WADSET, Scotch law. A right, by which lands, or other heritable subjects, are impignorated by the proprietor to his creditor in security of his debt; and, like other heritable rights, is perfected by seisin.
2. Wadsets, by the present practice, are commonly made out in the form of mutual contracts, in which one party sells the land, and the other grants, the right of reversion. Ersk. Pr. L. Scot., B. 2, t. 8, s. 1, 2.
3. Wadsets are proper or improper. Proper, where the use of the land shall go for the use of the money. Improper, where the reverser agrees to make up the deficiency; and where it amounts to more, the surplus profit of the land is applied to the extinction of the principal. Id. B. 2, t. 8, s. 12, 13.
WADSETTER, Scotch law. A creditor to whom a wadset is made.
TO WAGE, contracts. To give a pledge or security for the performance of anything; as to wage or gage deliverance; to wage law, &c. Co. Litt. 294. This word is but little used.
WAGER OF BATTEL. A superstitious mode of trial which till lately disgraced the English law.
2. The last case of this kind was commenced in the year 1817, but not procceded in to judgment; and at the next session of the British parliament an act was passed to abolish appeals of murder, treason, felony or other offences, and wager of battel, or joining issue or trial by battel in writs of right. 59 Geo. III. c. 46. For the history of this species of trial the reader is referred to 4 Bl. Com. 347; 3 Bl. Com. 337; Encyclopedie, Gage de Bataille; Steph. Pl. 122, and App. note 35.
WAGER OF LAW, Engl. law. When an action of debt is brought against a man upon a simple contract, and the defendant pleads nil debit, and concludes his plea with this formula, "And this he is ready to defend against him the said A B and his suit, as the court of our lord the king here shall consider," &c., he is said to wage his law. He is then required to swear he owes the plaintiff nothing, and bring eleven compurgators who will swear they believe him. This mode of trial, is trial by wager of law.
2. The wager of law could only be had in actions of debt on simple contract, and actions of detinue; in consequence of this right of the defendant, now actions on simple contracts are brought in assumpsit, and instead of bridging detinue, trover has been substituted.
3. If ever wager of law had any existence in the United States, it is now completely abolished. 8 Wheat. 642. Vide Steph. on Plead. 124, 250, and notes, xxxix.; Co. Entr. 119; Mod. Entr. 179; Lilly's Entr. 467; 3 Ch it. Pl. 497; 13 Vin. Ab. 58; Bac. Ab. h. t.; Dane's Ab. Index, h. t. For the origin of this form of trial, vide Steph. on Pl. notes xxxix; Co. Litt. 294, 5 3 Bl. Com. 341.
WAGER POLICY, contracts. One made when the insured has no insurable interest.
2. It has nothing in common with insurance but the name and form. It is usually in such terms as to preclude the necessity of inquiring into the interest of the insured; as, "interest or no interest," or, "without further proof of interest than the policy."
3. Such contracts being against the policy of the law are void. 1 Marsh. Ins. 121 Park on Ins. Ind. h. t.; Wesk. Ins. h. t.; See 1 Sumn. 451; 2 Mass. 1 3 Caines, 141.
WAGERS. A wager is a bet a contract by which two parties or more agree that a certain sum of money, or other thing, shall be paid or delivered to one of them, on the happening or not happening of an uncertain event.
2. The law does not prohibit all wagers. 1 Browne's Rep. 171 Poth. du Jeu, n. 4.
3. To restrain wagers within the bounds of justice the following conditions must be observed: 1. Each of the parties must have the right to dispose of the thing which is the object of the wager. 2. Each must give a perfect and full consent to the contract, 3. There must he equality between the parties. 4. There must be good faith between them. 5. The wager must not be forbidden by law. Poth. du 4. In general, it seems that a wager is legal and maybe enforced in a court of law 3 T. R. 693, if it be not, 1st, Contrary to public policy, or immoral; or if it do not in some other respect tend to the detriment of the public. 2d. If it do not affect the interest, feelings, or character of a third person.
5. - 1. Wagers on the event of an election laid before the poll is open; 1 T. R. 56. 4 Johns. 426; 4 Harr. & McH. 284; or after it is closed; 8 Johns. 454, 147; 2 Browne's Rep. 182; are unlawful. And wagers are against public policy if they are in restraint of marriage; 10 East, R. 22; made as to the mode of playing an illegal game; 2 H. Bl. 43; 1 Nott & McCord, 180; 7 Taunt. 246; or on an abstract speculative question of law or judicial practice, not arising out of circumstances in which the parties have a real interest. 12 East, R. 247, and Day's notes, sed vide Cowp. 37.
6. - 2. Wagers as to the sex of an individual Cowp. 729; or whether an unmarried woman had borne or would have a child; 4 Campb. 152, are illegal; as unnecessarily leading to painful and indecent considerations. The supreme court of Pennsylvania have laid it down as a rule, that every bet about the age, or height, or weight, or wealth, or circumstances, or situation of any person, is illegal; and this whether the subject of the bet be man, woman, or child, married or single, native or foreigner, in this country or abroad. 1 Rawle, 42. And it seems that a wager between two coach-proprietors, whether or not a particular person would go by one of their coaches is illegal, as exposing that person to inconvenience. 1 B. & A. 683.
7. In the case even of a legal wager, the authority of a stakeholder, like that of an arbitrator, may be rescinded by either party before the event happens. And if after his authority has been countermanded, and the stake has been demanded, he refuse to deliver it, trover or assumpsit for money had and received is maintainable. 1 B. & A. 683. And where the wager is in its nature illegal, the stake may be recovered, even after the event, on demand made before it has been paid over. 4 Taunt. 474; 5 T. R. 405; sed vide 12 Johns. 1. See further on this subject, 7 Johns. 434; 11 Johns. 23; 10 Johns. 406,468; 12 Johns. 376; 17 Johns. 192; 15 Johns. 5; 13 Johns. 88; Mann. Dig. Gaming; Harr. Dig. Gaining; Stakeholder.
WAGES, contract. A compensation given to a hired person for his or her services. As to servants wages, see Chitty, Contr. 171 as to sailors' wages, Abbott on Shipp. 473; generally, see 22. Vin. Abr. 406; Bac. Abr. Master, &c., H; Marsh. Ins. 89; 2 Lill. Abr. 677; Peters' Dig. Admiralty, pl. 231, et seq.
WAIFS. Stolen goods waived or scattered by a thief in his flight in order to effect his escape.
2. Such goods by the English common law belong to the king. 1 Bl. Com. 296; 5 Co. 109; Cro. Eliz. 694. This prerogative has never been adopted here against the true owner, and never put in practice against the finder, though against him there would be better reason for adopting it. 2 Kent, Com. 292. Vide Com. Dig. h. t.; 1 Bro. Civ. Law, 239, n.
WAIVE. A term applied to a woman as outlaw is applied to a man. A man is an outlaw, a woman is a waive. T. L., Crabb's Tech. Dict. h. t.
To WAIVE. To abandon or forsake a right.
2. To waive signifies also to abandon without right; as "if the felon waives, that is, leaves any goods in his flight from those who either pursue him, or are apprehended by him so to do, he forfeits them, whether they be his own goods, or goods stolen by him." Bac. Ab . Forfeiture, B.
WAIVER., The relinquishment or refusal to accept of a right.
2. In practice it is required of every one to take advantage of his rights at a proper time and, neglecting to do so, will be considered as a waiver. If, for example, a defendant who has been misnamed in the writ and declaration, pleads over, he cannot afterwards take advantage of the error by pleading in abatement, for his plea amounts to a waiver.
3. In seeking for a remedy the party injured may, in some instances, waive a part of his right, and sue for another; for example, when the defendant has committed a trespass on the property of the plaintiff, by taking it away, and afterwards he sells it, the injured party may waive the trespass, and bring an action of assumpsit for the recovery of the money thus received by the defendant. 1 Chit. Pl. 90.
4. In contracts, if, after knowledge of a supposed fraud, surprise or mistake, a party performs the agreement in part, he will be considered as having waived the objection. 1 Bro. Parl. Cas. 289.
5. It is a rule of the civil law, consonant with reason, that any one may renounce or waive that which has been established in his favor: Regula est juris antique omnes licentiam habere his quae pro se introducta sunt, renunciare. Code 2, 3, 29. As to what will amount to a waiver of a forfeiture, see 1 Conn. R. 79; 7 Conn. R. 45; 1 Jo Cas. 125; 8 Pick. 292; 2 N. H, Rep. 120 163; 14 Wend. 419; 1 Ham. R. 21. Vide Verdict.
WAKENING, Scotch law. The revival of an action.
2. An action is said to sleep, when it lies over, not insisted on for a year in which case it is suspended. 4, t. 1, n. 33. With us a revival is by scire facias. (q. v.)
WALL. A building or erection so well known as to need no definition. In general a man may build a wall on any part of his estate, to any height he may deem proper, and in such form as may best accommodate him; but he must take care not to erect a wall contrary to the local regulations, nor in such a manner as to be injurious to his neighbors. See Dig. 50, 16, 157. Vide Party Wall.
WANTONNESS, crim. law. A licentious act by one man towards the person of another without regard to his rights; as, for example, if a man should attempt to pull off another's hat against his will in order to expose him to ridicule, the offence would be an assault, and if he touched him it would amount to a battery. (q. v.)
2. In such case there would be no malice, but the wantonness of the act would render the offending party liable to punishment.
WAPENTAKE. An ancient word used in England as synonymous with hundred. (q. v.) Fortesc. De Laud. ch. 24.
WAR. A contention by force; or the art of paralysing the forces of an enemy.
2. It is either public or private. It is not intended here to speak of the latter.
3. Public war is either civil or national. Civil war is that which is waged between two parties, citizens or members of the same state or nation. National war is a contest between two or more independent nations) carried on by au-thority of their respective governments.
4. War is not only an act, but a state or condition, for nations are said to be at war not only when their armies are engaged, so as to be in the very act of contention, but also when, they have any matter of controversy or dispute subsisting between them which they are determined to decide by the use of force, and have declared publicly, or by their acts, their determination so to decide it.
5. National wars are said to be offensive or defensive. War is offensive on the part of that government which commits the first act of violence; it is defensive on the part of that government which receives such act; but it is very difficult to say what is the first act of violence. If a nation sees itself menaced with an attack, its first act of violence to prevent such attack, will be considered as defensive.
6. To legalize a war it must be declared by that branch of the government entrusted by the constitution with this power. Bro. tit., Denizen, pl. 20. And it seems it need not be declared by both the belligerent powers. Rob. Rep. 232. By the constitution of the United States, art. 1, s. 7, congress are invested with power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; and they have also the power to raise and support armies, and to provide and maintain a navy." See 8 Cranch, R. 110, 154; 1 Mason, R. 79, 81; 4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf. Inst. B. 1, c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1; Lee on Capt. c. 1; Chit. Law of Nat. 28; Marten's Law of Nat. B. 8, c. 2; Phil. Ev. Index, h., t. Dane's Ab. Index, h. i.; Com. Dig. h. t. Bac. Ab. Prerogative, D 4; Merl. Repert. mot Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, §1; Mann. Com. B. 3, c. 1.
WARD, domestic relations. An infant placed by authority of law under the care of a guardian.
2. While under the care of a guardian a ward can make no contract whatever binding upon him, except for necessaries. When the relation of guardian and ward ceases, the latter is entitled to have an account of the administration of his estate from the former. During the existence of this relation, the ward is under the subjection of his guardian, who stands in locoparentis.
WARD, a district. Most cities are divided for various purposes into districts, each of which is called a ward.
WARD, police. To watch in the day time, for the purpose of preventing violations of the law.
2. It is the duty of all police officers and constables to keep ward in their respective districts.
WARD IN CHANCERY. An infant who is under the superintendence of the chancellor.
WARDEN. A guardian; a keeper. This is the name given to various officers: as, the warden of the prison; the wardens of the port of Philadelphia; church wardens.
WARDSHIP, Eng. law. Wardship was the right of the lord over the person and estate of the tenant, when the latter was under a certain age. When a tenant by knight's service died, and his heir was under age, the lord was entitled to the custody of the person and the lands of the heir, without any account, until the ward, if a male, should arrive at the age of twenty-one years, and, if a female, at eighteen. Wardship was also incident to a tenure in socage, but in this case, not the lord, but the nearest relation to whom the inheritance could not descend, was entitled to the custody of the person and estate of the heir till he attained the age of fourteen years; at which period the wardship ceased and the guardian was bound, to account. Wardship in copyhold estates partook of that in chivalry and that guardian like the latter, he was required lib. 7, c. 9; Grand Cout. c. 33; Reg. Maj. c. 42.
WAREHOUSE. A place adapted to the reception and storage of goods and merchandise. 9 Shepl. 47.
2. The act of congress of February 25, 1799, 1 Story's Laws U. S. 565, authorizes the purchase of suitable warehouses, where goods may be unladen and deposited from any vessel which shall be subject to quarantine or other re-straint, pursuant to the health laws of any state, at such convenient place or places as the safety of the revenue and the observance of such health laws may require.
3. And the act of 2d March, 1799, s. 62, 1 Story's Laws U. S. 627, authorizes an importer of goods, instead of, securing the duties to be paid to the United States, to deposit so much of such goods as the collector may in his judgment deem sufficient security for the duties and the charges of safe keeping, for which the importer shall give his own bond; which goods shall be kept by the collector with due care, at the expense and risk of the party on whose account they have been deposited, until the sum specified, in such bond becomes due; when, if such sum shall not be paid, so much of such deposited goods shall be sold at public sale, and the proceeds, charges of safe keeping and sale being deducted, shall be applied to the payment of such sum, rendering the overplus, and the residue of the goods so deposited, if there be any, to the depositor or his representatives.
WAREHOUSEMAN. A warehouseman is a person who receives goods and merchandise to be stored in his warehouse for hire.
2. He is bound to use ordinary care in preserving such goods and merchan-dise, and his neglect to do so will render him liable to the owner. Peake, R. 114; 1 Esp. R. 315; Story, Bailm. §444; Jones' Bailm. 49, 96, 97; 7 Cowen's R. 497; 12 John. Rep. 232; 2 Wend. R. 593; 9 Wend. R. 268; 1 Stew. Rep. 284. The warehouseman's liability commences as soon as the goods arrive, and the crane of the warehouse is applied to raise them into the warehouse. 4 Esp. R. 262.
WARRANDICE, Scotch law. A clause in a charter of heritable rights by which the grantor obliges himself, that the right conveyed shall be effectual to the receiver. It is either personal or real. A warranty. Ersk. Pr. B. 2, t. 3, n. 11.
WARRANT, crim. law, Practice. A writ issued by a justice of the peace or other authorized officer, directed to a constable or other proper person, requiring him to arrest a person therein named, charged with committing some offence, and to bring him before that or some other justice of the peace.
2. It should regularly be made under the hand and seal of the justice and dated. No warrant ought to be issued except upon the oath or affirmation of a witness charging the defendant with, the offence. 3 Binn. Rep. 88.
3. The reprehensible practice of issuing blank warrants which once prevailed in England, was never adopted here. 2 Russ. on Cr. 512; Ld. Raym. 546; 1 Salk. 175; 1 H. Bl. R. 13; Doct. Pl. 529; Wood's Inst. 84; Com. Dig. Forcible Entry, D 18, 19; Id. Imprisonment, H 6,; Id. Pleader, 3 K 26; Id. Pleader, 3 M 23. Vide Search warrant.
4. A bench warrant is a process granted by a court authorizing a proper officer to apprehend and bring before it some on charged with some contempt, crime or misdemeanor. See Bench warrant.
5. A search warrant is a process issued by a competent court or officer authorizing an officer therein named or described, to examine a house or other place for the purpose of finding goods which it is alleged have been stolen. See Search warrant.
WARRANT OF ATTORNEY, practice. An instrument in writing, addressed to one or more attorneys therein named, authorizing them generally to appear in any court, or in some specified court, on behalf of the person giving it, and to confess judgment in favor of some particular person therein named, in an action of debt, and usually containing a stipulation not to bring any writ of error, or file a bill in equity, so as to delay him.
2. This general authority is usually qualified by reciting a bond which commonly accompanies it, together with the condition annexed to it, or by a written defeasance stating the terms upon which it was given, and restraining the creditor from making immediate use of it. 31. In form it is generally by deed; but it seems, it need not necessarily be so. 5 Taunt. 264.
4. This instrument is given to the creditor as a security. Possessing it, he may sign judgment and issue an execution, without its being necessary to wait the termination. of an action. Vide 14 East, R. 576; 2 T. R. 100; 1 H. Bl. 75; 1 Str 20; 2 Bl. Rep. 1133; 2 Wils. 3; 1 Chit. Rep. 707.
5. A warrant of attorney given to confess a judgment is not revocable, and, notwithstanding a revocation, judgment may be entered upon it. 2 Ld. Raym. 766, 850; 1 Salk. 87; 7 Mod. 93; 2 Esp, Rep. 563. The death of the debtor is, however, generally speaking, a revocation. Co. Litt. 62 b; 1 Vent. 310. Vide Hall's Pr. 14, n.
6. The virtue of a warrant of attorney is spent by the entry of one judgment, and a second judgment entered on the same warrant is irregular. 1 Penna. R. 245; 6 S. & R. 296: 14 S. & R. 170; Addis. R. 267; 2 Browne's R. 321, 3 Wash. C. C. R. 558. Vide, generally, 18 Eng. Com. Law Rep. 94, 96, 179, 209; 1 Salk. 402; 3 Vin. Ab. 291; 1 Sell. Pr. 374; Com. Dig. Abatement, E 1, 2; Id. Attorney, B 7, 8; 2 Archbold's Pr. 12; Bingh. on Judgments, 38; Grah. Pr. 618; l Crompt. Pr. 316; 1 Troub. & Haly's Pr. 96.
7. A warrant of attorney differs from a cognovit, actionem. (q. v.) See Metc. & Perk. Dig. Bond, IV.
WARRANTEE. One to whom a warranty is made. Touchst. 181.
WARRANTIA CHARTAE. An ancient and now obsolete writ, which was issued when a man was enfeoffed of land with warranty, and then he was sued or impleaded in assize or other action, in which he could not vouch or call to warranty.
2. It was brought by the feoffor pending the first suit against him, and had this valuable incident, that when the warrantor was vouched, and judgment passed against the tenant, the latter obtained judgment simultaneously against the warrantor, to recover other lands of equal value. Termes de la Ley, h. t.; F. N. B. 134; Dane's Ab. Index, h. t.; Rand. 141, 148, 156; 4 Leigh's R. 132; 11 S. & R. 115 Vin. Ab. h. t. Co. Litt. 100; Hob. 22, 217.
WARRANTOR. One who makes a warranty. Touchst, 181.
WARRANTY, contracts. This word has several significations, as it is applied to the conveyance and sale of lands, to the sale of goods, and to the contract of insurance.
2. - 1. The ancient law relating to warranties of land was full of subtleties and intricacies; it occupied the attention of the most eminent writers on the English law, and it was declared by Lord Coke, that the learning of warranties was one of the most curious and cunning learnings of the law; but it is now of little use even in England. The warranty was a covenant real, whereby the grantor of an estate of freehold, and his heirs, were bound to warrant the title; and either upon voucher, or judgment in, a writ of warrantia chartae, to yield other lands to the value of those from which there had been an eviction by paramount title Co. Litt. 365; Touchst.; 181 Bac. Ab. h. t.; the heir of the warrantor was bound only on condition that he had, as assets, other lands of equal value by descent.
3. Warranties were lineal and collateral.
4. Lineal, when the heir derived title to the land warranted, either from or through the ancestor who made the warranty.
5. Collateral warranty was when the heir's title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor; and it imposed upon him the obligation of giving the warrantee other lands, in case of eviction, provided he had assets. 2 Bl. Com. 301, 302.
6. The statute of 4 Anne, c. 16, annulled these collateral warrantees, which bid become a great grievance. Warranty in its original form, it is presumed, has never been known in the United States. The more plain and pliable form of a covenant has been adopted in its place and this covenant, like all other covenants, has always been held to sound in damages which after judgment may be recovered out of the personal or real estate, as in other cases. Vide 4 Kent, Com. 457; 3 Rawle's R. 67, n.; 2 Wheat-. R. 45; 9 Serg. & Rawle, 268; 11 Serg. & Rawle, 109; 4 Dall. Rep. 442; 2 Saund. 38, n. 5.
7. - 2. Warranties in relation, to the sale of personal chattels are of two kinds, express or implied.
8. An express warranty is one by which the warrantor covenants or undertakes to insure that the thing which is the subject of the. contract, is or is not as there mentioned; as, that a horse is sound; that he is not five years old.
9. An implied warranty is one which, not being expressly made, the law implies by the fact of the sale; for example, the seller is, understood to warrant the title of goods be sells, when they are in his possession at the time of the sale; Ld. Raym. 593; 1 Salk.. 210; but if they are not then in his possession, the rule of caveat emptor applies, and the buyer purchases at his risk. Cro. Jac. 197.
10. In general there is no implied warranty of the quality of the goods sold. 2 Kent, Com. 374; Co. Litt. 102, a; 2 Black Comm. 452; Bac. Abr. Action on the case E; 2 Com. Contr. 263; Dougl. 20; 2 East, 31 4; Id. 448, n.; Ross on Vend. c. 6; 1 Johns. R. 274; 4 Conn. R. 428; 1 Dall. Rep. 91; 10 Mass. R. 197; 20 Johns. Rep., 196; 3 Yeates, R. 262; 1 Pet. Rep. 317; 12 Serg. & Rawle, 181; 1 Hard. Kent. Rep. 531; 1 Murphy, Rep. 138; 2 Id. 245; 4 Haywood's Term. R. 227; 2 Caines' Rep. 48. The rule of the civil law was, that a fair price implied a warranty of title; Dig. 21, 2, 1; this rule, has been adopted in Louisiana; Code, art. .247 7; and in South Carolina. 1 Bay, R. 324; 2 Bay, R. 380 1 Const. R. 182; 2 Const. R. 353. Vide Harr. Dig. Sale, II. 8; 12 East, R. 452.
11. - 3. In the contract of insurance, there are certain warranties which are inducements to the insurer to enter into it. A warranty of this kind is a stipulation or agreement on the part of the insured, in the nature of a condition precedent. It may be affirmative; as where the insured undertakes for the truth of some positive allegation: as, that the thing insured is neutral property: or, it may be promissory; as, that the ship shall sail on or before a given day. 6 N. S. 53.
12. Warranties are also express or implied. An express warranty is a particular stipulation introduced into the written contract, by the agreement of the parties; an implied warranty is an agreement which necessarily results from the nature of the contract: as, that the ship shall be seaworthy when she sails on the voyage insured.
13. The warranty being in the nature of a condition precedent, it is to be performed by the insured, before he can demand the performance of the contract on the part of the insurer. Marsh. Inst. B. 1, c. 9. See, generally, Bouv. Inst. Index, h. t.
WARRANTY, VOUCHER TO, practice. A warranty is a contract real, annexed to lands and tenements, whereby a man is bound to defend such lands and tenements from another person; and in case of eviction by title paramount, to give him lands of equal value.
2. Voucher to warranty is the calling of such warrantor into court by the party warranted, (when tenant in a real action brought for recovery of such lands,) to defend the suit for him; Co. Litt. 101, b; Com. Dig. Voucher, A 1; Booth, 43 2 Saund. 32, n. 1; and the time of such voucher is after the deman-dant has counted. It lies in most real and mixed actions, but not in personal. Where the voucher has been made and allowed by the court, the vouchee either voluntarily appears, or there issues a judicial writ (called a summons ad warrantizandum,) commanding the sheriff to summon him. Where he, either voluntar-ily or in obedience to this writ, appears and offers to warrant the land to the tenant, it is called entering into the warranty; after which he is considered as tenant in the action, in the place of the original tenant. The deman-dant then counts against him de novo, the vouchee pleads to the new count, and the cause proceeds to issue. 2 Inst. 241 a; 2 Saund. 32, n. 1; Booth, 46.
3. Voucher of warranty is, in the present rarity of real actions, unknown in practice. Steph. Plead. 85.
WASTE. A spoil or destruction houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee simple or fee tail 2 Bl. Comm. 281.
2. The doctrine of waste is somewhat different in this country from what it is in England. It is adapted to our circumstances. 3 Yeates, R. 261; 4 Kent, Com. 76; Walk. Intr. 278; 7 John. Rep. 227; 2 Hayw. R. 339; 2 Hayw. R. 110; 6 Munf. R. 134; 1 Rand. Rep. 258; 6 Yerg. Rep. 334. Waste is either voluntary or permissive.
3. - §1. Voluntary waste. A voluntary waste is an act of commission, as tearing down a house. This kind of waste is committed in houses, in timber, and in land. It is committed in houses by removing wainscots, floors, benches, furnaces, window-glass, windows, doors, shelves, and other things once fixed to the freehold, although they may have been erected by the lessee himself, unless they were erected for the purposes of trade. See Fixtures; Bac. Ab. Waste, C 6. And this kind of waste may take place not only in pulling down houses, or parts of them, but also in changing their forms; as, if the tenant pull down a house and erect a new one in the place, whether it be larger or smaller than the first; 2 Roll. Ab. 815 , 1. 33; or convert a parlor into a stable; or a grist-mill into a fulling-mill; 2 Roll. Abr. 814, 815; or turn two rooms into one. 2 Roll. Ab. 815, 1. 37. The building of a house where there was none before is said to be a waste; Co. Litt. 53, a; and taking it down after it is built, is a waste. Com. Dig. Waste, D 2. It is a general rule that when a lessee has annexed anything to the freehold during the term, and afterwards takes it away, it is waste. 3 East, 51. This principle is established in the French law. Lois des Bit. part. 2,
3, art. 1; 18 Toull. n. 457.
4. But at a very early period several exceptions were attempted to be made to this rule, which were at last effectually engrafted upon it in favor of trade, and of those vessels and utensils, which are immediately subservient to the purposes of trade. Ibid.
5. This relaxation of the old rule has taken place between two descriptions of persons; that is, between the landlord and tenant, and between the tenant for life or tenant in tail and the remainder-man or reversioner.
6. As between the landlord and tenant it is now the law, that if the lessee annex any chattel to the house for the purpose of his trade, he may disunite it during the continuance of his interest, 1 H. B. 258. But this relation extends only to erections for the purposes of trade.
7. It has been decided that a tenant for years may remove cider-mills, orna-mental marble chimney pieces, wainscots fixed only by screws, and such like. 2 Bl. Com. 281, note by Chitty. A tenant of a farm cannot remove buildings which he has erected for the purposes of husbandry, and the better enjoyment of the profits of the land, though he thereby leaves the premises the same as when he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep. 5; 7 Mass. Rep. 433.
8. Voluntary waste may be committed on timber, and in the country from which we have borrowed our laws, the law is very strict. In Pennsylvania, however, and many of the other states, the law has applied itself to our situation, and those acts which in England would amount to waste, are not so accounted here. Stark. Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell a part pf the wood and timber, so as to fit the land for cultivation, without being liable to waste, but he cannot cut down the whole so as permanently to injure the inheritance. And to what extent the wood and timber on such land may be cut down without waste, is a question of fact for the jury under the direction of the court. 7 Johns. R. 227. The tenant may cut down trees for the reparation of the houses, fences, hedges, stiles, gates, and the like; Co. Litt. 53, b; and for mixing and repairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c. Wood's Inst. 344. The tenant may, when he is unrestrained by the terms of his lease, out down timber, if there be not enough dead timber. Com. Dig Waste, D 5; F. N. B. 59 M. Where the tenant, by the conditions of his lease, is entitled to cut down timber, he is restrained nevertheless from cutting down ornamental trees, or those planted for shelter; 6 Ves. 419; or to exclude objects from sight. 16 Ves. 375.
9. Windfalls are the property of the landlord, for whatever is severed by inevitable necessity, as by a tempest, or by a trespasser, and by wrong, belongs to him who has the inheritance. 3 P. Wms. 268; 11 Rep. 81, Bac. Abr. Waste, D 2.
10. Waste is frequently committed on cultivated fields, orchards, gardens, meadows, and the like. It is proper here to remark that there is an implied covenant or agreement on the part of the lessee to use a farm in a husbandman-like manner, and not to exhaust the soil by neglectful or improper tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to convert arable to woodland and the contrary, or meadow to arable; or meadow to orchard. Co. Lit. 53, b. Cutting down fruit trees; 2 Roll. Abr. 817, l. 30; although planted by the tenant himself, is waste; and it was held to be waste for an outgoing tenant of garden ground to plough up strawherry beds which be had bought of a former tenant when he entered. i Camp. 227.
11. It is a general rule that when lands are leased on which there are open mines of metal or coal or pits of gravel, lime, clay, brick, earth, stone, and the like, the tenant may dig out of such mines, or pits. Com. Dig. Waste, D 4. But he cannot open any new mines or pits without being guilty of waste Co. Lit. 53 b; and carrying away the soil, is waste. Com. Dig. Waste, D 4.
12. - §2. Permissive waste. Permissive waste in houses is punishable where the tenant is expressly bound to repair, or where he is so bound on an implied covenant. See 2 Esp. R. 590; 1 Esp. Rep. 277; Bac. Abr. Covenant, F. It is waste if the tenant suffer a house leased to him to remain uncovered so long that the rafters or other timbers of the house become rotten, unless the house was uncovered when the tenant took possession. Com. Dig. Waste, D 2.
13. - §3. Of remedies for waste. The ancient writ of waste has been superseded. It is usual to bring case in the nature of waste instead of the action of waste, as well for permissive as voluntary waste.
14. Some decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. See 1 New Rep. 290; 4 Taunt. 764; 7 Taunt. 392; S. C. 1 Moore, 100; 1 Saund. 323, a, n. i. Even where the lessee covenants not to do waste, the lessor has his election to bring either an action on the case, or of, covenant, against the lessee for waste done by him during the term. 2 Bl. Rep. 1111; 2 Saund. 252, c. n. In an action on the case in the nature of waste, the plaintiff recovers only damages for the waste.
15. The latter action has this advantage over an action of waste, that it may be brought by him in reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste., 2 Saund. 252, n. See, on the subject in general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr. Waste; Vin. Abr. Waste; Com. Dig. Waste; Supp. to Ves. jr. 50, 325, 441; 1 Vern. R. 23, n.; 2 Saund. 252, a, n. 7, 259, n. 11; Arch. Civ. Pl. 495; 2 Sell. Pr. 234; 3 Bl. Com. 180, note by Chitty; Anier. Dig. Waste; Whart. Dig. Waste; Bouv. Inst. Index, h. t.
As to remedies against waste by injunction, see 1 Vern. R. 23, n.; 5 P. Wms. 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107, 419; 8 Ves. 70; 16 Ves. 375; 2 Swanst. 251; 3 Madd. 498; Jacob's R. 70; Drew. on Inj. part 2, c. 1, p. 134. As between tenants in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132; 3 Bro. C. C. 622; 2 Dick. 667; Bouv. Inst. Index, h. t.; and the article Injunction. As to remedy by writ of estrepement to prevent waste, see Estrepement; Woodf Landl. & T. 447; 2 Yeates, 281; 4 Smith's Laws of Penn. 89; 3 Bl. Com. 226. As to remedies in cases of fraud in committing waste, see Hov. Fr. ch. 7, p. 226 to 238.
WASTE BOOK, com. law. A book used among merchants. All the dealings of the merchant are recorded in this book in chronological order as they occur.
WATCH, police. To watch is, properly speaking, to stand sentry and attend guard during the night time: certain officers called watchmen are appointed in most of the United States, whose duty it is to arrest all persons who are violating the law, or breaking the peace. (q. v.) Vide 1 Bl. Com. 356; 1 Chit. Cr. Law, 14, 20.
WATCH AND WARD. A phrase used in the English law, to denote the superinten-dence and care of certain officers, whose duties are to protect the public from harm.
WATCHMAN. An officer in many cities and towns, whose duty it is to watch during the night and take care of the property of the inhabitants.
2. He possesses generally the common law authority of a constable (q. v.) to make arrests, where there is reasonable ground to suspect a felony, though there is no proof of a felony having been committed. 1 Chit. Cr. L. 24; 2 Hale, 96; Hawk. B. 2, c. 13, s. 1, &c.; 1 East, P. C. 303; 2 Inst. 52; Com. Dig. Imprisonment, H 4; Dane's Ab. Index, h. t.; 3 Taunt. R. 14; 1 B. & A. 227; Peake, R. 89; 1 Moody's Cr. Cas. 334; 1 Esp. R. 294; and vide Peace.
3. By an act of congress, approved Sept. 30, 1850, the compensation of watchmen in the various departments of government, shall be five hundred dollars per annum.
WATER. That liquid substance of which the sea, the rivers, and creeks are composed.
2. A pool of water, or a stream or water course, is considered as part of the land, hence a pool of twenty acres, would pass by the grant of twenty acres of land, without mentioning the water. 2 Bl. Com. 18; 2 N. H. Rep. 255; 1, Wend. R. 255; 5 Paige, R. 141; 2 N. H. Rep. 371; 2 Brownl. 142; 5 Cowen, R. 216; 5 Conn. R. 497; 1 Wend. R. 237. A mere grant of water passes only a fishery. Co. Lit. 4 b.
3. Like land, water is distinguishable into different parts, as the sea, (q. v.) rivers, (q. v.) docks, (q. v.) canals, (q. v.) ponds, q v.) and sewers, (q. v.) and to these may be added at water course. (q. v.) Vide 4 Mason, R. 397 River; Water course.
WATER BAILIFF, English law. An officer appointed to search ships in ports. 10 H. vii., 30.
WATER COURSE. This term is applied to the flow or movement of the water in rivers, creeks, and other streams.
2. In a legal sense, property In a water course is comprehended under the general name of land; so that a grant of land conveys to the grantee not only fields, meadows, and the like, but also all the rivers and streams, which naturally pass over the surface of the land. 1 Co. Lit. 4; 2 Brownl. 142; 2 N. Hamp. Rep. 255; 5 Wend. Rep. 128.
3. Those who own land bounding upon a water course, are denominated by the civilians riparian proprietors, and this convenient term has been adopted by judges and writers on the common law. Ang. on Water Courses, 3; 3 Kent, Com. 354; 4 Mason's R. 397.
4. Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration.
5. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct as it passes along. Agua currit et debet currere, is the language of the law. 3 Rawle, Rep. 84; 9 Co. 57, b.
6. Though he may use the water while it runs over his lands, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of the water, which would otherwise descend to the proprietor below, nor throw the water back upon the proprietor above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it. 3 Kent, Com. 353; 1 Wils. R. 178; 6 East, 203; 1 Simon & Stuart, 190; 2 John. Ch R. 162, 463; 4 Mass. R. 401 17 John. R. 321; 5 Ohio R. 822; 3 Fairf. R. 407; 8 Greenl. R. 268; 16 Pick. Rep. 247; 1 Coxes Rep, 460; Dig. 39, 3, 4, and 10; Pothier, Traite du Contrat de Societe, 2e app. n. 236, 237; Bell's Law of Scotland, 691; Ang. on' Water Courses, 12; 2 Conn. R. 584.
7. When there are two opposite riparian proprietors, each owns that portion of the bed of the river which is adjoining his land usque ad filum aquae; or, in other words, to the thread or central line of the stream; Harg. Tracts, 5; Holt's Rep. 499; and if hydraulic works be erected on both banks, each is entitled to an equal share of the water. 1 Paige's Chanc. Rep. 448.
8. The water can only be used by each as an entire stream, in its natural channel; for of the property in the water there can be no severance. 13 John. R. 212.
9. But it seems that when an island is on the side of a river, so as to give the riparian owner on that side one-fourth of the water, the other is entitled to the whole of the three-fourths of the river. 10 Wend. Rep. 260. See, also, 13 Mass. Rep. 507; 2 Caines' Cas. 87; 9 Pick. R. 528; 3 Kent, Com. 344, 345; 3 Rawle's R. 84; 2 Watts, R. 327; 8 Greenl. R. 138, 253; 9 Pick. Rep. 59; 10 Pick. R. 348; 10 Wend. R. 167; Com. Dig. Action for Nuisance, A; 4 D. & R. 583; S. C. 2 B. & C. 910; 1 Campb. R. 463; 6 East, R. 208; 1 Wils. Rep. 174;; 1 B. & A. 258; 5 Taunt. R. 454; 2 Esp. R. 679; 2 Hill. Abr. c. 14, 16, 17; Ham. N. P. 199; 1 Vin. Ab. 557 22 Vin. Abr. 525; 2 Chit. Bl. 403, n. 7; 3 Roll. 140, l. 40; Lois des Bat. part 1, c. 3, sed. 1, art. 3; Crabb on R. P. §398 to 443. Vide River.
WATER ORDEAL. An ancient form of trial, now abolished, by which the accused, tied band and foot, were cast into cold water, and if they did not sink they were deemed innocent or they were compelled to plunge their limbs into hot water, and if they came out unhurt they were considered innocent. Vide Ordeal.
WAVESON. This name is given to such goods as after shipwreck appear upon the waves. Jacob, Law Dict. h. t.
WAY, estates. A passage, street or road. A right of way is a privilege which an individual or a particular description of persons, such as the inhabitants of a particular place, or the owners or occupiers of such place may have, of going over another person's ground.
2. It is an incorporeal hereditament of a real nature, a mere easement, entirely different from public or private roads.
3. A right of way may arise, 1. By prescription and immemorial usage. 2 McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br. Chem. 2; 1 Roll. Ab. 936. 2. By grant. 3 Lev. 305; 1 Ld. Raym. 75; 17 Mass. 416; Crabb on R. P. §366. 3. By reservation 4. By custom. 5. By acts of the legislature. 6. From necessity, when a man's ground is enclosed and completely blocked up, so that he cannot, without passing over his neighbor's land, reach the public road. For example, should A grant a piece of land to B, surrounded by land belonging to A; a right of way over A's land passes of necessity to B, otherwise he could not derive any benefit from the acquisition. Vide 3 Rawle, 495; 2 Fairf. R. 1,56; 2 Mass. 203; 2 McCord, 448; 3 McCord, 139; 2 Pick. 577; 14 Mass. 56; 2 Hill, S. C. R. 641; and Necessity. The way is to be taken where it will be least injurious to the owner. 4 Kent, Com. 338. 4. Lord Coke, adopting the civil law, says there are three kinds of ways. 1. A foot-way, called iter. 2. A foot-way and horse-way, called adus. 3. A cart-way, which contains the other two, called via. Co. Lit. 56, a; Pothier, Pandectae, lib. 8, t. 3, §1; Dig. 8, 3; 1 Bro. Civ. Law, 177. Vide Yelv. 142, n; Id. 164; Woodf. Landl. & Ten. 544; 4 Kent, Com. 337; Ayl. Pand. 307; Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M. 151; 1 Bail. R. 58; 2 Hill. Abr. c. 6; Crabb on Real Prop. §360 to 397; Bouv. Inst. Index, h. t.; Easement; Servitude.
WAY BILL, contracts. A writing in which is set down the names of passengers, who are carried in a public conveyance, or the description of goods sent with a common carrier by land; when the goods are carried by water, the instrument is called a bill of lading. (q. v.)
WAY GOING CROP. In Pennsylvania, by the custom of the, country, a tenant for a term certain is entitled after the expiration of his Iease, to enter and take away the crop of grain which he had put into the ground the preceding fall. This is called the way going crop. 5 Binn. R. 289; 2 S. & R. 14; 1 P. R. 224.
WAYS AND MEANS. In legislative assemblies there is usually appointed a committee whose duties are to inquire into, and propose to the house, the ways and means to be adopted to raise funds for the use of the government. This body is called the committee of ways and means.
WEAR. A great dam made across a river, accommodated for the taking of fish, or to convey a stream to a mill. Jacob's Law Dict. h. t. Vide Dam.
WED. A covenant or agreement; whence a wedded husband.
WEEK. Seven days of time.
2. The week commences immediately after twelve o'clock, on the night between Saturday and Sunday, and ends at twelve o'clock, seven days of twenty-four hours each thereafter.
3. The first day of the week is called Sunday; (q. v.) the second, Monday; the third, Tuesday; the, fourth, Wednesday; the fifth, Thursday; the sixth, Friday; and the seventh, Saturday. Vide 4 Pet. S. C. Rep. 361.
WEIGHAGE, mer. law. In the English law it is a duty or toll paid for weighing merchandise; it is called tronage, (q. v.) for weighing wool at the king's beam, or pesage, for weighing other avoirdupois goods. 2 Chit. Com: Law, 16.
WEIGHT. A quality in natural bodies, by which they tend towards the centre of the earth.
2. Under the article Measure, (q. v.) it is said that by the constitution congress possesses the power "to fix the standard of weights and measures," and that this power has not been exercised.
3. The weights now generally used in the United States, are the same as those of England; they are of two kinds:
1. AVOIRDUPOIS WEIGHT. 1st. Used in almost all commercial transactions, and in the comwon dealings of life. 27 1/3 1/2 grains = 1 dram 16 drams = 1 ounce 16 ounces = 1 pound, (lb.) 28 pounds = 1 quarter, (qr.) 4 quarters = 1 hundred weight, (cwt.) 20 hundred weight = 1 ton. 2d. Used for meat and fish. 8 pounds = 1 stone 3d. Used in the wool trade. Cwt. qr. lb. 7 pounds = 1 clove 14 pounds = 1 stone = 0 0 14 2 stones = 1 tod = 0 1 0 6 1/2 tods = 1 wey = 1 2 14 2 weys = 1 sack = 3 1 0 12 sacks = 1 last = 39 0 0 4th. Used for butter and cheese. 8 pounds = 1 clove 56 pounds = 1 firkin. 2. TROY WEIGHT. 24 grams = 1 pennyweight 20 pennyweights = 1 ounce 12 ounces = 1 pound.
4. These are the denominations of troy weight, when used for weighing gold, silver and precious stones, except diamonds. Troy weight is also used by apo-thecaries in compounding medicines; and by them the ounce is divided into eight drams, and the drain into three scruples, so that the latter is equal to twenty grains. For scientific purposes, the grain only is used, and sets of weights are constructed in decimal progression, from 10,000 grains downward to one-hundredth of a grain. The caret, used for weighing diamonds, is three and one-sixth grains.
5. A short account of the French weights and measures is given under the article Measure.
WEIGHT OF EVIDENCE. This phrase is used to signify that the proof on one side, of a cause is greater than on the other.
2. When a verdict has been rendered against the weight of the evidence, the court may, on this ground, grant a new trial, but the court will exercise this power not merely with a cautious, but a strict and sure judgment, before they send the case to a second jury.
3. The general rule under such circumstances is, that the verdict once found shall stand: the setting aside is the exception, and ought to be an exception, of rare and almost singular occurrence. A new trial will be granted on this ground for either party; the evidence, however, is not to be weighed in golden scales. 2 Hodg. R. 125; S. C. 3 Bingh. N. C. 109; Gilp. 356; 4 Yeates, 437; 3 Greenl. 276; 8 Pick. 122; 5 Wend. 595; 7 Wend. 380; 2 Vir. Cas. 235.
WELCH MORTGAGE, Eng. law, contracts. A species of security which partakes of the nature of a mortgage, as there is a debt due, and an estate is given as a security for the repayment, but differs from it in the circumstances that the rents and profits are to be received without account till the principal money is paid off, and there is no remedy to enforce payment, while the mortgagor has a perpetual power of redemption.
2. It is a species of vivum vadium. Strictly, however, there is this distinction between a Welch mortgage and a vivum vadium. In the latter the rents and profits of the estate are applied to the discharge of the principal, after paying the interest; while in the former the rents and profits are received in satisfaction of his interest only. 1 Pow. Mortg. 373, a.
WELL. A hole dug in the earth in order to obtain water.
2. The owner of the estate has a right to dig in his own ground, at such a distance as is permitted by law, from his neighbor's land; he is not restric-ted as to the size or depth, and is not liable to any action for rendering the well of his neighbor useless by so doing. Lois des Bat. part. 1, c. 3, sect. 2, art. 2, §2.
WELL KNOWING. These words are used in a declaration when the plaintiff sues for an injury which is not immediate and with force, and the act or nonfea-sance complained of was not prima facie actionable, not only the injury, but the circumstances under which it was committed, ought to be stated, as where the injury was done by an animal. In such case, the plaintiff after stating the injury, continues, the defendant well knowing the mischievous propensity of his dog, permitted him to go at large. Vide Scienter.
WERE. The name of a fine among the Saxons imposed upon a murderer.
2. The life of every man, not excepting that of the king himself, was esti-mated at a certain price, which was called the were, or vestimatio capitis. The amount varied according to the dignity of the person murdered. The price of wounds was also varied according to the nature of the wound, or the member injured.
WERGILD, or WEREGILD, old Eng. law. The price which in a barbarous age, a person guilty of homicide or other enormous offence was required to pay, instead of receiving other punishment. 4 Bl. Com. 188. See, for the etymology of this word, and a tariff which was paid for the murder of the different classes of men, Guizot, Essais sur l'Histoire de France, Essai 4eme, c. 2, §2.
WETHER. A castrated ram, at least one year old in ark indictment it may be called a sheep. 4 Car. & Payne, 216; 19 Eng. Com. Law Rep. 351.
WHALER, mar. law. A vessel employed in the whale fishery.
2. It is usual for the owner of the vessel, the captain and crew, to divide the profits in just proportions, under an agreement similar to the contract Di Colonna. (q. v.)
WHARF. A space of ground artificially prepared for the reception of merchan-dise from a ship or vessel, so as to promote the convenient loading and discharge of such vessel.
WHARFAGE. The money paid for landing goods upon, or loading them from a wharf. Dane's Ab. Index, h. t.
WHARFINGER. One who owns or keeps a wharf, for the purpose of receiving and shipping merchandise to or from it, for hire.
2. Like a warehouseman, (q.v.) a wharfinger is responsible for ordinary neglect, and is therefore required to take ordinary, care of goods entrusted to him as such. The responsibility of a wharfinger begins when he acquires, and ends when he ceases to have the custody of the goods in that capacity.
3. When he begins and ceases to have such custody depends generally upon the usages of trade and of the business. When goods are delivered at a wharf, and the wharfinger has agreed, expressly or by implication, to take the custody of them, his responsibility commences; but a mere delivery at the wharf, without such assent, does not make him liable. 3 Campb. R. 414; 4 Campb. R. 72; 6 Cowen, R. 757. When goods are in the wharfinger's possession to be sent on board of a vessel for a voyage, as soon as he delivers the possession and the care of them to the proper officers of the vessel, although they are not actually removed, he is, by the usages of trade, deemed exonerated from any further responsibility. 5 Esp. R. 41; Story, Bailm. §453 Abbott on Shipp. 226; Molloy, B. 2. 2, s. 2; Roccus, Not. 88; Dig. 9, 4, 3.
WHEEL. The punishment of the wheel was formerly to put a criminal on a wheel, and then to break his bones until he expired. This barbarous punishment was never used in the United States, and it has been abolished in almost every civilized country.
WHELPS. The young of certain animals of a base nature, or ferae naturae.
2. It is a rule that when no larceny can be committed of any creatures of a base nature, which are ferae naturae, though tame and reclaimed, it cannot be committed of the young of such creatures in the nest, kennel, or den. 3 Inst. 109; 1 Russ. on Cr. 153.
3. The owner of the land is, however, considered to have a qualified property in such animals, ratione impotentia. 2 Bl. Com. 394.
WHEN. At which time, in wills, standing by itself unqualified and unexplained, this is a word of condition denoting the time at which the gift is to continence. 6 Ves. 243; 2 Meriv. 286.
2. The context of a will may show that the word when is to be applied to the possession only, not to the vesting of a legacy; but to justify this construction, there must be circumstances, or other expressions in the will, showing such to have been the testator's intent. 7 Ves. 422; 9 Ves. 230 Coop. 145; 11 Ves. 489; 3; Bro. C. C. 471. For the effect of the word when in contracts and in wills in the French law, see 6 Toull. n. 520.
WHEN AND WHERE. These words are used in a plea when full defence is made the form is, "when and were it shall behove him." This acknowledges the jurisdiction of the court. 1 Chit. Pl. *414.
WHEREAS. This word implies a recital, and in general cannot be used in the direct and positive averment of a fact in a declaration or plea. Those facts which are directly denied by the terms of the general issue, or which may, by the established usage of pleading, be specially traversed, must be averred in positive and direct terms; but facts, however material, which are not directly denied by the terms of the general issue, though liable to be contested under it, and which, according to the usage of pleading, cannot be specially tra-versed, may be alleged in the declaration by way of recital, under a whereas. Gould, Pl. c. 43, §42; Bac. Ab. Pleas, &c., B. 5, 4; 2 Chit. Pl. 151, 178, 191; Gould, Pl. c. 3, §47.
WHIPPING, punishment. The infliction of stripes.
2. This mode of punishment, which is still practiced in some of the states, is a relict of barbarism; it has yielded in most of the middle and northern states to the penitentiary system.
3. The punishment of whipping, so far as the same was provided by the laws of the United States, was abolished by the act of congress of February 28, 1839, s. 5. Vide 1 Chit. Cr. Law, 796; Dane's Ab. Index, h. t.
WHITE PERSONS. The acts of congress which authorize the naturalization of aliens, confine the description of such aliens to free white persons.
2. This of course excludes the African race when pure, but it is not easy to say what shade of color or mixture of blood will make a white person.
3. The constitution of Pennsylvania, as amended, confines the right of citi-zenship to free white persons; and these words, white persons, or similar words, are used in most of the constitutions of the southern states, in describing the electors.
WHITE RENT, English law. Rents paid in silver, and called white rents or redditus albi, to distinguish them from other rents which were not paid in money. 12 Inst. 19. Vide Alba firma.
WHOLE BLOOD. Being related by both the father and mother's side; this phrase is used in contradistinction to half, blood, (q. v.) which is relation only on one side. See Blood.
WHOLESALE. To sell by wholesale, is to sell by large parcels, generally in original packages, and not by retail. (q. v.)
WIDOW. An unmarried woman whose husband is dead.
2. In legal writings, widow is an addition given to a woman who is unmarried and whose husband is dead. The addition of spinster is given to a woman who never was married. Lovel. on Wills, 269. See Addition. As to the rights of a widow, seq Dower.
WIDOW'S CHAMBER, Eng. law. In London the apparel of a widow and the furniture of her chamber, left by her deceased husband, is so called, and the widow is entitled to it. 2 Bl. Com. 518.
WIDOWHOOD. The state of a man whose wife is dead or of a woman whose husband is dead. In general there is no law to regulate the time during whichh a man must remain a widower, or a woman a widow, before they marry a second time. The term widowhood is mostly applied to the state or condition of a widow.
WIDOWER. A man whose wife is dead. A widower has a right to administer to his wife's separate estate, and as her administrator to collect debts due to her, generally for his own use.
WIFE, domestic relations. A woman who has a husband.
2. A wife, as such, possesses rights and is liable to obligations. These will be considered. 1st. She may make contracts for the purchase of real estate for her own benefit, unless her husband expressly dissents. 6 Binn. R. 427. And she is entitled to a legacy directly given to her for her separate use. 6 Serg. & Rawle, R. 467. In some places, by statutory provision, she may act as a feme sole trader, and as such acquire personal property. 2 Serg. & Rawle, R. 289.
3. 2d. She may in Pennsylvania, and in most other states, convey her interest in her own or her husband's lands by deed acknowledged in a form prescribed by law. 8 Dowl. R. 630.
4. - 3d. She is under obligation to love, honor and obey her husband and is bound to follow him wherever he may desire to establish himself: 5 N. S. 60; (it is presumed not out of the boundaries of the United States,) unless the husband, by acts of injustice and such as are contrary to his marital duties, renders her life or happiness insecure.
5. - 4th. She is not liable for any obligations she enters into to pay money on any contract she makes, while she lives with her husband; she is presumed in such case to act as the agent of her husband. Chitty, Contr. 43
6. - 5th. The incapacities of femes covert, apply to their civil rights, and are intended for their protection and interest. Their political rights stand upon different grounds, they can, therefore, acquire and lose a national char-acter. These rights stand upon the general principles of the law of nations. Harp. Eq. R. 5 3 Pet. R. 242.
7. - 6th. A wife, like all other persons, when she acts with freedom, may be punished for her criminal acts. But the law presumes, when she commits in his presence a crime, not malum in se, as murder or treason, that she acts by the command and coercion of her husband, and, upon this ground, she is exempted from punishment. Rose. on Cr. Ev. 785. But this is only a presumption of law, and if it appears, upon the evidence, that she did not in fact commit the act under compulsion, but was herself a principal actor and inciter in it, she may be punished. 1 Hale, P. C. 516; 1 Russ. on Cr. 16, 20. Vide Contract; Divorce; Husband; Incapacity; Marriage; Necessaries; Parties to actions; Parties to contracts; Women and, generally, Bouv. Inst. Index,
WIFE'S EQUITY. By this phrase is understood the equitable right of a wife to have settled upon her and her children a suitable provision out of her estate whenever the husband cannot obtain it, without the aid of a court of equity. Shelf. on M. and D., 605.
2. By the marriage the husband acquires an interest in the property of his wife in consideration of the obligation which he contracts by the marriage, of maintaining her and their children. The common law enforces this duty thus voluntarily assumed by him, and he can alien the property to which he is thus entitled jure mariti, or in case of his bankruptcy or insolvency it would vest in his assignee for the benefit of his creditors, and the wife would be left with her children, entirely destitute, notwithstanding her fortune may have been great. To remedy this evil, courts of equity, in certain cases, give a provision to the wife, which is called the wife's equity.
3. The principle upon which courts of equity act is, that he who seeks the aid of equity must do equity, and that will be withheld until an adequate settlement has been made. 1 P. Wms. 459, 460. See 5 My. & Cr. 105; 11 Sim. 569; 4 Hare, 6.
4. It will be proper to consider, 1. Out of what property the wife has a right to claim her equity to a settlement. 2. Against whom she may make such a claim. 3. Her rights. 4. The rights of her children. 5. When her rights to a settlement will be barred.
5. - 1. Where the property is equitable and not recoverable at law, it cannot be obtained without making a settlement upon a wife and children, if one be required by her 2 P. Wins. 639; and where, though the property be legal in its nature, it becomes, from collateral circumstances, the subject of a suit in equity, the wife's right to a settlement will attach. 5 My. & Cr. 97. See 2 Ves. jun., 607, 680; 4 Bro. C. C, 338; 3 Ves. 166, 421; 9 Ves. 87; 5 Madd. R. 149; 5 Ves. 517; 13 Maine, 124 10 Ala. R. 401; 9 Watts, 90; 5 John. Ch. R. 464; 3 Cowen, 591; 6 Paige, 366; 2 Bland. 545; 2 Paige, 303.
6. - 2. The wife's equity to a settlement is binding not only upon the husband, but upon his assignee under the bankrupt or insolvent laws. 2 Atk. 420; 3 Ves. 607; 4 Bro. C. C. 138; 6 John. Ch. R. 25; 1 Paige, 620; 4 Metc. 486; 4 Gill & John. 283; 5 Monr. 338; 10 Ala. R. 401 1 Kelly, 637. And even where the husband assigned the wife's equitable right for a valuable consideration, the assignee was considered liable. 4 Ves. 19.
7. - 3. As to the amount of the rights of the wife, the general rule is that one half of the wife's property shall be settled upon her. 2 Atk. 423; 3 Ves. 166. But it is in the discretion of the court to give her, an adequate settlement for herself and children. 5 John. Ch. R. 464; 6 John. Ch. R. 25; 3 Cowen, 591; 1 Desaus. 263: 2 Bland. 545; 1 Cox, R. 153; 5 B. Monr. 31; 3 Kelly, 193; 1 D, & W. 407; 9 Sim, 597; 1 S. & S. 250.
8. - 4. Whenever the wife insists upon her equity, the right will be exten-ded to her children, but the right is strictly personal to the wife, and her children cannot insist upon it after her death. 2 Eden, 337; 1 J. & W. 472; 1 Madd. R. 467; 11 Bligh, N. S. 104; 2 John. Ch. R. 206; 3 Cowen, 591; 10 Ala. R. 401; 1 Sanf. 129.
9. - 5. The wife's equity will be barred, first, by an adequate settlement having been made upon her; 2 Ves. 675; when she lives in adultery apart from her husband 4 Ves. 146; but a female ward of court, married without its consent, will not be barred, although she should be living in adultery. 1 V. & B. 302.
WILD ANIMALS. Animals in a state of nature; animals ferae naturae. Vide Animals; Ferae naturae.
2. In charging certain offences it is required that they should be stated to be wilfully done. Arch. Cr. Pl. 51, 58; Leach's Cr. L. 556.
3. In Pennsylvania it has been decided that the word maliciously was an equivalent for the word wilfully, in an indictment for arson. 5 Whart. R. 427.
WILL, criminal law. The power of the mind which directs the actions of a man.
2. In criminal law it is necessary that there should be an act of the will to commit a crime, for unless the act is wilful it is no offence.
3. It is the consent of the will which renders human actions commendable or culpable, and where there is no win there can be no transgression.
4. The defect or want of will may be classed as follows: 1. Natural, as that of infancy. 2. Accidental; namely, 1st. Dementia. 2d. Casualty or chance. 3d. Ignorance. (q. v.) 3. Civil; namely, 1st. Civil subjection. 2d. Compulsion. 3d. Necessity. 4th. Well-grounded fear. Hale's P. C. c. 2 Hawk. P. C. book 1, c. 1.
WILL or TESTAMENT. The legal declaration of a man's intentions of what he wills to be performed after his death. Co. Litt. 111; Swinb. Pt. 1, s. II. 1; Shep. Touch. 398; Bac. Abr. Wills, A.
2. The terms will and testament are synonymous, and they are used indifferently by common lawyers, or one for the other. Swinb. p. 1, s. 1. 5; Bac. Ab. Wills. A. Civilians use the term testament only. See Testament.
3. There are five essential requisites to make a good will.
4. - 1. The testator must be legally capable of making a will. Generally all persons who may make valid contracts can dispose of their property by will. See Parties to contracts. This act requires a power of the mind freely to dispose of property. Infants, because of their tender age, and married women, on account of the supposed influence and control of their husbands, have no capacity to make a will, with these exceptions, that infants at common law may dispose of their personal estate, the males when over fourteen years of age, and the females when over twelve; this rule in relation to infants is not uniform in the United States. Swinb. p. 2, s. 2; Bac. Ab. Wills, B. Persons devoid of understanding, as idiots and lunatics, cannot make a will.
5. - 2. The testator at the time of making his will must have animum test-andi, or a serious intention to make such will. If a man therefore jestingly or boastingly and not seriously, writes or says that such a person shall have his goods or be his executor, this is no will. Bac. Ab. Wills, C; Com. Dig. Estates by Devise, D 1. See 4 Serg. & Rawle, 545; 2 Yeates, 324; 5 Binn. 490; 1 Des. R. 543.
6. - 3. The mind of the testator in making his will must be free, and not moved by fear, fraud or flattery. In such cases the will is void or at least voidable. Bac. Ab. Wills, C; see 3 Serg. & Rawle, 269. Vide influence.
7. - 4. There must be a person to take, capable of taking; for to render a devise or bequest valid there must be a donee in esse, or in rerum natura, and one that shall have capacity to take the thing given, when it is to vest, or the gift shall be void. Plowd. 345. See Legatee.
8. - 5. The will must be put in proper form., Wills are either written or nuncupative.
9. - 1. A will in writing must be, 1. Written on paper or parchment; it may be in any language, and in any character, provided it can be read or understood. 2. It must be signed by the testator or some person authorized by him; but a sealing has been held to be a sufficient signing. 2 Str. 764. But see 3 Lev. R. 1; 1 Const. R. 343; 18 Ves. R. 183; 2 Ball & B. 104 5 Mood. R. 484, and article To sign. And it ought to be signed by the attesting witnesses. In some states three witnesses are required, who should sign the will as such at the request and in the presence of the testator and of each other. This formality should generally be pursued, as the testator may have lands in such states which would not pass without it. See, as to the attestation of wills, Bac. Ab. Wills, D; Rob. on Wills, c. 1, part 15. 3. It must be published, that is, the testator must do some act from which it can be concluded that he intended the instrument to operate as his will. 6 Cruise, 79; 4 Burn's Eccl. Law, 119. As to the republication of wills, see Bac. Abr. Wills, D 3; and article Publication. 4. To make a good will of goods and chattels there must be an executor named in it, otherwise it will be a codocil only, and the party is said to die intestate; in such a case administration must be granted. Bac. Abr. Wills, D 2.
10. - 2. A nuncupative will or testament, is a verbal declaration by a tes-tator of his will before a competent number of legal witnesses.
11. Before the statute of frauds they were very common, but by that statute, 29 C. H. c. 3, which has been substantially adopted in a number of the states, these wills were laid under many restrictions. Vide Dane's Ab. chap. 127, a. 2; 3 Harr. & John. 208; 6 Munf. R. 123; 1 Munf. R. 456; 4 Hen. & Munf. 91-100.
12. In New York nuncupative wills have been abolished, except made by a soldier while in actual military service, or by a mariner while at sea. 2 New York Revised Statutes, 60, sec. 22. As to nuncupative wills in Louisiana, see Testament nuncupative; and Civil Code of Louisiana, article 1574.
13. It is a rule that the last will revokes all former wills. It follows then that a man cannot by any testamentary act impose upon himself the inability of making another inconsistent with and revoking the first will. Bac. Ab. Wills, E; Swinb. pt. 7, s. 14.
14. A will voluntarily and intentionally made by a competent testator, according to the form required by law, may be avoided, 1st. By revocation, see Revocation; Bac. Abr. Wills, G 1; Vin. Abr. Devise, P; 1 Rolle, Ab. 615; Com. Dig. Estates by Dev. F; and, 2d. By fraud.
15. Among the civilians they have two other kinds of wills, namely: the mystic, which is a will enveloped in a paper and sealed, and the witnesses attest that fact, the other is the olographic; which is wholly written by the testator himself. See Testament. As to wills and testaments, see Swinburne on Wills; Roberts on Wills; Lovelass on Wills; Roper on Legacies; Lowndes on Legacies; Will. on Ex. pt. 1; Vin. Abr. Devise; Rolle's Abr. Devise; Bac. Abr. Wills and Testaments; Com. Dig. Estates by Devise; Nels. Abr. h. t.; Amer. Dig. Wills; Whart. Dig. Wills; Toll. on Executors; Off. Ex.; Orph. Legacy; Touchst, ch. 23 Civil Code of Louisiana, B. 3, tit. 2; Bouv. Inst. Index, h. t.; and the articles Devise; Legacy; Testament.
WINCHESTER MEASURE. The standard measure originally kept at Winchester, in England.
WINDOW. An opening made in the wall of a house to admit light and air, and to enable those who are in to look out.
2. The owner has a right to make as many windows in his house when not built on the line of his property as he may deem proper, although by so doing be may destroy the privacy of his neighbors. Bac. Ab. Actions in general, B.
3. In cities and towns it is evident that the owner of a house cannot open windows in the partition wall without the consent of the owner of the adjoining property, unless he possesses the right of having ancient lights. (q. v.) The opening of such windows and destroying the privacy of the adjoining property, is not, however, actionable; the remedy against such encroachment is by obstructing them, without encroaching upon the rights of the party who opened them, so as to prevent a right from being acquired by twenty years use. 3 Camp. 82.
WISCONSIN. The name of one of the new states of the United States, of America.
2. The constitution of Wisconsin was adopted by a convention, at Madison, on the first day of February, 1848.
3. The right of suffrage is vested by the third article of the constitution, as follows: Sect. 1. Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in this state for one year next preceding any election, shall be deemed a qual-ified elector at such election. 1st. White citizens of the United States. 2d. White persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization. 3d. Persons of Indian blood who have once been declared by law of congress to be citizens of the United States, any subsequent act of congress to the contrary notwithstanding.
4th. Civilized persons of Indian descent, not members of any tribe; Provided, that the legislature may at any time extend by law the right of suffrage to persons not herein enumerated, but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election, and approved by a majority of all the votes cast at such election.
Sect. 2. No person under guardianship, non compos mentis, or insane shall be qualified to vote at any election; nor shall any person, convicted of treason or felony, be qualified to vote at any election, unless restored to civil rights.
Sect. 3. All votes shall be given by ballot, except for such township officers as may by law be directed or allowed to be otherwise chosen.
Sect. 4. No person shall be deemed to have lost his residence in this state by reason of absence on business of the United States or of this state.
Sect. 5. No soldier, seaman or marine, in the army or navy of the United States, shall be deemed a resident in this state, in consequence of being stationed within the same.
Sect. 6. Laws may be passed excluding from the right of suffrage all persons who have been, or may be convicted of bribery, or larceny, or any infamous crime, and depriving every person who shall make or become directly or indirectly interested in any bet or wager depending upon the result of any election, of the right to vote at such election. 4, The fourth article vests the legislative power in a senate and assembly. These will be separately considered, by taking a view, 1. Of the senate. 2. Of the assembly.
5. - §1. The senate. It will be proper to examine, first, the qualification of the senators; secondly, the time of their election; third, the duration of their office fourth, the number of senators.
6. - 1. The senators must have resided one year within the state, and be qualified electors in the district which they may be chosen to represent. Sect. 6.
7. - 2. Senators are elected on the Tuesday following the first Monday of November by the qualified electors of the several districts. One half every year.
8. - 3. They hold their office for two years.
9. - 4. The senate shall consist of a number of members not more than one-third, nor less than one-fourth of the number of the members of the assembly. Sect. 2.
10. - §2. The assembly will be, considered in the same order.
11. - 1. Members of the assembly must have resided one year in the state, and be qualified electors for the district for which they may be chosen.
12. - 2. Members of the assembly are elected at the same time senators are elected.
13. - 3. They are elected annually.
14. - 4. The number of members of the assembly shall never be less than fifty-four nor more than one hundred.
15. The two houses are invested severally with the following powers:
Sect. 7. Each house shall be the judge of the elections, returns and quali-fications of its own members; and a majority of each 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.
Sect. 8. Each house may determine the rules of its own proceedings, punish for contempts and disorderly behaviour; and, with the concurrence of two-thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause.
Sect. 9. Each house shall choose its own officers, and the senate shall choose a temporary president when the lieutenant-governor shall not attend as president, or shall act as governor.
Sect. 10. Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy. The doors of each house shall be kept open, except when the public welfare shall require secrecy. Neither house shall, without the consent of the other, adjourn for more than three days.
16. By the fifth article, the executive power is vested in a governor.
17. - Sect. 1. The executive power shall be vested in a governor, who shall hold his office for two years; a lieutenant governor shall be elected at the same time, and for the same term.
18. - Sect. 2. No person, except a citizen of the United States, and a qua-lified elector of the state, shall be eligible to the office of governor or lieutenant governor.
19. - Sect. 3. The governor and lieutenant governor shall be elected by the qualified electors of the state, at the times and places of choosing members of the legislature. The persons respectively having the highest, number of votes for governor and lieutenant-governor shall be elected, but in case two or more shall have an equal and the highest number of votes for governor or lieutenant-governor, the two houses of the legislature, at its next annual session, shall forthwith, by joint ballot, choose one of the persons so having an equal and the higbest number of votes, for governor or lieutenant governor. The returns of election for governor or lieutenant governor shall be made in such manner as shall be provided by law.
20. - Sect. 4. The governor shall be commander-in-chief of the military. and naval forces of the state. He shall have power to convene the legislature on extra-ordinary occasions; and in case of invasion, or danger from the preva-lence of contagious disease at the seat of government, he may convene them at any other suitable place within the state. He shall communicate to the legislature at every session, the condition of the state; and recommend such matters to them for their consideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed.
21. - Sect. 5. The governor shall receive during his continuance in office an annual compensation of one thousand two hundred and fifty dollars.
22. - Sect. 6. The governor shall have the power to grant reprieves, commutations and pardons after conviction for all offences, except treason, and cases of impeachment, upon such conditions and with such restrictions and lim-itations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason he shall have the power to suspend the execution of the sentence, until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to the legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or re-prieve, with his reasons for granting the same.
23. - Sect. 7. In case of the impeachment of the governor, or his removal from office, death, inability from mental or physical disease, resignation or absence from the state, the powers and the duties of the office shall devolve upon the lieutenant-governor for the residue of the term, until the governor, absent or impeached, shall have returned, or the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state in time of war, at the head of the military force thereof, he shall continue commander-in-chief of the military force of the state.
24. - Sect. 8. The lieutenant-governor shall be president of the senate, but shall have only a casting vote therein. If during a vacancy in the office of governor, the lieutenant governor shall be impeached, displaced, resign, die, or from mental or physical disease, become incapable of performing the duties of his office, or be absent from the state the secretary of state shall act as governor until the vacancy shall be filled, or the disability shall cease.
25. - Sect. 9. The lieutenant governor shall receive double the per them allowance of members of the senate, for every day's attendance as president of the senate, and the same mileage as shall be allowed to members of the legislature.
26. - Sect. 10. Every bill which shall have passed the legislature, shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it, but if not, he shall return it with his objections to that house in which it shall have originated, who shall enter the objections It large upon the journal, and proceed to reconsider it. If after such reconsideration, two-thirds. of the members present shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law. But in all such cases, the votes of both houses shall be determined by, yeas and nays, and the names of the members, voting for or against the bill, shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law, unless the legislature shall by their adjournment prevent its return, in which case it shall not be a Iaw.
27. The seventh article establishes the judiciary as follows:
Sect. 1. The court for the trial of impeachments shall be composed of the senate. The house of representatives shall have the power of impeaching all civil officers of this state, for corrupt conduct in office, or for crimes and misdemeanors; but a majority of all the members elected shall concur in an impeachment. On the trial of an impeachment against the governor, the lieutenant governor shall not act as a member of the court. No judicial officer shall exercise his office after he shall have been impeached until his acquittal. Before the trial of an impeachment, the members, of the court shall take an oath or affirmation truly and impartially to try the impeachment according to the evidence; and no person shall be convicted without a concurrence of two-thirds of the members present. Judgment in case of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold any office of honor, profit or trust under the state; but the party impeached shall be liable to indictment, trial and punishment according to law.
28. - Sect. 2. The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace. The legislature may also vest such jurisdiction as shall be deemed necessary in municipal courts and shall have power to establish inferior courts in the several counties with limited civil and criminal jurisdiction: Provided, that the jurisdiction which may be vested in municipal courts shall not exceed, in their respective municipalities, that of circuit courts, in their respective circuits, as prescribed in this constitution: And that the legislature shall provide as well for the election of judges of the municipal courts, as of the judges of inferior courts, by the qualified electors of the respective jurisdictions. The term of office of the judges of the said municipal and inferior courts shall not be longer than that of the judges of the circuit court.
29. - Sect, 3. The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto certiorari, and other original and remedial writs, and to hear and determine the same.
30. - Sect. 4. For the term of five years and thereafter until the legislature shall otherwise provide, the judges of the several courts shall be judges of the supreme court, four of whom shall constitute a quorum, and the concurrence of a majority of the judges present shall be necessary to a decision. The legislature shall have power, if they should think it expedient and necessary to provide by law for the organization of a separate supreme court, with the jurisdiction and powers prescribed in this constitution, to consist of one chief justice and two associate justices, to be elected by the qualified electors of the state, at such time and in such manner as the legislature may provide. The separate supreme court, when so organized, shall not be changed or discontinued by the legislature; the judges thereof shall be so classified that but one of them shall go out of office at the same time, and the term of office shall be the same as provided for the judges of the circuit court. And whenever the legislature may consider it necessary to establish a separate supreme court, they shall have power to reduce the number of circuit court judges to four, and subdivide the judicial circuits, but no such subdivision or reduction shall take effect till after the expiration of the term of some one of the said judges, or till a vacancy occur by some other means.
31. Circuits are established, and they may be changed by the legislature.
Sec. 7. For each circuit there shall be a judge chosen by the qualified electors therein, who shall hold his office as is provided in this constitution until his successor shall be chosen and qualified, and after he shall have been elected, he shall reside in the circuit for which he was elected. One of said judges shall be designated as chief justice, in such manner as the legislature shall provide. And the legislature shall, at its first session, provide by law as well for the election of, as for classifying, the judges of the circuit court to be elected under this constitution, in such manner, that one of the said judges shall go out of office in two years, one in three years, one in four years, one in five years and one in six years, and thereafter the judge elected to fill the office, shall bold the same for six years.
32. - 8. The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.
33. - Sect. 9. When a vacancy shall happen in the office of a judge of the supreme or circuit court, such vacancy shall be filled by an appointment of the governor, which shall continue until a successor is elected and qualified; and when elected, such successor shall hold his office the residue of the unexpired term. There shall be no election for a judge or judges at any general election for state or county officers, nor within thirty days either before or after such election.
34. - Sect. 10. Each of the judges of the supreme and circuit courts shall receive a salary, payable quarterly, of not less than one thousand five hundred dollars annually; they shall receive no fees of office or other compensation than their salaries; they shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected, and all votes for either of them for any office except a judicial office, given by the legislature or the people, shall be void. No person shall be eligible to the office of judge who shall not at the time of his election be a citizen of the United States, and have attained the age of twenty-five years, and be a qualified elector within the jurisdiction for which he may be chosen.
35. - Sect. 11. The supreme court shall hold at least one term annually at the seat of government of the state at such times as shall be provided by law, and the legislature may provide for holding other terms, and at other places when they may deem it necessary. A circuit court shall be held at least twice a year, in each county of this state, organized for judicial purposes. The judges of the circuit court may hold courts for each other, and shall do so when required by law.
WISTA. Among the Saxons, this was a measure of land; it contained a half hide, or sixty acres.
TO WIT. To know, that is to say, namely. See Scilicet.
WITH STRONG HAND, pleading. This is a technical phrase indispensable in describing a forcible entry in an indictment. No other word or circumlocution will answer the same purpose. 8 T. R. 357.
WITHDRAWING A JUROR, practice. An agreement made between the parties in a suit to require one of the twelve juror's impanneled to try a cause to leave the jury box; the act of leaving the box by such a juror is also called the withdrawing a juror.
2. This arrangement usually takes place at the recommendation of the judge, when it is obviously improper the case should proceed any further.
3. The effect of withdrawing a juror puts an end to that particular trial, and each party must pay his own costs. 3 T. R. 657; 2 Dowl. R. 721; S. C. 1 Crom. M. & R. 64.
4. But the plaintiff may bring a new suit for the same cause of an action. R. & M. 402; S. C. 21 E. C. L. R. 472; 3 Barn. & Adolph. 349; S. C. 23 E. C. L. R. 91. See 3 Chit. Pr. 916.
WITHERNAM, practice. The name of a writ which issues on the return of elon-gata to an alias or pluries writ of replevin, by which the sheriff is commanded to take the defendant's own goods which may be found in his bailiwick, and keep them safely, not to deliver them to the plaintiff until such time as the defendant chooses to submit himself, and allow the distress, and the whole of it, to be reprevied, and he is thereby further commanded that he do return to the court in what manner he shall have executed the writ. Hamm. N. P. 453; 2 Inst. 140; F. N. B. 68, 69; 19 Vin. Ab. 7; 7 Com. Dig. 674; Grotius, 3, 2, 4, n. 1.
WITHOUT, pleading. This word is adopted in formal traverses, and is a negative signifying "and not for;" accordingly the language of the elder entries sometimes is, It et nemy pur tiel cause," &c. Hamm. N. P. 120.
WITHOUT DAY. This signifies that the cause or thing to which it relates is indefinitely adjourned; as when a case is adjourned without day, it is not again to be inquired into; when the legislature adjourn without day they are not to meet again. This is usually expressed in Latin, sine die.
WITHOUT IMPEACHMENT OF WASTE. When a tenant for life holds the land without impeachment of waste, he is of course dispunishable for waste whether wilful or otherwise. But still this right must not be wantonly abused so as to destroy the estate, and he will be enjoined from committing malicious waste. Dane's Ab. c. 78, a. 14, §7; Bac. Ab. Waste, N; 2 Eq. Cas. Ab. tit. Waste, A. pl, 8; 2 Bouv. Inst. n. 2402. See Impeachment of Waste and Waste.
WITHOUT RECOURSE. Vide Sans Recours and Indorsement; Chit. on Bills, 179; 14 S. & R. 325; 3 Cranch, 193; 7 Cranch, 159; 1 Cowen, 538; 12 Mass. 172; 6 Shipl. R. 354.
WITHOUT RESERVE, contracts. These words are frequently used in conditions of sale at public auction, that the property offered, or to be offered for sale, will be sold without reserve.
2. When a property is advertised to be sold without reserve, if a puffer be employed to bid, and actually bid at the sale, the courts will not enforce a contract against a purchaser, into which he may have been drawn by the vendor's want of faith. 5 Madd. R. 34. Vide Puffer.
WITHOUT THIS, THAT, pleading. These are technical words used in a traverse, (q. v.) for the purpose of denying a material fact in the preceding pleadings, whether declaration, plea, replication, &c. In Latin it is called absque hoc. (q. v.) Lawes on Pl. in Civ. Act. 119; Com. Dig. Pleader, G 1; Summary of Pleading, 75; 1 Saund. 103, n.; Ld. Raym. 641; 1 Burr. 320; 1 Chit. Pl. 576, note a.
WITNESS. One who, being sworn or affirmed, according to law, deposes as to his knowledge of facts in issue between the parties in a cause.
2. In another sense by witness is understood one who is called upon to be present at a transaction, as a wedding, or the making of a will. When a person signs his name to an instrument, as a deed, a bond, and the like, to signify that the same was executed in his presence, he is called an attesting witness.
3. The testimony of witnesses can never have the effect of a demonstration, because it is not impossible, indeed it frequently happens, that they are mistaken, or wish themselves to deceive. There can, therefore, result no other certainty from their testimony than what arises from analogy. When in the calm of the passions, we listen only to the voice of reason and the impulse of nature we feel in ourselves a great repugnance to betray the truth, to the pre-judice of another, and we have observes that honest, intelligent and disinterested persons never combine to deceive others by a falsehood. We conclude then, by analogy, with a sort of moral certainty, that a fact attested by several witnesses, worthy of credit, is true. This proof derives its whole force from a double presumption. We presume, in the first place, on the good sense of the witnesses that they have not been mistaken; and, secondly, we presume on their probity that they wish not to deceive. To be certain that they have not been deceived, and that they do not wish to mislead, we must ascertain, as far as possible, the nature and the quality of the facts proved; the quality and the person of the witness; and the testimony itself, by comparing it with the deposition of other witnesses, or with known facts. Vide Circumstances.
4. It is proper to consider, 1st. The character of the witness. 2d. The quality of the witness. 3d. The number of witnesses required by law.
5. - 1. When we are called upon to rely on the testimony of another in order to form a judgment as to certain facts, we must be certain, 1st. That he knows the facts in question, and that he is not mistaken; and, 2d. That he is disposed to tell the truth, and has no desire to impose on those who are to form a judgment on his testimony. The confidence therefore, which we give to the witness must be considered, in the first place, by his capacity or his organization, and in the next, by the interest or motive which he has to tell or not to tell the truth. When the facts to which the witness testifies agree with the circumstances which are known to exist, he becomes much more credible than when there is a contradiction in this respect. It is true that until impeached one witness is as good as another; but when a witness is impeached, although he remains competent, he is not as credible as before. Vide Circumstances; Competency; Credibility.
6. - 11. As to the quality of the witnesses, it is a general rule that all persons way be witnesses. To this there are various exceptions. A witness may be incompetent, 1. For want of understanding. 2. On account of interest. 3. Because his admission is contrary to public policy. 4. For want of religious principles; and, 5. On account of infamy.
7. - §1. Persons who want understanding, it is clear, cannot be witnesses, because they are to depose to facts which they know; and if they have no understanding, they cannot know the facts. There are two classes of persons of this kind.
8. - 1. Infants. A child of any age capable of distinguishing between good and evil may be examined as a witness; and in all cases, the examination must be under oath or affirmation. 1 Phil. Ev. 19; 1 Const. R. 354. This appears to be the rule in England; though formerly it was held by some judges that it was a presumption of law that the child was incompetent when he was under seven years of age. Gilb. Ev. 144; 1 East, R. 422; 1 East, P. C. 443; 1 Leach, 199. When the child is under fourteen, he is presumed incapable until capacity is shown; 2 Tenn. Rep. 80; 19 Mass. R. 225; and see 18 John. R. 105; when he is over fourteen he may be sworn without a previous examination. 2 South. R. 589.
9. - 2. Idiots and lunatics. An idiot cannot be examined as a witness, but a lunatic, (q. v.) during a lucid interval, (q. v.) may be examined. A person in a state of intoxication cannot be admitted as a witness. 15 Serg. & Rawle, 235. See Ray, Med. Jur. c. 22, §300 to 311.
10. - §2. Interest in the event of the suit excludes the witness from examination, unless under certain circumstances. See article Interest. The exceptions are the cases of informers, (q. v.) when the statute makes them witnes-ses, although they may be entitled to a penalty; 1 Phil. Ev. 96; persons enti-tled to a reward, (q. v.) are sometimes competent; agents are also admitted in order to prove a contract made by them on the part of the principal, 1 Phil. Ev. 99; and see 1 John. Cas. 408; 2 John. Cas. 60; 2 John. R. 189; 13 Mass. R. 380; 11 Mass. R. 60; 2 Marsh. In 706 b; 1 Dall. R. 7; 1 Caines' R. 167. A mere trustee may be examined by either party. 1 Clarke, R. 281. An interested witness competency may be restored by a release. 1 Phil. Ev. 101. Vide, generally, 1 Day's R. 266, 269; 1 Caines' R. 276; 8 John. R. 518; 4 Mass. R. 488; 3 John. Cas. 82, 269; 1 Hayw. 2; 5 Halst. R. 297; 6 Binn. R. 319; 4 Binn. 83; 1 Dana's R. 181; 1 Taylor's R. 55; Bac. Ab. Evidence B; Bouv. Inst. Index, h. t.
11. - §3. There are some persons who cannot be examined as witnesses, because it is inconsistent with public policy that they should testify against certain persons; these are,
12. - 1. Husband and wife. The reason for excluding them from giving evidence, either for or against each other, is founded partly on their identity of interest, partly on a principle of public policy which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. They cannot be witnesses for each other because their interests are absolutely the same; they are not witnesses against each other, because it is against the policy of marriage. Co. Litt. 6, b; 2 T. R. 265, 269; 6 Binn. 488. This is the rule when either is a party to a civil suit or action.
13. But where one of them, not being a party, is interested in the result, there is a distinction between the giving evidence for and against the other. It is an invariable rule that neither of them is a witness for the other who is interested in the result, and that where the husband is disqualified by his interest, the wife is also incompetent. 1 Ld. Raym. 744; 2 Str. 1095; 1 P. Wms. 610.
14. On the other hand, where the interest of the husband, consisting in a civil liability, would not have protected him from examination, it seems that the wife must also answer, although the effect may be to subject her husband to an action. This case differs very materially from those where the husband himself could not have been examined, either because he was a party or because he would criminate himself. The party to whom the testimony of the wife is essential, has a legal interest in her evidence; and as he might insist on examining the husband, it would, it seems, be straining the rule of policy too far to deprive him of the benefit of the wife's testimony. In an action for goods sold and delivered, it has been held that the wife of a third person is competent to prove that the credit was given to her husband. 1 Str. 504; B. N. P. 287. See 1 H. & M. 154; 11 Mass. 286; 1 Har. & J. 478; 1 Tayl. 9; 6 Binn. 488; 1 Yeates; 390, 534.
15. When neither of them is either a party to the suit, nor interested in the general result, the husband or wife is, it seems, competent to prove any fact, provided the evidence does not directly criminate, or tend to criminate, the other. 2 T. R. 263.
16. It has been held in Pennsylvania that the deposition of a wife on her death-bed, charging her husband with murdering her, was good evidence against him, on his trial for murder. Addis. 332. On an indictment for a conspiracy in inveigling a young girl from her mother's house, and she being intoxicated, procuring the marriage ceremony to be recited between her and one of the de-fendants, the girl is a competent witness to prove the facts. 2 Yeates, 114.
17. See, as to the competency of a wife de facto, but not de jure, Stark. Ev, pt. 4, p. 711. And on an indictment for forcible entry, the wife of the prosecutor was examined as a witness to prove the force, but only the force. 1 Dall. 68.
18. 2. Attorneys. They cannot be examined as witnesses as to confidential communications which they have received from their clients, made while the relation of attorney and client subsisted. 3 Johns. Cas. 198. See 3 Yeates, 4. Communications thus protected must have been made to him as instructions ne-cessary for conducting the cause, and not any extraneous or impertinent matter; 3 Johns. Cas. 198; they must have been made to him in the character of a counsel and not as a friend merely; 1 Caines' R. 15 7; they must have been made while the relation of counsel and client existed, and not after. 13 John. Rep. 492. An attorney may be examined as to the existence of a paper entrusted to him by his client, and as to the fact that it is in his possession, but he cannot be compelled to produce it, or disclose its date or contents. 17 Johns. R. 335. See 18 Johns. R. 330. He may also be called to prove a collateral fact not entrusted to him by his client; as to prove. his client's handwriting. 19 Johns. R. 134: 3 Yeates, 4. He is a competent witness for his client, although his judgment fee depends upon his success; 1 Dall. 241; or he expects to receive a larger fee from his client if the latter succeeds. 4 S. & R. 82. In Louisiana, the reverse has been decided. It is there held that an attorney cannot become a witness for his client in a cause in which he was employed, by renouncing his fee, and having his name struck off from the record, in that case. 3 N. S. 88. Vide Confidential Communications.
19. - 3. Confessors. In New York it has been held that a confessor could not be compelled to disclose secrets which he had received in auricular confession. City Hall Rec. 80 n. Vide Confessor; Confidential Communications.
20. - 4. Jurors. A juror is not competent to prove his own or the conduct of his fellow jurors to impeach a verdict they have rendered. 5 Conn. R. 348. See Coxe, R. 166, and article Grand Jury. And a judge in a cause which is on trial before him cannot be a witness, as he cannot decide on his own competency, nor on the weight of his own testimony, compared with that of another; 2 Mart. R. N. S. 312; 1 Greenl. Ev. §364.
21. - 5. Slaves. It is said that a slave could not be a witness at common law because of the unbounded influence his master had over him. 4 Dall. R. 145, note 1; but see 1 St. Tr. 113 Macnally's Ev. 156. By statutory provisions in the slave states, a slave is generally held incompetent in actions between white persons. See 7 Monr. R. 91; 4 Ham. R. 353; 5 Litt. R. 171; 3 Harr. & John. 97; 1 McCord, R. 430. In New York a free black man is competent to prove facts happening while he was a slave. 1 John. R. 508; see 10 John. R. 132.
22. - 6. A party to a negotiable instrument, is not allowed to give evidence to invalidate it. 1 T. R. 300. But the rule is confined to negotiable instruments. 1 Bl. R. 365. This rule does not appear to be very firmly established in England. In the state courts of some of the United States it has been adopted, and may now be considered to be law. 2 Dall. R. 194; ld. 196; 2 Binn. R. 154; 2 Dall. R. 242; 1 Cain. R. 258, 267; 2 Johns. R. 165; Id. 258; 1 John. R. 572; 3 Mass R. 559; Id. 565; Id. 27; Id. 31; 1 Day, R. 17; 6 Pet. 51; 8 Pet. 12; 5 Greenl. 374; 1 Bailey, 479; 2 Dall. 194. But flee 16 John. 70; 8 Wend. 90; 20 John. 285. The witness may however testify to subsequent facts, not tending to show that the instrument was originally invalid. Peake's N. P. C. 6. See 2 Wash. 63; 1 Hen. & Munf. 165, 166, 175; 1 Cranch, R. 194.
23. - §4. When the witness has no religious principles to bind his conscience, the law rejects his testimony; but there is not such defect of religious principles, when the witness believes in the existence of a God, who will reward or punish in this world or that which is to come. Willes' R. 550. Vide the article Infidel where the subject is more fully examined and Atheist; Future state.
24. - §5. Infamy (q. v.) is a disqualification while it remains.
25. - III. As to the number of witnesses, it is a general rule that one witness is sufficient to establish a fact, but to this there are exceptions, both in civil and criminal cases.
26. - 1. In civil cases. The laws of perhaps all the states of the Union require two witnesses and some require even more, to prove the execution of a last will and testament devising lands.
27. - 2. In criminal cages, there are several instances where two witnesses at least are required. The constitution of the United States, art. 3, s. 3, provides that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. In cases of perjury there must evidently be two witnesses, or one witness, and such circumstances as have the effect of one witness; for if there be but one witness, then there is oath against oath, and therefore uncertainty.
28. A witness may be compelled to attend court. In the first place a subpoena requiring his attendance must be served upon him personally, and on his neglect to attend, an attachment for contempt will be issued. See, generally, Bouv. Inst. Index, h. t.
WITNESS, AGED. It has been laid down as a rule that to be considered an aged witness, a person must be at least seventy years old. See Aged Witness.
WITNESS, GOING. A going witness is one who is about to leave the jurisdiction of the court in which a cause is depending. See Going Witness.
WITNESS INSTRUMENTARY, Scotch law. He who has attested a deed or other writing.
2. When witnesses attest a deed without knowing the grantor, and seeing him subscribe, or bearing him own his subscription, and the deed happens to be forged, the witnesses are declared accessory to forgery. Ersk. Pr. L. Scot, 4, 4, 37; 6 Hill, N. Y. Rep. 303.
WOMEN, persons. In its most enlarged sense, this word signifies all the females of the human species; but in a more restricted sense, it means all such females who have arrived at the age of puberty. Mulieris appellatione etiam virgo viri potens continetur. Dig. 50, 16, 13.
2. Women are either single or married. 1. Single or unmarried women have all the civil rights of men; they may therefore enter into contracts or engagements; sue and be sued; be trustees or guardians, they may be witnesses, and may for that purpose attest all papers; but they are generally, not possessed of any political power; hence they cannot be elected representatives of the people, nor be appointed to the offices of judge, attorney at law, sheriff, constable, or any other office, unless expressly authorized by law; instances occur of their being appointed post-mistresses nor can they vote at any election. Wooddes. Lect. 31; 4 Inst. 5; but see Callis, Sew. 252; 2 Inst 34; 4 Inst. 311, marg.
3. - 2. The existence of a married woman being merged, by a fiction of law, in the being of her husband, she is rendered incapable, during the coverture, of entering into any contract, or of suing or being sued, except she be joined with her husband; and she labors under all the incapacities above mentioned, to which single women are subject. Vide Abortion; Contract; Divorce; Feminine; Foetus; Gender; Incapacity; Man; Marriage; Masculine; Mother; Necessaries; Parties to Actions Parties to Contracts; Pregnancy; Wife.
WOODGELD, old Eng. law. To be free from the payment of money for taking of wood in any forest. Co. Litt. 233 a. The same as Pudzeld. (q. v.)
WOODS, A piece of land on which forest trees in great number naturally grow. According to Lord Coke, a grant to another of omnes boscos suos, all his woods, will pass not only all his trees, but the land on which they grow. Co. Litt. 4 b.
WORD, construction. One or more syllables which when united convey an idea a single part of speech.
2. Words are to be understood in a proper or figurative sense, and they are used both ways in law. They are also used in a technical sense. It is a general rule that contracts and wills shall be construed as the parties understood them; every person, bowever, is presumed to understand the force of the words be uses, and therefore technical words must be taken according to their legal import, even iii wills, unlesh the testator manifests a clear intention to the contrary. 1 Bro. C. C. 33; 3 Bro. C. C. 234; 5 Ves. 401 8 Ves. 306.
3. Every one is required to use words in the sense they are generally understood, for, as speech has been given to man to be a sign of his thoughts, for the purpose of communicating them to others, he is bound in treating with them, to use such words or signs in the sense sanctioned by usage, that is, in the sense in which they themselves understand them, or else he deceives them. Heinnec. Praelect. in Puffendorff, lib. 1, cap. 17, §2 Heinnec. de Jure Nat. lib. 1, §197; Wolff, lust. Jur. Nat. §7981.
4. Formerly, indeed, in cases of slander, the defamatory words received the mildest interpretation of which they were susceptible, and some ludicrous decisions were the consequence. It was gravely decided, that to say of a merchant, "he is a base broken rascal, has broken twice, and I will make him break a third time," that no action could be maintained, because it might be intended that he had a hernia: ne poet dar porter action, car poet estre intend de burstness de belly. Latch, 104. But now they are understood in their usual signification. Comb. 37; Ham. N. P. 282. Vide Bouv. Inst. Index, h. t.; Construction; Interpretation.
WORK AND LABOR. In actions of assumpsit, it is usual to put in a count, commonly called a common count, for work and labor done, and materials furnished by the plaintiff for the defendant; and when the work was not done under a special contract, the plaintiff will be entitled to recover on the common count for work, labor, and materials. 4 Tyr. R. 43; 2 C. & M. 214. Vide Assumpsit; Quantum meruit.
WORKHOUSE. A prison where prisoners are kept in employment; a penitentiary. A house provided where the poor are taken care of, and kept in employment.
WORKING DAYS. In settling laydays, (q. v.) or days of demurrage, (q. v.) sometimes the contract specifies working days in the computation, Sundays and custom-house holidays are excluded. 1 Bell's Com. 577, 5th ed.
WORKMAN. One who labors, one who is employed to do business for another.
2. The obligations of a workman are to perform the work he has undertaken to do; to do it in proper time; to do it well to employ the things furnished him according to his contract.
3. His rights, are to be paid what his work is worth, or what it deserves; to have all the facilities which the employer can give him for doing his work. 1 Bouv. Just. n. 1000 to 1006.
WORSHIP. The honor and homage rendered to the Creator.
2. In the United States, this is free, every one being at liberty to worship God according to the dictates of his conscience. Vide Christianity; Religious test.
WORSHIP, Eng. law. A title or addition given to certain persons. 2 Inst. 666; Bac. Ab. Misnomer, A 2.
WORTHIEST OF BLOOD. All expression to designate that, in descent, the sons are to be preferred to daughters, which is the law of England. See some singular reasons given for this, in Plowd. 305.
WOUND, med. jur. This term, in legal medicine, comprehends all lesions of the body, and in this it differs from the meaning of the word when used in surgery. The latter only refers to a solution of continuity, while the former comprises not only these, but also every other kind of accident, such as bruises, contusions, fractures, dislocations, and the like. Cooper's Surgical Dict. h. t.; Dunglison's Med. Dict. h. t.; vide Dictionnaire des Sciences Medicales, mot Blessures 3 Fodere, Med. Leg. §687-811.
2. Under the statute 9 Geo. IV. c. 21, sect. 12, it has been held in England, that to make a wound, in criminal cases, there must be "an injury to the person by which the skin is broken." 6 C. & P. 684; S. C. 19 Engl. C. L. Rep. 526. Vide Beck's Med. Jur. c. 15; Ryan's Med. Jur. Index, h. t.; Roscoe's Cr. Ev. 652; 19 Engl. Com. L. Rep. 425, 430, 526, 529; Dane's Ab. Index, h. t.; 1 Moody's Cr. Cas. 278; 4 C. & P. 381; S. C. 19 E. C. L. R. 430; 4 C. & P. 446; S. C. 19 E. C. L. R. 466; 1 Moody's Cr. C. 318; 4 C. & P. 558; S. C. 19 E. C. L. R. 526; Carr. Cr. L. 239; Guy, Med. Jur. ch. 9, p. 446; Merl. Repert. mot Blessure.
3. When a person is found dead from wounds, it is proper to inquire whether they are the result of suicide, accident, or homicide. In making the examination, the greatest attention should be bestowed on all the circumstances. On this subject some general directions have been given under the article Death. The reader is referred to 2 Beck's Med. Jur. 68 to 93. As to, wounds on the living body, see Id. 188.
WRECK, mar. law. A wreck (called in law Latin, wreccum maris, and in law French, wrec de mer,) signifies such goods, as after a shipwreck, are cast upon land by the sea, and left there within some county, so as not to belong to the jurisdiction of the admiralty, but to the common law. 2 Inst. 167; Bract. 1. 3, c. 3; Mirror, c. 1, s. 13, and c. 3.
2. The term `wreck of the sea' includes, 1. Goods found at low water, between high and low water mark; and 2. Goods between the same limits, partly resting on the ground, but still moved by the water. 3 Hagg. Adm. R. 257.
3. When goods have touched the ground, and have again been floated by the tide, and are within low water mark; whether they are to be considered wreck will depend upon the circumstances whether they were, seized by a person wading, or swimming, or in a boat. 3 Hagg. Adm. R. 294. But if a human being, or even an animal, as a dog, cat, hawk, &c. escape alive from the ship, or if there be any marks upon the goods by which they may be known again, they are not, at common law, considered as wrecked. 5 Burr. 2738-9; 2 Chit. Com. Law, c. 6, p. 102; 2 Kent, Com. 292; 22 Vin. Ab. 535; 1 Bro. Civ. Law, 238; Park, Ins. Index, h. t.; Molloy, Jur. Mar. Index, h. t.
4. The act of congress of March 1, 1823, provides, §21, That, before any goods, wares or merchandise, which may be taken from any wreck, shall be admitted to an entry, the same shall be appraised in the manner prescribed in the sixteenth section of this act and the same proceedings shall be ordered and executed in all cases where a reduction of duties shall be claimed on account of damage which any goods, wares, or merchandise, shall have sustained in the course of the voyage and in all cases where the owner, importer, consignee, or agent, shall be dissatisfied with such appraisement, he shall be entitled to the privileges provided in the eighteenth section of this act. Vide Naufrage.
WRIT, practice. A mandatory precept issued by the authority, and in the name of the sovereign or the state, for the purpose of compelling the defendant to do something therein mentioned.
2. It is issued by a court or other competent jurisdiction, and is return-able to the same. It is to be under seal and tested by the proper officer, and is directed to the sheriff, or other officer lawfully authorized to execute the same. Writs are divided into, 1. Original. 2. Of mesne process. 3. Of execution. Vide 3 Bl. Com. 273; 1 Tidd, Pr. 93; Gould on Pl. c. 2, s. 1. There are several kinds of writs, some of which are mentioned below.
WRIT DE BONO ET MALO. An ancient writ which was issued in the case of each prisoner, instead of a general commission of general jail delivery for all the prisoners. This writ has not been used for a very long time, and is obsolete. 4 Bl. Com. 210.
WRIT OF CONSPIRACY. The name of an ancient writ, now superseded by the more convenient remedy of an action on the case, which might have been sued against parties guilty of a conspiracy. F. N. B. 260. See Conspiracy.
WRIT OF DECEIT. The name of a writ which lies where one man has done anything in the name of another, by which the latter is damnified and deceived. F. N. B. 217.
2. The modern practice is to sue a writ of trespass on the case to remedy the injury. See Deceit.
WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment, and 3 Bl. Com. 199.
WRIT DE HAERETICO COMBURENDO, Engl. law. The name of a writ formerly issued by the secular courts, when a man was turned over to them by the ecclesiastical tribunals, after having been condemned for heresy.
2. It was founded on the statute 2 Hen. IV. c. 15; it was first used, A. D. 1401, and as late as the year 1611. By virtue of this writ, the unhappy man against whom it was issued, was burned to death. See 12 Co. R. 92.
WRIT DE HOMINE RELEGIANDO, practice. A writ which lies to replevy a man out of prison, or out of the custody of any private person, in the same manner in which cattle taken in distress may be replevied, upon giving security to the sheriff that the man shall be forthcoming to answer to any charge against him.
2. This writ is almost entirely superseded by the more effectual writ of habeas corpus. 3 Bl. Com. 129; Com. Dig. Imprisonment, L 4; Lord Raym. 613; F. N. B. 66; 1 Atk. 633; 14 Vin. Ab. 305; Dane's Ab. h. t.; 7 Com. Dig. 271; 5 Binn. R. 304; 1 John. R. 23; 14 John. R. 263 2 Cain. C. Err. 322.
WRIT DE ODIO ET ATIA, Engl. law. This writ is probably obsolete, and superseded by the writ of habeas corpus. It was anciently directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause or suspicion, or merely propter odium et atiam, for hatred and ill-will; and, if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail, 3 Bl. Com. 128; Com. Dig. Imprisonment, L 3.
WRIT OF COVENANTS, practice. A writ which lies where a party claims damage for breach of covenant, i. e. of a promise under seal.
WRIT OF DEBT, practice. A writ which lies where the party claims the re-covery of a debt, i. e. a liquidated or certain sum of money alleged to be due to him. This is debt in the debet, which is the principal and only common form. There is another species mentioned in the books, called the debt in the detinet, which lies for the specific recovery of goods, under a contract to deliver them. 1 Chit. Pl. 101.
WRIT OF DETINUE, practice. A writ which lies where a party claims the spe-cific recovery of goods and chattels, or deeds and writings detained from him. This is seldom used: trover is the more frequent remedy, in cases where it may be brought.
WRIT OF DOWER, practice. A writ which lies for a widow ciaiming the specific recovery of her dower, no part having been yet assigned to her. It is usually called a writ of dower unde nihil habet. 3 Chit. Pl. 393; Booth, 166.
2. There is another species, called a writ of right of dower, which applies to the particular case where the widow has received a part of her dower from the tenant himself, and of land lying in the same town in which she claims the residue. Booth, 166; Glanv. lib. 6, c. 4, 5. This latter writ is seldom used in practice.
WRIT OF EJECTMENT, practice. The name of a process issued by a party claiming land or other real estate, against one who is alleged to be unlawfully in possession. Vide Ejectment.
WRIT OF ENTRY, practice. A writ requiring the sheriff to command the tenant of land that he render to the demandant the premises in question, or to appear in court on such a day to show cause why he hath not done so. Co. Litt. 238. See 2 Pick. 473; 10 Pick. 359; 14 Mass. 20; 15 Mass. 305; 5 N. Hamp. R. 450; 6 N. Hamp. R. 555; 7 Pick. 36.
WRIT OF ERROR, practice. A writ issued out of a court of competent jurisdiction, directed to the judge of a court of record in which final judgment has been given, and commanding them, in some cases, themselves to examine the re-cord; in others to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceeding may be corrected. Steph. Pl. 138; 2 Saund. 100, n. 1; Bac. Ab. Error, in pr.
2. The first is called a writ of error coram nobis or vobis. When an issue in fact has been decided, there is not in general any appeal except by motion for a new trial; and although a matter. of fact should exist which was not brought into the issue, as for example, if the defendant neglected to Plead a release, which he might have pleaded, this is no error in the proceedings, though a mistake of the defendant. Steph. Pl. 139. But there are some facts which affect the validity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error coram vobis. The death of one of the parties at the commencement of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian; the coverture of either party, at the commencement of the suit, when her husband is not joined with her, are instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212; 2 Tidd's Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.
3. The second species is called, generally, writ of error, and is the more common. Its object is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail. Vide, generally, Tidd's Pr. ob. 43; Graham's Pr. B. 4, o. 1; Bac. Ab. Error; 1 Vern. 169; Yelv. 76; 1 Salk. 322; 2 Saund. 46, n. 6, and 101, n. 1; 3 Bl. Com. 405; Serg. Const. Law, ch. 5.
4. In the French law the demande en cassation is somewhat similar to our proceeding in error; according to some of the best writers on French law, it is considered as a new suit, and it is less an action between the original parties, than a question between the judgment and the law. It is not the action which is to be judged, but the judgment; "la demande en cassation est un nouveau proces, bien moins entre les parties qui figuraient dans le premier, qu'entre l'arret et la loi." Henrion de Pansey, de l'Autorite judiciare dans les gouvernemens monarchiques, p. 270, edit. in 8vo.; 6 Toull. n. 193. Ce n'est point le' proces qu'il s'agit de juger, mais le jugement. Ib.
5. A writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of any thing which is withheld from him, not when its operation is entirely defensive. 3 Story. Const. §1721. And it is considered generally as a new action. 6 Port 9.
WRIT OF EXECUTION, practice. A writ to put in force the sentence that the law has given: it is addressed to the Sheriff (and in the courts of the United States, to the marshal) commanding him, according to the nature of the case, either to give the plaintiff possession of lands; or to enforce the delivery of a chattel which was the subject of the action; or to levy for the plain-tiff, the debt, or damager, and costs recovered; or to levy for the defendant his costs; and that, either upon the body of the opposite party, his lands, or goods, or in some cases, upon his body, land, and goods; the extent and manner of the execution directed, always depending upon the nature of the judgment. 3 Bl. Com. 413.
2. Writs of execution are supposed to be actually awarded by the judges in court; but no such award is in general, actually made. The attorney, after signing final judgment, sues out of the proper office a writ of execution, in the form to which he conceives he would be entitled upon such judgment as he. has entered, if such entry has been actually made; and, if not made, then upon such as he thinks he is entitled to enter; and he does this, of course, upon peril that, if he takes a wrong execution, the proceeding is legal and void, and the opposite party entitled to redress. Steph. Pl, 137, 8. See Ca. Sa.; Execution; Fi. Fa.; Haberefa. possessionem; Vend. Exp.
WRIT OF EXIGI FACIAS. The name of a process issued in the course of proceedings in outlawry, and which immediately precedes the writ of capias agatum. See Exigent, or Exigi Facias.
WRIT OF FORMEDON, practice. This writ lies where a party claims the specific recovery of lands and tenements, as issue in tail; or as remainder-man or reversioner, upon the determination of an estate in tail. Co. Litt. 236 b; Booth, 139, 151, 154.
WRIT OF INQUIRY, practice. When in an action sounding in damages, (q. v.) as covenant, trespass, and the like, an interlocutory judgment is rendered, which is, that the plaintiff ought to recover his damages, without specifying the amount, it not yet being ascertained, the court does not in general undertake the office of assessing the damages, but issues a writ of inquiry, which is a writ directed to the sheriff of the county where the facts are alleged by the pleadings to have occured, commanding him to inquire into the amount of damages sustained "by the oath or affirmation of twelve good or lawful men of his county;" and to return such inquisition, when made, to the court.
2. The finding of the sheriff and jury under such a proceeding is called an inquisition. (q. v.)
3. The court will, on application, order that a writ of inquiry shall be executed before a judge, where it appears that important questions of law will arise. 2 John. R. 107.
4. When executed before the sheriff, he acts ministerially, and not judicially, and therefore, it may be executed before a deputy of the sheriff. 2 John R. 63. Vide Steph. Pl. 126; Grah. Pr. 639; 2 Archb. Pr. 19; Tidd's Pr. 513; Yelv. 152, n.; 18 Eng. Com. Law Rep. 181, n., 189, n.; 1 Marsh. R. 129; l Sell. Pr. 346; Watson on Sher. 221; 2 Saund. 107, n. 2.
WRITS, JUDICIAL, practice. In England those writs which issue from the common law courts during the progress of a suit, are described as judicial writs, by way of distinction from the original one obtained from chancery. 3 Bl. Com. 282.
WRIT OF MAINPRIZE, English law. A writ directed to the sheriff (either gen-erally, when any man is imprisoned for a bailable offence, and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below) commanding him to take sureties for the prisoner's appearance, commonly called mainpernors, and to set him at large. 3 B]. Com. 128. Vide Mainprize.
WRIT OF MESNE, Breve' de medio, old English law. A writ which was so called, by reason of the words used in the writ, namely, Unde idem A qui medius est inter C et praefatum B; that is, A, who is mesne between C, the lord paramount, and B, the tenant paravail. Co. Litt. 100, a.
WRIT, ORIGINAL, practice, English law. An original writ is a mandatory letter issuing out of the court of chancery under the great seal and in a king's name, directed to the sheriff of the county where the injury is alleged to have been committed, containing a summary statement of the cause of complaint, and requiring him in most cases, to command the defendant to satisy the claim; and, on his failure to comply, then to summon him to appear in one of the superior courts of common law, there to account for his non-compliance. In some cases, however, it omits the former alternative, and requires the sheriff simply to enforce the appearance. Steph. Pl. 5.
WRIT OF REPLEVIN, practice. The name of a process issued for the recovery of goods and chattels. Vide Replevin.
WRIT OF PRAECIPE. This writ is also called a writ of covenant, and is sued out by the party to whom lands are to be conveyed by fine; the foundation of which is a supposed agreement or covenant that the one shall convey the land to the other. 2 Bl. Com. 349, 350.
WRIT OF PREVENTION. This name is given to certain writs which may be issued in anticipation of suits which may arise. Co. Litt. 100. See Quia Timet.
WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out by a widow when the executors of her deceased husband refused to let her have a third part of her late husband's goods after the debts were paid. F. N. B. 284.
WRIT OF RESTITUTION. A writ which is issued on the reversal of a judgment, commanding the sheriff to restore to the defendant below, the thing levied upon, if it has not been sold, and if it has been sold, the proceeds. Bac. Ab. Execution, Q. Vide Restitution.
WRIT PRO RETORNO HABENDO, remedies, practice. The name of a writ which re-cites that the defendant was summoned to appear to answer the plaintiff in a plea whereof he took the cattle of the said plaintiff, specifying them, and that the said plaintiff afterwards made default, wherefore it was then considered that the said plaintiff and his pledges of prosecuting should be in mercy and that the said defendant should go without day, and that he should have re-turn of the cattle aforesaid. It then commands the sheriff, that he should cause to be returned the cattle aforesaid, to the said defendant without delay, &c. 2 Sell. Pr. 168. Vide Judgment in replevin.
WRIT OF PROCESS, Engl. law, pradice. If the defendant does not appear, in obedience to the original writ, there issue, when the time for appearance is past, other writs, returnable on some general return day in the term, called writs of process, enforcing the appearance of the defendant, either by attachment, or distress of his property, or arrest of his person, according to the nature of the case.
2. These differ from the original writ in the following particulars; they issue not out of chancery, but out of the court of common law, into which the original writ is returnable; and, accordingly, are not under the great seal, but the private seal of the court; and they bear teste in the named of the chief justice of that court, and not in the name of the king himself. It may also be observed, that in common with all other writs issuing from the court of common law, during the progress of the suit, they are described as judicial writs, by way of distinction from the original one obtained from the chancery. 4 Bl. Com. 282. See further, as to the nature of those writs, 1 Tidd's Pr. 106-193, 4th edit.; 1 Sellon's Pr. 64-102.
WRIT OF PROCLAMATION, Engl. practice. A writ which issues, at the same time with the exigi facias, by virtue of Stat. 31 Eliz. c. 3, s. 1, by which the sheriff is commanded to make proclamations in the statute prescribed.
2. When it is not directed to the same sheriff as the writ of exigi facias is, it is called a foreign writ of proclamation. Lee's Dict. of Pr.; 4 Reev. Inst. 261.
WRIT OF QUARE IMPEDIT, English law. The remedy by which, where the right of a party to benefice is obstructed, he recovers the presentation; and is the form of action now constantly adopted to try a disputed title to an advowson. Booth, 223 1 Arch. Civ. Pl. 34.
WRIT OF RECAPTION, practice. This writ lies where, pending an action of replevin, the same distrainor takes, for the same supposed cause, the cattle or goods of the same distrainee. See F. N. B. 169.
2. This writ is nearly obsolete, as trespass, which is found to be a pre-ferable remedy, lies for the second taking; and, as the defendant cannot justify, the plaintiff must necessarily recover damages proportioned to the injury.
WRIT OF RIGHT, practice. The remedly appropriate to the case where a party claims the specific recovery of corporeal hereditaments in fee simple; founding his title on the right of property, or mere right, arising either from his own seisin, or the seisin of his ancestor or predecessor. F. N. B. 1 B 3 Bl. Com. 391.
2. At common law, a writ of right lies only against the tenant of the free-hold demanded. 8 Cranch, 239.
3. This writ brings into controversy only the rights of the parties in the suit, and a defence that a third person has better title will not avail. Id.; 7 Wheat. 27; 3 Pet. 133. See 2 Wheat. 306; 4 Bing. N. S. 711; 3 Bing. N. S. 434; 4 Scott, R. 209; 6 Scott, R. 435; Id. 738; 1 Bing. N. S. 597; 5 Bing. N. S. 161; 6 Ad. & Ell. 103; 1 H. Bl. 1; 5 Taunt. R. 326; 1 Marsh. R. 68; 2 Bos. & P. 570; 1 N. R. 64; 4 Taunt. R. 572; 3 Bing. R. 167; 2 W. Bl. Rep. 1261; 1 B. & B. 17; 2 Car. & P. 187; Id. 271 Holt, R. 657; 8 Cranch, 229; 3 Fairf. 312; 7 Wend. 250; 3 Bibb, 57; 3 Rand. 568 2 J. J. Marsh. 104; 2 A. K. Marsh. 396; 1 Dana, 410; 2 Leigh, R. 1 4 Mass. 64; 17 Mass. 74.
WRIT OF TRESPASS, practice. This writ lies where a party claims damages for a trespass committed against his person, or tangible and corporeal property. See Trespass.
WRIT OF TRESPASS ON THE CASE, practice. A writ which lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not apply. See 3 Woodd. 167; Steph. Pl. 15.
2. This action originates in the power given by the statute of Westm. 2, to the clerks of chancery to frame new writs in consimili casu with writs already known. Under this power they constructed many writs for different injuries, which were considered as in consimili casu, with, that is, to bear a certain analogy to a trespass. The new writs invented for the cases supposed to bear such analogy, have received, accordingly, the appellation of writs of trespass on the case, as being founded on the particular circumstances of the case thus requiring a remedy, and, to distinguish them from the old writ of trespass; 3 Reeves, 89, 243, 391; and the injuries themselves, which are the subjects of such writs, are not called trespasses, but have the general name of torts, wrong or grievances.
3. The writs of trespass on the case, though invented thus, pro re nata, in various forms, according to the nature of the different wrongs which respectively called them forth began nevertheless, to be viewed as constituting collectively a new individual form of action; and this new genus took its place, by the name of Trespass on the case, among the more ancient actions of debt, covenant, trespass, &c. Such being the nature of this action, it comprises, of course, many different species. There are two, however, of more frequent use than any other species of trespass on the case, or, perhaps, than any other firm of action whatever. These are assumpsit and trover. Steph. Pl. 15, 16.
WRIT OF TOLT, Eng. law. The name of a writ to remove proceedings on a writ of right patent from the court baron into the county court. 3 Bl. Commen-taries, App. No. 1, §2.
WRIT OF WASTE. The name of a writ to be issued against a tenant who has committed waste of the premises. There are several forms of this writ, that against a tenant in dower differs from the others. F. N. B. 125.
WRITING. The act of forming by the hand letters or characters of a particular kind on paper or other suitable substance, and artfully putting them together so as to co nvey ideas. It differs from printing, which is the formation of words on paper or other proper substance by means of a stamp. Sometimes by writing ii understood printing, and sometimes printing and writing mixed.
2. Many contracts are required to be in writing; all deeds for real estate must be in writing, for it cannot be conveyed by a contract not in writing, yet it is the constant practice to make deeds partly in printing, and partly in writing. Wills, except nuncupative wills, must begin writing, and signed by the testator; and nuncupative wills must be reduced to writing by the witnesses within a limited time after the testator's death.
3. Records, bonds, bills of exchange and many other engagements, must, from their nature, be made in writing, See Frauds, statute of; Language.
WRITING OBLIGATORY. A bond; an agreement reduced to writing, by which the party becomes bound to perform something, or suffer it to be done.
WRONG. An injury; (q. v.) a tort (q. v.) a violation of right. In its most usual sense, wrong signifies an injury committed to the person or property of another, or to his relative rights, unconnected with contract; and these wrongs are committed with or without force. But in a more extended signification, wrong includes the violation of a contract; a failure by a man to perform his undertaking or promise is a wrong or injury to him to whom it was made. 3 Bl. Com. 158.
2. Wrongs are divided into public and private. 1. A public wrong is an act which is injurious to the public generally, commonly known by the name of crime, misdemeanor, or offence, and it is punishable in various ways, such as indictments, summary proceedings, and upon conviction by death, imprisonment, fine, &c. 2. Private wrongs, which are injuries to individuals, unaffecting the public: these are redressed by actions for damages, &c.
WRONG-DOER. One who commits an injury, a tort-feasor. (q. v.) Vide Dane's Abridgment, Index, h. t.
WRONGFULLY INTENDING. These words are used in a declaration when in an action for an injury, the motive of the defendant in committing it can be proved, for then his malicious intent ought to be averred. This is sufficiently done if it be substantially alleged, in general terms, as wrongfully intending. 3 Bouv. Inst. n. 2871.