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.


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   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.


          Bouvier's Law Dictionary : B1 : Page 8 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 9 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 11 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 12 of 83


    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.


          Bouvier's Law Dictionary : B1 : Page 13 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 14 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 15 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 16 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 17 of 83


   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


          Bouvier's Law Dictionary : B1 : Page 21 of 83


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.


          Bouvier's Law Dictionary : B1 : Page 26 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 28 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 29 of 83


   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.  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.


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   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.


          Bouvier's Law Dictionary : B1 : Page 43 of 83


  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.



          Bouvier's Law Dictionary : B1 : Page 78 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 79 of 83


   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.


          Bouvier's Law Dictionary : B1 : Page 80 of 83


   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.


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