E1:
E CONVERSO. On the other side or hand; on the contrary.
E PLURIBUS UNUM. One from more. The motto of the arms of the
United States.
EAGLE, money. A gold coin of the United States, of the value of
ten dollars. It weighs two hundred and fifty-eight grains. Of one
thousand parts, nine hundred are of pure gold, and one hundred of
all Act of January 18, 1837, 4 Sharsw. Cont. of Story's L. U. S.
2523, 4. Vide Money.
EAR-WITNESS. One who attests to things he has heard himself.
EARL, Eng. law. A title of nobility next below a marquis and
above a viscount.
2. Earls were anciently called comites, because they were wont
comitari regem, to wait upon the king for counsel and advice. He
was also called shireman, because each earl had the civil
government of a shire.
3. After the Norman conquest they were called counts, whence
the shires obtained the names of counties. They have now nothing
to do with the government of counties, which has entirely
devolved on the sheriff, the earl's deputy, or vice comes.
EARLDOM. The seigniory of an earl; the title and dignity of an
earl.
EARNEST, contracts. The payment of a part of the price of goods
sold, or the delivery of part of such goods, for the purpose of
binding the contract.
2. The effect of earnest is to bind the goods sold, and upon
their being paid for without default, the buyer is entitled to
them. But notwithstanding the earnest, the money must be paid
upon taking away the goods, because no other time for payment is
appointed; earnest only binds the bargain, and gives the buyer a
right to demand, but a demand without payment of the money is
void; after earnest given the vendor cannot sell the goods to
another, without a default in the vendee, and therefore if the
latter does not come and pay, and take the goods, the vendor
ought to go and request him, and then if he does not come, pay
for the goods and take them away in convenient time, the
agreement is dissolved, and he is at liberty to sell them to any
other person. 1 Salk. 113: 2 Bl. Com. 447; 2 Kent, Com. 389;
Ayl. Pand. 450; 3 Campb. R. 426.
EASEMENTS, estates. An easement is defined to be a liberty
privilege or advantage, which one man may have in the lands of
another, without profit; it may arise by deed or prescription.
Vide 1 Serg. & Rawle 298; 5 Barn. & Cr. 221; 3 Barn. & Cr. 339;
3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord, R. 451; 14
Mass. R. 49 3 Pick. R. 408.
2. This is an incorporeal hereditament, and corresponds nearly
to the servitudes or services of the civil law. Vide Lilly's Reg.
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h. t. 2 Bouv. Inst. n. 1600, et seq.; 3 Kent, Com. 344: Cruise,
Dig. t. 31, c. 1, s. 17; 2 Hill. Ab. c. 5; 9 Pick. R. 51; 1
Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 102; Whatl. on Eas.
passim; and the article Servitude.
EASTER TERM, Eng. law. One of the four terms of the courts. It
is now a fixed term beginning on the 15th of April and ending the
8th of May in every year. It was formerly a movable term.
EAT INDE SINE DIE. Words used on an acquittal, or when a
prisoner is to be discharged, that he may go without day, that
is, that he be dismissed. Dane's Ab. Index, h. t.
EAVES-DROPPERS, crim. law. Persons as wait under walls or
windows or the eaves of a house, to listen to discourses, and
thereupon to frame mischievous tales.
2. The common law punishment for this offence is fine, and
finding sureties for good behaviour. 4 Bl. Com. 167; Burn's
Just. h. t.; Dane's Ab. Index, h. t.; 1 Russ. Cr. 302.
3. In Tennessee, an indictment will not lie for eaves-dropping.
2 Tenn. R. 108.
ECCHYMOSIS, med. jur. Blackness. It is an extravasation of
blood by rupture of capillary vessels, and hence it follows
contusion; but it may exist, as in cases of scurvy, and other
morbid conditions, without the latter. Ryan's Med. Jur. 172.
ECCLESIA. In classical Greek this word signifies any assembly,
and in this sense it is used in Acts xix. 39. But ordinarily, in
the New Testament, the word denotes a Christian assembly, and is
rendered into English by the word church. It occurs thrice only
in, the Gospels, viz. in Matt. xvi. 18, and xviii. 17; but very
frequently in the other parts of the New Testament, beginning
with Acts ii. 47. In Acts xix. 37, the word churches, in the
common English version, seems to be improperly used to denote
heathen temples. Figuratively, the word church is employed to
signify the building set apart for the Christian assemblies; but
the word eclesia is not used in the New Testament in that sense.
ECCLESIASTIC. A clergyman; one destined to the divine
ministry, as, a bishop, a priest, a deacon. Dom. Lois Civ. liv.
prel. t. 2, s. 2, n. 14.
ECCLESIASTICAL. Belonging to, or set apart for the church; as,
distinguished from civil or secular. Vide Church.
ECCLESIASTICAL COURTS. English law. Courts held by the king's
authority as supreme governor of the church, for matters which
chiefly concern religion.
2. There are ten courts which may be ranged under this class.
1. The Archdeacon's Court. 2. The Consistory Court. 3. The Court
of Arches. 4. The Court of Peculiars. 5. The Prerogative Court.
6. The Court of Delegates, which is the great court of appeals in
all ecclesiastical causes. 7. The Court of Convocation. 8. The
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Court of Audience. 9. The Court of Faculties. 10. The Court of
Commissioners of Review.
ECCLESIASTICAL LAW. By this phrase it is intended to include
all those rules which govern ecclesiastical tribunals. Vide Law
Canon.
ECCLESIASTICS, canon law. Those persons who compose the
hierarchial state of the church. They are regular and secular.
Aso & Man. Inst. B. 2, t. 5, c. 4, §1.
ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease
accompanied by apoplectic convulsions, and which produces
aberration of mind at childbirth. The word Eclampsia is of Greek
origin - Significat splenaorem fulgorem effulgentiam, et
emicationem quales ex ocuIis aliquando prodeunt. Metaphorice
sumitur de emicatione flammae vitalis in pubertate et aetaeis
vigore. Castelli, Lex. Medic.
2. An ordinary person, it is said, would scarcely observe it,
and it requires the practised and skilled eye of a physician to
discover that the-patient is acting in total unconsciousness of
the nature and effect of her acts. There can be but little doubt
that many of the tragical cases of infanticide proceed from this
cause. The criminal judge and lawyer cannot inquire with too much
care into the symptoms of this disease, in order to discover the
guilt of the mother, where it exists, and to ascertain her
innocence, where it does not. See two well reported cases of this
kind in the Boston Medical Journal, vol. 27, No. 10, p. 161.
EDICT. A law ordained by the sovereign, by which he forbids or
commands something it extends either to the whole country, or
only to some particular provinces.
2. Edicts are somewhat similar to public proclamations. Their
difference consists in this, that the former have authority and
form of law in themselves, whereas the latter are at most,
declarations of a law, before enacted by congress, or the
legislature.
3. Among the Romans this word sometimes signified, a citation
to appear before a judge. The edict of the emperors, also called
constitutiones principum, were new laws which they made of their
own motion, either to decide cases which they had foreseen, or to
abolish or change some ancient laws. They were different from
their rescripts or decrees. These edicts were the sources which
contributed to the formation of the Gregorian, Hermogenian,
Theodosian, and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1,
2, 7; Code, 1, 1 Nov. 139.
EDICT PERPETUAL. The title of a compilation of all the edicts.
This collection was made by Salvius Julianus, a jurist who was,
selected by the emperor Adrian for the purpose, and who performed
his task with credit to himself.
EDICTS OF JUSTINIAN. These are thirteen constitutions or laws
of that prince, found in most editions of the corpus juris
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civilis, after the Novels. Being confined to matters of police in
the provinces of the empire, they are of little use.
EFFECT. The operation of a law, of an agreement, or an act, is
called its
effect.
2. By the laws of the United States, a patent cannot be granted
for an effect only, but it may be for a new mode or application
of machinery to produce effects. 1 Gallis. 478; see 4 Mason, 1;
Pet. C. C. R. 394; 2 N. H. R. 61.
EFFECTS. This word used simpliciter is equivalent to property
or, worldly substance, and may carry the whole personal estate,
when used in a will. 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves.
507; 6 Madd. Ch. R. 119. But when it is preceded and connected
with words of a narrower import, and the bequest is not
residuary, it will be confined to species of property ejusdem
generis with those previously described. 13 Ves. 39; 15 Ves.
826; Roper on Leg. 210.
EFFIGY, crim. law. The figure or representation of a person.
2. To make the effigy of a person with an intent to make him
the object of ridicule, is a libel. (q. v.) Hawk. b. 1, c. 7 3,
s. 2 14 East, 227; 2 Chit. Cr. Law, 866.
3. In France an execution by effigy or in effigy is adopted in
the case of a criminal who has fled from justice. By the public
exposure or exhibition of a picture or representation of him on a
scaffold, on which his name and the decree condemning him are
written, he is deemed to undergo the punishment to which he has
been sentenced. Since the adoption of the Code Civil, the
practice has been to affix the names, qualities or addition, and
the residence of the condemned person, together with an extract
from the sentence of condemnation, to a post set upright in the
ground, instead of exhibiting a portrait of him on the scaffold.
Repertoire de Villargues; Biret, Vo cab.
EFFRACTION. A breach, made by the use of force.
EFFRACTOR. One who breaks through; one who commits a burglary.
EGO. I, myself. This term is used in forming genealogical
tables, to represent the person who is the object of inquiry.
EIGNE, persons. This is a corruption of the French word aine,
eldest or first born.
2. It is frequently used in our old law books, bastard eigne.
signifies an elder bastard when spoken of two children, one of
whom was; born before the marriage of his parents, and the other
after; the latter is called mulier puisne. Litt. sect. 399.
EIRE, or EYRE, English law. A journey. Justices in eyre, were
itinerant judges, who were sent once in seven years with a
general commission in divers counties, to hear and determine such
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causes as were called pleas of the crown. Vide Justices in eyre.
EJECTMENT, remedies. The name of an action which lies for the
recovery of the possession of real property, and of damages for
the unlawful detention. In its nature it is entirely different
from a real action. 2 Term Rep; 696, 700. See 17 S. & R. 187,
and, authorities cited.
2. This subject may be considered with reference, 1st. To the
form of the, proceedings. 2d. To the nature of the property or
thing to be recovered. 3d. To the right to such property. 4th. To
the nature of the ouster or injury. 5th. To the judgment.
3. - 1. In the English practice, which is still adhered to in
some states, in order to lay the foundation of this action, the
party claiming title enters upon the land, and then gives a lease
of it to a third person, who, being ejected by the other
claimant, or some one else for him, brings a suit against, the
ejector in his own name; to sustain the action the lessee must
prove a good title in the lessor, and, in this collateral way,
the title is tried. To obviate the difficulty of proving these
forms, this action has been made, substantially, a fictitious
process. The defendant agrees, and is required to confess that a
lease was made to the plaintiff, that he entered under it, and
has been ousted by the defendant, or, in other words, to admit
lease, entry, and ouster, and that he will rely only upon his
title. An actual entry, however, is still supposed, and
therefore, an ejectment will not lie, if the right of entry is
gone. 3 Bl. Com. 199 to 206. In Pennsylvania, New York, Arkansas,
and perhaps other states, these fictions have all been abolished,
and the writ of ejectment sets forth the possession of the
plaintiff, and an unlawful entry on the part of the defendant.
4. - 2. This action is in general sustainable only for the
recovery of the possession of property upon which an entry might
in point of fact be made, and of which the sheriff could deliver
actual possession: it cannot, therefore, in general, be sustained
for the recovery of property which, in legal consideration, is
not tangible; as, for a rent, or other incorporeal
heriditaments, a water-course, or for a mere privilege of a
landing held in common with other citizens of a town. 2 Yeates,
331; 3 Bl. Com. 206; Yelv. 143; Run. Eject. 121 to 136 Ad.
Eject. c. 2; 9 John. 298; 16 John. 284.
5. - 3. The title of the party having a right of entry maybe in
fee-simple, fee-tail, or for life or years; and if it be the
best title to the property the plaintiff will succeed. The
plaintiff must recover on the strength. of his title, and not on
the weakness or deficiency of that of the defendant. Addis. Rep.
390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 Burr. 2487;
1 East, R. 246; Run. Eject. 15; 5 T. R. 110.
6. - 4. The injury sustained must in fact or in point of law
have amounted to an ouster or dispossession of the lessor of the
plaintiff, or of the plaintiff himself, where the fictions have
been abolished; for if there be no ouster, or the defendant be
not in possession at the time of bringing the action, the
plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R.335.
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7. - 5. The judgment is that the plaintiff do recover his term,
of and in the tenements, and, unless the damages be remitted, the
damages assessed by the jury with the costs of increase. In
Pennsylvania, however, and, it is presumable, in all those states
where the fictitious form of this action has been abolished, the
plaintiff recovers possession of the land generally, and not
simply a term of years in the land. See 2 Seam. 251; 4 B. Monr.
210; 3 Harr. 73; 1 McLean, 87. Vide, generally, Adams on Ej.;
4 Bouv. Inst. n., 3651, et seq.; Run. Ej.; Com. Dig. h. t.;
Dane's Ab. h. t.; 1 Chit. Pl. 188 to 193; 18 E. C. L. R. 158;
Woodf. L. & T. 354 to 417; 2 Phil. Ev. 169.; 8 Vin. Ab. 323;
Arch. Civ. Pl. 503; 2 Sell. Pr. 85; Chit. Pr. lndex, h. t.;
Bac. Ab. h. t Doct. Pl. 227; Am. Dig. h. t.; Report of the
Commissioners to Revise the Civil Code of Pennsylvania, January
16, 1835, pp. 80, 81, 83; Coop. Justinian, 448.
EJUSDEM GENERIS. Of the same kind.
2. In the construction of laws, wills and other instruments,
when certain things are enumerated, and then a phrase is used
which might be construed to include other things, it is generally
confined to things ejusdem generas; as, where an act (9 Ann. C.
20) provided that a writ of quo warranto might issue against
persons who should usurp "the offices of mayors, bailiffs, port
reeves, and other offices, within the cities, towns, corporate
boroughs, and places, within Great Britain," &c.; it was held
that "other offices" meant offices ejusdem generis; and that the
word "places" signified places of the same kind; that is, that
the offices must be corporate offices, and the places must be
corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D. & Ry.
393; 1 B. & C. 237.
3. So, in the construction of wills, when certain articles are
enumerated, the terra goods is to be restricted to those ejusdem
generis. Bac. Ab. Legacies, B; 3 Rand. 191; 3 Atk. 61; Abr.
Eq. 201; 2 Atk. 113.
ELDEST. He or she who has the greatest age.
2. The laws of primogeniture are not in force in the United
States; the eldest child of a family cannot, therefore, claim
any right in consequence of being the eldest.
ELECTION. This term, in its most usual acceptation, signifies
the choice which several persons collectively make of a person to
fill an office or place. In another sense, it means the choice
which is made by a person having the right, of selecting one of
two alternative contracts or rights. Elections, then, are of men
or things.
2. - §1. Of men. These are either public elections, or
elections by companies or corporations.
3. - 1. Public elections. These should be free and uninfluenced
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either by hope or fear. They are, therefore, generally made by
ballot, except those by persons in their representative
capacities, which are viva voce. And to render this freedom as
perfect as possible, electors are generally exempted from arrest
in all cases, except treason, felony, or breach of the peace,
during their attendance on election, and in going to and
returning from them. And provisions are made by law, in several
states, to prevent the interference or appearance of the military
on the election ground.
4. One of the cardinal principles on the subject of elections
is, that the person who receives a majority or plurality of votes
is the person elected. Generally a plurality of the votes of the
electors present is sufficient; but in some states a majority of
all the votes is required. Each elector has one vote.
5. - 2. Elections by corporations or companies are made by the
members, in such a way its their respective constitutions or
charters direct. It is usual in these cases to vote a greater or
lesser number of votes in proportion as the voter has a greater
or less amount of the stock of the company or corporation, if
such corporation or company be a pecuniary institution. And the
members are frequently permitted to vote by proxy. See 7 John.
287; 9 John. 147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387;
6 Wend. 509; 1 Wend. 98.
6. - §2. The election of things. 1. In contracts, when a;
debtor is obliged, in an alternative obligation, to do one of two
things, as to pay one hundred dollars or deliver one hundred
bushels of wheat, he has the choice to do the one or the other,
until the time of payment; he has not the choice, however, to
pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No. 247; ll
John. 59. Or, if a man sell or agree to deliver one of two
articles, as a horse or an ox, he has the election till the time
of delivery; it being a rule that "in case an election be given
of two several things, always be, which is the first agent, and
which ought to do the first act, shall have the election." Co.
Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure of
the person who has the right to make his election in proper time,
the right passes to the opposite party. Co. Litt. 145, a; Viner,
Abr. Election, B, C; Poth. Obl. No. 247; Bac. Ab. h. t. B; 1
Desaus. 460; Hopk. R. 337. It is a maxim of law, that an
election once made and pleaded, the party is concluded, electio
semel facta, et placitum testatum, non patitur regress-um. Co.
Litt. 146; 11 John. 241.
7.-2. Courts of equity have adopted the principle, that a
person shall not be permitted to claim under any instrument,
whether it be a deed or will, without giving full effect to it,
in every respect, so far as such person is concerned. This
doctrine is called into exercise when a testator gives what does
not belong to him, but to some other person, and gives, to that
person some estate of his own; by virtue of which gift a
condition is implied, either that he shall part with his own
estate or shall not take the bounty. 9 Ves. 515; 10 Ves. 609;
13 Ves. 220. In such a case, equity will not allow the first
legatee to, insist upon that by which he would deprive another
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legatee under the same will of the benefit to which he would be
entitled, if the first legatee permited the whole will to
operate, and therefore compels him to make his election between
his right independent of the will, and the benefit under it. This
principle of equity does not give the disappointed legatee the
right to detain the thing itself, but gives a right to
compensation out of something else. 2 Rop. Leg. 378, c. 23, s. 1.
In order to impose upon a party, claiming under a will, the
obligation of making an election, the intention of the testator
must be expressed, or clearly implied in the will itself, in two
respects; first, to dispose of that which is not his own; and,
secondly, that the person taking the benefit under the will
should, take under the condition of giving effect thereto. 6 Dow.
P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492; 3 Bro.
C. C. 255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves.
jr. 367, 371; 3 Ves. jr. 65; Amb. 433; 3 Bro. P. C. by Toml.
277; 1 B. & Beat. 1; 1 McClel. R. 424, 489, 541. See,
generally, on this doctrine, Roper's Legacies, c. 23; and the
learned notes of Mr. Swanston to the case Dillon v. Parker, 1
Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3
Desaus. R. 504; 8 Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin.
303; 1 Sim. R. 105; 13 Price, R. 607; 1 McClel. R. 439; 1 Y.
& C. 66; 2 Story, Eq. Jur. §1075 to 1135; Domat, Lois Civ. liv.
4, tit. 2, §3, art. 3, 4, 5; Poth. Pand. lib. 30, t. 1, n. 125;
Inst. 2, 20, 4; Dig. 30, 1, 89, 7.
8. There are many other cases where a party may be compelled to
make an election, which it does not fall within the plan of this
work to consider. The reader will easily inform himself by
examining the works above referred to.
9. - 3. The law frequently gives several forms of action to the
injured party, to enable him to recover his rights. To make a
proper election of the proper remedy is of great importance. To
enable the practitioner to make the best election, Mr. Chitty, in
his valuable Treatise on Pleadings, p. 207, et seq., has very
ably examined the subject, and given rules for forming a correct
judgment; as his work is in the hands of every member of the
profession, a reference to it here is all that is deemed
necessary to say on this subject. See also, Hammond on Parties to
Actions; Brown's Practical Treatise on Actions at Law, in the
45th vol. of the Law Library; U. S. Dig. Actions IV.
ELECTION OF ACTIONS, practice. It is frequently at the choice
of the plaintiff what kind of an action to bring; a skilful
practitioner would naturally select that in which his client can
most easily prove what is his interest in the matter affected;
may recover all his several demands against the defendant; may
preclude the defendant from availing himself of a defence, which
be might otherwise establish; may most easily introduce his own
evidence; may not be embarrassed by making too. many or too few
persons parties to the suit; may try it in the county most
convenient to himself; may demand bail where it is for the
plaintiff's interest; may obtain a judgment with the least
expense and delay; may entitle himself to costs; and may demand
bail in error. 1 Chit. Pl. 207 to 214.
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2. It may be laid down as a general rule, that when a statute
prescribes a new remedy, the plaintiff has his election either to
adopt such remedy, or proceed at common law. Such statutory
remedy is cumulative, unless the statute expressly, or by
necessary implication takes away the Common law remedy. 1 S. & R.
32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 John. 220; 1
Call, 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383;
4 Halst. 384; 3 Chit. Pr. 130.
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle,
that a person shall not be permitted to claim under any
instrument, whether it be a deed or a will, without giving full
effect to it in every respect, so far as such person is
concerned. When a testator, therefore, gives what belongs to
another and not to him, and gives to the owner some estate of his
own; this gift is under an implied condition, either that he
shall part with his own estate, or not take the bounty. 9 Ves.
615; 10 Ves. 609; 13 Ves. 220; 2 Ves. 697; 1 Suppl. to Ves.
jr. 222; Id. 55; Id. 340. If, for example, a testator
undertakes to dispose of an estate belonging to B, and devise to
B other lands, or bequeath to him a legacy by the same will, B
will not be permitted to keep his own estate, and enjoy at the
same time the benefit of the devise or bequest made in his favor,
but must elect whether he will part with his own estate, and
accept the provisions in the will, or continue in possession of
the former and reject the latter. See 2 Vern. 5.81; Forr. 176;
1 Swanst. 436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R.
16 2 Gill, R. 182, 201; 1 Dev. Eq. R. 283; 3 Desaus. 346; 6
John. Ch. R. 33; Riley, Ch. R. 205; 1 Whart. 490; 5 Dana, 345;
White's L. C. in Eq. *233.
2. The foundation of the equitable doctrine of election, is the
intention, explicit or presumed, of the author of the instrument
to which it is applied, and such is the, import of the expression
by which it is described as proceeding, sometimes on a tacit,
implied, or constructive condition, sometimes on equity. See Cas.
temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. 536; 1
Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432,
several very full notes.
3. As to what acts of acceptance or acquiescence will
constitute an implied election, see 1 Swan. R. 381, n. a; and
the cases there cited.
ELECTOR, government. One who has the right to make choice of
public officers one, who has a right to vote.
2. The qualifications of electors are generally the same as
those required in the person to be elected; to this, however,
there is one exception; a naturalized citizen may be an elector
of president of the United States, although he could not
constitutionally be elected to that office.
ELECTORS OF PRESIDENT. Persons elected by the people, whose
sole duty is to elect a president and vice-president of the U. S.
2. The Constitution provides, Am. art. 12, that "the electors
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shall meet in their respective states, and vote by ballot for
president and vice-president, one of whom at least shall not be
an inhabitant of the same state with themselves; they shall name
in their ballots the person voted for as president, and in
distinct ballots the person voted for as vice-president; and
they shall make distinct lists of all persons voted fur as
president, and of all persons voted for as vice-president, and of
the number of votes for each; which list they shall sign and
certify, and transmit, sealed, to the seat of the government of
the United States, directed to the president of the senate; the
president of the senate shall, in the presence of the senate and
the house of representatives, open all the certificates, and the
votes shall then be counted; the person having the greatest
number of, votes for president, shall be the president, if such
number be the majority of the whole number of electors appointed;
and if no, person have such majority, then from the persons
having the highest numbers, not exceeding three, on the list of
those voted for as president, the house of representatives shall
choose immediately, by ballot, the president. But in choosing the
president, the votes shall be taken by states, the representation
from each state having one vote; a quorum, for this purpose,
shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a
choice. And if the house of representatives shall not choose a
president whenever the right of choice shall devolve upon them,
before the fourth day of March next following, then the
vice-president shall act as president, as in the case of the
death or other constitutional disability of the president.
3. - 2. "The person having the greatest number of votes as
vice-president shall be vice-president, if such number be a
majority of the whole number of electors appointed and if no
person have a majority, them from the two highest numbers on the
list, the senate shall choose the vice-president; a quorum for
the purpose shall consist of two-thirds of the whole number of
senators, and a majority of the whole number shall be necessary
to a choice. But no person constitutionally ineligible to the
office of president, shall be eligible to that of vice-president
of the United States." Vide 3 Story, Const. §1448 to 1470.
ELEEMOSYNARY. Charitable alms-giving.
2. Eleemosynary corporations are colleges, schools, and
hospitals. 1 Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R.
346.
ELEGIT, Eng. practice, remedies. A writ of execution directed
to the sheriff, commanding him to make delivery of a moiety of
the party's land, and all his goods, beasts of the plough only
excepted.
2. The sheriff, on the receipt of the writ, holds an inquest to
ascertain the value of the lands and goods he has seized, and
then they are delivered to the plaintiff, who retains them until
the whole debt and damages have been paid and satisfied; during
that term he is called tenant by elegit. Co. Litt. 289. Vide Pow.
Mortg. Index, h. t.; Wats. Sher. 206. As to the law of the
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several states on the subject. of seizing land and extending it.
see 1 Hill. Ab. 556-6.
ELIGIBILITY. Capacity to be elected.
2. Citizens are in general eligible to all offices; the
exceptions arise from the want of those qualifications which the
constitution requires; these are such as regard his person, his
property, or relations to the state.
3.- 1. In. general, no person is eligible to any office, until
he has attained the full age of twenty-one years; no one can be
elected a senator of the United States, who shall not have
attained the age of thirty years, been a 'citizen of th e United
States nine years and who shall not be an inhabitant of the,
state for which he shall be chosen. Const. art. 1, s. 3. No
person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, is
eligible to the office of president, and no person shall be
eligible to that office, who shall not have attained the age of
thirty-five years, and been fourteen years a resident within the
United States. Const. art. 2, s. 1.
4. - 2. A citizen may be ineligible in consequence of his
relations to the state; for example, holding an office
incompatible with the office sought. Vide Ineligibility. Because
he has not paid the taxes the law requires; because he has not
resided a sufficient length of time in the state.
5. - 3. He may be ineligible for want of certain property
qualifications required by some, law.
ELISORS, practice. Two persons appointed by the court to return
a jury, when the sheriff and the coroner have been challenged as
incompetent; in this case the elisors return the writ of venire
directed to them, with a panel of the juror's names, and their
return is final, no challenge being allowed to their array. 3 Bl.
Com. 355,; 3 Cowen, 296; 1 Cowen, 32.
ELL. A measure of length. In old English the word signifies
arm, which sense it still retains in the word elbow. Nature has
no standard of measure. The cubit, the ell, the span, palm, hand,
finger, (being taken from the individual who uses them) varies.
So of the foot, pace, mile, or mille passuum. See Report on
Weights and Measures, by the Secretary of State of the United.
States, Feb. 22, 1821; Fathom.
ELOIGNE, practice. This word signifies, literally, to remove to
a distance; to remove afar off. It is used as a return to a writ
of replevin, when the chattels have been removed out of the way
of the sheriff. Vide Elongata.
ELONGATA, practice. There turn made by the sheriff to a writ of
replevin, when the goods have been removed to places unknown to
him. See, for the form of this return, Wats. Sher. Appx. c. 18,
.s. 3, p. 454; 3 Bl. Com. 148.
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2. On this return the plaintiff is entitled to a capias in
withernam. Vide Withernam, and Wats. Sher. 300, 301. The word
eloigne, (q. v.) is sometimes used as synonymous with elongata.
ELOPEMENT. This term is used to denote the departure of a
married woman from her hushand, and dwelling with an adulterer.
2. While the wife reides with her hushand, and cohabits with
him, however exceptionable her conduct may be, yet he is bound to
provide her with necessaries, and to pay for them; but when she
elopes, the hushand is no longer liable for her alimony, and is
not bound to pay debts of her contracting when the separation is
notorious; and whoever gives her credit under these
circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R.
42; 3 Pick. R. 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John.
R. 281; 12 John. R. 293; Bull. N. P. 135; Stark. Ev. part 4,
p. 699.
ELOQUENCE OR ORATORY. The act or art of speaking well upon any
subject with a view to persuade. It comprehends a good elocution,
correct and appropriate expressions uttered. with fluency,
animation and suitable action. The principal rules of the art,
which must be sought for in other works, are summarily expressed
in the following lines:
" Be brief, be pointed; let your matter stand
Lucid in order, solid, and at hand;
Spend not your words on trifles, but condense;
Strike with the mass of thoughts, not drops of sense;
Press to the close with vigor once begun,
And leave, (how hard the task!) leave off when done;
Who draws a labor'd length of reasoning out,
Put straws in lines for winds to whirl about;
Who draws a tedious tale of learning o'er,
Counts but the sands on ocean's boundless shore;
Victory in law is gain'd as battle's fought,
Not by the numbers, but the forces brought;
What boots success in skirmishes or in fray,
If rout and ruin following close the day?
What worth a hundred Posts maintained with skill,
If these all held, the foe is victor still?
He who would win his cause, with power must frame
Points of support, and look with steady aim:
Attack the weak, defend the strong with art,
Strike but few blows, but strike them to the heart;
All scatter'd fires but end in smoke and noise,
The scorn of men, the idle play of boys.
Keep, then, this first great precept ever near,
Short be your speech, your matter strong and clear,
Earnest your manner, warm and rich your style,
Severe in taste, yet full of grace the while;
So may you reach the loftiest heights of fame,
And leave, when life is past, a deathless name."
ELSEWHERE. In another place.
2. Where one devises all his land in A, B and C, three distinct
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towns, and elsewhere, and had lands of much greater value than
those in A, B and C, in another county, the lands in the other
county were decreed to pass by the word elsewhere; and by Lord
Chancellor King, assisted by Raymond, Ch. J., and other judges,
the word elsewhere, was adjudged to be the same as if the
testator had said he devised all his lands in the three towns
particularly mentioned, or in
any other place whatever. 3 P. Wms. 5 6. See also Prec. Chan.
202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id.
808; 2 Barr. 912; 5 Bro. P. C. 496; S. C. 1 East, 456; 1
Vern. 4 n.
3. - 2. As to the effect of the word elsewhere, in the case of
lands not purchased at the time of making the will, see 3 Atk.
254; 2 Vent. 351. Vide Alibi.
EMANCIPATION. An act by which a person, who was once in the
power of another, is rendered free. B y the laws of Louisiana,
minors may be emancipated. Emancipation is express or implied.
2. Express emancipation. The minor may be emancipated by his
father, or, if be has no father, by his mother, under certain
restrictions. This emancipation takes place by the declaration,
to that effect, of the father or mother, before a notary public,
in the presence of two witnesses. The orphan minor may, likewise,
be emancipated by the judge, but not before he has arrived at the
full age of eighteen years, if the family meeting, called to that
effect, be of opinion that he is able to administer his property.
The minor may be emancipated against the will of his father and
mother, when they ill treat him excessively, refuse him support,
or give him corrupt example.
3. The marriage of the minor is an implied emancipation.
4. The minor who is emancipated has the full administration of
his estate, and may pass all act's which may be confined to such
administration; grant leases, receive his revenues and moneys
which may be due him, and give receipts for the same. He cannot
bind himself legally, by promise or obligation, for any sum
exceeding the amount of one year of his revenue. When he is
engaged in trade, he is considered as leaving arrived to the age
of majority, for all acts which have any relation to such trade.
5. The emancipation, whatever be the manner in. which it may
have been effected, may be revoked, whenever the minor contracts
engagements which exceed the limits prescribed by law.
6. By the English law, filial emancipation is recognized,
chiefly, in relation to the parochial settlement of paupers. See
3 T. R. 355; 6 T. R. 247; 8 T. R. 479; 2 East, 276; 10 East,
88.; 11 Verm. R. 258, 477. See Manumission. See Coop. Justin.
441, 480; 2 Dall. Rep. 57, 58; Civil Code of Louisiana, B. 1,
tit. 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de Droit,
par Ferriere; Diet. de Jurisp. art. Emancipation.
EMBARGO, maritime law. A proclamation, or order of state,
usually issued in time of war, or threatened hostilities,
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prohibiting the departure of ships or goods from some, or all the
ports of such state, until further order. 2 Wheat. 148.
2. The detention of ships by an embargo is such an injury to
the owner as to entitle him to recover on a policy of insurance
against "arrests or detainments." And whether the embargo be
legally or illegally laid, the injury to the owner is the same;
and the insurer is equally liable for the loss occasioned by it.
Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 Bell's Com.
517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or
in the course of the voyage, does not, of itself, work a
dissolution of a charter party, or the contract with the seamen.
It is only a temporary restraint imposed by authority for
legitimate political purposes, which suspends, for a time, the
performance of such contracts, and leaves the rights of parties
untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7
Mass. R. 325 , 3 B. & P. 405-434; 4 East, R. 546-566.
EMBEZZLEMENT, crim. law. The fraudulently removing and
secreting of personal property, with which the party has been
entrusted, for the purpose of applying it to his own use.
2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86,
provides, that if any person, within any of the laces under the
sole and exclusive jurisdiction of the United States, or upon the
high seas, shall take and carry away, with an intent to steal or
purloin, the personal goods of another; or if any person or
persons, having, at any time hereafter, the charge or custody of
any arms, ordnance, munition, shot, powder, or habiliments of
war, belonging to the. United States, or of any victuals provided
for the victualling of any soldiers, gunners, marines, or
pioneers, shall, for any lucre or gain, or wittingly, advisedly,
and of purpose to hinder or impede the service of the United
States, embezzle, purloin, or convey away, any of the said arms,
ordnance, munition, shot or powder, habiliments of war, or
victuals, that then, and in every of the cases aforesaid, the
persons so offending, their counsellors, aiders and abettors,
(knowing of, and privy to the offences aforesaid,) shall, on
conviction, be fined, not exceeding the fourfold value of the
property so stolen, embezzled or purloined the one moiety to be
paid to the owner of the goods, or the United States, as the case
may be, and the other moiety to the informer and prosecutor, and
be publicly whipped, not exceeding thirty-nine stripes.
3. The Act of April 20, 1818, 3 Story, 1715, directs that wines
and distilled spirits shall, in certain cases, be deposited in
the public warehouses of the United States, and then it is
enacted, s. 5, that if any wines, or other spirits, deposited
under the provisions of this act, shall be embezzled, or
fraudulently hid or removed, from any store or place wherein they
shall have been deposited, they shall be forfeited, and the
person or persons so embezzling, hiding, or removing the same, or
aiding or assisting therein, shall be liable to the same pains
and penalties as if such wines or spirits had been fraudulently
unshipped or landed without payment of duty.
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4. By the 21st section of the act to reduce into one the
several acts establishing and regulating the post-office, passed
March 3, 1825, 3 Story, 1991, the offence of embezzling letters
is punished with fine and imprisonment. Vide Letter.
5. The act more effectually to provide for the punishment of
certain crimes against the United States, and for other purposes,
passed March 3, 1825, s. 24, 3 Story, 2006, enacts, that if any
of the gold or silver coins which shall be struck or coined at
the mint of the United States, shall be debased, or made worse,
as to the proportion of fine gold or fine silver therein
contained, or shall be of less weight or value than the same
ought to be, pursuant to the several acts relative thereto,
through the default or with the connivance of any of the officers
or persons who shall be employed at the said mint, for the
purpose of profit or gain, or otherwise, with a fraudulent intent
and if any of the said officers or persons shall embezzle any of
the metals which shall, at any time, be committed to their charge
for the purpose of being coined; or any of the coins which shall
be struck or coined, at the said mint; every such officer, or
person who shall commit any, or either, of the said offences,
shall be deemed guilty of felony, and shall be sentenced to
imprisonment and hard labor for a term not less than one year,
nor more than ten years, and shall be fined in a sum not
exceeding ten thousand dollars.
6. When an embezzlement of a part of the cargo takes place on
board of a ship, either from the fault, fraud, connivance or
negligence of any of the crow, they are bound to contribute to
the reparation of the loss, in proportion to their wages. When
the embezzlement is fixed on any individual, he is solely
responsible; when it is made by the crew, or some of the crew,
but the particular offender is unknown, and from the
circumstances of the case, strong presumptions of guilt apply to
the whole crew, all must contribute. The presumption of innocence
is always in favor of the crew, and the guilt of the parties must
be established, beyond all reasonable doubt, before they can be
required to contribute. 1 Mason's R. 104; 4 B. & P. 347; 3
Johns. Rep. 17; 1 Marsh. Ins. 241; Dane's Ab. Index, h. t.;
Wesk. Ins. 194; 3 Kent, Com., 151; Hardin, 529.
EMBLEMENTS, rights. By this term is understood the crops
growing upon the land. By crops is here meant the products of the
earth which grow yearly and are raised by annual expense and
labor, or "great manurance and industry," such as grain; but not
fruits which grow on trees which are not to be planted yearly, or
grass, and the like, though they are annual. Co. Litt. 55, b;
Com. Dig. Biens, G; Ham. Part. 183, 184.
2. It is a general rule, that when the estate is terminated by
the act of God in any other way than by the death of the tenant
for life, or by act of the law, the tenant is entitled to the
enablements; and when he dies before harvest time, his executors
shall have the emblements, as a return for the labor and expense
of the deceased in tilling the ground. 9 Johns. R. 112; 1 Chit.
P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 4;
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Bac. Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.;
Dane's Ab. Index, h. t.; 1 Penna. R. 471; 3 Penna. 496; Ang.
Wat. Co. 1 Bouv. Inst. Index, h. t.
EMBRACEOR, criminal law. He who, when a matter is on trial
between party and party, comes to the bar with one of the
parties, and having received some reward so to do, speaks in the
case or privily labors the jury, or stands there to survey or
overlook them, thereby to put them in fear and doubt of the
matter. But persons learned in the law may speak in a case for
their clients. Co. Litt. 369; Terms de la Ley. A person who is
guilty of embracery. (q. v.)
EMBRACERY, crim. law. An attempt to corrupt or influence a
jury, or any way incline them to be more favorable to the one
side than to the other, by money, promises, threats, or
persuasions; whether the juror on whom such attempt is made give
any verdict or not, or whether the Verdict be true or false.
Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a;
Hob. 294; Dy. 84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod.
111, 118; Com. 601; 5 Cowen, 503.
EMENDALS, Eng. law. This ancient word is said to be used in the
accounts of the inner temple, where so much in emendals at the
foot of an account signifies so much in bank, in stock, for the
supply of emergencies. Cunn. Law Dict.
EMIGRANT. One who quits his country for any lawful reason, with
a design to settle elsewhere, and who takes his family and
property, if he has any, with him. Vatt. b. 1, c. 19, §224.
EMIGRATION. The act of removing from one place to another. It
is sometimes used in the same sense as expatriation, (q. v.) but
there is some difference in the signification. Expatriation is
the act of abandoning one's country, while emigration is, perhaps
not strictly, applied to the act of removing from one part of the
country to another. Vide 2 Kent, Com. 36.
EMINENCE; A title of honor given to cardinals.
EMINENT DOMAIN. The right which people or government retain
over the estates of individuals, to resume the same for public
use.
2. It belongs to the legislature to decide what improvements
are of sufficient importance to justify the exercise of the right
of eminent domain. See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am.
Eq. Dig. 312 3 Toull. n. 30 p. 23; Ersk. hist. B. 2) tit. 1, s.
2; Grotius, h. t. See Dominium.
EMISSARY. One who is sent from one power or government into
another nation for the purpose of spreading false rumors and to
cause alarm. He differs from a spy. (q. v.)
EMISSION, med. jur. The act by which any matter whatever is
thrown from the body; thus it is usual to say, emission of
urine, emission of semen, &c.
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2. In cases of rape, when the fact of penetration is proved, it
may be left to the jury whether emission did or did not take
place. Proof of emission would perhaps be held to be evidence of
penetration. Addis. R. 143; 2 So. Car. Const. R. 351; 2 Chitty,
Crim. Law, 810; 1 Beck's Med. Jur. 140 1 Russ. C. & M. 560; 1
East, P. C. 437.
TO EMIT. To put out; to send forth,
2. The tenth section of the first article of the constitution,
contains various prohibitions, among which is the following: No
state shall emit bills of credit. To emit bills of credit is to
issue paper intended to circulate through the-community for its
ordinary purposes, as money, which paper is redeemable at a
future day. 4 Pet. R. 410, 432; Story on Const. §1358. Vide
Bills of credit.
EMMENAGOGUES, med. jur. The name of a class of medicines which
are believed to have the power. of favoring the discharge of the
menses. These are black hellebore, savine, (vide Juneperius
Sabina,) madder, mercury, polygala, senega, and pennyroyal. They
are sometimes used for the criminal purpose of producing
abortion. (q. v.) They always endanger the life of the woman. 1
Beck's Medical Jur. 316; Dungl. Med. Diet. h. t.; Parr's Med.
Dict. h. t.; 3 Paris and Fonbl. Aled. Jur. 88.
EMOLUMENT. The lawful gain or profit which arises from an
office.
EMPALEMENT. A punishment in which a sharp polo was forced up
the fundament. Encyc. Lond. h. t.
TO ENPANEL, practice. To make a list or roll, by the sheriff or
other authorized officer, of the names of jurors who are summoned
to appear for the performance of such service as jurors are
required to perform.
EMPEROR, an officer. This word is synonymous with the Latin
imperator; they are both derived from the. verb imperare.
Literally, it signifies he who commands.
2. Under the Roman republic, the title emperor was the generic
name given to the commanders-in-chief in the armies. But even
then the application of the word was restrained to the successful
commander, who was declared emperor by the acclamations of the
army, and was afterwards honored with the title by a decree of
the senate. 3. It, is now used to designate some sovereign prince
who bears this title. Ayl. Pand. tit. 23.
EMPHYTEOSIS, civil law. The name of a contract by which the
owner of an uncultivated piece of land granted it to another
either in perpetuity, or for a long time, on condition that he
should: improve it, by building, planting or cultivating it, and
should pay for it an annual rent; with a right to the grantee to
alienate it, or transmit it by descent to his heirs, and under a
condition that the grantor should never re-enter as long as the
rent should be paid to him by the grantee or his assigns. Inst.
3, 25, 3. 18 Toull. n. 144.
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2. This has a striking resemblance to a ground-tent. (q. v.).
See Nouveau Denisart, mot, Emphyteose; Merl. Reper. mot
Emphyteose; Faber, De jure emphyt. Definit. 36; Code, 4, 66, 1.
EMPIRE. This word signifies, first, authority or command; it
is the power to command or govern those actions of men which
would otherwise be free; secondly, the country under the
government of an emperor but sometimes it is used to designate a
country subject to kingly power, as the British empire. Wolff,
Inst. §833.
EMPLOYED. One who is in the service of another. Such a person
is entitled to rights and liable to. perform certain duties.
2. He is entitled to a just compensation for his services;
when there has been a special contract, to what has been agreed
upon; when not, to such just recompense as he deserves.
3. He is bound to perform the services for which he has engaged
himself; and for a violation of his engagement he may be sued,
but he is not liable to corporal correction. An exception to this
rule may be mentioned; on the ground of necessity, a sailor may
be punished by reasonable correction, when it is necessary for
the safety of the vessel, and to maintain discipline. 1 Bouv.
Inst. n. 1001: 2 Id. n. 2296.
EMPLOYEE. One who is authorized to act for another; a
mandatory.
EMPLOYMENT. An employment is an office; as, the secretary of
the treasury has a laborious and responsible employment; an
agency, as, the employment of an auctioneer; it signifies also
the act by which one is engaged to do something. 2 Mart. N. S.
672; 2 Harr. Cond. Lo. R. 778.
2. The employment of a printer to publish the laws of the
United States, is not an office. 17 S. & R. 219, 223. See
Appointment.
EMPLOYER. One who has engaged or hired the services of another.
He is entitled to rights and bound to perform duties.
2. - 1. His rights are, to be served according to the terms of
the contract. 2. He has a right against third persons for an
injury to the person employed, or for harboring him, so as to
deprive the employer of his services. 2 Bouv. Inst. n. 2295.
3. His duties are to pay the workman the compensation agreed
upon, or if there be no special agreement, such just recompense
as he deserves. Vide Hire; Hirer.
EMPTION. The act of buying.
EMPTOR. A buyer; a purchaser.
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EN DEMEURE. In default. This term is used in Louisiana. 3 N. S.
574. See Moral in.
ENABLING POWERS. A term used in equity. When the donor of a
power, who is the owner of the estate, confers upon persons not
seised of the fee, the right of creating interests to take effect
out of it, which could not be done by the donee of the power,
unless by such authority; this is called an enabling power. 2
Bouv. Inst. n. 1928.
TO ENACT. To establish by law; to perform or effect; to
decree. The usual formula in making laws is, Be it enacted.
ENCEINTE, med. jur. A French word, which signifies pregnant.
2. When a woman is pregnant, and is convicted of a capital
crime, she cannot lawfully be punished till after her delivery.
3. in the English law, where a widow is suspected to feign
herself with child, in order to produce a supposititious heir to
the estate, the presumptive heir may have a writ de ventre
inspiciendo, to examine whether she be with child or not. Cro.
Eliz. 566; 4 Bro. C. C. 90. As to the signs of pregnancy, see 1
Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 P. Wms.
591; 1 Cox, C. C. 297 and Pregnancy; Privement enceinte.
ENCLOSURE. An artificial fence put around one's estate. Vide
Close.
ENCROACHMENT. An unlawful gaining upon the right or possession
of another; as, when a man sets his fence beyond his line; in
this case the proper remedy for the party injured is an action of
ejectment, or an action of trespass.
ENCUMBRANCE. A burden or charge upon an estate or property, so
that it cannot be disposed of without being subject to it. A
mortgage, a lien for taxes, are examples of encumbrances.
2. These do not affect the possession of the grantee, and may
be removed or extinguished by a definite pecuniary value. See 2
Greenl. R. 22; 5 Greenl. R. 94.
3. There are encumbrances of another kind which cannot be so
removed, such as easements for example, a highway, or a
preexisting right to take water from, the land. Strictly
speaking, however, these are not encumbrances, but appurtenances
to estates in other lands, or in the language of the civil law,
servitudes. (q. v.) 5 Conn. R. 497; 10 Conn. R. 422 15 John. R.
483; and see 8 Pick. R. 349; 2 Wheat. R. 45. See 15 Verm. R.
683; l Metc. 480; 9 Metc. 462; 1 App. R. 313; 4 Ala. 21; 4
Humph. 99; 18 Pick. 403; 1 Ala. 645; 22 Pick. 447; 11 Gill &
John. 472.
ENDEAVOR, crim. law. An attempt. (q. v.) Vide Revolt.
ENDORSEMENT. Vide Indorsement.
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ENDOWMENT. The bestowing or assuring of a dower to a woman. It
is sometimes used: metaphorically, for the setting a provision
for a charitable institution, as the endowment of a hospital.
ENEMY, international law. By this term is understood the whole
body of a nation at war with another. It also signifies a citizen
or subject of such a nation, as when we say an alien enemy. In a
still more extended sense, the word includes any of the subjects
or citizens of a state in amity with the United States, who, have
commenced, or have made preparations for commencing hostilities
against the United States; and also the citizens or subjects of
a state in amity with the United States, who are in the service
of a state at war with them. Salk. 635; Bac. Ab. Treason, G.
2. An enemy cannot, as a general rule, enter into any contract
which can be enforeed in the courts of law; but the rule is not
without exceptions; as, for example, when a state permits
expressly its own citizens to trade with the enemy; and perhaps
a contract for necessaries, or for money to enable the individual
to get home, might be enforced. 7 Pet. R . 586.
3. An alien enemy cannot, in general, sue during the war, a
citizen of the United States, either in the courts of, the United
States, or those of the several states. 1 Kent, Com. 68; 15
John. R. 57 S. C. 16 John. R. 438. Vide Marsh. Ins. c. 2, s. 1;
Park. Ins. Index. h. t.; Wesk. Ins. 197; Phil. Ins. Index. h.
t.; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, Index,
h. t.
4. By the term enemy is also understood, a person who is
desirous of doing injury to another. The Latins had two terms to
signify these two classes of persons; the first , or the public
enemy, they called hostis, and the latter, or the private enemy,
inimicus.
TO ENFEOFF. To make a gift of any corporeal hereditaments to
another. Vide Feoffment.
TO ENFRANCHISE. To make free to incorporate a man in a society
or body politic. Cunn. L. D. h. t. Vide Disfranchise.
ENGAGEMENT. This word is frequently used in the French law to
signify not only a contract, but the obligations arising from a
quasi contract. The terms obligations (q. v.) and engagements,
are said to be synonymous 17 Toull. n. 1; but the Code seems
specially to apply the term engagement to those obligations which
the law, imposes on a man without the intervention of any
contract, either on the part of the obligor or the obligee. Art.
1370.
ENGLESHIRE. A law was made by Canutus, for the preservation of
his Danes, that when a man was killed, the hundred or town should
be liable to be amerced, unless it could be proved that the
person killed was an Englishman. This proof was called
Engleshire. It consisted, generally, of the testimony of two
males on the part of the father of him that had been killed, and
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two females on the part of his mother. Hal. Hist. P . C. 447; 4
Bl. Com. 195; Spelman, Gloss. See Francigena .
TO ENGROSS, practice, conveyancing. To copy the rude draught of
an instrument in a fair and large hand. See 3 Bouv. Inst. n,
2421, note.
ENGROSSER. One who purchases large quantities of any
commodities in order to have the command of the market, and to
sell them again at high prices.
TO ENJOIN. To command; to require; as, private individuals
are not only permitted, but enjoined by law to arrest an offender
when present at the time a felony is committed or dangerous wound
given, on pain of fine and imprisonment if the wrong doer escape
through their negligence. 1 Hale, 587; 1 East, P. C. 298,304;
Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. In a more
technical sense, to enjoin, is to command or order a defendant in
equity to do or not to do a particular thing by writ of
injunction. Vide Injunction.
TO ENLARGE. To extend; as, to enlarge a rule to plead, is to
extend the time during which a defendant may plead. To enlarge,
means also to set at liberty; as, the prisoner was enlarged on
giving bail.
ENLARGING. Extending or making more comprehensive; as an
enlarging statute, which is one extending the common law.
ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab.
Coparceners, C. 2. When partition is voluntarily made among
coparceners in England, the eldest has the first choice, or
primer election, (q. v.) and the part which she takes is called
enitia pars. This right is purely personal, and descends; it is
also said that even her as signee shall enjoy it; but this has
also been doubted. The word enitia is said to be derived from the
old French, eisne the eldest. Bac. Ab. Coparceners, C; Keilw. 1
a, 49 a; 2 And. 21; Cro. Eliz. 18.
ENJOYMENT. The right which a man possesses of receiving all the
product of a thing for his necessity, his use, or his pleasure.
ENLISTMENT. Thc act of making a contract to serve the
government in a subordinate capacity, either in the army or navy.
The contract so made, is also called an enlistment. See, as to
the power of infants to enlist, 4 Binn. 487; .5 Binn. 423;
Binn. 255; 1 S. & R. 87; 11 S. & R. 93.
ENORMIA. Wrongful acts. See Alia Enormia.
TO ENROLL. To register; to enter on the rolls of chancery, or
other court's; to make a record.
ENROLLMENT, Eng. law. The registering, or entering in the rolls
of chancery, king's bench, common pleas, or exchequer, or by the
clerk of the peace in the records of the quarter sessions, of any
lawful act; as a recognizance, a deed of bargain and sale, and
the like. Jacob, L. D.
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TO ENTAIL. To create an estate tail. Vide Tail.
ENTIRE. That which is not divided; that which is whole.
2. When a contract is entire, it must in general be fully
performed, before the party can claim the compensation which was
to have been paid to him; for example, when a man hires to serve
another for one year, he will not be entitled to leave him at any
time before the end of the year, and claim compensation for the
time, unless it be done by the consent or default of the party
hiring. 6 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick.
R. 209; 4 McCord's R. 26, 246; 4 Greenl. R. 454; 2 Penna. R.
454; 15 John. R. 224; 4 Pick. R. 114; 9 Pick. R. 298 19 John.
R. 337; 4 McCord, 249; 6 Harr. & John. 38. See Divisible.
ENTIRETY, or, ENTIERTIE. This word denotes the whole, in
contradistinction to moiety, which denotes the half part. A
hushand and wife, when jointly seized of land, are seized by
entierties and not "pur mie" as joint tenants are. Jacob's Law
Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. Johnson, 3 Penna. Law
Journ. 350, 357.
ENTREPOT. A warehouse; a magazine where goods are deposited,
and which are again to be removed.
ENTRY. criminal law. The unlawful breaking into a house, in
order to commit a crime. In cases of burglary, 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, is sufficient to complete the offence. 3
Inst. 64.
ENTRY, estates, rights. The taking possession of lands by the
legal owner. 2. A person having a right of possession may assert
it by a peaceable entry, and being in possession may retain it,
and plead that it is his soil and freehold; and this will not
break in upon any rule of law respecting the mode of obtaining
the possession of lands. 3 Term Rep. B. R. 295. When another
person has taken possession of lands or tenements, and the owner
peaceably makes an entry thereon, and declares that be thereby
takes possession of the same, he shall, by this notorious act of
ownership, which is equal to a feodal investiture, be restored to
his original right. 3 Bl. Com. 174. 3. A right of entry is not
assignable at common law. Co. Litt. 214 a. As to the law on this
subject in the United States, vide Buying of titles; 4 Kent,
Com. 439 2 Hill. Ab. c. 33, §42 to 52; also, article ReEntry;
Bac. Ab. Descent, G; 8 Vin. Ab. 441.
4. In another sense, entry signifies the going upon another
man's lands or his tenements. An entry in this sense may be
justifiably made on another's land or house, first, when the law
confers an authority; and secondly, when the party has authority
in fact.
5. First, 1. An officer may enter the close of one against
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whose person or property he is charged with the execution of a
writ. In a civil case, the officer cannot open (even by
unlatching) the outer inlet to a house, as a door or window
opening into the street 18 Edw. IV., Easter, 19, pl. 4; Moore,
pl. 917, p. 668 Cooke's case, Wm. Jones, 429; although it has
been closed for the purpose of excluding him. Cowp. 1. But in a
criminal case, a constable may break open an outer door to arrest
one within suspected of felony. 13 Edw. IV., Easter, 4, p. 9. If
the outer door or window be open, he may enter through it to
execute a civil writ; Palin. 52; 5 Rep. 91; and, having
entered, he may, in every case, if necessary, break open an inner
door. 1 Brownl. 50.
6. - 2. The lord may enter to distrain, and go into the house
for that purpose, the outer door being open. 5 Rep. 91.
7. - 3. The proprietors of goods or chattels may enter the land
of another upon which they are placed, and remove them, provided
they are there without his default; as where his tree has blown
down into the adjoining close by the wind, or his fruit has
fallen from a branch which overhung it. 20 Vin. Abr. 418.
8. - 4. If one man is bound to repair bridge, he has a right of
entry given him by law for that purpose. Moore, 889.
9. - 5. A creditor has a right to enter the close of his debtor
to demand the duty owing, though it is not to be rendered there.
Cro. Eliz. 876.
10. - 6. If trees are excepted out of a demise, the lessor has
the right of entering, to prune or fell them. Cro. Eliz. 17; 11.
Rep. 53.
11. - 7. Every traveller has, by law, the privilege of entering
a common inn, at all seasonable times, provided the host has
sufficient accommodation, which, if he has not, it is for him to
declare.
12.- 8. Ever man may throw down a public nuisance, and a
private one may be thrown down by the party grieved, and this
before an prejudice happens, but only from the probability that
it may happen. 5 Rep, 102 and see 1 Brownl. 212; 12 Mod. 510 Wm.
Jones, 221; 1 Str. 683. To this end, the abator has authority to
enter the close in which it stands. See Nuisance.
13. - 9. An entry may be made on the land of another, to
exercise or enjoy therein an incorporeal right or hereditament to
which he is entitled. Hamm. N. P. 172. See general Bouv. Inst.
Index, h. t.; 2 Greenl. Ev. §627; License.
ENTRY, commercial law. The act of setting down the particulars
of a sale, or other transaction, in a merchant's or tradesman's
accouut books; such entries are, in general, prima facie
evidence of the sale and delivery, and of work, done; but unless
the entry be the original one, it is not evidence. Vide Original
entry.
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ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies
in favor of the reversioner, when the tenant for term of life,
tenant for term of another's life, tenant by the curtesy, or
tenant in dower, aliens and dies. T. L.
ENTRY OF GOODS, commercial law. An entry of goods at the
custom-house is the submitting to the officers appointed by law,
who have the collection of the customs, goods imported. into the
United States, together with a statement or description of such
goods, and the original invoices of the same. The act of March 2,
1799, s. 36, 1 Story, L. U. S. 606, and the act of March 1, 1823,
3 Story, L. U. S. 1881, regulate the manner of making entries of
goods.
ENTRY, WRIT OF. The name of a writ issued for the purpose of
obtaining possession of land from one who has entered unlawfully,
and continues in possession. This is a mere possessor action, and
does not decide the right of property.
2. The writs of entry were commonly brought, where the tenant
or possessor of the land entered lawfully; that is, without
fraud or force; 13 Edw. I. c. 25; although sometimes they wer6
founded upon an entry made by wrong. The forms of these writs are
very various, and are adapted to the, title and estate of the
demandant. Booth enumerates and particularly discusses twelve
varieties. Real Actions, pp. 175-200. In general they contain an
averment of the manner in which the defendant entered. At the
common law these actions could be brought only in the degrees,
but the Statute of Marlbridge, c. 30; Rob. Dig. 147, cited as c.
29; gave a writ adapted to cases beyond the degrees, called a
writ of entry in the post. Booth, 172, 173. The denomination of
these writs by degrees, is derived from the circumstance that
estates are supposed by the law to pass by degrees from one
person to another, either by descent or purchase. Similar to this
idea, or rather corresponding with it, are the gradations of
consanguinity, indicated by the very common term pedigree. But in
reference to the writs of entry, the degrees recognized were only
two, and the writs were quaintly termed writs in the per, and
writs in the per and cui. Examples of these writs are given in
Booth on R. A. pp. 173, 174. The writ in the, per runs thus: "
Command A, that be render unto B, one messuage, &c., into which
he has not entry except (per) by &c. The writ in the per and cui
contains another gradation in the transmission of the estate, and
read thus: Command A, that he render, &c., one messuage, into
which he hath not entry but (per) by C, (cui) to whom the
aforesaid B demised it for a term of years, now expired," &c. 2
Institute, 153; Co. Litt. b, 239, a. Booth, however, makes three
degrees, by accounting the estate in the per, the second degree.
The difference is not substantial. If the estate had passed
further, either by descent or conveyance, it was said to be out
of the degrees, and to such cases the writ of entry on the.
statute of Marlbridge, only, was applicable. 3 Bl. Com. 181, 182;
Report of Com. to Revise Civil Code of Penna. January 15, 1835,
p. 85. Vide Writ of entry.
TO ENURE. To take, or have effect or serve to the use, benefit,
or advantage of a person. The word is often written inure. A
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release to the tenant for life, enures to him in reversion; that
is, it has the same effect for him as for the tenant for life. A
discharge of the principal enures to the benefit of the surety.
ENVOY, international law. In diplomatic language, an envoy is a
minister of the second rank, on whom his sovereign or government
has conferred a degree of dignity and respectability, which,
without being on a level with an ambassador, immediately follows,
and among ministers, yields the preeminence to him alone.
2. Envoys are either ordinary or extraordinary; by custom the
latter is held in greater consideration. Vattel, liv. 4, c. 6,
§72.
EPILEPSY, med. jur. A discase of the brain, which occurs in
paroxysms, with uncertain intervals between them.
2. These paroxysms are characterized by the loss of sensation,
and convulsive motions of the muscles. When long continued and
violent, this disease is very apt to end in dementia. (q. v.) It
gradually destroys the memory, and impairs the intellect, and is
one of the causes of an unsound mind. 8 Ves. 87. Vide Dig. 50,
16, 123; Id. 21, 1, 4, 5.
EPISCOPACY, eccl. law. A form of government by diocesan
bishops; the office
or condition of a bishop.
EPISTLES, civil law. The name given to a species of rescript.
Epistles were the answers given by the prince, when magistrates
submitted to him a question of law. Vicle Rescripts.
EQUALITY. Possessing the same rights, and being liable to the
same duties. See 1 Toull. No. l70, 193, Int.
2. Persons are all equal before the law, whatever adventitious
advantages some may possess over others. All persons are
protected by the law, and obedience to it is required from all.
3. Judges in court, while exercising their functions, are all
upon an equality, it being a rule that inter pares non est
potestas; a judge cannot, therefore, punish another judge of the
same court for using any expression in court, although the words
used might have been a contempt in any other person. Bac. Ab., Of
the court of sessions, of justices of the peace.
4. In contracts the law presumes the parties act upon a perfect
equality; when, therefore, one party uses any fraud or deceit to
destroy this equality, the party grieved may avoid the contract.
In case of a grant to two or more persons jointly, without
designating what each takes, they are presumed to take in equal
proportion. 4 Day, 395.
5. It is a maxim, that when the equity of the parties is equal,
the law must prevail. 3 Call, R. 259. And that, as between
different creditors, equality is equity. 4 Bouv. Inst. n. 3725;
1 Page, R. 181. See Kames on Eq. 75. Vide Deceit; Fraud.
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EQUINOX. The name given to two periods of the year when the
days and nights are equal; that is, when the space of time
between the rising and setting of the sun is one half of a
natural day. Dig. 43, 13, 1, 8. Vide Day.
EQUITABLE. That which is in conformity to the natural law.
Wolff, Inst. §83.
EQUITABLE ESTATE. An equitable estate is a right or interest in
land, which, not having the properties of a legal estate, but
being merely a right of which courts of equity will take notice,
requires the aid of such court to make it available.
2. These estates consist of uses, trusts, and powers. See 2
Bouv. Inst. n. 1884. Vide Cestui que trust; Cestui que use.
EQUITABLE MORTGAGE, Eng. law. The deposit of title-deeds, by
the owner of an estate, with a person from whom he has borrowed
money, with an accompanying agreement to execute a regular
mortgage, or by the mere deposit, without even any verbal
agreement respecting a regular security. 2 Pow. on Mort. 49 to
61; 1 Mad. Ch. Pr. 537; 4 Madd. R. 249; 1 Bro. C. C. 269; 12
Ves. 197; 3 Younge & J. 150; 1 Rus. R. 141.
2. In Pennsylvania, there is no such thing as an equitable
mortgage. 3 P. S. R; 233; 3 Penna. R. 239; 17 S. & R. 70; 1
Penna. R. 447.
EQUITY. In the early history of the law, the sense affixed to
this word was exceedingly vague and uncertain. This was owing, in
part, to the fact, that the chancellors of those days were either
statesmen or ecclesiastics, perhaps not very scrupulous in the
exercise of power. It was then asserted that equity was bounded
by no certain limits or rules, and that it was alone controlled
by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441.
2. In a moral sense, that is called equity which is founded, ex
oequo et bono, in natural justice, in honesty, and in right. In
an enlarged, legal view, "equity, in its true and genuine
meaning, is the soul and spirit of the law; positive law is
construed, and rational law is made by it. In this, equity is
made synonymous with justice; in that, to the true and sound
interpretation of the rule." 3 Bl. Com. 429. This equity is
justly said to be a supplement to the laws; but it must be
directed by science. The Roman law will furnish him with sure
guides, and safe rules. In that code will be found, fully
developed, the first principles and the most important
consequences of natural right. "From the moment when principles
of decision came to be acted upon in chancery," says Mr. Justice
Story, "the Roman law furnished abundant materials to erect a
superstructure, at once solid, convenient and lofty, adapted to
human wants, and enriched by the aid of human wisdom, experience
and learning." Com. on Eq. Jur. §23 Digest, 54.
3. But equity has a more restrained and qualified meaning. The
remedies for the redress of wrongs, and for the enforcement of
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rights, are distinguished into two classes, first, those which
are administered in courts of common law; and, secondly, those
which are administered in courts of equity. Rights which are
recognized and protected, and wrongs which are redressed by the
former courts, are called legal rights and legal injuries. Rights
which are recognized and protected, and wrongs which are
redressed by the latter courts only, are called equitable rights
and equitable injuries. The former are said to be rights and
wrongs at common law, and the remedies, therefore, are remedies
at common law; the latter are said to be rights and wrongs in
equity, and the remedies, therefore, are remedies in equity.
Equity jurisprudence may, therefore, properly be said to be that
portion of remedial justice which is exclusively administered by
a court of equity, as contradistinguished from that remedial
justice, which is exclusively administered by a court of law.
Story, Eq. §25. Vide Chancery, and the authorities there cited;
and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab. h. t.; Ayl. Pand. 37;
Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, h.
t.
EQUITY, COURT OF. A court of equity is one which administers
justice, where there are no legal rights, or legal rights, but
courts of law do not afford a complete, remedy, and where the
complainant has also an equitable right. Vide Chancery.
EQUITY OF REDEMPTION. A right which the mortgagee of an estate
has of redeeming it, after it has been forfeited at law by the
non-payment at, the time appointed of the money secured by the
mortgage to be paid, by paying the amount of the debt, interest
and costs.
2. An equity of redemption is a mere creature of a court of
equity, founded on this principle, that as a mortgage is a pledge
for securing the repayraent of a sum of money to the mortgagee,
it is but natural justice to consider the ownership of the land
as still vested in the mortgagor, subject only to the legal title
of the mortgagee, so far as such legal title is necessary to his
security.
3. In Pennsylvania, however, redemption is a legal right. 11
Serg. & Rawle, 223.
4. The phrase equity of redemption is indiscriminately, though
perhaps not correctly applied, to the right of the mortgagor to
regain his estate, both before and after breach of condition, In
North Carolina by statute the former is called a legal right of
redemption; and the latter the equity of redemption, thereby
keeping a just distinction between these estates. 1 N. C. Rev.
St. 266; 4 McCord, 340.
5. Once a mortgage always a mortgage, is a universal rule in
equity. The right of redemption is said to be as inseparable from
a mortgage, as that of replevying from a distress, and every
attempt to limit this right must fail. 2 Chan. Cas. 22; 1 Vern.
33, 190; 2 John. Ch. R. 30; 7 John. Ch. R. 40; 7 Cranch, R.
218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2
Sumner, R. 487.
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6. The right of redemption exists, not only in the mortgagor
himself, but in his heirs, and personal representatives, and
assignee, and in every other person who has an interest in, or a
legal or equitable lien upon the lands; and therefore a tenant
in dower, a jointress, a tenant by the curtesy, a remainder-man
and a reversioner, a judgment creditor, and every other
incumbrancer, unless he be an incumbrancer pendente lite, may
redeem. 4 Kent, Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611;
9 Mass. R. 422; 2 Litt. R. 334; 1 Pick. R. 485; 14 Wend. R.
233; 5 John. Ch. R. .482; 6 N. H. Rep. 25; 7 Vin. Ab. 52.
Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, Com. 148;
Pow. on Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab.
458; 2 Supp. to Ves. Jr. 368; 2 Jac. & Walk. 194, n.; 1 Hill.
Ab. c. 31; and article Stellionate.
EQUIVALENT. Of the same value. Sometimes a condition must be
literally accomplished in forma specifica; but some may be
fulfilled by an equivalent, per oequi polens, when such appears
to be the intention of the parties; as, I promise to pay you one
hundred dollars, and then die, my executor may fulfil my
engagement; for it is equivalent to you whether the money be
paid to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.
EQUIVOCAL. What has a double sense.
2. In the construction of contracts, it is a general rule that
when an expression may be taken in two senses, that shall be
preferred which gives it effect. Vide Ambiguity; Construction;
Interpretation; and Dig. 22, 1, 4; Id 45, 1, 80; Id. 50, 17,
67.
EQUULEUS. The name of a kind of rack for extorting confessions.
Encyc. Lond.
ERASURE, contracts, evidence. The obliteration of a writing;
it will render it void or not under the same circumstances as an
interlineation. (q. v.) Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4
Cruise, Dig. 368; 13 Vin. Ab. 41; Fitzg. 207; 5 Bing. R. 183;
3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R. 531; 5 M. R. 190; 2
L. R. 291 3 L. R. 56; 4 L. R. 270.
2. Erasures and interlineations are presumed to have been made
after the execution of a deed, unless the contrary be proved. 1
Dall. 67; 1 Pet. 169; 4 Bin. 1; 10 Serg. & R. 64, 170, 419;
16 Serg. & R. 44.
EREGIMUS. We have erected. In England, whenever the. right of
creating or granting a new office is vested in the king, he must
use proper words for the purpose, as eregimus, constituimus, and
the like. Bac. Ab. Offices, &c., E.
EROTIC MANIA, med. jur. A name given to a morbid activity of
the sexual propensity. It is a disease or morbid affection of the
mind, which fills it with a crowd of voluptuous images, and
hurries its victim to acts of the grossest licentiousness, in the
absence of any lesion of the intellectual powers. Vide Mania.
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ERROR. A mistake in judgment or deviation from the truth, in
matters of fact and from the law in matters of judgment.
2. - 1 Error of fact. The law has wisely provide that a person
shall be excused, if, intending to do a lawful act, and pursuing
lawful means to accomplish his object, he commit an act which
would be criminal or unlawful, if it were done with a criminal
design or in an unlawful manner; for example, thieves break into
my house, in the night time, to commit a burglary; I rise out of
my bed, and seeing a person with a drawn sword running towards my
wife, I take him for one of the burglars, and shoot him down, and
afterwards find he was one of my friends, whom, owing to the
dimness of the light, I could not recognize, who had lodged with
me, rose on the first alarm, and was in fact running towards my
wife, to rescue her from the hands of an assassin; still I am
innocent, because I committed an error as to a fact, which I
could not know, and had, no time to inquire about.
3. Again, a contract made under a clear error is not binding;
as, if the seller and purchaser of a house situated in Now York,
happen to be in Philadelphia, and, at the time of the sale, it
was unknown to both parties that the house was burned down, there
will be no valid contract; or if I sell you my horse Napoleon,
which we both suppose to be in my stable, and at the time of the
contract he is dead, the sale is void. 7 How. Miss. R. 371 3
Shepl. 45; 20 Wend. 174; 9 Shepl. 363 2 Brown, 27; 5 Conn. 71;
6 Mass. 84; 12 Mass. 36. See Sale.
4. Courts of equity will in general correct and rectify all
errors in fact committed in making deeds and contracts founded on
good considerations. See Mistake.
5. - 2. Error in law. As the law is, or which is the same
thing, is presumed to be certain and definite, every man is bound
to understand it, and an error of law will not, in general,
excuse a man, for its violation.
6. A contract made under an error in law, is in general
binding, for were it not so, error would be urged in almost every
case. 2 East, 469; see 6 John. Ch. R. 166 8 Cowen, 195; 2 Jac.
& Walk. 249; 1 Story, Eq. Jur. 156; 1 Younge & Coll. 232; 6 B.
& C. 671 Bowy. Com. 135; 3 Sav. Dr. Rom. App. viii. But a
foreign law will for this purpose be considered as a fact. 3
Shepl. 45; 9 Pick. 112; 2 Ev. Pothier, 369, &c. See, also,
Ignorance; Marriage; Mistake.
7. By error, is also understood a mistake made in the trial of
a cause, to correct which a writ of error may be sued out of a
superior court.
ERROR, WRIT OF. A writ of error is one issued from a superior
to an inferior court, for the purpose of bringing up the record
and correcting an alleged error committed in the trial in the
court below. But it cannot deliver the body from prison. Bro.
Abr. Acc. pl. 45. The judges to whom the writ is directed have no
power to return the record nisi judicium inde redditum sit. Nor
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can it be brought except on the final judgment. See Metcalf's
Case, 11 Co. Rep. 38, which is eminently instructive on this
subject. Vide Writ of Error.
ESCAPE. An escape is tho deliverance of a person who is
lawfully imprisoned, out of prison, before such a person is
entitled to such deliverance by law. 5 Mass. 310.
2. It will be proper to consider, first, what is a lawful
imprisonment; and, secondly, the different kinds of escapes.
3. When a man is imprisoned in a proper place under the process
of a court having jurisdiction in the case, he is lawfully
imprisoned, notwithstanding the proceedings may be irregular;
but if the court has not jurisdiction the imprisonment is
unlawful, whether the process be regular or otherwise. Bac. Ab.
Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1
Cowen, 309 8 Cowen, 192; 1 Root, R. 288.
4. Escapes are divided into voluntary and negligent; actual or
constructive; civil and criminal and escapes on mesne process
and execution.
5. - 1. A voluntary escape is the giving to a prisoner,
voluntarily, any liberty not authorized by law. 5 Mass . 310; 2
Chipm. 11. Letting a prisoner confined under final process, out
of prison for any, even the shortest time, is an escape, although
he afterwards return; 2 Bl. Rep. 1048; 1 Roll. Ab. 806; and
this may be, (as in the case of imprisonment under a ca. sa.)
although an officer may accompany him. 3 Co. 44 a Plowd. 37;
Hob. 202; 1 Bos. & Pull. 24 2 Bl. Rep. 1048.
6. The effect of a voluntary escape in a civil case, when the
prisoner is confined under final process, is to discharge the
debtor, so that he cannot be retaken by the sheriff; but he may
be again arrested if he was confined only on mesne process. 2 T.
R. 172; 2 Barn. & A. 56. And the plaintiff may retake the
prisoner in either case. In a criminal case, on the contrary, the
officer not only has a right to recapture his prisoner, but it is
his duty to do so. 6 Hill, 344; Bac. Ab. Escape in civil cases,
C.
7. - 2. A negligent escape takes place when the prisoner goes
at large, unlawfully, either because the building or prison in
which he is confined is too weak to hold him, or because the
keeper by carelessness lets him go out of prison.
8. The consequences of a negligent escape are not so favorable
to the prisoner confined under final process, as they are when
the escape is voluntary, because in this case, the prisoner is to
blame. He may therefore be retaken.
9. - 3. The escape is actual, when the prisoner in fact gets
out of prison and unlawfully regains his liberty.
10. - 4. A constructive escape takes place when the prisoner
obtains more liberty than the law allows, although he still
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remains in confinement The following cases are examples of such
escapes: When a man marries his prisoner. Plowd. 17; Bac. Ab.
Escape, B 3. If an underkeeper be taken in execution, and
delivered at the prison, and neither the sheriff nor any
authorized person be there to receive him. 5 Mass. 310. And when
the keeper of a prison made one of the prisoners confined for a
debt a turnkey, and trusted him with the keys, it was held that
this was a constructive escape. 2 Mason, 486.
11. Escapes in civil cases are, when the prisoner is charged in
execution or on mesne process for a debt or duty, and not for a
criminal offence, and he unlawfully gains his liberty. In this
case, we have seen, the prisoner may be retaken, if the escape
have not been voluntary; and that he may be retaken by the
plaintiff when the escape has taken place without his fault,
whether the defendant be confined in execution or not; and that
the sheriff may retake the prisoner, who has been liberated by
him, when he was not confined on final process.
12. Escapes in criminal cases take place when a person lawfully
in prison, charged with a crime or under sentence, regains his
liberty unlawfully. The prisoner being to blame for not
submitting to the law, and in effecting his escape, may be
retaken whether the escape was voluntary or not. And he may be
indicted, fined and imprisoned for so escaping. See Prison.
13. Escape on mesne process is where the prisoner is not
confined on final process, but on some other process issued in
the course of the proceedings, and unlawfully obtains his
liberty, such escape does not make the officer liable, provided
that on the return day of the writ, the prisoner is forthcoming.
14. Escape on final process is when the prisoner obtains his
liberty unlawfully while lawfully confined, and under an
execution or other final decree. The officer is then, in general,
liable to the plaintiff for the amount of the debt.
ESCAPE, WARRANT. A warrant issued in England against a person
who being charged in custody in the king's bench or Fleet prison,
in execution or mesne process, escapes and goes at large. Jacob's
L. D. h. t.
ESCHEAT, title to lands. According to the English law, escheat
denotes an obstruction of the course of descent, and a consequent
determination of the tenure, by some unforeseen contingency; in
which case the land naturally results back, by a kind of
reversion, to the original grantor, or lord of the fee.. 2 Bl.
Com. 244.
2. All escheats, under the English law, are declared to be
strictly feudal, and to import the extinction of tenure. Wright
on Ten. 115 to 117; 1 Wm. Bl. R. 123.
3. But as the feudal tenures do not exist in this country,
there are no private persons who succeed to the inheritance by
escheat. The state steps in, in the place of the feudal lord, by
virtue of its sovereignty, as the original and ultimate
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proprietor of all the lands within its jurisdiction. 4 Kent, Com.
420. It seems to be the universal rule of civilized society, that
when the-deceased owner has left no heirs, it should vest in the
public, and be at the disposal of the government. Code, 10, 10,
1; Domat, Droit Pub. liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab.
139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. 156; 2 Tuck. Blacks.
244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24;
Jones on Land Office Titles in Penna. 5, 6, 93. For the rules of
the Roman Civil Law, see Code Justinian, book 10.
ESCHEATOR. The name of an officer whose duties are generally to
ascertain what escheats have taken place, and to prosecute the
claim of the commonwealth for the purpose of recovering the
escheated property. Vide 10 Vin. Ab. 158.
ESCROW, conveyancing, contracts. A conditional delivery of a
deed to a stranger, and not to the grantee himself, until certain
conditions shall be performed, and then it is to be delivered to
the grantee. Until the condition be performed and the deed
delivered over, the estate does not pass, but remains in the
grantor. 2 Johns. R. 248; Perk. 137, 138.
2. Generally, an escrow takes effect from the second delivery,
and is to be considered as the deed of the party from that time;
but this general rule does not apply when justice requires a
resort to fiction. The relation back to the first delivery, so as
to give the deed effect from that time, is allowed in cases of
necessity, to avoid injury to the operation of the deed, from
events happening between the first and second delivery. For
example, when a feme sole makes a deed and delivers it as an
escrow, and then marries before the second delivery, the relation
back to the time when she was sole, is necessary to render the
deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 Kent,
Com. 446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig.
Fait, A 3; 13 Vin. Ab. 29; 5 Mass. R. 60; 2 Root, R. 81; 5
Conn. R. 113; 1 Conn. R. 375; 6 Paige's R. 314; 2 Mass. R.
452; 10 Wend. R. 310; 4 Green]. R. 20; 2 N. H. Rep. 71; 2
Watts', R. 359; 13 John. R. 285; 4 Day's R. 66; 9 Mass. R. 310
1 John. Cas. 81; 6 Wend. R. 666; 2 Wash. R. 58; 8 Mass. R.
238; 4 Watts, R. 180; 9 Mass. Rep. 310; 2 Johns. Rep. 258-9;
13 Johns. Rep. 285; Cox, Dig. tit, Escrow; Prest. Shep. Touch.
56, 57, 58; Shep. Prec. 54, 56; 1 Prest. Abst. 275; 3 Prest.
Ab. 65; 3 Rep. 35; 5 Rep. 84.
ESCUAGE, old Eng. law. Service of the shield. Tenants who hold
their land by escuage, hold by knight's service. 1 Tho. Co. Litt.
272; Littl. s. 95, 86 b.
ESNECY. Eldership. In the English law, this word signifies the
right which the eldest coparcener of lands has to choose one of
the parts of the estate after it has been divided.
ESPLEES. The products which the land or ground yields; as the
hay of the meadows, the herbage of the pasture, corn or other
produce of the arable, rents and services. Termes de la Ley; see
11 Serg. & R. 2-5; Dane's Ab. Index, h. t.
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ESPOUSALS, contracts. A mutual promise between a man and a
woman to marry each other, at some other time: it differs from a
marriage, because then the contract is completed. Wood's Inst.
57; vide Dig. 23, 1, 1; Code, 5, 1, 4; Novel, 115, c. 3, s.
11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. 1, t. 6, c. 1, §1.
ESQUIRE. A title applied by courtesy to officers of almost
every description, to members of the bar, and others. No one is
entitled to it by law, and, therefore, it confers, no distinction
in law.
2. In England, it is a title next above that of a gentleman,
and below a knight. Camden reckons up four kinds of esquires,
particularly regarded by the heralds: 1. The eldest sons of
knights and their eldest sons, in perpetual succession. 2. The
eldest sons of the younger sons of peers, and their eldest sons
in like perpetual succession. 3. Esquires created by the king's
letters patent, or other investiture, and their eldest sons. 4.
Esquires by virtue of their office, as justices of the peace, and
others who bear any office of trust under the crown.
ESSOIN, practice. An excuse which a party bound to be in court
on a particular day, offers for not being there. 1 Sell. Pr. 4;
Lee's Dict. h. t.
2. Essoin day is the day on which the writ is returnable. It is
considered for many purposes as the first day of the term. 1 T.
R. 183. See 2 T. R. 16 n.; 4 Moore's R. 425. Vide Exoine.
ESTABLISH. This word occurs frequently in the Constitution of
the United $tates, and it is there used in different meanings. 1.
To settle firmly, to fix unalterably; as, to establish justice,
which is the avowed object of the constitution. 2. To make or
form as, to establish an uniform rule of naturalization, and
uniform laws on the subject of bankruptcies, which evidently does
not mean that these laws shall be unalterably established as
justice. 3. To found, to create, to regulate; as, congress shall
have power to establish post roads and post offices. 4. To found,
recognize, confirm or admit; as, congress shall make no law
respecting an establishment of religion. 5. To create, to ratify,
or confirm; as, we, the people, &c., do ordain and establish
this constitution, 1 Story, Const. §454.
ESTADAL, Spanish law. In Spanish America, this was a measure of
land of sixteen square varas or yards. 2 White's Coll. 139.
ESTATE. This word his several meanings: 1. In its most
extensive sense, it is applied to signify every thing of which
riches or, fortune may consist and includes personal and real
property; hence we say personal estate, real estate. 8 Ves. 504.
2. In its more limited sense, the word estate is applied to
lands, It is so applied in two senses. The first describes or
points out the land itself, without ascertaining the extent or
nature of the interest therein; as "my estate at A." The second,
which is the proper and technical meaning of estate, is the
degree, quantity, nature and extent of interest which one has in
real property; as, an estate in fee, whether the same be a fee
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simple or fee tail; or an estate for life or for years, &c. Lord
Coke says: Estate signifies such inheritance, freehold, term of
years, tenancy by statute merchant, staple, eligit, or the like,
as any man hath in lands or tenements, &c. Co. Lit. §650, 345 a.
See Jones on Land Office Titles in Penna. 165-170.
2. In Latin, it is called status, because it signifies the
condition or-circumstances in which the owner stands with regard
to his property..
3. Estates in land may be considered in a fourfold view with
regard, 1. To the quantity of interest which the tenant has in
the tenement. 2. To the time during which that quantity of
interest is to be enjoyed. 3. To the number and connexion of the
tenants. 4. To what conditions may be annexed to the estate.
4. - 1. The quantity of interest which the tenant has in his
tenement is measured by its duration and extent. An estate,
considered in this point of view, is said to be an estate of
freehold, and an estate less than freehold.
5.- §1. Freehold estates are of inheritance and not of
inheritance. An estate in fee, (q. v.) which is the estate most
common in this country, is a freehold estate of inheritance.
Estates of freehold not of inheritance, are the following:
6. - 1st. Estates for life. An estate for life is a freehold
interest in lands, the duration of which is confined to the life
or lives of some particular person or persons, or to the
happening or not happening of some uncertain event.
7. Estates for life are divided into conventional or legal
estates. The first created by the act of the parties, and the
second by operation of law.
8. - 1. Life estates may be created by express words; as, if A
conveys land to B, for the term of his natural life; or they may
arise by construction of law, as, if A conveys land to B, without
specifying the term or duration, and without words of limitation.
In the last case, B cannot have an estate in fee, according to.
the English law, and according to the law of those parts of the
United States which have adopted and not altered the common law
in this particular, but he will take the largest estate which can
possibly arise from the grant, and that is an estate for life.
Co. Litt. 42, a. So a conveyance " to I M, and his generation, to
endure as long as the waters of the Delaware should run," passes
no more than a life estate. 3 Wash. C. C. Rep. 498. The life
estate may be either for a man's own life, or for the life of
another person, and in this last case it is termed an estate per
autre vie. There are some estates for life, which may depend upon
future contingencies, before the death of the person to whom they
are granted; for example, an estate given to a woman dum sola
fuerit, or durante viduitate, or to a man and woman during
coverture, or as long as the grantee shall dwell in a particular
house, is determinable upon the happening of the event. In the
same manner, a house usually worth one hundred dollars a year,
may be granted to a person still he shall have received one
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thousand dollars; this will be an estate for life, for as the
profits are uncertain, and may rise or fall, no precise time can
be fixed for the determination of the estate. On the contrary,
where the time is fixed, although it may extend far beyond any
life, as a terw for five hundred years, this does not create a
life estate.
9. - 2. The estates for life created by operation of law, are,
1st. Estates tail after possibility of issue extinct. 2d. Estates
by the curtesy. 3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit.
3; 4 Kent, Com. 23; 1 Brown's Civ. Law, 191; 2 Bl. Com. 103.
The estate for life is somewhat similar to the usufruct (q. v.)
of the civil law.
10. The incidents to an estate for life, are principally the
following: 1. Every tenant for life, unless restrained by
covenant or agreement, may of common right take upon the land
demised to him reasonable estovers or bote's. Co. Litt. 41.
11. - 2. The tenant for life, or his representatives, shall not
be pre-judiced by any sudden determination of his estate, because
such determination is contingent or uncertain. Co. Litt. 55.
12. - 3. Under tenants or lessees of an estate for life, have
the same, and even greater indulgences than the lessors, the
original tenants for life; for when the tenant for life shall
not have the emblements, because the estate determines by his own
act, the exception shall not reach his lessee, who is a third
person. l Roll. Ab. 727 2 Bl. Com. 122.
13. - 2d. Estates by the curtesy. An estate by the curtesy is
an estate for life, created by act of law, which is defined as
follows: When a man marries a woman, seised at any time during
the coverture of an estate of inheritance, in severalty, in
coparcenary, or in common, and has issue by her born alive, and
which migbt by possibility inherit the same estate as heir to the
wife, and the wife dies in the lifetime of the hushand, he holds
the lands during, his life by the curtesy of England, and it is
immaterial whether the issue be living at the time of the seisin,
or at the death of the wife, or whether it was born before or
after the seisin. Litt. s. 35; Co. Litt. 29, b; 8 Co. 34. By
Act of Asserably of Pennsylvania, the birth of issue is not
necessary, in all cases where the issue, if any, would have
inherited.
14. There are four requisites indispensably necessary to the
existence of this estate: 1. Marriage. 2. Seisin of the wife,
which must have been seisin in deed, and not merely seisin in
law; it seems, however, that the rigid rules of the common law,
have been relayed, in this respect, as to what is sometimes
called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death of the
wife.
15. - 1. The marriage must be a lawful marriage; for a void
marriage does not entitle the hushand to the curtesy; as if a
married man were to marry a second wife, the first being alive,
he would not be entitled to the curtesy in such second wife's
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estate. But if the marriage had been merely voidable, he would be
entitled, because no marriage, merely voidable, can be annulled
after the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.
16. - 2. The seisin of the wife must, according to the English
law, be a seisin in deed; but this strict rule has been somewhat
qualified by circumstances in this country. Where the wife is
owner of wild uncultivated land, not held adversely, she is
considered as seised in fact, and the hushand is entitled to his
curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 Munf. 162 1
Stow. 590. When the wife's state is in reversion or remainder,
the hushand is not, in general, entitled to the curtesy, unless
the particular estate is elided during coverture. Perk. s. 457,
464; Co. Litt. 20, a; 3 Dev. R. 270; 1 Sumn. 263; but see 3
Atk. 469; 7 Viner, Ab. 149, pl. 11. The wife's seisin must have
been such as to enable her to inherit. 5 Cowen, 74.
17. - 3. The issue of the marriage, to entitle the hushand to
the curtesy, must possess the following qualifications: 1. Be
born alive. 2. In the lifetime of the mother. 3. Be capable of
inheriting the estate.
18. - 1st. The issue must be born alive. As to what will be
considered life, see Birth; Death; Life.
19. - 2d. The issue must be born in the lifetime of the mother;
and if the child be born after the death of the mother, by the
performance of the Caesarian operation, the hushand will not be
entitled to the curtesy; as there was no issue born at the
instant of the wife's death, the estate vests immediately on the
wife's death to the child, in ventre sa mere, and the estate
being once vested, it cannot be taken from him. Co. Litt. 29, b.;
8 Co. Rep., 35, a. It is immaterial whether the issue be born
before or after the seisin of the wife. 8 Co. Rep. 35, b.
20. - 3d. The issue must be capable of inheriting the estate;
When, for example, lands are given to a woman and the heirs male
of her body, and she has a daughter, this issue will not enable
lier hushand to take his curtesy. Co. Litt. 29, a.
21. - 4th. The death of the wife is requisite to make the
estate by the curtesy complete.
22. This estate is generally prevalent in the United States;
in some of them it has received a modification. In Pennsylvania
the right of the hushand takes place although there be no issue
of the marriage, in all cases where the issue, if any, would have
inherited. In Vermont, the title by curtesy has been laid under
the equitable restriction of existing only in the event that the
children of the wife entitled to inherit, died within age and
without children in South Carolina, tenancy by the curtesy, eo
nomine, has ceased by the provisions of an act passed in 1791,
relative to the distribution of intestates estates, which gives
to the hushand surviving his wife, the same share of her real
estate, as she would have taken out of his, if left a widow, and
that is one moiety, or one-third of it in fee, according to
circumstances. In Georgia, tenancy by the curtesy does not exist,
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because, since 1785, all marriages vest the real, equally with
the personal estate, in the hushand. 4 Kent, Com. 29. In
Louisiana, where the common Iaw has not been adopted in this
respect, this estate is unknown.
23. This estate is not peculiar to the English law, as
Littleton erroneously supposes; Litt. s. 35; for it is. to be
found, with some modifications, in the ancient laws of Scotland,
Ireland, Normandy and Germany. In France there were several
customs, which gave a somewhat similar estate to the surviving
hushand, out of the wife's inheritances. Merlin, Repert. mots
Linotte, et Quarte de Conjoint pauvre.
24. - 3d. Estate in dower. Dower is an estate for life which
the law gives the widow in the third part of the lands and
tenements, or hereditaments of which the hushand was solely
seised, at any time during the coverture, of an estate in fee or
in tail, in possession, and to which estate in the lands and
tenements the issue, if any of such widow, might, by possibility,
have inherited. In Pennsylvania, the sole seisin of the. hushand
is not necessary. Watk. Prin. Con. 38; Lit. §36; Act of Penna.
March 31, 1812.
25. To create a title to the dower, three things are
indispensably requisite: 1. Marriage. This must be a marriage not
absolutely void, and existing at the death of the hushand; a
wife de facto, whose marriage is voidable by decree, as well as a
wife de jure, is entitled to it; and the wife shall be endowed,
though the marriage be within the age of consent, and the hushand
dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud.
22; Cruise, Dig. t. 6, c. 2, s, 2, et seq.
26. - 2. Seisin. The hushand must have been seised, some time
during the coverture, of the estate of which the wife is dowable.
Co. Litt. 31, a. An actual seisin is not indispensable, a seisin
in law is sufficient. As to the effect of a transitory seisin,
see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. Litt. 31, a.
27. - 3. Death of the hushand. This must be a natural death;
though there are authorities which declare that a civil death
shall have the same effect. Cruise, Dig. tit. 6, ch. 2, §22.
Vide, generally, 8 Vin. Ab. 210; Bac. Ab. Dower; Com. Dig.
Dower; Id. App. tit. Dower; 1 Supp. to. Ves. jr. 173, 189; 2
Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 291;
2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr.
200; 4 Kent, Com. 35; Amer. Dig. h. t.; Pothier, Traite du
Douaire; 1 Swift's Dig. 85; Perk. 300, et seq.
28. - 4th. Estate tail after possibility of issue extinct. By
this awkward, but perhaps necessary periphrasis, justified by Sir
William Blackstone, 2 Com. 124, is meant the estate which is thus
described by Littleton, §32 when tenements are given to a man and
his wife in special tail, if one of them die without issue, the
survivor is tenant in tail after possibility of issue extinct."
29. This estate though, strictly speaking, not more than an
estate for life, partakes in some circumstances of the nature of
Bouvier's Law Dictionary : E1 : Page 37 of 79
an estate tail. For a tenant in tail after possibility of issue
extinct, has eight qualities or privileges in common with a
tenant in tail. 1. He is dispunishable for waste. 2. He is not
compellable to attorn. 3. He shall not have aid of the person in
reversion. 4. Upon his alienation no writ of entry in consimili
casu lies. 5. After his death, no writ of intrusion lies. 6. He
may join the mise in a writ of right in a special manner. 7. In a
praecipe brought by him he shall not name himself tenant for
life. 8. In a praecipe brought against him, he shall not be named
barely tenant for life.
30. There are, however, four qualities annexed to this estate,
which prove it to be, in fact, only an estate for life. 1. If
this tenant makes a feoffment in fee, it is a forfeiture. 2. If
an estate tail or in fee descends upon him, the estate tail after
possibility of issue extinct is merged. 3. If he is impleaded and
makes default, the person in reversion shall be received, as upon
default of any other tenant for life. 4. An exchange between this
tenant and a bare tenant for life, is good; for, with respect to
duration, their. estates are equal. Cruise, Dig. tit. 4; Tho.
Co. Litt. B. 2, c. 17; Co. Lit. 28, a.
31. Nothing but absolute impossibility of having issue, can
give rise to this estate. Thus if a person gives lands to a man
and his, wife, and to the heirs of their two bodies, and they
live to a hundred years, without having issue, yet they are
tenants in tail; for the law' sees no impossibility of their
having issue, until the death of one of them. Co. Litt. 28, a.
See Tenant in tail after possibility of issue extinct.
32. - §2. An estate less than freehold is an estate which is
not in fee, nor for life; for although a man has a lease for a
thousand years, which is much longer than any life, yet it is not
a freehold, but a mere estate for years, which is a chattel
interest. Estates less than freehold are estates for years,
estates at will, and estates at sufferance.
33. - 1. An estate for years, is one which is created by a
leas; for years, which is a contract for the posspssion and
profits of land for a determinate period, with the recompense of
rent; and it is deemed an estate for years, though the number of
years should exceed the ordinary limits of human life; and it is
deemed an estate for years though it be limited to less than a
single year. It is denominated a term, because its duration is
absolutely defined.
34. An estate for life is bigher than an estate for years,
though the latter should be for a thousand years. Co. Litt. 46,
a; 2 Kent, Com. 278; 1 Brown's Civ. Law, 191; 4 Kent, Com. 85;
Cruise's Dig. tit. 8; 4 Rawle's R. 126; 8 Serg. & Rawle, 459;
13 Id. 60; 10 Vin. Ab. 295, 318 to 325.
35. - 3. An estate at will is not bounded by any definite
limits with respect to time; but as it originated in mutual
agreement, so it depends upon the concurrence of both parties. As
it depends upon the will of both, the dissent of either may
determine it. Such an estate or interest cannot, consequently, be
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the subject of conveyance to a stranger, or of transmission to
representatives. Watk. Prin. Con. 1; Litt. §68.
36. Estates at will have become infrequent under the operation
of judicial decisions. Where no certain term is agreed on, they
are now construed to be tenancies from year to year, and each
party is bound to give reasonable notice of an intention to
terminate the estate. When the tenant holds over by consent
given, either expressly or by implication, after the
determination of a lease for years, it is held evidence of a new
contract, without any definite period, and is construed. to. be a
tenancy from year to year. 4 Kent, Com. 210; Cruise, Dig. tit.
9, c . 1.
37.-3. An estate at sufferance. The session of land by lawful
title, but holds over by wrong after the determination of his
interest. Co. Litt. 57, b. He has a bare naked possession, but no
estate which he can transfer or transmit, or which is capable of
enlargement by. release, for he stands in no privity to his
landlord.
38. There is a material distinction between the case of a
person coming to an estate by act of the party, and afterwards
holding over, and by act of the law and then holding over. In the
first case, he is regarded as a tenant at sufferauce; and in the
other, as an intruder, abator, and trespasser. Co. Litt. 57, b;
2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. &
Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.
39. - II. As to the time of their enjoyment, estates are
considered either in possession, (q. v.) or expectancy. (q. v.)
The latter are either remainders, (q. v.) which are created, by
the act of the parties, and these are vested or contingent, or
reversions, (q, v.) created by act of law.
40. - III. An estate way be holden in a variety of ways the
most common of which are, 1. In severalty. 2. In joint tenancy.
3. In common. 4. In coparcenary. These will be separately
considered.
41. - 1. dn estate in severally, is where only one tenant holds
the estate in his own right, without any other person being
joined or connected with him, in point-of interest, during the
continuance of his estate.
42. - 2. dn estate in joint tenancy, is where lands or
tenements are granted to two or more persons, to hold in fee
simple, fee tail, for life, for years, or at will. 2 Bl. Com.
179. Joint tenants always take by purchase, and necessarily have
equal shares; while tenants in common, also coparceners,
claiming under ancestors in different degrees, may have unequal
shares and the proper and best mode of creating an estate in
joint tenancy, is to limit to A B and C D, and their assigns, if
it be an estate for life; or to A B and C D, and their heirs, if
in) fee. Watk. Prin. Con. 86.
43. The creation of the estate depends upon the expression in
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the deed or devise, by which the tenants hold, for it must be
created by the acts of the parties, and does not result from the
operation of law. Thus, an estate given to a number of persons,
without any restriction or explanation, will be construed a joint
tenancy; for every part of the grant can take effect only, by
considering the estate equal in all, and the union of their names
gives them a name in every respect.
44. The properties of this estate arise from its unities;
these are, 1. Unity of title; the estate must have been created
and derived from one and the same conveyance. 2. There must be a
unity of time; the estate must be created and vested at the same
period. 3. There must be a unity of interest; the estate must be
for the same duration, and for the same quantity of interest. 4.
There must be a unity of possession; all the tenants must
possess and enjoy at the same time, for each must have an entire
possession of every parcel, as of the whole. One has not
possession of one-half, and another of the other half, but each
has an undivided moiety of the whole, and not the whole of an
undivided moiety.
45. The distinguishing incident of this estate, is the right of
survivorship, or jus accrescendi; at common law, the entire
tenancy or estate, upon the death of any of the joint tenants,
went to the survivors, and so on to the last survivor, who took
an estate of inheritance. The right of survivorship, except,
perhaps, in estates held in trust, is abolished in Pennsylvania,
New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, North
and-South Carolina, Georgia, and Alabama. Griffith's Register, h.
t. In Connecticut it never was recognized. 1 Root, Rep. 48; 1
Swift's Digest, 102. Joint tenancy may be destroyed by destroying
any of its constituent unities, except that of time. 4 Kent, Com.
359. Vide Cruise, Dig. tit. 18; 1 Swift's Dig. 102; 14 Vin. Ab.
470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4; 1 Vern.
353,; Com. Dig. Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl.
Com. 181; 1 Litt. see. 304 2 Woodd. Lect. 127; 2 Preston on
Abst. 67; 5 Binn. Rep . 18; Joint tenant; Survivor; Entirety.
46. - 3. An estate in common, is one which is held by two or
more persons by
unity of possession.
47. They may acquire their estate by purchase, and hold by
several and distinct titles, or by title derived at the same
time, by the same deed or will; or by descent. In this respect
the American law differs from the English common law.
48. This tenancy, according to the common law, is created by
deed or will, or by change of title from joint tenancy or
coparcenary; or it arises, in many cases, by construction of
law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. 192; 2 Prest. on
Abstr. 75.
49. In this country it maybe created by descent, as well as by
deed or will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com.
Dig. Estates by Grant, K 8.
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50. Estates in common can be dissolved in two ways only;
first, by uniting all the titles and interests in one tenant
secondly, by making partition.
51. - 4. An estate in coparcenary, is an estate of inheritance
in lands which descend from the ancestor to two or more persons
who are called coparceners or parceners.
52. This is usually applied, in England, to cases where lands
descend to females, when there are no male heirs.
53. As in the several states, estates generally descend to all
the children equally, there is no substantial difference between
coparceners and tenants in common. The title inherited by more
persons than one, is, in some of the states, expressly declared
to be a tenancy in common, as in New York and New Jersey, and
where it is not so declared the effect is the same; the
technical distinction between coparcenary and estates in common
may be considered as essentially extinguished in the United
States. 4 Kent, Com. 363. Vide Estates.
54. - IV. An estate upon condition is one which has a
qualification annexed to it by which it may, upon the happening
or not happening of a particular event, be created, or enlarged,
or destroyed. Conditions may be annexed to estates in fee, for
life, or for years. These estates are divided into estates upon
condition express, or in deed; and upon conditions implied, or
in law.
55. Estates upon express conditions are particularly mentioned
'in the contract between the parties., Litt. s. 225; 4 Kent,
Com. 117; Cruise, Dig. tit. 13.
56. Estates upon condition in law are such as have a condition
impliedly annexed to them, without any condition being specified
in the deed or will. Litt. s. 378, 380; Co. Litt. 215, b; 233,
b; 234, b.
57. Considered as to the title which may be had in them,
estates are legal and equitable. 1. A legal estate is one, the
right to which can be enforced in a court of law. 2. An
equitable, is a right or interest in land, which not having the
properties of a legal estate, but being merely a right of which
courts of equity will take notice, require the aid of such a
court to, make it available. See, generally, Bouv. Inst. Index,
h. t.
ESTER EN JUGEMENT, French law. Stare in judicio. To appear
before a tribunal either as plaintiff or defendant.
ESTIMATION OF VALUES. As the value of most things is variable,
according to circumstances, the law in many cases determines the
time at which the value of a thing should be taken; thus, the
value of an advancement, is to be taken at the time of the gift.
1 Serg. & R. 425. Of a gift in frank-marriage, at the time of
partition between the parceners, and the bringing of the gift in
frank-marriage into hotchpot. But this is a case sui generis. Co.
Bouvier's Law Dictionary : E1 : Page 41 of 79
Lit. §273; 1 Serg. & R. 426. Of the yearly value of properties;
at the time of partition. Tho. Co. Lit. 820. Of a bequest of so
pieces of coin; at the time of the will made. Godolph, 0. L.
273, part 3, chap. 1. §3. Of assets to make lineal warranty a
bar; at the time of the descent. Co. Lit. 374, b. Of lands
warranted; at the time of the warranty. Beames' Glanv. 75 n.; 2
Serg. & Rawle, 444, see Eviction 2. Of a ship lost at sea; her
value is to be taken at the port from which she sailed, deducting
one-fifth; 2 Serg. & Rawle, 258; 1 Caines, 572; 2 Condy.
Marshall, 545; but different rules prevail on this subject in
different nations. 2 Serg. & R. 259. Of goods lost at sea; their
value is to be taken at the port of delivery. 2 Serg. & R. 257.
The comparative value of a life estate, and the remainder in fee,
is one-third for the life and two-thirds for the remainder in
fee; and moneys due upon a mortgage of lands devised to one for
life, and the remainder in fee to another, are to be apportioned
by the same rule. 1 Vern. 70; 1 Chit. Cas. 223, 224, 271;
Francis' Max. 3, §12, and note. See Exchange, 3-2.
ESTOPPEL, pleading. An estoppel is a preclusion, in law, which
prevents a man from alleging or denying a fact, in consequence o
his own previous act, allegation or denial of a contrary tenor.
Stepb. Pl. 239. Lord Coke says, " an estoppel is, when a man is
concluded by his own act or acceptance, to say the truth." Co.
Litt. 352, a. And Blackstone defines "an estoppel to be a special
plea in bar, which happens where a man has done some act, or
executed some deed, which estops or precludes him from averring
any thing to the contrary. 3 Cora. 308. Estoppels are odious in
law; 1 Serg. & R. 444; they are not admitted in equity against
the truth. Id. 442. Nor can jurors be estopped from saying the
truth, because they are sworn to do so, although they are
estopped from finding against the admission of the parties in
their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. &
Ald. 662; Angel on Water Courses, 228-9. See Co. Litt. 352, a,
b, 351, a. notes.
2. An estoppel may, arise either from matter of record; from
the deed of the party; or from matter in Pays; that is, matter
of fact.
3. Thus, any confession or admission made in pleading, in a
court of record, whether it be express, or implied from pleading
over without a traverse, will forever preclude the party from
afterwards contesting the same fact in any subsequent suit with
his adversary. Com. Dig. Estoppel, A 1. This is an estoppel by
matter of record.
4. As an instance of an estoppel by deed, may be mentioned the
case of a bond reciting a certain fact. The par