S:
SABBATH. The same as Sunday. (q. v.)
SABINIANS. A sect of lawyers, whose first chief was Atteius
Capito, and the second, Caelius Sabiaus, from whom they derived
their name. Clef des Lois Rom. h. t.
SACRAMENTUM. An oath; as, qui dicunt supra sacramentum suum.
SACQUIER, maritime law. The same of an ancient officer, whose
business "was to load and unload vessels laden with salt, corn,
or fish, to prevent the ship's crew defrauding the merchant by
false tale, or cheating him of his merchandise otherwise." Laws
of Oleron, art. 11, published in an English translation in an
Appendix to 1 Pet. Adm. R. XXV. See Arrameur; Stevedore.
SACRILEGE. The act of stealing from the temples or churches
dedicated to the worship of God, articles consecrated to divine
uses. Pen. Code of China, B. 1, s. 2, §6; Ayl. Par. 476.
SAEVETIA. Cruelty. (q. v.) It is required in order to
constitute saevetia that there should exist such a degree of
cruelty as to endanger the party's suffering bodily hurt. 1 Hagg.
Cons. R. 85; 2 Mass. 150; 3 Mass. 821; 4 Mass. 587.
SAFE-CONDUCT, comm. law, war. A passport or permission from a
neutral state to persons who are thus authorized to go and return
in safety, and, sometimes, to carry away certain things, in
safety. According to common usage, the term passport is employed
on ordinary occasions, for the permission given to persons when
there is no reason why they should not go where they please: and
safe-conduct is the name given to the instrument which authorizes
certain persons, as enemies, to go into places where they could
not go without danger, unless thus authorized by the government.
2. A safe-conduct is also the name of an instrument given to
the captain or master of a ship to proceed on a particular
voyage: it usually contains his name and residence, the name,
description and destination of the ship, with such other matters
as the practice of the place requires. This document is
indispensably necessary for the safety of every neutral ship.
3. The act of congress of April 30th, 1790, s. 27, punishes the
violation of any safe-conduct or passport granted under the
authority of the United States, on conviction, with imprisonment,
not exceeding three years, and a fine at the discretion of the
court. Vide Conduct; Passport; and 18 Vin. Ab. 272.
SAFE PLEDGE, salvus-plegius. A surety given that a man shall
appear upon a certain day. Bract. lib. 4, c. 1.
SAID. Before mentioned.
2. In contracts and pleadings it is usual and proper when it is
desired to speak of a person or thing before mentioned, to
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designate them by the term said or aforesaid, or by some similar
term, otherwise the latter description will be ill for want of
certainty. 2 Lev. 207: Com. Dig. Pleader, C IS; Gould on Pl:
c. 3, §63.
SAILING INSTRUCTIONS, mar. law. Written or printed directions,
delivered by the commanding officer of a convoy to the several
masters of the ships under his care, by which they are enabled to
understand and answer his signals, to know the place of
rendezvous appointed for the fleet, in case of dispersion by
storm, by an enemy, or by any other accident.
2. Without sailing instructions no vessel can have the full
protection and benefit of convoy. Marsh. Ins. 368.
SAILORS. Seamen, mariners. Vide Mariners; Seamen; Shipping
Articles.
SAISIE-EXECUTION, French law. This term is used in Louisiana.
It is a writ of execution by which the creditor places under the
custody of the law, the movables, which are liable to seizure, of
his debtor, in order that out of them he may obtain payment of
the debt due by him Code of Practice, art. 641 , Dall. Diet. h.
t.. It is a writ very similar to the fieri facias.
SAISIE-FORAINE. A term used in Louisiana and in the French law;
this is a permission given by the proper judicial officer, to
authorize a creditor to seize the property of his debtor in the
district which he inhabits. Dall. Dict. h. t. It has the effect
of an attachment of property, which is applied to the payment of
the debt due.
SAISIE-GAGERIE, French law. A conservatory act of execution, by
which the owner, or principal lessor of a house or farm, causes
the furniture of the house or farm leased, and on which he has a
lien, to be seized, in order to obtain the rent due to him. It is
similar to the distress of the common law. Dall. Dict. h. t.
SAISIE-IMMOBILIERE. A writ by which the creditor puts in the
custody of the law the immovables of his debtor, that out of the
proceeds of their sale, he may be paid his demand. The term is
French, and is used in Louisiana.
SALARY. A reward or recompense for services performed.
2. It is usually applied to the reward paid to a public officer
for the performance of his official duties.
3. The salary of the president of the United States is
twenty-five thousand dollars per annum; Act of l8th Feb. 1793;
and the constitution, art. 2, s. 1, provides that the
compensation of the president shall not be increased or
diminished, during the time for which he shall have been elected.
4. Salary is also applied to the reward paid for the
performance of other services; but if it be not fixed for each
year, it is called honorarium. Poth. Pand. h. t. According to M.
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Duvergier, the distinction between honorarium and salary is this.
By the former is understood the reward given to the most
ele-vated professions for services performed; and by the latter
the price of hir-ing of domestic servants and workmen. 19 Toull.
n. 268, p. 292, note.
5. There is this difference between salary and price; the
former is the re-ward paid for services, or for the hire of
things; the latter is the consideration paid for a thing sold.
Lec. Elem. §907, 908.
SALE, contracts. An agreement by which one of the contracting
parties, called the seller, gives a thing and passes the title to
it, in exchange for a certain price in current money, to the
other party, who is called the buyer or purchaser, who, on his
part, agrees to pay such price. Pard. Dr. Com. n. 6; Noy's Max.
ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth. Vente, n. 1;
1 Duverg. Dr. Civ. Fr. n. 7.
2. This contract differs from a barter or exchange in this,
that in the latter the price or consideration, instead of being
paid in money, is paid in goods or merchandise, susceptible of a
valuation. It differs from accord and satisfaction, because in
that contract, the thing is given for the purpose of quieting a
claim, and not for a price. An onerous gift, when the burden it
imposes is the payment of a sum of money, is, when accepted, in
the nature of a sale. When partition is made between two or more
joint owners of a chattel, it would seem, the contract is in the
nature of a barter. See 11 Pick. 311.
3. To constitute a valid sale there must be, 1. Proper parties.
2. A thing which is the object of the contract. 3. A price agreed
upon; and, 4. The consent of the contracting parties, and the
performance of certain acts required to complete the contract.
These will be separately considered.
4. - §1. As a general rule all persons sui juris may be either
buyers or sellers. But to this rule there are several exceptions.
1. There is a class of persons who are incapable of purchasing
except sub modo, as infants, and married women; and, 2. Another
class, who, in consequence of their peculiar relation with regard
to the owner of the thing sold, are totally incapable of becoming
purchasers, while that relation exists; these are trustees,
guardians, assignees of insolvents, and generally all persons
who, by their connexion with the owner, or by being employed
concerning his affairs, have acquired, a knowledge of his
property, as attorneys, conveyancers, and the like. See
Purchaser.
5. - §2. There must be a thing which is the object of the sale,
for if the thing sold at the time of the sale had ceased to exist
it is clear there can be no sale; if, for example, Paul sell his
horse to Peter, and, at the time of the sale the horse be dead,
though the fact was unknown to both parties: or, if you and I
being in Philadelphia, I sell you my house in Cincinnati, and, at
the time of the sale it be burned down, it is manifest there was
no sale, as there was not a thing to be sold. It is evident, too,
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that no sale can be made of things not in commerce, as the air,
the water of the sea, and the like. When there has been a mistake
made as to the article sold, there is no sale; as, for example,
where a broker, who is the agent of both parties, sells an
article and delivers to the seller a sold note describing the
article sold as "St. Petershurg clean hemp," and bought note to,
the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786,
788; 5 B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N.
S. 747 9 M. &, W. 805. Holt. N. P. Cas. 173; 1 M. & P. 778.
6. There must be an agreement as to the specific goods which
form the basis of the contract of sale; in other words, to make
a perfect sale, the parties must have agreed the one to part with
the title to a specific article, and the other to acquire such
title; an agreement to sell one hundred bushels of wheat, to be
measured out of a heap, does not change the property, until the
wheat has been measured. 3 John. 179; Blackb. on Sales, 122 , 5
Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick.
280; 15 John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.
7. - §3. To constitute a sale there must be a price agreed
upon; but upon the maxim id certum est quod reddi certum potest,
a sale may be valid although it is agreed that the rice for the
thing sold shall be determined by a third person. 4 Pick. 179.
The price must have the three following qualities, to wit: 1. It
must be an actual or serious price. 2. It must be certain or
capable of being rendered certain. 3. It must consist of a sum of
money.
8. - 1. The price must be an actual or serious price, with an
intention on the part of the seller, to require its payment; if,
therefore, one should sell a thing to another, and, by the same
agreement, he should release the buyer from the payment, this
would not be a sale but a gift, because in that case the buyer
never agreed to pay any price, the same agreement by which the
title to the thing is passed to him discharging him from all
obligations to pay for it. As to the quantum of the price that is
altogether immaterial, unless there has been fraud in the
transaction. 2. The price must be certain or determined, but it
is sufficiently certain, if, as before observed, it be left to
the deterimination of a third person. 4 Pick. 179; Poth. Vente,
n. 24. And an agreement to pay for goods what they are worth, is
sufficiently certain. Coxe, 261; Poth. Vente, n. 26. 3. The
price must consist in a sum of money which the buyer agrees to
pay to the seller, for if paid for in any other way, the contract
would be an exchange or barter, and not a sale, as before
observed.
9. - §4. The consent of the contracting parties, which is of
the essence of a sale, consists in the agreement of the will of
the seller to sell a certain thing to the buyer, for a certain
price, and in the will of the buyer, to purchase the same thing
for the same, price. Care must be taken to distinguish between an
agreement to enter into a future contract, and a present actual
agreement to make a sale. This consent may be shown, 1. By an
express agreement. 2. By all implied agreement.
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10. - 1. The consent is certain when the parties expressly
declare it. This, in some cases, it is requisite should be in
writing. By the 17tth section of the English statute, 29 Car. II.
c. 3, commonly called the Statute of Frauds, it is enacted, "that
no contract for the sale of any goods, wares, or merchan-dise,
for the price of œ10 or upwards, shall be allowed to be good,
except the buyer shall accept part of the goods so sold, and
actually receive the same, or give something in earnest to bind
the bargain, or in part payment, or some note or memorandum in
writing of the said bargain be made and signed by the parties to
be charged by such contract or their agents thereunto lawfully
authorized." This statute has been renacted in most of the states
of the Union, with amendments and alterations,
11. It not unfrequently happens that the consent of the parties
to a contract of sale is given in the course of a correspondence.
To make such contract valid, both parties must concur in it at
the same time. See Letter, com. law, crim. law, §2; 4 Wheat.
225; 6 Wend. 103; 1 Pick. 278 10 Pick. 326.
12. An express consent to a sale may be given verbally, when it
is not required by the statute of frauds to be in writing.
13. - 2. When a party, by his acts, approves of what has been
done, as if he knowingly uses goods which have been left at his
house by another who intended to sell them, he will, by that act,
confirm the sale.
14. The consent must relate, 1. To the thing which is the
object of the contract; 2. To the price; and, 3. To the sale
itself. 1st. Both parties must agree upon the same object of the
sale; if therefore one give consent to buy one thing, and the
other to sell another, there is no sale; nor is there a sale if
one sells me a bag full of oats, which I understand is full of
wheat; because there is no consent as to the thing which is the
object of the sale. But the sale would be valid, although I might
be mistaken as to the quality of the tiling sold. 20 John. 196 3
Rawle, 23, 168. 2d. Both parties must agree as to the same price,
for if the seller intends to sell for a greater sum than the
buyer intends to give, there is no mutual consent; but if the
case were reversed, and the seller intended to sell for a less
price than the buyer intended to give, the sale would be good for
the lesser sum. Poth. Vente, n. 36. 3d. The consent must be on
the sale itself, that is, one intends to sell, and the other to
buy. If, therefore, Peter intended to lease his house for three
hundred dollars a year for ten years, and Paul intended to buy it
for three thousand dollars, there would not be a contract of sale
nor a lease. Poth. Vente, n. 37.
15. In order to pass the property by a sale, there must be an
express or implied agreement that the title shall pass. An
agreement for the sale of goods is prima facie a bargain and sale
of those goods; but this arises merely from the presumed
intention of the parties, and if it appear that the parties have
agreed, not that there shall be a mutual credit by which the
property is to pass from the seller to the buyer, and the buyer
is bound to pay the price to the seller, but that the exchange of
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the money for the goods shall be made on the. spot, no property
is transferred, for it is not the intention of the parties to
transfer any. 4 Wash. C. C. R. 79. But, on the contrary, when the
making of part payment, or naming a day for payment, clearly
shows an intention in the parties that they should have some time
to complete the sale by payment and delivery, and that they
should in the meantime be trustees for each other, the one of the
property in the chattel, and the other in the price. As a general
rule, when a bargain is made for the purchase of goods, and
nothing is said about payment and. delivery, the property passes
immediately, so as to cast upon the purchaser all future risk, if
nothing remains to be done to the goods, although he cannot take
them away without paying the price. 5 B. & C. 862.
16. Sales are absolute or conditional. An absolute sale is one
made and completed without any condition whatever. A conditional
sale is one which depends for its validity upon the fulfilment of
some condition. See 4 Wash. C. C. R. 588; 4 Mass. 405; 17 Mass.
606; 10 Pick. 522; 13 John. 219; 18 John. 141; 8 Verm. 154;
2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2 A.K.
Marsh. 430.
17. Sales are also voluntary or forced, public or private.
18. - 1. A voluntary sale is one made without constraint freely
by the owner of the thing sold; to such the usual rules relating
to sales apply. 2. A forced sale is one made without the consent
of the owner of the property by some officer appointed by law, as
by a marshal or a sheriff in obedience to the mandate of a
competent tribunal. This sale has the effect to transfer all the
rights the owner had in the property, but it does not, like a
voluntary sale of personal property, guaranty a title to the
thing sold it merely transfers the rights of the person as whose
property it has been seized. This kind of a sale is sometimes
called a judicial sale. 3. A public sale is one made at auction
to the highest bidder. Auction sales sometimes are voluntary, as
when the owner chooses to sell his goods in this way, and then as
between the seller and the buyer the usual rules relating to
sales apply; or they are involuntary or foreed when the same
rules do not apply. 4. Private sales are those made voluntarily
and not at auction.
19. The above rules apply to sales of personal property. The
sale of real estate is governed by other rules. When a contract
has been entered into for the sale of lands, the legal estate in
such lands still remains vested in the vendor, and it does not
become vested in the vendee until he shall have re-ceived a
lawful deed of conveyance from the vendor to him; and the only
remedy of the purchaser at Iaw, is to bring an action on the
contract, and recover pecuniary damages for a breach of the
contract. In equity, however, after a contract for the sale, the
lands are considered as belonging to the purchaser, and the court
will enforce his rights by a decree for a specific performance;
and the seller will be entitled to the purchase money. Will. on
Real Prop. 127. See Specific performance.
20. In general, the seller of real estate does not guaranty the
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title; and if it be desired that he should, this must be done by
inserting a warranty to that effect. See, generally, Brown on
Sales; Blackb. on Sales; Long on Sales; Story on Sales, Sugd.
on Vendors; Pothier, Vente; Duvergier, Vente; Civil Code of
Louisiana, tit. 7; Bouv. Inst. Index, h. t.; and Contracts;
Delivery; Purchaser; Seller; Stoppage in transitu.
SALE NOTE. A memorandum given by a broker to a seller or buyer
of goods, stating the fact that certain goods have been sold by
him on account of a person called the seller to another person
called the buyer. Sale notes are also called bought notes, (q.
v.) and sold notes. (q. v.)
SALE AND RETURN. When goods are sent from a manufacturer or
wholesale dealer to a retail trader, in the hope that he may
purchase them, with the understanding that what he may choose to
take he shall have as on a contract of sale, and what he does not
take he will retain as a consignee for the owner, the goods are
said to have been sent on sale and return.
2. The goods taken by the receiver as on a sale, will be
considered as sold, and the title to them is vested in the
receiver of them; the goods he does not buy are considered as a
deposit in the hands of the receiver of them, and the title is in
the person who sent them. 1 Bell's Com., 268, 5th ed.
SALIQUE LAW. The name of a code of laws so called from the
Salians, a people of Germany, who settled in Gaul under their
king Phararaond.
2. The most remarkable law of this code is that which regards
succession. De terra vero salica nulla portio haereditatis
transit in mulierem, sed hoc vir-iles sextus acquirit, hoc est
filii in ipsa haereditate succedunt; no part of the salique land
passes to females, but the males alone are capable of taking,
that is, the sons succeed to the inheritance. This rule has ever
excluded females from the throne of France.
SALVAGE, maritime law. This term originally meant the thing or
goods saved from shipwreck or other loss; and in that sense it
is generally to be understood in our old books. But it is at
present more frequently understood to mean the compensation made
to those by whose means the ship or goods have been saved from
the effects of shipwreck, fire, pirates, enemies, or any other
loss or misfortune. 1 Cranch, 1.
2. This compensation, which is now usually made in money, was,
before the use of money became general, made by a delivery of
part of the effects saved. Marsh. Ins. B. 1, c. 12, s. 8; Pet.
Adm. Dec. 425; 2 Taunt. 302; 3 B. & P. 612; 4 M. & S. 159; 1
Cranch, 1; 2 Cranch, 240; Cranch, 221; 3 Dall. 188; 4 Wheat.
98 9 Cranch, 244; 3 Wheat. 91; 1 Day, 193 1 Johns. R. 165; 4
Cranch, 347; Com. Dig. Salvage; 3 Kent, Com. 196. Vide Salvors.
SALVAGE CHARGES. The expenses incurred to remunerate services
rendered to a ship and cargo, which have prevented its being a
total loss. Stev. on Av. c. 2, s. 1.
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SALVAGE LOSS. By salvage loss is understood the difference
between the amount of salvage, after deducting the charges, and
the original value of the property. Stev. on Av. c. 2, s. 1.
SALVORS, mar. law. When a ship and cargo, or any part thereof,
are saved at sea by the exertions of any person from impending
perils, or are recovered after an actual abandonment or loss,
such persons are denominated salvors; they are entitled to a
compensation for their services, which is called salvage. (q. v.)
2. As soon as they take possession of property for the purpose
of preserving it, as if they find a ship derelict at sea, or if
they recapture it, or if they go on board a ship in distress, and
take possession with the assent of the master or other person in
possession, they are deemed boua fide possessors, and their
possession cannot be lawfully displaced. 1 Dodson's Rep. 414.
They have a lien on the property for their salvage, which the,
laws of all maritime countries will respect and enforce. Salvors
are responsible not only for good faith, but for reasonable
diligence in their custody of the salvage property. Story, Bail.
§623.
SAMPLE, contracts. A small quantity of any commodity or
merchandise, exhibited as a specimen of a larger quantity called
the bulk. (q. v.)
2. When a sale is made by sample, and it afterwards turns out
that the bulk does not correspond with it, the purchaser is not,
in general, bound to take the property on a compensation being
made to him for the difference. 1 Campb. R. 113; vide 2 East,
314; 4, Campb. R. 22; 12 Wend. 566 9 Wend. 20; 6 Cowen, 354;
12 Wend. 413. See 5 John. R. 395.
SANCTION. That part of a law which inflicts a penalty for its
violation, or bestows a reward for its observance. Sanctions are
of two kinds, those which redress civil injuries, called civil
sanctions; and those which punish crimes, called penal
sanctions. 1 Hoffm. Leg. Outl. 279; Just. Ins. lib. 2, t. 1,
§10; Ruthf. Inst. b. 2, c. 6, s. 6; Toull. tit. prel. 86;
Ferguss. Inst. of Mor. Phil. p. 4, c. 3, s. 13, and p. 6, c. 1,
et seq; 1 Bl. Com. 56.
SANCTUARY. A place of refuge, where the process of the law
cannot be executed.
2. Sanctuaries may be divided into religious and civil. The
former were very common in Europe; religious houses affording
protection from arrest to all persons, whether accused of crime,
or pursued for debt. This kind was never known in the United
States.
3. Civil sanctuary, or that protection which is afforded to a
man by his own house, was always respected in this country. The
house protects the owner from the service of all civil process in
the first instance but not if he is once lawfully arrested and
takes refuge in his own house. Vide Door; House.
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4. No place affords protection from arrest in criminal cases;
a man may, therefore, be arrested in his own bouse in such cases,
and the doors may be broken for the purpose of making the arrest.
Vide Arrest in criminal cases.
SANE MEMORY. By this is meant that understanding which enables
a man to make contracts and his will, and to perform such other
acts as are authorized by law; Vide Lunacy; Memory; Non compos
mentis.
SANG or SANC. Blood. These words are nearly obsolete.
SANITY, med. jur. The state of a person who has a sound
understanding; the reverse of insanity.
2. The sanity of an individual is always presumed. 5 John. R.
144; 1 Pet. R. 163; 1 Hen. & M. 476; 4. Cowen, R. 207; 4 W.
C. C. R. 262. See 9 Conn. 102; 9 Mass. 225; 3 Mass. 336 1 Mass.
71; 8 Mass. 371; 8 Greenl. 42; 15 John. 503; 4 Pick. 32.
SANS CEO QUE. The same as Absque hoc. (q. v.)
SANS NOMBRE. This is a French phrase, which signifies without
number.
2. In England it is used in relation to the right of putting
animals on a common. The term common sans nombre does not mean
that the beasts are to be innumerable, but only indefinite, not
certain; Willes, 227; but they are limited to the commoner's
own commonable cattle, levant et couchant, upon his lands, or as
many cattle as the land of the commoner can keep and maintain in
winter. 2 Brownl. 101; Vent. 54; 5 T. R. 48; 1 Saund. 28, n.
4.
SANS RECOURS. Without recourse.
2. These words are sometimes put on a bill before the payee
endorses it; they have the effect of transferring the bill
without responsibility to the endorser. Chit. on Bills, 179; 7
Taunt. 160; 1 Cowen, 538; 3 Cranch, 193; 7 Cranch, 159; 12
Mass. 172; 14 S. & R. 325.
SATISDACTION, civil law. This word is derived from the same
root as satisfaction; for, in the same manner that to fulfil the
demand which is made upon us, is called satisfaction, so
satisdaction takes place when he who demands something has agreed
to receive sureties instead of the thing itself. Dig. 2, 8, 1
SATISFACTION, practice. An entry made on the record, by which a
party in whose favor a judgment was rendered, declares that he
has been satisfied and paid.
2. In Alabama, Delaware, Illinois, Indiana, Massachusetts, New
Hampshire, Pennsylvania, Rhode Island, South Carolina, and,
Vermont, provision is made by statute, requiring the mortgagee to
discharge a mortgage upon the record, by entering satisfaction in
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the margin. The refusal or neglect to enter satisfaction after
payment and demand, renders the mortgagee liable to an action,
after the time given him by the respective statutes for doing the
same has elapsed, and subjects him to the payment of damages,
and, in some cases, treble costs. In Indiana and New York, the
register or recorder of deeds may himself discharge the mortgage
upon the record on the exhibition of a certificate of payment and
satisfaction signed by the mortgagee or his representatives, and
attached to the mortgage, which shall be recorded. Ind. St. 1836,
64; 1 N. Y. Rev. St. 761.
SATISFACTION, construction by courts of equity. Satisfaction is
defined to be the donation of a thing, with the intention,
express or implied, that such donation is to be an extinguishment
of some existing right or claim in the donee.
2. Where a person indebted bequeaths to his creditor a legacy,
equal to, or exceeding the amount of the debt, which is not
noticed in the will, courts of equity, in the absence of any
intimation of a contrary intention, have adopted the rule that
the testator shall be presumed to have meant the legacy as a
satisfaction. of the debt.
3. When a testator, being indebted, bequeaths to his creditor a
legacy, simpliciter, and of the same nature as the debt, and not
coming within the exceptions stated in the next paragraph, it has
been held a satisfaction of the debt, when the legacy is equal
to, or exceeds the amount of the debt. Pre. Ch. 240; 3 P. Wms.
353.
4. The following are exceptions to the rule: 1. Where the
legacy is of, less amount than the debt, it shall not be deemed a
part payment or satisfaction. 1 Ves. pen. 263.
5. - 2. Where, though the debt and legacy are of equal amount,
there is a difference in the times of payment, so that the legacy
may not be equally beneficial to the legatee as the debt. Prec.
Ch. 236; 2 Atk. 300; 2 Ves. sen. 63 5; 3 Atk. 96; 1 Bro. C.
C. 129; 1 Bro. C. C. 195; 1 M'Clel. & Y. Rep. Exch. 41; 1
Swans. R. 219.
6. - 3. When the legacy and the debt are of a different nature,
either with reference, to the subjects themselves, or with
respect to the interests given. 2 P. Wms. 614; 1 Ves. jr. 298;
2 Ves. jr. 463.
7. - 4. When the provision by the will is expressed to be given
for a particular purpose, such purpose will prevent the
testamentary gift being construed a satisfaction of the debt,
because it is given diverse intuitu. 2 Ves. sen. 635.
8. - 5. When the debt of the testator is contracted
subsequently to the, making of the will; for, in that case, the
legacy will not be deemed a satisfaction. 2 Salk. 508.
9. - 6. When the legacy is uncertain or contingent. 2 Atk. 300;
2 P. Wms. 343.
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10. - 7. Where the debt itself is contingent, as where it
arises from a running account between the testator and legatee;
1 P. Wms. 296; or it is a negotiable bill of exchange. 3 Ves.
jr. 561.
11. - 8. Where there is an express direction in the will for
the payment of debts end legacies, the court will infer from the
circumstance, that the testator intended that both the debt owing
from him to the legatee and the legacy, should, be paid. 1 P.
Wms. 408; 2 Roper, Leg. 54.
See, generally, Tr. of Eq. 333; Yelv. 11, n.; 1 Swans. R.
221; 18 Eng. Com. Law Rep. 201; 4 Ves. jr. 301; 7 Ves. jr.
507; 1 Suppl. to Ves. jr. 204, 308, 311, 342, 348, 329; 8 Com.
Dig. Appen. tit. Satisfaction, p. 917; Rob. on Frauds, 46, n.
15; 2 Suppl. to Ves. jr. 22, 46, 205; 1 Vern. 346; Roper, Leg.
c. 17; 1 Roper on Hush. and Wife, 501 to 511; 2 Id. 53 to 63;
Math. on Pres. c. 6, p. 107; 1 Desaus. R. 814; 2 Munf. Rep.
413; Stallm. on El. and Sat.
SATISFACTION PIECE, Eng. practice. An instrument of writing in
which it is declared that, satisfaction is acknowledged between
the plaintiff and defendant. It is signed by the attorney, and on
its production and the warrant of attorney to the clerk of the
judgments, satisfactio is entered on payment, of certain fees.
Lee's Dict. of Pr. tit. Satisfaction.
SATISFACTORY EVIDENCE. That which is sufficient to induce a
belief that the thing is true; in other words, it is credible
evidence. 3 Bouv. Inst. n. 3049.
SCANDAL. A scandalous verbal report or rumor respecting some
person.
2. The remedy is an action on the case.
3. In chancery practice, when a bill or other pleading contains
scandal, it will be referred to a master to be expunged, and till
this has been done, the opposite party need not answer. 3 Bl.
Com. 342. Nothing is considered scandalous which is positively
relevant to the cause, however harsh and gross the charge may be.
The degree of relevancy is not deemed material. Coop. Eq. Pl. 19;
2 Ves. 24; 6 Ves. 514, 11 Ves. 626; 15 Ves. 477; Story Eq.
Plo. §269 Vide Impertinent.
SCANDALUM MAGNATUM. Great scandal or slander. In England it. is
the slander of the great men, the nobility of the realm.
SCHEDULE, practice. When an indictment is returned, from au
inferior court in obedience to a writ of certiorari, the,
statement of the previous proceedings sent with it, is termed the
schedule. 1 Saund. 309, a, n. 2.
2. Schedules are also frequently annexed to answers in a court
of equity, and to depositions and other documents, in order to
show more in detail the matter they contain, than could otherwise
be conveniently shown.
3. The term is frequently used instead of inventory.
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SCHOOLMASTER. One employed in teaching a school.
2. A schoolmaster stands in loco parentis in relation to the
pupils committed to his charge, while they are under his care, so
far as to enforce obedience to his, commands, lawfully given in
his capacity of school-master, and he may therefore enforce them
by moderate correction. Com. Dig. Pleader, 3 M 19; Hawk. c. 60,
sect. 23. Vide Correction.
3. The schoolmaster is justly entitled to be paid for his
important and arduous services by those who em ploy him. See 1
Bing. R. 357 8 Moore's Rep. 368. His duties are to teach his
pupils what he has undertaken, and to have a special care over
their morals. See 1 Stark. R. 421.
SCIENDUM, Eng. law. The name given to a clause inserted in the
record by which it is made " known that the justice here in
court, in this same term, delivered a writ thereupon to the
deputy sheriff of the county aforesaid, to be executed in due
form of law." Lee's Dict. art. Record.
SCIENTER, knowingly.
2. A man may do many acts which are justifiable or not, as he
is ignorant or not ignorant of certain facts. He may pass a
counterfeit coin, when he is ignorant of its being counterfeit,
and is guilty of no offence; but if he knew the coin to be
counterfeit, which is called the scienter, he is guilty of
passing counterfeit money. A man who keeps an animal which
injures some person, or his property, is answerable for damages,
or in some cases he may be indicted if he had a knowledge of such
animal's propensity to do injury. 3 Blackst. Comm. 154; 2 Stark.
Ev. 178; 4 Campb. 198; 2 Str. 1264; 2 Esp. 482; Bull. N. P.
77; Burr. 2092; 2 Lev. 172; Lord Raym. 110; 2 B. & A. 620; 2
C. M. & R. 496; 5 C. & P. 1; S. C. 24 E. C. L. R. 187; 1
Leigh, N. P. 552, 553; 7 C. & P. 755.
4. In this respect the civil law agrees with our own. Domat,
Lois Civ. liv. 2, t. 8, s. 2. As to what evidence maybe given to
prove guilty knowledge, see Archb. Cr. Pl. 109. Vide Animal;
Dog.
SCILICET. A Latin adverb, signifying that is to say; to wit;
namely.
2. It is a clause to usher in the sentence of another, to
particularize that which was too general before, distribute what
was too gross, or to explain what was doubtful and obscure. It
neither increases nor diminish the premises or habendum, for it
gives nothing of itself; it may make a restriction when the
preceding words may be restrained. Hob. 171 P. Wms. 18; Co.
Litt. 180 b, note 1.
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3. When the scilicet is repugnant to the precedent matter, it
is void; for example, when a declaration in trover states that
the plaintiff on the third day of May was possessed of certain
goods which on the fourth day of May came to the defendant's
hands, who afterwards, to wit, on the first day of May converted
them, the scilicet was rejected as surplusage. Cro. Jac. 428;
and vide 6 Binn. 15; 3 Saund. 291, note 1, and the cases there
cited. This word is sometimes abbreviated, ss. or sst.
SCINTILLA JURIS, estates; A spark of right. A legal fiction,
resorted to for the purpose of enabling feoffees to uses to
support contingent uses when they come into existence, thereby to
enable the statutes of uses, 27 Henry VIII., to execute them. 4
Kent's Com. 238, et seq., and the authorities there cited, for
the learning upon this subject.
SCIRE FACIAS, remedies, practice. The name of a judicial writ,
founded upon some record, and requiring the defendant to show
cause why the plaintiff should not have the "advantage of such
record; or, when it is issued to repeal letters-patent, why the
record should not be annulled and vacated. 3 Sell. Pr. 187;
Grah. Pr. 649; 2 Tidd's Pr. 982; 2 Arch. Pr. 76; Bac. Abr. h.
t.
2. It is, however, considered as an action, and in the nature
of a new original. Skin. 682; Com. 455.
3. The scire facias against a bail, against pledges in
replevin, to repeal letters-patent, or the like, is an original
proceeding; but when brought to revive a judgment after a year
and a day, or upon the death or marriage of the parties, when in
the latter case one of them is a woman; or when brought on a
judgment quando, &c., against an executor, it is but a
continuation of the original action. Vide 1 T. R. 388. Vide
generally, 11 Vin. Ab. 1; 19 Vin. Ab. 280 Bac. Ab. Execution, H;
Bac. Ab. h. t. 2 Saund. 72 e, note, 3; Doct. Pl. 436 Bouv. Inst.
Index, h. t.
SCIRE FACIAS AD AUDIENDUM ERRORES. The name of a writ which is
sued out after the plaintiff in error has assigned his errors. F.
N. B. 20; Bac. Ab. Error F.
SCIRE FACIAS AD DISPROBANDUM DEBTTUM. The name of a writ in use
in Pennsylvania, which lies by a defendant in foreign attachment
against the plaintiff, in order to enable him, within a year and
a day next ensuing the time of payment to the plaintiff in the
attachment, to disprove or avoid the debt recovered against him.
Act relating to the commencement of actions, s. 61, passed June
13th, 1836.
SCIRE FECI, practice. The return of the sheriff, or other
proper officer, to the writ of scire facias, when it has been
served; scire feci, "I have made known."
SCIRE FIERI INQUIRY, Eng. law. The name of a writ, the history
of the origin of which is as follows: when on an execution de
bonis testatoris against an executor the sheriff returned nulla
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bona and also a devastavit, a fieri fac-ias, de bonis propriis,
might formerly have been issued against the executor, without a
previous inquisition finding a devastavit and a scire facias. But
the most usual practice upon the sheriff's return of nulla bona a
to a fieri facias de bonis testatoris, was to sue out a special
writ of fieri facias de bonis testatoris, with a clause in it,
"et si tibi constare, poterit," that the executor had wasted the
goods, then to levy de bonis propriis. This was the practice in
the king's bench till the time of Charles I.
2. In the common pleas a practice had prevailed in early times
upon a suggestion in the special writ of fieri facias of a
devastavit by the executor, to direct the sheriff to inquire by a
jury, whether the executor had wasted the goods, and if the jury
found he had, then a scire facias was issued out against him, and
unless he made a good defence thereto, an execution de bonis
propriis was awarded against him.
3. The practice of the two courts being different, several
cases were brought into the king's bench on error, and at last it
became the practice of both courts, for the sake of expedition,
to incorporate the fieri facias inquiry, and scire facias, into
one writ, thence called a scire fieri inquiry, a name compounded
of the first words of the two writs of scire facias and fieri
facias, and that of inquiry, of which it consists.
4. This writ recites the fieri facias de bonis testatoris sued
out on the judgment against the executor, the return of nulla
bona by the sheriff, and then suggesting that the executor bad
sold and converted the goods of the testator to the value of the
debt and damages recovered, commands the sheriff to levy the said
debt and damages of the goods of the testator in the hands of the
executor, if they could be but if it should appear to him by the
inquisition of a jury that the executor had wasted the goods of
the testator, then the sheriff is to warn the executor to appear,
&c. If the judgment had been either by or against the testator or
intestate, or both, the writ of fieri facias recites that fact,
and also that the court had adjudged, upon a scire facias to
revive the judgment, that the executor or administrator should
have execution for the debt, &c. Clift's Entr. 659; Lilly's
Entr. 664; 3 Rich. Pr. K. B. 523.
5. Although this practice is sometimes adopted, yet the most
usual proceeding is by action of debt on the judgment, suggesting
a devastavit, because in the proceeding by scire fieri inquiry
the plaintiff is not entitled to costs, unless the executor
appears and pleads to the scire facias. 1 Saund. 219, n. 8. See 2
Archb. Pr. 934.
SCITE. The setting or standing of may place. The seat or
situation of a capital messuage, or the ground on which it Stood.
Jacob, L. D. h. t.
SCOLD. A woman who by her habit of scolding becomes a nuisance
to the neighborhood, is called a common scold. Vide Common Scold.
SCOT AND LOT, Eng. law. The name of a customary contribution,
laid upon all the subjects according to their ability.
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SCOUNDREL. An opprobrious title given to a person of bad
character. General damages will not lie for calling a man a
scoundrel, but special damages may be recovered when there has
been an actual loss. 2 Bouv: Inst. n. 2250; 1 Chit. Pr. 44.
SCRIPT, conv. The original or principal instrument, where there
are part and counterpart. Vide Chirograph; Part, Rescript.
SCRIVENER. A person whose, business it is to write deeds and
other instruments for others; a conveyancer.
2. Money scriveners are those who are engaged in procuring
money to be lent on mortgages and other securities, and lending
such money accordingly. They act also as agents for the purchase
and sale of real estates.
3. To be considered a money scrivener, a person must be
concerned in carrying on the trade or profession as a means of
making a livelihood. He must in the course of his occupation
receive other men's moneys into his trust and custody, to lay out
for them as occasion offers. 3 Camp. R. 538; 2 Esp. Cas. 555.
SCROLL. A mark which is to supply the place of a seal, made
with a pen or other instrument on a writing.
2. In some of the states this has all the efficacy of a seal.
1, S. & R. 72; 1 Wash. 42; 2 McCord, 380; 4 McCord 267; 3
Blackf. 161; 3 Gill & John. 234; 2 Halst. 272. Vide Seal; 2
Serg. & Rawle, 504; 2 Rep. 5. a; Perk. §129. In others, a
scroll has no such effect; and when a suit is brought on an
instrument sealed with a scroll, the act of limitations may be
pleaded to it, as to a simple contract. 2 Rand. 446; 6 Halst.
174; 5 John. 239; 1 Blackf. 241; Griff. Law Reg., answers to
question No 110.
SCUTAGE, old Eng. law. The name of a tax or contribution raised
for the use of the king's armies by those who held lands by
knight's service.
SCYREGEMOTE. The name of a court among the Saxons. It was the
court of the shire, in Latin called curia comitatus, and the
principal court among the Saxons. It was holden twice a year for
determining all causes both ecclesias-tical and secular.
SE DEFENDENDO, criminal law. Defending himself.
2. Homicide, se defendendo, is that which takes place upon a
sudden rencounter, where two persons upon a sudden quarrel,
without premeditation or malice, fight upon equal terms, and one,
before a mortal stroke has been given, declines any further
combat, and retreats as far as he can with safety, and kills his
adversary, through necessity, to avoid immediate death. 2 Swift's
Dig. 289 pamphl. Rep. of Selfridge's, Trial in, 1805 Hawk. bk. 1,
c. 11, s. 13; 2 Russ. on Cr. 543; Bac. Ab. Murder, &c F 2.
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SEA. The ocean; the great mass of waters which surrounds the
land, and which probably extends from pole to pole, covering
nearly three quarters of the globe. Waters within the ebb and
flow of the tide, are to be considered the sea. Gilp. R. 526.
2. The sea is public and common to all people, and every person
has an equal right to navigate it, or to fish there; Ang. on
Tide Wat. 44 to 49; Dane's Abr. c. 68, a. 3, 4; Inst. 2, 1, 1;
and to land upon the sea, shore. (q. v.)
3. Every nation has jurisdiction to the distance of a cannon
shot, (q, v.) or marine league, over the water adjacent to its
shore. 2 Cranch, 187, 234; 1 Circuit Rep. 62; Bynk. Qu. Pub.
Juris. 61; 1 Azuni Mar. Law, 204; Id. 185; Vattel, 207:
SEA LETTER OR SEA BRIEF, maritime law. A document which should
be found on board of every neutral ship; it specifies the nature
and quantity of the cargo, the place from whence it comes, and
its destination. Chit. Law of Nat. 197; 1 John. 192.
SEA SHORE, property. That space of land, on the border of the
sea, which is alternately covered and left dry, by the rising and
falling of the tide or, in other words, that space of land
between high and low water mark. Hargr, Tr. 12; 6 Mass. 435,
439; 1 Pick. 180, 182; 5 Day, 22.
2. Generally, the sea shore belongs to the public. Angell on
Tide Wat. 34, 5; 3 Kent's Com. 347.
3. By the Roman law, the shore included the land as far as the
greatest wave extended in winter; est autem littus, maris,
quatenus hibernus, fluctus maximus excurrit. Inst. lib. 2, t. 1,
s. 3. Littus publicum est eatenus qua maxime fluctus exaestuat.
Dig., lib, 50, t. 16, s. 112.
4. The Civil Code of Louisiana seems to have followed the law
of the Insti-tutes and the Digest, for it enacts, art. 442, that
the "sea shore is that space, of land over which the waters of
the sea are spread in the highest water, during the winter
season." Vide. 5 Rob. Adm. R. 182; Dougl. 425; 1 Halst. R. 1;
2 Roll. Ab. 170; Dyer, 326; 5 Co. 107; Bac. Ab., Courts of
Admiralty,, A; 1 Am. Law Mag. 76; 16 Pet. R. 234, 367 Ang. on
Tide Waters, Index, tit. Shore; 2 Bligh's N, S. 146; 5 M. & W.
327 Merl. Quest. de Droit, mots Rivage de la Mer; Inst. 2, 1, 2;
22 Maine, R. 350. For the law of Mass. vide Dane's Ab. c. 68, a
3, 4.
SEA WEED. A species of grass which grows in the sea.
2. When cast upon land, it belongs to the owner of the land
adjoining the sea shore; upon the grounds, that it increases
gradually, that it is useful as manure and a protection to the
ground, and that it is some compensation for the encroachments of
the sea upon the land. 2 John. R. 313, 323. Vide 5 Verm. R. 223.
3. The French differs from our law in this respect, as sea
weeds there, when cast on the beach, belong to the first
occupant. Dall. Dict. Propriete, art. 3, §2, n. 128.
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SEA WORTHINESS, mer. law. The ability of a ship or other vessel
to make a sea voyage with probable safety: there is, in every
insurance, whether on ship or goods, an implied warranty that the
ship shall be worthy when she sails on the voyage insured; that
is, that she shall be "tight, staunch, and strong, properly
manned, provided with all necessary stores, and in all respects
fit for the intended voyage." Marsh. Ins. 153 2 Phil. Ev. 60 10
Johns. R. 58.
2. The following rules have been established in regard, to the
warranty of sea-worthiness.
3. - 1. That it is of no consequence whether the insured was
aware of the condition of the ship, or not. His innocence or
ignorance is no answer to the fact that the ship was not
sea-worthy.
4. - 2. - The opinion of carpenters who have repaired the
vessel, however they may strengthen the presumption that the ship
is sea-worthy, when it is favorable, is not conclusive of the
fact of sea-worthiness. 4 Dow's Rep. 269.
5. - 3. The presumption, prima facie, is for sea-worthiness. 1
Dow's R. 336; And it is presumed that a vessel continues
sea-worthy, if she was so at the inception of the risk. 20 Pick.
389. See 1 Brev. 252.
6. - 4. Any sort of disrepair left in the ship, by which she,
or the cargo may suffer, is a breach of the warranty of
sea-worthiness.
7. - 5. A deficiency of force in the crew, or of skill in the
master, mate, &c., is a want of sea-worthiness. 1 Campb. 1; 14
East, R. 481. But if there was once a sufficient crew, their
temporary absence will not be considered a breach of the
warranty. 2 Barn. & Ald. 73; 1 John. Cas. 184; 1 Pet. 183.
8. - 6. A vessel may be rendered not sea-worthy by being
overloaded. 2 Barn. & Ald . 320.
9. - 7. When the sea-worthiness arises from justifiable
ignorance of the cause of the defect, and is discovered and
remedied before any injury occurs, it is not to be considered as
a defect. Ib. See, generally, 2 John. 124, 129; 3 John. Cas. 76;
1 John. 241; 1 Caines, 217 3 S. & R. 25 1 Whart. 399.
10. By an act of congress, approved July 20, 1840, as amended,
by the act of July 29, 1850, it is provided, that if the first
officer, (or a second and third officer,) and a majority of the
crew of any vessel, shall make complaint in writing that she is
in an unsuitable condition to go to sea, because she is leaky, or
insufficiently supplied with sails, rigging, anchors, or any
other equipment, or that the crew is insufficient to man her, or
that her provisions, stores, and supplies are not, or have not
been, during the voyage, sufficient and wholesome, thereupon, in
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any of these or like cases, the consul or commercial agent who
may discharge any duties of a consul shall appoint two
disinterested, competent, practical men, acquainted with maritime
affairs, to examine into the causes of complaint, who shall, in
their report, state what defects and deficiencies, if any they
find to be well founded, as well as what, in their judgment ought
to be done, to put the vessel in order for the continuance of her
voyage.
SEAL, conveyancing, contracts. A seal is an impression upon
wax, wafer, or some other tenacious substance capable of being
impressed. 5 Johns. R. 239. Lord Coke defines a seal to be wax,
with an impression. 3 Inst. 169. " Sigillum," says he, "est cera
impressa, quia cera sine impressione non est sigillum." This is
the common law definition of a seal. Perk. 129, 134; Bro. tit.
Faits, 17, 30; 2 Leon 21; 5 John. 239; 2 Caines, R. 362; 21
Pick. R. 417.
2. But in Pennsylvania, New Jersey, and the southern and
western states generally, the impression upon wax has been
disused, and a circular, oval, or square mark, opposite the name
of the signer, has the same effect as a seal the shape of it
however is indifferent; and it is usually written with a pen. 2
Serg. & Rawle, 503; 1 Dall. 63; 1 Serg. & Rawle, 72; 1 Watts,
R. 322; 2 Halst. R. 272.
3. A notary must use his official seal, to authenticate his
official acts, and a scroll will not answer. 4 Blackf. R. 185. As
to the effects of a seal, vide Phil. Ev. Index, h. t. Vide,
generally, 13 Vin. Ab. 19; 4 Kent, Com. 444; 7 Caines' Cas. 1;
Com. Dig. Fait, A 2.
4. Merlin defines a real to be a plate of metal with a flat
surface, on which is engraved the arms of a prince or nation, or
private individual or other device, with which an impression may
be made on wax or other substance on paper or parchment, in order
to authenticate them: the impression thus made is also called a
seal. Repert. mot Sceau; 3 McCord's R. 583; 5 Whart. R. 563.
5. When a seal is affixed to an instrument, it makes it a
specialty, (q. v.) and whether the seal be affixed by a
corporation or an individual the effect is the same. 15 Wend.
256.
6. Where an instrument concludes with the words, "witness our
hands and seals," and is signed by two persons, with only one
seal, the jury may infer, from the face of the paper, that the
person who signed last, adopted the seal of the first. 6 Penn.
St. Rep. 302. Vide 9 Am Jur. 290-297; 1 Ohio Rep. 368; 3 John.
470. 12 ohu. 76; as to the origin and use of seals, Addis. on
Cont. 6; Scroll.
7. The public seal of a foreign state, proves itself; and
public acts, decrees and judgments, exemplified under this seal,
are received as true and genuine. 2 Cranch, 187, 238; 4 Dall.
416; 7 Wheat. 273, 335; 1 Denio, 376; 2 Conn. 85, 90; 6 Wend.
475; 9 Mod. 66. But to entitle its seal to such authority, the
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foreign state must have been acknowledged by the government,
within whose jurisdiction the forum is located. 3 Wheat. 610; 9
Ves. 347.
SEAL-OFFICE, English practice. The office at which certain
judicial writs are sealed with the prerogative seal, and without
which they are of no author-ity. The officer whose duty it is to
seal such writs is called "sealer of writs;"
SEAL OF THE UNITED STATES, government. The seal used by the
United States in congress assembled, shall be the seal of the
United States, viz.: ARMS, pale-ways of thirteen pieces argent
and gules; a chief azure; the escutcheon on the breast of the
American eagle displayer proper, holding in his dexter talon, an
olive branch, and in his sinister, a bundle of thirteen arrows,
all proper, and in his beak a scroll, inscribed with this motto,
"E pluribus unum." For the CREST: over the head of the eagle
which appears above the escutcheon, a glory, or breaking through
a cloud, proper, and surrounding thirteen stars, forming a
constellation argent on an azure field. REVERSE, a pyramid
unfin-ished. In the zenith an eye in a triangle, surrounded with
a glory proper: over the eye, these words, "Annuit caeptis." On
the base of the pyramid, the numerical letters, MDCCLXXVI; and
underneath, the following motto, "Novus ordo sectorum."
Resolution of Congress, June 20, 1782; Gordon's Dig. art. 207.
SEALING OF A VERDICT, practice. The putting a verdict in
writing, and placing it in an envelop, which is sealed. To
relieve jurors after they have agreed, it is not unusual for the
counsel to agree that the jury shall seal their verdict, and then
separate. When the court is again in session, the jury come in
and give their verdict, in all respects as if it had not been
sealed, and a juror may dissent from it, if since the sealing, he
has honestly changed his mind. 8 Ham. 405; Gilm. 333; 3 Bouv.
Inst. n. 3257.
SEALS, matters of succession. On the death of a person,
according to the laws of Louisiana, if the heir wishes to obtain
the benefit of inventory, and the delays for deliberating, he is
bound as soon as he knows of the death of the deceased to whose
succession he is called, and before committing any act of
heirship, to cause the seals to be affixed on the effects of the
succession, by any judge or justice of the peace. Civ. Code, of
Lo. art. 1027.
2. In ten days after this affixing of the seals, the, heir is
bound to present a petition to the judge of the place in which
the succession, is opened, praying for the removal of the seals,
and that a true and faithful inventory of the effects of the
succession be made. Id. art. 1028.
3. In case of vacant estates, and estates of which the heirs
are absent and not represented, the seals, after the decease,
must be affixed by a judge or justice of the peace within the
limits of his jurisdiction, and may be fixed by him, either ex
officio, or at the request of the parties. Civ. Code of Lo. art.
1070. The seals are affixed at the request of the parties, when a
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widow, a testamentary executor, or any other person who pretends
to have an interest in a succession or community of property,
requires it. Id. art. 1071.; They are affixed ex officio, when
the presumptive heirs of the deceased do not all reside in the
place where be died, or if any of them happen to be absent. Id.
art 1072.
4. The object of placing the seals on the effects of a
succession, is for the purpose of preserving them, and for the
interest of third persons. Id. art. 1068.
5. The seals must be placed on the bureaus, coffers, armoires,
and other things, which contain the effects and papers of the
deceased, and on the doors of the apartments which contain these
things, so that they cannot be opened without tearing off,
breaking, or altering the seals. Id. art. 1069.
6. The judge or justice of the peace, who affixes the seals, is
bound to appoint guardian, at the expense of the succession, to
take care of the seals and of the effects, of which an account is
taken at the end of the proces-verbal of the affixing of the
seals; the guardian must be domiciliated in the plaze where the
inventory is taken. Id. art. 1079. And the judge; when he
retires, must take with him the keys of all things and apartments
upon which the seals have been affixed. lb.
7. The raising of the seals is done by the judge of the place,
or justice of the peace appointed by him to that effect, in the
presence of the witnesses of the vicinage, in the same manner as
for the affixing of the seals. Id. art. 1084. See, generally;
Benefit of Inventory, Succession; Code de Pro. Civ. 2e part.
lib. 1, t. 1, 2, 3; Dict. de Jurisp. Scelle.
SEAMAN. A sailor; a mariner; one whose business is
navigation. 2 Boulay Paty, Dr. Com. 232; Code de Commerce art.
262; Laws of Oleron, art. 7; Laws of Wishuy, art. 19. The term
seamen, in it most enlarged sense, includes the captain a well as
other persons of the crew; in a more confined signification, it
extends only to the common sailors; 3 Pardes. n. 667; the mate;
1 Pet. Adm. Dee. 246; the cook and steward; 2 Id. 268; are
considered, as to their rights to sue in the admiralty, as common
seamen; and persons employed on board of steamboats and
lighters, engaged in trade or commerce, on tide water, are within
the admiralty jurisdiction, while those employed in ferry boats
are not. Gilp. R. 203, 532. Persons who do not contribute their
aid in navigating the vessel or to its preservation in the course
of their occupation, as musicians, are not to be considered as
seamen with a right to sue in the admiralty for their wages.
Gilp. R. 516, See 1 Bell's Com. 509, 5th ed.; 2 Rob. Adm. R.
232; Dunl. Adm. Pr. h . t.
2. Seamen are employed either in merchant vessels for private
service, or in public vessels for the service of the United
States.
3. - 1. Seamen in the merchant vessels are required to enter
into a contract in writing commonly called shipping articles. (q.
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v.) This contract being entered into, they are bound under,
severe penalties, to render themselves on board the vessel
according to the agreement: they are not at liberty to leave the
ship without the consent of the captain or commanding officer,
and for such absence, when less than forty-eight hours, they
forfeit three day's wages for every day of absence; and when the
absence is more than forty-eight hours, at one time, they forfeit
all the wages due to them, and all their goods and chattels which
were on board the vessel, or in any store where they may have
been lodged at the time of their desertion, to the use of the
owners of the vessel, and they are liable for damages for hiring
other hands. They may be imprisoned for desertion until the ship
is ready to bail.
4. On board, a seaman is bound to do his duty to the utmost of
his ability; and when his services are required for
extraordinary exertions, either in consequence of the death of
other seamen, Or on account of unforeseen perils, he is not
entitled to an increase of wages, although it may have been
promised to him. 2 Campb. 317; Peake's N. P. Rep. 72; 1 T. R.
73. For disobedience of orders he may be imprisoned or punished
with stripes, but the correction (q. v.) must be reasonable; 4
Mason, 508; Bee, 161; 2 Day, 294; 1 Wash. C. C. R. 316; and,
for just cause, may be put ashore in a foreign country. 1 Pet.
Adm. R. 186; 2 Ibid. 268; 2 East, Rep. 145. By act of Congress,
September 28, 1850, Minot's Stat. at Large, U. S. p. 515, it is
provided, that flogging in the navy and on board vessels of
commerce, be, and the same is hereby abolished from and after the
passage of this act.
5. Seamen are entitled to their wages, of which one-third is
due at every port at which the vessel shall unlade and deliver
her cargo, before the voyage be ended; and at the end of the
voyage an easy and speedy remedy is given them to recover all
unpaid wages. When taken sick a seaman is entitled to medical
advice and aid at the expense of the ship: such expense being
considered in, the nature of additional wages, and as
constituting a just remuneration for his labor and services.
Gilp. 435, 447; 2 Mason, 541; 2 Mass. R. 541.
6. The right of seamen to wages is founded not in the shipping
articles, but in the services performed; Bee, 395; and to
recover such wages the seaman has a triple remedy, against the
vessel, the owner, and the master. Gilp. 592; Bee, 254.
7. When destitute in foreign ports, American consuls and
commercial agents are required to provide for them, and for their
passages to some port of the United States, in a reasonable
manner, at the expense of the United States; and American
vessels are bound to take such seamen on board at the request of
the consul, but not exceeding two men for every hundred tons of
the ship, and transport them to the United States, on such terms,
not exceeding ten dollars for each person, as may be agreed on.
Vide, generally, Story's Laws U. S. Index, h. t.; 3 Kent, Com,
136 to 156; Marsh. Ins. 90; Poth. Mar. Contr. translated by
Cushing, Index, h. t.; 2 Bro. Civ. and Adm. Law, 155.
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8. - 2. Seamen in the public service are governed by particular
laws.
SEAMEN'S FUND. By the act of July 16, 1798, a provision is made
for raising a fund for the relief of disabled and sick seamen:
the master of every vessel arriving from a foreign port into the
United States is required to pay to the collector of customs at
the rate of twenty cents per month for every seaman employed on
board of his vessel, which sum he may, retain out of the wages of
such seaman: vessels engaged in the coasting trade, and boats,
rafts or flats navigating the Mississippi, with intention to
proceed to New Orleans, are also laid under similar obligations.
The fund thus raised is to be employed by the president of the
United States as circumstances shall require, for the benefit and
convenience of sick and disabled American seamen. Act of March 3,
1802, s. 1.
2. By the act of congress, passed February 28, 1803, c. 62, 2
Story's L. U. S. 884, it is provided, that when a seaman is
discharged in a foreign country with his own consent, or when the
ship is sold there, he shall, in addition to his usual wages, be
paid three months' wages into the hands of the American consul,
two-thirds of which are to be paid to such seaman, on his
engagement on board any vessel to return home, and the remaining
one-third is retained in aid of a fund for the relief of
distressed American seamen in foreign ports. See 11 John. R. 66;
12 John. Rep. 143; 1 Mason, R. 45; 4 Mason, R. 541; Edw. Adm.
R. 239.
SEARCH, crim. law. An examination of a man's house, premises or
person, for the purpose of discovering proof of his guilt in
relation to some crime or misdemeanor of which be is accused.
2. The constitution of the United. States, amendments, art. 4,
protects the people from unreasonable searches and seizures. 3
Story, Const. §1895; Rawle, Const. ch. 10, p. 127; 10 John. R.
263; 11 John. R. 500; 3 Cranch, 447.
3. By the act of March 2, 1799, s. 68, 1 Story's L. U. S. 632,
it is enacted, that every collector, naval officer, and surveyor,
or other person specially appointed, by either of them, for that
purpose, shall have fall power and authority to enter any ship or
vessel, in which they shall have reason to suspect any goods,
wares, or merchandise, subject to duty, are concealed, and
therein to search for, seize, and secure any such goods, wares,
or merchandise; and if they shall have cause to suspect a
concealment thereof in any particular dwelling house, store,
building, or other place they or either of them shall; upon
proper application, on oath, to any justice of the peace, be
entitled to a warrant to enter such house, store, or other place,
(in the day time only, and there to search for such goods; and
if any shall be found, to seize and secure the same for trial;
and all such goods, wares, and merchandise, on which the duties
shall not have been paid, or secured to be paid, shall be
forfeited.
SEARCH, practice. An examination made in the proper lien office
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for mortgages, liens, judgments, or other encumbrances, against
real estate. The certificate given by the officer as to the
result of such examination is also called a search.
2. Conveyancers and others who cause searches to be made ought
to be very careful that they should be correct, with regard, 1.
To the time during which the person against whom the search has
been made owned the premises. 2. To the property searched
against, which ought to be properly described. 3. To the form of
the certificate of search.
SEARCH, RIGHT OF, mar. law. The right existing in a belligerent
to examine and inspect the papers of a neutral vessel at sea. On
the continent of Europe, this is called the right of visit.
Dalloz, Dict. mots Prises Maritimes, n. 104-111.
2. The right does not extend to examine the cargo; nor does it
extend to a ship of war, it being strictly confined to the
searching of merchant vessels. The exercise of the right is to
prevent the commerce of contraband goods. Although frequently
resisted by powerful neutral nations, yet this right appears now
to be fixed beyond contravention. The penalty for violently
resisting this right is the confiscation of the property so
withheld from visitation. Unless in extreme cases of gross abuse
of his right by a belligerent, the neutral has no right to resist
a search. 1 Kent, Com. 154; 2 Bro. Civ. and Adm. Law, 319;
Mann. Comm. B. 3, c. 11.
SEARCH WARRANT, crim. law, practice. A warrant (q. v.)
requiring the officer to whom it is addressed, to search a house
or other place therein specified, for property therein alleged to
have been stolen; and if the same shall be found upon such
search, to bring the goods so found, together with the body of
the person occupying the same, who is named, before the justice
or other officer granting the warrant, or some other justice of
the peace, or other lawfully authorized officer. It should be
given under the hand and seal of the justice, and dated.
2. The constitution of the United States, amendments, art. 4,
declares that "the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated; and no warrants
shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the person or things to be seized."
3. Lord Hale, 2 P. C. 149, 150, recommends great caution in
granting such warrants. 1. That they be, not granted without oath
made before a justice of a felony committed, and that the
complainant has probable cause to suspect they are in such a
house or place, and his reasons for such suspicion. 2. That such
warrants express that the search shall be made in day time. 3.
That they ought to be directed to a constable or other proper
officer, and not to a private person. 4. A search warrant ought
to command the officer to bring the stolen goods and the person
in whose custody they are, before some justice of the peace. Vide
1 Chit. Cr. Law, 57, 64; 4 Inst. 176; Hawk. B. 2, c. 13, s. 17,
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n. 6; 11 St. Tr; 321; 2 Wils. 149, 291; Burn's Just. h. t.;
Williams' Just. h. t.
SEARCHER, Eng. law. An officer of the customs, whose duty it is
to examine and search all ships outward bound, to ascertain
whether they have any prohibited or uncustomed goods on board.
SECK. This word has two significations. 1. It means a warrant
of remedy by distress. Litt. s. 218; and vide Rent. 2. It
imports want of present fruit or profit, as in the case of the
reversion without rent or other service, except fealty. Co. Litt.
151 b, note 5.
SECOND. A measure equal to one sixtieth part of a minute. Vide
Measure.
SECOND DELIVERANCE, practice. The name of a writ given by
statute of Westminster the second, 13 Edw. 1. c. 2, founded on
the record of a former action of replevin. 2 Inst. 341. It
commands the sheriff, if the plaintiff make him secure of
prosecuting his claim, and returning the chattels which were
adjudged to the defendant by reason of the plaintiff's default,
to make deliver-ance. On being nonsuited, the plaintiff in
replevin might, at common law, have brought another replevin, and
so in infinitum, to the intolerable vexation of the defendant.
The statute of Westminster restrains the plaintiff When nonsuited
from so doing, but allows him this writ, issuing out of the
original record, in order to have the same distress delivered
again to him, on his giving the like security as before. 3 Bl.
Com. 150,; Hamm. N. P. 495; F. N. B. 68; 19 Vin. Ab. 1.
SECOND SURCHARGE, WRIT OF. The name of a writ issued in England
against a commoner who has a second time surcharged the common. 3
Bl. Com. 239.
SECONDARY, construction. That which comes after the first,
which is primary: as, the primary law of, nations the secondary
law of nations.
SECONDARY, English law. An officer who is second or next to the
chief officer; as secondaries to the prothonotaries of the
courts of king's bench, or common pleas; secondary of the
remembrancer in the exchequer, &c. Jacob, L. D. h. t.
SECONDARY EVIDENCE. That species of proof which is admissible
on the loss of primary evidence, and which becomes, by that
event, the best evidence. 3 Bouv. Inst. n. 3055.
SECONDS, crim. law. Those persons who assist, direct and
support others engaged in fighting a duel.
2. As they are often much to blame in inciting the duellists to
their rash act, and as they are always assisting in the
commission of the crime, the laws generally punish them with
severity but, in consequence of the false ideas too generally
entertained on the subject of honor, the are too seldom enforced.
SECRET. That which is not to be revealed.
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2. Attorneys and counsellors, who have been trusted
professionally with the secrets of their clients, are not allowed
to reveal them in a court of justice. The right of secrecy
belongs to the client, and not to the attorney and counsellor.
3. As to the matter communicated, it extends to all cases where
the client applies for professional advice or assistance; and it
does not appear that the protection is qualified by any reference
to proceedings pending or in contem-plation. Story, Eq. Pl. §600;
1 Milne & K. 104; 3 Sim. R. 467.
3. Documents confided professionally to the counsel cannot be
demanded, unless indeed the party would himself be bound to
produce them. Hare on Discov. 171. Grand jurors are sworn the
commonwealth's secrets, their fellows and their own to keep. Vide
Confidential comunications; Witness.
SECRET, rights. A knowledge of something which is unknown to
orthers, out of which a profit may be made; for example, an
invention of a machine, or the discovery of the effect of the
combination of certain matters.
2. Instances have occurred of secrets of that kind being kept
for many years, but they are liable to constant detection. As
such secrets are not pro-perty, the possessors of them in general
prefer making them public, and securing the exclusive right for
years, under the patent laws, to keeping them in an insecure
manner, without them. See Phil. on Pat. ch. 15; Gods. on Pat.
171; Dav. Pat. Cas. 429; 8 Ves. 215; 2 Ves. & B. 218; 2 Mer.
446; 3 Mer. 157; 1 Jac. & W. 394; 1 Pick. 443; 4 Mason, 15;
3 B. & P. 630.
SECRETARY. An officer who, by order of his superior, writes
letters and other instruments. He is so called because he is
possessed of the secrets of his employer. This term wag used in
France in 1343, and in England the term secretary was first
applied to the clerks of the king, who being always near his
person were called clerks of the secret, and in the reign of
Henry VIII. the term secretary of state came into it.
SECRETARY OF EMBASSY or OF LEGATION. An officer appointed by
the sovereign power, to accompany a minister of first or secoud
rank, and sometimes, though not often, of an inferior rank. He
is, in fact, a species of public minister; for independently of
his protection as attached to an ambassador's suite, be enjoys,
in his own rights, the same protection of the law of nations, and
the same immunities as an ambassador. But private secretaries of
a minister must Dot be confounded with secretaries of embassy or
of legation. Such private secretaries are entitled to protection
only as belonging to the suite of the ambassador.
2. The functions of a secretary of legation consist in his
employment by his minister for objects of ceremony; in making
verbal reports to the secretary of state, or other foreign
ministers; in taking care of the archives of the mission; in
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ciphering and deciphering despatches; in sometimes making rough
draughts of the notes or letters whicb the minister writes to his
colleagues or to the local authorities; in drawup proces
verbaux; in presenting passports to the minister for his
signature, and delivering them to the persons for whom they are
intended; and, finally, in assisting the minister, under whom be
is placed, in everything concerning the affairs of the mission.
In the absence of the minister he is admitted to conferences and
to present notes signed by the minister. Vide Ambassador;
Minister; Suite.
SECRETARY OF LEGATION. An officer employed to attend a foreign
mission, and to perform certain duties as clerk.
2. His salary is fixed by the act of congress of May 1, 1810,
s. 1, at such a sum as the president of the United States may
allow, not exceeding two thousand dollars.
3. The salary of a secretary of embassy, or the secretary of a
minister plenipotentiary, is the same as that of a secretary of
legation.
SECRETARY OF THE NAVY, government. This officer is appointed by
the president. His duties are to execute all such orders as he
shall receive from the president, relative to the procurement of
naval stores and materials, and the construction, armament,
equipment and employment of vessels of war; as well as all other
matters connected with the naval establishment of the United
States; act of 30th April, 1798, s. 1, 1 Story's Laws, 498; he
appoints his own clerks and subordinate officers. Various other
duties are imposed upon him by sundry acts of congress. Vide
Gordon's Dig. art. 370 to 375.
2. His salary is six thousand dollars. Act of 20th Feb. 1819, 3
Story's Laws, 1720.
SECRETARY OF STATE OF THE UNITED STATES, government. The
principal officer in the Department of State. (q. v.) He shall
perform such duties as shall be enjoined on or entrusted to him
by the president, agreeably to the constitution, refative to the
correspondences, commissions or instructions to or with public
ministers or consuls from the United States, or to negotiations
with foreign states or princes, or to memorials or other
applications from foreign public ministers or foreigners, or to
such other matters respecting foreign affairs as the president of
the United States shall assign to such department. The secretary
shall conduct the business of his department in such manner as
the president shall, from time to time, order or instruct. Act of
27th July, 1789 act of 15th Sept: 1789, s. 1. Besides these
general laws, there are various, others which impose upon him
inferior and less important duties.
2. His salary is six thousand dollars per annum. Act of 20th
Feb. 1819.
SECRETARY OF THE TREASURY OF THE UNITEE STATES, government. An
officer appointed by the president. His principal duties are, 1.
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To superintend the collection of the revenue. 2. To digest,
prepare, and lay before congress at the commencement of every
session, a report on the subject of finance. 3. To annex to the
annual estimates of the appropriations required for the public
service, a statement of the appropriations for the service of the
year, which may have been made by former acts. 4. To give
information to either house of congress, respecting all matters
connected with his office. Besides these, there are other minor
duties imposed upon him by various acts of congress.
2. His salary is six thousand dollars. Gord. Dig. art. 249 to
262.
SECRETARY FOR THE DEPARTMENT OF WAR, government. This officer
is appointed by the president. He is required to perform and
execute such duties as shall, from time to time, be enjoined on
or entrusted to him by the president, agreeably to the
constitution, relative to military commissions or to the land
forces, or warlike stores of the United States, or to such other
matters respecting military affairs as the president shall assign
to the department of war, (q. v.) or relative to granting of
lands to persons entitled thereto for military services rendered
to the United States, or relative to Indian affairs. Act of 27th
Aug., 1789, 1 Story's Laws, 31.
2. His salary is six thousand dollars per annum. Act of 20th
Feb. 1819, 3 Story's Laws, 1720.
3. Various other duties are imposed upon the secretary by
sundry acts of congress. Vide Laws, Index, Departments, &c.;
Gordon's Dig. art. 368 to 382.
SECTA pleading. In ancient times the plaintiff was required to
establish the truth of his declaration in the first instance, and
before it was called in question, upon the pleading, by the
simultaneous production of his secta, that is, a number of
persons prepared to confirm his allegations. Bract. 214, a.
2. The practice of thus producing a secta, gave rise to the
very. ancient formula almost invariably used at the conclusion of
a declaration, as entered on the record, et inde producit sectam;
and, though the actual production has, for many centuries, fallen
into disuse, the formula still remains. Accordingly, except the
count on a writ of right, and in dower, all declarations
constantly conclude thus, "And therefore he brings his suit, &c.
The count on a writ of right did not, in ancient times, conclude
with the ordinary production of suit, but with the following
formula peculiar to itself, "Et quod tale sit jus suum offert
disrationare per corpus, talis liberi hominis, &c., and it
concludes, at the present day, with an abbreviated. translation
of the same phrase: "And, that such is his right, he offers,"
&c. The count in dower is an exception to the rule in question,
and concludes without any production of suit, a peculiarity which
appears always to have belonged to that action. Steph. Pl. 427,
8; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399.
SECTION OF LAND. The lands of the United States are surveyed
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into parcels of six hundred and forty acres; each such parcel is
called a section. 1 Story's L. U. S. 422.
2. These sections are divided into half sections, each of which
contains three hundred and twenty acres, and into quarter
sections of one hundred and sixty acres each.
SECTORES. Among the Romans the bidders at an auction were so
called. Bab. on Auct. 2.
TO SECURE. To protect, insure, or save a right.
2. The constitution of the United States, art. 1, s. 8, gives
power to congress "to promote the progress of science and the
useful arts by securing, for Iimited times, to authors and
inventors the exclusive right to their respective writings and
discoveries." The inventor of a machine has the right to it
exclusively at common law, and the author a right to his
manuscript. But they may abandon the, right by publishing the
book without having secured a copy-right, (q. v.) or by using
publicly the machine, and suffering others to use it, without
having obtained a patent. (q. v.) Vide Secret.
SECURITY. That which renders a matter sure; an instrument
which renders certain the performance of a contract. The term is
also sometimes applied to designate a person who becomes the
surety for another, or who engages himself for the performance of
another's contract. See 3 Blackf. R. 431.
SECURITY FOR COSTS, practice. In some courts there is a rule
that when the plaintiff resides abroad he shall give security for
costs, and until that has been done, when demanded, he cannot
proceed in his action.
2. This is a right which the defendant must claim in proper
time, for if he once waives it, he cannot afterwards claim it;
the waiver is seldom, or perhaps never expressly made, but is
generally implied from the acts of the de-fendant. When the
defendant had undertaken to accept short notice of trial; 2 Hen.
Bl. 573; 3 Taunt. 272 or after issue joined, and when he knew of
plain-tiff's residence abroad; or, with such knowledge, when the
defendant takes any step in the cause these several acts will
amount to a waiver. 5 Bar & Ald. 702; S. C. 1 Dow. & Ryl. 348;
1 M. & P. 30; S. C. 17 E. C. L. R. 164. Vide 3 John. Ch. R. 520;
1 John. Ch. Rep. 202; 1 Ves. jun. 396.
3. The fact that the defendant is out of the jurisdiction of
the court, will not, alone, authorize the requisition of security
for costs; he must have his domicil abroad. 1 Ves. jr. 396.
When, the defendant resides abroad, he will be required to give
such security, although he is a foreign prince. 33 E. C. L. Rep.
214. Vide 11 S. & Rawle, 121 1 Miles, R. 321; 2 Miles, 402.
SECUS. Otherwise.
SEDITION, crimes. The raising commotions or disturbances in the
state; it is a revolt against legitimate authority, Ersk. Princ.
Laws, Scotl. b. 4, t. 4, s. 14; Dig. Lib. 49, t. 16, 1. 3, §19.
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2. The distinction between sedition and treason consists in
this, that though its ultimate object is a violation of the
public peace, or at least such a course of measures as evidently
engenders it, yet it does not aim at direct and open violence
against the laws, or the subversion of the constitution. Alis.
Crim. Law of Scotl. 580.
3. The. obnoxious and obsolete act of July 14, 1798, 1 Story's
Laws U. S. 543, was called the sedition law, because its
professed object was to prevent disturbances.
4. In the Scotch law, sedition is either verbal or real. Verbal
is inferred from the uttering of words tending to create discord
between the king and his people; real sedition is generally
committed by convocating together any considerable number of
people, without lawful authority, under the pretence of
redressing some public grievance, to the disturbing of the public
peace. 1 Ersk. ut supra.
SEDUCTION. The offence of a man who abuses the simplicity and
confidence of a woman to obtain by false promises what she ought
not to grant.
2. The woman being particeps criminis, has no remedy for the
mere seduction, nor is there, to the discredit of the law, a
direct remedy in her parents. The seducer may be sued, though
not. directly or ostensibly for the seduction; but for the
consequent inability to perform those services for which she was
accountable to her master, or to her parent, who, for this
purpose, is obliged to assume that less endearing relation; and
if it cannot be proved that she filled that office, the action
cannot be sustained. 7 Mann. & Gr. 1033. It follows, therefore,
that when the daughter is of full age, and the father is not
entitled to her services, and actually, she is not in his
service, the father can maintain no action for the seduction. 5
Harr. & J. 27; 1 Wend. 447; 3 Pennsyl. 49; 10 John. 115. Vide
2 Watts 474; 9 John. 387; 2 Wend. 459; 5 Cowen 106; 2 Penn.
583; 6 Munf. 587; 2 A. K. Marsh. 128; 2 Overt. 93; 9 John. R.
387; 2 New Reports, 476; 6 East, 887; Peake's Rep. 253; 11
East, 24; 5 East, 45; 2 T. R. 4; 2 Selw. N. P. 1001; 2 Phil.
Ev. 156; 3 Chitt. Bl. Com. 140, n.; 7 Com. Dig. 318; 6 M. & W.
55.
SEEDS. The substance which nature prepares for the reproduction
of plants or animals.
2. Seeds which have been sown in the earth immediately become a
part of the land in which they have been sown; quae sata solo
cedere intelliguntur. Inst. 2, 1, 32.
SEIGNIOR or SEIGNEUR. Among the feudists, this name signified
lord of the fee. F. N. B. 23. The most extended signification of
this word includes not only a lord or peer of parliament, but is
applied to the owner or proprietor of a thing; hence, the owner
of a hawk, and the master of a fishing vessel, is called a
seigneur. 37 Edw. Ill. c. 19; Barr. on the Stat. 258.
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SEIGNIORY, Eng. law. The rights of a lord as such, in lands.
Swinb. 174.
SEISIN, estates. The possession of an estate of freebold. 8 N.
H. Rep. 57; 3 Hamm. 220; 8 Litt. 134; 4 Mass. 408. Seisin was
used in contradistinction to that precarious kind of possession
by which tenants in villenage held their lands, which was
considered to be the possession of their lords in, whom the
freehold continued.
2. Seisin is either in fact or in law.
3. Where a freehold estate is conveyed to a person by
feoffment, with livery of seisin, or by any of those conveyances
which derive their effect from the statute of uses, he acquires a
seisin in deed or in fact, and a freehold in deed: but where the
freehold comes to a person by act of law, as by descent, he only
acquires a seisin in law, that is, a right of possession, and
his-estate is called a freehold In law.
4. The seisin in law, which the heir acquires on the death of
his ancestor, May be defeated by the entry of a stranger,
claiming a right to the land, which is called an abatement. (q.
v.)
5. The actual seisin of an estate may be lost by the forcible
entry of a stranger who thereby ousts or dispossesses the owner
this act is called a disseisin. (q. v.)
6. According to Lord Mansfield, the various alterations which
have been made in the law for the last three centuries, "have
left us but the name of feoffment, seisin, tenure, and,
freeholder, without any precise knowledge of the thing originally
signified by these sounds."
7. In the United States, a conveyance by deed executed and
acknowledged, and properly recorded according to law, and the
descent cast upon the heir are, in general, considered as a
seisin in deed without entry; and a grant by letters- patent
from the commonwealth has the same effect. 4 Mass. R. 546; 7
Mass. R. 494; 15. Mass. R. 214 1 Munf. R. 17O. The recording of
a deed is equivalent to livery of seisin. 4 Mass. 546.
8. In Pennsylvania, Connecticut, Massachusetts and Ohio, seisin
means merely, ownership, and the distinction between seisin in
deed and in law is not known in practice. Walk. Intr. 324, 330;
1 Hill. Abr. 24 4 Day, R. 305; 4 Mass.; R. 489 14 Pick. R. 224.
A patent by the commonwealth, in Kentucky, gives a, right entry,
but not actual seisin. 3 Bibb, Rep. 57. Vide 1 Inst. 31; 19 Vin.
Ab. 306; Dane's Abr. c. 104, a. 3; 4 Kent, Com. 2, 381;
Cruise's Dig. t. 1, §23; Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 1,
n. 80; Poth. Traite des Fiefs, part 1, c. 2; 3 Sumn. R. 170.
Vide Livery of Seisin.
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SEIZURE, practice. The act of taking possession of the property
of a person condemned by the judgment of a competent tribunal, to
pay a certain sum of money, by a sheriff, constable, or other
officer, lawfully authorized thereto, by virtue of an execution,
for the purpose of having such property sold according to law to
satisfy the judgment. By seizure is also meant the taking
possession of goods for a violation of a public law; as the
taking possession of a ship for attempting an illicit trade. 2
Cranch, 18 7; 6 Cowen, 404; 4 Wheat. 100; 1 Gallis. 75; 2
Wash. C. C. 127, 567.
2. The seizure is complete as soon as the goods are within the
power of the officer. 3 Rawle's Rep. 401; 16 Johns. Rep. 287; 2
Nott & McCord, 392; 2 Rawle's Rep. 142; Wats. on Sher. 172;
Com. Dig. Execution, C 5.
3. The taking of part of the goods in a house, however, by
virtue of a fieri facias in the name of the whole, is a good
seizure of all. 8 East, R. 474. As the seizure must be made by
virtue of an execution, it is evident that it cannot be made
after the return day. 2 Caine's Rep. 243; 4 John. R. 450. Vide
Door; House; Search Warrant.
SELECTI JUDICES. Judges among the Romans who were selected very
much like our juries. They were returned by the praetor, drawn by
lot, subject to be challenged and sworn. 3 Bl. Com. 366.
SELF-DEFENCE, crim. law. The right to protect one's person and
property from injury.
2. It will be proper to consider, 1. The extent of the right of
self-defence. 2. By whom it may be exercised. 3. Against whom. 4.
For what causes.
3. - 1. As to the extent of the right, it may be laid down,
first, that when threatened violence exists, it is the duty of
the person threatened to use all, prudent and precautionary
measures to prevent the attack; for example, if by closing a
door which was usually left open, one could prevent an attack, it
would be prudent, and perhaps the law might require, that it
should be closed, in order to preserve the peace, and the
aggressor might in such case be held to bail for his good
behaviour; secondly, if, after having taken such proper
precautions, a party should be assailed, he may undoubtedly repel
force by force, but in most instances cannot, under the pretext
that he has been attacked, use force enough to kill the assailant
or hurt him after he has secured himself from danger; as, if a
person unarmed enters a house to commit a larceny, while there he
does not threaten any one, nor does any act which manifests an
intention to hurt any one, and there are a number of persons
present, who may easily secure him, no one will be justifiable to
do him any injury, much less to kill him; he ought to be secured
and delivered to the public authorities. But when an attack is
made by a thief under such circumstances, and it is impossible to
ascertain to what extent he may push it, the law does not requite
the party assailed to weigh with great nicety the probable extent
of the attack, and he may use the most violent means against his
assailant, even to the taking of his life. For homicide may be
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excused, se defendendo, where a man has no other probable means
of preserving his life from one who attacks him, while in the
commission of a felony, or even on a sudden quarrel, he beats
him, so that he is reduced to this inevitable necessity. Hawk.
bk. 2, c. 11, s. 13. And the reason is that when so reduced, he
cannot call to his aid the power of society or of the
commonwealth, and, being unprotected by law, he reassumes his
natural rights, which the law sanctions, of killing his adversary
to protect himself. Toull. Dr. Civ. Fr. ]iv. 1, tit. 1, n. 210.
See Pamph. Rep. of Selfridge's Trial in 1806 2 Swift's Ev. 283.
4. - 2. The party attacked may undoubtedly defend himself, and
the law further sanctions the mutual and reciprocal defence of
such as stand in the near relations of hushand and wife, patent
and child, and master and servant. In these cases, if the party
himself, or any of these his relations, be forcibly attacked in
their person or property, it is lawful for him to repel force by
force, for the law in these cases respects the passions of the
human mind, and makes, it lawful in him, when external violence
is offered to himself, or to those to whom he bears so near a
connexion, to do that immediate justice to which he is prompted
by nature, and which no prudential motives are strong enough to
restrain. 2 Roll. Ab. 546; 1 Chit. Pr. 592.
5. - 3. The party making the attack may be resisted, and if
several persons join in such attack they may all be resisted, and
one may be killed although he may not himself have given the
immediate cause for such killing, if by his presence and his
acts, he has aided the assailant. See Conspiracy.
6. - 4. The cases for which a man may defend himself are of two
kinds; first, when a felony is attempted, and, secondly, when,
no felony is attempted or apprehended.
7. - 1st. A man may defend himself, and even commit a homicide
for the prevention of any forcible and atrocious crime, which if
completed would amount to a felony; and of course under the like
circumstances, mayhem, wounding and battery would be excusable at
common law. 1 East, P. C. 271; 4 Bl. Com. 180. A man may repel
force by force in defence of his person, property or habitation,
against any one who manifests, intends, attempts, or endeavors,
by violence or surprise, to commit a forcible felony, such as
murder, rape, robbery, arson, burglary and the like. In these
cases he is not required to retreat, but he may resist, and even
pursue his adversary, until he has secured himself from all
danger.
8. - 2d. A man may defend himself when no felony has been
threatened or attempted; 1. When the assailant attempts to beat
another and there is no mutual combat; as, where one meets
another and attempts to commit or does commit an assault and
battery on him, the person attacked may defend himself; and an
offer or, attempt to strike another, when sufficiently near, so
that that there is danger, the person assailed may strike first,
and is not required to wait until he has been struk. Bull. N. P.
18; 2 Roll. Ab. 547. 2. When there is a mutual combat upon a
sudden quarrel. In these cases both parties are the aggressors;
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and if in the fight one is killed it will be manslaughter at
least, unless the survivor can prove two things: 1st. That
before the mortal stroke was given be had refused any further
combat, and had retreated as far as he could with safety; and
2d. That he killed his adversary from necessity, to avoid his own
destruction.
9. A man may defend himself against animals, and he may during
the attack kill them, but not afterwards. 1 Car. & P. 106; 13
John. 312; 10 John. 365.
10. As a general rule no man is allowed to defend himself with
force if he can apply to the law for redress, and the law gives
him a complete remedy, See Assault; Battery; Necessity;
Trespass.
SELECTMEN. The name of certain officers in several of the
United States, who are invested by the statutes of the several
states with various powers.
SELLER, contracts. One who disposes of a thing in consideration
of money; a
vendor.
2. This term is more usually applied in the sale of chattels,
that of vendor in the sale of estates.
3. The duties of the seller are, 1. To deal with fairness. 2.
To deliver the thing sold at the time and place appointed, and to
take care of it until deli-very; but when everything the seller
has to do with the goods is complete, the property and the risk
of accident to the goods, rests in the buyer, even before
delivery, or payment. Noy's Max. ch. 24; 7 East, 571; 2 Bl.
Com. 448. 3. To warrant the title of personal property when he
sells it as his own, when it is in his possession. 2 Kent, Com.
374; 1 Lord Raym. 593; 1 Salk. 210.
4. The rights of the seller are, 1. To be paid the price agreed
upon. 2. To be indemnified for any expenses he may have incurred
to preserve the thing sold for the buyer, after the title to it
has passed to the latter. 3. To stop the thing in transitu when
the buyer has failed and the price has not been paid . See
Stoppage, in transitu. Vide Purchaser, and the authorities there
cited; Bouv. Inst. Index, h. t.
SEMBLE. A French word which signifies, it seems. It is commonly
used before the statement of a point of law which has not been
directly settled; but about which the court have expressed an
opinion, and intimated what it is.
SEMI-PROOF, civ. law. Presumptions of fact are so called. This
degree of proof is thus deaned: "Non est ignorandum, probationem
semiplenam eam esse, per quam rei gestae fides aliqua fit judici;
non tamen tanta ut jure debeat in pronuncianda sententia eam
sequi." Mascardus, De Prob. vol. 1, Quaest. 11, n. 1, 4.
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SEMINAUFRAGIUM. A term used by Italian lawyers, which literally
signifies half-shipwreck, and by which they understand the
jetsam, or casting merchan-dise into the sea to prevent
shipwreck. Locre, Esp. du Code de Com. art. 409. It also
signifies the state of a vessel which has been so much injured by
tem-pest or accident, that to repair the damages, after being
brought into port, and prepare her for sea, would cost more than
her worth. 4 Law Rep. 120.
SEMPER PARATUS. The name of a plea by which the defendant
alleges that he has always been ready to perform what is demanded
of him. 3 Bl. Com. 303. The same as Tout temps prist. (q. v.)
SEN. This is said to be an ancient word which signified
justice. Co. Litt. 61 a.
SENATE, government. The less numerous branch of the
legislature.
2. The constitution of the United States, article 1, s. 3, cl.
1, directs that "the senate of the United States shall be
composed of two senators from each state, chosen by the
legislature thereof for six years; and each senator shall have
one vote." The vice president of the United States," to use the
language of the constitution, art. 1, s. 3, cl. 4, "shall be
president of the senate, but shall have no vote unless they be
equally divided." In the senate each state in its political
capacity, is represented, upon a footing of perfect equality,
like a congress of sovereigns or ambassadors, or like an assembly
of peers. It is unlike the house of representatives. where the
people are represented. Story, Const. ch. 10.
3. The senate of the United States is invested with
legislative, executive and judicial powers.
4. - 1. It is a legislative body whose concurrence is requisite
to the passage of every law. It may originate any bill, except
those for raising rev-enue, which shall originate in the house of
representatives; but the senate may propose or concur with
amendments as on other bills. Const. art. 1, s. 7, el. I.
5. - 2. The senate is invested with executive authority in
concluding treaties and making appointments. Vide President of
the United States of America.
6. - 3. It is invested with judicial power when it is formed
into a court for the trial of impeachments. See Courts of the
United States.
7. In most of the states the less numerous branch of the
legislature bears the title of senate. In such a body the people
are represented as well as in the other house. Vide article
Congress; and, for the senates of the several states, the name
of each state. See, also, articles Courts of the United States,
I; House of Representatives; Vice-President of the United
States.
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SENATOR, government. One who is a member of a senate.
2. No person shall be a senator [of the national senate] who
shall not have attained the age of thirty years, and been nine
years a citizen of the United States and who shall not when
elected, be an inhabitant of that state for which he shall be
chosen. Const. U. S. art. 1, s. 3, cl. 5. Vide 1 Kent, Com. 224
Story on the Const. 726 to 730.
SENATUS CONSULTUM, civ. law. A decree or decision of the Roman
senate, which had the force of law.
2. When the Roman people had so increased that there was no
place where they could meet, it was found necessary to consult
the senate instead of the people, both on public affairs and
those which related to individuals. The opinion which was
rendered on such an occasion was called senatus consultum. Inst.
1, 2, 5; Clef des Lois Rom. h. t.; Merl. Repert. h. t. These
decrees frequently derived their titles from the names of the
consuls or magistrates who proposed them; as, senatus-consultum
Claudianum, Libonianum, Velleianum, &c. from Claudius, Libonius,
Valleius. Ail. Pand. 30.
SENESCHALLUS. A steward. Co. Litt. 61 a.
SENILITY. The state of being old.
2. Sometimes in this state it is exceedingly difficult to know
whether the individual is or is not so deprived of the powers of
his mind as to be unable to manage his affairs. In general,
senility of energy in some of the intellectual operations, while
the affections remain natural and unperverted; such a state may,
however, be followed by actual dementia or idiocy.
3. When on account of senility the party is unable to manage
his affairs, a committee will be appointed as in case of lunacy.
1 Coll. on Lunacy, 66; 2 John. Ch. R. 232; 12 Ves. 446; 4
Call's R. 423; 5 John. Ch. R. 158; 8 Mass. 129; 2 Ves. sen.
407; 19 Ves. 285; 2 Cyclop. of Pract. Med. 872. See Aged
Witness.
SENIOR. The elder. This addition is sometimes made to a man's
name, when two persons bear the same, in order to distinguish
them. In practice when nothing is mentioned, the senior is
intended. 3 Miss. R. 59. See Junior.
SENTENCE. A judgment, or judicial declaration made by a judge
in a cause. The term judgment is more usually applied to civil,
and sentence to criminal proceedings.
2. Sentences are final, when they put, an end to the case; or
interlocutory, when they settle only some incidental matter which
has arisen in the course of its progress. Vide Aso & Man. Inst.
B. 3, t. 8, c. 1.
SEPARALITER. Separately.
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2. This word is sometimes used in indictments to show that the
defendants are charged separately with offences, which, without
the addition of this word, would seem, from the form of the
indictment, to be charged jointly; as, for example, when two
persons are indicted together for perjury, and the indictment
states that A and B came before a commissioner, &c., this is
alleging that they were both guilty of the same crime, when by
law their crimes are distinct, and the indictment is vicious;
but if the word separaliter is used, then the affirmation is that
each was guilty of a separate offence. 2 Hale, P. C. 174.
SEPARATE ESTATE. That which belongs to one only of several
persons; as, the separate estate of a partner, which does not
belong to the partnership. 2 Bouv. Inst. n. 1519.
2. The separate estate of a married woman, is that which
belongs to her, and over which her hushand has no right in
equity. It may consist of lands or chattels. 4 Barb. S. C. Rep.
407; 1 Const. R. 452; 4 Bouv. Inst. n. 3996.
SEPARATE MAINTENANCE, contracts. An allowance made by a hushand
to his wife for her separate support and maintenance.
2. When this allowance is regularly paid, and notice of it has
been given, no person who has received such notice will be
entitled to recover against the hushand for necessaries furnished
to the wife, because the liability of the hushand, depends on a
presumption of authority delegated by him to the wife, which is
negatived by the facts of the case. 2 Stark. Ev. 699.
SEPARATE TRIAL, practice. The trial of one person by himself,
when he is jointly indicted with others for an alleged offence.
2. On a joint indictment against two or more defendants for a
crime of misdemeanor, it is in the discretion of the court
whether to allow a separate trial for each prisoner, or to order
the whole of them to be tried together. 1 Baldw. Rep. 81; 12
Wheat. 480; 5 Serg. & Rawle, 60; but see 1 Pet., C. C. Rep.
118.
SEPARATION, contracts. When the hushand and wife agree to live
apart they are said to have made a separation.
2. Contracts of this kind are generally made by the hushand for
himself and by the wife with trustees. 4 Paige's R. 516; 3
Paige's R. 483; 5 Bligh, N. S. 339; 1 Dow & Clark, 519. This
contract does not affect the marriage, and the parties may, at
any time agree to live together as hushand and wife. The hushand
who has agreed to a total separation cannot bring an action for
criminal conversation with the wife. Roper, Hush. and Wife,
passim; 4 Vin. Ab. 173; 2 Stark. Ev. 698; Shelf. on Mar. &
Div. ch. 6, p. 608.
3. Reconciliation after separation supersedes special articles
of separation in courts of law and equity. 1 Dowl. P. C. 245; 2
Cox, R. 105; 3 Bro. C. C. 619, n.; 11 Ves. 532. Public policy
forbids that parties should be permitted to make agreements for
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themselves to hold good whenever they choose to live separate. 5
Bligh, N. S. 367, 375; and see 1 Carr. & P. 36. See 5 Bligh, N.
S. 339; 2 Dowl. P. C. 332; 2 C. & M. 388; 3 John. Ch. R. 521;
2 Sim. & Stu. 372; 1 Edw. R. 380; Desaus. R. 45, 198; 1 Y. &
C. 28; 11 Ves. 526; 2 East, R. 283; 8 N. H. Rep. 350; 1 Hoff.
R. 1.
SEPULCHRE. The place where a corpse is buried. The violation of
sepulchres is a misdemeanor at common law. Vide Dead bodies.
TO SEQUESTER, civil and eccles. law. To renounce. Example, when
a widow comes into court and disclaims having anything to do, or
to intermeddle with her deceased hushand's estate, she is said to
sequester. Jacob, L. D. h. t.
SEQUESTRATION, chancery practice. The process of sequestration
is a writ of commission, sometimes directed to the sheriff, but
most usually, to four or more commissioners of the complainant's
own nomination, authorizing them to enter upon the real or
personal estate of the defendant, and to take the rents, issues
and profits into their own hands, and keep possession of, or pay
the same as the court shall order and direct, until the party who
is in contempt shall do that which he is enjoined to do, and
which is specially mentioned in the writ. 1 Harr. Ch. 191; Newl.
Ch. Pr. 18; Blake's Ch. Pr. 103.
2. Upon the return of non est inventus to a commission of
rebellion, a ser-geant-at-arms may be moved for; and if he
certifies that the defendant cannot be taken, a motion may be
made upon his certificate, for an order for a sequestration. 2
Madd. Chan. 203; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
3. Under a sequestration upon mesne process, as in respect of a
contempt for want of appearance or answer, the sequestrators may
take possession of the party's personal property and keep him out
of possession; but no sale can take place, unless perhaps to pay
expenses; for this process is only to form the foundation of
taking the bill pro confesso. After a decree it may be sold. See
3 Bro. C. C. 72; 2 Cox, 224; 1 Ves. jr. 86; 3 Bro. C. C. 372;
2 Madd. Ch. Pr. 206. See, generally, as to this species of
sequestration, 19 Vin. Abr. 325; Bac. Ab. h. t.; Com.;
Chancery, D 7, Y 4; 1 Hov. Supp. to Ves. jr. 25 to 29; 1 Vern.
by Raith. 58, note 1; Id. 421, note 1.
SEQUESTRATION, contracts. A species of deposit, which two or
more persons, engaged in litigation about anything, make of the
thing in contest to an indifferent person, who binds himself to
restore it when the issue is decided, to the party to whom it is
adjudged to belong. Louis. Code, art. 2942; Story on Bailm:
§45. Vide 19 Vin. Ab. 325; 1 Supp. to Yes. jr. 29; 1 Vern. 58,
420; 2 Ves. jr. 23; Bac. Ab. h. t. 2. This is called a
conventional sequestration, to distinguish it from a judicial
sequestration, which is considered in the preceding article. Sec
Dalloz, Dict. mot Sequestre.
SEQUESTRATION, Louisiana practice. The Code of Practice in
civil cases in Louisiana, defines and makes the following
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provisions on the subject of sequestration. Art. 269.
Sequestration is a mandate of the court, ordering the sheriff, in
certain cases, to take in his possession, and to keep a thing of
which another person has the possession, until after the decision
of a suit, in order that it be delivered to him who shall be
adjudged entitled to have the property or possession of that
thing. This is what is properly called a judicial sequestratian.
Vide 1 Mart. R. 79; 1 L. R. 439; Civil Code of Lo. 2941; 2948.
2. - Art. 270. In this acceptation, the word sequestration does
not mean a judicial deposit, because sequestration may exist
together with the right of administration, while mere deposit
does not admit it.
3. - Art. 271. All species of property, real or personal, as
well as the revenue proceeding from the same, may be sequestered.
4. - Art. 272. Obligations and titles may also be sequestered,
when their ownership is in dispute.
5. - Art. 273. Judicial sequestration is generally ordered only
at the request of one of the parties to a suit; there are cases,
nevertheless, where it is decreed by the court without such
request, or is the consequence of the execution of judgments.
6. - Art. 274. The court may order, ex officio, the
sequestration of real property in suits, where the ownership of
such property is in dispute and when one of the contending
parties does not seem to have a more apparent right to the
possession than the other. In such cases, sequestration may be
ordered to continue, until the question of ownership shall have
been decided.
7. - Art. 275. Sequestration may be ordered at the request of
one of the parties in a suit in the following cases: 1. When one
who had possessed for more than one year, has been evicted
through violence, and sues to be restored to his possession. 2.
When one sues for the possession of movable property, or of a
slave, and fears that the party having possession, may ill treat
the slave or send either that slave, or the property in dispute,
out of the jurisdiction of the court, during the pendency of the
suit. 3. When one claims the ownership, or the possession of real
property, and has good ground to appre-hend, that the defendant
may make use of his possession to dilapidate or to waste the
fruits or revenues produced by such property, or convert them to
his own use. 4. When a woman sues for a separation from bed and
board, or only for a separation of property from her hushand, and
has reason to apprehend that he will ruin her dotal property, or
waste the fruits or revenues produced by the same during the
pendency of the action. 5. When one has petitioned for a stay of
proceedings, and a meeting of his creditors, and such creditors
fear that he may avail himself of such stay of proceedings, to
place the whole, or a part of his property, out of their reach.
6. A creditor by special mortgage shall have the power of
sequestering the mortgaged property, when he appre-hends that it
will be removed out of the state before he can have the benefit
of his mortgage, and will make oath of the facts which induced
his apprehension.
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8. - Art. 276. A plaintiff wishing to obtain an order of
sequestration in any one of the cases above provided, must annex
to the petition in which he prays for such an order, an
affidavit, setting forth the cause for which he claims such
order, he must besides, execute his obligation in favor of the
defendant, for such sum as the court shall determine, with the
surety of one good and solvent person, residing within the
jurisdiction of the court, to be responsible for such damages as
the defendant may sustain, in case such sequestration should have
been wrongfully obtained.
9. - Art. 277. When security is given in order to obtain the
sequestration of real property which brings a revenue, the judge
must require that it be given for an amount sufficient to
compensate the defendant, not only for all damage which he may
sustain, but also for the privation of such revenue, during the
pendency of the action.
10. - Art. 278. The plaintiff when he prays for a sequestration
of the property of one who has failed, is not required to give
such security, though that property bring in a revenue.
11. - Art. 279. A defendant against whom a mandate of
sequestration has been obtained, except in cases of failure, may
have the same set aside, by executing his obligation in favor of
the sheriff, with one good and solvent surety, for whatever
amount the judge may determine, as being equal to the value of
the property to be left in his possession.
12. - Art. 280. The security thus given by the defendant, when
the property sequestrated consists in movables or in slaves,
shall be responsible that he shall not send away the same out of
the jurisdiction of the court; that he shall not make an
improper use of them; and that he will faithfully present them,
after definitive judgment, in case he should be decreed to
restore the same to the plaintiff.
13. - Art. 281. As regards landed property, this security is
given to prevent the defendant, while in possession, from wasting
the property, and for the faithful restitution of the fruits that
he may have received since the demand, or of their value in the
event of his being cast in the suit.
14. - Art. 282. When the sheriff has sequestered property
pursuant to an order of the court, he shall, after serving the
petition and the copy of the order of sequestration on the
defendant, send him return in writing to the clerk of the court
which gave the order, stating in the same in what manner the
order was executed, and annex to such return a true and minute
inventory of the property sequestered, drawn by him, in the
presence of two witnesses.
15. - Art. 283. The sheriff, while he retains possession of
sequestered property, is bound to take proper care of the same
and to administer the same, if it be of such nature as to admit
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of it, as a prudent father of a family administers his own
affairs. He may confide them to the care of guardians or
overseers, for whose acts he remains responsible, and he will be
entitled to receive a just compensation for his administration,
to be determined by the court, to be paid to him out of the
proceeds of the property sequestered, if judgment be given in
favor of the plaintiff.
SEQUESTRATOR. One to whom a sequestration is made.
2. A depositary of this kind cannot exonerate himself from the
care of the thing sequestered in his hands, unless for some cause
rendering it indispens-able that he should resign his trust.
Louis. Code, art. 2947. See Stakeholder. Sequestrators are also
officers appointed by a court of chancery, and named in a writ of
sequestration. As to their powers and duties, see 2 Madd. Ch. Pr.
205, 6; Blake's Ch. Pr. 103; Newl. Ch. Pr. 18, 19; 1 Harr. Ch.
191.
SERF. During the feudal times certain persons who were bound to
perform very onerous duties towards others, were so called. Poth.
Des Personnes, p. 1, t. 1, a. 6, s. 4. There is this essential
difference between a serf and a slave; the serf was bound simply
to labor on the soil where he was born, without any right to go
elsewhere without the consent of his lord; but he was free to
act as he pleased in his daily action: the slave on the contrary
is the property of his master, who may require him to act as he
pleases in every respect, and who may sell him as a chattel.
Lepage, Science du Droit, c. 3, art. 2, §2.
SERGEANT or SERJEANT, Engl. law. An officer in the courts of
the highest grade among the practitioners of the law.
SERGEANT or SERJEANT, in the army. An inferior officer of a
company of foot, or troop of dragoons appointed to see discipline
observed, to teach the soldiers the exercise of their arms, and
to order, straighten and form ranks, files, &c.
SERGEANT AT ARMS, An officer appointed by a legislative body,
whose duties are to enforce the orders given by such bodies,
generally under the warrant of its presiding officer.
SERIATIM. In a series, severally; as, the judges delivered
their opinions seriatim.
SERJEANTY, Eng. law. A species of service which cannot be due
or performed from a tenant to any lord but the king; and is
either grand or petit serjeanty.
SERVANTS, (negro or mulatto,) Pennsylvania. By the fourth
section of the act for the gradual abolition of slavery, passed
the first day of March, 1780, 1 Smith's Laws of Penn. 492, it is
"provided that every negro or mulatto child, born within this
state after the passing of this act, (who would in case this act
had not been made, have been a servant for years, or life, or a
slave) shall be by virtue of this act the servant of such person,
or his assigns who would in such case have been entitled to the
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service of such child, until such child attain unto the age of
twenty-eight years, in the manner and on the conditions, whereon
servants bound by indenture for four years are or may be retained
or holden; and shall be liable to like correction and
punishment, and entitled to like relief, in case he be evilly
treated by his master, and to like freedom dues and privileges,
as servants bound by indenture for four years are entitled,
unless the person to whom such services belong shall abandon his
claim to the same; in which case the overseers of the poor where
such child shall be abandoned shall by indenture bind out every
such child so abandoned as an apprentice for a time not exceeding
the age hereinbefore limited for the service of such children."
And by the thirteenth section it is enac-ted, "that no covenant
of personal servitude or apprenticeship whatsoever shall be valid
or binding on a negro or mulatto for a longer time than seven
years, unless such servant or apprentice were at the commencement
of such servitude or apprenticeship, under the age of twenty-one
years, in which case such negro or mulatto may be holden as a
servant or apprentice, respectively, according to the covenant,
as the case shall be, until he shall attain the age of
twenty-eight years, but no longer." See 6 Binn. 204; 1 Browne's
R. 369, n.
2. The act requires that a register of such children as would
have been slaves shall be kept by a public officer therein
designated. The want of registry entitles such child to freedom.
SERVANTS. In Louisiana they are divided into free servants and
slaves. See Slaves; Slavery.
2. Free servants are, in general, all free persons who let,
hire, or engage their services to another in the state, to be
employed therein at any work, commerce, or occupation whatever,
for the benefit of him who has contracted with them, for a
certain sum or retribution, or upon certain conditions.
3. There are three kinds of free servants in the state, to wit:
4. - 1. Those who only hire out their services by the day,
week, month, or year, in consideration of certain wages.
5. - 2. Those who engage to serve for a fixed time for a
certain consideration, and who are therefore considered not as
having hired out, but as having sold their services.
6. - 3. Apprentices that is, those who engage to serve any one,
in order to learn some art, trade, or profession. Civ. Code of
Lo. art. 155, 156, 157.
SERVANTS, menial. Domestics those who receive wages, and who
are lodged and fed in the house of another, and who are employed
in his services. Such servants are not particularly recognized by
law. They are called menial servants, or domestics, from living
infra moenia, within the walls of the house. 1 Bl. Com. 324;
Wood's Inst. 53; 1 Sw. Syst. 218. The right of the master to
their services in every respect is grounded on the contract
between them. 2. Labor-ers, or persons hired by the day's work,
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or any longer time, are not considered servants. 1 Sw. Syst. 218;
5 Binn. 167; 3 Serg. & Rawle, 351. Vide 12 Ves. 114; 2 Vern.
546; 16 Ves. 486; 1 Rop. on Leg. 121; 3 Deac. & Chit. 332; 1
Mont. & Bligh. 413; 2 Mart. N. S. 652; Poth. Proc. Civ. sect.
2, art. 5, §5; Poth. Ob. n. 710, 828, French ed.; 9 Toull. n.
314; Domestic; Operative.
SERVI. This name was given by the Romans to their slaves; they
were so called from servare, to preserve, from the ancient
practice of the generals of the army, who were accustomed to sell
their captives, and preserved them rather than kill them: servi
autem ex eo appellati sunt, quod imperatores captivos vendere, ac
per hoc servare, nec occidere solent. Inst. 1 3, 3.
SERVICE, contracts. The being employed to serve another.
2. In cases of seduction, the gist of the action is not injury
which the seducer has inflicted on the parent by destroying his
peace of mind, and the reputation of his child, but for the
consequent inability to perform those services for which she was
accountable to her master or her parent who assumes this
character for the purpose Vide Seduction, and 2 Mees. & W. 539;
7 Car. & P. 528.
SERVICE, feudal law. That duty which the tenant owes to his
lord, by reason of his fee or estate.
2. The services, in respect of their quality, were either free
or base, and in respect of their quantity and the time of
exacting them, were either certain or uncertain. 2 Bl. Com. 62.
3. In the civil law by service is sometimes understood
servitude. (q. v.)
SERVICE, practice. To execute a writ or process; as, to serve
a writ of capias signifies to arrest a defendant under the
process; Kirby, 48; 2 Aik. R. 338; 11 Mass. 181; to serve a
summons, is to deliver a copy of it at the house of the party, or
to deliver it to him personally, or to read it to him; notices
and other papers are served by delivering the same at the house
of the party, or to him in person.
2. When the service of a writ is prevented by the act of the
party on whom it is to be served, it will, in general, be
sufficient if the officer do everything in his power to serve it.
39 Eng. C. L. R. 431 1 M. & G. 238.
SERVIENT, civil law. A term applied to an estate or tenement by
which a servitude is due to another estate or tenement. See
Dominant; Servitude.
SERVITUDE, civil law. A term which indicates the subjection of
one person to another person, or of a person to a thing, or of a
thing to a person, or of a thing to a thing.
2. Hence servitudes are divided into real, personal, and mixed.
Lois des Bat. P. 1, c. 1.
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3. A real or predial servitude is a charge laid on an estate
for the use and utility of another estate belonging to another
proprietor. Louis. Code, art. 643. When used without any adjunct,
the word servitude means a real or predial servitude. Lois des
Bat. P. 1, c. 1.
4. The subjection of one person to another is a purely personal
servitude; if it exists in the right of property which a person
exercises over another, it is slavery. When the subjection of one
person to another is not slavery, it consists simply in the right
of requiring of another what he is bound to do, or not to do;
this right arises from all kinds of contracts or quasi con
tracts. Lois des Bat. P. 1, c. 1, art. 1.
5. The subjection of persons to things or of things to persons,
are mixed servitudes. Lois des Bat. P. 1, c. 1, art. 2.
6. Real servitudes are divided into