TYRANNY, TYRANT

TYRANNY, TYRANT

    27.12.19  

TYRANNY, government. The violation of those laws which regulate the division and the exercises of the sovereign power of the state. It is a violation of -its constitution.

TYRANT, government. The chief magistrate of the state, whether legitimate or otherwise, who violates the constitution to act arbitrarily contrary to justice. Toull. tit. prel. n. 32.

2. The term tyrant and usurper, are sometimes used as synonymous, because usurpers are almost always tyrants; usurpation is itself a tyrannical act, but properly speaking, the words usurper and tyrant convey different ideas. A king may become a tyrant, although legitimate, when he acts despotically; while a usurper may cease to be a tyrant by governing according to the dictates of justice.

3. This term is sometimes applied to persons in authority who violate the laws and act arbitrarily towards others. Vide Despotism.

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TRUTH

TRUTH

    27.12.19  

TRUTH. The actual state of things.

2. In contracts, the parties are bound to toll the truth in their dealings, and a deviation from it will generally avoid the contract; Newl. on Contr. 352-3; 2 Burr. 1011; 3 Campb. 285; and even concealment, or suppressio veri, will be considered fraudulent in the contract of insurance. 1 Marsh. on Ins. 464; Peake's N. P. C. 115; 3 Campb. 154, 506.

3. In giving his testimony, a witness is required to tell the truth, the whole truth, and nothing but the truth; for the object in the examination of matters of fact, is to ascertain truth.

4. When a defendant is sued civilly for slander or a libel, he may justify by giving the truth in evidence; but when a criminal prosecution is instituted by the commonwealth for a libel, he cannot generally justify by giving the truth in evidence.

5. The constitutions of several of the United States have made special provisions in favor of giving the truth in evidence in prosecutions for libels, under particular circumstances. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana and Illinois, it is declared, that in publications for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. The constitution of New York declares, that in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous, is true, and was published with good motives and for justifiable ends, the party shall be acquitted. By constitutional provision in Mississippi and Missouri, and by legislative enactment in New Jersey, Arkansas, Tennessee, Act of 1805, c. 6: and Vermont, Rev. Stat. tit. 11, c. 25, s. 68; the right to give the truth in evidence has been more extended; it applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege. Cooke on Def. 61.

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TRUSTEE, TRUSTEE PROCESS

TRUSTEE, TRUSTEE PROCESS

    27.12.19  

TRUSTEE, estates. A trustee is one to whom an estate has been conveyed in trust.

2. The trust estate is not subject to the specialty or judgment debts of the trustee, to the dower of his wife, or the curtesy of the hushand of a female trustee.

3. With respect to the duties of trustees, it is held, in conformity to the old law of uses, that pernancy of the profits, execution of estates, and defence of the land, are the three great properties of a trust, so that the courts of chancery will compel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land. 2. To execute such conveyances, in accordance with the provisions of the trust, as the cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity. Cruise, Dig. tit. 12, c. 4, s. 4.

4. It has been judiciously remarked by Mr. Justice Story, 2 Eq. Jur. §1267, that in a great variety of cases, it is not easy to say what the duty of a trustee is; and that therefore, it often becomes indispensable for him, before he acts, to seek, the aid and direction of a court of equity. Fonbl. Eq. book 2, c. 7, §2, and note c. Vide Vin. Ab. tit. Trusts, O, P, Q, R, S, T; Bouv. Inst. Index, h. t.

TRUSTEE PROCESS, practice. In Massacchusetts, this is a process given by statute, in imitation of the foreign attachment of the English law.

2. By this process, a creditor may attach any property or credits of his debtor in the hands of a third person. This third person is, in the English law, called the garnishee; in Massachusetts, he is the trustee. White's Dig. tit. 148. Vide Attachment.

TRUSTER. He who creates a trust. A convenient term used in the laws of Scotland. 1 Bell's Com. 321, 6th ed.
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TRIAL, TRIBUNAL

TRIAL, TRIBUNAL

    27.12.19  

TRIAL, practice., The examination before a competent tribunal, according to the laws, of the land, of the facts put in issue in a cause, for the purpose of determining such issue. 4 Mason, 232.

2. There are various kinds of trial, the most common of which is trial by jury. To insure fairdess this mode of trial lust be in public; it is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the Hiatter in dispute according to law, and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof, as the witnesses are called by a party they are questioned by him, and after they have been examined, which is called an examination in chief, they are subject to a cross-examination by the other party as to every part of their testimony. Having examined all his witnesses, the party who supports the affirmative of the issue closes; and the other party then calls his witnesses to explain his case or support his part of the issue these are in the same manner liable to a cross-examination. In case the parties should differ as to what is to be given in evidence, the judge, must decide the matter, and his decision is conclusive upon the parties so far as regards the trial; but, in civil cases, a bill of exceptions (q. v.) way be taken, so that the matter may be examined before another tribunal. When the evidence has been closed, the counsel for the party who supports the affirmative of the issue, then addressess the jury, by recapitulating the evidence and applying the law to the facts, and showing on what particular points he rests his case. The opposite counsel then addresses the jury, enforcing in like manner the facts and the law as applicable to his side of the case; to which the other counsel has a right to reply. It is then the duty of the judge to sum up the evidence and explain to the jury the law applicable to the case this is called his charge. (q. v.) The jurors then retire to deliberate upon their verdict, and, after having agreed upon it, they come into court and deliver it in public. In case they cannot agree they may, in cases of necessity, be discharged: but, it is said, in capital cases they cannot be. Very just and merited encomiums have been bestowed on this mode of trial, particularly in criminal cases. Livingston's Rep. on the Plan of a Penal Code, 13 3 Story, Const. 1773. The learned Duponceau has given beautiful sketch of this tribunal; "twelve invisible judges," said he, "whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are nowhere to be found, until the moment when the balance of justice being placed in their bands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens." Address at the opening of the Law Academy at Philadelphia. Vide, generally, 4 Com. Dig. 783; 7 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h. t.; 1 Sell. Pr. 405 4 Bl. Com. ch. 27; Chit. Pr. Index, h. t. 3 Bl. Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h. t. See Discharge of jury; Jury.

3. Trial by certificate. By the English law, this is a mode of trial allowed in such cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station, as affords them the most clear and complete knowledge of the truth.

4. As therefore such evidence, if given to a jury, must have been conclu-sive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. 3 Bl. Com. 333; Steph. Pl. 122.

5. Trial by the grand assise. This kind of trial is very similar to the common trial by jury. There is only one case in which it appears ever to have been applied, and there it is still in force.

6. In a writ of right, if the defendant by a particular form of plea appropriate to the purpose, (see the plea, 3 Chitty, 652,) denied the right of the demandant, as claimed, he had the option, till the recent abolition of the extravagant and barbarous method of wager by battel, of either offering battel or putting himself on the grand assise, to try whether he or the demandant "had the greater right." The latter course he may still take; and, if he does, the court award a writ for summoning four knights to make the election of twenty other recognitors. The four knights and twelve of the recognitors so elected, together making a jury of sixteen, constitute what is called the grand assise; and when assembled, they proceed to try the issue, or (as it is called in this case) the mise, upon the question of right. The trial, as in the case of a common jury, may be either at the bar or nisi prius; and if at nisi prius, a nisi prius record is made up; and the proceedings are in either case, in general, the same as where there is a common jury. See Wils. R. 419, 541; 1 Holt's N. P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402. Upon the issue or mise of right, the wager of battel or the grand assise was, till the abolition of the former, and the latter still is, the only legitimate method of trial; and the question cannot be tried by a jury in the common form. 1 B. & P. 192. See 3 Bl. Com. 351.

7. Trial by inspection or examination. This trial takes place when for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts, and, therefore, when the fact, from its nature, must be evident to the court either from ocular demon-stration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies ou the judgment alone. For example, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination whether be be the plaintiff or not. 9 Co. 30; 3 Bl. Com. 331; Steph. Pl. 123.

8. Judges of courts of equity frequently decide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injun ction on an allegation of piracy or infringement of a patent or copyright. 5 Ves. 709; 12 Ves. 270, and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4 Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1 Dall. 166.

9. Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action. If, on one side, a record be asserted to exist, and the opposite party deny its existence, under the form of traverse, that there is no such record remaining in court, as alleged, and issue be joined thereon, this is called an issue of nul tiel record; and the court awards, in such case, a trial by inspection and examination of the record: Upon this the party, affirming its existence, is bound to produce it in court, on a day given for the purpose, and if he fail to do so, judgment is given for his adversary.

10. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country. Steph. Pl. 122; 2 Bl. Com. 330.

11. Trial by wager of battel. In the old English law, this was a barbarous mode of trying facts, among a rude people, founded on the supposition that heaven would always interpose, and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as the stat. 59 Geo. III., c. 46, A. D. 1818. It never was in force in the United States. See 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B. & A. 405.

12. Trial by wager of law. This mode of trial has fallen into complete disuse; but in point of law, it seems, in England, to be still competent in most cases to which is anciently applied. The most important and best established of these cases, is, the issue of nil debet, arising in action of debt of simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now refained as mere form,) to prove the truth of his claim. On the other hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, be may conclude by offering to establish the truth of such plea, "against the plaintiff and his suit, in such manner as the court shall direct." Upon this the court awards the wager of law; Co. Ent. 119 a; Lill. Ent. 467; 3 Chit. Pl. 479; and the form of this proceeding, when so awarded, is that the defendant brings into court with him eleven of his neighbors, and for himself, makes oath that he does not owe the debt or detain the property alleged and then the eleven also swear that they believe him to speak the truth; and the defendant is then entitled to judgment. 3 Bl. Com. 343; Steph. Pl. 124. Blackstone compares this mode of trial to the canonical purgation of the catholic clergy, and to the decisory oath of the civil, law. See Oath, decisory.

13. Trial by witnesses. This species of trial by witnesses, or per testes, is without the intervention of a jury

14. This is the only method of trial known to the civil law, in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined; but it is very rarely used in the common law, which prefers the trial by jury in almost every instance.

15. In England, when a widow brings a writ of dower, and the tenant pleads that the tenant is not dead, this being looked upon as a dilatory plea, is, in favor of the widow, and for greater expedition, allowed to be tried by witnesses examined before the judges; and so, says Finch, shall no other case in our law. Finch's Law, 423. But Sir Edward Coke mentions others: as to try whether the tenant in a real action was duly summoned; or the validity of a challenge to a juror; so that Finch's observation must be confined to the trial of direct and not collateral issues. And in every case, Sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at least. 3 Bl. Com. 336.

TRIAL LIST. A list of cases marked down for trial for any one term.

TRIBUNAL. The seat of a judge; the place where he administers justice; but by this term is more usually understood the whole body of judges who compose a jurisdiction sometimes it is taken for the jurisdiction which they exercise.

2. This term is Latin, and derives its origin from the elevated seat where the tribunes administered justice.
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TRESPASS, TRESPASSER...

TRESPASS, TRESPASSER...

    27.12.19  

TRESPASS, remedies. The name of an action, instituted for the recovery of damages, for a wrong committed against the plaintiff, with immediate force; as an assault and battery against the person; an unlawful entry into his, land, and an unlawful injury with direct force to his personal property. It does not lie for a mere non-feasance, nor when the matter affected was not tangible.

2. The subject will be considered with regard, 1. To the injuries for which trespass may be sustained. 2. The declaration. 3. The plea. 4. The judgment.

3. - §1. This part of the subject will be considered with reference to injuries, 1. The person. 2. To personal property. 3. To real property. 4. When trespass can or cannot be justified by legal proceedings.

4. - 1. Trespass is the proper remedy for an assault and battery, wounding, imprisonment, and the like, and it also lies for an injury to the relative rights when occasioned by force; as, for beating, wounding, and imprisoning a wife or servant, by which the plaintiff has sustained a loss. 9 Co. 113; 10 Co. 130. Vide Parties to actions; Per guod, and 1 Chit. Pr. 37.

5. - 2. The action of trespass is the proper remedy for injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing, if alive, and carrying away to the damage of the plaintiff, a personal chattel, 1 Saund. 84, n. 2, 3; F. N. B. 86; Bro. Trespass, pl. 407; Toll. Executors, 112; Cro. Jac. 362, of which another is the owner and in possession; but a naked possession or right to immediate possession, is a sufficient title to support this action. 1 T. R. 480; and gee 8. John. R. 432; 7 John. R. 535; 11 John. R. 377; Cro. Jac. 46; 1 Chit. Pl. 165.

6. - 3. Trespass is the proper remedy for the several acts of breaking through an enclosure, and coming into contact with any corporeal hereditament, of which another is the owner and in possession, and by which a damage has ensued. There is an ideal fence, reaching in extent upwards, a superficie terrae usque ad caelum, which encircles every man's possessions, when he is owner of the surface, and downwards as far as his property descends; the entry, therefore, is breaking through this enclosure, and this generally constitutes, by itself, a right of action. The plaintiff must be the owner, and in possession. 5 East, R. 485; 9 John. R. 61; 12 John. R. 183; 11 John. R. 385; Id. 140; 3 Hill, R. 26. There must have been some injury, however, to entitle the plaintiff to recover, for a man in a balloon may legally be said to break the close of the plaintiff, when passing over it, as he is wafted by the wind, yet as the owner's possession is not by that act incommoded, trespass could not probably be maintained; yet, if any part of the machinery were to fall upon the land, the aeronaut could not justify an entry into it to remove it, which proves that the act is not justifiable. 19 John. 381 But the slightest injury, as treading down the grass, is sufficient. Vide 1 Chit. Pl. 173; 2 John, R. 357: 9 John. R. 113, 377; 2 Mass. R. 127; 4 Mass. R. 266; 4 John. R . 150.

7. - 4. It is a general rule that when the defendant has acted under regular process of a court of competent jurisdiction, or of a single magistrate having jurisdiction of the subject-matter, it is a sufficient justification to him; but when the court has no jurisdiction and the process is wholly void, the defendant cannot justify under it.

8. But there are some cases, where an officer will not be justified by the warrant or authority of a court, having jurisdiction. These exceptions are generally founded on some matter of public policy or convenience; for example, when a warrant was issued against a mail carrier, though the officer was justified in serving the warrant, he was liable to an indictment for detaining such mail carrier under the warrant, for by thus detaining him, he was guilty of "wilfully obstructing or retarding the passage of the mail, or of the driver or carrier," contrary to the provisions of the act of congress of 1825, ch. 275, s. 9. 8 Law Rep. 77. See Ambassador; Justification.

9. - §2. The declaration should contain a concise statement of the injury complained of, whether to the person, personal or real property, and it must allege that the injury was conimitted vi et armis and contra pacem; in which particulars it differs from a declaration in case. See Case, remedies.

10. - §3. The general issue is not guilty. But as but few matters can be given in evidence under this plea, it is proper to plead special matters of defence.

11. - §4. The judgment is generally for the damages assessed by the jury, and for costs. When the judgment is for the defendant, it is that be recover his costs. Vide Irregularity; Regular and Irregular process. Vide, generally, Bro. Ab. h. t.; Nelson's Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Com. Dig. h. t.; Vin. Ab. h. t.; the various American and English Digests, h. t.; 2 Phil. Ev. 131; Ham. N. P. 33 to 265; Chit. Pr. Index, h. t.; Rose. Civ. Ev. h. t.; Stark. Ev. h. t.; Bouv. Inst. Index, h. t.

TRESPASS DE BONIS ASPORTATIS, practice. The action brought by the owner of goods for unlawfully taking and carrying them away, is so called. This action will lie for taking away another's goods, even though he should return them, because by such taking he has deprived the owner of his right to enjoy them. 1 Bouv. Inst. n. 3611.

TRESPASS ON THE CASE, practice. The technical name of an action, instituted for the recovery of damages caused by an injury unaccompanied with force, or where the damages sustained are only consequential. See Case, and 3 Bouv. Inst. n. 3482 to 3509.

TRESPASS QUARE CLAUSUM FREGIT, practice. This is the name of a remedy which lies to recover damages when the defendant has unlawfully and wrongfully trespassed upon the real estate of the plaintiff.

2. This action must be brought by the tenant in possession, for the injury is done to his possession. A remainder-man or reversioner cannot sustain it. 3. As the injury must be committed to the possession, one who has a mere incorporeal right cannot maintain this action. 4 Bouv. Inst. n. 3600.

TRESPASS VI ET ARMIS, practice. This is the remedy brought by the plaintiff for an immediate injury committed with force. It is distinguished from an action of trespass on the case, in this, that in the latter the injury is consequential, and not committed with direct force. 3 Bouv. Inst. n. 2871, 3482; 4 Bouv. Inst. n. 8583.

TRESPASSER. One who couimits a trespass.

2. A man is a trespasser by his own direct actohen he acts without any excuse; or he may be a trespasser in the execution of a legal process in an illegal manner; 1 Chit. Pl. 183: 2 John. Cas. 27; or when the court has no juris4iction over the subject-matter when the court has jurisdiction but the proceeding is defective and void; when the process has been misapplied, as, when the defendant has taken A's goods on an execution against B; when the process has been abused 1 Chit. Pl. 183-187 in all these cases a man is a trespasser ab initio. And a person capable of giving his assent may become a trespasser, by an act subsequent to the tort. If, for example, a an take possession of land for the use of another, the latter may afterwards recognize and adopt the act; by so doing, he places himself in the situation of one who had previously commanded it, and consequently is himself a trespasser, if the other had no right to enter, nor he to command the entry. 4 Inst. 317; Ham. N. P. 215. Vide 1 Rawle's R. 121.
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TREASURE; TREASURER OF THE UNITED STATES... TREASURY

TREASURE; TREASURER OF THE UNITED STATES... TREASURY

    27.12.19  

TREASURE TROVE. Found treasure.

2. This name is given to such money or coin, gold, silver, plate, or bullion, which having been hidden or concealed in the earth or other private place, so long that its owner is unknown, has been discovered by accident. Should the owner be found it must be restored to him; and in case of not finding him, the property, according to the English law, belongs to the king. In the latter case, by the civil law, when the treasure was found by the owner of the soil, he was considered as entitled to it by the double title of owner and finder; when found on another's property, one-half belonged to the owner of the estate, and the other to the finder; when found on public property, it belonged one-half to the public treasury, and the other to the finder. Lecons du Dr. Rom. §350-352. This includes not only gold and silver, but whatever may constitute riches, as vases, urns, statues, &c.

3. The Roman definition includes the same things under the word pecunia; but the thing found must have a commercial value for ancient tombs would not be considered a treasure. The thing must have been hidden or concealed in the earth; and no one must be able to establish his right to it. It must be found, by a pure accident, and not in consequence of search. Dall. Dict. Propriete, art. 3, s. 3.

4. According to the French law, le tresor est toute chose cachee ou enfouie, sur laquelle personne ne peut justifier sa propriete, et qui est decouverte par lo pur effet du hasard. Code Civ. 716. Vide 4 Toull. n. 34. Vide, generally, 20 Vin. Abr. 414; 7 Com. Dig. 649; 1 Bro. Civ. Law, 237; 1 Blackstone's Comm. 295; Poth. Traite du Dr. de Propreite, art. 4.

TREASURER. An officer entrusted with the treasures or money either of a private individual, a corporation, a company, or a state.

2. It is his duty to use ordinary diligence in the performance of his office, and to account with those whose money he has.

TREASURER. OF THE MINT. An officer created by the act of January 18, 1837, whose duties are prescribed as follows: The treasurer shall receive and safely keep all moneys which shall be for the use and support of the mint; shall keep all the current accounts of the mint, and pay all moneys due by the mint, on warrants from the director. He shall receive all bullion brought to the mint for coinage; shall be the keeper of all bullion and coin in the mint, except while the same is legally placed in the hands of other officers, and shall, on warrants from the director, deliver all coins struck at the mint to the persons to whom they shall be legally payable. And he shall keep regular and faithful accounts of all the transactions of the mint, in bullion and coins, both with the officers of the mint and the depositors; and shall present, quarter-yearly, to the treasury department of the United States, according to such forms as shall be prescribed by that department, an account of the receipts and dishursements of the mint, for the purpose of being adjusted and settled.

2. This officer is required to give bond to the United States with one or more sureties to the satisfaction of the secretary of the treasury, in the sum of ten thousand dollars. His salary is two thousand dollars.

TREASURER OF THE UNITED STATES, government. Before entering on the duties of his office, the treasurer is required to give bond with sufficient sureties, approved by the secretary of the treasury and the first comptroller, in the sum of one hundred and fifty thousand dollars, payable to the United States, with condition for the faithful performance of the duties of his office, and the fidelity of the. persons by him employed. Act of 2d September, 1789, s. 4.

2. His principal duties are, 1. To receive and keep the moneys of the United States, and dishurse the same by warrants drawn by the secretary of the treasury, countersigned by the proper officer, and recorded according to law. Id. s. 4. 2. To take receipts for all moneys paid by him.

3. To render his account to the comptroller quarterly, or oftener if required, and transmit a copy thereof, when settled, to the secretary of the treasury. 4. To lay before each house, on the third day of each session of congress, fair and accurate copies of all accounts by him, from time to time, rendered to and settled with the comptroller, and a true and perfect account of the state of the treasury. 5. To submit at all times, to the secretary of the treasury and the comptroller, or either of them, the inspection of the moneys in his bands. Id. s. 4. 3. His compensation is three thousand dollars -per annum. Act of 20th February, 1804, s. 1.

TREASURY. The place where treasure is kept the office of a treasurer. The term is more usually applied to the public than to a private treasury. Vide Department of the Treasury o the United States.

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