CHOICE, CHOSE

CHOICE, CHOSE

    2.2.18  

CHOICE. Preference either of a person or thing, to one of several other persons or things. Election. (q. v.)

CHOSE, property. This is a French word, signifying thing. In law, it is applied to personal property; as choses in possession, are such personal things of which one has possession; choses in action, are such as the owner has not the possession, but merely a right of action for their possession. 2 Bl. Com. 889, 397; 1 Chit. Pract. 99; 1 Supp. to Ves. Jr. 26, 59. Chitty defines choses in

ACCESS, ACCESSORY CONTRACT

ACCESS, ACCESSORY CONTRACT

    24.1.18  

ACCESS, persons. Approach, or the means or power of approaching. Sometimes by access is understood sexual intercourse; at other times the opportunity of communicating together so that sexual intercourse may have taken place, is also called access. 1 Turn. & R. 141.

2. In this sense a man who can readily be in company with his wife, is said to have access to her; and in that case, her issue are presumed to be his issue. But this presumption may be rebutted by positive evidence that no sexual intercourse took place. lb.

3. Parents are not allowed to prove non-access, for the purpose of bastardizing the issue of the wife; nor will their declarations be received after their deaths, to prove the want of access, with a like intent. 1 P. A. Bro. R. App. xlviii.; Rep. tem. Hard. 79; Bull. N. P. 113; Cowp. R. 592; 8 East, R. 203; 11 East, R. 133. 2 Munf. R. 242; 3 Munf. R. 599; 7 N. S. 553; 4 Hayw R. 221, 3 Hawks, R 623 1 Ashm. R. 269; 6 Binn. R. 283; 3 Paige's R. 129; 7 N. S. 548. See Shelf. on Mar. & Div. 711; and Paternity.

ADVERSE POSSESSION

ADVERSE POSSESSION

    24.1.18  

ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and contiuued, under an assertion or color of right on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2 Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364; 2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550. Actual possession is a pedis possessio which can be only of ground enclosed, and only such possession can a wrongdoer have. He can have no constructive possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.

2. When the possession or enjoyment has been adverse for twenty years, of which the jury are to judge from the circumstances the law raises the presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this presumption arises only when the use or occupation would otherwise have been unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R. 589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.

APPLICATION

APPLICATION

    28.12.17  

APPLICATION. The act of making a request for something; the paper on which the request is written is also called an application; as, an application to chancery for leave to invest trust funds; an application to an insurance company for insurance. In the land law of Pennsylvania, an application is understood to be a request in writing to have a certain quantity of land at or near a certain place therein mentioned. 3 Binn. 21; 5 Id. 151; Jones on Land Office Titles, 24.

2. An application for insurance ought to state the facts truly as to the object to be insured, for if any false representation be made with a fraudulent intent, it will avoid the policy. 7 Wend. 72.

DONATIO MORTIS CAUSA, DONATION, DONATION INTER

DONATIO MORTIS CAUSA, DONATION, DONATION INTER

    26.12.17  

DONATIO MORTIS CAUSA, contracts, legacies. A gift in prospect of death. When a person in sickness, apprehend ing his dissolution near, delivers, or causes to be delivered to another, the possession of any personal goods, to keep as his own, in case of the donor's decease. 2 Bl. Com. 514 see Civ. Code of Lou. art. 1455.

2. The civil law defines it to be a gift under apprehension of death; as, when any thing is given upon condition that if the donor dies, the donee shall possess it absolutely, or return it if the donor should survive, or should repent of having made the gift, or if the donee should die before the donor. 1 Miles' Rep. 109-117.

DETINUE

DETINUE

    26.12.17  

DETINUE, remedies. The name of an action for the recovery of a personal chattel in specie. 3 Bl. Com. 152; 3 Bouv. Inst. n. 3472; 1 J. J. Marsh. 500.

2. This action may be considered, 1. With reference to the nature of the thing to be recovered. 2. The plaintiff's interest therein. 3. The injury. 4. The pleadings. 5. The judgment.

3.- 1. The goods which it is sought to recover, must be capable of being distinguished from all others, as a particular horse, a cow, &c., but not for a bushel of grain. Com. Dig. Detinue, B, C; 2 Bl. Com. 152; Co. Litt. 286 b; Bro. Det. 51. Detinue cannot be maintained where the property sued for had ceased to exist when the suit was commenced. 2 Dana, 332. See 5 Stew. & Port. 123; 1 Ala. R. 203.

4. - 2. To support this action, the plaintiff must have a right to immediate possession, although he never had actual possession; a reversioner cannot, therefore, maintain it. A bailee, who has only a special property, may nevertheless support it when he delivered the goods to the defendant, or they were taken out of the bailee's custody. 2 Saund. 47, b, c, d Bro. Ab. h. t.; 9 Leigh, R. 158; 1 How. Miss. R. 315; 5 How. Miss. R. 742; 4 B. Munr. 365.

DEAD, DEATH BED OR DYING DECLARATIONS, DEAD-PLEDGE, DEAD LETTERS

DEAD, DEATH BED OR DYING DECLARATIONS, DEAD-PLEDGE, DEAD LETTERS

    11.7.17  

DEAD Something which has no life; figuratively, something of no value.

DEAD BODY, crim. law. A corpse.

2. To take up a dead body without lawful authority, even for the purposes of dissection, is a misdemeanor, for which the offender may be indicted at common law. 1 Russ. on Cr. 414; 1 Dowl. & R. 13; Russ. & Ry. 366, ii. b; 2 Chit. Cr. Law, 35. This offence is punished by statute in New

COPYRIGHT

COPYRIGHT

    3.7.17  

COPYRIGHT. The property which has been secured to the author of a book, map, chart, or musical composition, print, cut or engraving, for a limited time, by the constitution and laws of the United States. Lord Mansfield defines copy, or as it is now termed copyright, as follows: I use the word copy in the technical sense in which that name or term has been used for ages, to signify an incorporeal right to the sole printing and publishing of something intellectual, communicated by letters. 4 Burr. 3296; Merl. Repert. mot Contrefacon.

2. This subject will be considered by taking a view of, 1. The legislation of the United States. 2. Of the persons entitled to a copyright. 3. For what it is granted. 4. Nature of the right. 5. Its duration. 6. Proceedings to obtain Such right. 7. Requisites after the grant. 8. Remedies. 9. Former grants.

3. - 1. The legislation of the United States. The Constitution of the United States, art. 1, s. 8, gives power to congress "to promote the progress of science, and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. In pursuance of this constitutional autbority, congress passed the act of May 31, 1790; 1 Story's L. U. S. 94, and the act of April 29, 1802, 2 Story's L. U. S. 866, but now repealed by the act of February 3, 1831, 4 Shars. Cont. of Story, 2221, saving, always such rights as may have been obtained in conformity to their provision. By this last mentioned act, entitled " An act to amend the several acts respecting copyrights," the subject is now regulated.

4.- 2. Of the persons entitled to a copyright. Any person or persons, being a citizen or citizens of the United States, or resident therein, who is the author or authors of any book or books, map, chart, or musical composition, or who has designed, etched, engraved, worked, or caused to be engraved, etched or worked from his own design, any print or engraving, and the executors, administrators, or legal representatives of such person or persons. Sect. 1, and sect. 8.

5. - 3. For what work the copyright is granted. The copyright is granted for any book or books, map, chart, or musical composition, which may be now, (February 3, 1831, the date of the act,) made or composed, and not printed or published, or shall hereafter be made or composed, or any print or engraving, which the author has invented, designed, etched, engraved or worked, or caused to be engraved, etched or worked from his own design. Sect. 1.

6.- 4. Nature of the right. The person or persons to whom a copyrigbt has been lawfully granted, have the sole right and liberty of printing, reprinting, publishing and vending such book or books, map, chart, musical composition, print, out or engraving, in whole or in part. Sect. 1.

7.- 5. Duration of the copyright. The right extends for the term of twenty-eight Years from the time of recording the title of the book, &c., in the office of the clerk of the court, as directed by law. Sect. 1.

8. But this time may be extended by the following provisions of the act.

9. Sect. 2. If, at the expiration of the aforesaid term of years, such author, inventor, designer, engraver, or any of them, where the work had been originally composed and made by wore than one person, be still living, and a citizen or citizens of the United States, or resident therein, or being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author, designer, or engraver, or if dead, then to such widow and child, or children, for the further term of fourteen years: Provided, that the title of the work so secured shall be a second time recorded, and all such other regulations as are herein required in regard to original copyrights, be complied with in respect to such renewed copyright, and that within six months before the expiration of the first term.

10. Sect. 3. In all cases of renewal of copyright under this act, such author or proprietor shall, within two months from the date of, said renewal, cause a copy of the record thereof to be published in one or more of the newspapers printed in the United States, for the space of four weeks.

11. - Sect. 16. Whenever a copyright has been heretofore obtained by an author or authors, inventor, designer, or engraver, of any book, map, chart, print, cut, or engraving, or by a proprietor of the same; if such author or authors, or either of them such inventor, desiginer, or engraver, be living at the passage of this act, then, such author or authors, or the survivor of them, such inventor, engraver, or designer, shall continue to have tbe same exclusive right to his book, chart, map, print, cut or engraving, with the benefit of each and all the provisions of this act, for the security thereof, for such additional period of time as will, together with the tune which shall have elapsed from the first entry of such copyright, make up the term of twenty-eight years, with the same right to his widow, child, or children, to renew the copyright, at the expiration thereof, as is provided in relation to copyrights originally secured under this act. And if such author or authors, inventor, designer, or engraver, shall not be living at the passage of this act, then, his or their heirs, executors and administrators, shall be entitled to the like exclusive enjoyment of said copyright, with the benefit of each and all the provisions of this act for the security thereof, for the period of twenty-eight years from the first entry of said copyright with the like privilege of renewal to the widow, child, or children, of author or authors, designer, inventor, or engraver, as is provided in relation to copyrights originally secured under this act.

12. - 6. Proceedings to obtain a copyright. No person shall be entitled to the benefit of this act, unless he shall, before publication, deposit a printed copy of the title of such book, or books, map, chart, musical composition, print, out, or engraving, in the clerk's office of the district court of the district wherein the author or proprietor shall reside, and the clerk of such court is hereby directed and required to record the same therein forthwith, in a book to be kept for that purpose, in the words following (giving a copy of the title under the seal of the court, to the said author or proprietor, whenever he shall require the same:) " District of_____to wit: Be it remembered, that on the _____ day of ______ Anno Domini, A. B. of the said district, hath deposited in this office the title of a book, (map, chart, or otherwise, as the case may be,) the title of which is in the words following, to wit; (here insert the title;) the right whereof he claims as author (or proprietor, as the case may be in conformity with an act of congress, entitled 'An act to amend the several acts respecting copyrights.' C. D. clerk of the district." For which record, the clerk shall be entitled to receive from the person claiming such right as aforesaid, fifty cents; and the like sum for every copy, under seal, actually given to such person or his assigns. The act to establish the Smithsonian Institution, for the increase and diffusion of knowledge among men, enacts, section 10, that the author or proprietor of any book, map, chart, musical composition, print, cut, or engraving, for, which a copyright shall be secured under the existing acts of congress, or those 'which shall hereafter be enacted respecting copyrights, shall, within three months from the publication of said book, etc., deliver or cause to be delivered, one copy of the same to the librarian of the Smithsonian Institution, and one copy to the librarian, of Congress Library, for the use of the said libraries.

13.- 7. Requisites after the grant. No person shall be entitled to the benefit of this act, unless he shall give information of copyright being secured, by-causing to be inserted, in the several copies of each and every edition published during the term secured, on the title page, or the page immediately following, if it be a book, or, if a map, chart, musical composition, print, cut, or engraving, by causing to be impressed on the face thereof, or if a volume of maps, charts, music or engravings, upon the title or frontispice thereof, the following words, viz: " Entered according to act of congress, in the year by A. B., in the clerk's office of the district court of ___________________" (as the case may be.)

14. The author or proprietor of any such book, map, chart, musical composition, print, cut, or engraving, shall, within three months from the publication of said book, map, chart, musical composition, print, cut, or engraving, deliver or cause to be delivered a copy. of the same to the clerk of said district. And it shall be the duty of the clerk of each district court, at least once in every year, to transmit a certified list of all such records of copyright, including the titles so recorded, and the date of record, and also all the several copies of books or other works deposited in his office, according to this act, to the secretary of state, to be preserved in his office.

15.- 8. The remedies may be considered with regard, 1. To the penalties wbich may be incurred. 2. The issue in actions under this act. 3. The costs. 4. The Iimitation.

16. - 1. The penalties imposed by this act relate, first, to the violation of the copyright of books secondly, the violation of the copyright of prints, outs or engravings, maps, charts, or musical compositions thirdly, the printing or publishing of any manuscripts without the consent of the author or legal proprietor; fourthly, for inserting in any book, &c., that the copyright has been secured contrary to truth.

17. - First. If any other person or persons, from and after recording the title of any book or books, according to this act, shall, within the term or terms herein limited, print, publish, or import, or cause to be printed, published, or imported, any copy of such book or books, without the consent of the person legally entitled to the copyright thereof, first had and obtained in writing, signed in presence of two or more credible witnesses, or shall, knowing the same to be so printed or imported, publish, sell, or expose to sale, or cause to be published, sold, or exposed to sale, any copy of such book, without such consent in writing, then such offender Shall forfeit every copy of such book to the person legally, at the time, entitled to the copyright thereof and shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, either printed or printing, published, imported, or exposed to sale, contrary tor the intent of this act; the one moiety thereof to such legal owner of the copyright as aforesaid, and the other to the use of the United States; to be recovered by action of debt in any court having competent jurisdiction thereof.

18. - Secondly. If any person or persons, after the recording the title of any print, cut or engraving, map, chart, or musical composition, according to the provisions of this act, shall, within the term or terms limited by this act, engrave, etch, or work, sell, or Copy, or cause to be engraved, etched, worked, or sold, or copied, either on the whole, or by varying, adding to, or diminisbing the main design, with intent to evade the law, or shall print or import for sale, or cause to be printed or imported for sale, any such map, cbart, musical composition, print, cut, or engraving, or any parts thereof, without the consent of the proprietor or proprietors of the copyright thereof, first obtained in writing, signed in the presense of two credible witnesses; or, knowing the same to be so printed or imported, without such consent, shall publish, sell, or expose to sale, or in any manner dispose of any such map, chart, musical composition, engraving, cut, or print, without such consent, as foresaid; then such offenders shall forfeit the plate or plates on which such map, chart, musical composition, engraving, cut, or print, shall be copied, and also all and every sheet thereof so copied or printed, as aforesaid, to the proprietor or proprietors of the copyright thereof; and shall further forfeit one dollar for every sheet of such map, chart, musical composition, print, cut, or engraving, which may be found in his or their possession, printed or published, or exposed to sale, contrary to the true intent and meaning of this act; the one moiety thereof to the proprietor or proprietors, and the other moiety to the use of the United States, to be recovered in any court having competent jurisdiction thereof.

19. Nothing in this act shall be construed to extend to prohibit the importation or vending, printing or publishing, of any map, chart, book, musical composition, print, or engraving, written, composed, or made by any person not being a citizen of the United States, nor resident within the jurisdiction thereof.

20. Thirdly. Any person or persons, who shall print or publish any manuscript whatever, without the consent of the author or legal proprietor first obtained as aforesaid, (if such author or proprietor be a citizen of the United States, or resident therein,) shall be liable to suffer and pay to the author or proprietor all damages occasioned by such injury, to be recovered by a special action on the case founded upon this act, in any court having cognizance thereof; and the several courts of the United States empowered to grant injunctions to prevent the violation of the rights of authors and inventors, are hereby empowered to grant injunctions, in like manner, according to the principles of equity, to restrain such publication of any manuscript, as aforesaid.

21.-Fourthly. If any person or persons, from and after the passing of this act, shall print or publish any book, map, chart, musical composition, print, cut, or engraving, not having legally acquired the copyright thereof, and shall insert or impress that the same hath been entered according to act of congress, or words purporting the same, every person so offending shall forfeit and pay one hundred dollars; one moiety thereof to the person who shall sue for the same, and the other to the use of the United States, to be re-covered by action of debt, in any court of record leaving cognizance thereof.

22. - 2. The issue. If any person or persons shall be sued or prosecuted, for any matter, act or thing done under or by virtue of this act, he or they may plead the general issue, and give the special matter in evidence.

23. - 3. The costs. In all recoveries under this act, either for damages, forfeitures, or penalties, full costs shall be allowed thereon, anything in any former act to the contrary notwithstanding.

24. - 4. The limitation of actions is regulated as follows. No action or prosecution shall be maintained in any case of forfeiture or penalty under this act, unless the same shall have been commenced within two years after the cause of action shall have arisen.

25. - 9. Former grants. All and several the provisions of this act, intended for the protection and security of. copyrights, and providing remedies, penalties, and forfeitures in case of violation thereof, shall be held and construed to extend to the benefit of the legal proprietor or proprietors of each and every copyright heretofore obtained, according to law, during the term thereof, in the same manner as if such copyright had been entered and secured according to the directions of this act. And by the 16th section it is provided that this act shall not extend to any copyright heretofore secured, the term of which has already expired.

26. Copyrights are secured in most countries of Europe. In Great Britain, an author has a copyright in his work absolutely for twenty-eight years, and if he be living at the end of that period, for the residue of his life. In France, the copyright of an author extends to twenty years after his death. In most, if not in all the German states, it is perpetual; it extends only over the state in which it is granted. In Russia, the right of an author or translator continues during his life, and his heirs enjoy the privilege twenty-five years afterwards. No manuscript or printed work of an author can be sold for his debts. 2 Am. Jur. 253, 4. Vide, generally, 2 Am. Jur. 248; 10 Am. Jur. 62; 1 Law Intell. 66; and the articles Literary property; Manuscript.

COMMON, COMMON ASSURANCES, COMMON CARRIER...

COMMON, COMMON ASSURANCES, COMMON CARRIER...

    3.7.17  

COMMON. or right of common, English law. An encorporeal hereditament, which consists in a profit which a man has in the lands of another. 12 S. & R. 32; 10 Wend. R. 647; 11 John. R. 498; 2 Bouv. Inst. 1640, et seq.

2. Common is of four sorts; of pasture, piscary, turbary and estovers. Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.

3. - 1. Common of pasture is a right of feeding one's beasts on another's land, and is either appendant, appurtenant, or in gross.

4. Common appendant is of common right, and it may be claimed in pleading as appendant, without laying a prescription. Hargr. note to 2 Inst. 122, a note.

5. Rights of common appurtenant to the claimant's land are altogether independent of the tenure, and do not arise from any absolute necessity; but may be annexed to lands in other lordships, or extended to other beasts besides. such as are generally commonable.

6. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person. All these species of pasturable common, may be and usually are limited to number and time; but there are also commons without stint, which last all the year. 2 Bl. Com. 34.

7. - 2. Common of piscary is the liberty of fishing in another man's water. lb. See Fishery.

8. - 3. Common of turbary is the liberty of digging turf in another man's ground. Ib.

9.-4. Common of estovers is the liberty of taking necessary wood-for the use or furniture of a house or farm from another man's estate. Ib.; 10 Wend. R. 639. See Estovers.

10. The right of common is little known in the United States, yet there are some regulations to be found in relation to this subject. The constitution of Illinois provides for the continuance of certain commons in that state. Const. art. 8, s. 8.

11. All unappropriated lands on the Chesapeake Bay, on the Shore of the sea, or of any river or creek, and the bed of any river or creek, in the eastern parts of the commonwealth, ungranted and used as common, it is declared by statute in Virginia, shall remain so, and not be subject to grant. 1 Virg. Rev. C. 142.

12. In most of the cities and towns in the United States, there are considerable tracts of land appropriated to public use. These commons were generally laid out with the cities or towns where they are found, either by the original proprietors or by the early inhabitants. Vide 2 Pick. Rep. 475; 12 S. & R. 32; 2 Dane's. Ab. 610; 14 Mass. R. 440; 6 Verm. 355. See, in general, Vin. Abr. Common; Bac. Abr. Common; Com. Dig. Common; Stark. Ev. part 4, p. 383; Cruise on Real Property, h. t.; Metc. & Perk. Dig. Common, and Common lands and General fields.

COMMON APPENDANT, Eng. law. A right attached to arable land, and is an incident of tenure, and supposed to have originated by grant of the lord or owner of a manor or waste, in consideration of certain rents or services, or other value, to a freeholder or copyholder of plough land, and at the same time either expressly or by implication, and as of common right and necessity common appendant over his other wastes and commons. Co. Litt. 122 a; Willis, 222.

COMMON APPURTENANT, Eng. law. A right granted by deed, by the owner of waste or other land, to another person, owner of other land, to have his cattle, or a particular description of cattle; levant and couchant upon the land, at certain seasons of the year, or at all times of the year. An uninterrupted usage for twenty years, is evidence of a grant. 15 East, 116.

COMMON ASSURANCES. Title by deeds are so called, because, it is said, every man ' s estate is assured to him; these deed's or instruments operate either as conveyances or as charges.

2.- 1. Deeds of conveyance are, first, at common law, and include feoffments, gifts, grants, leases, exchanges, partition's, releases, confirmations, surrenders, assignments, and defeasances; secondly, deeds of conveyance under the statute of uses, as covenants to stand seised to uses, bargains and sale, lease and release, deeds to lead or declare uses, and deeds of appointment and revocation.

3. - 2. Deeds which do not convoy, but only charge or discharge lands, are obligations, recognizances, and defeasances. Vide Assurance; Deed.

COMMON BAIL. The formal entry of fictitious sureties in the proper office of the court, which is called filing common bail to the action. See Bail.

COMMON BAR, pleading. A plea to compel the plaintiff to assign the particular place where the trespass has been Committed. Steph. Pl. 256. It i's sometime's called a blank bar. (q. v.)

COMMON BENCH, bancus communis. The court of common pleas was anciently called common bench, because the pleas and controversies there determined were between common persons. See Bench.

COMMON CARRIER, contracts. One who undertakes for hire or reward to transport the goods of any who may choose to employ him, from place to place. 1 Pick. 50, 53; 1 Salk. 249, 250; Story, Bailm. 495 1 Bouv. Inst. n. 1020.

2. Common carriers are generally of two descriptions, namely, carriers by land and carriers by water. Of the former description are the proprietors of stage coaches, stage wagons or expresses, which ply between different places, and' carry goods for hire; and truckmen, teamsters, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one part of a town or city to another, are also considered as common carriers. Carriers by water are the masters and owners of ships and steamboats engaged in the transportation of goods for persons generally, for hire and lightermen, hoymen, barge-owners, ferrymen, canal boatmen, and others employed in like manner, are so considered.

3. By the common law, a common carrier is generally liable for all losses which may occur to property entrusted to his charge in the course of business, unless he can prove the loss happened in consequence of the act of God, or of the enemies of the United States, or by the act of the owner of the property. 8 S. & R. 533; 6 John. R. 160; 11 John. R. 107; 4 N. H. Rep. 304; Harp. R. 469; Peck. R. 270; 7 Yerg. R. 340; 3 Munf. R. 239; 1 Conn. R. 487; 1 Dev. & Bat. 273; 2 Bail. Rep. 157.

4. It was attempted to relax the rigor of the common law in relation to carriers by water, in 6 Cowen, 266; but that case seems to be at variance with other decisions. 2 Kent,. Com. 471, 472; 10 Johns. 1; 11 Johns. 107.

5. In respect to carriers by land, the rule of the common law seems every where admitted in its full rigor in the states governed by the jurisprudence of the common law. Louisiana follows the doctrine of the civil law in her code. Proprietors of stage coaches or wagons, whose employment is solely% to carry passengers, as hackney coachmen, are not deemed common carriers; but if the proprietors of such vehicles for passengers, also carry goods for hire, they are, in respect of such goods, to be deemed common carriers. Bac. Ab. Carriers, A; 2 Show. Rep. 128 1 Salk. 282 Com. Rep. 25; 1 Pick. 50 5 Rawle, 1 79. The like reasoning applies to packet ships and steam-boats, which ply between different ports, and are accustomed to carry merchandise as well as passengers. 2 Watts. R. 443; 5 Day's Rep. 415; 1 Conn. R. 54; 4 Greenl. R. 411; 5 Yerg. R. 427; 4 Har. & J. 291; 2 Verm. R. 92; 2 Binn. Rep. 74; 1 Bay, Rep. 99; 10 John. R. 1; 11 Pick. R. 41; 8 Stew. and Port. 135; 4 Stew. & Port. 382; 3 Misso. R. 264; 2 Nott. & M. 88. But see 6 Cowen, R. 266. The rule which makes acommon carrier responsible for the loss of goods, does not extend to the carriage of persons; a carrier of slaves is, therefore, answerable only for want of care and skill. 2 Pet. S. C. R. 150. 4 M'Cord, R. 223; 4 Port. R. 238.

6. A common carrier of goods is in all cases entitled to demand the price of carriage before he receives the goods, and, if not paid, he may refuse to take charge of them; if, however, he take charge of them without the hire being paid, he may afterwards recover it. The compensation which becomes due for the carriage of goods by sea, is commonly called freight (q.v.); and see also, Abb. on Sh. part 3, c. 7. The carrier is also entitled to a lien on the goods for his hire, which, however, he may waive; but if once waived, the right cannot be resumed. 2 Kent, Com. 497. The consignor or shipper is commonly bound to the carrier for the hire or freight of goods. 1 T. R. 659. But whenever the consignee engages to pay it, he also becomes responsible. It is usual in bills of lading to state, that the goods are to be delivered to the consignee or to his assigns, he or they paying freight, in which case the consignee and his assigns, by accepting the goods, impliedly become bound to pay the freight, and the fact that the consignor is also liable to pay it, will not, in such case, make any difference. Abbott on Sh. part 3, o. 7, 4.

7. What is said above, relates to common carriers of goods. The duties, liabilities, and rights of carriers of passengers, are now to be considered. These are divided into carriers of passengers on land, and carriers of passengers on water.

8. First, of carriers of passengers on land. The duties of such carriers are, 1st. those which arise on the commencement of the journey. 1. To carry passengers whenever they offer themselves and are ready to pay for their transportation. They have no more right to refuse a passenger, if they have sufficient room and accommodation, than an innkeeper has to refuse a guest. 3 Brod. & Bing. 54; 9 Price's R. 408; 6 Moore, R. 141; 2 Chit. R. 1; 4 Esp. R. 460; 1 Bell's Com. 462; Story, Bailm. 591.

9. - 2. To provide coaches reasonably strong and sufficient for the journey, with suitable horses, trappings and equipments.

10. - 3. To provide careful drivers of reasonable skill and. good habits for the journey; and to employ horses which are steady and not vicious, or likely to endanger the safety of the passengers.

11. - 4. Not to overload the coach either with passengers or luggage.

12. - 5. To receive and take care of the usual luggage allowed to every passenger on the journey. 6 Hill, N. Y. Rep. 586.

13. - 2d. Their duties on the progress of the journey. 1. To stop at the usual places, and allow the..Usual intervals for the refreshment of the passengers. 5 Petersd. Ab. Carriers, p. 48, note.

14. - 2. To use all the ordinary precautions for the safety of passengers on the road.

15. - 3d. Their duties on the termination of the journey. 1. To carry the passengers to the end of the journey.

16. - 2. To put them down at the usual place of stopping, unless there has been a special contract to the contrary, and then to put them down at the place agreed upon. 1 Esp. R. 27. ,

17. The liabilities of such carriers. They are bound to use extraordinary care and diligence to carry safely those whom they take in their coaches. 2 Esp. R. 533; 2 Camp. R. 79; Peake's R. 80. But, not being insurers, they are not responsible for accidents, when all reasonable skill and diligence have been used.

18. The rights of such carriers. 1. To demand and receive their fare at the time the passenger takes his seat. 2. They have a lien on the baggage of the passenger for his fare or passage money, but not on the person of the passenger nor the clothes he has on. Abb. on Sh. part 3, c. 3, 11; 2 Campb. R. 631.

19. Second, carriers of passengers by water. By the act of Congress of 2d March, 1819, 3 Story's Laws U. S. 1722, it is enacted, 1. that no master of a vessel bound to or from the United States shall take more than two passengers for every five tons of the ship's custom-house measurement. 2. That the quantity of water and provisions, which shall be taken on board and secured under deck, by every Ship bound from the United States to any port on the continent of Europe, shall be sixty gallons of water, one hundred pounds of salted provisions, one gallon of vinegar, and one hundred pounds of wholesome ship bread for each passenger, besides the stores of the crew. The tonnage here mentioned, is the measurement of the custom-house; and in estimating the number of passengers in a vessel, no deduction is to be made for children or persons not paying, but the crew is not to be included. Gilp. R. 334.

20. The act of Congress of February 22, 1847, section 1, provides: " That if the master of any vessel, owned in whole or in part by a citizen of the United States of America, or by a citizen of any foreign country, shall take on board such vessel, at any foreign port or place, a greater number of passengers than in the following proportion to the space occupied by them and appropriated for their use, and unoccupied by stores or other goods, not being the personal luggage of such passengers, that is to say, on the lower deck or platform one passenger for every fourteen clear superficial feet of deck, if such vessel is not to pass within the tropics during such voyage; but if such vessel is to pass within the tropics during such voyage, then one passenger for every twenty such clear superficial feet of deck, and on the orlop deck (if any) one passenger for every thirty such superficial feet in all cases, with intent to bring such passengers to the United States of America, and shall leave such port or, place with the same, and bring the same, or any number thereof, within the jurisdiction of the United States aforesaid, or if any such master of a vessel shall take on board of his vessel at any port or place within the jurisdiction of the United States aforesaid, any greater number of passengers than the proportions aforesaid admit, with intent to carry the same to any foreign port or place, every such master shall be deemed guilty of a misdemeanor, and, upon conviction thereof before any circuit or district court of the United States aforesaid, shall, for each passenger taken on board beyond the above proportions, be fined in the sum of fifty dollars, and may also be imprisoned for any term not exceeding one year: Provided, That this act shall not be construed to permit any ship or vessel to carry more than two passengers to five tons of such ship or vessel."

21. Children under one year of age not to be computed in counting the passengers, and those over one year and under eight, are to be counted as two cbildren for one passenger, Sect. 4. But this section is repealed so far as authorizes shippers to estimate two children of eight years of age and under as one passenger by the act of March 2, 1847, s. 2.

22. In New York, statutory regulations have been made in relation to their canal navigation. Vide 6 Cowen's R. 698. As to the conduct of carrier vessels on the ocean, Vide Story, Bailm. 607 et seq; Marsh. Ins. B. 1, c. 12, s. 2. And see, generally, 1 Vin. Ab. 219; Bac. Ab. h. t.; 1 Com. Dig. 423; Petersd. Ab. h. t.; Dane's Ab. Index, h. t.; 2 Kent, Com. 464; 16 East, 247, note; Bouv. Inst. Index, h. t.

23. In Louisiana carriers and watermen are subject, with respect to the safe-keeping and preservation of the tbings entrusted to them, to the same obligations and duties, as are imposed on tavern keepers; Civ. Code, art. 2722; that is, they are responsible for the effects which are brought, though they were not delivered into their personal care; provided, however, they were delivered to a servant or person in their employment; art. 2937. They are responsible if any of the effects be stolen or damaged, either by their servants or agents, or even by strangers; art. 2938; but they are not responsible for what is stolen b force of arms or with exterior breaking open of doors, or by any other extraordinary violence; art. 2939. For the authorities on the subject ofCommon carriers in the civil law, the reader is referred to Dig. 4, 9, 1 to 7; Poth. Pand. lib. 4, t. 9; Domat liv. 1, t. 16, S. 1 and 2; Pard. art. 537 to 555; Code Civil, art. 1782, 1786, 1952; Moreau & Carlton, Partidas 5, t. 8, 1. 26; Ersk. Inst. B. 2, t. 1, 28; 1 Bell's Com. 465; Abb. on Sh. part 3, c. 3, 3, note (1); 1 Voet, ad Pand. lib. 4, t. 9; Merl. Rep. mots Voiture, Voiturier; Dict. de Police, Voiture.

COMMON COUNCIL. In many cities the charter provides for their government, in imitation of the national and state governments. There are two branches of the legislative assembly; the less numerous, called the select, the other, the common council.

2. In English law, the common council of the whole realm means the parliament. Fleta, lib. 2, cap. 13.

COMMON COUNTS. Certain general counts, not founded on any special contract, which are introduced in a declaration, for the purpose of preventing a defeat of a just right by the accidental variance of the evidence. These are in an action of assumpsit; counts founded on express or implied promises to pay money in consideration of a precedent debt, and are of four descriptions: 1. The indebitatus assumpsit; 2. The quantum meruit; 3 . The quantum valebant; and, 4. The account stated.

COMMON FISHERY. A fishery to which all persons have a right, such as the cod fisheries off Newfoundland. A common fishery is different from a common of fishery, which is the right to fish in another's pond, pool, or river. See Fishery.

COMMON HIGHWAY. By this term is meant a road to be used by the community at large for any purpose of transit or traffic. Hamm. N. P. 239. See Highway.

COMMON INFORMER. One who, without being specially required by law, or by virtue of his office, gives information of crimes, offences or misdemeanors, which have been committed, in order to prosecute the offenders; a prosecutor. Vide Informer; Prosecutor.

COMMON INTENT, construction. The natural sense given to words.

2. It is a rule that when words are used which will bear a natural sense and an artificial one, or one to be made out by argument and inference, the natural sense shall prevail; it. is simply a rule of construction and not of addition common intent cannot add to a sentence words which have been omitted. 2 H. Black. 530. In pleading, certainty is required, but certainty to a common intent is sufficient; that is, what upon a reasonable construction may be called certain, without recurring to possible facts. Co. Litt. 203, a; Dougl. 163. See Certainty.

COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people. See Law, common.

COMMON NUISANCE. One which affects the public in general, and not merely some particular person. 1 Hawk. P. C. 197. See Nuisance.

COMMON PLEAS. The name of a court having jurisdiction generally of civil actions. For a historical account of the origin of this court in England, see Boote's Suit at Law, 1 to 10. Vide Common Bench and Bench.

2. By common pleas, is also understood, such pleas or actions as are brought by private persons against private persons; or by the government, when the cause of action is of a civil nature. In England, whence we derived this phrase, common pleas are so called to distinguish them from pleas of the crown. (q. v.)

COMMON RECOVERY. A judgment recovered in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in the suit., A common recovery is a kind of conveyance. 2 Bouv. Inst. n. 2088, 2092-3. Vide Recovery.

COMMON SCOLD, Crim. law, communes rixatrix. A woman, who, in consequence of her boisterous, disorderly and quarrelsome tongue, is a public nuisance to the neighborhood.

2. Such a woman may be indicted, and on conviction, punished. At common law, the punishment was by being placed in a certain engine of correction called the trebucket or cocking stool.

3. This punisbment has been abolished in Pennsylvania, where the offence may be punished by fine and imprisonment.12 Serg. & Rawle, 220; vide 1 Russ. on Cr. 802 Hawk. B. 2, c. 25, s. 59 1 T. R. 756 4 Rogers' Rec. 90; Roscoe on Cr. Ev. 665.

COMMON SEAL, A seal used by a corporation. See Corporation.

COMMON SENSE , med. jur. When a person possesses those perceptions, associations and judgments, in relation to persons and things, which agree with those of the generality of mankind, he is said to possess common sense. On the contrary, when a particular individual differs from the generality of persons in these respects, he is said not to have common sense, or not to be in his senses. 1 Chit. Med. Jur. 334.

COMMON, TENANTS IN. Tenants in common are such as hold an estate, real or personal, by several distinct titles, but by a unity of possession. Vide Tenant in common; Estate in common.

COMMON TRAVERSE. This kind of traverse differs from those called technical traverses principally in this, that it is preceded by no inducement general or special; it is taken without an absque hoc, or any similar words, and is simply a direct denial of the adverse allegations, in common language, and always concludes to the country. It can be used properly only when an inducement is not requisite; that is, when the party traversing has no need to allege any new matter. 1 Saund. 103 b. ii. 1.

2. This traverse derives its name, it is presumed, from the fact that common language is used, and that it is more informal than other traverses.

COMMON VOUCHEE. In common recoveries, the person who vouched to warranty. In this fictitious proceeding, the crier of the court usually performs the office of a common vouchee. 2 Bl. Com. 358; 2 Bouv. Inst. n. 2093.

ASSETS

ASSETS

    2.7.17  

ASSETS. The property in the hands of an heir, executor, administrator or trustee, which is legally or equitably chargeable with the obligations, which such heir, executor, administrator or other trustee, is, as such, required to discharge, is called assets. The term is derived from the French word assez, enough; that is, the heir or trustee has enough property. But the property is still called assets, although there may not be enough to discharge all the obligations; and the heir, executor, &c., is chargeable in distribution as far as such property extends.

2. Assets are sometimes divided by all the old writers, into assets enter mains and assets per descent; considered as to their mode of distribution, they are 1egal or equitable; as to the property from which they arise, they are real or personal.

3. Assets enter maim, or assets in hand, is such property as at once comes to the executor or other trustee, for the purpose of satisfying claims against him as such. Termes de la Ley.

4. Assets per descent, is that portion of the ancestor's estate which descends to the heir, and which is sufficient to charge him, as far as it goes, with the specialty debts of his ancestor. 2 Williams on Ex. 1011.

5. Legal assets, are such as constitute the fund for the payment of debts according to their legal priority.

6. Equitable assets, are such as can be reached only by the aid of a court of equity, and are to be divided,, pari passu, among all the creditors; as when a debtor has made his property subject to his debts generally, which, without his act would not have been so subject. 1 Madd. Ch. 586; 2 Fonbl. 40 1, et seq.; Willis on Trust, 118.

7. Real assets, are such as descend to the heir, as in estate in fee simple.

8. Personal assets, are such goods and chattels to which the executor or administrator is entitled.

9. In commerce, by assets is understood all the stock in trade, cash, and all available property belonging to a merchant or company. Vide, generally, Williams on Exec. Index, h. t.; Toll. on Exec. Index, h. t.; 2 Bl. Com. 510, 511; 3 Vin. Ab. 141; 11 Vin. Ab. 239; 1 Vern. 94; 3 Ves. Jr. 117; Gordon's Law of Decedents, Index, h. t.; Ram on Assets.

CANCELLATION

CANCELLATION

    2.7.17  

CANCELLATION. Its general acceptation, is the act of crossing a writing; it is used sometimes to signify the manual operation of tearing or destroying the instrument itself. Hyde v. Hyde, 1 Eq. Cas. Abr. 409; Rob. on Wills, 367, n.

2. Cancelling a will, animo revocandi, is a revocation of it, and it is unnecessary to show a complete destruction or obliteration. 2 B. & B. 650; 3 B. & A. 489; 2 Bl. R. 1043; 2 Nott & M'Cord, 272; Whart. Dig. Wills, c.; 4 Mass. 462. When a duplicate has been cancelled, animo revocandi, it is the cancellation of both parts. 2 Lee, Ecc. R. 532.

3. But the mere act of cancelling a will is nothing, unless it be done animo revocandi, and evidence is admissible to show, quo animo, the testator cancelled it., 7 Johns. 394 2 Dall. 266; S. C. 2 Yeates, 170; 4 Serg. & Rawle, 297; cited 2 Dall. 267, n.; 3 Hen. & Munf. 502; Rob. on Wills, 365; Lovel, 178; Toll. on Ex'rs, Index, h. t.; 3 Stark. Ev. 1714; 1 Adams' Rep. 529 Mass. 307; 5 Conn. 262; 4 Wend. 474; 4 Wend. 585; 1 Harr. & M'H. 162; 4 Conn. 550; 8 Verm. 373; 1 N. H. Rep. 1; 4 N. H. Rep. 191; 2 Eccl. Rep. 23.

4. As to the effect of cancelling a deed, which has not been recorded, see 1 Adams' Rep. 1; Palm. 403; Latch. 226; Gilb. Law, Ev. 109, 110; 2 H . Bl. 263: 2 Johns. 87 1 Greenl. R. 78; 10 Mass. 403; 9 Pick. 105; 4 N. H. Rep. 191; Greenl. Ev. 265; 5 Conn. 262; 4 Conn. 450; 5 Conn. 86; 2 John. R. 84; 4 Yerg. 375; 6 Mass. 24; 11 Mass. 337; 2 Curt. Ecc. R. 458.

5. As to when a court of equity will order an agreement or other instrument to be cancelled and delivered up, see 4 Bouv. Inst. n. 3917-22.

ANNUITY

ANNUITY

    2.7.17  

ANNUITY, contracts. An anuity is a, yearly sum of money granted by one party to another in fee for life or years, charging the person of the grantor only. Co. Litt. 144; 1 Lilly's Reg. 89; 2 Bl. Com. 40; 5 M. R. 312; Lumley on Annuities. 1; 2 Inst. 293; Davies' Rep. 14, 15.

2. In a less technical sense, however, when the money is chargeable on land and on the person, it is generally called an annuity. Doet. and Stud Dial. 2, 230; Roll. Ab. 226. See 10 Watts, 127.

3. An anuuity is different from a rent charge, with which it is frequently confounded, in this; a rent charge is a burden imposed upon and issuing out of lands, whereas an annuity is chargeable only upon the person of the grantee. Bac. Abr. Annuity, A. See, for many, regulations in England relating to annuities, the Stat,. 17 Geo. III. c. 26.

4. An annuity may be created by contract, or by will. To enforce the payment of an annuity, the common law gives a writ of annuity which may be brought by the grantee or his heirs, or their grantees, against the grantor and his heirs. The action of debt cannot be maintained at the common law, or by the Stat. of 8 Anne, c. 14, for the arrears of an annuity devised to A, payable out of lands during the life of B, to whom the lands are devised for life, B paying the annuity out of it, so long as the freehold estates continues. 4 M. & S. 113; 3 Brod. & Bing. 30; 6 Moore, 336. It has been ruled also, that if an action of annuity be brought, and the annuity determines pending the suit, the writ faileth forever because no such action is maintainable for arrearages only, but for the annuity and the arrearages. Co. Litt. 285, a.

5. The first payment of an annuity is to be made at the time appointed in the instrument creating it. In cases where testator directs the annuity to be paid at the end of the first quarter, or other period before the expiration of the first year after his death, it is then due; but in fact it is not payable by the executortill the end of the year. 3 Mad. Ch. R. 167. When the time is not appointed, as frequently happens in will, the following distinction is presumed to exist. If the bequest be merely in the form of an annuity as a gift to a man of "an annuity of one hnndred dollars for life" the first payment will be due at the end of the year after the testator's death. But if the disposition be of a sum of money, and the interest to be given as an annuity to the same man for life, the first payment will not accrue before the expiration of the second year after ihe testator's death. This distinction, though stated from the bench, does not appear to have been sanctioned by express decision. 7 Ves. 96, 97.

6. The Civil Code of Louisiana makes the following provisions in relation to annuities, namely: The contract of annuity is that by which one party delivers to another a sum of money, and agrees not to reclaim it, so long as the receiver pays the rent agreed upon. Art. 2764.

7. This annuity mav be perpetual or for life. Art. 2765.

8. The amount of the annuity for life can in no case exceed the double of the conventional interest. The amount of the perpetual annuity cannot exceed the double of the conventional interest. Art. 2766.

9. Constituted annuity is essentially redeemable. Art. 2767.

10. The debtor of a constituted annuity may be compelled to redeem the same: 1, If he ceases fulfilling his obligations during three years: 2, If he does not give the lender the securities promised by the contract. Art. 2768.

11. If the debtor should fail, or be in a state of insolvency, the capital of the constituted annuity becomes exigible, but only up to the amount at wich it is rated, according to the order of contribution amongst the creditors. Art. 2769.

12. A similar rule to that contained in the last article has been adopted in England. See stat. 6 Geo. IV., c. 16, s. 54 and 108; note to Ex parte James, 5 Ves. 708; l Sup. to Ves. Jr. 431; note to Franks v. Cooper, 4 Ves. 763; 1 Supp. to Ves. Jr. 308. The debtor, continues the Code, may be compelled by his security to redeem the annuity within the time which has been fixed in the contract, if any time has been fixed, or after ten years, if no mention be made of the time in the act. Art. 2770.

13. The interest of the sums lent, and the arrears of constituted and life annuity, cannot bear interest but from the day a judicial demand of the same has been made by the creditor, and when the interest is due for at least one whole year. The parties may only agree, that the same shall not be redeemed prior to a time which cannot exceed ten years, or without having warned the creditor a time before, which they shall limit. Art. 2771. See generally, Vin. Abr. Annuity; Bac. Abr. Annuity and Rent; Com. Dig. Annuity; 8 Com. Dig. 909; Doct. Plac. 84; 1 Rop. on Leg. 588; Diet. de Jurisp. aux mots Rentes viageres, Tontine. 1 Harr. Dig. h. t.

ANIMALS OF A BASE NATURE

ANIMALS OF A BASE NATURE

    2.7.17  

ANIMAL, property. A name given to every animated being endowed with the power of voluntary motion. In law, it signifies all animals except those of the him, in species.

2. Animals are distinguished into such as are domitae, and such as are ferae naturae.

3. It is laid down, that in tame or domestic animals, such as horse, kine, sheep, poultry, and the like, a man may have an absolute property, because they coutiaue perpetually in his possession and occupation, and will not stray from his house and person unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property. 2 Bl. Com. 390; 2 Mod. 319. 1.

4. But in animals ferae naturae, a man can have no absolute property; they belong to him only while they continue in his keeping or actual possession; for if at any they regain their natural liberty, his property instantly ceases, unless they have animum revertendi, which is only to be known by their usual habit of returning. 2 Bl. Com. 396; 3 Binn. 546; Bro. Ab. Propertie, 37; Com. Dig. Biens, F; 7 Co. 17 b; 1 Ch. Pr. 87; Inst. 2, 1, 15. See also 3 Caines' Rep. 175; Coop. Justin. 457, 458; 7 Johns. Rep. 16; Bro. Ab. Detinue, 44.

5. The owner of a mischievous animal, known to him to be so, is responsible, when he permits him to go at large, for the damages he may do. 2 Esp. Cas. 482; 4 Campb. 198; 1 Starkie's Cas. 285; 1 Holt, 617; 2 Str.1264; Lord Raym. 110; B. N. P. 77; 1 B. & A. 620; 2 C. M.& R. 496; 5 C.& P. 1; S. C. 24 E. C. L. R. 187. This principle agrees with the civil law. Domat, Lois Civ. liv. 2, t. 8, s. 2. And any person may justify the killing of such ferocious animals. 9 Johns. 233; 10. Johns. 365; 13 Johns. 312. The owner, of such an animal may be indicted for a common nuisance. 1 Russ. Ch. Cr. Law, 643; Burn's Just., Nuisance, 1.

6. In Louisiana, the owner of an animal is answerable for the damage he may cause; but if the animal be lost, or has strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master turns loose a dangerous or noxious animal; for then he must pay all the harm done, without being allowed to make the abandonment. Civ. Code, art. 2301. See Bouv. Inst. Index, h. t.

ANIMALS OF A BASE NATURE. Those which, though they may be reclaimed, are not Such that at common law a larceny may be committed of them, by reason of the baseness of their nature. Some animals, which are now usually tamed, come within this class; as dogs and cats; and others which, though wild by nature, and oftener reclaimed by art and industry, clearly fall within the same rule; as, bears, foxes, apes, monkeys, ferrets, and the like. 3 Inst. 109,; 1 Hale, P. C. 511, 512; 1 Hawk. P. C. 33, s. 36; 4 Bl. Com. 236; 2 East, P. C. 614. See 1 Saund. Rep. 84, note 2.

BANKRUPT, BANKRUPTCY

BANKRUPT, BANKRUPTCY

    2.7.17  

BANKRUPT. A person who has done, or suffered some act to be done, which is by law declared an act of bankruptcy; in such case he may be declared a bankrupt.

2. It is proper to notice that there is much difference between a bankrupt and an insolvent. A man may be a bankrupt, and yet be perfectly solvent; that is, eventually able to pay all his debts or, he may be insolvent, and, in consequence of not having done, or suffered, an act of bankruptcy. He may not be a bankrupt. Again, the bankrupt laws are intended mainly to secure creditors from waste, extravagance, and mismanagement, by seizing the property out of the hands of the debtors, and placing it in the custody of the law; whereas the insolvent laws only relieve a man from imprisonment for debt after he has assigned his property for the benefit of his creditors. Both under bankrupt and insolvent laws the debtor is required to surrender his property, for the benefit of his creditors. Bankrupt laws discharge the person from imprisonment, and his property, acquired after his discharge, from all liabilities for his debts insolvent laws simply discharge the debtor from imprisonment, or liability to be imprisoned, but his after-acquired property may be taken in satisfaction of his former debts. 2 Bell, Com. B. 6, part 1, c. 1, p. 162; 3 Am. Jur. 218.

BANKRUPTCY. The state or condition of a bankrupt.

2. Bankrupt laws are an encroacbment upon the common law. The first in England was the stat. 34 and 35 H. VIII., c. 4, although the word bankrupt appears only in the title, not in the body of the act. The stat. 13 Eliz. c. 7, is the first that defines the term bankrupt, and discriminates bankruptcy from mere insolvency. Out of a great number of bankrupt laws passed from time to time, the most considerable are the statutes 13 Eliz. c. 7; 1 James I., c. 19 21 James I., c. 19 5 Geo. II., c. 30. A careful consideration of these statutes is sufficient to give am adequate idea of the system of bankruptcy in England. See Burgess on Insolvency, 202-230.

3. The Constitution of the United States, art. 1, s. 8, authorizes congress "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States." With the exception of a short interval during which bankrupt laws existed in this country, this power lay dormant till the passage of the act of 1841, since repealed.

4. Any one of the states may pass a bankrupt law, but no state bankrupt or insolvent law can be permitted to impair the obligation of contracts; nor can the several states pass laws conflicting with an act of congress on this subject 4 Wheat. and the bankrupt laws of a state cannot affect the rights of citizens of another state. 12 Wheat. It. 213. Vide 3 Story on the Const. §1100 to 1110 2 Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the Const. c. 9 6 Pet. R. 348 Bouv. Inst. Index, h. t. Vide Bankrupt.

BAILIFF

BAILIFF

    2.7.17  

BAILIFF, account render. A bailiff is a person who has, by delivery, the custody and administration of lands or goods for the benefit of the owner or bailor, and is liable to render an account thereof. Co. Lit. 271; 2 Leon. 245; 1 Mall . Ent. 65. The word is derived from the old French word bailler, to bail, that is, to deliver. Originally, the word implied the delivery of real estate, as of land, woods, a house, a part of the fish in a pond; Owen, 20; 2 Leon. 194; Keilw. 114 a, b; 37 Ed. III. 7; 10 H. VII. 7, 30; but was afterwards extended to goods and chattels. Every bailiff is a ,receiver, but every receiver is not a bailiff. Hence it is a good plea that the defendant never was receiver, but as bailiff. 18 Ed. III. 16. See Cro. Eliz. 82-3; 2 Anders. 62-3, 96-7 F. N. B. 134 F; 8 Co. 48 a, b.

2. From a bailiff is required administration, care, management, skill. He is, therefore, entitled to allowance for the expense of administration, and for all things done in his office, according to his own judgment, without the special direction of his principal, and also for casual things done in the common course of business: 1 Mall. Ent. 65, (4) 11; 1 Rolle, Ab. 125, 1, 7; Co. Lit. 89 a; Com. Dig. E 12 Bro. Ab. Acc. 18 Lucas, Rep. 23 but not for things foreign to his office. Bro. Ab. Acc .26, 88; Plowd. 282b, 14; Com. Dig. Acc. E13; Co. Lit. 172; 1 Mall. Ent. 65, (4) 4. Whereas, a mere receiver, or a receiver who is not also a bailiff, is not entitled to allowance for any expenses. Bro. Ab. Acc. 18; 1 Mall. Ent. 66, (4) 10; 1 Roll. Ab. 118; Com. Dig. E 13; 1 Dall. 340.

3. A bailiff may appear and plead for his principal in an assize; " and his plea com- mences " thus, " J. S., bailiff of T. N., comes " &c., not " T. N., by his bailiff, J. S., comes," &c. 2 Inst. 415; Keilw. 117 b. As to what matters he may plead, see 2 Inst. 414.

BAILIFF, office. Magistrates who for merly administered justice in the parliaments or courts of France, answering to the English sheriffs as mentioned by Bracton. There are still bailiffs of particular towns in England as the bailiff of Dover Castle, &c., otherwise bailiffs are now only officers or stewards, &c. as Bailiffs of liberties, appointed by every lord within his liberty, to serve writs, &c. Bailiff errent or itenerant, appointed to go about the country for the same purpose. Sheriff 's bailies, sheriff's officers to execute writs; these are also called bound bailiffs because they are usually bound in a bond to the sheriff for the due exeecution of their office. Bailiffs of court baron, to summon the court, &c. Bailffs of hushandry, appointed by private persons to collect their rents and manage their estates. Water bailiffs, officers in port towns for searching ships, gathering tolls, &c. Bac. Ab. h. t.

BUYING OF TITLES

BUYING OF TITLES

    1.7.17  

BUYING OF TITLES. The purchase of the rights of a person to a piece of land when the seller is disseised.

2. When a deed is made by one who, though having a legal right to land, is at the time of the conveyance disseised, as a general rule of the common law, the sale is void; the law will not permit any person to sell a quarrel, or, as it is commonly termed, a pretended title. Such a conveyance is an offence at common law, and by a statute of Hen. VIII. This rule has been generally adopted in the United States, and is affirmed by express statute. In some of the states, it has been modified or abolished. It has been recognized in Massachusetts and Indiana. 1 Ind. R. 127. In Massacbusetts, there is no statute on the subject, but the act has always been unlawful. 5 Pick. R. 356. In Connecticut the seller and the buyer forfeit, each one half the value of the land. 4 Conn. 575. In New York, a person disseised cannot convey, except by way of mortgage. But the statute does not apply to judicial sales. 6 Wend. 224; see 4 Wend. 474; 2 John. Cas. 58; 3 Cow. 89; 5 Wend. 532; 5 Cow. 74; 13 John. 466; 8 Wend. 629; 7 Wend. 53, 152 11 Wend. 442; 13 John. 289. In North Carolina and South Carolina, a conveyance by a disseisee is illegal; the seller forfeits the land, and the buyer its value. In Kentucky such sale is void. 1 Dana, R. 566. But when the deeds were made since the passage of the statute of 1798, the grantee might, under that act, sue for land conveyed to him, which was adversely possessed by another, as the grantor might have done before. The statute rendered transfers valid to pass the title. 2 Litt. 393; 1 Wheat. 292; 2 Litt. 225; 3 Dana, 309. The statute of 1824, " to revive and amend the champerty and maintenance law," forbids the buying ot titles where there is an adverse possession. See 3 J. J. Marsh. 549; 2 Dana, 374; 6 J. J. Marsh. 490, 584. In Ohio, the purchase of land from one against whom a suit is pending for it, is void, except against himself, if he prevails. Walk. Intr. 297, 351, 352. In Pennsylvania. 2 Watts, R. 272 Illinois, 111. Rev. L. 130; Missouri, Misso. St. 119, a deed is valid, though there be an adverse possession. 2 Hill, Ab. c. 33, §42 to 52.

3. The Roman law forbade the sale of a right or thing in litigation. Code, 8. 37, 2.

BY ESTIMATION

BY ESTIMATION

    1.7.17  

BY ESTIMATION, contracts. In sales of land it not unfrequently occurs that the property is said to contain a certain number of acres, by estimation, or so many acres, more or less. When these expressions are used, if the land fall short by a small quantity, the purchaser will receive no relief. In one case of this kind, the land fell short two-fifths, and the purchaser received no relief. 2 Freem. 106. Vide 1 Finch, 109 1 Call, R. 301; 6 Binn. Rep. 106 1 Serg. & Pawle, R. 166; 1 Yeates, R. 322 2 John. R. 37 5 John. R. 508; 15 John. R. 471; 1 Caines, R. 493; 3 Mass. Rep. 380; 5 Mass. R. 355; 1 Root: R. 528; 4 Hen. & Munf. 184. The meaning of these words has never been precisely ascertained by judicial decision. See Sugd. Vend. 231 to 236; Wolff, Inst. §658 and the cases cited under the articles Constitution; More or less; Subdivision.

QUOT

QUOT

    1.7.17  

QUOT, Scotch law. The twentieth part of the movables, computed without computation of debts, was so called.

2. Formerly the bishop was entitled, in all confirmations, to the quot of the testament. Ersk. Prin. B. 3, t. 9, n. 11.

QUOTATION

QUOTATION

    1.7.17  

QUOTATION, rights. The transcript of a part of a book or writing from a book or paper into another.

2. If the quotation is fair, aud not so extensive as to extract the whole value or the most valuable part of an author, it will not be a violation of the copyright. It is mostly difficult to define what is a fair quotation. When the quotation is unfair, an injunction will lie to restrain the publication. See 17 Ves. 424; 1 Bell's Com. 121, 5th ed.

3. "That part of a work of one author found in another," observed Lord Ellenborough, "is not of itself piracy, or sufficient to support an action; a man may adopt part of the work of another; he may so make use ofanother's labors for the promotion of science, and the benefit of the public." 5 Esp. N. P. C. 170; 1 Campb. 94. See Curt. on Copyr. 242; 3 Myl. & Cr. 737, 738; 17 Ves. 422; 1 Campb. 94; 2 Story, R. 100; 2 Beav. 6, 7; Abridgment; Copyright.

UNKNOWN

UNKNOWN

    1.7.17  

UNKNOWN. When goods have been stolen from some person unknown, they may be so described in the indictment; but if the owner be really known, an indictment alleging the property to belong to some person unknown is improper. 2 East's P. C. 651 1 Hale, P. C. 512; Holt's N. P. C. 596 S. C. 3 Engl. Common Law Rep. 191; 8 C. & P. 773. Vide Indictment; Quidam.