UBERRIMA FIDES. Perfect good faith; abundant good faith.
2. This phrase is used to express that a contract must be made in
perfect good faith, concealing nothing; as in the case of insurance, the
insured must observe the most perfect good faith towards the insurer. 1 Story,
Eq. Jur. §317; 3 Kent, Com. 283, 4th ed.
UKAAS, or UKASE. The name of a law or ordinance emanating from
the czar of Russia.
ULLAGE, com. law. When a cask is gauged, what it wants of being
full is called ullage.
ULTIMATUM. The last proposition made in making a contract, a
treaty, and the like; as, the government of the United States has given its
ultimatum, has made the last proposition it will make to complete the proposed
treaty. The word also means the result of a negotiation, and it comprises the
final determination of the parties concerned in the object in dispute.
ULTIMUM SUPPLICIUM. The last or extreme punishment; the penalty
ULTIMUS HAERES. The last or remote heir; the lord. So called in
contra-dis-tinction to the haeredes proximus, (q. v.) and the haeredes
remotiores. (q. v.) Dalr Feud. Pr. 110.
UMPIRAGE. The decision of an umpire. This word is used for the
judgment of an umpire, as the word award is employed to designate that of
UMPIRE. A person selected by two or more arbitrators. When they
are authorize to do so by the submission of the parties, and they cannot agree
as to the subject-matter referred to them, whose duty it is to decide the
matter in dispute. Sometimes the term is applied to a single arbitrator,
selected by the parties themselves. Kyd on Awards, 6, 75, 77 Caldw. on Arb. 38;
Dane's Ab. Index, h. t.; 3 Vin. Ab. 93; Com. Dig. Arbitrament, F; 4 Dall. 271,
432; 4 Sco. N. S. 378; Bouv. Inst. Index, h. t.
UNA VOCE. With one voice unanimously.
UNALIENABLE. The state of a thing or right which cannot be
2. Things which are not in commerce, as public roads, are in their
nature unalienable. Some things are unalienable, in consequence of particular
provisions in the law forbidding their sale or transfer, as pensions granted by
the government. The natural rights of life and liberty are unalienable.
UNANIMITY. The agreement of all the persons concerned in a thing
in design and opinion.
2. Generally a simple majority (q. v.) of any number of persons is
sufficient to do such acts as the whole number can do; for example, a majority
of the legislature can pass a law: but there are some cases in which unanimity
is required; for example, a traverse jury, composed of twelve individuals,
cannot decide an issue submitted to them, unless they are unanimous.
UNCERTAINTY. That which is unknown or vague. Vide Certainty.
UNCONDITIONAL. That which is without condition; that which must
be performed without regard to what has happened or may happen.
UNCONDITIONAL CONTRACT, contracts. One which does not depend
upon any condition whatever. 1 Bouv. Inst. n. 730.
UNCONSCIONABLE BARGAIN, contracts. A contract which no man in
his senses, not under delusion, would make, on the one hand, and which no fair
and honest man would accept, on the other. 4 Bouv. Inst. n. 3848.
UNCONSTITUTIONAL. That which is contrary to the
2. When an act of the legislature is repugnant or contrary to the
constitution, it is, ipso facto, void. 2 Pet. R. 522; 12 Wheat. 270; 3 Dall.
286; 4 Dall. 18.
3. The courts have the power, and it is their duty, when an act is
unconstitutional, to declare it to be so; but this will not be done except in a
clear case and, as an additional guard against error, the supreme court of the
United States refuses to take up a case involving constitutional questions,
when the court is not full. 9 Pet. 85. Vide 6 Cranch, 128; 1 Binn. 419; 5 Binn.
355; 2 Penns 184; 3 S. & R. 169; 7 Pick. 466; 13 Pick. 60; 2 Yeates, 493; 1
Virg. Cas. 20; 1 Blackf. 206 6 Rand. 245 1 Murph. 58; Harper, 385 1 Breese, 209
Pr. Dee. 64, 89; 1 Rep. Cons. Ct. 267 1 Car. Law Repos. 246 4 Munr. 43; 5 Hayw.
271; 1 Cowen, 550; 1 South. 192; 2 South. 466; 7 N H. Rep. 65, 66; 1 Chip, 237,
257; 10 Conn. 522; 7 Gill & John. 7; 2 Litt. 90; 3 Desaus. 476.
UNCORE PRIT, pleading. This barbarous phrase of old French,
which is the same with encore pret, yet ready, is used in a plea in bar to an
action of debt on a bond due at a day past; when the defendant pleads a tender
on the day it became due, and adds that he is uncore prit, still ready to pay
the same. 3 Bl. Com. 303; Doct. Pl. 526 Dane's Ab. Index, h. t. Vide tout temps
UNDE NIHIL HABET. Of which she has nothing. When no dower had
been assigned to the widow during the time prescribed by law, she could, at
common law, sue out a writ of dower unde nihil habet. 3 Bl. Com. 183.
UNDERLEASE, contracts. An alienation by a tenant of a part of
his lease, reserving to himself a reversion; it differs from an assignment,
which is a transfer of all the tenant's interest in the lease. 3 Wils. 234; S.
C. Bl. Rep. 766. And even a conveyance of the whole estate by the lessee,
reserving to himself the rent, with a power of re-entry for non-payment, was
held to be, not an assignment, but an underlease. Str. 405. In Ohio it has been
decided that the transfer of only a part of the lands, though for the whole
term, is an underlease; 2 Ohio, R. 216; in Kentucky, such a transfer, on the
contrary, is considered as an assignment. 4 Bibb. R. 538.
2. In leases there is frequently introduced a covenant on the part of
the lessee, that he will not underlet the premises, nor assign the lease. This
refers to the voluntary act of the tenant, and the covenant is not broken when
the lease is transferred without any act on his part; as, if it be sold by the
sheriff on execution, or by assignees in bankruptcy, or by an executor. 8 T. R.
57; 3 M. & S. 353; 1 Ves. 295.
3. The underlessor has a right to distrain for the rent due to him,
which, the assignor of a lease has not. The under-lessee is not liable
personally to the original lessor, nor is his property subject to his claim for
rent longer than while it is on the leased premises, when it may be distrained
upon. The assignee of the lessee stands in a different situation. He is liable
to an action by the landlord or his assignee for the rent, upon the ground of
privity of estate. 1 Hill. Ab. 125, 6; 4 Kent, Com. 95; 9 Pick. R. 52; 14 Mass.
487; 5 Watts, R. 134. Vide 2 Bl. R. 766; 3 Wils. 234; 4 Campb. 73; Bouv. Inst.
Index, tit. Underletting. Vide Estate for years; Lease; Lessee; Notice to quit;
Tenant for years.
UNDER-SHERIFF. A deputy of a sheriff. The principal is called
high-sheriff, and the deputy the under-sheriff. Vide 1 Phil . Ev. Index, h.
UNDER-TENANT. One who holds by virtue of an underlease. (q. v.)
UNDERTAKING, contracts. An engagement by one of the parties to a
contract to the other, and not the mutual engagement of the parties to each
other; a promise. 5 East, R. 17; 2 Leon. 224, 5; 4 B, & A. 595.
UNDERTOOK. Assumed; promised.
2. This is a technical word which ought to be inserted in every
declaration of assumpsit, charging that the defendant undertook to perform the
promise which is the foundation of the suit; and this though the promise be
founded on a legal liability, or would be implied in evidence. Bac. Ab
Assumpsit, F; 1 Chit. Pl. 88, note p.
UNDER-TUTOR, law of Louisiana. In every tutorship, there shall
be an undertutor, whom it shall be the duty of the judge to appoint at the time
letters of tutorship are certified for the tutor.
2. It is the duty of the under-tutor to act for the minor, whenever the
interest of the minor is in opposition to the interest of the tutor. Civil
Code, art. 300, 301; 1 N. S. 462; 9 M. R. 643; 11 L. R. 189; Poth. Des
Personnes, partie prem. tit. 6, s. 5, art. 2. Vide Pro-curator; Protutor.
UNDERWRITER, insurances. One who signs a policy of insurance, by
which he becomes an insurer.
2. By this act he places himself as to his responsibility, in the place
of the insured. He may cause a re-insurance (q. v.) to be made for his benefit;
and it is his duty to act with good faith, and, without quibbling, to pay all
just demands against him for losses. Marsh. Ins. 45,
UNDIVIDED. That which is held by the same title by two or more
persons, whether their rights are equal, as to value or quantity, or unequal.
2. Tenants in common, joint-tenants, and partners, hold an undivided
right in their respective properties, until partition has been made. The rights
of each owner of an undivided thing extends over the whole and every part of
it, totum in toto, et totum in qualibet parte. Vide Partition; Per my et per
UNICA TAXATIO, practice. The ancient language of a special award
of venire, where of several defendants, one pleads, and one lets judgment go by
default, whereby the jury, who are to try and assess damages on the issue, are
also to assess damages against the defendant suffering judgment by default.
Lee's Dict. h. t.
UNILATERAL CONTRACT, civil law. When the party to whom an
engagement is made, makes no express agreement on his part, the contract is
called uni-lateral, even in cases where the law attaches certain obligations to
his acceptance. Civ. Code of Lo. art. 1758. Code Nap. 1103. A loan of money,
and a loan for use, are of this kind. Poth. Obl. part 1, c. 1, s. 1, art. 2;
Lee. Elemen. §781.
UNINTELLIGIBLE. That which cannot be understood.
2. When a law, a contract, or will, is unintelligible, it has no effect
whatever. Vide Construction, and the authorities there referred to.
UNIO PROLIUM. A species of adoption used among the Germans; it
signifies union of descent. It takes place when a widower, having children,
marries a widow, who also has children. These parents then agree that the
children of both marriages shall have the rights to their succession, as those
which may be the fruits of their marriage. Lec. Elem. §187.
UNION. By this word is understood the United States of America;
as, all good citizens will support the Union.
UNITED STATES OF AMERICA. The name of this country. The United
States, now thirty-one in number, are Alabama, Arkansas, Connecticut, Delaware,
Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New
Jersey, New York North Carolina, Ohio, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Texas, Vermont, Virginia, Wisconsin, and California.
2. The territory of which these states are composed was at one time
dependent generally on the crown of Great Britain, though governed by the local
legislatures of the country. It is not within the plan of this work to give a
history of the colonies; on this subject the reader is referred to Kent's Com.
sect. 10; Story on the Constitution, Book 1; 8 Wheat. Rep. 543; Marshall, Hist.
3. The neglect of the British government to redress grievances which
had been felt by the people, induced the colonies to form a closer connexion
than their former isolated state, in the hopes that by a union they might
procure what they had separately endeavored in vain, to obtain. In 1774,
Massachusetts recommended that a congress of the colonies should be assembled
to deliberate upon the state of public affairs; and on the fourth of September
of the following year, the delegates to such a congress assembled in
Philadelphia. Connecticut, Delaware, Maryland, Massachusetts, New Hampshire,
New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South
Carolina, and Virginia, were represented by their delegates; Georgia alone was
not represented. This congress, thus organized, exercised de facto and de jure,
a sovereign authority, not as the delegated agents of the governments de facto
of the colonies, but in virtue of the original powers derived from the people.
This, which was called the revolutionary government, terminated only when
superseded by the confederated government under the articles of confederation,
ratified in 1781. Serg. on the Const. Intr. 7, 8.
4. The state of alarm and danger in which the colonies then stood
induced the formation of a second congress. The delegates, representing all the
states, met in May, 1775. This congress put the country in a state of defence,
and made provisions for carrving on the war with the mother country; and for
the internal regulations of which they were then in need; and on the fourth day
of July, 1776, adopted and issued the Declaration of Independence. (q. v.) The
articles of confederation, (q. v.) adopted on the first day of March, 1781, 1
Story on the Const. §225; 1 Kent's Comm. 211, continued in force until the
first Wednesday in March, 1789, when the present constitution was adopted. 5
5. The United States of America are a corporation endowed with the
capacity to sue and be sued, to convey and receive property. 1 Marsh. Dec. 177,
181. But it is proper to observe that no suit can be brought against the United
States without authority of law.
6. The states, individually, retain all the powers which they possessed
at the formation of the constitution, and which have not been given to
congress. (q. v.)
7. Besides the states which are above enumerated, there are various
territories, (q. v.) which are a species of dependencies of the United States.
New states may be admitted by congress into this union; but no new state shall
be formed or erected within the jurisdiction of any other state, nor any state
be formed by the junction of two or more states, or parts of states, without
the consent of the legislatures of the states concerned, as well as of
congress. Const. art. 4, s. 3. And the United States shall guaranty to every
state in this union, a republican form of government. Id. art. 4, s. 4. See the
names of the several states; and Constitution of the United States.
UNITY, estates. An agreement or coincidence of certain qualities
in the title of a joint estate or an estate in common.
2. In a joint estate there must exist four unities; that of interest,
for a joint-tenant cannot be entitled to one period of duration or quantity of
interest in lands, and the other to a different; one cannot be tenant for life,
and the other for years: that of title, and therefore their estate must be
created by one and, the same act; that of time, for their estates must be
vested at one and the same period, as well as by one and the same title; and
lastly, the unity of possession: hence joint-tenants are seised per my et per
tout, or by the half or moiety and by all: that is, each of them has an entire
possession, as well of every parcel as of the whole. 2 Bl. Com. 179-182; Co.
3. Coparceners must have the unities of interest, title, and
4. In tenancies in common, the unity of possession is alone required. 2
Bl. Com. 192; 2 Bouv. Inst. n. 1861-83. Vide Estate in Common; Estate in
Joint-tenancy; Joint-tenants; Tenant in Common; Tenants, Joint.
UNITY OF POSSESSION. This term is used to designate the
possession by one person of several estates or rights. For example, a right to
an estate to which an easement is attached, or the dominant estate, and to an
estate which an easement encumbers, or the servient estate, in such case the
easement is extinguished. 3 Mason, Rep. 172; Poph. 166; Latch, 153; and vide
Cro. Jac. 121. But a distinction has been made between a thing that has being
by prescription, and one that has its being ex jure naturae; in the former case
unity of possession will extinguish the easement; in the latter, for example,
the case of a water course, the unity will not extinguish it. Poth. 166.
2. By the civil code of Louisiana, art. 801, every servitude is
extin-guished, when the estate to which it is due, and the estate owing it, are
united in the same hands. But it is necessary that the whole of the two estates
should belong to the same proprietor; for if the owner of one estate only
acquires the other in part or in common with another person, confusion does not
take effect. Vide Merger.
UNIVERSAL LEGACY. A term used among civilians. An universal
legacy is a testamentary disposition, by which the testator gives to one or
several persons the whole of the property which he leaves at his decease. Civil
Code of Lo. art. 1599; Code Civ. art. 1003; Poth. Donations testamentaires, c.
2, sect. 1, §2.
UNIVERSAL PARTNERSHIP. The name of a specie's of partnership by
which all the partners agree to put in common all their property, universorum
bonorum, not only what they then have, but also what they shall acquire. Poth.
Du Contr. de Societe, n. 29.
2. In Louisiana, universal partnerships are allowed, but properly which
may accrue to one of the parties, after entering into the partnership, by
donation, succession, or legacy, does not become common stock, and any
stipulation to that effect, previous to the obtaining the property aforesaid,
is void. Civ. Code, art. 2800.
UNIVERSITY. The name given to certain societies or corporations
which are seminaries of learning where youth are sent to finish their
education. Among the civilians by this term is understood a corporation.
UNJUST. That which is done against the perfect rights of
another; that which is against the established law; that which is opposed to a
law which is the test of right and wrong. 1 Toull. tit. prel. n. 5; Aust. Jur.
276, n.; Hein. Lec. El. §1080.
UNKNOWN. When goods have been stolen from some person unknown,
they may be so described in the indictment; but if the owner be really known,
an indictment alleging the property to belong to some person unknown is
improper. 2 East's P. C. 651 1 Hale, P. C. 512; Holt's N. P. C. 596 S. C. 3
Engl. Common Law Rep. 191; 8 C. & P. 773. Vide Indictment; Quidam.
UNLAWFUL. That which is contrary to law.
2. There are two kinds of contracts which are unlawful; those which are
void, and those which are not. When the law expressly prohibits the transaction
in respect of which the agreement is entered into and declares it to be void,
it is absolutely so. 3 Binn. R. 533. But when it is merely prohibited, without
being made void, although unlawful, it is not void. 12 Serg. & Rawle, 237;
Chitty, Contr. 230; 23 Amer. Jur. 1 to 23; 1 Mod. 35; 8 East, R. 236, 237; 3
Taunt. R. 244; Hob. 14. Vide Condition; Void.
UNLAWFUL ASSEMBLY, crim. law. A disturbance of the public peace
by three or more persons who meet together with an intent mutually to assist
each other in the execution of some unlawful enterprise of a private nature,
with force and violence; if they move forward towards its execution, it is then
a rout (q. v.) and if they actually execute their design, it amounts to a riot.
(q. v.) 4 Bl. Com. 140; 1 Russ. on Cr. 254; Hawk. c. 65, s. 9; Com. Dig.
Forcible Entry, D 10; Vin. Abr. Riots, &c., A.
UNLAWFULLY, pleadings. This word is frequently used in
indictments in the description of the offence; it is necessary when the crime
did not exist at common law, and when a statute, in describing an offence which
it creates, uses the word, 1 Moody, Cr. Cas. 339; but it is unnecessary
whenever the crime existed at common law, and is manifestly illegal. 1 Chitty,
Crim. Law, *241; Hawk. B. 2, c. 95, s. 96; 2 Roll. Ab. 82; Bac. Abr.
Indictment, G 1 Cro. C. C. 38, 43.
UNLIQUIDATED DAMAGES. Such damages, as are unascertained. In
general such damages cannot be set-off. No interest will be allowed on
unliquidated damages. 1 Bouv. Inst. n. 1108. See Liquidated, Liquidated
UNQUES, law French. Yet. This barbarous word is frequently used in
pleas as, Ne unques executor, Ne unquas guardian, Ne unques accouple; and the
UNSOUND MIND; UNSOUND MEMORY. These words have been adopted in
several statutes, and sometimes indiscriminately used to signify, not only
lunacy, which is periodical madness, but also a permanent adventitious insanity
as distinguished from idiocy. 1 Ridg. Parl. Cases, 518; 3 Atk. 171.
2. The term unsound mind seems to have been used in those statutes in
the same sense as insane; but they have been said to import that the party was
in some such state as was contradistinguished from idiocy and from lunacy, and
yet such is made him a proper subject of a commission to inquire of idiocy and
lunacy. Shelf. on Lun. 5; Ray, Med. Jur. Prel. §8; Hals. Med. Jur. 336; 8
Ves. 66; 19 Ves. 286; 1 Beck's Med. Jur. 573; Coop. Ch. Cas. 108; 12 Ves. 447;
2 Mad. Ch. Pr. 731, 732.
UNSOUNDNESS. Vide Crib-biting; Roaring; Soundness.
UNWHOLESOME FOOD. Food not fit to be eaten; food which, if
eaten, would be injurious.
2. Although the law does not in general consider a sale to be a
warranty or goodness of the quality of a personal chattel, yet it is otherwise
with regard to food and liquor when sold for consumption. 1 Roll. Ab. 90, pl. 1
UPLIFTED HAND. When a man accused of a crime is arraigned, he is
required to raise his hand, probably in order to identify the person who
pleads. Perhaps for the same reason when a witness adopts a particular mode of
taking an oath, as when he does not swear upon the gospel, but upon Almighty
God, he is requested to hold up his hand.
URBAN. Relating to a city; but in a more general sense it
signifies relating to houses.
2. It is used in this latter sense in the civil code of Louisiana,
articles 706 and 707. All servitudes are established either for the use of
houses or for the use of lands. Those of the first kind are called urban
servitudes, whether the buildings to which they are due be situated in the city
or in the country. Those of the second kind are called rural servitudes.
3. The principal kinds of urban servitudes are the following: the right
of support; that of drip; that of drain, or of preventing the drain, that of
view or of lights, or of preventing the view or lights from being obstructed:
that of raising buildings or walls, or of preventing them from being raised
that of passage and that of drawing water. Vide 3 Toull. p. 441; Poth. Introd.
au tit. 13 de la Coutume d'Orleans, n. 2; Introd. Id. n. 2.
USAGE. Long and uniform practice. In its most extensive meaning
this term includes custom and prescription, though it differs from them in a
narrower sense, it is applied to the habits, modes, and course of dealing which
are observed in trade generally, as to all mercantile transactions, or to some
particular branches of trade.
2. Usage of trade does not require to be immemorial to establish it; if
it be known, certain, uniform, reasonable, and not contrary to law, it is
sufficient. But evidence of a few instances that such a thing has been done
does not establish a usage. 3 Watts, 178; 3 Wash. C. C. R. 150; 1 Gallis. 443;
5 Binn. 287; 9 Pick. 426; 4 B. & Ald. 210; 7 Pet. 1; 2 Wash. C. C. R. 7.
3. The usages of trade afford ground upon which a proper construction
may be given to contracts. By their aid the indeterminate intention of parties
and the nature and extent of their contracts arising from mere implications or
presumptions, and act of an equivocal character may be ascertained; and the
meaning of words and doubtful expressions may become known. 2 Mete. 65; 2 Sumn.
569; 2 G. & J. 136; 13 Pick. 182; Story on Ag. §77; 2 Kent, Com. 662,
3d ed.; 5 Wheat. 326; 2 Car. & P. 525; 3 B. & Ald. 728; Park. on Ins.
30; 1 Marsh. Ins. 186, n. 20; 1 Caines, 45 Gilp. 356, 486; 1 Edw. Ch. R. 146; 1
N. & M. 519; 15 Mass. 433; 1 Rill, R. 270; Wright, R. 573; Pet. C. C. R.
230; 5 Hamm. 436 6 Pet. 715; 2 Pet. 148; 6 Porter, 123 1 Hall, 612; 9 Mass.
155; 9 Wheat. 582 11 Wheat. 430; 1 Pet. 25, 89.
4. Courts will not readily adopt these usages, because they are not
unfrequently founded in mistake. 2 Sumn. 377. See 3 Chitt. Pr. 55; Story,
Confl. of Laws, §270; 1 Dall. 178; Vaugh. 169, 383; Bouv. Inst. Index, h.
USANCE, commercial law. The term usance comes from usage, and
signifies the time which by usage or custom is allowed in certain countries,
for the payment of a bill of exchange. Poth. Contr. du Change, n. 15.
2. The time of one, two or three mouths after the date of the bill,
according to the custom of the places between which the exchanges run.
3. Double or treble is double or treble the usual time, and half usance
is half the time. Where it is necessary to divide a month upon a half usance,
which is the case when the usance is for one month or three, the division,
notwithstanding the difference in the length of the months, contains fifteen
USE, estates. A confidence reposed in another, who was made
tenant of the land or terre tenant, that he should dispose of the land
according to the intention of the cestui que use, or him to whose use it was
granted, and suffer him to take the profits. Plowd. 352; Gilb. on Uses, 1; Bac.
Tr. 150, 306; Cornish on Uses, 1 3; 1 Fonb. Eq. 363; 2 Id. 7; Sanders on Uses,
2; Co. Litt. 272, b; 1 Co. 121; 2 Bl. Com. 328; 2 Bouv. Inst. n. 1885, et seq.
2. In order to create a use, there must always be a good Consideration;
though, when once raised, it may be passed by grant to a stranger, without
consideration. Doct. & Stu. , Dial. ch. 22, 23; Rob. Fr. Conv. 87, n.
3. Uses were borrowed from the fidei commissum (q. v.) of the civil
law; it was the duty of a Roman magistrate, the praetor fidei commissarius,
whom Bacon terms the particular chancellor for uses, to enforce the observance
of this confidence. Inst. 2, 23, 2.
4. Uses were introduced into England by the ecclesiastics in the reign
of Edward Ill or Richard II, for the purpose of avoiding the statutes of
mortmain; and the clerical chancellors of those times held them to be fidei
commissa, and binding in conscience. To obviate many inconveniencies and
difficulties, which had arisen out of the doctrine and introduction of uses,
the statute of 274 Henry VIII, c. 10, commonly called the statute of uses, or
in conveyances and pleadings, the statute for transferring uses into
possession, was passed. It enacts, that "when any person shall be seised of
lands, &c., to the use, confidence or trust of any other person or body
politic, the person or corporation entitled to the use in fee simple, fee tail,
for life, or years, or otherwise, shall from thenceforth stand and be seised or
possessed of the land, &c., of and in the like estate as they have in the
use, trust or confidence; and that the estates of the persons so seised to the
uses, shall be deemed to be in him or them that have the use, in such quality,
manner, form and condition, as they had before in the use." The statute thus
executes the use; that is, it conveys the possession to the use, and transfers
the use to the possession; and, in this manner, making the cestui que use
complete owner of the lands and tenements, as well at law as in equity. 2 Bl.
Com. 333; 1 Saund. 254, note 6.
5. A modern use has been defined to be an estate of right, which is
acquired through the operation of the statute of 27 Hen. VIII., c. 10; and
which, when it may take effect according to the rules of the common law, is
called the legal estate; and when it may not, is denominated a use, with a term
descriptive of its modification. Cornish on Uses, 35.
6. The common law judges decided, in the construction of this statute,
that a use could not be raised upon a use; Dyer, 155 A; and that on a feoffment
to A and his heirs, to the use of B and his heirs, in trust for C and his
heirs, the statute executed only the first use, and that the second was a mere
nullity. The judges also held that, as the statute mentioned only such persons
as were seised to the use of others, it did not extend to a term of years, or
other chattel interests, of which a termor is not seised but only possessed.
Bac. Tr. 336; Poph. 76; Dyer, 369; 2 Bl. Com. 336; The rigid literal
construction of the statute by the courts of law again opened the doors of the
chancery courts. 1 Madd. Ch. 448, 450.
USE, civil law. A right of receiving so much of the natural
profits of a thing as is necessary to daily sustenance; it differs from
usufruct, which is a right not only to use but to enjoy. 1 Browne's Civ. Law,
184; Lecons Elem. du Dr. Civ. Rom. §414, 416.
USE AND OCCUPATION. When a contract has been made, either by express or
implied agreement, for the use of a house or other real estate, where there was
no amount of rent fixed and ascertained, the landlord can recover a reasonable
rent in an action of assumpsit for use and occupation. 1 Munf. R. 407; 2 Aik.
R. 252; 7 J. J. Marsh. 6; 4 Day, R. 228; 13 John. R. 240; 13 John. R. 297; 4 H.
& M. 161; 15 Mass. R. 270; 2 Whart. R. 42; 10 S. & R. 251.
2. The action for use and occupation is founded not on a privity of
estate, but on a privity of contract; 3 S. & R. 500; C. & N. 19;
therefore it will not lie where the possession is tortious. 2 N. & M. 156;
3 S. & R. 500; 6 N. H. Rep. 298; 6 Ham. R. 371; 14 Mass. R. 95. See Arch.
L. & T. 148.
USEFUL. That which may be put into beneficial practice.
2. The patent act of congress of July 4, 1836, sect. 6, in describing
the subjects of patents, mentions "new and useful art," and "new and useful
improvement." To entitle the inventor to a patent, his invention must, to a
certain extent, be beneficial to the community, and not be for an unlawful
object, or frivolous, or insignificant. 1 Mason, 182; 1 Pet. C. C. R. 322; 1
Bald. 303; 14 Pick. 217; Paine, 203.
USHER. This word is said to be derived from a huissier, and is
the name of an inferior officer in some English courts of law Archb. Pr.
USUCAPTION, civil law. The manner of acquiring property in
things by the lapse of time required by law.
2. It differs from prescription, which has the same sense, and means,
in addition, the manner of acquiring and losing, by the effect of time
regulated by law, all sorts of rights and actions. Merl. Repert. mot
Prescription, tom. xii. page 671; Ayl. Pand. 320; Wood's Inst. Civ. Law, 165;
Lecons Elem. du Dr. Rom. §437; 1 Browne's Civ. Law, 264, n.; vattel, ii.
2, c. 2, §140.
USUFRUCT, civil law. The right of enjoying a thing, the property
of which is vested in another, and to draw from the same all the profit,
utility and advantage which it may produce, provided it be without altering the
substance of the thing.
2. The obligation of not altering the substance of the thing, however,
takes place only in the case of a complete usufruct.
3. Usufructs are of two kinds; perfect and imperfect. Perfect usufruct,
which is of things which the usufructuary can enjoy without altering their
substance, though their substance may be diminished or deteriorated naturally
by time or by the use to which they are applied; as a house, a piece of land,
animals, furniture and other movable effects. Imperfect or quasi usufruct,
which is of things which would be useless to the usufructuary if be did not
consume and expend them, or change the substance of them, as money, grain,
liquors. Civ. Code of Louis. art. 525, et seq.; 1 Browne's Civ. Law, 184; Poth.
Tr. du Douaire, n. 194; Ayl. Pand. 319; Poth. Pand. tom. 6, p. 91; Lecons El.
du Dr. Civ. Rom. 414 Inst. lib. 2, t. 4; Dig. lib. 7, t. 1, 1. 1 Code, lib. 3,
t. 33; 1 Bouv. Inst. Theolo. ps. 1, c. 1, art. 2, p. 76.
USUFRUCTUARY, civil law. One who has the right and enjoyment of
2. Domat, with his usual clearness, points out the duties of the
usufructuary, which are, 1. To make an inventory of the things subject to the
usu-fruct, in the presence of those having an interest in them. 2. To give
secur-ity for their restitution; when the usufruct shall be at an end. 3. To
take good care of the things subject to the usufruct. 4. To pay all taxes, and
claims which arise while the thing is in his possession, as a ground-rent. 5.
To keep the thing in repair at his own expense. Lois Civ. liv. 1, t. 11, s. 4.
See Estate for life.
USURPATION, torts. The unlawful assumption of the use of
property which belongs to another; an interruption or the disturbing a man in
his right and possession. Toml. Law Dict. h. t.
2. According to Lord Coke, there are two kinds of usurpation. 1. When a
stranger, without right, presents to a church, and his clerk is admitted; and,
2. When a subject uses a franchise of the king without lawful authority. Co.
Litt. 277 b.
USURPATION, government. The tyrannical assumption of the
government by force contrary to and in violation of the constitution of the
USURPED POWER, insurance. By an article of the printed proposals
which are considered as making a part of the contract of insurance it is
provided, that "No loss of damage by fire, happening by any invasion, foreign
enemy, or any military or usurped power whatsoever will be made good by this
company." Lord Chief J. Wilmot, Mr. Justice Clive, and Mr. Justice Bathurst,
against the opinion of Mr. Justice Gould, determined that the true import of
the words usurped power in the proviso, was an invasion, from abroad, or an
internal rebellion, where armies are drawn up against each other, when the laws
are silent, and when the firing of towns becomes unavoidable; but that those
words could not mean the power of a common mob. 2 Marsh. Ins. 390.
USURPER, government. One who assumes the right of government by
force, contrary to and in violation of the constitution of the country. Toull.
Dr. Civ. n. 32. Vide Tyranny,
USURY, contracts. The illegal profit which is required and
received by the lender of a sum of money from the borrower for its use. In a
more extended and improper sense, it is the receipt of any profit whatever for
the use of money: it is only in the first of these senses that usury will be
2. To constitute a usurious contract the following are the requisites:
1. A loan express or implied. 2. An agreement that the money lent shall be
returned at all events. 3. Not only that the money lent shall be returned, but
that for such loan a greater interest than that fixed by law shall be paid.
3. - 1. There must be a loan in contemplation of the parties; 7 Pet. S.
C. Rep. 109, 1 Clarke R. 252; and if there be a loan, however disguised, the
contract will be usurious, if it be so in other respects. Where a loan was made
of depreciated bank notes to be repaid in sound funds, to enable the borrower
to pay a debt he owed dollar for dollar, it was considered as not being
usur-ious. 1 Meigs, R. 585. The bona fide sale of a note, bond or other
security at a greater discount than would amount to legal interest, is not per
se, a loan, although the note may be endorsed by the seller, and he remains
responsible. 9 Pet. S. C. Rep. 103; 1 Clarke, R. 30. But, if a note, bond; or
other security be made with a view to evade the laws of usury, and afterwards
sold for a less amount than the interest, the transaction will be considered a
loan; 2 Johns. Cas. 60; 3 Johns. Cas. 66; 15 Johns. R. 44 2 Dall. 92; 12 Serg.
& Rawle, 46 and a sale of a man's own note, endorsed by himself, will, be
considered a loan. lt is a general rule that a contract, which, in its
inception, is unaffected by usury, can never be invalidated by any subsequent
usurious transaction. 7 Pet. S. C. Rep. 109. On the contrary, when the contract
was originally usurious, and there is a substitution by a new contract, the
latter will generally be considered usurious. 15 Mass. R. 96.
4. - 2. There must be a contract for the return of the money at all
events; for if the return of the principal with interest, or of the principal
only, depend upon a contingency, there can be no usury; but if the contingency
extend only to interest, and the principal be beyond the reach of hazard, the
lender will be guilty of usury, if he received interest beyond the amount
allowed by law. As the principal is put to hazard in insurances, annuities and
bottomry, the parties may charge and receive greater interest than is allowed
by law in common cases, and the transaction will not be usurious.
5. - 3. To constitute usury the borrower must not only be obliged to
return the principal at all events, but more than lawful interest: this part of
the agreement must be made with full consent and knowledge of the contracting
parties. 3 Bos. & Pull, 154. When the contract is made in a foreign country
the rate of interest allowed by the laws of that country may be charged, and it
will not be usurious, although greater than the amount fixed by law in this.
Story, Confl. of Laws, §292. Vide, generally, Com. Dig. h. t.; Bac. Ab. h.
t.; 8 Com. Dig. h. t.; Lilly's Reg. h. t.; Dane's Ab. h. t.; Petersdorff's Ab.
h. t.; Vin. Ab. h. t.; 2 Bl. Com. 454; Comyn on Usury, passim; 1 Pt. S. C Rep.
Index, h. t.; 1 Supp. to Yes. jr. 307, 337; Yelv. 47; 1 Ves. jr. 527; 1 Saund
295, note 1; Poth. h. t.; and the article Anatocism; Interest.
UTERINE BROTHER, domestic relations. A brother by the mother's
UTI POSSIDETIS. This phrase, which means as you possess, is used
in international law to signify that the parties to a treaty are to retain
possession of what they have acquired by force during the war.
TO UTTER, crim. law. To offer, to publish.
2. To utter and publish a counterfeit note is to assert and declare,
directly or indirectly, by words or actions, that the note offered is good. It
is not necessary that it should be passed in order to complete the offence of
uttering. 2. Binn. R. 338, 9. It seems that reading out a document, although
the party refuses to show it, is a sufficient uttering. Jebb's Ir. Cr. Cas.
282. Vide East, P. C. 179; Leach, 251; 2 Stark. Ev. 378 1 Moody, C. C. 166; 2
East, P. C. 974 Russ. & Ry. 113; 1 Phil. Ev. Index, h. t.; Roscoe's Cr. Ev.
301. The merely showing a false instrument with intent to gain a credit when
there was no intention or attempt made to pass it, it seems would not amount to
an uttering. Russ. & Ry. 200. Vide Ringing the charge.
UTTER BARRISTER, English law, Those barristers who plead without
the bar, and are distinguished from benchers, or those who have been readers
and who are allowed to plead within the bar, as the king's counsel are. The
same as ouster barrister. See Barrister. civil law. A woman lawfully