B1:
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.
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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.
Bouvier's Law Dictionary : B1 : Page 2 of 83
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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.
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20. Ä 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.
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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,
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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
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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.
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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.
Bouvier's Law Dictionary : B1 : Page 41 of 83
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.
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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.
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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.
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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.
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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.
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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 -. "
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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.
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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.
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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 merchant 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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,
and 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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.)
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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 in order 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.
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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.
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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.
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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.
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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.
BURGLAR. One who commits a burglary. (q. v.)
BURGLARIOUSLY, 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.
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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.
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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, and the buyer its
Bouvier's Law Dictionary : B1 : Page 81 of 83
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.
Bouvier's Law Dictionary : B1 : Page 82 of 83
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.
Bouvier's Law Dictionary : B1 : Page 83 of 83
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