R:
RACK, punishments. An engine with which to torture a supposed
criminal, in order to extort a confession of his supposed crime,
and the names of his supposed accomplices. Unknown in the United
States.
2. This instrument, known by the nickname of the Duke of
Exeter's daughter, was in use in England. Barr. on the Stat. 866
12 S. & R. 227.
BACK RENT, Engl. law. The full extended value of land let by
lease, payable by tenant for life or Years. Wood's Inst. 192.
RADOUB, French law. This word designates the repairs made to a
ship, and a fresh supply of furniture and victuals, munitions and
other provisions required for the voyage. Pard. n. 602.
RAILWAY. A road made with iron rails or other suitable
materials.
2. Railways are to be constructed and used as directed by the
legislative acts creating them.
3. In general, a railroad company may take lands for the
purpose of making a road when authorized by the charter, by
paying a just value for the same. 8 S. & M. 649.
4. For most purposes a railroad is a public highway, but it
may be the subject of private property, and it has been held that
it may be sold as such, unless the sale be forbidden by the
legislature; not the franchise, but the land constituting the
road. 5 Iredell, 297. In. general, however, the public can only
have a right of way for it is not essential that the public
should enjoy the land itself, namely, its treasures, minerals,
and the like, as these would add nothing to the convenience of
the public.
5. Rail-road companies, like all other principals, are liable
for the acts of their agents, while in their employ, but they can
not be made responsible for accidents which could not be avoided.
2 Iredell, 234; 2 McMullan, 403.
RAIN WATER. The water which naturally falls from the clouds.
2. No one has a right to build his house so as to cause the
rain water to fall over his neighbor's land; 1 Rolle's Ab. 107;
2 Leo. 94; 1 Str. 643; Fortesc. 212; Bac. Ab. Action on. the
case, F.; 5 Co. 101; 2 Rolle, Ab. 565, 1. 10; 1 Com. Dig.
Action upon the case for a nuisance, A; unless he has acquired a
right by a grant or prescription.
3. When the land remains in a state of nature, says a learned
writer, and by the natural descent, the rain water would descend
from the superior estate over the lower, the latter is
necessarily subject to receive such water. 1 Lois des Batimens,
15, 16. Vide 2 Roll. 140; Dig. 39, 3; 2 Bouv. Inst. n. 1608.
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RANGE. This word is used in the land laws of the United States
to designate the order of the location of such lands, and in
patents from the United States to individuals they are described
as being within a certain range.
RANK. The order or place in which certain officers are placed
in the army and navy, in relation to others, is called their
rank.
2. It is a maxim, that officers of, an inferior rank are bound
to obey all the lawful commands of their superiors, and are
justified for such obedience.
RANKING. In Scotland this term is used to signify the order in
which the debts of a bankrupt ought to be paid.
RANSOM, contracts, war. An agreement made between the
commander of a capturing vessel with the commander of a
vanquished vessel, at sea, by which the former permits the latter
to depart with his vessel, and gives him a safe conduct, in
consideration of a sum of money, which the commander of the
vanquished vessel, in his own name, and in the name of the owners
of his vessel and cargo, promises to pay at a future time named,
to the other.
2. This contract is usually made in writing in duplicate, one
of which is kept by the vanquished vessel which is its safe
conduct; and the other by the conquering vessel, which is
properly called ransom bill.
3. This contract, when made in good faith, and not locally
prohibited, is valid, and may be enforeed. Such contracts have
never been prohibited in this country. 1 Kent, Com. 105. In
England they are generally forbidden. Chit. Law of Nat. 90 91;
Poth. Tr. du Dr. de Propr. n. 127. Vide 2 Bro. Civ. Law, 260;
Wesk. 435; 7 Com. Dig. 201; Marsh. Ins. 431; 2 Dall. 15; 15
John. 6; 3 Burr. 1734. The money paid for the redemption of such
property is also called the ransom.
RAPE, crim. law. The carnal knowledge of a woman by a man
forcibly and unlawfully against her will. In order to ascertain
precisely the nature of this offence, this definition will be
analysed.
2. Much difficulty has arisen in defining the meaning of
carnal knowledge, and different opinions have been entertained
some judges having supposed that penetration alone is sufficient,
while other's deemed emission as an essential ingredient in the
crime. Hawk. b. 1, c. 41, s. 3; 12 Co. 37; 1 Hale, P. C. 628;
2 Chit. Cr. L. 810. But in modern times the better opinion seems
to be that both penetration and emission are necessary. 1 East,
P. C. 439; 2 Leach, 854. It is, however, to be remarked, that
very slight evidence may be sufficient to induce a jury to
believe there was emission. Addis. R. 143; 2 So. Car. C. R. 351;
1 Beck's Med. Jur. 140. 4 Chit. Bl. Com. 213, note 8. In
Scotland, emission is not requisite. Allis. Prin. 209, 210. See
Emission; Penetration.
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3. By the term man in this definition is meant a male of the
human species, of the age of fourteen years and upwards; for an
infant, under fourteen years, is supposed by law incapable of
committing this offence. 1 Hale, P. C. 631; 8 C. & P. 738. But
not only can an infant uncler fourteen years, if of sufficient
mischievous discretion, but even a woman may be guilty as
principals in the second degree. And the hushand of a woman may
be a principal in the second degree of a rape committed upon his
wife, as where he held her while his servant committed the rape.
1 Harg St. Tr. 388.
4. The knowledge of the woman's person must be forcibly and
against her will; and if her consent has not been voluntarily
and freely given, (when she has the power to consent,) the
offence will be complete, nor will any subsequent acquiescence on
her part do away the guilt of the ravisher. A consent obtained
from a woman by actual violence, by duress or threats of murder,
or by the administration of stupefying drugs, is not such a
consent as will shield the offender, nor turn his crime into
adultery or fornication.
5. The matrmonial consent of the wife cannot be retracted,
and, therefore, her hushand cannot be guilty of a rape on her as
his act is not unlawful. But, as already observed, he may be
guilty as principal in the second degree.
6. As a child under ten years of age is incapable in law to
give her consent, it follows, that the offence may be committed
on such a child whether she consent or not. See Stat. 18 Eliz, c.
7, s. 4. See, as to the possibility of commi tting a rape, and as
to the signs which indicate it, 1 Beck's Med. Jur. ch. 12;
Merlin, Rep. mot Viol.; 1 Briand, Med. Leg. 1ere partic, c. 1,
p. 66; Biessy, Manuel Medico-Legal, &c. p. 149; Parent
Duchatellet, De la Prostitution dans la ville de Paris, c. 3, §5
Barr. on the Stat. 123; 9 Car. & P. 752 2 Pick. 380; 12 S. & R.
69; 7 Conn. 54 Const. R. 354; 2 Vir. Cas. 235.
RAPE, division of a country. In the English law, this is a
district similar to that of a hundred; but oftentimes containing
in it more hundreds than one.
RAPINE, crim. law. This is almost indistinguishable from
robbery. (q. v.) It is the felonious taking of another man's
personal property, openly and by violence, against his will. The
civilians define rapine to be the taking with violence, the
movable property of another, with the fraudulent intent to
appropriate it to one's own USC. Lec. El. Dr. Rom. §1071.
RAPPORT A SUCCESSION. A French term used in Louisiana, which
is somewhat similar in its meaning to our homely term hotch-pot.
It is the reunion to the mass of the succession, of the things
given by the deceased ancestor to his heir, in order that the
whole may be divided among the do-heirs.
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2. The obligation to make the rapport has a tripple
foundation. 1. It is to be presumed that the deceased intended in
making an advancement, to give only a portion of the inheritance.
2. It establishes the equality of a division, at least, with
regard to the children of the same parent, who all have an equal
right to the succession. 3. It preserves in families that
harmony, which is always disturbed by unjust favors to one who
has only an equal right. Dall. Dict. h. t. See Advancement;
Collation; Hotchpot.
RASCATL. An opprobrious term, applied to persons of bad
character. The law does not presume that a damage has arisen
because the defendant has been called a rascal, and therefore no
general damages can be recovered for it; if the party has
received special damages in consequence of being so called, be
can recover a recompense to indennify him for his loss.
RASURE. The scratching or scraping a writing, so as to prevent
some part of it from being read. The word writing here is
intended to include printing. Vide Addition; Erasure and
Interlineation. Also 8 Vin. Ab. 169; 13 Vin. Ab. 37; Bac. Ab.
Evidence, F.; 4 Com. Dig. 294; 7 Id. 202.
RATE. A public valuation or assessment of every man's estate;
or the ascertaining how much tax every one shall pay. Vide Pow.
Mortg. Index, h. t.; Harr. Dig. h. t.; 1 Hopk. C. R. 87.
RATE OF EXCHANGE. Among merchants, by rate of exchange is
understood the price at which a bill drawn in one country upon
another, may be sold in the former.
RATIFICATION, contracts. An agreement to adopt an act
performed by another for us.
2. Ratifications are either empress or implied. The former are
made in express and direct terms of assent; the latter are such
as the law presumes from the acts of the principal; as, if Peter
buy goods for James, and the latter, knowing the fact, receive
them and apply them to his own use. By ratifying a contract a man
adopts the agency, altogether, as well what is detrimental as
that which is for his benefit. 2 Str. R. 859; 1 Atk. 128; 4 T.
R. 211; 7 East, R. 164; 16 M. R. 105; 1 Ves. 509 Smith on Mer.
L. 60; Story, Ag. §250 9 B. & Cr. 59.
3. As a general rule, the principal has the right to elect
whether he will adopt the unauthorized act or not. But having
once ratified the act, upon a full knowledge of all the material
circumstances, the ratification cannot be revoked or recalled,
and the principal becomes bound as if he had originally
authorized the act. Story, Ag. §250; Paley, Ag. by Lloyd, 171;
3 Chit. Com. Law, 197.
4. The ratification of a lawful contract has a retrospective
effect, ana binds the principal from its date, and not only from
the time of the ratification, for the ratification is equivalent
to an original authority, according to the maxim, that omnis
ratihabitio mandate aeguiparatur. Poth. Ob. n. 75; Ld. Raym.
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930; Com. 450; 5 Burr. 2727; 2 H. Bl. 623; 1 B. & P. 316; 13
John.; R. 367; 2 John. Cas. 424; 2 Mass. R. 106.
5. Such ratification will, in general, relieve the agent from
all responsibility on the contract, when be would otherwise have
been liable. 2 Brod. & Bing. 452. See 16 Mass. R. 461; 8 Wend.
R. 494; 10 Wend. R. 399; Story, Ag. §251. Vide Assent, and Ayl.
Pand. *386; 18 Vin. Ab. 156; 1 Liv. on, Ag. c. 2, §4, p. 44,
47; Story on Ag. §239; 3 Chit. Com. L. 197; Paley on Ag. by
Lloyd, 324; Smith on Mer. L. 47, 60; 2 John. Cas. 424; 13
Mass. R. 178; Id. 391; Id. 379; 6 Pick. R. 198; 1 Bro. Ch. R.
101, note; S. C. Ambl. R. 770; 1 Pet. C. C. R. 72; Bouv. Inst.
Index, h. t.
6. An infant is not liable on his contracts; but if, after
coming of age, he ratify the contract by an actual or express
declaration, he will be bound to perform it, as if it had been
made after he attained full age. The ratification must be
voluntary, deliberate, and intelligent, and the party must know
that without it, he would not be bound. 11 S. & R. 305, 311; 3
Penn. St. R. 428. See 12 Conn. 551, 556; 10 Mass. 137,140; 14
Mass. 457; 4 Wend. 403, 405. But a confirmation or ratification
of a contract, may be implied from acts of the infant after he
becomes of age; as by enjoying or claiming a benefit under a
contract be might have wholly rescinded; 1 Pick. 221, 22 3; and
an infant partner will be liable for the contracts of the firm,
or at least such as were known to him, if he, after becoming of
age, confirm the contract of partnership by transacting business
of the firm, receiving profits, and the like. 2 Hill. So. Car.
Rep. 479; 1 B. Moore, 289.
RATIFICATION OF TREATIES. The constitution of the United
States, art. 2, s. 2, declares that the president shall have
power, by and with the advice and consent of the senate, to make
treaties, provided two-thirds of the senators present concur. 2.
So treaty is therefore of any validity to bind the nation unless
it has been ratified by two-thirds of the members present in the
senate at the time its expediency or propriety may have been
discussed. Vide Treaty.
RATIHABITION, contracts. Confirmation; approbation of a
contract; ratification. Vin. Ab. h. t.; Assent. (q. v.)
RATIONALIBUS DIVISIS, WRIT DE. The name of a writ which lies
properly when two men have lands in several towns or hamlets, so
that the one is seised of the land in one town or hamlet, and the
other, of the other town or hamlet by himself; and they do not
know the bounds of the town or hamlet, nor of their respective
lands. This writ lies by one, against the other, and the object
of it is to fix the boundaries. F . N. B. 300.
RAVISHED, pleadings. In indictments for rape, this technical
word must be introduced, for no other word, nor any
circumlocution, will answer the purpose. The defendant should be
charged with having "feloniously ravished" the prosecutrix, or
woman mentioned in the indictment. Bac. Ab. Indictment, G l;
Com. Dig. Indictment, G 6; Hawk. B. 2, c. 25, s. 56; Cro. C. C.
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37; 1 Hale, 628: 2 Hale, 184 Co. Litt. 184, n. p.; 2 Inst.
180; 1 East, P. C. 447. The words "feloniously did ravish and
carnally know," imply that the act was done forcibly and against
the will of the woman. 12 S. & R. 70. Vide 3 Chit. Cr. Law, 812.
RAVISHMENT, crim. law. This word has several meanings. 1. It
is an unlawful taking of a woman, or an heir in ward. 2. It is
sometimes used synonymously with rape.
RAVISHMENT OF WARD, Eng. law. The marriage of an infant ward,
without the consent of the guardian, is called a ravishment of
ward, and punishable by statute. Westminster 2, c. 35.
READING. The act of making known the contents of a writing or
of a printed document.
2. In order to enable a party to a contract or a devisor to
know what a paper contains it must be read, either by the party
himself or by some other person to him. When a person signs or
executes a paper, it will be presumed that it has been read to
him, but this presumption may be rebutted.
3. In the case of a blind testator, if it can be proved that
the will was not read to him, it cannot be sustained. 3 Wash. C
C. R. 580. Vide 2 Bouv. Inst. n. 2012.
REAL. A term which is applied to land in its most enlarged
signification. Real security, therefore, means the security of
mortgages or other incumbrances affecting lands. 2 Atk. 806; S.
C. 2 Ves. sen. 547.
2. In the civil law, real has not the same meaning as it has
in the common law. There it signifies what relates to a thing,
whether it be movable or immovable, lands or goods; thus, a real
injury is one which is done to a thing, as a trespass to
property, whether it be real or personal in the common law sense.
A real statute is one which relates to a thing, in
contradistinction to such as relate to a person,
REAL ACTIONS. Those which concern the realty only, being such
by which the demandant claims title to have any lands or
tenements, rents, or other hereditaments, in fee simple, fee
tail, or for term of life. 3 Bl. Com. 117. Vide Actions.
2. In the civil law, by real actions are meant those which
arise from a right in a thing, whether it be movable or
immovable.
REAL CONTRACT, com. law. By this term are understood contracts
in respect to real property. 3 Rawle, 225.
2. In the civil law real contracts are those which require the
interposition of thing (rei,) as the subject of them; for
instance, the loan for goods to be specifically returned.
3. By that law, contracts are divided into those which are
formed by the mere consent of the parties, and therefore are
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called consensual; such as sale, hiring and mandate, and those
in which it is necessary that there should be something more than
mere consent, such as the loan of money, deposit or pledge,
which, from their nature, require the delivery of the thing;
whence they are called real. Poth. Obl. p. 1, c. 1, s. 1, art. 2.
REAL PROPERTY, That which consists of land, and of all rights
and profits arising from and annexed to land, of a permanent,
immovable nature. In order to make one's interest in land, real
estate, it must be an interest not less than for the party's
life, because a term of years, even for a thousand years,
perpetually renewable, is a mere personal estate. 3 Russ. R. 376.
It is usually comprised under the words lands, tenements, and
hereditaments. Real property is corporeal, or incorporeal.
2. Corporeal consists wholly of substantial, permanent
objects, which may all be comprehended under the general
denomination of land. There are some chattels which are so
annexed to the inheritance, that they are deemed a part of it,
and are called heir looms. (q. v.) Money agreed or directed to be
laid out in land is considered as real estate. Newl. on Contr.
chap. 3; Fonb. Eq. B. 1, c. 6, §9; 3 Wheat. Rep. 577.
3. Incorporeal property, consists of certain inheritable
rights, which are not, strictly speaking, of a corporeal nature,
or land, although they are by their own nature or by use, annexed
to corporeal inheritances, and are rights issuing out of them, or
which concern them. These distinctions agree with the civil law.
Just. Inst. 2, 2; Poth. Traite de la Communaute, part 1, c. 2,
art. 1. The incorporeal hereditaments which subsist by the laws
of the several states are fewer than those recognized by the
English law. In the United States, there are fortunately no
advowsons, tithes, nor dignities, as inheritances.
4. The most common incorporeal hereditaments, are, 1. Commons.
2. Ways. 3. Offices. 4. Franchises. 5. Rents. For authorities of
what is real or personal property, see 8 Com. Dig. 564; 1 Vern.
Rep. by Raithby, 4, n.; 2 Kent, Com. 277; 3 Id. 331; 4 Watts'
R. 341; Bac. Ab. Executors, H 3; 1 Mass. Dig. 394; 5 Mass. R.
419, and the references under the article Personal property, (q.
v.) and Property. (q. v.)
5. The principal distinctions between real and personal
property, are the following: 1. Real property is of a permanent
and immovable nature, and the owner has an estate therein at
least for life. 2. It descends from the ancestor to the heir
instead of becoming the property of an executor or admin-istrator
on the death of the owner, as in case of personalty. 3. In case
of alienation, it must in general be made by deed, 5 B. & C. 221,
and in presenti by the common law; whereas leases for years may
commence in futuro, and personal chattels may be transferred by
parol or delivery. 4. Real estate when devised, is subject to the
widow's dower personal estate can be given away by will
discharged of any claim of the widow.
6. These are some interests arising out of, or connected with
real property, which in some respects partake of the qualities of
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personally; as, for example, heir looms, title deeds, which,
though in themselves movable, yet relating to land descend from
ancestor to heir, or from a vendor to a purchaser. 4 Bin . 106.
7. It is a maxim in equity, that things to be done will be
considered as done, and vice versa. According to this doctrine
money or goods will be considered as real property, and land will
be treated as personal property. Money directed by a will to be
laid out in land is, in equity, considered as land, and will pass
by the words "lands, tenements, and hereditaments whatsoever and
wheresoever." 3 Bro. C. C. 99; 1 Tho. Co. Litt. 219, n. T.
REALITY OF LAWS. Those laws which govern property, whether
real or personal, or things; the term is used in persona
opposition to personality of laws. (q. v.) Story, Confl. of L.
23.
REALM. A kingdom; a country. 1 Taunt. 270; 4 Campb. 289;
Rose, R. 387.
REALTY. An abstract of real, as distinguished from personalty.
Realty relates to lands and tenements, rents or other
hereditaments. Vide Real Property.
REASON. By reason is usually understood that power by which we
distinguish truth from falsehood, and right from wrong; and by
which we are enabled to combine means for the attainment of
particular ends. Encyclopedie, h. t.; Shef. on Lun. Introd.
xxvi. Ratio in jure aequitas integra.
2. A man deprived of reason is not criminally responsible for
his acts, nor can he enter into any contract.
3. Reason is called the soul of the law; for when the reason
ceases, the law itself ceases. Co. Litt. 97, 183; 1 Bl. Com. 70;
7 Toull. n. 566.
4. In Pennsylvania, the judges are required in giving their
opinions, to give the reasons upon which they are founded. A
similar law exists in France, which Toullier says is one of
profound wisdom, because, he says, les arrets ne sont plus comme
autre fois des oracles muets qui commandent une obeissance
passive; leur autorite irrefragable pour ou contre ceux qui les
ont obtenus, devient soumise a la censure de la raison, quand on
pretend les eriger en re-gles a suivre en d'autres cas
semblables, vol. 6, n. 301; judgments are not as formerly silent
oracles which require a passive obedience; their irrefragable
authority, for or against those who have obtained them, is
submitted to the censure of reason, when it is pretended to set
them up as rules to be observed in other similar cases. But see
what Duncan J. says in 14 S. & R. 240.
REASONABLE. Conformable or agreeable to reason; just;
rational.
2. An award must be reasonable, for if it be of things
nugatory in themselves, and offering no advantage to either of
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the parties, it cannot be enforeed. 3 Bouv. Inst. n. 2096. Vide
Award.
REASONABLE ACT. This term signifies such an act as the law
requires. When an act is unnecessary, a party will not be
required to perform it as a reasonable act. 9 Price's Rep. 43;
Yelv. 44; Platt. on Cov. 342, 157.
REASONABLE TIME. The English law, which in this respect, has
been adopted by us, frequently requires things to be done within
a reasonable time; but what a reasonable time is it does not
define: quam long-um debet esse rationabile tempus, non
definitur in lege, sed pendet ex discretione justiciariorum. Co.
Litt, 50. This indefinite requisition is the source of much
litigation. A bill of exchange, for example, must be presented
within a reasonable time Chitty, Bills, 197-202. An abandonment
must be made within a reasonable time after advice received of
the loss. Marsh. Insurance, 589.
2. The commercial code of France fixes a time in both these
cases, which varies in proportion to the distance. See Code de
Com. L. 1, t. 8, s. 1, §10, art. 160; Id. L. 5, t. 10, s. 3,
art. 373. Vide, generally, 6 East, 3; 7 East, 385; 3 B. & P.
599; Bayley on Bills, 239; 7 Taunt. 159, 397; 15 Pick. R. 92,;
3 Watts. R. 339; 10 Wend. R. 304; 13 Wend. R. 549; 1 Hall's R.
56 6 Wend. R. 369; Id. 443; 1 Leigh's N. P. 435; Co. Litt. 56
b.
REASSURANCE. When an insurer is desirous of lessening his
liability, he may procure some other insurer to insure him from
loss, for the insurance he has made this is called reassurance.
REBATE, mer. law. Discount; the abatement of inferest in
consequence of prompt payment. Merch. Dict. h. t.
REBEL. A citizen or subject who unjustly and unlawfully takes
up arms against the constituted authorities of the nation, to
deprive them of the supreme power, either by resisting their
lawful and constitutional orders, in some particular matter, or
to impose on them conditions. Vattel, Droit des Gens, liv. 3,
§328. In another sense it signifies a refusal to obey a superior,
or the commands of a court. Vide Commission of Rebellion.
REBELLION, crim. law. The taking up arms traitorously against
the govern- ment and in another, and perhaps a more correct
sense, rebellion signifies the forcible opposition and resistance
to the laws and process lawfully issued.
2. If the rebellion amount to treason, it is punished by the
laws of the United States with death. If it be a mere resistance
of process, it is generally punished by fine and imprisonment.
See Dalloz, Dict. h. t.; Code Penal, 209.
REBELLION, COMMISSION OF. A commission of rebellion is the
name of a writ issuing out of chancery to compel the defendant to
appear. Vide Commission of Rebellion.
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REBOUTER. To repel or bar. The action of the heir by the
warranty of his ancestor, is called to rebut or repel. 2 Tho. Co.
Litt. 247, 303.
TO REBUT. To contradict; to do away as, every homicide is
presumed to be murder, unless the contrary appears from evidence
which proves the death; and this presumption it lies on the
defendant to rebut by showing that it was justifiable or
excusable. Allis. Prin. 48.
REBUTTER, pleadings. The name of the defendant's answer to the
plaintiff's surrejoinder. It is governed by the same rules as the
rejoinder. (q. v.) 6 Com. Dig. 185.
REBUTTING EVIDENCE. That which is given by a party in the
cause to explain, repel, counteract or disprove facts given in
evidence on the other side. The term rebutting evidence is more
particularly applied to that evidence given by the plaintiff, to
explain or repel the evidence given by the defendant.
2. It is a general rule that anything may be given as
rebutting evidence which is a direct reply ta that produced on
the other side; 2 M'Cord, 161; and the proof of circumstances
may be offered to rebut the most positive testi-mony. Pet. C. C.
235. See Circumstances.
3. But there are several rules which exclude all rebutting
evidence. A party cannot impeach the validity of a promissory
note which he has made or en-dorsed; 3 John. Cas. 185; nor
impeach his own witness, though he may disprove, by other
witnesses, matters to which he has testified; 3 Litt. 465, nor
can be rebut or contradict what a witness has sworn to, which is
immaterial to the issue. 16 Pick. 153; 2 Bailey, 118.
4. Parties and privies are estopped from contradicting a
written instrument by parol proof, but this rule does not apply
to strangers. 10 John. 229. But the parties may prove that before
breach the agreement was abandoned, or annulled by a subsequent
agreement not in writing. 4 N. Hamp. Rep. 196. And when the
writing was made by another, as, where the log-book stated a
desertion, the party affected by it may prove that the entry was
false or made by mistake. 4 Mason, R. 541.
TO RECALL, international law. To deprive a minister of his
functions; to supersede him.
TO RECALL A JUDGMENT. To reverse a judgment on a matter, of
fact; the judgment is then said to be recalled or revoked, and
when it is reversed for an error of law, it is said simply to be
reversed, quod judicium reversetur.
RECAPTURE, war. By this term is understood the recovery from
the enemy, by a friendly force, of a prize by him captured. It
differs from rescue. (q. v.)
2. It seems incumbent on follow citizens, and it is of course
equally the duty of allies, to rescue each other from the enemy
when there is a reasonable prospect of success. 3 Rob. Rep. 224.
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3. The recaptors are not entitled to the property captured, as
if it were a new prize; the owner is entitled to it by the right
of postliminium. (q. v.) Dall. Dict. mots Prises maritmies, art.
2, §4.
RECAPTION, remedies. The act of a person who has been deprived
of the cus-tody of another to which he is legally entitled, by
which he regains the peaceable custody of such person; or of the
owner of personal or real property who has been deprived of his
possession, by which he retakes possession, peaceably. In each of
these cases the law allows the recaption of the person or of the
property, provided he can do so without occasioning a breach of
the peace, or an injury to a third person who has not been a
party to the wrong. 3 Inst. 134; 2 Rolle, Rep. 55, 6; Id. 208;
2 Rolle, Abr. 565; 3 Bl. Comm. 5; 3 Bouv. Inst. n. 2440, et
seq.
2. Recaption may be made of a person, of personal property, of
real property; each of these will be separately examined.
3. - 1. The right of recaption of a person is confined to a
hushand in re-taking his wife; a parent, his child, of whom he
has the custody; a master, his apprentice and, according to
Blackstone, a master, his servant; but this must be limited to a
servant who assents to the recaption; in these cases, the party
injured may peaceably enter the house of the wrongdoer, without a
demand being first made, the outer door being open, and take and
carry away the person wrongfully detained. He may also enter
peaceably into the house of a person harboring, who was not
concerned in the original abduction. 8 Bing. R. 186; S. C. 21
Engl. C. L. Rep. 265.
4. - 2. The same principles extend to the right of recaption
of personal property. In this sort of recaption, too much care
cannot be observed to avoid any personal injury or breach of the
peace.
5. - 3. In the recaption of real estate the owner may, in the
absence of the occupier, break open the outer door of a house and
take possession; but if, in regaining his possession, the party
be guilty of a forcible entry and breach of the peace, he may be
indicted; but the wrongdoer or person who had no right to the
possession, cannot sustain any action for such forcible regaining
possession merely. 1 Chit. Pr. 646.
RECEIPT, contracts. A receipt is an acknowledgment in writing
that the party giving the same has received from the person
therein named, the money or other thing therein specified.
2. Although expressed to be in full of all demands, it is only
prima facie evidence of what it purports to be and upon
satisfactory proof being made that it was obtained by fraud, or
given either under a mistake of facts or an ignorance of law, it
may be inquired into and corrected in a court of law as well as
in equity. 1 Pet. C. C. R. 182; 3 Serg. & Rawle, 355; S. P. 7
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Serg. & Rawle, 309; 3 Serg. & Rawle, 564, 589; 12 Serg. &
Rawle, 131; 1 Sid. 44; 1 Lev. 43; 1 Saund. 285; 2 Lutw.
1173; Co. Lit. 373; 2 Stark. C. 382; 1 W., C. C. R. 328; 2
Mason's R. 541; 11 Mass. 27; 1 Johns. Cas. 145; 9 John. R.
310; 8 Johns. R. 389; 5 Johns. R. 68; 4 Har. & McH. 219; 3
Har. & McH. 433; 2 Johns. R. 378; 2 Johns. R., 319. A receipt
in full, given with a full knowledge of all the circumstances and
in the absence of fraud, seems to be conclusive. 1 Esp. C. 172;
Benson v. Bennet, 1 Camp. 394, n.
3. A receipt sometimes contains an acknowledgment of having
received a thing, and also an agreement to do another. It is only
prima facie evidence as far as the receipt goes, but it cannot be
contradicted by parol evidence in any part by which the party
engages to perform a contract. A bill of lading, for example,
partakes of both these characters; it may be contradicted or
explained as to the facts stated in the recital, as that the
goods were in good order and well conditioned; but, in other
respects, it cannot be contradicted in any other manner than a
common written contract. 7 Mass. R. 297; 1 Bailey, R. 174; 4
Ohio, R. 334; 3 Hawks, R. 580; 1 Phil. & Am. on Ev. 388;
Greenl. Ev. §305. Vide, generally, 1 B . & C. 704 S. C. 8 E. C.
L. R. 193; 2 Taunt. R. 141; 2 T. R. 366; 5 B. & A. 607; 7 E.
C. L. R. 206; 3 B. & C. 421; 1 East, R. 460.
4. If a man by his receipt acknowledges that he has received
money from an agent on account of his principal, and thereby
accredits the agent with the principal to that amount, such
receipt is, it seems, conclusive as to the payment by the agent.
For example, the usual acknowledgment in a policy of insurance of
the receipt of premium from the assured, is conclusive of the
fact as between the underwriter and the assured; Dalzell v.
Mair, 1 Camp. 532; although such receipt would not be so between
the underwriter and the broker. And if an agent empowered to
contract for sale, sell and convey land, enter into articles of
agreement by which it is stipulated that the vendee shall clear,
make improvements, pay the purchase money by installments, &c.,
and on the completion of the covenants to be performed by him,
receive from the vendor or his legal representatives, a good and
sufficient warranty deed in fee for the premises, the receipt of
the agent for Such parts of the purchase-money as may be paid
before the execution of the deed, is binding on the principal. 6
Serg. & Rawle, 146. See 11 Johns. R. 70.
5. A receipt on the back of a bill of exchange is prima facie
evidence of payment by the acceptor. Peake's C. 25. The giving of
a receipt does not exclude parol evidence of payment. 4 Esp. N.
P. C. 214.
6. In Pennsylvania it has been holden that a receipt, not
under seal, to one of several joint debtors, for his proportion
of the debt, discharges the rest. 1 Rawle, 391. But in New York a
contrary rule has been adopted. 7 John. 207. See Coxe, 81; 1
Root, 72. See Evidence.
RECEIPTOR. In Massachusetts this name is given to the person
who, on a trustee process being issued and goods attached,
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becomes surety to the sheriff to have them forthcoming on demand,
or in time to respond the judgment, when the execution shall be
issued. Upon which the goods are bailed to him. Story, Bailm.
§124, and see Attachment; Remedies.
RECEPTUS, civil law. The name sometimes given to an
arbitrator, because he had been received or chosen to settle the
differences between the parties. Dig. 4, 8 Code, 2, 56.
TO RECEIVE. Voluntarily to take from another what is offered.
2. A landlord, for example, could not be said to receive the
key from his tenant, when the latter left it at his house without
his knowledge, unless by his acts afterwards, he should be
presumed to have given his consent.
RECEIVER, chancery practice. A person appointed by a court
possessing chan- cery jurisdiction to receive the rents and
profits of land, or the profits or produce of other property in
dispute.
2. The power of appointing a receiver is a discretionary power
exercised by the court. the appointment is provisional, for the
more speedy getting in of the estate in dispute, and scouring it
for the benefit of such person as may be entitled to it, and does
not affect the right. 3 Atk. 564.
3. It is not within the compass of this work to state in what
cases a receiver will be appointed; on this subject, see 2 Madd.
Ch. 233.
4. The receiver is an officer of the court, and as such,
responsible for good faith and reasonable diligence. When the
property is lost or injured by any negligence or dishonest
execution of the trust, he is liable in damages; but he is not,
as of course, responsible because there has been an embezzlement
or theft. He is bound to such ordinary diligence, as belongs to a
prudent and honest discharge of his duties, and such as is
required of all persons who receive compensation for their
services. Story, Bailm. §620, 621; and the cases there cited.
Vide, generally, 2 Mudd. Ch. 232; Newl. Ch. Pr. 88; 8 Com. Dig.
890; 18 Vin. Ab. 160; 1 Supp. to Ves. jr. 455; 2 Id. 57, 58,
74, 75, 442, 455; Bouv. Inst. Index, h. t.
RECEIVER OF STOLEN GOODS, crim. law. By statutory provision
the receiver of stolen goods knowing them to have been stolen may
be punished as the principal in perhaps all the United States.
2. To make this offence complete, the goods received must have
been stolen, and the receiver must know that fact.
3. It is almost always difficult to prove guilty knowledge;
and that must in general be collected from circumstances. If such
circumstances are proved which to a person of common
understanding and prudence and situated as the prisoner was, must
have satisfied him that they were stolen, this is sufficient. For
example, the receipt of watches, jewelry, large quantities of
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money, bundles of clothes of various kinds, or personal property
of any sort, to a considerable value, from boys or persons
destitute of property, and with-out any lawful means of acquiring
them and specially if bought at untimely hours, the mind can
arrive at no other conclusion than that they were stolen. This is
further confirmed if they have been bought at an undervalue,
concealed, the marks defaced, and falsehood resorted to in
accounting for the possession of them. Alison's Cr. Law, 330; 2
Russ. Cr. 253; 2 Chit. Cr. Law , 951; Roscoe, Cr. Ev. h. t.; 1
Wheel. C. C. 202.
4. At common law receiving, stolen goods, knowing them to have
been stolen, is a misdemeanor. 2 Russ. Cr. 253.
RECESSION. A re-grant: the act of returning the title of a
country to a government which formerly held it, by one which has
it at the time; as the recession of Louisiana, which took place
by the treaty between France and Spain, of October 1, 1800. See 2
White's Coll. 516.
RECIDIVE, French law. The state of an individual who commits a
crime or misdemeanor, after having once been condemned for a
crime or misdemeanor; a relapse.
2. Many states provide, that for a second offence, the
punishment shall be increased in those cases the indictment
should set forth the crime or mis-dmeanor as a second offence.
3. The second offence must have been committed after tho
conviction for the first; a defendant could not be convicted of
a second offence, as such, until after he had suffered a
punishment for the first. Dall. Diet. h. t.
RECIPROCAL CONTRACT, civil law. One in which the parties enter
into mutual engagements.
2. They are divided into perfect and imperfect. When they are
perfectly reciprocal, the obligation of each of the parties is
equally a principal part of the contract, such as sale,
partnership, &c. Contracts imperfectly reciprocal are those in
which the obligation of one of the parties only is a principal
obligation of the contract; as, mandate, deposit, loan for use,
and the like. In all reciprocal contracts the consent of the
parties must be ex- pressed. Poth. Obl. n. 9; Civil Code of
Louis. art. 1758, 1759.
RECIPROCITY. Mutuality; state, quality or character of that
which is reci- procal.
2. The states of the Union are bound to many acts of
reciprocity. The constitution requires that they shall deliver to
each other fugitives from justice; that the records of one
state, properly authenticated, shall have full credit in the
other states; that the citizens of one state shall be citizens
of any state into which they may remove. In some of the states,
as in Pennsylvania, the rule with regard to the effect of a
discharge under the insolvent laws of another state, are
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reciprocated; the discharges of those courts which respect the
discharges of the courts of Pennsylvania, are respected in that
state.
RECITAL, contracts, pleading. The repetition of some former
writing, or the statement of something which has been done.
Touchst. 76.
2. Recitals are used to explain those matters of fact which
are necessary to make the transaction intelligible. 2 Bl. Com.
298. It is said that when a deed of defeasance recites the deed
which it is meant to defeat, it must recite it truly. Cruise,
Dig. tit. 32, c 7, s. 28. In other cases it need not be so
particular. 3 Penna. Rep. 324; 3 Chan. Cas. 101; Co. Litt. 352
b; Com. Dig. Fait, E 1.
3. A party who executes a deed reciting a particular fact is
estopped from denying such fact; as, when it was recited in the
condition of a bond that the obligor had received divers sums of
money for the obligee which he had not brought to account, and
acknowledged that a balance was due to the obligee, it was holden
that the obligor was estopped to say that he had not received any
money for the use of the obligee. Willes, 9, 25; Rolle's Ab.
872, 3.
4. In pleading, when public statutes are recited, a small
variance will not be fatal, where by the recital the party is not
"tied up to the statute;" that is, if the conclusion be contra
formam statuti praediti. Sav. 42; 1 Chit. Crim. Law, 276 Esp. on
Penal Stat. 106. Private statutes must be recited in pleading,
and proved by an exemplified copy, unless the opposite party, by
his pleading admit them.
5. By the plea of nul tiel record, the party relying on a
private statute is put to prove it as recited, and a variance
will be fatal. See 4 Co. 76; March, Rep. 117, pl. 193; 3 Harr.
& McHen. 388. Vide. generally, 12 Vin. Ab. 129; 13 Vin. Ab. 417;
18 Vin. Ab. 162; 8 Com. Dig. 584; Com. Dig. Testemoigne-Evid. B
5; 4 Binn. R. 231; 1 Dall. R. 67; 3 Binn. R. 175; 3 Yeates,
R. 287; 4 Yeates, R. 362, 577; 9 Cowen, R. 86; 4 Mason, R.
268; Yelv. R. 127 a, note 1; Cruise, Dig. tit. 32, c. 20, s.
23; 5 Johns. Ch. Rep. 23; 7 Halst. R. 22; 2 Bailey's R. 101;
6 Harr. & Johns. 336; 9 Cowen's R. 271; 1 Dana's R. 327; 15
Pick. R. 68; 5 N. H. Rep. 467; 12 Pick. R, 157; Toullier in
his Droit Civil Francais, liv. 3, t. 3, c. 6, n. 157 et seq. has
examined this subject with his usual ability. 2 Hill. Ab. c. 29,
s. 30; 2 Bail. R. 430; 2 B. & A. 625; 2 Y. & J. 407; 5 Harr.
& John. 164; Cov. on Conv. Ev. 298, 315; Hurl. on Bonds, 33; 6
Watts & Serg. 469.
6. Formerly, in equity, the decree contained recitals of the
pleadings in the cause, which became a great grievance. Some of
the English chancellors endeavored to restrain this prolixity. By
the rules of practice for the courts in equity of the United
States it is provided, that in drawing up decrees and orders,
neither the bill, nor the answer, nor other pleading nor any part
thereof, nor the report of any master, nor any other prior
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proceedings, shall be stated or recited in the decree or order.
Rule 86; 4 Bouv. Inst. n. 4443.
RECLAIM. To demand again, to insist upon a right; as, when a
defendant for a consideration received from the plaintiff, has
covenanted to do an act, and fails to do it, the plaintiff may
bring covenant for the breach, or assumpsit to reclaim the
consideration. 1 Caines, 47.
RECOGNITION, contracts. An acknowledgment that something which
has been done by one man in the name of another, was done by
authority of the latter.
2. A recognition by the principal of the agency of another in
the particular instance, or in similar instances, is evidence of
the authority of the agent, so that the recognition may be either
express or implied. As an instance of an implied recognition may
be mentioned the case of one who subscribes policies in the name
of another and, upon a loss happening, the latter pays the
amount. 1 Camp. R. 43, n. a; 1 Esp. Cas. 61; 4 Camp. R. 88.
RECOGNITORS, Eng. law. The name by which the jurors impanneled
on an assize are known. Barnet v. Ihrie, 17 S. & R. 174.
RECOGNIZANCE, contracts. An obligation of record entered into
before a court or officer duly authorized for that purpose, with
a condition to do some act required by law, which is therein
specified. 2 Bl. Com. 341; Bro. Ab. h. t.; Dick. Just. h. t.;
1 Chit. Cr. Law, 90.
2. Recognizances relate either to criminal or civil matters.
1. Recognizances in criminal cases, are either that the party
shall appear before the proper court to answer to such charges as
are or shall be made against him, that he shall keep the peace or
be of good behaviour. Witnesses are also required to be bound in
a recognizance to testify.
3. - 2. In civil cases, recognizances are entered into by
bail, conditioned that they will pay the debt, interest and costs
recovered by the plaintiff under certain contingencies. There are
also cases where recognizances are entered into under the
authority and requirements of statutes.
4. As to the form. The party need not sign it; the court,
judge or magis-trate having authority to take the same, makes a
short memorandum on the record, which is sufficient. 2 Binn. R.
481; 1 Chit. Cr. Law, 90; 2 Wash. C. C. R. 422; 9 Mass. 520;
1 Dana, 523; 1 Tyler, 291; 4 Verm. 488; 1 Stew. & Port. 465;
7 Vern. 529; 2 A. R. Marsh. 131; 5 S. & R. 147; Vide
generally, Com. Dig. Forcible Entry, D 27; Id. Obligation, K;
Whart. Dig. h. t. Vin. Ab. h. t.; Rolle's Ab. h. t.; 2 Wash. C.
C. Rep. 422; Id. 29; 2 Yeates, R. 437; 1 Binn. R. 98 , note 1
Serg. & Rawle, 328 3 Yeates, R. 93; Burn. Just. h. t. Vin. Ab.
h. t.; 2 Sell. Pract. 45.
RECOGNIZEE. He for whose use a recognizance has been taken.
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RECOGNISOR, contracts. He who enters into a recognizance.
RECOLEMENT, French law. The reading and reexamination by a
witness of a de-position, and his persistance in the saine, or
his making such alteration, as his better recollection may enable
him to do, after having read his deposition. Without such
reexamination the deposition is void. Poth. Proced. Cr. s. 4,
art. 4.
RECOMMENDATION. The giving to a person a favorable character
of another.
2. When the party giving the character has acted in good
faith, he is not responsible for the injury which a third person,
to whom such recommendation was given, may have, sustained in
consequence of it, although he was mistaken.
3. But when the recommendation is knowingly untrue, and an
injury is sus-tained, the party recommending is civilly
responsible for damages; 3 T. R. 51; 7 Cranch, 69; 14 Wend.
126; 7 Wend. 1; 6 Penn. St. R. 310 whether it was done merely
for the purpose of benefitting the party recommended, or the
party who gives the recommendation.
4. And in case the party recomended was a debtor to the one
recommending, and it was agreed prior to the transaction, that
the former should, out of the property to be obtained by the
recommendation, be paid; or in case of any other species of
collusion, to cheat the person to whom the credit is given, they
may both be criminally prosecuted for the conspiracy. Vide
Character, and Fell on Guar. ch. 8; 6 Johns. R. 181; 1 Davis
Ca. Er. 22; 13 Johns. R. 224; 5 N. S. 443.
RECOMPENSATION, Scolch law. When a party sues for a debt, and
the defendant pleads compensation, or set-off, the plaintiff may
allege a compensation on his part, and this is called a
recompensation. Bell's Dict. h. t.
RECOMPENSE. A reward for services; remuneration for goods or
other property.
2. In maritime law there is a distinction between recompense
and restitution. (q. v.) When goods have been lost by jettison,
if at any subsequent period of the voyage the remainder of the
cargo be lost, the owner of the goods lost by jettison cannot
claim restitution from the owners of the other goods; but in the
case of expenses incurred with a view to the general benefit, it
is clear that they ought to be made good to the party, whether he
be an agent employed by the master in a foreign port or the ship
owner himself.
RECOMPENSE OP RECOVERY IN VALUE. This phrase, is applied to
the matter reco- vered in a common recovery, after the vouchee
has disappeared, and judgment is given for the demandant. 2 Bouv.
Inst. n. 2093.
RECONCILIATION, contracts. The act of bringing persons to
agree together, who before, had had some difference.
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2. A renewal of cohabitation between hushand and wife is proof
of reconcil-iation, and such reconciliation destroys the effect
of a deed of separation. 4 Eccl. R. 238.
RECONDUCTION, civ. law. A renewing of a former lease;
relocation. (q. v.) Dig. 19, 2, 13, 11; Code Nap. art.
1737-1740.
RECONVENTION, civ. law. An action brought by a party who is
defendant against the plaintiff before the same judge.
Reconventio est petitio qua reus vicissim, quid ab actore petit,
ex eadem, vel diversa causa. Voet, in tit. de Judiciis, n. 78; 4
N. S. 439. To entitle the defendant to institute a demand in
reconvention, it is requisite that such demand, though different
from the main action, be nevertheless necessarily connected with
it and incidental to the same. Code of Pr. Lo. art. 375; 11 Lo.
R. 309; 7 N. S. 282; 8 N. S. 516.
2. The reconvention of the civil law was a species of
cross-bill. Story, Eq. Pl. §402. See Conventio; Bill in
chancery. Vide Demand in reconvention.
RECORD, evidence. A written memorial made by a public officer
authorized by law to perform that function, and intended to serve
as evidence of something written, said, or done. 6 Call, 78; 1
Dana, 595.
2. Records may be divided into those which relate to the
proceedings of congress and the state legislatures - the courts
of common law - the courts of chancery - and those which are made
so by statutory provisions.
3. - 1. Legislative acts. The acts of congress and of the
several legislatures are the highest kind of records. The printed
journals of congress have been so considered. 1 Whart. Dig. tit.
Evidence, pl. 112 and see Dougl. 593; Cowp. 17.
4. - 2. The proceedings of the courts of common law are
records. But every minute made by a clerk of a court for his own
future guidance in making up his record, is not a record. 4 Wash.
C. C. Rep. 698.
5. - 3. Proceedings in courts of chancery are said not to be,
strictly speaking, records; but they are so considered. Gresley
on Ev. 101.
6. - 4. The legislatures of the several states have made the
enrollment of certain deeds and other documents necessary in
order to perpetuate the memory of the facts they contain, and
declared that the copies thus made should have the effect of
records.
7. By the constitution of the United States, art. 4. s. 1, it
is declared that "full faith and credit shll be given, in each
state, to the public acts, records and judicial proceedings of
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every other state; and the congress may, by general laws,
prescribe the manner in which such acts, records and proceedings
shall be proved, and the effect thereof." In pursuance of this
power, congress have passed several acts directing the manner of
authenticating public records, which will be found under the
article Authentication.
8. Numerous decisions have been made under these acts, some of
which are here referred to. 7 Cranch, 471; 3 Wheat. 234; 4
Cowen, 292; 1 N. H. Rep. 242; 1 Ohio Reports, 264; 2 Verm. R.
263; 5 John. R. 37; 4 Conn. R. 380; 9 Mass 462; 10 Serg. &
Rawle, 240; 1 Hall's N. York Rep. 155; 4 Dall. 412; 5 Serg. &
Rawle, 523; 1 Pet. S. C. Rep. 352. Vide, generally, 18 Vin. Ab.
17; 1 Phil. Ev. 288; Bac. Ab. Amendment, &c., H; 1 Kent, Com.
260; Archb. Civ. Pl. 395; Gresley on Ev. 99; Stark. Ev. Index,
h. t.; Dane's Ab. Index, h. t.; Co. Litt. 260; 10 Pick. R. 72;
Bouv. Inst. Index, h. t.
TO RECORD, the act of making a record. 2. Sometimes questions
arise as to when the act of recording is complete, as in the
following case. A deed of real estate was acknowledged before the
register of deeds and handed to him to be recorded, and at the
same instant a creditor of the grantor attached the real estate;
in this case it was held the act of recording was incomplete
without a certificate of the acknowledgment, and wanting that,
the attaching creditor had the preference. 10 Pick. Rep. 72.
3. The fact of an instrument being recorded is held to operate
as a constructive notice upon all subsequent purchasers of any
estate, legal or equitable, in the same property. 1 John. Ch. R.
394.
4. But all conveyances and deeds which may be de facto
recorded, are not to be considered as giving notice; in order to
have this effect the instruments must be such as are authorized
to be recorded, and the registry must have been made in
compliance with the law, otherwise the registry is to be treated
as a mere nullity, and it will not affect a subsequent purchaser
or encumbrancer unless he has such actual notice as would amount
to a fraud. 2 Sell. & Lef. 68; 1 Sch. & Lef. 157; 4 Wheat. R.
466; 1 Binn. R. 40; 1 John. Ch. R. 300; 1 Story, Eq. Jur.
§403, 404; 5 Greenl. 272.
RECORD OF NISI PRIUS, Eng. law. A transcript from the issue
roll; it contains a copy of the pleadings and issue. Steph. Pl.
105.
RECORDARI FACIAS LOQUELAM, English practice. A writ commanding
the sheriff, that he cause the plaint to be recorded which is in
his county, without writ, between the parties there named, of the
cattle, goods, and chattels of the complainant taken and unjustly
distrained as it is said, and that he have the said record before
the court on a day therein named, and that he prefix the same day
to the parties, that then they may be there ready to proceed in
the same plaint, 2 Sell. Pr. 166. See Refalo.
RECORDATUR. An order or allowance that the verdict returned on
the nisi prius roll, be recorded. Bac. Ab. Arbitr. &c., D.
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RECORDER. 1. A judicial officer of some cities, possessing
generally the powers and authority of a judge. 3 Yeates' R. 300;
4 Dall. Rep. 299; but see 1 Rep. Const. Ct. 45. Anciently,
recorder signified to recite or testify on re-collection as
occasion might require what had previously passed in court, and
this was the duty of the judges, thence called recordeurs. Steph.
Plead. note 11. 2. An officer appointed to make record or
onrolment of deeds and other legal instruments, authorized by law
to be recorded.
TO RECOUPE. This word is derived from the French recouper, to
cut again. In law it signifies the right and the act of making a
set-off, defalcation, or discount, by the defendant, to the claim
of the plaintiff. 21 Wend. It. 342. In another sense it signifies
to recompense. 19 Ves. 123.
RECOVERER. The demandant in a common recovery, after judgment
has been given in his favor, assumes the name of recoverer.
RECOVERY. A recovery, in its most extensive sense, is the
restoration of a former right, by the solemn judgment of a Court
of justice. 3 Murph. 169.
2. A recovery is either true or actual, or it is feigned or
common. A true recovery, usually known by the name of recovery
simply, is the procuring a former right by the judgment of a
court of competent jurisdiction; as, for example, when judgment
is given in favor of the plaintiff when he seeks to recover a
thing or a right.
3. A common recovery is a judgment obtained in a fictitious
suit, brought against the tenant of the freehold, in consequence
of a default made by the person who is last vouched to warranty
in such suit. Bac. Tracts, 148.
4. Common recoveries are considered as mere forms of
conveyance or common assurances; although a common recovery is a
fictitious suit, yet the same mode of proceeding must be pursued,
and all the forms strictly adhered to, which are necessary to be
observed in an adversary suit. The first thing therefore
necessary to be done in suffering a common recovery is, that the
person who is to be the demandant, and to whom the lands are to
be adjudged, would sue out a writ or praecipe against the tenant
of the freehold; whence such tenant is usually called the tenant
to the praecipe. In obedience to this writ the tenant appears in
court either in person or by his attorney; but, instead of
defending the title to the land himself, he calls on some other
person, who upon the original purchase is supposed to have
warranted the title, and prays that the person may be called in
to defend the title which he warranted, or otherwise to give the
tenant lands of equal value to those he shall lose by the defect
of his warranty. This is called the voucher vocatia, or calling
to warranty. The person thus called to warrant, who is usually
called the vouchee, appears in court, is impleaded, and enters
into the warranty by which means he takes upon himself the
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defence of the land. The defendant desires leave of the court to
imparl, or confer with the vouchee in private, which is granted
of course. Soon after the demand and returns into court, but the
vouchee disappears or makes default, in consequence of which it
is presumed by the court, that he has no title to the lands
demanded in the writ, and therefore cannot defend them;
whereupon judgment is given for the demandant, now called the
recoverer, to recover the lands in question against the tenant,
and for the tenant to recover against the vouchee, lands of equal
value in recom-pense for those so warranted by him, and now lost
by his default. This is called the recompense of recovery in
value; but as it is, customary for the crier of the court to
act, who is hence called the common vouchee, the tenant can only
have a nominal, and not a real recompense, for the land thus
recovered against him by the demandant. A writ of habere facias
is then sued out, directed to the sheriff of the county in which
the lands thus recovered are situated; and, on the execution and
return of the writ, the recovery is completed. The recovery here
described is with single voucher; but a recovery may, and is
frequently suffered with double, treble, or further voucher, as
the exigency of the case may require, in which case there are
several judgments against the several vouchees.
5. Common recoveries were invented by the ecclesiastics in
order to evade the statute of mortmain by which they were
prohibited from purchasing or re-ceiving under the pretence of a
free gift, any land or tenements whatever. They have been used in
some states for the purpose of breaking the entail of estates.
Vide, generally, Cruise, Digest, tit. 36; 2 Saund. 42, n. 7; 4
Kent, Com. 487; Pigot on Common Recoveries, passim.
6. All the learning in relation to common recoveries is nearly
obsolete, as they are out of use. Rey, a French writer, in his
work, Des Institutions Judicaire del'Angleterre, tom. ii. p. 221,
points out what appears to him the absurdity of a common
recovery. As to common recoveries, see 9 S. & R . 330; 3 S. & R.
435; 1 Yeates, 244; 4 Yeates, 413; 1 Whart. 139, 151; 2
Rawle, 168; 2 Halst. 47; 5 Mass. 438; 6 Mass. 328; 8 Mass.
34; 3 Harr. & John. 292; 6 P. S. R. 45,
RECREANT. A Coward; a poltroon. 3 Bl. Com. 340.
RECRIMINATION, crim. law. An accusation made by a person
accused against his accuser, either of having committed the same
offence, or another.
2. In general recrimination does not excuse the person
accused, nor diminish his punishment, because the guilt of
another can never excuse him. But in applications for divorce on
the ground of adultery, if the party defendant, can prove that
the plaintiff or complainant has been guilty of the same offence,
the divorce will not be granted. 1 Hagg. C. Rep. 144; S. C. 4
Eccl. Rep. 360. The laws of Pennsylvania contain a provision to
the same effect. Vide 1 Hagg. Eccl. R. 790; 3 Hagg. Eccl. R. 77;
1 Hagg. Cons. R . 147; 2 Hagg. Cons. R. 297; Shelf. on Mar. and
Div. 440; Dig. 24, 3, 39; Dig. 48, 5, 13, 5; 1 Addams, R. 411;
Compensation; Condonation; Divorce,
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RECRUIT. A newly made soldier.
RECTO. Right. (q.v.) Brevederecto, writ of right. (q. v.)
RECTOR, Eccl. law. One who rules or governs a name given to
certain officers of the Roman church. Dict. Canonique, h. v.
RECTORY, Engl. law. Corporeal real property, consisting of a
church, glebe lands and tithes. 1 Chit. Pr. 163.
RECTUS IN CURIA. Right in court. One who stands at the bar,
and no one objects any offence, or prefers any charge against
him.
2. When a person outlawed has reversed his outlawry, so that
he can have the benefit of the law, he is said to be rectus in
curia. Jacob, L. D. h. t.
RECUPERATORES, Roman civil law. A species of judges originally
established, it is supposed, to decide controversies between
Roman citizens and strangers, concerning the right to the
possession of property requiring speedy remedy; but gradually
extended to questions which might be brought before ordinary
judges. After this enlargement of their powers, the difference
between them and judges, it is supposed, was simply this: If the
praetor named three judges he called them recuperatores; if one,
he called him judex. But opinions on this subject are very
various. (Colman De Romano judicio recuperatorio,) Cicero's
oration pro Coecin, 1, 3, was addressed to Recuperators.
RECUSANTS, or POPISH RECUSANTS, Engl. law. Persons who refuse
to make the declarations against popery, and such as promote,
encourage, or profess the popish religion.
2. These are by law liable to restraints, forfeitures and
inconveniences, which are imposed upon them by various acts of
parliament. Happily in this country no religious sect has the
ascendency, and all persons are free to profess what religion
they conscientiously believe to be the right one.
RECUSATION, civ. law. A plea or exception by which the
defendant requires that the judge having jurisdiction of the
cause, should abstain from deciding upon the ground of interest,
or for a legal objection to his prejudice.
2. A recusation is not a plea to the jurisdiction of the
court, but simply to the person of the judge. It may, however,
extend to all the judges, as when the party has a suit against
the whole court. Poth. Proced. Civ. 1ere part., ch. 2, s. 5. It
is a personal challenge of the judge for cause.
3. It is a maxim of every good system of law, that a man shall
not be judge in his own cause. 2 L. R. 390; 6 L. R. 134 Ayl.
Parerg. 451; Dict. de Jur. h. t.; Merl. Repert. h. t.; vide
Jacob's Intr. to the Com. Civ. and Can. L. 11; 8 Co. 118 Dyer,
65. Dall. Diet. h. t.
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4. By recusation is also understood the challenge of jurors.
Code of Practice of Louis. art. 499, 500. Recusation is also an
act, of what nature soever it may be, by which a strange heir, by
deeds or words, declares he will not be heir. Dig. 29, 2, 95.
See, generally, 1 Hopk. Ch. R. 1; 5 Mart. Lo. R. 292; and
Challenge.
REDDENDO SINGULA SINGULIS, construction. By rendering each his
own; for example, when two descriptions of property are given
together in one mass, both the next of kin and the heir cannot
take, unless in cases where a construction can be made reddendo
singula singulis, that the next of kin shall take the personal
estate aud the heir at law the real estate. 14 Ves. 490. Vide 11
East,, 513, n.; Bac. Ab. Conditions, L.
REDDENDUM, contracts. A word used substantively, and is that
clause in a deed by which the grantor reserves something new to
himself out of that which he granted before, and thus usually
follows the tenendum, and is generally in these words "yielding
and paying."
2. In every good reddendum or reservation, these things must
concur; namely, 1. It must be apt words. 2, It must be of some
other thing issuing or coming out of the thing granted, and not a
part of the thing itself, nor of something issuing out of another
thing. 3. It must be of such thing on which the grantor may
resort to distrain 4. It must be made to one of the grantors and
not to a stranger to the deed. Vid 2 Bl. Com. 299; Co. Litt. 47;
Touchs 80; Cruise, Dig. tit. 32, c. 24, s. 1; Dane' Ab. Index,
h. t.
REDEMPTION, contracts. The act of taking back by the seller
from the buyer a thing which had been sold subject to th right of
repurchase.
2. The right of redemption then is an agreement by which the
seller reserves to himself the power of taking back the thing
sold by returning the price paid for it. As to the fund out of
which a mortgaged estate is to be redeemed, see Payment. Vide
Equity of redemption.
REDEMPTIONES. Heavy fines, contradistinguished from
misericordia. (q. v.)
REDHIBITION, civil law, and in Louisiana. The avoidance of a
sale on account of some vice or defect in the thing sold, which
renders it absolutely useless, or its use so inconvenient and
imperfect, that it must be supposed that the buyer would not have
purchased it, had he known of the vice. Civ. Code of Lo. 2496.
Redhibition is also the name of an action which the purchaser of
a defective movable thing may bring to cause the sale to be
annulled, and to recover the price he has paid for it. Vide Dig.
21, 1.
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2. The rule of caveat emptor, (q. v.) in the common law,
places a purchaser in a different position from his situation
under the like circumstances under the civil law; unless there
is an express warranty, he can seldom annul a sale or recover
damages on account of a defect in the thing sold. Chitty, Contr.
133, et seq.; Sugd. Vend. 222 2 Kent, Com. 374; Co. Litt. 102,
a; 2 B1. Com. 452; Bac. Ab. Action on the case, E; 2 Com.
Cont. 263.
REDIDIT SE, Eng. practice. He surrendered himself. This is
endorsed on the bail piece when a certificate has been made by
the proper officer that the defendant is in custody. Pr. Reg. 64;
Com. Dig. Bail Q 4.
REDITUS ALBI. A rent payable in money; sometimes called white
rent or, blanche farm. Vide Alba firma.
REDITUS NIGRI. A rent payable in grain, work, and the like;
It was also called black mail. This name was given to it to
distinguish it from reditus albi, which was payable in money.
Vide Alba firma.
RE-DRAFT, comm. law. A bill of exchange drawn at the place
where another bill was made payable, and where it was protested,
upon the place where the first bill was drawn, or when there is
no regular commercial intercourse rendering that practicable,
then in the next best or most direct practicable course. 1 Bell's
Com. 406, 5th ed. Vide Reexchange.
REDRESS. The act of receiving satisfaction for an injury
sustained. For the mode of obtaining redress, vide Remedies 1
Chit. Pr. Annal. Table.
REDUBBERS, crim law. Those who bought stolen cloth, and dyed
it of another color to prevent its being identified, were
anciently so called. 3 Inst. 134.
REDUNDANCY. Matter introduced in an answer, or pleading, which
is foreign to the bill or articles.
2. In the case of Dysart v. Dysart, 3 Curt. Ecc. R. 543, in
giving the judgment of the court, Dr. Lushigton says: "It may
not, perhaps, be easy to define the meaning of this term
[redundant] in a short sentence, but the true meaning I take to
be this: the respondent is not to insert in his answer any
matter foreign to the articles he is called upon to answer,
although such matter may be admissible in a plea; but he may, in
his answer, plead matter by way of explanation pertinent to the
articles, even if such matter shall be solely in his own
knowledge and to such extent incapable of proof; or he may state
matter which can be substantiated by witnesses; but in this
latter instance, if such matter be introduced into the answer and
not afterwards put in the plea or proved, the court will give no
weight or credence to such part of the answer."
3. A material distinction is to be observed between redundancy
in the alle- gation and redundancy in the proof. In the former
case, a variance between the allegation and the proof will be
fatal if the redundant allegations are descriptive of that which
is essential. But in the latter case, redundancy cannot vitiate,
because more is proved than is alleged, unless the matter
superfluously proved goes to contradict some essential part of
the allegation. 1 Greenl. Ev. §67; 1 Stark. Ev. 401.
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RE-ENTRY, estates. The resuming or retaking possession of land
which the-party lately had.
2. Ground rent deeds and leases frequently contain a clause
authorizing the landlord to reenter on the non-payment of rent,
or the breach of some cove-nant, when the estate is forfeited.
Story, Eq. Jur. §1315; 1 Fonb. Eq. B. 1, c. 6, §4, note h.
Forfeitures for the non-payment of rent being the most common,
will here alone be considered. When such a forfeiture has taken
place, the lessor or his assigns have a right to repossess
themselves of the demised premises.
3. Great niceties must be observed in making such reentry.
Unless they have been dispensed with by the agreement of the
parties, several things are required by law to be previously done
by the landlord or reversioner to entitle him to reenter. 3 Call,
424; 8 Watts, 51; 9 Watts, 258; 18 John. 450; 4 N. H. Rep.
254; 13 Wend. 524; 6 Halst. 270; 2 N. H. Rep. 164; 1 Saund.
287, n. 16.
4. - 1. There must be a demand of rent. Com. Dig. Rent, D 3 a
18 Vin. Ab. 482; Bac. Ab. Rent, H.
5. - 2. The demand must be of the precise rent due, for the
demand of a penny more or less will avoid the entry. Com. Dig.
Rent, D 5. If a part of the rent be paid, a reentry may be made
for the part unpaid. Bac. Ab. Conditions, O 4; Co. Litt. 203;
Cro. Jac. 511.
6. - 3. It must be made precisely on the day when the rent is
due and payable by the lease, to save the forfeiture. 7 T. R.
117. As where the lease contains a proviso that if the rent shall
be behind and unpaid, for the space of thirty, or any other
number of days, it must be made on the thirtieth or last day.
Com. Dig. Rent, D 7; Bac. Abr. Rent, I.
7. - 4. It must be made a convenient time before sunset, that
the money may be counted and a receipt given, while there is
light enough reasonably to do so therefore proof of a demand in
the afternoon of the last day, without showing in what part of
the afternoon it was made, and that it was towards sunset or late
in the afternoon, is not sufficient. Jackson v. Harrison, 17
Johns. 66; Com. Dig. Rent, D 7; Bac. Abr. Rent, I.
8. - 5. It must be made upon the land, and at the most
notorious place of it. 6 Bac. Abr. 31; 2 Roll. Abr. 428; see 16
Johns. 222. Therefore, if there be a dwelling-house upon the
laud, the demand must be made at the front door, though it is not
necessary to enter the house, notwithstanding the door be open;
if woodland be the subject of the lease, a demand ought to be
made at the gate, or some highway leading through the woods as
the most notorious. Co. Litt. 202; Com. Dig. Rent, D. 6.
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9. - 6. Unless a place is appointed where the rent is payable,
in which case a demand must be made at such place; Com. Dig.
Rent, D. 6; for the presumption is the tenant was there to pay
it. Bac. Abr. Rent, I.
10. - 7. A demand of the rent must be made in fact, although
there should be no person on the land ready to pay it. Bac. Ab.
Rent, I.
11. - 8. If after these requisites have been performed by the
lessor or reversioner, the tenant neglects or refuses to pay the
rent, and no sufficient distress can be found on the premises,
then the lessor or reversioner is to reenter. 6 Serg. & Rawle,
151; 8 Watts, R. 51; 1 Saund. 287, n. 16. He should then openly
declare before the witnesses he may have provided for the
purpose, that for the want of a sufficient distress, and because
of the non-payment of the rent demanded, mentioning the amount,
he reenters and re-possesses himself of the premises.
12. A tender of the rent by the tenant to the lessor, made on
the last day, either on or off the premises, will save the
forfeiture.
13. It follows as a necessary inference from what has been
premised, that a demand made before or after the last day which
the lessee has to pay the rent, in order to prevent the
forfeiture, or off the land, will not be sufficient to defeat the
estate. 7 T. R. 11 7.
14. The forfeiture may be waived by the lessor, in the case of
a lease for years, by his acceptance of rent, accruing since the
forfeiture, provided he knew of the cause. 3 Rep. 64.
15. A reentry cannot be made for nonpayment of rent if there
is any distrainable property on the premises, which may be taken
in satisfaction of the rent, and every part of the premises must
be searched. 2 Phil. Ev. 180.
16. The entry may be made by the lessor or reversioner
himself, or by attorney; Cro. Eliz. 601; 7 T. R. 117; the
entry of one joint tenant or tenant in common, enures to the
benefit of the whole. Hob 120.
17. After the entry has been made, evidence of it ought to be
perpetuated.
18. Courts of chancery will generally make the lessor account
to the lessee for the profits of the estate, during the time of
his being in possession; and will compel him, after he has
satisfied the rent in arrear, and the costs attending his entry,
and detention of the lands, to give up the possession to the
lessee, and to pay him the surplus profits of the estate. 1 Co.
Litt. 203 a, n. 3; 1 Lev. 170; T.. Raym. 135, 158; 3 Cruise,
299, 300. See also 6 Binn. 420; 18 Ves. 60; Bac. Ab. Rent, K;
3 Call, 491; 18 Ves. 58 2 Story, Eq. Jur. §1315; 4 Bing. R.
178; 33 En . C. L. It. 312 , 1 How. S. C. R. 211
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REEVE. The name of an ancient English officer of justice,
inferior in rank to an alderman.
2. He was a ministerial officer, appointed to execute process,
keep the king's peace, and put the laws in execution. He
witnessed all contracts and bargains; brought offenders to
justice, and delivered them to punishment; took bail for such as
were to appear at the county court, and presided at the court or
folcmote. He was also called gerefa.
3. There were several kinds of reeves as the shire-gerefa,
shire-reeve or sheriff; the heh-gerefa, or high-sheriff,
tithing-reeve, burgh or borough-reeve.
RE-EXAMINATION. A second examination of a thing. A witness
maybe reexamined, in a trial at law, in the discretion of the
court, and this is seldom refused. In equity, it is a general
rule that there can be no reexamination of a witness, after he
has once signed his name to the deposition, and turned his back
upon the commissioner or examiner; the reason of this is that he
may be tam-pered with or induced to retract or qualify what he
has sworn to. 1 Meriv. 130.
RE-EXCHANGE, contracts, commerce. The expense incurred by a
bill's being dishonored in a foreign country where it is made
payable, and returned to that country in which it was made or
indorsed, and there taken up; the amount of this depends upon
the course of exchange between the two countries, through which
the bill has been negotiated. In other words, reexchange is the
difference between the draft and redraft.
2. The drawer of a bill is liable for the whole amount of
reexchange occasioned by the circuitous mode of returning the
bill through the various countries in which it has been
negotiated, as much as for that occasioned by a direct return.
Maxw. L. D. ii. t.; 5 Com. Dig. 150.
3. In some states, legislative enactments have been made which
regulate damages on reexchange. These damages are different in
the several states, and this want of uniformity, if it does not
create injustice, must be admitted to be a serious evil. 2 Amer.
Jur. 79. See Chit. on Bills. (ed. of 1836,) 666. See Damages on
Bills of Exchange.
REFALO. A word composed of the three initial syllables re. fa.
lo., for recordari facias loquelam. (q. v.) 2 Sell. Pr 160; 8
Dowl. R. 514.
REFECTION, civil law. Reparation, reestablishment of a
building. Dig. 19, 1, 6, 1.
REFEREE. A person to whom has been referred a matter in
dispute, in order that he may settle it. His judgment is called
an award. Vide Arbitrator; Reference.
REFERENCE, contracts. An agreement to submit to certain
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arbitrators, mat- ters in dispute between two or more parties,
for their decision, and judgment. The persons to whom such
matters are referred are sometimes called referees.
REFERENCE, mercantile law. A direction or request by a party
who asks a cre-dit to the person from whom he expects it, to call
on some other person named in order to ascertain the character or
mercantile standing of the former.
REFERENCE, practice. The act of sending any matter by a court
of chancery or one exercising equitable powers, to a master or
other officer, in order that he may ascertain facts and report to
the court. By reference is also understood that part of an
instrument of writing where it points to another for the matters
therein contained. For the effect of such reference, see 1 Pick.
R. 27; 17 Mass. R. 443; 15 Pick. R. 66; 7 Halst. R. 25; 14
Wend. R. 619; 10 Conn. R. 422; 4 Greenl. R. 14, 471; 3 Greenl.
R. 393; 6 Pick. R. 460; the thing referred to is also called a
reference.
REFERENDUM, international law. When an amhassador receives
propositions touching an object over which he has no sufficient
power and he is without instruction, he accepts it ad referendum,
that is, under the condition that it shall be acted upon by his
government, to which it is referred. The note addressed in that
case to his government to submit the question to its
consideration is called a referendum.
REFORM. To reorganize; to rearrange as, the jury "shall be
reformed by putting to and taking out of the persons so
impanneled." Stat. 3 H. VIII. c. 12; Bac. Ab. Juries, A.
2. To reform an instrument in equity, is to make a decree that
a deed or other agreement shall be made or construed as it was
originally intended by the parties, when an error or mistake as
to a fact has been committed. A contract has been reformed,
although the party applying to the court was in the legal
profession, and he himself drew the contract, it appearing clear
that it was framed so as to admit of a construction inconsistent
with the true agreement of the parties. 1 Sim. & Stu. 210; 3
Russ. R. 424. But a contract will not be reformed in consequence
of an error of law. 1 Russ. & M. 418; 1 Chit. Pr. 124.
REFORMATION, criminal law. The act of bringing back a criminal
to such a sense of justice, so that he may live in society
without any detriment to it.
2. The object of the criminal law ought to be to reform the
criminal, while it protects society by his punishment. One of the
best attempts at reformation is the plan of solitary confinement
in a penitentiary. While the convict has time to reflect he
cannot be injured by evil example or corrupt communication.
TO REFRESH. To reexamine a subject by having a reference to
something connected with it.
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2. A witness has a right to examine a memorandum or paper
which he made in relation to certain facts, when the same
occurred, in order to refresh his memory, but the paper or
memorandum itself is not evidence. 5 Wend. 301; 12 S. & R. 328;
6 Pick. 222; 1 A. K. Marsh. 188; 2 Conn. 213. See 1 Rep. Const.
Ct. 336, 373, 423.
TO REFUND. To pay back by the party who has received it, to
the party who has paid it, money which ought not to have been
paid.
2. On a deficiency of assets, executors and administrators cum
testamento annexo, are entitled to have refunded to them legacies
which they may have paid, or so much as may be necessary. to pay
the debts of the testator; and in order to insure this, they are
generally authorized to require a refunding bond. Vide 8 Vin. Ab.
418; 18 In Vin. Ab. 273; Bac. Ab. Legacies, H.
REFUSAL. The act of declining to receive or to do something.
2. A grantee may refuse a title, vide Assent; one appointed
executor may refuse to act as such. la some cases, a neglect to
perform a duty which the party is required by law or his
agreement to do, will amount to a refusal.
REGENCY. The authority of the person in monarchical countries
invested with the right of governing the state in the name of the
monarch, during his minority, absence, sickness or other
inability.
REGENT. 1. A ruler, a governor. The term is usually applied to
one who governs a regency, or rules in the place of another.
2. In the canon law, it signifies a master or professor of a
college. Dict. du Dr. Call. h. t. 3. It sometimes means simply a
ruler, director, or superintendent; as, in New York, where the
board who have the superintendence of all the colleges, academies
and schools, are called the regents of the University of the
state of New York.
REGIAM MAJESTATEM. The name of an ancient law book ascribed to
David I of Scotland. It is, according to Dr. Robertson, a servile
copy of Glanville. Ro- bertson's Hist. of Charles V., vol. 1,
note 25, p. 262; Ersk. Prin. B. 1, t. 1, n. 13.
REGICIDE. The killing of a king, aud, by extension, of a
queen. Theorie des Lois Criminelles, vol. 1, p. 300.
REGIDOR. Laws of the Spanish empire of the Indies. One of a
body, never exceeding twelve, who formed a part of the
ayuntamiento or municipal council in every capital of a
jurisdiction. The office of regidor was held for life, that is to
say, during the pleasure of the supreme authority. In most places
the office was purchased; in some cities, however, they were
elected by persons of the district, called capitulares. 12 Pet.
R. 442, note.
REGIMIENTO. Laws of the Spanish empire of the Indies. The body
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of regidores who never exceeded twelve, forming a part of the
municipal council or ayuntamiento, in every capital of a
jurisdiction. 12 Pet. Rep. 442, note.
REGISTER, evidence. A book containing a record of facts as
they occur, kept by public authority; a register of births,
marriages and burials.
2. Although not originally intended for the purposes of
evidence, public registers are in general admissible to prove the
facts to which they relate.
3. In Pennsylvania, the registry of births, &c. made by any
religious society in the state, is evidence by act of assembly,
but it must be proved as at common law. 6 Binn. R. 416. A copy of
the register of births and deaths of the Society of Friends in
England, proved before the lord mayor of London by an ex parte
affidavit, was allowed to be given in evidence to prove the death
of a person; 1 Dall. 2; and a copy of a parish register in
Barbadoes, certi-fied to be a true copy by the rector, proved by
the oath of a witness, taken before the deputy secretary of the
island and notary public, under his hand and seal was held
admissible to prove pedigree; the handwriting and office of the
secretary being proved. 10 Serg. & Rawle, 383.
4. In North Carolina, a parish register of births, marriages
and deaths, kept pursuant to the statute of that state, is
evidence of pedigree. 2 Murphey's R. 47.
5. In Connecticut, a parish register has been received in
evidence. 2 Root, R. 99. See 15 John. R. 226. Vide 1 Phil. Ev.
305; 1 Curt. R. 755; 6 Eng. Eccl. R. 452; Cov. on Conv. Ev.
304.
REGISTER, common law. The certificate of registry granted to
the person or persons entitled thereto, by the collector of the
district, comprehending the port to which any ship or vessel
shall belong; more properly, the registry itself. For the form,
requisites, &c. of certificate of registry, see Act of Con. Dec.
31, 1792; Story's Laws U. S. 269 3 Kent, Com. 4th ed. 141.
REGISTER or REGISTRAR. An officer authorized by law to keep a
record called a register or registry; as the register for the
probate of wills.
REGISTER FOR THE PROBATE OF WILLS. An officer in Pennsylvania,
who has gene- rally the same powers that judges of probates and
surrogates have in other states, and the ordinary has in England,
in admitting the wills of deceased persons to probate.
REGISTER OF WRITS. This is a book preserved in the English
court of chancery, in which were entered, from time to time, all
forms of writs once issued.
2. It was first printed and published in the reign of Henry
VIII. This book is still in authority, as containing, in general,
an accurate transcript of the forms of all writs as then framed,
and as they ought still to be framed in modern practice.
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3. It seems, however, that a variation from the register is
not conclusive against the propriety of a form, if other
sufficient authority can be adduced to prove its correctness.
Steph. Pl. 7, 8.
REGISTRARIUS. An ancient name given to a notary. In England
this name is confined to designate the officer of some court, the
records or archives of which are in his custody.
REGISTRUM BREVIUM. The name of an ancient book which was a
collection of writs. See Register of Writs
REGISTRY. A book authorized by law, in which writings are
registered or recorded. Vide To Record; Register.
REGNANT. One having authority as a king; one in the exercise
of royal authority.
REGRATING, crim. law. Every practice or device, by act,
conspiracy, words, or news, to enhance the price of victuals or
other merchandise, is so denomin-ated. 3 Inst. 196; 1 Russ. on
Cr. 169.
2. In the Roman law, persons who monopolized grain, and other
produce of the earth, were called dardanarii, and were variously
punished. Dig. 47, 11, 6.
REGRESS. Returning; going back opposed to ingress. (q. v.)
REGULAR DEPOSIT. One where the thing deposited must be
returned. It is distinguished from an irregular deposit.
REGULAR AND IRREGULAR PROCESS. Regular process is that which
has been lawfully issued by a court or magistrate, having
competent jurisdiction. Irregular process is that which has been
illegally issued.
2. When the process is regular, and the defendant has been
damnified, as in the case of a malicious arrest, his remedy is by
an action on the case, and not trespass: when it is irregular,
the remedy is by action of trespass.
3. If the process be wholly illegal or misapplied as to the
person intended to be arrested, without regard to any question of
fact, or whether innocent or guilty, or the existence of any
debt, then the party imprisoned may legally resist the arrest and
imprisonment, and may escape, be rescued, or even break prison;
but if the process and imprisonment were in form legal, each of
these acts would be punishable, however innocent the defendant
might be, for he ought to submit to legal process, and obtain his
release by due course of law. 1 Chit. Pr. 637; 5 East, R. 304,
308; S. C. 1 Smitt's Rep. 555; 6 T. R. 234; Foster, C. L. 312;
2 Wils. 47; 1 East, P. C. 310 Hawk. B. 2, c. 19, s. 1, 2.
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4. When a party has been arrested on process which has
afterwards been set aside for irregularity, he may bring an
action of trespass and recover damages as well against the
attorney who issued it, as the party, though such process will
justify the officer who executed it. 8 Adolph. & Ell. 449; S. C.
35 E. C. L. R. 433; 15 East, R. 615, note c; 1 Stra. 509; 2 W.
Bl. Rep., 845; 2 Conn. R. 700; 9 Conn. 141; 11 Mass. 500; 6
Greenl. 421; 3 Gill & John. 377; 1 Bailey, R. 441; 2 Litt.
234; 3 S. & R. 139 12 John. 257 3 Wils. 376; and vide Malicious
Prosecution.
REHABILlTATION. The act by which a man is restored to his
former ability, of which he had been deprived by a conviction,
sentence or judgment of a competent tribunal.
REHEARING. A second consideration which the court gives to a
cause, on a second argument.
2. A rehearing takes place principally when the court has
doubts on the subject to be decided; but it cannot be granted by
the supreme court after the cause has been remitted to the court
below to carry into effect the decree of the supreme court. 7
Wheat. 58.
REI INTERVENTUS. When a party is imperfectly bound in an
obligation, he may in general, annul such imperfect obligation;
but when he has permitted the opposite party to act as if his
obligation or agreement were complete, such things have
intervened as to deprive him of the right to rescind such
obligation; these circumstances are the rei interventus. Bell's
Com. 328, 329, 5th ed.; Burt. Man. P. R. 128.
RE-INSURANCE, mar. contr. An insurance made by a former
insurer, his executors, administrators, or assigns, to protect
himself and his estate from a risk to which they were liable by
the first insurance.
2. It differs from a double insurance (q. v.) in this, that in
the latter cases, the insured makes two insurances on the same
risk and the same interest.
3. The insurer on a re-insurance is answerable only to the
party whom he has insured, and not to the original insured, who
can have no remedy against him in case of loss, even though the
original insurer become insolvent, because there is no privity of
contract between them and the original insured. 3 Kent, Com. 227;
Park. on Ins. c. 15, p. 276; Marsh. Ins. B. 1, c. 4, s. 4
REISSUABLE NOTES. Bank notes, which after having been once
paid, may again be put into circulation, are so called.
2. They cannot properly be called valuable securities, while
in the hands of the maker; but in an indictment, may properly be
called goods and chattels. Ry. & Mood. C. C. 218; vide 5 Mason's
R. 537; 2 Russ. on Cr. 147. And such notes would fall within the
description of promissory notes. 2 Leach, 1090, 1093; Russ. &
Ry. 232. Vide Bank note; Note; Promissory note.
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REJOINDER, pleadings. The name of the defendant's answer to
the plaintiff's replication.
2. The general requisites of a rejoinder are, 1. It must be
triable. 2. It must not be double, nor will several rejoinders be
allowed to the same declaration. 3. It must be certain. 4. It
must be direct and positive, and not merely by way of recital or
argumentative. 5. it must not be repugnant or insensible. 6. It
must be conformable to, and not depart from the plea. Co. Litt.
304; 6 Com. Dig. 185 Archb. Civ. Pl. 278; U. S. Dig, Pleading,
XIII.
RELAPSE. The condition of one who, after having abandoned a
course of vice, returns to it again. Vide Recidive.
RELATION, civil law. The report which the judges made of the
proceedings in certain suits to the prince were so called.
2. These relations took place when the judge had no law to
direct him, or when the laws were susceptible of difficulties;
it was then referred to the prince, who was the author of the
law, to give the interpretation. Those reports were made in
writing and contained the pleadings of the parties, and all the
proceedings, together with the judge's opinion, and prayed the
emperor to order what should be done. The ordinance of the prince
thus required was called a rescript. (q. v.) the use of these
relations was abolished by Justinian, Nov. 125.
RELATION, contracts, construction. When an act is done at one
time, and it operates upon the thing as if done at another time,
it is said to do so by relation; as, if a man deliver a deed as
an escrow, to be delivered by the party holding it, to the
grantor, on the performance of some act, the delivery to the
latter will have relation back to the first delivery. Termes de
la Ley. Again, if a partner be adjudged a bankrupt, the
partnership is dissolved, and such dissolution relates back to
the time when the commission issued. 3 Kent, Com. 33. Vide 18
Vin. Ab. 285; 4 Com. Dig. 245; 5 Id. 339; Litt. S. C. 462-466;
2 John. 510; 4 John. 230; 15 John. 809; 2 Har. & John. 151,
and the article Fiction.
RELATIONS, kindred. In its most extensive signification, this
term includes all the kindred of the person spoken of. In a more
limited sense, it signifies those persons who are entitled as
next of kin under the statute of distribution.
2. A legacy to "relations" generally, or to "relations by
blood or marriage," without enumerating any of them, will,
therefore, entitle to a share, such of the testator's relatives
as would be entitled under the statute of distribution's in the
event of intestacy. 1 Madd. Ch. R. 45; 1 Bro. C. C. 33. See the
cases referred to under the word Relations, article Construction.
3. Relations to either of the parties, even beyond the ninth
degree, have been holden incapable to serve on juries. 3 Chit.
Pr. 795, note c.
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4. Relationship or affinity is no objection to a witness,
unless in the case of hushand and wife. See Witness.
RELATOR. A rehearser or teller; one who, by leave of court,
brings an information in the nature of a quo warranto.
2. At common law, strictly speaking, no such person as a
relator to an information is known; he being a creature of the
statute 9 Anne, c. 20.
3. In this country, even where no statute similar to that of
Anne prevails, informations are allowed to be filed by private
persons desirous to try their rights, in the name of the attorney
general, and these are commonly called relators; though no
judgment for costs can be rendered for or against them. 2 Dall.
112; 5 Mass. 231; 15 Serg. & Rawle, 127; 3 Serg. & Rawle, 52;
Ang. on Corp. 470. In chancery the relator is responsible for
costs. 4 Bouv. Inst. n. 4022.
RELATIVE. One connected with another by blood or affinity; a
relation, a kinsman or kinswoman. In an adjective sense, having
relation or connexion with some other person or thing; as
relative rights, relative powers.
RELATIVE POWERS. Those which relate to land, so called to
distinguish them from those which are collateral to it.
2. These powers are appendant, as where a tenant for life has
a power of making leases in possession. They are in gross when a
person has an estate in the land, with a power of appointment,
the execution of which falls out of the compass of his estate,
but, notwithstanding, is annexed in privity to it, and takes
effect in the appointee out of an interest appointed in the
appointer. 2 Bouv. Inst. n. 1930.
RELATIVE RIGHTS. Those to which a person is entitled in
consequence of his relation with others such as the rights of a
hushand in relation to his wife; of a father, as to his
children; of a master, as to his servant; of a guardian, as to
his ward.
2. In general, the superior may maintain an action for an
injury committed against his relative rights. See 2 Bouv. Inst.
n. 2277 to 2296; 3 Bouv. Inst. n. 3491; 4 Bouv. Inst. n. 3615
to 3618.
RELEASE. Releases are of two kinds. 1. Such as give up,
discharge, or abandon a right of action. 2. Such as convey a
man's interest or right to another, who has possession of it, or
some estate in the same. Touch. 320; Litt. sec. 444; Nels. Ab.
h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; Rolle's Ab. h. t.;
Com. Dig. h. t.
RELEASE, contracts. A release is the giving or discharging of
a right of action which a man has or may claim against another,
or that which is his. Touch. 320 Bac. Ab. h. t.; Co. Litt. 264
a.
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2. This kind of a release is different from that which is used
for the purpose of convoying real estate. Here a mere right is
surrendered; in the other case not only a right is given up, but
an interest in the estate is conveyed, and becomes vested in the
release.
3. Releases may be considered, as to their form, their
different kinds, and their effect. §1. The operative words of a
release are remise, release, quitclaim, discharge and acquit;
but other words will answer the purpose. Sid. 265; Cro. Jac.
696; 9 Co. 52; Show. 331.
4. - §2. Releases are either express, or releases in deed; or
those arising by operation of law. An express release is one
which is distinctly made in the deed; a release by operation of
law, is one which, though not expressly made, the law presumes in
consequence of some act of, the releasor; for instance, when,
one of several joint obligors is expressly released, the others
are also released by operation of law . 3 Salk. 298. Hob. 10;
Id. 66; Noy, 62; 4 Mod. 380; 7 Johns. Rep. 207.
5. A release may also be implied; as, if a creditor
voluntarily deliver to his debtor the bond, note, or other
evidence of his claim. And when the debtor is in possession of
such security, it will be presumed that it has been delivered to
him. Poth. Obl. n. 608, 609.
6. - §3. As to their effect, releases 1st, acquit the
releasee: and 2dly, enable him to be examined as a witness.
7. - 1st. Littleton says a release of all demands is the best
and strongest release. Sect. 508. Lord Coke, on the contrary,
says claims is a stronger word. Co. Litt. 291 b.
8. In general the words of a release will he restrained by the
particular occasion of giving it. 3 Lev. 273; 1 Show. 151: 2
Mod. 108, n.; 2 Show. 47; T. Raym. 399 3 Mod. 277; Palm. 218;
1 Lev. 235.
9. The reader is referred to the following cases where a
construction has been given to the expressions mentioned. A
release of "all actions, suits and demands," 3 Mod. 277: " all
actions, debts, duties, and demands," Ibid. 1 and 64; 3 Mod.
185; 8 Co. 150 b; 2 Saund. 6 a; all demands," 5 Co. 70, b; 2
Mod. 281; 3 Mod 278; 1 Lev. 99; Salk. 578; 2 Rolle's Rep. 12
Mod. 465; 2 Conn. Rep. 120; "all actions, quarrels, trespasses
" Dy. 2171 pl. 2; Cro. Jac. 487; " all errors, and all actions,
suits, and writs of error whatsoever," T. Ray. 3 99 all suits," 8
Co. 150 of covenants," 5 Co. 70 b.
10. - 2d. A release by a witness where he has an interest in
the matter which is the subject of the suit or release by the
party on whose side he is interested, renders him competent. 1
Phil. Ev. 102, and the cases cited in n. a. Vide 2 Chitt. It.
329; 1 D. & R. 361; Harr. Dig. h. t.; Bouv. Inst. Index, h. t.
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RELEASE, estates. The "conveyance of a man's interest or
right, which he hath unto a thing, to another that hath the
possession thereof, or some estate therein." Touch. 320.
2. The words generally used in such conveyance, are, "remised,
released, and forever quit claimed." Litt. s ec, 445.
3. Releases of land are, in respect of their operation,
divided into four sorts. 1. Releases that enure by way of passing
the estate, or mitter l'estate. (q. v.) 2. Releases that enure by
way of passing the right, or mitter le droit. 3. Releases that
enure by enlargement of the estate; and
4. Releases that enure by way of extinguishment. Vide 4
Cruise, 71; Co. Lit. 264; 3 Marsh. Decis. 185; Gilb. Ten. 82;
2 Sumn. R. 487; 10 Pick. R. 195; 10 John. R. 456; 7 Mass. R.
381; 8 Pick. R. 143; 5 Har. & John. 158; N. H. Rep. 402;
Paige's R. 299.
RELEASEE. A person to whom a release is made.
RELEASOR. He who makes a release.
RELEGATION, civil law. Among the Romans relegation was a
banishment to a certain place, and consequently was an
interdiction of all places except the one designated.
2. It differed from deportation. (q. v.) Relegation and
deportation agree upon these particulars: 1. Neither could be in
a Roman city or province. 2. Neither caused the party punished to
lose his liberty. Inst. 1,16 , 2; Digest, 48, 22, 4; Code, 9,
47,26.
3. Relegation and deportation differed in this. 1. Because
deportation deprived of the right of citizenship, which was
preserved notwithstanding the relegation. 2. Because deportation
was always perpetual, and relegation was generally for a limited
time. 3. Because deportation was always attended with
confiscation of property, although not mentioned in the sentence;
while a loss of property was not a consequence of relegation
unless it was perpetual, or made a part of the sentence. Inst. 1,
12, 1 & 2; Dig. 48, 20, 7, 5; Id. 48, 22, 1 to 7; Code, 9, 47,
8.
RELEVANCY. By this term is understood the evidence which is
applicable to the issue joined; it is relevant when it is
applicable to the issue, and ought to be admitted; it is
irrelevant, when it does not apply; and it ought then to be
excluded. 3 Hawks, 122; 4 Litt. Rep. 272; 7 Mart. Lo. R. N. S.
198. See Greenl. Ev. §49, et seq.; 1 Phil. Ev. 169; 11 S. & R.
134; 7 Wend. R. 359; 1 Rawle, R. 311; 3 Pet. R. 336; 5 Harr.
& Johns. 51, 56; 1 Watts. & Serg. 362; 6 Watts. R. 266; 1 S. &
R. 298.
RELEVANT EVIDENCE. That which is applicable to the issue and
which ought to be received; the phrase is used in opposition to
irrelevant evidence, which is that which is not so applicable,
and which must be rejected. Vide Relevancy.
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RELICT. A widow; as A B, relict of C D.
RELICTA VFRIFICATIONE. When a judgment is confessed by
cognovit actionem after plea pleaded, and then the plea is
withdrawn, it is called a confession or cognovit actionem relicta
verificatione. He acknowledges the action having abandoned his
plea. See 5 Halst. 332.
RELICTION. An increase of the land by the sudden retreat of
the sea or a river.
2. Relicted lands arising from the sea and in navigable
rivers, (q. v.) generally belong to the state and all relicted
lands of unnavigable rivers generally belong to the proprietor of
the estate to which such rivers act as boundaries. Schultes on
Aqu. Rights, 138; Ang. on Tide Wat. 75. But this reliction must
be from the sea in its usual state for if it should inundate the
land and then recede, this would be no reliction. Harg. Tr. 15.
Vide Ang. on Wat. Co. 220.
3. Reliction differs from avulsion, (q. v.) and from alluvion.
(q. v.)
RELIEF, Engl. law. A relief was an incident to every feudal
tenure, by way of fine or composition with the lord for taking up
the estate which was lapsed or fallen in by the death of the last
tenant. At one time the amount was arbitrary; but afterwards the
relief of a knight's fee became fixed at one hundred shillings. 2
Bl. Com. 65.
RELIEF, practice. That assistance which a court of chancery
will lend to a party to annul a contract tinctured with fraud, or
where there has been a mistake or accident; courts of equity
grant relief to all parties in cases where they have rights, ex
aequo et bono, and modify and fashion that relief according to
circumstances.
RELIGION. Real piety in practice, consisting in the
performance of all known duties to God and our fellow men.
2. There are many actions which cannot be regulated by human
laws, and many duties are imposed by religion calculated to
promote the happiness of society. Besides, there is an infinite
number of actions, which though punishable by society, may be
concealed from men, and which the magistrate cannot punish. In
these cases men are restrained by the knowledge that nothing can
be hidden from the eyes of a sovereign intelligent Being; that
the soul never dies, that there is a state of future rewards and
punishments; in fact that the most secret crimes will be
punished. True religion then offers succors to the feeble,
consolations to the unfortunate, and fills the wicked with dread.
3. What Montesquieu says of a prince, applies equally to an
individual. "A prince," says he, " who loves religion, is a lion,
which yields to the hand that caresses him, or to the voice which
renders him tame. He who fears religion and hates it, is like a
wild beast, which gnaws, the chain which re-strains it from
falling on those within its reach. He who has no religion is like
a terrible animal which feels no liberty except when it devours
its victims or tears them in pieces." Esp. des , Lois, liv. 24,
c. 1.
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4. But religion can be useful to man only when it is pure. The
constitution of the United States has, therefore, wisely provided
that it should never be united with the state. Art. 6, 3. Vide
Christianity; Religious test; Theo- cracy.
RELIGIOUS TEST. The constitution of the United States, art. 6,
s. 3, de-clares that "no religious test shall ever be required as
a qualification to any office, or public trust under the United
States."
2. This clause was introduced for the double purpose of
satisfying the scruples of many respectable persons, who feel an
invincible repugnance to any religious test or affirmation, and
to cut off forever every pretence of any alliance between church
and state in the national government. Story on the Const. §1841.
RELINQUISHMENT, practice. A forsaking, abandoning, or giving
over a right; for example, a plaintiff may relinquish a bad
count in a declaration, and proceed on the good: a man may
relinquish a part of his claim in order to give a court
jurisdiction.
RELOCATION, Scotch law, contracts. To let again to renew a
lease, is called a relocation.
2. When a tenant holds over after the expiration of his lease,
with the consent of his landlord, this will amount to a
relocation.
REMAINDER, estates. The remnant of an estate in lands or
tenements expectant on a particular estate, created together with
the same, at one time. Co. Litt. 143 a.
2. Remainders are either vested or contingent. A vested
remainder is one by which a present interest passes to the party.
though to be enjoyed in future; and by which the estate is
invariably fixed to remain to a determinate person, after the
particular estate has been spent. Vide 2 Jo ins. R. 288; 1
Yeates, R. 340.
3. A contingent remainder is one which is limited to take
effect on an event or condition, which may never happen or be
performed, or which may not happen or be performed till after the
determination of the preceding particular estate; in which case
such remainder never can take effect.
4. According to Mr. Fearne, contingent remainders may properly
be distin-guished into four sorts. 1. Where the remainder depends
entirely on a contin-gent determination of the preceding estate
itself. 2. Where the contingency on which the remainder is to
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take effect, is independent of the determination of the preceding
estate. 3. Where the condition upon which the remainder is
limited, is certain in event, but the determination of the
particular estate may happen before it. 4. Where the person, to
whom the remainder is limited, is not yet ascertained, or not yet
in being. Fearne, 5.
5. The pupillary substitutions of the civil law somewhat
resembled contingent remainders. 1 Brown's Civ. Law, 214, n.;
Burr. 1623. Vide, generally, Viner's Ab. h. t.; Bac. Ab. h. t;
Com. Dig. h. t.; 4 Kent, Com. 189; Yelv. 1, n.; Cruise, Dig.
tit. 16; 1 Supp. to Ves. jr. 184; Bouv. Inst. Index, h. t.
REMAINDER-MAN. One who is entitled to the remainder of the
estate after a particular estate carved out of it has expired.
TO REMAND. To send back or recommit. When a prisoner is
brought before a judge on a habeas corpus, for the purpose of
obtaining his liberty, the judge hears the case, and either
discharges him or not; when there is cause for his detention, he
remands him.
REMANDING A CAUSE, practice. The sending it back to the same
court out ofwhich it came for the purpose of having some action
on it there. March, R. 100.
REMANENT PRO DEFECTU EMPTORUM, practice. The return made by
the sheriff to a writ of execution when he has not been able to
sell the property seized, that the same remains unsold for want
of buyers: in that case the plaintiff is entitled to a
venditioni exponas. Com. Dig. Execution, C. 8.
REMANET, practice. The causes which are entered for trial, and
which cannot be tried during tho term, are remanets. Lee's Dict.
Trial, vii.; 1 Sell. Pr. 434; 1 Phil. Ev., 4.
REMEDIAL. That which affords a remedy; as, a remedial
statute, or one which is made to supply some defects or abridge
some superfluities of the common law. 1 131. Com. 86. The term
remedial statute is also applied to those acts which give a new
remedy. Esp. Pen. Act. 1.
REMEDY. The means employed to enforce a right or redress an
injury.
2. The importance of selecting a proper remedy is made
strikingly evident by tho following statement. "Recently a common
law barrister, very eminent for his legal attainments, sound
opinions, and great practice, advised that there was no remedy
whatever against a married woman, who, having a considerable
separate estate, had joined with her hushand in a promissory note
for X2500, for a debt of her hushand, because he was of opinion
that the contract of a married woman is absolutely void, and
referred to a decision to that effect, viz. Marshall v. Rutton, 8
T. R. 545, he not knowing, or forgetting, that in equity, under
such circumstances, payment might have been enforced out of the
separate estate. And afterwards, a very eminent equity counsel,
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equally erroneously advised, in the same case, that the remedy
was only in equity, although it appeared upon the face of the
case, as then stated, that, after the death of her hushand, the
wife had promised to pay, in consideration of forbearance, and
upon which promise she might have been arrested and sued at law.
If the common law counsel had properly advised proceedings in
equity, or if the equity counsel had advised proceedings by
arrest at law, upon the promise, after the death of the hushand,
the whole debt would have been paid. But, upon this latter
opinion, a bill in chancery was filed, and so much time elapsed
before decree, that a great part of the property was dissipated,
and the wife escaped with the residue into France, and the
creditor thus wholly lost his debt, which would have been
recovered, if the proper proceedings had been adopted in the
first or even second instance. This is one of the very numerous
cases almost daily occurring, illustrative of the consequences of
the want of, at least, a general knowledge of every branch of
law."
3. Remedies may be considered in relation to 1. The
enforcement of contracts. 2. The redress of torts or injuries.
4. - §1. The remedies for the enforcement of contracts are
generally by action. The form of these depend upon the nature of
the contract. They will be briefly considered, each separately.
5. - 1. The breach of parol or simple contracts, whether
verbal or written, express or implied, for the payment of money,
or for the performance or omission of any other act, is
remediable by action of assumpsit. (q, v.) This is the proper
remedy, therefore, to recover money lent, paid, and had and
re-ceived to the use of the plaintiff; and in some cases though
the money have been received tortiously or by duress of, the
person or goods, it may be recovered.in this form of action, as,
in that case, the law implies a contract. 2 Ld. Raym. 1216; 2
Bl. R. 827; 3 Wils. R. 304; 2 T. R. 144; 3 Johns. R. 183. This
action is also the proper remedy upon wagers, feigned issues, and
awards when the submission is not by deed, and to recover money
due on foreign judgments; 4 T. R. 493; 3 East, R. 221; 11
East, R; 124; and on by-laws. 1 B. & P. 98.
6. - 2. To recover money due and unpaid upon legal
liabilities, Hob. 206; or upon simple contracts either express
or implied, whether verbal or written, and upon contracts under
seal or of record, Bull. N. P. 167; Com. Dig. Debt, A 9; and on
statutes by a party grieved, or by a common informer, whenever
the demand is for a sum certain, or is capable of being readily
reduced to a certainty; 7 Mass. R. 202; 3 Mass. R. 309, 310;
the remedy is by action of debt. Vide Debt.
7. - 3. When a covenantee, has sustained damages in
consequence of the non-performance of a promise under seal,
whether such promise be contained in a deed poll, indenture, or
whether it be express or implied by law from the terms of the
deed; or whether the damages be liquidated or unliquidated, the
proper remedy is by action of covenant. Vide Covenant.
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8. - 4. For the detention of a cliattel, which the party
obtained by virtue of a contract, as a bailment, or by some other
lawful means, as by finding, the. owner, may in general support
an action of detinue, (q. v.) and replevin; (q. v.) or when he
has converted the property to his own use, trover and conversion.
(q. v.)
9. - §2 . Remedies for the redress of injuries. These remedies
are either public, by indictment, when the injury to the
individual or to Iiis property affects the public; or private,
when the tort is only injurious to the individual.
10. There are three kinds of remedies, namely, 1. The
preventive. 2. That which seeks for a compensation. 3. That which
has for its object punishment.
11. - 1. The preventive, or removing, or abating remedies, are
those which may be by acts of the party aggrieved, or by the
intervention of legal proceedings; as, in the case of injuries
to the. person, or to personal or real property, defence,
resistance, recaption, abatement of nuisance, and surety of the
peace, or injunction in equity and perhaps some others.
12. - 2. Remedies for compensation are those which may he
either by the acts of the party aggrieved, or summarily before
justices, or by arb itration, or action, or suit at law or in
equity.
13. - 3. Remedies which have for their object punishments, or
compensation and punishments, are either summary proceedings
before magistrates, or indictment, &c. The party injured in many
cases of private injuries, which are also a public offence, as,
batteries and libels, may-have both remedies, a public indictment
for the criminal offence, and a civil action for the private
wrong. When the law gives several remedies, the party entitled to
them may select that best calculated to answer his ends. Vide 2
Atk. 344; 4 Johns. Ch. R. 140; 6 Johns. Ch. Rep. 78; 2 Conn.
R. 353; 10 Johns. R. 481; 9 Serg. & Rawle, 302. In felony and
some other cases, the private injury is so far merged in the
public crime that no action can be maintained for it, at least
until after the public prosecution shall have been ended. Vide
Civil remedy.
14. It will be proper to consider, 1. The private remedies,
as, they seek the prevention of offences, compensation for
committing them, and the punishment of their authors. 2. The
public remedies, which have for their object protection and
punishment.
15. - 1. Private remedies. When the right invaded and the
injury committed are merely private, no one has a right to
interfere or seek a remedy except the party immediately injured
and his professional advisers. But when the remedy is even
nominally public, and prosecuted in the name of the commonwealth,
any one may institute the proccedings, although not privately
injured. 1 Salk. 174; 1 Atk. 221; 8 M. & S. 71.
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16. Private remedies are, 1, By the act of the party, or by
legal proceedings to prevent the commission or repetition of an
injury, or to remove it; or, 2. They are to recover compensation
for the injury which has been committed.
17. - 1. The preventive and removing remedies are principally
of two descriptions, namely, 1st. Those by the act of the party
himself, or of certain relations or third persons permitted by
law to interfere, as with respect to the person, by self-defence,
resistance, escape, rescue, and even prison breaking, when the
imprisonment is clearly illegal; or in case of personal
property, by resistance or recaption; or in case of real
property, resistance or turning a trespasser out of his house or
off his land, even with force; 1 Saund. 81, 140, note 4; or by
apprehending a wrong-doer, or by reentry and re-gaining
possession, taking care not to commit a forcible entry, or a
breach of the peace; or, in case of nuisances, public or
private, by abatement; vide Abatement of nuisances; or remedies
by distress, (q. v.) or by set off or re-tainer. See, as to
remedies by act of the parties, 1 Dane's Ab. c. 2, p. 130.
18. - 2. When the injury is complete or continuing, the
remedies to obtain compensation are either specific or in
damages. These are summary before jus-tices of the peace or
others; or formal, either by action or suit in courts of law or
equity, or in the admiralty courts. As an example of summary
proceedings may be mentioned the manner of regaining possession
by applying to magis-trates against forcible entry and detainer,
where the statutes authorize the proceedings. Formal proceedings
are instituted when certain rights have been invaded. If the
injury affect a legal right, then the remedy is in general by
action in a court of law; but if an equitable right, or if it
can be better investigated in a court of equity,' then the remedy
is by bill. Vide Chancery.
19. - 2. Public remedies. These may be divided into such as
are intended to prevent crimes, and those where the object is to
punish them. 1. The preven-tive remedies may be exercised without
any warrant either by a constable, (q. v.) or other officer, or
even by a private citizen. Persons in the act of committing a
felony or a broach of the peace may arrested by any one. Vide
Arrest. A public nuisance may be abated without any other warrant
or authority than that given by the law. Vide Nuisance. 2. The
proceedings intended as a punishment for offences, are either
summary, vide Conviction; or by indict- ment. (q. v.)
20. Remedies are specific and cumulative; the former are
those which can alone be applied to restore a right or punish a
crime; for example, where a statute makes unlawful what was
lawful before, and gives a particular remedy, that is specific
and must be pursued, and no other. Cro. Jac. 644; 1 Salk. 4 5;
2 Burr. 803. But when an offence was antecedently punishable by a
common law proceeding, as by indictment, and a statute prescribes
a particular remedy, there such particular remedy is cumulative,
and proceedings may be had at common law or under the statute. 1
Saund. 134, n. 4. Vide Bac. Ab. Actions in general, B; Bouv.
Inst. Index, h. t.; Actions; Arrest; Civil remedy; Election
of Actions.
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REMEMBRANCERS; Eng. law. Officers of the exchequer, whose
duty it is to remind the lord treasurer and the justices of that
court of such things as are to be called and attended to for the
benefit of the crown.
REMISE. A French word which literally means a surrendering or
returning a debt or duty.
2. It is frequently used in this sense in releases; as,
"remise, release and forever quit-claim." In the French law the
word remise is synonymous with our word release. Poth. Du Contr.
de Change, n. 176; Dalloz, Dict, h. t.; Merl. Rep. h. t.
REMISSION, civil law. A release.
2. The remission of the debt is either conventional, when it
is expressly granted to the debtor by a creditor having a
capacity to alienate; or tacit, when the creditor voluntarily
surrenders to his debtor the original title under private
signature constituting the obligation. Civ. Code of Lo. art.
2195.
3. By remission is also understood a forgiveness or pardon of
an offence. It has the effect of putting back the offender into
the same situation he was before the commission of the offence.
Remission is generally granted in cases where the offence was
involuntary, or committed in self defence. Poth. Pr. Civ. sec t.
7, art. 2, §2.
4. Remission is also used by common lawyers to expresss the
act by which a forfeiture or penalty is forgiven. 10 Wheat. 246.
TO REMIT. To annul a fine or forfeiture.
2. This is generally done by the courts where they have a
discretion by law: as, for example, when a juror is fined for
nonattendance in court, after being duly summoned and, on
appearing, he produces evidence to the court that he was sick and
unable to attend, the fine will be remitted by the court.
3. In commercial law, to remit is to send money, bills, or
something which will answer the purpose of money.
REMITTANCE, comm. law. Money sent by one merchant to another,
either in specie, bill of exchange, draft or otherwise.
REMITTEE, contracts. A person to whom a remittance is made.
Story on Bailm. §75.
REMITTER, estates. To be placed back in possession.
2. When one having a right to lands is out of possession, and
afterwards the freehold is cast upon him by some defective title,
and he enters by virtue of that title, the law remits him to his
ancient and more certain right and by an equitable fiction,
supposes him to have gained possession under it. 3 Bl. Com. 190;
18 Vin. Ab. 431; 7 Com. Dig. 234.
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REMITTIT DAMNA. An entry on the record by which the plaintiff
declares that he remits the damages or a part of the damages
which have been awarded him by the jury, is so called.
2. In some cases, a misjoinder of actions may be cured by the
entry of a remittit damna. 1 Chit. Pl. *207.
REMITTOR, contracts. A person who makes a remittance to
another.
REMITTITUR DAMNUM, or DAMNA, practice. The act of the
plaintiff upon the record, whereby he abates or remits the excess
of damages found by the jury beyond the sum laid in the
declaration. See 1 Saund. 285, n. 6; 4 Conn. 109; Bouv. Inst.
Index, h. t.
REMITTUR OF RECORD. After a record has been removed to the
supreme court, and a judgment has been rendered, it is to be
remitted or sent back to the court below, for the purpose of
re-trying the cause, when the judgment has been reversed, or of
i