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Bouvier's Law Dictionary
1856 Edition

B

BACHELOR. The first degree taken at the universities in the = arts and=20 sciences, as bachelor of arts, & c. It is called, in Latin, = Baccalaureus,=20 from bacalus, or bacillus, a staff, because a staff was given, by way of = distinction, into the hands of those who had completed their studies. = Some,=20 however, have derived the word from baccalaura, others from bas = chevalier, as=20 designating young squires who aspire to the knighthood. (Dupin.) But the = derivation. of the word is uncertain.

BACK-BOND. A bond given by one to a surety, to* indemnify such = surety=20 in case of loss. In Scotland, a back-bond is an instrument which, in = conjunction=20 with another which gives an absolute disposition, constitutes a trust. A = declaration of trust.

BACK-WATER. That water in a stream which, in consequence of = some=20 obstruction below, is detained or checked in its course, or reflows.

2. Every riparian owner is entitled to the benefit of the water in = its=20 natural state. Whenever, therefore, the owner of land dams or impedes = the water=20 in such a manner as to back it on his neighbor above, he is liable to an = action;=20 for no one has a right to alter the level of the water, either where it = enters,=20 or where it leaves his property. 9 Co. 59; 1 B. & Ald. 258; 1 Wils. = R. 178;=20 6 East, R. 203; 1 S. & Stu. 190.; 4 Day, R. 244; 7 Cowen, R. 266; 1 = Rawle,=20 R. 218; 5 N. R. Rep. 232; 9 Mass. R. 316; 7 Pick. R. 198; 4 Mason, R. = 400; 1=20 Rawle, R. 27; 2 John. Ch. R. 162, 463; 1 Coxe's. R. 460. Vide, Dam; = Inundation;=20 Water-course; and 5 Ohio R. 322.

BACKING, crim. law practice. Backing a warrant occurs whenever = it=20 becomes necessary to execute it out of the jurisdiction of the = magistrate who=20 granted it; as when an offender escapes out of the county in which he = committed=20 the offence with which he is charged, into another county. In such a = case, a=20 magistrate of the county in which the offender may, be found, endorses, = or=20 writes his name on the back of the warrant, and thereby gives authority = to=20 execute it within his jurisdiction. This is called backing the warrant. = This may=20 be from county to county, if necessary.

BACKSIDE, estates. In England this term was formerly used in=20 conveyances and even in pleadings, and is still, adhered to with = reference to=20 ancient descriptions in deeds, in continuing the transfer of the same. = property.=20 It imports a yard at the back part of, or behind a house, and belonging = thereto:=20 but although formerly used in pleadings, it is now unusual to adopt it, = and the=20 word yard is preferred. 1 Chitty's Pr. 177; 2 Ld. Raym. 1399.

BADGE. A mark or sign worn by some persons, or placed upon = certain=20 things for the purpose of designation. Some public officers, as = watchmen,=20 policemen, and the like, are required to wear badges that they may be = readily=20 known. It is used figuratively when we say, possession of personal = property by=20 the seller, is. a badge of fraud.

BAGGAGE. Such articles as are carried by a traveller; luggage. = Every=20 thing which a passenger, carries, with him is not baggage. Large sums of = money,=20 for example, carried in a travelling trunk, will not be considered = baggage, so=20 as to render the carrier responsible. 9 Wend. R. 85. But a watch = deposited in=20 his trunk is part of his baggage. 10 Ohio R. 145. See, as to what is = baggage, 6=20 Hill, R. 586 5 Rawle, 188, 189; 1 Pick. 50.

2. In general a common carrier of passengers is responsible for = baggage, if=20 lost, though no distinct price be paid for transporting it, it being = included in=20 the passenger's fare. Id. The carrier's responsibility for the baggage = begins as=20 soon as it has been delivered to him, or to his servants, or to some = other=20 person authorized by him to receive it. Then the delivery is complete. = The risk=20 and responsibility of the carrier is at an end as soon as he has = delivered the=20 baggage to the owner or his agent; and if an offer to deliver it be made = at a=20 proper time, the carrier will be discharged from responsibility, us = 'such yet,=20 if the baggage remain in his custody afterwards, he will hold as, = bailee, and be=20 responsible for it according to the terms of such bailment ana, R. 92. = Vide=20 Common Carriers

3. By the act of congress of March 2, 1799, sect. 46, 1 Story's L. U. = S. 612,=20 it is declared that all wearing apparel and other personal baggage, = &c., of=20 persons who shall arrive in the United States, shall be free and = exempted from=20 duty.

BAIL, practice, contracts. By bail is understood sureties, = given=20 according to law, to insure the appearance of a party in court. The = persons who=20 become surety are called bail. Sometimes the term is applied, with a = want of=20 exactness, to the security given by a defendant, in order to obtain a = stay of=20 execution, after judgment, in civil cases., Bail is either civil or=20 criminal.

2.- 1. Civil bail is that which is entered in civil cases, and is = common or=20 special bail below or bail above.

3. Common bail is a formal entry of fictitious sureties in the proper = office=20 of the court, which is called filing. common bail to the action. It is = in the=20 same form as special bail, but differs from it in this, that the = sureties are=20 merely fictitious, as John Doe and Richard Roe: it has, consequently, = none of,=20 the incidents of special bail. It is allowed to the defendant only when = he has=20 been discharged from arrest without bail, and it is necessary in such = cases to=20 perfect the appearance of the defendant. Steph. Pl. 56, 7; Grah. Pr. = 155; Highm.=20 on Bail 13.

4. Special bail is an undertaking by one or more persons for another, = before=20 some officer or court properly authorized for that purpose, that he = shall appear=20 at a certain time and place, to answer a certain charge to be exhibited = against=20 him. The essential qualification to enable a person to become bail, are = that he=20 must be, 1. a freeholder or housekeeper; 2. liable to the ordinary = process of=20 the court 3. capable of entering into a contract; and 4. able to pay the = amount=20 for which he becomes responsible.

1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5 = Taunt.=20 174; Lofft, 148 3 Petersd. Ab. 104.

2. He must be subject to the ordinary process of the court; and a = person=20 privileged from arrest, either permanently or temporarily, will not be = taken. 4=20 Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.

3. He must be competent to enter into a contract; a feme covert, an = infant,=20 or a person non compos mentis, cannot therefore become bail.

4. He must be able to pay the amount for which he becomes = responsible. But it=20 is immaterial whether his property consists of real or personal estate, = provided=20 it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit. Rep. 97; 11 = Price,=20 158; and be liable to the ordinary process of the law; 4 Burr. 2526; = though this=20 rule is not invariably adhered to, for when part of the property = consisted of a=20 ship, shortly expected, bail was permitted to justify in respect of such = property. 1 Chit. R. 286, n. As to the persons who cannot be received = because=20 they are not responsible, see 1 Chit. R. 9, 116; 2 Chit. R. 77, 8; = Lofft, 72,=20 184; 3 Petersd. Ab. 112; 1 Chit. R. 309, n.

5. Bail below. This is bail given to the sheriff in civil cases, when = the=20 defendant is arrested on bailable process; which is done by giving him a = bail=20 bond; it is so called to distinguish it from bail above. (q. v.) The = sheriff is=20 bound to admit a man to bail, provided good and sufficient sureties be = tendered,=20 but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4 Anne, c. 16, = =A720; B. N.=20 P. 224; 2 Term Rep., 560. The sheriff, is not, however, bound-to demand = bail,=20 and may, at his risk, permit the defendant to be at liberty, provided he = will=20 appear, that is, enter bail above, or surrender himself in proper time. = 1 Sell.=20 Pr. 126, et seq. The undertaking of bail below is, that the defendant = will=20 appear or put in bail to the action on the return day of the writ.

6. Bail above, is putting in bail to the action, which is an = appearance of=20 the defendant. Bail above are bound either to satisfy the plaintiff his = debt and=20 costs, or to surrender the defendant into custody, provided judgment = should be=20 against him and he should fail to do so. Sell. Pr. 137.

7. It is a general rule that the defendant having been held to bail, = in civil=20 cases, cannot be held a second time for the same cause of action. Tidd' = s Pr.=20 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur. 594. = See Auter=20 action Pendent; Lis pendens.

8. - 2. Bail in criminal cases is defined to be a delivery or = bailment of a=20 person to sureties, upon their giving, together with himself, sufficient = security for his appearance, he being supposed to be in their friendly = custody,=20 instead of going to prison.

9. The Constitution of the United States directs that "excessive bail = shall=20 not be required." Amend. art. 8.

10. By the acts of congress of September, 24, 1789, s. 33, and March = 2, 1793,=20 s. 4, authority is given to take bail for any crime or offence against = the=20 United States, except where the punishment is death, to any justice or = judge of=20 the United States, or to any chancellor, judge of the supreme or = superior court,=20 or first judge of any court of common pleas, or mayor of any city of any = state,=20 or to any justice of the peace or other magistrate of any state, where = the=20 offender may be found the recognizance tal,-en by any of the persons = authorized,=20 is to be returned to the court having cognizance of the offence.

11. When the punishment by the laws of the United States is death, = bail can=20 be taken only by the supreme or circuit court, or by a judge of the = district=20 court of the United States. If the person committed by a justice of the = supreme=20 court, or by the judge of a district court, for an offence not = punishable with=20 death, shall, after commitment, offer bail, any judge of the supreme or = superior=20 court of law, of any state, (there being no judge of the United States = in the=20 district to take such bail,) way admit such person to bail.

12. Justices of the peace have in general power to take bail of = persons=20 accused; and, when they have such authority they are required to take = such bail=20 There are many cases, however, under the laws of the several states, as = well as=20 under the laws of the United States,, as above mentioned, where justices = of the=20 peace cannot take bail, but must commit; and, if the accused offers = bail, it=20 must be taken by a judge or other,, officer lawfully authorized.

13. In Pennsylvania, for example, in cases of murder, or when the = defendant=20 is charged with the stealing of any horse, mare, or gelding, on the = direct=20 testimony of one witness; or shall be taken having possession of such = horse,=20 mare, or gelding, a justice of the peace cannot admit the party to bail. = 1=20 Smith's L. of Pa. 581.

14. In all cases where the party is admitted to bail, the = recognizance is to=20 be returned to the court having jurisdict on of the offence charged. = Vide Act of=20 God. Arrest; Auter action pendent; Deat Lis pendens.

BAIL BOND, practice, contracts. A specialty by which the = defendant and=20 other persons, usually not less than two, though the sheriff may take = only one,=20 become bound to the sheriff in a penalty equal to that for which bail is = demanded, conditioned for the due appearance of such defendant to the = legal=20 process therein described, and by which the sheriff has been commanded = to arrest=20 him. It is only where the defendant is arrested or in the custody of the = sheriff, under other than final process, that the sheriff can take such = bond. On=20 this bond being tendered to him, which he is compelled to take if the = sureties=20 are good, he must discharge the defendant. Stat. 23 H. VI. c. 9.

2. With some exceptions, as for example, where the defendant = surrenders; 5 T.=20 R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326; nothing can be = a=20 performance of the condition of the bail bond, but putting in bail to = the=20 action. 5 Burr. 2683.

3. The plaintiff has a right to demand from the sheriff an assignment = of such=20 bond, so that he may sue it for his own benefit. 4 Ann. c. 16, =A720; = Wats. on=20 Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites of a bail = bond,=20 see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T. R. 702; 9 = East, 55;=20 . D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R. 264 = East,=20 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.

BAIL PIECE. A certificate given by a judge or the clerk of the = court,=20 or other person authorized to keep the record, in which it is certified = that A=20 B, the bail, became bail, for C D, the defendant, in a certain sum, and = in a=20 particular case. It was the practice formerly, to write these = certificates upon=20 small pieces of parchment, in the following form: (See 3 Bl. Com. = Appendix.)

In the Court of ______________, of the Term of ________, in the year = of our=20 Lord, ____________, ________________City and County of ________________, = ss.=20 Theunis Thew is delivered to bail upon the taking of his body, to = Jacobus=20 Vanzant, of the city of_________________, merchant, and to John Doe, of = the same=20 city, yeoman. SMITH, JR. At the suit of Attorney for Deft. PHILIP = CARSWELL.=20 Taken and acknowledged the ____ day of _______, A. D. _____, before me. = D.=20 H.

2. As the bail is supposed to have the custody of the defendant, when = he is=20 armed with this process, he may arrest the latter, though he is out of = the=20 jurisdiction of the court in which he became bail, and even in a = different=20 state. 1 Baldw. 578; 3 Com. 84, 421; 2 Yeates, 263 8 pick. 138; 7 John. = 145; 3=20 Day, 485. The bail may take him even while attending court as a suitor, = or any=20 time, even on Sunday. 4 Yeates, 123; 4 Conn. 170. He may break even an = outer=20 door to seize him; and command the assistance of the sheriff or other = officers;=20 8 Pick. 138; and depute his power to others.. 1 John. Cas. 413; 8 Pick. = 140. See=20 1 Serg. & R. 311.

BAILABLE ACTION. One in which the defendant is entitled to be=20 discharged from arrest, only upon giving bail to answer.

BAILABLE PROCESS. Is that process by which an officer is = required to=20 arrest a person, and afterwards to take bail for his appearance. A = capias ad=20 respondendum is bailable, but a capias ad satisfaciendum is not.

BAILEE, contracts. One to whom goods are bailed.

2. His duties are to act in good faith he is bound to use = extraordinary=20 diligence in those contracts or bailments, where he alone receives the = benefit,=20 as in loans; he must observe ordinary diligence of those bailments, = which are=20 beneficial to both parties, as hiring; and he will be responsible for = gross=20 negligence in those bailments which are only for the benefit of the = bailor, is=20 deposit and mandate. Story's Bailm. =A717, 18, 19. He is bound to return = the=20 property as soon as the purpose for which it was bailed shall have been=20 accomplished.

3. He has generally a right to retain and use the thing bailed, = according to=20 the contract, until the object of the bailment shall have been = accomplished.

4. A bailee with a mere naked authority, having a right to = remuneration for=20 his trouble, but coupled with no other interest, may support trespass = for any=20 injury, amounting to a trespass, done while he was in the actual = possession of=20 the thing. 4 Bouv. Inst. n. 3608.

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

2. From a bailiff is required administration, care, management, = skill. He is,=20 therefore, entitled to allowance for the expense of administration, and = for all=20 things done in his office, according to his own judgment, without the = special=20 direction of his principal, and also for casual things done in the = common course=20 of business: 1 Mall. Ent. 65, (4) 11; 1 Rolle, Ab. 125, 1, 7; Co. Lit. = 89 a;=20 Com. Dig. E 12 Bro. Ab. Acc. 18 Lucas, Rep. 23 but not for things = foreign to his=20 office. Bro. Ab. Acc .26, 88; Plowd. 282b, 14; Com. Dig. Acc. E13; Co. = Lit. 172;=20 1 Mall. Ent. 65, (4) 4. Whereas, a mere receiver, or a receiver who is = not also=20 a bailiff, is not entitled to allowance for any expenses. Bro. Ab. Acc. = 18; 1=20 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=20 plea com- mences " thus, " J. S., bailiff of T. N., comes " &c., not = " T.=20 N., by his bailiff, J. S., comes," &c. 2 Inst. 415; Keilw. 117 b. As = to what=20 matters he may plead, see 2 Inst. 414.

BAILIFF, office. Magistrates who for merly administered = justice in the=20 parliaments or courts of France, answering to the English sheriffs as = mentioned=20 by Bracton. There are still bailiffs of particular towns in England as = the=20 bailiff of Dover Castle, &c., otherwise bailiffs are now only = officers or=20 stewards, &c. as Bailiffs of liberties, appointed by every lord = within his=20 liberty, to serve writs, &c. Bailiff errent or itenerant, appointed = to go=20 about the country for the same purpose. Sheriff 's bailies, sheriff's = officers=20 to execute writs; these are also called bound bailiffs because they are = usually=20 bound in a bond to the sheriff for the due exeecution of their office. = Bailiffs=20 of court baron, to summon the court, &c. Bailffs of hushandry, = appointed by=20 private persons to collect their rents and manage their estates. Water = bailiffs,=20 officers in port towns for searching ships, gathering tolls, &c. = Bac. Ab. h.=20 t.

BAILMENT, contracts. This word is derived from the French, = bailler, to=20 deliver. 2 Bl. Com. 451; Jones' Bailm. 90 Story on Bailm. c. 1, =A72. It = is a=20 compendious expression, to signify a contract resulting from delivery. = It has=20 been defined to be a delivery of goods on a condition, express or = implied, that=20 they shall be restored by the bailee to the bailor, or according to his=20 directions, as soon as the purposes for which they are bailed shall be = answered.=20 1 Jones' Bailm. 1. Or it is a delivery of goods in trust, on a contract = either=20 expressed or implied, that the trust shall be duly executed, and the = goods=20 redelivered, as soon as the time or use for which they were bailed shall = have=20 elapsed or be performed. Jones' Bailm. 117.

2. Each of these definitions, says Judge Story, seems redundant and=20 inaccurate if it be the proper office of a definition to include those = things=20 only which belong to the genus or class. Both these definitions suppose = that the=20 goods are to be restored or redelivered; but in a bailment for sale, as = upon a=20 consignment to a factor, no redelivery is contemplated between the = parties. In=20 some cases, no use is contemplated by the bailee, in others, it is of = the=20 essence of the contract: in some cases time is material to terminAte the = contract; in others, time is necessary to give a new accessorial right. = Story,=20 on Bailm. c. 1, =A72.

3. Mr. Justice Blackstone has defined a bailment to be a delivery of = goods in=20 trust, upon contract, either expressed or implied, that the trust shall = be=20 faithfully executed on the part of the bailee. 2 Bl. Com. 451. And in = another=20 place, as the delivery of goods to another person for a particular use. = 2 Bl.=20 Com. 395. Vide Kent's Comm. Lect. 40, 437.

4. Mr. Justice Story says, that a bailment is a delivery of a thing = in trust=20 for some special object or purpose, and upon a contract, express or = implied, to=20 conform to the object or purpose of the trust. Story on Bailm. c. 1, = =A72. This=20 corresponds very nearly with the definition of Merlin. Vide Repertoire, = mot=20 Bail.

5. Bailments are divisible into three kinds: 1. Those in which the = trust is=20 for the benefit of the bailor, as deposits and mandates. 2. Those in = which the=20 trust is for the benefit of the bailee, as gratuitous loans for use. 3. = Those in=20 which the trust is for the benefit of both parties, as pledges or pawns, = and=20 hiring and letting to hire. See Deposit; Hire; Loans; mandates and = Pledges.

6. Sir William Jones has divided bailments into five sorts, namely: = 1.=20 Depositum, or deposit. 2. Mandatum, or commission without recompense. 3. = Commodatum, or loan for use, without pay. 4. Pignori acceptum, or pawn. = 5.=20 Locatum, or hiring, which is always with reward. This last is subdivided = into,=20 1. Locatio rei, or biring, by which the hirer gains a temporary use of = the=20 thing. 2. Locatio operis faciendi, when something is to be done to the = thing=20 delivered. 3. Locatio operis mercium vehendarum, when the thing is = merely to be=20 carried from one place to another. See these several words. As to the=20 obligations and duties of bailees in general, see Diligence, and Story = on Bailm.=20 c. 1; Chit. on Cont. 141; 3 John. R. 170; 17 Mass. R. 479; 5 Day, 15; 1 = Conn.=20 Rep. 487; 10 Johns. R. 1, 471; 12 Johns. R. 144, 232; 11 Johns. R. 107; = 15=20 Johns. R. 39; 2 John. C. R. 100; 2 Caines' Cas. 189; 19 Johns. R. 44; 14 = John.=20 R. 175; 2 Halst. 108; 2 South. 738; 2 Harr. & M'Hen. 453; 1 Rand. 3; = 2=20 Hawks, 145; 1 Murphy, 417; 1 Hayw. 14; 1 Rep. Con. Ct. 121, 186; 2 Rep. = Con. Ct.=20 239; 1 Bay, 101; 2 Nott & M'Cord, 88, 489; 1 Browne, 43, 176; 2 = Binn. 72; 4=20 Binn. 127; 5 Binn. 457; 6 Binn. 129; 6 Serg. & Rawle, 439; 8 Serg. = &=20 Rawle, 500, 533; 14 Serg. & R. 275; Bac. Ab. h. t.; 1 Bouv. Inst. n. = 978-1099.

BAILOR, contracts. He who bails a thing to another.

2. The bailor must act with good faith towards the bailee; Story's = Bailm.=20 =A774, 76, 77; permit him to enjoy the thing bailed according to = contract; and, in=20 some bailments, as hiring, warrant the title and possession of the thing = hired,=20 and probably, to keep it in suitable order and repair for the purpose of = the=20 bailment. Id. =A7Vide Inst. lib. 3, tit. 25.

BAILIWICK. The district over which a sheriff has jurisdiction; = it=20 signifies also the same as county, the sheriff's bailiwick extending = over the=20 county.

2. In England, it signifies generally that liberty which is exempted = from the=20 sheriff of the county over which the lord of the liberty appoints a = bailiff.=20 Vide Wood's Inst. 206.

BAIR-MAN, Scottish law. A poor insolvent debtor left bare.

BAIRN'S PART, Scottish, law. Children's part a third part of = the=20 defunct's free movables, debts deducted, if the wife survive, and a half = if=20 there be no relict.

BALANCE, com. law. The amount which remains due by one of two = persons,=20 who have been dealing together, to the other, after the settlement of = their=20 accounts.

2. In the case of mutual debts, the balance only can be recovered by = the=20 assignee of an insolvent, or the executor of a deceased person. But this = mutuality must have existed at the time of the assignment by the = insolvent, or=20 at the death of the testator.

3. The term general balance is sometimes used to signify the = difference which=20 is due to a party claiming a lien on goods in his hands, for work or = labor done,=20 or money expended in relation to those and other goods of the debtor. 3 = B. &=20 P. 485; 3 Esp. R. 268.

BALANCE SHEET. A statement made by merchants and others to = show the=20 true state of a particular business. A balance sheet should exhibit all = the=20 balances of debits and credits, also the value of merchandize, and the = result of=20 the whole. Vide Bilan.

BALANCE OF TRADE, Com. law. The difference between the exports = and=20 importations, between two countries. The balance of trade is against = that=20 country which has imported more than it has exported, for which it is = debtor to=20 the other country.

BALIVA. A bailiwick or jurisdiction.

BALIVO AMOVENDO, Eng. practice. A writ to remove a bailiff out = of his=20 office.

BALLASTAGE, mar. law. A toll paid for the privilege, of taking = up=20 ballast from the bottom of the port. This arises from the property in = the soil.=20 2 Chit. Com. Law, 16.

BALLOT, government. A diminutive ball, i. e. a little ball = used in=20 giving votes; the act itself of giving votes. A little ball or ticket = used in=20 voting privately, and, for that purpose, put, into a box, (commonly = called a=20 ballot-box,) or into some other contrivance.

BALNEARII, civil law. Stealers of the clothes of person who = were=20 washing in the public baths. Dig. 47, 17; 4 Bl. Com. 239; Calviui Lex.=20 Jurid.

BAN, A proclamation, or public notice any summons or edict by = which a=20 thing is forbidden or commanded. Vide Bans of Matrimony; Proclamation; = Cowell's=20 Interp.

BANC or BANK. The first of these is a French word signifying = bench,=20 pronounced improperly bank. 1. The seat of judgment, as banc le roy, the = king's=20 bench banc le common pleas, the bench of common pleas.

2. The meeting of all the judges or such as may form a quorum, as, = the court=20 sit in banc. Cowell's Interp.

BANCO. A commercial term, adopted from the Italian, used to=20 distinguish bank money from the common currency; as $1000,

BANDIT. A man outlawed; one who is said to be under ban.

BANE. This word was formerly used to signify a malefactor. = Bract. 1.=20 2, t. 8, c. 1.

BANISHMENT, crim. law. A punishment inflicted upon criminals, = by=20 compelling them to quit a city, place, or country, for, a specified = period of=20 time, or for life. Vide 4 Dall. 14. Deportation; Relegation.

BANK, com. law. 1. A place for the deposit of money. 2. An=20 institution, generally incorporated, authorized to receive deposits of = money, to=20 lend money, and to issue promissory notes, usually known by the name of = bank=20 notes. 3. Banks are said to be of three kinds, viz : of deposit, of = discount,=20 and of circulation; they generally perform all these operatious. Vide = Metc.=20 & Perk. Dig. Banks and Banking.

BANKBOOK ,commerce. A book which persons dealing with a bank = keep, in=20 which the officers of the bank enter the amount of money deposited by = them, and=20 all notes or bills deposited by them, or discounted for their use.

BANK NOTE, contracts. A bank note resembles a common = promissory note,=20 (q. v.) issued by a bank or corporation authorized to act as a bank. It = is in=20 fact a promissory note, but such notes are not, for many purposes, to be = considered as mere securities for money; but are treated as money, in = the=20 ordinary course and transactions of business, by the general consent of = mankind=20 and, on payment of them, when a receipt is required, the receipts are = always=20 given as for money, not as for securities or notes. 1 Burr. R. 457; 12 = John. R.=20 200; 1 John. Ch. R. 231; 9 John. R. 120; 19 John. 144; 1 Sch. & Lef. = 318,=20 319; 11 Ves. 662; 1 Roper, Leg. 3; 1 Ham. R. 189, 524; 15 Pick. 177; 5 = G. &=20 John. 58; 3 Hawks, 328; 5 J. J. Marsh. 643.

2. Bank notes are assignable by delivery. Rep. Temp. Hard. 53 9 East, = R. 48;=20 4 East, R. 510 Dougl. 236. The holder of a bank note is prima facie = entitled to=20 prompt payment of it, and cannot be affected by the fraud of any former = holder=20 in obtaining it, unless evidence be given to bring it home to his = privity. 1=20 Burr. 452; 4 Rawle, 185 13 East, R. 135 Dane's Ab. Index, h. t.; Pow. on = Mortg.=20 lndex, h. t. U. S. Dig. h. t. Vide Bouv. Inst. Index, h. t. Note; = Promissory=20 note; Reissuable note.

3. They cannot be taken in execution. Cunning. on Bills, 537; Hardw. = Cases,=20 53; 1 Arch. Pr. 268 1 Wils. Rep. 9 Cro. Eliz. 746, pl. 25

BANK STOCK. The capital of a bank. It is usually divided in = shares of=20 a certain amount. This stock is generally transferable on the bools of = the bank,=20 and considered as personal property. Vide Stock.

BANKER, com. law. A banker is one engaged in the business of = receiving=20 other persons money in deposit, to be returned on demand discounting = other=20 persons' notes, and issuing his own for circulation. One who performs = the=20 business usually transacted by a bank. Private bankers are generally not = permitted.

2. The business of bankers is generally performed through the medium = of=20 incorporated banks.

3. A banker may be declared a bankrupt by adverse proceedings against = him.=20 Act of Congress of 19th Aug. 1841. See 1 Atk. 218; 2 H. Bl. 235; 1 Mont. = B. L.=20 12.

4. Among the ancient Romans there were bankers called argentarii, = whose=20 office was to keep registers of contracts between individuals, either to = loan=20 money, or in relation to sales and stipulations. These bankers = frequently agreed=20 with the creditor to pay him the debt due to him by the debtor. Calvini = Lex.=20 Jurid.

BANKERS' NOTE, contracts. In England a distinction is made = between=20 bank notes, (q. v.) and bankers' notes. The latter are promissory notes, = and=20 resemble bank notes in every respect, except that they are given by = persons=20 acting as private bankers. 6 Mod. 29; 3 Chit. Com. Law, 590; 1 Leigh's = N. P.=20 338.

BANKRUPT. A person who has done, or suffered some act to be = done,=20 which is by law declared an act of bankruptcy; in such case he may be = declared a=20 bankrupt.

2. It is proper to notice that there is much difference between a = bankrupt=20 and an insolvent. A man may be a bankrupt, and yet be perfectly solvent; = that=20 is, eventually able to pay all his debts or, he may be insolvent, and, = in=20 consequence of not having done, or suffered, an act of bankruptcy. He = may not be=20 a bankrupt. Again, the bankrupt laws are intended mainly to secure = creditors=20 from waste, extravagance, and mismanagement, by seizing the property out = of the=20 hands of the debtors, and placing it in the custody of the law; whereas = the=20 insolvent laws only relieve a man from imprisonment for debt after he = has=20 assigned his property for the benefit of his creditors. Both under = bankrupt and=20 insolvent laws the debtor is required to surrender his property, for the = benefit=20 of his creditors. Bankrupt laws discharge the person from imprisonment, = and his=20 property, acquired after his discharge, from all liabilities for his = debts=20 insolvent laws simply discharge the debtor from imprisonment, or = liability to be=20 imprisoned, but his after-acquired property may be taken in satisfaction = of his=20 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=20 England was the stat. 34 and 35 H. VIII., c. 4, although the word = bankrupt=20 appears only in the title, not in the body of the act. The stat. 13 = Eliz. c. 7,=20 is the first that defines the term bankrupt, and discriminates = bankruptcy from=20 mere insolvency. Out of a great number of bankrupt laws passed from time = to=20 time, the most considerable are the statutes 13 Eliz. c. 7; 1 James I., = c. 19 21=20 James I., c. 19 5 Geo. II., c. 30. A careful consideration of these = statutes is=20 sufficient to give am adequate idea of the system of bankruptcy in = England. See=20 Burgess on Insolvency, 202-230.

3. The Constitution of the United States, art. 1, s. 8, authorizes = congress=20 "to establish an uniform rule of naturalization, and uniform laws on the = subject=20 of bankruptcies throughout the United States." With the exception of a = short=20 interval during which bankrupt laws existed in this country, this power = lay=20 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=20 insolvent law can be permitted to impair the obligation of contracts; = nor can=20 the several states pass laws conflicting with an act of congress on this = subject=20 4 Wheat. and the bankrupt laws of a state cannot affect the rights of = citizens=20 of another state. 12 Wheat. It. 213. Vide 3 Story on the Const. =A71100 = to 1110 2=20 Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the Const. c. 9 6 Pet. = R. 348=20 Bouv. Inst. Index, h. t. Vide Bankrupt.

BANKS OF RIVERS, estates. By this term is understood what = retains the=20 river in its natural channel, when there is the greatest flow of = water.

2. The owner of the bank of a stream, not navigable, his in general = the right=20 to the middle of the stream. Vide Riparian Proprietor.

3. When by imperceptible increase the banks on one side extend into = the=20 river, this addition is called alluvion. (q. v.) When the increase is = caused by=20 the sudden transfer of a mass of earth or soil from the opposite bank, = it is=20 called an increase by avulsion. (q. v.)

BANNITUS. One outlawed or banished. See Calvini Lex.

BANS OF MATRIMONY. The giving public notice or making = proclamation of=20 a matrimonial contract, and the intended celebration of the marriage of = the=20 parties in pursuance of such contract, to the end that persons objecting = to the=20 same, may have an opportunity to declare such objections before the = marriage is=20 solemnized. Poth. Du Mariage, partie 2, c. 2. Vide Ban.

BAR, actions. A perpetual destruction or temporary taking away = of the=20 action of the plaintiff. In ancient authors it is called exceptio = peremptorid.=20 Co. Litt. 303 b Steph. Pl. Appx. xxviii. Loisel (Institutes Coutumieres, = vol.=20 ii. p. 204) says, "Exceptions (in pleas) have been called bars by our = ancient=20 practitioners, because, being opposed, they arrest the party who has = sued out=20 the process, as in war (une barriere) a barrier arrests an enemy; and as = there=20 have always been in our tribunals bars to separate the advocates from = the=20 judges, the place where the advocates stand (pour parler) when they = speak, has=20 been called for that reason (barreau) the bar."

2. When a person is bound in any action, real or personal, by = judgment on=20 demurrer, confession or verdict, he is barred, i. e. debarred, as to = that or any=20 other action of the like nature or degree, for the same thing, forever; = for=20 expedit reipublicae ut sit finis litim.

3. But there is a difference between real and personal actions.

4. In personal actions, as in debt or account, the bar is perpetual, = inasmuch=20 as the plaintiff cannot have an action of a higher nature, and therefore = in such=20 actions he has generally no remedy, but by bringing a writ of error. = Doct. Plac.=20 65; 6 Co. 7, 8 4 East, 507, 508.

5. But if the defendant be barred in a real action, by judgment on a = verdict,=20 demurrer or confession, &c., he may still have an action of a higher = nature,=20 and try the same right again. Lawes, Pl. 39, 40. See generally, Bac. Ab. = Abatement, N; Plea in bar. Also the case of Outram v. Morewood, 3 East, = Rep.=20 346-366; a leading case on this subject.

BAR, practice. A place in a court where the counsellors and = advocates=20 stand to make their addresses to the court and jury; it is so called = because=20 formerly it was closed with a bar. Figuratively the counsellors and = attorneys at=20 law are called the bar of Philadelphia, the New York bar.

2. A place in a court having criminal jurisdiction, to which = prisoners are=20 called to plead to the indictment, is also called, the bar. Vide Merl. = Repert.=20 mot Barreau, and Dupin, Profession d'Avocat, tom. i. p. 451, for some = eloquent=20 advice to gentlemen of the bar.

BAR, contracts. An obstacle or opposition. 2. Some bars arise = from=20 circumstances, and others from persons. Kindred within the prohibited = degree,=20 for example, is a bar to a marriage between the persons related; but the = fact=20 that A is married, and cannot therefore marry B, is a circumstance which = operates as a bar as long as it subsists; for without it the parties = might=20 marry.

BAR FEE, Eng. law. A fee taken time out of mind by the sheriff = for=20 every prisoner who is acquitted. Bac. Ab. Extortion.

BARBICAN. An ancient word to signify a watch-tower. = Barbicanage was=20 money given for the support of a barbican.

BARGAIN AND SALE, conveyancing, contracts. A contract in = writing to=20 convey lands to another person; or rather it is the sale of a use = therein. In=20 strictness it is not an absolute conveyance of the seizin, as a = feoffment. Watk.=20 Prin. Conv. by Preston, 190, 191. The consideration must be of money or = money's=20 worth. Id. 237.

2. In consequence of this conveyance a use arises to a bargainee, and = the=20 statute 27 Henry VIII. immediately transfers the=9820legal estate and = possession=20 to him.

3. A bargain and sale, may be in fee, for life, or for years.

4. The proper and technical words of this conveyance are bargain and = sale,=20 but any other words that would have been sufficient to raise a use, upon = a=20 valuable consideration, before the statute, are now sufficient to = constitute a=20 good bargain and sale. Proper words of limitation must, however, be = inserted.=20 Cruise Dig. tit. 32, c. 9; Bac. Ab. h. t. Com. Dig. h. t.; and the cases = there=20 cited; Nels. Ab. h. t. 2 Bl. Com. 338.

5. This is the most common mode of conveyance in the United States. 4 = Kent,=20 Com. 483; 3 Pick. R. 529; 3 N. H. Rep. 260; 6 Harr. & John. 465; 3 = Wash. C.=20 C. Rep. 376; 4 Mass. R. 66; 4 Yeates, R. 295; 1 Yeates, R. 828; 3 John. = R. 388;=20 4 Cowen's R. 325; 10 John. R. 456, 505; 3 N. H. Rep. 261; 14 John. R. = 126; 2=20 Harr. & John. 230; 2 Bouv. Inst. n. 207 7 8.

BARGAINEE. A person to whom a bargain is made; one who = receives the=20 advantages of a bargain.

BARGAINOR. A person who makes a a bargain, and who becomes = bound to=20 perform it.

BARGEMEN. Persons who own and keep a barge for the purpose of = carrying=20 the goods of all. such other persons who may desire to employ them. They = are=20 liable as common, carriers. Story, Bailm. 496.

BARLEYCORN. A lineal measure, containing one-third of an inch. = Dane's=20 Ab. c. 211, a. 13, s. 9. The barleycorn was the first measure, with its = division=20 and multiples, of all our measures of length, superfices, and capacity. = Id. c.=20 211, a. 1 2, s. 2.

BARN, estates. A building on a farm used to receive the crop, = the=20 stabling of animals, and other purposes.

2. The grant or demise of a barn, without words superadded to extend = its=20 meaning, would pass no more than the barn itself, and as much land as = would be=20 necessary for its complete enjoyment. 4 Serg. & Rawle, 342.

BARON. This word has but one signification in American law, = namely,=20 hushand: we use baron and feme, for hushand and wife. And in this sense = it is=20 going out of use.

2. In England, and perhaps some other countries, baron is a title of = honor;=20 it is the first degree of nobility below a viscount. Vide Com. Dig. = Baron and=20 Feme; Bac. Ab. Baron and Feme; and the articles. Hushand; Marriage; = Wife.

3. In the laws of the middle ages, baron or bers, (baro) signifes a = great=20 vassal; lord of a fief and tenant immediately from the king: and the = words=20 baronage, barnage and berner, signify collectively the vassals composing = the=20 court of the king; as Le roi et son barnage, The king and his court. See = Spelman's Glossary, verb. Baro.

BARONS OF EXCHEQUER, Eng. law. The name given to the five = judges of=20 the Exchequer formerly these were baros of the realm, but now they are = chosen=20 from persons learned in the law.

BARRACK. By this term, as used in Pennsylvania, is understood = an=20 erection of upright posts supporting a sliding roof, usually of thatch. = 5 Whart.=20 R. 429.

BARRATOR, crimes. One who has been guilty of the offence of=20 barratry.

BARRATRY, crimes. In old law French barat, baraterie, = signifying=20 robbery, deceit, fraud. In modern usage it may be defined as the = habitual=20 moving, exciting, and maintaining suits and quarrels, either at law or=20 otherwise. 1 Inst. 368; 1 Hawk. 243.

2. A man cannot be indicted as a common barrator in respect of any = number of=20 false and groundless actions brought in his own right, nor for a single = act in=20 right of another; for that would not make him a common barrator.

3. Barratry, in this sense, is different from maintenance (q. v.) and = champerty. (q. v.)

4. An attorney cannot be indicted for this crime, merely for = maintaining=20 another in a groundless action. Vide 15 Mass. R. 229 1 Bailey's R. 379; = 11 Pick.=20 R. 432; 13 Pick. R. 362; 9 Cowen, R. 587; Bac. Ab. h. t.; Hawk. P. C. B. = 1, c.=20 21; Roll. Ab. 335; Co. Litt. 368; 3 Inst. 175.

BARRATRY, maritime law, crimes. A fraudulent act of the master = or=20 mariners, committed contrary to their duty as such, to the prejudice of = the=20 owners of the ship. Emer. tom. 1, p. 366; Merlin, Repert. h. t.; Roccus, = h. t.;=20 2 Marsh. Insur. 515; 8 East, R. 138, 139. As to what will amount to = barratry,=20 see Abbott on Shipp. 167, n. 1; 2 Wash. C. C. R. 61; 9 East, R. 126; 1 = Str. 581;=20 2 Ld. Raym. 1349; 1 Term R. 127; 6 Id. 379; 8 Id. 320; 2 Cain. R. 67, = 222; 3=20 Cain. R. 1; 1 John. R. 229; 8 John. R. 209, n. 2d edit.; 5 Day. R. 1; 11 = John.=20 R. 40; 13 John. R, 451; 2 Binn. R. 274; 2 Dall. R. 137; 8 Cran. R. 39; 3 = Wheat.=20 R. 168; 4 Dall. R. 294; 1 Yeates, 114.

2. The act of Congress of April, 30, 1790, s. 8, 1 Story's Laws U. S. = 84,=20 punishes with death as piracy, "any captain or mariner of any ship or = other=20 vessel who shall piratically and feloniously run away with such ship or = vessel,=20 or any goods or merchandize to the value of fifty dollars; or yield up = such ship=20 or vessel to any pirate or if any such seamen shall lay violent hands = upon his=20 commander, thereby to binder or prevent his fighting in defence of his = ship, or=20 goods, committed to his trust, or shall make a revolt in the said = ship."

BARREL. A measure of capacity, equal to tliirty-six = gallons.

BARREN MONEY, civil law. This term is used to denote money = which bears=20 no interest.

BARRENNESS. The incapacity to produce a child. This, when = arising from=20 impotence, is a cause for dissolving a marriage. 1 Fodere, Med. Leg. = =A7254.

BARRISTER, English law. A counsellor admitted to plead at the = bar.

2. Ouster barrister, is one who pleads ouster or without the bar.

3. Inner barrister, a serjeant or king's counsel who pleads within = the=20 bar.

4. Vacation barrister, a counsellor newly called to the bar, who is = to attend=20 for several long vacations the exercise of the house.

5. Barristers are called apprentices, apprentitii ad legem, being = looked upon=20 as learners, and not qualified until they obtain the degree of serjeant. = Edmund=20 Plowden, the author of the Commentaries, a volume of elaborate reports = in the=20 reigns of Edward VI., Mary, Philip and Mary, and Elizabeth, describes = himself as=20 an apprentice of the common law.

BARTER. A contract by which the parties exchange goods for = goods. To=20 complete the contract the goods must be delivered, for without a = delivery, the=20 right of property is not changed.

2. This contract differs from a sale in this, that barter is always = of goods=20 for goods, whereas a sale is an exchange of goods for money. In the = former there=20 never is a price fixed, in the latter a price is indispensable. All the=20 differences which may be pointed out betwen these two contracts, are = comprised=20 in this; it is its necessary consequence. When the contract is an = exchange of=20 goods on one side, and on the other side the consideration is partly = goods and=20 partly money, the contract is not a barter, but a sale. See Price; = Sale.

3. If an insurance be made upon returns from a country where trade is = carried=20 on by barter, the valuation of the goods in return shall be made on the = cost of=20 those given in barter, adding all charges. Wesk. on Ins. 42. See 3 Camp. = 351=20 Cowp. 818; 1 Dougl. 24, n.; 1 N. R. 151 Tropl. de l'Echange.

BARTON, old English law. The demesne land of a manor; a farm = distinct=20 from the mansion.

BASE. Something low; inferior. This word is frequently used in = composition; as base court, base estate, base fee, &c.

BASE COURT. An inferior court, one not of record. Not = used.

BASE ESTATE, English law. The estate which base tenants had in = their=20 lands. Base tenants were a degree above villeins, the latter being = compelled to=20 perform all the commands of their lords; the former did not hold their = lands by=20 the performance of such commands. See Kitch. 41.

BASE FEE, English law. A tenure in fee at the will of the = lord. This=20 was distinguished from socage free tenure. See Co. Litt. 1, 18.

BASILICA, civil law. This is derived from a Greek word, which=20 signifies imperial constitutions. The emperor Basilius, finding the = Corpus Juris=20 Civilis of Justinian too long and obscure, resolved to abridge it, and = under his=20 auspices the work proceeded to the fortieth book, which, at his death, = remained=20 unfinished. His son and successor, Leo, the philosopher, continued the = work, and=20 published it in sixty books, about the year 880. Constantine = Porphyro-genitus,=20 younger brother of Leo, revised the work, re-arranged it, and = republished it,=20 Anno Domini, 910. From that time the laws of Justinian ceased to have = any force=20 in the eastern empire, and the Basilica were the foundation of the law = observed=20 there till Constantine XIII, the last of the Greek emperors, under whom, = in=20 1453, Constantinople was taken by Mahomet the Turk, who put an end to = the empire=20 and its laws. Histoire de la Jurisprudence Etienne, Intr. a 1'etude du = Droit=20 Romain, =A7LIII. The Basilica were written in Greek. They were = translated into=20 Latin by J. Cujas (Cujacius) Professor of Law in the University of = Bourges, and=20 published at Lyons, 22d of January, 1566, in one vol. fo.

BASTARD. A word derived from bas or bast, signifying abject, = low,=20 base; and aerd, nature. Minshew, Co. Lit. 244; a. Enfant de bas, a child = of low=20 birth. Dupin. According to Blackstone, 1 Com. 454, a bastard in the law = sense of=20 the word, is a person not only begotten, but born out of lawful = matrimony. This=20 definition does not appear to be complete, inasmuch as it does not = embrace the=20 case of a person who is the issue of an illicit connection, during the = coverture=20 of his mother. The common law, says the Mirror, only taketh him to be a = son whom=20 the marriage proveth to be so. Horne's Mirror, c. 2, =A77; see Glanv. = lib 8, cap.=20 13 Bract. 63, a. b.; 2 Salk. 427;, 8 East, 204. A bastard may be perbaps = defined=20 to be one who is born of an illicit union, and before the lawful = marriage of his=20 parents.

2. A man is a bastard if born, first) before the marriage of his = parents; but=20 although he may have been begotten while his parents were single, yet if = they=20 afterwards marry, and he is born during the coverture, he is legitimate. = 1 Bl.=20 Com. 455, 6. Secondly, if born during the coverture, under circumstances = which=20 render it impossible that the hushand of his mother can be his father. 6 = Binn.=20 283; 1 Browne's R. Appx. xlvii.; 4 T. R. 356; Str. 940 Id. 51 8 East, = 193;=20 Hardin's R. 479. It seems by the Gardner peerage case, reported by = Dennis Le=20 Marebant, esquire, that strong moral improbability that the hushand is = not the=20 father, is sufficient to bastardize the issue. Bac. Ab. tit. Bastardy, = A, last=20 ed. Thirdly, if born beyond a competent time after the coverture has = determined.=20 Stark. Ev. part 4, p. 221, n. a Co. Litt. 123, b, by Hargrave & = Butler in=20 the note. See Gestation.

3. The principal right which bastard children have, is that of = maintenance=20 from their parents. 1 Bl. Com. 458; Code Civ. of Lo. 254 to 262. To = protect the=20 public from their support, the law compels the putative father to = maintain his=20 bastard children. See Bastardy; Putative father.

4. Considered as nullius filius, a bastard has no inheritable blood = in him,=20 and therefore no estate can descend. to him; but he may take by = testment, if=20 properly described, after he has obtained a name by reputation. 1 Rop. = Lew. 76,=20 266; Com. Dig. Descent, C, l2; Ie. Bastard, E; Co. Lit. 123, a; Id. 3, = a; 1 T.=20 R. 96 Doug. 548 3 Dana, R. 233; 4 Pick. R. 93; 4 Desaus. 434. But this = hard rule=20 has been somewhat mitigated in some of the states, where, by statute, = various=20 inheritable qualities have been conferred upon bastards. See 5 Conn. = 228; 1 Dev.=20 Eq. R. 345; 2 Root, 280; 5 Wheat.. 207; 3 H. & M. 229, n; 5 Call. = 143; 3=20 Dana, 233.

5. Bastards can acquire the rights of legitimate children only by an = act of=20 the legislature. 1 Bl. Com. 460; 4 Inst. 36.

6. By the laws of Louisiana, a bastard is one who is born of an = illicit=20 union. Civ. Code of Lo. art. 27, 199. There are two sorts of = illegitimate=20 cbildren; first, those who are born of two persons, who, at the moment = such=20 children were conceived, might have legally contracted marriage with = each other;=20 and, secondly, those who are born from persons, to whose marriage there = existed=20 at the time, some legal impediment. Id. art. 200. An adulterous bastard = is one=20 produced by an unlawful connexion between two persons, who, at the time = he was=20 conceived, were, either of them, or both, connected by marriage with = some other=20 person or persons. Id. art. 201. Incestuous bastards are those who are = produced=20 by the illegal connexion of two persons who are relations within the = degrees=20 prohibited by law. Id. art. 202.

7. Bastards, generally speaking, belong to no family, and have no = relations;=20 accordingly they are not subject to paternal authority, even when they = have been=20 acknowledged. See 11 East, 7, n. Nevertheless, fathers and mothers owe = alimony.=20 to their children when they are in need. Id. art. 254, 256. Alimony is = due to=20 bastards, though they be adulterous or incestuous, by the mother and her = ascendants. Id. art. 262.

8. Children born out of marriage, except those who are born from an=20 incestuous or adulterous connexion, may be legitimated by the subsequent = marriage of their father and mother, whenever the latter have legally=20 acknowledged them for their children, either before the marriage or by = the=20 contract of marriage itself. Every other mode of legitimating children = is=20 abolished. Id. art. 217. Legitimation may even be extended to deceased = children=20 who have left issue, and in that ease, it enures to the benefit of that = issue.=20 Id. art. 218. Children legitimated by a subsequent marriage, have the = same=20 rights as if born during the marriage. Id. art. 219. See, generally, = Vin. Abr.=20 Bastards Bac. Abr. Bastard; Com. Dig. Bastard; Metc. & Perk. Dig. h. = t.; the=20 various other American Digests, h. t.; Harr. Dig. h. t.; 1 Bl. Com. 454 = to 460;=20 Co. Litt. 3, b.; Bouv. Inst. Index, h. t., And Access; Bastardy; = Gestation;=20 Natural Children.

BASTARD EIGNE', Eng. law. Elder bastard. By the old English = law, when,=20 a man had a bastard son, and he afterwards married the mother, and by = her had a=20 legitimate son, the first was called a bastard eigne, or, as it is now = spelled,=20 aine, and the second son was called puisne, or since born, or sometimes = he was=20 called mulier puisne. See Mulier; Eigne, 2 Bl. Com. 248.

BASTARDY, crim. law. The offence of begetting a bastard = child.

BASTARDY, persons. The state or condition of a bastard. The = law=20 presumes every child legitimate, when born of a woman in a state of = wedlock, and=20 casts the onus probandi (q. v.) on the party wlio affirms the bastardy. = Stark.=20 Ev. h. t.

BASTON. An old French word, which signifies a staff, or club, = In some=20 old English statutes the servants or officers of the wardens of the = Fleet are so=20 called, because they attended the king's courts with a red staff. Vide=20 Tipstaff.

BATTEL, in French Bataille; Old English law. An ancient and = barbarous=20 mode of trial, by Bingle combat, called wager of battel, where, in = appeals of=20 felony, the appellee might fight with the appellant to prove his = innocence. It=20 was also used in affairs of chivalry or honor, and upon civil cases upon = certain=20 issues. Co. Litt. 294. Till lately it disgraced the English code. This = mode of=20 trial was abolished in England by stat. 59 Geo.,III. c. 46.

2. This mode of trial was not peculiar to England. The emperor Otho, = A. D.=20 983, held a diet at Verona, at which several sovereigns and great lords = of=20 Italy, Germany and France were present. In order to put a stop to the = frequent=20 perjuries in judicial trials, this diet substituted in all cases, even = in those=20 which followed the course of the Roman law, proof by combat for proof by = oath.=20 Henrion de Pansey, Auth. Judic. Introd. c. 3; and for a detailed account = of this=20 mode of trial see Herb. Antiq. of the Inns of Court, 119-145.

BATTERY. It is proposed to consider, 1. What is a battery; 2. = When a=20 battery, may be justified.

2. =A71. A battery is the unlawful touching the person of another by = the=20 aggressor himself, or any other substance put in motion by him. 1 Saund. = 29, b.=20 n. 1; Id. 13 & 14, n. 3. It must be either wilfully committed, or = proceed=20 from want of due care. Str. 596; Hob. 134; Plowd. 19 3 Wend. 391. Hence = an=20 injury, be it never so small, done to the person of another, in an = angry,=20 spiteful, rude or insolent manner, as by spitting in his face, or any = way=20 touching him in anger, or violently jostling him, are batteries in the = eye of=20 the law. 1 Hawk. P. C. 263. See 1 Selw. N. P. 33, 4. And any thing = attached to=20 the person partakes of its inviolability if, therefore, A strikes a cane = in the=20 hands of B, it is a battery. 1 Dall. 1 14 1 Ch. Pr. 37; 1 Penn. R. 380; = 1 Hill's=20 R. 46; 4 Wash. C. C. R. 534 . 1 Baldw. R. 600.

3. - =A72. A battery may be justified, 1. on the ground of the = parental=20 relation 2. in the exercise of an office; 3. under process of a court of = justice=20 or other legal tribunal 4. in aid of an authority in law; and lastly, as = a=20 necessary means of defence.

4. First. As a salutary mode of correction. For example: a parent may = correct=20 his child, a master his apprentice, a schoolmaster his scholar; 24 Edw. = IV.;=20 Easter, 17, p. 6 and a superior officer, one under his command. Keilw. = pl. 120,=20 p. 136 Bull. N. P. 19 Bee, 161; 1 Bay, 3; 14 John. R. 119 15 Mass. 365; = and vide=20 Cowp. 173; 15 Mass. 347.

5. - 2. As a means to preserve the peace; and therefore if the = plaintiff=20 assaults or is fighting with another, the defendant may lay hands upon = him, and=20 restrain him until his anger is cooled; but he cannot strike him in = order to=20 protect 'the party assailed, as he way in self-defence. 2 Roll. Abr. = 359, E, pl.=20 3.

6. - 3. Watchmen may arrest, and detain in prison for examination, = persons=20 walking in the streets by might, whom there is reasonable ground to = suspect of=20 felony, although there is no proof of a felony having been committed. 3 = Taunt.=20 14.

7. - 4. Any person has a right to arrest another to prevent a = felony.

8. - 5. Any one may arrest another upon suspicion of felony, provided = a=20 felony has actually been committed and there is reasonable ground for = suspecting=20 the person arrested to be the criminal, and that the party making the = arrest,=20 himself entertained the suspicion.

9. - 6. Any private individual may arrest a felon. Hale's P. C. = 89.

10. - 7. It is lawful for every man to lay hands on another to = preserve=20 public decorum; as to turn him out of church, and to prevent him from = disturbing=20 the congregation or a funeral ceremony. 1 Mod. 168; and see 1 Lev. 196; = 2 Keb.=20 124. But a request to desist should be first made, unless the urgent = necessity=20 of the case dispenses with it.

11. Secondly. A battery may be justified in the exercise of an = office. 1. A=20 constable may freshly arrest one who, in, his view, has committed a = breach of=20 the peace, and carry him before a magistrate. But if an offence has been = committed out of the constable's sight, he cannot arrest, unless it = amounts to a=20 felony; 1 Brownl. 198 or a felony is likely to ensue. Cro. Eliz. = 375.

12. - 2. A justice of the peace may generally do all acts which a = constable=20 has authority to perform hence he may freshly arrest one who, in his = view has=20 broken the peace; or he may order a constable at the moment to take him = up.=20 Kielw. 41.

13. Thirdly. A battery may be justified under the process of a court = of=20 justice, or of a magistrate having competent jurisdiction. See 16 Mass. = 450; 13=20 Mass. 342.

14. Fourthly. A battery may be justified in aid of an authority in = law. Every=20 person is empowered to restrain breaches of the peace, by virtue of the=20 authority vested in him by the law.

15. Lastly. A battery may be justified as a necessary means of = defence. 1.=20 Against the plaintiffs assaults in the following instances: In defence = of=20 himself, his wife, 3 Salk. 46, his child, and his servant. Ow. 150; sed = vide 1=20 Salk. 407. So, likewise, the wife may justify a battery in defending her = hushand; Ld. Raym. 62; the child its parent; 3 Salk. 46; and the servant = his=20 master. In these situations, the party need not wait until a blow has = been=20 given, for then he might come too late, and be disabled from warding off = a=20 second stroke, or from protecting the person assailed. Care, however, = must be=20 taken, that the battery do not exceed the bounds of necessary defence = and=20 protection; for it is only permitted as a means to avert an impending = evil,=20 which might otherwise overwhelm the party, and not as a punishment or=20 retaliation for the injurious attempt. Str. 953. The degree of force = necessary=20 to repel an assault will naturally depend upon, and be proportioned to, = the=20 violence of the assailant; but with this limitation any degree is = justifiable.=20 Ld. Raym. 177; 2 Salk. 642.

16. - 2. A battery may likewise be justified in the necessary defence = of=20 one's property; if the plaintiff is in the act of entering peaceably = upon the=20 defendant's land, or having entered, is discovered, not committing = violence, a=20 request to depart is necessary in the first instance; 2 Salk. 641; and = if the=20 plaintiff refuses, the defendant may then, and not till then, gently lay = hands=20 upon the plaintiff to remove him from the close and for this purpose may = use, if=20 necessary, any degree of force short of striking the plaintiff, as by = thrusting=20 him off. Skinn. 228. If the plaintiff resists, the defendant may oppose = force to=20 force. 8 T. R. 78. But if the plaintiff is in the act of forcibly = entering upon=20 the land, or having entered, is discovered subverting the soil, cutting = down a=20 tree or the like, 2 Salk. 641, a previous request is unnecessary, and = the=20 defendant may immediately lay hands upon the plaintiff. 8 T. R. 78. A = man may=20 justify a battery in defence of his personal property, without a = previous=20 request, if another forcibly attempt to take away such property. 2 Salk. = 641.=20 Vide Rudeness; Wantonness.

BATTURE. An elevation of the bed of a river under the surface = of the=20 water; but it is sometimes used to signify the same elevation when it = has risen=20 above the surface. 6 M. R. 19, 216. The term battures is applied, = principally,=20 to certain portions of the bed of the river Mississippi, which are left = dry when=20 the water is low, and are covered again, either in whole or in part by = the=20 annual swells. The word battures, in French, signifies shoals or = shallows, where=20 there is not water enough for a ship to float. They are otherwise called = basses=20 or brisans. Neuman's Marine Pocket Dict.; Dict. de Trevoux.

BAWDY-HOUSE, crim. law. A house of ill-fame, (q. v.) kept for = the=20 resort and unlawful commerce of lewd people of both sexes.

2. Such a house is a common nuisance, as it endangers the public = peace by=20 drawing together dissolute and debauched persons; and tends to corrupt = both=20 sexes by an open profession of lewdness. 1 Russ. on Cr.; 299: Bac. Ab.=20 Nuisances, A; Hawk. B. 1, c. 74, =A71-5.

3. The keeper of such a house may be indicted for the nuisance; and a = married=20 woman, because such houses are generally kept by the female sex, may be = indicted=20 with her hushand for keeping such a house. 1 Salk. 383; vide Dane's Ab. = Index,=20 h. t. One who assists in establishing a bawdyhouse is guilty of a = misdemeanor. 2=20 B. Monroe, 417.

BAY. Is an enclosure to keep in the water for the supply of a = mill or=20 other contrivance, so that the water may be able to, drive the wheels of = such=20 mill. Stat. 27 Eliz. c. 19.

2. A large open water or harbor where ships may ride, is also called = a bay;=20 as, the Chesapeake Bay, the, Bay of New York.

BEACH. The sea shore. (q. v.)

BEACON. A signal erected as a sea mark for the use of = mariners; also,=20 to give warning of the approach of an enemy. 1 Com. Dig. 259; 5 Com. = Dig.=20 173.

TO BEAR DATE. In the description of a paper in a declaration, = to say=20 it bears date such a day, is to aver that such date is upon it; and if, = on being=20 produced, it is dated at another day, the variance will be fatal. But if = it be=20 averred it was made on such a day, and upon its production it bears date = on=20 another day, it will not be a variance, because it might have been made = one day=20 and dated another. 3 Burr. 904.

BEADLE. Eng. law. A messenger or apparitor of a court, who = cites=20 persons to appear to what is alleged against them, is so called.

BEARER. One who bears or carries a thing.

2. If a bill or note be made payable to bearer, it will pass by = delivery=20 only, without endorsement; and whoever fairly acquires a right to it, = may=20 maintain an action against the drawer or acceptor.

3. It has been decided that the bearer of a bank note, payable to = bearer, is=20 not an assignee of a chose in action within the 11th section of the = judiciary=20 act of, 1789, c. 20, limiting the jurisdiction of the circuit court. 3 = Mason, R.=20 308.

4. Bills payable to bearer are contra-distinguished from those = payable to=20 order, which can be transferred only by endorsement and delivery.

5. Bills payable to fictitious payees, are considered as bills = payable to,=20 bearer.

BEARERS, Eng. crim. law. Such as bear down or oppress others;=20 maintainers. In Ruffhead's Statutes it is employed to translate the = French word=20 emparnours, which signifies, according to Kelham, undertakers of suits. = 4 Ed.=20 III. c. 11. This word is no longer used in this sense.

BEARING DATE. These words are frequently used in conveyancing = and in=20 pleading; as, for example, a certain indenture bearing date the first = day of=20 January, 1851, which signifies not that the indenture was made on that = day, but=20 simply that such date has been put to it.

2. When in a declaration the plaintiff alleges that the defendant = made his=20 promissory note on such a day, he will not be considered as having = alleged it=20 bore date on that day, so as to cause a variance between the declaration = and the=20 note produced bearing a different date. 2 Greenl. Ev. =A71610; 2 Dowl. = & L.=20 759.

BEAU PLEADER, Eng. law. Fair pleading. See Stultiloquium.

2. This is the name of a writ upon the statute of Marlbridge, 52 H. = III. c.=20 11, which enacts, that neither in the circuit of justices, nor in = counties,=20 hundreds, or courts baron, any fines shall be taken for fair pleading; = namely,=20 for not pleading fairly or aptly to the purpose. Upon this statute this = writ was=20 ordained, directed to the sheriff, bailiff, or him who shall demand the = fine;=20 and it is a prohibition or command not to do it. Now Nat. Br. 596 2 = Inst. 122;=20 Termes de la Le 2 Reeves' Hist. Eng. Law, 70 Cowel; Crabb's Hist. of the = Eng.=20 Law, 150. The explanations given of this term are not very = satisfactory.

BEDEL, Eng. law. A cryer or messenger of a court, who cites = men to=20 appear and answer. There are also inferior officers of a parish or = liberty who=20 bear this name.

BEE. The name of a well known insect.

2. Bees are considered ferae naturae while unreclaimed; and they are = not more=20 subjects of property while in their natural state, than the birds which = have=20 their nests on the tree of an individual. 3 Binn. R. 546 5 Sm. & = Marsh. 333.=20 This agrees with the Roman law. Inst. 2 1, 14; Dig. 41, 1, 5, 2; 7 = Johns. Rep.=20 16; 2 Bl. Com. 392 Bro. Ab. Propertie, 37; Coop. Justin. 458.

3. In New York it has been decided that bees in a tree belong, to the = owner=20 of the soil, while unreclaimed. When they have been reclaimed, and the = owner can=20 identify them, they belong to him, and not to the owner of the soil. 15 = Wend. R.=20 550. See 1 Cowen, R. 243.

BEGGAR. One who obtains his livelihood by asking alms. The = laws of=20 several of the states punish begging as an offence.

BEHAVIOUR. In old English, haviour without the prefix be. It = is the=20 manner of having, holding, or keeping one's self or the carriage of = one's self=20 with respect to propriety, morals, and the requirements of law. Surety = to be of=20 -good behaviour is a larger requirement than surety to keep the peace. = Dalton,=20 c. 122; 4 Burn's J. 355.

BEHOOF. As a word of discourse, Signifies need, (egestas, = necessitas,=20 indigentia.) It comes from behoove, (Sax. behoven,) to need or have need = of. In=20 a secondary sense, which is the law sense of the word, it signifies use, = service, profit, advantage, (interesse, opus.) It occurs in conveyances = of land=20 in fee simple.

BELIEF. The conviction of the mind, arising from evidence = received, or=20 from information derived, not from actual perception by our senses, but = from.=20 the relation or information of others who have had the means of = acquiring actual=20 knowledge of the facts and in whose qualifications for acquiring that = knowledge,=20 and retaining it, and afterwards in communicating it, we can place = confidence. "=20 Without recurring to the books of metaphysicians' "says Chief Justice = Tilghman,=20 4 Serg. & Rawle, 137, "let any man of plain common sense, examine = the=20 operations of, his own mind, he will assuredly find that on different = subjects=20 his belief is different. I have a firm belief that, the moon revolves = round the=20 earth. I may believe, too, that there are mountains and valleys in the = moon; but=20 this belief is not so strong, because the evidence is weaker." Vide 1 = Stark. Ev.=20 41; 2 Pow. Mortg. 555; 1 Ves. 95; 12 Ves. 80; 1 P. A. Browne's R 258; 1 = Stark.=20 Ev. 127; Dyer, 53; 2 Hawk. c. 46, s. 167; 3 Wil. 1, s. 427; 2 Bl. R. = 881; Leach,=20 270; 8 Watts, R. 406; 1 Greenl. Ev. =A77-13, a.

BELOW. Lower in place, beneath, not so high as some other = thing spoken=20 of, of tacitly referred to.

2. The court below is an inferior court, whose, proceedings may be = examined=20 on error by a superior court, which is called the court above.

3. Bail below is that given to the sheriff in bailable actions, which = is so=20 called to distinguish it from bail to t-he action, which is called bail = above.=20 See Above; Bail above; Bail below.

BENCH. Latin Bancus, used for tribunal. In England there are = two=20 courts to which this word is applied. Bancus Regius, King's Bench Bancus = Communis, Com- mon Bench or Pleas. The jus banci, says Spelman, properly = belongs=20 to the king's judges, who administer justice in the last resort. The = judges of=20 the inferior courts, as of the barons, are deemed to, judge plano pede, = and are=20 such as are called in the civil law pedanei judices, or by the Greeks=20 Xauaidixastai, that is, humi judicantes. The Greeks called the seats of = their=20 higher judges Bumata, and of their inferior judges Bathra. The Romans = used the=20 word sellae and tribunalia, to designate the seats of their higher = judges, and=20 subsellia, to designate those of the lower. See Spelman's Gloss. (ad = verb.)=20 Bancus; also, 1 Reeves Hist. Eng. Law, 40, 4to ed., and postea Curia = Regis.

BENCH WARRANT, crim. law. The name of a process sometimes = given to an=20 attachment issued by order of a criminal court, against an individual = for some=20 contempt, or for the purpose of arresting a person accused; the latter = is seldom=20 granted unless when a true bill has been found.

BENCHER, English law. A bencher is a senior in the inns of = court,=20 entrusted with their government and direction.

BENEFICE, eccles. law. In its most extended sense, any = ecclesiastical=20 preferment or dignity; but in its more limited sense, it is applied only = to=20 rectories and vicarages.

BENEFICIA. In the early feudal times, grants were made to = continue=20 only during the pleasure of the grantor, which were called munera, (q. = v.) but=20 soon afterwards these grants were made for life, and then they assumed = the name=20 of beneficia. Dalr. Feud. Pr. 199. Pomponius Laetus, as cited by = Hotoman, De=20 Feudis, ca. 2, says, " That it was an ancient custom, revived by the = emperor=20 Constantine, to give lands and villas to those generals, prefects, and = tribunes,=20 who had grown old in enlarging the empire, to supply their necessities = as long=20 as they lived, which they called. parochial parishes, &c. But, = between=20 (feuda) fiefs or feuds, and (parochias) parishes, there was this = difference,=20 that the latter were given to old men, veterans, &c., who, as they = had=20 deserved well of the republic, sustained the rest of their life (publico = beneficio) by the public benefaction; or, if any war afterwards arose, = they were=20 called out, not so much as soldiers, as leaders, (majistri militum.) = Feuds,=20 (feuda,) on the other hand, were usually given to robust young men who = could=20 sustain the labors of war. In later times, the word parochia was = appropriated=20 exclusively to ecclesiastical persons, while the word beneficium = (militare)=20 continued to be used in reference to military fiefs or fees.

BENEFICIAL. Of advantage, profit or interest; as the wife has = a=20 beneficial interest in property held by a trustee for her. Vide Cestui = que=20 trust.

BENEFICIAL INTEREST. That right which a person has in a = contract made=20 with another; as if A makes a contract with B that he will pay C a = certain sum=20 of money, B has the legal interest in the contract, and C the beneficial = interest. Hamm. on Part. 6, 7, 25 2 Bulst. 70.

BENEFICIARY. This term is frequently used as synonymous with = the=20 technical phrase cestui que trust. (q. v.)

BENEFICIO PRIMO ECCLESIASTICO HABENDO, Eng. eccl. law. A writ = directed=20 from the king to the chancellor, commanding him to bestow the benefice = which=20 shall first fall in the king's gift, above or under a certain value, = upon a=20 particular and certain person.

BENEFICIUM COMPETENTIAE. The right which an insolvent debtor = had,=20 among the Romans, on making session of his property for the benefit of = his=20 creditors, to retain what was required for him to live honestly = according to his=20 condition. 7 Toull. n. 258.

BENEFIT. This word is used in the same sense as gain (q. v.) = and=20 profits. (q. v.) 20 Toull. n. 199.

BENEFIT OF CESSION, Civil law. The release of a debtor from = future=20 imprisonment for his debts, which the law operates in his favor upon the = surrender of his property for the benefit of his, creditors, Poth. = Proced. Civ.=20 5eme part., c. 2, =A71. This was something like a discharge under the = insolvent=20 laws, which releases the person of the debtor, but not the goods he may = acquire=20 afterwards. See Bankrupt; Cessio Bo. Insolvent.

BENEFIT OF CLERGY, English law. An exemption of the punishment = of=20 death which the laws impose on the commission of certain crimes, on the = culprit=20 demanding it. By modern statute's, benefit of clergy was rather a = substitution=20 of a more mild punishment for the punishment of death.

2. It was lately granted, not only to the clergy, as was formerly the = case,=20 but to all persons. The benefit of clergy seems never to have been = extended to=20 the crime of high treason, nor to have embraced misdemeanors inferior to = felony.=20 Vide 1 Chit. Cr. Law, 667 to 668 4 Bl. Com. ch. 28. But this privilege=20 improperly given to the clergy, because they had more learning than = others) is=20 now abolished by stat. 7 Geo. IV. c. 28, s. 6.

3. By the Act of Congress of April 30, 1790, it is provided, =A730, = that the=20 benefit of clergy shall not be used or allowed, upon conviction of any = crime,=20 for which, by any statute of the United States, the punishment is, or = shall be=20 declared to be, death.

BENEFIT OF DISCUSSION, civil law. The right which a surety has = to=20 cause the property of the principal debtor to be applied in satisfaction = of the=20 obligation in the first instance. See Civil Code of Lo. art. 3014 to = 3020, and=20 Discussion.

BENEFIT OF DIVISION. In the civil law, which, in this respect, = has=20 been adopted in Louisiana, although, when there are several sureties, = each one=20 is bound for the whole debt, yet when one of them is sued alone, he has = a right=20 to have the debt apportioned among all the solvent sureties on the same=20 obligation, so that he shall be compelled to pay his own share only. = This is=20 called the benefit of division. Civil Code of Lo. art. 3014 to 3020. See = 2 Bouv.=20 Inst. n. 1414.

BENEFIT OF INVENTORY, civil law. The benefit of inventory is = the=20 privilege which the heir obtains of being liable for the charges and = debts of=20 the succession, only to the value of the effects of the succession, in = causing=20 an inventory of these effects within the time and manner proscribed by = law.=20 Civil Code of Louis. art. 1025. Vide Poth. Traits des Successions, c. 3, = s. 3,=20 a. 2.

BENEVOLENCE, duty. The doing a kind action to another, from = mere good=20 will, without any legal obligation. It is a moral duty only, and it = cannot be=20 enforeed by law. A good wan is benevolent to the poor, but no law can = compel him=20 to be so.

BENEVOLENCE, English law. An aid given by the subjects to the = king=20 under a pretended gratuity, but in realty it was an extortion and=20 imposition.

TO BEQUEATH. To give personal property by will to another.

BEQUEST. A gift by last will or testament; a legacy. (q. v.) = This word=20 is sometimes, though improperly used, as synonymous with devise. There = is,=20 however, a distinction between them. A bequest is applied, more = properly, to a=20 gift by will of a legacy, that is, of personal property; devise is = properly a=20 gift by testament of real property. Vide Devise.

BESAILE or BESAYLE, domestic relations. The grea-grandfather, = proavus.=20 1 Bl. Com. 186. Vide dile.

BEST EVIDENCE. Means the best evideince of which the nature of = the=20 case admits, not the highest or strongest evidence which the nature of = the thing=20 to be proved admits of: e. g. a copy of a deed is not the best evidence; = the=20 deed itself is better. Gilb. Ev. 15; 3 Campb.. 236; 2 Starkey, 473 2 = Campb. 605;=20 1 Esp. 127.

2. The rule requiring the best evidence to be produced, is to be = understood=20 of the best legal evidence. 2 Serg. & R. 34; 3 Bl. Com. 368, note = 10, by=20 Christian. It is relaxed in some cases, as, e. g. where the words or the = act of=20 the opposite party avow the fact to be proved. A tavern keeper's sign = avows his=20 occupation; taking of tithes avows the clerical character; so, = addressing one as=20 The Reverend T. S." 2 Serg. & R. 440 1 Saund. on Plead. & Evid. = 49.

BETROTHMENT. A contract between a man and a woman, by which = they agree=20 that at a future, time they will marry together.

2. The requisites of this contract are 1. That it be reciprocal. 2. = That the=20 parties be able to contract.

3. The contract must be mutual; the Promise of the one must be the=20 consideration for the promise of the other. It must be obligatory on = both=20 parties at the same instant, so that each may have an action upon it, or = it will=20 bind neither. 1 Salk. 24, Carth. 467; 5 Mod. 411; 1 Freem. 95; 3 Keb. = 148; Co.=20 Lit. 79 a, b.

4. The parties must be able to contract. if either be married at the = time of=20 betrothment, the contract is void; but the married party cannot take = advantage=20 of his own wrong, and set up a marriage or previous engageinent, as an = answer to=20 the action for the breach of the contract, because this disability = proceeds from=20 the defendant's own act. Raym. 387 3 Just. 89; I Sid. 112 1 Bl. Com. = 438.

5. The performance of this engagement or completion of the marriage, = must be=20 performed within a reasonable time. Either party may, therefore, call = upon the=20 other to fulfil the engagement, and in case of refusal or neglect to do = so,=20 within a reasonable time after request made, may treat the betrothment = as at an=20 end, and bring action for the breach of the contract. 2 C. & P. = 631.

6. For a breach of the betrothment, without a just cause, an action = on the=20 case may be maintained for the recovery of damages. See Affiance; = Promise of=20 Marriage.

BETTER EQUITY. In England this term has lately been adopted. = In the=20 case of Foster v. Blackston, the master of the rolls said, be could no = where=20 find in the authorities what in terms was a better equity, but on a = reference to=20 all the cases, he considered it might be thus defined: If a prior = incumbrancer=20 did not take a security which effectually protected him against any = subsequent=20 dealing to his prejudice, by the party who had the legal estate, a = second=20 incumbrancer, taking a security which in its nature afforded him that=20 protection, had what might properly be called a better equity. 1 Ch. Pr. = 470,=20 note. Vide 4 Rawle, R. 144 3 Bouv. Inst. n. 2462.

BETTERMENTS. Improvement's made to an estate. It signifies = such=20 improvements as have been made to the estate which render it better than = mere=20 repairs. See 2 Fairf. 482; 9 Shepl. 110; 10 Shepl. 192; 13 Ohio, R. 308; = 10=20 Yerg. Verm. 533; 17 Verm. 109.

BEYOND SEA. This phrase is used in the acts of limitations of = several=20 of the states, in imitation of the phraseology of the English statute of = limitations. In Pennsylvania, the term has been construed to signify out = of the=20 United States. 9 S. & R. 288; 2 Dall. R. 217; 1 Yeates, R. 329. In = Georgia,=20 it is equivalent to without the limits of the state; 3 Wheat. R. 541; = and the=20 same construction prevails in Maryland; 1 Har. & John. 350; 1 Harr. = &=20 M'H. 89; in South Carolina; 2 McCord, Rep. 331; and in Massachusetts. 3 = Mass. R.=20 271; 1 Pick. R. 263. Vide Kirby, R. 299; 3 Bibb. R. 510; 3 Litt. R. 48; = 1 John.=20 Cas. 76. Within the four seas, infra quatuor maria, and beyond the four = seas,=20 extra quatuor maria, in English law books signify within and without the = kingdom=20 of England, or the jurisdiction of the king of England. Co. Lit. 244 a; = 1 Bl.=20 Com. 457.

BIAS. A particular influential power which sways the judgment; = the=20 inclination or propensity of the mind towards a particular object.

2. Justice requires that the judge should have no bias for or against = any=20 individual; and that his mind should be perfectly free to act as the law = requires.

3. There is, however, one kind of bias which the courts suffer to = influence=20 them in their judgments it is a bias favorable to a class of cases, or = persons,=20 as distinguished from an individual case or person. A few examples will = explain=20 this. A bias is felt on account of convenience. 1 Ves. sen. 13, 14; 3 = Atk. 524.=20 It is also felt in favor of the heir at law, as when there is an heir on = one=20 side and a mere volunteer on the other. Willes, R. 570 1 W. Bl. 256; = Amb. R.=20 645; 1 Ball & B. 309 1 Wils. R. 310 3 Atk. 747 Id. 222. On the other = hand,=20 the court leans against double portions for children; M'Clell. R. 356; = 13 Price,=20 R. 599 against double provisions, and double satisfactions; 3 Atk. R. = 421 and=20 against forfeitures. 3 T. R. 172. Vide, generally, 1 Burr. 419 1 Bos. = &=20 Pull. 614; 3 Bos. & Pull. 456 Ves. jr. 648 Jacob, Rep. 115; 1 Turn. = & R.=20 350.

BID, contracts. A bid is an offer to pay a specified price for = an=20 article about to be sold at auction. The bidder has a right to withdraw = his bid=20 at any time before it is accepted, which acceptance is generally = manifested by=20 knocking down the hammer. 3 T. R. 148; Hardin's Rep. 181; Sugd. Vend. = 29;=20 Babington on Auct. 30, 42; or the bid may be withdrawn by implication. 6 = Penn.=20 St. R. 486; 8, Id. 408. Vide 0ffer.

BIDDER, contracts. One who makes an offer to pay a certain = price for=20 an article which is for sale.

2. The term is applied more particularly to a person who offers a = price for=20 goods or other property, while up for sale at an auction. The bidder is = required=20 to act in good faith, and any combination between him and others, to = prevent a=20 fair competition, would avoid the sale made to himself.

3. But there is nothing illegal in two or more persons agreeing = together to=20 purchase a property at sheriff's sale, fixing a certain price which they = are.=20 willing to give, and appointing one of their number to be the bidder. 6 = Watts=20 & Serg. 122.

4. Till the bid is accepted, the bidder may retract it. Vide = articles,=20 Auction and Bid; 3 John. Cas. 29 6 John. R. 194; 8 John. R. 444 1 Fonbl. = Eq. b.=20 1, c. 4, =A74, note (x).

BIENS. A French word, which signifies property. In law, it = means=20 property of every description, except estates of freehold and = inheritance.=20 Dane's Ab. c. 133, a, 3 Com. Dig. h. t.; Co. Litt. 118, b; Sugd. Vend. = 495.

2. In the French law, this term includes all kinds of property, real = and=20 personal. Biens are divided into biens meubles, movable or personal = property;=20 and biens immeubles, immovable property or real estate. This distinction = between=20 movable and immovable property, is, however, recognized by them, and = gives rise=20 in the civil, as well as in the common law, to many important = distinctions as to=20 rights and remedies. Story, Confl. of Laws, =A713, note 1.

BIGAMUS, Canon law, Latin. One guilty of bigamy.

BIGAMY, crim. law, domestic relations. The wilful contracting = of a=20 second marriage when the contracting party knows that the first is still = subsisting; or it is the state of a man who has two wives, or of a woman = who has=20 two hushands living at the same time. When the man has more than two = wives, or=20 the woman more than two hushands living at the same time, then the party = is said=20 to have committed polygamy, but the name of bigamy is more frequently = given to=20 this offence in legal proceedings. 1 Russ. on Cr. 187.

2. In England this crime is punishable by the stat. 1 Jac. 1, c. 11, = which=20 makes the offence felony but it exempts from punishment the party whose = hushand=20 or wife shall continue to remain absent for seven years before the = second=20 marriage, without being heard from, and persons who shall have been = legally=20 divorced. The statutory provisions in the U. S. against bigamy or = polygamy, are=20 in general similar to, and copied from the statute of 1 Jac. 1, c. 11, = excepting=20 as to the punishment. The several exceptions to this statute are also = nearly the=20 same in the American statutes, but the punishment of the offence is = different in=20 many of the states. 2 Kent, Com. 69; vide Bac. Ab. h. t.; Com. Dig. = Justices,=20 =A75; Merlin, Repert. mot Bigamie; Code, lib. 9, tit. 9, 1. 18; and lib. = 5, tit.=20 5, 1. 2.

3. According to the canonists, bigamy is three-fold, viz.: (vera,=20 interpretative, et similitudinaria,) real, interpretative and = similitudinary.=20 The first consisted in marrying two wives successively, (virgins they = may be,)=20 or in once marrying a widow; the second consisted, not in a repeated = marriage,=20 but in marrying (v. g. meretricem vel ab alio corruptam) a harlot; the = third=20 arose from two marriages indeed, but the one metaphorical or spiritual, = the=20 other carnal. This last was confined to persons initiated in sacred = orders, or=20 under the vow Of continence. Deferriere's Tract, Juris Canon. tit. xxi. = See also=20 Bac. Abr. h. t.; 6 Decret, 1. 12. Also Marriage.

BILAN. A book in which bankers, merchants and traders write a=20 statement of all they owe and all that is due to them. This term is used = in the=20 French law, and in the state of Louisiana. 5 N. S; 158. A balance sheet. = See 3=20 N. S. 446, 504.

BILATERAL CONTRACT, civil law. A contract in which both the=20 contracting parties are bound to fulfil obligations reciprocally towards = each=20 other; Lec. Elem. =A7781; as a contract of sale, where one becomes bound = to=20 deliver the, thing sold, and the other to pay the price of it. Vide = Contract;=20 Synallagmatic contract.

BILINGUIS, English law. One who uses two tongues or languages. = Formerly a jury, part Englishmen and part foreigners, to give a verdict = between=20 an Englishman and a foreigner. Vide Medietas Linguae, Plowd. 2. It is = abolished=20 in Pennsylvania. Act April 14, 1834, =A7149.

BILL, legislation. An instrument drawn or presented by a = member or=20 committee to a legislative body for its approbation and enactment. After = it has=20 gone through both houses and received the constitutional sanction of the = chief=20 magistrate, where such approbation is requisite, it becomes a law. See = Meigs, R.=20 237.

BILL, chancery practice. A complaint in writing addressed to = the=20 chancellor, containing the names of the parties to the suit, both = complainant=20 and defendant, a statement of the facts on which the complainant relies, = and the=20 allegations which he makes, with an averment that the acts complained of = are=20 contrary to equity , and a prayer for relief and proper process. Its = office in a=20 chancery suit, is the same as a declaration in an action at law, a libel = in a=20 court of admiralty or an allegation in, the spiritual courts.

2. A bill usually consists of nine parts. 1. The address, which must = be to=20 the chancellor, court or judge acting as such. 2. The second part = consists of=20 the names of the plaintiffs and their descriptions; but the description = of the=20 parties in this part of the bill does not, it seems, constitute a = sufficient=20 averment, so as to put that fact in issue. 2. Ves. & Bea. 327. 3. = The third=20 part is called the premises or stating part of the bill, and contains = the=20 plaintiff's case. 4. In the fourth place is a general charge of = confederacy. 5.=20 The fifth part consists of allegations of the defendant's pretences, and = charges=20 in evidence of them. 6. The sixth part contains the clause of = jurisdiction and=20 in averment that the acts complained of are contrary to equity. 7. The = seventh=20 part consists of a prayer that the parties answer the premises, which is = usually=20 termed the interrogatory part. 8. The prayer for relief sought forms the = eighth=20 part. And, 9. The ninth part is a prayer for process. 2 Mad. Ch. 166; = Blake's=20 Ch. P. 35; 1 Mitf. Pl. 41. The facts contained in the bill, as far as = known to=20 the complainant, must, in some cases, be sworn to be true; and such as = are not=20 known to him, he must swear he believes to be true; and it must be = signed by=20 counsel; 2 Madd. Ch. Pr. 167; Story, Eq. Pl. =A726 to 47; and for cases = requiring=20 an affidavit, see, 3 Brow. Chan. Cas. 12, 24, 463; Bunb. 35; 2 Brow. 11 = 1 Fow.=20 Proc. 256 Mitf. Pl. 51; 2 P. Wms. 451; 3 Id. 77; 1 Atk. 450; 3 Id. 17, = 132; 3=20 Atk. 132 Preced. in Ch. 332 Barton's Equity, 48 n. 1, 53 n. 1, 56 n. 1 2 = Brow.=20 Ch. Cas. 281, 319; 4 Id. 480

3. Bills may be divided into three classes, namely: 1. Original = bills. 2.=20 Bills not original. 3. Bills in the nature of original bills.

4. - 1. An original bill is one which prays the decree of the court, = touching=20 some right claimed by the person exhibiting the bill, in opposition to = some=20 right claimed by the person against whom the bill is exhibited. Hinde, = 19; Coop.=20 Eq. Pl. 43. Original bills always relate to some matter not before = litigated in=20 the court by the same persons, and standing in the same interests. Mitf. = Eq. Pl.=20 by Jeremy, 34; Story, Eq. Pl., =A716. They may be divided into those = which pray=20 relief, and those which do not pray relief.

5. - 1st. Original bills praying relief are of three kinds. First. = Bills=20 Praying the decree or order of the court, touching some right claimed by = the=20 party exhibiting the bill, in opposition to some right, real or = supposed,=20 claimed by the party against whom the bill is exhibited, or touching = some wrong=20 done in violation of the plaintiff's right. Mitf. Eq. Pl. 32.

6. - Secondly. A bill of interpleader, is one in which the person = exhibiting=20 it claims no right in opposition to the rights claimed by the person = against=20 whom the bill is exhibited, but prays the decree of the court touching = the=20 rights of those persons, for the safety of the person exhibiting the = bill.=20 Hinde, 20; Coop. Eq. Pl. 43; Mitf. Pl. 32. The Practical Register = defines it to=20 be a bill exhibited by a third person, who, not knowing to whom he ought = of=20 right to render a debt or duty, or pay his rent, fears he may be hurt by = some of=20 the claimants, and therefore prays be may interplead, so that the court = may=20 judge to whom the thing belongs, and he be thereby safe on the payment. = Pr. Reg.=20 78; Harr. Ch. Pr. 45; Edw. Inj. 393; 2 Paige, 199 Id. 570; 6 John. Ch. = R.=20 445.

7. The interpleader has been compared to the intervention (q. v.) of = the=20 civil law. Gilb. For. Rom. 47. But there is a striking difference = between them.=20 The tertius in our interpleader in equity, professes to have no interest = in the=20 subject, and calls upon the parties who allege they have, to come = forward and=20 discuss their claims: the tertius of the civil law, on the other hand, = asserts a=20 right himself in the 'Subject, which two persons are at the time = actually=20 contesting, and insists upon his right to join in the discussion. A bill = of=20 interpleader may be filed, though the party has not been sued at law, or = has=20 been sued by one only of the conflicting claimants, or though the claim = of one=20 of the defendants is actionable at law, and the other in equity. 6 = Johns. Chan.=20 R. 445. The requisites of a bill of this kind are, 1. It must admit the = want of=20 interest in the plaintiff in the subject matter of dispute. 2. The = plaintiff=20 must annex an affidavit that there is no collusion between him and = either of the=20 parties. 3. The bill must contain an offer to bring the money into = court, when=20 there is any due; the want of which is a ground of demurrer, unless the = money=20 has actually been paid into court. Mitf. Eq. Pl. 49; Coop. Eq. Pl. 49; = Barton,=20 Suit in Eq. 47, note 1. 4. The plaintiff should state his own rights, = and=20 thereby negative any interest in the thing in controversy; and also = should state=20 the several claims of the opposite parties; a neglect on this subject is = good=20 cause of demurrer. Mitf. Eq. Pl. by Jeremy, 142; 2 Story on Eq. =A7821; = Story, Eq.=20 Pl. 292. 5. The bill should also show that there are persons in esse = capable of=20 interpleading, and setting up opposite claims. Coop. Eq. Pl. 46; 1 Mont. = Eq. Pl.=20 234; Story, Eq. Pl. =A7295; Story on Eq. =A7821; 1 Ves. 248. 6. The bill = should pray=20 that the defendants set forth their several titles, and interplead, = settle, and=20 adjust their demands between themselves. The bill also generally prays = an=20 injunction to restrain the proceedings of the claimants, or either of = them, at=20 law; and, in this case, the bill should offer to bring the money into = court and=20 the court will not in general act upon this part of the prayer, unless = the money=20 be actually brought into court. 4 Paige's R. 384 6 John. Ch. R. 445.

8. Thirdly. A bill of certiorari, is one praying the writ of = certiorari to=20 remove a cause from an inferior court of equity. Coop. El q. 44. The = requisites=20 of this bill are that it state, 1st. the proceedings in the inferior = court; 2d.=20 the incompetency of such court, by suggesting that the cause is out of = its=20 jurisdiction; or that the witnesses live out of its jurisdiction; or are = not=20 able, by age or infirmity, or the distance of the place, to follow the = suit=20 there or that, for some other cause, justice is not likely to be done-, = 3d. the=20 bill must pray a writ of certiorari, to certify and remove the record = and the=20 cause to the superior court. Wyatt, Pr. Reg. 82; Harr. Ch. Pr. 49; = Story, Eq.=20 Pl. =A7298. This bill is seldom used in the United States.

9. - 2d. Original bills not praying relief are of two kinds. First,. = Bills to=20 secure evidence, which are bills to perpetuate the testimony of = witnesses or=20 bills to examine witnesses de bene esse. These will be separately=20 considered.

10. - 1. A bill to perpetuate the testimony of witnesses, is one = which prays=20 leave to examine them, and states that the witnesses are old, infirm, or = sick,=20 or going beyond the jurisdiction of the court, whereby the party is in = danger of=20 losing the benefit of their testimony. Hinde, 20. It does not pray for = relief.=20 Coop. Eq. Pl. 44.

11. In order to maintain such a bill, it is requisite to state on its = face=20 all the material facts to support the jurisdiction. It must state, 1. = the=20 subject-matter toucbing which the plaintiff is desirous of giving = evidence. Rep.=20 Temp. Finch, 391; 4 Madd. R. 8, 10. 2. It must show that the plaintiff = has some=20 interest in the subject-matter, which may be endangered if the testimony = in=20 support of it be lost; and a mere expectancy, however strong, is not = sufficient.=20 6 Ves. 260 1 Vern. 105; 15 Ves. 136; Mitf. Eq. Pl. by Jeremy, 51 Coop. = Eq. Pl.,=20 52. 3. It must state that the defendant has, or pretends to have, or = that he=20 claims an interest to contest the title of the plaintiff in the = subject-matter=20 of the proposed testimony. Coop. Pl. 56; Story, Eq. Pl. =A7302. 4. It = must exhibit=20 some ground of necessity for perpetuating the evidence. Story, Eq. Pl. = =A7303=20 Mitf. Eq. Pl. by Jeremy, 52, 148 and note y; Coop. Eq. Pl. 53. 5. The = right of=20 which the bill is brought to perpetuate the evidence or testimony, = should be=20 described with reasonable certainty in the bill, so as to point the = proper=20 interrogations on both sides to the true merits of the controversy. 1 = Vern. 312;=20 Coop. Eq. Pl. 56. 6. It should pray leave to examine the witnesses = touching the=20 matter stated, to the end that their testimony maybe preserved and = perpetuated.=20 Mitf. Pl 52. A bill to perpetuate testimony differs from a bill to take=20 testimony de bene esse, in this, that the latter is sustainable only = when there=20 is a suit already depending, while the former can be maintained only = when no=20 present suit can be brought at law by the party seeking the aid of a = court to=20 try his right. Story, Eq. Pl. =A7307. The canonists had a similar rule. = According=20 to the canon law, witnesses could be examined before any action was = commenced,=20 for fear that their evidence might be lost. x, cap. 5 Boehmer, n. 5 8 = Toull. n.=20 23.

12. - 2. Bill to take testimony de bene esse. This bill, the name of = which is=20 sufficiently descriptive of its object, is frequently confounded with a = bill to=20 perpetuate testimony; but although it bears a close analogy to it, ,it = is very=20 different. Bills to perpetuate testimony can be maintained only, when no = present=20 suit can be maintained at law by the party seeking the aid of the court = to try=20 his right; whereas bills to take testimony de bene esse, are sustainable = only in=20 aid of a suit already depending. 1 Sim. & Stu. 83. The latter may be = brought=20 by a person who is in possession, or out of possession; and whether he = be=20 plaintiff or defendant in the action at law. Story, Eq Pl. =A7307 and = 303, note;=20 Story on Eq. 1813, note 3. In many respects the rules which regulate the = framing=20 of bills to perpetuate testimony, are applicable to bills to take = testimony ae=20 bene esse.

13. - Secondly. A bill of discovery, emphatically so called, is one = which=20 prays for the discovery of facts resting within the knowledge of the = person=20 against whom the bill is exhibited, or of deeds, writings, or other = things in=20 his custody or power. Hinde, 20; Blake's Ch. Pr. 37. Every bill, except = the bill=20 of certiorari, may in truth, be considered a bill of discovery, for = every bill=20 seeks a disclosure of circumstances relative to the plaintiff's case; = but that=20 usually and emphatically distinguished by this appellation is a bill for = the=20 discovery of facts, resting in the knowledge of the defendant, or of = deeds or=20 writings, or other things in his custody or power, and seeking no relief = in=20 consequence of the discovery.

14. This bill is commonly used in aid of the jurisdiction of some = other court=20 as to enable the plaintiff Ito prosecute or defend an action at law. = Mitf. Pl.=20 52. "The plaintiff, in this species of bill, must be entitled to the = discovery=20 he seeks, and shall only have a discovery of what is necessary for his = own=20 title, as of deeds he claims under, and not to pry into that of the = defendant. 2=20 Ves. 445. See Blake's Ch. Pr. 45 Mitf. Pl. 52 Coop. Eq. Pl. 58 1 Madd. = Ch. Pr.=20 196 Hare on Disc. passim Wagr. on Disc. passim.

15. The action ad exhibendum, in the Roman law, was not unlike a bill = of=20 discovery. Its object was to force the party against whom it was = instituted, to=20 exhibit a thing or a title in his power. It was always preparatory to = another,=20 which was always a real action in the sense of the word in the Roman = law. See=20 Action ad exhibendum; Merlin, Questions de Droit, tome i. 84.

16. - II . Bills not original. These are either in addition to, or a=20 continuance of an original bill, or both. Mitf. c. 1, s . 2; Story, Eq. = Pl.=20 =A7388; .4 Bouv. Inst. n. 4100.

17. - 1st. Of the first class are, 1. A supplemental bill. This bill = is=20 occasioned by some defect in a suit already instituted, whereby the = parties=20 cannot obtain complete justice, to which otherwise the case by their = bill would=20 have entitled them. It is used for the purpose of supplying some = irregularity=20 discovered in the formation of the original bill, or some of the = proceedings=20 there upon; or some defect in a suit, arising from events happening = since the=20 points in the original were at issue, which give an interest = to=9820persons not=20 parties to the suit. Blake's Ch. Pr. 50. See 3 Johns. Ch. R. 423.

18. It is proper to consider more minutely 1. in what cases such a = bill may=20 be filed; 2. its particular requisites.

19.- 1. A supplemental bill may be filed, 1st. whenever the = imperfection in=20 the original bill arises from the omission of some material fact, which = existed=20 before the filing of the bill, but the time has passed in which it can = be=20 introduced into the bill by amendment,, Mitf. Eq. Pl. 55, 61, 325 but = leave of=20 court must be obtained, before a bill which seeks to change the original = structure of the bill, and to introduce a new and different case, can be = filed.=20 2d. When a party necessary to the proceedings has been omitted, and = cannot be=20 admitted by an amendment. Mitf. Eq. Pl. 61 6 Madd. R. 369; 4 John. Ch. = R. 605.=20 3d. When, after the court has decided upon the suit as framed, it = appears=20 necessary to bring some other matter before the court to obtain the full = effect=20 of the decision; or before a decision has been obtained, but after the = parties=20 are at issue upon the points in the original bill, and witnesses have = been=20 examined, (in which case, an amendment is not in general permitted,) = some other=20 point appears necessary to be made, or some additional discovery is = found=20 requisite. Mitf. Eq. Pl. by Jeremy, 55; Coop Eq. Pl. 73; 3 Atk. R. 110; = 12=20 Paige, R. 200. 4th. When new events or new matters have occurred since = the=20 filing of the bill; Coop. Eq. Pl. 74; these events or matters, however, = are=20 confined to such as refer to and support the rights and interests = already=20 mentioned in the bill. Story, Eq. Pl. =A7336.

20. - 2. The supplemental bill must state the original bill, and the=20 proceedings thereon and when it is occasioned by an event which has = occurred=20 subsequently to the original bill, it must state that event, and the = consequent=20 alteration with regard to the parties. In general, the supplemental bill = must=20 pray that all defendants appear and answer the charges it contains. = Mitf. Eq.=20 Pl. by Jeremy, 75 Story, Eq. Pl. =A7343.

21. - 2. A bill of revivor, which is a continuance of the original = bill, when=20 by death some party to it has become incapable of prosecuting or = defending a=20 suit, or a female plaintiff has by marriage incapacitated herself from = suing=20 alone. Mitf. Pl. 33, 70; 2 Madd. Ch. Pr. 526. See 3 Johns. Ch. R. 60: = Story, Eq.=20 Pl. =A7354, et. seq.

22. - 3. A bill of revivor and supplement. This is a compound of a=20 supple-mental bill and bill of revivor, and not only continues the suit, = which=20 has abated by the death of the plaintiff, or the like, but supplies any = defects=20 in the original bill, arising from subsequent events, so as to entitle = the party=20 to relief on the whole merits of his case. 5 Johns.Ch R. 334; Mitf. Pl. = 32,=20 74.

23. - 2d. Among the second class may be placed, 1. A cross bill. This = is one=20 which is brought by a defendant in a suit against the plaintiff, = respecting the=20 matter in question in that bill. Coop. Eq. Pl. 85 Mitf. Pl. 75.

24. A bill of this kind is usually brought to obtain, either a = necessary=20 discovery, or full relief to all the parties. It frequently happens, and = particularlly if any questions arises between two defendants to a bill, = that the=20 court cannot make a complete decree without a cross bill, or cross bills = to=20 bring every matter in dispute completely before the court, litigated by = the=20 proper parties, and upon proper proofs. In this case it becomes = necessary for=20 some one of the defendants to the original bill to file a bill against = the=20 plaintiff and other defendants in that bill, or some of them, and bring = the=20 litigated point properly before the court.

25. A cross bill should state the original bill, and the proceedings = thereon,=20 and the rights of the party exhibiting the bill which are necessary to = be made=20 the subject of a cross litigation, or the grounds on which he resists = the claims=20 of the plaintiff in the original bill, if that is the object of the new=20 bill.

26. A cross bill may be filed to answer the purpose of a plea puis = darrein=20 continuance at the common law. For example, where, pending a suit, and = after=20 replication and issue joined, the defendant having obtained a release = and=20 attempted to prove it viva voce at the bearing, it was determined that = the=20 release not being in issue in the cause, the court could not try the = facts, or=20 direct a trial at law for that purpose, and that a new bill must be = filed to put=20 the release in issue. Mitf. Pl. 75, 76 Coop. Eq. Pl. 85; 1 Harr. Ch. Pr. = 135.

27. A cross bill must be brought before publication is passed on the = first=20 bill, 1 Johns. Ch. R. 62, and not after, except the plaintiff in the = cross bill=20 go to the hearing on the depositions already published; because of the = danger of=20 perjury and subornation, if the parties should, after publication of the = former=20 depositions, examine witnesses, de novo, to the same matter before = examined=20 into. 7 Johns. Ch. Rep. 250; Nels. Ch. R. 103.

28. - 2. A bill of review. Bills of review are in the nature of writs = of=20 error. They are brought to have decrees of the court reviewed, altered, = or=20 reversed, and there are two sorts of these bills. The first is brought = where the=20 decree has been signed and enrolled and the second, where the decree has = not=20 been signed and enrolled. 1 Ch. Cas. 54; 3 P. Wms. 371. The first of = these is=20 called, by way of preeminence, a bill of review; while the other is=20 distinguished by the appellation of a bill in the nature of a bill of = review, or=20 a supplemental bill iii the nature of a bill of review. Coop. Eq. Pl. = 88; 2=20 Madd. Ch. Pr. 537.

29. A bill of review must be either for error in point of law; 2 = Johns. C. R.=20 488; Coop. Eq. Pl. 89; or for some new matter of fact, relevant to the = case,=20 discovered since publication passed in the cause; and which could not, = with=20 reasonable diligence, have been discovered before. 2 Johns. C. R. 488; = Coop. Eq.=20 Pl. 94. See 3 Johns. R. 124,

30. - 3. Bill to impeach a decree on the ground of fraud. When a = decree has=20 been obtained by fraud, it may be impeached by original bill, without = leave of=20 court. As the principal point in issue, is the fraud in obtaining it, it = must be=20 established before the propriety of the decree can be investigated, and = the=20 fraud must be distinctly stated in the bill. The prayer must necessarily = be=20 varied according to the nature of the fraud used, and the extent of its=20 operation in obtaining an improper decision of the court. When the = decree to set=20 aside a fraudulent decree has been obtained, the court will restore the = parties=20 to their former situation, whatever their rights may be. Mitf. Eq. Pl. = 84; Sto.=20 Eq. Pl. =A7426.

>31. - 4. Bill to suspend a decree. The operation of a decree may = be=20 suspended under special circumstances, or avoided by matter subsequent = to the=20 decrees upon a new bill for that purpose. See 1 Ch. Cas. 3, 61 2 Ch . = Cal 8=20 Mitf. Eq. Pl. 85 , 86.

32. - 5. Bill to carry a decree into execution. This is one which is = filed=20 when from the neglect of parties, or some other cause, it may become = impossible=20 to carry a decree into execution without the further decree of the = court. Hinde,=20 68; 1 Harr. Ch. 148.

33. - 6. Bills partaking of the qualities of some one or more of = other bills.=20 These are,

34. First. Bill in the nature of a bill of revivor. A bill in the = nature of a=20 bill of revivor, is one which is filed when the death of a party, whose = interest=20 is not determined by his death, is attended with such a transmission of = his=20 interest, that the title to it, as well as the person entitled, may be = litigated=20 in the court of chancery, as in the case of a devise of real estate, the = suit is=20 not permitted to be continued by bill of revivor. 1 Ch. Cas. 123; Id. = 174; 3 Ch.=20 Rep. 39; Mosely, R. 44. In such cases an original bill, upon which the = title may=20 be litigated, must be filed, and this bill will have so far the effect = of a bill=20 of revivor, that if the, title of the representative by the act of the = deceased=20 party is established, the same benefit may be had of the proceedings = upon the=20 former bill, as if the suit had been continued by bill of revivor. 1 = Vern. 427;=20 2 Vern. 548 Id. 672; 2 Bro. P. C. 529; 1 Eq. Cas. Ab. 83; Mitf. Pl. 66, = 67.

35. Secondly. Bill in the nature. of a supplemental bill. An original = bill in=20 the nature of a supplemental bill, is one filed when the interest of the = plaintiff or defendant, suing or defending, wholly determines, and the = same=20 property becomes vested in another person not claiming under him. Hinde, = 71;=20 Blake's Ch. Pr. 38. The principal difference between this and a = supplemental=20 bill, seems to be, that a supplemental bill is applicable to such cases = only,=20 where the same parties or the same interests remain before the court; = whereas,=20 an original bill in the nature of a supplemental bill, is properly = applicable=20 where new parties, with new interests, arising from events occurring = since the=20 institution of the suit, are brought before the court. Coop. Eq. Pl. 75; = Story,=20 Eq. Pl. =A7345.

36. Thirdly. Bill in the nature of a bill of review. A bill in the = nature of=20 a bill of review, is one brought by a person not bound by a decree, = praying that=20 the same may be examined and reversed; as where a decree is made against = a=20 person who has no interest at all in the matter in dispute, or had not = an=20 interest sufficient to render the decree against him binding upon some = person=20 claiming after him. Relief may be obtained against error in the decree, = by a=20 bill in the nature of a bill of review. This bill in its frame resembles = a bill=20 of review, except that instead of praying that the former decree may be = reviewed=20 and reversed, it prays that the cause may be heard with respect to the = new=20 matter made the subject of the supplemental bill, at the same time that = it is=20 reheard upon the original bill; and that the plaintiff may have such = relief as=20 the nature of the case made by the supplemental bill may require. 1 = Harr. Ch. P.=20 145.

37. There are also bills which derive their names from the object = which the=20 complainant has in view. These will be separately considered.

38.- 1. Bill of foreclosure. A bill of foreclosure is one filed by a=20 mortgagee against the mortgagor, for the purpose of having the estate, = sold,=20 thereby to obtain the sum mortgaged on the premises, with interest and = costs. 1=20 Madd. Ch. Pr. 528. As to the persons who are to be made parties to a = bill of=20 foreclosure, see Story, Eq. Pl. =A7199-202.

39. - 2. Bill of information. A bill of information is a bill = instituted in=20 behalf of the state, or those whose rights are the object of its care = and=20 protection. It is commenced by information exhibited in the name of the=20 attorney-general, and differs from other bills little more than in name. = If the=20 suit immediately concerns the right of the state, the information is = generally=20 exhibited without a relator. If it does not immediately concern those = rights, it=20 is conducted at the instance and under the immediate direction of, some = person=20 whose name is inserted in the information, and is termed the relator; = the=20 officers of the state, in such or the like cases, are not further = concerned than=20 as they are instructed and advised by those whose rights the state is = called=20 upon to protect and establish. Blake's Ch. Pl. 50; see Harr. Ch. Pr. = 151.

40. - 3. Bill to marshal assets. A bill to marshal assets is one = filed in=20 favor of simple contract creditors, and of legatees, devisees, and = heirs, but=20 not in favor of next of kin, to prevent specialty. creditors from = exhausting the=20 personal estate. See Marshaling of Assets.

41. - 4. Bill to marshal securities. A bill to marshal securities is = one=20 which is filed against a party who has two funds by which his debt is = secured,=20 by a person having an interest in only one of those funds. As if A has = two=20 mortgages and B has but one, B has a right to throw A upon the security = which B=20 cannot touch. 2 Atk. 446; see 8 Ves. 388, 395. This last case contains a = luminous exposition in all its bearings. In Pennsylvania, and perhaps in = some=20 other states, the object of this bill is reached by subrogation, (q. v.) = that=20 is, by substituting the creditor, having but one fund to resort to, to = the=20 rights of the other creditor, in respect to the other fund.

42. - 5. Bill for a new trial. This is a bill filed in a court of = equity=20 praying for an injunction after judgment at law, when there is any fact, = which=20 renders it against conscience to execute such judgment, and of which the = injured=20 party could not avail himself in a court of law-, or, if he could, was = prevented=20 by fraud or accident, unmixed with any fault or negligence of himself or = his=20 agents. Mitf. Pl. by Jer. 131; 2 Story Eq. =A7887. Of late years bills = of this=20 description are not countenanced. Id.=98201 John. Ch. R. 432 6 John. Ch. = R.=20 479.

43. - 6. Bill of peace. A bill of peace is one which is filed when a = person=20 has a right which may be controverted by various persons, at different = times,=20 and by different actions. In such a case the court will prevent a = multiplicity=20 of suits, by directing an issue to determine the right, and ultimately = grant an=20 injunction. 1 Madd. Ch. Pr. 166; 1 Harr. Ch. Pr. 104; Blake's Ch. Pr. = 48; 2=20 Story, Eq. Jur. =A7852 to 860; Jeremy on Eq. Jurisd. 343 2 John. Ch. R. = 281; 8=20 Cranch, R. 426.

44. There is another class of cases in which a bill of peace is now=20 ordinarily applied; namely, when the plaintiff, after repeated and = satisfactory=20 trials, has established his right at law, and is still in danger of new = attempts=20 to controvert it. In order to quiet the possession of the plaintiff, and = to=20 suppress future litigation, courts of equity, under such circumstances, = will=20 interfere, and grant a perpetual injunction. 3 John. R. 529; 8 Cranch, = R. 462;=20 Mit. Pl. by Jeremy, 143; 2 John. Ch. R. 281; Ed. on Inj. 356.

45. - 7. Bill quia timet. A bill quia timet, is one which is filed = when a=20 person is entitled to property of a personal nature after another's = death, and=20 has reason to apprehend it may be destroyed by the present possessor; or = when he=20 is apprehensive of being subjected to a future inconvenience, probable = or even=20 possible to happen or be occasioned by the neglect, inadvertance, or = culpability=20 of another. Upon a proper case being made out, the court will, in one = case,=20 secure the property for the use of the party (which is the object of the = bill)=20 by compelling the person in possession of it, to give a proper security = against=20 any subsequent disposition or wilful destruction and in the other case, = they=20 will quiet the party's apprehension of future inconvenience, by removing = the=20 causes which may lead to it. 1 Harr. Ch. Pr. 107; 1 Madd. Ch. Pr. 218: = Blake's=20 Ch. Pr. 37, 47; 2 Story, Eq. Jur. =A7825 to 851. Vide, generally, Bouv. = Inst.=20 Index, h. t.

BILL, merc. law. An account containing the items of goods = sold, or of=20 work done by one person against another. It differs from an account = stated (q.=20 v.) in this, that the latter is a bill approved and sanctioned by the = debtor,=20 whereas a bill is made out by the creditor alone.

BILL OF ADVENTURE, com. law, contracts. A writing signed by a=20 merchant, to testify that the goods shipped on board a certain vessel = belong to=20 another person who is to take the hazard, the subscriber signing only to = oblige=20 himself to account to him, for the proceeds.

BILL OP ATTAINDER, legislation, punishment. An act of the = legislature=20 by which one or more persons are declared to be attainted, and their = property=20 confiscated.

2. The Constitution of the United States declares that no state shall = pass=20 any bill of attainder.

3. During the revolutionary war, bills of attainder, and ox post = facto acts=20 of confiscation, were passed to a wide extent. The evils resulting from = them, in=20 times of more cool reflection, were discovered to have far outweighed = any=20 imagined good. Story on Const. =A71367. Vide Attainder; Bill of Pains = and=20 Penalties.

BILL-BOOK, commerce, accounts. One in in which an account is = kept of=20 promissory notes, bills of exchange, and other bills payable or = receivable: it=20 ought to contain all that a man issues or receives. The book should show = the=20 date of the bill, the term it has to run before it becomes due, the = names of all=20 the parties to it, and the time of its becoming due, together with the = amount=20 for which it was given.

BILL OF CONFORITY. The name of a bill filed by an executor or=20 administrator, who finds the affairs of the deceased so much involved = that he=20 cannot safely administer the estate, except under the direction of a = court of=20 chancery. This bill is filed against the creditors generally, for the = purpose of=20 having all their claims adjusted, and procuring a final decree settling = the=20 order of payment of the assets. 1 Story, Eq. Jur. 440.

BILL 0F COST, practice. A statement of the items which form = the total=20 amount of the costs of a suit or action. This is demandable as a matter = of right=20 before the payment of the costs.

BILL OF CREDIT. It is provided by the Constitution of the = United=20 States, art. 1, s. 10, that no state shall " emit bills of credit, or = make=20 anything but gold and silver coin a tender in payment or debts." Such = bills of=20 credit are declared to mean promissory notes or bills issued exclusively = on the=20 credit of the. state, and for the payment of which the faith of the = state only=20 is pledged. The prohibition, therefore, does not apply to the notes of a = state=20 bank, drawn on the credit of a particular fund set apart for the = purpose. 2=20 M'Cord's R. 12; 2 Pet. R. 818; 11 Pet. R. 257. Bills of credit may be = defined to=20 be paper issued and intended to circulate through the community for its = ordinary=20 purposes, as money redeemable at a future day. 4 Pet. U. S. R. 410; 1 = Kent, Com.=20 407 4 Dall. R. xxiii.; Story, Const. =A7=A7 1362 to 1364 1 Scam. R. 87, = 526.

2. This phrase is used in another sense among merchants it is a = letter sent=20 by an agent or other person to a merchant, desiring him to give credit = to the=20 bearer for goods or money. Com. Dig. Merchant, F 3; 5 Sm. & Marsh. = 491; R.=20 M. Charlt. 151; 4 Pike, R. 44; 3 Burr. Rep. 1667.

BILL OP DEBT, BILL OBLIGATORY, contracts. When a merchant by = his=20 writing acknowledges himself in debt to another, in a certain sum to be = paid on=20 a certain day and subscribes it at a day and place certain. It may be = under seal=20 or not. Com. Dig. Merchant, F 2.

BILL OF EXCEPTION, practice. The statement in writing, of the=20 objection made by a party in a cause, to the decision of the court on a = point of=20 law, which, in confirmation of its accuracy, is signed and sealed by the = judge,=20 or court who made the decision. The object of the bill of exceptions is = to put=20 the question of law on record, for the information of the court of error = having=20 cognizance of such cause.

2. The bill of exception is authorized by the statute of Westminster = 2, 13=20 Ed. I. c. 31, the principles of which have, been adopted in all the = states of=20 the Union. It is thereby enacted, "when one impleaded before any of the=20 justices, alleges an exception praying they will allow it, and if they = will not,=20 if he that alleges the exception writes the same, and requires 'that the = justices will put their seals, the justices shall do so, and if one will = not,=20 another ,shall; and if, upon complaint made of the justice, the king = cause the=20 record to come before him, and the exception be not found in the roll, = and the=20 plaintiff show the written exception, with the seal of the justices = thereto put,=20 the justice shall be commande to appear at a certain day, either to = confess or=20 deny his seal, and if he cannot deny his seal, they shall proceed to = judgment=20 according to the exception, as it ought to be allowed or disallowed." = The=20 statute extends to both plaintiff and defendant. Vide the, form of = confessing a=20 bill of exceptions, Burr. 1692. And for precedents see Bull. N. P. 317;=20 Brownlow's Entries; Latine Redivio, 129; Trials per pais, 222, 3; 4 = Yeates, 317,=20 18; 2 Yeates, 295, 6. 485, 6; 1 Morgan's Vade Mecum, 471-5. Bills of = exception=20 differ materially from special verdicts; 2 Bin. 92; and from the = opinions of the=20 court filed in the cause. 10 S. & R. 114, 15.

3. Here will be considered, 1 the cases in which a bill of exceptions = may be=20 had; 2. the time of making the exception; 3. the form of the bill; 4. = the effect=20 of the bill.

4. - 1. In general a bill of exception can be had only in a civil = case. When=20 in the course of the trial of a cause, the judge, either in his charge = to the=20 jury, or in deciding an interlocutory question, mistakes the law, or is = supposed=20 by the counsel on either. side, to have mistaken the law, the counsel = against=20 whom the decision is made may tender an exception to his opinion, and = require=20 him to seal a bill of exceptions. 3 Bl. Com. 372. See Salk. 284, pl. 16 = 7 Serg.=20 & Rawle, 178; 10 Id. 114, 115 Whart. Dig. Error, D, E 1 Cowen, 622; = 2=20 Caines, 168; 2 Cowen, 479 5, Cowen, 243 3 Cranch, 298 4 Cranch, 62; 6 = Cranch,=20 226; 17 Johns. R. 218; 3 Wend. 418 9 Wend. 674. In criminal cases, the = judges,=20 it seems, are not required to seal a bill of exceptions. 1 Chit. Cr. = Law, 622;=20 13 John. R. 90; 1 Virg. Cas. 264; 2 Watts, R. 285; 2 Sumn. R. 19. In New = York,=20 it is provided by statute, that on the trial of any indictment, = exceptions to=20 any decision of the court may be made by the defendant, in the same = cases and=20 manner provided by law in civil cases and a bill thereof shall be = settled,=20 signed and sealed, and filed with the clerk of the court. But such bill = of=20 exception shall not stay or delay the rendering of judgment, except in = some=20 specified cases. Grah. Pr. 768, note.. Statutory provisions have been = made in=20 several other states authorizing the taking of exceptions in criminal = cases. 2=20 Virg. Cas. 60 and note 14 Pick. R. 370; 4 Ham. R. 348; 6 Ham. R. 16 7 = Ham. R.=20 214; 1 Leigh, R. 598; 14 Wend. 546. See also 1 Halst. R. 405; 2 Penn. R. = 637.

5. - 2. The bill of exceptions must be tendered at the time the = decision=20 complained of is made or if the exception be to the charge of the court, = it must=20 be made before the jury have given their verdict. 8 S. & R. 216 4 = Dall. 249;=20 S. C. 1 Binn. 38; 6 John. 279; 1 John. 312; 5 Watts, R. 69; 10 John. R. = 312; 5=20 Monr. R. 177; 7 Wend. R. 34; 7 S. & R. 219; 11 S. & R. 267 4 = Pet. R.=20 102; Ala. R. 66; 1 Monr. 215 11 Pet. R. 185; 6 Cowen, R. 189. In = practice,=20 however, the, point is merely noted, at the time, and the bill is = afterwards=20 settled. 8 S. & R. 216; 11 S. & R. 270; Trials per pais, 467; = Salk. 288;=20 Sir T. Ray. 405 Bull. N. P. 315-16; Jacob's Law Dict. They may be sealed = by the=20 judge after the record has been removed by a writ of error, and after = the=20 expiration of his office. Fitz. N. B. 21 N, note.

6. - 3. The bill of exception must be signed by the judge who tried = the=20 cause; which is to be done upon notice of the time and place, when and = where it=20 is to be done. 3 Cowen, 32; 8 Cowen, 766; Bull. N. P. 316 3 Bl. Com. = 372. When=20 the bill of exception is sealed, both parties are concluded by lit. 3 = Dall. 38;=20 Bull. N. P. 316.

7.- 4. The bill of exceptions, being part of the record, is evidence = between=20 the parties, as to the facts therein stated. 3 Burr. 1765. No notice can = be=20 taken of objections or exceptions not appearing on the bill. 8 East, = 280; 3=20 Dall. 38, 422, n.; 2 Binn. 168. Vide, generally, Dunlap's Pr.; Grah. = Pr.; Tidd's=20 Pr.; Chit. Pr.; Penna. Pr.; Archibold's Pr. Sellon's Pr.; in their = several=20 indexes, h. t.; Steph. Pl. 111; Bac. Ab. h. t.; 1 Phil. Ev. 214; 12 Vin. = Ab.=20 262; Code of Pract. of Louisiana, art. 487, 8, 9; 6 Watts & Serg, = 386, 397;=20 3 Bouv. Inst. n. 3228-32.

BILL OF EXCHANGE, contracts. A bill of exchange is defined to = be an=20 open letter of request from, and order by, one person on another, to pay = a sum=20 of money therein mentioned to a third person, on demand, or at a future = time=20 therein specified. 2 Bl. Com. 466; Bayl. on Bills, 1; Chit. Bills, 1; 1 = H. Bl.=20 586; 1 B. & P. 291, 654; Selw. N. P. 285. Leigh's N. P. 335; Byles = on Bills,=20 1; 1 Bouv. Inst. n. 895.

2. The subject will be considered with reference, 1 . to the parties = to a=20 bill; 2. the form; 3. their different kinds 4. the indorsement and = transfer; 5.=20 the acceptance 6. the protest.

3. - =A71. The parties to a bill of exchange are the drawer, (q. v.) = or he who=20 makes the order; the drawee, (q. v.) or the person to whom it is = addressed; the=20 acceptor, (q. v.) or he who accepts -the bill; the payee, (q. v.) or the = party=20 to whom, or in whose favor the bill is made. The indorser, (q. v.) is he = who=20 writes his name on the back of a bill; the indorsee, (q. v.) is one to = whom a=20 bill is transferred by indorsement; and the holder, (q. v.) is in = general any=20 one of the parties who is in possession of the bill, and entitled to = receive the=20 money therein mentioned.

4. Some of the parties are sometimes fictitious persons. When a bill = is made=20 payable to a fictitious person, and indorsed in the name of the = fictitious=20 payee, it is in effect a bill to bearer, and a bona fide holder, = ignorant of=20 that fact, may recover on it, against all prior parties, who were privy = to the=20 transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 1 Camp. 130; 19 = Ves. 311.=20 In a case where the drawer and payee were fictitious persons, the = acceptor was=20 held liable to a bona fide holder. 10 B. & C. 468; S. C. 11 E. C. L. = R. 116.=20 Vide, as to parties to a bill, Chit. Bills, 15 to 76, (ed. of 1836.)

5. - =A72. The form of the bill. 1. The general requisites of a bill = of=20 exchange, are, 1st. that it be in writing. R. T. Hardw. 2; 2 Stra. 955; = 1=20 Pardess. 344-5.

6.- 2d. That it be for the payment of money, and not for the payment = of=20 merchandise. 5 T. R. 485; 3 Wils. 213; 2 Bla. Rep. 782; 1 Burr. 325; 1 = Dowl.=20 & Ry. N. P. C. 33; 1 Bibb's R. 502; 3 Marsh. (Kty.) R. 184; 6 Cowen, = 108; 1=20 Caines, R. 381; 4 Mass. 245; 10 S. & R. 64; 14 Pet. R. 293; 1, = M'Cord, 115;=20 2 Nott & M'Cord, 519; 9 Watts, R. 102. But see 9 John. R. 120; and = 19 John.=20 R. 144, where it was held that a note payable in bank bills was a good=20 negotiable note.

7. - 3d. That the money be payable at all events, not depending on = any=20 contingency, either with regard to the fund out of which payment is to = be made,=20 or the parties by or to whom payment is to be made. 8 Mod. 363; 4 Vin. = Ab. 240,=20 pl. 16; 1 Burr. 323; 4 Dougl. 9; 4 Ves. 372; Russ. & Ry. C. C. 193; = 4 Wend.=20 R. 576; 2 Barn. & Ald. 417.

8. - 2. The particular requisites of a bill of exchange. It is proper = here to=20 remark that no particular form or set of words is necessary to be = adopted. An=20 order " to deliver money," or a promise that " A B shall receive money," = or a=20 promise " to be accountable" or " responsible" for it, have been = severally held=20 to be sufficient for a bill or note. 2 Ld. Raym. 1396; 8 Mod, 364.

9. The several parts of a bill of exchange are, 1st. that it be = properly=20 dated as to place

10.- 2d. That it be properly dated as to the time of making. As the = time a=20 bill, becomes due is generally regulated by the time when it was made, = the date=20 of the instrument ought to be clearly expressed. Beawes, pl. 3 1 B . = & C.=20 398; 2 Pardess. n. 333.

11. - 3d. The superscription of the sum for which the bill is payable = is not=20 indispensable, but if it be not mentioned in the bill, the = superscription will=20 aid. the omission. 2 East, P. C. 951.

12. - 4th. The time of payment ought to be expressed in the bill; if = no time=20 be mentioned, it is considered as payable on demand. 7 T. R. 427; 2 = Barn. &=20 C. 157.

13. - 5th. Although it is proper for the drawer to name the place of = payment,=20 either in the body or subscription of the bill, it is not essential; and = it is=20 the common practice for the drawer merely to write the address of the = drawee,=20 without pointing out any, place of payment; in such case the bill is = considered=20 payable, and to be presented at the residence of the drawee, where the = bill was=20 made, or to him personally any where. 2 Pardess. n. 337 10 B. & C. = 4; Moody=20 & M. 381; 4 Car. & Paine, 35. It is at the option of the drawer = whether=20 or not to prescribe a particular place of payment, and make the payment = there=20 part of the contract. Beawes, pl. 8. The drawee, unless restricted by = the=20 drawer, may also fix a place of payment by his acceptance. Chit. Bills, = 172.

14. - 6th. There must be an order or request to pay and that must be = a matter=20 of right, and not of favor. Mood. & M. 171. But it seems that = civility in=20 the terms of request cannot alter the legal effect of the instrument. = "il vous=20 plair a de payer," is, in France, the proper language of a bill. = Pailliet,=20 Manuel de Droit Francais, 841. The word pay is not indispensable, tor = the word=20 deliver is equally operative. Ld. Raym. 1397.

15. - 7th. Foreign bills of exchange consist, generally, of several = parts; a=20 party who has engaged to deliver a foreign bill, is bound to deliver as = many=20 parts as may be requested. 2 Pardess. n. 342. The several parts of a = bill of=20 exchange are called a set; each part should contain a condition that it = shall be=20 paid, provided the others remain unpaid. Id. The whole set make but one=20 bill.

16. - 8th. The bill ought to specify to whom it is to be paid. 2 = Pardess. n.=20 338; 1 H. Bl. 608; Russ. & Ry. C. C. 195. When the name of the payee = is in=20 blank, and the bill has been negotiated by indorsement, the holder may = fill the=20 blank with his own name. 2 M. & S. 90; 4 Camp. 97. It may, however, = be drawn=20 payable to bearer, and then it is assignable by delivery. 3 Burr. = 1526.

17. - 9th. To make a bill negotiable, it must be made payable to = order, or=20 bearer, or there must be other operative and equivlent words of = transfer.=20 Beawes, pl. 3; Selw. N. P. 303, n. 16; Salk. 133. if, however, it is not = intended to make the bill negotiable, these words need not be inserted, = and the=20 instrument will, nevertheless, be valid as a bill of exchange. 6 T. R. = 123; 6=20 Taunt. 328; Russ. & Ry. C. C. 300; 3 Caines' R. 137; 9 John. It. = 217. In=20 France, a bill must be made payable to order. Code de Com. art. 110; 2 = Pardess.=20 n. 339.

18. - 10th. The sum for which the bill is drawn, must be clearly = expressed in=20 the body of it, in writing at length. The sum must be fixed and certain, = and not=20 contingent. 2 Stark. R. 375. And it may be in the money of any country. = Payment=20 of part of the bill, the residue being unpaid, cannot be indorsed. The, = contract=20 is indivisible, and the acceptor would thereby be compelled to make two = payments=20 instead of one. But when part of a bill has been paid the residue may be = assigned, since then it becomes a contract for the residue only. 12 Mod. = 213; 1=20 Salk. 65; Ld. Ray. 360.

19. - 11th. It is usual to insert the words, value received, but it = is.=20 implied that every bill and indorsement has been made for value = received, as=20 much as if it had been expressed in totidem verbis. 3 M. & S. 352; = Bayl. 40,=20 n. 83.

20. - 12th. It is usual, when the drawer of the bill is debtor to the = drawee,=20 to insert in the bill these words: " and put it to my account but when = the=20 drawee, or the person to whom it is directed, is debtor to the drawer, = then he=20 inserts these words : "and put it to your account;" and, sometimes, = where a=20 third person is debtor to the drawee, it may be expressed thus: "and put = it to=20 the account of A B;" Marius, 27;. C, om. Dig. Merchant, F 5; R. T. = Hardw. 1, 2,=20 3; but it is altogether unnecessary to insert any of these words. 1 B. = & C.=20 398; S. C. 8 E. C. L. R. 108.

21. - 13th. When the drawer is desirous to inform the drawee that he = has=20 drawn a bill, he inserts in it the words, "as per advice;" but when he = wishes=20 the bill paid without any advice from him, he writes, "without further = advice."=20 In the former case the drawee is not authorized to pay the bill till he = has=20 received the advice; in the latter he may pay before he has received = advice.

22. - 14th. The drawee must either subscribe the bill, or, it seems, = his name=20 may be simply inserted in the body of the instrument. Beawes, pl. 3; Ld. = Raym.=20 1376 1 Stra. 609.

23. - 15th. The bill being a letter of request from the maker to a = third=20 person, should be addressed to that person by the Christian name and = surname, or=20 by the full style of their firm. 2 Pardess. n. 335 Beawes, pl. 3; Chit. = Bills,=20 186, 7.

24. - 16th. The place of payment should be stated in the bill.

25. - 17th. As a matter of precaution, the drawer of a foreign bin = may, in=20 order to prevent expenses, require the holder to apply to a third = person, named=20 in the bill for that purpose, when the drawee refuses to accept the = bill. This=20 requisition is usually in these words, placed in a corner, under the = drawee's=20 address: " Au besoin chez Messrs. - at -," in other words, ((In case of = need=20 apply to Messrs. at -. "

26. - 18th. The drawer may also add a request or direction, that in = case the=20 bill should not be honored by the drawee, it shall be returned without = protest=20 or without expense, by subscribing the words, " retour sans protet," or = " sans=20 frais;" in. this case the omission of the holder to protest, having been = induced=20 by the drawer, he, and perhaps the indorsers, cannot resist the payment = on that=20 account, and thus the expense is avoided. Chit. Bills, 188.

27. - 19th. The drawer may also limit the amount of damages, by = making a=20 memorandum on the bill, that they shall be a definite sum; as, for = example: "In=20 case of non-acceptance or uon-payment, re-exchange and expenses not to, = exceed=20 dollars." Id.

28. - =A73. Bills of, exchange are either foreign or inland. Foreign, = when=20 drawn by a person out of, on another in, the United States, or vice = versa; or by=20 a person in a foreign country, on another person in another foreign = country; or=20 by a person in one state, on another in another of the United States. , = 2 Pet.=20 R. 589 .; 10 Pet. R. 572; 12 Pick. 483 15 Wend. 527; 3 Marsh. (Kty.) R. = 488 1.=20 Rep. Const.; Ct. 100 4 Leigh's R. 37 4 Wash. C. C. Rep. 148; 1 Whart. = Dig. tit.=20 Bills of Exchange, pl. 78. But see 5 John. R. 384, where it is said by = Van Ness,=20 Justice, that a bill drawn in the United States, upon any place within = the=20 United States, is an inland bill.

29. An inland bill is one drawn by a person in a state, on another in = the=20 same state. The principal difference between foreign and inland bills = is, that=20 the former must be protested, and the latter need not. 6 Mod. 29; 2 B. = & A.=20 656; Chit Bills, (ed. of 1836,) p. 14. The English rule requiring = protest and=20 notice of non-acceptance of foreign bills, has been adopted and followed = as the=20 true rule of mercantile law, in the states of Massachusetts, = Connecticut) New=20 York, Maryland, and South Carolina. 3 Mass. Rep. 557; 1 Day's R. 11; 3 = John.=20 Rep. 202; 4 John. R. 144; 1 Bay's Rep. 468; 1 Harr. & John. 187. But = the=20 supreme court of the United States, in Brown v. Berry, 3 Dall. R. 365, = and in=20 Clark v. Russel, cited in 6 Serg. & Rawle, 358, held, that in an = action on a=20 foreign bill of exchange, after a protest for non-payment, protest for=20 non-acceptance, or notice of non-acceptance need not be shown, inasmuch = as they=20 were not required by the custom of merchants in this country; and those=20 decisions have been followed in Pennsylvania. 6 Serg. & Rawle, 356. = It=20 becomes a little difficult, therefore, to know what is the true rule of = the=20 law-merchant in the United States, on this point, after such contrary=20 decisions." 3 Kent's Com. 95. As to what will be considered a foreign or = an=20 inland bill, when part of the bill is made in one place and part in = another, see=20 1 M. & S. 87; Gow. R. 56; S. c. 5 E. C. L. R. 460; 8 Taunt., 679; 4 = E. C. L.=20 R. 245; 5 Taunt. 529; 1 E. C. L. R. 179.

30. - =A74. The indorsement. Vide articles Indorsement; Indorser; = Indorsee.

31. - =A75. The acceptance. Vide article, Acceptance.

32. - =A76. The protest. Vide article, Protest. Vide, generally, = Chitty on=20 Bills; Bayley on Bills; Byles on Bills; Marius on Bills; Kyd on Bills;=20 Cunningham on Bills; Pothier, h. t.; Pardess. Index, Lettre de Change; 4 = Vin.=20 Ab. 238; Bac. Ab. Merchant and Merchandise, M.; Com. Digest, Merchant; = Dane's=20 Ab. Index, h. t.; 1 Sup: to Ves. Jr. 86, 514; Smith on Mer. Law, Book 3, = c. 1;=20 Bouv. Inst. Index,.h. t.

BILL OF GROSS ADVENTURE. A phrase used in French maritime law; = it=20 comprehends every instrument of writing which contains a contract of = bottomry,=20 respondentia, and every species of maritime loan. We have no word of = similar=20 import. Hall on Mar. Loans, 182, n. See Bottomry; Gross adventure;=20 Respondentia.

BILL OF HEALTH; commercial law. A certificate, properly = authenticated,=20 that a certain ship or vessel therein named, comes from a place where no = contagious distempers prevail, and that none of the crew at the time of = her=20 departure were infected with any such distemper.

2. It is generally found on board of ships coming from the Levant, or = from=20 the coast of Barbary, where the plague so frequently prevails. 1 Marsh. = on Ins.=20 408. The bill of health is necessary whenever a ship sails from a = suspected=20 port; or when it is required at the port of destination. Holt's R. 167; = 1 Bell's=20 Com. 553, 5th ed.

3. In Scotland the name of bill of health, has been given to an=20 application.made by an imprisoned debtor for relief under the Act of = Sederunt.=20 When the want of health of the prisoner requires it, the prisoner is = indulged,=20 under proper regulations, with such a degree of liberty as may be = necessary to=20 restore him. 2 Bell's Com. 549, 5th ed.

BILL OF INDICTMENT. A written accusation of one or more = persons, of a=20 crime or misdemeanor, lawfully presented to a grand jury, convoked, to = consider=20 whether there is sufficient evidence of the charge contained therein to = put the=20 accused on trial. It is returned to the court with an indorsement of = true bill=20 (q. v.) when the grand jury are satisfied that the accused ought to be = tried; or=20 ignoramus, when they are ignorant of any just cause to put the accused = upon hi.%=20 trial.

BILL, contracts. A bill or obligation, (which are the same = thing,=20 except that in English it iis commonly called bill, but in Latin = obligatio,=20 obligation,) is a deed whereby the obligor acknowledges himself to owe = unto the=20 obligee a certain sum of money or some other thing, in which, besides = the names=20 of the parties, are to be considered the sum or thing due, the time, = place, and=20 manner of payment or delivery thereof. It may be indented, or poll, and = with or=20 without a penalty. West's Symboleography s. 100, 101, and the various = forms=20 there given.

BILL OF LADING, contracts and commercial law. A memorandum or=20 acknowledgment in writing, signed by the captain or master of a ship or = other=20 vessel, that he has received in good order, on board of his ship or = vessel,=20 therein named, at the place therein mentioned, certain goods therein = specified,=20 which he promises to deliver in like good order, (the dangers of the = seas=20 excepted,) at the place therein appointed for the delivery of the same, = to the=20 consignee therein named or to his assigns, he or they paying freight for = the=20 same. 1 T. R. 745; Bac. Abr. Merchant L Com. Dig. Merchant E 8. b; = Abbott on=20 Ship. 216 1 Marsh. on Ins. 407; Code de Com. art. 281. Or it is the = written=20 evidence of a contract for the carriage and delivery of goods sent by = sea for a=20 certain freight. Per Lord Loughborougb, 1 H. Bl. 359.

2. A bill of lading ought to contain the name of the consignor; the = name of=20 the consignee the name of the master of the vessel; the name of the = vessel; the=20 place of departure and destination; the price of the freight; and in the = margin,=20 the marks and numbers of the things shipped. Code de Com. art. 281; = Jacobsen's=20 Sea Laws.

3. It is usually made in three original's, or parts. One of them is = commonly=20 sent to the consignee on board with the goods; another is sent to him by = mail or=20 some other conveyance; and the third is retained by the merch ant or = shipper.=20 The master should also take care to have another part for his own use. = Abbotton=20 Ship. 217.

4. The bill of lading is assignable, and the assignee is entitled to = the=20 goods, subject, however, to the shipper's right, in some cases, of = stoppage in=20 transitu. See In transitu; Stoppage in transitu. Abbott on Shipping. = 331; Bac.=20 Ab. Merchant, L; 1 Bell's Com. 542, 5th ed.

BILLS OF MORTALITY. Accounts of births and deaths which have = occurred=20 in a certain district, during a definite space of time.

BILL OBLIGATORY. An instrument in common use and too well = known to be=20 misunderstood. It is a bond without condition, sometimes called a single = bill,=20 and differs in nothing from a promissory note, but the seal which is = affixed to=20 it. 2 Serg. & Rawle, 115. See Read's Pleaders' Assistant, 256, for a = declaration setting forth such a bill. Also West's Symboleography, s. = 100, 101,=20 for the forms both with and without a penalty.

BILL OF PAINS AND PENALTIES. A special act of the legislature = which=20 inflicts a punishment, less than death, upon persons supposed to be = guilty of=20 high offences, Such as; treason and felony, without any conviction in = the=20 ordinary course of judicial proceedings. 2 Wood. Law Lect. 625. It = differs from=20 a bill of attainder in this, that the punishment inflicted by the latter = is=20 death.

2. The Constitution of the United States Provides that "no bill of = attainder=20 shall be passed." It has been judicially said by the supreme court of = the United=20 States, that " a bill of attainder may affect the life of an individual, = or=20 i-nay confiscate his property, or both." 6 Cranch, R. 138. in the sense = of the=20 constitution, then, it seems that bills of attainder include bills of = pains and=20 penalties. Story, Const. =A71338. Vide Attainder; Bills of = Attainder.

BILL OP PARCELS, merc. law. An account containing in detail = the names=20 of the items which compose a parcel or package of goods; it is usually=20 transmitted with the goods to the purchaser, in order that if any = mistake have=20 been made, it may be corrected.

BILL OF PARTICULARS, practice. A detailed informal statement = of a=20 plaintiff is cause of action, or of the defendants's set-off.

2. In all actions in which the plaintiff declares generally, without=20 specifying his cause of action, a judge upon application will order him = to give=20 the defendant a bill of the particulars, and in the meantime stay, = proceedings.=20 3 John. R. 248. And when the defendant gives notice or pleads a set-off, = he will=20 be required to give a bill of the particulars of his set-off, on failure = of=20 which he will be precluded from giving any evidence in support of it at = the=20 trial. The object in both cases is to prevent surprise and procure a = fair trial.=20 1 Phil. Ev. 152; 3 Stark Ev. 1055. The bill of particulars is an account = of the=20 items of the demand, and states in what manner they arose. Mete. & = Perk.=20 Dig. h. t. For forms, see Lee's Dict. of Pr., Particulars of demand.

BILL PENAL, contracts. A written obligation, by which a debtor = acknowledges himself indebted in a certain sum, may one hundred dollars, = and for=20 the payment of the debt binds himself in a larger sum, say two hundred = dollars.=20 Bills penal do not frequently occur in modern practice; bonds, with = conditions,=20 have superseded them. Steph. on Pl. 265, note. See 2 Vent. 198. = Bills-penal are=20 sometimes called bills obligatory. Cro. Car. 515; 2 Vent. 106. But a = bill=20 obligatory is not necessarily a bill penal. Com. Dig. Obligations, = D.

BILL OF PRIVILEGE, Eng. law. A process issued out of the court = against=20 an attorney, who is privileged from arrest, instead of process demanding = bail. 3=20 Bl. Com. 289.

BILL OF PROOF. In the mayor's court, London, the claim made by = a third=20 person to the subject-matter in dispute between two others in a suit = there, is=20 called bill of Proof. It is somewhat similar to an intervention. (q. v.) = 3 Chit.=20 Com. Law, 633; 2 Chit. Pr. 492; 1 Marsh, R. 233.

BILL OF SUFFRANCE, Eng. law. The name of a license granted at = the=20 custom house to a merchant, authorizing him to trade from one English = port to=20 another without paying custom. Cunn. L. D.

BILL OF RIGHTS. English law. A statute passed in the reign of = William=20 and Mary, so called, because it declared the true rights of British = subjects. W.=20 & M. stat. 2, c. 2.

BILL OF SALE, Contracts. An agreement in writing, under seal, = by which=20 a man transfers the right or interest he has in goods and cbattels, to = another.=20 As the law imports a consideration when an agreement is made by deed, a = bill of=20 sale alters the property. Yelv. 196; Cro. Jac. 270 6 Co. 18.

2. The Act of Congress of January 14, 1793, 1 Story, L. U. S. 276, = provides,=20 that when any ship or vessel which shall have been registered pursuant = to that=20 act, or the act thereby partially repealed, shall in whole or in part be = sold or=20 transferred to a citizen of the United States, in every such sale or = transfer,=20 there shall be some instrument or writing in the nature of a bill of = sale, which=20 shall recite at length the certificate of registry; otherwise the said = ship or=20 vessel shall be incapable to be registered anew.

3. In England a distinction is made between a bill of sale for the = transfer=20 of a ship at sea, and one for the conveyance of a ship in the country; = the=20 former is called a grand bill of sale, the latter, simply, a bill of = sale. In=20 this country there does not appear to be such a distinction. 4 Mass. = 661.

4. In general, the maritime law requires that the transfer of a ship = should=20 be evidenced by a bill of sale. 1 Mason, 306. But a contract to sell,=20 accompanied by delivery of possession, is sufficient. 8 Pick. 86 16 = Pick. 401;=20 16 Mass. 336; 7 John. 308. See 4 Mason, 515; 4 John. 54 16 Pet. 215; 2 = Hall, 1;=20 1 Wash. C. C. 226.

BILL OF SIGHT, English commercial law. When a merchant i's = ignorant of=20 the real quantities or qualities of any goods consigned to him, so that = he is=20 unable to make a perfect entry of them, he is required to acquaint the = collector=20 or comptroller of the circumstances and such officer is authorized, upon = the=20 importer or his agent making oath that he cannot, for want of full = information,=20 make a perfect entry, to receive an entry by bill of sight, for the = packages, by=20 the best description which can be given, and to grant a warrant that the = same be=20 landed and examined by the importer in presence of the officer; and = within three=20 days after the goods have been so landed, the importer is required to = make a=20 perfect entry. See stat. 3 & 4 Will. IV. c . 52, =A724.

BILL, SINGLE, contracts. A writing by which one person or = more,=20 promises to another or others, to pay him or them a sum of money at a = time=20 therein specified, without any condition. It is usually under seal; and = when so,=20 it is sometimes, if not commonly, called a bill obligatory. (q. v.) 2 S. = &=20 R. 115.

2. It differs from a promissory note in this, that the latter is = always=20 payable to order; and from a bond, because that instrument has always a=20 condition attached to it, on the performance of which it is satisfied. 5 = Com.=20 Dig. 194; 7 Com. 357.

BILL OF STORE, English commercial law. A license granted by = custom=20 house officers to merchants, to carry such stores and provisions as are=20 necessary for a voyage, free of duty. See stat. 3 and 4 Will. IV., c. 5 = 2.

BILL, TRUE. A true bill is an indictment approved of by a = grand jury.=20 Vide Billa Vera; True Bill.

BILLS PAYABLE, COMMERCE. Engagements which a merchant has = entered into=20 in writing, and which he is to pay on their becoming due. Pard. n. = 85.

BILLS RECEIVABLE, Commerce. Promissory notes, bills of = exchange,=20 bonds, and other evidences or securities which a merchant or trader = holds, and=20 which are payable to him. Pard. n. 85.

BILLA VERA, practice. When the proceedings of the courts were = recorded=20 in Latin, and the grand jury found a bill of indictment to be supported = by the=20 evidence, they indorsed on it billa vera; now they indorse in plain = English " a=20 true bill."

TO BIND, BINDING, contracts. These words are applied to the = contract=20 entered into, between a master and an apprentice the latter is said to = be=20 bound.

2. In order to make a good binding, the consent of the apprentice = must be=20 had, together with that of his father, next friend, or some one standing = in loco=20 parentis. Bac. Ab. Master and Servant, A; 8 John. 328; 2 Pen. 977; 2 = Yerg. 546 1=20 Ashmead, 123; 10 Sergeant & Rawle, 416 1 Massachusetts, 172; 1 = Vermont, 69.=20 Whether a father has, by the common law, a right to bind out his child, = during=20 his minority without his consent, seems not to be settled. 2 Dall. 199; = 7 Mass.=20 147; 1 Mason, 78; 1 Ashm. 267. Vide Apprentice; Father; Mother; = Parent.

3. The words to bind or binding, are also used to signify that a = thing is=20 subject to an obligation, engagement or liability; as, the judgment = binds such=20 an estate. Vide Lien.

TO BIND, OR TO BIND OVER, crim. law. The act by which a = magistrate or=20 a court hold to bail a party, accused of a crime or misdemeanor.

2. A person accused may be bound over to appear at a court having=20 jurisdiction of the offence charged, to answer; or he may be bound over = to be of=20 good behaviour, (q. v.) or to keep the peace. See Surety of the = Peace.

3. On refusing to enter into the requisite recognizance, the accused = may be=20 committed to prison.

BIPARTITE. Of two parts. This term is used in conveyancing as, = this=20 indenture bipartite, between A, of the one part, and B, of the other = part. But=20 when there are only two parties, it is not necessary to use this = word.

BIRRETUM or BIRRETUS. A cap or coif used formerly in England, = by=20 judges and sergeants at law. Spelm. h. t.; Cunn. Dict. Vide Coif.

BIRTH. The act of being wholly brought into the world. The = whole body=20 must be detached from that of the mother, in order to make the birth = complete. 5=20 C. & P. 329; S. C. 24 E. C. L. R. 344 6 C. & P. 349; S. C. 25 E. = C. L.=20 R. 433.

2. But if a child be killed with design and maliciously after it has = wholly=20 come forth from the body of the mother, although still connected with = her by=20 means of the umbilical cord, it seems that such killing will be murder. = 9 C.=20 & P. 25 S . C. 38 E. C. L. R. 21; 7 C. & P. 814. Vide articles = Breath;=20 Dead Born; Gestation; Life; and 1 Beck' s Med. Jur. 478, et seq.; 1 = Chit. Med.=20 Jur. 438; 7 C. & P. 814; 1 Carr. & Marsh. 650; S. C. 41 E. C. L. = R. 352;=20 9 C. & P. 25.

3. It seems that unless the cbild be born alive, it is not properly a = birth,=20 but a carriage. 1 Chit. Pr. 35, note z. But see Russ. & Ry. C. C. = 336.

BISAILE, domestic relations. A corruption of the French word = besaieul,=20 the father of the grandfather or grandmother. In Latin he is called = proavus.=20 Inst. 3, 6, 3 Dig. 38, 10, 1, 5. Vide Aile.

BISHOP. An ecclesiastical officer, who is the chief of the = clergy of=20 his diocese, and is the archbishop's assistant. Happily for this = country, these=20 officers are not recognized by law. They derive all their authority from = the=20 churches over which they preside. Bishop's COURT, Eng. law. An = ecclesiastical=20 court held in the cathedral of each diocese, the judge of which is the = bishop's=20 chancellor.

BISHOPRICK, eccl. law. The extent of country over which a = bishop has=20 jurisdiction a see; a diocese. For their origin, see Francis Duarenus de = sacris=20 Eccles. Ministeriis ac beneficiis, lib. 1, cap. 7; Abbe Fleury, 2d = Discourse on=20 Ecclesiastical History, =A7v.

BISSEXTILE. The day which is added every fourth year to the = month of=20 February, in order to make the year agree with the course of the sun. It = is=20 called bissextile, because in the Roman calendar it was fixed on the = sixth day=20 before the calends of March, (which answers to the 24th day of = February,) and=20 this day was counted twice; the first was called bissextus prior, and = the other=20 bissextus posterior, but the latter was properly called bissextile or=20 intersalary day. Although the name bissextile is still retained in its = obsolete=20 import, we intercalate the 29th of February every fourth Year, which is = called=20 leap year; and for still greater accuracy, make only one leap year out = of every=20 four centenary years. The years 1700 and 1800 were not leap years, nor = will the=20 .year A. D. 1900 be reckoned as one, but the year A. D. 2000 will be a = leap year=20 or bissextile. For a learned account of the Julian and Gregorian = calendars, see=20 Histoire du Calendrier Romain, by Mons. Blondel; also, Savigny Dr. Rom. = =A7192;=20 and Brunacci's Tract on Navigation, 275, 6. BLACK ACT, English law. An = act of=20 parliament made in the 9 Geo. II., which tears this name, to punish = certain=20 marauders who committed great outrages, in disguise, and with black = faces. See=20 Charlt. R. 166.

BLACK BOOK OF THE ADMIRALTY. An ancient book compiled in the = reign of=20 Edw. III. It has always been deemed of the highest authority in matters=20 concerning the admiralty. It contains the laws of Oleron, At large; a = view of=20 the crimes and offences cognizable in the admiralty; ordinances and = commentaries=20 on matters of prize and maritime torts, injuries and contracts, 2 Gall. = R.=20 404.

BLACK BOOK OP THE EXCHEQUER. The name of a book kept in the = English=20 exchequer, containing a collection of treaties) conventions, charters,=20 &c.

BLACK MAIL. When rents were reserved payable in work, grain, = and the=20 like, they were called reditus nigri, or black mail, to distinguish them = from=20 white rents or blanch farms, or such as were paid in money. Vide Alba = firma.

BLANCH FIRMES. The same as white rent. (q. v.)

BLANK. A space left in writing to be filled, up with one or = more=20 words, in order to make sense. 1. In what cases the ambiguity occasioned = by=20 blanks not filled before execution of the writing may be explained 2. in = what=20 cases it cannot be explained.

2. - 1. When a blank is left in a written agreement which need not = -have been=20 reduced to writing, and would have been equally binding whether written = or=20 unwritten, it is presumed, in an action for the non-performance of the = contract,=20 parol evidence might be admitted to explain the blank. And where a = written=20 instrument, which was made professedly to record a fact, is produced as = evidence=20 of that fact which it purports to record, and a blank appears in a = material=20 part, the omission may be supplied by other proof. 1 Phil. Ev. 475 1 = Wils. 215;=20 7 Verm. R. 522; 6 Verm. R. 411. Hence a blank left in an award for a = name, was=20 allowed to be supplied by parol proof. 2 Dall. 180. But where a creditor = signs a=20 deed of composition leaving the amount of his debt in blank, he binds = himself to=20 all existing debts. 1 B. & A. 101; S. C. 2 Stark. R. 195.

3. - 2. If a blank is left in a policy of insurance for the name of = the place=20 of destination of a ship, it will avoid the policy. Molloy, b. 2, c. 7, = s. 14;=20 Park, Ins. 22; Wesk. Ins. 42. A paper signed and sealed in blank, with = verbal=20 authority to. fill it up, which is afterwards done, is void, unless = afterwards=20 delivered or acknowledged and adopted. 1 Yerg. 69, 149; 1 Hill, 267 2 N. = &=20 M. 125; 2 Brock. 64; 2 Dev. 379 1 Ham. 368; 6 Gill & John. 250; but = see=20 contra, 17 S. & R. 438. Lines ought to be drawn wherever there are = blanks,=20 to prevent anything from being inserted afterwards. 2 Valin's Comm. = 151.

4. When the filling up blanks after the execution of deeds and other = writings=20 will vitiate them or not, see 3 Vin. Abr. 268; Moore, 547; Cro. Eliz. = 626; 1=20 Vent. 185; 2 Lev. 35; 2 Ch. R. 187; 1 Anst. 228; 5 Mass. 538; 4 Binn. 1; = 9=20 Crancb, 28; Yelv. 96; 2 Show. 161; 1 Saund. Pl. & Ev. 77; 4 B. & = A. 672;=20 Com. Dig. Fait, F 1; 4 Bing. 123; 2 Hill. Ab. c. 25, =A780; n. 33, = =A754-and 72; 1=20 Ohio, R. 368; 4 Binn. R. 1; 6 Cowen, 118; Wright, 176.

BLANK BAR, pleading. The same with that called a common bar, = whicb, in=20 an action of trespass, is put in to oblige the plaintiff to assign the = certain'=20 place where the trespass was committed. Cro. Jac. 594, pl. 16.

BLANK INDORSEMENT, contrad. An indorsement which does not = mention the=20 name of the person in whose favor it is made; it is usually made by = writing the=20 name of the indorser on the back of the bill. Chit. Bills, 170.

2. When a bill or note has been indorsed in blank, its negotiability = cannot=20 afterwards be restrained. 1 Esp. N. P. Cas. 180; 1 Bl. Rep. 295. As many = persons=20 as agree may join in suing on a bill when indorsed in blank; for = although it was=20 given to one alone, yet by allowing the others to join in the suit, he = has 'Made=20 them sharers in his rights. 8 Camp. N. P. Cas. 239. Vide Indorsement; = Negotiable=20 paper; Restrictive indorsement.

BLASPHEMY, crim. law. To attribute to God that which is = contrary to=20 his nature, and does not belong to him, and to deny what does or it is a = false=20 reflection uttered with a malicious, design of reviling God. Elym's = Pref. to=20 vol. 8, St. Tr.

2. This offence has been enlarged in Pennsylvania, and perhaps most = of the=20 states, by statutory provision. Vide Christianity; 11 Serg. & Rawle, = 394. In=20 England all blasphemies against God, the Christian religion, the Holy=20 Scriptures, and malicious revilings of the established church, are = punishable by=20 indictment. 1 East, P. C. 3; 1 Russ. on Cr. 217.

3. In France, before the 25th of September, 1791, it was a blasphemy = also to=20 speak against the holy virgin and the saints, to deny one's faith, to = speak with=20 impiety of holy things, and to swear by things sacred. Merl. Rep. h. t. = The law=20 relating to blasphemy in that country was totally repealed by the code = of 25th=20 of September, 1791, and its present penal code, art. 262, enacts, that = any=20 person who, by words or gestures, shall commit any outrage upon objects = of=20 public worship, in the places designed or actually employed for the = performance=20 of its rites, or shall assault or insult the ministers of such worship = in the=20 exercise of their functions, shall be fined from sixteen to five hundred = francs,=20 and be imprisoned for a period not less than fifteen days nor more than = six=20 months.

4. The civil law forbad the crime of blasphemy; such, for example, as = to=20 swear by the hair or the head of God; and it punished its violation with = death.=20 Si enim contra homines factae blasphemiae impunitae non relinquuntur; = multo=20 magis qui ipsum Deum Blasphemant, digni sunt supplicia sustinere. Nov. = 77, ch.=20 1, =A71.

5. In Spain it is blasphemy not only to speak against God and his = government,=20 but to utter injuries against the Virgin Mary and the saints. Senen = Villanova Y=20 Manes, Materia Criminal, forense, Observ. 11, cap. 3, n

BLIND. One who is deprived of the faculty of seeing.

2. Persons who are blind may enter into contracts and make wills like = others.=20 Carth. 53; Barn. 19, 23; 3 Leigh, R. 32. When an attesting witness = becomes=20 blind, his handwriting may be proved as if he were dead. 1 Stark. Ev. = 341. But=20 before proving his handwriting the witness must be produced, if within = the=20 jurisdiction of the court, and examined. Ld. Raym. 734; 1 M. & Rob. = 258; 2=20 M. & Rob. 262.

BLOCKADE, international law. The actual investment of a port = or place=20 by a hostile force fully competent to cut off all communication = therewith, so=20 arranged or disposed as to be able to apply its force to every point of=20 practicable access or approach to the port or place so invested.

2. It is proper here to consider, 1. by what authority a blockade can = be=20 established; 2. what force is sufficient to constitute a blockade; 3. = the=20 consequences of a violation of the blockade.

>3. - 1. Natural sovereignty confers the right of declaring war, = ana the=20 right which nations at war have of destroying or capturing each other's=20 citizens, subjects or goods, imposes on neutral nations the obligation = not to=20 interfere with the exercise of this right within the rules prescribed by = the law=20 of nations. A declaration of a siege or blockade is an act of = sovereignty, 1=20 Rob. Rep. 146; but a direct declaration by the sovereign authority of = the=20 besieging belligerent is not always requisite; particularly when the = blockade is=20 on a distant station; for its officers may have power, either expressly = or by=20 implication, to institute such siege or blockade. 6 Rob. R. 367.

4. - 2. To be sufficient, the blockade must be effective, and made = known. By=20 the convention of the Baltic powers of 1780, and again in 1801, and by = the=20 ordinance of congress of 1781, it is required there should be a number = of=20 vessels stationed near enough to the port to make the entry apparently=20 dangerous. The government of the United States has, uniformly insisted, = that the=20 blockade should be effective by the presence of a competent force, = stationed and=20 present, at or near the entrance of the port. 1 Kent, Com. 145, and the=20 authorities by him cited; and see 1 Rob. R. 80; 4 Rob. R. 66; 1 Acton's = R. 64,=20 5; and Lord Erskine's speech, 8th March, 1808, on the orders in council, = 10=20 Cobber's Parl. Debates, 949, 950. But "it is not an accidental absence = of the=20 blockading force, nor the circumstance of being blown off by wind, (if = the=20 suspension and the-reason of the suspension are known,) that will be = sufficient=20 in law to remove a blockade." But negligence or remissness on the part = of the=20 cruizers stationed to maintain the blockade, may excuse persons, under=20 circumstances, for violating the blockade. 3 Rob. R. 156 .) 1 Acton's R. = 59. To=20 involve a neutral in the consequences of violating a blockade, it is=20 indispensable that he should have due notice of it: this information may = be=20 communicated to him in two ways; either actually, by a formal notice = from the=20 blockading power, or constructively by notice to his government, or by = the=20 notoriety of the fact. 6 Rob. R. 367; 2 Rob. R. 110; Id. 111, note; Id. = 128; 1=20 Acton's R. 6 1.

4. - 3. In considering the consequences of the violation of a = blockade, it is=20 proper to take a view of what will amount to such a violation, and, = then, of its=20 effects. As all criminal acts require an intention to commit them, the = party=20 must intend to violate the blockade, or his acts will be perfectly = innocent; but=20 this intention will be judged of by the circumstances. This violation = may be,=20 either, by going into the place blockaded, or by coming out of it with a = cargo=20 laden after the commencement of the blockade. Also placing himself so = near a=20 blockaded port as to be in a condition to slip in without observation, = is a=20 violation of the blockade, and raises the presumption of a criminal = intent. 6=20 Rob. R. 30, 101, 182; 7 John. R. 47; 1 Edw. R. 202; 4 Cranch, 185. The = sailing=20 for a blockaded port, knowing it to be blockaded, is, it seems, such an = act as=20 may charge the party with a breach of the blockade. 5 Cranch, 335 9 = Cranch, 440,=20 446; 1 Kent, Com. 150. When the ship has contracted guilt by a breach of = the=20 blockade, she may be taken at any time before the end of her voyage, but = the=20 penalty travels no further than the end of her return voyage. 2 Rob. R. = 128; 3=20 Rob. R. 147. When taken, the ship is confiscated; and the cargo is = always, prima=20 facie, implicated in the guilt of the owner or master of the ship and = the burden=20 of rebutting the presumption that the vessel was going in for the = benefit of the=20 cargo, and with the direction of the owners, rests with them. 1 Rob. R. = 67, 130=20 3 Rob. R. 173 4 Rob. R. 93; 1 Edw. It 39. Vide, generally, 2 Bro. Civ. = &=20 Adm. Law, 314 Chit. Com. Law, Index, h. t.; Chit. Law of Nations, 128 to = 147; 1=20 Kent's Com. 143 to 151; Marsh. Ins. Index, h. t.; Dane's Ab. Index, h. = t.; Mann.=20 Com. B. 3, c. 9.

BLOOD, kindred. This word, in the law sense, is used to = signify=20 relationship, stock, or family; as, of the blood of the ancestor. 1 = Roper on=20 Leg. 103; 1 Supp. to Ves. jr. 365. In a more extended sense, it means = kindred=20 generally. Bac. Max. Reg. 18.

2. Brothers and sisters are said to be of the whole blood, (q. v.) if = they=20 have the same father and mother of the half blood, (q. v.) if they have = only one=20 parent in common. 5 Whart. Rep. 477.

BLOTTER, mer. law. A book among merchants, in which entries of = sales,=20 &c.;are first made.

2. This book, containing the original entries, is received in = evidence, when=20 supported by the oaths or affirmations of those who keep it. See = Original=20 entry.

BOARD. This word is used to designate all the magistrates of a = city or=20 borough, or all the managers or directors of any institution; as, the = board of=20 aldermen; the board of directors of the Bank of North America. The = majority of=20 the board have in general the power to perform the acts of the whole = board, but=20 sometimes they are restrained by their charters, and it requires a = greater=20 number to perform certain acts.

BOARD OF CIVIL AUTHORITY. A used in Vermont. This board is = composed of=20 the selectmen and justices of the peace of their respective towns. They = are=20 authorized to abate taxes, and the like.

BOCKLAND, Eng. law. The name of an ancient allodial tenure, = which was=20 exempt from feudal services. Bac. Ab. Gavelkind, A Spelman's English = Works, vol.=20 2, 233.

BODY. A person.

2. In practice, when the sheriff returns cepi corpus to a capias, the = plaintiff may obtain a rule, before special bail has been entered, to = bring in=20 the body and this must be done either by committing the defendant or = entering=20 special bail. See Dead Body.

BODY POLITIC, government, corporations. When applied to the = government=20 this phrase signifies the state.

2. As to the persons who compose the body politic, they take = collectively the=20 name, of people, or nation; and individually they are citizens, when = considered=20 in relation to their political rights, and subjects as being submitted = to the=20 laws of the state.

3. When it refers to corporations, the term body politic means that = the=20 members of such corporations shall be considered as an artificial = person.

BOILARY. A term used to denote the water which arises from a = salt=20 well, belonging to one who has no right to the soil. Ejectment may be = maintained=20 for it. 2 Hill, Ab. c. 14, =A75; Co. Litt. 4 b.

BONA, goods and chattels. In the Roman law, it signifies every = kind of=20 property, real, personal, and mixed, but chiefly it was applied to real = estates;=20 chattels being chiefly distinguished by the words, effects, movables, = &c.=20 Bona were, however, divided into bona mobilia, and bona immobilia. It is = taken=20 in the civil law in nearly the sense of biens (q. v.) in the French = law.

BONA FIDE. In or with good faith.

2. The law requires all persons in their transactions to act with = good faith=20 and a contract where the parties have not acted bonafide is void at the = pleasure=20 of the innocent party. 8 John. R. 446; 12 John. R. 320; 2 John. Ch. R. = 35. If a=20 contract be made with good faith, subsequent fraudulent acts will not = vitiate=20 it; although such acts may raise a presumption of antecedent fraud, and = thus=20 become a means of proving the want of good faith in making the contract. = 2=20 Miles' Rep. 229; and see also, Rob. Fraud. Conv. 33, 34; Inst. 2, 6 Dig. = 41, 3,=20 10 and 44; Id. 41, 1, 48; Code, 7, 31; 9 Co. 11; Wingate's Maxims, max. = 37;=20 Lane, 47; Plowd. 473; 9 Pick. R. 265; 12 Pick. R. 545; 8 Conn. R. 336; = 10 Conn.=20 R. 30; 3 Watts, R. 25; 5 Wend. R. 20, 566. In the civil law these = actions are=20 called (actiones) bonae fidei, in which the judge has a. more = unrestrained power=20 (liberior potestas) of estamating how much one person ought to give to = or do,=20 for another; whereas, those actions are said to be stricti juris, in = which the=20 power of the judge is confined to the agreement of the parties. Examples = of the=20 foraier are the actions empti-venditi, locati-conducti, negitiorum = gestorum,=20 &c.; of the latter, the actions ex mutus, ex chirographo, ex = stipilatu, ex=20 indebito, actions proescriptis verbis, &c.

BONA GESTURA. Good behaviour.

BONA MOBILIA. Movable goods, personal property.

BONA NOTABILIA Engl. ecclesiastical law. Notable goods. When a = person=20 dies having at the time of his death, goods in any other diocese, = beside's the=20 goods in the diocese where he dies, amounting to the value of five = pounds in the=20 whole, he is said to have bona notabilia; in which case proof of his = will, or=20 granting letters of administration, belongs to the archbishop of the = province. 1=20 Roll. Ab. 908; Toll. Ex. 51 Williams on Ex. Index, h. t.

BONA PERITURA. Perishable goods.

2. An executor, administrator, or trustee, is bound to use due = diligence in=20 disposing of perishable goods, such as fattened cattle, grain, fruit, or = any=20 other article which may be worse for keeping. Bac. Ab. Executors, = &c.;D; 11=20 Vin. Ab. 102; 1 Roll. Ab. 910; 5 Cro. Eliz.518; Godb.104; 3 Munf. R. = 288; 1=20 Beat. R. 5,14; Dane's Ab. Index, h. t.

3. In Pennsylvania, when goods are attached, they may be sold by = order of=20 court, when they are of a perishable nature. Vide Wesk. on Ins. 390; = Serg. on=20 Attachm. Index.

BONA VACANTIA. Goods to which no one claims a property, as,=20 shipwrecks, treasure trove, &c.; vacant goods.

BONA WAVIATA. Goods waived or thrown away by a thief, in his = flight,=20 for fear of being apprehended.

BOND, contract. An obligation or bond is a deed whereby the = obligor,=20 obliges himself, his heirs, executors and administrators, to pay a = certain sum=20 of money to another at a day appointed. But see 2 Shepl. 185. If this be = all,=20 the bond is called a single one, simplex obligatio; but there is = generally a=20 condition added, that if the obligor pays a smaller sum, or does, or = omits to do=20 some particular act, the obligation shall be void. 2 Bl. Com. 840. The = word bond=20 ex vi termini imports a sealed instrument. 2 S. & R. 502; 1 Bald. R. = 129; 2=20 Porter, R. 19; 1 Blackf. R. 241; Harp. R. 434; 6 Verm. R. 40. See = Condition;=20 Interest of money; Penalty. It is proposed to consider: 1. The form of a = bond,=20 namely, the words by which it may be made, and the ceremonies required. = 2. The=20 condition. 3. The performance or discharge.

2.-I. 1. There must be parties to a bond, an obligor and obligee : = for where=20 a bond was made with condition that the obligor should pay twenty pounds = to such=20 person or persons; as E. H. should, by her last will and testament in = writing,=20 name and appoint the same to be paid, and E. H. did not appoint any = person to,=20 whom the same should be paid, it was held that the money was not payable = to the=20 executors of E. H. Hob. 9. No particular form of words are essential to = create=20 an obligation, but any words which declare the intention of the parties, = and=20 denote that one is bound to the other, will be sufficient, provided the=20 ceremonies mentioned below have been observed. Shep. Touch. 367-8; Bac. = Abr.=20 Obligations, B; Com. Dig. Obligations, B 1.

3. - 2. It must be in writing, on paper or parchment, and if it be = made on=20 other materials it is void. Bac. Abr. Obligations, A.

4. - 3. It must be sealed, though it is not necessary that it should = be=20 mentioned in the writing that it is sealed. As to what is a sufficient = sealing,=20 see the above case, and the word Seal.

5. - 4. It must be delivered by the party whose bond it is, to the = other.=20 Bac. Abr. Obligations, C. But the delivery and acceptance may be by = attorney.=20 The date is not considered of the substance of a deed, and therefore a = bond=20 which either has no date or an impossible one is still good, provided = the real=20 day of its being dated or given, that is, delivered, can be proved. 2 = Bl. Com.=20 304; Com. Dig. Fait, B 3; 3 Call, 309. See Date.

6. - II. The condition is either for the payment of money, or for the = performance of something else. In the latter case, if the condition be = against=20 some rule of law merely, positively impossible at the time of making it, = uncertain or insensible, the condition alone is void, and the bond shall = stand=20 single and unconditional; for it is the folly of the obligor to enter = into such=20 an obligation, from which he can never be released. If it be to do a = thing malum=20 in se, the obligation itself is void, the whole contract being unlawful. = 2 Bl.=20 Com. 340; Bac. Abr. Conditions, K, L; Com. Dig. Conditions, D 1, D 2, D = 3, D 7,=20 D 8.

7. - III. 1. When, by the condition of an obligation, the act to be = done to=20 the obligee is of its own nature transitory, as payment of money, = delivery of=20 charters, or the like, and no time is limited, it ought to be performed = in=20 convenient time. 6 Co. 31 Co. Lit. 208; Roll. Abr. 436.

8. - 2. A payment before the day is good; Co. Lit. 212, a; or before = action=20 brought. 10 Mass. 419; 11 Mass. 217.

9.-3. If the condition be to do a thing within a certain time, it may = be=20 performed the last da of the time appointed. Bac. Abr. Conditions, P = 3.

10. - 4. If the condition be to do an act, without limiting any time, = he who=20 has the benefit may do it at what time he pleases. Com. Dig. Conditions, = G=20 3.

11. - 5. When the place where the act to be performed is agreed upon, = the=20 party who is to perform it, is not obliged to seek the opposite party = elsewhere;=20 nor is he to whom it is to be performed bound to accept of the = performance in=20 another place. Roll. 445, 446 Com. Dig. Conditions, G 9 Bac. Abr. = Conditions, P=20 4. See Performance.

12. - 6. For what amounts to a breach of a condition in a bond see = Bac. Abr.=20 Conditions, 0; Com. Dig. Conditions, M; and this Dict. tit. Breach.

BOND TENANT, Eng. law. Copyholders and customary tenants are = sometimes=20 so called. Calth. on Copyh. 51, 54.

BONDAGE. Slavery.

BONIS NON AMOVENDIS. The name of a writ addressed to the = sheriff, when=20 a writ of error has been brought, commanding that the person against = whom=20 judgment has been obtained, be not suffered to remove his goods till the = error=20 be tried and determined. Reg. Orig. 131.

BONO ET MALO. The name of a special writ of jail delivery, = which=20 formerly issued of course for each particular prisoner. 4 Bl. Com. = 270.

BONUS, contrads. A premium paid to a grantor or vendor; as, e. = g. the=20 bank paid a bonus to the state for its charter. A consideration given = for what=20 is received.

BOOK. A general name given to every literary composition which = is=20 printed; but appropriately to a printed composition bound in a = volume.

2. The copyright, (q. v.) or exclusive right to print and publish a = book, may=20 be secured to the author and his assigns for the term of twenty-eight = years;=20 and, if the author be living, and a citizen of the United States, or = resident=20 therein, the same right shall be continued to him for the further term = of=20 fourteen years, by complying with the conditions of the act of Congress; = one of=20 which is, that he shall, within three months after publication, deliver, = or=20 cause to be delivered, a copy of the same to the clerk of the said = district. Act=20 of February 3, 1831. 4 Sharsw. cont. of Story's L. U. S. 2223.

BOOK-LAND, English law. Land, also called charter-land, which = was held=20 by deed under certain rents and fee services, and differed in nothing = from free=20 socage land. 2 Bl. Com. 90. See 2 Spelman's English Works, 233, tit. Of = Ancient=20 Deeds and Charters.

BOOKS, commerce, accounts. Merchants, traders, and other = persons, who=20 are desirous of understanding their affairs, and of explaining them when = necessary, keep, 1. a day book; 2. a journal; 3. a ledger; 4. a letter = book; 5.=20 an invoice book; 6. a cash book; 7. a bill book; 8. a bank book; and 9. = a cheek=20 book. The reader is referred to these several articles. Commercial books = are=20 kept by single or by double entry.

BOOTY, war. The capture of personal property by a public enemy = on=20 land, in contradistinction to prize, which is a capture of such property = by such=20 an enemy, on the sea.

2. After booty has been in complete possession of the enemy for = twenty-four=20 hours, it becomes absolutely his, without any right of postliminy in = favor of=20 the original owner, particularly when it has passed, bona fide, into the = hands=20 of a neutral. 1 Kent, Com. 110.

3. The right to the booty, Pothier says, belongs to the sovereign but = sometimes the right of the sovereign, or the public, is transferred to = the=20 soldiers, to encourage them. Tr. du Droit de Propriete, part 1, c. 2, = art. 1,=20 =A72; Burl. Nat. and Pol. Law, vol. ii. part 4, o. 7, n. 12.

BOROUGH. An incorporated town; so called in the charter. It is = less=20 than a city. 1 Mann. & Gran. 1; 39 E. C. L. R. 323.

BOROUGH ENGLISH, English law. This, as the name imports, = relates=20 exclusively to the English law.

2. It is a custom, in many ancient boroughs, by which the youngest = son=20 succeeds to the burgage tenement on the death of the father. 2 Bl. Com. = 83.

3. In some parts of France, there was a custom by which the youngest = son was=20 entitled to an advantage over the other children in the estate of their = father.=20 iller. Rep. mot Mainete.

BORROWER, contracts. He to whom a thing is lent at his = request.

2. The contract of loan confers rights, and imposes duties on the = borrower'=20 1. In general, he has the right to use the thing borrowed, during the = time and=20 for the purpose intended between the parties; the right of using the = thing=20 bailed, is strictly confined to the use, expressed or implied, in the = particular=20 transaction, and by any excess, the borrower will make himself = responsible.=20 Jones' Bailment, 58 6 Mass. R. 104; Cro. Jac. 244; 2 Ld. Raym. 909; Ayl. = Pand.=20 B. 4, t. 16, p. 517; Domat, B. 1, t. 5, =A72, n. 10, 11, 12; Dio. 13, 6, = 18 Poth.=20 Pret a Usage, c. 2, =A71, n. 22; 2 Bulst. 306; Ersk. Pr. Laws of ScotI. = B. 3, t.=20 1, =A79; 1 Const. Rep. So. Car. 121 Bracton, Lib. 3, c. 2, =A7l, p. 99. = The loan is=20 considered strietly personal, unless, from other circumstances, a = different=20 intention may be presumed. 1 Mod. Rep. 210; S. C. 3 Salk. 271.

3. - 2. The borrower is bound to take extraordinary care of the thing = borrowed; to use it according to the intention of the lender, to restore = it in=20 proper time; to restore it in a proper condition. Of these, in their = order.

4. - 1. The loan being gratuitous, the borrower is bound to = extraordinary=20 diligence, and is responsible for slight neglect in relation to the = thing=20 loaned. 2 Ld. Raym. 909, 916 Jones on Bailm. 65; 1 Dane's Abr. c. 17, = art. 12;=20 Dig. 44, 73 1, 4; Poth. Pret. a Usage, c. 2, =A72, art. 21, n. 48.

5. - 2. The use is to be according to the condition of the loan; if = there is=20 an excess in the nature, time, manner, or quantity of the use, beyond = what may=20 be inferred to be within the intention of the parties, the borrower will = be=20 responsible, not only for any damages occasioned by the excess, but even = for=20 losses by accidents, which could not be foreseen or guarded against. 2 = Ld. Raym.=20 909; Jones on Bailm. 68, 69.

6. - 3. The borrower is bound to make a return of the thing loaned, = at the=20 time, in the place, and in the manner contemplated by the contract.. = Domat, Liv.=20 1, t. 5, =A71, n. 11; Dig. 13, 6, 5, 17. If tho borrower does not return = the thing=20 at the proper time, he is deemed to be in default, and is geneally = responsible=20 for all injuries, even for accidents. Jones on Bailm. 70; Pothier, Pret = a Usage=20 , ch. 2, =A73, art. 2, n. 60; Civil Code Of Louis. art. 2870; Code = Civil, art.=20 1881; Ersk. Inst. B. 3, t. 1, =A722 Ersk. Pr. Laws of Scotl. B. 3, t. 1, = =A79.

7. - 4. As to the condition in which the thing is to be restored. The = borrower not being liable for any loss or deterioration of the thing, = unless=20 caused by his own neglect of duty, it follows, that it is sufficient if = he=20 returns it in the proper manner, and at the proper time, however much it = may be=20 deteriorated from accidental or other causes, not connected with any = such=20 neglect. Story on Bailm. eh. 4, =A7268. See, generally, Story on Bailm. = oh. 4;=20 Poth. Pret A Usage; 2 Kent, Com. 446-449; Vin. Abr. Bailment, B 6; Bac. = Abr.=20 Bailment; Civil Code of Louis. art. 2869-2876; 1 Bouv. Inst. n. = 1078-1090. Vide=20 Lender.

BOSCAGE, Eng. law. That food which wood and trees yield to = cattle.

BOTE, contracts A recompense, satisfaction, amends, profit or=20 advantage : hence came the word man-bote, denoting a compensation for a = man=20 slain; house-bote, cart-bote, plough-bote, signify that a tenant is = privileged=20 to cut wood for these uses. 2 Bl. Com. 35; Woodf. L. & T. 232.

BOTELESS, or bootless. Without recompense, reward or = satisfaction made=20 unprofitable or without success.

BOTTOMRY, maritime law. A contract, in nature of a mortgage of = a ship,=20 on which the owner borrows money to enable him to fit out the ship, or = to=20 purchase a cargo, for a voyage proposed: and he pledges the keel or = bottom of=20 the ship, pars pro toto, as a security for the repayment; and it is = stipulated=20 that if the ship should be lost in the course of the voyage, by any of = the=20 perils enumerated in the contract, the lender also shall lose his money = but if=20 the ship should arrive in safety, then he shall receive back his = principal, and=20 also the interest agreed upon, which is generally called marine = interest,=20 however this may exceed the legal rate of interest. Not only the ship = and=20 tackle, if they arrive safe, but also the person of the borrower, is = liable for=20 the money lent and the marine interest. See 2 Bl. Com. 458; Marsh. Ins. = B. 21 c.=20 1; Ord. Louis XIV. B. 3, tit. 5; Laws of Wishuy, art. 45 Code de Com. B. = 2, tit.=20 9.

2. The contract of bottomry should specify the principal lent, and = the rate=20 of marine interest agreed upon; the subject on which the loan is = effected the=20 names of the vessel and of the master those of the lender and borrower = whether=20 the loan be for an entire voyage; for what voyage and for what space of = time;=20 and the period of re-payment. Code de Com. art. 311 Marsh. Ins. B. = 2.

3. Bottomry differs materially from a simple loan. In a loan, the = money is at=20 the risk of the borrower, and must be paid at all events. But in = bottomry, the=20 money is at the risk of the lender during the voyage. Upon a loan, only = legal=20 interest can be received; but upon bottomry, any interest may be legally = reserved which the parties agree upon. See, generally, Metc. & Perk. = Dig. h.=20 t.; Marsh. lnst. B. 2; Bac. Abr. Merchant, K; Com. Dig. Merchant. E 4; 3 = Mass.=20 443; 8 Mass. 340; 4 Binn. 244; 4 Cranch, 328; 3 John. R. 352 2 Johns. = Cas. 250;=20 1 Binn. 405; 8 Cranch, 41 8; 1 Wheat. 96; 2 Dall. 194. See also this = Dict. tit.=20 Respondentia; Vin. Abr. Bottomry Bonds 1 Bouv. Inst. n. 1246-57.

BOUGHT NOTE, contracts. An instrument in writing, given by a = broker to=20 the seller of merchandise, in which it is stated that the goods therein=20 mentioned have been sold for him. There appears, however, some confusion = in the=20 books, on the subject of these notes sometimes they are called sold = notes. 2 B.=20 & Ald. 144 Blackb. on Sales, 89.

2. This note is signed in the broker's name, as agent of the buyer = and=20 seller; and, if he has not exceeded his authority, the parties are = thereby=20 respectively bound. 1 Bell's Com. (5th ed.) 435; Holt's C. 170; Story on = Agency,=20 =A728; 9 B. & Cr. 78; 17 E. C. L. R. 335; 5 B. & Ad. 521; 1 N. = R. 252; 1=20 Moo. & R. 368; Moo. & M. 43; 22 E. C. L. R. 243; 2 M. & W. = 440; Moo.=20 & M. 43; 6 A. & E. 486; 33 E. C. L. R. 122; 16 East, 62 Gow, R. = 74; 1=20 Camp. R. 385; 4 Taunt. 209; 7 Ves. 265. Vide Sold Note.

BOUND BAILIFFS. Sheriff's officers, who serve writs and make = arrests;=20 they are so called because they are bound to the sheriff for the due = execution=20 of their office. 1 Bl. Com. 345.

BOUNDARY, estates. By this term is understood in general, = every=20 separation, natural or artificial, which marks the confines or line of = division=20 of two contiguous estates. 3 Toull. n. 171.

2. Boundary also signifies stones or other materials inserted in the = earth on=20 the confines of two estates.

3. Boundaries are either natural or artificial. A river or other = stream is a=20 natural boundary, and in that case the centre of the stream is the line. = 20=20 John. R. 91; 12 John. R. 252; 1 Rand. R. 417; 1 Halst. R. 1; 2 N. H. = Rep. 369; 6=20 Cowen, R. 579; 4 Pick. 268; 3 Randolph's R. 33 4 Mason's R. 349-397.

4. An artificial boundary is one made by man.

5. The description of land, in a deed, by specific boundaries, is = conclusive=20 as to the quantity; and if the quantity be expressed as a part of the=20 description, it will be inoperative, and it is immaterial whether the = quantity=20 contained within the specific boundaries, be greater or less than that=20 expressed; 5 Mass. 357; 1 Caines' R. 493; 2 John. R. 27; 15 John. 471; = 17 John.=20 R. 146; Id. 29; 6 Cranch, 237; 4 Hen. & Munf. 125; 2 Bay, R. 515; = and the=20 same rule is applicable, although neither the courses and distances, nor = the=20 estimated contents, correspond with such specific boundaries; 6 Mass. = 131; 11=20 Mass. 193; 2 Mass. 380; 5 Mass. 497; but these rules do not apply in = cases where=20 adherence to them would be plainly absurd. 17 Mass. 207. Vide 17 S. = & R.=20 104; 2 Mer. R. 507; 1 Swanst. 9; 4 Ves. 180; 1 Stark. Ev. 169; 1 Phil. = Ev.=20 Index, h. t.; Chit. Pr. Index, h. t.; 1 Supp. to Ves. jr. 276; 2 Hill. = Ab. c.=20 24, =A7209, and Index, h. t.

6. When a boundary, fixed and by mutual consent, has been permitted = to stand=20 for twenty-one years, it cannot afterwards be disturbed. In accordance = with this=20 rule, it has been decided, that where town lots have been occupied up to = a line=20 fence between them, for more than twenty-one years, each party gained an = incontrovertible right to the line thus established, and this whether = either=20 party knew of the adverse claim or not; and whether either party has = more or=20 less ground than was originally in the lot he owns. 9 Watts, R. 565. See = Hov.=20 Fr. c. 8, p. 239 to 243; 3 Sum. R 170 Poth. Contr. de Societe, prem. = app. n.=20 231.

7. Boundaries are frequently marked by partition fences, ditches, = hedges,=20 trees, &c. When such a fence is built by one of the owners of the = land, on=20 his own premises, it belongs to him exclusively; when built by both at = joint=20 expense, each is the owner of that part on his own land. 5 Taunt. 20. = When the=20 boundary is a hedge and a single ditch, it is presumed to belong to him = on whose=20 side the hedge is, because he who dug the ditch is presumed to have = thrown the=20 earth upon his own land, which was alone lawful to do, and that the = hedge was=20 planted, as is usual, on the top of the bank thus raised. 3 Taunt. 138. = But if=20 there is a ditch on each side of the hedge, or no ditch at all, the = hedge is=20 presumed to be the common property of both proprietors. Arch. N. P. 328; = 2=20 Greenl. Ev. =A7617. A tree growing in the boundary line is the joint = property of=20 both owners of the land. 12 N. H. Rep. 454.

8. Disputes arising from a confusion of boundaries may be generally = settled=20 by an action at law. But courts of equity will entertain a bill for the=20 settlement of boundaries, when the rights of one of the parties may be=20 established upon equitable grounds. 4 Bouv. Inst. n. 3923.

BOUNTY. A sum of money or other thing, given, generally by' = the=20 government, to certain persons, for some service they have done or are = about to=20 do to the public. As bounty upon the culture of silk; the bounty given = to an=20 enlisted soldier; and the like. It cliffers from a reward, which is = generally=20 applied to particular cases; and from a payment, as there is no contract = on the=20 part of the receiver of the bounty.

BOVATA TERRAE. As much land as one ox can plough.

BRANCH. This is a metaphorical expression, which designates, = in the=20 genealogy of a numerous family, a portion of that family which has = sprang from=20 the same root or stock; these latter expressions, like the first, are = also=20 metaphorical.

2. The whole of a genealogy is often called the genealogical tree; = and=20 sometimes it is made to take the form of a tree, which is in the first = place=20 divided into as many branches as there are children, afterwards into as = many=20 branches as there are grand-children, then of great grandchildren, = &c. If,=20 for example, it be desired to have a genealogical tree of Peter's = family, Peter=20 will be made the trunk of the tree; if he has had two children, John and = James,=20 their names will be written on the first two branches; which will = themelves=20 shoot out as many smaller branches as John and James have children; from = these=20 other's proceed, till the whole family is represented on the tree; thus = the=20 origin, the application, and the use of the word branch in genealogy = will be at=20 once perceived.

BRANCHES. Those solid parts of trees which grow above the = trunk.

2. In general the owner of a tree is the owner of the branches; but = when they=20 grow beyond his line, and extend over the adjoining estate, the = proprietor of=20 the latter may cut them off as far as they grow over his land. Rolle's = R. 394.;=20 3 Bulst. 198. But as this nuisance is one of omission, and, as in the = case of=20 such nuisances, it is requisite to give notice before abating them, it = would be=20 more prudent, and perhaps necessary, to give notice to the owner of the = tree to=20 remove such nuisance. 1 Chit. Pr. 649, 650, 652. See Root; Tree.

TO BRAND. An ancient mode of punishment, which was to inflict = a mark=20 on an offender with a hot iron. This barbarous punishment has been = generally=20 disused.

BRANDY. A spirituous liquor made of wine by distillation. See = stat. 22=20 Car. H. c. 4.

BREACH, contract, torts. The violation of an obligation, = engagement or=20 duty; as a breach of covenant is the non-performance or violation of a = covenant;=20 the breach of a promise is non-performance of a promise; the breach of a = duty,=20 is the refusal or neglect to execute an office or public trust, = according to=20 law.

2. Breaches of a contract are single or continuing breaches. The = former are=20 those which are committed at one single time. Skin. 367; Carth. 289. A=20 continuing breach is one committed at different times, as, if a covenant = to=20 repair be broken at one time, and the same covenant be again broken, it = is a=20 continuing breach. Moore, 242; 1 Leon. 62; 1 Salk. 141; Holt, 178; Lord = Raym.=20 1125. When a covenant running with the land is assigned after a single = breach,=20 the right of action for such breach does not pass to the assignee but if = it be=20 assigned after the commencement of a continuing breach, the right of = action then=20 vests in such assignee. Cro. Eliz. 863; 8 Taunt. 227;, 2 Moore, 164; 1 = Leon.=20 62.

3. In general the remedy for breaches of contracts, or quasi = contracts, is by=20 a civil action.

BREACH OF THE PEACE. A violation of public order; the offence = of=20 disturbing the public peace. One guilty of this offence may be held to = bail for=20 his good behaviour. An act of public indecorum is also a breach of the = peace.=20 The remedy for this offence is by indictment. Vide Pace,

BREACH OF PRISON. An unlawful escape out of prison. This is of = itself=20 a misdemeanor. 1 Russ. Cr. 378; 4 Bl. Com. 129 2 Hawk. P. C. c. 18, s. 1 = 7 Conn.=20 752. The remedy for this offence is by indictment. See Escape.

BREACH OF TRUST. The wilful misappropriation, by a trustee, of = a thing=20 which had been lawfully delivered to him in confidence.

2. The distinction between larceny and a breach of trust is to be = found=20 chiefly in the terms or way in which the thing was taken originally into = the=20 party's possession; and the rule seems to be, that whenever the article = is=20 obtained upon a fair contract, not for a mere temporary purpose, or by = one who=20 is in the. employment of the deliverer, then the subsequent = misappropriation is=20 to be considered as an act of breach of trust. This rule is, however, = subject to=20 many nice distinctions. 15 S. & R. 93, 97. It has been adjudged that = when=20 the owner of goods parts with the possession for a particular purpose, = and the=20 person who receives them avowedly for that purpose, has at the time a = fraudulent=20 intention to make use of the possession as the weans of converting the = goods to=20 his own use, and does so convert them, it is larceny; but if the owner = partwith=20 the property, although fraudulent means have been used to obtain it, = the, act of=20 conversion is not larceny. Id. Alis. Princ. c. 12, p. 354.

3. In the Year Book, 21 H. VII. 14, the distinction is thus stated: = Pigot. If=20 I deliver a jewel or money to my servant to keep, and he flees or goes = from me=20 with the jewel, is it felony ? Cutler said, Yes : for so long as he is = with me=20 or in my house, that which I have delivered to him is adjudged to be in = my=20 possession; as my butler, who has my plate in keeping, if he flees with = it, it=20 is felony. Same law; if he who keeps my horse goes away with, him: The = reason=20 is, they are always in my possession. But if I deliver a horse to my = servant to=20 ride to market or the fair and he flee with him, it is no felony; for e = comes=20 lawfully to the possession of the horse by delivery. And so it is, if I = give him=20 a jewel to carry to London, or to pay one, or to buy a thing, and he = flee with=20 it, it is not felony : for it is out of my possession, and he comes = lawfully to=20 it. Pigot. It can well be: for the master in these cases has an action = against=20 him, viz., Detinue, or Account. See this point fully discussed in Stamf. = P. C.=20 lib. 1; Larceny, c. 15, p. 25. Also, 13 Ed. IV. fo. 9; 52 H. III. 7; 21 = H. VII.=20 15.

BREACH. pleading. That part of the declaration in which the = violation=20 of the defendant's contract is stated.

2. It is usual in assumpsit to introduce the statement of the = particular=20 breach, with the allegation that the defendant, contriving and = fraudulently=20 intending craftily and subtilely to deceive and defraud the plaintiff, = neglected=20 and refused to perform, or performed the particular act contrary to the = previous=20 stipulation. ?

3. In debt, the breach or cause of action. complained of must proceed = only=20 for the non-payment of money previously alleged to be payable; and such = breach=20 is nearly similar, whether the action be in debt on simple contract, = specially,=20 record or statute, and is usually of the following form: " Yet the said=20 defendant, although often requested so to, do, hath not as yet paid the = said sum=20 of ____ dollars, above demanded, nor any part thereof, to the said = plaintiff,=20 but bath hitherto wholly neglected and refused so to do, to the damage = of the=20 said plaintiff _________ dollars, and therefore he brings suit," = &c.

4. The breach must obviously be governed by the nature of the = stipulation; it=20 ought to be assigned in the words of the contract, either negatively or=20 affirmatively, or in words which are co-extensive with its import and = effect.=20 Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127; and = see 5=20 John. R. 168; 8 John. R. 111; 7 John. R. 376; 4 Dall. 436; 2 Hen. & = Munf.=20 446.

5. When the contract is in the disjunctive, as, on a promise to = deliver a=20 horse by a particular day, or pay a sum of money, the breach ought to be = assigned that the defendant did not do the one act nor the other. 1 Sid. = 440;=20 Hardr. 320; Com. Dig. Pleader, C.

BREAKING. Parting or dividing by force and violence a solid = substance,=20 or piercing, penetrating, or bursting through the same.

2. In cases of burglary and house-breaking, the removal, of any part = of the=20 house, or of the fastenings provided to secure it, with violence and a = felonious=20 intent, is called a breaking.

3. The breaking is actual, as in the above case; or constructive, as = when the=20 burglar or house-breaker gains an entry by fraud, conspiracy or threats. = 2 Russ.=20 on Cr. 2; 2 Chit. Cr. Law, 1092; 1 Hale, P. C. 553; Alis. Prin. 282, = 291. In=20 England it has been decided that if the sash of a window be partly open, = but not=20 sufficiently so to admit a person, the raising of it so as to admit a = person is=20 not a breaking of the house. 1 Moody, Cr. Cas. 178. No reasons are = assigned. It=20 is difficult to conceive, if this case be law, what further opening will = amount=20 to a breaking. But see 1 Moody, Cr. Cas. 327, 377; and Burglary.

BREAKING DOORS. The act of forcibly removing the fastenings of = a=20 house, so that a person may enter.

2. It is a maxim that every man's house is his castle, and it is = protected=20 from every unlawful invasion. An officer having a lawful process, of a = criminal=20 nature, authorizing him to do so, may break an outer door, if upon = making a=20 demand of admittance it is refused. The house may also be broken open = for the=20 purpose of executing a writ of habere facias possessionem. 5 Co. 93; = Bac. Ab.=20 Sheriff, N 3.

3. The house protects the owner from the service of all civil process = in the=20 first instance, but not, if once lawfully arrested, he takes refuge in = his own=20 house; in that case the officer may pursue him, and break open any door = for the=20 Purpose. Foster, 320; 1 Rolle's R. 138 Cro. Jac. 555. Vide Door; = House.

BREATH, med. juris. The air expelled from the chest at each=20 expiration.

2. Breathing, though a usual sign of life, is not conclusive that a = child was=20 wholly born alive, as breathing may take place before the whole delivery = of the=20 mother is complete. 5 Carr. & Payn, 329; S. C. 24 E. C. L. R. 344. = Vide=20 Birth; Life; Infanticide.

BREPHOTROPHI, civil law. Persons appointed to take care of = houses=20 destined to receive foundlings. Clef des Lois Rom. mot = Administrateurs.

BREVE, practice. A writ in which the cause of action is = briefly=20 stated, hence its name. Fleta, lib. 2, c. 13, =A725; Co. Lit. 73 b.

2. Writs are distributed into several classes. Some are called brevia = formata, others brevia de cursu, brevia judicialia, or brevia = magistralia. There=20 is a further distinction with respect to real actions into brevia = nominata and=20 innominata. The former, says Bacon, contain the time, place and demand = very=20 particularly; and therefore by such writ several lands by several titles = cannot=20 be demanded by the same writ. The latter contain only a general = complaint,=20 without expressing time, damages, &c., as in trespass quare clausum = fregit,=20 &o., and therefore several lands coming to the demandant by several = titles=20 may be demanded in such writ. F. N. B. 209; 8 Co. 87; Kielw. 105; Dy. = 145; 2=20 Brownl. 274; Bac. Ab. Actions in General, C. See Innominate = contracts.

BREVE DE RECTO. A writ of right. (q. v.)

BREVE TESTATUM, feudal law. A declaration by a superior lord = to his=20 vassal, made in the presence of the pares curias, by which he gave his = consent=20 to the grant of land, was so called. Ersk. Inst. B. 2, tit. 3, s. 17. = This was=20 made in writing, and had the operation of a deed. Dalr. Feud. Pr. = 239.

BREVET. In France, a brevet is a warrant granted by the = government to=20 authorize an individual to do something for his own benefit, as a brevet = d'invention, is a patent to secure a man a right as inventor.

2. In our army, it signifies a commission conferring on an officer a = degree=20 of rank immediately above the one which he holds in his particular = regiment,=20 without, however conveying a right to receive a corresponding pay.

BREVIA, writs. They were called brevia, because of the brevity = in=20 which the cause of action was stated in them.

BREVIA ANTICIPANTIA. This name is given to a number of writs, = which=20 are also called writs of prevention. See Quia Ti. met.

BREVIA FORMATA, Eng law. The collection of writs found in the=20 Registrum Brevium was so called. The author of Fleta says, these writs = were=20 formed upon their cases. They were different from the writs de cursu, = which were=20 approved by the council of the whole realm, and could not be changed = without the=20 will of the same. Fleta, lib. 2, c. 13, =A72. See 17 S. & R. 194-5, = and=20 authorities there cited.

BREVIA JUDICIALIA. Subsidiary process issued pending a suit, = or=20 process issued in execution of the judgment. They varied, says the = author of=20 Fleta, according to the variety of the pleadings of the parties and of = their=20 responses. Lib. 2. c. 13, =A73; Co. Lit. 73 b, 54 b. Many of them, = however, long=20 since became fixed in their forms, beyond the power of the courts to = alter them,=20 unless authorized to do so by the legislature. See 1 Rawle, Rep. 52; Act = of=20 Pennsylvania, June. 16, 1836, =A7=A73, 4, 5.

BREVIA MAGISTRALIA. These were writs formed by the masters in=20 chancery, pursuant to the stat. West. 2, c. 24. They vary according to = the=20 diversity of cases and complaints, of which, says the author of Fleta, = some are=20 personal, some real, some mixed, according as actions are diverse or = various,=20 because so many will be the forms of writs as there are kinds of = actions. Fleta,=20 lib. 2, c. 13, =A74; Co. Lit. 73 b, 54 b.

BREVIARIUM. The name of a code of laws of Alaric II., king of = the=20 Visigoths.

BREVIBUS ET ROTULIS LIBERANDIS, Eng. law. A writ or mandate = directed=20 to a sheriff, commanding him to deliver to his successor the county and = the=20 appurtenances, with all the briefs, rolls, remembrances, and all other = things=20 belonging to his office.

BRIBE, crim. law. The gift or promise, which is accepted, of = some=20 advantage, as the inducement for some illegal act or omission; or of = some=20 illegal emolument, as a consideration, for preferring one person to = another, in=20 the performance of a legal act.

BRIBERY, crim. law. The receiving or offering any undue reward = by or=20 to any person whomsoever, whose ordinary profession or business relates = to the=20 administration of public justice, in order to influence his behaviour in = office,=20 and to incline him to act contrary to his duty and the known rules of = honesty=20 and integrity. 3 Inst. 149; 1 Hawk. P. C. 67, s. 2 4 Bl. Com. 139; 1 = Russ. Cr.=20 156.

2. The term bribery extends now further, and includes the offence of = giving a=20 bribe to many other officers. The offence of the giver and of the = receiver of=20 the bribe has the same name. For the sake of distinction, that of the = former,=20 viz : the briber, might be properly denominated active. bribery; while = that of=20 the latter, viz : the person bribed, might be called passive = bribery.

3. Bribery at elections for members of parliament, has always been a = crime at=20 common law, and punishable by indictment or information. It still = remains so in=20 England notwithstanding the stat. 24 Geo. H. c. 14 3 Burr. 1340, 1589. = To=20 constitute the offence, it is not necessary that the person bribed = should, in=20 fact, vote as solicited to do 3 Burr. 1236; or even that he should have = a right=20 to vote at all both are entirely immaterial. 3 Bur. 1590-1.

4. An attempt to bribe, though unsuccessful, has been holden to be = criminal,=20 and the offender may be indicted. 2 Dall. 384; 4 Burr. 2500 3 Inst. 147; = 2=20 Campb. R. 229; 2 Wash. 88; 1 Virg. Cas. 138; 2 Virg. Cas. 460.

BRIBOUR. One that pilfers other men's goods; a thief. See 28 = E. II.,=20 c. 1.

BRIDGE. A building constructed over a river, creek, or other = stream,=20 or ditch or other place, in order to facilitate the passage over the = same. 3=20 Harr. 108.

2. Bridges are of several kinds, public and private. Public bridges = may be=20 divided into, 1st. Those which belong to the public; as state, county, = or=20 township bridges, over which all the people have a right to pass, with = or=20 without paying toll these are built by public authority at the public = expense,=20 either of the state itself, or a district or part of the state.

3. - 2d. Those which have been built by companies, or at the expense = of=20 private individuals, and over Which all the people have a right to pass, = on the=20 payment of a toll fixed by law. 3d. Those which have been built by = private=20 individuals and which have been dedicated to public uscs. 2 East, R. = 356; 5=20 Burr. R. 2594; 2 Bl. R. 685 1 Camp. R. 262, n.; 2 M. & S. 262.

4. A private bridge is one erected for the use of one or more private = persons; such a bridge will not be considered a public bridge, although = it may=20 be occasionally used by the public. 12 East, R. 203-4. Vide 7 Pick. R. = 844; 11=20 Pet. R. 539; 7 N. H. Rcp. 59; 1 Pick. R. 432; 4 John. Ch. R. 150.

BRIEF, eccl. law. The name of a kind of papal rescript. Briefs = are=20 writings sealed with wax, and differ in this respect from bulls, (q. v.) = which=20 are scaled with lead. They are so called, because they usually are short = compendious writings. Ayl. Parerg. 132. See Breve.

BRIEF, practice. An abridged statement of a party's case.

2. It should contain : 1st. A statement of the names of the parties, = and of=20 their residence and occupation, the character in which they sue and are = sued,=20 and wherefore they prosecute or resist the action. 2d. An abridgment of = all the=20 pleadings. 3d. A regular, chronological, and methodical statement of the = facts=20 in plain common language. 4th. A summary of the points or questions in = issue,=20 and of the proof which is to support such issues, mentioning specially = the names=20 of the witnesses by which the facts are to be proved, or if there be = written=20 evidence, an abstract of such evidence. 5th. The personal character of = the=20 witnesses should be mentioned; whether the moral character is good or = bad,=20 whether they are naturally timid or over-zealous, whether firm or = wavering. 6th.=20 If known, the evidence of the opposite party, and such facts as are = adapted to=20 oppose, confute, or repel it. Perspicuity and conciseness are the most = desirable=20 qualities of a brief, but when the facts are material they cannot be too = numerous when the argument is pertinent and weighty, it cannot be too=20 extended.

3. Brief is also used in the sense of breve. (q. v.)

BRIEF OP TITLE, practice, conveyancing. An abridgment of all = the=20 patents, deeds, indentures, agreements, records, and papers relating to = certain=20 real estate.

2. In making a brief of title, the practitioner should be careful to = place=20 every deed and other paper in chronological order. The date of each = deed; the=20 names of the parties; the consideration; the description of the = property; should=20 be particularly, noticed, and all covenants should also be particularly=20 inserted.

3. A vendor of an interest in realty ought to have his title = investigated,=20 abstracted, and evidence in proof of it ready to be produced and = established=20 before he sells; for if he sell with a confused title, or without being = ready to=20 produce deeds and vouchers, he must be at the expense of clearing it. 1 = Chit.=20 Pr. 304, 463.

BRINGING MONEY INTO COURT. The act of depositing money in the = hands of=20 the proper officer of the court, for the purpose of satisfying a debt or = duty,=20 or of an interpleader.

2. Whenever a tender of money is pleaded, and the debt is not = discharged by=20 the tender and refusal, money may be brought into court, without asking = leave of=20 the court; indeed, in such cases the money must be brought into court = inorder to=20 have the benefit of the tender. In other cases, leave must be had, = before the=20 money can be brought into court.

3. In general, if the money brought into court is sufficient to = satisfy the=20 plaintiff 's claim, he shall not recover costs. See Bac. Ab. Tender, = &c.

BROCAGE, contracts. The wages or commissions of a broker his=20 occupation is also sometimes called brocage. This word is also spelled=20 brokerage.

BROKERAGE, contracts. The trade or occupation of a broker; the = commissions paid to a broker for his services.

BROKERS, commerce. Those who are engaged for others, in the=20 negotiation of contracts, relative to property, with the custody of = which they=20 have no concern. Paley on Agency, 13; see Com. Dig. Merchant, C.

2. A broker is, for some purposes, treated as the agent of both = parties; but=20 in the first place, he is deemed the agent only of the person by whom he = is=20 originally employed; and does not become the agent of the other until = the=20 bargain or contract has been definitely settled, as to the terms, = between the=20 principals. Paley on Ag. by Lloyd, 171, note p; 1 Y. &, J. 387.

3. There are several kinds of brokers, as, Exchange Brokers, such as=20 negotiate in all matters of exchange with foreign countries.

4. Ship Brokers. Those who transact business between the owners of = vessels,=20 and the merchants who send cargoes.

5. Insurance Brokers. Those who manage the concerns both of the = insurer and=20 the insured.

6. Pawn Brokers. Those who lend money, upon goods, to necessitous = people, at=20 interest.

7. Stock Brokers. Those employed to buy and sell shares of stocks in=20 corporations and companies. Vide Story on Ag. =A728 to 32; T. L. h. t.; = Maly. Lex=20 Mer. 143; 2 H. Bl. 555; 4 Burr, R. 2103; 4 Kent, Com. 622, note d, 3d = ed.; Liv.=20 on Ag. Index, h. t.; Chit. Com. L. Index, h. t.; and articles Agency; = dgent;=20 Bought note; Factor; Sold note.

BROTHELS, crim. law. Bawdy-houses, the common habitations of=20 prostitutes; such places have always been deemed common nuisances in the = United=20 States, and the keepers of them may be fined and imprisoned.

2. Till the time of Henry VIII, they were licensed in England, when = that=20 lascivious prince suppressed them. Vide 2 Inst. 205, 6; for the history = of these=20 pernicious places, see Merl. Rep. mot Bordel Parent Duchatellet, De la=20 Prostitution dans la ville de Paris, c. 5, =A71; Histoire de la = Legislation sur=20 les femmes publiques, & c., par M. Sabatier.

BROTHER, domest. relat. He who is born from the same father = and mother=20 with another, or from one of them only.

2. Brothers are of the whole blood, when they are born of the same = father and=20 mother, and of the half blood, when they are the issue of one of them = only.

3. In the civil law, when they are the children of the same father = and=20 mother, they are called brothers germain; when they descend from the = same=20 father, but not the same mother, they are consanguine brothers; when = they are=20 the issue of the same mother, but not the same father, they are uterine=20 brothers. A half brother, is one who is born of the same father or = mother, but=20 not of both. One born of the same parents before they were married, a = left-sided=20 brother; and a bastard born of the same father or mother, is called a = natural=20 brother. Vide Blood; Half-blood; Line; and Merl. Repert. mot Frere; = Dict. de=20 Jurisp. mot Frere; Code, 3, 28, 27 Nov. 84, praef; Dane's Ab. Index, h. = t.

BROTHER-IN-LAW, domestic relat. The brother of a wife, or the = hushand=20 of a sister. There is no relationship, in the former case, between the = hushand=20 and the brother-in-law, nor in the latter, between the brother and the = hushand=20 of the sister; there is only affinity between them. See Vaughan's Rep. = 302,=20 329.

BRUISE, med. jurisp. An injury done with violence to the = person,=20 without breaking the skin; it is nearly synonymous with contusion. (q . = v.) 1.=20 Ch. Pr. 38; vide 4 Car. & P. 381, 487, 558, 565; Eng. C. L. Rep. = 430, 526,=20 529. Vide Wound.

BUBBLE ACT, Eng. law. The name given to the statute 6 Geo. I., = c. 18,=20 which was passed in 1719, and was intended " for restraining several = extravagant=20 and unwarrantable practices therein mentioned." See 2 P. Wms. 219.

BUGGERY, crim. law. The detestable crime of having commerce = contrary=20 to the order of nature, by mankind with mankind, or with brute beasts, = or by=20 womankind with brute beasts. 3 Inst. 58; 12 Co. 36; Dane's Ab. Index, h. = t.;=20 Merl. Repert. mot Bestialie. This is a highly penal offence.

BUILDING, estates. An edifice erected by art, and fixed upon = or over=20 the soil, composed of stone, brick, marble, wood, or other proper = substance,=20 'Connected together, and designed for use in the position in which it is = so=20 fixed. Every building is an accessory to the soil, and is, therefore, = real=20 estate: it belongs to the owner of the soil. Cruise, tit. 1, S. 46. Vide = 1 Chit.=20 Pr. 148, 171; Salk. 459; Hob. 131; 1 Mete. 258; Broom's Max. 172.

BULK, contracts. Said to be merchandise which is neither = counted)=20 weighed, nor measured.

2. A sale by bulk, is a sale of a quantity of goods,, such as they = are,=20 without measuring, counting, or weighing. Civ. Code of Louis. a. 3522, = n. 6.

BULL, eccles. law. A letter from the pope of Rome, written on=20 parchment, to which is attached a leaden seal, impressed with the images = of=20 Saint Peter and Saint Paul.

2. There are three kinds of apostolical rescripts, the brief, the = signature,=20 and the bull, which last is most commonly used in legal matters. Bulls = may be=20 compared to the edicts and letters-patent of secular princes: when the = bull=20 grants a favor, the seal is attached by means of silken strings; and = when to=20 direct execution to be performed, with flax cords. Bulls are written in = Latin,=20 in a round and Gothic hand. Ayl. Par. 132; Ayl. Pand. 21; Mer. Rep. h. = t.

BULLETIN. An official account of public transactions on = matters of=20 importance. In France, it is the registry of the laws.

BULLION. In its usual acceptation, is uncoined gold or silver, = in=20 bars, plates, or other masses. 1 East, P. C. 188.

2. In the acts of Congress, the term is also applied to copper = properly=20 manufactured for the purpose of being coined into money. For the acts of = Congress, authorizing the coinage of bullion for private individuals, = see Act of=20 April 2, 1792, s. 14, 1 Story, 230; Act of May 19, 1828, 4 Sharsw. cont. = of=20 Story's Laws U. S. 2120; Act of June 28, 1834, Id. 2376; Act of January = 18,=20 1837, Id. 2522 to 2529. See, for the English law on the subject of = crimes=20 against bullion, 1 Hawk. P. C. 32 to 41.

BUOY. A piece of wood, or an empty barrel, floating on the = water, to=20 show the place where it is shallow, to indicate the danger there is to=20 navigation. The act of Congress, approved the 28th September, 1850, = enacts, "=20 that all buoys along the coast, in bays, harbors, sounds, or channels, = shall be=20 colored and numbered, so that passing up the coast or sound, or entering = the=20 bay, harbor or channel, red buoys with even numbers, shall be passed on = the=20 starboard hand, black buoys, with uneven numbers, on the port hand, and = buoys=20 with red and black stripes on either hand. Buoys in channel ways to be = colored=20 with alternate white and black perpendicular stripes."

BURDEN OF PROOF. This phrase is employed to signify the duty = of=20 proving the facts in dispute on an issue raised between the parties in a = cause.

2. The burden of proof always lies on the party who takes the = affirmative in=20 pleading. 1 Mass. 71, 335; 4 Mass. 593; 9 Pick. 39.

3. In criminal cases, as every man is presumed to be innocent until = the=20 contrary is proved, the burden of proof rests on the prosecutor, unless = a=20 different provision is expressly made by statute. 12 Wheat. See Onus=20 probandi.

BUREAU. A French word, which literally means a large writing = table. It=20 is used figuratively for the place where business is transacted: it has = been=20 borrowed by us, and used in nearly the same sense; as, the bureau of the = secretary of state. Vide Merl. Repert. h. t.

BUREAUCRACY. The abuse of official influence in the affairs of = government; corruption. This word has lately been adopted to signify = that those=20 persons who are employed in bureaus abuse their authority by intrigue to = promote=20 their own benefit, or that of friends, rather than the public good. The = word is=20 derived from the French.

BURGAGE, English law. A species of tenure in socage; it is = where the=20 king or other person is lord of an ancient borough, in which the = tenements are=20 held by a rent certain. 2 B1. Com. 82.

BURGESS. A magistrate of a borough; generally, the chief = officer of=20 the corporation, who performs, within the borough, the same kind of = duties which=20 a mayor does in a city. In England, the word is sometimes applied to all = the=20 inhabitants of a borough, who are called burgesses sometimes it = signifies the=20 representatives of a borough in parliament.

BURGH. A borough; (q. v.) a castle or town.

BURGLA. One who commits a burglary. (q. v.)

BURGLARIOUSL, pleadings. This is a technical word, which must = be=20 introduced into an indictment for burglary; no other word will answer = the same=20 purpose, nor will any circumlocution be sufficient. 4 Co. 39; 5 Co. 121; = Cro.=20 Eliz. 920; Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Chit. = Cr. Law,=20 242.

BURGLARY, crim. law. The breaking and entering the house of = another in=20 the night time, with. intent to commit a felony therein, whether the = felony be=20 actually committed or not. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s. 1; = 4 Bl.=20 Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2; Roscoe, = Cr. Ev.=20 252; Coxe, R. 441; 7 Mass. Rep. 247.

2. The circumstances to be considered are, 1. in what place the = offence can=20 be committed; 2. at what time 3. by what means; 4. with what = intention.

3.- 1. In what place a burglary can be committed. It must, in = general, be=20 committed in a mansion house, actually occupied as a dwelling; but if it = be left=20 by the owner animo revertendi, though no person resides in it in his = absence, it=20 is still his mansion. Fost. 77; 3 Rawle, 207. The principal question, at = the=20 present day, is what is to be deemed a dwelling-house. 1 Leach, 185; 2 = Leach,=20 771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558; Hawk. c. 38, s. 18; = 1 Russ.=20 on Cr. 16; 3 Berg. & Rawle, 199 4 John. R. 424 1 Nott & M'Cord, = 583; 1=20 Hayw. 102, 242; Com. Dig. Justices, P 5; 2 East, P. C. 504.

4. - 2. At what time it must be committed. The offence must be = committed in=20 the night, for in the day time there can be no burglary. 4 Bl. Com. 224. = For=20 this purpose, it is deemed night when by the light of the sun a person = cannot=20 clearly discern the face or countenance of another 1 Hale, 550; 3 nst. = 63. This=20 rule, it is evident, does not apply to moonlight. 4 Bl. Com. 224; 2 = Russ. on Cr.=20 32. The breaking and entering need not be done the same night 1 Russ. = & Ry.=20 417; but it is necessary the breaking and entering should be in the = night time,=20 for if the breaking be in daylight and the entry in the night, or vice = versa, it=20 will not be burglary. 1 Hale, 551; 2 Russ. on Cr. 32. Vide Com. Dig. = Justices, P=20 2; 2 Chit. Cr. Law, 1092.

5.-3. The means used. There must be both a breaking and an entry. = First, of=20 the breaking, which may be actual or constructive. An actual breaking = tal-,es=20 place when the burglar breaks or removes ally part of, the house, or the = fastenings provided for it, with violence. Breaking a window, taking a = pane of=20 glass out, by breaking or bending the nails, or other fastenings, = raising a=20 latch where the door is not otherwise fastened; picking open a lock with = a false=20 key; putting back the lock of a door or the fastening of a window, with = an=20 instrument; turning the key when the door is locked in the inside, or=20 unloosening any other fastening which the owner has provided, are = several=20 instances of actual breaking. According to the Scotch law, entering a = house by=20 means of the true key, while in the door, or when it had been stolen, is = a=20 breaking. Alis. Pr. Cr. Law, 284. Constructive breakings occur when the = burglar=20 gams an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 22 Chit. = Cr. Law,=20 1093. The breaking of an inner door of the house will be sufficient to=20 constitute a burglary. 1 Hale, 553. Any, the least, entry, with the = whole or any=20 part of the body , hand, or foot, or with any instrument or weapon, = introduced=20 for the purpose of committing a felony, will be sufficient to constitute = the=20 offence. 3 Inst. 64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com. Dig. = Justices, P=20 4. But the introduction of an instrument, in the act of breaking the = house, will=20 not be a sufficient entry, unless it be introduced for the purpose of = committing=20 a felony.

6. - 4. The intention. The intent of the breaking and entry must be=20 felonious; if a felony however be committed, the act will be prima facie = evidence of an intent to commit it. If the breaking and entry be with an = intention to commit a bare trespass, and nothing further is done, the = offence=20 will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2 Russ. = on Cr.=20 33.

BURGOMASTER. In Germany this is, the title by which an officer = who=20 performs the duties of a mayor is, called.

BURIAL. The act of interring the dead.

2. No burial is lawful unless made in conformity with the local = regulations;=20 an when a dead body has been found, it cannot be lawfully buried until = the=20 coroner has holden an inquest over it. In England. it is the practice = for=20 coroners to issue warrants to bury, after a view. 2 Umf. Lex. Coron. = 497,=20 498.

BURNING. Vide Accident; Arson; Fire, accidental.

BURYING-GROUND. A place appropriated for depositing the dead; = a=20 cemetery. In Massachusetts, burying-grounds cannot, be appropriated to = roads=20 without the consent of the owners. Massachusetts Revised St. 239.

BUSHEL, measure. The Winchester bushel, established by the 13 = W. III.=20 c. 5, A. D. 1701, was made the standard of grain; a cylindrical vessel, = eighteen=20 and a half inches in diameter, and eight inches deep inside, contains a = bushel;=20 the capacity is 2145.42 cubic inches. By law or usage it is established = in most=20 of the United States. The exceptions, as far as known, are Connecticut, = where=20 the bushel holds 2198 cubic inches Kentucky, 2150 2/3; Indiana, Ohio,=20 Mississippi and Missouri, where it contains 2150.4 cubic inches. Dane's = Ab. c.=20 211, a. 12, s. 4. See the whole subject discussed in report of the = Secretary of=20 State of the United States to the Senate, Feb. 22, 1821.

BUSINESS HOURS. The time of the day during which business is=20 transacted. In respect to the time of presentment and demand of bills = and notes,=20 business hours generally range through the whole day down to the hours = of rest=20 in the evening, except when the paper is payable it a bank or by a = banker. 2=20 Hill, N. Y. R. 835. See 3 Shepl. 67; 5 Shepl. 230.

BUTT. A measure of capacity, equal to one hundred and eight = gallons.=20 See Measure.

BUTTS AND BOUNDS. This phrase is used to express the ends and=20 boundaries of an estate. The word butt, being evidently derived from = the, French=20 bout, the end; and bounds, from boundary.

TO BUY. To purchase. Vide Sale.

BUYER, contracts. A purchaser; (q. v.) a vendee.

BUYING OF TITLES. The purchase of the rights of a person to a = piece of=20 land when the seller is disseised.

2. When a deed is made by one who, though having a legal right to = land, is at=20 the time of the conveyance disseised, as a general rule of the common = law, the=20 sale is void; the law will not permit any person to sell a quarrel, or, = as it is=20 commonly termed, a pretended title. Such a conveyance is an offence at = common=20 law, and by a statute of Hen. VIII. This rule has been generally adopted = in the=20 United States, and is affirmed by express statute. In some of the = states, it has=20 been modified or abolished. It has been recognized in Massachusetts and = Indiana.=20 1 Ind. R. 127. In Massacbusetts, there is no statute on the subject, but = the act=20 has always been unlawful. 5 Pick. R. 356. In Connecticut the seller and = the=20 buyer forfeit, each one half the value of the land. 4 Conn. 575. In New = York, a=20 person disseised cannot convey, except by way of mortgage. But the = statute does=20 not apply to judicial sales. 6 Wend. 224; see 4 Wend. 474; 2 John. Cas. = 58; 3=20 Cow. 89; 5 Wend. 532; 5 Cow. 74; 13 John. 466; 8 Wend. 629; 7 Wend. 53, = 152 11=20 Wend. 442; 13 John. 289. In North Carolina and South Carolina, a = conveyance by a=20 disseisee is illegal; the seller forfeits the land, andthe buyer its = value. In=20 Kentucky such sale is void. 1 Dana, R. 566. But when the deeds were made = since=20 the passage of the statute of 1798, the grantee might, under that act, = sue for=20 land conveyed to him, which was adversely possessed by another, as the = grantor=20 might have done before. The statute rendered transfers valid to pass the = title.=20 2 Litt. 393; 1 Wheat. 292; 2 Litt. 225; 3 Dana, 309. The statute of = 1824, " to=20 revive and amend the champerty and maintenance law," forbids the buying = ot=20 titles where there is an adverse possession. See 3 J. J. Marsh. 549; 2 = Dana,=20 374; 6 J. J. Marsh. 490, 584. In Ohio, the purchase of land from one = against=20 whom a suit is pending for it, is void, except against himself, if he = prevails.=20 Walk. Intr. 297, 351, 352. In Pennsylvania. 2 Watts, R. 272 Illinois, = 111. Rev.=20 L. 130; Missouri, Misso. St. 119, a deed is valid, though there be an = adverse=20 possession. 2 Hill, Ab. c. 33, =A742 to 52.

3. The Roman law forbade the sale of a right or thing in litigation. = Code, 8.=20 37, 2.

BY ESTIMATION, contracts. In sales of land it not unfrequently = occurs=20 that the property is said to contain a certain number of acres, by = estimation,=20 or so many acres, more or less. When these expressions are used, if the = land=20 fall short by a small quantity, the purchaser will receive no relief. In = one=20 case of this kind, the land fell short two-fifths, and the purchaser = received no=20 relief. 2 Freem. 106. Vide 1 Finch, 109 1 Call, R. 301; 6 Binn. Rep. 106 = 1 Serg.=20 & Pawle, R. 166; 1 Yeates, R. 322 2 John. R. 37 5 John. R. 508; 15 = John. R.=20 471; 1 Caines, R. 493; 3 Mass. Rep. 380; 5 Mass. R. 355; 1 Root: R. 528; = 4 Hen.=20 & Munf. 184. The meaning of these words has never been precisely = ascertained=20 by judicial decision. See Sugd. Vend. 231 to 236; Wolff, Inst. =A7658 = and the=20 cases cited under the articles Constitution; More or less; = Subdivision.

BY-LAWS. Rules and ordinances made by a corporation for its = own=20 government.

2. The power to make by-laws is usually conferred by express terms of = the=20 charter creating the corporation, though, when not expressly granted, it = is=20 given by implication, and it is incident to the very existence of a = corporation.=20 When there is an express grant, limited to certain cases and for certain = purposes, the corporate power of legislation is confined to the objects=20 specified, all others being excluded by implication. 2 Kyd on Corp. 102; = 2 P.=20 Wms. 207; Ang. on Corp. 177. The power of making by-laws, is to be = exercised by=20 those persons in whom it is vested by the charter; but if that intrument = is=20 silent on that subject, it resides in the members of the corporation at = large.=20 Harris & Gill's R. 324; 4 Burr. 2515, 2521; 6 Bro. P. C. 519.

3. The constitution of the United States, and acts of congress made = in=20 conformity to it the constitution of the state in which a corporation is = located, and acts of the legislature, constitutionally made, together = with the=20 common-law as there accepted, are of superior force to any by-law; and = such=20 by-law, when contrary to either of them, is therefore void, whether the = charter=20 authorizes the making of such by-law or not; because no legislature can = grant=20 power larger than they themselves possess. 7 Cowen's R. 585; Id. 604 5 = Cowen's=20 R. 538. Vide, generally, Aug. on Corp. ch. 9; Willc. on Corp. ch. 2, s. = 3; Bac.=20 Ab. h. t.; 4 Vin. Ab. 301 Dane's Ab. Index, h. t., Com. Dig. h. t.; and = Id. vol.=20 viii. h. t.

BY THE BYE, Eng. law. A declaration may be filed without a new = process=20 or writ, when the defendant is in court in another case, by the = plaintiff in=20 that case having filed common bail for him; the declaration thus filed = is called=20 a declaration by the bye. 1 Crompt. 96; Lee's Diet. of Pr. Declaration = IV.

Index

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