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

  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

   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

   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

  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.

   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

  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

   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

   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

   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

  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

   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,

   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.

   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

   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

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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

   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,

   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.

   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

   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,

  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,

   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

         Bouvier's Law Dictionary : E1 : Page 33 of 79

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

   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

   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

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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

   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

  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.

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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 party executing that
bond, will  be precluded  from afterwards  denying in  any action
brought upon  that instrument,  the fact  , so recited. 5 Barn. &
Ald. 682.

   5. An example of an estoppel by matter in pays occurs when one
man Las  accepted rent  of another.  He  will  be  estopped  from
afterwards. denying,  in any  action, with  that person,  that he
was, at  the time  of such  acceptance,  his  tenant.  Com.  Dig.
Estoppel, A 3 Co. Litt. 352, a.

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   6. This  doctrine of law gives rise to a kind of pleading that
is neither  by way  of traverse,  nor confession.  and avoidance:
viz. a  pleading, that,  waiving any  question  of  fact,  relies
merely on  the estoppel,  and, after  stating the  previous  act,
allegation, or  denial, of the opposite party, prays judgment, if
he shall  be received  or admitted  to aver  contrary to  what he
before did  or said.  This pleading  is called pleading by way of
estoppel. Steph. 240a

  7. Every estoppel ought to be reciprocal, that is, to bind both
parties: and  this is  the reason that regularly a stranger shall
neither take  advantage or  be bound by an estoppel. It should be
directly  affirmative,  and  not  by  inference  nor  against  an
estoppel. Co.  Lit. 352,  a, b;   1  R. 442-3;  9 Serg. & R. 371,
430;   4 Yeates'  38 1  Serg. & R. 444;  Corn. Dig. Estoppel, C 3
Johns. Cas.  101;  2 Johns. R. 382;  8 W. & S. 135;  2 Murph. 67;
4 Mont.  370. Privies in blood, privies in estate, and privies in
law, are bound by, and may take advantage of estoppels. Co. Litt.
352;   2 Serg.  & Rawle,  509;   6 Day,  R. 88. See the following
cases relating  to estoppels  by;   Matter of  record: 4 Mass. R.
625;  10 Mass. R. 155;  Munf. R. 466;  3 East, R. 354;  2 Barn. &
Ald. 362, 971;  17 Mass. R. 365;  Gilm. R. 235;  5 Esp. R. 58;  1
Show. 47;   3  East, R. 346. Matter of writing: 12 Johns. R. 347;
5 Mass.  R. 395;  Id. 286;  6 Mass. R. 421;  3 John. Cas. 174;  5
John. R.  489;  2 Caines' R. 320;  3 Johns. R. 331;  14 Johns. R.
193;   Id. 224;  17 Johns. R. 161;  Willes, R. 9, 25;  6 Binn. R.
59;   1 Call,  R. 429;   6 Munf. R. 120;  1 Esp. R. 89;  Id. 159;
Id. 217;   1  Mass. R.  219. Matter in pays: 4 Mass. R. 181;  Id.
273 15  Mass. R.  18;   2 Bl. R. 1259;  1 T. R. 760, n.;  3 T. R.
14;   6 T.  R. 62;   4  Munf. 124;  6 Esp. R. 20;  2 Ves. 236;  2
Camp. R. 844;  1 Stark. R. 192. And see, in general, 10 Vin. Abr.
420, tit.  Estoppel;   Bac. Abr. Pleas, 111;  Com. Dig. Estoppel;
Id. Pleader,  S 5;   Arch.  Civ. Pl. 218;  Doct. Pl. 255;  Stark.
Ev. pt.  2, p.  206, 302;   pt.  4, p.  30;  2 Smith's Lead. Cas.
417-460. Vide Term.

   ESTOVERS, estates.  The right of taking necessary wood for the
use or  furniture of  a house or farm, from off another's estate.
The word  bote is used synonymously with the word estovers. 2 Bl.
Com. 35;  Dane's Ab. Index, h. t.;  Woodf. L. & T. 232;  10 Wend.
639;  2 Bouv. Inst. n. 1652 57.

  ESTRAYS. Cattle whose owner is unknown.

   2. In  the United  States, generally,  it is presumed by local
regulations, they  are subject  to, being sold for the benefit of
the poor, of some other public use, of the place where found.

   ESTREAT. This  term is  used to signify a true copy or note of
some original  writing or  record, and  specially  of  flues  and
amercements imposed  by a  court, and  extracted from the record,
and certified  to a  proper officer  or officers  authorized  and
required to collect them. Vide F. N. B. 57, 76.

   ESTREPE. This  word is  derived from the French, estropier, to

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cripple. It  signifies an  injury to  lands,  to  the  damage  of
another, as  a reversioner.  This  is  prevented  by  a  writ  of

   ESTREPEMENT. The  name of  a writ  which lay  at common law to
prevent a party in possession from committing waste on an estate,
the title  to which  is disputed,  after judgment obtained in any
real action, and before possession was delivered by the sheriff.

   2. But  as waste might be committed in some cases, pending the
suit, the  statute of Gloucester gave another writ of estrepement
pendente placito,  commanding the  sheriff firmly  to inhibit the
tenant "ne  faciat vastum vel strepementum pendente placito dicto
indiscusso." By  virtue of either of these writs, the sheriff may
resist those  who commit waste or offer to do so;  and he may use
sufficient force for the purpose. 3 Bl. Com. 225, 226.

  3. This writ is sometimes directed to the sheriff and the party
in possession  of the lands, in order to make him amenable to the
court as  for a  contempt in  case of  his  disobedience  to  the
injunction of the writ. At common law the process proper to bring
the tenant  into  court  is  a  venire  facias,  and  thereon  an
attachment.  Upon   the  defendant's  coming  in,  the  plaintiff
declares against  him. The  defendant usually pleads "that he has
done no waste contrary to the prohibition of the writ." The issue
on this  plea is  tried by  a jury, and in case they find against
the defendant,  they assess damages which the plaintiff recovers.
But as  this verdict  convicts the  defendant of  a contempt, the
court proceed against him for that cause as in other cases. 2 Co.
Inst. 329;   Rast.  Ent. 317;  Brev. Judic. 88;  More's Rep. 100;
1 Bos.  & Pull.  121;   2 Lilly's  Reg. tit. Estrepement;  5 Rep.
119;  Reg. Brev. 76, 77.

   4. In  Pennsylvania, by  legislative enactment,  the remedy by
estrepement is  extended for  the benefit  of any  owner of lands
leased for  years or  at will, at any time during the continuance
or after  the expiration  of such demise, and due notice given to
the tenant  to leave  the same,  agreeably to  law,  or  for  any
purchaser at  sheriff or  coroner's sale  of lands. &c., after he
has been  declared the  highest bidder by the sheriff or coroner;
or for  any mortgagee or judgment creditor, after the lands bound
by such  judgment or  mortgage,  shall  have  been  condemned  by
inquisition, or  which may  be subject  to be  sold by  a writ of
venditioni exponas  or levari  facias.  Vide  10  Vin.  Ab.  497;
Woodf. Landl. & Ten, 447;  Archb. Civ. Pl. 17;  7 Com. Dig. 659.

  ET CETERA. A Latin phrase, which has been adopted into English;
it signifies.  "and the  others, and  so  of  the  rest,"  it  is
commonly abbreviated, &c.

   2. Formerly  the pleader was required to be very particular in
making his  defence. (q.  v.) B making full defence, he impliedly
admitted the jurisdiction of the court, and the competency of the
plaintiff to  sue;   and half defence was used when the defendant
intended to  plead to the jurisdictions or disability. To prevent
the inconveniences  which might  arise by  pleading full  or half
defence, it became the practice to plead in the following form: "

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And the  said C  D, by  E F,  his attorney, comes and defends the
wrong and  injury, when, &c., and says," which was either full or
half defence.  2 Saund.  209, c.;   Steph.  Pl. 432;  2 Chit. Pl.

   3. In  practice, the  &c. is used to supply the place of words
which have  been omitted. In taking recognizance, for example, it
is usual  to make  an entry  on the  docket of  the clerk  of the
court, as  follows: A  B, tent,  &c., in  the sum  of  $1000,  to
answer, &c. 6 S. & R. 427.

  ET NON. And not. These words are sometimes employed in pleading
to convey  a pointed denial. They have the same effect as without
this, absque hoe. 3 Bouv. Inst. n. 2981, note.

   EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going,
remaining, and  returning. It is employed in cases where a person
either as  a party,  a witness,  or  one  acting  in  some  other
capacity, as  an elector,  is privileged from arrest, in order to
give him  that  freedom  necessary  to  the  performance  of  his
respective obligations,  to signify  that he  is  protected  from
arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.

   EUNOMY. Equal  laws,  and  a  well  adjusted  constitution  of

   EUNUCH. A  male whose  organs of  generation have  been so far
removed  or  disorganized,  that  he  is  rendered  incapable  of
reproducing his  species. Domat,  Lois Civ. liv. prel. tit. 2, s.
1, n. 10.

   EVASION. A subtle device to set aside the truth, or escape the
punishment of  the law;   as  if a  man should  tempt another  to
strike him  first, in  order that he might have an opportunity of
returning the  blow with impunity. He is nevertheless punishable,
because he becomes himself the aggressor in such a case. Wishard,
1 H. P . C. 81 Hawk. P. C. c. 31, §24, 25;  Bac. Ab. Fraud, A.

  2. An escape from custody.

   EVICTION. The  loss or  deprivation which  the possessor  of a
thing suffers,  either in  whole or  in part,  of  his  right  of
property in  such a thing, in consequence of the right of a third
person established  before a  compenent tribunal. 10 Rep. 128;  4
Kent,  Com. 475-7;  3 Id. 464-5.

   2. The eviction may be total or partial. It is total, when the
possessor is  wholly deprived  of his  rights in the whole thing;
partial, when he is deprived of only a portion of the thing;  as,
if he  had fifty  acres of land, and a third person recovers by a
better title  twenty-five;   or, of some right in relation to the
thing. as,  if a  stranger should  claim and establish a right to
some easement  over the  same. When  the grantee  suffers a total
eviction, and  he has  a covenant of seisin, he recovers from the
seller, the  consideration money, with interest and costs, and no
more. The  grantor has no concern with the future rise or fall of
the property,  nor with  the improvements  made by the purchaser.

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This seems to be the general rule in the United States. 3 Caines'
R. 111;   4  John. R.  1;   13 Johns.  R. 50;   4  Dall. R.  441;
Cooke's Term.  R. 447;   1 Harr. & Munf. 202;  5 Munf. R. 415;  4
Halst. R.  139;  2 Bibb, R. 272. In Massachusetts, the measure of
damages on  a covenant  of warranty,  is the value of the land at
the time of eviction. 3 Mass. R. 523;  4 Mass. R. 108. See, as to
other states, 1 Bay, R. 19, 265;  3 Des. Eq. R. 245;  2 Const. R.
584;  2 McCord's R. 413;  3 Call's R. 326.

   3. When  the eviction  is  only  partial  the  damages  to  be
recovered under  the covenant  of seisin,  are a rateable part of
the original  price, and  they are  to bear the same ratio to the
whole consideration,  that the  value of  land to which the title
has failed,  bears to  the value of the whole tract. The contract
is not  rescinded, so  as to  entitle the  vendee  to  the  whole
consideration money, but only to the amount of the relative value
of the  part lost.  5 Johns. R. 49;  12 Johns. R. 126;  Civ. Code
of Lo. 2490;  4 Kent's Com. 462. Vide 6 Bac. Ab. 44;  1 Saund. R.
204: note 2, and 322 a, note 2;  1 Bouv. Inst. n. 656.

   EVIDENCE. That  which demonstrates, makes clear, or ascertains
the truth  of the  very fact  or point in issue;  3 Bl. Com. 367;
or it  is whatever is exhibited to a court or jury, whether it be
by  matter  of  record,  or  writing,  or  by  the  testimony  of
witnesses, in  order to  enable them to pronounce with certainty;
concerning the  truth  of  any  matter  in  dispute;    Bac.  Ab.
Evidence, in  pr.;  or it is that which is legally submitted to a
jury, to  enable them  to decide upon the questions in dispute or
issue, as pointed out by the pleadings and distinguished from all
comment or argument. 1 Stark. Ev. 8.

   2. Evidence may be considered with reference to, 1. The nature
of  the   evidence.  2.  The  object  of  the  evidence.  3.  The
instruments of  evidence. 4. The effect of evidence. 1. As to its
nature, evidence may be considered with reference to its being 1.
Primary  evidence.   2.  Secondary   evidence.  3.  Positive.  4.
Presumptive. 5. Hearsay. 6. Admissions.

   4. -  1. Primary evidence. The law generally requires that the
best evidence  the case admits of should be given;  B. N. P. 293;
1 Stark.  Ev. 102, 390;  for example, when a written contract has
been entered  into, and the object is to prove what it was, it is
requisite to  produce  the  original  writing  if  it  is  to  be
attained, and  in that  case no  copy or  other inferior evidence
will be received.

   5. To this general rule there are several exceptions. 1. As it
refers to the quality rather than to the quantity of evidence, it
is evident  that the  fullest proof that every case admits of, is
not requisite;  if, therefore, there are several eye-witnesses to
a fact, it may be sufficiently proved by one only.

  2. It is not always requisite, when the matter to be proved has
been reduced  to writing,  that the  writing should  be produced;
as, if the narrative of a fact to be proved has been committed to
writing, it  may yet  be proved  by parol evidence. A receipt for
the payment  of  money,  for  example,  will  not  exclude  parol

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evidence of  payment. 14 Esp. R. 213;  and see 7 B. & C. 611;  S.
C. 14 E. C. L. R. 101;  1 Campb. R. 439;  3 B. & A. 566;  6 E. C.
L. R. 377.

   6. -  2. Secondary  evidence. That  species of  proof which is
admissible on  the loss of primary evidence, and which becomes by
that event the best evidence. 3 Yeates, Rep. 530.

   7. It  is a  rule that  the best evidence, or that proof which
most certainly  exhibits the  true state  of facts  to  which  it
relates, shall  be required,  and the  law rejects  secondary  or
inferior evidence,  when it  is attempted  to be  substituted for
evidence of  a higher  or superior  nature. This  is  a  rule  of
policy,  grounded   upon  a   reasonable  suspicion,   that   the
substitution of inferior for better evidence arises from sinister
motives;    and  an  apprehension  that  the  best  evidence,  if
produced, would  alter the  case to  the prejudice  of the party.
This rule  relates not  to the  measure and quantity of evidence,
but to  its quality  when compared  with some  other evidence  of
superior degree. It is not necessary in point of law, to give the
fullest proof  that every  case may  admit of.  If, for  example,
there be several eye witnesses to a fact, it may be proved by the
testimony of one only.

  8. When primary evidence cannot be had, then secondary evidence
will be  admitted, because  then it  is the best. But before such
evidence can  be allowed,  it must be clearly made to appear that
the superior  evidence is not to be had. The person who possesses
it must  be applied  to, whether he be a stranger or the opposite
party;   in the  case of  a stranger,  a subpoena and attachment,
when proper, must be taken out and served;  and, in the case of a
party, notice  to produce  such primary  evidence must  be proved
before the  secondary evidence will be admitted. 7 Serg. & Rawle,
116;   6 Binn.  228;   4 Binn.  R. 295, note;  6 Binn. R. 478;  7
East, R.  66;  8 East, R. 278 3 B. & A. 296;  S. C. 5 E. C. L. R.

   9. After  proof of  the due  execution of  the  original,  the
contents should  be proved by a counterpart, if there be one, for
this is the next best evidence;  and it seems that no evidence of
a mere  copy is  admissible until  proof has  been given that the
counterpart cannot  be produced.  6 T.  R. 236.  If there  be  no
counterpart, a copy may be proved in evidence. by any witness who
knows that  it is  a copy,  from  having  compared  it  with  the
original. Bull.  N. P.  254;   1 Keb.  117;   6 Binn.  R. 234;  2
Taunt. R.  52;   1 Campb.  R. 469  8 Mass. R. 273. If there be no
copy, the  party may  produce an  abstract, or  even  give  parol
evidence of the contents of a deed. 10 Mod. 8;  6 T. R. 556.

   10. But  it has  been decided  that there  are no  degrees  in
secondary evidence:  and when a party has laid the foundation for
such evidence,  he may  prove the  contents of  a deed  by parol,
although it  appear that an attested copy is in existence. 6 C. &
P. 206;  8 Id. 389.

   11. -  3. Positive  or  direct  evidence  is  that  which,  if
believed, establishes  the truth of a fact in issue, and does not

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arise from any presumption. Evidence is direct and positive, when
the very  facts in dispute are communicated by those who have the
actual knowledge  of them  by means  of their senses. 1 Phil. Ev.
116 1  Stark. 19.  In one  sense, there  is but  little direct or
positive proof,  or such  proof as  is acquired by means of one's
own sense,  all other  evidence is  presumptive  but,  in  common
acceptation, direct  and  positive  evidence  is  that  which  is
communicated by one who has actual knowledge of the fact.

   12. - 4. Presumptive evidence is that which is not direct, but
where, on  the contrary, a fact which is not positively known, is
presumed  or   inferred  from   one  or   more  other   facts  or
circumstances which  are known.  Vide  article  Presumption,  and
Rosc. Civ. Ev. 13;  1 Stark. Ev. 18.

  13. - 5. Hearsay, is the evidence of those who relate, not what
they know themselves, but what they have heard from others.

   14. Such  mere recitals  or assertions  cannot be  received in
evidence, for  many reasons,  but principally  for the following:
first, that  the party  making such  declarations is  not on oath
and, secondly, because the party against whom it operates, has no
opportunity of cross-examination. 1 Phil. Ev. 185. See, for other
reasons, 1  Stark. Ev.  pt. 1,  p. 44. The general rule excluding
hearsay evidence,  does not  apply to those declarations to which
the party  is privy,  or to admissions which he himself has made.
See Admissions.

   15. Many  facts, from their very nature, either absolutely, or
usually exclude  direct evidence to prove them, being such as are
either necessarily  or usually,  imperceptible by the senses, and
therefore incapable  of the  ordinary means  of proof.  These are
questions of  pedigree or  relationship, character, prescription,
custom, boundary,  and the  like;  as also questions which depend
upon the  exercise of  particular skill and judgment. Such facts,
some from  their nature,  and others from their antiquity, do not
admit of  the ordinary  and  direct  means  of  proof  by  living
witnesses;   and, consequently,  resort must  be had  to the best
means of  proof  which  the  nature  of  the  cases  afford.  See
Boundary;  Custom;  Opinion;  Pedigree;  Prescription.

   16. -  6. Admissions  are the  declarations which  a party  by
himself, or  those who  act under  his  authority,  make  of  the
existence of certain facts. Vide Admissions.

  17.- §2. The object of evidence is next to be considered. It is
to  ascertain   the  truth  between  the  parties.  It  has  been
discovered by  experience that this is done most certainly by the
adoption of the following rules, which are now binding as law: 1.
The evidence  must be  confined to  the point  in issue.  2.  The
substance of  the issue must be proved, but only the substance is
required to  be proved.  3. The  affirmative of the issue must be

   18. -  1. It  is a  general rule,  both in  civil and criminal
cases, that the evidence shall be confined to the point in issue.
Justice and  convenience require  the observance  of  this  rule,

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particularly in  criminal cases,  for when  a prisoner is charged
with an  offence, it  is of the utmost importance to him that the
facts laid  before the  jury should  consist exclusively  of  the
transaction, which  forms the  subject of  the  indictment,  and,
which alone  he has  come prepared to answer. 2 Russ. on Cr. 694;
1 Phil. Ev. 166.

   19. To  this general rule, there are several exceptions, and a
variety of  cases which  do not  fall  within  the  rule.  1.  In
general, evidence  of collateral  facts is  not admissible;   but
when such  a fact  is material  to the  issue joined  between the
parties, it  may be given in evidence;  as, for example, in order
to prove  that the  acceptor of  a bill  knew the  payee to  be a
fictitious person;  or that the drawer had general authority from
him to  fill up  bills with  the  name  of  a  fictitious  payee,
evidence may  be given to show that he had accepted similar bills
before they  could, from  their date, have arrived from the place
of date. 2 H. Bl. 288.

   20. - 2. When special damage sustained by the plaintiff is not
stated in  the declaration, it is Dot one of the points in issue,
and therefore,  evidence of  it cannot be received;  yet a damage
which is  the necessary  result  of  the  defendant's  breach  of
contract, may  be  proved,  notwithstanding  it  is  not  in  the
declaration. 11 Price's Reports, 19.

   21. - 3. In general, evidence of the character of either party
to a suit is inadmissible, yet in some cases such evidence may be
given. Vide article Cha?-acter.

   22. -  4. When evidence incidentally applies to another person
or thing  not included  in the  transaction in question, and with
regard to  whom or  to which  it is inadmissible;  yet if it bear
upon the point in issue, it will be re-ceived. 8 Bingh. Rep. 376;
S. C.  21 Eng.  C. L. R. 325 and see 1 Phil. Ev. 158;  2 East, P.
C. 1035;   2 Leach, 985;  S. C. 1 New Rep. 92;  Russ. & Ry. C. C.
376;  2 Yeates, 114;  9 Conn. Rep. 47.

   23. -  5. The  acts of others, as in the case of conspirators,
may be  given in evidence against the prisoner, when referable to
the issue;   but  confessions made by one of several conspirators
after the  offence has  been completed, and when the conspirators
no longer  act in  concert)  cannot  be  received.  Vide  article
Confession, and  10 Pick. 497;  2 Pet. Rep. 364;  2 Brec. R. 269;
3 Serg.  & Rawle,  9;   1 Rawle,  362, 458;  2 Leigh's R. 745;  2
Day's Cas.  205;   3 Serg.  & Rawle, 220;  3 Pick. 33;  4 Cranch,
75;  2 B. & A. 573-4 S. C. 5. E. C. L. R. 381.

   24. -  6. In  criminal cases, when the offence is a cumulative
one, consisting  itself in  the commission  of a  number of acts,
evidence of  those acts  is not only admissible, but essential to
support the  charge. On  an indictment  against a defendant for a
conspiracy, to  cause himself,  to be  believed a  man  of  large
property, for  the purpose of defrauding tradesmen after proof of
a representation  to one  tradesman, evidence  may  therefore  be
given of  a representation  to another  tradesman at  a different
time. 1  Campb. Rep.  399;   2 Day's Cas. 205;  1 John. R. 99;  4
Rogers' Rec. 143;  2 Johns. Cas. 193.

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   25. -  7. To  prove the  guilty knowledge  of a prisoner, with
regard to the transaction in question, evidence of other offences
of the  same kind,  committed by the prisoner, though not charged
in the  indictment, is  admissible against  him. As  in the  case
where a  prisoner had  passed a counterfeit dollar, evidence that
he had.  other counterfeit  dollars in his possession is evidence
to prove  the guilty  knowledge. 2  Const. R.  758;   Id. 776;  1
Bailey, R.  300;  2 Leigh's R. 745;  1 Wheeler's Cr. Cas. 415;  3
Rogers' Rec.  148;   Russ. &  Ry. 132;   1  Campb. Rep.  324;   5
Randolph's R. 701.

   26. - 2. The substance of the issue joined between the parties
must be  proved. 1  Phil.  Ev.  190.  Under  this  rule  will  be
considered  the   quantity  of   evidence  required   to  support
particular averments in the declaration or indictment.

   27. And, first, of civil cases. 1. It is a fatal variance in a
contract, if it appear that a party who ought to have been joined
as plaintiff  has been omitted. 1 Sauud. 291 b, n.;  2 T. R. 282.
But it is no variance to omit a person who might have been joined
as defendant,  because the non-joinder ought to have been pleaded
in abatement.  1 Saund.  291 d,  n. 2.  The consideration  of the
contract must be proved but it is not necessary for the plaintiff
to set out in his declaration, or prove on the trial, the several
parts  of  a  contract  consisting  of  distinct  and  collateral
provisions;  it is sufficient to state so much of the contract as
contains the  entire consideration of the act, and the entire act
to be  done in  virtue of such consideration, including the time,
manner, and  other circumstances  of its  performance. 6 East, R.
568;  4 B. & A. 387;  6 E. C. L. R. 455.

  28. - Secondly. In criminal cases, it may be laid down, 1. That
it is,  in general,  sufficient  to  prove  what  constitutes  an
offence. It is enough to prove so much of the indictment as shows
that the  defendant has  committed a  substantive  crime  therein
specified. 2  Campb. R.  585;   1 Harr.  & John. 427. If a man be
indicted for  robbery, he may be found guilty of larceny, and not
guilty of  the robbery.  2 Hale,  P. C. 302. The offence of which
the party  is convicted, must, however, be of the same class with
that of which he is charged. 1 i Leach, 14;  2 Stra. 1133.

   29. -  2. When the intent of the prisoner furnishes one of the
ingredients in  the offence,  and several intents are laid in the
indictment,  each   of  which,   together  with   the  act  done,
constitutes an  offence, it  is sufficient  to prove  one  intent
only. 3 Stark. R. 35;  14 E. C. L. R. 154, 163.

   30. -  3. When a person or thing, necessary to be mentioned in
an  indictment,   is  described  with  circumstances  of  greater
particularity than  is requisite, yet those circumstances must be
proved. 3  Rogers' Rec.  77;  3 Day's Cas. 283. For example, if a
party be  charged with  stealing a black horse, the evidence must
correspond with the averment, although it was unnecessary to make
it. Roscoe's Cr. Ev. 77 4 Ohio, 350.

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  31. - 4. The name of the prosecutor, or party injured;  must be
proved as  laid, and  the rule  is the same with reference to the
name of  a third  person  introduced  into  the  indictment,  as.
descriptive of some person or thing.

   32. -  5. The  affirmative of  the issue  must be  proved. The
general rule  with regard  to the  burthen of  proving the issue,
requires that the party who asserts the, affirmative should prove
it. But this rule ceases to operate the moment the presumption of
law is  thrown into  the other  scale. When  the issue  is on the
legitimacy of  a child  therefore, it  is incumbent  on the party
asserting the  illegitimacy to  prove it. 2 Selw. N. P. 709. Vide
Onus Probandi;  Presum 2 Gall. R. 485 and 1 McCord, 573.

  33. - §3. The consideration of the instruments of evidence will
be the  subject of  this head.  These consist of records, private
writings, or witnesses.

   34. -  1. Records are to be proved by an exemplification, duly
authenticated, (Vide Authentication, in all cases where the issue
is nul  tiel record.  In other  cases,  an  examined  copy,  duly
proved, will,  in general, be evidence. Foreign laws as proved in
the mode pointed out under the article Foreign laws.

  35. - 2. Private writings are proved by producing the attesting
witness;   or in  case of  his death,  absence,  or  other  legal
inability to  testify, as  if,  after  attesting  the  paper,  he
becomes infamous, his handwriting may be proved. When there is no
witness to  the instrument,  it may  be proved by the evidence of
the handwriting of the party, by a person who has seen him write,
or in  a course  of correspondence has become acquainted with his
hand. See  Comparison of  handwriting, and  5 Binn.  R. 349;   10
Serg. &  Rawle, 110;  11 Serg. & Rawle, 333 3 W. C. C. R. 31;  11
Serg. & Rawle, 347 6 Serg. & Rawle, 12, 812;  1 Rawle, R. 223;  3
Rawle, R. 312;  1 Ashm. R. 8;  3 Penn. R. 136.

   36. Books of original entry, when duly proved, are prima facie
evidence of goods sold and delivered, and of work and labor done.
Vide original entry.

   37. -  3. Proof  by witnesses.  The testimony  of witnesses is
called parol  evidence, or  that which  is given  viva  voce,  as
contra-distinguished from  that which  is written or documentary.
It is  a general  rule, that  oral evidence  shall in  no case be
received as  equivalent to,  or as  a substitute  for, a  written
instrument, where  the latter  is required  by law;   or  to give
effect  to  a  written  instrument  which  is  defective  in  any
particular which  by law  is essential  to its  validity;   or to
contradict, alter  or vary a written instrument, either appointed
by law,  or by the contract of the parties, to be the appropriate
and authentic  memorial of  the particular facts it recites;  for
by doing  so, oral testimony would be admitted to usurp the place
of evidence  decidedly superior  in degree. 1 Serg. & Rawle, 464;
Id. 27;   Addis.  R. 361;   2 Dall. 172;  1 Yeates, 140;  1 Binn.
616;  3 Marsh. Ken. R. 333;  4 Bibb, R. 473;  1 Bibb, R. 271;  11
Mass. R.  30;   13 Mass.  R. 443;   3 Conn. 9;  20 Johns. 49;  12
Johns. R.  77;   3 Camp. 57;  1 Esp. C. 53;  1 M. & S. 21;  Bunb.

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   38. But  parol evidence  is admissible  to  defeat  a  written
instrument, on  the ground of fraud, mistake, &c., or to apply it
to its  proper  subject  matter;    or,  in  some  instances,  as
ancillary to such application, to explain the meaning of doubtful
terms, or  to rebut  presumptions arising extrinsically. In these
cases, the  parol evidence  does not usurp the place, or arrogate
the authority  of, written  evidence, but  either shows  that the
instrument ought  not to  be allowed  to operate  at all,  or  is
essential in  order to give to the instrument its legal effect. 1
Murph. R.  426 4 Desaus. R. 211;  1 Desaus. R. 345 1 Bay, R. 247;
1 Bibb, R. 271 11 Mass. R. 30;  see 1 Pet. C. C. R. 85 1 Binn. R.
610;   3 Binn.  R. 587: 3 Serg. Rawle, 340;  Poth. Obl. Pl. 4, c.

   39. -  §4. The  effect of  evidence. Under  this head  will be
considered, 1st.  The effect  of judgments rendered in the United
States, and  of records  lawfully made in this country;  and, 2d.
The effect of foreign judgments and laws.

   40. -  1. As a general rule, a judgment rendered by a court of
competent jurisdiction,  directly upon  the point  in issue, is a
bar between  the same  parties: 1  Phil. Ev. 242;  and privies in
blood, as  an heir  3 Mod. 141;  or privies in estate 1 Ld. Raym.
730;   B. N.  P. 232;  stand in the same situation. as those they
represent;   the verdict  and judgment may be used for or against
them, and is conclusive. Vide Res Judicata.

   41. The  Constitution of  the United  States, art.  4,  s.  1,
declares, that  "Full faith  and credit  shall be  given, in each
state, to  the public  acts, records, and judicial proceedings of
every other  state. And  congress may, by general laws, prescribe
the manner  in which Such acts, records and proceedings, shall be
proved, and  the effect thereof." Vide article Authentication and
7 Cranch,  481;   3 Wheat.  R. 234 10 Wheat. R. 469;  17 Mass. R.
546;  9 Cranch, 192;  2 Yeates, 532;  7 Cranch, 408;  3 Bibb's R.
369;  5 Day's R. 563;  2 Marsh. Kty. R. 293.

   42. - 2. As to the effect of foreign laws, see article Foreign
Laws. For  the force and effect of foreign judgments, see article
Foreign Judgments. Vide, generally, the Treatises on Evidence, of
Gilbert, Phillips,  Starkie, Roscoe,  Swift,  Bentham,  Macnally,
Peake, Greenleaf,  and Bouv.  Inst. Index,  h. t.;   the  various
Digests, h. t.

   EVIDENCE, CIRCUMSTANTIAL.  The proof  of facts  which  usually
attend other  facts sought  to be,  proved;   that which  is  not
direct evidence. For example, when a witness testifies that a man
was stabbed with a knife, and that a piece of the blade was found
in the wound, and it is found to fit exactly with another part of
the blade found in the possession of the prisoner;  the facts are
directly attested,  but they  only prove circumstances, and hence
this is called circumstantial evidence.

  2. Circumstantial evidence is of two kinds, namely, certain and
uncertain.  It   is  certain  when  the  conclusion  in  question

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necessarily follows  as, where a man had received a mortal wound,
and it  was found  that the  impression of a bloody left hand had
been made  on the  left arm  of the deceased, it was certain some
other person  than the deceased must have made such mark. 14 How.
St. Tr. 1324. But it is uncertain whether the death was caused by
suicide or by murder, and whether the mark of the bloody hand was
made by the assassin, or by a friendly hand that came too late to
the relief of the deceased. Id. Vide Circumstances.

     EVIDENCE,  CONCLUSIVE.  That  which,  while  uncontradicted,
satisfies the  judge and  jury it  is also  that which  cannot be

   2. The  record of  a  court  of  common  law  jurisdiction  is
conclusive as  to the facts therein stated. 2 Wash. 64;  2 H. 55;
6 Conn.  508, But the judgment and record of a prize court is not
conclusive  evidence   in  the   state  courts,   unless  it  had
jurisdiction of  the subject-matter;   and whether it had or not,
the state  courts  may  decide.  1  Conn.  429.  See  as  to  the
conclusiveness of the judgments of foreign courts of admiralty, 4
Cranch, 421,  434;  3 Cranch, 458;  Gilmer, 16 Const. R. 381 1 N.
& M. 5 3 7.

   EVIDENCE, DIRECT.  That which applies immediately to the fadum
probandum, without  any intervening  process;  as, if A testifies
he saw  B inflict  a mortal  wound on  C, of  which he, instantly
died. 1 Greenl. Ev. §13.

   EVIDENCE, EXTRINSIC.  External evidence,  or that which is not
contained in the body of an agreement, contract, and the like.

   2. It  is a  general rule  that extrinsic  evidence cannot  be
admitted to  contradict, explain,  vary or  change the terms of a
contract or  of a will, except in a latent ambiguity, or to rebut
a resulting trust. 14 John. 1;  1 Day, R. 8;  6 Conn. 270.

   EVOCATION, French law. The act by which a judge is deprived of
the cognizance  of a suit over which he had jurisdiction, for the
purpose of  conferring on  other judges the power of deciding it.
This is done with us by writ of certiorari.

   EWAGE. A  toll paid  for water  passage. Cowell.  The same  as
aquagium. (q. v.)

  EX CONTRACTU. This term is applied to such things as arise from
a contract;  as an action which arises ex contractu. Vide Action.

   EX DELICTO.  Those actions  which arise  in consequence  of  a
crime, misdemeanor,  fault, or  tort;  actions arising ex delicto
are case, replevin, trespass, trover. See Action.

   EX DOLO  MALO. Out  of fraud or deceit. When a cause of action
arises from  fraud or  deceit, it  cannot be  supported: Ex  dolo
malo, non oritur actio.

  EX AEQUO ET BONO. In equity and good conscience. A man is bound
to pay  money which  ex oequo  et bono  he holds  for the  use of

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   EX MERO  MOTU. Mere  motion of  a party's  own free  will.  To
prevent injustice,  the courts will, ex mero motu, make rules and
orders which  the parties  would not  strictly be entitled to ask

   EX MORA.  From the  delay;   from the default. All persons are
bound to  make amends  for damages  which arise  from  their  own

   EX NECESSITATE LEGIS. From the necessity of law.

   EX NECESSITATE REI. From the necessity of the thing. Many acts
may be  done ex  necessitate ret,  which would not be justifiable
without it;   and sometimes property is protected, ex necessitate
rei, which,  under, other  circumstances, would  not be  so.  For
example, property  put upon  the land  of another from necessity,
cannot be distrained for rent. See Distress;  Necessity.

  EX OFFICIO. By virtue of his office. 2. Many powers are granted
and  exercised   by  public  officers  which  are  not  expressly
delegated.  A   judge,  for   example,  may,  ex  officio,  be  a
conservator of the peace, and a justice of the peace.

   EX PARTE.  Of the  one part. Many things may be done ex parte,
when the  opposite  party  has  had  notice;    an  affidavit  or
deposition is  said to  be taken  ex parte  when only  one of the
parties attends to taking the same. Ex parte paterna, on the side
of the father, or property descended to a person from his father;
ex parte materna, on the part of the mother.

   EX POST  FACTO, contracts,  crim. law.  This  is  a  technical
expression, which  signifies, that  something has been done after
another thing, in relation to the latter.

   2. An estate granted, may be made good or avoided by matter ex
post facto,  when an  election is given to the party to accept or
not to accept. 1 Co . 146.

   3. The  Constitution of  the United  States, art.  1, sec. 10,
forbids the states to pass any ex post facto law;  which has been
defined to be one which renders the act punishable in a manner in
which it was not punishable when it was committed. 6 Cranch, 138.
This definition  extends  to  laws  passed  after  the  act,  and
affecting a  person by  way of  punishment of that act, either in
his person  or estate. 3 Dall. 386;  1 Blackf. Ind. R. 193 2 Pet.
U. S. Rep. 413 1 Kent, Com. 408;  Dane's Ab. Index, h. t.

  4. This prohibition in the constitution against passing ex post
facto law's,  applies exclusively to criminal or penal cases, and
not to  civil cases.  Serg. Const. Law, 356. Vide 2 Pick. R. 172;
11 Pick.  R. 28;   2 Root, R. 350;  5 Monr. 133;  9 Mass. R. 363;
3 N.  H. Rep.  475;   7 John.  R. 488;   6 Binn. R. 271;  1 J. J.
Marsh, 563;  2 Pet. R. 681;  and the article Retrospective.

   EX VI  TERMINI. By force of the term;  as a bond ex vi termini
imports a sealed instrument.

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   EX VISITATIONE  DEI. By  or from  the visitation  of God. This
phrase is  frequently employed  in inquisitions  by the  coroner,
where it  signifies that  the death  of the deceased is a natural

  EX TEMPORE. From the time without premeditation.

   EXACTION, torts. A willful wrong done by an officer, or by one
who, under  color of  his office,  takes more  fee or pay for his
services than what the law allows. Between extortion and exaction
there is  this difference;   that  in the former case the officer
extorts more  than his due, when something is due to him;  in the
latter, he  exacts what is not his due, when there is nothing due
to him. Wishard;  Co. Litt. 368.

   EXAMINATION, crim.  law. By  the common law no one is bound to
accuse himself.  Nemo tenetur prodere seipsum. In England, by the
statutes of Philip and Mary, (1 & 2 P. & M. c. 13;  2 & 3 P. & M.
c. 10,)  the principles  of which have been adopted in several of
the United  States, the  justices before whom any person shall be
brought, charged  with any of the crimes therein mentioned, shall
take the  examination of  the prisoner,  as well  is that  of the
witnesses, in writing, which the magistrates shall subscribe, and
deliver to the officer of the court where the trial is to be had.
The signature  of the  prisoner, when  not specially  required by
statute, is  not indispensable, though it is proper to obtain it,
when it  can be obtained. 1 Chit. Cr. Law, 87;  2 Leach, Cr. Cas.

   2. It  will be  proper to  consider, 1. The requisites of such
examination. 2. How it is to be proved. 3. Its effects.

   3. -  1. It  is required  that it  should, 1st. Be voluntarily
made, without  any compulsion  of any  kind;  and, 2d. It must be
reduced to  writing. 1st.  The law  is particularly solicitous to
let  the   prisoner  be   free  in  making  declarations  in  his
examination;   and if  the prisoner  has not  been left  entirely
free, or did not consider himself to be so, or if he did not feel
at liberty  wholly to  decline  any  explanation  or  declaration
whatever, the  examination is  not considered  voluntary, and the
writing cannot  be read  in evidence  against him,  nor can parol
evidence be received of what the prisoner said on the occasion. 5
C. &  P. 812;   7  C. &  P. 177;   1  Stark. R. 242;  6 Penn. Law
Journ. 120.  The prisoner,  of course,  cannot be sworn, and make
his statement under oath. Bull. N. P. 242;  4 Hawk. P. C. book 2,
c. 46,  §37;   4 C.  & P.  564. 2a. The statute requires that the
examination shall  be reduced  to writing,  or so  much as may be
material, and  the law  presumes the  magistrate did his duty and
took down  all that  was material. Joy on Conf. 89-92;  1 Greenl.
Ev. §227.  The prisoner  need not sign the examination so reduced
to writing, to give it validity;  but, if being asked to sign it,
he absolutely  refuse, it will be considered incomplete. 2 Stark.
R. 483;  2 Leach, Cr. Cas. 627, n.

   4. -  2. The  certificate  of  the  magistrate  is  conclusive

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evidence of  the manner in which the examination was conducted. 7
C. &  P. 177;   9 C. & P. 124;  1 Stark. R. 242. Before it can be
given in  evidence, its  identity must  be proved, as well as the
identity of  the prisoner.  When  the  prisoner  has  signed  the
examination, proof of his handwriting is sufficient evidence that
he has  read it;   but  if he  has merely  made his  mark, or not
signed it  at all,  the magistrate  or clerk  must  identify  the
prisoner, and  prove that  the writing  was duly read to him, and
that he assented to it. l Greenl. Ev. §520;  1 M. & Rob. 395.

   5. - 3. The effect of such an examination, when properly taken
and proved,  is sufficient  to found  a conviction. 1 Greenl. Ev.

  EXAMINATION, practice. The interrogation of a witness, in order
to ascertain  his knowledge  as to  the facts  in dispute between
parties. When the examination is made by the party who called the
witness, it is called an examination in chief. When it is made by
the other  party, it  is known  by the name of cross-examination.
(q. v.)

   2.  The  examination  is  to  be  made  in  open  court,  when
practicable;   but when,:  on account  of age, sickness, or other
cause, the  witness cannot  be so  examined, then  it may be made
before authorized  commissioners. In the examination in chief the
counsel cannot ask leading questions, except in particular cases.
Vide Cross-examination;  Leading question.

   3.  The  laws  of  the  several  states  require  the  private
examination of a feme covert before a competent officer, in order
to pass  her title to her own real estate or the interest she has
in that  of her  hushand: as  to the  mode in which this is to be
done, see Acknowledment. See, also, 3 Call, R. 394;  5 Mason's R.
59;   1 Hill,  R. 110;   4  Leigh, R.  498;  2 Gill & John. 1;  3
Rand. R.  468 1  Monr. R. 49;  3 Monr. R. 397;  1 Edw. R. 572;  3
Yerg. R.  548 1 Yerg. R. 413 3 J. J. Marsh. R. 241 2 A. K. Marsh.
R. 67;  6 Wend. R. 9;  1 Dall. 11, 17;  3 Yeates, R. 471;  8 S. &
R. 299;  4 S. & R. 273.

   EXAMINED COPY.  This phrase  is applied  to designate  a paper
which is  a copy of a record, public book, or register, and which
has been compared with the original. 1 Campb. 469.

   2. Such  examined copy is admitted in evidence, because of the
public inconvenience  which would  arise, if  such record, public
book, or  register, were removed from place to place, and because
any fraud  or mistake  made in  the examined  copy  would  be  so
easily, detected.  1 Greenl.  Ev. §91;  1 Stark. Ev. 189-191. But
an answer  in chancery,  on which  the defendant was indicted for
perjury, or  where the  original must  be produced  in  order  to
identify the  party by  proof of  handwriting, an  examined  copy
would not be evidence. 1 M. & Rob. 189. Vide Copy.

   EXAMINERS, practice. Persons appointed to question students of
law, in  order to  ascertain their qualifications before they are
admitted to  practice. Officers  in the  courts of chancery whose
duty it  is to examine witnesses, are also called examiners. Com.

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Dig.  Chancery,  P  1.  For  rules  as  to  the  mode  of  taking
examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2.

   EXAMPLE. An  example is a case put to illustrate a. principle.
Examples illustrate,  but do  not restrain  or change  the  laws:
illustrant non restringunt legem. Co. Litt. 24, a.

  EXCAMBIATOR. The name of an exchanger of lands;  a broker. This
term is now obsolete.

  EXCAMBIUM. Exchange. (q. v.)

   EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which
the defendant  alleges that  the matter  in dispute  between  the
parties has been before adjudged. See Res judicata.

   EXCEPTION, Eng.  Eq. practice.  Re-interrogation. 2 Benth. Ev.
208, n.

   EXCEPTION, legislation,  construction.  Exceptions  are  rules
which limit  the extent  of other  more general rules, and render
that  just  and  proper,  which  would  be,  on  account  of  its
generality, unjust  and improper.  For example,  it is  a general
rule that  parties competent  may make  contracts;  the rule that
they shall  not make  any contrary  to equity,  or  contra  bonos
mores, is the exception.

   EXCEPTION, contracts.  An exception is a clause in a deed,. by
which the  lessor excepts  something out of that which he granted
before by the deed.

   2. To make a valid exception, these things must concur: 1. The
exception must be by apt words;  as, saving and excepting, &c. 2.
It must  be of part of the thing previously described, and not of
some other  thing. 3.  It must be part of the thing only, and not
of all, the greater part, or the effect of the thing granted;  an
exception, therefore,  in a  lease, which  extends to  the  whole
thing demised,  is void.  4. It  must be  of  such  thing  as  is
severable from  the demised  premises, and  hot of an inseparable
incident. 5.  It must  be of a thing as he that accepts may have,
and which  properly belongs to him. 6. It must be of a particular
thing out  of a  general, and  not of a particular thing out of a
particular thing.  7. It  must be  particularly described and set
forth;   a lease  of a  tract of  land, except one acre, would be
void, because  that acre  was not  particularly described. Woodf.
Landl. and  Ten. 10;   Co.  Litt. 47 a;  Touchs. 77;  1 Shepl. R.
337;   Wright's R. 711;  3 John. R., 375 8 Conn. R. 369;  6 Pick.
R. 499;   6  N. H.  Rep. 421. Exceptions against common right and
general rules  are construed  as strictly as possible. 1 Barton's
Elem. Conv. 68.

   3. An  exception differs  from a  reservation;   the former is
always a part of the thing granted;  the latter is of a thing not
in esse  but newly created or reserved. An exception differs also
from an  explanation, which  by the  use of a videlicet, proviso,
&c., is allowed only to explain doubtful clauses precedent, or to
separate and  distribute generals,  into particulars.  3 Pick. R.

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   EXCEPTION, practice, pleading. This term is used in the civil,
nearly in  the same  sense that  the word  plea has in the common
law. Merl. Repert. h. t.;  Ayl. Parerg. 251.

   2. In  chancery practice,  it is  the allegation of a party in
writing,  that   some  pleading  or  proceeding  in  a  cause  is
insufficient. 1 Harr. Ch. Pr. 228.

  3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5;
Britton, cap. 91, 92;  1 Lilly's Ab. 559. Dilatory exceptions are
such as  do not tend to defeat the action, but only to retard its
progress. Poth. Proc. civ. partie 1, c. 2, s. 2, art. 1;  Code of
Pract. of  Lo. art. 332. Declinatory exceptions have this effect,
as well  as the  exception  of  discussion  opposed  by  a  third
possessor, or  by a  surety in  an  hypothecary  action,  or  the
exception taken  in order to call in the warrantor. Id.;  7 N. S.
282;   1 L.  R. 38,  420. These  exceptions must,  in general, be
pleaded in  limine litis  before issue  joined. Civ.  Code of Lo.
2260;   1 N. S. 703;  2 N. S. 389;  4 L. R. 104;  10 L. R. 546. A
declinatory exception  is a  species of dilatory exception, which
merely declines  the jurisdiction  of the  judge before  whom the
action is brought. Code of Pr. of L. 334.

   4. Peremptory exceptions are those which tend to the dismissal
of the  action. Some  relate to forms, others arise from the law.
Those which  relate to  formes, tend to have the cause dismissed,
owing to some nullities in the proceedings. These must be pleaded
in limine  litis. Peremptory exceptions founded on law, are those
which, without  going into the merits of the cause, show that the
plaintiff cannot  maintain  his  action,  either  because  it  is
prescribed, or  because the cause of action has been destroyed or
extinguished. These  may be  pleaded  at  any  time  previous  to
definitive judgment.  Id. art. 343, 346;  Poth. Proc. Civ. partie
1, c.  2, s.  1, 2,  3. These, in the French law, are called Fins
de. non recevoir. (q. v.)

   5. By  exception is  also meant the objection which is made to
the decision  of a  judge in  the course  of a trial. See Bill of

  EXCHANGE, com. law. This word has several significations.

  2. - 1. Exchange is a negotiation by which one person transfers
to another  funds which  he has  in a  certain place, either at a
price agreed  upon, or  which is  fixed by commercial usage. This
transfer is  made by means of an instrument which represents such
funds, and is well known by the name of a bill of exchange.

   3. -  2. The  price which  is paid  in order  to  obtain  such
transfer, is  also known among merchants by the name of exchange;
as, exchange  on England  is five  per cent. See 4 Wash. C. C. R.
307. Exchange  on foreign  money is to be calculated according to
the usual rate at the time of trial. 5 S. & R. 48.

   4. -  3. Barter, (q. v.) or the transfer of goods and chattels

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for other  goods and  chattels, is  also known  by  the  name  of
exchange, though the term barter is more commonly used.

   5. -  4. The  French writers on commercial law, denominate the
profit which  arises from  a maritime  loan, exchange,  when such
profit is  a per centage on the money lent, considering it in the
light of  money lent in one place to be returned in another, with
a difference in amount in the sum borrowed and that paid, arising
from the  difference of  time and  place. Hall on Mar. Loans, 56,
n.;  and the articles Interest;  Maritime;  Premium.

   6. -  5. By exchange is also meant, the place where merchants,
captains of  vessels, exchange  agents and  brokers, assemble  to
transact their business. Code de Comm. art. 71.

   7. -  6. According  to the Civil Code of Louisiana, art. 1758,
exchange imports  a reciprocal  contract, by  which. the  parties
enter into  mutual agreement.  14 Pet.  133. Vide  the  articles.
Bills of  Exchange;  Damages on Bills of Exchange and Reexchange.
Also Civ. Code of Lo. art. 2630.

   EXCHANGE conveyancing.  An exchange is a mutual grant of equal
interests in  land, the  one in consideration of the other. 2 Bl.
Com. 323;   Litt.  s. 62;   Touchs.  289;  Watk. Prin. Con. It is
said that  exchange, in  the United  States, does not differ from
bargain and sale. 2 Bouv. Inst. n. 2055.

   2. There  are five  circumstances necessary to an exchange. 1.
That the  estates given  be equal.  2. That the word escambium or
exchange be  used, which cannot be supplied by any other word, or
described by  circumlocution. 3.  That there  be an  execution by
entry or  claim in  the life  of the parties. 4. That if it be of
things which  lie in  grant, it  be by deed. 5. That if the lands
lie in several counties, it be by deed indented;  or if the thing
lie in grant, though they be in one county. In practice this mode
of conveyancing  is nearly  obsolete. Vide  Cruise, Dig.  tit. 32
Perk. ch.  4 10 Vin. Ab. 125;  Com. Dig. h. t.;  Nels. Ab. h. t.;
Co. Litt.  51;   Hardin's R.  593 1  N. H. Rep. 65 3 Har. & John.
361;  1 Rolle's Ab. 813 .3 Wils. R. 489. Vide Watk. Prin. Con. b.
2, c. 5;  Horsman, 362 and 3 Wood, 243, for forms.

   EXCHEQUER R,  Eng. law.  An ancient  court of record set up by
William the  Conqueror. It is called exchequer from the chequered
cloth, resembling  a chesshoard,  which covers the table there. 3
Bl. Com.  45. It  consists of  two divisions;  the receipt of the
exchequer, which  manages the  royal revenue;   and the court, or
judicial part  of it,  which is  again divided  into a  court  of
equity, and a court of common law. Id. 44.

  2. In this court all personal actions may be brought, and suits
in equity  commenced, the plaintiff in both (fictitiously for the
most part)  alleging himself to be the king's debtor, in order to
give the  court jurisdiction of the cause. Wooddes. Lect. 69. But
by stat.  2 Will. IV. c. 39, s. 1, a change has been made in this

   EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed.

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III. c.  12, to  determine causes  upon writs  of error  from the
common law side of the court of exchequer. 3 Bl. Com. 55. Another
court of  exchequer chamber was created by the stat. 27 El. c. 8,
consisting of the justices of the common bench, and the barons of
the exchequer.  It has  authority to examine by writ of err6r the
proceedings of the king's bench, not so generally as that erected
by the statute of Edw. III., but in certain enumerated actions.

   EXCISES. This  word is  used to  signify an inland imposition,
paid  sometimes  upon  the  consumption  of  the  commodity,  and
frequently upon  the retail  sale. 1  Bl. Com.  318;  1 Tuck. Bl.
Com. Appx. 341;  Story, Const. §950.

  EXCLUSIVE, rights. Debarring one from participating in a thing.
An exclusive right or privilege, is one granted to a person to do
a thing, and forbidding all others to do the same. A patent right
or copyright, are of this kind.

   EXCLUSIVE, computation  of time.  Shut out;   not included. As
when an act is to be done within a certain time, as ten days from
a particular  time, one  day is  to be  included  and  the  other
excluded. Vide Hob. 139;  Cowp. 714;  Lofft, 276;  Dougl. 463;  2
Mod. 280;   Sav.  124;  3 ]Penna. Rep. 200;  1 Serg. & Rawle, 43;
3 B.  & A.  581;   Com. Dig.  Temps, A;   3 East, 407;  Com. Dig.
Estates, G 8;  2 Chit. Pr. 69, 147.

     EXCOMMUNICATION,  eccl.  law.  An  ecclesiastical  sentence,
pronounced by a spiritual judge against a Christian man, by which
he is excluded from the body of the church, and disabled to bring
any action,  or sue any person in the common law courts. Bac. Ab.
h. t.;   Co. Litt. 133-4. In early times it was the most frequent
and most  severe  method  of  executing  ecclesiastical  censure,
although proper to be used, said Justinian, (Nov. 123,) only upon
grave  occasions.   The  effect   of  it   was  to   remove   the
excommunicated "person  not only  from the  sacred rites but from
the society  of men. In a certain sense it interdicted the use of
fire and  water, like the punishment spoken of by Caesar, (lib, 6
de Bell.  Gall.). as inflicted by the Druids. Innocent IV. called
it the  nerve of  ecclesiastical discipline.  On repentance,  the
excommunicated  person   was  absolved   and  received  again  to
communion. These are said to be the powers of binding and loosing
the keys  of the kingdom of heaven. This kind of punishment seems
to have been adopted from the Roman usage of interdicting the use
of fire  and water.  Fr. Duaren,  De Sacris  Eccles. Ministeriis,
lib.  1,   cap.  3.   See  Ridley's   View  of   the  Civil.  and
Ecclesiastical Law, 245, 246, 249.

   EXCOMMUNICATIO CAPIENDO,  WRIT OF,  Eng.  eccl.  law.  A  writ
issuing out  of chancery,  founded on a hishop's certificate that
the defendant  had been  excommunicated, which writ is returnable
in  the   king's  bench.   F.  N.   B.  62,   64,  65   Bac.  Ab.
Excommunication, E.  See Statutes  3 Ed.  I. c. 15;  9 Ed. II. c.
12;   2 & 3 Ed. VI. c. 13;  5 & 6 Ed. VI c. 4;  5 Eliz. c. 23;  1
H. V.  c. 5;   also  Cro. Eliz.  224, 6,80;  Cro. Car. 421;  Cro.
Jac. 567;  1 Vent. 146;  1 Salk. 293, 294, 295.

   EXCUSABLE HOMICIDE,  crim. law.  The killing of a human being,

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when the party killing is not altogether free from blame, but the
necessity which  renders it  excusable, may  be said to be partly
induce by his own act. 1 East, P. C. 220.

   EXCUSE. A  reason alleged  for the doing or not doing a thing.
This word  presents two  ideas differing  essentially  from  each
other. In  one case  an excuse  may be made in, order to own that
the party  accused is  not guilty;   in  another, by showing that
though guilty,  he is  less so,  than he appears to be. Take, for
example, the  case of  a sheriff  who has an execution against an
individual, and  who in performance of his duty, arrests him;  in
an action  by the  defendant against  the sheriff, the latter may
prove the  facts, and  this shall be a sufficient excuse for him:
this is an excuse of the first kind, or a complete justification;
the sheriff was guilty of no offence. But suppose, secondly, that
the sheriff  has an  execution against  Paul, and by mistake, and
without any  malicious design,  be arrests Peter instead of Paul;
the fact of his having the execution against Paul and the mistake
being made,  will not  justify the sheriff, but it will extenuate
and excuse  his conduct, and this will be an excuse of the second

   3. Persons  are sometimes  excused for the commission of acts,
which ordinarily are crimes, either because they had no intention
of doing  wrong, or  because they  had no  power of  judging, and
therefore had  no criminal  will (q.  v.);   or having  power, of
judging they  had no  choice, and  were compelled  by  necessity.
Among the  first class  may be  placed infants  under the  age of
discretion, lunatics,  and married women committing an offence in
the presence  of their  hushands, not  malum in se, as treason or
murder;   1 Hale's  P. C.  44, 45  or in offences relating to the
domestic concern  or management of the house, as the keeping of a
bawdy house.  Hawk. b.  1, c.  1, s. 12. Among acts of the second
kind  may   be  classed,   the  beating  or  killing  another  in
self-defence;   the destruction of property in order to prevent a
more serious calamity, as the tearing down of a house on fire, to
prevent its  spreading to the neighboring property, and the like.
See Dalloz, Dict. h. t.

   EXEAT, eccl.  law. This  is a  Latin term,  which is  used  to
express the  written  permission  which  a  hishop  gives  to  an
ecclesiastic to exercise the functions of his ministry in another

   TO EXECUTE.  To make,  to perform,  to do, to follow out. This
term is  frequently used in the law;  as, to execute a deed is to
make a deed.

   2. It  also signifies  to perform,  as to  execute a contract;
hence some  contracts are  called executed  contracts, and others
are called executory contracts.

   3. To execute also means to put to death by virtue of a lawful
sentence;  as, the sheriff executed the convict.

   EXECUTED. Something  done;   something completed. This word is
frequently used  in connexion  with others to designate a quality

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of such  other words;   as  an executed  contract;   an  executed
estate;  an executed trust, &c. It is opposed to executory.

   2. An  executed contract is one which has been fulfilled;  as,
where the  buyer has  paid thrice of the: thing-purchased by him.
See Agreement.

   3. An executed estate is when there is vested in the grantee a
present and  immediate right of present or future enjoyment;  and
in another sense, the term applies to the time of enjoyment;  and
in that  sense, an estate is said to be executed, when it confers
a present right of present enjoyment. When the right of enjoyment
in possession is to arise at a future period, only, the estate is
executed that  is, it is merely vested in point of interest: when
the right  of immediate  enjoyment is annexed to the estate, then
only is the estate vested in possession. 1 Prest. on Est. 62.

   4. Trusts  executed are,  when by  deed  or  will,  lands  are
conveyed, or  devised, in terms or in effect , to and for the use
of one  person or  several persons,  in trust for others, without
any  direction   that  the   trustees  shall   make  any  farther
conveyance;   so that  it does  not appear that the author of the
trusts had  a view  to a  future instrument for accomplishing his
intention. Prest. on Est.188.

  EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45,
in the  following connexion:  Et...precipiatur vice  comiti  quod
scire faciat  parti... quod  sit ad certum diem ostensura si quid
sciat dicere  quare hujustnodi  irrotulata vel  in fine  contenta
executionem habere non debeant. This statute is the origin of the
scire facias  post annum et diem quare executionem non, etc. To a
plea in  bar to  such a  writ, the defendant should conclude that
the plaintiff  ought  not  to  have  or  maintain  his  aforesaid
execution thereof  against him, which is called the executio non,
as in other cases by actio non. (q. v.) 10 Mod. 112;  Yelv. 218.

   EXECUTION, contracts.  The accomplishment  of a thing;  as the
execution of  a bond  and  warrant  of  attorney,  which  is  the
signing, sealing, and delivery of the same.

  EXECUTION, crim. law. The putting a convict to death, agreeably
to law, in pursuance of his sentence.

   EXECUTION, practice. The act of carrying into effect the final
judgment of  a court,  or  other  jurisdiction.  The  writ  which
authorizes the  officer so  to carry into effect such judgment is
also called an execution.

   2. A  distinction has  been made between an execution which is
used to  make the  money due on a judgment out of the property of
the defendant,  and which  is called  a final execution;  and one
which tends to an end but is not absolutely final, as a capias ad
satisfaciendum, by  virtue of  which the body of the defendant is
taken, to  the intent  that the  plaintiff shall be satisfied his
debt, &c.,  the imprisonment  not being  absolute, but  until  he
shall satisfy  the same;  this is called an execution quousque. 6
Co. 87.

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   3. Executions are either to recover specific things, or money.
1. Of  the first  class are the writs of habere facias seisinam.;
(q. v.)  habere facias  possessionem;   (q. v.)  retorno habendo;
(q. v.)  distringas. (q.  v.) 2.  Executions for  the recovery of
money are those which issue against the body of the defendant, as
the capias  ad satisfaciendum,  (q. v.);  an attachment, (q. v.);
those which  issue against  his goods  and chattels;  namely, the
fieri facias,  (q. v.);  the, venditioni exponas, (q. v.);  those
which issue  against his  lands, the  levari facias;  (q. v.) the
liberari facias;   the  elegit. (q.  v.) Vide 10 Vin. Ab. 541;  1
Ves. jr.  430;   1 Sell.  Pr. 512;  Bac. Ab. h. t.;  Com. Dig. h.
t.;   the various  Digests, h.  t.;   Tidd's Pr. Index, h. t.;  3
Bouv. Inst.  n. 3365, et seq. Courts will at any time grant leave
to amend  an execution  so as  to  make  it  conformable  to  the
judgment on which it was issued. 1 Serg. & R. 98. A writ of error
lies on  an award  of execution. 5 Rep. 32, a;  1 Rawle, Rep. 47,
48;  Writ of Bxecution;

   EXECUTION PAREE. By the term execution paree, which is used in
Louisiana, is  meant a  right founded  on an authentic act;  that
is, and  passed before  a  notary,  by  which  the  creditor  may
immediately, without  citation or  summons, seize and cause to be
sold, the property of his debtor, out of the proceeds of which to
receive his  payment. It imports a confession of judgment, and is
not unlike a warrant of attorney. Code of Pr. of Lo. art. 732;  6
Toull. n. 208;  7 Toull. 99.

  EXECUTIONER. The name given to him who puts criminals to death,
according to their sentence;  a hangman.

   2. In the United States, executions are so rare that there are
no executioners  by profession.  It is the duty of the sheriff or
marshal to  perform this  office, or to procure a deputy to do it
for him.

   EXECUTIVE, government.  That power  in  the  government  which
causes the  laws to  be  executed  and  obeyed:  it  is  usually.
confided to  the hands of the chief magistrate;  the president of
the United  States is  invested with  this  authority  under  the
national government;   and  the governor  of each  state has  the
executive power in his hands.

   2. The  officer in  whom is vested the executive power is also
called the executive.

   3. The  Constitution of  the United  States directs  that "the
executive power  shall be  vested in  a president  of the  United
States of America." Art. 2, s. 1. Vide Story, Const. B. 3, c. 36.

   EXECUTOR, trusts.  The word  executor, taken  in  its  largest
sense, has several accep tations. 1. Executor dativus, who is one
called  an   administrator   to   an   intestate.   2.   Executor
testamentarius, or  one appointed  to the office by the last will
of a testator, and this is what is usually meant by the term.

  2. In the civil law, the person who is appointed to perform the

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duties  of   an  executor   as  to   goods,  is   called   haeres
testamentarius;   the term  executor, it  is said, is a barbarism
unknown to that law. 3 Atk. 304.

   3. An  executor, as  the term  is at  present accepted, is the
person to  whom the  execution of  a last  will and  testament of
personal estate is , by the testator's appointment, confided, and
who has  accepted of  the same.  2 Bl.  Com. 503;  2 P. Wms. 548;
Toller, 30;  1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl. 2.

   4. Generally  speaking, all  persons who are capable of making
wills may  be executors,  and some  others beside, as infants and
married women. 2 Bl. Corn. 503.

   5. An  executor is  absolute or qualified;  his appointment is
absolute when  he  is  constituted  certainly,  immediately,  and
without restriction  in regard  to  the  testator's  effects,  or
limitation in point of time. It may be qualified by limitation as
to the time or place wherein, or the subject matters whereon, the
office is  to be exercised;  or the creation of the office may be
conditional. It may be qualified. 1st. By limitations in point of
time, for the time may be limited when the person appointed shall
begin, or  when he  shall cease  to be  executor;  as if a man be
appointed executor  upon the  marriage  of  testator's  daughter.
Swinb. p. 4, s. 17, pl. 4. 2. The appointment may be limited to a
place;   as, if  one be  appointed executor of all the testator's
goods in  the state of Pennsylvania. 3. The power of the executor
may be  limited as  to the  subject matter upon which if is to be
exercised;   as, when  a testator appoints. A the executor of his
goods and  chattels in  possession;   B, of his choses in action.
One may  be appointed  executor of  one  thing,  only,  as  of  a
particular claim  or debt due by bond, and the like. Off. Ex. 29;
3 Phillim. 424. But although a testator may thus appoint separate
executors of distinct parts of his property, and may divide their
authority, yet  quoad the  creditors of the testator they are all
executors, and  act as  one executor,  and may  be  sued  as  one
executor. Cro.  Car. 293.  4. The appointment may be conditional,
and the condition may be either precedent or subsequent. Godolph.
Orph. Leg.  pt. 2,  c. 2,  s. 1;   Off.  Ex. 23.  6. An  executor
derives his  interest in the estate of the deceased entirely from
the will,  and it  vests in him from the moment of the testator's
death. 1  Will. Ex. 159;  Com. Dig. Administration, B 10;  5 B. &
A. 745;   2  W. Bl. Rep. 692. He acquires an absolute legal title
to the personalty by appointment, but nothing in the lands of the
testator, except  by devise.  He can  touch nothing which was not
personal at  the testator's decease, except by express direction.
9 Serg.  & Rawle,  431;  Gord. Law Dec. 93. Still his interest in
the goods  of the  deceased is  not  that  absolute,  proper  and
ordinary interest,  which every  one has in his own proper goods.
He is  a mere trustee to apply the goods for such purposes as are
sanctioned by  law. 4  T. R.  645;  9 Co. 88;  2 Inst. 236;  Off.
Ex. 192.  He represents  the testator,  and therefore may sue and
recover all the claims he had at the time of his death and may be
sued for  all debts  due by  him. 1 Will. Ex. 508, et seq. By the
common law,  however, such  debts as were not due by some writing
could not  be recovered  against  the  executors  of  a  deceased
debtor. The  remedy was  only in  conscience or by a quo minus in

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the exchequer.  Afterwards an  action on  the case in banco regis
was given.  Crom t. Jurisdic. 66, b;  Plowd. Com. 183: 11 H. VII.

   7. The  following are  the principal duties of an executor: 1.
Within a  convenient time  after the testator's death, to collect
the goods of the deceased, provided he can do so peaceably;  when
he is resisted, he must apply to the law for redress.

  8. - 2. To bury the deceased in a manner suitable to the estate
he leaves  behind him;   and when there is just reason to believe
he died  insolvent, he  is not  warranted in  expending  more  in
funeral expenses  (q. v.)  than is  absolutely necessary. 2 Will.
Ex. 636;   1  Salk. 296;  11 Serg. & Rawle, 204 14 Serg. & Rawle,

   9. -  3. The  executor should  prove the  will in  the  proper
 10. - 4. He should make an inventory (q. v.) of the goods of the
intestate, which should be filed in the office.
 11.  - 5.  He should  ascertain the  debts and  credits  of  the
estate, and  endeavor to  collect all claims with as little delay
as possible, consistently with the interest of the estate.
 12. - 6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
 13.  -  7.  He  should  reduce  the  whole  of  the  goods,  not
specifically bequeathed into money, with all due expedition.
 14.-8.  Keep the  money of the estate safely, but not mixed with
his own, or he may be charged interest on it.
 15.-9.  Be at  all times  ready to account, and actually file an
account within a year.
 16.  - 10.  Pay the  debts and legacies in the order required by
 17.  Co-executors, however  numerous, are considered, in law, as
an individual  person, and;  consequently, the acts of any one of
them, in respect of the administration of the assets, are deemed,
generally, the  acts of  all. Bac.  Ab. Executor, D;  Touch. 484;
for they  have all  a joint  and entire  authority over the whole
property  Off.   Ex.  213;    1  Rolle's  Ab.  924;    Com.  Dig.
Administration, B  12. On  the death  of one  or more  of several
joint  executors,   their  rights   and  powers  survive  to  the

   18. When there are several executors and all die, the power is
in common  transferred to  the executor  of  the  last  surviving
executor, so  that he is executor of the first testator;  and the
law is  the same  when a  sole executor dies leaving an executor,
the rights  are vested in the latter. This rule has been changed,
in Pennsylvania,  and, perhaps, some other states, by legislative
provision;   there, in  such case,  administration cum testamento
annexo must  be obtained,  the right  does  not  survive  to  the
executor of  the executor. Act of Pennsylvania, of March 15 1832.
s. 19.  In general, executors are not responsible for each other,
and they  have a  right to  settle separate  accounts. See Joint,

   19.  Executors  may  be  classed  into  general  and  special;

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instituted and  substituted;   rightful and executor de son tort;
and executor to the tenor.

   20. A  general executor  is one who is appointed to administer
the whole  estate, without  any limit of time or place, or of the

   21. A special executor is one. who is appointed or constituted
to administer  either a  part of  the estate,  or the whole for a
limited time, or only in a particular place.

   22. An  instituted executor  is one  who is  appointed by  the
testator without  any condition,  and who  has the first right of
acting when there are substituted executors. An example will show
the difference  between an  instituted and  substituted executor:
suppose a man makes his son his executor, but if he will not act,
he appoints  his brother,  and if  neither will  act, his cousin;
here the son is the instituted executor, in the first degree, the
brother is  said to  be substituted in the second degree, and the
cousin in  the third degree, and so on. See Heir, instituted, and
Swinb. pt. 4, s. 19, pl. 1.

   23. A  substituted executor is a person appointed executor, if
another person who has been appointed refuses to act.

   24. A  rightful executor  is one  lawfully  appointed  by  the
testator, by  his will.  Deriving his authority from the will, he
may do  most acts, before he obtains letters testamentary, but he
must be  possessed of  them before.  he  can  declare  in  action
brought by him, as such. 1 P. Wms. 768;  Will. on Ex. 173.

   25. An executor de son tort, or of his own wrong, is one, who,
without lawful  authority, undertakes  to act.  as executor  of a
person deceased. To make fin executor de son tort, the act of the
party must  be, 1. Unlawful. 2. By asserting ownership, as taking
goods or  cancelling a bond, and not committing a mere, trespass.
Dyer, 105, 166;  Cro. Eliz. 114. 3. An act done before probate of
will, or granting letters of administration. 1 Salk. 313. One may
be executor  de son  tort when  acting under a forged will, which
has been  set aside.  3 T.  R. 125 . An executor de son tort. The
law on  this head  seems to have been borrowed from the civil law
doctrine of  pro hoerede  gestio. See  Heinnec. Antiq.  Syntagma,
lib.  2,  tit.,  17,  §16,  p.  468.  He  is,  in  general,  held
responsible for  all his  acts, when he does anything which might
prejudice the  estate, and  receives no,  advantage  whatever  in
consequence of his assuming the office. He cannot sue a debtor of
the estate,  but may  be sued  generally as  executor. See a good
reading on the liabilities of executors de son tort, in: Godolph.
Orph. Legacy,  91, 93,  and 10  Wentw.  Pl.  378,  for  forms  of
declaring;   also, 5  Co. Rep.  50 31 a;  Yelv. 137;  1 Brownlow,
103;  Salk. 28;  Ham. Parties, 273;  Imp. Mod. Pl. 94. As to what
acts will  make a  person liable  as executor  de son  tort,  see
Godolph. O  ubi sup.;   Gord.  Law of Dec. 87, 89;  Off. Ex. 181;
Bac. Ab. Executor, &c., B 3;  11 Vin. Ab. 215;  1 Dane's Ab. 561;
Bull. N.  P. 48;  Com. Dig. Administration C 3  Ham. on Part. 146
to 156;  8 John. R. 426;  7 John. R. 161;  4 Mass. 654;  3 Penna.
R. 129;  15 Serg. & Rawle, 39.

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   26. -  2. The  ussurpation of  an office  or character  cannot
confer the  rights and  privileges of  it, although it may charge
the usurper  with the  duties and  obligations annexed  to it. On
this principle  an executor  de son  tort is an executor only for
the purpose  of being  sued, not  for the  purpose, of  suing. In
point of  form, he  is sued as if he were a rightful executor. He
is not  denominated in  the declaration executor (de son tort) of
his own  wrong. It  would be improper to allege that the deceased
person with  whose estate he has intermeddled died intestate. Nor
can he  be made  a co-defendant  with a  rightful executor.  Ham.
Part. 146,  272, 273;   Lawes  on Plead.  190, note;   Com.  Dig.
Abatement, F  10. If he take out letters of administration, he is
still liable to be sued as executor, and in general, it is better
to sue  him as  executor than  as administrator. Godolph. 0. Leg.
93, 94, 95, §§2, 3.

   27. An  executor to  the tenor.  This phrase  is ased  in  the
ecclesiastical law,  to denote  a  person  who  is  not  directly
appointed by  the will  an executor,  but who is charged with the
duties which  appertain to  one;  as, "I appoint A B to discharge
all lawful  demands against my will." 3 Phill. 116;  1 Eccl. Rep.
374;   Swinb. 247  Wentw.  Ex.  part  4,  s.  41  p.  230.  Vide.
generally, Bouv.  Inst. Index,  h. t.;   11 Vin. Ab. h. t.;  Bac.
Ab. h.  t.;   Rolle, Ab.  h. t.;  Nelson's Ab. h. t.;  Dane's Ab.
Index, h.  t.;  Com. Dig. Administration;  1 Supp. to Ves. jr. 8,
90, 356,  438;   2 Id.  69;  1 Vern. 302-3;  Yelv. 84 a;  1 Salk.
318;   18 Engl.  C. L. Rep. 185;  10 East, 295;  2 Phil. Ev. 289;
1 Rop. Leg.' 114;  American Digests, h. t.;  Swinburne, Williams,
Lovelass, and Roberts' several treatises on the law of Executors;
Off. Ex.  per totum;   Chit.  Pr. Index;   h.  t. For the various
pleas that  may be pleaded by executors, see 7 Wentw. Plead. 596,
602;   10 Id. 378;  Cowp. 292. For the origin and progress of the
law in  relation to executors, the reader is referred to 5 Toull.
n. 576, note;  Glossaire du Droit Francais, par Delauriere, verbo
Executeurs Testamentaires,  and the  same author  on art. 297, of
the Custom of Paris;  Poth. Des Donations Testamen taires.

   EXECUTORY. Whatever may be executed;  as an executory sentence
or judgment, an executory contract.

   EXECUTORY DEVISE, estates. An executory devise is a limitation
by will of a future contingent interest in lands, contrary to the
rules of  limitation of  contingent estate  is in  conveyances at
law. When the limitation by will does not depart from those rules
prescribed for the government of contingent remainders, it is, in
that case, a contingent remainder, and not an executory devise. 4
Kent, Com. 257;  1 Eden's R. 27;  8 T. R. 763.

   2. An executory devise differs from a contingent remainder, in
three material  points. 1.  It  needs  no  particular  estate  to
precede and  support it;   for example, a devise to A B, upon his
marriage. 2.  A fee may be limited after a fee, as in the case of
a devise of land to C D, in fee, and if he dies without issue, or
before the  age of twenty-one, then to E F, in fee. 3. A term for
years may  be limited  over after  a life  estate created  in the
same. 2 Bl. Com. 172, 173.

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   3. To  prevent perpetuities,  a rule has been adopted that the
contingency must  happen during  the time  of a  life or lives in
being and  twenty-one years  after, and  the months  allowed  for
gestation in  order to  reach beyond the minority of a person not
in esse  at the  time of  making the  executory devise. 3 P. Wms.
258;  7 T. R. 100;  2 Bl. Com. 174;  7 Cranch, 456;  1 Gilm. 194;
2 Hayw. 375.

   4. There are several kinds of executory devises;  two relative
to real estate, and one in relation to personal estate.

   5. - 1. When the devisor parts with his whole estate, but upon
some contingency,  qualifies the disposition of it, and limits an
estate on  that  contingency.  For  example,  when  the  testator
devises to  Peter for  life, remainder  to Paul, in fee, provided
that if James should within three months after the death of Peter
pay one  hundred dollars  to Paul, then to James in fee;  this is
an executory  devise to  James, and if he dies during the life of
Peter, his heir may perform the condition. 10 Mod. 419;  Prec. in
Ch. 486;   2  Binn. 532;   5  Binn. 252;  7 Cranch, 456;  6 Munf.
187;  1 Desaus. 137, 183;  4 Id. 340, 459;  5 Day, 517.

  6. - 2. When the testator gives a future interest to arise upon
a contingency,  but does  not part  with the fee in the meantime;
as in  the case  of a  devise of  the estate to the heirs of John
after the  death of  John;   or a  devise to John in fee, to take
effect six months after the testator's death;  or a devise to the
daughter of  John, who  shall marry Robert within fifteen, years.
T. Raym. 82;  1 Salk. 226;  1 Lutw. 798.

   7. -  3. The  executory bequest of a chattel interest is good,
even though  the ulterior legatee be not at the time in esse, and
chattels so  limited are  protected from the demands of creditors
beyond the  life of  the first taker, who cannot pledge them, nor
dispose of  them beyond  his own  life interest  in them. 2 Kent,
Com. 285;   2 Serg. & Rawle, 59;  l Desaus 271;  4 Desaus.340;  1
Bay, 78.  But such  a bequest,  after an  indefinite  failure  of
issue, is  bad. See  2 Serg. & R. 62;  Watk. Prin. Con. 112, 116;
Harg. note,  1 Tho.  Co. Litt.  595-6, 515-16.  Vide,  Com.  Dig.
Estates by  Devise., N  16;   Fearne on  Rem. 381;  Cruise's Dig.
Index, h.  t.;   4 Kent,  Com. 357 to 381;  2 Hill. Ab. c. 43, p.

   EXECUTORY PROCESS,  via executoria.  In Louisiana,  this is  a
process which  can be  resorted to only in two. cases, namely: 1.
When  the   creditor's  right  arises-from  an  act  importing  a
confession  of  judgment,  and  which  contains  a  privilege  or
mortgage in his favor. 2. When the creditor demands the execution
of a  judgment which  has been  rendered by  a tribunal different
from that within whose jurisdiction the execution is sought. Code
of Practice, art. 732.

   EXECUTORY TRUST.  A trust  is said  to be executory where some
further act  is requisite  to be  done by the author of the trust
himself or  by the trustees, to give it its full, effect;  as, in
the case  of marriage  articles;   or, as  in the case of a will,

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where, property  is vested  in trustees  in trust  to  settle  or
convey.;   for, it  is apparent in both of these cases, a further
act, namely, a settlement or a conveyance, is contemplated.

   2. The  difference between an executed and an executory trust,
is this,  that courts  of equity in cases of executed trusts will
construe the  limitations in  the same  manner as  similar  legal
limit-ations. White's L. C. in Eq. 18. But, in cases of executory
trusts, a  court of  equity is  not, as  in the  case of executed
trusts,  bound  to  construe  technical  expressions  with  legal
strictness, but  will mould the trusts according to the intent of
the creator of such trusts White's L. C. Eq. 18.

  3. When a voluntary trust is executory, and not executed, if it
could  not  be  enforced  at  law,  because  it  is  a  defective
conveyance, it  is not helped in equity, in favor of a volunteer.
4 John. Ch. 498, 500;  4 Paige, 305;  1 Dev. Eq. R. 93.

   4. But where the trust, though voluntary, has been executed in
part, it will be sustained or enforced, in equity. 1 John. Ch. R.
329;   7 Penn.  St. R.  175, 178;  White's L. C. in Eq. *176;  18
Ves. 140;  1 Keen's R. 551;  6 Ves. 656;  3 Beav. 238.

   EXECUTRIX, A  woman who has been appointed by. will to execute
such will or testament. See Executor.

   EXEMPLIFICATION, evidence.  A perfect  copy of  a  record,  or
office book  lawfull kept,  so far  as relates  to the  matter in
question. 3  Bouv. Inst.  n. 3107.  Vide, generally, 1 Stark. Ev.
151;   1 Phil. Ev. 307;  7 Cranch, 481;  3 Wheat. 234;  10 Wheat.
469;   9 Cranch, 122;  2 Yeates, 532;  1 Hayw. 359;  1 John. Cas.
238. As  to the  mode of  authenticating records of other states,
see articles Authentication, and Evidence.

   EXEMPTION. A  privilege which dispenses with the general rule;
for example,  in Pennsylvania,  and  perhaps  in  all  the  other
staies, clergymen  are exempt  from serving on juries. Exemptions
are generally allowed, not for the benefit of the individual, but
for some public advantage.

  EXEMPTS. Persons who are not bound by law, but excused from the
performance of duties imposed upon others.

   2. By  the Act  of Congress  of May 8, 1792, 1 Story, L. U. S.
252, it  is provided,  §2. That  the vice-president of the United
States the officers, judicial and executive, of the government of
the United  States;   the members of both houses of congress, and
their respective officers;  all custom-house officers, with their
clerks;   all post  officers, and stage drivers, who are employed
in the  care and conveyance of the mail of the post office of the
United States;   all  ferrymen employed  at any ferry on the post
road;   all inspectors  of exports;   all  pilots;  all mariners,
actually employed  in the  sea service of any citizen or merchant
within the  United States;   and  all persons who now are, or may
hereafter be,  exempted by  the laws  of the  respective  states,
Shall  be,   and  are   hereby,  exempted   from  militia   duty,
notwithstanding their  being above the age of eighteen, and under
the age of forty-five years.

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   EXEQUATUR, French  law. This  Latin word  was, in  the ancient
practice, placed  at the  bottom of  a  judgment  emanating  from
another tribunal,  and was  a permission  and  authority  to  the
officer to  execute it  within the  jurisdiction of the judge who
put it below the judgment.

   2. We  have something of the same kind in our practice. When a
warrant for  the arrest  of a  criminal is issued by a justice of
the peace  of one county, and he flies into another, a justice of
the  latter   county  may   endorse  the  warrant  and  then  the
ministerial officer may execute it in such county. This is called
backing a warrant.

   EXEQUATUR, internat.  law. A declaration made by the executive
of a  government near  to which  a consul  has been nominated and
appointed ,  after  such  nomination  and  appointment  has  been
notified, addressed  to the  people,  in  which  is  recited  the
appointment of  the foreign  state, and that the executive having
approved of  the consul  as such,  commands all  the citizens  to
receive, countenance,  and, as  there may  be occasion, favorably
assist the  consul in  the exercise  of  his  place,  giving  and
allowing him  all the  privileges,  immunities,  and  advantages,
thereto belonging. 3 Chit. Com. Law, 56;  3 Maule & Selw. 290;  5
Pardes. 1445.

   EXERCITOR. A  term in  the civil law, to denote the person who
fits out,  and equips  a vessel,  whether he  be the  absolute or
qualified owner, or even a mere agent. Emer. on Mar. Loans, c. 1,
s. 1.

   2. In English, we generally use the word "ship's hushand," but
exercitor is  generally used  to designate  and distinguish  from
among several  part owners  of  a  ship,  the  one  who  has  the
immediate care  an management  of her. Hall on Mar. Loans 142, n.
See Dig.  19, 2, 19, 7;  Id. 14, 1 1, 15;  Vicat, Vocab.;  Ship's

   EXHEREDATION, civil  law. The  act by  which a  forced heir is
deprived of  his legitimate  or legal portion which the law gives
him;  disinherison. (q. v.)

  EXHIBIT, practice. Where a paper or other writing is on motion,
or on  other occasion,  proved;   or if an affidavit to which the
paper writing  is annexed,  refer to  it, it is usual to mark the
same with  a capital  letter, and  to add,  " This  paper writing
marked with  the letter  A, was shown to the deponent at the time
of his  being sworn  by me, and is the writing by him referred to
in the  affidavit annexed  hereto." Such  paper or other writing,
with this attestation, signed by the judge or other person before
whom the  affidavit shall  have been sworn, is called an exhibit.
Vide Stra. 674;  2 P. Wms. 410;  Gresl. Eq. Ev. 98.

   TO EXHIBIT.  To produce  a thing  publicly, so  that it may be
taken possession  of, or  seized. Dig. 10, 4, 2. To exhibit means
also to  file of  record;   as, it  is the practice in England in

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personal actions, when an officer or prisoner of the king's bench
is defendant,  to proceed  against such defendant in the court in
which he  is an  officer, by  exhibiting, that  is, filing a bill
against him.  Stepb. P.I. 52, n. (1);  2 Sell. Pr. 74. In medical
language, to. exhibit signifies to ad minist er, to cause a thing
to be taken by a patient. Chit. bled. Jur. 9.

  EXHIBlTANT. One who exhibits any thing;  one who is complainant
in articles  of the  peace. 12  Adol. & Ellis, 599 40 E. C. L. R.

  EXHIBITION, Scotch law. An action for compelling the production
of writings.  In Pennsylvania,  a party  possessing  writings  is
compelled, to  produce them  on proper  notice  being  given,  in
default of which judgment is rendered against him.

  EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course
of proceedings  to out  lawry, deriving  its name and application
from the  mandatory words  found therein,  signifying, "that  you
cause to be exacted or required;  and it is that proceeding in an
outlawry which, with the writ of proclamation, issued at the same
time, immediately  precedes the writ of capias utlagatum. 2 Virg.
Cas. 244.

  EXIGIBLE. That which may be exacted demandable;  requirable.

  EXILE, civil law. The: interdiction of all places except one in
which the party is foreed to make his residence.

  2. This punishment did not deprive the sufferer of his right of
citizenship or  of his property, unless the exile were perpetual,
in which  case confiscation  not unfrequently  was a  part of the
sentence. Exile  was temporary  or perpetual.  Dig.  48,  22,  4;
Code, 10,  59, 2.  Exile differs  from deportation,  (q. v.)  and
relegation. (q. v.) Vide, 2 Lev. 191;  Co. Litt. 133, a.

   EXILIUM. By  this term  is understood that kind of waste which
either drove away the inhabitants into a species of exile, or had
a tendency  to do so;  as the prostrating or extirpating of trees
in an  orchard or  avenue, or about any house. Bac. Ab. Waste, A;
Bract. lib. 4, c. 18, s. 13;  1 Reeves' Hist. Law, 386.

  EXITUS. Issue,, child, or offspring;  rents or profits of land.
Cowell, h.  v.  In  pleading,  it  is  the  issue,  or  the  end,
terminaion, or  conclusion of  the pleadings,  and is  so called,
because an issue brings the pleadngs to a close. 3 Bl. Com. 314.

  EXIGENDARY, Eng. law. An officerwho makes out exigents.

   EXOINE, French  law. An  act or  instrument in  writing, which
contains the  reasons why  a party  in a  civil suit, or a person
accused, who  has been summoned, agreeably to the requisitions of
a decree,  does not  appear. Poth.  Proced. Crim.  s. 3,  art. 3.
Vide Essoin.

  EXONERATION. The taking off a burden or duty.

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   2. It  is a  rule in the distribution of an intestate's estate
that the  debts which  he himself  contracted, and  for which  be
mortgaged his land as security, shall be paid out of the personal
estate in exoneration of the real.

   3. But  when the  real estate is charged with the payment of a
mortgage at  the time  the intestate buys it, and the purchase is
made subject  to it,  the personal.  is not  in that  case to  be
applied, in exoneration of the real estate. 2 Pow. Mortg. 780;  5
Hayw. 57;  3 Johns. Ch. R. 229.

   4. But  the rule  for exonerating  the real  estate out of the
personal, does  not apply against specific or pecuniary legatees,
nor the  widow's right  to paraphernalia,  and  with  reason  not
against the interest of creditors. 2 Ves. jr. 64;  1 P. Wms. 693;
Id. 729;   2  Id. 120,335;  3 Id. 367. Vide Pow. Mortg. Index, h.

   EXONERATUR, practice.  A short  note entered  on a bail piece,
that the  bail is  exonerated or  discharged  in  consequence  of
having fulfilled  the condition  of his obligation, made by order
of the court or of a judge upon a proper cause being shown.

   2. A surrender is the most usual cause;  but an exoneratur may
be entered  in other cases, as in case of death of the defendant,
or his bankruptcy. 1 Arch. Pr. 280, 281, 282;  Tidd's Pr. 240.

  EXPATRIATION. The voluntary act of abandoning one's country and
becoming the citizen or subject of another.

   2. Citizens  of the United States have the right to expatriate
themselves until  restrained by  congress;   but it  seems that a
citizen cannot  renounce his  allegiance  to  the  United  States
without the  permission of  government, to be declared by law. To
be legal,  the expatriation  must be  for a  purpose which is not
unlawful, nor in fraud of the duties of the emigrant at home.

   3. A  citizen may  acquire in  a  foreign  country  commercial
privileges attached  to his  domicil, and  be exempted  from  the
operation of  commercial acts  embracing only persons resident in
the United  States or  under its  protection. 2 Cranch, 120. Vide
Serg. Const.  Law, 318,  2d ed;  2 Kent, Com. 36;  Grotius, B. 2,
c. 5,  s. 24;  Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, c. 19,
s. 218,  223, 224,  225 Wyckf. tom. i. 117, 119;  3 Dall. 133;  7
Wheat. 342;   1  Pet. C.  C. R.  161;   4 Hall's  Law Journ. 461;
Bracken. Law  Misc. 409;  9 Mass. R. 461. For the doctrine of the
English  courts   on  this   subject,  see   1   Barton's   Elem.
Conveyancing, 31,  note;   Vaugh, Rep. 227, 281, 282, 291;  7 Co.
Rep. 16  Dyer, 2,  224, 298 b, 300 b;  2 P. Wms. 124;  1 Hale, P.
C. 68;  1 Wood. 382.

   EXPECTANCY, estates.  Having a  relation to or dependence upon
something future.

   2. Estates  are of  two sorts, either in possession, sometimes
called estates  executed;  or in expectancy, which are executory.
Expectancies  are,  first,  created  by  the  parties,  called  a
remainder;  or by act of law, called a reversion.

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   3. A  bargain in  relation to  an expectancy  is, in  general,
considered invalid.  2 Ves.  157;  Sel. Cas. in Ch. 8;  1 Bro. C.
C. 10;  Jer. Eq. Jur. 397.

   EXPECTANT. Having  relation to,  or depending  upon something;
this word  is frequently  used in  connexion  with  fee,  as  fee

   EXPECTATION. That  which may be expected, although contingent.
In the  doctrine of  life annuities,  that share or number of the
years of  human life  which a person of a given age may expect to
live, upon an equality of chances.

   2. In  general, the  heir apparent  will be  relieved  from  a
contract made in relation to his expectancy. See Post Obit.

   EXPENSAE LITIS.  Expenses of  the suit;   the  costs which are
generally allowed
to the successful party.

   EXPERTS. From the Latin experti,which signifies, instructed by
experience. Persons who are selected by the courts or the parties
in a  cause on  account of  their knowledge or skill, to examine,
estimate, and  ascertain things,  and  make  a  report  of  their
opinions. Merl. Repert. mot Expert;  2 Lois des Batimens, 253;  2
N. S. 1 5 N.. S. 557;  3 L. R. 350;  11 L. R. 314 11 S. & R. 336;
Ray. Med. Jur. Prel. Views, §29;  3 Bouv. Inst. n. 3208.

   EXPILATION, civil law. The crime of abstracting the goods of a

   2. This  is said  not to  be a  theft, because the property no
longer belongs  to the  deceased, nor  to the  heir before he has
taken possession.  In  the  common  law,  the  grant  of  letters
testamentary, or  letters of  administration, relate  back to the
time of  the death  of the  testator or  intestate, so  that  the
property of the estate is vested in the executor or administrator
from that period.

  EXPIRATION. Cessation;  end. As, the expiration of, a lease, of
a contract, or statute.

   2. In general, the expiration of a contract puts an end to all
the engagements  of the parties, except to those which arise from
the non-fulfilinent  of obligations created during its existence.
For example,  the expiration  of a  partnership so  dissolves it,
that the  parties cannot in general create any new liability, but
it still subsists, to enable the parties to fulfil engagements in
which the  partners have  engaged, or to compel others to perform
their obligations towards them. See Dissolution;  Contracts.

   3. When  a statute  is limited  as to time, it expires by mere
lapse of time, and then it has no force whatever;  and, if such a
statute repealed  or supplied a former statute, the first statute
is, i  so facto,  revived by  the  expiration  of  the  repealing

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statute;   6 Whart.  294;   1 Bland, R. 664 unless it appear that
such was  not the  intention of the legislature. 3 East, 212 Bac.
Ab. Statute, D.

   EXPORTATION, commercial  law. The  act of  sending  goods  and
merchandise from  one country to another. 2 Mann. & Gran. 155;  3
Mann. & Gran. 959.

   2. In  order to  preserve equality  among the states, in their
commercial relations,  the constitution provides that " no tax or
duty shall  be laid on articles exported from any state." Art. 1,
s. 9.  And to prevent a pernicipus interference with the commerce
of the  nation, the  10th section  of  the  1st  article  of  the
constitution contains  the  following  prohibition:  "  No  state
shall, without the consent of congress, lay any imposts or duties
on imports  or exports,  except what  may be absolutely necessary
for executing  its inspection  laws;   and the net produce of all
duties and  imposts, laid  by any  state on  imports or  exports,
shall be  for the  use of the treasury of the United States;  and
all such laws shall be subject to the revision and control of the
congress." Vide 12 Wheat. 419;  and the article Importation.

  EXPOSE' A French word, sometimes applied to a written document,
containing the  reasons or  motives for  doing a  thing. The word
occurs in diplomacy.

   EXPOSITION DE  PART, French  law. The  abandonment of a child,
unable to  take care  of itself,  either in  a public  or private

  2. If the child thus exposed should be killed in consequence of
such exposure;   as,  if it  should be  devoured by  animals, the
person thus  exposing it would be guilty of murder. Rose. Cr. Ev.

  EXPRESS. That which is made known, and not left to implication.
The opposite  of implied.  It is  a rule,  that when  a matter or
thing is  expressed, it  ceases to  be implied  by law: expressum
facit cessare tacitum. Co. Litt. 183;  1 Bouv. Inst. n. 97.

   EXPRESSION. The  term or use of language employed to explain a

   2. It  is a general rule, that expressions shall be construed,
when they  are capable  of several  significations, so as to give
operation to the agreement, act, or will, if it can be done;  and
an expression  is always  to be  understood  in  the  sense  most
agreeable  to   the  nature   of  the   contract.  Vide   Clause;
Construction;  Equivocal;  Interpretation;  Words.

   EXPROMISSION, civil law. The act by which a creditor accepts a
new debtor,  who becomes  bound instead  of the  old, the  latter
being released.  It is  a species  of novation.  (q. v.)  1 Bouv.
Inst. n. 802. Vide Delegation.

   EXPROMMISSOR, civil law. By this term is understood the person
who alone  becomes bound  for the  debt of  another, whether  the

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latter were  obligated or  not. He  differs from a surety, who is
bound together  with his  principal. Dig.  12, 4, 4;  Dig. 16, 1,
13;  Id. 24, 3, 64, 4;  Id. 38, 1, 37, 8.

   EXPULSION. The  act of  depriving a  member of a body politic,
corporate, or  of a  society, of his right of membership therein,
by the  vote of such body or society, for some violation of hi's.
duties as such, or for some offence which renders him unworthy of
longer remaining a member of the same.

   2. By the Constitution of the United States, art. 1, s. 5, §2,
each house may determine the rules of its proceedings, punish its
members for  disorderly behaviour,  and, with  the concurrence of
two-thirds' expel  a member. In the case of John Smith, a senator
from Ohio,  who  was  expelled  from  the  senate  in  1807,  the
committee made a report which embraces the following points:

   3. -  1. That  the senate  may  expel  a  member  for  a  high
misdemeanor,  such   as  a  conspiracy  to  commit  treason.  Its
authority is not confined to an act done in its presence.

   4. - 2. That a previous conviction is, not requisite, in order
to authorize  the senate to expel a member from their body, for a
high: offence against the United States.

   5. - 3. That although a bill of indictment against a party for
treason and  misdemeanor has  been abandoned,  because a previous
indictment against  the principal  party  had  terminated  in  an
acquittal, owing to the inadmissibility of the evidence upon that
indictment,  yet   the  senate   may  examine  the  evidence  for
themselves, and  if it be sufficient to satisfy their. minds that
the party  is guilty  of a  high misdemeanor  it is  a sufficient
ground of expulsion.

   6. - 4. That the 6th and 6th articles of the amendments of the
Constitution of  the United States, containing the general rights
and privileges of the citizen, as to criminal prosecutions, refer
only to  prosecutions at  law, and do not affect the jurisdiction
of the senate as to expulsion.

   7. -  5. That  before a  committee of the senate, appointed to
report an  opinion relative  to the  honor and  privileges of the
senate, and  the facts  respecting  the  conduct  of  the  member
implicated, such  member is  not entitied  to  be  heard  in  his
defence by counsel, to have compulsory process for witnesses, and
to be  confronted with his accusers. It is before the senate that
the member charged is entitled to be heard.

   8. - 6. - In determining on expulsion, the senate is not bound
by the  forms of  judicial proceedings,  or the rules of judicial
evidence;   nor, it  seems, is the same degree of proof essential
which is  required to  convict of a crime. The power of expulsion
must, in its nature, be discretionary, and its exercise of a more
summary character. 1 Hall's Law Journ. 459, 465.

   9. Corporations  have the right of expulsion in certain cases,
as such  power is  necessary to  the good order and government of

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corporate bodies;   and the cases in which the inherent power may
be exercised  are of three kinds. 1. When an offence is committed
which has no immediate relation to a member's corporate duty, but
is of  so infamous a nature as renders him unfit for the, society
of honest men;  such as the offences of perjury, forgery, and the
like. But  before an  expulsion is made for a cause of this kind,
it is  necessary that  there should be a previous conviction by a
jury, according  to the  law of  the land. 2. When the offence is
against his  duty as  a corporator,  in  which  case  he  may  be
expelled on  trial and  conviction before the corporation. 3. The
third is  of a  mixed nature,  against the  member's duty.  as  a
corporator, and  also indictable  by  the  law  of  the  land.  2
Binn.448. See, also, 2 Burr., 536.

   10. Members  of  what  are  called  joint  stock  incorporated
companies, or  indeed members of any corporation owning property,
cannot, without  express authority  in the  charter, be expelled,
and thus  deprived of  their interest in the general fund. Ang. &
Ames on  Corp. 238. See;  generally, Ang. & Ames on Corp. ch. 11;
Willcock, on  Mun. Cor  . 270;   1  Co. 99;  2 Bing. 293.;  5 Day
329;   Sty. 478;  6 Conn. R. 532;  6 Serg. & Rawle, 469;  5 Binn.

   EXTENSION, comm.  law. This term is applied among merchants to
signify an  agreement made between a debtor and his creditors, by
which the  latter, in  order to enable the former, embarrassed in
his circumstances,  to retrieve his standing, agree to wait for a
definite length  of time after their several claims should become
due and payable, before they will demand payment.

   2. Among  the French, a similar agreement is known by the name
of atermoiement. Merl. Rep. mot Atermoiement.

  EXTENT IN AID, English practice. An exchequer process, formerly
much used,  and now  liable to  be abused;  it is regulated by 57
Geo. III. o. 117.

   EXTENT IN CHIEF, English practice. An execution issuing out of
the exchequer  at the  suit 'of  the crown.  It is a mere "fiscal
writ. See. West on Extents;  2 Tidd. Index.

   2. When land was extended at a valuation too low, there was no
remedy at  common law but to pay the money. 15 H. VII. Nor yet in
chancery, unless  there was fraud, because the extent was made by
the oath  of a  jury, and deemed reasonable according to the writ
of extent  for that  cause:  otherwise  every  verdict  might  be
examined in a court of chancery. Crompt. on. Jurisdic. 55 a.

   EXTENUATION. That  which renders  a crime or tort less heinous
than it would be without it: it is opposed to aggravation. (q. v.

   2. In  general, extenuating  circumstances go in mitigation of
punishment in  criminal cases,  or of damages in those of a civil
nature. See Aggravation;  Mitigation.

   EXTERRITORIALITY. This  term is  used  by  French  jurists  to

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signify the  immunity of  certain persons,  who, although  in the
state, are  not  amenable  to  its  laws;    foreign  sovereigns,
ambassadors, ministers  plenipotentiary,  and  ministers  from  a
foreign power,  are of  this class.  Foelix, Droit Intern. Prive,
liv. 2,  tit. 2,  c. 2, s. 4. See  Ambassador;  Conflict of Laws;

   EXTINCTION OF  A THING. When a thing which is the subject of a
contract has  been destroyed, the contract is of course rescinded
as, for  example, if  Paul sell  his horse Napoleon to Peter, and
promises to deliver him to the buyer in ten days, and in the mean
time the  horse  dies,  the  contract  is  rescinded,  as  it  is
impossible to  deliver a thing which is not in esse;  but if Paul
engage to  deliver a  horse to  Peter in  ten days,  and, for the
purpose of  fulfilling his  contract, he buys a horse and it die,
this is  no cause for rescinding the contract, because he can buy
another and  complete it  afterwards. When  the  subject  of  the
contract is  an individual,  and not  generally one of a species,
the contract may be rescinded;  when it is one of a species which
has been  destroyed, then, it may still be completed, and it will
be enforced. Lec. El. Dr. Rom. §1009.

   EXTINGUISHMENT, contracts.  The  destruction  of  a  right  or
contract -  the act by which a contract is made void.

  2. Art extinguishment may be by matter of fact and by matter of
law. 1.  It is  by matter  of fact  either express,  as when  one
receives satisfaction  and  full  payment  of  a  debt,  and  the
creditor releases  the debtor 11 John. 513';  or implied, as when
a person  hath a  yearly rent  out of,  lands and  becomes  owner
either by  descent or  purchase, of  the estate  subject  to  the
payment of  the rent, the latter is extinguished 3 Stew. 60;  but
the person  must have  as high  an estate  in the  land as in the
rent, or the rent will not be extinct. Co. Litt. 147. See Merger.

   3. There  are numerous cases where the claim is extinguished b
operation of  law;   for example,  where two persons are jointly,
but not  severally liable, for a simple contract debt, a judgment
obtained against  one is  at common  law an extinguishment of the
claim on  the other  debtor. Pet.  C. C.  301;   see 2 John. 213.
Vide, generally, Bouv. Inst. Index, h. t.;  2 Root, 492;  3 Conn.
62;   1 Hamm.  187;  11 John. 513;  4 Conn. 428;  6 Conn. 373;  1
Halst. 190  4 N.  H. Rep. 251 Co. Litt. 147 b;  1 Roll. Ab. 933 7
Vin. Ab.  367;   11 Vin. Ab. 461;  18 Vin. Ab. 493 to 515 3 Nels.
Ab. 818;   14  Serg. &  Rawle, 209;  Bac. Ab. h. t.;  5 Whart. R.
541. Vide Discharge of a Debt.

     EXTORSIVELY.  A  technical  word  used  in  indictments  for
extortion. In  North Carolina,  it seems,  the crime of extortion
may be charged without using this word. 1 Hayw. R. 406.

    EXTORTION,  crimes.  In  a  large  sense  it,  signifies  any
oppression, under  color of  right: but in a more strict sense it
means the unlawful taking by any officer, by color of his office,
of any  money or  thing of  value that is not due to him, or more
than is  due, or before it is due. 4 Bl. Com. 141;  1 Hawk. P. C.
c. 68,  s. 1;   1  Russ. Cr. *144. To constitute extortion, there

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must be the receipt of money or something of value;  the taking a
promissory note,  which is  void, is.  not sufficient  to make an
extortion. 2  Mass. R.  523;  see Bac. Ab. h. t.;  Co. Litt. 168.
It is  extortion and  oppression for an officer to take money for
the performance of his duty, even though it be in the exercise of
a discretionary power. 2 Burr. 927. It differs from exaction. (q.
v.) See  6 Cowen,  R. 661;   1  Caines, R. 130;  13 S. & R. 426 1
Yeates, 71;   1  South. 324;   3 Penna. R. 183;  7 Pick.  279;  1
Pick. 171.

   EXTRA-DOTAL PROPERTY.  In  Louisiana  this  term  is  used  to
designate that  property which  forms no  part of  the dowry of a
woman, and  which is  also called  paraphernal property. Civ. Co.
Lo. art. 2315. Vide Dotal Property.

  EXTRA VIAM. Out of the way. When, in an action of trespass, the
defendant pleads  a right  of way,  the defendant may reply extra
viam, that  the trespass  was committed beyond the way, or make a
new assignment. 16 East, 343, 349.

   EXTRACT. A part of a writing. In general this is not evidence,
because the  whole of the writing may explain the part extracted,
so as  to give it a different sense;  but sometimes extracts from
public books  are evidence, as the extracts from the registers of
births, marriages  and burials,  kept according  to law, when the
whole of the matter has been extracted which relates to the cause
or matter in issue.

   EXTRADITION, civil  law. The  act of  sending, by authority of
law, a  person accused of a crime to a foreign jurisdiction where
it was  committed, in'  order that  he may  be tried there. Merl.
Rep. h. t.

  2. By the constitution and laws of the United States, fugitives
from justice  (q. v.) may be demanded by the executive of the one
state where  the crime  has been  committed from  that of another
where the  accused is.  Const. United  States, art.  4, s. 2, 2 3
Story, Com. Const. U. S. §1801, et seq.

   3. The government of the United States is bound by some treaty
stipulation's to  surrender criminals  who take refuge within the
country,  but   independently  of   such   conventions,   it   is
questionable whether  criminals can  be surrendered. 1 Kent. Com.
36;   4 John. C. R. 106;  1 Amer. Jurist, 297;  10 Serg. & Rawle,
125;  22 Amer. Jur. 330;  Story's Confl. of Laws, p. 520;  Wheat.
Intern. Law, 111.

   4. As  to when  the extradition  or delivery  of the  supposed
criminal is  complete is  not very  certain. A  case occurred in,
France of  a Mr.  Cassado, a  Spaniard, who  had taken  refuge in
Bayonne. Upon  an application  made to  the French government, he
was delivered to the Spanish consul who had authority to take him
to Spain,  and  while  in  the  act  of  removing  him  with  the
assistance of  French officers,  a creditor obtained an execution
against his  person, and made an attempt to execute it and retain
Cassado in  France, but the council of state, (conseil d'etat) on
appeal, decided that the courts could not interfere, and directed
Cassado to be delivered to the Spanish authorities. Morrin, Dict.
du Dr. Crim. h.v.

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   EXTRAJUDICIAL. That  which does not belong to the judge or his
jurisdiction, notwithstanding  which he  takes. cognizance of it.
Extrajudicial judgments  and acts are absolutely void. Vide Coram
non judice, and Merl. Repert. mots Exces de Pouvoir.

   EXTRAVAGANTES, canon  law. This  is  the  name  given  to  the
constitutions of  the popes  posterior to  the Clementines;  they
are thus  called quasi  vagantes extra  corpus juris,  to express
that they were out of the canonical law, which at first contained
only the decrees of Gratian;  afterwards the decretals of Gregory
IX., the  sexte of  Boniface. VIII., the Clementines, and at last
the extravagantes  were added  to it. There are the extravagantes
of John  XXII., and the common 'extravagantes.' The first contain
twenty epistles, decretals or constitutions of that pope, divided
under fifteen  titles, without  any subdivision  into books.  The
others are  epistles, decretals or constitutions of the popes who
occupied the holy see, either before or after John XXII. they are
divided into books like the decretals.

   EXTREMIS. When  a person  is sick beyond the hope of recovery,
and near death, he is said to be in extremism.

   2. A  will made  in this  condition,  if  made  without  undue
influence, by a person of sound mind, is valid.

   3. The  declarations of  persons in extremis, when made with a
full  consciousness  of  approaching  death,  ate  admissible  in
evidence when  the death of the person making them is the subject
of the  charge, and the circumstances of the death the subject of
such declarations.  2 B.  & C.  605 S.  C. 9 Eng. C. L. Rep..196;
and see  15 John.   286;   1  John. Rep.  159;  2 John. R. 31;  7
John. 95;  2 Car. Law. Repos. 102;  5 whart, R. 396-7.

  EY. A watery place;  water. Co. Litt 6.

  EYE-WITNESS. One who saw the act or fact to which he testifies.
When an  eye-witness testifies,  and is a man of intelligence and
integrity, much  reliance must be placed on his testimony, for he
has the means of making known the truth.

   EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2,
s. b;  Bract. lib. 2, c. 2. See lsand.

   EYRE. Vide Eire Justiciarii Itinerantes.

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