L1:
LABEL. A narrow slip of paper or parchment, affixed to a deed
or writing hanging at or out of the same. This name is also given
to an appending seal.
LABOR. Continued operation; work.
2. The labor and skill of one man is frequently used in a
partnership, and valued as equal to the capital of another.
3. When business has been done for another, and suit is brought
to recover a just reward, there is generally contained in the
declaration, a count for work and labor.
4. Where penitentiaries exist, persons who have committed
crimes are condemned to be imprisoned therein at labor.
LACHES. This word, derived from the French lecher, is nearly
synonymous with negligence.
2. In general, when a party has been guilty of laches in
enforcing his right by great delay and lapse of time, this
circumstance will at common law pre-judice, and sometimes operate
in bar of a remedy which it is discretionary and not compulsory
in the court to afford. In courts of equity, also delay will
generally prejudice. 1 Chit. Pr. 786, and the cases there cited;
8 Com. Dig. 684; 6 Johns. Ch. R. 360.
3. But laches may be excused from, ignorance of the party's
rights; 2 Mer. R. 362; 2 Ball & Beat. 104; from the obscurity
of the transaction; 2 Sch. & Lef. 487; by the pendency of a
suit; 1 Sch. & Lef. 413; and where the party labors under a
legal disability, as insanity, coverture, infancy, and the like.
And no laches can be imputed to the public. 4 Mass. Rep. 522; 3
Serg. & Rawle, 291; 4 Henn. & Munf. 57; 1 Penna. R. 476. Vide 1
Supp. to Ves. Jr. 436; 2 Id. 170; Dane's Ab. Index, h. t.; 4
Bouv. Inst. n. 3911.
LADY'S FRIEND. The name of a functioner in the British house of
commons. When the husband sues for a divorce, or asks the passage
of an act to divorce him from his wife, he is required to make a
provision for her before the passage of the act; it is the duty
of the lady's friend to see that such a provision is made. Macq.
on H. & W. 213.
LAGA. The law; Magna Carta; hence Saxon-lage, Mercen-lage,
Dane-lage, &c.
LAGAN. Goods tied to a buoy and cast into the sea are so
called. The same as Ligan. (q.v.)
LAIRESITE. The name of a fine imposed upon those who committed
adultery or fornication. Tech. Dict. h. t.
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LAITY. Those persons who do not make a part of the clergy. In
the United States the division of the people into clergy and
laity is not authorized by law, but is, merely conventional.
LAMB. A ram, sheep or ewe, under the age of one year. 4 Car. &
P. 216; S. C. 19 Eng. Com. Law Rep. 351.
LAND. This term comprehends any found, soil or earth
whatsoever, as meadows, pastures, woods, waters, marshes, furze
and heath. It has an indefinite extent upwards as well as
downwards; therefore land, legally includes all houses and other
buildings standing or built on it; and whatever is in a direct
line between the surface and the centre of the earth, such as
mines of metals and fossils. 1 Inst. 4 a; Wood's Inst. 120; 2
B1. Com. 18; 1 Cruise on Real Prop. 58. In a more confined
sense, the word land is said to denote "frank tenement at the
least." Shepp. Touch. 92. In this sense, then, leaseholds cannot
be said to be included under the word lands. 8 Madd. Rep. 635.
The technical sense of the word land is farther explained by
Sheppard, in his Touch. p. 88, thus: "if one be seised of some
lands in fee, and possessed of other lands for years, all in one
parish, and he grant all his lands in that parish (without naming
them) in fee simple or for life; by this grant shall pass no,
more but the lands he hath in fee simple." It is also said that
land in its legal acceptation means arable land. 11 Co. 55 a. See
also Cro. Car. 293; 2 P. Wms. 458, n.; 5 Ves. 476; 20 Vin. Ab.
203.
2. Land, as above observed, includes in general all the
buildings erected upon it; 9 Day, R. 374; but to this general
rule there are some exceptions. It is true, that if a stranger
voluntarily erect buildings on another's land, they will belong
to the owner of the land, and will become a part of it; 16 Mass.
R. 449; yet cases are, not wanting where it has been decided
that such an erection, under peculiar circumstances, would be
considered as personal property. 4 Mass. R. 514; 8 Pick. R. 283,
402; 5 Pick, R. 487; 6 N. H. Rep. 555; 2 Fairf. R. 371; 1
Dana, R. 591; 1 Burr. 144.
LAND MARK. A monument set up in order to ascertain the
boundaries between two contiguous estates. For removing a land
mark an action lies. 1 Tho. Co. Litt. 787. Vide Monuments.
LAND TENANT. He who actually possesses the land. He is
technically called the terre-tenant. (q. v.)
LANDLORD. He who rents or leases real estate to another.
2. He is bound to perform certain duties and is entitled to
certain rights, which will here be briefly considered. 1st. His
obligations are, 1. To perform all the express covenants into
which he has entered in making the lease. 2. To secure to the
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tenant the quiet enjoyment of the premises leased; but a tenant
for years has no remedy against his landlord, if he be ousted by
one who has no title, in that case the law leaves him to his
remedy against the wrong doer. Y. B. 22 H. VI. 52 b, and 32 H.
VI. 32 b; Cro. Eliz. 214; 2 Leon. 104; and see Bac. Ab.
Covenant, B. But the implied covenant for quiet enjoyment may be
qualified, and enlarged or narrowed according to the particular
agreement of the parties; and a general covenant for quiet
enjoyment does not extend to wrongful evictions or disturbances
by a stranger. Y. B. 26 H. VIII. 3 b. 3. The landlord is bound by
his express covenant to repair the premises, but unless he bind
himself by express covenant the tenant cannot compel him to
repair. 1 Saund. 320; 1 Vent. 26, 44; 1 Sed. 429; 2 Keb. 505;
1 T. R. 812; 1 Sim. R. 146.
3. His rights are, 1. To receive the rent agreed upon, and to
enforce all the express covenants into which the tenant may have
entered. 2. To require the lessee to treat the premises demised
in such manner that no injury be done to the inheritance, and
prevent waste. 3. To have the possession of the premises after
the expiration of the lease. Vide, generally, Com. L. & T., B. 3,
c. 1; Woodf. L. & T. ch. 10; 2 Bl. Com. by Chitty, 275, note;
Bouv. Inst. Index, h. t.; 1 Supp. to Ves. Jr. 212, 246, 249; 2
Id. 232, 403; Com. Dig. Estate by Grant, G 1; 5 Com. Dig. tit.
Nisi Prius Dig. page 553; 8 Com. Dig. 694; Whart. Dig. Landlord
& Tenant. As to frauds between landlord and tenant, see Hov. Pr.
c. 6, p. 199 to 225.
LANGUAGE. The faculty which men possess of communicating their
perceptions and ideas to one another by means of articulate
sounds. This is the definition of spoken language; but ideas and
perceptions may be communicated without sound by writing, and
this is called written language. By conventional usage certain
sounds have a definite meaning in one country or in certain
countries, and this is called the language of such country or
countries, as the Greek, the Latin, the French or the English
language. The law, too, has a peculiar language. Vide Eunom.
Dial. 2; Technical.
2. On the subjugation of England by William the Conqueror, the
French Norman language was substituted in all law proceedings for
the ancient Saxon. This, according to Blackstone, vol. iii. p.
317, was the language of the records, writs and pleadings, until
the time of Edward III. Mr. Stephen thinks Blackstone has fallen
into an error, and says the record was, from the earliest period
to which that document can be traced, in the Latin language.
Plead. Appx. note 14. By the statute 36 Ed. III. st. 1, c. 15, it
was enacted that for the future all pleas should be pleaded,
shown, defended, answered, debated and judged in the English
tongue; but be entered and enrolled in Latin. The Norman or law
French, however, being more familiar as applied to the law, than
any other language, the lawyers continued to employ it in making
their notes of the trial of cases, which they afterwards
published, in that barbarous dialect, under the name of Reports.
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After the enactment of this statute, on the introduction of paper
pleadings, they followed in the language, as well as in other
respects, the style of the records, which were drawn up in Latin.
This technical language continued in use till the time of
Cromwell, when by a statute the records were directed to be in
English; but this act was repealed at the restoration, by
Charles II., the lawyers finding it difficult to express
themselves as well and as concisely in the vernacular as in the
Latin tongue; and the language of the law continued as before
till about the year 1730, when the statute of 4 Geo. II. c. 26,
was passed. It provided that both the pleadings and the records
should thenceforward be framed in English. The ancient terms and
expressions which had been so long known in French and Latin were
now literally translated into English. The translation of such
terms and phrases were found to be exceedingly ridiculous. Such
terms as nisi prius, habeas corpus, fieri facias, mandamus, and
the like, are not capable of an English dress with any degree of
seriousness. They are equally absurd in the manner they are
employed in Latin, but use and the fact that they are in a
foreign language has made the absurdity less apparent.
3. By statute of 6 Geo. II., c. 14, passed two years after the
last mentioned statute, the use of technical words was allowed to
continue in the usual language, which defeated almost every
beneficial purpose of the former statute. In changing from one
language to another, many words and technical expressions were
retained in the new, which belonged to the more ancient language,
and not seldom they partook of both; this, to the unlearned
student, has given an air of confusion, and disfigured the
language of the law. It has rendered essential also the study of
the Latin and French languages. This perhaps is not to be
regretted, as they are the keys which open to the ardent student
vast stores of knowledge. In the United States, the records,
pleadings, and all law proceedings are in the English language,
except certain technical terms which retain their ancient French
and Latin dress.
4. Agreements, contracts, wills and other instruments, may be
made in any language, and will be enforced. Bac. Ab. Wills, D 1.
And a slander spoken in a foreign language, if understood by
those present, or a libel published in such language, will be
punished as if spoken or written in the English language. Bac.
Ab. Slander, D 3; 1 Roll. Ab. 74; 6 T. R. 163. For the
construction of language, see articles Construction;
Interpretation; and Jacob's Intr. to the Com. Law Max. 46.
5. Among diplomatists, the French language is the one commonly
used. At an early period the Latin was the diplomatic language in
use in Europe. Towards the end of the fifteenth century that of
Spain gained the ascendancy, in consequence of the great
influence which that country then exercised in Europe. The
French, since the age of Louis XIV. has become the almost
universal diplomatic idiom of the civilized world, though some
states use their national language in treaties and diplomatic
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correspondence. It is usual in these cases to annex to the papers
transmitted, a translation in the language of the opposite party;
wherever it is understood this comity will be reciprocated. This
is the usage of the Germanic confederation, of Spain, and of the
Italian courts. When nations using a common language, as the
United States and Great Britain, treat with each other, such
language is used in their diplomatic intercourse.
Vide, generally, 3 Bl. Com. 323; 1 Chit., Cr. Law, *415; 2
Rey, Institutions Judiciaires de l'Angleterre, 211, 212.
LANGUIDUS, practice. The name of a return made by the sheriff,
when a defendant whom he has taken by virtue of process is so
dangerously sick that to remove him would endanger his life or
health. In that case the officer may and ought unquestionably to
abstain from removing him, and may permit him to remain even in
his own house, in the custody of a follower, though not named in
the warrant, he keeping the key of the house in his possession
the officer ought to remove him as soon is sufficiently
recovered. If there be a doubt as to the state of health of the
defendant, the officer should require the attendance and advice
of some respectable medical man, and require him, at the peril of
the consequences of misrepresentation, to certify in writing
whether it be fit to remove the party, or take him to prison
within the county. 3 Chit. Pr. 358. For a form of the return of
languidus, see 3 Chit. P. 249; T. Chit. Forms, 53.
LAPSE, eccl. law. The transfer, by forfeiture, of a right or
power to present or collate to a vacant benefice, from, a person
vested with such right, to another, in consequence of some act of
negligence of the former. Ayl. Parerg. 331.
LAPSED LEGACY. One which is extinguished. The extinguishment
may take place for various reasons. See Legacy, Lapsed.
2. A distinction has been made between a lapsed devise of real
estate and a lapsed legacy of personal estate. The real estate
which is lapsed does not fall into the residue, unless so
provided by the will, but descends to the heir at law; on the
contrary, personal property passes by the residuary clause where
it is not otherwise disposed of. 2 Bouv. Inst. 2154-6.
LARCENY, crim. law. The wrongful and fraudulent taking and
carrying away, by one person, of the mere personal goods, of
another, from any place, with a felonious intent to convert them
to his, the taker's use, and make them his property, without the
consent of the owner. 4 Wash. C. C. R. 700.
2. To constitute larceny, several ingredients are necessary. 1.
The intent of the party must be felonious; he must intend to
appropriate the property of another to his own use; if,
therefore, the accused have taken the goods under a claim of
right, however unfounded, he has not committed a larceny.
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3. - 2. There must be a taking from the possession, actual or
implied, of the owner; hence if a man should find goods, and
appropriate them to his own use, he is not a thief on this
account. Mart. and Yerg. 226; 14 John. 294; Breese, 227.
4. - 3. There must be a taking against the will of the owner,
and this may be in some cases, where he appears to consent; for
example, if a man suspects another of an intent to steal his
property, and in order to try him leaves it in his way, and he
takes it, he is guilty of larceny. The taking must be in the
county where the criminal is to be tried. 9 C. & P. 29; S. C. 38
E. C. L. R. 23; Ry. & Mod. 349. But when the taking has been in
the county or state, and the thief is caught with the stolen
property in another county than that where the theft was
committed, he may be tried in the county where arrested with the
goods, as by construction of law, there is a fresh taking in
every county in which the thief carries the stolen property.
5. - 4. There must be an actual carrying away, but the
slightest removal, if the goods are completely in the power of
the thief, is sufficient to snatch a diamond from a lady's ear,
which is instantly dropped among the curls of her hair, is a
sufficient asportation or carrying away.
6. - 5. The property taken must be personal property; a man
cannot commit larceny of real estate, or of what is so considered
in law. A familiar example will illustrate this; an apple, while
hanging on the tree where it grew, is real estate, having never
been separated from the freehold; it is not larceny, therefore,
at common law, to pluck an apple from the tree, and appropriate
it to one's own use, but a mere trespass; if that same apple,
however, had been separated from the tree by the owner or
otherwise, even by accident, as if shaken by the wind, and while
lying on the ground it should be taken with a felonious intent,
the taker would commit a larceny, because then it was personal
property. In some states there are statutory provisions to punish
the felonious taking of emblements or fruits of plants, while the
same are hanging by the roots, and there the felony is complete,
although the thing stolen is not, at common law, strictly
personal property. Animals ferae naturae, while in the enjoyment
of their natural liberty, are not the subjects of larceny; as,
doves; 9 Pick. 15; Bee. 3 Binn. 546. See Bee; 5 N. H. Rep.
203. At common law, choses in action are not subjects of larceny.
1 Port. 33.
7. Larceny is divided in some states, into grand and petit
larceny this depends upon the value of the property stolen. Vide
1 Hawk, 141 to 250, ch. 19; 4 Bl. Com. 229 to 250; Com. Dig.
Justices, O 4, 5, 6, 7, 8; 2 East's P. C. 524 to 791; Burn's
Justice, Larceny; Williams' Justice, Felony; 3 Chitty's Cr.
Law, 917 to 992; and articles Carrying Away; Invito Domino;
Robbery; Taking; Breach, 6.
LARGE. Broad; extensive; unconfined. The opposite of strict,
narrow, or confined. At large, at liberty.
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LAS PARTIDAS. The name of a code of Spanish law; sometimes
called las siete partidas, or the seven parts, from the number of
its principal divisions. It is a compilation from the civil law,
the customary law of Spain, and the canon law. Such of its
provisions is are applicable are in force in Louisiana, Florida,
and Texas.
LASCIVIOUS CARRIAGE, law of Connecticut. An offence, ill
defined, created by statute, which enacts that every person who
shall be guilty of lascivious carriage and behaviour, and shall
be thereof duly convicted, shall be punished by fine, not
exceeding ten dollars, or by imprisonment in a common gaol, not
exceeding two months, or by fine and imprisonment, or both, at
the discretion of the court. This law was passed at a very early
period. Though indefinite in its terms, it has received a
construction so limiting it, that it may be said to punish those
wanton acts between persons of different sexes, who are not
married to each other, that flow from the exercise of lustful
passions, and which are not otherwise punished as crimes against
chastity and public decency. 2 Swift's Dig. 343; 2 Swift's Syst.
331.
2. Lascivious carriage may consist not only in mutual acts of
wanton and indecent familiarity between persons of different
sexes, but in wanton and indecent actions against the will, and
without the consent of one of them, as if a man should forcibly
attempt to pull up the clothes of a woman. 5 Day, 81.
LAST RESORT. A court of last resort, is one which decides,
definitely, without appeal or writ of error, or any other
examination whatever, a suit or action, or some other matter,
which has been submitted to its judgment, and over which it has
jurisdiction.
2. The supreme court is a court of last resort in all matters
which legally come before it; and whenever a court possesses the
power to decide without appeal or other examination whatever, a
subject matter submitted to it, it is a court of last resort;
but this is not to be understood as preventing an examination
into its jurisdiction, or excess of authority, for then the
judgment of a superior does not try and decide so much whether
the point decided has been so done according to law, as to try
the authority of the inferior court.
LAST SICKNESS. That of which a person died.
2. The expenses of this sickness are generally entitled to a
preference, in payment of debts of an insolvent estate. Civ. Code
of Lo. art. 3166; Purd. Ab. 393.
3. To prevent impositions, the statute of frauds requires that
nuncupative wills shall be made during the testator's last
sickness. Rob. on Frauds, 556; 20 John. R. 502.
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LATENT, construction. That which is concealed; or which does
not appear; for example, if a testator bequeaths to his cousin
Peter his white horse; and at the time of making his will and at
his death he had two cousins named Peter, and he owned two white
horses, the ambiguity in this case would be latent, both as
respects the legatee, and the thing bequeathed. Vide Bac. Max.
Reg. 23, and article Ambiguity. A latent ambiguity can only be
made to appear by parol evidence, and may be explained by the
same kind of proof. 5 Co. 69.
LATITAT, Eng. law. He lies hid. The name of a writ calling a
defendant to answer to a personal action in the king's bench; it
derives its name from a supposition that the defendant lurks and
lies hid, and cannot be found in the county of Middlesex, (in
which the said court is holden,) to be taken there, but is gone
into some other county, and therefore requiring the sheriff to
apprehend him in such other county. Fitz. N. B. 78.
LAUNCHES. Small vessels employed to carry the cargo of a large
one to and from the shore; lighters. (q. v.)
2. The goods on board of a launch are at the risk of the
insurers till landed. 5 N. S. 887. The duties and rights of the
master of a launch are the same as those of the master of a
lighter.
LAW. In its most general and comprehensive sense, law signifies
a rule of action; and this term is applied indiscriminately to
all kinds of action; whether animate or inanimate, rational or
irrational. 1 Bl. Com. 38. In its more confined sense, law
denotes the rule, not of actions in general, but of human action
or conduct. In the civil code of Louisiana, art. 1, it is defined
to be "a solemn expression of the legislative will." Vide Toull.
Dr. Civ. Fr. tit. prel. s. 1, n. 4; 1 Bouv. Inst. n. 1-3.
2. Law is generally divided into four principle classes,
namely; Natural law, the law of nations, public law, and private
or civil law. When considered in relation to its origin, it is
statute law or common law. When examined as to its different
systems it is divided into civil law, common law, canon law. When
applied to objects, it is civil, criminal, or penal. It is also
divided into natural law and positive law. Into written law, lex
scripta; and unwritten law, lex non scripta. Into law merchant,
martial law, municipal law, and foreign law. When considered as
to their duration, laws are immutable and arbitrary or positive;
when as their effect, they are prospective and retrospective.
These will be separately considered.
LAW, ARBITRARY. An arbitrary law is one made by the legislator
simply because he wills it, and is not founded in the nature of
things; such law, for example, as the tariff law, which may be
high or low. This term is used in opposition to immutable.
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LAW, CANON. The canon law is a body of Roman ecclesiastical
law, relative to such matters as that church either has or
pretends to have the proper jurisdiction over:
2. This is compiled from the opinions of the ancient Latin
fathers, the decrees of general councils, and the decretal
epistles and bulls of the holy see. All which lay in the same
confusion and disorder as the Roman civil law, till about the
year 1151, when one Gratian, an Italian monk, animated by the
discovery of Justinian's Pandects, reduced the ecclesiastical
constitutions also into some method, in three books, which he
entitled Concordia discordantium canonum, but which are generally
known by the name of Decretum Gratiani. These reached as low as
the time of Pope Alexander III. The subsequent papal decrees to
the pontificate of Gregory IX., were published in much the same
method, under the auspices of that pope, about the year 1230, in
five books, entiled Decretalia Gregorii noni. A sixth book was
added by Boniface VIII., about the year 1298, which is called
Sextus decretalium. The Clementine constitution or decrees of
Clement V., were in like manner authenticated in 1317, by his
successor, John XXII., who also published twenty constitutions of
his own, called the Extravagantes Joannis, all of which in some
manner answer to the novels of the civil law. To these have since
been added some decrees of the later popes, in five books called
Extravagantes communes. And all these together, Gratian's
Decrees, Gregory's Decretals, the Sixth Decretals, the Clementine
Constitutions, and the Extravagants of John and his successors,
form the Corpus juris canonici, or body of the Roman canon law. 1
Bl. Com. 82; Encyclop‚die, Droit Canonique, Droit Public
Ecclesiastique; Dict. de Jurispr. Droit Canonique; Ersk. Pr. L.
Scotl. B. 1, t. 1, s. 10. See, in general, Ayl. Par. Jur. Can.
Ang.; Shelf. on M. & D. 19; Preface to Burn's Eccl. Law, by
Thyrwhitt, 22; Hale's Hist. C. L. 26-29; Bell's Case of a
Putative Marriage, 203; Dict. du Droit Canonique; Stair's Inst.
b. 1, t. 1, 7.
LAW, CIVIL. The term civil law is generally applied by way of
eminence to the civil or municipal law of the Roman empire,
without distinction as to the time when the principles of such
law were established or modified. In another sense, the civil law
is that collection of laws comprised in the institutes, the code,
and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Ersk. Pr. L.
Scotl. B. 1, t. l, s. 9; 6 L. R. 494.
2. The Institutes contain the elements or first principles of
the Roman law, in four books. The Digests or Pandects are in
fifty books, and contain the opinions and writings of eminent
lawyers digested in a systematical method, whose works comprised
more than two thousand volumes, The new code, or collection of
imperial constitutions, in twelve books; which was a substitute
for the code of Theodosius. The novels or new constitutions,
posterior in time to the other books, and amounting to a
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supplement to the code, containing new decrees of successive
emperors as new questions happened to arise. These form the body
of the Roman law, or corpus juris civilis, as published about the
time of Justinian.
3. Although successful in the west, these laws were not, even
in the lifetime of the emperor universally received; and after
the Lombard invasion they became so totally neglected, that both
the Code and Pandects were lost till the twelfth century, A. D.
1130; when it is said the Pandects were accidentally discovered
at Amalphi, and the Code at Ravenna. But, as if fortune would
make an atonement for her former severity, they have since been
the study of the wisest men, and revered as law, by the politest
nations.
4. By the term civil law is also understood the particular law
of each people, opposed to natural law, or the law of nations,
which are common to all. Just. Inst. l. 1, t. 1, §1, 2; Ersk.
Pr. L. Scot. B. 1, t. 1, s. 4. In this sense it, is used by Judge
Swift. See below.
5. Civil law is also sometimes understood as that which has
emanated from the secular power opposed to the ecclesiastical or
military.
6. Sometimes by the term civil law is meant those laws which
relate to civil matters only; and in this sense it is opposed to
criminal law, or to those laws which concern criminal matters.
Vide Civil.
7. Judge Swift, in his System of the Laws of Connecticut,
prefers the term civil law, to that of municipal law. He
considers the term municipal to be too limited in its
signification. He defines civil law to be a rule of human action,
adopted by mankind in a state of society, or prescribed by the
supreme power of the government, requiring a course of conduct
not repugnant to morality or religion, productive of the greatest
political happiness, and prohibiting actions contrary thereto,
and which is enforced by the sanctions of pains and penalties. 1
Sw. Syst. 37. See Ayl. Pand. B. 1, t. 2, p. 6.
See, in general, as to civil law, Cooper's Justinian the
Pandects; 1 Bl. Com. 80, 81; Encyclop‚die, art. Droit Civil,
Droit Romain; Domat, Les Loix Civiles; Ferriere's Dict.;
Brown's Civ. Law; Halifax's Analys. Civ. Law; Wood's Civ. Law;
Ayliffe's Pandects; Heinec. Elem. Jur.; Erskine's Institutes;
Pothier; Eunomus, Dial. 1; Corpus Juris Civilis; Taylor's
Elem. Civ. Law.
LAW, COMMON. The common law is that which derives its force and
authority from the universal consent and immemorial practice of
the people. It has never received the sanction of the
legislature, by an express act, wbich is the criterion by which
it is distinguished from the statute law. It has never been
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reduced to writing; by this expression, however, it is not meant
that all those laws are at present merely oral, or communicated
from former ages to the present solely by word of mouth, but that
the evidence of our common law is contained in our books of
Reports, and depends on the general practice and judicial
adjudications of our courts.
2. The common law is derived from two sources, the common law
of England, and the practice and decision of our own courts. In
some states the English common law has been adopted by statute.
There is no general rule to ascertain what part of the English
common law is valid and binding. To run the line of distinction,
is a subject of embarrassment to courts, and the want of it a
great perplexity to the student. Kirb. Rep. Pref. It may,
however, be observed generally, that it is binding where it has
not been superseded by the constitution of the United States, or
of the several states, or by their legislative enactments, or
varied by custom, and where it is founded in reason and consonant
to the genius and manners of the people.
3. The phrase "common law" occurs in the seventh article of the
amendments of the constitution of the United States. "In suits at
common law, where the value in controversy shall not exceed
twenty dollar says that article, "the right of trial by jury
shall be preserved. The "common law" here mentioned is the common
law of England, and not of any particular state. 1 Gallis. 20; 1
Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. The
term is used in contradistinction to equity, admiralty, and
maritime law. 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken
as that of the United States, or of the several states; its
general principles are adopted only so far as they are applicable
to our situation. 2 Pet, 144; 8 Pet. 659; 9 Cranch, 333; 9 S.
& R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har. & John.
356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5
Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162;
6 Greenl. 55; 3 Gill & John. 62; Sampson's Discourse before the
Historical Society of New York; 1 Gallis. R. 489; 3 Conn. R.
114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1 Wheat. R. 415; 3
Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628;
2 Stew. R. 362.
LAW, CRIMINAL. By criminal law is understood that system of
laws which provides for the mode of trial of persons charged with
criminal offences, defines crimes, and provides for their
punishments.
LAW, FOREIGN. By foreign laws are understood the laws of a
foreign country. The states of the American Union are for some
purposes foreign to each other, and the laws of each are foreign
in the others. See Foreign laws.
LAW, INTERNATIONAL. The law of nature applied to the affairs of
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nations, commonly called the law of nations, jus gentium; is
also called by some modern authors international law. Toullier,
Droit Francais, tit. rel. §12. Mann. Comm. 1; Bentham. on
Morals, &c., 260, 262; Wheat. on Int. Law; Foelix, Du Droit
Intern. Priv‚, n. 1.
LAW, MARTIAL. Martial law is a code established for the
government of the army and navy of the United States.
2. Its principal rules are to be found in the articles of war.
(q. v.) The object of this code, or body of regulations is to,
maintain that order and discipline, the fundamental principles of
which are a due obedience of the several ranks to their proper
officers, a subordination of each rank to their superiors, and
the subjection of the whole to certain rules of discipline,
essential to their acting with the union and energy of an
organized body. The violations of this law are to be tried by a
court martial. (q. v.)
3. A military commander has not the power, by declaring a
district to be under martial law, to subject all the citizens to
that code, and to suspend the operation of the writ of habeas
corpus. 3 Mart. (Lo.) 531. Vide Hale's Hist. C. L. 38; 1 Bl.
Com. 413; Tytler on Military Law; Ho. on C. M.; M'Arth. on C.
M.; Rules and Articles of War, art. 64, et seq; 2 Story, L. U.
S. 1000.
LAW, MERCHANT. A system of customs acknowledged and taken
notice of by all commercial nations; and those customs
constitute a part of the general law of the land; and being a
part of that law their existence cannot be proved by witnesses,
but the judges are bound to take notice of them ex officio. See
Beawes' Lex Mercatoria Rediviva; Caines' Lex Mercatoria
Americana; Com. Dig. Merchant, D; Chit. Comm. Law; Pardess.
Droit Commercial; Collection des Lois Maritimes ant‚rieure au
dix hutiŠme siŠcle, par Dupin; Capmany, Costumbres Maritimas;
II Consolato del Mare; Us et Coutumes de la Mer; Piantandia,
Della Giurisprudenze Maritina Commerciale, Antica e Moderna;
Valin, Commentaire sur l'Ordonnance de la Marine, du Mois d'Ao–t,
1681; Boulay-Paty, Dr. Comm.; Boucher, Institutions au Droit
Maritime.
LAW, MUNICIPAL. Municipal law is defined by Mr. Justice
Blackstone to be "a rule of civil conduct prescribed by the
supreme power in a state, commanding what is right and
prohibiting what is wrong." This definition has been criticised,
and has been perhaps, justly considered imperfect. The latter
part has been thought superabundant to the first; see Mr.
Christian's note; and the first too general and indefinite, and
too limited in its signification to convey a just idea of the
subject. See Law, civil. Mr. Chitty defines municipal law to be
"a rule of civil conduct, prescribed by the supreme power in a
state, commanding what shall be done or what shall not be done."
1 Bl. Com. 44, note 6, Chitty's edit.
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2. Municipal law, among the Romans, was a law made to govern a
particular city or province; this term is derived from the Latin
municipium, which among them signified a city which was governed
by its own laws, and which had its own magistrates.
LAW OF NATIONS. The science which teaches the rights subsisting
between nations or states, and the obligations correspondent to
those rights. Vattel's Law of Nat. Prelim. §3. Some complaints,
perhaps not unfounded, have been made as to the want of exactness
in the definition of this term. Mann. Comm. 1. The phrase
"international law" has been proposed, in its stead. 1 Benth. on
Morals and Legislation, 260, 262. It is a system of rules
deducible by natural reason from the immutable principles of
natural justice, and established by universal consent among the
civilized inliabitants of the world; Inst. lib. 1, t. 2, §1;
Dig. lib. 1, t. 1, l. 9; in order to decide all disputes, and to
insure the observance of good faith and justice in that
intercourse which must frequently occur between them and the
individuals belonging to each or it depends upon mutual compacts,
treaties, leagues and agreements between the separate, free, and
independent communities.
2. International law is generally divided into two branches;
1. The natural law of nations, consisting of the rules of justice
applicable to the conduct of states. 2. The positive law of
nations, which consist of, 1. The voluntary law of nations,
derived from the presumed consent of nations, arising out of
their general usage. 2. The conventional law of nations, derived
from the express consent of nations, as evidenced in treaties and
other international compacts. 3. The customary law of nations,
derived from the express consent of nations, as evidenced in
treaties and other international compacts between themselves.
Vattel, Law of Nat. Prel.
3. The various sources and evidence of the law of nations, are
the following: 1. The rules of conduct, deducible by reason from
the nature of society existing among independent states, which
ought to be observed among nations. 2. The adjudication of
international tribunals, such as prize courts and boards of
arbitration. 3. Text writers of authority. 4. Ordinances or laws
of particular states, prescribing rules for the conduct of their
commissioned cruisers and prize tribunal's. 5. The history of the
wars, negotiations, treaties of peace, and other matters relating
to the public intercourse of nations. 6. Treaties of peace,
alliance and commerce, declaring, modifying, or defining the
pre-existing international law. Wheat. Intern. Law, pt. 1, c. 1,
§14.
4. The law of nations has been divided by writers into
necessary and voluntary; or into absolute and arbitrary; by
others into primary and secondary, which latter has been divided
into customary and conventional. Another division, which is the
one more usually employed, is that of the natural and positive
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law of nation's. The natural law of nations consists of those
rules, which, being universal, apply to all men and to all
nations, and which may be deduced by the assistance of revelation
or reason, as being of utility to nations, and inseparable from
their existence. The positive law of nations consists of rules
and obligations, which owe their origin, not to the divine or
natural law, but to human compacts or agreements, either express
or unplied; that is, they are dependent on custom or convention.
5. Among the Romans, there were two sorts of laws of nations,
namely, the primitive, called primarium, and the other known by
the name of secundarium. The primarium, that is to say, primitive
or more ancient, is properly the only law of nations which human
reason suggests to men; as the worship of God, the respect and
submission which children have for their parents, the attachment
which citizens have for their country, the good faith which ought
to be the soul of every agreement, and the like. The law of
nations called secundarium, are certain usages which have been
established among men, from time to time, as they have been felt
to be necessary. Ayl. Pand. B. 1, t. 2, p. 6.
As to the law of, nations generally, see Vattel's Law of
Nations; Wheat. on Intern. Law; Marten's Law of Nations;
Chitty's Law of Nations; Puffend. Law of Nature and of Nations,
book 3; Burlamaqui's Natural Law, part 2, c. 6; Principles of
Penal Law, ch. 13; Mann. Comm. on the Law of Nations; Leibnitz,
Codex Juris Gentium Diplomaticus; Binkershoek, Quaestionis Juris
Publici, a translation of the first book of which, made by Mr.
Duponceau, is published in the third volume of Hall's Law
Journal; Kuber, Droit des Gens Modeme de I'Europe; Dumont,
Corps Diplomatique; Mably, Droit Public de l'Europe; Kent's
Comm. Lecture 1.
LAW OF NATURE. The law of nature is that which God, the
sovereign of the universe, has prescribed to all men, not by any
formal promulgation, but by the internal dictate of reason alone.
It is discovered by a just consideration of the agreeableness or
disagreeableness of human actions to the nature of man; and it
comprehends all the duties which we owe either to the Supreme
Being, to ourselves, or to our neighbors; as reverence to God,
self-defence, temperance, honor to our parents, benevolence to
all, a strict adherence to our engagements, gratitude, and the
like. Erskines Pr. of L. of Scot. B. 1, t. 1, s. 1. See Ayl.
Pand. tit. 2, p. 5; Cicer. de Leg. lib. 1.
2. The primitive laws of nature may be reduced to six, namely:
1. Comparative sagacity, or reason. 2. Self-love. 3. The
attraction of the sexes to each other. 4. The tendemess of
parents towards their children. 5. The religious sentiment. 6.
Sociability.
3. - 1. When man is properly organized, he is able to discover
moral good from moral evil; and the study of man proves that man
is not only an intelligent, but a free being, and he is therefore
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responsible for his actions. The judgment we form of our good
actions, produces happiness; on the contrary the judgment we
form of our bad actions produces unhappiness.
4. - 2. Every animated being is impelled by nature to his own
preservation, to defend his life and body from injuries, to shun
what may be hurtful, and to provide all things requisite to his
existence. Hence the duty to watch over his own preservation.
Suicide and duelling are therefore contrary to this law; and a
man cannot mutilate himself, nor renounce his liberty.
5. - 3. The attraction of the sexes has been provided for the
preservation of the human race, and this law condemns celibacy.
The end of marriage proves that polygamy, (q. v.) and polyendry,
(q. v.) are contrary to the law of nature. Hence it follows that
the husband and wife have a mutual and exclusive right over each
other.
6. - 4. Man from his birth is wholly unable to provide for the
least of his necessities; but the love of his parents supplies
for this weakness. This is one of the most powerful laws of
nature. The principal duties it imposes on the parents, are to
bestow on the child all the care its weakness requires, to
provide for its necessary food and clothing, to instruct it, to
provide for its wants, and to use coercive means for its good,
when requisite.
7. - 5. The religious sentiment which leads us naturally
towards the Supreme Being, is one of the attributes which belong
to humanity alone; and its importance gives it the rank of the
moral law of nature. From this sentiment arise all the sects and
different forms of worship among men.
8. - 6. The need which man feels to live in society, is one of
the primitive laws of nature, whence flow our duties and rights;
and the existence of society depends upon the condition that the
rights of all shall be respected. On this law are based the
assistance, succors and good offices which men owe to each other,
they being unable to provide each every thing for himself.
LAW, PENAL. One which inflicts a penalty for a violation of its
enactment.
LAW, POSITIVE. Positive law, as used in opposition to natural
law, may be considered in a threefold point of view. 1. The
universal voluntary law, or those rules which are presumed to be
law, by the uniform practice of nations in general, and by the
manifest utility of the rules themselves. 2. The customary law,
or that which, from motives of convenience, has, by tacit, but
implied agreement, prevailed, not generally indeed among all
nations, nor with so permanent a utility as to become a portion
of the universal voluntary law, but enough to have acquired a
prescriptive obligation among certain states so situated as to be
mutually benefited by it. 1 Taunt. 241. 3. The conventional law,
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or that which is agreed between particular states by express
treaty, a law binding on the parties among whom such treaties are
in force. 1 Chit. Comm. Law, 28.
LAW, PRIVATE. An act of the legislature which relates to some
private matters, which do not concern the public at large.
LAW, PROSPECTIVE. One which provides for, and regulates the
future acts of men, and does not interfere in any way with what
has past.
LAW, PUBLIC. A public law is one in which all persons have an
interest.
LAW, RETROSPECTIVE. A retrospective law is one that is to take
effect, in point of time, before it was passed.
2. Whenever a law of this kind impairs the obligation of
contracts, it is void. 3 Dall. 391. But laws which only vary the
remedies, divest no right, but merely cure a defect in
proceedings otherwise fair, are valid. 10 Serg. & Rawle, 102, 3;
15 Serg. & Rawle, 72. See Ex post facto.
LAW, STATUTE. The written will of the legislature, solemnly
expressed according to the forms prescribed by the constitution;
an act of the legislature. See Statute.
LAW, UNWRITTEN, or lex non scripta. All the laws which do not
come under the definition of written law; it is composed,
principally, of the law of nature, the law of nations, the common
law, and customs.
LAW, WRITTEN, or lex scripta. This consists of the constitution
of the United States the constitutions of the several states the
acts of the different legislatures, as the acts of congress, and
of the legislatures of the several states, and of treaties. See
Statute.
LAWFUL. That which is not forbidden by law. Id omne licitum
est, quod non est legibus prohibitum, quamobrem, quod, lege
permittente, fit, poenam non meretur. To be valid a contract must
be lawful.
LAWLESS. Without law; without lawful control.
LAWS EX POST FACTO. Those which are made to punish actions
committed before the existence of such laws, and which had not
been declared crimes by preceding laws. Declar. of Rights, Mass.
part 1, s. 24 Declar. of Rights, Maryl. art. 15. By the
constitution of the United States and those of the several
states, the legislatures are forbidden to pass ex post facto
laws. Const. U. S. art. 1, s. 10, subd. 1.
2. There is a distinction between ex post facto laws and
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retrospective laws; every ex post facto law must necessarily be
retrospective, but every retro-spective law is not an ex post
facto law; the former only are prohibited.
3. Laws under the following circumstances are to be considered
ex post facto laws, within the words and intents of the
prohibition 1st. Every law that makes an act done before the
passing of the law, and which was innocent when done, criminal,
and punishes such action. 2d. Every law that aggravates a crime,
or makes it greater than it was when committed. 3d. Every law
that changes the punishment, and inflicts a greater punishment
than the law annexed to the crime when committed. 4th. Every law
that alters the legal rules of evidence and receives less, or
different testimony, than the law required at the time of the
commission of the offence, in order to convict the offender. 3
Dall. 390.
4. The policy, the reason and humanity of the prohibition
against passing ex post facto laws, do not extend to civil cases,
to cases that merely affect the private property of citizens.
Some of the most necessary acts of legislation are, on the
contrary, founded upon the principles that private rights must
yield to public exigencies. 3 Dall. 400; 8 Wheat. 89; see 1
Cranch, 109; 1 Gall. Rep. 105; 9 Cranch, 374; 2 Pet. S. C. R.
627; Id. 380; Id. 523.
LAWS OF THE TWELVE TABLES. Laws of ancient Rome composed in
part from those of Solon, and other Greek legislators, and in
part from the unwritten laws or customs of the Romans. These laws
first appeared in the year of Rome 303, inscribed on ten plates
of brass. The following year two others were added, and the
entire code bore the name of the Laws of the Twelve Tables. The
principles they contained became the source of all the Roman law,
and serve to this day as the foundation of the jurisprudence of
the greatest part of Europe.
See a fragment of the Law of the twelve Tables in Coop.
Justinian, 656; Gibbon's Rome, c. 44.
LAWS OF THE HANSE TOWNS. A code of maritime laws known as the
laws of the Hanse towns, or the ordinances of the Hanseatic
towns, was first published in German, at Lubec, in 1597. In an
assembly of deputies from the several towns held at Lubec, these
laws were afterwards, May 23, 1614, revised and enlarged. The
text of this digest, and a Latin translation, are published with
a commentary by Kuricke; and a French translation has been given
by Cleirac.
LAWS OF OLERON, maritime law. A code of sea laws of deserved
celebrity. It was originally promulgated by Eleonor, duchess of
Guienne, the mother of Richard the First of England. Returning
from the Holy Land, and familiar with the maritime regulations of
the Archipelago, she enacted these laws at Oleron in Guienne, and
they derive their title from the place of their publication. The
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language in which they were originally written is the Gascon, and
their first object appears to have been the commercial operations
of that part of France only. Richard I., of England, who
inherited the dukedom of Guienne from his mother, improved this
code, and introduced it into England. Some additions were made to
it by King John; it was prormulgated anew in the 50th year of
Henry III., and received its ultimate confirmation in the 12th
year of Edward III. Brown's Civ. and Adm. Law, vol. ii. p. 40.
2. These laws are inserted in the beginning of the book
entitled "Us et Coutumes de la Mer," with a very excellent
commentary on each section by Clairac, the learned editor. A
translation is to be found in the Appendix to 1 Pet. Adm. Dec.;
Marsh. Ins. B. 1, c. 1, p. 16. See Laws of Wisbuy: Laws of the
Hanse Towns; Code
LAWS OF WISBUY, maritime law. A code of sea laws established by
"the merchants and masters of the magnificent city of Wisbuy."
This city was the ancient capital of Gothland, an island in the
Baltic sea, anciently much celebrated for its commerce and
wealth, now an obscure and inconsiderable place. Malyne, in his
collection of sea laws, p. 44, says that the laws of Oleron were
translated into Dutch by the people of Wisbuy for the use of the
Dutch coast. By Dutch probably means German, and it cannot be
denied that many of the provisions contained in the Laws of
Wisbuy, are precisely the same as those which are found in the
Laws of Oleron. The northern writers pretend however that they
are more ancient than the Laws of Oleron, or than even the
Consolato del Mare. Clairac treats this notion with contempt, and
declares that at the time of the promulgation of the laws of
Oleron, in 1266, which was many years after they were compiled,
the magnificent city of Wisbuy had not yet acquired the
denomination of a town. Be this as it may, these laws were for
some ages, and indeed still remain, in great authority in the
northern part of Europe. "Lex Rhodia navalis," says Grotius, "pro
jure gentium, in illo mare Mediteraneo vigebat; sicut apud
Gallium leges Oleronis, et apud omnes transrhenanos, leges
Wisbuenses." Grotius de Jure bel. lib. 2, c. 3.
A translation of these laws is to be found in 1 Peter's Adm.
Dee. Appendix. See Code; Laws of Oleron.
LAWS, RHODIAN, maritime. law. A code of laws adopted by the
people of Rhodes, who had, by their commerce and naval victories,
obtained the sovereignty of the sea, about nine hundred. years
before the Christian era. There is reason to suppose this code
has not been transmitted to posterity, at least not in a perfect
state. A collection of marine constitutions, under the
denomination of Rhodian Laws, may be seen in Vinnius, but they
bear evident marks of a spurious origin. See Marsh. Ins. B. 1, c.
4, p. 15; this Dict. Code; Laws of Oleron; Laws of Wisbuy;
Laws of the Hanse Towns.
LAWYER. A counsellor; one learned in the law. Vide attorney.
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LAY, English law. That which relates to persons or things not
ecclesiastical. In the United States the people are not, by law,
divided, as in England, into ecclesiastical and lay. The law
makes no distinction between them.
TO LAY, pleading. To state or to allege. The place from whence
a jury are to be summoned, is called the venue, and the
allegation in the declaration, of the place where the jury is to
be summoned, is in technical language, said to lay the venue. 3
Steph. Com. 574; 3 Bouv. Inst. n. 2826.
TO LAY DAMAGES. The statement at the conclusion of the
declaration the amount of damages which the plaintiff claims.
LAY CORPORATION. One which affects or relates to other than
ecclesiastical persons.
LAY DAYS, mar. law. The time allowed to the master of a vessel
for loading and unloading the same. In the absence of any custom
to the contrary, Sundays are to be computed in the calculation of
lay days at the port of discharge. 10 Mees. & Weis. 331. See 3
Esp. 121. They differ from demurrage. (q. v.)
LAY PEOPLE. By this expression was formerly understood jurymen.
Finch's Law, B. 4, p. 381 Eunom. Dial. 2, §51, p. 151.
LAYMAN, eccl. law. One who is not an ecclesiastic nor a
clergyman.
LAZARET or LAZARETTO. A place selected by public authority,
where vessels coming from infected or unhealthy countries are
required to perform quarantine. Vide Health.
LAESAE MAJESTATIS CRIMEN. The crime of high treason. Glanv.
lib. 1, c. 2; Clef des Lois Rom. h. t.; Inst. 4, 18, 3 Dig. 48,
4; Code, 9, 8.
LE ROI S'AVISERA. The king will consider of it. This phrase is
used by the English monarch when he gives his dissent to an act
passed by the lords and commons. The same formula was used by the
late king of the French, for the same purpose. Toull. n. 52. Vide
Veto.
LE ROI LE VEUT. The king assents. This is the formula used in
England, and formerly in France, when the king approved of a bill
passed by the legislature. 1 Toull. n. 52.
LE ROI VEUT EN DELIBERER. The king will deliberate on it. This
is the formula which the late French king used, when he intended
to veto an act of the legislative assembly. 1 Toull. n. 42.
TO LEAD TO USES. In England, when deeds are executed prior to
fines and recoveries, they are called deeds to lead to uses;
when subsequent, deeds to declare the uses.
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LEADING. That which is to be followed; as, a leading case;
leading question leading counsel.
LEADING CASE. A case decided by a court in the last resort,
which settles a particular point or question; the principles
upon which it is decided are to be followed in future cases,
which are similar to it. Collections of such cases have been
made, with commentaries upon them by White, by Wallace and Hare,
and others.
LEADING COUNSEL, English, law. When there are two or more
counsel employed on the same side in a cause, he who has the
principal management of the cause, is called the leading counsel,
as distinguished from the other, who is called the junior
counsel.
LEADING QUESTION, evidence, Practice. A question which puts
into the witness' mouth the words to be echoed back, or plainly
suggests the answer which the party wishes to get from him. 7
Serg. & Rawle, 171; 4 Wend. Rep. 247. In that case the examiner
is said to lead him to the answer. It is not always easy to
determine what is or is not a leading question.
2. These questions cannot, in general, be put to a witness in
his examination in chief. 6 Binn. R. 483 , 3 Binn. R. 130; 1
Phill. Ev. 221; 1 Stark. Ev. 123. But in an examination in
chief, questions may be put to lead the mind of the witness to
the subject of inquiry; and they are allowed when it appears the
witness wishes to conceal the truth, or to favor the opposite
party, or where, from the nature of the case, the mind of the
witness cannot be directed to the subject of inquiry, without a
particular specification of such subject. 1 Camp. R. 43; 1
Stark. C. 100.
3. In cross-examinations, the examiner has generally the right
to put leading questions. 1 Stark. Ev. 132; 3 Chit. Pr. 892;
Rosc. Civ. Ev. 94; 3 Bouv. Inst. n. 3203-4.
LEAGUE, measure. A league is a measure of length, which
consists of three geographical miles. The jurisdiction of the
United States extends into the sea a marine league. See Acts of
Congress of June 5, 1794; 1 Story's L. U. S. 352; and April 20,
1818, 3 Story's L. U. S. 1694; 1 Wait's State Papers, 195. Vide
Cannon Shot.
LEAGUE, crim. law, contracts. In criminal law, a league is a
conspiracy to do an unlawful act. The term is but little used.
2. In contracts it is applied to agreements between states.
Leagues between states are of several kinds. 1st. Leagues
offensive and defensive, by which two or more nations agree not
only to defend each other, but to carry on war against their
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common enemies. 2d. Defensive, but not offensive, obliging each
to defend the other against any foreign invasion. 3d. Leagues of
simple amity, by which one contracts not to invade, injure, or
offend the other; this usually includes the liberty of mutual
commerce and trade, and the safe guard of merchants and traders
in each others dominion. Bac. Ab. Prerogative, D 4. Vide
Confederacy; Conspiracy; Peace; Truce; War.
LEAKAGE. The waste which has taken place in liquids, by their
escaping out of the casks or vessels in which they were kept. By
the act of March 2, 1799, s. 59, 1 Story's L. U. S, 625, it is
provided that there be an allowance of two per cent for leakage,
on the quantity which shall appear by the gauge to be contained
in any cask of liquors, subject to duty by the gallon and ten per
cent on all beer, ale, and porter, in bottles and five per cent
on all other liquors in bottles; to be deducted, from the
invoice quantity, in lieu of breakage or it shall be lawful to
compute the duties on the actual quantity, to be ascertained by
tale, at the option of the importer, to be made at the, -time of
entry.
LEAL. Loyal; that which belongs to the law.
LEAP YEAR. Vide Bissextile.
LEASE, contracts. A lease is a contract for the possession and
profits of lands and tenements on one side, and a recompense of
rent or other income on the other; Bac. Ab. Lease, in pr.; or
else it is a conveyance of lands and tenements to a person for
life, or years, or at will, in consideration of a retun of rent,
or other recompense. Cruise's Dig. tit. Leases. The instrument in
writing is also known by the name of lease; and this word
sometimes signifies the term, or time for which it was to run;
for example, the owner of land, containing a quarry, leases the
quarry for ten years, and then conveys the land, "reserving the
quarry until the end of the lease;" in this case the reservation
remained in force tin the ten years expired, although the lease
was cancelled by mutual consent within the ten. years. 8 Pick. R.
3 3 9.
2. To make such contract, there must be a lessor able to grant
the land; a lessee, capable of accepting the grant, and a
subject-matter capable of being granted. See Lessor; Lessee.
3. This contract resembles several others, namely: a sale,, to
constitute which there must be a thing sold, a price for which it
is sold, and the consent of the parties as to both. So, in a
lease there must be a thing leased, the price or rent, and the
consent of the parties as to both. Again, a lease resembles the
contract of hiring of a thing, locatio condudio rei, where there
must be a thing to be hired, a price or compensation, called the
hire, and the agreement and consent of the parties respecting
both. Poth. Bail a rente, n. 2.
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4. Before proceeding to the examination of the several parts of
a lease, it will be proper here to say a few words, pointing out
the difference between an agreement or covenant to make a lease,
and the lease itself. When an agreement for a lease contains
words of present demise, and there are circumstances from which
it may be collected that it was meant that the tenant should have
an immediate legal interest in the term, such an agreement will
amount to an actual lease; but although words of present demise
are used, if it appears on the whole, that no legal interest was
intended to pass, and that the agreement was only preparatory to
a future lease, to be made, the construction will be governed by
the intention of the parties, and the contract will be held to
amount to no more than an agreement for a lease. 2 T. R. 739. See
Co. Litt. 45 b: Bac. Abr. Leases, K; 15 Vin. Abr. 94, pl. 2; 1
Leon. 129; 1 Burr. 2209; Cro. Eliz. 156; Id. 173; 12 East,
168; 2 Campb. 286; 10 John. R. 336; 15 East, 244; 3 Johns. R.
44, 383; 4 Johns. R. 74, 424; 5 T. R. 163; 12 East, 274; Id.
170; 6 East, 530; 13 East, 18; 16 Esp. R. 06; 3 Taunt. 65; 5
B. & A. 322.
5. Having made these few preliminary observations, it is
proposed to consider, 1. By what words a lease may be made. 2.
Its several parts. 3. The formalities the law requires.
6. - 1 The words "demise, grant, and to farm let," are
technical words well understood, and are the most proper that can
be used in making a lease; but whatever words are sufficient to
explain the intent of the parties, that the one shall divest
himself of the possession and the other come into it, for such a
determinate time, whether they run in the form of a license,
covenant, or agreement, are of themselves sufficient, and will,
in construction of law, amount to a lease for years as
effectually as if the most proper and pertinent words had been
made use of for that purpose. 4 Burr. 2209; 1 Mod. 14; 11 Mod.
42; 2 Mod. 89; 3 Burr. 1446; Bac. Abr. Leases; 6 Watts, 362;
3 M'Cord, 211; 3 Fairf. 478; 5 Rand. 571; 1 Root, 318.
7. - 2. A lease in writing by deed indented consists of the
following parts, namely, 1. The premises. 2. The habendum. 3. The
tenendum. 4. The reddendum. 5. The covenants. 6. The conditions.
7. The warranty. See Deed.
8. - 3. As to the form, leases may be in writing or not in
writing. See Parol Leases. Leases in writing are either by deed
or without deed; a deed is a writing sealed and delivered by the
parties, so that a lease under seal is a lease by deed. The
respective parties, the lessor and lessee, whose deed the lease
is, should seal, and now in every case, sign it also. The lease
must be delivered either by the parties themselves or their
attorneys, which delivery is expressed in the attestation "sealed
and delivered in the presence of us." Almost any manifestation,
however, of a party's intention to deliver, if accompanied by an
act importing such intention, will constitute a delivery. 1 Ves.
jr. 206.
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9. A lease may be avoided, 1. Because it is not sufficiently
formal; and, 2. Because of some matter which has arisen since
its delivery.
10. - 1. It may be avoided for want of either, 1st. Proper
parties and a proper subject-matter. 2d. Writing or, printing on
parchment or paper, in those cases where the statute of frauds
requires they should be in writing. 3d. Sufficient and legal
words properly disposed. 4th. Reading, if desired, before the
execution. 5th. Sealing, and in most cases, signing also; or,
6th. Delivery. Without these essentials it is void from the
beginning.
11. - 2. It may be avoided by matter arising after its
delivery; as, 1st. By erasure, interlineation, or other
alteration in any material part; an immaterial alteration made
by a stranger does not vitiate it, but such alteration made by
the party himself, renders it void. 2d. By breaking or effacing
the seal, unless it be done by accident. 3d. By delivering it up
to be cancelled. 4th. By the disagreement of such whose
concurrence is necessary; as, the husband, where a married woman
is concerned. 5th. By the judgment or decree of a court of
judicature.
LEASE AND RELEASE. A species of conveyance, invented by
Serjeant Moore, soon after the enactment of the statute of uses.
It is thus contrived; a lease, or rather bargain and sale, upon
some pecuniary consideration, for one year, is made by the tenant
of the freehold to the lessee or bargainee. This, without any
enrolment, makes the bargainor stand seised to the use of the
bargainee, and vests in the bargainee the use of the term for one
year, and then the statute immediately annexes the possession.
Being thus in possession, he is capable of receiving a release of
the freehold and reversion, which must be made to the tenant in
possession; and, accordingly, the next day a release is granted
to him.
2. The lease and release, when used as a conveyance of the fee,
have the joint operation of a single conveyance. 2 Bl. Com. 339;
4 Kent, Com. 482; Co. Litt. 207; Cruise, Dig. tit. 32, c. 11.
LEASEHOLD. The right to an estate held by lease.
LEAVE OF COURT. The grant by the court of something, which,
without such grant it would have been unlawful to do.
2. Asking leave of court to do any act, is an implied admission
of jurisdiction of the court, and, in those cases in which the
objection to the jurisdiction must be taken, if at all, by plea
to the jurisdiction, and it can be taken in no other way, the
court by such asking leave becomes fully vested with the
jurisdiction. Bac. Ab. Abatement, A; Bac. Ab. Pleas, &c., E 2;
Lawes, Pl. 91; 6 Pick. 391. But such admission cannot aid the
jurisdiction except in such cases.
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3. The statute of 4 Ann. c. 16, s. 4, provides that it shall be
lawful for any defendant, or tenant, in any action or suit, or
for any plaintiff in replevin, in any court of record, with leave
of the court, to plead as many several matters thereto, as he
shall think necessary for his defence. The principles of this
statute have been adopted by most of the states of the Union.
4. When the defendant, in pursuance of this statute, pleads
more than one plea in bar, to one and the same demand, or thing,
all of the pleas, except the first, should purport to be pleaded
with leave of the court. But the omission is not error nor cause
of demurrer. Lawes, Pl. 132; 2 Chit. Pl. 421; Story, Pl. 72,
76; Gould on Pl. c. 8, §21; Andr. 109; 3 N. H. Rep. 523.
LEDGER, commerce, accounts, evidence. A book in which are
inscribed the names of all persons dealing with the person who
keeps it, and in which there is a separate account, composed
generally of one or more pages for each. There are two parallel
columns, on one of which the party named is the debtor, and on
the other the creditor, and presents a ready means of
ascertaining the state of the account. As this book is a
transcript from the day book or journal, it, is not evidence per
se.
LEDGER BOOK, eccl. law. The name of a book kept in the
prerogative courts in England. It is considered as a roll of the
court, but, it seems, it cannot be read in evidence. Bac. Ab. h.
t.
LEGACY. A bequest or gift of goods or chattels by testament. 2
Bl. Com. 512; Bac. Abr. Legacies, A. See Merlin, R‚pertoire, mot
Legs, s. 1; Swinb. 17; Domat, liv. 4, t. 2, §1, n. 1. This
word, though properly applicable to bequests of personal estate
only, has nevertheless been extended to property not technically
within its import, in order to effectuate the intention of the
testator, so as to include real property and annuities. 5 T. R.
716; 1 Burr. 268; 7 Ves. 522; Id. 391; 2 Cain. R. 345. Devise
is the term more properly applied to gifts of real estate.
Godolph. 271.
2. As the testator is presumed at the time of making his will
to be inops concilii, his intention is to, be sought for, and any
words which manifest the intention to give or create a legacy,
are sufficient. Godolph. 281, pt. 3, c. 22, s. 21; Com. Dig.
Chancery, 3 Y 4; Bac. Abr. Legacies, B 1.
3. Legacies are of different kinds; they may be considered as
general, specific, and residuary. 1. A legacy is general, when it
is so given as not to amount to a bequest of a specific part of a
testator's personal estate; as of a sum of money generally, or
out of the testator's personal estate, or the like. 1 Rop. Leg.
256; Lownd. Leg. 10. A general legacy is relative to the
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testator's death; it is a bequest of such a sum or such a thing
at that time, or a direction to the executors, if such a thing be
not in the testator's possession at that time, to procure it for
the legatee. Cas. Temp. Talb. 227; Ambl. 57; 4 Ves. jr. 675; 7
Ves. jr. 399.
4. - 2. A specific legacy is a bequest of a particular thing,
or money specified and distinguished from all other things of the
same kind; as of a particular horse, a particular piece of
plate, a particular term of years, and the like, which would vest
immediately, with the assent of the executor. 1 Rop. Leg. 149;
Lownd. Leg. 10, 11; 1 Atk. 415. A specific legacy has relation
to the time of making the will; it is a bequest of some
particular thing in the testator's possession at that time, if
such a thing should be in the testator's possession at the time
of his death. If it should not be in the testator's possession,
the legatee has no claim. There are legacies of quantity in the
nature of specific legacies, as of so much money with reference
to a particular fund for their payment. Touchst. 433; Amb. 310;
4 Ves. 565; 3 Ves. & Bea. 5.
5. This kind of legacy is so far general, and differs so much
in effect from a specific one, that if the funds be called in or
fail, the legatees will not be deprived of their legacies, but be
permitted to receive them out of the general assets; yet the
legacies are go far specific, that they will not be liable to
abate with general legacies upon a deficiency of assets. 2 Ves.
jr. 640; 5 Ves. jr. 206; 1 Meriv. 178.
6. - 3. A residuary legacy is a bequest of all the testator's
personal estate, not otherwise effectually disposed of by his
will. Lownd. Leg, 10; Bac. Abr. Legacies, I.
7. As to the interest given, legacies may be considered, as
absolute, for life, or in remainder. 1. A legacy is absolute,
when it is given without condition, and is to vest immediately.
See 2 Vern. 181; Ambl. 750; 19 Ves. 86; Lownd. 151; 2 Vern.
430; 1 Vern. 254; 5 Ves. 461; Com. Dig. Appendix, Chancery IX.
8. - 2. A legacy for life is sometimes given, with an executory
limitation after the death of the tenant for life to another
person; in this case, the tenant for life is entitled to the
possession of the legacy, but when it is of specific article's,
the first legatee must sign and deliver to the second, an
inventory of the chattels expressing that they are in his custody
for life only, and that afterwards they are to be delivered and
remain to the use and benefit of the second legatee. 3 P. Wms.
336; 1 Atk. 471; 2 Atk. 82; 1 Bro. C. C. 279; 2 Vern. 249.
See 1 Rop. Leg. 404, 5, 580. It seems that a bequest for life, if
specific of things quo ipso usu consumuntur, is a gift of the
property, and that there cannot be a limitation over, after a
life interest in such articles. 3 Meriv. 194.
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9. - 8. In personal property there cannot be a remainder in the
strict sense of the word, and therefore every future bequest of
personal property, whether it be preceded or not by any
particular bequest, or limited on a certain or uncertain event,
is an executory bequest, and falls under the rules by which that
mode of limitation is regulated. Fearne, Cont. R. 401, n. An
executory bequest cannot be prevented or destroyed by any
alteration whatsoever, in the estate, out of which, or after,
which it is limited. Id. 421; 8 Co. 96, a; 10 Co. 476. And this
privilege of executory bequests, which exempts them from being
barred or destroyed, is the foundation of an invariable rule,
that the event on which an interest of this sort is permitted to
take effect, is such as must happen within a life or lives in
being, and twenty-one years, and the fraction of another year,
allowing for the period of gestation afterwards. Fearne, Cont. R.
431.
10. As to the right acquired by the legatee, legacies may be
considered as vested and contingent. 1. A vested legacy is one;,
by which a certain interest, either present or future in
possession, passes to the legatee. 2. A contingent legacy is one
which is so given to a person, that it is uncertain whether any
interest will ever vest in him.
11. A legacy may be lost by abatement, ademption, and lapse. I.
Abatement, see Abatement of Legacies. 2. Ademption, see,
Ademption. 3. When the legatee dies before the testator, or
before the condition upon which the legacy is given be performed,
or before the time at which it is directed to vest in interest
have arrived, the legacy is lapsed or extinguished. See Bac. Abr.
Legacies, E; Com. Dig. Chancery, 3 Y. 13; 1 P. Wms. 83; Lownd.
Leg. ch. 12, p. 408 to 415; 1 Rop. Leg. ch. 8, p. 319 to 341.
12. In Pennsylvania, by legislative enactment, no legacy in
favor of a child or other lineal descendant of any testator,
shall be deemed or held to lapse or become void, by reason of the
decease of such devisee or legatee, in the lifetime of the
testator, if such devisee or legatee shall leave issue surviving
the testator, but such devise or legacy shall be good and
available, in favor of such surviving issue, with like effect, as
if such devisee or legatee had survived the testator. The
testator may however, intentionally exclude such survlving issue,
or any of them. Act of March 19, 1810, 5 Smith's L. of Pa. 112.
13. As to the payment of legacies, it is proper to consider out
of what fund they are to be paid; at what time; and to whom. 1.
It is a general rule, that the personal estate is the primary
fund for the payment of legacies. When the real estate is merely
charged with those demands, the personal assets are to be applied
in the first place towards their liquidation. 1 Serg. & Rawle,
453; 1 Rop. Leg. 463.
14. - 2. When legacies are given generally to persons under no
disability to receive them, the payments ought to be made at the
end of a year next after the testator's decease. 5 Binn. 475. The
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executor is not obliged to pay them sooner although the testator
may have directed them to be discharged within six months after
his death, because the law allows the executor one year from the
demise of the testator, to ascertain and settle his testator's
affairs; and it presumes that at the expiration of that period,
and not before, all debts due by the estate have been satisfied,
and the executor to be then able, properly to apply the residue
among the legatees according to their several rights and
interests.
15. When a legacy is given generally, and is subject to a
limitation over upon a subsequent event, the divesting
contingency will not prevent the legatee from receiving his
legacy at the end of the year after the testator's death, and he
is under no obligation to give security for re-payment of the
money, in case the event shall happen. The principle seems to be,
that as the testator has entrusted him without requiring
security, no person has authority to require it. 1 Ves. Jr. 97;
18 Ves. 131; Lownd. on Legacies, 403.
16. As to the persons to whom payment to be made, see, where
the legacy is given to an infant 1 Rop. Leg. 589 ;1 P. Wms. 285;
1 Eq. Cas. Abr. 300; 3 Bro. C. C. 97, edit. by Belt; 2 Atk. 80;
2 Johns. C. R. 614; where the legacy is given to a married
woman; 1 Rop. Leg. 595; Lownd. Leg 399; where the legacy is
given to a lunatic, 1 Rop. Leg. 599; where it is given to a
bankrupt; Id. 600; 2 Burr. 717.; where it is given to a person
abroad, who has not been heard of for a long time. Id. 601 Finch,
R. 419; 3 Bro. C. C. 510; 5 Ves. 458; Lownd. Leg. 398.
See, generally, as to legacies; Roper on Legacies; Lowndes on
Legacies; Bac. Abr. Legacy; Com. Dig. Administration, C 3, 5;
Id. Chancery, 3 A; 3 G; 8 Y 1; Id. Prohibition, G 17; Vin.
Abr. Devise; Id. Executor; Swinb. 17 to 44; 2 Salk. 414 to
416.
17. By the Civil Code of Louisiana, legacies are divided into
universal legacies, legacies under an universal title, and
particular legacies. 1. An universal legacy is a testamentary
disposition, by which the testator gives to one or several
persons the whole of the property which he leaves; at his
decease. Civ. Code of Lo. art. 1599.
18. - 2. The legacy under an universal title, is that by which
a testator bequeaths a certain proportion of the effects of which
the law permits him to dispose, as a half, a third, or all his
immovables, or all his movables, or a fixed proportion of all his
immovables, or of all his movables. Id. 1604.
19. - 3. Every legacy not included in the definition given of
universal legacies, and legacies under a universal title, is a
legacy under a particular title. Id. 1618. Copied from Code Civ.
art. 1003 and 1010. See Toullier, Droit Civil Francais, tome 5,
p. 482, et seq.
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LEGACY, ACCUMULATIVE. An accumulative legacy is a second
bequest given by the same testator to the same legatee, whether
it be of the same kind of thing, as money, or whether it be of
different things, as, one hundred dollars, in one legacy, and a
thousand dollars in another, or whether the sums are equal or
whether the legacies are of a different naturer 2 Rop. Leg. 19.
LEGACY, ADDITIONAL. An additional legacy is one which is given
by a codicil, besides one before given by the will; or it is an
increase by a codicil of a legacy before given by the will. An
additional legacy is generally subject to the same qualities and
conditions as the original legacy. 6. Mod. 31; 2 Ves. jr. 449;
3 Mer. 154; Ward on Leg. 142.
LEGACY, ALTERNATIVE. One where the testator gives one of two
things to the legatee without designating which of them; as, one
of my two horses. Vide Election.
LEGACY, CONDITIONAL. A bequest which is to take effect upon the
happening or, not happening of a certain event. Lownd. Leg. 166;
Rop. Leg. Index, tit. Condition.
LEGACY, DEMONSTRATIVE. A demonstrative legacy is a bequest of a
certain sum of money; intended for the legatee at all events,
with a fund particularly referred to for its payment; so that if
the estate be not the testator's property at his death, the
legacy will not fail: but be payable out of general assets. 1
Rop. Leg. 153; Lownd. Leg 85; Swinb. 485; Ward on Leg. 370.
LEGACY, INDEFINITE. A bequest of things which are not
enumerated or ascertained as to numbers or quantities; as, a
bequest by a testator of all his goods, all his stocks in the
funds. Lownd. on Leg. 84; Swinb. 485; Amb. 641; 1 P. Wms. 697.
LEGACY, LAPSED. A legacy is said to be lapsed or extinguished,
when the legatee dies before the testator, or before the
condition upon which the legacy is given has been performed, or
before the time at which it is directed to vest in interest has
arrived. Bac. Ab. Legacy, E; Com. Dig. Chancery, 3 Y 13; 1 P.
Wms. 83. Lownd. Leg. 408 to 415; 1 Rop. Leg. 319 to 341. See, as
to the law of Pennsylvania in favor of lineal descendants, 5
Smith's Laws of Pa. 112. Vide, generally, 8 Com. Dig. 502-3; 5
Toull. n. 671.
LEGACY, M0DAL. A modal legacy is a bequest accompanied with
directions as to the mode in which it should be applied for the
legatee's benefit; for example, a legacy to Titius to put him an
apprentice. 2 Vern. 431; Lownd. Leg. 151.
LEGACY, PECUNIARY, A pecuniary legacy is one of money;
pecuniary legacies are most usually general legacies, but there
may be a specific pecuniary legacy; for example, of the money in
a certain bag. 1 Rop. Leg. 150, n.
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LEGACY, RESIDUARY. That which is of the remainder of an estate
after the payment of all the debts and other legacies. Madd. Ch.
P. 284.
LEGAL. That which is according to law. It is used in opposition
to equitable, as the legal estate is, in the trustee, the
equitable estate in the cestui que trust. Vide Powell on Mortg.
Index, h. t.
2. The party who has the legal title, has alone the right to
seek a remedy for a wrong to his estate, in a court of law,
though he may have no beneficial interest in it. The equitable
owner, is he who has not the legal estate, but is entitled to the
beneficial interest.
3. The person who holds the legal estate for the benefit of
another, is called a trustee; he who has the beneficiary
interest and does not hold the legal title, is called the
beneficiary, or more technically, the cestui que trust.
4. When the trustee has a claim, he must enforce his right in a
court of equity, for he cannot sue any one at law, in his own
name; 1 East, 497; 8 T. R. 332; 1 Saund. 158, n. 1; 2 Bing.
20; still less can he in such court sue his own trustee. 1 East,
497.
LEGAL ESTATE. One, the right to which may be enforced in a
court of law. It is distinguished from an equitable estate, the
rights to which can be established only in a court of equity. 2
Bouv. Inst. n. 1688.
LEGALIZATION. The act of making lawful.
2. By legalization, is also understood the act by which a judge
or competent officer authenticates a record, or other matter, in
order that the same may be lawfully read in evidence. Vide
Authentication.
LEGATES. Legates are extraordinary ambassadors sent by the pope
to catholic countries to represent him, and to exercise his
jurisdiction. They are distinguished from the ambassadors of the
pope who are sent to other powers.
2. The canonists divide them into three kinds, namely: 1.
Legates A latere. 2. Legati missi. 3. Legati nati.
3. - 1. Legates latere hold the first rank among those who are
honored by a legation; they are always chosen from the college
of cardinals, and are called a latere, in imitation of the
magistrates of ancient Rome, who were taken from the court, or
side of the emperor.
4. - 2. The legati missi are simple envoys.
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5. - 3. The legati nati, are those who are entitled to be
legates by birth.
LEGATEE. A legatee is a person to whom a legacy is given by a
last will and testament.
2. It is proposed to consider, 1. Who may be a legatee. 2.
Under what description legatees may take.
3. - 1. Who may be a legatee. In general, every person may be a
legatee. 2 Bl. Com. 512. But a person civilly dead cannot take a
legacy.
II. Under what description legatees may take.
4. - §1. Of legacies to legitimate children. 1. When it appears
from express declaration, or a clear inference arising upon the
face of the will, that a testator in giving a legacy to a class
of individuals generally, intended to apply the terms used by him
to such persons only as answered the description at the date of
the instrument, those individuals alone will be entitled,
although if no such intention had been expressed, or appeared in
the will, every person failing within that class at the
testator's death, would have been included in the terms of the
bequest. 1 Meriv. 320; and see 3 Ves. 611; Id. 609; 15 Ves.
363; Ambl. 397; 2 Cox, 291; 4 Bro. C. C. 55; 3 Bro. C. C.
148; 2 Cox, 384.
5. - 2. Where a legacy is given to a class of individuals, as
to children, in general terms, and no period is appointed for the
distribution of it, the legacy is due at the death of the
testator; the payment of it being merely postponed to the end of
a year after that event, for the convenience of the executor or
administrator in administering the assets. The rights of the
legatees are finally settled, and determined at the testator's
decease. 1 Ball & B. 459; 2 Murph. 178. Upon this principal, is
founded the well established rule that children in existence at
that period, or legally considered so to be, are alone entitled
to participate in the bequest. 1 Bro. C. C. 532, n.; 2 Bro. C.
C. 658; 2 Cox, 190.; 1 Dick. 344; 14 Ves. 576; 1 Ves. jr.
405; 1 Cox, 68; 3 Bro. C. C. 391; Amb. 448; 1 Ves. sen. 485;
5 Binn. 607.
6. - 3. A child in ventre sa mere takes a share in a fund
bequeathed to children, under the general description of
"children," or of "children living at the testator's death." 1
Ves. sen. 85; and see 1 P. Wms. 244, 341; 2 Bro. C. C. 63; 1
Salk. 229; 2 Cox, 425; 5 Serg. & Rawle, 38. See tit. In ventre
sa mere.
7. - 4. When legacies are given to a class of individuals,
generally, payable at a future period, as to the children of B,
when the youngest shall attain the age of twenty-one, or to be
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divided among them upon the death of C; any child who can
entitle itself under the description, at the time when the fund
is to be divided, may claim a share, viz: as well children
living at the period of distribution, although not born till
after the testator's death, as those born before, and living at
the happening of that event. 1 Supp. to Ves. jr. 115, note 3, to
Hill v. Chapman; 2 Supp. to Ves. jr. 157, note 1, to Lincoln v.
Pelham. This general rule may be divided into two branches.
First, when the division of the fund is postponed until a child
or children attain a particular age; as, when a legacy is given
to the children of A, at the age of twenty-one; in that case, so
soon as the eldest arrives at that period, the fund is
distributable among so many as are in existence at that time;
and no child born afterwards can be admitted to a share, because
the period of division fixes the number of legatees. Distribution
is then made, and nothing remains for future partition. 1 Ball &
Beat. 459; 3 Bro. C. C. 402; 5 Binn. 607; 2 Ves. jr. 690; 3
Ves. 730; 3 Bro. C. C. 352, ed. by Belt; 14 Ves. 256; 6 Ves.
345; 10 Ves. 152; 11 Ves. 238. Second, when the distribution of
the fund is deferred during the life of a person in esse. In
these cases, when the enjoyment of the thing given, is by the
testator's express declaration not to be immediate by those,
among whom it is to be finally divided, but is postponed to a
particular period, as the death of A, then the children or
individuals who answer the general description at that time, when
distribution is to be made, are entitled to take, in exclusion of
those afterwards coming in esse. 1 Ves. sen. 111; 1 Bro. C. C.
386; Id. 530; Id. 582; Id. 537; 1 Atk. 509; 2 Atk. 329; 5
Ves. 136; 3 Bro. C. C. 417; 1 Cox, 327; 8 Ves. 375; 15 Ves.
122; 1 Madd. R. 290; 1 Ball & Beat. 449.
8. - 5. The word "children " does not, ordinarily and properly
speaking, comprehend grandchildren or issue generally; these are
included in that term only in two cases, namely, 1. From
necessity, which occurs where the will would remain inoperative
unless the sense of the word "children" were extended beyond its
natural import; and, 2. Where the testator has shown by other
words, that he did not intend to use the term children in its
proper and actual meaning, but in a more extended sense. 1 Supp.
to Ves. jr. 202, note 2, to Bristow v. Ward. In the following
cases, the word children was extended beyond its natural import
from necessity. 6 Rep. 16; 10 Ves. 201; 2 Desauss. 123, in
note. The following are instances where by using the words
children and issue, indiscriminately, the testator showed his
intention to use the former term in the sense of issue so as to
entitle grandchildren, &c. to take. 1 Ves. sen. 196; S. C. Ambl.
555; 3 Ves. 258; 3 Ves. & Bea. 68; 4 Ves. 437; 2 Supp. to
Ves. jr. 158. There is another class of cases wherein it was
determined that grandchildren, &c. were not included in the word
children. 2 Vern. 107; 4 Ves. 692; 10 Ves. 195; 3 Ves. & Bea.
59; see 2 Desauss. 308.
9. - §2. Of legacies to natural children. 1. Natural children
unborn at the date of the will, cannot take under a bequest to
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the children generally, or to the illegitimate children of A B by
Mary C; because a natural child cannot take as the issue of a
particular person, until it has acquired the reputation of being
the child of that person, which cannot be before its birth. Co,
Litt. 3, b.
10. - 2. Natural children, unborn at the date of the will and
described as children of the testator or another man, to be born
of a particular woman, cannot take under such a description. 1
Peere, Wms. 529; 18 Ves. 288.
11. - 3. A legacy to an illegitimate child in ventre sa mere,
described as the child of the testator or of another man, will
fail, since whether the testator or such person were or were not
in truth the father, is a fact which can only be ascertained by
evidence that public policy forbids to be admitted. 1 Meriv. 141
to 152.
12. - 4. A child in ventre sa mere described merely as a child
with which the mother is enceinte, without mentioning its
putative father; or if the testator express a belief that the
child is his own, and provide for it under that impression,
regardless of the chance of being mistaken; then the child will
in the first place be capable of taking and in the second, as
presumed, be also, entitled in consequence of the testator's
intent to provide for it, whether he be the father or not. 1
Meriv. 148, 152.
13. - 5. Natural children in existence, having acquired by
reputation the name and character of children of a particular
person, prior to the date of the will, are capable of taking
under the name of children. 1 P. Wms. 529; 1 Ves. & Bea. 467.
But the term child, son, issue, and every other word of that
species, is to be considered as prima facie to mean legitimate
child, son, or issue. Id.
14. - 6. Whether such children take or not depends upon the
evidence of the testator's intention, manifested by the will, to
include them in the term children; these cases are instances
where the evidence of such intention was deemed insufficient. 5
Ves. 530; 1 Ves. & Bea. 454; 6 Ves. 43, 48; 1 Ves. & Bea.
4619; and see 1 Ves. & Bea. 456; 2 East, 530, 542. In the
following, the evidence of intention was held to be sufficient. 1
Ves. & Bea. 469; Blundell v. Dunn, cited in 1 Madd. 433;
Beachcroft v. Beachcroft, cited in 1 Madd. 430; 2 Meriv. 419.
15. - §3. Of legacies of personal estate to a man and his
heirs. 1. A legacy to A and his heirs, is an absolute legacy to
A, and the whole interest of the money vests in him for his use.
4 Mad. 361. But when no property in the bequest is given to A,
and the money is bequeathed to his heirs, or to him with a
limitation to his heirs, if he die before the testator, and the
contingency happens, then if there be nothing in the will showing
the sense in which the testator made use of the word heirs, the
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next of kin of A, are entitled to claim under the description, as
the only persons appointed by law to succeed to personal estate.
5 Ves. 403; 4 Ves. 649; 1 Jac. & Walk. 388.
16. - 2. A bequest to the heirs of an individual, without
addition or explanation, will belong to the next of kin; the
rule, however, is subject to, alteration by the intention of the
testator. If then the contents of the will show, that by the word
heirs the testator meant other persons than the next of kin,
those persons will be entitled. Ambl. 273; 1 P. Wms. 432;
Forrest, 56; 2 Atk. 89; See, also, 1 Ves. jr. 145; 4 Madd.
361; 14 Ves. 488; 1 Car. Law R. 484.
17. - §4. Legacies to issue. 1. The term issue, is of very
extensive import, and when used as a word of purchase, and
unconfined by any indication of intention, will comprise all
persons who can claim as descendants from or through the person
to whose issue the bequest is made; and in order to restrain the
legal sense of the term, a clear intention must appear upon the
will. 3 Ves. 257; Id. 421; 1 Meriv. 434; 13 Ves. 344.
18. - 2. Where it appears clearly to be a testator's meaning to
provide for a class of individuals living at the date of his
will, and he provides against a lapse by the death of any of them
in his lifetime, by the substitution of their issue; in such
case, although the word will include all the descendants of the
designated legatees, yet if any person who would have answered
the description of an original legatee when the will was made, be
then dead, leaving issue, that issue will be excluded, because
the issue of those individuals only who were capable of taking
original shares, at the date of the will, were intended to take
by substitution; so that as the person who was dead when the
will was made, could never have taken an original share, there is
nothing for his issue to take in his place. 1 Meriv. 320.
19. - 3. When it can be collected from the will that a testator
in using the word issue, did not intend it should be understood
in its common acceptation, the import of it will be confined to
the persons whom it was intended to comprehend. 7 Ires. 531; 3
Ves. 383; 7 Ves. 522; 1 Ves. jr. 143.
20. - §5. Of legacies to relations. 1. Under a bequest to
relations, none are entitled but those, who in the case of
intestacy, could have claimed under the statute of distribution.
Forrest. 251; 4 Bro. C. C. 207; 1 Bro. C. C. 31; 3 Bro. C. C.
234; 5 Ves. 529; Ambl. 507; Dick. 380; 1 P. Wms. 327; 2 Ves.
sen. 527; 19 Ves. 403; 1 Taunt. 263; 1 T. R. 435; n. See the
following cases where the bequests were to "poor relations;" 1 P.
Wms. 327; 8 Serg. & Rawle, 45; 1 Scho. & Lef. 111; "most
necessitous relations;" Ambl. 636.
21. - 2. To this general rule there are several exceptions,
namely, first, when the testator has delegated a power to an
individual to distribute the fund among the testator's relations
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according to his discretion; in such an instance whether the
bequest be made to "relations" generally, or to "poor," or
"poorest," or "most necessitous" relations, the person may
exercise his discretion in distributing the property among the
testator's kindred although they be not within the statute of
distributions. 1 Scho. & Lef. 111, and 16 Ves. 43; 1 T. R. 485,
n.; Ambl. 708; 16 Ves. 27, 43. Secondly. Another exception
occurs where a testator has fixed ascertain test, by which the
number of relatives intended by him to participate in his
property, can be ascertained; as if a legacy be given to such of
the testator's relations as should not be worth a certain sum, in
such case, it seems, all the testator's relatives answering the
description would take, although not within the degrees of the
statute of distributions. Ambl. 798. Thirdly. Another exception
to the general rule is, where a testator has shown an intention
in his will, to comprehend relations more remote than those
entitled nuder the statute; in that case his intention will
prevail. 1 Bro. C. C. 32, n., and see 1 Cox, 235 .
22. - 3. The word "relation" or "relations," may be so
qualified as to exclude some of the next of kin from
participating in the bequest; and this will also happen when the
terms of the bequest are to my "nearest relations;" 19 Ves. 400;
Coop. 275; 1 Bro. C. C. 293; and see 1 Ves. sen. 337; Ambl.
70; to testator's relations of his name 1 Ves. sen. 336; or
stock, or blood; 15 Ves. 107.
23. - 4. The word relations being governed by the statute of
distributions, no person can regularly answer the description but
those who are of kin to the testator by blood, consequently
relatives by marriage are not included in a bequest to relations
generally. 1 Ves. sen. 84; 3 Atk. 761; 1 Bro. C. C. 71, 294.
24. - §6. Legacies to next of kin. 1. When a bequest is made to
testator's next of kin, it is understood the testator means such
as are related to him by blood. But it is not necessary that the
next of kin should be of the whole blood, the half blood
answering the description of next of kin, are equally entitled
with the whole, and if nearer in degree, will exclude the whole
blood. 1 Ventr. 425; Alleyn, 36; Styl. 74.
25 - 2. Relations by marriage are in general excluded from
participating in a legacy given to the next of kin. 18 Ves. 53;
14 Ves. 376, 381, 386; and, see 3 Ves. 244; 18 Ves. 49. But
this is only a prima facie construction, which may be repelled by
the contrary intention of a testator. 14 Ves. 382.
26. - 3. A testator is to be understood to mean by the
expression "next of kin," when he does not refer to the statute,
or to a distribution of the property as if he had died intestate,
those persons only who should be nearest of kin to him, to the
exclusion of others who might happen to be within the degree
limited by the statute. 3 Bro. C. C. 69; 19 Ves. 404; 14 Ves.
385. See 3 Bro. C. C. 64.
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27. - 4. Nearest of kin will alone be entitled under a bequest
to the next of kin in equal degree. 12 Ves. 433; 1 Madd. 36.
28. - §7. Legacies to legal personal representatives or to
personal representatives. 1. Where there is nothing on the face
of the will to manifest a different intention, the legal
construction of the words "personal representatives," or "legal
personal representatives," is executors or administrators of the
person described. 6 Ves. 402; 6 Mead. 159. A legacy limited to
the personal or legal personal representatives of A, unexplained
by anything in the will, will entitle A's executors or
administrators to it, not as representing A, or as part of his
estate, or liable to his debts, but in their own right as
personae designated by the law. 2 Mad. 155.
29. - 2. In the following cases the executors or administrators
were held to be entitled under the designation of personal, or
legal personal representatives. 3 Ves. 486; Anstr. 128.
30. - 3. The next of kin and not the executors or
administrators, were, in the following cases, held to be entitled
under the same designation. 3 Bro. C. C. 224, approved by Lord
Rosslyn in 3 Ves. 486; 3 Ves. 146; 19 Ves. 404.
31. - 4. The same words were held to mean children,
grandchildren, &c. to the exclusion of those persons who
technically answer the description of "personal representatives."
3 Ves. 383.
32. - 5. A husband or wife may take as such, if there is a
manifest intention in the will that they should and if either be
clothed with the character of executor or administrator of the
other, the prima facie legal title attaches to the office, which
will prevail, unless an intention to the contrary be expressed or
clearly apparent in the instrument. See 14 Ves. 382; 18 Ves. 49;
3 Ves. 231; 2 Ves. sen. 84; 3 Atk. 758; 1 Rop. Husb. and Wife,
326; 2 Rop. Husb. and. Wife, 64.
33. - §8. The construction of bequests when limited to
executors and administrators. 1. Where personal estate is given
to B, his executors and administrators, the law transfers to B
the absolute interest in the legacy. 15 Ves. 537; 2 Mad. 155.
34. - 2. If no interest were given to B, and the bequest were
to his executors and administrators, it should seem that the
individual answering the description would be beneficially
entitled as personal designatae, in analogy to the devise of real
estate to the heir of B, without a previous limitation to B,
whose heir would take by purchase in his own right, and not by
force of the word "heir" considered as a term of limitation. 2
Mad. 155. See 8 Com. Dig. Devise of Personal Property, xxxvi.
35: - §9. Legacies to descendants. 1. A legacy to the
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descendants of A, will comprehend all his children,
grandchildren, &c.; and if the will direct the bequest to be
divided equally among them, they are entitled to the fund per
capita. Ambl. 97; 3 Bro. C. C. 369.
36. - §10. Legacies to a family. 1. The word family, when
applied to personal property, is synonymous with "kindred," or
"relations;" see 9 Ves. 323. This being the ordinary acceptation
of the word family, it may nevertheless be confined to particular
relations by the context of the will; or the term may be
enlarged by it, so that the expression may, in some cases, mean
children, or next of kin, and in others may even include
relations by marriage. See 8 Ves. 604; Dy. 333; 5 Ves. 166;
Hob. 33; Coop. 122; 5 M. & S. 126; 17 Ves. 263; 1 Taunt. 266;
14 Ves. 488; 9 Ves. 319; 3 Meriv. 689.
37. - §11. Legacies to servants. 1. To entitle himself to a
bequest "to servants," the relation of master and servant must
have arisen out of a contract by which the claimant must have
formed an engagement which entitled the master to the service of
the individual during the whole period, or each and every part of
the time for which he contracted to, serve. 12 Ves. 114; 2 Vern.
546.
38. - 2. To claim as a servant, the legatee must in general be
in the actual service of the testator at the time of his death.
Still a servant may be considered by a testator as continuing in
his employment, and be intended to take under the bequest,
although he quitted the testator's house previous to his death,
so as to answer the description in the instrument; and to
establish which fact declarations of the testator upon the
subject cannot be rejected; but testimony that the testator
meant a servant notwithstanding his having left the testator's
service, to take a legacy bequeathed only to servants in his
employment at his death, cannot be received as in direct
opposition to the will. 16 Ves. 486, 489.
39. - §12. The different periods of time at which persons
answering the descriptions of next of kin, family relations,
issue, heirs, descendants and personal representatives, (to whom
legacies are given by those terms generally, and without
discrimination,) were required to be in esse, for the purpose of
participating in the legatory fund. 1. When the will expresses or
clearly shows that a testator in bequeathing to the relations,
&c. of a deceased individual, referred to such of them as were in
existence when the will was made, they only will be entitled; as
if the bequest was, "I give ś1000 to the descendants of the late
A B, now living," those descendants only in esse at the date of
the will can claim the legacy. Ambl. 397.
40. - 2. But, in general, a will begins to speak at the death
of the testator, and consequently in ordinary cases, relations,
next of kin, issue, descendants, &c., living at that period will
alone divide the property bequeathed to them by those words. See
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1 Ball &. Beat. 459; 1 Bro. C. C. 532; 3 Bro. C. C. 224; 5
Ves. 399; 1 Jac. & Walk, 388, n.; 3 Meriv. 689; 5 Binn. 607;
2 Murph. 178.
41. - 3. If a testator express, or his intention otherwise
appear from his will, that a bequest to his relations, &c.,
living at the death of a person, or upon the happening of any
other event, should take the fund, his next of kin only in
existence at the period described, will be entitled, in exclusion
of the representatives of such of them as happened to be then
dead. 3 Ves. 486; 9 Ves. 325; 1 Atk. 469; 15 Ves. 27; 4 Vin.
Abr. 485, pl. 16; 8 Ves. 38; 5 Binn. 606; see 6 Munf. 47.
42. - §13. When the fund given to legatees, by the description
of "family," "relations" "next in kin," &c., is to be divided
among them either per capita, or per stirpes, or both per stirpes
et capita. 1. Where the testator gives a legacy to his relations
generally, if his next of kin be related to him in equal degree,
as brothers, there being no children of a deceased brother, the
brothers will divide the fund among them in equal shares, or per
capita; each being entitled in his own right to an equal share.
So it would be if all the brothers had died before the testator,
one leaving two children, another three, &c., all the nephews and
nieces would take in equal shares, per capita, in their own
rights, and not as representing their parents; because they are
sole next of kin, and related to the testator in equal degree.
Pre. Ch. 54; and see 1 P. Wms. 595; 1 Atk. 454; 3 P. Wms. 50.
But if the testator's next of kin happen not to be related to him
in equal degrees, as a brother, and the children of a deceased
brother, so as that under the statute the children would take per
stirpes as representing their parent, namely, the share he would
have taken had he been living; yet if the testator has shown au
intention that his next of kin shall be entitled to his property
in equal shares, i. e. per capita, the distribution by the
statute will be superseded. This may happen where the bequest is
to relations, next of kin, &c., to be equally divided among them;
or by expressions of like import. Forrest. 251; and see 1 Bro.
C. C. 33; 8 Serg. & Rawle, 43; 11 Serg. & Rawle 103; 1 Murph.
383.
43. - 2. Where a bequest is to relations, &c., those persons
only who are next of kin are entitled, and the statute of
distributions is adopted, not only to ascertain the persons who
take, but also the proportions and manner in which the property
is to be divided; the will being silent upon the subject, if the
next of kin of the person described be not related to him in
equal degree, those most remote can only claim per stirpes, or in
right of those who would have been entitled under the statute if
they had been living. Hence it appears that taking per stirpes,
always supposes an inequality in relation-ship. For example,
where a testator bequeaths a legacy to his "relations," or "next
of kin," and leaves at his death two children, and three
grandchildren, the children of a deceased child; the
grandchildren would take their parents' share, that is, one-third
per stirpes under the statute, as representing their deceased
parent. 1 Cox, 235.
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44. - 3. Where a testator bequeaths personal estate to several
persons as tenants in common, with a declaration that upon all or
any of their deaths before a particular time, their respective
shares shall be equally divided among the issue or descendants of
each of them, and they die before the arrival of the period, some
leaving children, others grandchildren, and great grandchildren,
and other grandchildren and more remote descendants in such case
the issue of each deceased person will take their parents share
per stirpes; and such issue, whether children only, or children
and grandchildren, &c., will divide each parent's share among
them equally per capita. 1 Ves. sen. 196.
45. - §14. The effect of a mistake in the names of legatees. 1.
Where the name has been mistaken in a will or deed, it will be
corrected from the instrument, if the intention appear in the
description of the legatee or donee, or in other parts of the
will or deed. For example, if a testator give a bequest to Thomas
second son of his brother John, when in fact John had no son
named Thomas, and his second son was called William; it was held
William was entitled. 19 Ves. 381; Coop. 229; and see Ambl.
175; Co. Litt. 3, a; Finch's R. 403; 3 Leon, 18. When a
bequest is made to a class of individuals, nomin-atim, and the
name or christian name of one of them is omitted, and the name or
christian name of another is repeated; if the context of the
will sbow that the repetition of the name was error, and the name
of the person omitted was intended to have been inserted, the
mistake will be corrected. As where a testator gave his residuary
estate to his six grandchildren, by their christian names. The
name of Ann, one of them, was repeated, and the name of
Elizabeth, another of them, was omitted. The context of the will
clearly showed the mistake which had occurred, and Elizabeth was
admitted to an equal share in the bequest. 1 Bro. C. C. 30; see
2 Cox, 186. And is to cases where parol evidence will be received
to prove the mistakes in the names or additions of legatees, and
to ascertain the proper person, see 3 B. & A. 632 to 642; 6 T.
R. 676; 2 P. Wms. 137; 1 Atk. 410: 1 P. Wms. 421; 5 Rep. 68,
b; 6 Ves. 42; 7 East, 302; Ambl. 75.
46. - §15. The effect of mistakes in the descriptions of
legatees, and the admission of parol evidence in those cases. 1.
Where the description of the legatee is erroneous, the error not
having been occasioned by any fraud practiced upon the testator,
and there is no doubt as to the person who was intended to be
described, the mistake will not disappoint the bequest. Hence if
a legacy be given to a person by a correct name, but a wrong
description or addition, the mistaken description will not
vitiate the bequest, but be rejected; for it is a maxim that
veritas nominis tollit errorem demonstrationis. Ld. Bac. Max.
reg. 25; and see 2 Ves. jr. 589; Ambl. 75; 4 Ves. 808; Plowd.
344; 19 Ves. 400.
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47. - 2. Wherever a legacy is given to a person under a
particular description and character which he himself has falsely
assumed; or, where a testator, induced by the false
representations of third persons to regard the legatee in a
relationship which claims his bounty, bequeaths him a legacy
according with such supposed relationship, and no motive for such
bounty can be supposed, the law will not, in either case, permit
the legatee to avail himself of the description, and therefore he
cannot demand his legacy. See 4 Ves. 802; 4 Bro. C. C. 20.
48. - 3. The same principle which has establisbed the
admissibility of parol evidence to correct errors in naming
legatees, authorizes its allowance to rectify mistakes in the
description of them. Ambl. 374; 1 Ves. jr. 266; 1 Meriv. 184.
49. - 4. If neither the will nor extrinsic evidence is
sufficient to dispel the ambiguity arising from the attempt to
apply the description of the legatee to the person intended by
the testator, the legacy must fail from the uncer-tainty of its
object. 7 Ves. 508; 6 T. R. 671.
50. - §16. The consequences of imperfect descriptions of, or
reference to legatees, appearing upon the face of wills, and when
parol evidence is admissible. These cases occur, 1. When a blank
is left for the Christian name of the legatee. 2. When the whole
name is omitted. 3. When the testator has merely written the
initials of the name; and, 4. When legatees have been once
accurately described, but in a subsequent reference to one of
them, to take an additional bounty, the person intended is
doubtful, from ambiguity in the terms.
51. - 1. When a blank is left for the Christian name of the
legatee, evidence is admissible to supply the omission. 4 Ves.
680.
52. - 2. When the omission consists of the entire name of the
legatee, parol evidence cannot be admitted to supply the blank. 2
Ch. Ca. 51.; 2 Atk. 239; 3 Bro. C.C. 311.
53. - 3. When a legatee is described by the initials of his
name only, parol evidence may be given to prove his identity. 3
Ves. 148. When a patent ambiguity arises from an imperfect
reference to one of two legatees correctly described in a prior
part of the will, parol evidence is admitted to show which of
them was intended, so that the additional legacy intended for the
one will depend upon the removal of the obscurity by a sound
interpretation of the whole will. 3 Atk. 257 and see 2 Ves. 217;
2 Eden, 107.
See further, upon this subject, Lownd on Leg. ch. 4; 1 Roper
on Leg. ch. 2; Com. Dig. Chancery, 3 Y; Bac. Abr. h.. t. Vin.
Abr. h. t.; Nels. Abr. h. t.; Whart. Dig. Wills, G. P.; Hamm.
Dig. 756; Grimk‚ on Exec. ch. 5; Toll. on Executors, ch. 4.
Bouvier's Law Dictionary : L1 : Page 39 of 125
LEGALIS HOMO. A person who stands rectus in curia, who
possesses all his civil rights. A lawful man. One who stands
rectus in curia, not outlawed nor infamous. In this sense are the
words probi et legates homines.
LEGANTINE CONSTITUTIONS. The name of a code of ecclesiastical
laws, enacted in national synods under Pope Gregory IX., and Pope
Clement IV., about the years from 1220 to 1230.
LEGATARY. One to whom anything is bequeathed; a legatee. This
word is sometimes though seldom used to designate a legate or
nuncio.
LEGATION. An embassy; a mission.
2. All persons attached to a foreign legation, lawfully
acknowledged by the government of this country, whether they are
ambassadors, envoys, winisters, or attaches, are protected by the
act of April 30, 1790, 1 Story's L. U. S. 83, from violence,
arrest or molestation. 1 Dall. 117; 1 W. C. C. R. 232; 11
Wheat. 467; 2 W. C. C. Rep. 435; 4 W. C. C. R. 531; 1 Miles,
366; 1 N & M. 217; 1 Bald. 240; Wheat. Int. Law, 167. Vide
Ambassador; Envoy; Minister.
LEGATORY, dead man's part or share. (q. v.) The third part of a
freeman's personal estate, which by the custom of London, in case
he had a wife and children, the freeman might always have
disposed of by will. Bac. Ab. Customs of London, D 4.
LEGISLATIVE POWER. The authority under the constitution to make
laws and to alter or repeal them.
LEGISLATOR. One who makes laws.
2. In order to make good laws, it is necessary to understand
those which are in force; the legislator ought therefore, to be
thoroughly imbued with a knowledge of the laws of his country,
their advantages and defects; to legislate without this previous
knowledge is to attempt to make a beautiful piece of machinery
with one's eye shut. There is unfortunately too strong a
propensity to multiply our laws and to change them. Laws must be
yearly made, for the legislatures meet yearly but whether they
are always for the better may be well questioned. A mutable
legislation is always attended with evil. It renders the law
uncertain, weakens its effects, hurts credit, lessens the value
of property, and as they are made frequently, in consequence of
some extraordinary case, laws sometimes operate very unequally.
Vide 1 Kent, Com. 227 and Le Magazin Universel, tome ii. p. 227,
for a good article against excessive legislation; Matter, De
l'Influence des Lois sur les Moeurs, et de l'Influence des Moeurs
sur les Lois.
LEGISLATURE, government. That body of men in the state which
has the power of making laws.
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2. By the Constitution of the United States, art. 1, s. 1, all
legislative powers granted by it are vested in a congress of the
United States, which shall consist of a senate and house of
representatives.
3. It requires the consent of a majority of each branch of the
legislature in order to enact a law, and then it must be approved
by the president of the United States, or in case of his refusal,
by two-thirds of each house. Const. U. S. art. 1, s. 7, 2.
4. Most of the constitutions of the several states, contain
provisions nearly similar to this. In general, the legislature
will not exercise judicial functions; yet the use of supreme
power upon particular occasions, is not without example. Vide
Judicial.
LEGITIMACY. The state of being born in wedlock; that is, in a
lawful manner.
2. Marriage is considered by all civilized nations as the only
source of legitimacy; the qualities of husband and wife must be
possessed by the parents in order to make the offspring
legitimate; and furthermore the marriage must be lawful, for if
it is void ab initio, the children who may be the offspring of
such marriage are not legitimate. 1 Phil. Ev. Index, h. t.; Civ.
Code L. art. 203 to 216.
3. In Virginia, it is provided by statute of 1787, "that the
issue of marriages deemed null in law, shall nevertheless be
legitimate." 3 Hen. & Munf. 228, n.
4. A conclusive, presumption of legitimacy arises from marriage
and cohabitation; and proof of the mother's irregularities will
not destroy this presumption: pater est quem nuptiae
demonstrant. To rebut this presumption, circumstances must be
shown which render it impossible that the husband should be the
father, as impotency and the like. 3 Bouv. Inst. n. 300-2. Vide
Bastard; Bastardy; Paternity; Pregnancy.
LEGITIMATE. That which is according to law; as, legitimate
children, are lawful children, born in wedlock, in
contradistinction to bastards; legitimate autbority, or lawful
power, in opposition to usurpation.
LEGITIMATION. The act of giving the character of legitimate
cbildren to those who were not so born.
2. In Louisiana, the Civil Code, art. 217, enacts that
"children born out of marriage, except those who are born of an
incestuous or adulterous connexion, may be legitimated by the
subsequent marriage of their father and mother whenever the
latter have legally acknowledged them for their children, either
before their marriage, or by the contract of marriage itself."
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3. In most of the other states the character of legitimate
children is given to those who are not so, by special acts of
assembly. In Georgia, real estate may descend from a mother to
her illegitimate children and their representatives, and from
such child, for want of descendants, to brothers and sisters,
born of the same mother, and their representatives. Prince's Dig.
202. In Alabama, Kentucky, Mississippi, Vermont and Virginia,
subsequent marriages of parents, and recognition by the father,
legitimatize an illegitimate child and in Massachusetts, for all
purposes except inheriting from their kindred. Mass. Rev. St.
414.
4. The subsequent marriage of parents legitimatizes the child
in Illinois, but he must be afterwards acknowledged. The same
rule seems to have been adopted in Indiana and Missouri. An
acknowledgment of illegitimate children, of itself, legitimatizes
in Ohio, and in Michigan and Mississippi marriage alone between
the reputed parents has the same effcct. In Maine, a bastard
inherits to one who is legally adjudged, or in writing owns
himself to be the father. A bastard may be legitimated in North
Carolina, on application of the putative father to court, either
where he has married the mother, or she is dead, or married
another or lives out of the state. In a number of the states,
namely, in Alabama, Connecticut, Illinois, Indiana, Kentucky,
Maine, Massachusetts, Michigan, North Carolina, Ohio, Rhode
Island, Tennessee, Vermont, and Virginia, a bastard takes by
descent from his mother, with modifications regulated by the laws
of these states. 2 Hill, Ab. s. 24 to 35, and the authori-ties
there referred to. Vide Bastard; Bastardy; Descent.
LEGITIME, civil law. That portion of a parent's estate of which
he cannot disinherit his children, without a legal cause. The
civil code of Louisiana declares that donations inter vivos or
mortis causa cannot exceed two-thirds of the property of the
disposer if he leaves at his decease a legitimate child; one
half if he leaves two children; and one-third if he leaves three
or a greater number. Under the name of children are included
descendants of wbatever degree they may be; it must be
understood that they are only counted for the child they
represent. Civil. Code of Lo. art. 1480.
3. Donation inter vivos or mortis causa, cannot exceed
two-thirds of the property if the disposer having no children
have a father, mother, or both. Id. art. 1481. Where there are no
descendants, and in case of the previous decease of the father
and mother, donations inter vivos and mortis causa, may, in
general, be made of the whole amount of the property of the
disposer. Id. art. 1483. The Code Civil makes nearly similar
previsions. Code Civ. L. 3, t. 2, c. 3, s. 1, art. 913 to 919.
4. In Holland, Germany, and Spain, the principles of the
Falcidian law, more or less limited, have been generally adopted.
Coop. Just. 616.
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5. In the United States, other than Louisiana and in England,
there is no restriction on the right of bequeathing. But this
power of bequeathing did not originally extend to all a man's
personal estate; on the contrary, by the common law, as it stood
in the reian of Henry II, a man's goods were to be divided into
three equal parts, one of which went to his heirs or lineal
descendants, another to his wife, and the third was at his own
disposal; or if he died without a wife, he might then dispose of
one moiety, and the other went to his children; and so e
converso if he had no children, the wife was entitled to one
moiety, and he might bequeath the other; but if he died without
either wife or issue, the whole was at his own disposal. Glanv.
1. 2, c. 6;, Bract. 1. 2, c. 26. The shares of the wife and
children were called their reasonable part. 2 Bl. Comm. 491-2.
See Death's part; Falcidian law.
LENDER, contracts. He from whom a thing is borrowed.
2. The contract of loan confers rights, and imposes duties on
the lender. 1. The lender has the right to revoke the loan at his
mere pleasure; 9 Cowen, R. 687; 8 Johns. Rep. 432; 1 T. R.
480; 2 Campb. Rep. 464; and is deemed the owner or proprietor
of the thing during the period of the loan; so that au action
for a trespass or conversion will lie in favor of the lender
against a stranger, who has obtained a wrongful possession, or
has made a wrongful conversion of the thing loaned; as mere
gratuitous permission to a third person to use a chattel does
not, in contemplation of the common law, take it out of the
possession of the owner. 11 Johns. Rep. 285; 7 Cowen, Rep. 753;
9 Cowen, Rep. 687; 2 Saund. Rep. 47 b; 8 Johns. Rep. 432; 13
Johns. Rep. 141, 661; Bac. Abr. Trespass, c 2; Id. Trover, C 2.
And in this the Civil agrees with the common law. Dig. 13, 6, 6,
8; Pothier, Pr‚t …, Usage, ch. 1, §1, art. 2, n. 4; art. 3, n.
9; Ayliffe's Pand. B. 4, t. 16, p. 517; Domat, B. 1, t. 5, §1,
n. 4; and so does the Scotch law. Ersk. Pr. Laws of Scotl. B. 3,
t. 1 §8.
3. - 2. In the civil law, the first obligation on the part of
the lender, is to suffer the borrower to use and enjoy the thing
loaned during the time of the loan, according to the original
intention. Such is not the doctrine of the common law. 9 Cowen,
Rep. 687. The lender is obliged by the civil law to reimburse the
borrower the extraordinary expenses to which he has been put for
the preservation of the thing lent. And in such a case, the
borrower would have a lien on the thing, and may detain it, until
these extraordinary expenses are paid, and the lender cannot,
even by an abandonment of the thing to the borrower, excuse
himself from re-payment, nor is he excused by the subsequent loss
of the thing by accident, nor by a restitution of it by the
borrower, without insisting upon repayment. Pothi