W:
WADSET, Scotch law. A right, by which lands, or other heritable
subjects, are impignorated by the proprietor to his creditor in
security of his debt; and, like other heritable rights, is
perfected by seisin.
2. Wadsets, by the present practice, are commonly made out in
the form of mutual contracts, in which one party sells the land,
and the other grants, the right of reversion. Ersk. Pr. L. Scot.,
B. 2, t. 8, s. 1, 2.
3. Wadsets are proper or improper. Proper, where the use of the
land shall go for the use of the money. Improper, where the
reverser agrees to make up the deficiency; and where it amounts
to more, the surplus profit of the land is applied to the
extinction of the principal. Id. B. 2, t. 8, s. 12, 13.
WADSETTER, Scotch law. A creditor to whom a wadset is made.
TO WAGE, contracts. To give a pledge or security for the
performance of anything; as to wage or gage deliverance; to
wage law, &c. Co. Litt. 294. This word is but little used.
WAGER OF BATTEL. A superstitious mode of trial which till
lately disgraced the English law.
2. The last case of this kind was commenced in the year 1817,
but not procceded in to judgment; and at the next session of the
British parliament an act was passed to abolish appeals of
murder, treason, felony or other offences, and wager of battel,
or joining issue or trial by battel in writs of right. 59 Geo.
III. c. 46. For the history of this species of trial the reader
is referred to 4 Bl. Com. 347; 3 Bl. Com. 337; Encyclopedie,
Gage de Bataille; Steph. Pl. 122, and App. note 35.
WAGER OF LAW, Engl. law. When an action of debt is brought
against a man upon a simple contract, and the defendant pleads
nil debit, and concludes his plea with this formula, "And this he
is ready to defend against him the said A B and his suit, as the
court of our lord the king here shall consider," &c., he is said
to wage his law. He is then required to swear he owes the
plaintiff nothing, and bring eleven compurgators who will swear
they believe him. This mode of trial, is trial by wager of law.
2. The wager of law could only be had in actions of debt on
simple contract, and actions of detinue; in consequence of this
right of the defendant, now actions on simple contracts are
brought in assumpsit, and instead of bridging detinue, trover has
been substituted.
3. If ever wager of law had any existence in the United States,
it is now completely abolished. 8 Wheat. 642. Vide Steph. on
Plead. 124, 250, and notes, xxxix.; Co. Entr. 119; Mod. Entr.
179; Lilly's Entr. 467; 3 Ch it. Pl. 497; 13 Vin. Ab. 58;
Bac. Ab. h. t.; Dane's Ab. Index, h. t. For the origin of this
form of trial, vide Steph. on Pl. notes xxxix; Co. Litt. 294, 5
3 Bl. Com. 341.
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WAGER POLICY, contracts. One made when the insured has no
insurable interest.
2. It has nothing in common with insurance but the name and
form. It is usually in such terms as to preclude the necessity of
inquiring into the interest of the insured; as, "interest or no
interest," or, "without further proof of interest than the
policy."
3. Such contracts being against the policy of the law are void.
1 Marsh. Ins. 121 Park on Ins. Ind. h. t.; Wesk. Ins. h. t.;
See 1 Sumn. 451; 2 Mass. 1 3 Caines, 141.
WAGERS. A wager is a bet a contract by which two parties or
more agree that a certain sum of money, or other thing, shall be
paid or delivered to one of them, on the happening or not
happening of an uncertain event.
2. The law does not prohibit all wagers. 1 Browne's Rep. 171
Poth. du Jeu, n. 4.
3. To restrain wagers within the bounds of justice the
following conditions must be observed: 1. Each of the parties
must have the right to dispose of the thing which is the object
of the wager. 2. Each must give a perfect and full consent to the
contract, 3. There must he equality between the parties. 4. There
must be good faith between them. 5. The wager must not be
forbidden by law. Poth. du 4. In general, it seems that a wager
is legal and maybe enforced in a court of law 3 T. R. 693, if it
be not, 1st, Contrary to public policy, or immoral; or if it do
not in some other respect tend to the detriment of the public.
2d. If it do not affect the interest, feelings, or character of a
third person.
5. - 1. Wagers on the event of an election laid before the poll
is open; 1 T. R. 56. 4 Johns. 426; 4 Harr. & McH. 284; or
after it is closed; 8 Johns. 454, 147; 2 Browne's Rep. 182;
are unlawful. And wagers are against public policy if they are in
restraint of marriage; 10 East, R. 22; made as to the mode of
playing an illegal game; 2 H. Bl. 43; 1 Nott & McCord, 180; 7
Taunt. 246; or on an abstract speculative question of law or
judicial practice, not arising out of circumstances in which the
parties have a real interest. 12 East, R. 247, and Day's notes,
sed vide Cowp. 37.
6. - 2. Wagers as to the sex of an individual Cowp. 729; or
whether an unmarried woman had borne or would have a child; 4
Campb. 152, are illegal; as unnecessarily leading to painful and
indecent considerations. The supreme court of Pennsylvania have
laid it down as a rule, that every bet about the age, or height,
or weight, or wealth, or circumstances, or situation of any
person, is illegal; and this whether the subject of the bet be
man, woman, or child, married or single, native or foreigner, in
this country or abroad. 1 Rawle, 42. And it seems that a wager
between two coach-proprietors, whether or not a particular person
would go by one of their coaches is illegal, as exposing that
person to inconvenience. 1 B. & A. 683.
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7. In the case even of a legal wager, the authority of a
stakeholder, like that of an arbitrator, may be rescinded by
either party before the event happens. And if after his authority
has been countermanded, and the stake has been demanded, he
refuse to deliver it, trover or assumpsit for money had and
received is maintainable. 1 B. & A. 683. And where the wager is
in its nature illegal, the stake may be recovered, even after the
event, on demand made before it has been paid over. 4 Taunt. 474;
5 T. R. 405; sed vide 12 Johns. 1. See further on this subject,
7 Johns. 434; 11 Johns. 23; 10 Johns. 406,468; 12 Johns. 376;
17 Johns. 192; 15 Johns. 5; 13 Johns. 88; Mann. Dig. Gaming;
Harr. Dig. Gaining; Stakeholder.
WAGES, contract. A compensation given to a hired person for his
or her services. As to servants wages, see Chitty, Contr. 171 as
to sailors' wages, Abbott on Shipp. 473; generally, see 22. Vin.
Abr. 406; Bac. Abr. Master, &c., H; Marsh. Ins. 89; 2 Lill.
Abr. 677; Peters' Dig. Admiralty, pl. 231, et seq.
WAIFS. Stolen goods waived or scattered by a thief in his
flight in order to effect his escape.
2. Such goods by the English common law belong to the king. 1
Bl. Com. 296; 5 Co. 109; Cro. Eliz. 694. This prerogative has
never been adopted here against the true owner, and never put in
practice against the finder, though against him there would be
better reason for adopting it. 2 Kent, Com. 292. Vide Com. Dig.
h. t.; 1 Bro. Civ. Law, 239, n.
WAIVE. A term applied to a woman as outlaw is applied to a man.
A man is an outlaw, a woman is a waive. T. L., Crabb's Tech.
Dict. h. t.
To WAIVE. To abandon or forsake a right.
2. To waive signifies also to abandon without right; as "if
the felon waives, that is, leaves any goods in his flight from
those who either pursue him, or are apprehended by him so to do,
he forfeits them, whether they be his own goods, or goods stolen
by him." Bac. Ab . Forfeiture, B.
WAIVER., The relinquishment or refusal to accept of a right.
2. In practice it is required of every one to take advantage of
his rights at a proper time and, neglecting to do so, will be
considered as a waiver. If, for example, a defendant who has been
misnamed in the writ and declaration, pleads over, he cannot
afterwards take advantage of the error by pleading in abatement,
for his plea amounts to a waiver.
3. In seeking for a remedy the party injured may, in some
instances, waive a part of his right, and sue for another; for
example, when the defendant has committed a trespass on the
property of the plaintiff, by taking it away, and afterwards he
sells it, the injured party may waive the trespass, and bring an
action of assumpsit for the recovery of the money thus received
by the defendant. 1 Chit. Pl. 90.
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4. In contracts, if, after knowledge of a supposed fraud,
surprise or mistake, a party performs the agreement in part, he
will be considered as having waived the objection. 1 Bro. Parl.
Cas. 289.
5. It is a rule of the civil law, consonant with reason, that
any one may renounce or waive that which has been established in
his favor: Regula est juris antique omnes licentiam habere his
quae pro se introducta sunt, renunciare. Code 2, 3, 29. As to
what will amount to a waiver of a forfeiture, see 1 Conn. R. 79;
7 Conn. R. 45; 1 Jo Cas. 125; 8 Pick. 292; 2 N. H, Rep. 120
163; 14 Wend. 419; 1 Ham. R. 21. Vide Verdict.
WAKENING, Scotch law. The revival of an action.
2. An action is said to sleep, when it lies over, not insisted
on for a year in which case it is suspended. 4, t. 1, n. 33. With
us a revival is by scire facias. (q. v.)
WALL. A building or erection so well known as to need no
definition. In general a man may build a wall on any part of his
estate, to any height he may deem proper, and in such form as may
best accommodate him; but he must take care not to erect a wall
contrary to the local regulations, nor in such a manner as to be
injurious to his neighbors. See Dig. 50, 16, 157. Vide Party
Wall.
WANTONNESS, crim. law. A licentious act by one man towards the
person of another without regard to his rights; as, for example,
if a man should attempt to pull off another's hat against his
will in order to expose him to ridicule, the offence would be an
assault, and if he touched him it would amount to a battery. (q.
v.)
2. In such case there would be no malice, but the wantonness of
the act would render the offending party liable to punishment.
WAPENTAKE. An ancient word used in England as synonymous with
hundred. (q. v.) Fortesc. De Laud. ch. 24.
WAR. A contention by force; or the art of paralysing the
forces of an enemy.
2. It is either public or private. It is not intended here to
speak of the latter.
3. Public war is either civil or national. Civil war is that
which is waged between two parties, citizens or members of the
same state or nation. National war is a contest between two or
more independent nations) carried on by au-thority of their
respective governments.
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4. War is not only an act, but a state or condition, for
nations are said to be at war not only when their armies are
engaged, so as to be in the very act of contention, but also
when, they have any matter of controversy or dispute subsisting
between them which they are determined to decide by the use of
force, and have declared publicly, or by their acts, their
determination so to decide it.
5. National wars are said to be offensive or defensive. War is
offensive on the part of that government which commits the first
act of violence; it is defensive on the part of that government
which receives such act; but it is very difficult to say what is
the first act of violence. If a nation sees itself menaced with
an attack, its first act of violence to prevent such attack, will
be considered as defensive.
6. To legalize a war it must be declared by that branch of the
government entrusted by the constitution with this power. Bro.
tit., Denizen, pl. 20. And it seems it need not be declared by
both the belligerent powers. Rob. Rep. 232. By the constitution
of the United States, art. 1, s. 7, congress are invested with
power "to declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water; and they have
also the power to raise and support armies, and to provide and
maintain a navy." See 8 Cranch, R. 110, 154; 1 Mason, R. 79, 81;
4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf.
Inst. B. 1, c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1;
Lee on Capt. c. 1; Chit. Law of Nat. 28; Marten's Law of Nat.
B. 8, c. 2; Phil. Ev. Index, h., t. Dane's Ab. Index, h. i.;
Com. Dig. h. t. Bac. Ab. Prerogative, D 4; Merl. Repert. mot
Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, §1; Mann. Com. B.
3, c. 1.
WARD, domestic relations. An infant placed by authority of law
under the care of a guardian.
2. While under the care of a guardian a ward can make no
contract whatever binding upon him, except for necessaries. When
the relation of guardian and ward ceases, the latter is entitled
to have an account of the administration of his estate from the
former. During the existence of this relation, the ward is under
the subjection of his guardian, who stands in locoparentis.
WARD, a district. Most cities are divided for various purposes
into districts, each of which is called a ward.
WARD, police. To watch in the day time, for the purpose of
preventing violations of the law.
2. It is the duty of all police officers and constables to keep
ward in their respective districts.
WARD IN CHANCERY. An infant who is under the superintendence of
the chancellor.
WARDEN. A guardian; a keeper. This is the name given to
various officers: as, the warden of the prison; the wardens of
the port of Philadelphia; church wardens.
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WARDSHIP, Eng. law. Wardship was the right of the lord over the
person and estate of the tenant, when the latter was under a
certain age. When a tenant by knight's service died, and his heir
was under age, the lord was entitled to the custody of the person
and the lands of the heir, without any account, until the ward,
if a male, should arrive at the age of twenty-one years, and, if
a female, at eighteen. Wardship was also incident to a tenure in
socage, but in this case, not the lord, but the nearest relation
to whom the inheritance could not descend, was entitled to the
custody of the person and estate of the heir till he attained the
age of fourteen years; at which period the wardship ceased and
the guardian was bound, to account. Wardship in copyhold estates
partook of that in chivalry and that guardian like the latter, he
was required lib. 7, c. 9; Grand Cout. c. 33; Reg. Maj. c. 42.
WAREHOUSE. A place adapted to the reception and storage of
goods and merchandise. 9 Shepl. 47.
2. The act of congress of February 25, 1799, 1 Story's Laws U.
S. 565, authorizes the purchase of suitable warehouses, where
goods may be unladen and deposited from any vessel which shall be
subject to quarantine or other re-straint, pursuant to the health
laws of any state, at such convenient place or places as the
safety of the revenue and the observance of such health laws may
require.
3. And the act of 2d March, 1799, s. 62, 1 Story's Laws U. S.
627, authorizes an importer of goods, instead of, securing the
duties to be paid to the United States, to deposit so much of
such goods as the collector may in his judgment deem sufficient
security for the duties and the charges of safe keeping, for
which the importer shall give his own bond; which goods shall be
kept by the collector with due care, at the expense and risk of
the party on whose account they have been deposited, until the
sum specified, in such bond becomes due; when, if such sum shall
not be paid, so much of such deposited goods shall be sold at
public sale, and the proceeds, charges of safe keeping and sale
being deducted, shall be applied to the payment of such sum,
rendering the overplus, and the residue of the goods so
deposited, if there be any, to the depositor or his
representatives.
WAREHOUSEMAN. A warehouseman is a person who receives goods and
merchandise to be stored in his warehouse for hire.
2. He is bound to use ordinary care in preserving such goods
and merchan-dise, and his neglect to do so will render him liable
to the owner. Peake, R. 114; 1 Esp. R. 315; Story, Bailm. §444;
Jones' Bailm. 49, 96, 97; 7 Cowen's R. 497; 12 John. Rep. 232;
2 Wend. R. 593; 9 Wend. R. 268; 1 Stew. Rep. 284. The
warehouseman's liability commences as soon as the goods arrive,
and the crane of the warehouse is applied to raise them into the
warehouse. 4 Esp. R. 262.
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WARRANDICE, Scotch law. A clause in a charter of heritable
rights by which the grantor obliges himself, that the right
conveyed shall be effectual to the receiver. It is either
personal or real. A warranty. Ersk. Pr. B. 2, t. 3, n. 11.
WARRANT, crim. law, Practice. A writ issued by a justice of the
peace or other authorized officer, directed to a constable or
other proper person, requiring him to arrest a person therein
named, charged with committing some offence, and to bring him
before that or some other justice of the peace.
2. It should regularly be made under the hand and seal of the
justice and dated. No warrant ought to be issued except upon the
oath or affirmation of a witness charging the defendant with, the
offence. 3 Binn. Rep. 88.
3. The reprehensible practice of issuing blank warrants which
once prevailed in England, was never adopted here. 2 Russ. on Cr.
512; Ld. Raym. 546; 1 Salk. 175; 1 H. Bl. R. 13; Doct. Pl.
529; Wood's Inst. 84; Com. Dig. Forcible Entry, D 18, 19; Id.
Imprisonment, H 6,; Id. Pleader, 3 K 26; Id. Pleader, 3 M 23.
Vide Search warrant.
4. A bench warrant is a process granted by a court authorizing
a proper officer to apprehend and bring before it some on charged
with some contempt, crime or misdemeanor. See Bench warrant.
5. A search warrant is a process issued by a competent court or
officer authorizing an officer therein named or described, to
examine a house or other place for the purpose of finding goods
which it is alleged have been stolen. See Search warrant.
WARRANT OF ATTORNEY, practice. An instrument in writing,
addressed to one or more attorneys therein named, authorizing
them generally to appear in any court, or in some specified
court, on behalf of the person giving it, and to confess judgment
in favor of some particular person therein named, in an action of
debt, and usually containing a stipulation not to bring any writ
of error, or file a bill in equity, so as to delay him.
2. This general authority is usually qualified by reciting a
bond which commonly accompanies it, together with the condition
annexed to it, or by a written defeasance stating the terms upon
which it was given, and restraining the creditor from making
immediate use of it. 31. In form it is generally by deed; but it
seems, it need not necessarily be so. 5 Taunt. 264.
4. This instrument is given to the creditor as a security.
Possessing it, he may sign judgment and issue an execution,
without its being necessary to wait the termination. of an
action. Vide 14 East, R. 576; 2 T. R. 100; 1 H. Bl. 75; 1 Str
20; 2 Bl. Rep. 1133; 2 Wils. 3; 1 Chit. Rep. 707.
5. A warrant of attorney given to confess a judgment is not
revocable, and, notwithstanding a revocation, judgment may be
entered upon it. 2 Ld. Raym. 766, 850; 1 Salk. 87; 7 Mod. 93;
2 Esp, Rep. 563. The death of the debtor is, however, generally
speaking, a revocation. Co. Litt. 62 b; 1 Vent. 310. Vide Hall's
Pr. 14, n.
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6. The virtue of a warrant of attorney is spent by the entry of
one judgment, and a second judgment entered on the same warrant
is irregular. 1 Penna. R. 245; 6 S. & R. 296: 14 S. & R. 170;
Addis. R. 267; 2 Browne's R. 321, 3 Wash. C. C. R. 558. Vide,
generally, 18 Eng. Com. Law Rep. 94, 96, 179, 209; 1 Salk. 402;
3 Vin. Ab. 291; 1 Sell. Pr. 374; Com. Dig. Abatement, E 1, 2;
Id. Attorney, B 7, 8; 2 Archbold's Pr. 12; Bingh. on Judgments,
38; Grah. Pr. 618; l Crompt. Pr. 316; 1 Troub. & Haly's Pr.
96.
7. A warrant of attorney differs from a cognovit, actionem. (q.
v.) See Metc. & Perk. Dig. Bond, IV.
WARRANTEE. One to whom a warranty is made. Touchst. 181.
WARRANTIA CHARTAE. An ancient and now obsolete writ, which was
issued when a man was enfeoffed of land with warranty, and then
he was sued or impleaded in assize or other action, in which he
could not vouch or call to warranty.
2. It was brought by the feoffor pending the first suit against
him, and had this valuable incident, that when the warrantor was
vouched, and judgment passed against the tenant, the latter
obtained judgment simultaneously against the warrantor, to
recover other lands of equal value. Termes de la Ley, h. t.; F.
N. B. 134; Dane's Ab. Index, h. t.; Rand. 141, 148, 156; 4
Leigh's R. 132; 11 S. & R. 115 Vin. Ab. h. t. Co. Litt. 100;
Hob. 22, 217.
WARRANTOR. One who makes a warranty. Touchst, 181.
WARRANTY, contracts. This word has several significations, as
it is applied to the conveyance and sale of lands, to the sale of
goods, and to the contract of insurance.
2. - 1. The ancient law relating to warranties of land was full
of subtleties and intricacies; it occupied the attention of the
most eminent writers on the English law, and it was declared by
Lord Coke, that the learning of warranties was one of the most
curious and cunning learnings of the law; but it is now of
little use even in England. The warranty was a covenant real,
whereby the grantor of an estate of freehold, and his heirs, were
bound to warrant the title; and either upon voucher, or judgment
in, a writ of warrantia chartae, to yield other lands to the
value of those from which there had been an eviction by paramount
title Co. Litt. 365; Touchst.; 181 Bac. Ab. h. t.; the heir of
the warrantor was bound only on condition that he had, as assets,
other lands of equal value by descent.
3. Warranties were lineal and collateral.
4. Lineal, when the heir derived title to the land warranted,
either from or through the ancestor who made the warranty.
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5. Collateral warranty was when the heir's title was not
derived from the warranting ancestor, and yet it barred the heir
from claiming the land by any collateral title, upon the
presumption that he might thereafter have assets by descent from
or through the ancestor; and it imposed upon him the obligation
of giving the warrantee other lands, in case of eviction,
provided he had assets. 2 Bl. Com. 301, 302.
6. The statute of 4 Anne, c. 16, annulled these collateral
warrantees, which bid become a great grievance. Warranty in its
original form, it is presumed, has never been known in the United
States. The more plain and pliable form of a covenant has been
adopted in its place and this covenant, like all other covenants,
has always been held to sound in damages which after judgment may
be recovered out of the personal or real estate, as in other
cases. Vide 4 Kent, Com. 457; 3 Rawle's R. 67, n.; 2 Wheat-. R.
45; 9 Serg. & Rawle, 268; 11 Serg. & Rawle, 109; 4 Dall. Rep.
442; 2 Saund. 38, n. 5.
7. - 2. Warranties in relation, to the sale of personal
chattels are of two kinds, express or implied.
8. An express warranty is one by which the warrantor covenants
or undertakes to insure that the thing which is the subject of
the. contract, is or is not as there mentioned; as, that a horse
is sound; that he is not five years old.
9. An implied warranty is one which, not being expressly made,
the law implies by the fact of the sale; for example, the seller
is, understood to warrant the title of goods be sells, when they
are in his possession at the time of the sale; Ld. Raym. 593; 1
Salk.. 210; but if they are not then in his possession, the rule
of caveat emptor applies, and the buyer purchases at his risk.
Cro. Jac. 197.
10. In general there is no implied warranty of the quality of
the goods sold. 2 Kent, Com. 374; Co. Litt. 102, a; 2 Black
Comm. 452; Bac. Abr. Action on the case E; 2 Com. Contr. 263;
Dougl. 20; 2 East, 31 4; Id. 448, n.; Ross on Vend. c. 6; 1
Johns. R. 274; 4 Conn. R. 428; 1 Dall. Rep. 91; 10 Mass. R.
197; 20 Johns. Rep., 196; 3 Yeates, R. 262; 1 Pet. Rep. 317;
12 Serg. & Rawle, 181; 1 Hard. Kent. Rep. 531; 1 Murphy, Rep.
138; 2 Id. 245; 4 Haywood's Term. R. 227; 2 Caines' Rep. 48.
The rule of the civil law was, that a fair price implied a
warranty of title; Dig. 21, 2, 1; this rule, has been adopted
in Louisiana; Code, art. .247 7; and in South Carolina. 1 Bay,
R. 324; 2 Bay, R. 380 1 Const. R. 182; 2 Const. R. 353. Vide
Harr. Dig. Sale, II. 8; 12 East, R. 452.
11. - 3. In the contract of insurance, there are certain
warranties which are inducements to the insurer to enter into it.
A warranty of this kind is a stipulation or agreement on the part
of the insured, in the nature of a condition precedent. It may be
affirmative; as where the insured undertakes for the truth of
some positive allegation: as, that the thing insured is neutral
property: or, it may be promissory; as, that the ship shall sail
on or before a given day. 6 N. S. 53.
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12. Warranties are also express or implied. An express warranty
is a particular stipulation introduced into the written contract,
by the agreement of the parties; an implied warranty is an
agreement which necessarily results from the nature of the
contract: as, that the ship shall be seaworthy when she sails on
the voyage insured.
13. The warranty being in the nature of a condition precedent,
it is to be performed by the insured, before he can demand the
performance of the contract on the part of the insurer. Marsh.
Inst. B. 1, c. 9. See, generally, Bouv. Inst. Index, h. t.
WARRANTY, VOUCHER TO, practice. A warranty is a contract real,
annexed to lands and tenements, whereby a man is bound to defend
such lands and tenements from another person; and in case of
eviction by title paramount, to give him lands of equal value.
2. Voucher to warranty is the calling of such warrantor into
court by the party warranted, (when tenant in a real action
brought for recovery of such lands,) to defend the suit for him;
Co. Litt. 101, b; Com. Dig. Voucher, A 1; Booth, 43 2 Saund.
32, n. 1; and the time of such voucher is after the deman-dant
has counted. It lies in most real and mixed actions, but not in
personal. Where the voucher has been made and allowed by the
court, the vouchee either voluntarily appears, or there issues a
judicial writ (called a summons ad warrantizandum,) commanding
the sheriff to summon him. Where he, either voluntar-ily or in
obedience to this writ, appears and offers to warrant the land to
the tenant, it is called entering into the warranty; after which
he is considered as tenant in the action, in the place of the
original tenant. The deman-dant then counts against him de novo,
the vouchee pleads to the new count, and the cause proceeds to
issue. 2 Inst. 241 a; 2 Saund. 32, n. 1; Booth, 46.
3. Voucher of warranty is, in the present rarity of real
actions, unknown in practice. Steph. Plead. 85.
WASTE. A spoil or destruction houses, gardens, trees, or other
corporeal hereditaments, to the disherison of him that hath the
remainder or reversion in fee simple or fee tail 2 Bl. Comm. 281.
2. The doctrine of waste is somewhat different in this country
from what it is in England. It is adapted to our circumstances. 3
Yeates, R. 261; 4 Kent, Com. 76; Walk. Intr. 278; 7 John. Rep.
227; 2 Hayw. R. 339; 2 Hayw. R. 110; 6 Munf. R. 134; 1 Rand.
Rep. 258; 6 Yerg. Rep. 334. Waste is either voluntary or
permissive.
3. - §1. Voluntary waste. A voluntary waste is an act of
commission, as tearing down a house. This kind of waste is
committed in houses, in timber, and in land. It is committed in
houses by removing wainscots, floors, benches, furnaces,
window-glass, windows, doors, shelves, and other things once
fixed to the freehold, although they may have been erected by the
lessee himself, unless they were erected for the purposes of
trade. See Fixtures; Bac. Ab. Waste, C 6. And this kind of waste
may take place not only in pulling down houses, or parts of them,
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but also in changing their forms; as, if the tenant pull down a
house and erect a new one in the place, whether it be larger or
smaller than the first; 2 Roll. Ab. 815 , 1. 33; or convert a
parlor into a stable; or a grist-mill into a fulling-mill; 2
Roll. Abr. 814, 815; or turn two rooms into one. 2 Roll. Ab.
815, 1. 37. The building of a house where there was none before
is said to be a waste; Co. Litt. 53, a; and taking it down
after it is built, is a waste. Com. Dig. Waste, D 2. It is a
general rule that when a lessee has annexed anything to the
freehold during the term, and afterwards takes it away, it is
waste. 3 East, 51. This principle is established in the French
law. Lois des Bit. part. 2,
3, art. 1; 18 Toull. n. 457.
4. But at a very early period several exceptions were attempted
to be made to this rule, which were at last effectually engrafted
upon it in favor of trade, and of those vessels and utensils,
which are immediately subservient to the purposes of trade. Ibid.
5. This relaxation of the old rule has taken place between two
descriptions of persons; that is, between the landlord and
tenant, and between the tenant for life or tenant in tail and the
remainder-man or reversioner.
6. As between the landlord and tenant it is now the law, that
if the lessee annex any chattel to the house for the purpose of
his trade, he may disunite it during the continuance of his
interest, 1 H. B. 258. But this relation extends only to
erections for the purposes of trade.
7. It has been decided that a tenant for years may remove
cider-mills, orna-mental marble chimney pieces, wainscots fixed
only by screws, and such like. 2 Bl. Com. 281, note by Chitty. A
tenant of a farm cannot remove buildings which he has erected for
the purposes of husbandry, and the better enjoyment of the
profits of the land, though he thereby leaves the premises the
same as when he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep.
5; 7 Mass. Rep. 433.
8. Voluntary waste may be committed on timber, and in the
country from which we have borrowed our laws, the law is very
strict. In Pennsylvania, however, and many of the other states,
the law has applied itself to our situation, and those acts which
in England would amount to waste, are not so accounted here.
Stark. Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild and
uncultivated land, wholly covered with wood and timber, is
leased, the lessee may fell a part pf the wood and timber, so as
to fit the land for cultivation, without being liable to waste,
but he cannot cut down the whole so as permanently to injure the
inheritance. And to what extent the wood and timber on such land
may be cut down without waste, is a question of fact for the jury
under the direction of the court. 7 Johns. R. 227. The tenant may
cut down trees for the reparation of the houses, fences, hedges,
stiles, gates, and the like; Co. Litt. 53, b; and for mixing
and repairing all instruments of husbandry, as ploughs, carts,
harrows, rakes, forks, &c. Wood's Inst. 344. The tenant may, when
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he is unrestrained by the terms of his lease, out down timber, if
there be not enough dead timber. Com. Dig Waste, D 5; F. N. B.
59 M. Where the tenant, by the conditions of his lease, is
entitled to cut down timber, he is restrained nevertheless from
cutting down ornamental trees, or those planted for shelter; 6
Ves. 419; or to exclude objects from sight. 16 Ves. 375.
9. Windfalls are the property of the landlord, for whatever is
severed by inevitable necessity, as by a tempest, or by a
trespasser, and by wrong, belongs to him who has the inheritance.
3 P. Wms. 268; 11 Rep. 81, Bac. Abr. Waste, D 2.
10. Waste is frequently committed on cultivated fields,
orchards, gardens, meadows, and the like. It is proper here to
remark that there is an implied covenant or agreement on the part
of the lessee to use a farm in a husbandman-like manner, and not
to exhaust the soil by neglectful or improper tillage. 5 T. R.
373. See 6 Ves. 328. It is therefore waste to convert arable to
woodland and the contrary, or meadow to arable; or meadow to
orchard. Co. Lit. 53, b. Cutting down fruit trees; 2 Roll. Abr.
817, l. 30; although planted by the tenant himself, is waste;
and it was held to be waste for an outgoing tenant of garden
ground to plough up strawherry beds which be had bought of a
former tenant when he entered. i Camp. 227.
11. It is a general rule that when lands are leased on which
there are open mines of metal or coal or pits of gravel, lime,
clay, brick, earth, stone, and the like, the tenant may dig out
of such mines, or pits. Com. Dig. Waste, D 4. But he cannot open
any new mines or pits without being guilty of waste Co. Lit. 53
b; and carrying away the soil, is waste. Com. Dig. Waste, D 4.
12. - §2. Permissive waste. Permissive waste in houses is
punishable where the tenant is expressly bound to repair, or
where he is so bound on an implied covenant. See 2 Esp. R. 590;
1 Esp. Rep. 277; Bac. Abr. Covenant, F. It is waste if the
tenant suffer a house leased to him to remain uncovered so long
that the rafters or other timbers of the house become rotten,
unless the house was uncovered when the tenant took possession.
Com. Dig. Waste, D 2.
13. - §3. Of remedies for waste. The ancient writ of waste has
been superseded. It is usual to bring case in the nature of waste
instead of the action of waste, as well for permissive as
voluntary waste.
14. Some decisions have made it doubtful whether an action on
the case for permissive waste can be maintained against any
tenant for years. See 1 New Rep. 290; 4 Taunt. 764; 7 Taunt.
392; S. C. 1 Moore, 100; 1 Saund. 323, a, n. i. Even where the
lessee covenants not to do waste, the lessor has his election to
bring either an action on the case, or of, covenant, against the
lessee for waste done by him during the term. 2 Bl. Rep. 1111; 2
Saund. 252, c. n. In an action on the case in the nature of
waste, the plaintiff recovers only damages for the waste.
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15. The latter action has this advantage over an action of
waste, that it may be brought by him in reversion or remainder
for life or years, as well as in fee or in tail; and the
plaintiff is entitled to costs in this action, which he cannot
have in an action of waste., 2 Saund. 252, n. See, on the subject
in general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr.
Waste; Vin. Abr. Waste; Com. Dig. Waste; Supp. to Ves. jr. 50,
325, 441; 1 Vern. R. 23, n.; 2 Saund. 252, a, n. 7, 259, n. 11;
Arch. Civ. Pl. 495; 2 Sell. Pr. 234; 3 Bl. Com. 180, note by
Chitty; Anier. Dig. Waste; Whart. Dig. Waste; Bouv. Inst.
Index, h. t.
As to remedies against waste by injunction, see 1 Vern. R. 23,
n.; 5 P. Wms. 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107,
419; 8 Ves. 70; 16 Ves. 375; 2 Swanst. 251; 3 Madd. 498;
Jacob's R. 70; Drew. on Inj. part 2, c. 1, p. 134. As between
tenants in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132; 3
Bro. C. C. 622; 2 Dick. 667; Bouv. Inst. Index, h. t.; and the
article Injunction. As to remedy by writ of estrepement to
prevent waste, see Estrepement; Woodf Landl. & T. 447; 2
Yeates, 281; 4 Smith's Laws of Penn. 89; 3 Bl. Com. 226. As to
remedies in cases of fraud in committing waste, see Hov. Fr. ch.
7, p. 226 to 238.
WASTE BOOK, com. law. A book used among merchants. All the
dealings of the merchant are recorded in this book in
chronological order as they occur.
WATCH, police. To watch is, properly speaking, to stand sentry
and attend guard during the night time: certain officers called
watchmen are appointed in most of the United States, whose duty
it is to arrest all persons who are violating the law, or
breaking the peace. (q. v.) Vide 1 Bl. Com. 356; 1 Chit. Cr.
Law, 14, 20.
WATCH AND WARD. A phrase used in the English law, to denote the
superinten-dence and care of certain officers, whose duties are
to protect the public from harm.
WATCHMAN. An officer in many cities and towns, whose duty it is
to watch during the night and take care of the property of the
inhabitants.
2. He possesses generally the common law authority of a
constable (q. v.) to make arrests, where there is reasonable
ground to suspect a felony, though there is no proof of a felony
having been committed. 1 Chit. Cr. L. 24; 2 Hale, 96; Hawk. B.
2, c. 13, s. 1, &c.; 1 East, P. C. 303; 2 Inst. 52; Com. Dig.
Imprisonment, H 4; Dane's Ab. Index, h. t.; 3 Taunt. R. 14; 1
B. & A. 227; Peake, R. 89; 1 Moody's Cr. Cas. 334; 1 Esp. R.
294; and vide Peace.
3. By an act of congress, approved Sept. 30, 1850, the
compensation of watchmen in the various departments of
government, shall be five hundred dollars per annum.
WATER. That liquid substance of which the sea, the rivers, and
creeks are composed.
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2. A pool of water, or a stream or water course, is considered
as part of the land, hence a pool of twenty acres, would pass by
the grant of twenty acres of land, without mentioning the water.
2 Bl. Com. 18; 2 N. H. Rep. 255; 1, Wend. R. 255; 5 Paige, R.
141; 2 N. H. Rep. 371; 2 Brownl. 142; 5 Cowen, R. 216; 5
Conn. R. 497; 1 Wend. R. 237. A mere grant of water passes only
a fishery. Co. Lit. 4 b.
3. Like land, water is distinguishable into different parts, as
the sea, (q. v.) rivers, (q. v.) docks, (q. v.) canals, (q. v.)
ponds, q v.) and sewers, (q. v.) and to these may be added at
water course. (q. v.) Vide 4 Mason, R. 397 River; Water course.
WATER BAILIFF, English law. An officer appointed to search
ships in ports. 10 H. vii., 30.
WATER COURSE. This term is applied to the flow or movement of
the water in rivers, creeks, and other streams.
2. In a legal sense, property In a water course is comprehended
under the general name of land; so that a grant of land conveys
to the grantee not only fields, meadows, and the like, but also
all the rivers and streams, which naturally pass over the surface
of the land. 1 Co. Lit. 4; 2 Brownl. 142; 2 N. Hamp. Rep. 255;
5 Wend. Rep. 128.
3. Those who own land bounding upon a water course, are
denominated by the civilians riparian proprietors, and this
convenient term has been adopted by judges and writers on the
common law. Ang. on Water Courses, 3; 3 Kent, Com. 354; 4
Mason's R. 397.
4. Every proprietor of lands on the banks of a river has
naturally an equal right to the use of the water which flows in
the stream adjacent to his lands, as it was wont to run (currere
solebat) without diminution or alteration.
5. No proprietor has a right to use the water to the prejudice
of other proprietors, above or below him, unless he has a prior
right to divert it, or a title to some exclusive enjoyment. He
has no property in the water itself, but a simple usufruct as it
passes along. Agua currit et debet currere, is the language of
the law. 3 Rawle, Rep. 84; 9 Co. 57, b.
6. Though he may use the water while it runs over his lands, he
cannot unreasonably detain it or give it another direction, and
he must return it to its ordinary channel when it leaves his
estate. Without the consent of the adjoining proprietors, he
cannot divert or diminish the quantity of the water, which would
otherwise descend to the proprietor below, nor throw the water
back upon the proprietor above, without a grant, or an
uninterrupted enjoyment of twenty years, which is evidence of it.
3 Kent, Com. 353; 1 Wils. R. 178; 6 East, 203; 1 Simon &
Stuart, 190; 2 John. Ch R. 162, 463; 4 Mass. R. 401 17 John. R.
321; 5 Ohio R. 822; 3 Fairf. R. 407; 8 Greenl. R. 268; 16
Pick. Rep. 247; 1 Coxes Rep, 460; Dig. 39, 3, 4, and 10;
Pothier, Traite du Contrat de Societe, 2e app. n. 236, 237;
Bell's Law of Scotland, 691; Ang. on' Water Courses, 12; 2
Conn. R. 584.
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7. When there are two opposite riparian proprietors, each owns
that portion of the bed of the river which is adjoining his land
usque ad filum aquae; or, in other words, to the thread or
central line of the stream; Harg. Tracts, 5; Holt's Rep. 499;
and if hydraulic works be erected on both banks, each is entitled
to an equal share of the water. 1 Paige's Chanc. Rep. 448.
8. The water can only be used by each as an entire stream, in
its natural channel; for of the property in the water there can
be no severance. 13 John. R. 212.
9. But it seems that when an island is on the side of a river,
so as to give the riparian owner on that side one-fourth of the
water, the other is entitled to the whole of the three-fourths of
the river. 10 Wend. Rep. 260. See, also, 13 Mass. Rep. 507; 2
Caines' Cas. 87; 9 Pick. R. 528; 3 Kent, Com. 344, 345; 3
Rawle's R. 84; 2 Watts, R. 327; 8 Greenl. R. 138, 253; 9 Pick.
Rep. 59; 10 Pick. R. 348; 10 Wend. R. 167; Com. Dig. Action
for Nuisance, A; 4 D. & R. 583; S. C. 2 B. & C. 910; 1 Campb.
R. 463; 6 East, R. 208; 1 Wils. Rep. 174;; 1 B. & A. 258; 5
Taunt. R. 454; 2 Esp. R. 679; 2 Hill. Abr. c. 14, 16, 17; Ham.
N. P. 199; 1 Vin. Ab. 557 22 Vin. Abr. 525; 2 Chit. Bl. 403, n.
7; 3 Roll. 140, l. 40; Lois des Bat. part 1, c. 3, sed. 1, art.
3; Crabb on R. P. §398 to 443. Vide River.
WATER ORDEAL. An ancient form of trial, now abolished, by which
the accused, tied band and foot, were cast into cold water, and
if they did not sink they were deemed innocent or they were
compelled to plunge their limbs into hot water, and if they came
out unhurt they were considered innocent. Vide Ordeal.
WAVESON. This name is given to such goods as after shipwreck
appear upon the waves. Jacob, Law Dict. h. t.
WAY, estates. A passage, street or road. A right of way is a
privilege which an individual or a particular description of
persons, such as the inhabitants of a particular place, or the
owners or occupiers of such place may have, of going over another
person's ground.
2. It is an incorporeal hereditament of a real nature, a mere
easement, entirely different from public or private roads.
3. A right of way may arise, 1. By prescription and immemorial
usage. 2 McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br.
Chem. 2; 1 Roll. Ab. 936. 2. By grant. 3 Lev. 305; 1 Ld. Raym.
75; 17 Mass. 416; Crabb on R. P. §366. 3. By reservation 4. By
custom. 5. By acts of the legislature. 6. From necessity, when a
man's ground is enclosed and completely blocked up, so that he
cannot, without passing over his neighbor's land, reach the
public road. For example, should A grant a piece of land to B,
surrounded by land belonging to A; a right of way over A's land
passes of necessity to B, otherwise he could not derive any
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benefit from the acquisition. Vide 3 Rawle, 495; 2 Fairf. R.
1,56; 2 Mass. 203; 2 McCord, 448; 3 McCord, 139; 2 Pick. 577;
14 Mass. 56; 2 Hill, S. C. R. 641; and Necessity. The way is to
be taken where it will be least injurious to the owner. 4 Kent,
Com. 338. 4. Lord Coke, adopting the civil law, says there are
three kinds of ways. 1. A foot-way, called iter. 2. A foot-way
and horse-way, called adus. 3. A cart-way, which contains the
other two, called via. Co. Lit. 56, a; Pothier, Pandectae, lib.
8, t. 3, §1; Dig. 8, 3; 1 Bro. Civ. Law, 177. Vide Yelv. 142,
n; Id. 164; Woodf. Landl. & Ten. 544; 4 Kent, Com. 337; Ayl.
Pand. 307; Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M.
151; 1 Bail. R. 58; 2 Hill. Abr. c. 6; Crabb on Real Prop.
§360 to 397; Bouv. Inst. Index, h. t.; Easement; Servitude.
WAY BILL, contracts. A writing in which is set down the names
of passengers, who are carried in a public conveyance, or the
description of goods sent with a common carrier by land; when
the goods are carried by water, the instrument is called a bill
of lading. (q. v.)
WAY GOING CROP. In Pennsylvania, by the custom of the, country,
a tenant for a term certain is entitled after the expiration of
his Iease, to enter and take away the crop of grain which he had
put into the ground the preceding fall. This is called the way
going crop. 5 Binn. R. 289; 2 S. & R. 14; 1 P. R. 224.
WAYS AND MEANS. In legislative assemblies there is usually
appointed a committee whose duties are to inquire into, and
propose to the house, the ways and means to be adopted to raise
funds for the use of the government. This body is called the
committee of ways and means.
WEAR. A great dam made across a river, accommodated for the
taking of fish, or to convey a stream to a mill. Jacob's Law
Dict. h. t. Vide Dam.
WED. A covenant or agreement; whence a wedded husband.
WEEK. Seven days of time.
2. The week commences immediately after twelve o'clock, on the
night between Saturday and Sunday, and ends at twelve o'clock,
seven days of twenty-four hours each thereafter.
3. The first day of the week is called Sunday; (q. v.) the
second, Monday; the third, Tuesday; the, fourth, Wednesday;
the fifth, Thursday; the sixth, Friday; and the seventh,
Saturday. Vide 4 Pet. S. C. Rep. 361.
WEIGHAGE, mer. law. In the English law it is a duty or toll
paid for weighing merchandise; it is called tronage, (q. v.) for
weighing wool at the king's beam, or pesage, for weighing other
avoirdupois goods. 2 Chit. Com: Law, 16.
WEIGHT. A quality in natural bodies, by which they tend towards
the centre of the earth.
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2. Under the article Measure, (q. v.) it is said that by the
constitution congress possesses the power "to fix the standard of
weights and measures," and that this power has not been
exercised.
3. The weights now generally used in the United States, are the
same as those of England; they are of two kinds:
1. AVOIRDUPOIS WEIGHT.
1st. Used in almost all commercial transactions, and in the
comwon dealings of life.
27 1/3 1/2 grains = 1 dram
16 drams = 1 ounce
16 ounces = 1 pound, (lb.)
28 pounds = 1 quarter, (qr.)
4 quarters = 1 hundred weight, (cwt.)
20 hundred weight = 1 ton.
2d. Used for meat and fish.
8 pounds = 1 stone
3d. Used in the wool trade.
Cwt. qr. lb.
7 pounds = 1 clove
14 pounds = 1 stone = 0 0 14
2 stones = 1 tod = 0 1 0
6 1/2 tods = 1 wey = 1 2 14
2 weys = 1 sack = 3 1 0
12 sacks = 1 last = 39 0 0
4th. Used for butter and cheese.
8 pounds = 1 clove
56 pounds = 1 firkin.
2. TROY WEIGHT.
24 grams = 1 pennyweight
20 pennyweights = 1 ounce
12 ounces = 1 pound.
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4. These are the denominations of troy weight, when used for
weighing gold, silver and precious stones, except diamonds. Troy
weight is also used by apo-thecaries in compounding medicines;
and by them the ounce is divided into eight drams, and the drain
into three scruples, so that the latter is equal to twenty
grains. For scientific purposes, the grain only is used, and sets
of weights are constructed in decimal progression, from 10,000
grains downward to one-hundredth of a grain. The caret, used for
weighing diamonds, is three and one-sixth grains.
5. A short account of the French weights and measures is given
under the article Measure.
WEIGHT OF EVIDENCE. This phrase is used to signify that the
proof on one side, of a cause is greater than on the other.
2. When a verdict has been rendered against the weight of the
evidence, the court may, on this ground, grant a new trial, but
the court will exercise this power not merely with a cautious,
but a strict and sure judgment, before they send the case to a
second jury.
3. The general rule under such circumstances is, that the
verdict once found shall stand: the setting aside is the
exception, and ought to be an exception, of rare and almost
singular occurrence. A new trial will be granted on this ground
for either party; the evidence, however, is not to be weighed in
golden scales. 2 Hodg. R. 125; S. C. 3 Bingh. N. C. 109; Gilp.
356; 4 Yeates, 437; 3 Greenl. 276; 8 Pick. 122; 5 Wend. 595;
7 Wend. 380; 2 Vir. Cas. 235.
WELCH MORTGAGE, Eng. law, contracts. A species of security
which partakes of the nature of a mortgage, as there is a debt
due, and an estate is given as a security for the repayment, but
differs from it in the circumstances that the rents and profits
are to be received without account till the principal money is
paid off, and there is no remedy to enforce payment, while the
mortgagor has a perpetual power of redemption.
2. It is a species of vivum vadium. Strictly, however, there is
this distinction between a Welch mortgage and a vivum vadium. In
the latter the rents and profits of the estate are applied to the
discharge of the principal, after paying the interest; while in
the former the rents and profits are received in satisfaction of
his interest only. 1 Pow. Mortg. 373, a.
WELL. A hole dug in the earth in order to obtain water.
2. The owner of the estate has a right to dig in his own
ground, at such a distance as is permitted by law, from his
neighbor's land; he is not restric-ted as to the size or depth,
and is not liable to any action for rendering the well of his
neighbor useless by so doing. Lois des Bat. part. 1, c. 3, sect.
2, art. 2, §2.
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WELL KNOWING. These words are used in a declaration when the
plaintiff sues for an injury which is not immediate and with
force, and the act or nonfea-sance complained of was not prima
facie actionable, not only the injury, but the circumstances
under which it was committed, ought to be stated, as where the
injury was done by an animal. In such case, the plaintiff after
stating the injury, continues, the defendant well knowing the
mischievous propensity of his dog, permitted him to go at large.
Vide Scienter.
WERE. The name of a fine among the Saxons imposed upon a
murderer.
2. The life of every man, not excepting that of the king
himself, was esti-mated at a certain price, which was called the
were, or vestimatio capitis. The amount varied according to the
dignity of the person murdered. The price of wounds was also
varied according to the nature of the wound, or the member
injured.
WERGILD, or WEREGILD, old Eng. law. The price which in a
barbarous age, a person guilty of homicide or other enormous
offence was required to pay, instead of receiving other
punishment. 4 Bl. Com. 188. See, for the etymology of this word,
and a tariff which was paid for the murder of the different
classes of men, Guizot, Essais sur l'Histoire de France, Essai
4eme, c. 2, §2.
WETHER. A castrated ram, at least one year old in ark
indictment it may be called a sheep. 4 Car. & Payne, 216; 19
Eng. Com. Law Rep. 351.
WHALER, mar. law. A vessel employed in the whale fishery.
2. It is usual for the owner of the vessel, the captain and
crew, to divide the profits in just proportions, under an
agreement similar to the contract Di Colonna. (q. v.)
WHARF. A space of ground artificially prepared for the
reception of merchan-dise from a ship or vessel, so as to promote
the convenient loading and discharge of such vessel.
WHARFAGE. The money paid for landing goods upon, or loading
them from a wharf. Dane's Ab. Index, h. t.
WHARFINGER. One who owns or keeps a wharf, for the purpose of
receiving and shipping merchandise to or from it, for hire.
2. Like a warehouseman, (q.v.) a wharfinger is responsible for
ordinary neglect, and is therefore required to take ordinary,
care of goods entrusted to him as such. The responsibility of a
wharfinger begins when he acquires, and ends when he ceases to
have the custody of the goods in that capacity.
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3. When he begins and ceases to have such custody depends
generally upon the usages of trade and of the business. When
goods are delivered at a wharf, and the wharfinger has agreed,
expressly or by implication, to take the custody of them, his
responsibility commences; but a mere delivery at the wharf,
without such assent, does not make him liable. 3 Campb. R. 414;
4 Campb. R. 72; 6 Cowen, R. 757. When goods are in the
wharfinger's possession to be sent on board of a vessel for a
voyage, as soon as he delivers the possession and the care of
them to the proper officers of the vessel, although they are not
actually removed, he is, by the usages of trade, deemed
exonerated from any further responsibility. 5 Esp. R. 41; Story,
Bailm. §453 Abbott on Shipp. 226; Molloy, B. 2. 2, s. 2;
Roccus, Not. 88; Dig. 9, 4, 3.
WHEEL. The punishment of the wheel was formerly to put a
criminal on a wheel, and then to break his bones until he
expired. This barbarous punishment was never used in the United
States, and it has been abolished in almost every civilized
country.
WHELPS. The young of certain animals of a base nature, or ferae
naturae.
2. It is a rule that when no larceny can be committed of any
creatures of a base nature, which are ferae naturae, though tame
and reclaimed, it cannot be committed of the young of such
creatures in the nest, kennel, or den. 3 Inst. 109; 1 Russ. on
Cr. 153.
3. The owner of the land is, however, considered to have a
qualified property in such animals, ratione impotentia. 2 Bl.
Com. 394.
WHEN. At which time, in wills, standing by itself unqualified
and unexplained, this is a word of condition denoting the time at
which the gift is to continence. 6 Ves. 243; 2 Meriv. 286.
2. The context of a will may show that the word when is to be
applied to the possession only, not to the vesting of a legacy;
but to justify this construction, there must be circumstances, or
other expressions in the will, showing such to have been the
testator's intent. 7 Ves. 422; 9 Ves. 230 Coop. 145; 11 Ves.
489; 3; Bro. C. C. 471. For the effect of the word when in
contracts and in wills in the French law, see 6 Toull. n. 520.
WHEN AND WHERE. These words are used in a plea when full
defence is made the form is, "when and were it shall behove him."
This acknowledges the jurisdiction of the court. 1 Chit. Pl.
*414.
WHEREAS. This word implies a recital, and in general cannot be
used in the direct and positive averment of a fact in a
declaration or plea. Those facts which are directly denied by the
terms of the general issue, or which may, by the established
usage of pleading, be specially traversed, must be averred in
positive and direct terms; but facts, however material, which
are not directly denied by the terms of the general issue, though
liable to be contested under it, and which, according to the
usage of pleading, cannot be specially tra-versed, may be alleged
in the declaration by way of recital, under a whereas. Gould, Pl.
c. 43, §42; Bac. Ab. Pleas, &c., B. 5, 4; 2 Chit. Pl. 151, 178,
191; Gould, Pl. c. 3, §47.
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WHIPPING, punishment. The infliction of stripes.
2. This mode of punishment, which is still practiced in some of
the states, is a relict of barbarism; it has yielded in most of
the middle and northern states to the penitentiary system.
3. The punishment of whipping, so far as the same was provided
by the laws of the United States, was abolished by the act of
congress of February 28, 1839, s. 5. Vide 1 Chit. Cr. Law, 796;
Dane's Ab. Index, h. t.
WHITE PERSONS. The acts of congress which authorize the
naturalization of aliens, confine the description of such aliens
to free white persons.
2. This of course excludes the African race when pure, but it
is not easy to say what shade of color or mixture of blood will
make a white person.
3. The constitution of Pennsylvania, as amended, confines the
right of citi-zenship to free white persons; and these words,
white persons, or similar words, are used in most of the
constitutions of the southern states, in describing the electors.
WHITE RENT, English law. Rents paid in silver, and called white
rents or redditus albi, to distinguish them from other rents
which were not paid in money. 12 Inst. 19. Vide Alba firma.
WHOLE BLOOD. Being related by both the father and mother's
side; this phrase is used in contradistinction to half, blood,
(q. v.) which is relation only on one side. See Blood.
WHOLESALE. To sell by wholesale, is to sell by large parcels,
generally in original packages, and not by retail. (q. v.)
WIDOW. An unmarried woman whose husband is dead.
2. In legal writings, widow is an addition given to a woman who
is unmarried and whose husband is dead. The addition of spinster
is given to a woman who never was married. Lovel. on Wills, 269.
See Addition. As to the rights of a widow, seq Dower.
WIDOW'S CHAMBER, Eng. law. In London the apparel of a widow and
the furniture of her chamber, left by her deceased husband, is so
called, and the widow is entitled to it. 2 Bl. Com. 518.
WIDOWHOOD. The state of a man whose wife is dead or of a woman
whose husband is dead. In general there is no law to regulate the
time during whichh a man must remain a widower, or a woman a
widow, before they marry a second time. The term widowhood is
mostly applied to the state or condition of a widow.
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WIDOWER. A man whose wife is dead. A widower has a right to
administer to his wife's separate estate, and as her
administrator to collect debts due to her, generally for his own
use.
WIFE, domestic relations. A woman who has a husband.
2. A wife, as such, possesses rights and is liable to
obligations. These will be considered. 1st. She may make
contracts for the purchase of real estate for her own benefit,
unless her husband expressly dissents. 6 Binn. R. 427. And she is
entitled to a legacy directly given to her for her separate use.
6 Serg. & Rawle, R. 467. In some places, by statutory provision,
she may act as a feme sole trader, and as such acquire personal
property. 2 Serg. & Rawle, R. 289.
3. 2d. She may in Pennsylvania, and in most other states,
convey her interest in her own or her husband's lands by deed
acknowledged in a form prescribed by law. 8 Dowl. R. 630.
4. - 3d. She is under obligation to love, honor and obey her
husband and is bound to follow him wherever he may desire to
establish himself: 5 N. S. 60; (it is presumed not out of the
boundaries of the United States,) unless the husband, by acts of
injustice and such as are contrary to his marital duties, renders
her life or happiness insecure.
5. - 4th. She is not liable for any obligations she enters into
to pay money on any contract she makes, while she lives with her
husband; she is presumed in such case to act as the agent of her
husband. Chitty, Contr. 43
6. - 5th. The incapacities of femes covert, apply to their
civil rights, and are intended for their protection and interest.
Their political rights stand upon different grounds, they can,
therefore, acquire and lose a national char-acter. These rights
stand upon the general principles of the law of nations. Harp.
Eq. R. 5 3 Pet. R. 242.
7. - 6th. A wife, like all other persons, when she acts with
freedom, may be punished for her criminal acts. But the law
presumes, when she commits in his presence a crime, not malum in
se, as murder or treason, that she acts by the command and
coercion of her husband, and, upon this ground, she is exempted
from punishment. Rose. on Cr. Ev. 785. But this is only a
presumption of law, and if it appears, upon the evidence, that
she did not in fact commit the act under compulsion, but was
herself a principal actor and inciter in it, she may be punished.
1 Hale, P. C. 516; 1 Russ. on Cr. 16, 20. Vide Contract;
Divorce; Husband; Incapacity; Marriage; Necessaries; Parties
to actions; Parties to contracts; Women and, generally, Bouv.
Inst. Index,
WIFE'S EQUITY. By this phrase is understood the equitable right
of a wife to have settled upon her and her children a suitable
provision out of her estate whenever the husband cannot obtain
it, without the aid of a court of equity. Shelf. on M. and D.,
605.
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2. By the marriage the husband acquires an interest in the
property of his wife in consideration of the obligation which he
contracts by the marriage, of maintaining her and their children.
The common law enforces this duty thus voluntarily assumed by
him, and he can alien the property to which he is thus entitled
jure mariti, or in case of his bankruptcy or insolvency it would
vest in his assignee for the benefit of his creditors, and the
wife would be left with her children, entirely destitute,
notwithstanding her fortune may have been great. To remedy this
evil, courts of equity, in certain cases, give a provision to the
wife, which is called the wife's equity.
3. The principle upon which courts of equity act is, that he
who seeks the aid of equity must do equity, and that will be
withheld until an adequate settlement has been made. 1 P. Wms.
459, 460. See 5 My. & Cr. 105; 11 Sim. 569; 4 Hare, 6.
4. It will be proper to consider, 1. Out of what property the
wife has a right to claim her equity to a settlement. 2. Against
whom she may make such a claim. 3. Her rights. 4. The rights of
her children. 5. When her rights to a settlement will be barred.
5. - 1. Where the property is equitable and not recoverable at
law, it cannot be obtained without making a settlement upon a
wife and children, if one be required by her 2 P. Wins. 639; and
where, though the property be legal in its nature, it becomes,
from collateral circumstances, the subject of a suit in equity,
the wife's right to a settlement will attach. 5 My. & Cr. 97. See
2 Ves. jun., 607, 680; 4 Bro. C. C, 338; 3 Ves. 166, 421; 9
Ves. 87; 5 Madd. R. 149; 5 Ves. 517; 13 Maine, 124 10 Ala. R.
401; 9 Watts, 90; 5 John. Ch. R. 464; 3 Cowen, 591; 6 Paige,
366; 2 Bland. 545; 2 Paige, 303.
6. - 2. The wife's equity to a settlement is binding not only
upon the husband, but upon his assignee under the bankrupt or
insolvent laws. 2 Atk. 420; 3 Ves. 607; 4 Bro. C. C. 138; 6
John. Ch. R. 25; 1 Paige, 620; 4 Metc. 486; 4 Gill & John.
283; 5 Monr. 338; 10 Ala. R. 401 1 Kelly, 637. And even where
the husband assigned the wife's equitable right for a valuable
consideration, the assignee was considered liable. 4 Ves. 19.
7. - 3. As to the amount of the rights of the wife, the general
rule is that one half of the wife's property shall be settled
upon her. 2 Atk. 423; 3 Ves. 166. But it is in the discretion of
the court to give her, an adequate settlement for herself and
children. 5 John. Ch. R. 464; 6 John. Ch. R. 25; 3 Cowen, 591;
1 Desaus. 263: 2 Bland. 545; 1 Cox, R. 153; 5 B. Monr. 31; 3
Kelly, 193; 1 D, & W. 407; 9 Sim, 597; 1 S. & S. 250.
8. - 4. Whenever the wife insists upon her equity, the right
will be exten-ded to her children, but the right is strictly
personal to the wife, and her children cannot insist upon it
after her death. 2 Eden, 337; 1 J. & W. 472; 1 Madd. R. 467;
11 Bligh, N. S. 104; 2 John. Ch. R. 206; 3 Cowen, 591; 10 Ala.
R. 401; 1 Sanf. 129.
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9. - 5. The wife's equity will be barred, first, by an adequate
settlement having been made upon her; 2 Ves. 675; when she
lives in adultery apart from her husband 4 Ves. 146; but a
female ward of court, married without its consent, will not be
barred, although she should be living in adultery. 1 V. & B. 302.
WILD ANIMALS. Animals in a state of nature; animals ferae
naturae. Vide Animals; Ferae naturae.
WILFULLY, intentionally.
2. In charging certain offences it is required that they should
be stated to be wilfully done. Arch. Cr. Pl. 51, 58; Leach's Cr.
L. 556.
3. In Pennsylvania it has been decided that the word
maliciously was an equivalent for the word wilfully, in an
indictment for arson. 5 Whart. R. 427.
WILL, criminal law. The power of the mind which directs the
actions of a man.
2. In criminal law it is necessary that there should be an act
of the will to commit a crime, for unless the act is wilful it is
no offence.
3. It is the consent of the will which renders human actions
commendable or culpable, and where there is no win there can be
no transgression.
4. The defect or want of will may be classed as follows: 1.
Natural, as that of infancy. 2. Accidental; namely, 1st.
Dementia. 2d. Casualty or chance. 3d. Ignorance. (q. v.) 3.
Civil; namely, 1st. Civil subjection. 2d. Compulsion. 3d.
Necessity. 4th. Well-grounded fear. Hale's P. C. c. 2 Hawk. P. C.
book 1, c. 1.
WILL or TESTAMENT. The legal declaration of a man's intentions
of what he wills to be performed after his death. Co. Litt. 111;
Swinb. Pt. 1, s. II. 1; Shep. Touch. 398; Bac. Abr. Wills, A.
2. The terms will and testament are synonymous, and they are
used indifferently by common lawyers, or one for the other.
Swinb. p. 1, s. 1. 5; Bac. Ab. Wills. A. Civilians use the term
testament only. See Testament.
3. There are five essential requisites to make a good will.
4. - 1. The testator must be legally capable of making a will.
Generally all persons who may make valid contracts can dispose of
their property by will. See Parties to contracts. This act
requires a power of the mind freely to dispose of property.
Infants, because of their tender age, and married women, on
account of the supposed influence and control of their husbands,
have no capacity to make a will, with these exceptions, that
infants at common law may dispose of their personal estate, the
males when over fourteen years of age, and the females when over
twelve; this rule in relation to infants is not uniform in the
United States. Swinb. p. 2, s. 2; Bac. Ab. Wills, B. Persons
devoid of understanding, as idiots and lunatics, cannot make a
will.
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5. - 2. The testator at the time of making his will must have
animum test-andi, or a serious intention to make such will. If a
man therefore jestingly or boastingly and not seriously, writes
or says that such a person shall have his goods or be his
executor, this is no will. Bac. Ab. Wills, C; Com. Dig. Estates
by Devise, D 1. See 4 Serg. & Rawle, 545; 2 Yeates, 324; 5
Binn. 490; 1 Des. R. 543.
6. - 3. The mind of the testator in making his will must be
free, and not moved by fear, fraud or flattery. In such cases the
will is void or at least voidable. Bac. Ab. Wills, C; see 3
Serg. & Rawle, 269. Vide influence.
7. - 4. There must be a person to take, capable of taking; for
to render a devise or bequest valid there must be a donee in
esse, or in rerum natura, and one that shall have capacity to
take the thing given, when it is to vest, or the gift shall be
void. Plowd. 345. See Legatee.
8. - 5. The will must be put in proper form., Wills are either
written or nuncupative.
9. - 1. A will in writing must be, 1. Written on paper or
parchment; it may be in any language, and in any character,
provided it can be read or understood. 2. It must be signed by
the testator or some person authorized by him; but a sealing has
been held to be a sufficient signing. 2 Str. 764. But see 3 Lev.
R. 1; 1 Const. R. 343; 18 Ves. R. 183; 2 Ball & B. 104 5 Mood.
R. 484, and article To sign. And it ought to be signed by the
attesting witnesses. In some states three witnesses are required,
who should sign the will as such at the request and in the
presence of the testator and of each other. This formality should
generally be pursued, as the testator may have lands in such
states which would not pass without it. See, as to the
attestation of wills, Bac. Ab. Wills, D; Rob. on Wills, c. 1,
part 15. 3. It must be published, that is, the testator must do
some act from which it can be concluded that he intended the
instrument to operate as his will. 6 Cruise, 79; 4 Burn's Eccl.
Law, 119. As to the republication of wills, see Bac. Abr. Wills,
D 3; and article Publication. 4. To make a good will of goods
and chattels there must be an executor named in it, otherwise it
will be a codocil only, and the party is said to die intestate;
in such a case administration must be granted. Bac. Abr. Wills, D
2.
10. - 2. A nuncupative will or testament, is a verbal
declaration by a tes-tator of his will before a competent number
of legal witnesses.
11. Before the statute of frauds they were very common, but by
that statute, 29 C. H. c. 3, which has been substantially adopted
in a number of the states, these wills were laid under many
restrictions. Vide Dane's Ab. chap. 127, a. 2; 3 Harr. & John.
208; 6 Munf. R. 123; 1 Munf. R. 456; 4 Hen. & Munf. 91-100.
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12. In New York nuncupative wills have been abolished, except
made by a soldier while in actual military service, or by a
mariner while at sea. 2 New York Revised Statutes, 60, sec. 22.
As to nuncupative wills in Louisiana, see Testament nuncupative;
and Civil Code of Louisiana, article 1574.
13. It is a rule that the last will revokes all former wills.
It follows then that a man cannot by any testamentary act impose
upon himself the inability of making another inconsistent with
and revoking the first will. Bac. Ab. Wills, E; Swinb. pt. 7, s.
14.
14. A will voluntarily and intentionally made by a competent
testator, according to the form required by law, may be avoided,
1st. By revocation, see Revocation; Bac. Abr. Wills, G 1; Vin.
Abr. Devise, P; 1 Rolle, Ab. 615; Com. Dig. Estates by Dev. F;
and, 2d. By fraud.
15. Among the civilians they have two other kinds of wills,
namely: the mystic, which is a will enveloped in a paper and
sealed, and the witnesses attest that fact, the other is the
olographic; which is wholly written by the testator himself. See
Testament. As to wills and testaments, see Swinburne on Wills;
Roberts on Wills; Lovelass on Wills; Roper on Legacies;
Lowndes on Legacies; Will. on Ex. pt. 1; Vin. Abr. Devise;
Rolle's Abr. Devise; Bac. Abr. Wills and Testaments; Com. Dig.
Estates by Devise; Nels. Abr. h. t.; Amer. Dig. Wills; Whart.
Dig. Wills; Toll. on Executors; Off. Ex.; Orph. Legacy;
Touchst, ch. 23 Civil Code of Louisiana, B. 3, tit. 2; Bouv.
Inst. Index, h. t.; and the articles Devise; Legacy;
Testament.
WINCHESTER MEASURE. The standard measure originally kept at
Winchester, in England.
WINDOW. An opening made in the wall of a house to admit light
and air, and to enable those who are in to look out.
2. The owner has a right to make as many windows in his house
when not built on the line of his property as he may deem proper,
although by so doing be may destroy the privacy of his neighbors.
Bac. Ab. Actions in general, B.
3. In cities and towns it is evident that the owner of a house
cannot open windows in the partition wall without the consent of
the owner of the adjoining property, unless he possesses the
right of having ancient lights. (q. v.) The opening of such
windows and destroying the privacy of the adjoining property, is
not, however, actionable; the remedy against such encroachment
is by obstructing them, without encroaching upon the rights of
the party who opened them, so as to prevent a right from being
acquired by twenty years use. 3 Camp. 82.
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WISCONSIN. The name of one of the new states of the United
States, of America.
2. The constitution of Wisconsin was adopted by a convention,
at Madison, on the first day of February, 1848.
3. The right of suffrage is vested by the third article of the
constitution, as follows: Sect. 1. Every male person of the age
of twenty-one years or upwards, belonging to either of the
following classes, who shall have resided in this state for one
year next preceding any election, shall be deemed a qual-ified
elector at such election. 1st. White citizens of the United
States. 2d. White persons of foreign birth who shall have
declared their intention to become citizens, conformably to the
laws of the United States on the subject of naturalization. 3d.
Persons of Indian blood who have once been declared by law of
congress to be citizens of the United States, any subsequent act
of congress to the contrary notwithstanding.
4th. Civilized persons of Indian descent, not members of any
tribe; Provided, that the legislature may at any time extend by
law the right of suffrage to persons not herein enumerated, but
no such law shall be in force until the same shall have been
submitted to a vote of the people at a general election, and
approved by a majority of all the votes cast at such election.
Sect. 2. No person under guardianship, non compos mentis, or
insane shall be qualified to vote at any election; nor shall any
person, convicted of treason or felony, be qualified to vote at
any election, unless restored to civil rights.
Sect. 3. All votes shall be given by ballot, except for such
township officers as may by law be directed or allowed to be
otherwise chosen.
Sect. 4. No person shall be deemed to have lost his residence
in this state by reason of absence on business of the United
States or of this state.
Sect. 5. No soldier, seaman or marine, in the army or navy of
the United States, shall be deemed a resident in this state, in
consequence of being stationed within the same.
Sect. 6. Laws may be passed excluding from the right of
suffrage all persons who have been, or may be convicted of
bribery, or larceny, or any infamous crime, and depriving every
person who shall make or become directly or indirectly interested
in any bet or wager depending upon the result of any election, of
the right to vote at such election. 4, The fourth article vests
the legislative power in a senate and assembly. These will be
separately considered, by taking a view, 1. Of the senate. 2. Of
the assembly.
5. - §1. The senate. It will be proper to examine, first, the
qualification of the senators; secondly, the time of their
election; third, the duration of their office fourth, the number
of senators.
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6. - 1. The senators must have resided one year within the
state, and be qualified electors in the district which they may
be chosen to represent. Sect. 6.
7. - 2. Senators are elected on the Tuesday following the first
Monday of November by the qualified electors of the several
districts. One half every year.
8. - 3. They hold their office for two years.
9. - 4. The senate shall consist of a number of members not
more than one-third, nor less than one-fourth of the number of
the members of the assembly. Sect. 2.
10. - §2. The assembly will be, considered in the same order.
11. - 1. Members of the assembly must have resided one year in
the state, and be qualified electors for the district for which
they may be chosen.
12. - 2. Members of the assembly are elected at the same time
senators are elected.
13. - 3. They are elected annually.
14. - 4. The number of members of the assembly shall never be
less than fifty-four nor more than one hundred.
15. The two houses are invested severally with the following
powers:
Sect. 7. Each house shall be the judge of the elections,
returns and quali-fications of its own members; and a majority
of each shall constitute a quorum to do business, but a smaller
number may adjourn from day to day, and may compel the attendance
of absent members, in such manner and under such penalties as
each house may provide.
Sect. 8. Each house may determine the rules of its own
proceedings, punish for contempts and disorderly behaviour; and,
with the concurrence of two-thirds of all the members elected,
expel a member; but no member shall be expelled a second time
for the same cause.
Sect. 9. Each house shall choose its own officers, and the
senate shall choose a temporary president when the
lieutenant-governor shall not attend as president, or shall act
as governor.
Sect. 10. Each house shall keep a journal of its proceedings
and publish the same, except such parts as require secrecy. The
doors of each house shall be kept open, except when the public
welfare shall require secrecy. Neither house shall, without the
consent of the other, adjourn for more than three days.
16. By the fifth article, the executive power is vested in a
governor.
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17. - Sect. 1. The executive power shall be vested in a
governor, who shall hold his office for two years; a lieutenant
governor shall be elected at the same time, and for the same
term.
18. - Sect. 2. No person, except a citizen of the United
States, and a qua-lified elector of the state, shall be eligible
to the office of governor or lieutenant governor.
19. - Sect. 3. The governor and lieutenant governor shall be
elected by the qualified electors of the state, at the times and
places of choosing members of the legislature. The persons
respectively having the highest, number of votes for governor and
lieutenant-governor shall be elected, but in case two or more
shall have an equal and the highest number of votes for governor
or lieutenant-governor, the two houses of the legislature, at its
next annual session, shall forthwith, by joint ballot, choose one
of the persons so having an equal and the higbest number of
votes, for governor or lieutenant governor. The returns of
election for governor or lieutenant governor shall be made in
such manner as shall be provided by law.
20. - Sect. 4. The governor shall be commander-in-chief of the
military. and naval forces of the state. He shall have power to
convene the legislature on extra-ordinary occasions; and in case
of invasion, or danger from the preva-lence of contagious disease
at the seat of government, he may convene them at any other
suitable place within the state. He shall communicate to the
legislature at every session, the condition of the state; and
recommend such matters to them for their consideration as he may
deem expedient. He shall transact all necessary business with the
officers of the government, civil and military. He shall expedite
all such measures as may be resolved upon by the legislature, and
shall take care that the laws be faithfully executed.
21. - Sect. 5. The governor shall receive during his
continuance in office an annual compensation of one thousand two
hundred and fifty dollars.
22. - Sect. 6. The governor shall have the power to grant
reprieves, commutations and pardons after conviction for all
offences, except treason, and cases of impeachment, upon such
conditions and with such restrictions and lim-itations as he may
think proper, subject to such regulations as may be provided by
law relative to the manner of applying for pardons. Upon
conviction for treason he shall have the power to suspend the
execution of the sentence, until the case shall be reported to
the legislature at its next meeting, when the legislature shall
either pardon, or commute the sentence, direct the execution of
the sentence, or grant a further reprieve. He shall annually
communicate to the legislature each case of reprieve, commutation
or pardon granted, stating the name of the convict, the crime of
which he was convicted, the sentence and its date, and the date
of the commutation, pardon or re-prieve, with his reasons for
granting the same.
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23. - Sect. 7. In case of the impeachment of the governor, or
his removal from office, death, inability from mental or physical
disease, resignation or absence from the state, the powers and
the duties of the office shall devolve upon the
lieutenant-governor for the residue of the term, until the
governor, absent or impeached, shall have returned, or the
disability shall cease. But when the governor shall, with the
consent of the legislature, be out of the state in time of war,
at the head of the military force thereof, he shall continue
commander-in-chief of the military force of the state.
24. - Sect. 8. The lieutenant-governor shall be president of
the senate, but shall have only a casting vote therein. If during
a vacancy in the office of governor, the lieutenant governor
shall be impeached, displaced, resign, die, or from mental or
physical disease, become incapable of performing the duties of
his office, or be absent from the state the secretary of state
shall act as governor until the vacancy shall be filled, or the
disability shall cease.
25. - Sect. 9. The lieutenant governor shall receive double the
per them allowance of members of the senate, for every day's
attendance as president of the senate, and the same mileage as
shall be allowed to members of the legislature.
26. - Sect. 10. Every bill which shall have passed the
legislature, shall, before it becomes a law, be presented to the
governor; if he approve, he shall sign it, but if not, he shall
return it with his objections to that house in which it shall
have originated, who shall enter the objections It large upon the
journal, and proceed to reconsider it. If after such
reconsideration, two-thirds. of the members present shall agree
to pass the bill, it shall be sent, together with the objections,
to the other house, by which it shall likewise be reconsidered,
and if approved by two-thirds of the members present, it shall
become a law. But in all such cases, the votes of both houses
shall be determined by, yeas and nays, and the names of the
members, voting for or against the bill, shall be entered on the
journal of each house respectively. If any bill shall not be
returned by the governor within three days (Sundays excepted)
after it shall have been presented to him, the same shall be a
law, unless the legislature shall by their adjournment prevent
its return, in which case it shall not be a Iaw.
27. The seventh article establishes the judiciary as follows:
Sect. 1. The court for the trial of impeachments shall be
composed of the senate. The house of representatives shall have
the power of impeaching all civil officers of this state, for
corrupt conduct in office, or for crimes and misdemeanors; but a
majority of all the members elected shall concur in an
impeachment. On the trial of an impeachment against the governor,
the lieutenant governor shall not act as a member of the court.
No judicial officer shall exercise his office after he shall have
been impeached until his acquittal. Before the trial of an
impeachment, the members, of the court shall take an oath or
Bouvier's Law Dictionary : W1 : Page 30 of 50
affirmation truly and impartially to try the impeachment
according to the evidence; and no person shall be convicted
without a concurrence of two-thirds of the members present.
Judgment in case of impeachment shall not extend further than to
removal from office, or removal from office and disqualification
to hold any office of honor, profit or trust under the state;
but the party impeached shall be liable to indictment, trial and
punishment according to law.
28. - Sect. 2. The judicial power of this state, both as to
matters of law and equity, shall be vested in a supreme court,
circuit courts, courts of probate, and in justices of the peace.
The legislature may also vest such jurisdiction as shall be
deemed necessary in municipal courts and shall have power to
establish inferior courts in the several counties with limited
civil and criminal jurisdiction: Provided, that the jurisdiction
which may be vested in municipal courts shall not exceed, in
their respective municipalities, that of circuit courts, in their
respective circuits, as prescribed in this constitution: And that
the legislature shall provide as well for the election of judges
of the municipal courts, as of the judges of inferior courts, by
the qualified electors of the respective jurisdictions. The term
of office of the judges of the said municipal and inferior courts
shall not be longer than that of the judges of the circuit court.
29. - Sect, 3. The supreme court, except in cases otherwise
provided in this constitution, shall have appellate jurisdiction
only, which shall be coextensive with the state; but in no case
removed to the supreme court shall a trial by jury be allowed.
The supreme court shall have a general superintending control
over all inferior courts; it shall have power to issue writs of
habeas corpus, mandamus, injunction, quo warranto certiorari, and
other original and remedial writs, and to hear and determine the
same.
30. - Sect. 4. For the term of five years and thereafter until
the legislature shall otherwise provide, the judges of the
several courts shall be judges of the supreme court, four of whom
shall constitute a quorum, and the concurrence of a majority of
the judges present shall be necessary to a decision. The
legislature shall have power, if they should think it expedient
and necessary to provide by law for the organization of a
separate supreme court, with the jurisdiction and powers
prescribed in this constitution, to consist of one chief justice
and two associate justices, to be elected by the qualified
electors of the state, at such time and in such manner as the
legislature may provide. The separate supreme court, when so
organized, shall not be changed or discontinued by the
legislature; the judges thereof shall be so classified that but
one of them shall go out of office at the same time, and the term
of office shall be the same as provided for the judges of the
circuit court. And whenever the legislature may consider it
necessary to establish a separate supreme court, they shall have
power to reduce the number of circuit court judges to four, and
subdivide the judicial circuits, but no such subdivision or
reduction shall take effect till after the expiration of the term
of some one of the said judges, or till a vacancy occur by some
other means.
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31. Circuits are established, and they may be changed by the
legislature.
Sec. 7. For each circuit there shall be a judge chosen by the
qualified electors therein, who shall hold his office as is
provided in this constitution until his successor shall be chosen
and qualified, and after he shall have been elected, he shall
reside in the circuit for which he was elected. One of said
judges shall be designated as chief justice, in such manner as
the legislature shall provide. And the legislature shall, at its
first session, provide by law as well for the election of, as for
classifying, the judges of the circuit court to be elected under
this constitution, in such manner, that one of the said judges
shall go out of office in two years, one in three years, one in
four years, one in five years and one in six years, and
thereafter the judge elected to fill the office, shall bold the
same for six years.
32. - 8. The circuit courts shall have original jurisdiction in
all matters civil and criminal within this state, not excepted in
this constitution, and not hereafter prohibited by law, and
appellate jurisdiction from all inferior courts and tribunals,
and a supervisory control over the same. They shall also have the
power to issue writs of habeas corpus, mandamus, injunction, quo
warranto, certiorari, and all other writs necessary to carry into
effect their orders, judgments and decrees, and give them a
general control over inferior courts and jurisdictions.
33. - Sect. 9. When a vacancy shall happen in the office of a
judge of the supreme or circuit court, such vacancy shall be
filled by an appointment of the governor, which shall continue
until a successor is elected and qualified; and when elected,
such successor shall hold his office the residue of the unexpired
term. There shall be no election for a judge or judges at any
general election for state or county officers, nor within thirty
days either before or after such election.
34. - Sect. 10. Each of the judges of the supreme and circuit
courts shall receive a salary, payable quarterly, of not less
than one thousand five hundred dollars annually; they shall
receive no fees of office or other compensation than their
salaries; they shall hold no office of public trust, except a
judicial office, during the term for which they are respectively
elected, and all votes for either of them for any office except a
judicial office, given by the legislature or the people, shall be
void. No person shall be eligible to the office of judge who
shall not at the time of his election be a citizen of the United
States, and have attained the age of twenty-five years, and be a
qualified elector within the jurisdiction for which he may be
chosen.
35. - Sect. 11. The supreme court shall hold at least one term
annually at the seat of government of the state at such times as
shall be provided by law, and the legislature may provide for
holding other terms, and at other places when they may deem it
necessary. A circuit court shall be held at least twice a year,
in each county of this state, organized for judicial purposes.
The judges of the circuit court may hold courts for each other,
and shall do so when required by law.
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WISTA. Among the Saxons, this was a measure of land; it
contained a half hide, or sixty acres.
TO WIT. To know, that is to say, namely. See Scilicet.
WITH STRONG HAND, pleading. This is a technical phrase
indispensable in describing a forcible entry in an indictment. No
other word or circumlocution will answer the same purpose. 8 T.
R. 357.
WITHDRAWING A JUROR, practice. An agreement made between the
parties in a suit to require one of the twelve juror's impanneled
to try a cause to leave the jury box; the act of leaving the box
by such a juror is also called the withdrawing a juror.
2. This arrangement usually takes place at the recommendation
of the judge, when it is obviously improper the case should
proceed any further.
3. The effect of withdrawing a juror puts an end to that
particular trial, and each party must pay his own costs. 3 T. R.
657; 2 Dowl. R. 721; S. C. 1 Crom. M. & R. 64.
4. But the plaintiff may bring a new suit for the same cause of
an action. R. & M. 402; S. C. 21 E. C. L. R. 472; 3 Barn. &
Adolph. 349; S. C. 23 E. C. L. R. 91. See 3 Chit. Pr. 916.
WITHERNAM, practice. The name of a writ which issues on the
return of elon-gata to an alias or pluries writ of replevin, by
which the sheriff is commanded to take the defendant's own goods
which may be found in his bailiwick, and keep them safely, not to
deliver them to the plaintiff until such time as the defendant
chooses to submit himself, and allow the distress, and the whole
of it, to be reprevied, and he is thereby further commanded that
he do return to the court in what manner he shall have executed
the writ. Hamm. N. P. 453; 2 Inst. 140; F. N. B. 68, 69; 19
Vin. Ab. 7; 7 Com. Dig. 674; Grotius, 3, 2, 4, n. 1.
WITHOUT, pleading. This word is adopted in formal traverses,
and is a negative signifying "and not for;" accordingly the
language of the elder entries sometimes is, It et nemy pur tiel
cause," &c. Hamm. N. P. 120.
WITHOUT DAY. This signifies that the cause or thing to which it
relates is indefinitely adjourned; as when a case is adjourned
without day, it is not again to be inquired into; when the
legislature adjourn without day they are not to meet again. This
is usually expressed in Latin, sine die.
WITHOUT IMPEACHMENT OF WASTE. When a tenant for life holds the
land without impeachment of waste, he is of course dispunishable
for waste whether wilful or otherwise. But still this right must
not be wantonly abused so as to destroy the estate, and he will
be enjoined from committing malicious waste. Dane's Ab. c. 78, a.
14, §7; Bac. Ab. Waste, N; 2 Eq. Cas. Ab. tit. Waste, A. pl, 8;
2 Bouv. Inst. n. 2402. See Impeachment of Waste and Waste.
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WITHOUT RECOURSE. Vide Sans Recours and Indorsement; Chit. on
Bills, 179; 14 S. & R. 325; 3 Cranch, 193; 7 Cranch, 159; 1
Cowen, 538; 12 Mass. 172; 6 Shipl. R. 354.
WITHOUT RESERVE, contracts. These words are frequently used in
conditions of sale at public auction, that the property offered,
or to be offered for sale, will be sold without reserve.
2. When a property is advertised to be sold without reserve, if
a puffer be employed to bid, and actually bid at the sale, the
courts will not enforce a contract against a purchaser, into
which he may have been drawn by the vendor's want of faith. 5
Madd. R. 34. Vide Puffer.
WITHOUT THIS, THAT, pleading. These are technical words used in
a traverse, (q. v.) for the purpose of denying a material fact in
the preceding pleadings, whether declaration, plea, replication,
&c. In Latin it is called absque hoc. (q. v.) Lawes on Pl. in
Civ. Act. 119; Com. Dig. Pleader, G 1; Summary of Pleading, 75;
1 Saund. 103, n.; Ld. Raym. 641; 1 Burr. 320; 1 Chit. Pl. 576,
note a.
WITNESS. One who, being sworn or affirmed, according to law,
deposes as to his knowledge of facts in issue between the parties
in a cause.
2. In another sense by witness is understood one who is called
upon to be present at a transaction, as a wedding, or the making
of a will. When a person signs his name to an instrument, as a
deed, a bond, and the like, to signify that the same was executed
in his presence, he is called an attesting witness.
3. The testimony of witnesses can never have the effect of a
demonstration, because it is not impossible, indeed it frequently
happens, that they are mistaken, or wish themselves to deceive.
There can, therefore, result no other certainty from their
testimony than what arises from analogy. When in the calm of the
passions, we listen only to the voice of reason and the impulse
of nature we feel in ourselves a great repugnance to betray the
truth, to the pre-judice of another, and we have observes that
honest, intelligent and disinterested persons never combine to
deceive others by a falsehood. We conclude then, by analogy, with
a sort of moral certainty, that a fact attested by several
witnesses, worthy of credit, is true. This proof derives its
whole force from a double presumption. We presume, in the first
place, on the good sense of the witnesses that they have not been
mistaken; and, secondly, we presume on their probity that they
wish not to deceive. To be certain that they have not been
deceived, and that they do not wish to mislead, we must
ascertain, as far as possible, the nature and the quality of the
facts proved; the quality and the person of the witness; and
the testimony itself, by comparing it with the deposition of
other witnesses, or with known facts. Vide Circumstances.
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4. It is proper to consider, 1st. The character of the witness.
2d. The quality of the witness. 3d. The number of witnesses
required by law.
5. - 1. When we are called upon to rely on the testimony of
another in order to form a judgment as to certain facts, we must
be certain, 1st. That he knows the facts in question, and that he
is not mistaken; and, 2d. That he is disposed to tell the truth,
and has no desire to impose on those who are to form a judgment
on his testimony. The confidence therefore, which we give to the
witness must be considered, in the first place, by his capacity
or his organization, and in the next, by the interest or motive
which he has to tell or not to tell the truth. When the facts to
which the witness testifies agree with the circumstances which
are known to exist, he becomes much more credible than when there
is a contradiction in this respect. It is true that until
impeached one witness is as good as another; but when a witness
is impeached, although he remains competent, he is not as
credible as before. Vide Circumstances; Competency;
Credibility.
6. - 11. As to the quality of the witnesses, it is a general
rule that all persons way be witnesses. To this there are various
exceptions. A witness may be incompetent, 1. For want of
understanding. 2. On account of interest. 3. Because his
admission is contrary to public policy. 4. For want of religious
principles; and, 5. On account of infamy.
7. - §1. Persons who want understanding, it is clear, cannot be
witnesses, because they are to depose to facts which they know;
and if they have no understanding, they cannot know the facts.
There are two classes of persons of this kind.
8. - 1. Infants. A child of any age capable of distinguishing
between good and evil may be examined as a witness; and in all
cases, the examination must be under oath or affirmation. 1 Phil.
Ev. 19; 1 Const. R. 354. This appears to be the rule in England;
though formerly it was held by some judges that it was a
presumption of law that the child was incompetent when he was
under seven years of age. Gilb. Ev. 144; 1 East, R. 422; 1
East, P. C. 443; 1 Leach, 199. When the child is under fourteen,
he is presumed incapable until capacity is shown; 2 Tenn. Rep.
80; 19 Mass. R. 225; and see 18 John. R. 105; when he is over
fourteen he may be sworn without a previous examination. 2 South.
R. 589.
9. - 2. Idiots and lunatics. An idiot cannot be examined as a
witness, but a lunatic, (q. v.) during a lucid interval, (q. v.)
may be examined. A person in a state of intoxication cannot be
admitted as a witness. 15 Serg. & Rawle, 235. See Ray, Med. Jur.
c. 22, §300 to 311.
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10. - §2. Interest in the event of the suit excludes the
witness from examination, unless under certain circumstances. See
article Interest. The exceptions are the cases of informers, (q.
v.) when the statute makes them witnes-ses, although they may be
entitled to a penalty; 1 Phil. Ev. 96; persons enti-tled to a
reward, (q. v.) are sometimes competent; agents are also
admitted in order to prove a contract made by them on the part of
the principal, 1 Phil. Ev. 99; and see 1 John. Cas. 408; 2
John. Cas. 60; 2 John. R. 189; 13 Mass. R. 380; 11 Mass. R.
60; 2 Marsh. In 706 b; 1 Dall. R. 7; 1 Caines' R. 167. A mere
trustee may be examined by either party. 1 Clarke, R. 281. An
interested witness competency may be restored by a release. 1
Phil. Ev. 101. Vide, generally, 1 Day's R. 266, 269; 1 Caines'
R. 276; 8 John. R. 518; 4 Mass. R. 488; 3 John. Cas. 82, 269;
1 Hayw. 2; 5 Halst. R. 297; 6 Binn. R. 319; 4 Binn. 83; 1
Dana's R. 181; 1 Taylor's R. 55; Bac. Ab. Evidence B; Bouv.
Inst. Index, h. t.
11. - §3. There are some persons who cannot be examined as
witnesses, because it is inconsistent with public policy that
they should testify against certain persons; these are,
12. - 1. Husband and wife. The reason for excluding them from
giving evidence, either for or against each other, is founded
partly on their identity of interest, partly on a principle of
public policy which deems it necessary to guard the security and
confidence of private life, even at the risk of an occasional
failure of justice. They cannot be witnesses for each other
because their interests are absolutely the same; they are not
witnesses against each other, because it is against the policy of
marriage. Co. Litt. 6, b; 2 T. R. 265, 269; 6 Binn. 488. This
is the rule when either is a party to a civil suit or action.
13. But where one of them, not being a party, is interested in
the result, there is a distinction between the giving evidence
for and against the other. It is an invariable rule that neither
of them is a witness for the other who is interested in the
result, and that where the husband is disqualified by his
interest, the wife is also incompetent. 1 Ld. Raym. 744; 2 Str.
1095; 1 P. Wms. 610.
14. On the other hand, where the interest of the husband,
consisting in a civil liability, would not have protected him
from examination, it seems that the wife must also answer,
although the effect may be to subject her husband to an action.
This case differs very materially from those where the husband
himself could not have been examined, either because he was a
party or because he would criminate himself. The party to whom
the testimony of the wife is essential, has a legal interest in
her evidence; and as he might insist on examining the husband,
it would, it seems, be straining the rule of policy too far to
deprive him of the benefit of the wife's testimony. In an action
for goods sold and delivered, it has been held that the wife of a
third person is competent to prove that the credit was given to
her husband. 1 Str. 504; B. N. P. 287. See 1 H. & M. 154; 11
Mass. 286; 1 Har. & J. 478; 1 Tayl. 9; 6 Binn. 488; 1 Yeates;
390, 534.
15. When neither of them is either a party to the suit, nor
interested in the general result, the husband or wife is, it
seems, competent to prove any fact, provided the evidence does
not directly criminate, or tend to criminate, the other. 2 T. R.
263.
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16. It has been held in Pennsylvania that the deposition of a
wife on her death-bed, charging her husband with murdering her,
was good evidence against him, on his trial for murder. Addis.
332. On an indictment for a conspiracy in inveigling a young girl
from her mother's house, and she being intoxicated, procuring the
marriage ceremony to be recited between her and one of the
de-fendants, the girl is a competent witness to prove the facts.
2 Yeates, 114.
17. See, as to the competency of a wife de facto, but not de
jure, Stark. Ev, pt. 4, p. 711. And on an indictment for forcible
entry, the wife of the prosecutor was examined as a witness to
prove the force, but only the force. 1 Dall. 68.
18. 2. Attorneys. They cannot be examined as witnesses as to
confidential communications which they have received from their
clients, made while the relation of attorney and client
subsisted. 3 Johns. Cas. 198. See 3 Yeates, 4. Communications
thus protected must have been made to him as instructions
ne-cessary for conducting the cause, and not any extraneous or
impertinent matter; 3 Johns. Cas. 198; they must have been made
to him in the character of a counsel and not as a friend merely;
1 Caines' R. 15 7; they must have been made while the relation
of counsel and client existed, and not after. 13 John. Rep. 492.
An attorney may be examined as to the existence of a paper
entrusted to him by his client, and as to the fact that it is in
his possession, but he cannot be compelled to produce it, or
disclose its date or contents. 17 Johns. R. 335. See 18 Johns. R.
330. He may also be called to prove a collateral fact not
entrusted to him by his client; as to prove. his client's
handwriting. 19 Johns. R. 134: 3 Yeates, 4. He is a competent
witness for his client, although his judgment fee depends upon
his success; 1 Dall. 241; or he expects to receive a larger fee
from his client if the latter succeeds. 4 S. & R. 82. In
Louisiana, the reverse has been decided. It is there held that an
attorney cannot become a witness for his client in a cause in
which he was employed, by renouncing his fee, and having his name
struck off from the record, in that case. 3 N. S. 88. Vide
Confidential Communications.
19. - 3. Confessors. In New York it has been held that a
confessor could not be compelled to disclose secrets which he had
received in auricular confession. City Hall Rec. 80 n. Vide
Confessor; Confidential Communications.
20. - 4. Jurors. A juror is not competent to prove his own or
the conduct of his fellow jurors to impeach a verdict they have
rendered. 5 Conn. R. 348. See Coxe, R. 166, and article Grand
Jury. And a judge in a cause which is on trial before him cannot
be a witness, as he cannot decide on his own competency, nor on
the weight of his own testimony, compared with that of another;
2 Mart. R. N. S. 312; 1 Greenl. Ev. §364.
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21. - 5. Slaves. It is said that a slave could not be a witness
at common law because of the unbounded influence his master had
over him. 4 Dall. R. 145, note 1; but see 1 St. Tr. 113
Macnally's Ev. 156. By statutory provisions in the slave states,
a slave is generally held incompetent in actions between white
persons. See 7 Monr. R. 91; 4 Ham. R. 353; 5 Litt. R. 171; 3
Harr. & John. 97; 1 McCord, R. 430. In New York a free black man
is competent to prove facts happening while he was a slave. 1
John. R. 508; see 10 John. R. 132.
22. - 6. A party to a negotiable instrument, is not allowed to
give evidence to invalidate it. 1 T. R. 300. But the rule is
confined to negotiable instruments. 1 Bl. R. 365. This rule does
not appear to be very firmly established in England. In the state
courts of some of the United States it has been adopted, and may
now be considered to be law. 2 Dall. R. 194; ld. 196; 2 Binn.
R. 154; 2 Dall. R. 242; 1 Cain. R. 258, 267; 2 Johns. R. 165;
Id. 258; 1 John. R. 572; 3 Mass R. 559; Id. 565; Id. 27; Id.
31; 1 Day, R. 17; 6 Pet. 51; 8 Pet. 12; 5 Greenl. 374; 1
Bailey, 479; 2 Dall. 194. But flee 16 John. 70; 8 Wend. 90; 20
John. 285. The witness may however testify to subsequent facts,
not tending to show that the instrument was originally invalid.
Peake's N. P. C. 6. See 2 Wash. 63; 1 Hen. & Munf. 165, 166,
175; 1 Cranch, R. 194.
23. - §4. When the witness has no religious principles to bind
his conscience, the law rejects his testimony; but there is not
such defect of religious principles, when the witness believes in
the existence of a God, who will reward or punish in this world
or that which is to come. Willes' R. 550. Vide the article
Infidel where the subject is more fully examined and Atheist;
Future state.
24. - §5. Infamy (q. v.) is a disqualification while it
remains.
25. - III. As to the number of witnesses, it is a general rule
that one witness is sufficient to establish a fact, but to this
there are exceptions, both in civil and criminal cases.
26. - 1. In civil cases. The laws of perhaps all the states of
the Union require two witnesses and some require even more, to
prove the execution of a last will and testament devising lands.
27. - 2. In criminal cages, there are several instances where
two witnesses at least are required. The constitution of the
United States, art. 3, s. 3, provides that no person shall be
convicted of treason, unless on the testimony of two witnesses to
the same overt act, or on confession in open court. In cases of
perjury there must evidently be two witnesses, or one witness,
and such circumstances as have the effect of one witness; for if
there be but one witness, then there is oath against oath, and
therefore uncertainty.
28. A witness may be compelled to attend court. In the first
place a subpoena requiring his attendance must be served upon him
personally, and on his neglect to attend, an attachment for
contempt will be issued. See, generally, Bouv. Inst. Index, h. t.
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WITNESS, AGED. It has been laid down as a rule that to be
considered an aged witness, a person must be at least seventy
years old. See Aged Witness.
WITNESS, GOING. A going witness is one who is about to leave
the jurisdiction of the court in which a cause is depending. See
Going Witness.
WITNESS INSTRUMENTARY, Scotch law. He who has attested a deed
or other writing.
2. When witnesses attest a deed without knowing the grantor,
and seeing him subscribe, or bearing him own his subscription,
and the deed happens to be forged, the witnesses are declared
accessory to forgery. Ersk. Pr. L. Scot, 4, 4, 37; 6 Hill, N. Y.
Rep. 303.
WOMEN, persons. In its most enlarged sense, this word signifies
all the females of the human species; but in a more restricted
sense, it means all such females who have arrived at the age of
puberty. Mulieris appellatione etiam virgo viri potens
continetur. Dig. 50, 16, 13.
2. Women are either single or married. 1. Single or unmarried
women have all the civil rights of men; they may therefore enter
into contracts or engagements; sue and be sued; be trustees or
guardians, they may be witnesses, and may for that purpose attest
all papers; but they are generally, not possessed of any
political power; hence they cannot be elected representatives of
the people, nor be appointed to the offices of judge, attorney at
law, sheriff, constable, or any other office, unless expressly
authorized by law; instances occur of their being appointed
post-mistresses nor can they vote at any election. Wooddes. Lect.
31; 4 Inst. 5; but see Callis, Sew. 252; 2 Inst 34; 4 Inst.
311, marg.
3. - 2. The existence of a married woman being merged, by a
fiction of law, in the being of her husband, she is rendered
incapable, during the coverture, of entering into any contract,
or of suing or being sued, except she be joined with her husband;
and she labors under all the incapacities above mentioned, to
which single women are subject. Vide Abortion; Contract;
Divorce; Feminine; Foetus; Gender; Incapacity; Man;
Marriage; Masculine; Mother; Necessaries; Parties to Actions
Parties to Contracts; Pregnancy; Wife.
WOODGELD, old Eng. law. To be free from the payment of money
for taking of wood in any forest. Co. Litt. 233 a. The same as
Pudzeld. (q. v.)
WOODS, A piece of land on which forest trees in great number
naturally grow. According to Lord Coke, a grant to another of
omnes boscos suos, all his woods, will pass not only all his
trees, but the land on which they grow. Co. Litt. 4 b.
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WORD, construction. One or more syllables which when united
convey an idea a single part of speech.
2. Words are to be understood in a proper or figurative sense,
and they are used both ways in law. They are also used in a
technical sense. It is a general rule that contracts and wills
shall be construed as the parties understood them; every person,
bowever, is presumed to understand the force of the words be
uses, and therefore technical words must be taken according to
their legal import, even iii wills, unlesh the testator manifests
a clear intention to the contrary. 1 Bro. C. C. 33; 3 Bro. C. C.
234; 5 Ves. 401 8 Ves. 306.
3. Every one is required to use words in the sense they are
generally understood, for, as speech has been given to man to be
a sign of his thoughts, for the purpose of communicating them to
others, he is bound in treating with them, to use such words or
signs in the sense sanctioned by usage, that is, in the sense in
which they themselves understand them, or else he deceives them.
Heinnec. Praelect. in Puffendorff, lib. 1, cap. 17, §2 Heinnec.
de Jure Nat. lib. 1, §197; Wolff, lust. Jur. Nat. §7981.
4. Formerly, indeed, in cases of slander, the defamatory words
received the mildest interpretation of which they were
susceptible, and some ludicrous decisions were the consequence.
It was gravely decided, that to say of a merchant, "he is a base
broken rascal, has broken twice, and I will make him break a
third time," that no action could be maintained, because it might
be intended that he had a hernia: ne poet dar porter action, car
poet estre intend de burstness de belly. Latch, 104. But now they
are understood in their usual signification. Comb. 37; Ham. N.
P. 282. Vide Bouv. Inst. Index, h. t.; Construction;
Interpretation.
WORK AND LABOR. In actions of assumpsit, it is usual to put in
a count, commonly called a common count, for work and labor done,
and materials furnished by the plaintiff for the defendant; and
when the work was not done under a special contract, the
plaintiff will be entitled to recover on the common count for
work, labor, and materials. 4 Tyr. R. 43; 2 C. & M. 214. Vide
Assumpsit; Quantum meruit.
WORKHOUSE. A prison where prisoners are kept in employment; a
penitentiary. A house provided where the poor are taken care of,
and kept in employment.
WORKING DAYS. In settling laydays, (q. v.) or days of
demurrage, (q. v.) sometimes the contract specifies working days
in the computation, Sundays and custom-house holidays are
excluded. 1 Bell's Com. 577, 5th ed.
WORKMAN. One who labors, one who is employed to do business for
another.
2. The obligations of a workman are to perform the work he has
undertaken to do; to do it in proper time; to do it well to
employ the things furnished him according to his contract.
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3. His rights, are to be paid what his work is worth, or what
it deserves; to have all the facilities which the employer can
give him for doing his work. 1 Bouv. Just. n. 1000 to 1006.
WORSHIP. The honor and homage rendered to the Creator.
2. In the United States, this is free, every one being at
liberty to worship God according to the dictates of his
conscience. Vide Christianity; Religious test.
WORSHIP, Eng. law. A title or addition given to certain
persons. 2 Inst. 666; Bac. Ab. Misnomer, A 2.
WORTHIEST OF BLOOD. All expression to designate that, in
descent, the sons are to be preferred to daughters, which is the
law of England. See some singular reasons given for this, in
Plowd. 305.
WOUND, med. jur. This term, in legal medicine, comprehends all
lesions of the body, and in this it differs from the meaning of
the word when used in surgery. The latter only refers to a
solution of continuity, while the former comprises not only
these, but also every other kind of accident, such as bruises,
contusions, fractures, dislocations, and the like. Cooper's
Surgical Dict. h. t.; Dunglison's Med. Dict. h. t.; vide
Dictionnaire des Sciences Medicales, mot Blessures 3 Fodere, Med.
Leg. §687-811.
2. Under the statute 9 Geo. IV. c. 21, sect. 12, it has been
held in England, that to make a wound, in criminal cases, there
must be "an injury to the person by which the skin is broken." 6
C. & P. 684; S. C. 19 Engl. C. L. Rep. 526. Vide Beck's Med.
Jur. c. 15; Ryan's Med. Jur. Index, h. t.; Roscoe's Cr. Ev.
652; 19 Engl. Com. L. Rep. 425, 430, 526, 529; Dane's Ab.
Index, h. t.; 1 Moody's Cr. Cas. 278; 4 C. & P. 381; S. C. 19
E. C. L. R. 430; 4 C. & P. 446; S. C. 19 E. C. L. R. 466; 1
Moody's Cr. C. 318; 4 C. & P. 558; S. C. 19 E. C. L. R. 526;
Carr. Cr. L. 239; Guy, Med. Jur. ch. 9, p. 446; Merl. Repert.
mot Blessure.
3. When a person is found dead from wounds, it is proper to
inquire whether they are the result of suicide, accident, or
homicide. In making the examination, the greatest attention
should be bestowed on all the circumstances. On this subject some
general directions have been given under the article Death. The
reader is referred to 2 Beck's Med. Jur. 68 to 93. As to, wounds
on the living body, see Id. 188.
WRECK, mar. law. A wreck (called in law Latin, wreccum maris,
and in law French, wrec de mer,) signifies such goods, as after a
shipwreck, are cast upon land by the sea, and left there within
some county, so as not to belong to the jurisdiction of the
admiralty, but to the common law. 2 Inst. 167; Bract. 1. 3, c.
3; Mirror, c. 1, s. 13, and c. 3.
2. The term `wreck of the sea' includes, 1. Goods found at low
water, between high and low water mark; and 2. Goods between the
same limits, partly resting on the ground, but still moved by the
water. 3 Hagg. Adm. R. 257.
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3. When goods have touched the ground, and have again been
floated by the tide, and are within low water mark; whether they
are to be considered wreck will depend upon the circumstances
whether they were, seized by a person wading, or swimming, or in
a boat. 3 Hagg. Adm. R. 294. But if a human being, or even an
animal, as a dog, cat, hawk, &c. escape alive from the ship, or
if there be any marks upon the goods by which they may be known
again, they are not, at common law, considered as wrecked. 5
Burr. 2738-9; 2 Chit. Com. Law, c. 6, p. 102; 2 Kent, Com. 292;
22 Vin. Ab. 535; 1 Bro. Civ. Law, 238; Park, Ins. Index, h. t.;
Molloy, Jur. Mar. Index, h. t.
4. The act of congress of March 1, 1823, provides, §21, That,
before any goods, wares or merchandise, which may be taken from
any wreck, shall be admitted to an entry, the same shall be
appraised in the manner prescribed in the sixteenth section of
this act and the same proceedings shall be ordered and executed
in all cases where a reduction of duties shall be claimed on
account of damage which any goods, wares, or merchandise, shall
have sustained in the course of the voyage and in all cases where
the owner, importer, consignee, or agent, shall be dissatisfied
with such appraisement, he shall be entitled to the privileges
provided in the eighteenth section of this act. Vide Naufrage.
WRIT, practice. A mandatory precept issued by the authority,
and in the name of the sovereign or the state, for the purpose of
compelling the defendant to do something therein mentioned.
2. It is issued by a court or other competent jurisdiction, and
is return-able to the same. It is to be under seal and tested by
the proper officer, and is directed to the sheriff, or other
officer lawfully authorized to execute the same. Writs are
divided into, 1. Original. 2. Of mesne process. 3. Of execution.
Vide 3 Bl. Com. 273; 1 Tidd, Pr. 93; Gould on Pl. c. 2, s. 1.
There are several kinds of writs, some of which are mentioned
below.
WRIT DE BONO ET MALO. An ancient writ which was issued in the
case of each prisoner, instead of a general commission of general
jail delivery for all the prisoners. This writ has not been used
for a very long time, and is obsolete. 4 Bl. Com. 210.
WRIT OF CONSPIRACY. The name of an ancient writ, now superseded
by the more convenient remedy of an action on the case, which
might have been sued against parties guilty of a conspiracy. F.
N. B. 260. See Conspiracy.
WRIT OF DECEIT. The name of a writ which lies where one man has
done anything in the name of another, by which the latter is
damnified and deceived. F. N. B. 217.
2. The modern practice is to sue a writ of trespass on the case
to remedy the injury. See Deceit.
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WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment,
and 3 Bl. Com. 199.
WRIT DE HAERETICO COMBURENDO, Engl. law. The name of a writ
formerly issued by the secular courts, when a man was turned over
to them by the ecclesiastical tribunals, after having been
condemned for heresy.
2. It was founded on the statute 2 Hen. IV. c. 15; it was
first used, A. D. 1401, and as late as the year 1611. By virtue
of this writ, the unhappy man against whom it was issued, was
burned to death. See 12 Co. R. 92.
WRIT DE HOMINE RELEGIANDO, practice. A writ which lies to
replevy a man out of prison, or out of the custody of any private
person, in the same manner in which cattle taken in distress may
be replevied, upon giving security to the sheriff that the man
shall be forthcoming to answer to any charge against him.
2. This writ is almost entirely superseded by the more
effectual writ of habeas corpus. 3 Bl. Com. 129; Com. Dig.
Imprisonment, L 4; Lord Raym. 613; F. N. B. 66; 1 Atk. 633;
14 Vin. Ab. 305; Dane's Ab. h. t.; 7 Com. Dig. 271; 5 Binn. R.
304; 1 John. R. 23; 14 John. R. 263 2 Cain. C. Err. 322.
WRIT DE ODIO ET ATIA, Engl. law. This writ is probably
obsolete, and superseded by the writ of habeas corpus. It was
anciently directed to the sheriff, commanding him to inquire
whether a prisoner charged with murder was committed upon just
cause or suspicion, or merely propter odium et atiam, for hatred
and ill-will; and, if upon the inquisition due cause of
suspicion did not appear, then there issued another writ for
the sheriff to admit him to bail, 3 Bl. Com. 128; Com. Dig.
Imprisonment, L 3.
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WRIT OF COVENANTS, practice. A writ which lies where a party
claims damage for breach of covenant, i. e. of a promise under
seal.
WRIT OF DEBT, practice. A writ which lies where the party
claims the re-covery of a debt, i. e. a liquidated or certain sum
of money alleged to be due to him. This is debt in the debet,
which is the principal and only common form. There is another
species mentioned in the books, called the debt in the detinet,
which lies for the specific recovery of goods, under a contract
to deliver them. 1 Chit. Pl. 101.
WRIT OF DETINUE, practice. A writ which lies where a party
claims the spe-cific recovery of goods and chattels, or deeds and
writings detained from him. This is seldom used: trover is the
more frequent remedy, in cases where it may be brought.
WRIT OF DOWER, practice. A writ which lies for a widow ciaiming
the specific recovery of her dower, no part having been yet
assigned to her. It is usually called a writ of dower unde nihil
habet. 3 Chit. Pl. 393; Booth, 166.
2. There is another species, called a writ of right of dower,
which applies to the particular case where the widow has received
a part of her dower from the tenant himself, and of land lying in
the same town in which she claims the residue. Booth, 166;
Glanv. lib. 6, c. 4, 5. This latter writ is seldom used in
practice.
WRIT OF EJECTMENT, practice. The name of a process issued by a
party claiming land or other real estate, against one who is
alleged to be unlawfully in possession. Vide Ejectment.
WRIT OF ENTRY, practice. A writ requiring the sheriff to
command the tenant of land that he render to the demandant the
premises in question, or to appear in court on such a day to show
cause why he hath not done so. Co. Litt. 238. See 2 Pick. 473;
10 Pick. 359; 14 Mass. 20; 15 Mass. 305; 5 N. Hamp. R. 450; 6
N. Hamp. R. 555; 7 Pick. 36.
WRIT OF ERROR, practice. A writ issued out of a court of
competent jurisdiction, directed to the judge of a court of
record in which final judgment has been given, and commanding
them, in some cases, themselves to examine the re-cord; in
others to send it to another court of appellate jurisdiction,
therein named, to be examined in order that some alleged error in
the proceeding may be corrected. Steph. Pl. 138; 2 Saund. 100,
n. 1; Bac. Ab. Error, in pr.
2. The first is called a writ of error coram nobis or vobis.
When an issue in fact has been decided, there is not in general
any appeal except by motion for a new trial; and although a
matter. of fact should exist which was not brought into the
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issue, as for example, if the defendant neglected to Plead a
release, which he might have pleaded, this is no error in the
proceedings, though a mistake of the defendant. Steph. Pl. 139.
But there are some facts which affect the validity and regularity
of the proceeding itself, and to remedy these errors the party in
interest may sue out the writ of error coram vobis. The death of
one of the parties at the commencement of the suit; the
appearance of an infant in a personal action, by an attorney, and
not by guardian; the coverture of either party, at the
commencement of the suit, when her husband is not joined with
her, are instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212;
2 Tidd's Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.
3. The second species is called, generally, writ of error, and
is the more common. Its object is to review and correct an error
of the law committed in the proceedings, which is not amendable,
or cured at common law, or by some of the statutes of amendment
or jeofail. Vide, generally, Tidd's Pr. ob. 43; Graham's Pr. B.
4, o. 1; Bac. Ab. Error; 1 Vern. 169; Yelv. 76; 1 Salk. 322;
2 Saund. 46, n. 6, and 101, n. 1; 3 Bl. Com. 405; Serg. Const.
Law, ch. 5.
4. In the French law the demande en cassation is somewhat
similar to our proceeding in error; according to some of the
best writers on French law, it is considered as a new suit, and
it is less an action between the original parties, than a
question between the judgment and the law. It is not the action
which is to be judged, but the judgment; "la demande en
cassation est un nouveau proces, bien moins entre les parties qui
figuraient dans le premier, qu'entre l'arret et la loi." Henrion
de Pansey, de l'Autorite judiciare dans les gouvernemens
monarchiques, p. 270, edit. in 8vo.; 6 Toull. n. 193. Ce n'est
point le' proces qu'il s'agit de juger, mais le jugement. Ib.
5. A writ of error is in the nature of a suit or action, when
it is to restore the party who obtains it to the possession of
any thing which is withheld from him, not when its operation is
entirely defensive. 3 Story. Const. §1721. And it is considered
generally as a new action. 6 Port 9.
WRIT OF EXECUTION, practice. A writ to put in force the
sentence that the law has given: it is addressed to the Sheriff
(and in the courts of the United States, to the marshal)
commanding him, according to the nature of the case, either to
give the plaintiff possession of lands; or to enforce the
delivery of a chattel which was the subject of the action; or to
levy for the plain-tiff, the debt, or damager, and costs
recovered; or to levy for the defendant his costs; and that,
either upon the body of the opposite party, his lands, or goods,
or in some cases, upon his body, land, and goods; the extent and
manner of the execution directed, always depending upon the
nature of the judgment. 3 Bl. Com. 413.
2. Writs of execution are supposed to be actually awarded by
the judges in court; but no such award is in general, actually
made. The attorney, after signing final judgment, sues out of the
proper office a writ of execution, in the form to which he
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conceives he would be entitled upon such judgment as he. has
entered, if such entry has been actually made; and, if not made,
then upon such as he thinks he is entitled to enter; and he does
this, of course, upon peril that, if he takes a wrong execution,
the proceeding is legal and void, and the opposite party entitled
to redress. Steph. Pl, 137, 8. See Ca. Sa.; Execution; Fi. Fa.;
Haberefa. possessionem; Vend. Exp.
WRIT OF EXIGI FACIAS. The name of a process issued in the
course of proceedings in outlawry, and which immediately precedes
the writ of capias agatum. See Exigent, or Exigi Facias.
WRIT OF FORMEDON, practice. This writ lies where a party claims
the specific recovery of lands and tenements, as issue in tail;
or as remainder-man or reversioner, upon the determination of an
estate in tail. Co. Litt. 236 b; Booth, 139, 151, 154.
WRIT OF INQUIRY, practice. When in an action sounding in
damages, (q. v.) as covenant, trespass, and the like, an
interlocutory judgment is rendered, which is, that the plaintiff
ought to recover his damages, without specifying the amount, it
not yet being ascertained, the court does not in general
undertake the office of assessing the damages, but issues a writ
of inquiry, which is a writ directed to the sheriff of the county
where the facts are alleged by the pleadings to have occured,
commanding him to inquire into the amount of damages sustained
"by the oath or affirmation of twelve good or lawful men of his
county;" and to return such inquisition, when made, to the court.
2. The finding of the sheriff and jury under such a proceeding
is called an inquisition. (q. v.)
3. The court will, on application, order that a writ of inquiry
shall be executed before a judge, where it appears that important
questions of law will arise. 2 John. R. 107.
4. When executed before the sheriff, he acts ministerially, and
not judicially, and therefore, it may be executed before a deputy
of the sheriff. 2 John R. 63. Vide Steph. Pl. 126; Grah. Pr.
639; 2 Archb. Pr. 19; Tidd's Pr. 513; Yelv. 152, n.; 18 Eng.
Com. Law Rep. 181, n., 189, n.; 1 Marsh. R. 129; l Sell. Pr.
346; Watson on Sher. 221; 2 Saund. 107, n. 2.
WRITS, JUDICIAL, practice. In England those writs which issue
from the common law courts during the progress of a suit, are
described as judicial writs, by way of distinction from the
original one obtained from chancery. 3 Bl. Com. 282.
WRIT OF MAINPRIZE, English law. A writ directed to the sheriff
(either gen-erally, when any man is imprisoned for a bailable
offence, and bail has been refused; or specially, when the
offence or cause of commitment is not properly bailable below)
commanding him to take sureties for the prisoner's appearance,
commonly called mainpernors, and to set him at large. 3 B]. Com.
128. Vide Mainprize.
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WRIT OF MESNE, Breve' de medio, old English law. A writ which
was so called, by reason of the words used in the writ, namely,
Unde idem A qui medius est inter C et praefatum B; that is, A,
who is mesne between C, the lord paramount, and B, the tenant
paravail. Co. Litt. 100, a.
WRIT, ORIGINAL, practice, English law. An original writ is a
mandatory letter issuing out of the court of chancery under the
great seal and in a king's name, directed to the sheriff of the
county where the injury is alleged to have been committed,
containing a summary statement of the cause of complaint, and
requiring him in most cases, to command the defendant to satisy
the claim; and, on his failure to comply, then to summon him to
appear in one of the superior courts of common law, there to
account for his non-compliance. In some cases, however, it omits
the former alternative, and requires the sheriff simply to
enforce the appearance. Steph. Pl. 5.
WRIT OF REPLEVIN, practice. The name of a process issued for
the recovery of goods and chattels. Vide Replevin.
WRIT OF PRAECIPE. This writ is also called a writ of covenant,
and is sued out by the party to whom lands are to be conveyed by
fine; the foundation of which is a supposed agreement or
covenant that the one shall convey the land to the other. 2 Bl.
Com. 349, 350.
WRIT OF PREVENTION. This name is given to certain writs which
may be issued in anticipation of suits which may arise. Co. Litt.
100. See Quia Timet.
WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out by
a widow when the executors of her deceased husband refused to let
her have a third part of her late husband's goods after the debts
were paid. F. N. B. 284.
WRIT OF RESTITUTION. A writ which is issued on the reversal of
a judgment, commanding the sheriff to restore to the defendant
below, the thing levied upon, if it has not been sold, and if it
has been sold, the proceeds. Bac. Ab. Execution, Q. Vide
Restitution.
WRIT PRO RETORNO HABENDO, remedies, practice. The name of a
writ which re-cites that the defendant was summoned to appear to
answer the plaintiff in a plea whereof he took the cattle of the
said plaintiff, specifying them, and that the said plaintiff
afterwards made default, wherefore it was then considered that
the said plaintiff and his pledges of prosecuting should be in
mercy and that the said defendant should go without day, and that
he should have re-turn of the cattle aforesaid. It then commands
the sheriff, that he should cause to be returned the cattle
aforesaid, to the said defendant without delay, &c. 2 Sell. Pr.
168. Vide Judgment in replevin.
WRIT OF PROCESS, Engl. law, pradice. If the defendant does not
appear, in obedience to the original writ, there issue, when the
time for appearance is past, other writs, returnable on some
general return day in the term, called writs of process,
enforcing the appearance of the defendant, either by attachment,
or distress of his property, or arrest of his person, according
to the nature of the case.
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2. These differ from the original writ in the following
particulars; they issue not out of chancery, but out of the
court of common law, into which the original writ is returnable;
and, accordingly, are not under the great seal, but the private
seal of the court; and they bear teste in the named of the chief
justice of that court, and not in the name of the king himself.
It may also be observed, that in common with all other writs
issuing from the court of common law, during the progress of the
suit, they are described as judicial writs, by way of distinction
from the original one obtained from the chancery. 4 Bl. Com. 282.
See further, as to the nature of those writs, 1 Tidd's Pr.
106-193, 4th edit.; 1 Sellon's Pr. 64-102.
WRIT OF PROCLAMATION, Engl. practice. A writ which issues, at
the same time with the exigi facias, by virtue of Stat. 31 Eliz.
c. 3, s. 1, by which the sheriff is commanded to make
proclamations in the statute prescribed.
2. When it is not directed to the same sheriff as the writ of
exigi facias is, it is called a foreign writ of proclamation.
Lee's Dict. of Pr.; 4 Reev. Inst. 261.
WRIT OF QUARE IMPEDIT, English law. The remedy by which, where
the right of a party to benefice is obstructed, he recovers the
presentation; and is the form of action now constantly adopted
to try a disputed title to an advowson. Booth, 223 1 Arch. Civ.
Pl. 434.
WRIT OF RECAPTION, practice. This writ lies where, pending an
action of replevin, the same distrainor takes, for the same
supposed cause, the cattle or goods of the same distrainee. See
F. N. B. 169.
2. This writ is nearly obsolete, as trespass, which is found to
be a pre-ferable remedy, lies for the second taking; and, as the
defendant cannot justify, the plaintiff must necessarily recover
damages proportioned to the injury.
WRIT OF RIGHT, practice. The remedly appropriate to the case
where a party claims the specific recovery of corporeal
hereditaments in fee simple; founding his title on the right of
property, or mere right, arising either from his own seisin, or
the seisin of his ancestor or predecessor. F. N. B. 1 B 3 Bl.
Com. 391.
2. At common law, a writ of right lies only against the tenant
of the free-hold demanded. 8 Cranch, 239.
3. This writ brings into controversy only the rights of the
parties in the suit, and a defence that a third person has better
title will not avail. Id.; 7 Wheat. 27; 3 Pet. 133. See 2
Wheat. 306; 4 Bing. N. S. 711; 3 Bing. N. S. 434; 4 Scott, R.
209; 6 Scott, R. 435; Id. 738; 1 Bing. N. S. 597; 5 Bing. N.
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S. 161; 6 Ad. & Ell. 103; 1 H. Bl. 1; 5 Taunt. R. 326; 1
Marsh. R. 68; 2 Bos. & P. 570; 1 N. R. 64; 4 Taunt. R. 572; 3
Bing. R. 167; 2 W. Bl. Rep. 1261; 1 B. & B. 17; 2 Car. & P.
187; Id. 271 Holt, R. 657; 8 Cranch, 229; 3 Fairf. 312; 7
Wend. 250; 3 Bibb, 57; 3 Rand. 568 2 J. J. Marsh. 104; 2 A. K.
Marsh. 396; 1 Dana, 410; 2 Leigh, R. 1 4 Mass. 64; 17 Mass.
74.
WRIT OF TRESPASS, practice. This writ lies where a party claims
damages for a trespass committed against his person, or tangible
and corporeal property. See Trespass.
WRIT OF TRESPASS ON THE CASE, practice. A writ which lies where
a party sues for damages for any wrong or cause of complaint to
which covenant or trespass will not apply. See 3 Woodd. 167;
Steph. Pl. 15.
2. This action originates in the power given by the statute of
Westm. 2, to the clerks of chancery to frame new writs in
consimili casu with writs already known. Under this power they
constructed many writs for different injuries, which were
considered as in consimili casu, with, that is, to bear a certain
analogy to a trespass. The new writs invented for the cases
supposed to bear such analogy, have received, accordingly, the
appellation of writs of trespass on the case, as being founded on
the particular circumstances of the case thus requiring a remedy,
and, to distinguish them from the old writ of trespass; 3
Reeves, 89, 243, 391; and the injuries themselves, which are the
subjects of such writs, are not called trespasses, but have the
general name of torts, wrong or grievances.
3. The writs of trespass on the case, though invented thus, pro
re nata, in various forms, according to the nature of the
different wrongs which respectively called them forth began
nevertheless, to be viewed as constituting collectively a new
individual form of action; and this new genus took its place, by
the name of Trespass on the case, among the more ancient actions
of debt, covenant, trespass, &c. Such being the nature of this
action, it comprises, of course, many different species. There
are two, however, of more frequent use than any other species of
trespass on the case, or, perhaps, than any other firm of action
whatever. These are assumpsit and trover. Steph. Pl. 15, 16.
WRIT OF TOLT, Eng. law. The name of a writ to remove
proceedings on a writ of right patent from the court baron into
the county court. 3 Bl. Commen-taries, App. No. 1, §2.
WRIT OF WASTE. The name of a writ to be issued against a tenant
who has committed waste of the premises. There are several forms
of this writ, that against a tenant in dower differs from the
others. F. N. B. 125.
WRITING. The act of forming by the hand letters or characters
of a particular kind on paper or other suitable substance, and
artfully putting them together so as to co nvey ideas. It differs
from printing, which is the formation of words on paper or other
proper substance by means of a stamp. Sometimes by writing ii
understood printing, and sometimes printing and writing mixed.
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2. Many contracts are required to be in writing; all deeds for
real estate must be in writing, for it cannot be conveyed by a
contract not in writing, yet it is the constant practice to make
deeds partly in printing, and partly in writing. Wills, except
nuncupative wills, must begin writing, and signed by the
testator; and nuncupative wills must be reduced to writing by
the witnesses within a limited time after the testator's death.
3. Records, bonds, bills of exchange and many other
engagements, must, from their nature, be made in writing, See
Frauds, statute of; Language.
WRITING OBLIGATORY. A bond; an agreement reduced to writing,
by which the party becomes bound to perform something, or suffer
it to be done.
WRONG. An injury; (q. v.) a tort (q. v.) a violation of right.
In its most usual sense, wrong signifies an injury committed to
the person or property of another, or to his relative rights,
unconnected with contract; and these wrongs are committed with
or without force. But in a more extended signification, wrong
includes the violation of a contract; a failure by a man to
perform his undertaking or promise is a wrong or injury to him to
whom it was made. 3 Bl. Com. 158.
2. Wrongs are divided into public and private. 1. A public
wrong is an act which is injurious to the public generally,
commonly known by the name of crime, misdemeanor, or offence, and
it is punishable in various ways, such as indictments, summary
proceedings, and upon conviction by death, imprisonment, fine,
&c. 2. Private wrongs, which are injuries to individuals,
unaffecting the public: these are redressed by actions for
damages, &c.
WRONG-DOER. One who commits an injury, a tort-feasor. (q. v.)
Vide Dane's Abridgment, Index, h. t.
WRONGFULLY INTENDING. These words are used in a declaration
when in an action for an injury, the motive of the defendant in
committing it can be proved, for then his malicious intent ought
to be averred. This is sufficiently done if it be substantially
alleged, in general terms, as wrongfully intending. 3 Bouv. Inst.
n. 2871.
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