with injury to the persons or property of the
lieges, or terror and alarm to the neighborhood in which it takes place. The
two phrases are usually placed together, but, nevertheless, they have distinct
meanings, and are sometimes used separately in legal language; the word mobbing
being peculiarly applicable to the unlawful assemblage and violence of a number
of persons, and that of rioting to the outrageous behaviour of a single
individual. Alison, Prin. C. Law of Scotl. c. 23, p. 509.
MODEL. A machine made on a small scale to show the manner in
which it is to be worked or employed.
2. The Act of Congress of July 4, 1836, section 6, requires an inventor
who is desirous to take out a patent for his invention, to furnish a model of
his invention, in all cases which admit of represent ation by model, of a
convenient size to exhibit advantageously its several parts.
MODERATE CASTIGAVIT, pleading. The name of a plea in trespass by
which the defendant justifies an assault and battery, because he moderately
corrected the plaintiff, whom he had a right to correct. 2 Chit. Pl. 676; 2
Bos. & Pull. 224. Vide Correction, and 15 Mass. R. 347; 2 Phil. Ev. 147;
Bac. Ab. Assault, &c. C.
2. This plea ought to disclose, in general terms, the cause which
rendered the correction expedient. 3 Salk. 47.
MODERATOR. A person appointed to preside at a popular meeting;
sometimes he is called a chairman.
MODIFICATION. A change; as the modification of a contract. This may
take place at the time of making the contract by a condition, which shall
have that effect; for example, if I sell you one thousand bushels of corn, upon
condition that any crop shall produce that much, aud it produces only eight
hundred bushels, the contract is modified, it is for eight hundred bushels, and
12. It may be modified by the consent of both parties, after it has been
made. See 1 Bouv. Inst. n. 733.
MODO ET FORMA, pleading. In manner and form. These words are used
in tendering an issue in a civil case.
2. Their legal effect is to put in issue all material circumstances and
no other, they may therefore be always used with safety.
3. These words are sometimes of the substance of the issue and
sometimes merely words of form. When they are of the substance of the issue,
they put in issue the circumstances alleged as concomitants of the principal
matter denied by the pleader, such as time, place, manner, &c. When not of
the substance of the issue they do not put in issue such circumstances. Bac.
Ab. Plea, G 1; Lawes' Pl. 120; Hardr. 39. To determine when they are of the
substance of the issue and when not so, the established criterion is, that when
the circumstances of manner, time, place, &c. alleged in connexion with the
principal fact traversed, are originally and, in themselves material, and
therefore necessary to be proved as stated, the words modo et forma are of the
substance of the issue, and do, consequently, put those concomitants in issue;
but that when such concomitants or circumstances are not in themselves
material, and therefore not necessary to be proved as stated, the words modo et
forma, are not of the substance of the issue, and consequently do not put them
in issue. Lawes on Pl. 120; and see Gould, Pl. c. 6, 22; Steph. Pl. 213; Dane's
Ab. Index, h. t.; Kitch. 232. See Bac. Ab. Verdict, P; Vin. Ab. Modo et
MODUS, civil law. Manlier; means; way.
MODUS, eccl. law. Where there is by custom a particular manner of
tithing allowed, different from the general law of taking tithes in kind, as a
pecuniary compensation, or the performance of labor, or when any means are
adopted by which the general law of tithing is altered, and a new method of
taking them is introduced, it is called a modus decimandi, or special manner of
taking tithes. 2 Bl. Com. 29.
MOHATRA, French law. The name of a fraudulent contract, made to
cover a usurious loan of money.
2. It takes place when an individual buys merchandise from another oil a
credit at a high price, to sell it immediately to the first seller, or to a
third person, who acts as his agent, at a much less price for cash. 16 Toull.
n. 44; 1 Bouv. Inst. n. 1118.
MOIETY. The half of anything; as, if a testator bequeath one
moiety of his estate to A, and the other to B, each shall take an equal part.
Joint tenants are said to hold by moieties. Lit. 125; 3 M. G. & S. 274,
MOLESTATION, Scotch law, The name of an action competent to the
proprietor of a landed estate, against those who disturb his possession, It is
chiefly used in questions of commonty, or, of controverted marches. Ersk. Prin.
B. 4, t. 1, n. 48.
MOLITER MANUS IMPOSUIT, pleading. In an action of trespass to the
person, the defendant frequently justifies by pleading that he used no more
force than was necessary to remove the plaintiff who, was unlawfully in the
house of the defendant, and for this purpose he gently laid his hands upon him,
molitur manus imposuit.
2. This plea may be used whenever the defendant laid hold of the
plaintiff to prevent his committing a breach of the peace.
3. When supported by evidence, it is a complete defence. Ham. N. P. 149;
2 Chit. Pl. 574, 576; 12 Vin. Ab. 182; Bac. Abr. Assault and Battery, C 8.
MOLITURA. Toll paid for grinding at a mill; multure. Not
MONARCHY, government. That form of government in which the
sovereign power is entrusted to the hands of a single magistrate. Toull. tit.
prel. n. 30. The country governed by a monarch is also called a
MONEY. Gold, silver, and some other less precious metals, in the
progress of civilization and commerce, have become the common standards of
value; in order to avoid the delay and inconvenience of regulating their weight
and quality whenever passed, the governments of the civilized world have caused
them to be manufactured in certain portions, and marked with a Stamp which
attests their value; this is called money. 1 Inst. 207; 1 Hale's Hist. 188; 1
Pardess. n. 22; Dom. Lois civ. liv. prel. t. 3, s. 2, n. 6.
2. For many purposes, bank notes; (q. v.) 1 Y. & J, 380; 3 Mass.
405; 14 Mass. 122; 2 N. H. Rep. 333; 17 Mass. 560; 7 Cowen, 662; 4 Pick. 74;
Bravt. 24; a check; 4 Bing. 179; S. C. 13 E. C. L. R. 295; and negotiable
notes; 3 Mass. 405; will be so considered. To support a count for money had and
received, the receipt by the defendant of bank notes, promissory notes: 3 Mass.
405; 3 Shepl. 285; 9 Pick. 93; John. 132; credit in account, in the books of a
third person; 3 Campb. 199; or any chattel, is sufficient; 4 Pick. 71; 17 Mass.
560; and will be treated as money. See 7 Wend. 311; 8 Wend. 641; 7 S. & R.
246; 8 T. R. 687; 3 B. & P. 559; 1 Y. & J. 380.
3. The constitution of the United States has vested in congress the
power "to coin money, and regulate the value thereof." Art. 1, s. 8.
4. By virtue of this constitutional authority, the following provisions
have been enacted by congress.
1. Act of April 2, 1792, 1 Story's L. U. S. 229.
1. 9. That there shall be from time to time, struck and coined at the
said mint, coins of gold, silver, and copper, of the following denominations,
values, and descriptions, viz: Eagles; each to be of the value of ten dollars,
or units, and to contain two hundred and forty-seven grains and four-eighths of
a grain of pure, or two hundred and seventy grains of standard, gold. Half
eagles; each to be of the value of five dollars, and to contain one hundred and
twenty-three grains and six-eighths of a pure, or one hundred and thirty-five
grains of standard gold. Quarter eagles; each to be of the value of two dollars
and a half dollar, and to contain sixty-one grains and seven-eighths of a grain
of pure, or sixty-seven grains and four-eighths of a grain of standard gold.
Dollars, or units; each to be of the value of a Spanish milled dollar, as the
same is now current, and to contain three hundred and seventy-one grains and
four-sixteenth parts of a grain of pure, or four hundred and sixteen grains of
standard silver. Half dollars; each to be of half the value of the dollar or
unit, and to contain one hundred and eighty-five grains and ten-sixteenth parts
of a grain of pure, or two hundred and eight grains of standard, silver.
Quarter dollars; each to be of one-fourth the value of the dollar, or unit, and
to contain ninety-two grains and thirteen-sixteenth parts of a grain of pure,
or one hundred and four grains of standard, silver. Dimes; each to be of the
value of one-tenth of a dollar, or unit, and to contain thirty-seven grains and
two sixteenth parts of a grain of pure, or forty-one grains and three-fifth
parts of a grain of standard, silver. Half dimes; each to be of the value of
one-twentieth of dollar, and to contain eighteen grains and nine-sixteenth
parts of a grain of pure, or twenty grains and four-fifth parts of a grain of
standard, silver. Cents; each to be of the value of the one-hundredth part of a
dollar, and to contain eleven pennyweights of copper. Half cents; each to be of
the value of half a cent, and to contain five pennyweights and, a half a
pennyweight of copper.
5. - 10. That upon the said coins, respectively, there shall be the
following devises and legends, namely: Upon one side of each of the said coins
there shall be an impression emblematic of liberty, with an inscription of the
word liberty, and the year of the coinage; and, upon the reverse of each of the
gold and silver coins, there shall be the figure or representation of an eagle,
with this inscription, "United States of America:" and, upon the reverse of
each of the copper coins there shall be an inscription which shall express the
denomination of the piece, namely, cent or half cent, as the case may
6. - 11. That the proportional value of gold to silver in all coins
which shall, by law, be current as money within the United States, shall be as
fifteen to one, according to quantity in weight, of pure gold or pure silver;
that is to say, every fifteen pounds weight of pure silver shall be of equal
value in all payments, with one pound weight of pure gold; and so in
proportion, as to any greater or less quantities of the respective metals.
7. - 12. That the standard for all gold coins of the United States,
shall be eleven parts fine to one part alloy: and accordingly, that eleven
parts in twelve, of the entire weight of each of the said coins, shall consist
of pure gold, and the remaining one-twelfth part of alloy; and the said alloy
shall be composed of silver and copper in such proportions, not exceeding
one-half silver, as shall be found convenient; to be regulated by the director
of the mint for the time being, With the approbation of the president of the
United States, until further provision shall be made by law. And to the end
that the necessary information may be had in order to the making of such
further provision, it shall be the duty of the director of the mint, at the
expiration of a year after commencing the operations of the said mint, to
report to congress the practice thereof during the said year, touching the
composition of the alloy of the said gold coins, the reasons for such practice,
and the experiments and observations which shall have been made concerning the
effects of different proportions of silver and copper in the said alloy.
8.- 13. That the standard for all silver coins of the United States,
shall be one thousand four hundred and eighty-five parts fine to one hundred
and seventy-nine parts alloy; and, accordingly, that one thousand four hundred
and eighty-five parts in one thousand six hundred and sixty-four parts, of the
entire weight of each of the said coins, shall consist of pure silver, and the
remaining one hundred and seventy nine parts of alloy, which alloy shall be
wholly of copper.
9. - 2. Act of June 28, 1834, 4 Sharsw. cont. of Story's Laws U. S.
1. That the gold coins of the United States shall contain the following
quantities of metal, that is to say: each eagle shall contain two hundred and
thirty-two grains of pure gold, and two hundred and fifty-eight grains of
standard gold; each half-eagle, one hundred and sixteen grains of pure gold,
and one hundred and twenty-nine grains of standard gold; each quarter eagle
shall contain fifty-eight grains of pure gold, and sixty-four and a half grains
of standard gold; every such eagle shall be of the value of ten dollars; every
such half eagle shall be of the value of five dollars; and every such quarter
eagle shall be of the value of two dollars and fifty cents; and the said gold
coins shall be receivable in all payments, when of full weight, according to
their respective values; and when of less than full weight, at less values,
proportioned to their respective actual weights.
10. - 2. That all standard gold or silver deposited for coinage after
the thirty-first of July next, shall be paid for in coin under the direction of
the secretary of the treasury, within five days from the making of such
deposit, deducting from the amount of said deposit of gold and silver, one-half
of one per centum: Provided, That no deduction shall be made unless said
advance be required by such depositor within forty days.
11. - 3. That all gold coins of the United States, minted anterior to
the thirty-first day of July next, shall be receivable in all payments at the
rate of ninety-four and eight-tenths of a cent per pennyweight.
12. - 3. Act of January 18, 1837, 4 Sharsw. cont. of Story's Laws U. S.
2524. 9. That of the silver coins, the dollar shall be of the weight of four
hundred and twelve and one-half grains; the half dollar of the weight of two
hundred and six and one-fourth grains; the quarter dollar of the weight of one
hundred and three and one-eighth grains; the dime, or tenth part of a dollar,
of the weight of forty-one and a quarter grains; and the half dime, or
twentieth part of a dollar, of the weight of twenty grains, and five-eighths of
a grain. And that dollars, half dollars, and quarter dollars, dimes and half
dimes, shall be legal tenders of payment, according to their nominal value, for
any sums whatever.
13. - 10. That of the gold coins, the weight of the eagle shall be two
hundred and fifty-eight grains; that of the half eagle, one hundred and
twenty-nine grains; and that of the quarter eagle, sixty-four and one-half
grain;. And that for all sums whatever, the eagle shall be a legal tender of
payment for ten dollars; the half eagle for five dollars and the quarter eagle
for two and a half dollars.
14.- 11. That the silver coins heretofore issued at the mint of the
United States, and the gold coins issued since the thirty-first day of July,
one thousand eight hundred and thirty-four, shall continue to be legal tenders
of payment for their nominal values, on the same terms as if they were of the
coinage provided for by this act.
15. - 12. That of the copper coins, the weight of the cent shall be one
hundred and sixty-eight grains, and the weight of the half cent eighty four
grains. And the cent shall be considered of the value of one hundredth part of
a dollar, and the half cent of the value of one two-hundredth part of a
16. - 13. That upon the coins struck at the mint, there shall be the
following devices and legends; upon one side of each of said coins, there shall
be an impression emblematic of liberty, with an inscription of the word
LIBERTY, and the year of the coinage; and upon the reverse of each of the gold
and silver coins, there shall be the figure or representation of an eagle, with
the inscription United States of America, and a designation of the value of the
coin; but on the reverse of the dime and half dime, cent and half cent, the
figure of the eagle shall be omitted.
17. - 38. That all acts or parts of acts heretofore passed, relating to
the mint and coins of the United States, which are inconsistent with the
provisions of this act, be, and the same are hereby repealed.
18. - 4. Act of March 3, 1825, 3 Story's L. U. S. 2005.
20. That, if any person or persons shall falsely make, forge, or
counterfeit, or cause or procure to be falsely made, forged, or counterfeited,
or willingly aid or assist in falsely making, forging, or counterfeiting any
coin, in the resemblance or similitude of the gold or silver coin, which has
been, or hereafter may be, coined at the mint of the United States; or in the
resemblance or similitude of any foreign gold or silver coin which by law now
is, or hereafter may be made current in the United States; or shall pass,
utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring
into the United States, from any foreign place, with intent to pass, utter,
publish, or sell, as true, any such false, forged, or counterfeited coin,
knowing the same to be false, forged, or counterfeited, with intent to defraud
any body politic, or corporate, or any other person or persons, whatsoever;
every person, so offending, shall be deemed guilty of felony, and shall, on
conviction thereof, be punished by fine, not exceeding five thousand dollars,
and by imprisonment, and confinement to hard labor, not exceeding ten years,
according to the, aggravation of the offence.
19. - 21. That, if any person or persons shall falsely make, forge, or
counterfeit, or cause or procure to be falsely made, forged or counterfeited,
or willingly aid or assist in falsely making, forging or counterfeiting any
coin, in the resemblance or similitude of any copper coin, which has been, or
hereafter may be, coined at the mint of the United States; or shall pass,
utter, publish, or sell, or attempt to pass, utter, publish or sell, or bring
into the United States, from any foreign place, with intent to pass, utter,
publish, or sell as true, any such false, forged, or counterfeited coin, with
intent to defraud any body politic, or corporate, or any other person or
persons whatsoever; every person so offending, shall be deemed guilty of
felony, and shall, on conviction thereof, be punished by fine, not exeeeding
one thousand dollars, and by imprisonment, and confinement, to hard labor, not
exceeding three years. See generally, 1 J. J. Marsh. 202; 1 Bibb, 330; 2 Wash.
282; 3 Call, 557; 5 S. & R. 48; 1 Dall. 124; 2 Dana, 298; 3 Conn. 534; 4
Harr. & McHen. 199.
20. - 5. Act of March 3, 1849, Minot's Statutes at Large of U. S.
21. - 1. That there shall be, from time to time, struck and coined at
the mint of the United States, and the branches thereof, conformably in all
respects to law, (except that on the reverse of the gold dollar the figure of
the eagle shall be omitted), and conformably in all respects to the standard
for gold coins now established by law, coins of gold of the following
denominations and values, viz.: double eagles, each to be of the value of
twenty dollars, or units, and gold dollars, each to be of the value of one
dollar, or unit.
22. - 2. That, for all sums whatever, the double eagle shall be a legal
tender for twenty dollars, and the gold dollar shall be a legal tender for one
23. - 3. That all laws now in force in relation to the coins of the
United States, and the striking and coining the same, shall, so far as
applicable, have full force and effect in relation to the coins herein
authorized, whether, the said laws are penal or otherwise; and whether they are
for preventing counterfeiting or debasement, for protecting the currency, for
regulating and guarding the process of striking and coining, and the
preparations therefor, or for the security of the coin, or for any other
24. - 4. That, in adjusting the weights of gold coins henceforward, the
following deviations from the standard weight shall not be exceeded in any of
the single pieces; namely, in the double eagle, the eagle, and the half eagle,
one half of a grain, and in the quarter eagle, and gold dollar, one quarter of
a grain; and that, in weighing a large number of pieces together, when
delivered from the chief coiner to the treasurer, and from the treasurer to the
depositors, the deviation from the standard weight shall not exceed three
pennyweights in one thousand double eagles; two pennyweights in one thousand,
eagles; one and one half pennyweights in one thousand half eagle;; one
pennyweight in one thousand quarter eagles; and one half of a pennyweight in
one thousand gold dollars.
25. - 6. Act of March 3, 1851. Minot's Statutes at Large, U. S. 591.
26. - 11. That from and after the passage of this act, it shall be
lawful to coin at the mint of the United States and its branches, a piece of
the denomination and legal value of three cents, or three hundredths of a
dollar, to be composed of three-fourths silver and one-fourth copper and to
weigh twelve grains and three eighths of a grain; that the said coin shall bear
such devices as shall be conspicuously different from those of the other silver
coins, and of the gold dollar, but having the inscription United States of
America, and its denomination and date; and that it shall be a legal tender in
payment of debts for all sums of thirty cents and under. And that no ingots
shall be used for the coinage of the three cent pieces herein authorized, of
which the quality differs more than five thousandths from the legal standard;
and that in adjusting the weight of the said coin, the following deviations
from the standard weight shall not be exceeded, namely, one half of a grain in
the single piece, and one pennyweight in a thousand pieces.
MONEY BILLS, legislation. Pills or projects of laws providing for
raising revenue, and for making grants or appropriations of the public
2. The first clause of the seventh section of the constitution of the
United States declares, "all bills for raising revenue shall originate in the
house of representatives; but the senate may propose or concur with amendments,
as on other bills." Vide Story on the Const. 871 to 877.
3. What bills are properly "bills for raising revenue," in the sense of
the constitution, has been matter of some discussion. Tucker's Black. App. 261
and note; Story, 877. In practice, the power has been confined to levy taxes in
the strict sense of the words, and has not been understood to extend to bills
for other purposes, which may incidentally create revenue. Story, Ibid.; 2
Elliott's Debates, 283, 284.
MONEY COUNTS, pleadings. The common counts in an action of
assumpsit are so called, because they are founded on express or implied
promises to pay money in consideration of a precedent debt; they are of four
descriptions: 1. The indebitatus assumpsit. (q. v.) 2. The quantum meruit. (q.
v.) 3. The quantum valebant. (q. v.) and, 4. The account stated. (q. v.) 2.
Although the plaintiff cannot resort to an implied promise when there is a
general contract, yet he may, in many cases, recover on the common counts,
notwithstanding there was a special agreement, provided it has been executed. 1
Camp. 471; 12 East, 1; 7 Cranch, Rep. 299; 10 Mass. Rep. 287; 7 Johns. Rep.
132; 10 John. Rep. 136; 5 Mass. Rep. 391. It is therefore advisable to insert
the money counts in an action of assumpsit, when suing on a special contract. 1
Chit. Pl. 333, 4.
MONEY HAD AND RECEIVED. An action of assumpsit will lie to
recover money to which the plaintiff is entitled, and which in justice and
equity, when no rule of policy or strict law prevents it, the defendant ought
to refund to the plaintiff, and which he cannot with a good conscience retain,
on a count for money had and received. 6 S. & R. 369; 10 S. & R. 219: 1
Dall. 148; 2 Dall. 154; 3 J. J. Marsh. 175; 1 Harr. 447; 1 Harr. & Gill.
258; 7 Mass. 288; 6 Wend. 290; 13 Wend. 488; Addis. on Contr. 230.
2. When the money has been received by the defendant in consequence of
some tortious act to the plaintiff's property, as when he cut down the
plaintiff's timber and sold it, the plaintiff may waive the tort and sue in
assumpsit for money had and received. 1 Dall. 122; 1 Blackf. 181; 5 Pick. 285;
1 J. J. Marsh. 543: 4 Pick. 452; 12 Pick. 120; 4 Binn. 374; 3 Watts, 277; 4
3. In general the action for money had and received lies only where
money has been received by the defendant. 14 S. & R. 179; 1 Pick. 204; 7 S.
& R. 246; 1 J. J. Marsh. 544; 3 J. J. Marsh. 6; 7 J. J. Marsh. 100; 3 Bibb,
378; 11 John. 464. But bank notes or any other property received as money, will
be considered for this purpose as money. 17 Mass. 560; 3 Mass. 405; 14 Mass.
122; Brayt. 24; 7 Cowen, 622; 4 Pick. 74. See 9 S. & R. 11.
4. No privity of contract between the parties is required in order to
support this action, except that which results from the fact of one man's
having the money of another, which he cannot conscientiously retain. 17 Mass.
563, 579. See 2 Dall. 54; Mart. & Yerg. 221; 5 Conn. 71.
MONEY LENT. In actions of assumpsit a count is frequently
introduced in the declaration charging that the defendant promised to pay the
plaintiff for money lent. To recover, the plaintiff must prove that the
defendant received his money, but it is not indispensable that it should be
originally lent. If, for example, money has been advanced upon a special
contract, which has been abandoned and rescinded, and which cannot be enforced,
the law raises an implied promise from the person who holds the money to pay it
back as money lent. 5 M. & P. 26; 7 Bing. 266; 9 M. & W. 729; 3 M.
& W. 434. See 1 Chip. 214; 3 J. J. Marsh. 37.
MONEY PAID. When one advances money for tbe benefit of another
with his consent, or at his express request, although he be not benefited by
the transaction, the creditor may recover the money in an action of assumpsit
declaring for money paid for the defendant. 5 S. & R. 9. But one cannot by
a voluntary payment of another's debt make himself creditor of that other. 1
Const. R. 472; 1 Gill. & John. 497; 5 Cowen, 603; 10 John. 361; 14 John.
87; 2 Root, 84; 2 Stow. 500; 4 N. H. Rep. 138; 3 John. 434; 8 John. 436; 1
2. Assumpsit for money paid will not lie where property, not money, has
been paid or received. 7 S. & R. 246; 8 Bibb, 378; 14 S. & R. 179; 10
S. & R. 75; 7 J. J. Marsh. 18. But see 7 Cowen, 662.
3. But where money has been paid to the defendant either for a just,
legal or equitable claim, although it could not have been enforced at law, it
cannot be recovered as money paid. See Money had and received.
4. The form of declaring is for "money paid by the plaintiff, for the
use of the defendant and at his request." 1 M. & W. 511.
MONITION, practice. In those courts which use the civil law
process, (as the court of admiralty, whose proceedings are, under the
provisions of the acts of congress, to be according to the course of the civil
law,) it is a process in the nature of a summons; it is either, general,
special, or mixed.
2. - 1. The general monition is a citation or summons to all persons
interested, or, as is commonly said, to the whole world, to appear and show
cause why the libel filed in the case should not be sustained, and the prayer
of relief granted. This is adopted in prize cases, admiralty suits for
forfeitures, and other suits in rem, when no particular individuals are
summoned to answer. In such cases the taking possession of the property
libeled, and this general citation or nomination, served according to law, are
considered constructive notice to the world of the pendency of the suit; and
the judgment rendered thereupon is conclusive upon the title of the property
which may be affected. In form, the monition is a warrant of the court, in an
admiralty cause, directed to the marshal or his deputy, commanding him in the
name of the president of the United States, to give public notice, by
advertisements in such newspapers as the court may select, and by notification
to be posted in public places, that a libel has been filed in a certain
admiralty cause pending, and of the time and place appointed for the trial. A
brief statement of the allegations in the libel is usually contained in the
monition. The monition is served in the manner directed in the warrant.
3. - 2. A special monition is a similar warrant, directed to the marshal
or his deputy, requiring him to give special notice to certain persons, named
in the warrant, of the pendency of the suit, the grounds of it, and the time
and place of trial. It is served by delivery of a copy of the warrant, attested
by the officer, to each one of the adverse parties, or by leaving the same at
his usual place of residence; but the service should be personal if possible.
Clerke's Prax. tit. 21; Dunlap's Adm. Pr. 135.
4. - 3. A mixed monition is one which contains directions for a general
monition to all persons interested, aud a special summons to particular persons
named in the warrant. This is served by newspaper advertisements, by
notifications posted in public places, and by delivery of a copy attested by
the officer to each person specially named, or by leaving it at his usual place
of residence. See Dunlap's Adm. Pr. Index, h. t.; Bett's Adm. Pr. Index, h.
MONITORY LETTER, eccl. law. The process of an official, a bishop
or other prelate having jurisdiction, issued to compel, by ecclesiastical
censures, those who know of a crime or other matter which requires to be
explained, to come and reveal it. Merl. Repert. h. t.
MONOCRACY. A government by one person only.
MONOCRAT. A monarch who governs alone; an absolute
governor. MONOGAMY. A marriage contracted between one man and one
woman, in exclusion of all the rest of mankind; it is used in opposition to
bigamy and polygamy. (q. v.) Wolff, Dr. de la Nat. 857. The state of having
only one husband or one wife at one time.
MONOGRAM. A character or cipher composed of one or more letters
interwoven, being an abbreviation of a name.
2. A signature made by a monogram would perhaps be binding, provided it
could be proved to have been made and intended as a signature. 1 Denio, R. 471.
And there seems to be no reason why such a signature should not be as binding
as one which is altogether illegible. See Initial; Mark; Signature.
MONOMANIA. med. jur. Insanity only upon a particular subject;
and with a single delusion of the mind.
2. The most simple form of this disorder is that in which the patient
has imbibed some single notion, contrary to common sense and to his own
experience, and which seems, and no doubt really is, dependent on errors of
sensation. It is supposed the mind in other respects retains its intellectual
powers. In order to avoid any civil act done, or criminal responsibility
incurred, it must manifestly appear that the act in question was the effect of
monomania. Cyclop. Pract. Medicine, title Soundness and Unsoundness of Mind;
Dr. Ray on Insanity, 203; 13 Ves. 89; 3 Bro. C. C. 444; 1 Addams' R. 283; Hagg.
R. 18; 2 Addams' R. 102; 2 Addams' R. 79, 94, 209; 5 Car. & P. 168; Dr.
Burrows on Insanity, 484, 485. Vide Delusion; Mania; and Trebuchet, Jur. de la
Med. 55 to 58
MONOPOLY, commercial law. This word has various significations.
1. It is the abuse of free commerce by which one or more individuals have
procured the advantage of selling alone all of a particular kind of
merchandise, to the detriment of the public.
2. - 2. All combinations among merchants to raise the price of
merchandise to the injury of the public, is also said to be a monopoly.
3. - 3. A monopoly is also an institution or allowance by a grant from
the sovereign power of a state, by commission, letters patent, or otherwise, to
any person, or corporation, by which the exclusive right of buying, selling,
making, working, or using anything, is given. Bac. Abr. h. t.; 3 Inst. 181.
4. The constitutions of Maryland, North Carolina, and Tennessee, declare
that "monopolies are contrary to the genius of a free government, and ought not
to be allowed." Vide art. Copyyright; Patent.
MONSTER, physiology, persons. An animal which has a conformation
contrary to the order of nature. Dunglison's Human Physiol. vol. 2, p. 422.
2. A monster, although born of a woman in lawful wedlock, cannot
inherit. Those who have however the essential parts of the human form and have
merely some defect of coformation, are capable of inheriting, if otherwise
qualified. 2 Bl. Com. 246; 1 Beck's Med. Jurisp. 366; Co. Litt. 7, 8; Dig. lib.
1, t. 5, l. 14; 1 Swift's Syst. 331 Fred. Code, Pt. 1, b. 1, t. 4, s. 4.
3. No living human birth, however much it may differ from human shape,
can be lawfully destroyed. Traill. Med. Jur. 47, see Briand, Med.
Leg. 1ere part. c. 6, art. 2, 3; 1 Fodere, Med.
MONSTRANS DE DROIT. Literally showing of right, in the English
law, is a process by which a subject claim from the crown a restitution of a
right. Bac. Ab. Prerogative, E; 3 Bl. 256; 1 And. 181; 5 Leigh's R. 512.
MONSTRANS DE FAIT. Literally, showing of a deed; a profert. Bac.
Ab. Pleas, &c. I 12, n. 1.
MONSTRAVERUNT, WRIT OF, Eng. law. A writ which lies for the
tenants of ancient demesne who hold by free charter, and not for those tenants
who hold by copy of court roll, or by the rod, according to the custom of the
manor. F. N. B. 31.
MONTES PIETATIS, or Monts de Piete. The name of
institutions established by public authority for lending money upon pledge of
goods. In those establishments a fund is provided, with suitable warehouses,
and all necessary accommodations. Directors, manage these concerns. When the
money for which the goods pledged is not returned in proper time, the goods are
sold to reimburse the institutions.
2. These establishments are found principally on the continent of
Europe. With us private persons, called pawnbrokers, perform this office,
sometimes with doubtful fidelity. See Bell's Com. B. 5, c. 2, s. 2.
MONTH. A space of time variously computed, as it is applied to
astronomical, civil or solar, or lunar months.
2. The astronomical month contains one-twelfth part of the time employed
by the sun in going through the zodiac. In law, when a month simply is
mentioned, it is never understood to mean an astronomical month.
3. The civil or solar month is that which agrees with the Gregorian
calendar, and these months are known by the names of January, February, March,
&c. They are composed of unequal portions of time. There are seven of
thirty-one days each, four of thirty, and one which is sometimes composed of
twenty-eight days, and in leap years, of twenty-nine.
4. The lunar mouth is composed of twenty-eight days only. When a law is
passed or contract made, and the month is expressly stated to be solar or
civil, which is expressed by the term calendar month, or when it is expressed
to be a lunar month, no difficulty can arise; but when time is given for the
performance of an act, and the word month simply is used, so that the intention
of the parties cannot be ascertained then the question arises, how shall the
month be computed? By the law of England a month means ordinarily, in common
contracts, as, in leases, a lunar month; a contract, therefore, made for a
lease of land for twelve months, would mean a lease for forty-eight weeks only.
2 Bl. Com. 141; 6 Co. R. 62; 6 T. R. 224. A distinction has been made between
"twelve months," and "a twelve-month;" the latter has been held to mean a year.
6 Co. R. 61.
5. Among the Greeks and Romans the months were Iunar, and probably the
mode of computation adopted in the English law has been adopted from the codes
of these countries. Clef des Lois Rom. mot Mois.
6. But in mercantile contracts, a month simply signifies a calendar
month; a promissory note to pay money in twelve months, would therefore mean a
promise to pay in one year, or twelve calendar months. Chit. on Bills, 406; 1
John. Cas. 99; 3 B. & B. 187; 1 M. & S. 111; Story on Bills, 143;
Story, P. N. 213; Bayl. on Bills, c. 7; 4 Kent, Comm. Sect. 56; 2 Mass. 170; 4
Mass. 460; 6 Watts. & Serg. 179.
7. In general, when a statute Speaks of a month, without adding
"calendar," or other words showing a clear intention, it shall be intended a
lunar month. Com. Dig. Ann. B; 4 Wend. 512; 15 John. R. 358. See 2 Cowen, R.
518; Id. 605. In all legal proceedings, as in commitments, pleadings, &c. a
month means four weeks. 3 Burr. R. 1455; 1 Bl. Rep. 450; Dougl. R. 446 463.
8. In Pennsylvania and Massachusetts, and perhaps some other states, 1
Hill. Ab. 118, n., a month mentioned generally in a statute, has been construed
to mean a calendar month. 2 Dall. R. 302; 4 Dall. Rep. 143; 4 Mass. R. 461; 4
Bibb. R. 105. In England, in the ecclesiastical law, months are computed by the
calendar. 3 Burr. R. 1455; 1 M. & S. 111.
9. In New York, it is enacted that whenever the term "month," or
"months," is or shall be used in any statute, act, deed, verbal or written
contract, or any public or private instrument whatever, it shall be construed
to mean a calendar, and not a lunar month; unless otherwise expressed. Rev.
Stat. part 1, c. 19, tit. 1, 4. Vide, generally, 2 Sim. & Stu. 476; 2 A. K.
Marsh. Rep. 245; 3 John. Ch. Rep. 74; 2 Campb. 294; 1 Esp. R. 146; 6 T. R. 224;
1 M. & S. 111; 3 East, R. 407; 4 Moore, 465; 1 Bl. Rep. 150; 1 Bing. 307;
S. C. 8 Eng. C. L. R. 328;. 1 M. & S. 111; 1 Str. 652; 6 M. & S. 227; 3
Brod. & B. 187; S. C. 7 Eng. C. L. R. 404.
MONUMENT. A thing intended to transmit to posterity the memory
of some one; it is used, also, to signify a tomb where a dead body has been
deposited. In this sense it differs from a cenotaph, which is at empty tomb.
Dig. 11, 7, 2, 6; Id. 11, 7, 2, 42.
MONUMENTS. Permanent landmarks established for the purpose of
2. Monuments may be either natural or artificial objects, as rivers,
known streams, springs, or marked trees. 7 Wheat. R. 10; 6 Wheat. R. 582; 9
Cranch, 173; 6 Pet. 498; Pet. C. C. R. 64; 3 Ham. 284; 5 Ham. 534; 5 N. H. Rep.
524; 3 Dev. 75. Even posts set up at the corners, 5 Ham. 534, and a clearing, 7
Cowen, 723, are considered as monuments. Sed vide 3 Dev. 75.
3. When monuments are established, they must govern, although neither
courses, nor distances, nor 'computed' contents correspond; 5 Cowen, 346; 1
Cowen, 605; 6 Cowen, 706; 7 Cowen, 723; 6 Mass. 131; 2 Mass. 380; 3 Pick. 401;
5 Pick. 135; 3 Gill & John. 142,; 5 Har. & John. 163, 255; 2 Id. 260;
Wright, 176; 5 Ham. 534; 1 H. & McH. 355; 2 H. & McH. 416; Cooke, 146;
1 Call, 429; 3 Call, 239; 3 Fairf. 325; 4 H. & M. 125; 1 Hayw. 22; 5 J. J.
Marsh. 578; 3 Hawks, 91; 3 Murph. 88; 4 Monr. 32; 5 Monr. 175; 2 Overt. 200; 2
Bibb, 493; S. C. 6 Wheat. 582; 4 W. C. C. Rep. 15. Vide Boundary.
MOORING, mar. law. The act of arriving of a ship or vessel at a
particular port, and there being anchored or otherwise fastened to the
2. Policies of insurance frequently contain a provision that the ship is
insured from one place to another, "and till there moored twenty-four hours in
good safety." As to what shall be a sufficient mooring, see 1 Marsh. Ins. 262;
Park. on Ins. 35; 2 Str. 1251; 3. T. R. 362.
MOOT, English law. A term used in the inns of court, signifying
the exercise of arguing imaginary cases, which young barristers and students
used to perform at certain times, the better to be enabled by this practice to
defend their clients cases. A moot question is one which has not been
MORA, In civil law. This term, in mora, is used to denote
that a party to a contract, who is obliged to do anything, has neglected to
perform it, and is in default. Story on Bailm. 123, 259; Jones on Bailm. 70;
Poth. Pret a Usage, c. 2, 2, art. 2, n. 60; Encyclopedie, mot
Demeure; Broderode, mot Mora.
MORA, estates. A moor, barren or unprofitable ground; marsh; a
heath. 1 Inst. 5; Fleta, lib. 2, c. 71.
MORAL EVIDENCE. That evidence which is not obtained either from
intuition or demonstration. It consists of those convictions of the mind, which
are produced by the use of the senses, the testimony of men, and analogy or
induction. It is used in contradistinction to mathematical, evidence. (q. v.) 3
Bouv. Inst. n. 3050.
MORAL INSANITY, med. jur. A term used by medical men, which has
not yet acquired much reputation in the courts. Moral insanity is said to
consist in a morbid perversion of the moral feelings, affections, inclinations,
temper, habits, and moral dispositions, without any notable lesion of the
intellect, or knowing and reasoning faculties, and particularly without any
maniacal hallucination. Prichard, art. Insanity, in Cyclopaedia of Practical
2. It is contended that some human beings exist, who, in consequence of
a deficiency in the moral organs, are as blind to the dictates of justice, as
others are deaf to melody. Combe, Moral Philosophy, Lect. 12.
3. In some, this species of malady is said to display itself in an
irresistible propensity to commit murder; in others, to commit theft, or arson.
Though most persons afflicted with this malady commit such crimes, there are
others whose disease is manifest in nothing but irascibility. Annals
D'Hygiene tom. i. p. 284. Many are subjected to melancholy, and dejection,
without any delusion or illusion. This, perhaps without full consideration, has
been judicially declared to be a "groundless theory." The courts, and law
writers, have not given it their full assent. 1 Chit. Med. Jur. 352; 1 Beck,
Med. Jur. 553 Ray, Med. Jur. Prel. Views, 23, p. 49.
MORAL OBLIGATION. A duty which one owes, and which he ought to
perform, but which he is not legally bound to fulfil.
2. These obligations are of two kinds 1st. Those founded on a natural
right; as, the obligation to be charitable, which can never be enforced by law.
2d. Those which are supported by a good or valuable antecedent consideration;
as, where a man owes a debt barred by the act of limitations, this cannot be
recovered by law, though it subsists in morality and conscience; but if the
debtor promise to pay it, the moral obligation is a sufficient consideration
for the promise, and the creditor may maintain an action of assumpsit, to
recover the money. 1 Bouv. Inst. n. 623.
MORATUR, IN LEGE. He demurs in law. He rests on the pleadings of
the case, and abides the judgment of the court.
MORGANTIC MARRIAGE. During the middle ages, there was an
intermediate estate between matrimony and concubinage, known by this name. It
is defined to be a lawful and inseparable conjunction of a single man, of noble
and illustrious birth, with a single woman of an inferior or plebeian station,
upon this condition, that neither the wife nor children should partake of the
title, arms, or dignity of the husband, nor succeed to his inheritance, but
should have a certain allowance assigned to them by the morgantic contract. The
marriage ceremony was regularly performed; the union: was for life and
indissoluble; and the children were considered legitimate, though they could
not inherit. Fred. Code, book 2, art. 3; Potb. Du Marriage, 1, c. 2, s. 2;
Shelf. M. & D. 10; Pruss. Code, art. 835.
MORT D'ANCESTOR. An ancient and now almost obsolete remedy in
the English law. An assize of mort d'ancestor was a writ which was sued out
where, after the decease of a man's ancestor, a stranger abated, and entered
into the estate. 1, Co. Litt. 159. The remedy in such case is now to bring
MORTGAGE, contracts, conveyancing. Mortgages are of several
kinds: as the concern the kind of property, mortgaged, they are mortgages of
lands, tenements, and, hereditaments, or of goods and chattels; as they affect
the title of the thing mortgaged, they are legal and equitable.
2. In equity all kinds of property; real or personal, which are capable
of an absolute sale, may be the subject of a mortgage; rights in remainder and
reversion, franchises, and choses in action, may, therefore, be mortgaged; But
a mere possibility or expectancy, as that of an heir, cannot. 2 Story, Eq. Jur.
1021; 4 Kent, Com. 144; 1 Powell, Mortg. 17, 23; 3 Meri. 667.
3. A legal mortgage of lands may be described to be a conveyance of
lands, by a debtor to his creditor, as a pledge and security for the repayment
of a sum of money borrowed, or performance of a covenant; 1 Watts, R. 140; with
a proviso, that such conveyance shall be void on payment of the money and
interest on a certain day, or the performance of such covenant by the time
appointed, by which the conveyance of the land becomes absolute at law, yet
the, mortgagor has an equity of redemption, that is, a right in equity on the
performance of the agreement within a reasonable time, to call for a
re-conveyance of the land. Cruise, Dig. t. 15, c. 1, s. 11; 1 Pow. on Mortg. 4
a, n.; 2 Chip. 100; 1 Pet. R. 386; 2 Mason, 531; 13 Wend. 485; 5 Verm. 532; 1
Yeates, 579; 2 Pick. 211.
4. It is an universal rule in equity that once a mortgage, always a
mortgage; 2 Cowen, R. 324; 1 Yeates, R. 584; every attempt, therefore, to
defeat the equity of redemption, must fail. See Equity of Redemption.
5. As to the form, such a mortgage must be in writing, when it is
intended to convey the legal title. 1 Penna. R. 240. It is either in one single
deed which contains the whole contract - and which is the usual form - or, it
is two separate instruments, the one containing an absolute conveyance, and the
other a defeasance. 2 Johns. Ch. Rep. 189; 15 Johns. R. 555; 2 Greenl. R. 152;
12 Mass. 456; 7 Pick. 157; 3 Wend, 208; Addis. 357; 6 Watts, 405; 3 Watts, 188;
3 Fairf. 346; 7 Wend. 248. But it may be observed in general, that whatever
clauses or covenants there are in a conveyance, though they seem to import an
absolute disposition or conditional purchase, yet if, upon the whole, it
appears to have been the intention of the parties that such conveyance should
be a mortgage only, or pass an estate redeemable, a court of equity will always
so construe it. Vern. 183, 268, 394; Prec Ch. 95; 1 Wash. R 126; 2 Mass. R.
493; 4 John. R. 186; 2 Cain. Er. 124.
6. As the money borrowed on mortgage is seldom paid on the day
appointed, mortgages have now become entirely subject to the court of chancery,
where it is an established rule that the mortgagee holds the estate merely as a
pledge or security for the repayment of his money; therefore a mortgage is
considered in equity as personal estate.
7. The mortgagor is held to be the real owner of the land, the debt
being considered the principal, and the land the accessory; whenever the debt
is discharged, the interest of the mortgagee in the lands determines of course,
and he is looked on in equity as a trustee for the mortgagor.
8. An equitable mortgage of lands is one where the mortgagor does not
convey regularly the land, but does some act by which he manifests his
determination to bind the same for the security of a debt he owes. An agreement
in writing to transfer an estate as a security for the repayment of a sum of
money borrowed, or even a deposit of title deeds, and a verbal agreement, will
have the same effect of creating an equitable mortgage. 1 Rawle, Rep. 328; 5
Wheat. R. 284; 1 Cox's Rep. 211. But in Pennsylvania there is no such a thing
as an equitable mortgage. 3 P. S. R. 233. Such an agreement will be carried
into execution in equity against the mortgagor, or any one claiming under him
with notice, either actual or constructive, of such deposit having been made. 1
Bro. C. C. 269; 2 Dick. 759; 2 Anstr. 427; 2 East, R. 486; 9 Ves. jr. 115; 11
Ves. jr. 398, 403; 12 Ves. jr. 6, 192; 1 John. Cas. 116; 2 John. Ch. R. 608; 2
Story, Eq. Jur. 1020. Miller, Eq. Mortg. passim.
9. A mortgage of goods is distinguishable from a mere pawn. 5 Verm. 532;
9 Wend. 80; 8 John. 96. By a grant or conveyance of goods in gage or mortgage,
the whole legal title passes conditionally to the mortgagee, and if not
redeemed at the time stipulated, the title becomes absolute at law, though
equity will interfere to compel a redemption. But, in a pledge, a special
property only passes to the pledgee, the general property remaining in the
pledger. There have been some cases of mortgages of chattels, which have been
held valid without any actual possession in the mortgagee; but they stand upon
very peculiar grounds and may be deemed exceptions to the general rule. 2 Pick.
R. 607; 5 Pick. R. 59; 5 Johns. R. 261; Sed vide 12 Mass. R. 300; 4 Mass. R.
352; 6 Mass. R. 422; 15 Mass. R. 477; 5 S. & R. 275; 12 Wend. 277: 15 Wend.
212, 244; 1 Penn. 57. Vide, generally,, Powell on Mortgages; Cruise, Dig. tit.
15; Viner, Ab. h. t.; Bac. Ab. h. t., Com. Dig. h. t.; American Digests,
generally, h. t.; New, York Rev. Stat. p. 2, c. 3; 9 Wend. 80; 9 Greenl. 79; 12
Wend. 61; 2 Wend. 296; 3 Cowen, 166; 9 Wend. 345; 12 Wend. 297; 5 Greenl. 96;
14 Pick. 497; 3 Wend. 348; 2 Hall, 63; 2 Leigh, 401; 15 Wend. 244; Bouv. Inst.
Index, h. t.
10. It is proper to, observe that a conditional sale with the right to
repurchase very nearly resembles a mortgage; but they are distinguishable. It
is said that if the debt remains, the transaction is a mortgage, but if the
debt is extinguished by mutual agreement, or the money advanced is not loaned,
but the grantor has a right to refund it in a given time, and have a
reconveyance, this is a conditional sale. 2 Edw. R. 138; 2 Call, R. 354; 5 Gill
& John. 82; 2 Yerg. R. 6; 6 Yerg. R. 96; 2 Sumner, R. 487; 1 Paige, R. 56;
2 Ball & Beat. 274. In cases of doubt, however, courts of equity will
always lean in favor of a mortgage. 7 Cranch, R. 237; 2 Desaus. 564.
11. According to the laws of Louisiana a mortgage is a right granted to
the creditor over the property of his debtor, for the security of his debt, and
gives him the power of having the property seized and sold in default of
payment. Civ. Code of Lo. art. 3245.
12. Mortgage is conventional, legal or judicial. 1st. The conventional
mortgage is a contract by which a person binds the whole of his property, or a
portion of it only, in favor of another, to secure the execution of some
engagement, but without divesting himself of the possession. Civ. Code, art.
13. - 2d. Legal mortgage is that which is created by operation of law:
this is also called tacit mortgage, because it is established by the law,
without the aid of any agreement. Art. 3279. A few examples will show the
nature of this mortgage. Minors, persons interdicted, and absentees, "have a
legal mortgage on the property of their tutors and curators, as a security for
their administration; and the latter have a mortgage on the property of the
former for advances which they have made. The property of persons who, without
being lawfully appointed curators or tutors of minors, &c., interfere with
their property, is bound by a legal mortgage from the day on which the first
act of interference was done.
14. - 3d. The judicial mortgage is that resulting from judgments,
whether these be rendered on contested cases or by default, whether they be
final or provisional, in favor of the person obtaining them. Art. 3289.
15. Mortgage, with respect to the manner in which it binds the property,
is divided into general mortgage, or special mortgage. General mortage is that
which binds all the property, present or future, of the debtor. Special
mortgage is that which binds only certain specified property. Art. 3255.
16. The following objects are alone susceptible of mortgage: 1.
Immovables, subject to alienation, and their accessories considered likewise as
immovable. 2. The usufruct of the same description of property with its
accessories during the time of its duration. 3. Slave's. 4. Ships and other
vessels. Art. 3256.
MORTGAGEE, estates, contracts. He to whom a mortgage is
2. He is entitled to the payment of the money secured to him by the
mortgage; he has the legal estate in the land mortgaged, and may recover it in
ejectment, on the other hand he cannot commit waste; 4 Watts, R. 460; he cannot
make leases to the injury of the mortgagor; and he must account for the profits
he receives out of the thing mortgaged when in possession. Cruise, Dig. tit.
15, c. 2.
MORTGAGOR, estate's, contracts. He who makes a mortgage.
2. He has rights, and is liable to certain duties as such. 1. He is
quasi tenant, at will; he is entitled to an equity of redemption after
forfeiture. 2. He cannot commit waste, nor make a lease injurious to the
mortgagee. As between the mortgagor and third persons, the mortgagor is owner
of the land. Dougl. 632; 4 M'Cord, R. 310; 3 Fairf. R. 243; but see 3 Pick. R.
204; 1 N. H. Rep. 171; 2 N. H. Rep. 16; 10 Conn. R. 243; 1 Vern. 3; 2 Vern.
621; 1 Atk. 605. He can, however, do nothing which will defeat the rights of
the mortgagee, as, to make a lease to bind him. Dougl. 21. Vide Mortgagee; 2
Jack. & Walk. 194.
MORTIFICATION, Scotch law. This term is nearly synonymous with
MORTMAIN. An unlawful alienation of lands, or tenements to any
corporation, sole or aggregate, ecclesiastical or temporal. These purchases
having been chiefly made by religious houses, in consequence of which lands
became perpetually inherent in one dead hand, this has occasioned the general
appellation of mortmain to be applied to such alienations. 2 Bl. Com. 268; Co.
Litt. 2 b; Ersk. Inst. B. 2, t. 4, s. 10; Barr. on the Stat. 27, 97.
2. Mortmain is also employed to designate all prohibitory laws, which
limit, restrain, or annul gifts, grants, or devises of lands and other
corporeal hereditaments to charitable uses. 2 Story, Eq. Jur. 1137, note 1. See
Shelf. on Mortm. 2, 3.
MORTUARIES, Eng. law. These are a sort of ecclesiastical
heriots, being a customary gift claimed by and due to the minister, in many
parishes, on the death of the parishioner. 2 Bl. Com. 425.
MORTUUM VADIUM. A mortgage; a dead pledge
MORTUUS EST. A return made by the sheriff, when the defendant is
dead, as an excuse for not executing the writ. 4 Watts, 270, 276.
MOTHER, domestic relations. A woman who has borne a child.
2. It is generally the duty of a mother to support her child, when she
is left a widow, until he becomes of age, or is able to maintain himself; 8
Watts, R. 366; and even after he becomes of age, if he be chargeable to the
public, she may, perhaps, in all the states, be compelled, when she has
sufficient means, to support him. But when the child has property sufficient
for his support, she is not, even during his minority, obliged to maintain him.
1 Bro. C. C. 387; 2 Mass. R. 415; 4 Miss. R. 97.
3. When the father dies without leaving a testamentary guardian, at
common law, the mother is entitled to be the guardian of the person and estate
of the infant, until he arrives at fourteen years, when he is able to choose a
guardian. Litt. sect. 123; 3 Co. 38; Co. Litt. 84 b; 2 Atk. 14; Com Dig. B, D,
E; 7 Ves. 348. See 10 Mass. 135, 140; 15 Mass. 272; 4 Binn. 487; 4 Stew. &
Part. 123; 2 Mass. 415; Harper, R. 9; 1 Root, R. 487.
4. In Pennsylvania, the orphans' court will, in such case, appoint a
guardian until the infant shall attain his fourteenth year. During the joint
lives of the parents, (q. v.) the father (q. v.) is alone responsible for the
support of the children; and has the only control over them, except when in
special cases the mother is allowed to have possession of them. 1 P. A.
Browne's Rep. 143; 5 Binn. R. 520; 2 Serg. & Rawle 174. Vide 4 Binn. R.
5. The mother of a bastard child, as natural guardian, has a right to
the custody and control of such child, and is bound to maintain it. 2 Mass.
109; 12 Mass. 387, 433; 2 John. 375; 15 John. 208; 6 S. & R. 255; 1
MOTHER-IN-LAW. In Latin socrus. The mother of one's wife, or of
MOTION, practice. An application to a court by one of the
parties in a cause, or his counsel, in order to obtain some rule or order of
court, which he thinks becomes necessary in the progress of the cause, or to
get relieved in a summary manner, from some matter which would work
2. When the motion. is made on some matter of fact, it must be supported
by an affidavit that such facts are true; and for this purpose, the party's
affidavit will be received, though, it cannot be read on the hearing. 1 Binn.
R. 145; S. P. 2 Yeates' R. 546. Vide 3 Bl. Com. 304; 2 Sell. Pr. 356; 15 Vin.
Ab. 495; Grah. Pr. 542; Smith's Ch. Pr. Index, h. t.
MOTIVE. The inducement, cause or reason why a thing is done.
2. When there is such a mistake in the motive, that had the truth been
known, the contract would pot have been made, it is generally void., For
example, if a man should, after the death of Titius, of which he was ignorant,
insure his life, the error of the motive would avoid the contract. Toull. Dr.
Civ. Fr. liv. 3, c. 2, art. 1. Or, if Titius should sell to Livius his horse,
which both parties supposed to be living at some distance from the place where
the contract was made, when in fact, the horse was then dead, the contract
would be void. Poth. Vente, n. 4; 2 Kent, Com. 367. When the contract is
entered into under circumstances of clear mistake or surprise, it will not be
enforced. See the following authorities on this subject. 1 Russ. & M. 527;
1 Ves. jr. 221; 4 Price, 135; 1 Ves. jr. 210; Atkinson on Titl. 144. Vide
3. The motive of prosecutions is frequently an object of inquiry,
particularly when the prosecutor is a witness, and in his case, as that of any
other witness, when the motion is ascertained to be bad, as a desire of revenge
for a real or supposed injury, the credibility of the witness will be much
weakened, though this will not alone render him incompetent. See Evidence;
MOURNING. This word has several significations. 1. It is the
apparel worn at funerals, and for a time afterwards, in order to manifest grief
for the death of some one, and to honor his memory. 2. The expenses paid for
2. It has been held in England, that a demand for mourning furnished to
the widow and family of the testator, is not a funeral expense. 2 Carr. &
P. 207. Vide 14 Ves. 346; 1 Ves. & Bea. 364. See 2 Bell's Comm. 156.
MOVABLES, estates. Such subjects of property as attend a man's
person wherever he goes, in contradistinction to things immovable. (q. v.)
2. Things movable by their nature are such as may be carried from one
place to another, whether they move themselves, as cattle, or cannot be removed
without an extraneous power, as inanimate things. Movables are further
distinguished into such as are in possession, or which are in the power of the
owner, as, a horse in actual use, a piece of furniture in a man's own house; or
such as are in the possession of another, and can only be recovered by action,
which are therefore said to be in action, as a debt. Vide art. Personal
Property, and Fonbl. Eq. Index, h. t.; Pow. Mortg. Index, h. t.; 2 Bl. Com.
884; Civ. Code of Lo. art. 464 to 472; 1 Bouv. Inst. n. 462.
MULATTO. A person born of one white and one black parent. 7
Mass. R. 88; 2 Bailey, 558.
MULCT, punishment. A fine imposed on the conviction of an
MULCT, commerce. An imposition laid on ships or goods by a
company of trade, for the maintenance of consuls and the like. Obsolete.
MULIER. A woman, a wife; sometimes it is used to designate a
marriageable virgin, and in other cases the word mulier is employed in
opposition to virgo. Poth. Pand. tom. 22, h. t. In its most proper
signification, it means a wife.
2. A son or a daughter, born of a lawful wife, is called filius
mulieratus or filia mulierata, a son mulier, or a daughter mulier. The term is
used always in contradistinction to a bastard; mulier being always legitimate.
Co. Litt. 243.
3. When a man has a bastard son, and afterwards marries the mother, and
has by her another son, the latter is called the mulier puisne. 2 Bl. Com.
MULTIFARIOUSNESS, equity pleading. By multifariousness in a
bill, is understood the improperly joining in one bill distinct matters, and
thereby confounding them; as, for example, the uniting in one bill, several
matters, perfectly distinct and unconnected, against one defendant; or the
demand of several matters of distinct natures, against several defendants in
the same bill. Coop. Eq. Pl. 182; Mitf. by Jeremy, 181; 2 Mason's R. 201; 18
Ves. 80; Hardr. R. 337; 4 Cowen's R. 682; 4 Bouv. Inst. n. 4165.
2. In order to prevent confusion in its pleadings and decrees, a court
of equity will anxiously discountenance this multifariousness. The following
case will illustrate this doctrine; suppose an estate should be sold in lots to
different persons, the purchasers could not join in exhibiting one bill against
the vendor for a specific performance; for each party's case would be distinct,
and would depend upon its own peculiar circumstances, and therefore there
should be a distinct bill upon each contract; on the other hand, the vendor in
the like case, would not be allowed to file one bill for a specific performance
against all the purchasers of the estate, for the same reason. Coop. Eq. Pl.
182; 2 Dick. Rep. 677; 1 Madd. Rep. 88; Story's Eq . PI. 271 to 286. It is
extremely difficult to say what constitutes multifariousness as an abstract
proposition. Story, Eq. Pl. 530, 539; 4 Blackf. 249; 2 How. S. C. Rep. 619,
642; 4 Bouv. Inst. n. 4243.
MULTITUDE. The meaning of this word is not very certain. By some
it is said that to make a multitude there must be ten persons at least, while
others contend that the law has not fixed any number. Co. Litt. 257.
MULTURE, Scotch law. The quantity of grain or meal payable to
the proprietor of the mill, or to the multurer, his tacksman, for manufacturing
the corns. Ersk. Prin. Laws of Scotl. B. 2 t. 9, n. 19.
MUNERA. The name given to grants made in the early feudal ages,
which were mere tenancies at will, or during the pleasure of the grantor. Dalr.
Feud. 198, 199; Wright on Ten. 19.
MUNICIPAL. Strictly, this word applies only to what belongs to a
city. Among the Romans, cities were called municipia; these cities voluntarily
joined the Roman republic in relation to their sovereignty only, retaining,
their laws, their liberties, and their magistrates, who were thence called
municipal magistrates. With us this word has a more extensive meaning; for
example, we call municipal law, not the law of a city only, but the law of the
state. 1 Bl. Com. Municipal is used in contradistinction to international; thus
we say an offence against the law of nations is an international offence, but
one committed against a particular state or separate community, is a municipal
MUNICIPALITY. The body of officers, taken collectively,
belonging to a city, who are appointed to manage its affairs and defend its
MUNIMENTS. The instruments of writing and written evidences
which the owner of lands, possessions, or inheritances has, by which he is
enabled to defend the title of his estate. Termes de la Ley, h. t.; 3 Inst.
MURAGE. A toll formerly levied in England for repairing or
building public walls.
MURAL MONUMENTS. Monuments made in walls.
2. Owing to the difficulty or impossibility of removing them, secondary
evidence may be given of inscriptions on walls, fixed tables, gravestones, and
the like. 2 Stark. Rep. 274.
MURDER, crim. law. This, one of the most important crimes that
can be committed against individuals, has been variously defined. Hawkins
defines it to be the wilful killing of any subject whatever, with malice
aforethought, whether the person slain shall be an Englishman or a foreigner.
B. 1, c. 13, s. 3. Russell says, murder is the killing of any person under the
king's peace, with malice prepense or aforethought, either express or implied
by law. 1 Rus. Cr. 421. And Sir Edward Coke, 3 Inst. 47, defines or rather
describes this offence to be, " when a person of sound mind and discretion,
unlawfully killeth any reasonable creature in being, and under the king's
peace, with malice aforethought either express or implied."
2. This defnition, which has been adopted by Blackstone, 4 Com. 195;
Chitty, 2 Cr. Law, 724; and others, has been severely and perhaps justly
criticised. What, it has been asked, are sound memory and understanding? What
has soundness of memory to do with the act; be it ever so imperfect, how does
it affect the guilt? If discretion is necessary, can the crime ever be
committed, for, is it not the highest indiscretion in a man to take the life of
another, and thereby expose his own? If the person killed be an idiot or a new
born infant, is he a reasonable creature? Who is in the king's peace? What is
malice aforethought? Can there be any malice afterthought? Livingst. Syst. of
Pen. Law; 186.
3. According to Coke's definition there must be, lst. Sound mind and
memory in the agent. By this is understood there must be a will, (q. v.) and
legal discretion. (q. v.) 2. An actual killing, but it is not necessary that it
should be caused by direct violence; it is sufficient if the acts done
apparently endanger. life, and eventually fatal. Hawk. b. 1, c. 31, s. 4; 1
Hale, P. C. 431; 1 Ashm. R. 289; 9 Car. & Payne, 356; S. C. 38 E. C. L. R.
152; 2 Palm. 545. 3. The party killed must have been a reasonable being, alive
and in the king's peace. To constitute a birth, so as to make the killing of a
child murder, the whole body must be detached from that of the mother; but if
it has come wholly forth, but is still connected by the umbilical chord, such
killing will be murder. 2 Bouv. Inst. n. 1722, note. Foeticide (q. v.) would
not be such a killing; he must have been in rerum natura. 4. Malice, either
express or implied. It is this circumstance which distiuguishes murder from
every description of homicide. Vide art. Malice.
4. In some of the states, by legislative enactments, murder has been
divided into degrees. In Pennsylvania, the act of April 22, 1794, 3 Smith's
Laws, 186, makes "all murder which shall be perpetrated by means of poison, or
by lying in wait, or by any other kind of wilful, deliberate, and premeditated
killing, or which shall be committed in the perpetration or attempt to
perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of
the first degree; and all other kinds of murder shall be deemed murder of the
second degree; and the jury before whom any person indicted for murder shall be
tried, shall, if they find the person guilty thereof, ascertain in their
verdict, whether it be murder of the first or second degree; but if such person
shall be convicted by confession, the court shall proceed by examination of
witnesses, to determine the degree of the crime, and give sentence accordingly.
Many decisions have been made under this act to which the reader is referred:
see Whart. Dig. Criminal Law, h. t.
5. The legislature of Tennessee has adopted the same distinction in the
very words of the act of Pennsylvania just cited. Act of 1829, 1 Term. Laws,
Dig. 244. Vide 3 Yerg. R. 283; 5 Yerg. R. 340.
6. Virginia has adopted the same distinction. 6 Rand. R. 721. Vide,
generally, Bac. Ab. h. t.; 15 Vin. Ab. 500; Com. Dig. Justices, M 1, 2; Dane's
Ab. Index, h. t.; Hawk. Index, h. t.; 1 Russ. Cr. b. 3, c. 1; Rosc. Cr. Ev. h.
t. Hale, P. C. Index, h. t.; 4 Bl. Com. 195; 2 Swift's Syst. Index, h. t.; 2
Swift's Dig. Index, h. t.; American Digests, h. t.; Wheeler's C. C. Index, h.
t.; Stark. Ev. Index, h. t.; Chit. Cr. Law, Index, h. t.; New York Rev. Stat.
part 4, c. 1, t. 1 and 2.
MURDER, pleadings. In an indictment for murder, it must be
charged that the prisoner "did kill and murder" the deceased, and unless the
word murder be introduced into the charge, the indictment will be taken to
charge manslaughter only. Foster, 424; Yelv. 205; 1 Chit. Cr. Law, *243, and
the authorities and cases there cited.
MURDRUM, old Engl. law. During the times of the Danes, and
afterwards till the reign of Edward III, murdrum was the killing of a man in a
secret manner, and in that it differed from simple homicide.
2. When a man was thus killed, and he was unknown, by the laws of Canute
he was presumed to be a Dane, and the vill was compelled to pay forty marks for
his death. After tlie conquest, a similar law was made in favor of Frenchmen,
which was abolished by 3 Edw. III.
3. By murdrum was also understood the fine formerly imposed in England
upon a person who had committed homicide perinfortunium or se defendendo. Prin.
Pen. 219, note r.
MUSICAL COMPOSITION. The act of congress of February 3, 1831,
authorizes the granting of a copyright for a musical composition. A question
was formerly agitated whether a composition published on a single sheet of
paper, was to be considered a book, and it was decided in the affirmative. 2
Campb. 28, n.; 11 East, 244. See Copyright.
TO MUSTER, mar. law. By this term is understood to collect
together and exhibit soldiers and their arms; it also signifies to employ
recruits and put their names down in a book to enrol them.
MUSTER-ROLL, maritime law; A written document containing the
name's, ages, quality, place of residence, and, above all, place of birth, of
every person of the ship's company. It is of great use in ascertaining the
ship's; neutrality. Marsh. Ins. B. 1, c. 9, s. 6, p. 407; Jacobs. Sea Laws,
161; 2 Wash. C. C. R. 201.
MUSTIRO. This name is given to the issue of an Indian and a
negro. Dudl. S. Car. R. 174.
MUTATION, French law. This term is synonymous with change, and
is particularly applied to designate the change which takes place in the
property of a thing in its transmission from one person to another; permutation
therefore happens when, the owner of the thing sells, exchanges or gives it. It
is nearly synonymous with transfer. (q. v.) Merl. Repert. h. t.
MUTATION OF LIBEL, practice. An amendment allowed to a libel, by
which there is an alteration of the substance of the libel, as by propounding a
new cause of action, or asking one thing instead of another. Dunl. Adm. Pr.
213; Law's Eccl. Law, 165-167; 1 Paine's R. 435; 1 Gall. R. 123; 1 Wheat. R.
MUTATIS MUTANDIS. The necessary changes. This is a phrase of
frequent practical occurrence, meaning that matters or things are generally the
same, but to be altered, when necessary, as to names, offices, and the
MUTE, persons. One who is dumb. Vide Deaf and Dumb.
MUTE, STANDING MUTE, practice, crim. law. When a prisoner upon
his arraignment totally refuses to answer, insists upon mere frivolous
pretences, or refuses to put himself upon the country, after pleading not
guilty, he is said to stand mute. 2. In the case of the United States v. Hare,
et al., Circuit Court, Maryland Dist. May sess. 1818, the prisoner standing
mute was considered as if he had pleaded not guilty.
3. The act of congress of March 3, 1825, 3 Story's L . U. S. 2002, has
since provided as follows; 14, That if any person, upon his or her arraignment
upon any indictment before any court of the United States for any offence, not
capital, shall stand mute, or will not answer or plead to such indictment, the
court shall, notwithstanding, proceed to the trial of the person, so standing
mute, or refusing to answer or pleas, as if he or she had pleaded not guilty;
and upon a verdict being returned by the jury, may proceed to render judgment
accordingly. A similar provision is to be found in the laws of
4. The barbarous punishment of peine forte et dure which till lately
disgraced the criminal code of England, was never known in the United States.
Vide Dumb; 15 Vin. Ab. 527.
5. When a prisoner stands mute, the laws of England arrive at the forced
conclusion that he is guilty, and punish him accordingly. 1 Chit. Cr. Law,
6. By the old French law, when a person accused was mute, or stood mute,
it was the duty of the judge to appoint him a curator, whose duty it was to
defend him, in the best manner he could; and for this purpose, he was allowed
to communicate with him privately. Poth. Proced. Crim. s. 4, art. 2, 1.
MUTILATION, crim. law. The depriving a man of the use of any of
those limbs, which may be useful to him in fight, the loss of which amounts to
mayhem. 1 Bl. Com. 130.
MUTINY, crimes. The unlawful resistance of a superior officer,
or the raising of commotions and disturbances on board of a ship against the
authority of its commander, or in the army in opposition to the authority of
the officers; a sedition; (q. v.) a revolt. (q. v.)
2. By the act for establishing rules and articles for the government of
the armies of the United States, it is enacted as follows: Article 7. Any
officer or soldier, who shall begin, excite, or cause, or join in, any mutiny
or sedition in any troop or company in the service of the United States, or in
any party, post, detachment or guard, shall suffer death, or such other
punishment as by a court martial shall be inflicted. Article 8. Any officer,
non-commissioned officer, or soldier, who being present at any mutiny or
sedition, does not use his utmost endeavors to suppress the same, or coming to
the knowledge of any intended mutiny, does not without delay give information
thereof to his commanding officer, shall be punished by the sentence of a court
martial, with death, or otherwise, according to the nature of his offence.
3. And by the act for the better government of the navy of the United
States, it is enacted as follows,: Article 13. If any person in the navy shall
make or attempt to make any mutinous assembly, he shall, on conviction thereof
by, a court martial, suffer death; and if any person as aforesaid, shall utter
any seditious or mutinous words, or shall conceal or connive at any mutinous or
seditious practices, or shall treat with contempt his superior, being in the
execution of his office, or being witness to any mutiny or sedition, shall not
do his utmost to suppress it, he shall be punished at the discretion of a court
martial. Vide 2 Stra. R. 1264.
2. In contracts there must always be a consideration in order to make
them valid. This is sometimes mutual, as when one man promises to pay a sum of
money to another in consideration that he shall deliver him a horse, and the
latter promises to deliver him the horse in consideration of being paid the
price agreed upon. When a man and a woman promise to marry each other, the
promise is mutual. It is one of the qualities of an award, that it be mutual;
but this doctrine is not as strict now as formerly. 3 Rand. 94; see 3 Caines
254; 4 Day, 422; 1 Dall. 364, 365; 6 Greenl. 247; 8 Greenl. 315; 6 Pick.
3. To entitle a contracting party to a specific performance of an
agreement, it must be mutual, for otherwise it will not be compelled. 1 Sch.
& Lef. 18; Bunb. 111; Newl. Contr. 152. See Rose. Civ. Ev. 261.
4. A distinction has been made between mutual debts and mutual credits.
The former term is more limited in its signification than the latter. In
bankrupt cases where a person was indebted to the bankrupt in a sum payable at
a future day, and the bankrupt owed him a smaller sum which was then due; this,
though in strictness, not a mutual debt, was holden to be a mutual credit. 1
Atk. 228, 230; 7 T. R. 378; Burge on Sur. 455, 457.
MUTUARY, contracts. A person who borrows personal chattels to be
consumed by him, and returned to the lender in kind; the person who receives
the benefit arising from the contract of mutuum. Story, Bailm. 47.
MUTUUM, or loan for consumption, contracts. A loan of personal
chattels to be consumed by the borrower, and to be returned to the lender in
kind and quantity; as a loan of corn, wine, or money, which are to be used or
consumed, and are to be replaced by other corn, wine, or money. Story on Bailm.
228; Louis. Code, tit. 12, c. 2; Ayliffe's Pand. 481; Poth. Pand. tom. 22, h.
t.; Dane's Ab. Index, h. t.; 1 Bouv. Inst. logo.
2. It is of the essence of this contract, 1st. That there be either a
certain sum of money, or a certain quantity of other things, which is to be
consumed by use which is to be the subject-matter of the contract, and which is
loaned to be consumed. 2d. That the thing be delivered to the borrower. 3d.
That the property in the thing be transferred to him. 4th. That he obligates
himself to return as much. 5th. That the parties agree on all these points.
Poth. Prāt. de Consomption, n. 1; 1 Bouv. Inst. n. 1091-6.
MYSTERY or MISTERY. This word is said to be derived from the
French mestier now written mātier, a trade. In law it signifies a trade,
art, or occupation. 2 Inst. 668.
2. Masters frequently bind themselves in the indentures with their
apprentices to teach them their art, trade, and mystery. Vide 2 Hawk. c. 23, s.
MYSTIC. In a secret manner; concealed; as mystic testament, for
a secret testament. Vide 2 Bouv. Inst. n. 3138; Testament Mystic.