EAGLE, money. A gold coin of the United States
EAR-WITNESS. One who attests to things he has heard himself.
EARL, Eng.
2. Earls were anciently called comites, because they were wont comitari regem, to wait upon the king for counsel and advice. He was also called shireman, because each earl had the civil government of a shire.
3. After the Norman conquest they were called counts, whence the shires obtained the names of counties. They have now nothing to do with the government of counties, which has entirely devolved on the sheriff, the earl's deputy, or vice comes.
EARLDOM. The seigniory of an earl; the title and dignity of an earl.
EARNEST, contracts. The payment of a part of the price of goods sold, or the delivery of part of such goods, for the purpose of binding the contract.
2. The effect of earnest is to bind the goods sold, and upon their being paid for without default, the buyer is entitled to them. But notwithstanding the earnest, the money must be paid upon taking away the goods, because no other time for payment is appointed; earnest only binds the bargain, and gives the buyer a right to demand, but a demand without payment of the money is void; after earnest given the vendor cannot sell the goods to another, without a default in the vendee, and therefore if the latter does not come and pay, and take the goods, the vendor ought to go and request him, and then if he does not come, pay for the goods and take them away in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person. 1 Salk. 113: 2 Bl. Com. 447; 2 Kent, Com. 389; Ayl. Pand. 450; 3 Campb. R. 426.
EASEMENTS, estates. An easement is defined to be a liberty privilege or advantage, which one man may have in the lands of another, without profit; it may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5 Barn. & Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord, R. 451; 14 Mass. R. 49 3 Pick. R. 408.
2. This is an incorporeal hereditament, and corresponds nearly to the servitudes or services of the civil law. Vide Lilly's Reg. h. t. 2 Bouv. Inst. n. 1600, et seq.; 3 Kent, Com. 344: Cruise, Dig. t. 31, c. 1, s. 17; 2 Hill. Ab. c. 5; 9 Pick. R. 51; 1 Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 102; Whatl. on Eas. passim; and the article Servitude.
EASTER TERM, Eng. law. One of the four terms of the courts. It is now a fixed term beginning on the 15th of April and ending the 8th of May in every year. It was formerly a movable term.
EAT INDE SINE DIE. Words used on an acquittal, or when a prisoner is to be discharged, that he may go without day, that is, that he be dismissed. Dane's Ab. Index, h. t.
EAVES-DROPPERS, crim. law. Persons as wait under walls or windows or the eaves of a house, to listen to discourses, and thereupon to frame mischievous tales.
2. The common law punishment for this offence is fine, and finding sureties for good behaviour. 4 Bl. Com. 167; Burn's Just. h. t.; Dane's Ab. Index, h. t.; 1 Russ. Cr. 302.
3. In Tennessee, an indictment will not lie for eaves-dropping. 2 Tenn. R. 108.
ECCHYMOSIS, med. jur. Blackness. It is an extravasation of blood by rupture of capillary vessels, and hence it follows contusion; but it may exist, as in cases of scurvy, and other morbid conditions, without the latter. Ryan's Med. Jur. 172.
ECCLESIA. In classical Greek this word signifies any assembly, and in this sense it is used in Acts xix. 39. But ordinarily, in the New Testament, the word denotes a Christian assembly, and is rendered into English by the word church. It occurs thrice only in, the Gospels, viz. in Matt. xvi. 18, and xviii. 17; but very frequently in the other parts of the New Testament, beginning with Acts ii. 47. In Acts xix. 37, the word churches, in the common English version, seems to be improperly used to denote heathen temples. Figuratively, the word church is employed to signify the building set apart for the Christian assemblies; but the word eclesia is not used in the New Testament in that sense.
ECCLESIASTIC. A clergyman; one destined to the divine ministry, as, a bishop, a priest, a deacon. Dom. Lois Civ. liv. prel. t. 2, s. 2, n. 14.
ECCLESIASTICAL. Belonging to, or set apart for the church; as, distinguished from civil or secular. Vide Church.
ECCLESIASTICAL COURTS. English law. Courts held by the king's authority as supreme governor of the church, for matters which chiefly concern religion.
2. There are ten courts which may be ranged under this class. 1. The Archdeacon's Court. 2. The Consistory Court. 3. The Court of Arches. 4. The Court of Peculiars. 5. The Prerogative Court. 6. The Court of Delegates, which is the great court of appeals in all ecclesiastical causes. 7. The Court of Convocation. 8. The Court of Audience. 9. The Court of Faculties. 10. The Court of Commissioners of Review.
ECCLESIASTICAL LAW. By this phrase it is intended to include all those rules which govern ecclesiastical tribunals. Vide Law Canon.
ECCLESIASTICS, canon law. Those persons who compose the hierarchial state of the church. They are regular and secular. Aso & Man. Inst. B. 2, t. 5, c. 4, §1.
ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease accompanied by apoplectic convulsions, and which produces aberration of mind at childbirth. The word Eclampsia is of Greek origin - Significat splenaorem fulgorem effulgentiam, et emicationem quales ex ocuIis aliquando prodeunt. Metaphorice sumitur de emicatione flammae vitalis in pubertate et aetaeis vigore. Castelli, Lex. Medic.
2. An ordinary person, it is said, would scarcely observe it, and it requires the practised and skilled eye of a physician to discover that the-patient is acting in total unconsciousness of the nature and effect of her acts. There can be but little doubt that many of the tragical cases of infanticide proceed from this cause. The criminal judge and lawyer cannot inquire with too much care into the symptoms of this disease, in order to discover the guilt of the mother, where it exists, and to ascertain her innocence, where it does not. See two well reported cases of this kind in the Boston Medical Journal, vol. 27, No. 10, p. 161.
EDICT. A law ordained by the sovereign, by which he forbids or commands something it extends either to the whole country, or only to some particular provinces.
2. Edicts are somewhat similar to public proclamations. Their difference consists in this, that the former have authority and form of law in themselves, whereas the latter are at most, declarations of a law, before enacted by congress, or the legislature.
3. Among the Romans this word sometimes signified, a citation to appear before a judge. The edict of the emperors, also called constitutiones principum, were new laws which they made of their own motion, either to decide cases which they had foreseen, or to abolish or change some ancient laws. They were different from their rescripts or decrees. These edicts were the sources which contributed to the formation of the Gregorian, Hermogenian, Theodosian, and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1, 2, 7; Code, 1, 1 Nov. 139.
EDICT PERPETUAL. The title of a compilation of all the edicts. This collection was made by Salvius Julianus, a jurist who was, selected by the emperor Adrian for the purpose, and who performed his task with credit to himself.
EDICTS OF JUSTINIAN. These are thirteen constitutions or laws of that prince, found in most editions of the corpus juris civilis, after the Novels. Being confined to matters of police in the provinces of the empire, they are of little use.
EFFECT. The operation of a law, of an agreement, or an act, is called its effect.
2. By the laws of the United States, a patent cannot be granted for an effect only, but it may be for a new mode or application of machinery to produce effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H. R. 61.
EFFECTS. This word used simpliciter is equivalent to property or, worldly substance, and may carry the whole personal estate, when used in a will. 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves. 507; 6 Madd. Ch. R. 119. But when it is preceded and connected with words of a narrower import, and the bequest is not residuary, it will be confined to species of property ejusdem generis with those previously described. 13 Ves. 39; 15 Ves. 826; Roper on Leg. 210.
EFFIGY, crim. law. The figure or representation of a person.
2. To make the effigy of a person with an intent to make him the object of ridicule, is a libel. (q. v.) Hawk. b. 1, c. 7 3, s. 2 14 East, 227; 2 Chit. Cr. Law, 866.
3. In France an execution by effigy or in effigy is adopted in the case of a criminal who has fled from justice. By the public exposure or exhibition of a picture or representation of him on a scaffold, on which his name and the decree condemning him are written, he is deemed to undergo the punishment to which he has been sentenced. Since the adoption of the Code Civil, the practice has been to affix the names, qualities or addition, and the residence of the condemned person, together with an extract from the sentence of condemnation, to a post set upright in the ground, instead of exhibiting a portrait of him on the scaffold. Repertoire de Villargues; Biret, Vo cab.
EFFRACTION. A breach, made by the use of force.
EFFRACTOR. One who breaks through; one who commits a burglary.
EGO. I, myself. This term is used in forming genealogical tables, to represent the person who is the object of inquiry.
EIGNE, persons. This is a corruption of the French word aine, eldest or first born.
2. It is frequently used in our old law books, bastard eigne. signifies an elder bastard when spoken of two children, one of whom was; born before the marriage of his parents, and the other after; the latter is called mulier puisne. Litt. sect. 399.
EIRE, or EYRE, English law. A journey. Justices in eyre, were itinerant judges, who were sent once in seven years with a general commission in divers counties, to hear and determine such causes as were called pleas of the crown. Vide Justices in eyre.
EJUSDEM GENERIS. Of the same kind.
2. In the construction of laws, wills and other instruments, when certain things are enumerated, and then a phrase is used which might be construed to include other things, it is generally confined to things ejusdem generas; as, where an act (9 Ann. C. 20) provided that a writ of quo warranto might issue against persons who should usurp "the offices of mayors, bailiffs, port reeves, and other offices, within the cities, towns, corporate boroughs, and places, within Great Britain," &c.; it was held that "other offices" meant offices ejusdem generis; and that the word "places" signified places of the same kind; that is, that the offices must be corporate offices, and the places must be corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D. & Ry. 393; 1 B. & C. 237.
3. So, in the construction of wills, when certain articles are enumerated, the terra goods is to be restricted to those ejusdem generis. Bac. Ab. Legacies, B; 3 Rand. 191; 3 Atk. 61; Abr. Eq. 201; 2 Atk. 113.
ELDEST. He or she who has the greatest age.
2. The laws of primogeniture are not in force in the United States; the eldest child of a family cannot, therefore, claim any right in consequence of being the eldest.
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ELEEMOSYNARY. Charitable alms-giving.
2. Eleemosynary corporations are colleges, schools, and hospitals. 1 Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R. 346.
ELEGIT, Eng. practice, remedies. A writ of execution directed to the sheriff, commanding him to make delivery of a moiety of the party's land, and all his goods, beasts of the plough only excepted.
2. The sheriff, on the receipt of the writ, holds an inquest to ascertain the value of the lands and goods he has seized, and then they are delivered to the plaintiff, who retains them until the whole debt and damages have been paid and satisfied; during that term he is called tenant by elegit. Co. Litt. 289. Vide Pow. Mortg. Index, h. t.; Wats. Sher. 206. As to the law of the several states on the subject. of seizing land and extending it. see 1 Hill. Ab. 556-6.
ELIGIBILITY. Capacity to be elected.
2. Citizens are in general eligible to all offices; the exceptions arise from the want of those qualifications which the constitution requires; these are such as regard his person, his property, or relations to the state.
3.- 1. In. general, no person is eligible to any office, until he has attained the full age of twenty-one years; no one can be elected a senator of the United States, who shall not have attained the age of thirty years, been a 'citizen of th e United States nine years and who shall not be an inhabitant of the, state for which he shall be chosen. Const. art. 1, s. 3. No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, is eligible to the office of president, and no person shall be eligible to that office, who shall not have attained the age of thirty-five years, and been fourteen years a resident within the United States. Const. art. 2, s. 1.
4. - 2. A citizen may be ineligible in consequence of his relations to the state; for example, holding an office incompatible with the office sought. Vide Ineligibility. Because he has not paid the taxes the law requires; because he has not resided a sufficient length of time in the state.
5. - 3. He may be ineligible for want of certain property qualifications required by some, law.
ELISORS, practice. Two persons appointed by the court to return a jury, when the sheriff and the coroner have been challenged as incompetent; in this case the elisors return the writ of venire directed to them, with a panel of the juror's names, and their return is final, no challenge being allowed to their array. 3 Bl. Com. 355,; 3 Cowen, 296; 1 Cowen, 32.
ELL. A measure of length. In old English the word signifies arm, which sense it still retains in the word elbow. Nature has no standard of measure. The cubit, the ell, the span, palm, hand, finger, (being taken from the individual who uses them) varies. So of the foot, pace, mile, or mille passuum. See Report on Weights and Measures, by the Secretary of State of the United. States, Feb. 22, 1821; Fathom.
ELOIGNE, practice. This word signifies, literally, to remove to a distance; to remove afar off. It is used as a return to a writ of replevin, when the chattels have been removed out of the way of the sheriff. Vide Elongata.
ELONGATA, practice. There turn made by the sheriff to a writ of replevin, when the goods have been removed to places unknown to him. See, for the form of this return, Wats. Sher. Appx. c. 18, .s. 3, p. 454; 3 Bl. Com. 148.
2. On this return the plaintiff is entitled to a capias in withernam. Vide Withernam, and Wats. Sher. 300, 301. The word eloigne, (q. v.) is sometimes used as synonymous with elongata.
ELOPEMENT. This term is used to denote the departure of a married woman from her hushand, and dwelling with an adulterer.
2. While the wife reides with her hushand, and cohabits with him, however exceptionable her conduct may be, yet he is bound to provide her with necessaries, and to pay for them; but when she elopes, the hushand is no longer liable for her alimony, and is not bound to pay debts of her contracting when the separation is notorious; and whoever gives her credit under these circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R. 42; 3 Pick. R. 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12 John. R. 293; Bull. N. P. 135; Stark. Ev. part 4, p. 699.
ELOQUENCE OR ORATORY. The act or art of speaking well upon any subject with a view to persuade. It comprehends a good elocution, correct and appropriate expressions uttered. with fluency, animation and suitable action. The principal rules of the art, which must be sought for in other works, are summarily expressed in the following lines:
" Be brief, be pointed; let your matter stand Lucid in order, solid, and at hand; Spend not your words on trifles, but condense; Strike with the mass of thoughts, not drops of sense; Press to the close with vigor once begun, And leave, (how hard the task!) leave off when done; Who draws a labor'd length of reasoning out, Put straws in lines for winds to whirl about; Who draws a tedious tale of learning o'er, Counts but the sands on ocean's boundless shore; Victory in law is gain'd as battle's fought, Not by the numbers, but the forces brought; What boots success in skirmishes or in fray, If rout and ruin following close the day? What worth a hundred Posts maintained with skill, If these all held, the foe is victor still? He who would win his cause, with power must frame Points of support, and look with steady aim: Attack the weak, defend the strong with art, Strike but few blows, but strike them to the heart; All scatter'd fires but end in smoke and noise, The scorn of men, the idle play of boys. Keep, then, this first great precept ever near, Short be your speech, your matter strong and clear, Earnest your manner, warm and rich your style, Severe in taste, yet full of grace the while; So may you reach the loftiest heights of fame, And leave, when life is past, a deathless name."
ELSEWHERE. In another place.
2. Where one devises all his land in A, B and C, three distinct towns, and elsewhere, and had lands of much greater value than those in A, B and C, in another county, the lands in the other county were decreed to pass by the word elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J., and other judges, the word elsewhere, was adjudged to be the same as if the testator had said he devised all his lands in the three towns particularly mentioned, or in any other place whatever. 3 P. Wms. 5 6. See also Prec. Chan. 202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id. 808; 2 Barr. 912; 5 Bro. P. C. 496; S. C. 1 East, 456; 1 Vern. 4 n.
3. - 2. As to the effect of the word elsewhere, in the case of lands not purchased at the time of making the will, see 3 Atk. 254; 2 Vent. 351. Vide Alibi.
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EMBARGO, maritime law. A proclamation, or order of state, usually issued in time of war, or threatened hostilities, prohibiting the departure of ships or goods from some, or all the ports of such state, until further order. 2 Wheat. 148.
2. The detention of ships by an embargo is such an injury to the owner as to entitle him to recover on a policy of insurance against "arrests or detainments." And whether the embargo be legally or illegally laid, the injury to the owner is the same; and the insurer is equally liable for the loss occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 Bell's Com. 517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or in the course of the voyage, does not, of itself, work a dissolution of a charter party, or the contract with the seamen. It is only a temporary restraint imposed by authority for legitimate political purposes, which suspends, for a time, the performance of such contracts, and leaves the rights of parties untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325, 3 B. & P. 405-434; 4 East, R. 546-566.
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EMBLEMENTS, rights. By this term is understood the crops growing upon the land. By crops is here meant the products of the earth which grow yearly and are raised by annual expense and labor, or "great manurance and industry," such as grain; but not fruits which grow on trees which are not to be planted yearly, or grass, and the like, though they are annual. Co. Litt. 55, b; Com. Dig. Biens, G; Ham. Part. 183, 184.
2. It is a general rule, that when the estate is terminated by the act of God in any other way than by the death of the tenant for life, or by act of the law, the tenant is entitled to the enablements; and when he dies before harvest time, his executors shall have the emblements, as a return for the labor and expense of the deceased in tilling the ground. 9 Johns. R. 112; 1 Chit. P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 4; Bac. Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.; Dane's Ab. Index, h. t.; 1 Penna. R. 471; 3 Penna. 496; Ang. Wat. Co. 1 Bouv. Inst. Index, h. t.
EMBRACEOR, criminal law. He who, when a matter is on trial between party and party, comes to the bar with one of the parties, and having received some reward so to do, speaks in the case or privily labors the jury, or stands there to survey or overlook them, thereby to put them in fear and doubt of the matter. But persons learned in the law may speak in a case for their clients. Co. Litt. 369; Terms de la Ley. A person who is guilty of embracery. (q. v.)
EMBRACERY, crim. law. An attempt to corrupt or influence a jury, or any way incline them to be more favorable to the one side than to the other, by money, promises, threats, or persuasions; whether the juror on whom such attempt is made give any verdict or not, or whether the Verdict be true or false. Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a; Hob. 294; Dy. 84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod. 111, 118; Com. 601; 5 Cowen, 503.
EMENDALS, Eng. law. This ancient word is said to be used in the accounts of the inner temple, where so much in emendals at the foot of an account signifies so much in bank, in stock, for the supply of emergencies. Cunn. Law Dict.
EMIGRANT. One who quits his country for any lawful reason, with a design to settle elsewhere, and who takes his family and property, if he has any, with him. Vatt. b. 1, c. 19, §224.
EMIGRATION. The act of removing from one place to another. It is sometimes used in the same sense as expatriation, (q. v.) but there is some difference in the signification. Expatriation is the act of abandoning one's country, while emigration is, perhaps not strictly, applied to the act of removing from one part of the country to another. Vide 2 Kent, Com. 36.
EMINENCE; A title of honor given to cardinals.
EMINENT DOMAIN. The right which people or government retain over the estates of individuals, to resume the same for public use.
2. It belongs to the legislature to decide what improvements are of sufficient importance to justify the exercise of the right of eminent domain. See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am. Eq. Dig. 312 3 Toull. n. 30 p. 23; Ersk. hist. B. 2) tit. 1, s. 2; Grotius, h. t. See Dominium.
EMISSARY. One who is sent from one power or government into another nation for the purpose of spreading false rumors and to cause alarm. He differs from a spy. (q. v.)
EMISSION, med. jur. The act by which any matter whatever is thrown from the body; thus it is usual to say, emission of urine, emission of semen, &c.
2. In cases of rape, when the fact of penetration is proved, it may be left to the jury whether emission did or did not take place. Proof of emission would perhaps be held to be evidence of penetration. Addis. R. 143; 2 So. Car. Const. R. 351; 2 Chitty, Crim. Law, 810; 1 Beck's Med. Jur. 140 1 Russ. C. & M. 560; 1 East, P. C. 437.
TO EMIT. To put out; to send forth,
2. The tenth section of the first article of the constitution, contains various prohibitions, among which is the following: No state shall emit bills of credit. To emit bills of credit is to issue paper intended to circulate through the-community for its ordinary purposes, as money, which paper is redeemable at a future day. 4 Pet. R. 410, 432; Story on Const. §1358. Vide Bills of credit.
EMMENAGOGUES, med. jur. The name of a class of medicines which are believed to have the power. of favoring the discharge of the menses. These are black hellebore, savine, (vide Juneperius Sabina,) madder, mercury, polygala, senega, and pennyroyal. They are sometimes used for the criminal purpose of producing abortion. (q. v.) They always endanger the life of the woman. 1 Beck's Medical Jur. 316; Dungl. Med. Diet. h. t.; Parr's Med. Dict. h. t.; 3 Paris and Fonbl. Aled. Jur. 88.
EMOLUMENT. The lawful gain or profit which arises from an office.
EMPALEMENT. A punishment in which a sharp polo was forced up the fundament. Encyc. Lond. h. t.
TO ENPANEL, practice. To make a list or roll, by the sheriff or other authorized officer, of the names of jurors who are summoned to appear for the performance of such service as jurors are required to perform.
EMPEROR, an officer. This word is synonymous with the Latin imperator; they are both derived from the. verb imperare. Literally, it signifies he who commands.
2. Under the Roman republic, the title emperor was the generic name given to the commanders-in-chief in the armies. But even then the application of the word was restrained to the successful commander, who was declared emperor by the acclamations of the army, and was afterwards honored with the title by a decree of the senate. 3. It, is now used to designate some sovereign prince who bears this title. Ayl. Pand. tit. 23.
EMPHYTEOSIS, civil law. The name of a contract by which the owner of an uncultivated piece of land granted it to another either in perpetuity, or for a long time, on condition that he should: improve it, by building, planting or cultivating it, and should pay for it an annual rent; with a right to the grantee to alienate it, or transmit it by descent to his heirs, and under a condition that the grantor should never re-enter as long as the rent should be paid to him by the grantee or his assigns. Inst. 3, 25, 3. 18 Toull. n. 144.
2. This has a striking resemblance to a ground-tent. (q. v.). See Nouveau Denisart, mot, Emphyteose; Merl. Reper. mot Emphyteose; Faber, De jure emphyt. Definit. 36; Code, 4, 66, 1.
EMPIRE. This word signifies, first, authority or command; it is the power to command or govern those actions of men which would otherwise be free; secondly, the country under the government of an emperor but sometimes it is used to designate a country subject to kingly power, as the British empire. Wolff, Inst. §833.
EMPLOYED. One who is in the service of another. Such a person is entitled to rights and liable to. perform certain duties.
2. He is entitled to a just compensation for his services; when there has been a special contract, to what has been agreed upon; when not, to such just recompense as he deserves.
3. He is bound to perform the services for which he has engaged himself; and for a violation of his engagement he may be sued, but he is not liable to corporal correction. An exception to this rule may be mentioned; on the ground of necessity, a sailor may be punished by reasonable correction, when it is necessary for the safety of the vessel, and to maintain discipline. 1 Bouv. Inst. n. 1001: 2 Id. n. 2296.
EMPLOYEE. One who is authorized to act for another; a mandatory.
EMPLOYMENT. An employment is an office; as, the secretary of the treasury has a laborious and responsible employment; an agency, as, the employment of an auctioneer; it signifies also the act by which one is engaged to do something. 2 Mart. N. S. 672; 2 Harr. Cond. Lo. R. 778.
2. The employment of a printer to publish the laws of the United States, is not an office. 17 S. & R. 219, 223. See Appointment.
EMPLOYER. One who has engaged or hired the services of another. He is entitled to rights and bound to perform duties.
2. - 1. His rights are, to be served according to the terms of the contract. 2. He has a right against third persons for an injury to the person employed, or for harboring him, so as to deprive the employer of his services. 2 Bouv. Inst. n. 2295.
3. His duties are to pay the workman the compensation agreed upon, or if there be no special agreement, such just recompense as he deserves. Vide Hire; Hirer.
EMPTION. The act of buying.
EMPTOR. A buyer; a purchaser.
EN DEMEURE. In default. This term is used in Louisiana. 3 N. S. 574. See Moral in.
ENABLING POWERS. A term used in equity. When the donor of a power, who is the owner of the estate, confers upon persons not seised of the fee, the right of creating interests to take effect out of it, which could not be done by the donee of the power, unless by such authority; this is called an enabling power. 2 Bouv. Inst. n. 1928.
TO ENACT. To establish by law; to perform or effect; to decree. The usual formula in making laws is, Be it enacted.
ENCEINTE, med. jur. A French word, which signifies pregnant.
2. When a woman is pregnant, and is convicted of a capital crime, she cannot lawfully be punished till after her delivery.
3. in the English law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate, the presumptive heir may have a writ de ventre inspiciendo, to examine whether she be with child or not. Cro. Eliz. 566; 4 Bro. C. C. 90. As to the signs of pregnancy, see 1 Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 P. Wms. 591; 1 Cox, C. C. 297 and Pregnancy; Privement enceinte.
ENCLOSURE. An artificial fence put around one's estate. Vide Close.
ENCROACHMENT. An unlawful gaining upon the right or possession of another; as, when a man sets his fence beyond his line; in this case the proper remedy for the party injured is an action of ejectment, or an action of trespass.
ENCUMBRANCE. A burden or charge upon an estate or property, so that it cannot be disposed of without being subject to it. A mortgage, a lien for taxes, are examples of encumbrances.
2. These do not affect the possession of the grantee, and may be removed or extinguished by a definite pecuniary value. See 2 Greenl. R. 22; 5 Greenl. R. 94.
3. There are encumbrances of another kind which cannot be so removed, such as easements for example, a highway, or a preexisting right to take water from, the land. Strictly speaking, however, these are not encumbrances, but appurtenances to estates in other lands, or in the language of the civil law, servitudes. (q. v.) 5 Conn. R. 497; 10 Conn. R. 422 15 John. R. 483; and see 8 Pick. R. 349; 2 Wheat. R. 45. See 15 Verm. R. 683; l Metc. 480; 9 Metc. 462; 1 App. R. 313; 4 Ala. 21; 4 Humph. 99; 18 Pick. 403; 1 Ala. 645; 22 Pick. 447; 11 Gill & John. 472.
ENDEAVOR, crim. law. An attempt. (q. v.) Vide Revolt.
ENDORSEMENT. Vide Indorsement.
ENDOWMENT. The bestowing or assuring of a dower to a woman. It is sometimes used: metaphorically, for the setting a provision for a charitable institution, as the endowment of a hospital.
ENEMY, international law. By this term is understood the whole body of a nation at war with another. It also signifies a citizen or subject of such a nation, as when we say an alien enemy. In a still more extended sense, the word includes any of the subjects or citizens of a state in amity with the United States, who, have commenced, or have made preparations for commencing hostilities against the United States; and also the citizens or subjects of a state in amity with the United States, who are in the service of a state at war with them. Salk. 635; Bac. Ab. Treason, G.
2. An enemy cannot, as a general rule, enter into any contract which can be enforeed in the courts of law; but the rule is not without exceptions; as, for example, when a state permits expressly its own citizens to trade with the enemy; and perhaps a contract for necessaries, or for money to enable the individual to get home, might be enforced. 7 Pet. R . 586.
3. An alien enemy cannot, in general, sue during the war, a citizen of the United States, either in the courts of, the United States, or those of the several states. 1 Kent, Com. 68; 15 John. R. 57 S. C. 16 John. R. 438. Vide Marsh. Ins. c. 2, s. 1; Park. Ins. Index. h. t.; Wesk. Ins. 197; Phil. Ins. Index. h. t.; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, Index, h. t.
4. By the term enemy is also understood, a person who is desirous of doing injury to another. The Latins had two terms to signify these two classes of persons; the first , or the public enemy, they called hostis, and the latter, or the private enemy, inimicus.
TO ENFEOFF. To make a gift of any corporeal hereditaments to another. Vide Feoffment.
TO ENFRANCHISE. To make free to incorporate a man in a society or body politic. Cunn. L. D. h. t. Vide Disfranchise.
ENGAGEMENT. This word is frequently used in the French law to signify not only a contract, but the obligations arising from a quasi contract. The terms obligations (q. v.) and engagements, are said to be synonymous 17 Toull. n. 1; but the Code seems specially to apply the term engagement to those obligations which the law, imposes on a man without the intervention of any contract, either on the part of the obligor or the obligee. Art. 1370.
ENGLESHIRE. A law was made by Canutus, for the preservation of his Danes, that when a man was killed, the hundred or town should be liable to be amerced, unless it could be proved that the person killed was an Englishman. This proof was called Engleshire. It consisted, generally, of the testimony of two males on the part of the father of him that had been killed, and two females on the part of his mother. Hal. Hist. P . C. 447; 4 Bl. Com. 195; Spelman, Gloss. See Francigena .
TO ENGROSS, practice, conveyancing. To copy the rude draught of an instrument in a fair and large hand. See 3 Bouv. Inst. n, 2421, note.
ENGROSSER. One who purchases large quantities of any commodities in order to have the command of the market, and to sell them again at high prices.
TO ENJOIN. To command; to require; as, private individuals are not only permitted, but enjoined by law to arrest an offender when present at the time a felony is committed or dangerous wound given, on pain of fine and imprisonment if the wrong doer escape through their negligence. 1 Hale, 587; 1 East, P. C. 298, 304; Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. In a more technical sense, to enjoin, is to command or order a defendant in equity to do or not to do a particular thing by writ of injunction. Vide Injunction.
TO ENLARGE. To extend; as, to enlarge a rule to plead, is to extend the time during which a defendant may plead. To enlarge, means also to set at liberty; as, the prisoner was enlarged on giving bail.
ENLARGING. Extending or making more comprehensive; as an enlarging statute, which is one extending the common law.
ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab. Coparceners, C.
2. When partition is voluntarily made among coparceners in England, the eldest has the first choice, or primer election, (q. v.) and the part which she takes is called enitia pars. This right is purely personal, and descends; it is also said that even her as signee shall enjoy it; but this has also been doubted. The word enitia is said to be derived from the old French, eisne the eldest. Bac. Ab. Coparceners, C; Keilw. 1 a, 49 a; 2 And. 21; Cro. Eliz. 18.
ENJOYMENT. The right which a man possesses of receiving all the product of a thing for his necessity, his use, or his pleasure.
ENLISTMENT. Thc act of making a contract to serve the government in a subordinate capacity, either in the army or navy. The contract so made, is also called an enlistment. See, as to the power of infants to enlist, 4 Binn. 487; .5 Binn. 423; Binn. 255; 1 S. & R. 87; 11 S. & R. 93.
ENORMIA. Wrongful acts. See Alia Enormia.
TO ENROLL. To register; to enter on the rolls of chancery, or other court's; to make a record.
ENROLLMENT, Eng. law. The registering, or entering in the rolls of chancery, king's bench, common pleas, or exchequer, or by the clerk of the peace in the records of the quarter sessions, of any lawful act; as a recognizance, a deed of bargain and sale, and the like. Jacob, L. D.
TO ENTAIL. To create an estate tail. Vide Tail.
ENTIRE. That which is not divided; that which is whole.
2. When a contract is entire, it must in general be fully performed, before the party can claim the compensation which was to have been paid to him; for example, when a man hires to serve another for one year, he will not be entitled to leave him at any time before the end of the year, and claim compensation for the time, unless it be done by the consent or default of the party hiring. 6 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick. R. 209; 4 McCord's R. 26, 246; 4 Greenl. R. 454; 2 Penna. R. 454; 15 John. R. 224; 4 Pick. R. 114; 9 Pick. R. 298 19 John. R. 337; 4 McCord, 249; 6 Harr. & John. 38. See Divisible.
ENTIRETY, or, ENTIERTIE. This word denotes the whole, in contradistinction to moiety, which denotes the half part. A hushand and wife, when jointly seized of land, are seized by entierties and not "pur mie" as joint tenants are. Jacob's Law Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. Johnson, 3 Penna. Law Journ. 350, 357.
ENTREPOT. A warehouse; a magazine where goods are deposited, and which are again to be removed.
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ENVOY, international law. In diplomatic language, an envoy is a minister of the second rank, on whom his sovereign or government has conferred a degree of dignity and respectability, which, without being on a level with an ambassador, immediately follows, and among ministers, yields the preeminence to him alone.
2. Envoys are either ordinary or extraordinary; by custom the latter is held in greater consideration. Vattel, liv. 4, c. 6, §72.
EPILEPSY, med. jur. A discase of the brain, which occurs in paroxysms, with uncertain intervals between them.
2. These paroxysms are characterized by the loss of sensation, and convulsive motions of the muscles. When long continued and violent, this disease is very apt to end in dementia. (q. v.) It gradually destroys the memory, and impairs the intellect, and is one of the causes of an unsound mind. 8 Ves. 87. Vide Dig. 50, 16, 123; Id. 21, 1, 4, 5.
EPISCOPACY, eccl. law. A form of government by diocesan bishops; the office or condition of a bishop.
EPISTLES, civil law. The name given to a species of rescript. Epistles were the answers given by the prince, when magistrates submitted to him a question of law. Vicle Rescripts.
EQUALITY. Possessing the same rights, and being liable to the same duties. See 1 Toull. No. l70, 193, Int.
2. Persons are all equal before the law, whatever adventitious advantages some may possess over others. All persons are protected by the law, and obedience to it is required from all.
3. Judges in court, while exercising their functions, are all upon an equality, it being a rule that inter pares non est potestas; a judge cannot, therefore, punish another judge of the same court for using any expression in court, although the words used might have been a contempt in any other person. Bac. Ab., Of the court of sessions, of justices of the peace.
4. In contracts the law presumes the parties act upon a perfect equality; when, therefore, one party uses any fraud or deceit to destroy this equality, the party grieved may avoid the contract. In case of a grant to two or more persons jointly, without designating what each takes, they are presumed to take in equal proportion. 4 Day, 395.
5. It is a maxim, that when the equity of the parties is equal, the law must prevail. 3 Call, R. 259. And that, as between different creditors, equality is equity. 4 Bouv. Inst. n. 3725; 1 Page, R. 181. See Kames on Eq. 75. Vide Deceit; Fraud.
EQUINOX. The name given to two periods of the year when the days and nights are equal; that is, when the space of time between the rising and setting of the sun is one half of a natural day. Dig. 43, 13, 1, 8. Vide Day.
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EQUIVALENT. Of the same value. Sometimes a condition must be literally accomplished in forma specifica; but some may be fulfilled by an equivalent, per oequi polens, when such appears to be the intention of the parties; as, I promise to pay you one hundred dollars, and then die, my executor may fulfil my engagement; for it is equivalent to you whether the money be paid to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.
EQUIVOCAL. What has a double sense.
2. In the construction of contracts, it is a general rule that when an expression may be taken in two senses, that shall be preferred which gives it effect. Vide Ambiguity; Construction; Interpretation; and Dig. 22, 1, 4; Id 45, 1, 80; Id. 50, 17, 67.
EQUULEUS. The name of a kind of rack for extorting confessions. Encyc. Lond.
ERASURE, contracts, evidence. The obliteration of a writing; it will render it void or not under the same circumstances as an interlineation. (q. v.) Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4 Cruise, Dig. 368; 13 Vin. Ab. 41; Fitzg. 207; 5 Bing. R. 183; 3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R. 531; 5 M. R. 190; 2 L. R. 291 3 L. R. 56; 4 L. R. 270.
2. Erasures and interlineations are presumed to have been made after the execution of a deed, unless the contrary be proved. 1 Dall. 67; 1 Pet. 169; 4 Bin. 1; 10 Serg. & R. 64, 170, 419; 16 Serg. & R. 44.
EREGIMUS. We have erected. In England, whenever the. right of creating or granting a new office is vested in the king, he must use proper words for the purpose, as eregimus, constituimus, and the like. Bac. Ab. Offices, &c., E.
EROTIC MANIA, med. jur. A name given to a morbid activity of the sexual propensity. It is a disease or morbid affection of the mind, which fills it with a crowd of voluptuous images, and hurries its victim to acts of the grossest licentiousness, in the absence of any lesion of the intellectual powers. Vide Mania.
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ESCHEAT, title to lands. According to the English law, escheat denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency; in which case the land naturally results back, by a kind of reversion, to the original grantor, or lord of the fee.. 2 Bl. Com. 244.
2. All escheats, under the English law, are declared to be strictly feudal, and to import the extinction of tenure. Wright on Ten. 115 to 117; 1 Wm. Bl. R. 123.
3. But as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat. The state steps in, in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. 4 Kent, Com. 420. It seems to be the universal rule of civilized society, that when the-deceased owner has left no heirs, it should vest in the public, and be at the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. 156; 2 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24; Jones on Land Office Titles in Penna. 5, 6, 93. For the rules of the Roman Civil Law, see Code Justinian, book 10.
ESCHEATOR. The name of an officer whose duties are generally to ascertain what escheats have taken place, and to prosecute the claim of the commonwealth for the purpose of recovering the escheated property. Vide 10 Vin. Ab. 158.
ESCROW, conveyancing, contracts. A conditional delivery of a deed to a stranger, and not to the grantee himself, until certain conditions shall be performed, and then it is to be delivered to the grantee. Until the condition be performed and the deed delivered over, the estate does not pass, but remains in the grantor. 2 Johns. R. 248; Perk. 137, 138.
2. Generally, an escrow takes effect from the second delivery, and is to be considered as the deed of the party from that time; but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed, from events happening between the first and second delivery. For example, when a feme sole makes a deed and delivers it as an escrow, and then marries before the second delivery, the relation back to the time when she was sole, is necessary to render the deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 Kent, Com. 446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig. Fait, A 3; 13 Vin. Ab. 29; 5 Mass. R. 60; 2 Root, R. 81; 5 Conn. R. 113; 1 Conn. R. 375; 6 Paige's R. 314; 2 Mass. R. 452; 10 Wend. R. 310; 4 Green]. R. 20; 2 N. H. Rep. 71; 2 Watts', R. 359; 13 John. R. 285; 4 Day's R. 66; 9 Mass. R. 310 1 John. Cas. 81; 6 Wend. R. 666; 2 Wash. R. 58; 8 Mass. R. 238; 4 Watts, R. 180; 9 Mass. Rep. 310; 2 Johns. Rep. 258-9; 13 Johns. Rep. 285; Cox, Dig. tit, Escrow; Prest. Shep. Touch. 56, 57, 58; Shep. Prec. 54, 56; 1 Prest. Abst. 275; 3 Prest. Ab. 65; 3 Rep. 35; 5 Rep. 84.
ESCUAGE, old Eng. law. Service of the shield. Tenants who hold their land by escuage, hold by knight's service. 1 Tho. Co. Litt. 272; Littl. s. 95, 86 b.
ESNECY. Eldership. In the English law, this word signifies the right which the eldest coparcener of lands has to choose one of the parts of the estate after it has been divided.
ESPLEES. The products which the land or ground yields; as the hay of the meadows, the herbage of the pasture, corn or other produce of the arable, rents and services. Termes de la Ley; see 11 Serg. & R. 2-5; Dane's Ab. Index, h. t.
ESPOUSALS, contracts. A mutual promise between a man and a woman to marry each other, at some other time: it differs from a marriage, because then the contract is completed. Wood's Inst. 57; vide Dig. 23, 1, 1; Code, 5, 1, 4; Novel, 115, c. 3, s. 11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. 1, t. 6, c. 1, §1.
ESQUIRE. A title applied by courtesy to officers of almost every description, to members of the bar, and others. No one is entitled to it by law, and, therefore, it confers, no distinction in law.
2. In England, it is a title next above that of a gentleman, and below a knight. Camden reckons up four kinds of esquires, particularly regarded by the heralds: 1. The eldest sons of knights and their eldest sons, in perpetual succession. 2. The eldest sons of the younger sons of peers, and their eldest sons in like perpetual succession. 3. Esquires created by the king's letters patent, or other investiture, and their eldest sons. 4. Esquires by virtue of their office, as justices of the peace, and others who bear any office of trust under the crown.
ESSOIN, practice. An excuse which a party bound to be in court on a particular day, offers for not being there. 1 Sell. Pr. 4; Lee's Dict. h. t.
2. Essoin day is the day on which the writ is returnable. It is considered for many purposes as the first day of the term. 1 T. R. 183. See 2 T. R. 16 n.; 4 Moore's R. 425. Vide Exoine.
ESTABLISH. This word occurs frequently in the Constitution of the United $tates, and it is there used in different meanings. 1. To settle firmly, to fix unalterably; as, to establish justice, which is the avowed object of the constitution. 2. To make or form as, to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, which evidently does not mean that these laws shall be unalterably established as justice. 3. To found, to create, to regulate; as, congress shall have power to establish post roads and post offices. 4. To found, recognize, confirm or admit; as, congress shall make no law respecting an establishment of religion. 5. To create, to ratify, or confirm; as, we, the people, &c., do ordain and establish this constitution, 1 Story, Const. §454.
ESTADAL, Spanish law. In Spanish America, this was a measure of land of sixteen square varas or yards. 2 White's Coll. 139.
ESTER EN JUGEMENT, French law. Stare in judicio. To appear before a tribunal either as plaintiff or defendant.
ESTIMATION OF VALUES. As the value of most things is variable, according to circumstances, the law in many cases determines the time at which the value of a thing should be taken; thus, the value of an advancement, is to be taken at the time of the gift. 1 Serg. & R. 425. Of a gift in frank-marriage, at the time of partition between the parceners, and the bringing of the gift in frank-marriage into hotchpot. But this is a case sui generis. Co. Lit. §273; 1 Serg. & R. 426. Of the yearly value of properties; at the time of partition. Tho. Co. Lit. 820. Of a bequest of so pieces of coin; at the time of the will made. Godolph, 0. L. 273, part 3, chap. 1. §3. Of assets to make lineal warranty a bar; at the time of the descent. Co. Lit. 374, b. Of lands warranted; at the time of the warranty. Beames' Glanv. 75 n.; 2 Serg. & Rawle, 444, see Eviction 2. Of a ship lost at sea; her value is to be taken at the port from which she sailed, deducting one-fifth; 2 Serg. & Rawle, 258; 1 Caines, 572; 2 Condy. Marshall, 545; but different rules prevail on this subject in different nations. 2 Serg. & R. 259. Of goods lost at sea; their value is to be taken at the port of delivery. 2 Serg. & R. 257. The comparative value of a life estate, and the remainder in fee, is one-third for the life and two-thirds for the remainder in fee; and moneys due upon a mortgage of lands devised to one for life, and the remainder in fee to another, are to be apportioned by the same rule. 1 Vern. 70; 1 Chit. Cas. 223, 224, 271; Francis' Max. 3, §12, and note. See Exchange, 3-2.
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ESTOVERS, estates. The right of taking necessary wood for the use or furniture of a house or farm, from off another's estate. The word bote is used synonymously with the word estovers. 2 Bl. Com. 35; Dane's Ab. Index, h. t.; Woodf. L. & T. 232; 10 Wend. 639; 2 Bouv. Inst. n. 1652 57.
ESTRAYS. Cattle whose owner is unknown.
2. In the United States, generally, it is presumed by local regulations, they are subject to, being sold for the benefit of the poor, of some other public use, of the place where found.
ESTREAT. This term is used to signify a true copy or note of some original writing or record, and specially of flues and amercements imposed by a court, and extracted from the record, and certified to a proper officer or officers authorized and required to collect them. Vide F. N. B. 57, 76.
ESTREPE. This word is derived from the French, estropier, to cripple. It signifies an injury to lands, to the damage of another, as a reversioner. This is prevented by a writ of estrepemeut.
ESTREPEMENT. The name of a writ which lay at common law to prevent a party in possession from committing waste on an estate, the title to which is disputed, after judgment obtained in any real action, and before possession was delivered by the sheriff.
2. But as waste might be committed in some cases, pending the suit, the statute of Gloucester gave another writ of estrepement pendente placito, commanding the sheriff firmly to inhibit the tenant "ne faciat vastum vel strepementum pendente placito dicto indiscusso." By virtue of either of these writs, the sheriff may resist those who commit waste or offer to do so; and he may use sufficient force for the purpose. 3 Bl. Com. 225, 226.
3. This writ is sometimes directed to the sheriff and the party in possession of the lands, in order to make him amenable to the court as for a contempt in case of his disobedience to the injunction of the writ. At common law the process proper to bring the tenant into court is a venire facias, and thereon an attachment. Upon the defendant's coming in, the plaintiff declares against him. The defendant usually pleads "that he has done no waste contrary to the prohibition of the writ." The issue on this plea is tried by a jury, and in case they find against the defendant, they assess damages which the plaintiff recovers. But as this verdict convicts the defendant of a contempt, the court proceed against him for that cause as in other cases. 2 Co. Inst. 329; Rast. Ent. 317; Brev. Judic. 88; More's Rep. 100; 1 Bos. & Pull. 121; 2 Lilly's Reg. tit. Estrepement; 5 Rep. 119; Reg. Brev. 76, 77.
4. In Pennsylvania, by legislative enactment, the remedy by estrepement is extended for the benefit of any owner of lands leased for years or at will, at any time during the continuance or after the expiration of such demise, and due notice given to the tenant to leave the same, agreeably to law, or for any purchaser at sheriff or coroner's sale of lands. &c., after he has been declared the highest bidder by the sheriff or coroner; or for any mortgagee or judgment creditor, after the lands bound by such judgment or mortgage, shall have been condemned by inquisition, or which may be subject to be sold by a writ of venditioni exponas or levari facias. Vide 10 Vin. Ab. 497; Woodf. Landl. & Ten, 447; Archb. Civ. Pl. 17; 7 Com. Dig. 659.
ET CETERA. A Latin phrase, which has been adopted into English; it signifies. "and the others, and so of the rest," it is commonly abbreviated, &c.
2. Formerly the pleader was required to be very particular in making his defence. (q. v.) B making full defence, he impliedly admitted the jurisdiction of the court, and the competency of the plaintiff to sue; and half defence was used when the defendant intended to plead to the jurisdictions or disability. To prevent the inconveniences which might arise by pleading full or half defence, it became the practice to plead in the following form: " And the said C D, by E F, his attorney, comes and defends the wrong and injury, when, &c., and says," which was either full or half defence. 2 Saund. 209, c.; Steph. Pl. 432; 2 Chit. Pl. 455.
3. In practice, the &c. is used to supply the place of words which have been omitted. In taking recognizance, for example, it is usual to make an entry on the docket of the clerk of the court, as follows: A B, tent, &c., in the sum of $1000, to answer, &c. 6 S. & R. 427.
ET NON. And not. These words are sometimes employed in pleading to convey a pointed denial. They have the same effect as without this, absque hoe. 3 Bouv. Inst. n. 2981, note.
EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going, remaining, and returning. It is employed in cases where a person either as a party, a witness, or one acting in some other capacity, as an elector, is privileged from arrest, in order to give him that freedom necessary to the performance of his respective obligations, to signify that he is protected from arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.
EUNOMY. Equal laws, and a well adjusted constitution of government.
EUNUCH. A male whose organs of generation have been so far removed or disorganized, that he is rendered incapable of reproducing his species. Domat, Lois Civ. liv. prel. tit. 2, s. 1, n. 10.
EVASION. A subtle device to set aside the truth, or escape the punishment of the law; as if a man should tempt another to strike him first, in order that he might have an opportunity of returning the blow with impunity. He is nevertheless punishable, because he becomes himself the aggressor in such a case. Wishard, 1 H. P . C. 81 Hawk. P. C. c. 31, §24, 25; Bac. Ab. Fraud, A.
2. An escape from custody.
EVICTION. The loss or deprivation which the possessor of a thing suffers, either in whole or in part, of his right of property in such a thing, in consequence of the right of a third person established before a compenent tribunal. 10 Rep. 128; 4 Kent, Com. 475-7; 3 Id. 464-5.
2. The eviction may be total or partial. It is total, when the possessor is wholly deprived of his rights in the whole thing; partial, when he is deprived of only a portion of the thing; as, if he had fifty acres of land, and a third person recovers by a better title twenty-five; or, of some right in relation to the thing. as, if a stranger should claim and establish a right to some easement over the same. When the grantee suffers a total eviction, and he has a covenant of seisin, he recovers from the seller, the consideration money, with interest and costs, and no more. The grantor has no concern with the future rise or fall of the property, nor with the improvements made by the purchaser. This seems to be the general rule in the United States. 3 Caines' R. 111; 4 John. R. 1; 13 Johns. R. 50; 4 Dall. R. 441; Cooke's Term. R. 447; 1 Harr. & Munf. 202; 5 Munf. R. 415; 4 Halst. R. 139; 2 Bibb, R. 272. In Massachusetts, the measure of damages on a covenant of warranty, is the value of the land at the time of eviction. 3 Mass. R. 523; 4 Mass. R. 108. See, as to other states, 1 Bay, R. 19, 265; 3 Des. Eq. R. 245; 2 Const. R. 584; 2 McCord's R. 413; 3 Call's R. 326.
3. When the eviction is only partial the damages to be recovered under the covenant of seisin, are a rateable part of the original price, and they are to bear the same ratio to the whole consideration, that the value of land to which the title has failed, bears to the value of the whole tract. The contract is not rescinded, so as to entitle the vendee to the whole consideration money, but only to the amount of the relative value of the part lost. 5 Johns. R. 49; 12 Johns. R. 126; Civ. Code of Lo. 2490; 4 Kent's Com. 462. Vide 6 Bac. Ab. 44; 1 Saund. R. 204: note 2, and 322 a, note 2; 1 Bouv. Inst. n. 656.
EVOCATION, French law. The act by which a judge is deprived of the cognizance of a suit over which he had jurisdiction, for the purpose of conferring on other judges the power of deciding it. This is done with us by writ of certiorari.
EWAGE. A toll paid for water passage. Cowell. The same as aquagium. (q. v.)
EX CONTRACTU. This term is applied to such things as arise from a contract; as an action which arises ex contractu. Vide Action.
EX DELICTO. Those actions which arise in consequence of a crime, misdemeanor, fault, or tort; actions arising ex delicto are case, replevin, trespass, trover. See Action.
EX DOLO MALO. Out of fraud or deceit. When a cause of action arises from fraud or deceit, it cannot be supported: Ex dolo malo, non oritur actio.
EX AEQUO ET BONO. In equity and good conscience. A man is bound to pay money which ex oequo et bono he holds for the use of another.
EX MERO MOTU. Mere motion of a party's own free will. To prevent injustice, the courts will, ex mero motu, make rules and orders which the parties would not strictly be entitled to ask for.
EX MORA. From the delay; from the default. All persons are bound to make amends for damages which arise from their own default.
EX NECESSITATE LEGIS. From the necessity of law.
EX NECESSITATE REI. From the necessity of the thing. Many acts may be done ex necessitate ret, which would not be justifiable without it; and sometimes property is protected, ex necessitate rei, which, under, other circumstances, would not be so. For example, property put upon the land of another from necessity, cannot be distrained for rent. See Distress; Necessity.
EX OFFICIO. By virtue of his office. 2. Many powers are granted and exercised by public officers which are not expressly delegated. A judge, for example, may, ex officio, be a conservator of the peace, and a justice of the peace.
EX PARTE. Of the one part. Many things may be done ex parte, when the opposite party has had notice; an affidavit or deposition is said to be taken ex parte when only one of the parties attends to taking the same. Ex parte paterna, on the side of the father, or property descended to a person from his father; ex parte materna, on the part of the mother.
EX POST FACTO, contracts, crim. law. This is a technical expression, which signifies, that something has been done after another thing, in relation to the latter.
2. An estate granted, may be made good or avoided by matter ex post facto, when an election is given to the party to accept or not to accept. 1 Co . 146.
3. The Constitution of the United States, art. 1, sec. 10, forbids the states to pass any ex post facto law; which has been defined to be one which renders the act punishable in a manner in which it was not punishable when it was committed. 6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index, h. t.
4. This prohibition in the constitution against passing ex post facto law's, applies exclusively to criminal or penal cases, and not to civil cases. Serg. Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, R. 350; 5 Monr. 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1 J. J. Marsh, 563; 2 Pet. R. 681; and the article Retrospective.
EX VI TERMINI. By force of the term; as a bond ex vi termini imports a sealed instrument.
EX VISITATIONE DEI. By or from the visitation of God. This phrase is frequently employed in inquisitions by the coroner, where it signifies that the death of the deceased is a natural one.
EX TEMPORE. From the time without premeditation.
EXACTION, torts. A willful wrong done by an officer, or by one who, under color of his office, takes more fee or pay for his services than what the law allows. Between extortion and exaction there is this difference; that in the former case the officer extorts more than his due, when something is due to him; in the latter, he exacts what is not his due, when there is nothing due to him. Wishard; Co. Litt. 368.
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EXAMPLE. An example is a case put to illustrate a. principle. Examples illustrate, but do not restrain or change the laws: illustrant non restringunt legem. Co. Litt. 24, a.
EXCAMBIATOR. The name of an exchanger of lands; a broker. This term is now obsolete.
EXCAMBIUM. Exchange. (q. v.)
EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which the defendant alleges that the matter in dispute between the parties has been before adjudged. See Res judicata.
EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev. 208, n.
EXCEPTION, legislation, construction. Exceptions are rules which limit the extent of other more general rules, and render that just and proper, which would be, on account of its generality, unjust and improper. For example, it is a general rule that parties competent may make contracts; the rule that they shall not make any contrary to equity, or contra bonos mores, is the exception.
EXCEPTION, contracts. An exception is a clause in a deed,. by which the lessor excepts something out of that which he granted before by the deed.
2. To make a valid exception, these things must concur: 1. The exception must be by apt words; as, saving and excepting, &c. 2. It must be of part of the thing previously described, and not of some other thing. 3. It must be part of the thing only, and not of all, the greater part, or the effect of the thing granted; an exception, therefore, in a lease, which extends to the whole thing demised, is void. 4. It must be of such thing as is severable from the demised premises, and hot of an inseparable incident. 5. It must be of a thing as he that accepts may have, and which properly belongs to him. 6. It must be of a particular thing out of a general, and not of a particular thing out of a particular thing. 7. It must be particularly described and set forth; a lease of a tract of land, except one acre, would be void, because that acre was not particularly described. Woodf. Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77; 1 Shepl. R. 337; Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. R. 499; 6 N. H. Rep. 421. Exceptions against common right and general rules are construed as strictly as possible. 1 Barton's Elem. Conv. 68.
3. An exception differs from a reservation; the former is always a part of the thing granted; the latter is of a thing not in esse but newly created or reserved. An exception differs also from an explanation, which by the use of a videlicet, proviso, &c., is allowed only to explain doubtful clauses precedent, or to separate and distribute generals, into particulars. 3 Pick. R. 272.
EXCEPTION, practice, pleading. This term is used in the civil, nearly in the same sense that the word plea has in the common law. Merl. Repert. h. t.; Ayl. Parerg. 251.
2. In chancery practice, it is the allegation of a party in writing, that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr. 228.
3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5; Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress. Poth. Proc. civ. partie 1, c. 2, s. 2, art. 1; Code of Pract. of Lo. art. 332. Declinatory exceptions have this effect, as well as the exception of discussion opposed by a third possessor, or by a surety in an hypothecary action, or the exception taken in order to call in the warrantor. Id.; 7 N. S. 282; 1 L. R. 38, 420. These exceptions must, in general, be pleaded in limine litis before issue joined. Civ. Code of Lo. 2260; 1 N. S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 546. A declinatory exception is a species of dilatory exception, which merely declines the jurisdiction of the judge before whom the action is brought. Code of Pr. of L. 334.
4. Peremptory exceptions are those which tend to the dismissal of the action. Some relate to forms, others arise from the law. Those which relate to formes, tend to have the cause dismissed, owing to some nullities in the proceedings. These must be pleaded in limine litis. Peremptory exceptions founded on law, are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because it is prescribed, or because the cause of action has been destroyed or extinguished. These may be pleaded at any time previous to definitive judgment. Id. art. 343, 346; Poth. Proc. Civ. partie 1, c. 2, s. 1, 2, 3. These, in the French law, are called Fins de. non recevoir. (q. v.)
5. By exception is also meant the objection which is made to the decision of a judge in the course of a trial. See Bill of Exception.
EXCHANGE, com. law. This word has several significations.
2. - 1. Exchange is a negotiation by which one person transfers to another funds which he has in a certain place, either at a price agreed upon, or which is fixed by commercial usage. This transfer is made by means of an instrument which represents such funds, and is well known by the name of a bill of exchange.
3. - 2. The price which is paid in order to obtain such transfer, is also known among merchants by the name of exchange; as, exchange on England is five per cent. See 4 Wash. C. C. R. 307. Exchange on foreign money is to be calculated according to the usual rate at the time of trial. 5 S. & R. 48.
4. - 3. Barter, (q. v.) or the transfer of goods and chattels for other goods and chattels, is also known by the name of exchange, though the term barter is more commonly used.
5. - 4. The French writers on commercial law, denominate the profit which arises from a maritime loan, exchange, when such profit is a per centage on the money lent, considering it in the light of money lent in one place to be returned in another, with a difference in amount in the sum borrowed and that paid, arising from the difference of time and place. Hall on Mar. Loans, 56, n.; and the articles Interest; Maritime; Premium.
6. - 5. By exchange is also meant, the place where merchants, captains of vessels, exchange agents and brokers, assemble to transact their business. Code de Comm. art. 71.
7. - 6. According to the Civil Code of Louisiana, art. 1758, exchange imports a reciprocal contract, by which. the parties enter into mutual agreement. 14 Pet. 133. Vide the articles. Bills of Exchange; Damages on Bills of Exchange and Reexchange. Also Civ. Code of Lo. art. 2630.
EXCHANGE conveyancing. An exchange is a mutual grant of equal interests in land, the one in consideration of the other. 2 Bl. Com. 323; Litt. s. 62; Touchs. 289; Watk. Prin. Con. It is said that exchange, in the United States, does not differ from bargain and sale. 2 Bouv. Inst. n. 2055.
2. There are five circumstances necessary to an exchange. 1. That the estates given be equal. 2. That the word escambium or exchange be used, which cannot be supplied by any other word, or described by circumlocution. 3. That there be an execution by entry or claim in the life of the parties. 4. That if it be of things which lie in grant, it be by deed. 5. That if the lands lie in several counties, it be by deed indented; or if the thing lie in grant, though they be in one county. In practice this mode of conveyancing is nearly obsolete. Vide Cruise, Dig. tit. 32 Perk. ch. 4 10 Vin. Ab. 125; Com. Dig. h. t.; Nels. Ab. h. t.; Co. Litt. 51; Hardin's R. 593 1 N. H. Rep. 65 3 Har. & John. 361; 1 Rolle's Ab. 813 .3 Wils. R. 489. Vide Watk. Prin. Con. b. 2, c. 5; Horsman, 362 and 3 Wood, 243, for forms.
EXCHEQUER R, Eng. law. An ancient court of record set up by William the Conqueror. It is called exchequer from the chequered cloth, resembling a chesshoard, which covers the table there. 3 Bl. Com. 45. It consists of two divisions; the receipt of the exchequer, which manages the royal revenue; and the court, or judicial part of it, which is again divided into a court of equity, and a court of common law. Id. 44.
2. In this court all personal actions may be brought, and suits in equity commenced, the plaintiff in both (fictitiously for the most part) alleging himself to be the king's debtor, in order to give the court jurisdiction of the cause. Wooddes. Lect. 69. But by stat. 2 Will. IV. c. 39, s. 1, a change has been made in this respect.
EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed. III. c. 12, to determine causes upon writs of error from the common law side of the court of exchequer. 3 Bl. Com. 55. Another court of exchequer chamber was created by the stat. 27 El. c. 8, consisting of the justices of the common bench, and the barons of the exchequer. It has authority to examine by writ of err6r the proceedings of the king's bench, not so generally as that erected by the statute of Edw. III., but in certain enumerated actions.
EXCISES. This word is used to signify an inland imposition, paid sometimes upon the consumption of the commodity, and frequently upon the retail sale. 1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. §950.
EXCLUSIVE, rights. Debarring one from participating in a thing. An exclusive right or privilege, is one granted to a person to do a thing, and forbidding all others to do the same. A patent right or copyright, are of this kind.
EXCLUSIVE, computation of time. Shut out; not included. As when an act is to be done within a certain time, as ten days from a particular time, one day is to be included and the other excluded. Vide Hob. 139; Cowp. 714; Lofft, 276; Dougl. 463; 2 Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. & Rawle, 43; 3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig. Estates, G 8; 2 Chit. Pr. 69, 147.
EXCOMMUNICATION, eccl. law. An ecclesiastical sentence, pronounced by a spiritual judge against a Christian man, by which he is excluded from the body of the church, and disabled to bring any action, or sue any person in the common law courts. Bac. Ab. h. t.; Co. Litt. 133-4. In early times it was the most frequent and most severe method of executing ecclesiastical censure, although proper to be used, said Justinian, (Nov. 123,) only upon grave occasions. The effect of it was to remove the excommunicated "person not only from the sacred rites but from the society of men. In a certain sense it interdicted the use of fire and water, like the punishment spoken of by Caesar, (lib, 6 de Bell. Gall.). as inflicted by the Druids. Innocent IV. called it the nerve of ecclesiastical discipline. On repentance, the excommunicated person was absolved and received again to communion. These are said to be the powers of binding and loosing the keys of the kingdom of heaven. This kind of punishment seems to have been adopted from the Roman usage of interdicting the use of fire and water. Fr. Duaren, De Sacris Eccles. Ministeriis, lib. 1, cap. 3. See Ridley's View of the Civil. and Ecclesiastical Law, 245, 246, 249.
EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ issuing out of chancery, founded on a hishop's certificate that the defendant had been excommunicated, which writ is returnable in the king's bench. F. N. B. 62, 64, 65 Bac. Ab. Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II. c. 12; 2 & 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1 H. V. c. 5; also Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro. Jac. 567; 1 Vent. 146; 1 Salk. 293, 294, 295.
EXCUSABLE HOMICIDE, crim. law. The killing of a human being, when the party killing is not altogether free from blame, but the necessity which renders it excusable, may be said to be partly induce by his own act. 1 East, P. C. 220.
EXCUSE. A reason alleged for the doing or not doing a thing. This word presents two ideas differing essentially from each other. In one case an excuse may be made in, order to own that the party accused is not guilty; in another, by showing that though guilty, he is less so, than he appears to be. Take, for example, the case of a sheriff who has an execution against an individual, and who in performance of his duty, arrests him; in an action by the defendant against the sheriff, the latter may prove the facts, and this shall be a sufficient excuse for him: this is an excuse of the first kind, or a complete justification; the sheriff was guilty of no offence. But suppose, secondly, that the sheriff has an execution against Paul, and by mistake, and without any malicious design, be arrests Peter instead of Paul; the fact of his having the execution against Paul and the mistake being made, will not justify the sheriff, but it will extenuate and excuse his conduct, and this will be an excuse of the second kind.
3. Persons are sometimes excused for the commission of acts, which ordinarily are crimes, either because they had no intention of doing wrong, or because they had no power of judging, and therefore had no criminal will (q. v.); or having power, of judging they had no choice, and were compelled by necessity. Among the first class may be placed infants under the age of discretion, lunatics, and married women committing an offence in the presence of their hushands, not malum in se, as treason or murder; 1 Hale's P. C. 44, 45 or in offences relating to the domestic concern or management of the house, as the keeping of a bawdy house. Hawk. b. 1, c. 1, s. 12. Among acts of the second kind may be classed, the beating or killing another in self-defence; the destruction of property in order to prevent a more serious calamity, as the tearing down of a house on fire, to prevent its spreading to the neighboring property, and the like. See Dalloz, Dict. h. t.
EXEAT, eccl. law. This is a Latin term, which is used to express the written permission which a hishop gives to an ecclesiastic to exercise the functions of his ministry in another diocese.
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EXEMPLIFICATION, evidence. A perfect copy of a record, or office book lawfull kept, so far as relates to the matter in question. 3 Bouv. Inst. n. 3107. Vide, generally, 1 Stark. Ev. 151; 1 Phil. Ev. 307; 7 Cranch, 481; 3 Wheat. 234; 10 Wheat. 469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 John. Cas. 238. As to the mode of authenticating records of other states, see articles Authentication, and Evidence.
EXEMPTION. A privilege which dispenses with the general rule; for example, in Pennsylvania, and perhaps in all the other staies, clergymen are exempt from serving on juries. Exemptions are generally allowed, not for the benefit of the individual, but for some public advantage.
EXEMPTS. Persons who are not bound by law, but excused from the performance of duties imposed upon others.
2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S. 252, it is provided, §2. That the vice-president of the United States the officers, judicial and executive, of the government of the United States; the members of both houses of congress, and their respective officers; all custom-house officers, with their clerks; all post officers, and stage drivers, who are employed in the care and conveyance of the mail of the post office of the United States; all ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots; all mariners, actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are, or may hereafter be, exempted by the laws of the respective states, Shall be, and are hereby, exempted from militia duty, notwithstanding their being above the age of eighteen, and under the age of forty-five years.
EXEQUATUR, French law. This Latin word was, in the ancient practice, placed at the bottom of a judgment emanating from another tribunal, and was a permission and authority to the officer to execute it within the jurisdiction of the judge who put it below the judgment.
2. We have something of the same kind in our practice. When a warrant for the arrest of a criminal is issued by a justice of the peace of one county, and he flies into another, a justice of the latter county may endorse the warrant and then the ministerial officer may execute it in such county. This is called backing a warrant.
EXEQUATUR, internat. law. A declaration made by the executive of a government near to which a consul has been nominated and appointed , after such nomination and appointment has been notified, addressed to the people, in which is recited the appointment of the foreign state, and that the executive having approved of the consul as such, commands all the citizens to receive, countenance, and, as there may be occasion, favorably assist the consul in the exercise of his place, giving and allowing him all the privileges, immunities, and advantages, thereto belonging. 3 Chit. Com. Law, 56; 3 Maule & Selw. 290; 5 Pardes. 1445.
EXERCITOR. A term in the civil law, to denote the person who fits out, and equips a vessel, whether he be the absolute or qualified owner, or even a mere agent. Emer. on Mar. Loans, c. 1, s. 1.
2. In English, we generally use the word "ship's hushand," but exercitor is generally used to designate and distinguish from among several part owners of a ship, the one who has the immediate care an management of her. Hall on Mar. Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; Vicat, Vocab.; Ship's hushand.
EXHEREDATION, civil law. The act by which a forced heir is deprived of his legitimate or legal portion which the law gives him; disinherison. (q. v.)
EXHIBIT, practice. Where a paper or other writing is on motion, or on other occasion, proved; or if an affidavit to which the paper writing is annexed, refer to it, it is usual to mark the same with a capital letter, and to add, " This paper writing marked with the letter A, was shown to the deponent at the time of his being sworn by me, and is the writing by him referred to in the affidavit annexed hereto." Such paper or other writing, with this attestation, signed by the judge or other person before whom the affidavit shall have been sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410; Gresl. Eq. Ev. 98.
TO EXHIBIT. To produce a thing publicly, so that it may be taken possession of, or seized. Dig. 10, 4, 2. To exhibit means also to file of record; as, it is the practice in England in personal actions, when an officer or prisoner of the king's bench is defendant, to proceed against such defendant in the court in which he is an officer, by exhibiting, that is, filing a bill against him. Stepb. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical language, to. exhibit signifies to ad minist er, to cause a thing to be taken by a patient. Chit. bled. Jur. 9.
EXHIBlTANT. One who exhibits any thing; one who is complainant in articles of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124.
EXHIBITION, Scotch law. An action for compelling the production of writings. In Pennsylvania, a party possessing writings is compelled, to produce them on proper notice being given, in default of which judgment is rendered against him.
EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course of proceedings to out lawry, deriving its name and application from the mandatory words found therein, signifying, "that you cause to be exacted or required; and it is that proceeding in an outlawry which, with the writ of proclamation, issued at the same time, immediately precedes the writ of capias utlagatum. 2 Virg. Cas. 244.
EXIGIBLE. That which may be exacted demandable; requirable.
EXILE, civil law. The: interdiction of all places except one in which the party is foreed to make his residence.
2. This punishment did not deprive the sufferer of his right of citizenship or of his property, unless the exile were perpetual, in which case confiscation not unfrequently was a part of the sentence. Exile was temporary or perpetual. Dig. 48, 22, 4; Code, 10, 59, 2. Exile differs from deportation, (q. v.) and relegation. (q. v.) Vide, 2 Lev. 191; Co. Litt. 133, a.
EXILIUM. By this term is understood that kind of waste which either drove away the inhabitants into a species of exile, or had a tendency to do so; as the prostrating or extirpating of trees in an orchard or avenue, or about any house. Bac. Ab. Waste, A; Bract. lib. 4, c. 18, s. 13; 1 Reeves' Hist. Law, 386.
EXITUS. Issue,, child, or offspring; rents or profits of land. Cowell, h. v. In pleading, it is the issue, or the end, terminaion, or conclusion of the pleadings, and is so called, because an issue brings the pleadngs to a close. 3 Bl. Com. 314.
EXIGENDARY, Eng. law. An officerwho makes out exigents.
EXOINE, French law. An act or instrument in writing, which contains the reasons why a party in a civil suit, or a person accused, who has been summoned, agreeably to the requisitions of a decree, does not appear. Poth. Proced. Crim. s. 3, art. 3. Vide Essoin.
EXONERATION. The taking off a burden or duty.
2. It is a rule in the distribution of an intestate's estate that the debts which he himself contracted, and for which be mortgaged his land as security, shall be paid out of the personal estate in exoneration of the real.
3. But when the real estate is charged with the payment of a mortgage at the time the intestate buys it, and the purchase is made subject to it, the personal. is not in that case to be applied, in exoneration of the real estate. 2 Pow. Mortg. 780; 5 Hayw. 57; 3 Johns. Ch. R. 229.
4. But the rule for exonerating the real estate out of the personal, does not apply against specific or pecuniary legatees, nor the widow's right to paraphernalia, and with reason not against the interest of creditors. 2 Ves. jr. 64; 1 P. Wms. 693; Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow. Mortg. Index, h. t.
EXONERATUR, practice. A short note entered on a bail piece, that the bail is exonerated or discharged in consequence of having fulfilled the condition of his obligation, made by order of the court or of a judge upon a proper cause being shown.
2. A surrender is the most usual cause; but an exoneratur may be entered in other cases, as in case of death of the defendant, or his bankruptcy. 1 Arch. Pr. 280, 281, 282; Tidd's Pr. 240.
EXPATRIATION. The voluntary act of abandoning one's country and becoming the citizen or subject of another.
2. Citizens of the United States have the right to expatriate themselves until restrained by congress; but it seems that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law. To be legal, the expatriation must be for a purpose which is not unlawful, nor in fraud of the duties of the emigrant at home.
3. A citizen may acquire in a foreign country commercial privileges attached to his domicil, and be exempted from the operation of commercial acts embracing only persons resident in the United States or under its protection. 2 Cranch, 120. Vide Serg. Const. Law, 318, 2d ed; 2 Kent, Com. 36; Grotius, B. 2, c. 5, s. 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, c. 19, s. 218, 223, 224, 225 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7 Wheat. 342; 1 Pet. C. C. R. 161; 4 Hall's Law Journ. 461; Bracken. Law Misc. 409; 9 Mass. R. 461. For the doctrine of the English courts on this subject, see 1 Barton's Elem. Conveyancing, 31, note; Vaugh, Rep. 227, 281, 282, 291; 7 Co. Rep. 16 Dyer, 2, 224, 298 b, 300 b; 2 P. Wms. 124; 1 Hale, P. C. 68; 1 Wood. 382.
EXPECTANCY, estates. Having a relation to or dependence upon something future.
2. Estates are of two sorts, either in possession, sometimes called estates executed; or in expectancy, which are executory. Expectancies are, first, created by the parties, called a remainder; or by act of law, called a reversion.
3. A bargain in relation to an expectancy is, in general, considered invalid. 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C. C. 10; Jer. Eq. Jur. 397.
EXPECTANT. Having relation to, or depending upon something; this word is frequently used in connexion with fee, as fee expectant.
EXPECTATION. That which may be expected, although contingent. In the doctrine of life annuities, that share or number of the years of human life which a person of a given age may expect to live, upon an equality of chances.
2. In general, the heir apparent will be relieved from a contract made in relation to his expectancy. See Post Obit.
EXPENSAE LITIS. Expenses of the suit; the costs which are generally allowed to the successful party.
EXPERTS. From the Latin experti,which signifies, instructed by experience. Persons who are selected by the courts or the parties in a cause on account of their knowledge or skill, to examine, estimate, and ascertain things, and make a report of their opinions. Merl. Repert. mot Expert; 2 Lois des Batimens, 253; 2 N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S. & R. 336; Ray. Med. Jur. Prel. Views, §29; 3 Bouv. Inst. n. 3208.
EXPILATION, civil law. The crime of abstracting the goods of a succession.
2. This is said not to be a theft, because the property no longer belongs to the deceased, nor to the heir before he has taken possession. In the common law, the grant of letters testamentary, or letters of administration, relate back to the time of the death of the testator or intestate, so that the property of the estate is vested in the executor or administrator from that period.
EXPIRATION. Cessation; end. As, the expiration of, a lease, of a contract, or statute.
2. In general, the expiration of a contract puts an end to all the engagements of the parties, except to those which arise from the non-fulfilinent of obligations created during its existence. For example, the expiration of a partnership so dissolves it, that the parties cannot in general create any new liability, but it still subsists, to enable the parties to fulfil engagements in which the partners have engaged, or to compel others to perform their obligations towards them. See Dissolution; Contracts.
3. When a statute is limited as to time, it expires by mere lapse of time, and then it has no force whatever; and, if such a statute repealed or supplied a former statute, the first statute is, i so facto, revived by the expiration of the repealing statute; 6 Whart. 294; 1 Bland, R. 664 unless it appear that such was not the intention of the legislature. 3 East, 212 Bac. Ab. Statute, D.
EXPORTATION, commercial law. The act of sending goods and merchandise from one country to another. 2 Mann. & Gran. 155; 3 Mann. & Gran. 959.
2. In order to preserve equality among the states, in their commercial relations, the constitution provides that " no tax or duty shall be laid on articles exported from any state." Art. 1, s. 9. And to prevent a pernicipus interference with the commerce of the nation, the 10th section of the 1st article of the constitution contains the following prohibition: " 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 the congress." Vide 12 Wheat. 419; and the article Importation.
EXPOSE' A French word, sometimes applied to a written document, containing the reasons or motives for doing a thing. The word occurs in diplomacy.
EXPOSITION DE PART, French law. The abandonment of a child, unable to take care of itself, either in a public or private place.
2. If the child thus exposed should be killed in consequence of such exposure; as, if it should be devoured by animals, the person thus exposing it would be guilty of murder. Rose. Cr. Ev. 591.
EXPRESS. That which is made known, and not left to implication. The opposite of implied. It is a rule, that when a matter or thing is expressed, it ceases to be implied by law: expressum facit cessare tacitum. Co. Litt. 183; 1 Bouv. Inst. n. 97.
EXPRESSION. The term or use of language employed to explain a thing.
2. It is a general rule, that expressions shall be construed, when they are capable of several significations, so as to give operation to the agreement, act, or will, if it can be done; and an expression is always to be understood in the sense most agreeable to the nature of the contract. Vide Clause; Construction; Equivocal; Interpretation; Words.
EXPROMISSION, civil law. The act by which a creditor accepts a new debtor, who becomes bound instead of the old, the latter being released. It is a species of novation. (q. v.) 1 Bouv. Inst. n. 802. Vide Delegation.
EXPROMMISSOR, civil law. By this term is understood the person who alone becomes bound for the debt of another, whether the latter were obligated or not. He differs from a surety, who is bound together with his principal. Dig. 12, 4, 4; Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8.
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EXTENSION, comm. law. This term is applied among merchants to signify an agreement made between a debtor and his creditors, by which the latter, in order to enable the former, embarrassed in his circumstances, to retrieve his standing, agree to wait for a definite length of time after their several claims should become due and payable, before they will demand payment.
2. Among the French, a similar agreement is known by the name of atermoiement. Merl. Rep. mot Atermoiement.
EXTENT IN AID, English practice. An exchequer process, formerly much used, and now liable to be abused; it is regulated by 57 Geo. III. o. 117.
EXTENT IN CHIEF, English practice. An execution issuing out of the exchequer at the suit 'of the crown. It is a mere "fiscal writ. See. West on Extents; 2 Tidd. Index.
2. When land was extended at a valuation too low, there was no remedy at common law but to pay the money. 15 H. VII. Nor yet in chancery, unless there was fraud, because the extent was made by the oath of a jury, and deemed reasonable according to the writ of extent for that cause: otherwise every verdict might be examined in a court of chancery. Crompt. on. Jurisdic. 55 a.
EXTENUATION. That which renders a crime or tort less heinous than it would be without it: it is opposed to aggravation. (q. v. )
2. In general, extenuating circumstances go in mitigation of punishment in criminal cases, or of damages in those of a civil nature. See Aggravation; Mitigation.
EXTERRITORIALITY. This term is used by French jurists to signify the immunity of certain persons, who, although in the state, are not amenable to its laws; foreign sovereigns, ambassadors, ministers plenipotentiary, and ministers from a foreign power, are of this class. Foelix, Droit Intern. Prive, liv. 2, tit. 2, c. 2, s. 4. See Ambassador; Conflict of Laws; Minister.
EXTINCTION OF A THING. When a thing which is the subject of a contract has been destroyed, the contract is of course rescinded as, for example, if Paul sell his horse Napoleon to Peter, and promises to deliver him to the buyer in ten days, and in the mean time the horse dies, the contract is rescinded, as it is impossible to deliver a thing which is not in esse; but if Paul engage to deliver a horse to Peter in ten days, and, for the purpose of fulfilling his contract, he buys a horse and it die, this is no cause for rescinding the contract, because he can buy another and complete it afterwards. When the subject of the contract is an individual, and not generally one of a species, the contract may be rescinded; when it is one of a species which has been destroyed, then, it may still be completed, and it will be enforced. Lec. El. Dr. Rom. §1009.
EXTINGUISHMENT, contracts. The destruction of a right or contract - the act by which a contract is made void.
2. Art extinguishment may be by matter of fact and by matter of law. 1. It is by matter of fact either express, as when one receives satisfaction and full payment of a debt, and the creditor releases the debtor 11 John. 513'; or implied, as when a person hath a yearly rent out of, lands and becomes owner either by descent or purchase, of the estate subject to the payment of the rent, the latter is extinguished 3 Stew. 60; but the person must have as high an estate in the land as in the rent, or the rent will not be extinct. Co. Litt. 147. See Merger.
3. There are numerous cases where the claim is extinguished b operation of law; for example, where two persons are jointly, but not severally liable, for a simple contract debt, a judgment obtained against one is at common law an extinguishment of the claim on the other debtor. Pet. C. C. 301; see 2 John. 213. Vide, generally, Bouv. Inst. Index, h. t.; 2 Root, 492; 3 Conn. 62; 1 Hamm. 187; 11 John. 513; 4 Conn. 428; 6 Conn. 373; 1 Halst. 190 4 N. H. Rep. 251 Co. Litt. 147 b; 1 Roll. Ab. 933 7 Vin. Ab. 367; 11 Vin. Ab. 461; 18 Vin. Ab. 493 to 515 3 Nels. Ab. 818; 14 Serg. & Rawle, 209; Bac. Ab. h. t.; 5 Whart. R. 541. Vide Discharge of a Debt.
EXTORSIVELY. A technical word used in indictments for extortion. In North Carolina, it seems, the crime of extortion may be charged without using this word. 1 Hayw. R. 406.
EXTORTION, crimes. In a large sense it, signifies any oppression, under color of right: but in a more strict sense it means the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. 4 Bl. Com. 141; 1 Hawk. P. C. c. 68, s. 1; 1 Russ. Cr. *144. To constitute extortion, there must be the receipt of money or something of value; the taking a promissory note, which is void, is. not sufficient to make an extortion. 2 Mass. R. 523; see Bac. Ab. h. t.; Co. Litt. 168. It is extortion and oppression for an officer to take money for the performance of his duty, even though it be in the exercise of a discretionary power. 2 Burr. 927. It differs from exaction. (q. v.) See 6 Cowen, R. 661; 1 Caines, R. 130; 13 S. & R. 426 1 Yeates, 71; 1 South. 324; 3 Penna. R. 183; 7 Pick. 279; 1 Pick. 171.
EXTRA-DOTAL PROPERTY. In Louisiana this term is used to designate that property which forms no part of the dowry of a woman, and which is also called paraphernal property. Civ. Co. Lo. art. 2315. Vide Dotal Property.
EXTRA VIAM. Out of the way. When, in an action of trespass, the defendant pleads a right of way, the defendant may reply extra viam, that the trespass was committed beyond the way, or make a new assignment. 16 East, 343, 349.
EXTRACT. A part of a writing. In general this is not evidence, because the whole of the writing may explain the part extracted, so as to give it a different sense; but sometimes extracts from public books are evidence, as the extracts from the registers of births, marriages and burials, kept according to law, when the whole of the matter has been extracted which relates to the cause or matter in issue.
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EXTRAJUDICIAL. That which does not belong to the judge or his jurisdiction, notwithstanding which he takes. cognizance of it. Extrajudicial judgments and acts are absolutely void. Vide Coram non judice, and Merl. Repert. mots Exces de Pouvoir.
EXTRAVAGANTES, canon law. This is the name given to the constitutions of the popes posterior to the Clementines; they are thus called quasi vagantes extra corpus juris, to express that they were out of the canonical law, which at first contained only the decrees of Gratian; afterwards the decretals of Gregory IX., the sexte of Boniface. VIII., the Clementines, and at last the extravagantes were added to it. There are the extravagantes of John XXII., and the common 'extravagantes.' The first contain twenty epistles, decretals or constitutions of that pope, divided under fifteen titles, without any subdivision into books. The others are epistles, decretals or constitutions of the popes who occupied the holy see, either before or after John XXII. they are divided into books like the decretals.
EXTREMIS. When a person is sick beyond the hope of recovery, and near death, he is said to be in extremism.
2. A will made in this condition, if made without undue influence, by a person of sound mind, is valid.
3. The declarations of persons in extremis, when made with a full consciousness of approaching death, ate admissible in evidence when the death of the person making them is the subject of the charge, and the circumstances of the death the subject of such declarations. 2 B. & C. 605 S. C. 9 Eng.
EY. A watery place; water. Co. Litt 6.
EYE-WITNESS. One who saw the act or fact to which he testifies. When an eye-witness testifies, and is a man of intelligence and integrity, much reliance must be placed on his testimony, for he has the means of making known the truth.
EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2, s. b; Bract. lib. 2, c. 2. See lsand.
EYRE. Vide Eire Justiciarii Itinerantes.
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