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20191229

STATE

    29.12.19  
STATE:
  government. This word is used in various senses. In its most enlarged sense, it signifies a self-sufficient body of persons united together in one community for the defence of their rights, and to do right and justice to foreigners. In this sense, the state means the whole people united into one body politic; (q. v.) and the state, and the people of the state, are equivalent expressions. 1 Pet. Cond. Rep. 37 to 39; 3 Dall. 93; 2 Dall. 425; 2 Wilson's Lect. 120; Dane's Appx. §50, p. 63 1 Story, Const. §361. In a more limited sense, the word `state' expresses merely the positive or actual organization of the legislative, or judicial powers; thus the actual government of the state is designated by the name of the state; hence the expression, the state has passed such a law, or prohibited such an act. State also means the section of territory occupied by a state, as the state of Pennsylvania.
2. By the word state is also meant, more particularly, one of the commonwealths which form the United States of America. The constitution of the United States makes the following provisions in relation to the states.
3. Art. 1, s. 9, §5. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or re-venue to the ports of one state over those of another, nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another.
4. - §6. No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
5. - §7. No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of congress, accept of any present, emolument, office, or title of any kind whatever, from, any king, prince, or foreign state.
6. - Art. 1, s. 10, §1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payments of debts; pass any bill of attainder, ex-post-facto, or law impairing the obligation of contracts; or grant any title of nobility.
7. - §2. No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of congress. No state, shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
8. The district of Columbia and the territorial districts of the United States, are not states within the meaning of the constitution and of the judiciary act, so as to enable a citizen thereof to sue a citizen of one of the states in the federal courts. 2 Cranch, 445; 1 Wheat. 91.
9. The several states composing the United States are sovereign and independent, in all things not surrendered to the national government by the constitution, and are considered, on general principles, by each other as foreign states, yet their mutual relations are rather those of domestic independence, than of foreign alienation. 7 Cranch, 481; 3 Wheat. 324; 1 Greenl. Ev. §489, 504. Vide, generally, Mr. Madison's report in the legislature of Virginia, January, 1800; 1 Story's Com. on Const. §208; 1 Kent, Com. 189, note b; Grotius, B. 1, c. 1, s. 14; Id. B. 3, c. 3, s. 2; Burlamaqui, vol. 2, pt. 1, c. 4, s. 9; Vattel, B. 1, c. 1; 1 Toull. n. 202, note 1 Nation; Cicer. de Repub. 1. 1, s. 25.
STATE, condition of persons. This word has various acceptations. If we inquire into its origin, it will be found to come from the Latin status, which is derived from the verb stare, sto, whence has been made statio, which signifies the place where a person is located, stat, to fulfil the obligations which are imposed upon him.
2. State is that quality which belongs to a person in society, and which secures to, and imposes upon him different rights and duties in consequence of the difference of that quality.
3. Although all men come from the hands of nature upon an equality, yet there are among them marked differences. It is from nature that come the distinctions of the sexes, fathers and children, of age and youth, &c.
4. The civil or municipal laws of each people, have added to these natural qualities, distinctions which are purely civil and arbitrary, founded on the manners of the people, or in the will of the legislature. Such are the differences, which these laws have established between citizens and aliens, between magistrates and subjects, and between freemen and slaves; and those which exist in some countries between nobles and plebeians, which differences are either unknown or contrary to natural law.
5. Although these latter distinctions are more particularly subject to the civil or municipal law, because to it they owe their origin, it nevertheless extends its authority over the natural qualities, not to destroy or to weaken them, but to confirm them and to render them more inviolable by positive rules and by certain maxims. This union of the civil or municipal and natural law, form among men a third species of differences which may be called mixed, because they participate of both, and derive their principles from nature and the perfection of the law; for example, infancy or the privileges which belong to it, have their foundation in natural law; but the age and the term of these prerogatives are determined by the civil or municipal law.
6. Three sorts of different qualities which form the state or condition of men may then be distinguished: those which are purely natural, those purely civil, and those which are composed of the natural and civil or municipal law. Vide 3 Bl. Com. 396; 1 Toull. n. 170, 171; Civil State.

SOVEREIGN, SOVEREIGNTY

    29.12.19  
SOVEREIGN. A chief ruler with supreme power; one possessing sovereignty. (q. v.) It is also applied to a king or other magistrate with limited powers.
2. In the United States the sovereignty resides in the body of the people. Vide Rutherf. Inst. 282.
SOVEREIGN, Eng. law. The name of a gold coin of Great Britain of the value of one pound sterling.
SOVEREIGN STATE. One which governs itself independently of any foreign power.
SOVEREIGNTY. The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Story on the Const. §207.
2. Abstractedly, sovereignty resides in the body of the nation and belongs to the people. But these powers are generally exercised by delegation.
3. When analysed, sovereignty is naturally divided into three great powers; namely, the legislative, the executive, and the judiciary; the first is the power to make new laws, and to correct and repeal the old; the second is the power to execute the laws both at home and abroad; and the last is the power to apply the laws to particular facts; to judge the disputes which arise among the citizens, and to punish crimes.
4. Strictly speaking, in our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; (q. v.) and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. (q. v.) 2 Dall. 471; and vide, generally, 2 Dall. 433, 455; 3 Dall. 93; 1 Story, Const. §208; 1 Toull. n. 20 Merl. Reper. h. t.

SOURCES OF THE LAW

    29.12.19  
SOURCES OF THE LAW:
  By this expression is understood the authority from which the laws derive their force.
2. The power of making all laws is in the people or - their representatives, and none can have any force whatever, which is derived from any other source. But it is not required that the legislator shall expressly pass upon all laws, and give the sanction of his seal, before they can have life or existence. The laws are therefore such as have received ala express sanction, and such as de-rive their force and effect from implication. The first, or express, are the constitution of the United States, and the treaties and acts of the legislature which have been made by virtue of the authority vested by the constitution. To these must be added the constitution of the state and the laws made by the state legislature, or by other subordinate legislative bodies, by virtue of the authority conveyed by such constitution. The latter, or tacit, received their effect by the general use of them by the people, when they assume the name of customs by the adoption of rules by the courts from systems of foreign laws.
3. The express laws, are first, the constitution of the United States; secondly, the treaties made with foreign powers; thirdly, the acts of congress; fourthly, the constitutions of the respective states; fifthly, the laws made by the several state legislatures; sixthly, laws made by inferior legislative bodies, such as the councils of municipal corporations, and general rules made by the courts.
4. - 1. The constitution is an act of the people themselves, made by their representatives elected for that purpose. It is the supreme law of the land, and is binding on all future legislative bodies, until it shall be altered by tho authority of the people, in the manner, provided for in the instrument itself, and if an act be passed contrary to the provisions of the constitution, it is, ipso facto, void. 2 Pet. 522; 12 Wheat. 270; 2 Dall. 309; 3 Dall. 386; 4 Dall. 18; 6 Cranch, 128.
5. - 2. Treaties made under the authority of the constitution are declared to be the supreme law of the land, and therefore obligatory on courts. 1 Cranch, 103. See Treaty.
6. - 3. The acts and resolutions of congress enacted constitutionally, are of course binding as laws and require no other explanation.
7. - 4. The constitutions of the respective states, if not opposed to the provisions of the constitution of the United States, are of binding force in the states respectively, and no act of the state legislature has any force which is made in contravention of the state constitution.
8. - 5. The laws of the several states, constitutionally made by the state legislatures, have full and complete authority in the respective states.
9. - 6. Laws are frequently made by inferior legislative bodies which are authorized by the legislature; such are the municipal councils of cities or boroughs. Their laws are generally known by the name of ordinances, and, when lawfully ordained, they are binding on the people. The courts, perhaps by a necessary usurpation, have been in the practice of making general rules and orders, which sometime affect suitors and parties as much as the most regular laws enacted by congress. These apply to all future cases. There are also rules made in particular cases as they arise, but these are rather decrees or judgments than laws.
10. The tacit laws, which derive their authority from the consent of the people, without any legislative enactment, may be subdivided into 1st. The common law, which is derived from two sources, the common law of England, and the practice and decisions of our own courts. It is very difficult, in many cases, to ascertain what is this common law, and it is always embarrassing to the courts. Kirl. Rep. Pref. In some states, it has been enacted that the common law of England shall be the law, except where the same is inconsistent with our constitutions and laws. See Law.
2d. Customs which have been generally adopted by the people, have the force of law.
3d. The principles of the Roman law, being generally founded in superior wisdom, have insinuated themselves into every part of the law. Many of the refined rules which now adorn the common law appear there without any acknowledgment of their paternity, and it is at this source that some judges dipt to get the wisdom which adorns their judgments. The proceedings of the courts of equity and many of the admirable distinctions which manifest their wisdom are derived from this source. To this fountain of wisdom the courts of admiralty owe most of the law which governs in admiralty cases.
4th. The canon law, which was adopted by the ecclesiastical courts, figures in our laws respecting marriage, divorces, wills and testaments, executors and administrators and many other subjects.
5th. The jurisprudence, or decisions of the various courts, have contributed their full share of what makes the law. These decisions are made by following precedents, by borrowing from the sources already mentioned, and, sometimes by the less excusable disposition of the judges to legislate on the bench.
11. The monuments where the common law is to be found, are the records, reports of cases adjudicated by the courts, and the treatises of learned men. The books of reports are the best proof of what is the common law, but owing to the difficulty of finding out any systematic arrangement, recourse is had to treatises upon the various branches of the law. The records, owing to their being kept in one particular place, and therefore not generally accessible, are seldom used.

SOMNAMBULISM

    29.12.19  
SOMNAMBULISM, med. juris. Sleep walking.
2. This is sometimes an inferior species of insanity, the patient being unconscious of what he is doing. A case is mentioned of a monk who was remarkable for simplicity, candor and probity, while awake, but who during his sleep in the night, would steal, rob, and even plunder the dead. Another case is related of a pious clergyman, who during his sleep, would plunder even his own church. And a case occurred in Maine, where the somnambulist attempted to hang himself, but fortunately tied the rope to his feet, instead of his neck. Ray. Med. Jur. §294.
3. It is evident, that if an act should be done by a sleep walker, while totally unconscious of his act, he would not be liable to punishment, because the intention (q. v.) and will (q. v.) would be wanting. Take, for example, the following singular case: A monk late one evening, in the presence of the prior of the convent, while in a state of somnambulism, entered the room of the prior, his eyes open but fixed, his features contracted into a frown, and with a knife in his hand. He walked straight up to the bed, as if to ascertain if the prior were there, and then gave three stabs, which penetrated the bed clothes, and a mat which served for the purpose of a mattress; he returned. with an air of satisfaction, and his features relaxed. On being questioned the next day by the prior as to what he had dreamed the preceding night, the monk confessed he had dreamed that his mother had been murdered by the prior, and that her spirit had appeared to him and cried for vengeance, that he was transported with fury at the sight, and ran directly to stab the assassin; that shortly after be awoke covered with perspiration, and rejoiced to find it was only a dream. Georget, Des Maladies Mentales, 127.
4. A similar case occurred in England, in the last century. Two persons, who had been hunting in the day, slept together at night; one of them was renewing the chase in his dream, and, imagining himself present at the death of the stag, cried out aloud, "I'll kill him! I'll kill him!" The other, awakened by the noise, got out of bed, and, by the light of the moon, saw the sleeper give several deadly stabs, with a knife, on the part of the bed his companion had just quitted. Harvey's Meditations on the Night, note 35; Guy, Med. Jur. 265.
SON, kindred. An immediate male descendant. In its technical meaning in devises, this is a word of purchase, but the testator may make it a word of descent. Sometimes it is extended to more remote descendants.

SEVERANCE

    29.12.19  
TO SEVER, practice. When defendants who are sued jointly have separate de-fences, they may in general sever, that is, each one rely on his own separate defence; each may plead severally and insist on his own separate plea. See Severance.
SEVERAL. A state of separation or partition. A several agreement or cove-nant, is one entered into by two or more persons separately, each binding himself for the whole; a several action is one in which two or more persons are separately charged; a several inheritance, is one conveyed so as to descend, or come to two persons separately by moieties. Several is usually opposed to joint. Vide 3 Rawle, 306. See Contract; Joint Contract, Parties to action.
SEVERALTY, title to an estate. An estate in severalty is one which is held by the tenant in his own right only, without any other being joined or connected with him in point of interest, during the continuance of his estate. 2 Bl. Com. 179. Cruise, Dig. 479, 480.
SEVERANCE, pleading. When an action is brought in the name of several plain-tiffs, in which the plaintiffs must of necessity join, aud one or more of the persons so named do not appear, or make default after appearance, the other may have judgment of severance, or, as it is technically called, judgment ad sequendum solum.
2. But in personal actions, with the exception of those by executors, and of detinue for charters, there can be no summons and severance. Co. Lit. 139.
3. After severance, the party severed can never be mentioned in the suit, nor derive any advantage from it.
4. When there are several defendants, each of them may use such plea as, he may think proper for his own defence; and they may join in the same plea, or sever at their discretion; Co. Litt. 303, a except perhaps, in the case of di-latory pleas. Hob. 245, 250. But when the defendants have once united in the plea, they cannot afterwards sever at the rejoinder, or other later stage of the pleading. Vide, generally, Bro. Summ. and Sev.; 2 Rolle, 488; Archb. Civ. Pl. 59.
SEVERANCE, estates. The act by which any one of the unities of a joint tenancy is effected, is so called; because the estate is no longer a joint tenancy, but is severed.
2. A severance may be effected in various ways, namely: 1. By partition, which is either voluntary or compulsory. 2. By alienation of one of the joint tenants, which turns the estate into a tenancy in common. 3. By the purchase or descent of all the shares of the joint tenants, so that the whole estate becomes vested in one only. Com. Dig. Estates by Grant, K 5; 1 Binn. R. 175.
3. In another and a less technical sense, severance is the separation of a part of a thing from another; for example, the separation of malchinery from a mill, is a severance, and, in that case, the machinery which while annexed to the mill was real estate, becomes by the severance; personalty, unless such severance be merely temporary. 8 Wend. R. 587.

SETTLE, SETTLEMENT

    29.12.19  
TO SETTLE. To adjust or ascertain to pay.
2. Two contracting parties are said to settle an account when they ascertain what is justly due by one to the other; when one pays the balance or debt due by him, he is said to settle such debt or balance. 11 Alab. R. 419
SETTLEMENT, domicil. The right which a person has of being considered as resident of a particular place.
2. It is obtained in various ways, to wit: 1. By birth. 2. By the legal settlement of the father, in the case of minor children. 3. By marriage. 4. By continued residence. 5. By the payment of requisite taxes. 6. By the lawful exercise of a public office. 7. By hiring and service for a year. 8. By serving an apprenticeship; and perhaps some others which depend upon the local statutes of the different states. Vide 1 Bl. Com. 363; 1 Dougl. 9; 2 Watts' Rep. 44, 342; 2 Penna. R. 432; 5 Serg. & Rawle, 417; 2 Yeates' R. 51; 5 Binn. R. 81; 3 Binn. R.. 22; 6 Serg. & Rawle, 103, 565; 10 Serg. & Rawle, 179. Vide Domicil.
SETTLEMENT, contracts. The conveyance of an estate, for the benefit of some person or persons.
2. It is usually made on the prospect of marriage for the benefit of the married pair, or one of them, or for the benefit of some other persons, as their children. Such settlements vest the property in trustees upon specified terms, usually for the benefit of the hushand and wife during their joint lives, and then for the benefit of the survivor for life, and afterwards for the benefit of children. Ante-nuptial agreements of this kind will be enforced in equity by a specific performance of them, provided they are fair and valid, and the intention of the parties is consistent with the principles and policy of law. Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers.
4. When made without consideration, after marriage, and the property of the hushand is settled upon his wife and children, the settlement will be valid against subsequent creditors, if, at the time of the settlement being made, he was not indebted; but, if he was then indebted, it will be void as to the creditors existing at the time of the settlement; 3 John. Ch. R. 481; 8 Wheat. R. 229; unless in cases where the hushand received a fair consideration in value of the thing settled, so as to repel the presumption of fraud. 2 Ves. 16 10 Ves. 139. Vide 1 Madd. Ch. 459; 1 Chit. Pr. 57; 2 Kent, Com. 145; 2 Supp. to Ves. jr. 80, 375; Rob. Fr. Conv. 188. See Atherl. on Mar. passim.
5. The term settlement is also applied to an agreement by which two or more persons, who have dealings together, so far arrange their accounts, as to ascertain the balance due from one to the other; and settlement sometimes signifies a payment in full.

SET, TO SET ASIDE, SET-OFF

    29.12.19  
SET, contracts. Foreign bills of exchange are generally drawn in parts; as, "pay this my first bill of exchange, second and third of the same tenor and date not paid;" the whole of these parts, which make but one bill, are called a set. Chit. Bills, 175, 6, (edition of 1836); 2 Pardess. n. 342.
TO SET ASIDE. To annul; to make void; as to set aside an award.
2. When proceedings are irregular they may be set aside on, motion of the party whom they injuriously affect.
SET-OFF, contracts, practice. Defalcation; (q. v.) a demand which a defen-dant makes against the plaintiff in the suit for the purpose of liquidating the whole or a part of his claim.
2. A set-off was unknown to the common law, according to which mutual debts were distinct and inextinguishable except by actual payment or release. 1 Rawle's R. 293; Babb. on Set-off, 1.
3. The statute 2 Geo. II., c. 22, which has been generally adopted in the United States with some modifications however, allowed, in cases of mutual debts, the defendant to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such intention, under the general issue. The statute being made for the benefit of the defendant, is not compulsory; 8 Watts, R. 39; the defendant may Waive his right, and bring a cross action against the plaintiff. 2 Campb. 594; 5 Taunt. 148; 9 Watts, R. 179
4. It seems, however, that in some cases of intestate estates, and of insolvent estates, perhaps owing to the peculiar wording of the law, the statute has been held to operate on the rights of the parties before action brought, or an act done by either of them. 2 Rawle's R. 293; 3 Binn. Rep. 135; Bac. Ab. Bankrupt K.
5. Set-off takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant. A set-off is not allowed in actions arising ex delicto, as, upon the case, trespass, replevin or detinue. Bull. N. P. 181.
6. The matters which may be set off, may be mutual liquidated debts or damages, but unliquidated damages cannot be set off. 1 Black. R. 394; 2 John. 150; 8 Conn. 325; 1 M'Cord, 7; 3 Wend. 400; 1 Stew. & Port. 19; 2 Yeates, 208; 1 Sumn. 471; 2 Blackf. 31; 1 A. K. Marsh. 41; 6 Halst. 397; 5 Wash. C. C. 232 3 Bibb, 49; 2 Caines, 33. The statutes refer only to mutual unconnected debts; for at common law, when the nature of the employment, transaction or dealings necessarily constitute an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and therefore in an action, it is not necessary in such cases either to plead or give notice of set-off. 4 Burr. 2221.
7. In general, when the government is plaintiff, no set-off will be allowed. 9 Pet. 319; 4 Dall. 303. See 9 Cranch, 313; Paine, 156. But when an act of congress authorizes such set-off, it may be made. 9 Cranch, 213.
8. Judgments in the same rights may be set off against each other at the discretion of the court. 3 Bibb 233; 3 Watts 78; 3 Halst. 172; 4 Hamm. 90; 1 Stew. & Port. 24; 7 Mass. 140, 144; 8 Cowen 126. Vide Compensation; also Mon-tagu on Set-off; Babington on Set-off; 3 Stark. Ev. h. t.; Amer. Dig. h. t.; Whart. Dig. h. t.; 3 Chit. Bl. Com. 304, n.; 1 Chit. Pl. Index, h. t.; 8 Vin. Ab. 556; Bac. Ab. h. t. 1 Sell. Pr. 321; 5 Com. Dig. 595; 6 Id. 335; 7 Id. 336; 8 Id. 927; Chit. Pr. Index, h. t.; Bouv. Inst. Index, h. t. Vide Factor.

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