SETTLE, SETTLEMENT

SETTLE, SETTLEMENT

    29.12.19  

TO SETTLE. To adjust or ascertain to pay.

2. Two contracting parties are said to settle an account when they ascertain what is justly due by one to the other; when one pays the balance or debt due by him, he is said to settle such debt or balance. 11 Alab. R. 419

SETTLEMENT, domicil. The right which a person has of being considered as resident of a particular place.

2. It is obtained in various ways, to wit: 1. By birth. 2. By the legal settlement of the father, in the case of minor children. 3. By marriage. 4. By continued residence. 5. By the payment of requisite taxes. 6. By the lawful exercise of a public office. 7. By hiring and service for a year. 8. By serving an apprenticeship; and perhaps some others which depend upon the local statutes of the different states. Vide 1 Bl. Com. 363; 1 Dougl. 9; 2 Watts' Rep. 44, 342; 2 Penna. R. 432; 5 Serg. & Rawle, 417; 2 Yeates' R. 51; 5 Binn. R. 81; 3 Binn. R.. 22; 6 Serg. & Rawle, 103, 565; 10 Serg. & Rawle, 179. Vide Domicil.

SETTLEMENT, contracts. The conveyance of an estate, for the benefit of some person or persons.

2. It is usually made on the prospect of marriage for the benefit of the married pair, or one of them, or for the benefit of some other persons, as their children. Such settlements vest the property in trustees upon specified terms, usually for the benefit of the hushand and wife during their joint lives, and then for the benefit of the survivor for life, and afterwards for the benefit of children. Ante-nuptial agreements of this kind will be enforced in equity by a specific performance of them, provided they are fair and valid, and the intention of the parties is consistent with the principles and policy of law. Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers.

4. When made without consideration, after marriage, and the property of the hushand is settled upon his wife and children, the settlement will be valid against subsequent creditors, if, at the time of the settlement being made, he was not indebted; but, if he was then indebted, it will be void as to the creditors existing at the time of the settlement; 3 John. Ch. R. 481; 8 Wheat. R. 229; unless in cases where the hushand received a fair consideration in value of the thing settled, so as to repel the presumption of fraud. 2 Ves. 16 10 Ves. 139. Vide 1 Madd. Ch. 459; 1 Chit. Pr. 57; 2 Kent, Com. 145; 2 Supp. to Ves. jr. 80, 375; Rob. Fr. Conv. 188. See Atherl. on Mar. passim.

5. The term settlement is also applied to an agreement by which two or more persons, who have dealings together, so far arrange their accounts, as to ascertain the balance due from one to the other; and settlement sometimes signifies a payment in full.

ESTOPPEL

ESTOPPEL

    1.2.18  

ESTOPPEL, pleading. An estoppel is a preclusion, in law, which prevents a man from alleging or denying a fact, in consequence o his own previous act, allegation or denial of a contrary tenor. Stepb. Pl. 239. Lord Coke says, " an estoppel is, when a man is concluded by his own act or acceptance, to say the truth." Co. Litt. 352, a. And Blackstone defines "an estoppel to be a special plea in bar, which happens where a man has done some act, or executed some deed, which estops or precludes him from averring any thing to the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. & R. 444; they are not admitted in equity against the truth. Id. 442. Nor can jurors be estopped from saying the truth, because they are sworn to do so, although they are estopped from finding against the admission of the parties in their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. 662; Angel on Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. notes.

ADMISSION, ADMISSIONS...

ADMISSION, ADMISSIONS...

    24.1.18  

ADMISSION, in corporations or companies. The act of the corporation or company by which an individual acquires the rights of a member of such corporation or company.

2. In trading and joint stock corporations no vote of admission is requisite; for any person who owns stock therein, either by original subscription or by conveyance, is in general entitled to, and cannot be refused, the rights and privileges of a member. 3 Mass. R. 364; Doug. 524; 1 Man. & Ry. 529.

3. All that can be required of the person demanding a transfer on the books, is to prove to the corporation his right to the property. See 8 Pick. 90.

CONFESSION

CONFESSION

    4.1.18  

CONFESSION, crim. law, evidence. The voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation which he had in the same.

2. When made without bias or improper influence, confessions are admissible in evidence, as the highest and most satisfactory proof: because it is fairly presumed that no man would make such a confession against himself, if the facts confessed were not true but they are excluded, if liable to the of having been unfairly obtained.

3. Confessions should be received with great caution, as they are liable to many objections. There is danger of error from the misapprehension of witnesses, the misuse of words, the failure of a party to express his own meaning, the prisoner being oppressed by his unfortunate situation, and influenced by hope, fear, and sometimes a worse motive, to male an untrue confession. See the case of the two Boorns in Greenl. Ev . 214, note 1; North American Review, vol. 10, p. 418; 6 Carr. & P. 451; Joy on Confess. s. 14, p. 100; and see1 Chit. Cr. Law, 85.

ARRAIGNMENT

ARRAIGNMENT

    28.12.17  

ARRAIGNMENT, crim. law practice. Signifies the calling of the defendant to the bar of the court, to answer the accusation contained in the indictment. It consists of three parts.

2. – 1. Calling the defendant to the bar by his name, and commanding him to hold up his hand; this is done for the purpose of completely identifying the prisoner, as the person named in the indictment; the holding20up his hand is not, however, indispensable, for if the prisoner should refuse to do so, he may be identified by any admission that he is the person intended. 1 Bl. Rep. 3.

ARBITRATION, ARBITRATOR

ARBITRATION, ARBITRATOR

    28.12.17  

ARBITRATION, practice. A reference and submission of a matter in dispute concerning property, or of a personal wrong, to the decision of one or more persons as arbitrators.

2. They are voluntary or compulsory. The voluntary are, 1. Those made by mutual consent, in which the parties select arbitrators, and bind themselves by bond abide by their decision; these are made without any rule of court. 3 Bl. Com. 16.

3. – 2. Those which are made in a cause depending in court, by a rule of court, before trial; these are arbitrators at common law, and the award is enforced by attachment. Kyd on Awards, 21.

4. – 3. Those which are made by virtue of the statute, 9 & l0 Will. III., c. 15, by which it is agreed to refer a matter in dispute not then in court, to arbitrators, and agree that the submission be made a rule of court, which is enforced as if it had been made a rule of court; Kyd on Aw. 22; there are two other voluntary arbitrations which are peculiar to Pennsylvania.

5. – 4. The first of these is the arbitration under the act of June 16, 1836, which provides that the parties to, any suit may consent to a rule of court for referring all matters of fact in controversy to referees, reserving all matters of law for the decision of the court, and the report of the referees shall have the effect of a special verdict, which is to be proceeded upon by the court as a special verdict, and either party may have a writ of error to the judgment entered thereupon

6. – 5. Those by virtue of the act of 1806, which authorizes " any person or persons desirous of settling any dispute or controversy, by themselves, their agents or attorneys, to enter into an agreement in writing, or refer such dispute or controversy to certain persons to be by them mutually chosen; and it shall be the duty of the referees to make out an award and deliver20it to the party in whose favor it shall be made, together with the written agreement entered into by the parties; and it shall be the duty of the prothonotary, on the affidavit of a subscribing witness to the agreement, that it was duly executed by the parties, to file the same in Iiis office; and on the agreement being so filed as aforesaid, he shall enter the award on record, which shall be as available in law as an award made under a reference issued by the court, or entered on the docket by the parties."

7. Compulsory arbitrations are perhaps confined to Pennsylvania. Either party in a civil suit or action,, or his attorney, may enter at the prothonotary's office a rule of reference, wherein be shall declare his determination to have arbitrators chosen, on a day certain to be mentioned therein, not exceeding thirty days, for the trial of all matters in variance in the suit between the parties. A copy of this rule is served on the opposite party. On the day. appointed they meet at the prothonotary's, and endeavor to agree upon arbitrators; if they cannot, the prothonotary makes out a list on whicb are inscribed the names of a number of citizens, and the parties alternately strike each one of them from the list, beginning with the plaintiff, until there are but the number agreed upon or fixed by the prothonotary left, who are to be the arbitrators; a time of meeting is then agreed upon or appointed by the prothonotary, when the parties cannot agree, – at which time the arbitrators, after being sworn or affirm and equitably to try all matters in variance submitted to them, proceed to bear and decide the case; their award is filed in the office of the prothonotary, and has the effect of a judgment, subject, however, to appeal, which may be entered at any time within twenty days after the filing of such award. Act of 16th June, 1836, Pamphl. p. 715.

8. This is somewhat similar to the arbitrations of the Romans; there the praetor selected from a list Of citizens made for the purpose, one or more persons, who were authorized to decide all suits submitted to them, and which had been brought before him; the authority which the proctor gave them conferred on them a public character and their judgments were without appeal Toull. Dr. Civ. Fr. liv. 3, t. 3, ch. 4, n. 820. See generally, Kyd on Awards; Caldwel on Arbitrations; Bac. Ab. h. t.; 1 Salk. R. 69, 70-75; 2 Saund. R. 133, n 7; 2 Sell. Pr. 241; Doct. PI. 96; 3 Vin. Ab. 40; 3 Bouv. Inst. n. 2482.

ARBITRATOR. A private extraordinary judge chosen by the parties who have a matter in dispute, invested with power to decide the same. Arbitrators are so called because they have generally an arbitrary power, there being in common no appeal from their sentences, which are called awards. Vide Caldw. on Arb. Index,. h. t.; Kyd on Awards, Index, h. t. 3 Bouv. Inst. n. 2491.

ARREST, ARREST IN CIVIL CASES, ARRESTMENT

ARREST, ARREST IN CIVIL CASES, ARRESTMENT

    28.12.17  

ARREST. To stop; to seize; to deprive one of his liberty by virtue of legal authority.

ARREST IN CIVIL CASES, practice. An arrest is the apprehension of a person by virtue of a lawful authority, to answer the demand against him in a civil action.

2. To constitute an arrest, no actual force or manual touching of the body is requisite; it is sufficient if the party be within the power of the officer, and submit to the arrest. 2 N. H. Rep. 318; 8 Dana, 190; 3 Herring. 416; 1 Baldw. 239; Harper, 453; 8 Greenl. 127; 1 Wend. 215 2 Blackf. 294. Barewords, however, will not make an arrest, without laying the person or otherwise confining him. 2 H. P. C. 129 1 Burn's Just. 148; 1 Salk. 79. It is necessarily an assault, but not necessarily a battery. Cases Temp. Hardw. 300.

DUPLICITY

DUPLICITY

    26.12.17  

DUPLICITY, pleading. Duplicity of pleading consists in multiplicity of distinct matter to one and the same thing, whereunto several answers are required. Duplicity may occur in one and the same pleading. Double pleading consists in alleging, for one single purpose or object, two or more distinct grounds of defence, when one of them would be as effectual in law, as both or all.

DISCRETION, DISCRETIONARY TRUSTS

DISCRETION, DISCRETIONARY TRUSTS

    26.12.17  

DISCRETION, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.

2. The discretion of a judge is said to be the law of tyrants; it is always unkown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.

DISCHARGE; DISCHARGE OF A CONTRACT; DISCHARGE OF A JURY

DISCHARGE; DISCHARGE OF A CONTRACT; DISCHARGE OF A JURY

    26.12.17  

DISCHARGE, practice. The act by which a person in confinement, under some legal process, or held on an accusation of some crime or misdemeauor, is set at liberty; the writing containing the order for his being so set at liberty, is also called a discharge.

2. The discharge of a defendant, in prison under a ca. sa., when made by the plaintiff, has the operation of satisfying the debt, the plaintiff having no other remedy. 4 T. R. 526. But when the discharge is in consequence of the insolvent laws, or the defendant dies in prison, the debt is not satisfied. In the first place the plaintiff has a remedy against the property of the defendant, acquired after his discharge, and, in the last case, against the executors or administrators of the debtor. Bac. Ab. Execution, D; Bingh. on Execution, 266.

DISABILITY

DISABILITY

    26.12.17  

DISABILITY. The want of legal capacity to do a thing.

2. Persons may be under disability, 1. To make contracts. 2. To bring actions.

3. - 1. Those who want understanding; as idiots, lunatics, drunkards, and infants or freedom to exercise their will, as married women, and persons in duress; or who, in consequence of their situation, are forbidden by the policy of the law to enter into contracts, as trustees, executors, administrators, or guardians, are under disabilities to make contracts. See Pa7-ties; Contracts.

DEMURRER, DEMURRER BOOK

DEMURRER, DEMURRER BOOK

    26.12.17  

DEMURRER. (From the Latin demorari, or old French demorrer, to wait or stay.) In pleading, imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61.

DE INJURIA

DE INJURIA

    26.12.17  

DE INJURIA, pleading. The name of a replication in an action for a tort, that the defendant committed the trespasses or crrievances of his own wrong, without the cause by,him in his plea alleged.

2. The import of this replication is to insist that the defendant committed the act complained of, from a motive and impulse altogether different from that insisted on by the plea. For example, if the defendant has justified a battery under a writ of capias, having averred, as he must do, that the arrest was made by virtue of the writ; the plaintiff may rely de injuria sua propria absque tali causa, that the defendant did the act of his own wrong, without the cause by him alleged. This replication, then, has the effect of denying the alleged, motive contained in the plea, and to insist that the defendant acted from another, which was unlawful, and not in, consequence of the one insisted upon in his plea. Steph. Pl. 186; 2 Chit. Pl. 523,.642; Hamm. N. P. 120, 121; Arch. Civ. Pl. 264; Com. Dig. Pleader, F 19.

DEPOSIT... DEPOSITOR

DEPOSIT... DEPOSITOR

    26.12.17  

DEPOSIT, contracts. Usually defined to be a naked bailment of goods to be kept for the bailor, without reward, and to be returned when he shall require it. Jones' Bailm. 36, 117; 1 Bell's Com. 257. See also Dane's Abr. ch. 17, aft. 1, §3; Story on Bailm. c. 2, §41. Pothier defines it to be a contract, by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it when he shall be requested. Traite du Depot. See Code Civ. tit. 11, c. 1, art. 1915; Louisiana Code, tit. 13, c. 1, art. 2897.

DEFENCE... DEFENSIVE ALLEGATION

DEFENCE... DEFENSIVE ALLEGATION

    26.12.17  

DEFENCE, torts. A forcible resistance of an attack by force.

2. A man is justified, in defending his person, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant, remembering that the means used must always be proportioned to the occasion, and an excess becomes, itself, an injury.

3. A man may also repel force by force in defence of his personal property, and even justify homicide against one Who manifestly intends or endeavors by violence or surprise to commit a known felony, as robbery.

HABEAS CORPUS

HABEAS CORPUS

    15.7.17  

HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same, and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge thereof, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.

2. This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown, and liberty as opposed to the violence and power of private persons. Wilmot's Opinions, 85, 86.

3. To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to the. writ the vigor, life, and efficacy requisite for the due protection of the liberty of the subject. In England this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation, and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.

4. The interdict De homine libero exhibendo of the Roman law, was a remedy very similar to the writ of habeas corpus. When a freeman was restrained by another, contrary to good faith, the praetor ordered that such person should be brought before him that he might be liberated. Dig.43, 29, 1.

5. The habeas corpus act has been substantially incorporated into the jurisprudance of every state in the Union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. II. c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected wilfully, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer, upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court.

6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal, or supposed criminal matter," Who "shall be confined or restrained of his or her liberty, under any color or pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.

7. The Constitution of the United State art. 1, s. 9, n. 2, provides, that " the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it and the same principle is contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.

8. It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.

9. - 1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any color or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.

10. - 2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keepers. In Louisiana, it is provided, that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latlat shall affix the order on the exterior of the place where the person resides, or in which the petitioner is so confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.

11. - 3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies, or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty, or whether that person is confined by him; if he return that he has not and has not had him in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty, and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority, and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.

12. - 4. When the prisoner is brought, before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children, and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.

13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.

14. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution, or detained in execution by legal civil process. 4. When he is detained fora contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.

15. - 5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.282.

16. The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.

17. There are various kinds of this writ; the principal of which are explained below.

18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to remove a prisoner to take his trial in the county where the offence was committed. Bac. Ab. Habeas Corpus, A.

19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out of a court of competent jurisdiction, when a person is sued in an inferior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causa) to do and receive whatever the court or the judge issuing the writ shall consider in that behalf. This writ may also be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to surrender him in his own discharge; upon. the return of this writ, the court will cause an exoneretur to be entered on the bail piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.

20. Habeas corpus ad prosequendum, is a writ which issues for the purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.

21. Habeas corpus ad respondendum, is a writ which issues at the instance of a creditor, or one who has a cause of action against a person who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above. 2 Mod.198; 3 Bl. Com. 107.

22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of a plaintiff for the purpose of bringing up a prisoner, against whom a judgment has been rendered, in a superior court to charge him with the process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.

23. Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, (q. v.) is a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story, Const. §1333.

24. Habeas corpus ad testificandum, a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court. 3 Bl. Com. 130.

25. Habeas corpus cum causa, is a writ which may be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to render him in their own discharge. Tidd's Pr. 405. Upon the return of this writ the court will cause an exoneretur to be entered on the bail piece, and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; the various American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t.

WITNESS, WITNESS INSTRUMENTARY

WITNESS, WITNESS INSTRUMENTARY

    12.7.17  

WITNESS. One who, being sworn or affirmed, according to law, deposes as to his knowledge of facts in issue between the parties in a cause.

CERTAINTY, UNCERTAINTY

CERTAINTY, UNCERTAINTY

    4.7.17  

CERTAINTY, UNCERTAINTY, contracts. In matters of obligation, a thing is certain, when its essence, quality, and quantity, are described, distinctly set forth, Dig. 12, 1, 6. It is uncertain, when the description is not that of one individual object, but designates only the kind. Louis. Code, art. 3522, No. 8 5 Co. 121. Certainty is the mother of repose, and therefore the law aims at certainty. 1 Dick. 245. Act of the 27th of July, 1789, ii. 2, 1 Story's Laws, 6. His compensation for his servicer, shall not exceed two thousand dollars per annum. Gordon's Dig. art. 211.

2. If a contract be so vague in its terms, that its meaning cannot be certainly collected, and the statute of frauds preclude the admissibility of parol evidence to clear up the difficulty; 5 Barn. & Cr. 588; S. C. 12 Eng. Com. L. R. 827; or parol evidence cannot supply the defect, then neither at law, nor in equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr. 123.

3. It is a maxim of law, that, that is certain which may be made certain; certum est quod certum reddi potest Co. Litt. 43; for example, when a man sells the oil he has in his store at so much a gallon, although there is uncertainty as to the quantity of oil, yet inasmuch as it can be ascertained, the maxim applies, and the sale is good. Vide generaly, Story, Eq. El. 240 to 256; Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on Disc. 77.

CERTAINTY, pleading. By certainty is understood a clear and distinct statement of the facts which constitute the cause of action, or ground of defence, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. & Pull. 267; 13 East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty has been stated by Lord Coke, Co. Litt. 303, a, to be of three sorts namely, 1. certainty to a common intent 2. to a certain intent in general; and, 3. to a certain intent in every particular. In the case of Dovaston.v. Paine Buller, J. said he remembered to have heard Mr. Justice Ashton treat these distinctions as a jargon of words without meaning; 2 H. Bl. 530. They have, however, long been made, and ought not altogether to be departed from.

2. - 1. Certainty to a common intent is simply a rule of construction. It occurs when words are used which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference. Upon the ground of this rule the natural sense of words is adopted, without addition. 2 H. Bl. 530.

3. - 2. Certainty to, a certain intent in general, is a greater degree of certainty than the last, and means what upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear; 9 Johns. R. 317; and is what is required in declarations, replications, and indictments, in the charge or accusation, and in returns to writs of mandamus. See 1 Saund. 49, n. 1; 1 Dougl. 159; 2 Johns. Cas. 339; Cowp. 682; 2 Mass. R. 363 by some of which authorities, it would seem, certainty to a common intent is sufficient in a declaration.

4. - 3. The third degree of certainty, is that which precludes all argument, inference, or presumption against the party, pleading, and is that technical accuracy which is not liable to the most subtle and scrupulous objections, so that it is not merely a rule of construction, but of addition; for where this certainty is necessary, the party must not only state the facts of his case in the most precise way, but add to them such as show that they are not to be controverted, and, as it were, anticipate the case of his adversary. Lawes on Pl. 54, 55. See 1 Chitty on Pl. 235 to 241.

CROSS, CROSS ACTION, CROSS-EXAMINATION

CROSS, CROSS ACTION, CROSS-EXAMINATION

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CROSS ACTION. An action by a defendant in an action, against the plaiutiff in the same action, upon the same contract, or for the same tort; as, if Peter bring an action of trespass against Paul, and Paul bring another action of trespass against Peter, the subject of the dispute being an assault and battery, it is evident that Paul could not set off the assault committed upon him by Peter, in the action which Peter, had brought against him; therefore the cross action became necessary.

CROSS BILLS, practice. When an individual prosecutes a bill of indictment against another, and hte defendant procures another bill to be found against the first prosecutor, the bills so found by the grand jury are called corss bills. The most usually occur in cases of assault and battery.

2. In chancery practice it is not unusual for parties to file cross bills. Vide Bill, cross.

CROSS-EXAMINATION, practice. The examination of a witness, by the party who did not call him, upon matters to which he has been examined in chief.

2. Every party has a right to cross-examine a witness produced by his antagonist, in order to test whether the witness has the knowledge of the things he testifies and if, upon examination, it is found that the witness had the means and ability to ascertain the facts about which he testifies, then his memory, his motives, everything may be scrutinized by the cross- examination.

3. In cross-examinations a great latitude is allowed in the mode of putting questions, and the counsel may put leading questions. (q. v.) Vide further on this subject, and for some rules which limit the abuse of this right, 1 Stark. Ev,. 96; 1 Phil. Ev. 210; 6 Watts & Serg. 75.

4. The object of a cross-examination is to sift the evidence, and try the credibility of a witness who has been called and given evidence in chief. It is one of the principal tests which the law has devised for the ascertainment of truth, and it is certainly one of the most efficacious. By this means the situation of the witness, with respect to the parties and the subject of litigation, his interest, his motives, his inclinations and his prejudices, his means of obtaining a correct and certain knowledge of the facts to which he testifies the manner in which he has used those means, his powers of discerning the facts in the first instance, and of his capacity in retaining and describing them, are fully investigated and ascertained. The witness, however artful he may be, will seldom be able to elude the keen perception of an intelligent court or jury, unless indeed his story be founded on truth. When false, he will be liable to detection at every step. 1 Stark. Ev. 96; 1 Phil. Ev. 227; Fortese. Rep. Pref. 2 to 4; Vaugh. R. 143.

5. In order to entitle a party to a cross-examination, the witness must have been sworn and examined; for, even if the witness be asked a question in chief, yet if he mahe no answer, the opponent has no right to cross-examine. 1 Cr. M. & Ros. 95; 1 16 S. & R. 77; Rosc. Cr. Ev. 128; 3 Car. & P. 16; S. C. 14 E. C. L. Rep. 189; 3 Bouv. Inst. n. 3217. Formerly, however, the rule seems to have been different. 1 Phil. Ev. 211.

6. A cross-examination of a witness is not always necessary or advisable. A witness tells the truth wholly or partially, or he tells a falsebood. If he tells the whole truth, a cross-examination may have the effect of rendering his testimony more circumstantial, and impressing the jury with a stronger opinion of its truth. If he tells only a part of the truth, and the part omitted is favorable to the client of the counsel cross-exaimining, he should direct the attention of the witness to the matters omitted. If the testimony of the witness be false, the whole force of the cross-examination should be directed to his credibility. This is done by questioning him as to his means of knowledge, his disinterestedness, and other matters calculated to show a want of integrity or veracity, if there is reason to believe the witness prejudiced, partial, or wilfully dishonest. Arch. Crim. Pl. 111. See Credible Witness.

COUNT

COUNT

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COUNT, pleading. This word, derived from the French conte, a narrative, is in our old law books used synonymously with declaration but practice has introduced the following distinction: when the plaintiff's complaint embraces only a single cause of action, and he makes only one statement of it, that statement is called, indifferently, a declaration or count; though the former is the more usual term.

2. But when the suit embraces two or more causes of action, (each of which of course requires a different statement;) or when the plaintiff makes two or more different statements of one and the same cause of action, each several statement is called a count, and all of them, collectively, constitute the declaration.

3. In all cases, however, in which there are two or more counts, whether there is actually but one cause of action or several, each count purports, upon the face of it, to disclose a distinct right of action, unconnected with that stated in any of the other counts.

4. One object proposed, in inserting two or more counts in one declaration, when there is in fact but one cause of action, is, in some cases, to guard against the danger of an insufficient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two different modes of declaring; but the more usual end proposed in inserting more than one count in such case, is to accommodate the statement to the cause, as far as may be, to the possible state of the proof to be exhibited on trial; or to guard, if possible, against the hazard of the proofs varying materially from the statement of the cause of action; so that if one or more or several counts be not adapted to the evidence, some other of them may be so. Gould on Pl. c. 4, s. 2, 3, 4; Steph. Pl. 279; Doct. Pl. 1 78; 8 Com. Dig. 291; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t. In real actions, the declaration is most usually called a count. Steph. Pl. 36, See Common count; Money count.