Rick Siegel Prespectives on Freedom and Liberty

Bouvier's Law Dictionary 1856 Edition
B
BACHELOR. The first degree taken at the universities in the arts
and sciences, as bachelor of arts, & c. It is called, in Latin,
Baccalaureus, from bacalus, or bacillus, a staff, because a staff was given, by
way of distinction, into the hands of those who had completed their studies.
Some, however, have derived the word from baccalaura, others from bas
chevalier, as designating young squires who aspire to the knighthood. (Dupin.)
But the derivation. of the word is uncertain.
BACK-BOND. A bond given by one to a surety, to* indemnify such
surety in case of loss. In Scotland, a back-bond is an instrument which, in
conjunction with another which gives an absolute disposition, constitutes a
trust. A declaration of trust.
BACK-WATER. That water in a stream which, in consequence of some
obstruction below, is detained or checked in its course, or reflows.
2. Every riparian owner is entitled to the benefit of the water in its
natural state. Whenever, therefore, the owner of land dams or impedes the water
in such a manner as to back it on his neighbor above, he is liable to an
action; for no one has a right to alter the level of the water, either where it
enters, or where it leaves his property. 9 Co. 59; 1 B. & Ald. 258; 1 Wils.
R. 178; 6 East, R. 203; 1 S. & Stu. 190.; 4 Day, R. 244; 7 Cowen, R. 266; 1
Rawle, R. 218; 5 N. R. Rep. 232; 9 Mass. R. 316; 7 Pick. R. 198; 4 Mason, R.
400; 1 Rawle, R. 27; 2 John. Ch. R. 162, 463; 1 Coxe's. R. 460. Vide, Dam;
Inundation; Water-course; and 5 Ohio R. 322.
BACKING, crim. law practice. Backing a warrant occurs whenever
it becomes necessary to execute it out of the jurisdiction of the magistrate
who granted it; as when an offender escapes out of the county in which he
committed the offence with which he is charged, into another county. In such a
case, a magistrate of the county in which the offender may, be found, endorses,
or writes his name on the back of the warrant, and thereby gives authority to
execute it within his jurisdiction. This is called backing the warrant. This
may be from county to county, if necessary.
BACKSIDE, estates. In England this term was formerly used in
conveyances and even in pleadings, and is still, adhered to with reference to
ancient descriptions in deeds, in continuing the transfer of the same.
property. It imports a yard at the back part of, or behind a house, and
belonging thereto: but although formerly used in pleadings, it is now unusual
to adopt it, and the word yard is preferred. 1 Chitty's Pr. 177; 2 Ld. Raym.
1399.
BADGE. A mark or sign worn by some persons, or placed upon
certain things for the purpose of designation. Some public officers, as
watchmen, policemen, and the like, are required to wear badges that they may be
readily known. It is used figuratively when we say, possession of personal
property by the seller, is. a badge of fraud.
BAGGAGE. Such articles as are carried by a traveller; luggage.
Every thing which a passenger, carries, with him is not baggage. Large sums of
money, for example, carried in a travelling trunk, will not be considered
baggage, so as to render the carrier responsible. 9 Wend. R. 85. But a watch
deposited in his trunk is part of his baggage. 10 Ohio R. 145. See, as to what
is baggage, 6 Hill, R. 586 5 Rawle, 188, 189; 1 Pick. 50.
2. In general a common carrier of passengers is responsible for baggage,
if lost, though no distinct price be paid for transporting it, it being
included in the passenger's fare. Id. The carrier's responsibility for the
baggage begins as soon as it has been delivered to him, or to his servants, or
to some other person authorized by him to receive it. Then the delivery is
complete. The risk and responsibility of the carrier is at an end as soon as he
has delivered the baggage to the owner or his agent; and if an offer to deliver
it be made at a proper time, the carrier will be discharged from
responsibility, us 'such yet, if the baggage remain in his custody afterwards,
he will hold as, bailee, and be responsible for it according to the terms of
such bailment ana, R. 92. Vide Common Carriers
3. By the act of congress of March 2, 1799, sect. 46, 1 Story's L. U. S.
612, it is declared that all wearing apparel and other personal baggage,
&c., of persons who shall arrive in the United States, shall be free and
exempted from duty.
BAIL, practice, contracts. By bail is understood sureties, given
according to law, to insure the appearance of a party in court. The persons who
become surety are called bail. Sometimes the term is applied, with a want of
exactness, to the security given by a defendant, in order to obtain a stay of
execution, after judgment, in civil cases., Bail is either civil or
criminal.
2.- 1. Civil bail is that which is entered in civil cases, and is common
or special bail below or bail above.
3. Common bail is a formal entry of fictitious sureties in the proper
office of the court, which is called filing. common bail to the action. It is
in the same form as special bail, but differs from it in this, that the
sureties are merely fictitious, as John Doe and Richard Roe: it has,
consequently, none of, the incidents of special bail. It is allowed to the
defendant only when he has been discharged from arrest without bail, and it is
necessary in such cases to perfect the appearance of the defendant. Steph. Pl.
56, 7; Grah. Pr. 155; Highm. on Bail 13.
4. Special bail is an undertaking by one or more persons for another,
before some officer or court properly authorized for that purpose, that he
shall appear at a certain time and place, to answer a certain charge to be
exhibited against him. The essential qualification to enable a person to become
bail, are that he must be, 1. a freeholder or housekeeper; 2. liable to the
ordinary process of the court 3. capable of entering into a contract; and 4.
able to pay the amount for which he becomes responsible.
1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5
Taunt. 174; Lofft, 148 3 Petersd. Ab. 104.
2. He must be subject to the ordinary process of the court; and a person
privileged from arrest, either permanently or temporarily, will not be taken. 4
Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
3. He must be competent to enter into a contract; a feme covert, an
infant, or a person non compos mentis, cannot therefore become bail.
4. He must be able to pay the amount for which he becomes responsible.
But it is immaterial whether his property consists of real or personal estate,
provided it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit. Rep. 97;
11 Price, 158; and be liable to the ordinary process of the law; 4 Burr. 2526;
though this rule is not invariably adhered to, for when part of the property
consisted of a ship, shortly expected, bail was permitted to justify in respect
of such property. 1 Chit. R. 286, n. As to the persons who cannot be received
because they are not responsible, see 1 Chit. R. 9, 116; 2 Chit. R. 77, 8;
Lofft, 72, 184; 3 Petersd. Ab. 112; 1 Chit. R. 309, n.
5. Bail below. This is bail given to the sheriff in civil cases, when
the defendant is arrested on bailable process; which is done by giving him a
bail bond; it is so called to distinguish it from bail above. (q. v.) The
sheriff is bound to admit a man to bail, provided good and sufficient sureties
be tendered, but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4 Anne, c.
16, §20; B. N. P. 224; 2 Term Rep., 560. The sheriff, is not, however,
bound-to demand bail, and may, at his risk, permit the defendant to be at
liberty, provided he will appear, that is, enter bail above, or surrender
himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking of bail below
is, that the defendant will appear or put in bail to the action on the return
day of the writ.
6. Bail above, is putting in bail to the action, which is an appearance
of the defendant. Bail above are bound either to satisfy the plaintiff his debt
and costs, or to surrender the defendant into custody, provided judgment should
be against him and he should fail to do so. Sell. Pr. 137.
7. It is a general rule that the defendant having been held to bail, in
civil cases, cannot be held a second time for the same cause of action. Tidd' s
Pr. 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur. 594. See
Auter action Pendent; Lis pendens.
8. - 2. Bail in criminal cases is defined to be a delivery or bailment
of a person to sureties, upon their giving, together with himself, sufficient
security for his appearance, he being supposed to be in their friendly custody,
instead of going to prison.
9. The Constitution of the United States directs that "excessive bail
shall not be required." Amend. art. 8.
10. By the acts of congress of September, 24, 1789, s. 33, and March 2,
1793, s. 4, authority is given to take bail for any crime or offence against
the United States, except where the punishment is death, to any justice or
judge of the United States, or to any chancellor, judge of the supreme or
superior court, or first judge of any court of common pleas, or mayor of any
city of any state, or to any justice of the peace or other magistrate of any
state, where the offender may be found the recognizance tal,-en by any of the
persons authorized, is to be returned to the court having cognizance of the
offence.
11. When the punishment by the laws of the United States is death, bail
can be taken only by the supreme or circuit court, or by a judge of the
district court of the United States. If the person committed by a justice of
the supreme court, or by the judge of a district court, for an offence not
punishable with death, shall, after commitment, offer bail, any judge of the
supreme or superior court of law, of any state, (there being no judge of the
United States in the district to take such bail,) way admit such person to
bail.
12. Justices of the peace have in general power to take bail of persons
accused; and, when they have such authority they are required to take such bail
There are many cases, however, under the laws of the several states, as well as
under the laws of the United States,, as above mentioned, where justices of the
peace cannot take bail, but must commit; and, if the accused offers bail, it
must be taken by a judge or other,, officer lawfully authorized.
13. In Pennsylvania, for example, in cases of murder, or when the
defendant is charged with the stealing of any horse, mare, or gelding, on the
direct testimony of one witness; or shall be taken having possession of such
horse, mare, or gelding, a justice of the peace cannot admit the party to bail.
1 Smith's L. of Pa. 581.
14. In all cases where the party is admitted to bail, the recognizance
is to be returned to the court having jurisdict on of the offence charged. Vide
Act of God. Arrest; Auter action pendent; Deat Lis pendens.
BAIL BOND, practice, contracts. A specialty by which the
defendant and other persons, usually not less than two, though the sheriff may
take only one, become bound to the sheriff in a penalty equal to that for which
bail is demanded, conditioned for the due appearance of such defendant to the
legal process therein described, and by which the sheriff has been commanded to
arrest him. It is only where the defendant is arrested or in the custody of the
sheriff, under other than final process, that the sheriff can take such bond.
On this bond being tendered to him, which he is compelled to take if the
sureties are good, he must discharge the defendant. Stat. 23 H. VI. c. 9.
2. With some exceptions, as for example, where the defendant surrenders;
5 T. R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326; nothing can be a
performance of the condition of the bail bond, but putting in bail to the
action. 5 Burr. 2683.
3. The plaintiff has a right to demand from the sheriff an assignment of
such bond, so that he may sue it for his own benefit. 4 Ann. c. 16, §20;
Wats. on Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites of a
bail bond, see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T. R. 702;
9 East, 55; . D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R.
264 East, 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.
BAIL PIECE. A certificate given by a judge or the clerk of the
court, or other person authorized to keep the record, in which it is certified
that A B, the bail, became bail, for C D, the defendant, in a certain sum, and
in a particular case. It was the practice formerly, to write these certificates
upon small pieces of parchment, in the following form: (See 3 Bl. Com.
Appendix.)
In the Court of ______________, of the Term of ________, in the year of
our Lord, ____________, ________________City and County of ________________,
ss. Theunis Thew is delivered to bail upon the taking of his body, to Jacobus
Vanzant, of the city of_________________, merchant, and to John Doe, of the
same city, yeoman. SMITH, JR. At the suit of Attorney for Deft. PHILIP
CARSWELL. Taken and acknowledged the ____ day of _______, A. D. _____, before
me. D. H.
2. As the bail is supposed to have the custody of the defendant, when he
is armed with this process, he may arrest the latter, though he is out of the
jurisdiction of the court in which he became bail, and even in a different
state. 1 Baldw. 578; 3 Com. 84, 421; 2 Yeates, 263 8 pick. 138; 7 John. 145; 3
Day, 485. The bail may take him even while attending court as a suitor, or any
time, even on Sunday. 4 Yeates, 123; 4 Conn. 170. He may break even an outer
door to seize him; and command the assistance of the sheriff or other officers;
8 Pick. 138; and depute his power to others.. 1 John. Cas. 413; 8 Pick. 140.
See 1 Serg. & R. 311.
BAILABLE ACTION. One in which the defendant is entitled to be
discharged from arrest, only upon giving bail to answer.
BAILABLE PROCESS. Is that process by which an officer is
required to arrest a person, and afterwards to take bail for his appearance. A
capias ad respondendum is bailable, but a capias ad satisfaciendum is not.
BAILEE, contracts. One to whom goods are bailed.
2. His duties are to act in good faith he is bound to use extraordinary
diligence in those contracts or bailments, where he alone receives the benefit,
as in loans; he must observe ordinary diligence of those bailments, which are
beneficial to both parties, as hiring; and he will be responsible for gross
negligence in those bailments which are only for the benefit of the bailor, is
deposit and mandate. Story's Bailm. §17, 18, 19. He is bound to return the
property as soon as the purpose for which it was bailed shall have been
accomplished.
3. He has generally a right to retain and use the thing bailed,
according to the contract, until the object of the bailment shall have been
accomplished.
4. A bailee with a mere naked authority, having a right to remuneration
for his trouble, but coupled with no other interest, may support trespass for
any injury, amounting to a trespass, done while he was in the actual possession
of the thing. 4 Bouv. Inst. n. 3608.
BAILIFF, account render. A bailiff is a person who has, by
delivery, the custody and administration of lands or goods for the benefit of
the owner or bailor, and is liable to render an account thereof. Co. Lit. 271;
2 Leon. 245; 1 Mall . Ent. 65. The word is derived from the old French word
bailler, to bail, that is, to deliver. Originally, the word implied the
delivery of real estate, as of land, woods, a house, a part of the fish in a
pond; Owen, 20; 2 Leon. 194; Keilw. 114 a, b; 37 Ed. III. 7; 10 H. VII. 7, 30;
but was afterwards extended to goods and chattels. Every bailiff is a
,receiver, but every receiver is not a bailiff. Hence it is a good plea that
the defendant never was receiver, but as bailiff. 18 Ed. III. 16. See Cro.
Eliz. 82-3; 2 Anders. 62-3, 96-7 F. N. B. 134 F; 8 Co. 48 a, b.
2. From a bailiff is required administration, care, management, skill.
He is, therefore, entitled to allowance for the expense of administration, and
for all things done in his office, according to his own judgment, without the
special direction of his principal, and also for casual things done in the
common course of business: 1 Mall. Ent. 65, (4) 11; 1 Rolle, Ab. 125, 1, 7; Co.
Lit. 89 a; Com. Dig. E 12 Bro. Ab. Acc. 18 Lucas, Rep. 23 but not for things
foreign to his office. Bro. Ab. Acc .26, 88; Plowd. 282b, 14; Com. Dig. Acc.
E13; Co. Lit. 172; 1 Mall. Ent. 65, (4) 4. Whereas, a mere receiver, or a
receiver who is not also a bailiff, is not entitled to allowance for any
expenses. Bro. Ab. Acc. 18; 1 Mall. Ent. 66, (4) 10; 1 Roll. Ab. 118; Com. Dig.
E 13; 1 Dall. 340.
3. A bailiff may appear and plead for his principal in an assize; " and
his plea com- mences " thus, " J. S., bailiff of T. N., comes " &c., not "
T. N., by his bailiff, J. S., comes," &c. 2 Inst. 415; Keilw. 117 b. As to
what matters he may plead, see 2 Inst. 414.
BAILIFF, office. Magistrates who for merly administered justice
in the parliaments or courts of France, answering to the English sheriffs as
mentioned by Bracton. There are still bailiffs of particular towns in England
as the bailiff of Dover Castle, &c., otherwise bailiffs are now only
officers or stewards, &c. as Bailiffs of liberties, appointed by every lord
within his liberty, to serve writs, &c. Bailiff errent or itenerant,
appointed to go about the country for the same purpose. Sheriff 's bailies,
sheriff's officers to execute writs; these are also called bound bailiffs
because they are usually bound in a bond to the sheriff for the due exeecution
of their office. Bailiffs of court baron, to summon the court, &c. Bailffs
of hushandry, appointed by private persons to collect their rents and manage
their estates. Water bailiffs, officers in port towns for searching ships,
gathering tolls, &c. Bac. Ab. h. t.
BAILMENT, contracts. This word is derived from the French,
bailler, to deliver. 2 Bl. Com. 451; Jones' Bailm. 90 Story on Bailm. c. 1,
§2. It is a compendious expression, to signify a contract resulting from
delivery. It has been defined to be a delivery of goods on a condition, express
or implied, that they shall be restored by the bailee to the bailor, or
according to his directions, as soon as the purposes for which they are bailed
shall be answered. 1 Jones' Bailm. 1. Or it is a delivery of goods in trust, on
a contract either expressed or implied, that the trust shall be duly executed,
and the goods redelivered, as soon as the time or use for which they were
bailed shall have elapsed or be performed. Jones' Bailm. 117.
2. Each of these definitions, says Judge Story, seems redundant and
inaccurate if it be the proper office of a definition to include those things
only which belong to the genus or class. Both these definitions suppose that
the goods are to be restored or redelivered; but in a bailment for sale, as
upon a consignment to a factor, no redelivery is contemplated between the
parties. In some cases, no use is contemplated by the bailee, in others, it is
of the essence of the contract: in some cases time is material to terminAte the
contract; in others, time is necessary to give a new accessorial right. Story,
on Bailm. c. 1, §2.
3. Mr. Justice Blackstone has defined a bailment to be a delivery of
goods in trust, upon contract, either expressed or implied, that the trust
shall be faithfully executed on the part of the bailee. 2 Bl. Com. 451. And in
another place, as the delivery of goods to another person for a particular use.
2 Bl. Com. 395. Vide Kent's Comm. Lect. 40, 437.
4. Mr. Justice Story says, that a bailment is a delivery of a thing in
trust for some special object or purpose, and upon a contract, express or
implied, to conform to the object or purpose of the trust. Story on Bailm. c.
1, §2. This corresponds very nearly with the definition of Merlin. Vide
Repertoire, mot Bail.
5. Bailments are divisible into three kinds: 1. Those in which the trust
is for the benefit of the bailor, as deposits and mandates. 2. Those in which
the trust is for the benefit of the bailee, as gratuitous loans for use. 3.
Those in which the trust is for the benefit of both parties, as pledges or
pawns, and hiring and letting to hire. See Deposit; Hire; Loans; mandates and
Pledges.
6. Sir William Jones has divided bailments into five sorts, namely: 1.
Depositum, or deposit. 2. Mandatum, or commission without recompense. 3.
Commodatum, or loan for use, without pay. 4. Pignori acceptum, or pawn. 5.
Locatum, or hiring, which is always with reward. This last is subdivided into,
1. Locatio rei, or biring, by which the hirer gains a temporary use of the
thing. 2. Locatio operis faciendi, when something is to be done to the thing
delivered. 3. Locatio operis mercium vehendarum, when the thing is merely to be
carried from one place to another. See these several words. As to the
obligations and duties of bailees in general, see Diligence, and Story on
Bailm. c. 1; Chit. on Cont. 141; 3 John. R. 170; 17 Mass. R. 479; 5 Day, 15; 1
Conn. Rep. 487; 10 Johns. R. 1, 471; 12 Johns. R. 144, 232; 11 Johns. R. 107;
15 Johns. R. 39; 2 John. C. R. 100; 2 Caines' Cas. 189; 19 Johns. R. 44; 14
John. R. 175; 2 Halst. 108; 2 South. 738; 2 Harr. & M'Hen. 453; 1 Rand. 3;
2 Hawks, 145; 1 Murphy, 417; 1 Hayw. 14; 1 Rep. Con. Ct. 121, 186; 2 Rep. Con.
Ct. 239; 1 Bay, 101; 2 Nott & M'Cord, 88, 489; 1 Browne, 43, 176; 2 Binn.
72; 4 Binn. 127; 5 Binn. 457; 6 Binn. 129; 6 Serg. & Rawle, 439; 8 Serg.
& Rawle, 500, 533; 14 Serg. & R. 275; Bac. Ab. h. t.; 1 Bouv. Inst. n.
978-1099.
BAILOR, contracts. He who bails a thing to another.
2. The bailor must act with good faith towards the bailee; Story's
Bailm. §74, 76, 77; permit him to enjoy the thing bailed according to
contract; and, in some bailments, as hiring, warrant the title and possession
of the thing hired, and probably, to keep it in suitable order and repair for
the purpose of the bailment. Id. §Vide Inst. lib. 3, tit. 25.
BAILIWICK. The district over which a sheriff has jurisdiction;
it signifies also the same as county, the sheriff's bailiwick extending over
the county.
2. In England, it signifies generally that liberty which is exempted
from the sheriff of the county over which the lord of the liberty appoints a
bailiff. Vide Wood's Inst. 206.
BAIR-MAN, Scottish law. A poor insolvent debtor left bare.
BAIRN'S PART, Scottish, law. Children's part a third part of the
defunct's free movables, debts deducted, if the wife survive, and a half if
there be no relict.
BALANCE, com. law. The amount which remains due by one of two
persons, who have been dealing together, to the other, after the settlement of
their accounts.
2. In the case of mutual debts, the balance only can be recovered by the
assignee of an insolvent, or the executor of a deceased person. But this
mutuality must have existed at the time of the assignment by the insolvent, or
at the death of the testator.
3. The term general balance is sometimes used to signify the difference
which is due to a party claiming a lien on goods in his hands, for work or
labor done, or money expended in relation to those and other goods of the
debtor. 3 B. & P. 485; 3 Esp. R. 268.
BALANCE SHEET. A statement made by merchants and others to show
the true state of a particular business. A balance sheet should exhibit all the
balances of debits and credits, also the value of merchandize, and the result
of the whole. Vide Bilan.
BALANCE OF TRADE, Com. law. The difference between the exports
and importations, between two countries. The balance of trade is against that
country which has imported more than it has exported, for which it is debtor to
the other country.
BALIVA. A bailiwick or jurisdiction.
BALIVO AMOVENDO, Eng. practice. A writ to remove a bailiff out
of his office.
BALLASTAGE, mar. law. A toll paid for the privilege, of taking
up ballast from the bottom of the port. This arises from the property in the
soil. 2 Chit. Com. Law, 16.
BALLOT, government. A diminutive ball, i. e. a little ball used
in giving votes; the act itself of giving votes. A little ball or ticket used
in voting privately, and, for that purpose, put, into a box, (commonly called a
ballot-box,) or into some other contrivance.
BALNEARII, civil law. Stealers of the clothes of person who were
washing in the public baths. Dig. 47, 17; 4 Bl. Com. 239; Calviui Lex.
Jurid.
BAN, A proclamation, or public notice any summons or edict by
which a thing is forbidden or commanded. Vide Bans of Matrimony; Proclamation;
Cowell's Interp.
BANC or BANK. The first of these is a French word signifying
bench, pronounced improperly bank. 1. The seat of judgment, as banc le roy, the
king's bench banc le common pleas, the bench of common pleas.
2. The meeting of all the judges or such as may form a quorum, as, the
court sit in banc. Cowell's Interp.
BANCO. A commercial term, adopted from the Italian, used to
distinguish bank money from the common currency; as $1000,
BANDIT. A man outlawed; one who is said to be under ban.
BANE. This word was formerly used to signify a malefactor.
Bract. 1. 2, t. 8, c. 1.
BANISHMENT, crim. law. A punishment inflicted upon criminals, by
compelling them to quit a city, place, or country, for, a specified period of
time, or for life. Vide 4 Dall. 14. Deportation; Relegation.
BANK, com. law. 1. A place for the deposit of money. 2. An
institution, generally incorporated, authorized to receive deposits of money,
to lend money, and to issue promissory notes, usually known by the name of bank
notes. 3. Banks are said to be of three kinds, viz : of deposit, of discount,
and of circulation; they generally perform all these operatious. Vide Metc.
& Perk. Dig. Banks and Banking.
BANKBOOK ,commerce. A book which persons dealing with a bank
keep, in which the officers of the bank enter the amount of money deposited by
them, and all notes or bills deposited by them, or discounted for their
use.
BANK NOTE, contracts. A bank note resembles a common promissory
note, (q. v.) issued by a bank or corporation authorized to act as a bank. It
is in fact a promissory note, but such notes are not, for many purposes, to be
considered as mere securities for money; but are treated as money, in the
ordinary course and transactions of business, by the general consent of mankind
and, on payment of them, when a receipt is required, the receipts are always
given as for money, not as for securities or notes. 1 Burr. R. 457; 12 John. R.
200; 1 John. Ch. R. 231; 9 John. R. 120; 19 John. 144; 1 Sch. & Lef. 318,
319; 11 Ves. 662; 1 Roper, Leg. 3; 1 Ham. R. 189, 524; 15 Pick. 177; 5 G. &
John. 58; 3 Hawks, 328; 5 J. J. Marsh. 643.
2. Bank notes are assignable by delivery. Rep. Temp. Hard. 53 9 East, R.
48; 4 East, R. 510 Dougl. 236. The holder of a bank note is prima facie
entitled to prompt payment of it, and cannot be affected by the fraud of any
former holder in obtaining it, unless evidence be given to bring it home to his
privity. 1 Burr. 452; 4 Rawle, 185 13 East, R. 135 Dane's Ab. Index, h. t.;
Pow. on Mortg. lndex, h. t. U. S. Dig. h. t. Vide Bouv. Inst. Index, h. t.
Note; Promissory note; Reissuable note.
3. They cannot be taken in execution. Cunning. on Bills, 537; Hardw.
Cases, 53; 1 Arch. Pr. 268 1 Wils. Rep. 9 Cro. Eliz. 746, pl. 25
BANK STOCK. The capital of a bank. It is usually divided in
shares of a certain amount. This stock is generally transferable on the bools
of the bank, and considered as personal property. Vide Stock.
BANKER, com. law. A banker is one engaged in the business of
receiving other persons money in deposit, to be returned on demand discounting
other persons' notes, and issuing his own for circulation. One who performs the
business usually transacted by a bank. Private bankers are generally not
permitted.
2. The business of bankers is generally performed through the medium of
incorporated banks.
3. A banker may be declared a bankrupt by adverse proceedings against
him. Act of Congress of 19th Aug. 1841. See 1 Atk. 218; 2 H. Bl. 235; 1 Mont.
B. L. 12.
4. Among the ancient Romans there were bankers called argentarii, whose
office was to keep registers of contracts between individuals, either to loan
money, or in relation to sales and stipulations. These bankers frequently
agreed with the creditor to pay him the debt due to him by the debtor. Calvini
Lex. Jurid.
BANKERS' NOTE, contracts. In England a distinction is made
between bank notes, (q. v.) and bankers' notes. The latter are promissory
notes, and resemble bank notes in every respect, except that they are given by
persons acting as private bankers. 6 Mod. 29; 3 Chit. Com. Law, 590; 1 Leigh's
N. P. 338.
BANKRUPT. A person who has done, or suffered some act to be
done, which is by law declared an act of bankruptcy; in such case he may be
declared a bankrupt.
2. It is proper to notice that there is much difference between a
bankrupt and an insolvent. A man may be a bankrupt, and yet be perfectly
solvent; that is, eventually able to pay all his debts or, he may be insolvent,
and, in consequence of not having done, or suffered, an act of bankruptcy. He
may not be a bankrupt. Again, the bankrupt laws are intended mainly to secure
creditors from waste, extravagance, and mismanagement, by seizing the property
out of the hands of the debtors, and placing it in the custody of the law;
whereas the insolvent laws only relieve a man from imprisonment for debt after
he has assigned his property for the benefit of his creditors. Both under
bankrupt and insolvent laws the debtor is required to surrender his property,
for the benefit of his creditors. Bankrupt laws discharge the person from
imprisonment, and his property, acquired after his discharge, from all
liabilities for his debts insolvent laws simply discharge the debtor from
imprisonment, or liability to be imprisoned, but his after-acquired property
may be taken in satisfaction of his former debts. 2 Bell, Com. B. 6, part 1, c.
1, p. 162; 3 Am. Jur. 218.
BANKRUPTCY. The state or condition of a bankrupt.
2. Bankrupt laws are an encroacbment upon the common law. The first in
England was the stat. 34 and 35 H. VIII., c. 4, although the word bankrupt
appears only in the title, not in the body of the act. The stat. 13 Eliz. c. 7,
is the first that defines the term bankrupt, and discriminates bankruptcy from
mere insolvency. Out of a great number of bankrupt laws passed from time to
time, the most considerable are the statutes 13 Eliz. c. 7; 1 James I., c. 19
21 James I., c. 19 5 Geo. II., c. 30. A careful consideration of these statutes
is sufficient to give am adequate idea of the system of bankruptcy in England.
See Burgess on Insolvency, 202-230.
3. The Constitution of the United States, art. 1, s. 8, authorizes
congress "to establish an uniform rule of naturalization, and uniform laws on
the subject of bankruptcies throughout the United States." With the exception
of a short interval during which bankrupt laws existed in this country, this
power lay dormant till the passage of the act of 1841, since repealed.
4. Any one of the states may pass a bankrupt law, but no state bankrupt
or insolvent law can be permitted to impair the obligation of contracts; nor
can the several states pass laws conflicting with an act of congress on this
subject 4 Wheat. and the bankrupt laws of a state cannot affect the rights of
citizens of another state. 12 Wheat. It. 213. Vide 3 Story on the Const.
§1100 to 1110 2 Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the
Const. c. 9 6 Pet. R. 348 Bouv. Inst. Index, h. t. Vide Bankrupt.
BANKS OF RIVERS, estates. By this term is understood what
retains the river in its natural channel, when there is the greatest flow of
water.
2. The owner of the bank of a stream, not navigable, his in general the
right to the middle of the stream. Vide Riparian Proprietor.
3. When by imperceptible increase the banks on one side extend into the
river, this addition is called alluvion. (q. v.) When the increase is caused by
the sudden transfer of a mass of earth or soil from the opposite bank, it is
called an increase by avulsion. (q. v.)
BANNITUS. One outlawed or banished. See Calvini Lex.
BANS OF MATRIMONY. The giving public notice or making
proclamation of a matrimonial contract, and the intended celebration of the
marriage of the parties in pursuance of such contract, to the end that persons
objecting to the same, may have an opportunity to declare such objections
before the marriage is solemnized. Poth. Du Mariage, partie 2, c. 2. Vide
Ban.
BAR, actions. A perpetual destruction or temporary taking away
of the action of the plaintiff. In ancient authors it is called exceptio
peremptorid. Co. Litt. 303 b Steph. Pl. Appx. xxviii. Loisel (Institutes
Coutumieres, vol. ii. p. 204) says, "Exceptions (in pleas) have been called
bars by our ancient practitioners, because, being opposed, they arrest the
party who has sued out the process, as in war (une barriere) a barrier arrests
an enemy; and as there have always been in our tribunals bars to separate the
advocates from the judges, the place where the advocates stand (pour parler)
when they speak, has been called for that reason (barreau) the bar."
2. When a person is bound in any action, real or personal, by judgment
on demurrer, confession or verdict, he is barred, i. e. debarred, as to that or
any other action of the like nature or degree, for the same thing, forever; for
expedit reipublicae ut sit finis litim.
3. But there is a difference between real and personal actions.
4. In personal actions, as in debt or account, the bar is perpetual,
inasmuch as the plaintiff cannot have an action of a higher nature, and
therefore in such actions he has generally no remedy, but by bringing a writ of
error. Doct. Plac. 65; 6 Co. 7, 8 4 East, 507, 508.
5. But if the defendant be barred in a real action, by judgment on a
verdict, demurrer or confession, &c., he may still have an action of a
higher nature, and try the same right again. Lawes, Pl. 39, 40. See generally,
Bac. Ab. Abatement, N; Plea in bar. Also the case of Outram v. Morewood, 3
East, Rep. 346-366; a leading case on this subject.
BAR, practice. A place in a court where the counsellors and
advocates stand to make their addresses to the court and jury; it is so called
because formerly it was closed with a bar. Figuratively the counsellors and
attorneys at law are called the bar of Philadelphia, the New York bar.
2. A place in a court having criminal jurisdiction, to which prisoners
are called to plead to the indictment, is also called, the bar. Vide Merl.
Repert. mot Barreau, and Dupin, Profession d'Avocat, tom. i. p. 451, for some
eloquent advice to gentlemen of the bar.
BAR, contracts. An obstacle or opposition. 2. Some bars arise
from circumstances, and others from persons. Kindred within the prohibited
degree, for example, is a bar to a marriage between the persons related; but
the fact that A is married, and cannot therefore marry B, is a circumstance
which operates as a bar as long as it subsists; for without it the parties
might marry.
BAR FEE, Eng. law. A fee taken time out of mind by the sheriff
for every prisoner who is acquitted. Bac. Ab. Extortion.
BARBICAN. An ancient word to signify a watch-tower. Barbicanage
was money given for the support of a barbican.
BARGAIN AND SALE, conveyancing, contracts. A contract in writing
to convey lands to another person; or rather it is the sale of a use therein.
In strictness it is not an absolute conveyance of the seizin, as a feoffment.
Watk. Prin. Conv. by Preston, 190, 191. The consideration must be of money or
money's worth. Id. 237.
2. In consequence of this conveyance a use arises to a bargainee, and
the statute 27 Henry VIII. immediately transfers the˜20legal estate and
possession to him.
3. A bargain and sale, may be in fee, for life, or for years.
4. The proper and technical words of this conveyance are bargain and
sale, but any other words that would have been sufficient to raise a use, upon
a valuable consideration, before the statute, are now sufficient to constitute
a good bargain and sale. Proper words of limitation must, however, be inserted.
Cruise Dig. tit. 32, c. 9; Bac. Ab. h. t. Com. Dig. h. t.; and the cases there
cited; Nels. Ab. h. t. 2 Bl. Com. 338.
5. This is the most common mode of conveyance in the United States. 4
Kent, Com. 483; 3 Pick. R. 529; 3 N. H. Rep. 260; 6 Harr. & John. 465; 3
Wash. C. C. Rep. 376; 4 Mass. R. 66; 4 Yeates, R. 295; 1 Yeates, R. 828; 3
John. R. 388; 4 Cowen's R. 325; 10 John. R. 456, 505; 3 N. H. Rep. 261; 14
John. R. 126; 2 Harr. & John. 230; 2 Bouv. Inst. n. 207 7 8.
BARGAINEE. A person to whom a bargain is made; one who receives
the advantages of a bargain.
BARGAINOR. A person who makes a a bargain, and who becomes bound
to perform it.
BARGEMEN. Persons who own and keep a barge for the purpose of
carrying the goods of all. such other persons who may desire to employ them.
They are liable as common, carriers. Story, Bailm. 496.
BARLEYCORN. A lineal measure, containing one-third of an inch.
Dane's Ab. c. 211, a. 13, s. 9. The barleycorn was the first measure, with its
division and multiples, of all our measures of length, superfices, and
capacity. Id. c. 211, a. 1 2, s. 2.
BARN, estates. A building on a farm used to receive the crop,
the stabling of animals, and other purposes.
2. The grant or demise of a barn, without words superadded to extend its
meaning, would pass no more than the barn itself, and as much land as would be
necessary for its complete enjoyment. 4 Serg. & Rawle, 342.
BARON. This word has but one signification in American law,
namely, hushand: we use baron and feme, for hushand and wife. And in this sense
it is going out of use.
2. In England, and perhaps some other countries, baron is a title of
honor; it is the first degree of nobility below a viscount. Vide Com. Dig.
Baron and Feme; Bac. Ab. Baron and Feme; and the articles. Hushand; Marriage;
Wife.
3. In the laws of the middle ages, baron or bers, (baro) signifes a
great vassal; lord of a fief and tenant immediately from the king: and the
words baronage, barnage and berner, signify collectively the vassals composing
the court of the king; as Le roi et son barnage, The king and his court. See
Spelman's Glossary, verb. Baro.
BARONS OF EXCHEQUER, Eng. law. The name given to the five judges
of the Exchequer formerly these were baros of the realm, but now they are
chosen from persons learned in the law.
BARRACK. By this term, as used in Pennsylvania, is understood an
erection of upright posts supporting a sliding roof, usually of thatch. 5
Whart. R. 429.
BARRATOR, crimes. One who has been guilty of the offence of
barratry.
BARRATRY, crimes. In old law French barat, baraterie, signifying
robbery, deceit, fraud. In modern usage it may be defined as the habitual
moving, exciting, and maintaining suits and quarrels, either at law or
otherwise. 1 Inst. 368; 1 Hawk. 243.
2. A man cannot be indicted as a common barrator in respect of any
number of false and groundless actions brought in his own right, nor for a
single act in right of another; for that would not make him a common
barrator.
3. Barratry, in this sense, is different from maintenance (q. v.) and
champerty. (q. v.)
4. An attorney cannot be indicted for this crime, merely for maintaining
another in a groundless action. Vide 15 Mass. R. 229 1 Bailey's R. 379; 11
Pick. R. 432; 13 Pick. R. 362; 9 Cowen, R. 587; Bac. Ab. h. t.; Hawk. P. C. B.
1, c. 21; Roll. Ab. 335; Co. Litt. 368; 3 Inst. 175.
BARRATRY, maritime law, crimes. A fraudulent act of the master
or mariners, committed contrary to their duty as such, to the prejudice of the
owners of the ship. Emer. tom. 1, p. 366; Merlin, Repert. h. t.; Roccus, h. t.;
2 Marsh. Insur. 515; 8 East, R. 138, 139. As to what will amount to barratry,
see Abbott on Shipp. 167, n. 1; 2 Wash. C. C. R. 61; 9 East, R. 126; 1 Str.
581; 2 Ld. Raym. 1349; 1 Term R. 127; 6 Id. 379; 8 Id. 320; 2 Cain. R. 67, 222;
3 Cain. R. 1; 1 John. R. 229; 8 John. R. 209, n. 2d edit.; 5 Day. R. 1; 11
John. R. 40; 13 John. R, 451; 2 Binn. R. 274; 2 Dall. R. 137; 8 Cran. R. 39; 3
Wheat. R. 168; 4 Dall. R. 294; 1 Yeates, 114.
2. The act of Congress of April, 30, 1790, s. 8, 1 Story's Laws U. S.
84, punishes with death as piracy, "any captain or mariner of any ship or other
vessel who shall piratically and feloniously run away with such ship or vessel,
or any goods or merchandize to the value of fifty dollars; or yield up such
ship or vessel to any pirate or if any such seamen shall lay violent hands upon
his commander, thereby to binder or prevent his fighting in defence of his
ship, or goods, committed to his trust, or shall make a revolt in the said
ship."
BARREL. A measure of capacity, equal to tliirty-six gallons.
BARREN MONEY, civil law. This term is used to denote money which
bears no interest.
BARRENNESS. The incapacity to produce a child. This, when
arising from impotence, is a cause for dissolving a marriage. 1 Fodere, Med.
Leg. §254.
BARRISTER, English law. A counsellor admitted to plead at the
bar.
2. Ouster barrister, is one who pleads ouster or without the bar.
3. Inner barrister, a serjeant or king's counsel who pleads within the
bar.
4. Vacation barrister, a counsellor newly called to the bar, who is to
attend for several long vacations the exercise of the house.
5. Barristers are called apprentices, apprentitii ad legem, being looked
upon as learners, and not qualified until they obtain the degree of serjeant.
Edmund Plowden, the author of the Commentaries, a volume of elaborate reports
in the reigns of Edward VI., Mary, Philip and Mary, and Elizabeth, describes
himself as an apprentice of the common law.
BARTER. A contract by which the parties exchange goods for
goods. To complete the contract the goods must be delivered, for without a
delivery, the right of property is not changed.
2. This contract differs from a sale in this, that barter is always of
goods for goods, whereas a sale is an exchange of goods for money. In the
former there never is a price fixed, in the latter a price is indispensable.
All the differences which may be pointed out betwen these two contracts, are
comprised in this; it is its necessary consequence. When the contract is an
exchange of goods on one side, and on the other side the consideration is
partly goods and partly money, the contract is not a barter, but a sale. See
Price; Sale.
3. If an insurance be made upon returns from a country where trade is
carried on by barter, the valuation of the goods in return shall be made on the
cost of those given in barter, adding all charges. Wesk. on Ins. 42. See 3
Camp. 351 Cowp. 818; 1 Dougl. 24, n.; 1 N. R. 151 Tropl. de l'Echange.
BARTON, old English law. The demesne land of a manor; a farm
distinct from the mansion.
BASE. Something low; inferior. This word is frequently used in
composition; as base court, base estate, base fee, &c.
BASE COURT. An inferior court, one not of record. Not used.
BASE ESTATE, English law. The estate which base tenants had in
their lands. Base tenants were a degree above villeins, the latter being
compelled to perform all the commands of their lords; the former did not hold
their lands by the performance of such commands. See Kitch. 41.
BASE FEE, English law. A tenure in fee at the will of the lord.
This was distinguished from socage free tenure. See Co. Litt. 1, 18.
BASILICA, civil law. This is derived from a Greek word, which
signifies imperial constitutions. The emperor Basilius, finding the Corpus
Juris Civilis of Justinian too long and obscure, resolved to abridge it, and
under his auspices the work proceeded to the fortieth book, which, at his
death, remained unfinished. His son and successor, Leo, the philosopher,
continued the work, and published it in sixty books, about the year 880.
Constantine Porphyro-genitus, younger brother of Leo, revised the work,
re-arranged it, and republished it, Anno Domini, 910. From that time the laws
of Justinian ceased to have any force in the eastern empire, and the Basilica
were the foundation of the law observed there till Constantine XIII, the last
of the Greek emperors, under whom, in 1453, Constantinople was taken by Mahomet
the Turk, who put an end to the empire and its laws. Histoire de la
Jurisprudence Etienne, Intr. a 1'etude du Droit Romain, §LIII. The
Basilica were written in Greek. They were translated into Latin by J. Cujas
(Cujacius) Professor of Law in the University of Bourges, and published at
Lyons, 22d of January, 1566, in one vol. fo.
BASTARD. A word derived from bas or bast, signifying abject,
low, base; and aerd, nature. Minshew, Co. Lit. 244; a. Enfant de bas, a child
of low birth. Dupin. According to Blackstone, 1 Com. 454, a bastard in the law
sense of the word, is a person not only begotten, but born out of lawful
matrimony. This definition does not appear to be complete, inasmuch as it does
not embrace the case of a person who is the issue of an illicit connection,
during the coverture of his mother. The common law, says the Mirror, only
taketh him to be a son whom the marriage proveth to be so. Horne's Mirror, c.
2, §7; see Glanv. lib 8, cap. 13 Bract. 63, a. b.; 2 Salk. 427;, 8 East,
204. A bastard may be perbaps defined to be one who is born of an illicit
union, and before the lawful marriage of his parents.
2. A man is a bastard if born, first) before the marriage of his
parents; but although he may have been begotten while his parents were single,
yet if they afterwards marry, and he is born during the coverture, he is
legitimate. 1 Bl. Com. 455, 6. Secondly, if born during the coverture, under
circumstances which render it impossible that the hushand of his mother can be
his father. 6 Binn. 283; 1 Browne's R. Appx. xlvii.; 4 T. R. 356; Str. 940 Id.
51 8 East, 193; Hardin's R. 479. It seems by the Gardner peerage case, reported
by Dennis Le Marebant, esquire, that strong moral improbability that the
hushand is not the father, is sufficient to bastardize the issue. Bac. Ab. tit.
Bastardy, A, last ed. Thirdly, if born beyond a competent time after the
coverture has determined. Stark. Ev. part 4, p. 221, n. a Co. Litt. 123, b, by
Hargrave & Butler in the note. See Gestation.
3. The principal right which bastard children have, is that of
maintenance from their parents. 1 Bl. Com. 458; Code Civ. of Lo. 254 to 262. To
protect the public from their support, the law compels the putative father to
maintain his bastard children. See Bastardy; Putative father.
4. Considered as nullius filius, a bastard has no inheritable blood in
him, and therefore no estate can descend. to him; but he may take by testment,
if properly described, after he has obtained a name by reputation. 1 Rop. Lew.
76, 266; Com. Dig. Descent, C, l2; Ie. Bastard, E; Co. Lit. 123, a; Id. 3, a; 1
T. R. 96 Doug. 548 3 Dana, R. 233; 4 Pick. R. 93; 4 Desaus. 434. But this hard
rule has been somewhat mitigated in some of the states, where, by statute,
various inheritable qualities have been conferred upon bastards. See 5 Conn.
228; 1 Dev. Eq. R. 345; 2 Root, 280; 5 Wheat.. 207; 3 H. & M. 229, n; 5
Call. 143; 3 Dana, 233.
5. Bastards can acquire the rights of legitimate children only by an act
of the legislature. 1 Bl. Com. 460; 4 Inst. 36.
6. By the laws of Louisiana, a bastard is one who is born of an illicit
union. Civ. Code of Lo. art. 27, 199. There are two sorts of illegitimate
cbildren; first, those who are born of two persons, who, at the moment such
children were conceived, might have legally contracted marriage with each
other; and, secondly, those who are born from persons, to whose marriage there
existed at the time, some legal impediment. Id. art. 200. An adulterous bastard
is one produced by an unlawful connexion between two persons, who, at the time
he was conceived, were, either of them, or both, connected by marriage with
some other person or persons. Id. art. 201. Incestuous bastards are those who
are produced by the illegal connexion of two persons who are relations within
the degrees prohibited by law. Id. art. 202.
7. Bastards, generally speaking, belong to no family, and have no
relations; accordingly they are not subject to paternal authority, even when
they have been acknowledged. See 11 East, 7, n. Nevertheless, fathers and
mothers owe alimony. to their children when they are in need. Id. art. 254,
256. Alimony is due to bastards, though they be adulterous or incestuous, by
the mother and her ascendants. Id. art. 262.
8. Children born out of marriage, except those who are born from an
incestuous or adulterous connexion, may be legitimated by the subsequent
marriage of their father and mother, whenever the latter have legally
acknowledged them for their children, either before the marriage or by the
contract of marriage itself. Every other mode of legitimating children is
abolished. Id. art. 217. Legitimation may even be extended to deceased children
who have left issue, and in that ease, it enures to the benefit of that issue.
Id. art. 218. Children legitimated by a subsequent marriage, have the same
rights as if born during the marriage. Id. art. 219. See, generally, Vin. Abr.
Bastards Bac. Abr. Bastard; Com. Dig. Bastard; Metc. & Perk. Dig. h. t.;
the various other American Digests, h. t.; Harr. Dig. h. t.; 1 Bl. Com. 454 to
460; Co. Litt. 3, b.; Bouv. Inst. Index, h. t., And Access; Bastardy;
Gestation; Natural Children.
BASTARD EIGNE', Eng. law. Elder bastard. By the old English law,
when, a man had a bastard son, and he afterwards married the mother, and by her
had a legitimate son, the first was called a bastard eigne, or, as it is now
spelled, aine, and the second son was called puisne, or since born, or
sometimes he was called mulier puisne. See Mulier; Eigne, 2 Bl. Com. 248.
BASTARDY, crim. law. The offence of begetting a bastard
child.
BASTARDY, persons. The state or condition of a bastard. The law
presumes every child legitimate, when born of a woman in a state of wedlock,
and casts the onus probandi (q. v.) on the party wlio affirms the bastardy.
Stark. Ev. h. t.
BASTON. An old French word, which signifies a staff, or club, In
some old English statutes the servants or officers of the wardens of the Fleet
are so called, because they attended the king's courts with a red staff. Vide
Tipstaff.
BATTEL, in French Bataille; Old English law. An ancient and
barbarous mode of trial, by Bingle combat, called wager of battel, where, in
appeals of felony, the appellee might fight with the appellant to prove his
innocence. It was also used in affairs of chivalry or honor, and upon civil
cases upon certain issues. Co. Litt. 294. Till lately it disgraced the English
code. This mode of trial was abolished in England by stat. 59 Geo.,III. c.
46.
2. This mode of trial was not peculiar to England. The emperor Otho, A.
D. 983, held a diet at Verona, at which several sovereigns and great lords of
Italy, Germany and France were present. In order to put a stop to the frequent
perjuries in judicial trials, this diet substituted in all cases, even in those
which followed the course of the Roman law, proof by combat for proof by oath.
Henrion de Pansey, Auth. Judic. Introd. c. 3; and for a detailed account of
this mode of trial see Herb. Antiq. of the Inns of Court, 119-145.
BATTERY. It is proposed to consider, 1. What is a battery; 2.
When a battery, may be justified.
2. §1. A battery is the unlawful touching the person of another by
the aggressor himself, or any other substance put in motion by him. 1 Saund.
29, b. n. 1; Id. 13 & 14, n. 3. It must be either wilfully committed, or
proceed from want of due care. Str. 596; Hob. 134; Plowd. 19 3 Wend. 391. Hence
an injury, be it never so small, done to the person of another, in an angry,
spiteful, rude or insolent manner, as by spitting in his face, or any way
touching him in anger, or violently jostling him, are batteries in the eye of
the law. 1 Hawk. P. C. 263. See 1 Selw. N. P. 33, 4. And any thing attached to
the person partakes of its inviolability if, therefore, A strikes a cane in the
hands of B, it is a battery. 1 Dall. 1 14 1 Ch. Pr. 37; 1 Penn. R. 380; 1
Hill's R. 46; 4 Wash. C. C. R. 534 . 1 Baldw. R. 600.
3. - §2. A battery may be justified, 1. on the ground of the
parental relation 2. in the exercise of an office; 3. under process of a court
of justice or other legal tribunal 4. in aid of an authority in law; and
lastly, as a necessary means of defence.
4. First. As a salutary mode of correction. For example: a parent may
correct his child, a master his apprentice, a schoolmaster his scholar; 24 Edw.
IV.; Easter, 17, p. 6 and a superior officer, one under his command. Keilw. pl.
120, p. 136 Bull. N. P. 19 Bee, 161; 1 Bay, 3; 14 John. R. 119 15 Mass. 365;
and vide Cowp. 173; 15 Mass. 347.
5. - 2. As a means to preserve the peace; and therefore if the plaintiff
assaults or is fighting with another, the defendant may lay hands upon him, and
restrain him until his anger is cooled; but he cannot strike him in order to
protect 'the party assailed, as he way in self-defence. 2 Roll. Abr. 359, E,
pl. 3.
6. - 3. Watchmen may arrest, and detain in prison for examination,
persons walking in the streets by might, whom there is reasonable ground to
suspect of felony, although there is no proof of a felony having been
committed. 3 Taunt. 14.
7. - 4. Any person has a right to arrest another to prevent a
felony.
8. - 5. Any one may arrest another upon suspicion of felony, provided a
felony has actually been committed and there is reasonable ground for
suspecting the person arrested to be the criminal, and that the party making
the arrest, himself entertained the suspicion.
9. - 6. Any private individual may arrest a felon. Hale's P. C. 89.
10. - 7. It is lawful for every man to lay hands on another to preserve
public decorum; as to turn him out of church, and to prevent him from
disturbing the congregation or a funeral ceremony. 1 Mod. 168; and see 1 Lev.
196; 2 Keb. 124. But a request to desist should be first made, unless the
urgent necessity of the case dispenses with it.
11. Secondly. A battery may be justified in the exercise of an office.
1. A constable may freshly arrest one who, in, his view, has committed a breach
of the peace, and carry him before a magistrate. But if an offence has been
committed out of the constable's sight, he cannot arrest, unless it amounts to
a felony; 1 Brownl. 198 or a felony is likely to ensue. Cro. Eliz. 375.
12. - 2. A justice of the peace may generally do all acts which a
constable has authority to perform hence he may freshly arrest one who, in his
view has broken the peace; or he may order a constable at the moment to take
him up. Kielw. 41.
13. Thirdly. A battery may be justified under the process of a court of
justice, or of a magistrate having competent jurisdiction. See 16 Mass. 450; 13
Mass. 342.
14. Fourthly. A battery may be justified in aid of an authority in law.
Every person is empowered to restrain breaches of the peace, by virtue of the
authority vested in him by the law.
15. Lastly. A battery may be justified as a necessary means of defence.
1. Against the plaintiffs assaults in the following instances: In defence of
himself, his wife, 3 Salk. 46, his child, and his servant. Ow. 150; sed vide 1
Salk. 407. So, likewise, the wife may justify a battery in defending her
hushand; Ld. Raym. 62; the child its parent; 3 Salk. 46; and the servant his
master. In these situations, the party need not wait until a blow has been
given, for then he might come too late, and be disabled from warding off a
second stroke, or from protecting the person assailed. Care, however, must be
taken, that the battery do not exceed the bounds of necessary defence and
protection; for it is only permitted as a means to avert an impending evil,
which might otherwise overwhelm the party, and not as a punishment or
retaliation for the injurious attempt. Str. 953. The degree of force necessary
to repel an assault will naturally depend upon, and be proportioned to, the
violence of the assailant; but with this limitation any degree is justifiable.
Ld. Raym. 177; 2 Salk. 642.
16. - 2. A battery may likewise be justified in the necessary defence of
one's property; if the plaintiff is in the act of entering peaceably upon the
defendant's land, or having entered, is discovered, not committing violence, a
request to depart is necessary in the first instance; 2 Salk. 641; and if the
plaintiff refuses, the defendant may then, and not till then, gently lay hands
upon the plaintiff to remove him from the close and for this purpose may use,
if necessary, any degree of force short of striking the plaintiff, as by
thrusting him off. Skinn. 228. If the plaintiff resists, the defendant may
oppose force to force. 8 T. R. 78. But if the plaintiff is in the act of
forcibly entering upon the land, or having entered, is discovered subverting
the soil, cutting down a tree or the like, 2 Salk. 641, a previous request is
unnecessary, and the defendant may immediately lay hands upon the plaintiff. 8
T. R. 78. A man may justify a battery in defence of his personal property,
without a previous request, if another forcibly attempt to take away such
property. 2 Salk. 641. Vide Rudeness; Wantonness.
BATTURE. An elevation of the bed of a river under the surface of
the water; but it is sometimes used to signify the same elevation when it has
risen above the surface. 6 M. R. 19, 216. The term battures is applied,
principally, to certain portions of the bed of the river Mississippi, which are
left dry when the water is low, and are covered again, either in whole or in
part by the annual swells. The word battures, in French, signifies shoals or
shallows, where there is not water enough for a ship to float. They are
otherwise called basses or brisans. Neuman's Marine Pocket Dict.; Dict. de
Trevoux.
BAWDY-HOUSE, crim. law. A house of ill-fame, (q. v.) kept for
the resort and unlawful commerce of lewd people of both sexes.
2. Such a house is a common nuisance, as it endangers the public peace
by drawing together dissolute and debauched persons; and tends to corrupt both
sexes by an open profession of lewdness. 1 Russ. on Cr.; 299: Bac. Ab.
Nuisances, A; Hawk. B. 1, c. 74, §1-5.
3. The keeper of such a house may be indicted for the nuisance; and a
married woman, because such houses are generally kept by the female sex, may be
indicted with her hushand for keeping such a house. 1 Salk. 383; vide Dane's
Ab. Index, h. t. One who assists in establishing a bawdyhouse is guilty of a
misdemeanor. 2 B. Monroe, 417.
BAY. Is an enclosure to keep in the water for the supply of a
mill or other contrivance, so that the water may be able to, drive the wheels
of such mill. Stat. 27 Eliz. c. 19.
2. A large open water or harbor where ships may ride, is also called a
bay; as, the Chesapeake Bay, the, Bay of New York.
BEACH. The sea shore. (q. v.)
BEACON. A signal erected as a sea mark for the use of mariners;
also, to give warning of the approach of an enemy. 1 Com. Dig. 259; 5 Com. Dig.
173.
TO BEAR DATE. In the description of a paper in a declaration, to
say it bears date such a day, is to aver that such date is upon it; and if, on
being produced, it is dated at another day, the variance will be fatal. But if
it be averred it was made on such a day, and upon its production it bears date
on another day, it will not be a variance, because it might have been made one
day and dated another. 3 Burr. 904.
BEADLE. Eng. law. A messenger or apparitor of a court, who cites
persons to appear to what is alleged against them, is so called.
BEARER. One who bears or carries a thing.
2. If a bill or note be made payable to bearer, it will pass by delivery
only, without endorsement; and whoever fairly acquires a right to it, may
maintain an action against the drawer or acceptor.
3. It has been decided that the bearer of a bank note, payable to
bearer, is not an assignee of a chose in action within the 11th section of the
judiciary act of, 1789, c. 20, limiting the jurisdiction of the circuit court.
3 Mason, R. 308.
4. Bills payable to bearer are contra-distinguished from those payable
to order, which can be transferred only by endorsement and delivery.
5. Bills payable to fictitious payees, are considered as bills payable
to, bearer.
BEARERS, Eng. crim. law. Such as bear down or oppress others;
maintainers. In Ruffhead's Statutes it is employed to translate the French word
emparnours, which signifies, according to Kelham, undertakers of suits. 4 Ed.
III. c. 11. This word is no longer used in this sense.
BEARING DATE. These words are frequently used in conveyancing
and in pleading; as, for example, a certain indenture bearing date the first
day of January, 1851, which signifies not that the indenture was made on that
day, but simply that such date has been put to it.
2. When in a declaration the plaintiff alleges that the defendant made
his promissory note on such a day, he will not be considered as having alleged
it bore date on that day, so as to cause a variance between the declaration and
the note produced bearing a different date. 2 Greenl. Ev. §1610; 2 Dowl.
& L. 759.
BEAU PLEADER, Eng. law. Fair pleading. See Stultiloquium.
2. This is the name of a writ upon the statute of Marlbridge, 52 H. III.
c. 11, which enacts, that neither in the circuit of justices, nor in counties,
hundreds, or courts baron, any fines shall be taken for fair pleading; namely,
for not pleading fairly or aptly to the purpose. Upon this statute this writ
was ordained, directed to the sheriff, bailiff, or him who shall demand the
fine; and it is a prohibition or command not to do it. Now Nat. Br. 596 2 Inst.
122; Termes de la Le 2 Reeves' Hist. Eng. Law, 70 Cowel; Crabb's Hist. of the
Eng. Law, 150. The explanations given of this term are not very
satisfactory.
BEDEL, Eng. law. A cryer or messenger of a court, who cites men
to appear and answer. There are also inferior officers of a parish or liberty
who bear this name.
BEE. The name of a well known insect.
2. Bees are considered ferae naturae while unreclaimed; and they are not
more subjects of property while in their natural state, than the birds which
have their nests on the tree of an individual. 3 Binn. R. 546 5 Sm. &
Marsh. 333. This agrees with the Roman law. Inst. 2 1, 14; Dig. 41, 1, 5, 2; 7
Johns. Rep. 16; 2 Bl. Com. 392 Bro. Ab. Propertie, 37; Coop. Justin. 458.
3. In New York it has been decided that bees in a tree belong, to the
owner of the soil, while unreclaimed. When they have been reclaimed, and the
owner can identify them, they belong to him, and not to the owner of the soil.
15 Wend. R. 550. See 1 Cowen, R. 243.
BEGGAR. One who obtains his livelihood by asking alms. The laws
of several of the states punish begging as an offence.
BEHAVIOUR. In old English, haviour without the prefix be. It is
the manner of having, holding, or keeping one's self or the carriage of one's
self with respect to propriety, morals, and the requirements of law. Surety to
be of -good behaviour is a larger requirement than surety to keep the peace.
Dalton, c. 122; 4 Burn's J. 355.
BEHOOF. As a word of discourse, Signifies need, (egestas,
necessitas, indigentia.) It comes from behoove, (Sax. behoven,) to need or have
need of. In a secondary sense, which is the law sense of the word, it signifies
use, service, profit, advantage, (interesse, opus.) It occurs in conveyances of
land in fee simple.
BELIEF. The conviction of the mind, arising from evidence
received, or from information derived, not from actual perception by our
senses, but from. the relation or information of others who have had the means
of acquiring actual knowledge of the facts and in whose qualifications for
acquiring that knowledge, and retaining it, and afterwards in communicating it,
we can place confidence. " Without recurring to the books of metaphysicians'
"says Chief Justice Tilghman, 4 Serg. & Rawle, 137, "let any man of plain
common sense, examine the operations of, his own mind, he will assuredly find
that on different subjects his belief is different. I have a firm belief that,
the moon revolves round the earth. I may believe, too, that there are mountains
and valleys in the moon; but this belief is not so strong, because the evidence
is weaker." Vide 1 Stark. Ev. 41; 2 Pow. Mortg. 555; 1 Ves. 95; 12 Ves. 80; 1
P. A. Browne's R 258; 1 Stark. Ev. 127; Dyer, 53; 2 Hawk. c. 46, s. 167; 3 Wil.
1, s. 427; 2 Bl. R. 881; Leach, 270; 8 Watts, R. 406; 1 Greenl. Ev. §7-13,
a.
BELOW. Lower in place, beneath, not so high as some other thing
spoken of, of tacitly referred to.
2. The court below is an inferior court, whose, proceedings may be
examined on error by a superior court, which is called the court above.
3. Bail below is that given to the sheriff in bailable actions, which is
so called to distinguish it from bail to t-he action, which is called bail
above. See Above; Bail above; Bail below.
BENCH. Latin Bancus, used for tribunal. In England there are two
courts to which this word is applied. Bancus Regius, King's Bench Bancus
Communis, Com- mon Bench or Pleas. The jus banci, says Spelman, properly
belongs to the king's judges, who administer justice in the last resort. The
judges of the inferior courts, as of the barons, are deemed to, judge plano
pede, and are such as are called in the civil law pedanei judices, or by the
Greeks Xauaidixastai, that is, humi judicantes. The Greeks called the seats of
their higher judges Bumata, and of their inferior judges Bathra. The Romans
used the word sellae and tribunalia, to designate the seats of their higher
judges, and subsellia, to designate those of the lower. See Spelman's Gloss.
(ad verb.) Bancus; also, 1 Reeves Hist. Eng. Law, 40, 4to ed., and postea Curia
Regis.
BENCH WARRANT, crim. law. The name of a process sometimes given
to an attachment issued by order of a criminal court, against an individual for
some contempt, or for the purpose of arresting a person accused; the latter is
seldom granted unless when a true bill has been found.
BENCHER, English law. A bencher is a senior in the inns of
court, entrusted with their government and direction.
BENEFICE, eccles. law. In its most extended sense, any
ecclesiastical preferment or dignity; but in its more limited sense, it is
applied only to rectories and vicarages.
BENEFICIA. In the early feudal times, grants were made to
continue only during the pleasure of the grantor, which were called munera, (q.
v.) but soon afterwards these grants were made for life, and then they assumed
the name of beneficia. Dalr. Feud. Pr. 199. Pomponius Laetus, as cited by
Hotoman, De Feudis, ca. 2, says, " That it was an ancient custom, revived by
the emperor Constantine, to give lands and villas to those generals, prefects,
and tribunes, who had grown old in enlarging the empire, to supply their
necessities as long as they lived, which they called. parochial parishes,
&c. But, between (feuda) fiefs or feuds, and (parochias) parishes, there
was this difference, that the latter were given to old men, veterans, &c.,
who, as they had deserved well of the republic, sustained the rest of their
life (publico beneficio) by the public benefaction; or, if any war afterwards
arose, they were called out, not so much as soldiers, as leaders, (majistri
militum.) Feuds, (feuda,) on the other hand, were usually given to robust young
men who could sustain the labors of war. In later times, the word parochia was
appropriated exclusively to ecclesiastical persons, while the word beneficium
(militare) continued to be used in reference to military fiefs or fees.
BENEFICIAL. Of advantage, profit or interest; as the wife has a
beneficial interest in property held by a trustee for her. Vide Cestui que
trust.
BENEFICIAL INTEREST. That right which a person has in a contract
made with another; as if A makes a contract with B that he will pay C a certain
sum of money, B has the legal interest in the contract, and C the beneficial
interest. Hamm. on Part. 6, 7, 25 2 Bulst. 70.
BENEFICIARY. This term is frequently used as synonymous with the
technical phrase cestui que trust. (q. v.)
BENEFICIO PRIMO ECCLESIASTICO HABENDO, Eng. eccl. law. A writ
directed from the king to the chancellor, commanding him to bestow the benefice
which shall first fall in the king's gift, above or under a certain value, upon
a particular and certain person.
BENEFICIUM COMPETENTIAE. The right which an insolvent debtor
had, among the Romans, on making session of his property for the benefit of his
creditors, to retain what was required for him to live honestly according to
his condition. 7 Toull. n. 258.
BENEFIT. This word is used in the same sense as gain (q. v.) and
profits. (q. v.) 20 Toull. n. 199.
BENEFIT OF CESSION, Civil law. The release of a debtor from
future imprisonment for his debts, which the law operates in his favor upon the
surrender of his property for the benefit of his, creditors, Poth. Proced. Civ.
5eme part., c. 2, §1. This was something like a discharge under the
insolvent laws, which releases the person of the debtor, but not the goods he
may acquire afterwards. See Bankrupt; Cessio Bo. Insolvent.
BENEFIT OF CLERGY, English law. An exemption of the punishment
of death which the laws impose on the commission of certain crimes, on the
culprit demanding it. By modern statute's, benefit of clergy was rather a
substitution of a more mild punishment for the punishment of death.
2. It was lately granted, not only to the clergy, as was formerly the
case, but to all persons. The benefit of clergy seems never to have been
extended to the crime of high treason, nor to have embraced misdemeanors
inferior to felony. Vide 1 Chit. Cr. Law, 667 to 668 4 Bl. Com. ch. 28. But
this privilege improperly given to the clergy, because they had more learning
than others) is now abolished by stat. 7 Geo. IV. c. 28, s. 6.
3. By the Act of Congress of April 30, 1790, it is provided, §30,
that the benefit of clergy shall not be used or allowed, upon conviction of any
crime, for which, by any statute of the United States, the punishment is, or
shall be declared to be, death.
BENEFIT OF DISCUSSION, civil law. The right which a surety has
to cause the property of the principal debtor to be applied in satisfaction of
the obligation in the first instance. See Civil Code of Lo. art. 3014 to 3020,
and Discussion.
BENEFIT OF DIVISION. In the civil law, which, in this respect,
has been adopted in Louisiana, although, when there are several sureties, each
one is bound for the whole debt, yet when one of them is sued alone, he has a
right to have the debt apportioned among all the solvent sureties on the same
obligation, so that he shall be compelled to pay his own share only. This is
called the benefit of division. Civil Code of Lo. art. 3014 to 3020. See 2
Bouv. Inst. n. 1414.
BENEFIT OF INVENTORY, civil law. The benefit of inventory is the
privilege which the heir obtains of being liable for the charges and debts of
the succession, only to the value of the effects of the succession, in causing
an inventory of these effects within the time and manner proscribed by law.
Civil Code of Louis. art. 1025. Vide Poth. Traits des Successions, c. 3, s. 3,
a. 2.
BENEVOLENCE, duty. The doing a kind action to another, from mere
good will, without any legal obligation. It is a moral duty only, and it cannot
be enforeed by law. A good wan is benevolent to the poor, but no law can compel
him to be so.
BENEVOLENCE, English law. An aid given by the subjects to the
king under a pretended gratuity, but in realty it was an extortion and
imposition.
TO BEQUEATH. To give personal property by will to another.
BEQUEST. A gift by last will or testament; a legacy. (q. v.)
This word is sometimes, though improperly used, as synonymous with devise.
There is, however, a distinction between them. A bequest is applied, more
properly, to a gift by will of a legacy, that is, of personal property; devise
is properly a gift by testament of real property. Vide Devise.
BESAILE or BESAYLE, domestic relations. The grea-grandfather,
proavus. 1 Bl. Com. 186. Vide dile.
BEST EVIDENCE. Means the best evideince of which the nature of
the case admits, not the highest or strongest evidence which the nature of the
thing to be proved admits of: e. g. a copy of a deed is not the best evidence;
the deed itself is better. Gilb. Ev. 15; 3 Campb.. 236; 2 Starkey, 473 2 Campb.
605; 1 Esp. 127.
2. The rule requiring the best evidence to be produced, is to be
understood of the best legal evidence. 2 Serg. & R. 34; 3 Bl. Com. 368,
note 10, by Christian. It is relaxed in some cases, as, e. g. where the words
or the act of the opposite party avow the fact to be proved. A tavern keeper's
sign avows his occupation; taking of tithes avows the clerical character; so,
addressing one as The Reverend T. S." 2 Serg. & R. 440 1 Saund. on Plead.
& Evid. 49.
BETROTHMENT. A contract between a man and a woman, by which they
agree that at a future, time they will marry together.
2. The requisites of this contract are 1. That it be reciprocal. 2. That
the parties be able to contract.
3. The contract must be mutual; the Promise of the one must be the
consideration for the promise of the other. It must be obligatory on both
parties at the same instant, so that each may have an action upon it, or it
will bind neither. 1 Salk. 24, Carth. 467; 5 Mod. 411; 1 Freem. 95; 3 Keb. 148;
Co. Lit. 79 a, b.
4. The parties must be able to contract. if either be married at the
time of betrothment, the contract is void; but the married party cannot take
advantage of his own wrong, and set up a marriage or previous engageinent, as
an answer to the action for the breach of the contract, because this disability
proceeds from the defendant's own act. Raym. 387 3 Just. 89; I Sid. 112 1 Bl.
Com. 438.
5. The performance of this engagement or completion of the marriage,
must be performed within a reasonable time. Either party may, therefore, call
upon the other to fulfil the engagement, and in case of refusal or neglect to
do so, within a reasonable time after request made, may treat the betrothment
as at an end, and bring action for the breach of the contract. 2 C. & P.
631.
6. For a breach of the betrothment, without a just cause, an action on
the case may be maintained for the recovery of damages. See Affiance; Promise
of Marriage.
BETTER EQUITY. In England this term has lately been adopted. In
the case of Foster v. Blackston, the master of the rolls said, be could no
where find in the authorities what in terms was a better equity, but on a
reference to all the cases, he considered it might be thus defined: If a prior
incumbrancer did not take a security which effectually protected him against
any subsequent dealing to his prejudice, by the party who had the legal estate,
a second incumbrancer, taking a security which in its nature afforded him that
protection, had what might properly be called a better equity. 1 Ch. Pr. 470,
note. Vide 4 Rawle, R. 144 3 Bouv. Inst. n. 2462.
BETTERMENTS. Improvement's made to an estate. It signifies such
improvements as have been made to the estate which render it better than mere
repairs. See 2 Fairf. 482; 9 Shepl. 110; 10 Shepl. 192; 13 Ohio, R. 308; 10
Yerg. Verm. 533; 17 Verm. 109.
BEYOND SEA. This phrase is used in the acts of limitations of
several of the states, in imitation of the phraseology of the English statute
of limitations. In Pennsylvania, the term has been construed to signify out of
the United States. 9 S. & R. 288; 2 Dall. R. 217; 1 Yeates, R. 329. In
Georgia, it is equivalent to without the limits of the state; 3 Wheat. R. 541;
and the same construction prevails in Maryland; 1 Har. & John. 350; 1 Harr.
& M'H. 89; in South Carolina; 2 McCord, Rep. 331; and in Massachusetts. 3
Mass. R. 271; 1 Pick. R. 263. Vide Kirby, R. 299; 3 Bibb. R. 510; 3 Litt. R.
48; 1 John. Cas. 76. Within the four seas, infra quatuor maria, and beyond the
four seas, extra quatuor maria, in English law books signify within and without
the kingdom of England, or the jurisdiction of the king of England. Co. Lit.
244 a; 1 Bl. Com. 457.
BIAS. A particular influential power which sways the judgment;
the inclination or propensity of the mind towards a particular object.
2. Justice requires that the judge should have no bias for or against
any individual; and that his mind should be perfectly free to act as the law
requires.
3. There is, however, one kind of bias which the courts suffer to
influence them in their judgments it is a bias favorable to a class of cases,
or persons, as distinguished from an individual case or person. A few examples
will explain this. A bias is felt on account of convenience. 1 Ves. sen. 13,
14; 3 Atk. 524. It is also felt in favor of the heir at law, as when there is
an heir on one side and a mere volunteer on the other. Willes, R. 570 1 W. Bl.
256; Amb. R. 645; 1 Ball & B. 309 1 Wils. R. 310 3 Atk. 747 Id. 222. On the
other hand, the court leans against double portions for children; M'Clell. R.
356; 13 Price, R. 599 against double provisions, and double satisfactions; 3
Atk. R. 421 and against forfeitures. 3 T. R. 172. Vide, generally, 1 Burr. 419
1 Bos. & Pull. 614; 3 Bos. & Pull. 456 Ves. jr. 648 Jacob, Rep. 115; 1
Turn. & R. 350.
BID, contracts. A bid is an offer to pay a specified price for
an article about to be sold at auction. The bidder has a right to withdraw his
bid at any time before it is accepted, which acceptance is generally manifested
by knocking down the hammer. 3 T. R. 148; Hardin's Rep. 181; Sugd. Vend. 29;
Babington on Auct. 30, 42; or the bid may be withdrawn by implication. 6 Penn.
St. R. 486; 8, Id. 408. Vide 0ffer.
BIDDER, contracts. One who makes an offer to pay a certain price
for an article which is for sale.
2. The term is applied more particularly to a person who offers a price
for goods or other property, while up for sale at an auction. The bidder is
required to act in good faith, and any combination between him and others, to
prevent a fair competition, would avoid the sale made to himself.
3. But there is nothing illegal in two or more persons agreeing together
to purchase a property at sheriff's sale, fixing a certain price which they
are. willing to give, and appointing one of their number to be the bidder. 6
Watts & Serg. 122.
4. Till the bid is accepted, the bidder may retract it. Vide articles,
Auction and Bid; 3 John. Cas. 29 6 John. R. 194; 8 John. R. 444 1 Fonbl. Eq. b.
1, c. 4, §4, note (x).
BIENS. A French word, which signifies property. In law, it means
property of every description, except estates of freehold and inheritance.
Dane's Ab. c. 133, a, 3 Com. Dig. h. t.; Co. Litt. 118, b; Sugd. Vend. 495.
2. In the French law, this term includes all kinds of property, real and
personal. Biens are divided into biens meubles, movable or personal property;
and biens immeubles, immovable property or real estate. This distinction
between movable and immovable property, is, however, recognized by them, and
gives rise in the civil, as well as in the common law, to many important
distinctions as to rights and remedies. Story, Confl. of Laws, §13, note
1.
BIGAMUS, Canon law, Latin. One guilty of bigamy.
BIGAMY, crim. law, domestic relations. The wilful contracting of
a second marriage when the contracting party knows that the first is still
subsisting; or it is the state of a man who has two wives, or of a woman who
has two hushands living at the same time. When the man has more than two wives,
or the woman more than two hushands living at the same time, then the party is
said to have committed polygamy, but the name of bigamy is more frequently
given to this offence in legal proceedings. 1 Russ. on Cr. 187.
2. In England this crime is punishable by the stat. 1 Jac. 1, c. 11,
which makes the offence felony but it exempts from punishment the party whose
hushand or wife shall continue to remain absent for seven years before the
second marriage, without being heard from, and persons who shall have been
legally divorced. The statutory provisions in the U. S. against bigamy or
polygamy, are in general similar to, and copied from the statute of 1 Jac. 1,
c. 11, excepting as to the punishment. The several exceptions to this statute
are also nearly the same in the American statutes, but the punishment of the
offence is different in many of the states. 2 Kent, Com. 69; vide Bac. Ab. h.
t.; Com. Dig. Justices, §5; Merlin, Repert. mot Bigamie; Code, lib. 9,
tit. 9, 1. 18; and lib. 5, tit. 5, 1. 2.
3. According to the canonists, bigamy is three-fold, viz.: (vera,
interpretative, et similitudinaria,) real, interpretative and similitudinary.
The first consisted in marrying two wives successively, (virgins they may be,)
or in once marrying a widow; the second consisted, not in a repeated marriage,
but in marrying (v. g. meretricem vel ab alio corruptam) a harlot; the third
arose from two marriages indeed, but the one metaphorical or spiritual, the
other carnal. This last was confined to persons initiated in sacred orders, or
under the vow Of continence. Deferriere's Tract, Juris Canon. tit. xxi. See
also Bac. Abr. h. t.; 6 Decret, 1. 12. Also Marriage.
BILAN. A book in which bankers, merchants and traders write a
statement of all they owe and all that is due to them. This term is used in the
French law, and in the state of Louisiana. 5 N. S; 158. A balance sheet. See 3
N. S. 446, 504.
BILATERAL CONTRACT, civil law. A contract in which both the
contracting parties are bound to fulfil obligations reciprocally towards each
other; Lec. Elem. §781; as a contract of sale, where one becomes bound to
deliver the, thing sold, and the other to pay the price of it. Vide Contract;
Synallagmatic contract.
BILINGUIS, English law. One who uses two tongues or languages.
Formerly a jury, part Englishmen and part foreigners, to give a verdict between
an Englishman and a foreigner. Vide Medietas Linguae, Plowd. 2. It is abolished
in Pennsylvania. Act April 14, 1834, §149.
BILL, legislation. An instrument drawn or presented by a member
or committee to a legislative body for its approbation and enactment. After it
has gone through both houses and received the constitutional sanction of the
chief magistrate, where such approbation is requisite, it becomes a law. See
Meigs, R. 237.
BILL, chancery practice. A complaint in writing addressed to the
chancellor, containing the names of the parties to the suit, both complainant
and defendant, a statement of the facts on which the complainant relies, and
the allegations which he makes, with an averment that the acts complained of
are contrary to equity , and a prayer for relief and proper process. Its office
in a chancery suit, is the same as a declaration in an action at law, a libel
in a court of admiralty or an allegation in, the spiritual courts.
2. A bill usually consists of nine parts. 1. The address, which must be
to the chancellor, court or judge acting as such. 2. The second part consists
of the names of the plaintiffs and their descriptions; but the description of
the parties in this part of the bill does not, it seems, constitute a
sufficient averment, so as to put that fact in issue. 2. Ves. & Bea. 327.
3. The third part is called the premises or stating part of the bill, and
contains the plaintiff's case. 4. In the fourth place is a general charge of
confederacy. 5. The fifth part consists of allegations of the defendant's
pretences, and charges in evidence of them. 6. The sixth part contains the
clause of jurisdiction and in averment that the acts complained of are contrary
to equity. 7. The seventh part consists of a prayer that the parties answer the
premises, which is usually termed the interrogatory part. 8. The prayer for
relief sought forms the eighth part. And, 9. The ninth part is a prayer for
process. 2 Mad. Ch. 166; Blake's Ch. P. 35; 1 Mitf. Pl. 41. The facts contained
in the bill, as far as known to the complainant, must, in some cases, be sworn
to be true; and such as are not known to him, he must swear he believes to be
true; and it must be signed by counsel; 2 Madd. Ch. Pr. 167; Story, Eq. Pl.
§26 to 47; and for cases requiring an affidavit, see, 3 Brow. Chan. Cas.
12, 24, 463; Bunb. 35; 2 Brow. 11 1 Fow. Proc. 256 Mitf. Pl. 51; 2 P. Wms. 451;
3 Id. 77; 1 Atk. 450; 3 Id. 17, 132; 3 Atk. 132 Preced. in Ch. 332 Barton's
Equity, 48 n. 1, 53 n. 1, 56 n. 1 2 Brow. Ch. Cas. 281, 319; 4 Id. 480
3. Bills may be divided into three classes, namely: 1. Original bills.
2. Bills not original. 3. Bills in the nature of original bills.
4. - 1. An original bill is one which prays the decree of the court,
touching some right claimed by the person exhibiting the bill, in opposition to
some right claimed by the person against whom the bill is exhibited. Hinde, 19;
Coop. Eq. Pl. 43. Original bills always relate to some matter not before
litigated in the court by the same persons, and standing in the same interests.
Mitf. Eq. Pl. by Jeremy, 34; Story, Eq. Pl., §16. They may be divided into
those which pray relief, and those which do not pray relief.
5. - 1st. Original bills praying relief are of three kinds. First. Bills
Praying the decree or order of the court, touching some right claimed by the
party exhibiting the bill, in opposition to some right, real or supposed,
claimed by the party against whom the bill is exhibited, or touching some wrong
done in violation of the plaintiff's right. Mitf. Eq. Pl. 32.
6. - Secondly. A bill of interpleader, is one in which the person
exhibiting it claims no right in opposition to the rights claimed by the person
against whom the bill is exhibited, but prays the decree of the court touching
the rights of those persons, for the safety of the person exhibiting the bill.
Hinde, 20; Coop. Eq. Pl. 43; Mitf. Pl. 32. The Practical Register defines it to
be a bill exhibited by a third person, who, not knowing to whom he ought of
right to render a debt or duty, or pay his rent, fears he may be hurt by some
of the claimants, and therefore prays be may interplead, so that the court may
judge to whom the thing belongs, and he be thereby safe on the payment. Pr.
Reg. 78; Harr. Ch. Pr. 45; Edw. Inj. 393; 2 Paige, 199 Id. 570; 6 John. Ch. R.
445.
7. The interpleader has been compared to the intervention (q. v.) of the
civil law. Gilb. For. Rom. 47. But there is a striking difference between them.
The tertius in our interpleader in equity, professes to have no interest in the
subject, and calls upon the parties who allege they have, to come forward and
discuss their claims: the tertius of the civil law, on the other hand, asserts
a right himself in the 'Subject, which two persons are at the time actually
contesting, and insists upon his right to join in the discussion. A bill of
interpleader may be filed, though the party has not been sued at law, or has
been sued by one only of the conflicting claimants, or though the claim of one
of the defendants is actionable at law, and the other in equity. 6 Johns. Chan.
R. 445. The requisites of a bill of this kind are, 1. It must admit the want of
interest in the plaintiff in the subject matter of dispute. 2. The plaintiff
must annex an affidavit that there is no collusion between him and either of
the parties. 3. The bill must contain an offer to bring the money into court,
when there is any due; the want of which is a ground of demurrer, unless the
money has actually been paid into court. Mitf. Eq. Pl. 49; Coop. Eq. Pl. 49;
Barton, Suit in Eq. 47, note 1. 4. The plaintiff should state his own rights,
and thereby negative any interest in the thing in controversy; and also should
state the several claims of the opposite parties; a neglect on this subject is
good cause of demurrer. Mitf. Eq. Pl. by Jeremy, 142; 2 Story on Eq. §821;
Story, Eq. Pl. 292. 5. The bill should also show that there are persons in esse
capable of interpleading, and setting up opposite claims. Coop. Eq. Pl. 46; 1
Mont. Eq. Pl. 234; Story, Eq. Pl. §295; Story on Eq. §821; 1 Ves.
248. 6. The bill should pray that the defendants set forth their several
titles, and interplead, settle, and adjust their demands between themselves.
The bill also generally prays an injunction to restrain the proceedings of the
claimants, or either of them, at law; and, in this case, the bill should offer
to bring the money into court and the court will not in general act upon this
part of the prayer, unless the money be actually brought into court. 4 Paige's
R. 384 6 John. Ch. R. 445.
8. Thirdly. A bill of certiorari, is one praying the writ of certiorari
to remove a cause from an inferior court of equity. Coop. El q. 44. The
requisites of this bill are that it state, 1st. the proceedings in the inferior
court; 2d. the incompetency of such court, by suggesting that the cause is out
of its jurisdiction; or that the witnesses live out of its jurisdiction; or are
not able, by age or infirmity, or the distance of the place, to follow the suit
there or that, for some other cause, justice is not likely to be done-, 3d. the
bill must pray a writ of certiorari, to certify and remove the record and the
cause to the superior court. Wyatt, Pr. Reg. 82; Harr. Ch. Pr. 49; Story, Eq.
Pl. §298. This bill is seldom used in the United States.
9. - 2d. Original bills not praying relief are of two kinds. First,.
Bills to secure evidence, which are bills to perpetuate the testimony of
witnesses or bills to examine witnesses de bene esse. These will be separately
considered.
10. - 1. A bill to perpetuate the testimony of witnesses, is one which
prays leave to examine them, and states that the witnesses are old, infirm, or
sick, or going beyond the jurisdiction of the court, whereby the party is in
danger of losing the benefit of their testimony. Hinde, 20. It does not pray
for relief. Coop. Eq. Pl. 44.
11. In order to maintain such a bill, it is requisite to state on its
face all the material facts to support the jurisdiction. It must state, 1. the
subject-matter toucbing which the plaintiff is desirous of giving evidence.
Rep. Temp. Finch, 391; 4 Madd. R. 8, 10. 2. It must show that the plaintiff has
some interest in the subject-matter, which may be endangered if the testimony
in support of it be lost; and a mere expectancy, however strong, is not
sufficient. 6 Ves. 260 1 Vern. 105; 15 Ves. 136; Mitf. Eq. Pl. by Jeremy, 51
Coop. Eq. Pl., 52. 3. It must state that the defendant has, or pretends to
have, or that he claims an interest to contest the title of the plaintiff in
the subject-matter of the proposed testimony. Coop. Pl. 56; Story, Eq. Pl.
§302. 4. It must exhibit some ground of necessity for perpetuating the
evidence. Story, Eq. Pl. §303 Mitf. Eq. Pl. by Jeremy, 52, 148 and note y;
Coop. Eq. Pl. 53. 5. The right of which the bill is brought to perpetuate the
evidence or testimony, should be described with reasonable certainty in the
bill, so as to point the proper interrogations on both sides to the true merits
of the controversy. 1 Vern. 312; Coop. Eq. Pl. 56. 6. It should pray leave to
examine the witnesses touching the matter stated, to the end that their
testimony maybe preserved and perpetuated. Mitf. Pl 52. A bill to perpetuate
testimony differs from a bill to take testimony de bene esse, in this, that the
latter is sustainable only when there is a suit already depending, while the
former can be maintained only when no present suit can be brought at law by the
party seeking the aid of a court to try his right. Story, Eq. Pl. §307.
The canonists had a similar rule. According to the canon law, witnesses could
be examined before any action was commenced, for fear that their evidence might
be lost. x, cap. 5 Boehmer, n. 5 8 Toull. n. 23.
12. - 2. Bill to take testimony de bene esse. This bill, the name of
which is sufficiently descriptive of its object, is frequently confounded with
a bill to perpetuate testimony; but although it bears a close analogy to it,
,it is very different. Bills to perpetuate testimony can be maintained only,
when no present suit can be maintained at law by the party seeking the aid of
the court to try his right; whereas bills to take testimony de bene esse, are
sustainable only in aid of a suit already depending. 1 Sim. & Stu. 83. The
latter may be brought by a person who is in possession, or out of possession;
and whether he be plaintiff or defendant in the action at law. Story, Eq Pl.
§307 and 303, note; Story on Eq. 1813, note 3. In many respects the rules
which regulate the framing of bills to perpetuate testimony, are applicable to
bills to take testimony ae bene esse.
13. - Secondly. A bill of discovery, emphatically so called, is one
which prays for the discovery of facts resting within the knowledge of the
person against whom the bill is exhibited, or of deeds, writings, or other
things in his custody or power. Hinde, 20; Blake's Ch. Pr. 37. Every bill,
except the bill of certiorari, may in truth, be considered a bill of discovery,
for every bill seeks a disclosure of circumstances relative to the plaintiff's
case; but that usually and emphatically distinguished by this appellation is a
bill for the discovery of facts, resting in the knowledge of the defendant, or
of deeds or writings, or other things in his custody or power, and seeking no
relief in consequence of the discovery.
14. This bill is commonly used in aid of the jurisdiction of some other
court as to enable the plaintiff Ito prosecute or defend an action at law.
Mitf. Pl. 52. "The plaintiff, in this species of bill, must be entitled to the
discovery he seeks, and shall only have a discovery of what is necessary for
his own title, as of deeds he claims under, and not to pry into that of the
defendant. 2 Ves. 445. See Blake's Ch. Pr. 45 Mitf. Pl. 52 Coop. Eq. Pl. 58 1
Madd. Ch. Pr. 196 Hare on Disc. passim Wagr. on Disc. passim.
15. The action ad exhibendum, in the Roman law, was not unlike a bill of
discovery. Its object was to force the party against whom it was instituted, to
exhibit a thing or a title in his power. It was always preparatory to another,
which was always a real action in the sense of the word in the Roman law. See
Action ad exhibendum; Merlin, Questions de Droit, tome i. 84.
16. - II . Bills not original. These are either in addition to, or a
continuance of an original bill, or both. Mitf. c. 1, s . 2; Story, Eq. Pl.
§388; .4 Bouv. Inst. n. 4100.
17. - 1st. Of the first class are, 1. A supplemental bill. This bill is
occasioned by some defect in a suit already instituted, whereby the parties
cannot obtain complete justice, to which otherwise the case by their bill would
have entitled them. It is used for the purpose of supplying some irregularity
discovered in the formation of the original bill, or some of the proceedings
there upon; or some defect in a suit, arising from events happening since the
points in the original were at issue, which give an interest to˜20persons
not parties to the suit. Blake's Ch. Pr. 50. See 3 Johns. Ch. R. 423.
18. It is proper to consider more minutely 1. in what cases such a bill
may be filed; 2. its particular requisites.
19.- 1. A supplemental bill may be filed, 1st. whenever the imperfection
in the original bill arises from the omission of some material fact, which
existed before the filing of the bill, but the time has passed in which it can
be introduced into the bill by amendment,, Mitf. Eq. Pl. 55, 61, 325 but leave
of court must be obtained, before a bill which seeks to change the original
structure of the bill, and to introduce a new and different case, can be filed.
2d. When a party necessary to the proceedings has been omitted, and cannot be
admitted by an amendment. Mitf. Eq. Pl. 61 6 Madd. R. 369; 4 John. Ch. R. 605.
3d. When, after the court has decided upon the suit as framed, it appears
necessary to bring some other matter before the court to obtain the full effect
of the decision; or before a decision has been obtained, but after the parties
are at issue upon the points in the original bill, and witnesses have been
examined, (in which case, an amendment is not in general permitted,) some other
point appears necessary to be made, or some additional discovery is found
requisite. Mitf. Eq. Pl. by Jeremy, 55; Coop Eq. Pl. 73; 3 Atk. R. 110; 12
Paige, R. 200. 4th. When new events or new matters have occurred since the
filing of the bill; Coop. Eq. Pl. 74; these events or matters, however, are
confined to such as refer to and support the rights and interests already
mentioned in the bill. Story, Eq. Pl. §336.
20. - 2. The supplemental bill must state the original bill, and the
proceedings thereon and when it is occasioned by an event which has occurred
subsequently to the original bill, it must state that event, and the consequent
alteration with regard to the parties. In general, the supplemental bill must
pray that all defendants appear and answer the charges it contains. Mitf. Eq.
Pl. by Jeremy, 75 Story, Eq. Pl. §343.
21. - 2. A bill of revivor, which is a continuance of the original
bill, when by death some party to it has become incapable of prosecuting or
defending a suit, or a female plaintiff has by marriage incapacitated herself
from suing alone. Mitf. Pl. 33, 70; 2 Madd. Ch. Pr. 526. See 3 Johns. Ch. R.
60: Story, Eq. Pl. §354, et. seq.
22. - 3. A bill of revivor and supplement. This is a compound of a
supple-mental bill and bill of revivor, and not only continues the suit, which
has abated by the death of the plaintiff, or the like, but supplies any defects
in the original bill, arising from subsequent events, so as to entitle the
party to relief on the whole merits of his case. 5 Johns.Ch R. 334; Mitf. Pl.
32, 74.
23. - 2d. Among the second class may be placed, 1. A cross bill. This
is one which is brought by a defendant in a suit against the plaintiff,
respecting the matter in question in that bill. Coop. Eq. Pl. 85 Mitf. Pl.
75.
24. A bill of this kind is usually brought to obtain, either a
necessary discovery, or full relief to all the parties. It frequently happens,
and particularlly if any questions arises between two defendants to a bill,
that the court cannot make a complete decree without a cross bill, or cross
bills to bring every matter in dispute completely before the court, litigated
by the proper parties, and upon proper proofs. In this case it becomes
necessary for some one of the defendants to the original bill to file a bill
against the plaintiff and other defendants in that bill, or some of them, and
bring the litigated point properly before the court.
25. A cross bill should state the original bill, and the proceedings
thereon, and the rights of the party exhibiting the bill which are necessary to
be made the subject of a cross litigation, or the grounds on which he resists
the claims of the plaintiff in the original bill, if that is the object of the
new bill.
26. A cross bill may be filed to answer the purpose of a plea puis
darrein continuance at the common law. For example, where, pending a suit, and
after replication and issue joined, the defendant having obtained a release and
attempted to prove it viva voce at the bearing, it was determined that the
release not being in issue in the cause, the court could not try the facts, or
direct a trial at law for that purpose, and that a new bill must be filed to
put the release in issue. Mitf. Pl. 75, 76 Coop. Eq. Pl. 85; 1 Harr. Ch. Pr.
135.
27. A cross bill must be brought before publication is passed on the
first bill, 1 Johns. Ch. R. 62, and not after, except the plaintiff in the
cross bill go to the hearing on the depositions already published; because of
the danger of perjury and subornation, if the parties should, after publication
of the former depositions, examine witnesses, de novo, to the same matter
before examined into. 7 Johns. Ch. Rep. 250; Nels. Ch. R. 103.
28. - 2. A bill of review. Bills of review are in the nature of writs
of error. They are brought to have decrees of the court reviewed, altered, or
reversed, and there are two sorts of these bills. The first is brought where
the decree has been signed and enrolled and the second, where the decree has
not been signed and enrolled. 1 Ch. Cas. 54; 3 P. Wms. 371. The first of these
is called, by way of preeminence, a bill of review; while the other is
distinguished by the appellation of a bill in the nature of a bill of review,
or a supplemental bill iii the nature of a bill of review. Coop. Eq. Pl. 88; 2
Madd. Ch. Pr. 537.
29. A bill of review must be either for error in point of law; 2 Johns.
C. R. 488; Coop. Eq. Pl. 89; or for some new matter of fact, relevant to the
case, discovered since publication passed in the cause; and which could not,
with reasonable diligence, have been discovered before. 2 Johns. C. R. 488;
Coop. Eq. Pl. 94. See 3 Johns. R. 124,
30. - 3. Bill to impeach a decree on the ground of fraud. When a decree
has been obtained by fraud, it may be impeached by original bill, without leave
of court. As the principal point in issue, is the fraud in obtaining it, it
must be established before the propriety of the decree can be investigated, and
the fraud must be distinctly stated in the bill. The prayer must necessarily be
varied according to the nature of the fraud used, and the extent of its
operation in obtaining an improper decision of the court. When the decree to
set aside a fraudulent decree has been obtained, the court will restore the
parties to their former situation, whatever their rights may be. Mitf. Eq. Pl.
84; Sto. Eq. Pl. §426.
>31. - 4. Bill to suspend a decree. The operation of a decree may be
suspended under special circumstances, or avoided by matter subsequent to the
decrees upon a new bill for that purpose. See 1 Ch. Cas. 3, 61 2 Ch . Cal 8
Mitf. Eq. Pl. 85 , 86.
32. - 5. Bill to carry a decree into execution. This is one which is
filed when from the neglect of parties, or some other cause, it may become
impossible to carry a decree into execution without the further decree of the
court. Hinde, 68; 1 Harr. Ch. 148.
33. - 6. Bills partaking of the qualities of some one or more of other
bills. These are,
34. First. Bill in the nature of a bill of revivor. A bill in the
nature of a bill of revivor, is one which is filed when the death of a party,
whose interest is not determined by his death, is attended with such a
transmission of his interest, that the title to it, as well as the person
entitled, may be litigated in the court of chancery, as in the case of a devise
of real estate, the suit is not permitted to be continued by bill of revivor. 1
Ch. Cas. 123; Id. 174; 3 Ch. Rep. 39; Mosely, R. 44. In such cases an original
bill, upon which the title may be litigated, must be filed, and this bill will
have so far the effect of a bill of revivor, that if the, title of the
representative by the act of the deceased party is established, the same
benefit may be had of the proceedings upon the former bill, as if the suit had
been continued by bill of revivor. 1 Vern. 427; 2 Vern. 548 Id. 672; 2 Bro. P.
C. 529; 1 Eq. Cas. Ab. 83; Mitf. Pl. 66, 67.
35. Secondly. Bill in the nature. of a supplemental bill. An original
bill in the nature of a supplemental bill, is one filed when the interest of
the plaintiff or defendant, suing or defending, wholly determines, and the same
property becomes vested in another person not claiming under him. Hinde, 71;
Blake's Ch. Pr. 38. The principal difference between this and a supplemental
bill, seems to be, that a supplemental bill is applicable to such cases only,
where the same parties or the same interests remain before the court; whereas,
an original bill in the nature of a supplemental bill, is properly applicable
where new parties, with new interests, arising from events occurring since the
institution of the suit, are brought before the court. Coop. Eq. Pl. 75; Story,
Eq. Pl. §345.
36. Thirdly. Bill in the nature of a bill of review. A bill in the
nature of a bill of review, is one brought by a person not bound by a decree,
praying that the same may be examined and reversed; as where a decree is made
against a person who has no interest at all in the matter in dispute, or had
not an interest sufficient to render the decree against him binding upon some
person claiming after him. Relief may be obtained against error in the decree,
by a bill in the nature of a bill of review. This bill in its frame resembles a
bill of review, except that instead of praying that the former decree may be
reviewed and reversed, it prays that the cause may be heard with respect to the
new matter made the subject of the supplemental bill, at the same time that it
is reheard upon the original bill; and that the plaintiff may have such relief
as the nature of the case made by the supplemental bill may require. 1 Harr.
Ch. P. 145.
37. There are also bills which derive their names from the object which
the complainant has in view. These will be separately considered.
38.- 1. Bill of foreclosure. A bill of foreclosure is one filed by a
mortgagee against the mortgagor, for the purpose of having the estate, sold,
thereby to obtain the sum mortgaged on the premises, with interest and costs. 1
Madd. Ch. Pr. 528. As to the persons who are to be made parties to a bill of
foreclosure, see Story, Eq. Pl. §199-202.
39. - 2. Bill of information. A bill of information is a bill
instituted in behalf of the state, or those whose rights are the object of its
care and protection. It is commenced by information exhibited in the name of
the attorney-general, and differs from other bills little more than in name. If
the suit immediately concerns the right of the state, the information is
generally exhibited without a relator. If it does not immediately concern those
rights, it is conducted at the instance and under the immediate direction of,
some person whose name is inserted in the information, and is termed the
relator; the officers of the state, in such or the like cases, are not further
concerned than as they are instructed and advised by those whose rights the
state is called upon to protect and establish. Blake's Ch. Pl. 50; see Harr.
Ch. Pr. 151.
40. - 3. Bill to marshal assets. A bill to marshal assets is one filed
in favor of simple contract creditors, and of legatees, devisees, and heirs,
but not in favor of next of kin, to prevent specialty. creditors from
exhausting the personal estate. See Marshaling of Assets.
41. - 4. Bill to marshal securities. A bill to marshal securities is
one which is filed against a party who has two funds by which his debt is
secured, by a person having an interest in only one of those funds. As if A has
two mortgages and B has but one, B has a right to throw A upon the security
which B cannot touch. 2 Atk. 446; see 8 Ves. 388, 395. This last case contains
a luminous exposition in all its bearings. In Pennsylvania, and perhaps in some
other states, the object of this bill is reached by subrogation, (q. v.) that
is, by substituting the creditor, having but one fund to resort to, to the
rights of the other creditor, in respect to the other fund.
42. - 5. Bill for a new trial. This is a bill filed in a court of
equity praying for an injunction after judgment at law, when there is any fact,
which renders it against conscience to execute such judgment, and of which the
injured party could not avail himself in a court of law-, or, if he could, was
prevented by fraud or accident, unmixed with any fault or negligence of himself
or his agents. Mitf. Pl. by Jer. 131; 2 Story Eq. §887. Of late years
bills of this description are not countenanced. Id.˜201 John. Ch. R. 432 6
John. Ch. R. 479.
43. - 6. Bill of peace. A bill of peace is one which is filed when a
person has a right which may be controverted by various persons, at different
times, and by different actions. In such a case the court will prevent a
multiplicity of suits, by directing an issue to determine the right, and
ultimately grant an injunction. 1 Madd. Ch. Pr. 166; 1 Harr. Ch. Pr. 104;
Blake's Ch. Pr. 48; 2 Story, Eq. Jur. §852 to 860; Jeremy on Eq. Jurisd.
343 2 John. Ch. R. 281; 8 Cranch, R. 426.
44. There is another class of cases in which a bill of peace is now
ordinarily applied; namely, when the plaintiff, after repeated and satisfactory
trials, has established his right at law, and is still in danger of new
attempts to controvert it. In order to quiet the possession of the plaintiff,
and to suppress future litigation, courts of equity, under such circumstances,
will interfere, and grant a perpetual injunction. 3 John. R. 529; 8 Cranch, R.
462; Mit. Pl. by Jeremy, 143; 2 John. Ch. R. 281; Ed. on Inj. 356.
45. - 7. Bill quia timet. A bill quia timet, is one which is filed when
a person is entitled to property of a personal nature after another's death,
and has reason to apprehend it may be destroyed by the present possessor; or
when he is apprehensive of being subjected to a future inconvenience, probable
or even possible to happen or be occasioned by the neglect, inadvertance, or
culpability of another. Upon a proper case being made out, the court will, in
one case, secure the property for the use of the party (which is the object of
the bill) by compelling the person in possession of it, to give a proper
security against any subsequent disposition or wilful destruction and in the
other case, they will quiet the party's apprehension of future inconvenience,
by removing the causes which may lead to it. 1 Harr. Ch. Pr. 107; 1 Madd. Ch.
Pr. 218: Blake's Ch. Pr. 37, 47; 2 Story, Eq. Jur. §825 to 851. Vide,
generally, Bouv. Inst. Index, h. t.
BILL, merc. law. An account containing the items of goods sold,
or of work done by one person against another. It differs from an account
stated (q. v.) in this, that the latter is a bill approved and sanctioned by
the debtor, whereas a bill is made out by the creditor alone.
BILL OF ADVENTURE, com. law, contracts. A writing signed by a
merchant, to testify that the goods shipped on board a certain vessel belong to
another person who is to take the hazard, the subscriber signing only to oblige
himself to account to him, for the proceeds.
BILL OP ATTAINDER, legislation, punishment. An act of the
legislature by which one or more persons are declared to be attainted, and
their property confiscated.
2. The Constitution of the United States declares that no state shall
pass any bill of attainder.
3. During the revolutionary war, bills of attainder, and ox post facto
acts of confiscation, were passed to a wide extent. The evils resulting from
them, in times of more cool reflection, were discovered to have far outweighed
any imagined good. Story on Const. §1367. Vide Attainder; Bill of Pains
and Penalties.
BILL-BOOK, commerce, accounts. One in in which an account is
kept of promissory notes, bills of exchange, and other bills payable or
receivable: it ought to contain all that a man issues or receives. The book
should show the date of the bill, the term it has to run before it becomes due,
the names of all the parties to it, and the time of its becoming due, together
with the amount for which it was given.
BILL OF CONFORITY. The name of a bill filed by an executor or
administrator, who finds the affairs of the deceased so much involved that he
cannot safely administer the estate, except under the direction of a court of
chancery. This bill is filed against the creditors generally, for the purpose
of having all their claims adjusted, and procuring a final decree settling the
order of payment of the assets. 1 Story, Eq. Jur. 440.
BILL 0F COST, practice. A statement of the items which form the
total amount of the costs of a suit or action. This is demandable as a matter
of right before the payment of the costs.
BILL OF CREDIT. It is provided by the Constitution of the United
States, art. 1, s. 10, that no state shall " emit bills of credit, or make
anything but gold and silver coin a tender in payment or debts." Such bills of
credit are declared to mean promissory notes or bills issued exclusively on the
credit of the. state, and for the payment of which the faith of the state only
is pledged. The prohibition, therefore, does not apply to the notes of a state
bank, drawn on the credit of a particular fund set apart for the purpose. 2
M'Cord's R. 12; 2 Pet. R. 818; 11 Pet. R. 257. Bills of credit may be defined
to be paper issued and intended to circulate through the community for its
ordinary purposes, as money redeemable at a future day. 4 Pet. U. S. R. 410; 1
Kent, Com. 407 4 Dall. R. xxiii.; Story, Const. §§ 1362 to 1364 1
Scam. R. 87, 526.
2. This phrase is used in another sense among merchants it is a letter
sent by an agent or other person to a merchant, desiring him to give credit to
the bearer for goods or money. Com. Dig. Merchant, F 3; 5 Sm. & Marsh. 491;
R. M. Charlt. 151; 4 Pike, R. 44; 3 Burr. Rep. 1667.
BILL OP DEBT, BILL OBLIGATORY, contracts. When a merchant by his
writing acknowledges himself in debt to another, in a certain sum to be paid on
a certain day and subscribes it at a day and place certain. It may be under
seal or not. Com. Dig. Merchant, F 2.
BILL OF EXCEPTION, practice. The statement in writing, of the
objection made by a party in a cause, to the decision of the court on a point
of law, which, in confirmation of its accuracy, is signed and sealed by the
judge, or court who made the decision. The object of the bill of exceptions is
to put the question of law on record, for the information of the court of error
having cognizance of such cause.
2. The bill of exception is authorized by the statute of Westminster 2,
13 Ed. I. c. 31, the principles of which have, been adopted in all the states
of the Union. It is thereby enacted, "when one impleaded before any of the
justices, alleges an exception praying they will allow it, and if they will
not, if he that alleges the exception writes the same, and requires 'that the
justices will put their seals, the justices shall do so, and if one will not,
another ,shall; and if, upon complaint made of the justice, the king cause the
record to come before him, and the exception be not found in the roll, and the
plaintiff show the written exception, with the seal of the justices thereto
put, the justice shall be commande to appear at a certain day, either to
confess or deny his seal, and if he cannot deny his seal, they shall proceed to
judgment according to the exception, as it ought to be allowed or disallowed."
The statute extends to both plaintiff and defendant. Vide the, form of
confessing a bill of exceptions, Burr. 1692. And for precedents see Bull. N. P.
317; Brownlow's Entries; Latine Redivio, 129; Trials per pais, 222, 3; 4
Yeates, 317, 18; 2 Yeates, 295, 6. 485, 6; 1 Morgan's Vade Mecum, 471-5. Bills
of exception differ materially from special verdicts; 2 Bin. 92; and from the
opinions of the court filed in the cause. 10 S. & R. 114, 15.
3. Here will be considered, 1 the cases in which a bill of exceptions
may be had; 2. the time of making the exception; 3. the form of the bill; 4.
the effect of the bill.
4. - 1. In general a bill of exception can be had only in a civil case.
When in the course of the trial of a cause, the judge, either in his charge to
the jury, or in deciding an interlocutory question, mistakes the law, or is
supposed by the counsel on either. side, to have mistaken the law, the counsel
against whom the decision is made may tender an exception to his opinion, and
require him to seal a bill of exceptions. 3 Bl. Com. 372. See Salk. 284, pl. 16
7 Serg. & Rawle, 178; 10 Id. 114, 115 Whart. Dig. Error, D, E 1 Cowen, 622;
2 Caines, 168; 2 Cowen, 479 5, Cowen, 243 3 Cranch, 298 4 Cranch, 62; 6 Cranch,
226; 17 Johns. R. 218; 3 Wend. 418 9 Wend. 674. In criminal cases, the judges,
it seems, are not required to seal a bill of exceptions. 1 Chit. Cr. Law, 622;
13 John. R. 90; 1 Virg. Cas. 264; 2 Watts, R. 285; 2 Sumn. R. 19. In New York,
it is provided by statute, that on the trial of any indictment, exceptions to
any decision of the court may be made by the defendant, in the same cases and
manner provided by law in civil cases and a bill thereof shall be settled,
signed and sealed, and filed with the clerk of the court. But such bill of
exception shall not stay or delay the rendering of judgment, except in some
specified cases. Grah. Pr. 768, note.. Statutory provisions have been made in
several other states authorizing the taking of exceptions in criminal cases. 2
Virg. Cas. 60 and note 14 Pick. R. 370; 4 Ham. R. 348; 6 Ham. R. 16 7 Ham. R.
214; 1 Leigh, R. 598; 14 Wend. 546. See also 1 Halst. R. 405; 2 Penn. R.
637.
5. - 2. The bill of exceptions must be tendered at the time the decision
complained of is made or if the exception be to the charge of the court, it
must be made before the jury have given their verdict. 8 S. & R. 216 4
Dall. 249; S. C. 1 Binn. 38; 6 John. 279; 1 John. 312; 5 Watts, R. 69; 10 John.
R. 312; 5 Monr. R. 177; 7 Wend. R. 34; 7 S. & R. 219; 11 S. & R. 267 4
Pet. R. 102; Ala. R. 66; 1 Monr. 215 11 Pet. R. 185; 6 Cowen, R. 189. In
practice, however, the, point is merely noted, at the time, and the bill is
afterwards settled. 8 S. & R. 216; 11 S. & R. 270; Trials per pais,
467; Salk. 288; Sir T. Ray. 405 Bull. N. P. 315-16; Jacob's Law Dict. They may
be sealed by the judge after the record has been removed by a writ of error,
and after the expiration of his office. Fitz. N. B. 21 N, note.
6. - 3. The bill of exception must be signed by the judge who tried the
cause; which is to be done upon notice of the time and place, when and where it
is to be done. 3 Cowen, 32; 8 Cowen, 766; Bull. N. P. 316 3 Bl. Com. 372. When
the bill of exception is sealed, both parties are concluded by lit. 3 Dall. 38;
Bull. N. P. 316.
7.- 4. The bill of exceptions, being part of the record, is evidence
between the parties, as to the facts therein stated. 3 Burr. 1765. No notice
can be taken of objections or exceptions not appearing on the bill. 8 East,
280; 3 Dall. 38, 422, n.; 2 Binn. 168. Vide, generally, Dunlap's Pr.; Grah.
Pr.; Tidd's Pr.; Chit. Pr.; Penna. Pr.; Archibold's Pr. Sellon's Pr.; in their
several indexes, h. t.; Steph. Pl. 111; Bac. Ab. h. t.; 1 Phil. Ev. 214; 12
Vin. Ab. 262; Code of Pract. of Louisiana, art. 487, 8, 9; 6 Watts & Serg,
386, 397; 3 Bouv. Inst. n. 3228-32.
BILL OF EXCHANGE, contracts. A bill of exchange is defined to be
an open letter of request from, and order by, one person on another, to pay a
sum of money therein mentioned to a third person, on demand, or at a future
time therein specified. 2 Bl. Com. 466; Bayl. on Bills, 1; Chit. Bills, 1; 1 H.
Bl. 586; 1 B. & P. 291, 654; Selw. N. P. 285. Leigh's N. P. 335; Byles on
Bills, 1; 1 Bouv. Inst. n. 895.
2. The subject will be considered with reference, 1 . to the parties to
a bill; 2. the form; 3. their different kinds 4. the indorsement and transfer;
5. the acceptance 6. the protest.
3. - §1. The parties to a bill of exchange are the drawer, (q. v.)
or he who makes the order; the drawee, (q. v.) or the person to whom it is
addressed; the acceptor, (q. v.) or he who accepts -the bill; the payee, (q.
v.) or the party to whom, or in whose favor the bill is made. The indorser, (q.
v.) is he who writes his name on the back of a bill; the indorsee, (q. v.) is
one to whom a bill is transferred by indorsement; and the holder, (q. v.) is in
general any one of the parties who is in possession of the bill, and entitled
to receive the money therein mentioned.
4. Some of the parties are sometimes fictitious persons. When a bill is
made payable to a fictitious person, and indorsed in the name of the fictitious
payee, it is in effect a bill to bearer, and a bona fide holder, ignorant of
that fact, may recover on it, against all prior parties, who were privy to the
transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 1 Camp. 130; 19 Ves.
311. In a case where the drawer and payee were fictitious persons, the acceptor
was held liable to a bona fide holder. 10 B. & C. 468; S. C. 11 E. C. L. R.
116. Vide, as to parties to a bill, Chit. Bills, 15 to 76, (ed. of 1836.)
5. - §2. The form of the bill. 1. The general requisites of a bill
of exchange, are, 1st. that it be in writing. R. T. Hardw. 2; 2 Stra. 955; 1
Pardess. 344-5.
6.- 2d. That it be for the payment of money, and not for the payment of
merchandise. 5 T. R. 485; 3 Wils. 213; 2 Bla. Rep. 782; 1 Burr. 325; 1 Dowl.
& Ry. N. P. C. 33; 1 Bibb's R. 502; 3 Marsh. (Kty.) R. 184; 6 Cowen, 108; 1
Caines, R. 381; 4 Mass. 245; 10 S. & R. 64; 14 Pet. R. 293; 1, M'Cord, 115;
2 Nott & M'Cord, 519; 9 Watts, R. 102. But see 9 John. R. 120; and 19 John.
R. 144, where it was held that a note payable in bank bills was a good
negotiable note.
7. - 3d. That the money be payable at all events, not depending on any
contingency, either with regard to the fund out of which payment is to be made,
or the parties by or to whom payment is to be made. 8 Mod. 363; 4 Vin. Ab. 240,
pl. 16; 1 Burr. 323; 4 Dougl. 9; 4 Ves. 372; Russ. & Ry. C. C. 193; 4 Wend.
R. 576; 2 Barn. & Ald. 417.
8. - 2. The particular requisites of a bill of exchange. It is proper
here to remark that no particular form or set of words is necessary to be
adopted. An order " to deliver money," or a promise that " A B shall receive
money," or a promise " to be accountable" or " responsible" for it, have been
severally held to be sufficient for a bill or note. 2 Ld. Raym. 1396; 8 Mod,
364.
9. The several parts of a bill of exchange are, 1st. that it be properly
dated as to place
10.- 2d. That it be properly dated as to the time of making. As the time
a bill, becomes due is generally regulated by the time when it was made, the
date of the instrument ought to be clearly expressed. Beawes, pl. 3 1 B . &
C. 398; 2 Pardess. n. 333.
11. - 3d. The superscription of the sum for which the bill is payable is
not indispensable, but if it be not mentioned in the bill, the superscription
will aid. the omission. 2 East, P. C. 951.
12. - 4th. The time of payment ought to be expressed in the bill; if no
time be mentioned, it is considered as payable on demand. 7 T. R. 427; 2 Barn.
& C. 157.
13. - 5th. Although it is proper for the drawer to name the place of
payment, either in the body or subscription of the bill, it is not essential;
and it is the common practice for the drawer merely to write the address of the
drawee, without pointing out any, place of payment; in such case the bill is
considered payable, and to be presented at the residence of the drawee, where
the bill was made, or to him personally any where. 2 Pardess. n. 337 10 B.
& C. 4; Moody & M. 381; 4 Car. & Paine, 35. It is at the option of
the drawer whether or not to prescribe a particular place of payment, and make
the payment there part of the contract. Beawes, pl. 8. The drawee, unless
restricted by the drawer, may also fix a place of payment by his acceptance.
Chit. Bills, 172.
14. - 6th. There must be an order or request to pay and that must be a
matter of right, and not of favor. Mood. & M. 171. But it seems that
civility in the terms of request cannot alter the legal effect of the
instrument. "il vous plair a de payer," is, in France, the proper language of a
bill. Pailliet, Manuel de Droit Francais, 841. The word pay is not
indispensable, tor the word deliver is equally operative. Ld. Raym. 1397.
15. - 7th. Foreign bills of exchange consist, generally, of several
parts; a party who has engaged to deliver a foreign bill, is bound to deliver
as many parts as may be requested. 2 Pardess. n. 342. The several parts of a
bill of exchange are called a set; each part should contain a condition that it
shall be paid, provided the others remain unpaid. Id. The whole set make but
one bill.
16. - 8th. The bill ought to specify to whom it is to be paid. 2
Pardess. n. 338; 1 H. Bl. 608; Russ. & Ry. C. C. 195. When the name of the
payee is in blank, and the bill has been negotiated by indorsement, the holder
may fill the blank with his own name. 2 M. & S. 90; 4 Camp. 97. It may,
however, be drawn payable to bearer, and then it is assignable by delivery. 3
Burr. 1526.
17. - 9th. To make a bill negotiable, it must be made payable to order,
or bearer, or there must be other operative and equivlent words of transfer.
Beawes, pl. 3; Selw. N. P. 303, n. 16; Salk. 133. if, however, it is not
intended to make the bill negotiable, these words need not be inserted, and the
instrument will, nevertheless, be valid as a bill of exchange. 6 T. R. 123; 6
Taunt. 328; Russ. & Ry. C. C. 300; 3 Caines' R. 137; 9 John. It. 217. In
France, a bill must be made payable to order. Code de Com. art. 110; 2 Pardess.
n. 339.
18. - 10th. The sum for which the bill is drawn, must be clearly
expressed in the body of it, in writing at length. The sum must be fixed and
certain, and not contingent. 2 Stark. R. 375. And it may be in the money of any
country. Payment of part of the bill, the residue being unpaid, cannot be
indorsed. The, contract is indivisible, and the acceptor would thereby be
compelled to make two payments instead of one. But when part of a bill has been
paid the residue may be assigned, since then it becomes a contract for the
residue only. 12 Mod. 213; 1 Salk. 65; Ld. Ray. 360.
19. - 11th. It is usual to insert the words, value received, but it is.
implied that every bill and indorsement has been made for value received, as
much as if it had been expressed in totidem verbis. 3 M. & S. 352; Bayl.
40, n. 83.
20. - 12th. It is usual, when the drawer of the bill is debtor to the
drawee, to insert in the bill these words: " and put it to my account but when
the drawee, or the person to whom it is directed, is debtor to the drawer, then
he inserts these words : "and put it to your account;" and, sometimes, where a
third person is debtor to the drawee, it may be expressed thus: "and put it to
the account of A B;" Marius, 27;. C, om. Dig. Merchant, F 5; R. T. Hardw. 1, 2,
3; but it is altogether unnecessary to insert any of these words. 1 B. & C.
398; S. C. 8 E. C. L. R. 108.
21. - 13th. When the drawer is desirous to inform the drawee that he
has drawn a bill, he inserts in it the words, "as per advice;" but when he
wishes the bill paid without any advice from him, he writes, "without further
advice." In the former case the drawee is not authorized to pay the bill till
he has received the advice; in the latter he may pay before he has received
advice.
22. - 14th. The drawee must either subscribe the bill, or, it seems,
his name may be simply inserted in the body of the instrument. Beawes, pl. 3;
Ld. Raym. 1376 1 Stra. 609.
23. - 15th. The bill being a letter of request from the maker to a
third person, should be addressed to that person by the Christian name and
surname, or by the full style of their firm. 2 Pardess. n. 335 Beawes, pl. 3;
Chit. Bills, 186, 7.
24. - 16th. The place of payment should be stated in the bill.
25. - 17th. As a matter of precaution, the drawer of a foreign bin may,
in order to prevent expenses, require the holder to apply to a third person,
named in the bill for that purpose, when the drawee refuses to accept the bill.
This requisition is usually in these words, placed in a corner, under the
drawee's address: " Au besoin chez Messrs. - at -," in other words, ((In case
of need apply to Messrs. at -. "
26. - 18th. The drawer may also add a request or direction, that in
case the bill should not be honored by the drawee, it shall be returned without
protest or without expense, by subscribing the words, " retour sans protet," or
" sans frais;" in. this case the omission of the holder to protest, having been
induced by the drawer, he, and perhaps the indorsers, cannot resist the payment
on that account, and thus the expense is avoided. Chit. Bills, 188.
27. - 19th. The drawer may also limit the amount of damages, by making
a memorandum on the bill, that they shall be a definite sum; as, for example:
"In case of non-acceptance or uon-payment, re-exchange and expenses not to,
exceed dollars." Id.
28. - §3. Bills of, exchange are either foreign or inland.
Foreign, when drawn by a person out of, on another in, the United States, or
vice versa; or by a person in a foreign country, on another person in another
foreign country; or by a person in one state, on another in another of the
United States. , 2 Pet. R. 589 .; 10 Pet. R. 572; 12 Pick. 483 15 Wend. 527; 3
Marsh. (Kty.) R. 488 1. Rep. Const.; Ct. 100 4 Leigh's R. 37 4 Wash. C. C. Rep.
148; 1 Whart. Dig. tit. Bills of Exchange, pl. 78. But see 5 John. R. 384,
where it is said by Van Ness, Justice, that a bill drawn in the United States,
upon any place within the United States, is an inland bill.
29. An inland bill is one drawn by a person in a state, on another in
the same state. The principal difference between foreign and inland bills is,
that the former must be protested, and the latter need not. 6 Mod. 29; 2 B.
& A. 656; Chit Bills, (ed. of 1836,) p. 14. The English rule requiring
protest and notice of non-acceptance of foreign bills, has been adopted and
followed as the true rule of mercantile law, in the states of Massachusetts,
Connecticut) New York, Maryland, and South Carolina. 3 Mass. Rep. 557; 1 Day's
R. 11; 3 John. Rep. 202; 4 John. R. 144; 1 Bay's Rep. 468; 1 Harr. & John.
187. But the supreme court of the United States, in Brown v. Berry, 3 Dall. R.
365, and in Clark v. Russel, cited in 6 Serg. & Rawle, 358, held, that in
an action on a foreign bill of exchange, after a protest for non-payment,
protest for non-acceptance, or notice of non-acceptance need not be shown,
inasmuch as they were not required by the custom of merchants in this country;
and those decisions have been followed in Pennsylvania. 6 Serg. & Rawle,
356. It becomes a little difficult, therefore, to know what is the true rule of
the law-merchant in the United States, on this point, after such contrary
decisions." 3 Kent's Com. 95. As to what will be considered a foreign or an
inland bill, when part of the bill is made in one place and part in another,
see 1 M. & S. 87; Gow. R. 56; S. c. 5 E. C. L. R. 460; 8 Taunt., 679; 4 E.
C. L. R. 245; 5 Taunt. 529; 1 E. C. L. R. 179.
30. - §4. The indorsement. Vide articles Indorsement; Indorser;
Indorsee.
31. - §5. The acceptance. Vide article, Acceptance.
32. - §6. The protest. Vide article, Protest. Vide, generally,
Chitty on Bills; Bayley on Bills; Byles on Bills; Marius on Bills; Kyd on
Bills; Cunningham on Bills; Pothier, h. t.; Pardess. Index, Lettre de Change; 4
Vin. Ab. 238; Bac. Ab. Merchant and Merchandise, M.; Com. Digest, Merchant;
Dane's Ab. Index, h. t.; 1 Sup: to Ves. Jr. 86, 514; Smith on Mer. Law, Book 3,
c. 1; Bouv. Inst. Index,.h. t.
BILL OF GROSS ADVENTURE. A phrase used in French maritime law;
it comprehends every instrument of writing which contains a contract of
bottomry, respondentia, and every species of maritime loan. We have no word of
similar import. Hall on Mar. Loans, 182, n. See Bottomry; Gross adventure;
Respondentia.
BILL OF HEALTH; commercial law. A certificate, properly
authenticated, that a certain ship or vessel therein named, comes from a place
where no contagious distempers prevail, and that none of the crew at the time
of her departure were infected with any such distemper.
2. It is generally found on board of ships coming from the Levant, or
from the coast of Barbary, where the plague so frequently prevails. 1 Marsh. on
Ins. 408. The bill of health is necessary whenever a ship sails from a
suspected port; or when it is required at the port of destination. Holt's R.
167; 1 Bell's Com. 553, 5th ed.
3. In Scotland the name of bill of health, has been given to an
application.made by an imprisoned debtor for relief under the Act of Sederunt.
When the want of health of the prisoner requires it, the prisoner is indulged,
under proper regulations, with such a degree of liberty as may be necessary to
restore him. 2 Bell's Com. 549, 5th ed.
BILL OF INDICTMENT. A written accusation of one or more persons,
of a crime or misdemeanor, lawfully presented to a grand jury, convoked, to
consider whether there is sufficient evidence of the charge contained therein
to put the accused on trial. It is returned to the court with an indorsement of
true bill (q. v.) when the grand jury are satisfied that the accused ought to
be tried; or ignoramus, when they are ignorant of any just cause to put the
accused upon hi.% trial.
BILL, contracts. A bill or obligation, (which are the same
thing, except that in English it iis commonly called bill, but in Latin
obligatio, obligation,) is a deed whereby the obligor acknowledges himself to
owe unto the obligee a certain sum of money or some other thing, in which,
besides the names of the parties, are to be considered the sum or thing due,
the time, place, and manner of payment or delivery thereof. It may be indented,
or poll, and with or without a penalty. West's Symboleography s. 100, 101, and
the various forms there given.
BILL OF LADING, contracts and commercial law. A memorandum or
acknowledgment in writing, signed by the captain or master of a ship or other
vessel, that he has received in good order, on board of his ship or vessel,
therein named, at the place therein mentioned, certain goods therein specified,
which he promises to deliver in like good order, (the dangers of the seas
excepted,) at the place therein appointed for the delivery of the same, to the
consignee therein named or to his assigns, he or they paying freight for the
same. 1 T. R. 745; Bac. Abr. Merchant L Com. Dig. Merchant E 8. b; Abbott on
Ship. 216 1 Marsh. on Ins. 407; Code de Com. art. 281. Or it is the written
evidence of a contract for the carriage and delivery of goods sent by sea for a
certain freight. Per Lord Loughborougb, 1 H. Bl. 359.
2. A bill of lading ought to contain the name of the consignor; the name
of the consignee the name of the master of the vessel; the name of the vessel;
the place of departure and destination; the price of the freight; and in the
margin, the marks and numbers of the things shipped. Code de Com. art. 281;
Jacobsen's Sea Laws.
3. It is usually made in three original's, or parts. One of them is
commonly sent to the consignee on board with the goods; another is sent to him
by mail or some other conveyance; and the third is retained by the merch ant or
shipper. The master should also take care to have another part for his own use.
Abbotton Ship. 217.
4. The bill of lading is assignable, and the assignee is entitled to the
goods, subject, however, to the shipper's right, in some cases, of stoppage in
transitu. See In transitu; Stoppage in transitu. Abbott on Shipping. 331; Bac.
Ab. Merchant, L; 1 Bell's Com. 542, 5th ed.
BILLS OF MORTALITY. Accounts of births and deaths which have
occurred in a certain district, during a definite space of time.
BILL OBLIGATORY. An instrument in common use and too well known
to be misunderstood. It is a bond without condition, sometimes called a single
bill, and differs in nothing from a promissory note, but the seal which is
affixed to it. 2 Serg. & Rawle, 115. See Read's Pleaders' Assistant, 256,
for a declaration setting forth such a bill. Also West's Symboleography, s.
100, 101, for the forms both with and without a penalty.
BILL OF PAINS AND PENALTIES. A special act of the legislature
which inflicts a punishment, less than death, upon persons supposed to be
guilty of high offences, Such as; treason and felony, without any conviction in
the ordinary course of judicial proceedings. 2 Wood. Law Lect. 625. It differs
from a bill of attainder in this, that the punishment inflicted by the latter
is death.
2. The Constitution of the United States Provides that "no bill of
attainder shall be passed." It has been judicially said by the supreme court of
the United States, that " a bill of attainder may affect the life of an
individual, or i-nay confiscate his property, or both." 6 Cranch, R. 138. in
the sense of the constitution, then, it seems that bills of attainder include
bills of pains and penalties. Story, Const. §1338. Vide Attainder; Bills
of Attainder.
BILL OP PARCELS, merc. law. An account containing in detail the
names of the items which compose a parcel or package of goods; it is usually
transmitted with the goods to the purchaser, in order that if any mistake have
been made, it may be corrected.
BILL OF PARTICULARS, practice. A detailed informal statement of
a plaintiff is cause of action, or of the defendants's set-off.
2. In all actions in which the plaintiff declares generally, without
specifying his cause of action, a judge upon application will order him to give
the defendant a bill of the particulars, and in the meantime stay, proceedings.
3 John. R. 248. And when the defendant gives notice or pleads a set-off, he
will be required to give a bill of the particulars of his set-off, on failure
of which he will be precluded from giving any evidence in support of it at the
trial. The object in both cases is to prevent surprise and procure a fair
trial. 1 Phil. Ev. 152; 3 Stark Ev. 1055. The bill of particulars is an account
of the items of the demand, and states in what manner they arose. Mete. &
Perk. Dig. h. t. For forms, see Lee's Dict. of Pr., Particulars of demand.
BILL PENAL, contracts. A written obligation, by which a debtor
acknowledges himself indebted in a certain sum, may one hundred dollars, and
for the payment of the debt binds himself in a larger sum, say two hundred
dollars. Bills penal do not frequently occur in modern practice; bonds, with
conditions, have superseded them. Steph. on Pl. 265, note. See 2 Vent. 198.
Bills-penal are sometimes called bills obligatory. Cro. Car. 515; 2 Vent. 106.
But a bill obligatory is not necessarily a bill penal. Com. Dig. Obligations,
D.
BILL OF PRIVILEGE, Eng. law. A process issued out of the court
against an attorney, who is privileged from arrest, instead of process
demanding bail. 3 Bl. Com. 289.
BILL OF PROOF. In the mayor's court, London, the claim made by a
third person to the subject-matter in dispute between two others in a suit
there, is called bill of Proof. It is somewhat similar to an intervention. (q.
v.) 3 Chit. Com. Law, 633; 2 Chit. Pr. 492; 1 Marsh, R. 233.
BILL OF SUFFRANCE, Eng. law. The name of a license granted at
the custom house to a merchant, authorizing him to trade from one English port
to another without paying custom. Cunn. L. D.
BILL OF RIGHTS. English law. A statute passed in the reign of
William and Mary, so called, because it declared the true rights of British
subjects. W. & M. stat. 2, c. 2.
BILL OF SALE, Contracts. An agreement in writing, under seal, by
which a man transfers the right or interest he has in goods and cbattels, to
another. As the law imports a consideration when an agreement is made by deed,
a bill of sale alters the property. Yelv. 196; Cro. Jac. 270 6 Co. 18.
2. The Act of Congress of January 14, 1793, 1 Story, L. U. S. 276,
provides, that when any ship or vessel which shall have been registered
pursuant to that act, or the act thereby partially repealed, shall in whole or
in part be sold or transferred to a citizen of the United States, in every such
sale or transfer, there shall be some instrument or writing in the nature of a
bill of sale, which shall recite at length the certificate of registry;
otherwise the said ship or vessel shall be incapable to be registered anew.
3. In England a distinction is made between a bill of sale for the
transfer of a ship at sea, and one for the conveyance of a ship in the country;
the former is called a grand bill of sale, the latter, simply, a bill of sale.
In this country there does not appear to be such a distinction. 4 Mass.
661.
4. In general, the maritime law requires that the transfer of a ship
should be evidenced by a bill of sale. 1 Mason, 306. But a contract to sell,
accompanied by delivery of possession, is sufficient. 8 Pick. 86 16 Pick. 401;
16 Mass. 336; 7 John. 308. See 4 Mason, 515; 4 John. 54 16 Pet. 215; 2 Hall, 1;
1 Wash. C. C. 226.
BILL OF SIGHT, English commercial law. When a merchant i's
ignorant of the real quantities or qualities of any goods consigned to him, so
that he is unable to make a perfect entry of them, he is required to acquaint
the collector or comptroller of the circumstances and such officer is
authorized, upon the importer or his agent making oath that he cannot, for want
of full information, make a perfect entry, to receive an entry by bill of
sight, for the packages, by the best description which can be given, and to
grant a warrant that the same be landed and examined by the importer in
presence of the officer; and within three days after the goods have been so
landed, the importer is required to make a perfect entry. See stat. 3 & 4
Will. IV. c . 52, §24.
BILL, SINGLE, contracts. A writing by which one person or more,
promises to another or others, to pay him or them a sum of money at a time
therein specified, without any condition. It is usually under seal; and when
so, it is sometimes, if not commonly, called a bill obligatory. (q. v.) 2 S.
& R. 115.
2. It differs from a promissory note in this, that the latter is always
payable to order; and from a bond, because that instrument has always a
condition attached to it, on the performance of which it is satisfied. 5 Com.
Dig. 194; 7 Com. 357.
BILL OF STORE, English commercial law. A license granted by
custom house officers to merchants, to carry such stores and provisions as are
necessary for a voyage, free of duty. See stat. 3 and 4 Will. IV., c. 5 2.
BILL, TRUE. A true bill is an indictment approved of by a grand
jury. Vide Billa Vera; True Bill.
BILLS PAYABLE, COMMERCE. Engagements which a merchant has
entered into in writing, and which he is to pay on their becoming due. Pard. n.
85.
BILLS RECEIVABLE, Commerce. Promissory notes, bills of exchange,
bonds, and other evidences or securities which a merchant or trader holds, and
which are payable to him. Pard. n. 85.
BILLA VERA, practice. When the proceedings of the courts were
recorded in Latin, and the grand jury found a bill of indictment to be
supported by the evidence, they indorsed on it billa vera; now they indorse in
plain English " a true bill."
TO BIND, BINDING, contracts. These words are applied to the
contract entered into, between a master and an apprentice the latter is said to
be bound.
2. In order to make a good binding, the consent of the apprentice must
be had, together with that of his father, next friend, or some one standing in
loco parentis. Bac. Ab. Master and Servant, A; 8 John. 328; 2 Pen. 977; 2 Yerg.
546 1 Ashmead, 123; 10 Sergeant & Rawle, 416 1 Massachusetts, 172; 1
Vermont, 69. Whether a father has, by the common law, a right to bind out his
child, during his minority without his consent, seems not to be settled. 2
Dall. 199; 7 Mass. 147; 1 Mason, 78; 1 Ashm. 267. Vide Apprentice; Father;
Mother; Parent.
3. The words to bind or binding, are also used to signify that a thing
is subject to an obligation, engagement or liability; as, the judgment binds
such an estate. Vide Lien.
TO BIND, OR TO BIND OVER, crim. law. The act by which a
magistrate or a court hold to bail a party, accused of a crime or
misdemeanor.
2. A person accused may be bound over to appear at a court having
jurisdiction of the offence charged, to answer; or he may be bound over to be
of good behaviour, (q. v.) or to keep the peace. See Surety of the Peace.
3. On refusing to enter into the requisite recognizance, the accused may
be committed to prison.
BIPARTITE. Of two parts. This term is used in conveyancing as,
this indenture bipartite, between A, of the one part, and B, of the other part.
But when there are only two parties, it is not necessary to use this word.
BIRRETUM or BIRRETUS. A cap or coif used formerly in England, by
judges and sergeants at law. Spelm. h. t.; Cunn. Dict. Vide Coif.
BIRTH. The act of being wholly brought into the world. The whole
body must be detached from that of the mother, in order to make the birth
complete. 5 C. & P. 329; S. C. 24 E. C. L. R. 344 6 C. & P. 349; S. C.
25 E. C. L. R. 433.
2. But if a child be killed with design and maliciously after it has
wholly come forth from the body of the mother, although still connected with
her by means of the umbilical cord, it seems that such killing will be murder.
9 C. & P. 25 S . C. 38 E. C. L. R. 21; 7 C. & P. 814. Vide articles
Breath; Dead Born; Gestation; Life; and 1 Beck' s Med. Jur. 478, et seq.; 1
Chit. Med. Jur. 438; 7 C. & P. 814; 1 Carr. & Marsh. 650; S. C. 41 E.
C. L. R. 352; 9 C. & P. 25.
3. It seems that unless the cbild be born alive, it is not properly a
birth, but a carriage. 1 Chit. Pr. 35, note z. But see Russ. & Ry. C. C.
336.
BISAILE, domestic relations. A corruption of the French word
besaieul, the father of the grandfather or grandmother. In Latin he is called
proavus. Inst. 3, 6, 3 Dig. 38, 10, 1, 5. Vide Aile.
BISHOP. An ecclesiastical officer, who is the chief of the
clergy of his diocese, and is the archbishop's assistant. Happily for this
country, these officers are not recognized by law. They derive all their
authority from the churches over which they preside. Bishop's COURT, Eng. law.
An ecclesiastical court held in the cathedral of each diocese, the judge of
which is the bishop's chancellor.
BISHOPRICK, eccl. law. The extent of country over which a bishop
has jurisdiction a see; a diocese. For their origin, see Francis Duarenus de
sacris Eccles. Ministeriis ac beneficiis, lib. 1, cap. 7; Abbe Fleury, 2d
Discourse on Ecclesiastical History, §v.
BISSEXTILE. The day which is added every fourth year to the
month of February, in order to make the year agree with the course of the sun.
It is called bissextile, because in the Roman calendar it was fixed on the
sixth day before the calends of March, (which answers to the 24th day of
February,) and this day was counted twice; the first was called bissextus
prior, and the other bissextus posterior, but the latter was properly called
bissextile or intersalary day. Although the name bissextile is still retained
in its obsolete import, we intercalate the 29th of February every fourth Year,
which is called leap year; and for still greater accuracy, make only one leap
year out of every four centenary years. The years 1700 and 1800 were not leap
years, nor will the .year A. D. 1900 be reckoned as one, but the year A. D.
2000 will be a leap year or bissextile. For a learned account of the Julian and
Gregorian calendars, see Histoire du Calendrier Romain, by Mons. Blondel; also,
Savigny Dr. Rom. §192; and Brunacci's Tract on Navigation, 275, 6. BLACK
ACT, English law. An act of parliament made in the 9 Geo. II., which tears this
name, to punish certain marauders who committed great outrages, in disguise,
and with black faces. See Charlt. R. 166.
BLACK BOOK OF THE ADMIRALTY. An ancient book compiled in the
reign of Edw. III. It has always been deemed of the highest authority in
matters concerning the admiralty. It contains the laws of Oleron, At large; a
view of the crimes and offences cognizable in the admiralty; ordinances and
commentaries on matters of prize and maritime torts, injuries and contracts, 2
Gall. R. 404.
BLACK BOOK OP THE EXCHEQUER. The name of a book kept in the
English exchequer, containing a collection of treaties) conventions, charters,
&c.
BLACK MAIL. When rents were reserved payable in work, grain, and
the like, they were called reditus nigri, or black mail, to distinguish them
from white rents or blanch farms, or such as were paid in money. Vide Alba
firma.
BLANCH FIRMES. The same as white rent. (q. v.)
BLANK. A space left in writing to be filled, up with one or more
words, in order to make sense. 1. In what cases the ambiguity occasioned by
blanks not filled before execution of the writing may be explained 2. in what
cases it cannot be explained.
2. - 1. When a blank is left in a written agreement which need not -have
been reduced to writing, and would have been equally binding whether written or
unwritten, it is presumed, in an action for the non-performance of the
contract, parol evidence might be admitted to explain the blank. And where a
written instrument, which was made professedly to record a fact, is produced as
evidence of that fact which it purports to record, and a blank appears in a
material part, the omission may be supplied by other proof. 1 Phil. Ev. 475 1
Wils. 215; 7 Verm. R. 522; 6 Verm. R. 411. Hence a blank left in an award for a
name, was allowed to be supplied by parol proof. 2 Dall. 180. But where a
creditor signs a deed of composition leaving the amount of his debt in blank,
he binds himself to all existing debts. 1 B. & A. 101; S. C. 2 Stark. R.
195.
3. - 2. If a blank is left in a policy of insurance for the name of the
place of destination of a ship, it will avoid the policy. Molloy, b. 2, c. 7,
s. 14; Park, Ins. 22; Wesk. Ins. 42. A paper signed and sealed in blank, with
verbal authority to. fill it up, which is afterwards done, is void, unless
afterwards delivered or acknowledged and adopted. 1 Yerg. 69, 149; 1 Hill, 267
2 N. & M. 125; 2 Brock. 64; 2 Dev. 379 1 Ham. 368; 6 Gill & John. 250;
but see contra, 17 S. & R. 438. Lines ought to be drawn wherever there are
blanks, to prevent anything from being inserted afterwards. 2 Valin's Comm.
151.
4. When the filling up blanks after the execution of deeds and other
writings will vitiate them or not, see 3 Vin. Abr. 268; Moore, 547; Cro. Eliz.
626; 1 Vent. 185; 2 Lev. 35; 2 Ch. R. 187; 1 Anst. 228; 5 Mass. 538; 4 Binn. 1;
9 Crancb, 28; Yelv. 96; 2 Show. 161; 1 Saund. Pl. & Ev. 77; 4 B. & A.
672; Com. Dig. Fait, F 1; 4 Bing. 123; 2 Hill. Ab. c. 25, §80; n. 33,
§54-and 72; 1 Ohio, R. 368; 4 Binn. R. 1; 6 Cowen, 118; Wright, 176.
BLANK BAR, pleading. The same with that called a common bar,
whicb, in an action of trespass, is put in to oblige the plaintiff to assign
the certain' place where the trespass was committed. Cro. Jac. 594, pl. 16.
BLANK INDORSEMENT, contrad. An indorsement which does not
mention the name of the person in whose favor it is made; it is usually made by
writing the name of the indorser on the back of the bill. Chit. Bills, 170.
2. When a bill or note has been indorsed in blank, its negotiability
cannot afterwards be restrained. 1 Esp. N. P. Cas. 180; 1 Bl. Rep. 295. As many
persons as agree may join in suing on a bill when indorsed in blank; for
although it was given to one alone, yet by allowing the others to join in the
suit, he has 'Made them sharers in his rights. 8 Camp. N. P. Cas. 239. Vide
Indorsement; Negotiable paper; Restrictive indorsement.
BLASPHEMY, crim. law. To attribute to God that which is contrary
to his nature, and does not belong to him, and to deny what does or it is a
false reflection uttered with a malicious, design of reviling God. Elym's Pref.
to vol. 8, St. Tr.
2. This offence has been enlarged in Pennsylvania, and perhaps most of
the states, by statutory provision. Vide Christianity; 11 Serg. & Rawle,
394. In England all blasphemies against God, the Christian religion, the Holy
Scriptures, and malicious revilings of the established church, are punishable
by indictment. 1 East, P. C. 3; 1 Russ. on Cr. 217.
3. In France, before the 25th of September, 1791, it was a blasphemy
also to speak against the holy virgin and the saints, to deny one's faith, to
speak with impiety of holy things, and to swear by things sacred. Merl. Rep. h.
t. The law relating to blasphemy in that country was totally repealed by the
code of 25th of September, 1791, and its present penal code, art. 262, enacts,
that any person who, by words or gestures, shall commit any outrage upon
objects of public worship, in the places designed or actually employed for the
performance of its rites, or shall assault or insult the ministers of such
worship in the exercise of their functions, shall be fined from sixteen to five
hundred francs, and be imprisoned for a period not less than fifteen days nor
more than six months.
4. The civil law forbad the crime of blasphemy; such, for example, as to
swear by the hair or the head of God; and it punished its violation with death.
Si enim contra homines factae blasphemiae impunitae non relinquuntur; multo
magis qui ipsum Deum Blasphemant, digni sunt supplicia sustinere. Nov. 77, ch.
1, §1.
5. In Spain it is blasphemy not only to speak against God and his
government, but to utter injuries against the Virgin Mary and the saints. Senen
Villanova Y Manes, Materia Criminal, forense, Observ. 11, cap. 3, n
BLIND. One who is deprived of the faculty of seeing.
2. Persons who are blind may enter into contracts and make wills like
others. Carth. 53; Barn. 19, 23; 3 Leigh, R. 32. When an attesting witness
becomes blind, his handwriting may be proved as if he were dead. 1 Stark. Ev.
341. But before proving his handwriting the witness must be produced, if within
the jurisdiction of the court, and examined. Ld. Raym. 734; 1 M. & Rob.
258; 2 M. & Rob. 262.
BLOCKADE, international law. The actual investment of a port or
place by a hostile force fully competent to cut off all communication
therewith, so arranged or disposed as to be able to apply its force to every
point of practicable access or approach to the port or place so invested.
2. It is proper here to consider, 1. by what authority a blockade can be
established; 2. what force is sufficient to constitute a blockade; 3. the
consequences of a violation of the blockade.
>3. - 1. Natural sovereignty confers the right of declaring war, ana
the right which nations at war have of destroying or capturing each other's
citizens, subjects or goods, imposes on neutral nations the obligation not to
interfere with the exercise of this right within the rules prescribed by the
law of nations. A declaration of a siege or blockade is an act of sovereignty,
1 Rob. Rep. 146; but a direct declaration by the sovereign authority of the
besieging belligerent is not always requisite; particularly when the blockade
is on a distant station; for its officers may have power, either expressly or
by implication, to institute such siege or blockade. 6 Rob. R. 367.
4. - 2. To be sufficient, the blockade must be effective, and made
known. By the convention of the Baltic powers of 1780, and again in 1801, and
by the ordinance of congress of 1781, it is required there should be a number
of vessels stationed near enough to the port to make the entry apparently
dangerous. The government of the United States has, uniformly insisted, that
the blockade should be effective by the presence of a competent force,
stationed and present, at or near the entrance of the port. 1 Kent, Com. 145,
and the authorities by him cited; and see 1 Rob. R. 80; 4 Rob. R. 66; 1 Acton's
R. 64, 5; and Lord Erskine's speech, 8th March, 1808, on the orders in council,
10 Cobber's Parl. Debates, 949, 950. But "it is not an accidental absence of
the blockading force, nor the circumstance of being blown off by wind, (if the
suspension and the-reason of the suspension are known,) that will be sufficient
in law to remove a blockade." But negligence or remissness on the part of the
cruizers stationed to maintain the blockade, may excuse persons, under
circumstances, for violating the blockade. 3 Rob. R. 156 .) 1 Acton's R. 59. To
involve a neutral in the consequences of violating a blockade, it is
indispensable that he should have due notice of it: this information may be
communicated to him in two ways; either actually, by a formal notice from the
blockading power, or constructively by notice to his government, or by the
notoriety of the fact. 6 Rob. R. 367; 2 Rob. R. 110; Id. 111, note; Id. 128; 1
Acton's R. 6 1.
4. - 3. In considering the consequences of the violation of a blockade,
it is proper to take a view of what will amount to such a violation, and, then,
of its effects. As all criminal acts require an intention to commit them, the
party must intend to violate the blockade, or his acts will be perfectly
innocent; but this intention will be judged of by the circumstances. This
violation may be, either, by going into the place blockaded, or by coming out
of it with a cargo laden after the commencement of the blockade. Also placing
himself so near a blockaded port as to be in a condition to slip in without
observation, is a violation of the blockade, and raises the presumption of a
criminal intent. 6 Rob. R. 30, 101, 182; 7 John. R. 47; 1 Edw. R. 202; 4
Cranch, 185. The sailing for a blockaded port, knowing it to be blockaded, is,
it seems, such an act as may charge the party with a breach of the blockade. 5
Cranch, 335 9 Cranch, 440, 446; 1 Kent, Com. 150. When the ship has contracted
guilt by a breach of the blockade, she may be taken at any time before the end
of her voyage, but the penalty travels no further than the end of her return
voyage. 2 Rob. R. 128; 3 Rob. R. 147. When taken, the ship is confiscated; and
the cargo is always, prima facie, implicated in the guilt of the owner or
master of the ship and the burden of rebutting the presumption that the vessel
was going in for the benefit of the cargo, and with the direction of the
owners, rests with them. 1 Rob. R. 67, 130 3 Rob. R. 173 4 Rob. R. 93; 1 Edw.
It 39. Vide, generally, 2 Bro. Civ. & Adm. Law, 314 Chit. Com. Law, Index,
h. t.; Chit. Law of Nations, 128 to 147; 1 Kent's Com. 143 to 151; Marsh. Ins.
Index, h. t.; Dane's Ab. Index, h. t.; Mann. Com. B. 3, c. 9.
BLOOD, kindred. This word, in the law sense, is used to signify
relationship, stock, or family; as, of the blood of the ancestor. 1 Roper on
Leg. 103; 1 Supp. to Ves. jr. 365. In a more extended sense, it means kindred
generally. Bac. Max. Reg. 18.
2. Brothers and sisters are said to be of the whole blood, (q. v.) if
they have the same father and mother of the half blood, (q. v.) if they have
only one parent in common. 5 Whart. Rep. 477.
BLOTTER, mer. law. A book among merchants, in which entries of
sales, &c.;are first made.
2. This book, containing the original entries, is received in evidence,
when supported by the oaths or affirmations of those who keep it. See Original
entry.
BOARD. This word is used to designate all the magistrates of a
city or borough, or all the managers or directors of any institution; as, the
board of aldermen; the board of directors of the Bank of North America. The
majority of the board have in general the power to perform the acts of the
whole board, but sometimes they are restrained by their charters, and it
requires a greater number to perform certain acts.
BOARD OF CIVIL AUTHORITY. A used in Vermont. This board is
composed of the selectmen and justices of the peace of their respective towns.
They are authorized to abate taxes, and the like.
BOCKLAND, Eng. law. The name of an ancient allodial tenure,
which was exempt from feudal services. Bac. Ab. Gavelkind, A Spelman's English
Works, vol. 2, 233.
BODY. A person.
2. In practice, when the sheriff returns cepi corpus to a capias, the
plaintiff may obtain a rule, before special bail has been entered, to bring in
the body and this must be done either by committing the defendant or entering
special bail. See Dead Body.
BODY POLITIC, government, corporations. When applied to the
government this phrase signifies the state.
2. As to the persons who compose the body politic, they take
collectively the name, of people, or nation; and individually they are
citizens, when considered in relation to their political rights, and subjects
as being submitted to the laws of the state.
3. When it refers to corporations, the term body politic means that the
members of such corporations shall be considered as an artificial person.
BOILARY. A term used to denote the water which arises from a
salt well, belonging to one who has no right to the soil. Ejectment may be
maintained for it. 2 Hill, Ab. c. 14, §5; Co. Litt. 4 b.
BONA, goods and chattels. In the Roman law, it signifies every
kind of property, real, personal, and mixed, but chiefly it was applied to real
estates; chattels being chiefly distinguished by the words, effects, movables,
&c. Bona were, however, divided into bona mobilia, and bona immobilia. It
is taken in the civil law in nearly the sense of biens (q. v.) in the French
law.
BONA FIDE. In or with good faith.
2. The law requires all persons in their transactions to act with good
faith and a contract where the parties have not acted bonafide is void at the
pleasure of the innocent party. 8 John. R. 446; 12 John. R. 320; 2 John. Ch. R.
35. If a contract be made with good faith, subsequent fraudulent acts will not
vitiate it; although such acts may raise a presumption of antecedent fraud, and
thus become a means of proving the want of good faith in making the contract. 2
Miles' Rep. 229; and see also, Rob. Fraud. Conv. 33, 34; Inst. 2, 6 Dig. 41, 3,
10 and 44; Id. 41, 1, 48; Code, 7, 31; 9 Co. 11; Wingate's Maxims, max. 37;
Lane, 47; Plowd. 473; 9 Pick. R. 265; 12 Pick. R. 545; 8 Conn. R. 336; 10 Conn.
R. 30; 3 Watts, R. 25; 5 Wend. R. 20, 566. In the civil law these actions are
called (actiones) bonae fidei, in which the judge has a. more unrestrained
power (liberior potestas) of estamating how much one person ought to give to or
do, for another; whereas, those actions are said to be stricti juris, in which
the power of the judge is confined to the agreement of the parties. Examples of
the foraier are the actions empti-venditi, locati-conducti, negitiorum
gestorum, &c.; of the latter, the actions ex mutus, ex chirographo, ex
stipilatu, ex indebito, actions proescriptis verbis, &c.
BONA GESTURA. Good behaviour.
BONA MOBILIA. Movable goods, personal property.
BONA NOTABILIA Engl. ecclesiastical law. Notable goods. When a
person dies having at the time of his death, goods in any other diocese,
beside's the goods in the diocese where he dies, amounting to the value of five
pounds in the whole, he is said to have bona notabilia; in which case proof of
his will, or granting letters of administration, belongs to the archbishop of
the province. 1 Roll. Ab. 908; Toll. Ex. 51 Williams on Ex. Index, h. t.
BONA PERITURA. Perishable goods.
2. An executor, administrator, or trustee, is bound to use due diligence
in disposing of perishable goods, such as fattened cattle, grain, fruit, or any
other article which may be worse for keeping. Bac. Ab. Executors, &c.;D; 11
Vin. Ab. 102; 1 Roll. Ab. 910; 5 Cro. Eliz.518; Godb.104; 3 Munf. R. 288; 1
Beat. R. 5,14; Dane's Ab. Index, h. t.
3. In Pennsylvania, when goods are attached, they may be sold by order
of court, when they are of a perishable nature. Vide Wesk. on Ins. 390; Serg.
on Attachm. Index.
BONA VACANTIA. Goods to which no one claims a property, as,
shipwrecks, treasure trove, &c.; vacant goods.
BONA WAVIATA. Goods waived or thrown away by a thief, in his
flight, for fear of being apprehended.
BOND, contract. An obligation or bond is a deed whereby the
obligor, obliges himself, his heirs, executors and administrators, to pay a
certain sum of money to another at a day appointed. But see 2 Shepl. 185. If
this be all, the bond is called a single one, simplex obligatio; but there is
generally a condition added, that if the obligor pays a smaller sum, or does,
or omits to do some particular act, the obligation shall be void. 2 Bl. Com.
840. The word bond ex vi termini imports a sealed instrument. 2 S. & R.
502; 1 Bald. R. 129; 2 Porter, R. 19; 1 Blackf. R. 241; Harp. R. 434; 6 Verm.
R. 40. See Condition; Interest of money; Penalty. It is proposed to consider:
1. The form of a bond, namely, the words by which it may be made, and the
ceremonies required. 2. The condition. 3. The performance or discharge.
2.-I. 1. There must be parties to a bond, an obligor and obligee : for
where a bond was made with condition that the obligor should pay twenty pounds
to such person or persons; as E. H. should, by her last will and testament in
writing, name and appoint the same to be paid, and E. H. did not appoint any
person to, whom the same should be paid, it was held that the money was not
payable to the executors of E. H. Hob. 9. No particular form of words are
essential to create an obligation, but any words which declare the intention of
the parties, and denote that one is bound to the other, will be sufficient,
provided the ceremonies mentioned below have been observed. Shep. Touch. 367-8;
Bac. Abr. Obligations, B; Com. Dig. Obligations, B 1.
3. - 2. It must be in writing, on paper or parchment, and if it be made
on other materials it is void. Bac. Abr. Obligations, A.
4. - 3. It must be sealed, though it is not necessary that it should be
mentioned in the writing that it is sealed. As to what is a sufficient sealing,
see the above case, and the word Seal.
5. - 4. It must be delivered by the party whose bond it is, to the
other. Bac. Abr. Obligations, C. But the delivery and acceptance may be by
attorney. The date is not considered of the substance of a deed, and therefore
a bond which either has no date or an impossible one is still good, provided
the real day of its being dated or given, that is, delivered, can be proved. 2
Bl. Com. 304; Com. Dig. Fait, B 3; 3 Call, 309. See Date.
6. - II. The condition is either for the payment of money, or for the
performance of something else. In the latter case, if the condition be against
some rule of law merely, positively impossible at the time of making it,
uncertain or insensible, the condition alone is void, and the bond shall stand
single and unconditional; for it is the folly of the obligor to enter into such
an obligation, from which he can never be released. If it be to do a thing
malum in se, the obligation itself is void, the whole contract being unlawful.
2 Bl. Com. 340; Bac. Abr. Conditions, K, L; Com. Dig. Conditions, D 1, D 2, D
3, D 7, D 8.
7. - III. 1. When, by the condition of an obligation, the act to be done
to the obligee is of its own nature transitory, as payment of money, delivery
of charters, or the like, and no time is limited, it ought to be performed in
convenient time. 6 Co. 31 Co. Lit. 208; Roll. Abr. 436.
8. - 2. A payment before the day is good; Co. Lit. 212, a; or before
action brought. 10 Mass. 419; 11 Mass. 217.
9.-3. If the condition be to do a thing within a certain time, it may be
performed the last da of the time appointed. Bac. Abr. Conditions, P 3.
10. - 4. If the condition be to do an act, without limiting any time, he
who has the benefit may do it at what time he pleases. Com. Dig. Conditions, G
3.
11. - 5. When the place where the act to be performed is agreed upon,
the party who is to perform it, is not obliged to seek the opposite party
elsewhere; nor is he to whom it is to be performed bound to accept of the
performance in another place. Roll. 445, 446 Com. Dig. Conditions, G 9 Bac.
Abr. Conditions, P 4. See Performance.
12. - 6. For what amounts to a breach of a condition in a bond see Bac.
Abr. Conditions, 0; Com. Dig. Conditions, M; and this Dict. tit. Breach.
BOND TENANT, Eng. law. Copyholders and customary tenants are
sometimes so called. Calth. on Copyh. 51, 54.
BONDAGE. Slavery.
BONIS NON AMOVENDIS. The name of a writ addressed to the
sheriff, when a writ of error has been brought, commanding that the person
against whom judgment has been obtained, be not suffered to remove his goods
till the error be tried and determined. Reg. Orig. 131.
BONO ET MALO. The name of a special writ of jail delivery, which
formerly issued of course for each particular prisoner. 4 Bl. Com. 270.
BONUS, contrads. A premium paid to a grantor or vendor; as, e.
g. the bank paid a bonus to the state for its charter. A consideration given
for what is received.
BOOK. A general name given to every literary composition which
is printed; but appropriately to a printed composition bound in a volume.
2. The copyright, (q. v.) or exclusive right to print and publish a
book, may be secured to the author and his assigns for the term of twenty-eight
years; and, if the author be living, and a citizen of the United States, or
resident therein, the same right shall be continued to him for the further term
of fourteen years, by complying with the conditions of the act of Congress; one
of which is, that he shall, within three months after publication, deliver, or
cause to be delivered, a copy of the same to the clerk of the said district.
Act of February 3, 1831. 4 Sharsw. cont. of Story's L. U. S. 2223.
BOOK-LAND, English law. Land, also called charter-land, which
was held by deed under certain rents and fee services, and differed in nothing
from free socage land. 2 Bl. Com. 90. See 2 Spelman's English Works, 233, tit.
Of Ancient Deeds and Charters.
BOOKS, commerce, accounts. Merchants, traders, and other
persons, who are desirous of understanding their affairs, and of explaining
them when necessary, keep, 1. a day book; 2. a journal; 3. a ledger; 4. a
letter book; 5. an invoice book; 6. a cash book; 7. a bill book; 8. a bank
book; and 9. a cheek book. The reader is referred to these several articles.
Commercial books are kept by single or by double entry.
BOOTY, war. The capture of personal property by a public enemy
on land, in contradistinction to prize, which is a capture of such property by
such an enemy, on the sea.
2. After booty has been in complete possession of the enemy for
twenty-four hours, it becomes absolutely his, without any right of postliminy
in favor of the original owner, particularly when it has passed, bona fide,
into the hands of a neutral. 1 Kent, Com. 110.
3. The right to the booty, Pothier says, belongs to the sovereign but
sometimes the right of the sovereign, or the public, is transferred to the
soldiers, to encourage them. Tr. du Droit de Propriete, part 1, c. 2, art. 1,
§2; Burl. Nat. and Pol. Law, vol. ii. part 4, o. 7, n. 12.
BOROUGH. An incorporated town; so called in the charter. It is
less than a city. 1 Mann. & Gran. 1; 39 E. C. L. R. 323.
BOROUGH ENGLISH, English law. This, as the name imports, relates
exclusively to the English law.
2. It is a custom, in many ancient boroughs, by which the youngest son
succeeds to the burgage tenement on the death of the father. 2 Bl. Com. 83.
3. In some parts of France, there was a custom by which the youngest son
was entitled to an advantage over the other children in the estate of their
father. iller. Rep. mot Mainete.
BORROWER, contracts. He to whom a thing is lent at his
request.
2. The contract of loan confers rights, and imposes duties on the
borrower' 1. In general, he has the right to use the thing borrowed, during the
time and for the purpose intended between the parties; the right of using the
thing bailed, is strictly confined to the use, expressed or implied, in the
particular transaction, and by any excess, the borrower will make himself
responsible. Jones' Bailment, 58 6 Mass. R. 104; Cro. Jac. 244; 2 Ld. Raym.
909; Ayl. Pand. B. 4, t. 16, p. 517; Domat, B. 1, t. 5, §2, n. 10, 11, 12;
Dio. 13, 6, 18 Poth. Pret a Usage, c. 2, §1, n. 22; 2 Bulst. 306; Ersk.
Pr. Laws of ScotI. B. 3, t. 1, §9; 1 Const. Rep. So. Car. 121 Bracton,
Lib. 3, c. 2, §l, p. 99. The loan is considered strietly personal, unless,
from other circumstances, a different intention may be presumed. 1 Mod. Rep.
210; S. C. 3 Salk. 271.
3. - 2. The borrower is bound to take extraordinary care of the thing
borrowed; to use it according to the intention of the lender, to restore it in
proper time; to restore it in a proper condition. Of these, in their order.
4. - 1. The loan being gratuitous, the borrower is bound to
extraordinary diligence, and is responsible for slight neglect in relation to
the thing loaned. 2 Ld. Raym. 909, 916 Jones on Bailm. 65; 1 Dane's Abr. c. 17,
art. 12; Dig. 44, 73 1, 4; Poth. Pret. a Usage, c. 2, §2, art. 21, n.
48.
5. - 2. The use is to be according to the condition of the loan; if
there is an excess in the nature, time, manner, or quantity of the use, beyond
what may be inferred to be within the intention of the parties, the borrower
will be responsible, not only for any damages occasioned by the excess, but
even for losses by accidents, which could not be foreseen or guarded against. 2
Ld. Raym. 909; Jones on Bailm. 68, 69.
6. - 3. The borrower is bound to make a return of the thing loaned, at
the time, in the place, and in the manner contemplated by the contract.. Domat,
Liv. 1, t. 5, §1, n. 11; Dig. 13, 6, 5, 17. If tho borrower does not
return the thing at the proper time, he is deemed to be in default, and is
geneally responsible for all injuries, even for accidents. Jones on Bailm. 70;
Pothier, Pret a Usage , ch. 2, §3, art. 2, n. 60; Civil Code Of Louis.
art. 2870; Code Civil, art. 1881; Ersk. Inst. B. 3, t. 1, §22 Ersk. Pr.
Laws of Scotl. B. 3, t. 1, §9.
7. - 4. As to the condition in which the thing is to be restored. The
borrower not being liable for any loss or deterioration of the thing, unless
caused by his own neglect of duty, it follows, that it is sufficient if he
returns it in the proper manner, and at the proper time, however much it may be
deteriorated from accidental or other causes, not connected with any such
neglect. Story on Bailm. eh. 4, §268. See, generally, Story on Bailm. oh.
4; Poth. Pret A Usage; 2 Kent, Com. 446-449; Vin. Abr. Bailment, B 6; Bac. Abr.
Bailment; Civil Code of Louis. art. 2869-2876; 1 Bouv. Inst. n. 1078-1090. Vide
Lender.
BOSCAGE, Eng. law. That food which wood and trees yield to
cattle.
BOTE, contracts A recompense, satisfaction, amends, profit or
advantage : hence came the word man-bote, denoting a compensation for a man
slain; house-bote, cart-bote, plough-bote, signify that a tenant is privileged
to cut wood for these uses. 2 Bl. Com. 35; Woodf. L. & T. 232.
BOTELESS, or bootless. Without recompense, reward or
satisfaction made unprofitable or without success.
BOTTOMRY, maritime law. A contract, in nature of a mortgage of a
ship, on which the owner borrows money to enable him to fit out the ship, or to
purchase a cargo, for a voyage proposed: and he pledges the keel or bottom of
the ship, pars pro toto, as a security for the repayment; and it is stipulated
that if the ship should be lost in the course of the voyage, by any of the
perils enumerated in the contract, the lender also shall lose his money but if
the ship should arrive in safety, then he shall receive back his principal, and
also the interest agreed upon, which is generally called marine interest,
however this may exceed the legal rate of interest. Not only the ship and
tackle, if they arrive safe, but also the person of the borrower, is liable for
the money lent and the marine interest. See 2 Bl. Com. 458; Marsh. Ins. B. 21
c. 1; Ord. Louis XIV. B. 3, tit. 5; Laws of Wishuy, art. 45 Code de Com. B. 2,
tit. 9.
2. The contract of bottomry should specify the principal lent, and the
rate of marine interest agreed upon; the subject on which the loan is effected
the names of the vessel and of the master those of the lender and borrower
whether the loan be for an entire voyage; for what voyage and for what space of
time; and the period of re-payment. Code de Com. art. 311 Marsh. Ins. B. 2.
3. Bottomry differs materially from a simple loan. In a loan, the money
is at the risk of the borrower, and must be paid at all events. But in
bottomry, the money is at the risk of the lender during the voyage. Upon a
loan, only legal interest can be received; but upon bottomry, any interest may
be legally reserved which the parties agree upon. See, generally, Metc. &
Perk. Dig. h. t.; Marsh. lnst. B. 2; Bac. Abr. Merchant, K; Com. Dig. Merchant.
E 4; 3 Mass. 443; 8 Mass. 340; 4 Binn. 244; 4 Cranch, 328; 3 John. R. 352 2
Johns. Cas. 250; 1 Binn. 405; 8 Cranch, 41 8; 1 Wheat. 96; 2 Dall. 194. See
also this Dict. tit. Respondentia; Vin. Abr. Bottomry Bonds 1 Bouv. Inst. n.
1246-57.
BOUGHT NOTE, contracts. An instrument in writing, given by a
broker to the seller of merchandise, in which it is stated that the goods
therein mentioned have been sold for him. There appears, however, some
confusion in the books, on the subject of these notes sometimes they are called
sold notes. 2 B. & Ald. 144 Blackb. on Sales, 89.
2. This note is signed in the broker's name, as agent of the buyer and
seller; and, if he has not exceeded his authority, the parties are thereby
respectively bound. 1 Bell's Com. (5th ed.) 435; Holt's C. 170; Story on
Agency, §28; 9 B. & Cr. 78; 17 E. C. L. R. 335; 5 B. & Ad. 521; 1
N. R. 252; 1 Moo. & R. 368; Moo. & M. 43; 22 E. C. L. R. 243; 2 M.
& W. 440; Moo. & M. 43; 6 A. & E. 486; 33 E. C. L. R. 122; 16 East,
62 Gow, R. 74; 1 Camp. R. 385; 4 Taunt. 209; 7 Ves. 265. Vide Sold Note.
BOUND BAILIFFS. Sheriff's officers, who serve writs and make
arrests; they are so called because they are bound to the sheriff for the due
execution of their office. 1 Bl. Com. 345.
BOUNDARY, estates. By this term is understood in general, every
separation, natural or artificial, which marks the confines or line of division
of two contiguous estates. 3 Toull. n. 171.
2. Boundary also signifies stones or other materials inserted in the
earth on the confines of two estates.
3. Boundaries are either natural or artificial. A river or other stream
is a natural boundary, and in that case the centre of the stream is the line.
20 John. R. 91; 12 John. R. 252; 1 Rand. R. 417; 1 Halst. R. 1; 2 N. H. Rep.
369; 6 Cowen, R. 579; 4 Pick. 268; 3 Randolph's R. 33 4 Mason's R. 349-397.
4. An artificial boundary is one made by man.
5. The description of land, in a deed, by specific boundaries, is
conclusive as to the quantity; and if the quantity be expressed as a part of
the description, it will be inoperative, and it is immaterial whether the
quantity contained within the specific boundaries, be greater or less than that
expressed; 5 Mass. 357; 1 Caines' R. 493; 2 John. R. 27; 15 John. 471; 17 John.
R. 146; Id. 29; 6 Cranch, 237; 4 Hen. & Munf. 125; 2 Bay, R. 515; and the
same rule is applicable, although neither the courses and distances, nor the
estimated contents, correspond with such specific boundaries; 6 Mass. 131; 11
Mass. 193; 2 Mass. 380; 5 Mass. 497; but these rules do not apply in cases
where adherence to them would be plainly absurd. 17 Mass. 207. Vide 17 S. &
R. 104; 2 Mer. R. 507; 1 Swanst. 9; 4 Ves. 180; 1 Stark. Ev. 169; 1 Phil. Ev.
Index, h. t.; Chit. Pr. Index, h. t.; 1 Supp. to Ves. jr. 276; 2 Hill. Ab. c.
24, §209, and Index, h. t.
6. When a boundary, fixed and by mutual consent, has been permitted to
stand for twenty-one years, it cannot afterwards be disturbed. In accordance
with this rule, it has been decided, that where town lots have been occupied up
to a line fence between them, for more than twenty-one years, each party gained
an incontrovertible right to the line thus established, and this whether either
party knew of the adverse claim or not; and whether either party has more or
less ground than was originally in the lot he owns. 9 Watts, R. 565. See Hov.
Fr. c. 8, p. 239 to 243; 3 Sum. R 170 Poth. Contr. de Societe, prem. app. n.
231.
7. Boundaries are frequently marked by partition fences, ditches,
hedges, trees, &c. When such a fence is built by one of the owners of the
land, on his own premises, it belongs to him exclusively; when built by both at
joint expense, each is the owner of that part on his own land. 5 Taunt. 20.
When the boundary is a hedge and a single ditch, it is presumed to belong to
him on whose side the hedge is, because he who dug the ditch is presumed to
have thrown the earth upon his own land, which was alone lawful to do, and that
the hedge was planted, as is usual, on the top of the bank thus raised. 3
Taunt. 138. But if there is a ditch on each side of the hedge, or no ditch at
all, the hedge is presumed to be the common property of both proprietors. Arch.
N. P. 328; 2 Greenl. Ev. §617. A tree growing in the boundary line is the
joint property of both owners of the land. 12 N. H. Rep. 454.
8. Disputes arising from a confusion of boundaries may be generally
settled by an action at law. But courts of equity will entertain a bill for the
settlement of boundaries, when the rights of one of the parties may be
established upon equitable grounds. 4 Bouv. Inst. n. 3923.
BOUNTY. A sum of money or other thing, given, generally by' the
government, to certain persons, for some service they have done or are about to
do to the public. As bounty upon the culture of silk; the bounty given to an
enlisted soldier; and the like. It cliffers from a reward, which is generally
applied to particular cases; and from a payment, as there is no contract on the
part of the receiver of the bounty.
BOVATA TERRAE. As much land as one ox can plough.
BRANCH. This is a metaphorical expression, which designates, in
the genealogy of a numerous family, a portion of that family which has sprang
from the same root or stock; these latter expressions, like the first, are also
metaphorical.
2. The whole of a genealogy is often called the genealogical tree; and
sometimes it is made to take the form of a tree, which is in the first place
divided into as many branches as there are children, afterwards into as many
branches as there are grand-children, then of great grandchildren, &c. If,
for example, it be desired to have a genealogical tree of Peter's family, Peter
will be made the trunk of the tree; if he has had two children, John and James,
their names will be written on the first two branches; which will themelves
shoot out as many smaller branches as John and James have children; from these
other's proceed, till the whole family is represented on the tree; thus the
origin, the application, and the use of the word branch in genealogy will be at
once perceived.
BRANCHES. Those solid parts of trees which grow above the
trunk.
2. In general the owner of a tree is the owner of the branches; but when
they grow beyond his line, and extend over the adjoining estate, the proprietor
of the latter may cut them off as far as they grow over his land. Rolle's R.
394.; 3 Bulst. 198. But as this nuisance is one of omission, and, as in the
case of such nuisances, it is requisite to give notice before abating them, it
would be more prudent, and perhaps necessary, to give notice to the owner of
the tree to remove such nuisance. 1 Chit. Pr. 649, 650, 652. See Root;
Tree.
TO BRAND. An ancient mode of punishment, which was to inflict a
mark on an offender with a hot iron. This barbarous punishment has been
generally disused.
BRANDY. A spirituous liquor made of wine by distillation. See
stat. 22 Car. H. c. 4.
BREACH, contract, torts. The violation of an obligation,
engagement or duty; as a breach of covenant is the non-performance or violation
of a covenant; the breach of a promise is non-performance of a promise; the
breach of a duty, is the refusal or neglect to execute an office or public
trust, according to law.
2. Breaches of a contract are single or continuing breaches. The former
are those which are committed at one single time. Skin. 367; Carth. 289. A
continuing breach is one committed at different times, as, if a covenant to
repair be broken at one time, and the same covenant be again broken, it is a
continuing breach. Moore, 242; 1 Leon. 62; 1 Salk. 141; Holt, 178; Lord Raym.
1125. When a covenant running with the land is assigned after a single breach,
the right of action for such breach does not pass to the assignee but if it be
assigned after the commencement of a continuing breach, the right of action
then vests in such assignee. Cro. Eliz. 863; 8 Taunt. 227;, 2 Moore, 164; 1
Leon. 62.
3. In general the remedy for breaches of contracts, or quasi contracts,
is by a civil action.
BREACH OF THE PEACE. A violation of public order; the offence of
disturbing the public peace. One guilty of this offence may be held to bail for
his good behaviour. An act of public indecorum is also a breach of the peace.
The remedy for this offence is by indictment. Vide Pace,
BREACH OF PRISON. An unlawful escape out of prison. This is of
itself a misdemeanor. 1 Russ. Cr. 378; 4 Bl. Com. 129 2 Hawk. P. C. c. 18, s. 1
7 Conn. 752. The remedy for this offence is by indictment. See Escape.
BREACH OF TRUST. The wilful misappropriation, by a trustee, of a
thing which had been lawfully delivered to him in confidence.
2. The distinction between larceny and a breach of trust is to be found
chiefly in the terms or way in which the thing was taken originally into the
party's possession; and the rule seems to be, that whenever the article is
obtained upon a fair contract, not for a mere temporary purpose, or by one who
is in the. employment of the deliverer, then the subsequent misappropriation is
to be considered as an act of breach of trust. This rule is, however, subject
to many nice distinctions. 15 S. & R. 93, 97. It has been adjudged that
when the owner of goods parts with the possession for a particular purpose, and
the person who receives them avowedly for that purpose, has at the time a
fraudulent intention to make use of the possession as the weans of converting
the goods to his own use, and does so convert them, it is larceny; but if the
owner partwith the property, although fraudulent means have been used to obtain
it, the, act of conversion is not larceny. Id. Alis. Princ. c. 12, p. 354.
3. In the Year Book, 21 H. VII. 14, the distinction is thus stated:
Pigot. If I deliver a jewel or money to my servant to keep, and he flees or
goes from me with the jewel, is it felony ? Cutler said, Yes : for so long as
he is with me or in my house, that which I have delivered to him is adjudged to
be in my possession; as my butler, who has my plate in keeping, if he flees
with it, it is felony. Same law; if he who keeps my horse goes away with, him:
The reason is, they are always in my possession. But if I deliver a horse to my
servant to ride to market or the fair and he flee with him, it is no felony;
for e comes lawfully to the possession of the horse by delivery. And so it is,
if I give him a jewel to carry to London, or to pay one, or to buy a thing, and
he flee with it, it is not felony : for it is out of my possession, and he
comes lawfully to it. Pigot. It can well be: for the master in these cases has
an action against him, viz., Detinue, or Account. See this point fully
discussed in Stamf. P. C. lib. 1; Larceny, c. 15, p. 25. Also, 13 Ed. IV. fo.
9; 52 H. III. 7; 21 H. VII. 15.
BREACH. pleading. That part of the declaration in which the
violation of the defendant's contract is stated.
2. It is usual in assumpsit to introduce the statement of the particular
breach, with the allegation that the defendant, contriving and fraudulently
intending craftily and subtilely to deceive and defraud the plaintiff,
neglected and refused to perform, or performed the particular act contrary to
the previous stipulation. ?
3. In debt, the breach or cause of action. complained of must proceed
only for the non-payment of money previously alleged to be payable; and such
breach is nearly similar, whether the action be in debt on simple contract,
specially, record or statute, and is usually of the following form: " Yet the
said defendant, although often requested so to, do, hath not as yet paid the
said sum of ____ dollars, above demanded, nor any part thereof, to the said
plaintiff, but bath hitherto wholly neglected and refused so to do, to the
damage of the said plaintiff _________ dollars, and therefore he brings suit,"
&c.
4. The breach must obviously be governed by the nature of the
stipulation; it ought to be assigned in the words of the contract, either
negatively or affirmatively, or in words which are co-extensive with its import
and effect. Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127;
and see 5 John. R. 168; 8 John. R. 111; 7 John. R. 376; 4 Dall. 436; 2 Hen.
& Munf. 446.
5. When the contract is in the disjunctive, as, on a promise to deliver
a horse by a particular day, or pay a sum of money, the breach ought to be
assigned that the defendant did not do the one act nor the other. 1 Sid. 440;
Hardr. 320; Com. Dig. Pleader, C.
BREAKING. Parting or dividing by force and violence a solid
substance, or piercing, penetrating, or bursting through the same.
2. In cases of burglary and house-breaking, the removal, of any part of
the house, or of the fastenings provided to secure it, with violence and a
felonious intent, is called a breaking.
3. The breaking is actual, as in the above case; or constructive, as
when the burglar or house-breaker gains an entry by fraud, conspiracy or
threats. 2 Russ. on Cr. 2; 2 Chit. Cr. Law, 1092; 1 Hale, P. C. 553; Alis.
Prin. 282, 291. In England it has been decided that if the sash of a window be
partly open, but not sufficiently so to admit a person, the raising of it so as
to admit a person is not a breaking of the house. 1 Moody, Cr. Cas. 178. No
reasons are assigned. It is difficult to conceive, if this case be law, what
further opening will amount to a breaking. But see 1 Moody, Cr. Cas. 327, 377;
and Burglary.
BREAKING DOORS. The act of forcibly removing the fastenings of a
house, so that a person may enter.
2. It is a maxim that every man's house is his castle, and it is
protected from every unlawful invasion. An officer having a lawful process, of
a criminal nature, authorizing him to do so, may break an outer door, if upon
making a demand of admittance it is refused. The house may also be broken open
for the purpose of executing a writ of habere facias possessionem. 5 Co. 93;
Bac. Ab. Sheriff, N 3.
3. The house protects the owner from the service of all civil process in
the first instance, but not, if once lawfully arrested, he takes refuge in his
own house; in that case the officer may pursue him, and break open any door for
the Purpose. Foster, 320; 1 Rolle's R. 138 Cro. Jac. 555. Vide Door; House.
BREATH, med. juris. The air expelled from the chest at each
expiration.
2. Breathing, though a usual sign of life, is not conclusive that a
child was wholly born alive, as breathing may take place before the whole
delivery of the mother is complete. 5 Carr. & Payn, 329; S. C. 24 E. C. L.
R. 344. Vide Birth; Life; Infanticide.
BREPHOTROPHI, civil law. Persons appointed to take care of
houses destined to receive foundlings. Clef des Lois Rom. mot
Administrateurs.
BREVE, practice. A writ in which the cause of action is briefly
stated, hence its name. Fleta, lib. 2, c. 13, §25; Co. Lit. 73 b.
2. Writs are distributed into several classes. Some are called brevia
formata, others brevia de cursu, brevia judicialia, or brevia magistralia.
There is a further distinction with respect to real actions into brevia
nominata and innominata. The former, says Bacon, contain the time, place and
demand very particularly; and therefore by such writ several lands by several
titles cannot be demanded by the same writ. The latter contain only a general
complaint, without expressing time, damages, &c., as in trespass quare
clausum fregit, &o., and therefore several lands coming to the demandant by
several titles may be demanded in such writ. F. N. B. 209; 8 Co. 87; Kielw.
105; Dy. 145; 2 Brownl. 274; Bac. Ab. Actions in General, C. See Innominate
contracts.
BREVE DE RECTO. A writ of right. (q. v.)
BREVE TESTATUM, feudal law. A declaration by a superior lord to
his vassal, made in the presence of the pares curias, by which he gave his
consent to the grant of land, was so called. Ersk. Inst. B. 2, tit. 3, s. 17.
This was made in writing, and had the operation of a deed. Dalr. Feud. Pr.
239.
BREVET. In France, a brevet is a warrant granted by the
government to authorize an individual to do something for his own benefit, as a
brevet d'invention, is a patent to secure a man a right as inventor.
2. In our army, it signifies a commission conferring on an officer a
degree of rank immediately above the one which he holds in his particular
regiment, without, however conveying a right to receive a corresponding
pay.
BREVIA, writs. They were called brevia, because of the brevity
in which the cause of action was stated in them.
BREVIA ANTICIPANTIA. This name is given to a number of writs,
which are also called writs of prevention. See Quia Ti. met.
BREVIA FORMATA, Eng law. The collection of writs found in the
Registrum Brevium was so called. The author of Fleta says, these writs were
formed upon their cases. They were different from the writs de cursu, which
were approved by the council of the whole realm, and could not be changed
without the will of the same. Fleta, lib. 2, c. 13, §2. See 17 S. & R.
194-5, and authorities there cited.
BREVIA JUDICIALIA. Subsidiary process issued pending a suit, or
process issued in execution of the judgment. They varied, says the author of
Fleta, according to the variety of the pleadings of the parties and of their
responses. Lib. 2. c. 13, §3; Co. Lit. 73 b, 54 b. Many of them, however,
long since became fixed in their forms, beyond the power of the courts to alter
them, unless authorized to do so by the legislature. See 1 Rawle, Rep. 52; Act
of Pennsylvania, June. 16, 1836, §§3, 4, 5.
BREVIA MAGISTRALIA. These were writs formed by the masters in
chancery, pursuant to the stat. West. 2, c. 24. They vary according to the
diversity of cases and complaints, of which, says the author of Fleta, some are
personal, some real, some mixed, according as actions are diverse or various,
because so many will be the forms of writs as there are kinds of actions.
Fleta, lib. 2, c. 13, §4; Co. Lit. 73 b, 54 b.
BREVIARIUM. The name of a code of laws of Alaric II., king of
the Visigoths.
BREVIBUS ET ROTULIS LIBERANDIS, Eng. law. A writ or mandate
directed to a sheriff, commanding him to deliver to his successor the county
and the appurtenances, with all the briefs, rolls, remembrances, and all other
things belonging to his office.
BRIBE, crim. law. The gift or promise, which is accepted, of
some advantage, as the inducement for some illegal act or omission; or of some
illegal emolument, as a consideration, for preferring one person to another, in
the performance of a legal act.
BRIBERY, crim. law. The receiving or offering any undue reward
by or to any person whomsoever, whose ordinary profession or business relates
to the administration of public justice, in order to influence his behaviour in
office, and to incline him to act contrary to his duty and the known rules of
honesty and integrity. 3 Inst. 149; 1 Hawk. P. C. 67, s. 2 4 Bl. Com. 139; 1
Russ. Cr. 156.
2. The term bribery extends now further, and includes the offence of
giving a bribe to many other officers. The offence of the giver and of the
receiver of the bribe has the same name. For the sake of distinction, that of
the former, viz : the briber, might be properly denominated active. bribery;
while that of the latter, viz : the person bribed, might be called passive
bribery.
3. Bribery at elections for members of parliament, has always been a
crime at common law, and punishable by indictment or information. It still
remains so in England notwithstanding the stat. 24 Geo. H. c. 14 3 Burr. 1340,
1589. To constitute the offence, it is not necessary that the person bribed
should, in fact, vote as solicited to do 3 Burr. 1236; or even that he should
have a right to vote at all both are entirely immaterial. 3 Bur. 1590-1.
4. An attempt to bribe, though unsuccessful, has been holden to be
criminal, and the offender may be indicted. 2 Dall. 384; 4 Burr. 2500 3 Inst.
147; 2 Campb. R. 229; 2 Wash. 88; 1 Virg. Cas. 138; 2 Virg. Cas. 460.
BRIBOUR. One that pilfers other men's goods; a thief. See 28 E.
II., c. 1.
BRIDGE. A building constructed over a river, creek, or other
stream, or ditch or other place, in order to facilitate the passage over the
same. 3 Harr. 108.
2. Bridges are of several kinds, public and private. Public bridges may
be divided into, 1st. Those which belong to the public; as state, county, or
township bridges, over which all the people have a right to pass, with or
without paying toll these are built by public authority at the public expense,
either of the state itself, or a district or part of the state.
3. - 2d. Those which have been built by companies, or at the expense of
private individuals, and over Which all the people have a right to pass, on the
payment of a toll fixed by law. 3d. Those which have been built by private
individuals and which have been dedicated to public uscs. 2 East, R. 356; 5
Burr. R. 2594; 2 Bl. R. 685 1 Camp. R. 262, n.; 2 M. & S. 262.
4. A private bridge is one erected for the use of one or more private
persons; such a bridge will not be considered a public bridge, although it may
be occasionally used by the public. 12 East, R. 203-4. Vide 7 Pick. R. 844; 11
Pet. R. 539; 7 N. H. Rcp. 59; 1 Pick. R. 432; 4 John. Ch. R. 150.
BRIEF, eccl. law. The name of a kind of papal rescript. Briefs
are writings sealed with wax, and differ in this respect from bulls, (q. v.)
which are scaled with lead. They are so called, because they usually are short
compendious writings. Ayl. Parerg. 132. See Breve.
BRIEF, practice. An abridged statement of a party's case.
2. It should contain : 1st. A statement of the names of the parties, and
of their residence and occupation, the character in which they sue and are
sued, and wherefore they prosecute or resist the action. 2d. An abridgment of
all the pleadings. 3d. A regular, chronological, and methodical statement of
the facts in plain common language. 4th. A summary of the points or questions
in issue, and of the proof which is to support such issues, mentioning
specially the names of the witnesses by which the facts are to be proved, or if
there be written evidence, an abstract of such evidence. 5th. The personal
character of the witnesses should be mentioned; whether the moral character is
good or bad, whether they are naturally timid or over-zealous, whether firm or
wavering. 6th. If known, the evidence of the opposite party, and such facts as
are adapted to oppose, confute, or repel it. Perspicuity and conciseness are
the most desirable qualities of a brief, but when the facts are material they
cannot be too numerous when the argument is pertinent and weighty, it cannot be
too extended.
3. Brief is also used in the sense of breve. (q. v.)
BRIEF OP TITLE, practice, conveyancing. An abridgment of all the
patents, deeds, indentures, agreements, records, and papers relating to certain
real estate.
2. In making a brief of title, the practitioner should be careful to
place every deed and other paper in chronological order. The date of each deed;
the names of the parties; the consideration; the description of the property;
should be particularly, noticed, and all covenants should also be particularly
inserted.
3. A vendor of an interest in realty ought to have his title
investigated, abstracted, and evidence in proof of it ready to be produced and
established before he sells; for if he sell with a confused title, or without
being ready to produce deeds and vouchers, he must be at the expense of
clearing it. 1 Chit. Pr. 304, 463.
BRINGING MONEY INTO COURT. The act of depositing money in the
hands of the proper officer of the court, for the purpose of satisfying a debt
or duty, or of an interpleader.
2. Whenever a tender of money is pleaded, and the debt is not discharged
by the tender and refusal, money may be brought into court, without asking
leave of the court; indeed, in such cases the money must be brought into court
inorder to have the benefit of the tender. In other cases, leave must be had,
before the money can be brought into court.
3. In general, if the money brought into court is sufficient to satisfy
the plaintiff 's claim, he shall not recover costs. See Bac. Ab. Tender,
&c.
BROCAGE, contracts. The wages or commissions of a broker his
occupation is also sometimes called brocage. This word is also spelled
brokerage.
BROKERAGE, contracts. The trade or occupation of a broker; the
commissions paid to a broker for his services.
BROKERS, commerce. Those who are engaged for others, in the
negotiation of contracts, relative to property, with the custody of which they
have no concern. Paley on Agency, 13; see Com. Dig. Merchant, C.
2. A broker is, for some purposes, treated as the agent of both parties;
but in the first place, he is deemed the agent only of the person by whom he is
originally employed; and does not become the agent of the other until the
bargain or contract has been definitely settled, as to the terms, between the
principals. Paley on Ag. by Lloyd, 171, note p; 1 Y. &, J. 387.
3. There are several kinds of brokers, as, Exchange Brokers, such as
negotiate in all matters of exchange with foreign countries.
4. Ship Brokers. Those who transact business between the owners of
vessels, and the merchants who send cargoes.
5. Insurance Brokers. Those who manage the concerns both of the insurer
and the insured.
6. Pawn Brokers. Those who lend money, upon goods, to necessitous
people, at interest.
7. Stock Brokers. Those employed to buy and sell shares of stocks in
corporations and companies. Vide Story on Ag. §28 to 32; T. L. h. t.;
Maly. Lex Mer. 143; 2 H. Bl. 555; 4 Burr, R. 2103; 4 Kent, Com. 622, note d, 3d
ed.; Liv. on Ag. Index, h. t.; Chit. Com. L. Index, h. t.; and articles Agency;
dgent; Bought note; Factor; Sold note.
BROTHELS, crim. law. Bawdy-houses, the common habitations of
prostitutes; such places have always been deemed common nuisances in the United
States, and the keepers of them may be fined and imprisoned.
2. Till the time of Henry VIII, they were licensed in England, when that
lascivious prince suppressed them. Vide 2 Inst. 205, 6; for the history of
these pernicious places, see Merl. Rep. mot Bordel Parent Duchatellet, De la
Prostitution dans la ville de Paris, c. 5, §1; Histoire de la Legislation
sur les femmes publiques, & c., par M. Sabatier.
BROTHER, domest. relat. He who is born from the same father and
mother with another, or from one of them only.
2. Brothers are of the whole blood, when they are born of the same
father and mother, and of the half blood, when they are the issue of one of
them only.
3. In the civil law, when they are the children of the same father and
mother, they are called brothers germain; when they descend from the same
father, but not the same mother, they are consanguine brothers; when they are
the issue of the same mother, but not the same father, they are uterine
brothers. A half brother, is one who is born of the same father or mother, but
not of both. One born of the same parents before they were married, a
left-sided brother; and a bastard born of the same father or mother, is called
a natural brother. Vide Blood; Half-blood; Line; and Merl. Repert. mot Frere;
Dict. de Jurisp. mot Frere; Code, 3, 28, 27 Nov. 84, praef; Dane's Ab. Index,
h. t.
BROTHER-IN-LAW, domestic relat. The brother of a wife, or the
hushand of a sister. There is no relationship, in the former case, between the
hushand and the brother-in-law, nor in the latter, between the brother and the
hushand of the sister; there is only affinity between them. See Vaughan's Rep.
302, 329.
BRUISE, med. jurisp. An injury done with violence to the person,
without breaking the skin; it is nearly synonymous with contusion. (q . v.) 1.
Ch. Pr. 38; vide 4 Car. & P. 381, 487, 558, 565; Eng. C. L. Rep. 430, 526,
529. Vide Wound.
BUBBLE ACT, Eng. law. The name given to the statute 6 Geo. I.,
c. 18, which was passed in 1719, and was intended " for restraining several
extravagant and unwarrantable practices therein mentioned." See 2 P. Wms.
219.
BUGGERY, crim. law. The detestable crime of having commerce
contrary to the order of nature, by mankind with mankind, or with brute beasts,
or by womankind with brute beasts. 3 Inst. 58; 12 Co. 36; Dane's Ab. Index, h.
t.; Merl. Repert. mot Bestialie. This is a highly penal offence.
BUILDING, estates. An edifice erected by art, and fixed upon or
over the soil, composed of stone, brick, marble, wood, or other proper
substance, 'Connected together, and designed for use in the position in which
it is so fixed. Every building is an accessory to the soil, and is, therefore,
real estate: it belongs to the owner of the soil. Cruise, tit. 1, S. 46. Vide 1
Chit. Pr. 148, 171; Salk. 459; Hob. 131; 1 Mete. 258; Broom's Max. 172.
BULK, contracts. Said to be merchandise which is neither
counted) weighed, nor measured.
2. A sale by bulk, is a sale of a quantity of goods,, such as they are,
without measuring, counting, or weighing. Civ. Code of Louis. a. 3522, n.
6.
BULL, eccles. law. A letter from the pope of Rome, written on
parchment, to which is attached a leaden seal, impressed with the images of
Saint Peter and Saint Paul.
2. There are three kinds of apostolical rescripts, the brief, the
signature, and the bull, which last is most commonly used in legal matters.
Bulls may be compared to the edicts and letters-patent of secular princes: when
the bull grants a favor, the seal is attached by means of silken strings; and
when to direct execution to be performed, with flax cords. Bulls are written in
Latin, in a round and Gothic hand. Ayl. Par. 132; Ayl. Pand. 21; Mer. Rep. h.
t.
BULLETIN. An official account of public transactions on matters
of importance. In France, it is the registry of the laws.
BULLION. In its usual acceptation, is uncoined gold or silver,
in bars, plates, or other masses. 1 East, P. C. 188.
2. In the acts of Congress, the term is also applied to copper properly
manufactured for the purpose of being coined into money. For the acts of
Congress, authorizing the coinage of bullion for private individuals, see Act
of April 2, 1792, s. 14, 1 Story, 230; Act of May 19, 1828, 4 Sharsw. cont. of
Story's Laws U. S. 2120; Act of June 28, 1834, Id. 2376; Act of January 18,
1837, Id. 2522 to 2529. See, for the English law on the subject of crimes
against bullion, 1 Hawk. P. C. 32 to 41.
BUOY. A piece of wood, or an empty barrel, floating on the
water, to show the place where it is shallow, to indicate the danger there is
to navigation. The act of Congress, approved the 28th September, 1850, enacts,
" that all buoys along the coast, in bays, harbors, sounds, or channels, shall
be colored and numbered, so that passing up the coast or sound, or entering the
bay, harbor or channel, red buoys with even numbers, shall be passed on the
starboard hand, black buoys, with uneven numbers, on the port hand, and buoys
with red and black stripes on either hand. Buoys in channel ways to be colored
with alternate white and black perpendicular stripes."
BURDEN OF PROOF. This phrase is employed to signify the duty of
proving the facts in dispute on an issue raised between the parties in a
cause.
2. The burden of proof always lies on the party who takes the
affirmative in pleading. 1 Mass. 71, 335; 4 Mass. 593; 9 Pick. 39.
3. In criminal cases, as every man is presumed to be innocent until the
contrary is proved, the burden of proof rests on the prosecutor, unless a
different provision is expressly made by statute. 12 Wheat. See Onus
probandi.
BUREAU. A French word, which literally means a large writing
table. It is used figuratively for the place where business is transacted: it
has been borrowed by us, and used in nearly the same sense; as, the bureau of
the secretary of state. Vide Merl. Repert. h. t.
BUREAUCRACY. The abuse of official influence in the affairs of
government; corruption. This word has lately been adopted to signify that those
persons who are employed in bureaus abuse their authority by intrigue to
promote their own benefit, or that of friends, rather than the public good. The
word is derived from the French.
BURGAGE, English law. A species of tenure in socage; it is where
the king or other person is lord of an ancient borough, in which the tenements
are held by a rent certain. 2 B1. Com. 82.
BURGESS. A magistrate of a borough; generally, the chief officer
of the corporation, who performs, within the borough, the same kind of duties
which a mayor does in a city. In England, the word is sometimes applied to all
the inhabitants of a borough, who are called burgesses sometimes it signifies
the representatives of a borough in parliament.
BURGH. A borough; (q. v.) a castle or town.
BURGLA. One who commits a burglary. (q. v.)
BURGLARIOUSL, pleadings. This is a technical word, which must be
introduced into an indictment for burglary; no other word will answer the same
purpose, nor will any circumlocution be sufficient. 4 Co. 39; 5 Co. 121; Cro.
Eliz. 920; Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Chit. Cr.
Law, 242.
BURGLARY, crim. law. The breaking and entering the house of
another in the night time, with. intent to commit a felony therein, whether the
felony be actually committed or not. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s.
1; 4 Bl. Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2;
Roscoe, Cr. Ev. 252; Coxe, R. 441; 7 Mass. Rep. 247.
2. The circumstances to be considered are, 1. in what place the offence
can be committed; 2. at what time 3. by what means; 4. with what intention.
3.- 1. In what place a burglary can be committed. It must, in general,
be committed in a mansion house, actually occupied as a dwelling; but if it be
left by the owner animo revertendi, though no person resides in it in his
absence, it is still his mansion. Fost. 77; 3 Rawle, 207. The principal
question, at the present day, is what is to be deemed a dwelling-house. 1
Leach, 185; 2 Leach, 771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558; Hawk.
c. 38, s. 18; 1 Russ. on Cr. 16; 3 Berg. & Rawle, 199 4 John. R. 424 1 Nott
& M'Cord, 583; 1 Hayw. 102, 242; Com. Dig. Justices, P 5; 2 East, P. C.
504.
4. - 2. At what time it must be committed. The offence must be committed
in the night, for in the day time there can be no burglary. 4 Bl. Com. 224. For
this purpose, it is deemed night when by the light of the sun a person cannot
clearly discern the face or countenance of another 1 Hale, 550; 3 nst. 63. This
rule, it is evident, does not apply to moonlight. 4 Bl. Com. 224; 2 Russ. on
Cr. 32. The breaking and entering need not be done the same night 1 Russ. &
Ry. 417; but it is necessary the breaking and entering should be in the night
time, for if the breaking be in daylight and the entry in the night, or vice
versa, it will not be burglary. 1 Hale, 551; 2 Russ. on Cr. 32. Vide Com. Dig.
Justices, P 2; 2 Chit. Cr. Law, 1092.
5.-3. The means used. There must be both a breaking and an entry. First,
of the breaking, which may be actual or constructive. An actual breaking
tal-,es place when the burglar breaks or removes ally part of, the house, or
the fastenings provided for it, with violence. Breaking a window, taking a pane
of glass out, by breaking or bending the nails, or other fastenings, raising a
latch where the door is not otherwise fastened; picking open a lock with a
false key; putting back the lock of a door or the fastening of a window, with
an instrument; turning the key when the door is locked in the inside, or
unloosening any other fastening which the owner has provided, are several
instances of actual breaking. According to the Scotch law, entering a house by
means of the true key, while in the door, or when it had been stolen, is a
breaking. Alis. Pr. Cr. Law, 284. Constructive breakings occur when the burglar
gams an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 22 Chit. Cr. Law,
1093. The breaking of an inner door of the house will be sufficient to
constitute a burglary. 1 Hale, 553. Any, the least, entry, with the whole or
any part of the body , hand, or foot, or with any instrument or weapon,
introduced for the purpose of committing a felony, will be sufficient to
constitute the offence. 3 Inst. 64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com.
Dig. Justices, P 4. But the introduction of an instrument, in the act of
breaking the house, will not be a sufficient entry, unless it be introduced for
the purpose of committing a felony.
6. - 4. The intention. The intent of the breaking and entry must be
felonious; if a felony however be committed, the act will be prima facie
evidence of an intent to commit it. If the breaking and entry be with an
intention to commit a bare trespass, and nothing further is done, the offence
will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2 Russ. on Cr.
33.
BURGOMASTER. In Germany this is, the title by which an officer
who performs the duties of a mayor is, called.
BURIAL. The act of interring the dead.
2. No burial is lawful unless made in conformity with the local
regulations; an when a dead body has been found, it cannot be lawfully buried
until the coroner has holden an inquest over it. In England. it is the practice
for coroners to issue warrants to bury, after a view. 2 Umf. Lex. Coron. 497,
498.
BURNING. Vide Accident; Arson; Fire, accidental.
BURYING-GROUND. A place appropriated for depositing the dead; a
cemetery. In Massachusetts, burying-grounds cannot, be appropriated to roads
without the consent of the owners. Massachusetts Revised St. 239.
BUSHEL, measure. The Winchester bushel, established by the 13 W.
III. c. 5, A. D. 1701, was made the standard of grain; a cylindrical vessel,
eighteen and a half inches in diameter, and eight inches deep inside, contains
a bushel; the capacity is 2145.42 cubic inches. By law or usage it is
established in most of the United States. The exceptions, as far as known, are
Connecticut, where the bushel holds 2198 cubic inches Kentucky, 2150 2/3;
Indiana, Ohio, Mississippi and Missouri, where it contains 2150.4 cubic inches.
Dane's Ab. c. 211, a. 12, s. 4. See the whole subject discussed in report of
the Secretary of State of the United States to the Senate, Feb. 22, 1821.
BUSINESS HOURS. The time of the day during which business is
transacted. In respect to the time of presentment and demand of bills and
notes, business hours generally range through the whole day down to the hours
of rest in the evening, except when the paper is payable it a bank or by a
banker. 2 Hill, N. Y. R. 835. See 3 Shepl. 67; 5 Shepl. 230.
BUTT. A measure of capacity, equal to one hundred and eight
gallons. See Measure.
BUTTS AND BOUNDS. This phrase is used to express the ends and
boundaries of an estate. The word butt, being evidently derived from the,
French bout, the end; and bounds, from boundary.
TO BUY. To purchase. Vide Sale.
BUYER, contracts. A purchaser; (q. v.) a vendee.
BUYING OF TITLES. The purchase of the rights of a person to a
piece of land when the seller is disseised.
2. When a deed is made by one who, though having a legal right to land,
is at the time of the conveyance disseised, as a general rule of the common
law, the sale is void; the law will not permit any person to sell a quarrel,
or, as it is commonly termed, a pretended title. Such a conveyance is an
offence at common law, and by a statute of Hen. VIII. This rule has been
generally adopted in the United States, and is affirmed by express statute. In
some of the states, it has been modified or abolished. It has been recognized
in Massachusetts and Indiana. 1 Ind. R. 127. In Massacbusetts, there is no
statute on the subject, but the act has always been unlawful. 5 Pick. R. 356.
In Connecticut the seller and the buyer forfeit, each one half the value of the
land. 4 Conn. 575. In New York, a person disseised cannot convey, except by way
of mortgage. But the statute does not apply to judicial sales. 6 Wend. 224; see
4 Wend. 474; 2 John. Cas. 58; 3 Cow. 89; 5 Wend. 532; 5 Cow. 74; 13 John. 466;
8 Wend. 629; 7 Wend. 53, 152 11 Wend. 442; 13 John. 289. In North Carolina and
South Carolina, a conveyance by a disseisee is illegal; the seller forfeits the
land, andthe buyer its value. In Kentucky such sale is void. 1 Dana, R. 566.
But when the deeds were made since the passage of the statute of 1798, the
grantee might, under that act, sue for land conveyed to him, which was
adversely possessed by another, as the grantor might have done before. The
statute rendered transfers valid to pass the title. 2 Litt. 393; 1 Wheat. 292;
2 Litt. 225; 3 Dana, 309. The statute of 1824, " to revive and amend the
champerty and maintenance law," forbids the buying ot titles where there is an
adverse possession. See 3 J. J. Marsh. 549; 2 Dana, 374; 6 J. J. Marsh. 490,
584. In Ohio, the purchase of land from one against whom a suit is pending for
it, is void, except against himself, if he prevails. Walk. Intr. 297, 351, 352.
In Pennsylvania. 2 Watts, R. 272 Illinois, 111. Rev. L. 130; Missouri, Misso.
St. 119, a deed is valid, though there be an adverse possession. 2 Hill, Ab. c.
33, §42 to 52.
3. The Roman law forbade the sale of a right or thing in litigation.
Code, 8. 37, 2.
BY ESTIMATION, contracts. In sales of land it not unfrequently
occurs that the property is said to contain a certain number of acres, by
estimation, or so many acres, more or less. When these expressions are used, if
the land fall short by a small quantity, the purchaser will receive no relief.
In one case of this kind, the land fell short two-fifths, and the purchaser
received no relief. 2 Freem. 106. Vide 1 Finch, 109 1 Call, R. 301; 6 Binn.
Rep. 106 1 Serg. & Pawle, R. 166; 1 Yeates, R. 322 2 John. R. 37 5 John. R.
508; 15 John. R. 471; 1 Caines, R. 493; 3 Mass. Rep. 380; 5 Mass. R. 355; 1
Root: R. 528; 4 Hen. & Munf. 184. The meaning of these words has never been
precisely ascertained by judicial decision. See Sugd. Vend. 231 to 236; Wolff,
Inst. §658 and the cases cited under the articles Constitution; More or
less; Subdivision.
BY-LAWS. Rules and ordinances made by a corporation for its own
government.
2. The power to make by-laws is usually conferred by express terms of
the charter creating the corporation, though, when not expressly granted, it is
given by implication, and it is incident to the very existence of a
corporation. When there is an express grant, limited to certain cases and for
certain purposes, the corporate power of legislation is confined to the objects
specified, all others being excluded by implication. 2 Kyd on Corp. 102; 2 P.
Wms. 207; Ang. on Corp. 177. The power of making by-laws, is to be exercised by
those persons in whom it is vested by the charter; but if that intrument is
silent on that subject, it resides in the members of the corporation at large.
Harris & Gill's R. 324; 4 Burr. 2515, 2521; 6 Bro. P. C. 519.
3. The constitution of the United States, and acts of congress made in
conformity to it the constitution of the state in which a corporation is
located, and acts of the legislature, constitutionally made, together with the
common-law as there accepted, are of superior force to any by-law; and such
by-law, when contrary to either of them, is therefore void, whether the charter
authorizes the making of such by-law or not; because no legislature can grant
power larger than they themselves possess. 7 Cowen's R. 585; Id. 604 5 Cowen's
R. 538. Vide, generally, Aug. on Corp. ch. 9; Willc. on Corp. ch. 2, s. 3; Bac.
Ab. h. t.; 4 Vin. Ab. 301 Dane's Ab. Index, h. t., Com. Dig. h. t.; and Id.
vol. viii. h. t.
BY THE BYE, Eng. law. A declaration may be filed without a new
process or writ, when the defendant is in court in another case, by the
plaintiff in that case having filed common bail for him; the declaration thus
filed is called a declaration by the bye. 1 Crompt. 96; Lee's Diet. of Pr.
Declaration IV.