Bouvier's Law Dictionary, 1856 Edition

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Bouvier's Law Dictionary
1856 Edition

E CONVERSO. On the other side or hand; on the contrary.

E PLURIBUS UNUM. One from more. The motto of the arms of the = United=20 States.

EAGLE, money. A gold coin of the United States, of the value = of ten=20 dollars. It weighs two hundred and fifty-eight grains. Of one thousand = parts,=20 nine hundred are of pure gold, and one hundred of all Act of January 18, = 1837, 4=20 Sharsw. Cont. of Story's L. U. S. 2523, 4. Vide Money.

EAR-WITNESS. One who attests to things he has heard = himself.

EARL, Eng. law. A title of nobility next below a marquis and = above a=20 viscount.

2. Earls were anciently called comites, because they were wont = comitari=20 regem, to wait upon the king for counsel and advice. He was also called=20 shireman, because each earl had the civil government of a shire.

3. After the Norman conquest they were called counts, whence the = shires=20 obtained the names of counties. They have now nothing to do with the = government=20 of counties, which has entirely devolved on the sheriff, the earl's = deputy, or=20 vice comes.

EARLDOM. The seigniory of an earl; the title and dignity of an = earl.

EARNEST, contracts. The payment of a part of the price of = goods sold,=20 or the delivery of part of such goods, for the purpose of binding the=20 contract.

2. The effect of earnest is to bind the goods sold, and upon their = being paid=20 for without default, the buyer is entitled to them. But notwithstanding = the=20 earnest, the money must be paid upon taking away the goods, because no = other=20 time for payment is appointed; earnest only binds the bargain, and gives = the=20 buyer a right to demand, but a demand without payment of the money is = void;=20 after earnest given the vendor cannot sell the goods to another, without = a=20 default in the vendee, and therefore if the latter does not come and = pay, and=20 take the goods, the vendor ought to go and request him, and then if he = does not=20 come, pay for the goods and take them away in convenient time, the = agreement is=20 dissolved, and he is at liberty to sell them to any other person. 1 = Salk. 113: 2=20 Bl. Com. 447; 2 Kent, Com. 389; Ayl. Pand. 450; 3 Campb. R. 426.

EASEMENTS, estates. An easement is defined to be a liberty = privilege=20 or advantage, which one man may have in the lands of another, without = profit; it=20 may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5 Barn. = &=20 Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131, 194; 2 = McCord,=20 R. 451; 14 Mass. R. 49 3 Pick. R. 408.

2. This is an incorporeal hereditament, and corresponds nearly to the = servitudes or services of the civil law. Vide Lilly's Reg. h. t. 2 Bouv. = Inst.=20 n. 1600, et seq.; 3 Kent, Com. 344: Cruise, Dig. t. 31, c. 1, s. 17; 2 = Hill. Ab.=20 c. 5; 9 Pick. R. 51; 1 Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 102; = Whatl. on=20 Eas. passim; and the article Servitude.

EASTER TERM, Eng. law. One of the four terms of the courts. It = is now=20 a fixed term beginning on the 15th of April and ending the 8th of May in = every=20 year. It was formerly a movable term.

EAT INDE SINE DIE. Words used on an acquittal, or when a = prisoner is=20 to be discharged, that he may go without day, that is, that he be = dismissed.=20 Dane's Ab. Index, h. t.

EAVES-DROPPERS, crim. law. Persons as wait under walls or = windows or=20 the eaves of a house, to listen to discourses, and thereupon to frame=20 mischievous tales.

2. The common law punishment for this offence is fine, and finding = sureties=20 for good behaviour. 4 Bl. Com. 167; Burn's Just. h. t.; Dane's Ab. = Index, h. t.;=20 1 Russ. Cr. 302.

3. In Tennessee, an indictment will not lie for eaves-dropping. 2 = Tenn. R.=20 108.

ECCHYMOSIS, med. jur. Blackness. It is an extravasation of = blood by=20 rupture of capillary vessels, and hence it follows contusion; but it may = exist,=20 as in cases of scurvy, and other morbid conditions, without the latter. = Ryan's=20 Med. Jur. 172.

ECCLESIA. In classical Greek this word signifies any assembly, = and in=20 this sense it is used in Acts xix. 39. But ordinarily, in the New = Testament, the=20 word denotes a Christian assembly, and is rendered into English by the = word=20 church. It occurs thrice only in, the Gospels, viz. in Matt. xvi. 18, = and xviii.=20 17; but very frequently in the other parts of the New Testament, = beginning with=20 Acts ii. 47. In Acts xix. 37, the word churches, in the common English = version,=20 seems to be improperly used to denote heathen temples. Figuratively, the = word=20 church is employed to signify the building set apart for the Christian=20 assemblies; but the word eclesia is not used in the New Testament in = that=20 sense.

ECCLESIASTIC. A clergyman; one destined to the divine = ministry, as, a=20 bishop, a priest, a deacon. Dom. Lois Civ. liv. prel. t. 2, s. 2, n. = 14.

ECCLESIASTICAL. Belonging to, or set apart for the church; as, = distinguished from civil or secular. Vide Church.

ECCLESIASTICAL COURTS. English law. Courts held by the king's=20 authority as supreme governor of the church, for matters which chiefly = concern=20 religion.

2. There are ten courts which may be ranged under this class. 1. The=20 Archdeacon's Court. 2. The Consistory Court. 3. The Court of Arches. 4. = The=20 Court of Peculiars. 5. The Prerogative Court. 6. The Court of Delegates, = which=20 is the great court of appeals in all ecclesiastical causes. 7. The Court = of=20 Convocation. 8. The Court of Audience. 9. The Court of Faculties. 10. = The Court=20 of Commissioners of Review.

ECCLESIASTICAL LAW. By this phrase it is intended to include = all those=20 rules which govern ecclesiastical tribunals. Vide Law Canon.

ECCLESIASTICS, canon law. Those persons who compose the = hierarchial=20 state of the church. They are regular and secular. Aso & Man. Inst. = B. 2, t.=20 5, c. 4, =A71.

ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease = accompanied=20 by apoplectic convulsions, and which produces aberration of mind at = childbirth.=20 The word Eclampsia is of Greek origin - Significat splenaorem fulgorem=20 effulgentiam, et emicationem quales ex ocuIis aliquando prodeunt. = Metaphorice=20 sumitur de emicatione flammae vitalis in pubertate et aetaeis vigore. = Castelli,=20 Lex. Medic.

2. An ordinary person, it is said, would scarcely observe it, and it = requires=20 the practised and skilled eye of a physician to discover that = the-patient is=20 acting in total unconsciousness of the nature and effect of her acts. = There can=20 be but little doubt that many of the tragical cases of infanticide = proceed from=20 this cause. The criminal judge and lawyer cannot inquire with too much = care into=20 the symptoms of this disease, in order to discover the guilt of the = mother,=20 where it exists, and to ascertain her innocence, where it does not. See = two well=20 reported cases of this kind in the Boston Medical Journal, vol. 27, No. = 10, p.=20 161.

EDICT. A law ordained by the sovereign, by which he forbids or = commands something it extends either to the whole country, or only to = some=20 particular provinces.

2. Edicts are somewhat similar to public proclamations. Their = difference=20 consists in this, that the former have authority and form of law in = themselves,=20 whereas the latter are at most, declarations of a law, before enacted by = congress, or the legislature.

3. Among the Romans this word sometimes signified, a citation to = appear=20 before a judge. The edict of the emperors, also called constitutiones = principum,=20 were new laws which they made of their own motion, either to decide = cases which=20 they had foreseen, or to abolish or change some ancient laws. They were=20 different from their rescripts or decrees. These edicts were the sources = which=20 contributed to the formation of the Gregorian, Hermogenian, Theodosian, = and=20 Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1, 2, 7; Code, 1, 1 Nov. = 139.

EDICT PERPETUAL. The title of a compilation of all the edicts. = This=20 collection was made by Salvius Julianus, a jurist who was, selected by = the=20 emperor Adrian for the purpose, and who performed his task with credit = to=20 himself.

EDICTS OF JUSTINIAN. These are thirteen constitutions or laws = of that=20 prince, found in most editions of the corpus juris civilis, after the = Novels.=20 Being confined to matters of police in the provinces of the empire, they = are of=20 little use.

EFFECT. The operation of a law, of an agreement, or an act, is = called=20 its effect.

2. By the laws of the United States, a patent cannot be granted for = an effect=20 only, but it may be for a new mode or application of machinery to = produce=20 effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H. R. = 61.

EFFECTS. This word used simpliciter is equivalent to property = or,=20 worldly substance, and may carry the whole personal estate, when used in = a will.=20 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves. 507; 6 Madd. Ch. R. 119. But = when it is=20 preceded and connected with words of a narrower import, and the bequest = is not=20 residuary, it will be confined to species of property ejusdem generis = with those=20 previously described. 13 Ves. 39; 15 Ves. 826; Roper on Leg. 210.

EFFIGY, crim. law. The figure or representation of a = person.

2. To make the effigy of a person with an intent to make him the = object of=20 ridicule, is a libel. (q. v.) Hawk. b. 1, c. 7 3, s. 2 14 East, 227; 2 = Chit. Cr.=20 Law, 866.

3. In France an execution by effigy or in effigy is adopted in the = case of a=20 criminal who has fled from justice. By the public exposure or exhibition = of a=20 picture or representation of him on a scaffold, on which his name and = the decree=20 condemning him are written, he is deemed to undergo the punishment to = which he=20 has been sentenced. Since the adoption of the Code Civil, the practice = has been=20 to affix the names, qualities or addition, and the residence of the = condemned=20 person, together with an extract from the sentence of condemnation, to a = post=20 set upright in the ground, instead of exhibiting a portrait of him on = the=20 scaffold. Repertoire de Villargues; Biret, Vo cab.

EFFRACTION. A breach, made by the use of force.

EFFRACTOR. One who breaks through; one who commits a = burglary.

EGO. I, myself. This term is used in forming genealogical = tables, to=20 represent the person who is the object of inquiry.

EIGNE, persons. This is a corruption of the French word aine, = eldest=20 or first born.

2. It is frequently used in our old law books, bastard eigne. = signifies an=20 elder bastard when spoken of two children, one of whom was; born before = the=20 marriage of his parents, and the other after; the latter is called = mulier=20 puisne. Litt. sect. 399.

EIRE, or EYRE, English law. A journey. Justices in eyre, were=20 itinerant judges, who were sent once in seven years with a general = commission in=20 divers counties, to hear and determine such causes as were called pleas = of the=20 crown. Vide Justices in eyre.

EJECTMENT, remedies. The name of an action which lies for the = recovery=20 of the possession of real property, and of damages for the unlawful = detention.=20 In its nature it is entirely different from a real action. 2 Term Rep; = 696, 700.=20 See 17 S. & R. 187, and, authorities cited.

2. This subject may be considered with reference, 1st. To the form of = the,=20 proceedings. 2d. To the nature of the property or thing to be recovered. = 3d. To=20 the right to such property. 4th. To the nature of the ouster or injury. = 5th. To=20 the judgment.

3. - 1. In the English practice, which is still adhered to in some = states, in=20 order to lay the foundation of this action, the party claiming title = enters upon=20 the land, and then gives a lease of it to a third person, who, being = ejected by=20 the other claimant, or some one else for him, brings a suit against, the = ejector=20 in his own name; to sustain the action the lessee must prove a good = title in the=20 lessor, and, in this collateral way, the title is tried. To obviate the=20 difficulty of proving these forms, this action has been made, = substantially, a=20 fictitious process. The defendant agrees, and is required to confess = that a=20 lease was made to the plaintiff, that he entered under it, and has been = ousted=20 by the defendant, or, in other words, to admit lease, entry, and ouster, = and=20 that he will rely only upon his title. An actual entry, however, is = still=20 supposed, and therefore, an ejectment will not lie, if the right of = entry is=20 gone. 3 Bl. Com. 199 to 206. In Pennsylvania, New York, Arkansas, and = perhaps=20 other states, these fictions have all been abolished, and the writ of = ejectment=20 sets forth the possessionof the plaintiff, and an unlawful entry on the = part of=20 the defendant.

4. - 2. This action is in general sustainable only for the recovery = of the=20 possession of property upon which an entry might in point of fact be = made, and=20 of which the sheriff could deliver actual possession: it cannot, = therefore, in=20 general, be sustained for the recovery of property which, in legal=20 consideration, is not tangible; as, for a rent, or other incorporeal=20 heriditaments, a water-course, or for a mere privilege of a landing held = in=20 common with other citizens of a town. 2 Yeates, 331; 3 Bl. Com. 206; = Yelv. 143;=20 Run. Eject. 121 to 136 Ad. Eject. c. 2; 9 John. 298; 16 John. 284.

5. - 3. The title of the party having a right of entry maybe in = fee-simple,=20 fee-tail, or for life or years; and if it be the best title to the = property the=20 plaintiff will succeed. The plaintiff must recover on the strength. of = his=20 title, and not on the weakness or deficiency of that of the defendant. = Addis.=20 Rep. 390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 Burr. = 2487; 1=20 East, R. 246; Run. Eject. 15; 5 T. R. 110.

6. - 4. The injury sustained must in fact or in point of law have = amounted to=20 an ouster or dispossession of the lessor of the plaintiff, or of the = plaintiff=20 himself, where the fictions have been abolished; for if there be no = ouster, or=20 the defendant be not in possession at the time of bringing the action, = the=20 plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R. = 335.

7. - 5. The judgment is that the plaintiff do recover his term, of = and in the=20 tenements, and, unless the damages be remitted, the damages assessed by = the jury=20 with the costs of increase. In Pennsylvania, however, and, it is = presumable, in=20 all those states where the fictitious form of this action has been = abolished,=20 the plaintiff recovers possession of the land generally, and not simply = a term=20 of years in the land. See 2 Seam. 251; 4 B. Monr. 210; 3 Harr. 73; 1 = McLean, 87.=20 Vide, generally, Adams on Ej.; 4 Bouv. Inst. n., 3651, et seq.; Run. = Ej.; Com.=20 Dig. h. t.; Dane's Ab. h. t.; 1 Chit. Pl. 188 to 193; 18 E. C. L. R. = 158; Woodf.=20 L. & T. 354 to 417; 2 Phil. Ev. 169.; 8 Vin. Ab. 323; Arch. Civ. Pl. = 503; 2=20 Sell. Pr. 85; Chit. Pr. lndex, h. t.; Bac. Ab. h. t Doct. Pl. 227; Am. = Dig. h.=20 t.; Report of the Commissioners to Revise the Civil Code of = Pennsylvania,=20 January 16, 1835, pp. 80, 81, 83; Coop. Justinian, 448.

EJUSDEM GENERIS. Of the same kind.

2. In the construction of laws, wills and other instruments, when = certain=20 things are enumerated, and then a phrase is used which might be = construed to=20 include other things, it is generally confined to things ejusdem = generas; as,=20 where an act (9 Ann. C. 20) provided that a writ of quo warranto might = issue=20 against persons who should usurp "the offices of mayors, bailiffs, port = reeves,=20 and other offices, within the cities, towns, corporate boroughs, and = places,=20 within Great Britain," &c.; it was held that "other offices" meant = offices=20 ejusdem generis; and that the word "places" signified places of the same = kind;=20 that is, that the offices must be corporate offices, and the places must = be=20 corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D. & Ry. = 393; 1 B.=20 & C. 237.

3. So, in the construction of wills, when certain articles are = enumerated,=20 the terra goods is to be restricted to those ejusdem generis. Bac. Ab. = Legacies,=20 B; 3 Rand. 191; 3 Atk. 61; Abr. Eq. 201; 2 Atk. 113.

ELDEST. He or she who has the greatest age.

2. The laws of primogeniture are not in force in the United States; = the=20 eldest child of a family cannot, therefore, claim any right in = consequence of=20 being the eldest.

ELECTION. This term, in its most usual acceptation, signifies = the=20 choice which several persons collectively make of a person to fill an = office or=20 place. In another sense, it means the choice which is made by a person = having=20 the right, of selecting one of two alternative contracts or rights. = Elections,=20 then, are of men or things.

2. - =A71. Of men. These are either public elections, or elections by = companies=20 or corporations.

3. - 1. Public elections. These should be free and uninfluenced = either by=20 hope or fear. They are, therefore, generally made by ballot, except = those by=20 persons in their representative capacities, which are viva voce. And to = render=20 this freedom as perfect as possible, electors are generally exempted = from arrest=20 in all cases, except treason, felony, or breach of the peace, during = their=20 attendance on election, and in going to and returning from them. And = provisions=20 are made by law, in several states, to prevent the interference or = appearance of=20 the military on the election ground.

4. One of the cardinal principles on the subject of elections is, = that the=20 person who receives a majority or plurality of votes is the person = elected.=20 Generally a plurality of the votes of the electors present is = sufficient; but in=20 some states a majority of all the votes is required. Each elector has = one=20 vote.

5. - 2. Elections by corporations or companies are made by the = members, in=20 such a way its their respective constitutions or charters direct. It is = usual in=20 these cases to vote a greater or lesser number of votes in proportion as = the=20 voter has a greater or less amount of the stock of the company or = corporation,=20 if such corporation or company be a pecuniary institution. And the = members are=20 frequently permitted to vote by proxy. See 7 John. 287; 9 John. 147; 5 = Cowen,=20 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend. 509; 1 Wend. 98.

6. - =A72. The election of things. 1. In contracts, when a; debtor is = obliged,=20 in an alternative obligation, to do one of two things, as to pay one = hundred=20 dollars or deliver one hundred bushels of wheat, he has the choice to do = the one=20 or the other, until the time of payment; he has not the choice, however, = to pay=20 a part in each. Poth. Obl. part 2, c. 3, art. 6, No. 247; ll John. 59. = Or, if a=20 man sell or agree to deliver one of two articles, as a horse or an ox, = he has=20 the election till the time of delivery; it being a rule that "in case an = election be given of two several things, always be, which is the first = agent,=20 and which ought to do the first act, shall have the election." Co. Litt. = 145, a;=20 7 John. 465; 2 Bibb, R. 171. On the failure of the person who has the = right to=20 make his election in proper time, the right passes to the opposite = party. Co.=20 Litt. 145, a; Viner, Abr. Election, B, C; Poth. Obl. No. 247; Bac. Ab. = h. t. B;=20 1 Desaus. 460; Hopk. R. 337. It is a maxim of law, that an election once = made=20 and pleaded, the party is concluded, electio semel facta, et placitum = testatum,=20 non patitur regress-um. Co. Litt. 146; 11 John. 241.

7.-2. Courts of equity have adopted the principle, that a person = shall not be=20 permitted to claim under any instrument, whether it be a deed or will, = without=20 giving full effect to it, in every respect, so far as such person is = concerned.=20 This doctrine is called into exercise when a testator gives what does = not belong=20 to him, but to some other person, and gives, to that person some estate = of his=20 own; by virtue of which gift a condition is implied, either that he = shall part=20 with his own estate or shall not take the bounty. 9 Ves. 515; 10 Ves. = 609; 13=20 Ves. 220. In such a case, equity will not allow the first legatee to, = insist=20 upon that by which he would deprive another legatee under the same will = of the=20 benefit to which he would be entitled, if the first legatee permited the = whole=20 will to operate, and therefore compels him to make his election between = his=20 right independent of the will, and the benefit under it. This principle = of=20 equity does not give the disappointed legatee the right to detain the = thing=20 itself, but gives a right to compensation out of something else. 2 Rop. = Leg.=20 378, c. 23, s. 1. In order to impose upon a party, claiming under a = will, the=20 obligation of making an election, the intention of the testator must be=20 expressed, or clearly implied in the will itself, in two respects; = first, to=20 dispose of that which is not his own; and, secondly, that the person = taking the=20 benefit under the will should, take under the condition of giving effect = thereto. 6 Dow. P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492;3 = Bro. C.=20 C. 255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves. jr. 367, 371; 3 = Ves.=20 jr. 65; Amb. 433; 3 Bro. P. C. by Toml. 277; 1 B. & Beat. 1; 1 = McClel. R.=20 424, 489, 541. See, generally, on this doctrine, Roper's Legacies, c. = 23; and=20 the learned notes of Mr. Swanston to the case Dillon v. Parker, 1 = Swanst. R.=20 394, >=20

Transfer interrupted!

n; 3 Desaus. R. 504; 8 Leigh, R. 389; = Jacob, R.=20 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13 Price, R. 607; 1 McClel. = R. 439;=20 1 Y. & C. 66; 2 Story, Eq. Jur. =A71075 to 1135; Domat, Lois Civ. = liv. 4, tit.=20 2, =A73, art. 3, 4, 5; Poth. Pand. lib. 30, t. 1, n. 125; Inst. 2, 20, = 4; Dig. 30,=20 1, 89, 7.

8. There are many other cases where a party may be compelled to make = an=20 election, which it does not fall within the plan of this work to = consider. The=20 reader will easily inform himself by examining the works above referred = to.

9. - 3. The law frequently gives several forms of action to the = injured=20 party, to enable him to recover his rights. To make a proper election of = the=20 proper remedy is of great importance. To enable the practitioner to make = the=20 best election, Mr. Chitty, in his valuable Treatise on Pleadings, p. = 207, et=20 seq., has very ably examined the subject, and given rules for forming a = correct=20 judgment; as his work is in the hands of every member of the profession, = a=20 reference to it here is all that is deemed necessary to say on this = subject. See=20 also, Hammond on Parties to Actions; Brown's Practical Treatise on = Actions at=20 Law, in the 45th vol. of the Law Library; U. S. Dig. Actions IV.

ELECTION OF ACTIONS, practice. It is frequently at the choice = of the=20 plaintiff what kind of an action to bring; a skilful practitioner would=20 naturally select that in which his client can most easily prove what is = his=20 interest in the matter affected; may recover all his several demands = against the=20 defendant; may preclude the defendant from availing himself of a = defence, which=20 be might otherwise establish; may most easily introduce his own = evidence; may=20 not be embarrassed by making too. many or too few persons parties to the = suit;=20 may try it in the county most convenient to himself; may demand bail = where it is=20 for the plaintiff's interest; may obtain a judgment with the least = expense and=20 delay; may entitle himself to costs; and may demand bail in error. 1 = Chit. Pl.=20 207 to 214.

2. It may be laid down as a general rule, that when a statute = prescribes a=20 new remedy, the plaintiff has his election either to adopt such remedy, = or=20 proceed at common law. Such statutory remedy is cumulative, unless the = statute=20 expressly, or by necessary implication takes away the Common law remedy. = 1 S.=20 & R. 32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 John. 220; = 1 Call,=20 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383; 4 Halst. 384; = 3 Chit.=20 Pr. 130.

ELECTION OF A DEVISE OR LEGACY. It is an admitted principle, = that a=20 person shall not be permitted to claim under any instrument, whether it = be a=20 deed or a will, without giving full effect to it in every respect, so = far as=20 such person is concerned. When a testator, therefore, gives what belongs = to=20 another and not to him, and gives to the owner some estate of his own; = this gift=20 is under an implied condition, either that he shall part with his own = estate, or=20 not take the bounty. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves. 697; 1 = Suppl.=20 to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator undertakes = to=20 dispose of an estate belonging to B, and devise to B other lands, or = bequeath to=20 him a legacy by the same will, B will not be permitted to keep his own = estate,=20 and enjoy at the same time the benefit of the devise or bequest made in = his=20 favor, but must elect whether he will part with his own estate, and = accept the=20 provisions in the will, or continue in possession of the former and = reject the=20 latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst. 436, 447 1 Rro. C. C. = 480; 2=20 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201; 1 Dev. Eq. R. 283; 3 = Desaus.=20 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1 Whart. 490; 5 Dana, 345; = White's L.=20 C. in Eq. *233.

2. The foundation of the equitable doctrine of election, is the = intention,=20 explicit or presumed, of the author of the instrument to which it is = applied,=20 and such is the, import of the expression by which it is described as=20 proceeding, sometimes on a tacit, implied, or constructive condition, = sometimes=20 on equity. See Cas. temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. = 536; 1=20 Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432, several = very full=20 notes.

3. As to what acts of acceptance or acquiescence will constitute an = implied=20 election, see 1 Swan. R. 381, n. a; and the cases there cited.

ELECTOR, government. One who has the right to make choice of = public=20 officers one, who has a right to vote.

2. The qualifications of electors are generally the same as those = required in=20 the person to be elected; to this, however, there is one exception; a=20 naturalized citizen may be an elector of president of the United States, = although he could not constitutionally be elected to that office.

ELECTORS OF PRESIDENT. Persons elected by the people, whose = sole duty=20 is to elect a president and vice-president of the U. S.

2. The Constitution provides, Am. art. 12, that "the electors shall = meet in=20 their respective states, and vote by ballot for president and = vice-president,=20 one of whom at least shall not be an inhabitant of the same state with=20 themselves; they shall name in their ballots the person voted for as = president,=20 and in distinct ballots the person voted for as vice-president; and they = shall=20 make distinct lists of all persons voted fur as president, and of all = persons=20 voted for as vice-president, and of the number of votes for each; which = list=20 they shall sign and certify, and transmit, sealed, to the seat of the = government=20 of the United States, directed to the president of the senate; the = president of=20 the senate shall, in the presence of the senate and the house of=20 representatives, open all the certificates, and the votes shall then be = counted;=20 the person having the greatest number of, votes for president, shall be = the=20 president, if such number be the majority of the whole number of = electors=20 appointed; and if no, person have such majority, then from the persons = having=20 the highest numbers, not exceeding three, on the list of those voted for = as=20 president, the house of representatives shall choose immediately, by = ballot, the=20 president. But in choosing the president, the votes shall be taken by = states,=20 the representation from each state having one vote; a quorum, for this = purpose,=20 shall consist of a member or members from two-thirds of the states, and = a=20 majority of all the states shall be necessary to a choice. And if the = house of=20 representatives shall not choose a president whenever the right of = choice shall=20 devolve upon them, before the fourth day of March next following, then = the=20 vice-president shall act as president, as in the case of the death or = other=20 constitutional disability of the president.

3. - 2. "The person having the greatest number of votes as = vice-president=20 shall be vice-president, if such number be a majority of the whole = number of=20 electors appointed and if no person have a majority, them from the two = highest=20 numbers on the list, the senate shall choose the vice-president; a = quorum for=20 the purpose shall consist of two-thirds of the whole number of senators, = and a=20 majority of the whole number shall be necessary to a choice. But no = person=20 constitutionally ineligible to the office of president, shall be = eligible to=20 that of vice-president of the United States." Vide 3 Story, Const. = =A71448 to=20 1470.

ELEEMOSYNARY. Charitable alms-giving.

2. Eleemosynary corporations are colleges, schools, and hospitals. 1 = Wood.=20 Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R. 346.

ELEGIT, Eng. practice, remedies. A writ of execution directed = to the=20 sheriff, commanding him to make delivery of a moiety of the party's = land, and=20 all his goods, beasts of the plough only excepted.

2. The sheriff, on the receipt of the writ, holds an inquest to = ascertain the=20 value of the lands and goods he has seized, and then they are delivered = to the=20 plaintiff, who retains them until the whole debt and damages have been = paid and=20 satisfied; during that term he is called tenant by elegit. Co. Litt. = 289. Vide=20 Pow. Mortg. Index, h. t.; Wats. Sher. 206. As to the law of the several = states=20 on the subject. of seizing land and extending it. see 1 Hill. Ab. = 556-6.

ELIGIBILITY. Capacity to be elected.

2. Citizens are in general eligible to all offices; the exceptions = arise from=20 the want of those qualifications which the constitution requires; these = are such=20 as regard his person, his property, or relations to the state.

3.- 1. In. general, no person is eligible to any office, until he has = attained the full age of twenty-one years; no one can be elected a = senator of=20 the United States, who shall not have attained the age of thirty years, = been a=20 'citizen of th e United States nine years and who shall not be an = inhabitant of=20 the, state for which he shall be chosen. Const. art. 1, s. 3. No person, = except=20 a natural born citizen, or a citizen of the United States at the time of = the=20 adoption of this constitution, is eligible to the office of president, = and no=20 person shall be eligible to that office, who shall not have attained the = age of=20 thirty-five years, and been fourteen years a resident within the United = States.=20 Const. art. 2, s. 1.

4. - 2. A citizen may be ineligible in consequence of his relations = to the=20 state; for example, holding an office incompatible with the office = sought. Vide=20 Ineligibility. Because he has not paid the taxes the law requires; = because he=20 has not resided a sufficient length of time in the state.

5. - 3. He may be ineligible for want of certain property = qualifications=20 required by some, law.

ELISORS, practice. Two persons appointed by the court to = return a=20 jury, when the sheriff and the coroner have been challenged as = incompetent; in=20 this case the elisors return the writ of venire directed to them, with a = panel=20 of the juror's names, and their return is final, no challenge being = allowed to=20 their array. 3 Bl. Com. 355,; 3 Cowen, 296; 1 Cowen, 32.

ELL. A measure of length. In old English the word signifies = arm, which=20 sense it still retains in the word elbow. Nature has no standard of = measure. The=20 cubit, the ell, the span, palm, hand, finger, (being taken from the = individual=20 who uses them) varies. So of the foot, pace, mile, or mille passuum. See = Report=20 on Weights and Measures, by the Secretary of State of the United. = States, Feb.=20 22, 1821; Fathom.

ELOIGNE, practice. This word signifies, literally, to remove = to a=20 distance; to remove afar off. It is used as a return to a writ of = replevin, when=20 the chattels have been removed out of the way of the sheriff. Vide = Elongata.

ELONGATA, practice. There turn made by the sheriff to a writ = of=20 replevin, when the goods have been removed to places unknown to him. = See, for=20 the form of this return, Wats. Sher. Appx. c. 18, .s. 3, p. 454; 3 Bl. = Com.=20 148.

2. On this return the plaintiff is entitled to a capias in withernam. = Vide=20 Withernam, and Wats. Sher. 300, 301. The word eloigne, (q. v.) is = sometimes used=20 as synonymous with elongata.

ELOPEMENT. This term is used to denote the departure of a = married=20 woman from her hushand, and dwelling with an adulterer.

2. While the wife reides with her hushand, and cohabits with him, = however=20 exceptionable her conduct may be, yet he is bound to provide her with=20 necessaries, and to pay for them; but when she elopes, the hushand is no = longer=20 liable for her alimony, and is not bound to pay debts of her contracting = when=20 the separation is notorious; and whoever gives her credit under these=20 circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R. 42; 3 = Pick. R.=20 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12 John. R. 293; = Bull. N.=20 P. 135; Stark. Ev. part 4, p. 699.

ELOQUENCE OR ORATORY. The act or art of speaking well upon any = subject=20 with a view to persuade. It comprehends a good elocution, correct and=20 appropriate expressions uttered. with fluency, animation and suitable = action.=20 The principal rules of the art, which must be sought for in other works, = are=20 summarily expressed in the following lines:

" Be brief, be pointed; let your matter stand Lucid in order, = solid, and=20 at hand; Spend not your words on trifles, but condense; Strike with the = mass of=20 thoughts, not drops of sense; Press to the close with vigor once begun, = And=20 leave, (how hard the task!) leave off when done; Who draws a labor'd = length of=20 reasoning out, Put straws in lines for winds to whirl about; Who draws a = tedious=20 tale of learning o'er, Counts but the sands on ocean's boundless shore; = Victory=20 in law is gain'd as battle's fought, Not by the numbers, but the forces = brought;=20 What boots success in skirmishes or in fray, If rout and ruin following = close=20 the day? What worth a hundred Posts maintained with skill, If these all = held,=20 the foe is victor still? He who would win his cause, with power must = frame=20 Points of support, and look with steady aim: Attack the weak, defend the = strong=20 with art, Strike but few blows, but strike them to the heart; All = scatter'd=20 fires but end in smoke and noise, The scorn of men, the idle play of = boys. Keep,=20 then, this first great precept ever near, Short be your speech, your = matter=20 strong and clear, Earnest your manner, warm and rich your style, Severe = in=20 taste, yet full of grace the while; So may you reach the loftiest = heights of=20 fame, And leave, when life is past, a deathless name."

ELSEWHERE. In another place.

2. Where one devises all his land in A, B and C, three distinct = towns, and=20 elsewhere, and had lands of much greater value than those in A, B and C, = in=20 another county, the lands in the other county were decreed to pass by = the word=20 elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J., and = other=20 judges, the word elsewhere, was adjudged to be the same as if the = testator had=20 said he devised all his lands in the three towns particularly mentioned, = or in=20 any other place whatever. 3 P. Wms. 5 6. See also Prec. Chan. 202; 2 = Vern. 461;=20 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id. 808; 2 Barr. 912; 5 Bro. P. C. = 496; S.=20 C. 1 East, 456; 1 Vern. 4 n.

3. - 2. As to the effect of the word elsewhere, in the case of lands = not=20 purchased at the time of making the will, see 3 Atk. 254; 2 Vent. 351. = Vide=20 Alibi.

EMANCIPATION. An act by which a person, who was once in the = power of=20 another, is rendered free. B y the laws of Louisiana, minors may be = emancipated.=20 Emancipation is express or implied.

2. Express emancipation. The minor may be emancipated by his father, = or, if=20 be has no father, by his mother, under certain restrictions. This = emancipation=20 takes place by the declaration, to that effect, of the father or mother, = before=20 a notary public, in the presence of two witnesses. The orphan minor may, = likewise, be emancipated by the judge, but not before he has arrived at = the full=20 age of eighteen years, if the family meeting, called to that effect, be = of=20 opinion that he is able to administer his property. The minor may be = emancipated=20 against the will of his father and mother, when they ill treat him = excessively,=20 refuse him support, or give him corrupt example.

3. The marriage of the minor is an implied emancipation.

4. The minor who is emancipated has the full administration of his = estate,=20 and may pass all act's which may be confined to such administration; = grant=20 leases, receive his revenues and moneys which may be due him, and give = receipts=20 for the same. He cannot bind himself legally, by promise or obligation, = for any=20 sum exceeding the amount of one year of his revenue. When he is engaged = in=20 trade, he is considered as leaving arrived to the age of majority, for = all acts=20 which have any relation to such trade.

5. The emancipation, whatever be the manner in. which it may have = been=20 effected, may be revoked, whenever the minor contracts engagements which = exceed=20 the limits prescribed by law.

6. By the English law, filial emancipation is recognized, chiefly, in = relation to the parochial settlement of paupers. See 3 T. R. 355; 6 T. = R. 247; 8=20 T. R. 479; 2 East, 276; 10 East, 88.; 11 Verm. R. 258, 477. See = Manumission. See=20 Coop. Justin. 441, 480; 2 Dall. Rep. 57, 58; Civil Code of Louisiana, B. = 1, tit.=20 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de Droit, par Ferriere; = Diet. de=20 Jurisp. art. Emancipation.

EMBARGO, maritime law. A proclamation, or order of state, = usually=20 issued in time of war, or threatened hostilities, prohibiting the = departure of=20 ships or goods from some, or all the ports of such state, until further = order. 2=20 Wheat. 148.

2. The detention of ships by an embargo is such an injury to the = owner as to=20 entitle him to recover on a policy of insurance against "arrests or=20 detainments." And whether the embargo be legally or illegally laid, the = injury=20 to the owner is the same; and the insurer is equally liable for the loss = occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 = Bell's Com.=20 517, 5th ed.

3. An embargo detaining a vessel at the port of departure, or in the = course=20 of the voyage, does not, of itself, work a dissolution of a charter = party, or=20 the contract with the seamen. It is only a temporary restraint imposed = by=20 authority for legitimate political purposes, which suspends, for a time, = the=20 performance of such contracts, and leaves the rights of parties = untouched, 1=20 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325, 3 B. = & P.=20 405-434; 4 East, R. 546-566.

EMBEZZLEMENT, crim. law. The fraudulently removing and = secreting of=20 personal property, with which the party has been entrusted, for the = purpose of=20 applying it to his own use.

2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides, = that if=20 any person, within any of the laces under the sole and exclusive = jurisdiction of=20 the United States, or upon the high seas, shall take and carry away, = with an=20 intent to steal or purloin, the personal goods of another; or if any = person or=20 persons, having, at any time hereafter, the charge or custody of any = arms,=20 ordnance, munition, shot, powder, or habiliments of war, belonging to = the.=20 United States, or of any victuals provided for the victualling of any = soldiers,=20 gunners, marines, or pioneers, shall, for any lucre or gain, or = wittingly,=20 advisedly, and of purpose to hinder or impede the service of the United = States,=20 embezzle, purloin, or convey away, any of the said arms, ordnance, = munition,=20 shot or powder, habiliments of war, or victuals, that then, and in every = of the=20 cases aforesaid, the persons so offending, their counsellors, aiders and = abettors, (knowing of, and privy to the offences aforesaid,) shall, on=20 conviction, be fined, not exceeding the fourfold value of the property = so=20 stolen, embezzled or purloined the one moiety to be paid to the owner of = the=20 goods, or the United States, as the case may be, and the other moiety to = the=20 informer and prosecutor, and be publicly whipped, not exceeding = thirty-nine=20 stripes.

3. The Act of April 20, 1818, 3 Story, 1715, directs that wines and = distilled=20 spirits shall, in certain cases, be deposited in the public warehouses = of the=20 United States, and then it is enacted, s. 5, that if any wines, or other = spirits, deposited under the provisions of this act, shall be embezzled, = or=20 fraudulently hid or removed, from any store or place wherein they shall = have=20 been deposited, they shall be forfeited, and the person or persons so=20 embezzling, hiding, or removing the same, or aiding or assisting = therein, shall=20 be liable to the same pains and penalties as if such wines or spirits = had been=20 fraudulently unshipped or landed without payment of duty.

4. By the 21st section of the act to reduce into one the several acts = establishing and regulating the post-office, passed March 3, 1825, 3 = Story,=20 1991, the offence of embezzling letters is punished with fine and = imprisonment.=20 Vide Letter.

5. The act more effectually to provide for the punishment of certain = crimes=20 against the United States, and for other purposes, passed March 3, 1825, = s. 24,=20 3 Story, 2006, enacts, that if any of the gold or silver coins which = shall be=20 struck or coined at the mint of the United States, shall be debased, or = made=20 worse, as to the proportion of fine gold or fine silver therein = contained, or=20 shall be of less weight or value than the same ought to be, pursuant to = the=20 several acts relative thereto, through the default or with the = connivance of any=20 of the officers or persons who shall be employed at the said mint, for = the=20 purpose of profit or gain, or otherwise, with a fraudulent intent and if = any of=20 the said officers or persons shall embezzle any of the metals which = shall, at=20 any time, be committed to their charge for the purpose of being coined; = or any=20 of the coins which shall be struck or coined, at the said mint; every = such=20 officer, or person who shall commit any, or either, of the said = offences, shall=20 be deemed guilty of felony, and shall be sentenced to imprisonment and = hard=20 labor for a term not less than one year, nor more than ten years, and = shall be=20 fined in a sum not exceeding ten thousand dollars.

6. When an embezzlement of a part of the cargo takes place on board = of a=20 ship, either from the fault, fraud, connivance or negligence of any of = the crow,=20 they are bound to contribute to the reparation of the loss, in = proportion to=20 their wages. When the embezzlement is fixed on any individual, he is = solely=20 responsible; when it is made by the crew, or some of the crew, but the=20 particular offender is unknown, and from the circumstances of the case, = strong=20 presumptions of guilt apply to the whole crew, all must contribute. The=20 presumption of innocence is always in favor of the crew, and the guilt = of the=20 parties must be established, beyond all reasonable doubt, before they = can be=20 required to contribute. 1 Mason's R. 104; 4 B. & P. 347; 3 Johns. = Rep. 17; 1=20 Marsh. Ins. 241; Dane's Ab. Index, h. t.; Wesk. Ins. 194; 3 Kent, Com., = 151;=20 Hardin, 529.

EMBLEMENTS, rights. By this term is understood the crops = growing upon=20 the land. By crops is here meant the products of the earth which grow = yearly and=20 are raised by annual expense and labor, or "great manurance and = industry," such=20 as grain; but not fruits which grow on trees which are not to be planted = yearly,=20 or grass, and the like, though they are annual. Co. Litt. 55, b; Com. = Dig.=20 Biens, G; Ham. Part. 183, 184.

2. It is a general rule, that when the estate is terminated by the = act of God=20 in any other way than by the death of the tenant for life, or by act of = the law,=20 the tenant is entitled to the enablements; and when he dies before = harvest time,=20 his executors shall have the emblements, as a return for the labor and = expense=20 of the deceased in tilling the ground. 9 Johns. R. 112; 1 Chit. P. 91: 8 = Vin.=20 Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 4; Bac. Ab = Executors, H 3;=20 Co. Litt. 55; Com. Dig. Biens G.; Dane's Ab. Index, h. t.; 1 Penna. R. = 471; 3=20 Penna. 496; Ang. Wat. Co. 1 Bouv. Inst. Index, h. t.

EMBRACEOR, criminal law. He who, when a matter is on trial = between=20 party and party, comes to the bar with one of the parties, and having = received=20 some reward so to do, speaks in the case or privily labors the jury, or = stands=20 there to survey or overlook them, thereby to put them in fear and doubt = of the=20 matter. But persons learned in the law may speak in a case for their = clients.=20 Co. Litt. 369; Terms de la Ley. A person who is guilty of embracery. (q. = v.)

EMBRACERY, crim. law. An attempt to corrupt or influence a = jury, or=20 any way incline them to be more favorable to the one side than to the = other, by=20 money, promises, threats, or persuasions; whether the juror on whom such = attempt=20 is made give any verdict or not, or whether the Verdict be true or = false. Hawk.=20 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a; Hob. 294; Dy. 84, = a, pl.=20 19; Noy, 102; 1 Str. 643; 11 Mod. 111, 118; Com. 601; 5 Cowen, 503.

EMENDALS, Eng. law. This ancient word is said to be used in = the=20 accounts of the inner temple, where so much in emendals at the foot of = an=20 account signifies so much in bank, in stock, for the supply of = emergencies.=20 Cunn. Law Dict.

EMIGRANT. One who quits his country for any lawful reason, = with a=20 design to settle elsewhere, and who takes his family and property, if he = has=20 any, with him. Vatt. b. 1, c. 19, =A7224.

EMIGRATION. The act of removing from one place to another. It = is=20 sometimes used in the same sense as expatriation, (q. v.) but there is = some=20 difference in the signification. Expatriation is the act of abandoning = one's=20 country, while emigration is, perhaps not strictly, applied to the act = of=20 removing from one part of the country to another. Vide 2 Kent, Com. = 36.

EMINENCE; A title of honor given to cardinals.

EMINENT DOMAIN. The right which people or government retain = over the=20 estates of individuals, to resume the same for public use.

2. It belongs to the legislature to decide what improvements are of=20 sufficient importance to justify the exercise of the right of eminent = domain.=20 See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am. Eq. Dig. 312 3 Toull. n. 30 = p. 23;=20 Ersk. hist. B. 2) tit. 1, s. 2; Grotius, h. t. See Dominium.

EMISSARY. One who is sent from one power or government into = another=20 nation for the purpose of spreading false rumors and to cause alarm. He = differs=20 from a spy. (q. v.)

EMISSION, med. jur. The act by which any matter whatever is = thrown=20 from the body; thus it is usual to say, emission of urine, emission of = semen,=20 &c.

2. In cases of rape, when the fact of penetration is proved, it may = be left=20 to the jury whether emission did or did not take place. Proof of = emission would=20 perhaps be held to be evidence of penetration. Addis. R. 143; 2 So. Car. = Const.=20 R. 351; 2 Chitty, Crim. Law, 810; 1 Beck's Med. Jur. 140 1 Russ. C. = & M.=20 560; 1 East, P. C. 437.

TO EMIT. To put out; to send forth,

2. The tenth section of the first article of the constitution, = contains=20 various prohibitions, among which is the following: No state shall emit = bills of=20 credit. To emit bills of credit is to issue paper intended to circulate = through=20 the-community for its ordinary purposes, as money, which paper is = redeemable at=20 a future day. 4 Pet. R. 410, 432; Story on Const. =A71358. Vide Bills of = credit.

EMMENAGOGUES, med. jur. The name of a class of medicines which = are=20 believed to have the power. of favoring the discharge of the menses. = These are=20 black hellebore, savine, (vide Juneperius Sabina,) madder, mercury, = polygala,=20 senega, and pennyroyal. They are sometimes used for the criminal purpose = of=20 producing abortion. (q. v.) They always endanger the life of the woman. = 1 Beck's=20 Medical Jur. 316; Dungl. Med. Diet. h. t.; Parr's Med. Dict. h. t.; 3 = Paris and=20 Fonbl. Aled. Jur. 88.

EMOLUMENT. The lawful gain or profit which arises from an = office.

EMPALEMENT. A punishment in which a sharp polo was forced up = the=20 fundament. Encyc. Lond. h. t.

TO ENPANEL, practice. To make a list or roll, by the sheriff = or other=20 authorized officer, of the names of jurors who are summoned to appear = for the=20 performance of such service as jurors are required to perform.

EMPEROR, an officer. This word is synonymous with the Latin = imperator;=20 they are both derived from the. verb imperare. Literally, it signifies = he who=20 commands.

2. Under the Roman republic, the title emperor was the generic name = given to=20 the commanders-in-chief in the armies. But even then the application of = the word=20 was restrained to the successful commander, who was declared emperor by = the=20 acclamations of the army, and was afterwards honored with the title by a = decree=20 of the senate. 3. It, is now used to designate some sovereign prince who = bears=20 this title. Ayl. Pand. tit. 23.

EMPHYTEOSIS, civil law. The name of a contract by which the = owner of=20 an uncultivated piece of land granted it to another either in = perpetuity, or for=20 a long time, on condition that he should: improve it, by building, = planting or=20 cultivating it, and should pay for it an annual rent; with a right to = the=20 grantee to alienate it, or transmit it by descent to his heirs, and = under a=20 condition that the grantor should never re-enter as long as the rent = should be=20 paid to him by the grantee or his assigns. Inst. 3, 25, 3. 18 Toull. n. = 144.

2. This has a striking resemblance to a ground-tent. (q. v.). See = Nouveau=20 Denisart, mot, Emphyteose; Merl. Reper. mot Emphyteose; Faber, De jure = emphyt.=20 Definit. 36; Code, 4, 66, 1.

EMPIRE. This word signifies, first, authority or command; it = is the=20 power to command or govern those actions of men which would otherwise be = free;=20 secondly, the country under the government of an emperor but sometimes = it is=20 used to designate a country subject to kingly power, as the British = empire.=20 Wolff, Inst. =A7833.

EMPLOYED. One who is in the service of another. Such a person = is=20 entitled to rights and liable to. perform certain duties.

2. He is entitled to a just compensation for his services; when there = has=20 been a special contract, to what has been agreed upon; when not, to such = just=20 recompense as he deserves.

3. He is bound to perform the services for which he has engaged = himself; and=20 for a violation of his engagement he may be sued, but he is not liable = to=20 corporal correction. An exception to this rule may be mentioned; on the = ground=20 of necessity, a sailor may be punished by reasonable correction, when it = is=20 necessary for the safety of the vessel, and to maintain discipline. 1 = Bouv.=20 Inst. n. 1001: 2 Id. n. 2296.

EMPLOYEE. One who is authorized to act for another; a = mandatory.

EMPLOYMENT. An employment is an office; as, the secretary of = the=20 treasury has a laborious and responsible employment; an agency, as, the=20 employment of an auctioneer; it signifies also the act by which one is = engaged=20 to do something. 2 Mart. N. S. 672; 2 Harr. Cond. Lo. R. 778.

2. The employment of a printer to publish the laws of the United = States, is=20 not an office. 17 S. & R. 219, 223. See Appointment.

EMPLOYER. One who has engaged or hired the services of = another. He is=20 entitled to rights and bound to perform duties.

2. - 1. His rights are, to be served according to the terms of the = contract.=20 2. He has a right against third persons for an injury to the person = employed, or=20 for harboring him, so as to deprive the employer of his services. 2 = Bouv. Inst.=20 n. 2295.

3. His duties are to pay the workman the compensation agreed upon, or = if=20 there be no special agreement, such just recompense as he deserves. Vide = Hire;=20 Hirer.

EMPTION. The act of buying.

EMPTOR. A buyer; a purchaser.

EN DEMEURE. In default. This term is used in Louisiana. 3 N. = S. 574.=20 See Moral in.

ENABLING POWERS. A term used in equity. When the donor of a = power, who=20 is the owner of the estate, confers upon persons not seised of the fee, = the=20 right of creating interests to take effect out of it, which could not be = done by=20 the donee of the power, unless by such authority; this is called an = enabling=20 power. 2 Bouv. Inst. n. 1928.

TO ENACT. To establish by law; to perform or effect; to = decree. The=20 usual formula in making laws is, Be it enacted.

ENCEINTE, med. jur. A French word, which signifies = pregnant.

2. When a woman is pregnant, and is convicted of a capital crime, she = cannot=20 lawfully be punished till after her delivery.

3. in the English law, where a widow is suspected to feign herself = with=20 child, in order to produce a supposititious heir to the estate, the = presumptive=20 heir may have a writ de ventre inspiciendo, to examine whether she be = with child=20 or not. Cro. Eliz. 566; 4 Bro. C. C. 90. As to the signs of pregnancy, = see 1=20 Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 P. Wms. 591; 1 = Cox, C.=20 C. 297 and Pregnancy; Privement enceinte.

ENCLOSURE. An artificial fence put around one's estate. Vide=20 Close.

ENCROACHMENT. An unlawful gaining upon the right or possession = of=20 another; as, when a man sets his fence beyond his line; in this case the = proper=20 remedy for the party injured is an action of ejectment, or an action of=20 trespass.

ENCUMBRANCE. A burden or charge upon an estate or property, so = that it=20 cannot be disposed of without being subject to it. A mortgage, a lien = for taxes,=20 are examples of encumbrances.

2. These do not affect the possession of the grantee, and may be = removed or=20 extinguished by a definite pecuniary value. See 2 Greenl. R. 22; 5 = Greenl. R.=20 94.

3. There are encumbrances of another kind which cannot be so removed, = such as=20 easements for example, a highway, or a preexisting right to take water = from, the=20 land. Strictly speaking, however, these are not encumbrances, but = appurtenances=20 to estates in other lands, or in the language of the civil law, = servitudes. (q.=20 v.) 5 Conn. R. 497; 10 Conn. R. 422 15 John. R. 483; and see 8 Pick. R. = 349; 2=20 Wheat. R. 45. See 15 Verm. R. 683; l Metc. 480; 9 Metc. 462; 1 App. R. = 313; 4=20 Ala. 21; 4 Humph. 99; 18 Pick. 403; 1 Ala. 645; 22 Pick. 447; 11 Gill = &=20 John. 472.

ENDEAVOR, crim. law. An attempt. (q. v.) Vide Revolt.

ENDORSEMENT. Vide Indorsement.

ENDOWMENT. The bestowing or assuring of a dower to a woman. It = is=20 sometimes used: metaphorically, for the setting a provision for a = charitable=20 institution, as the endowment of a hospital.

ENEMY, international law. By this term is understood the whole = body of=20 a nation at war with another. It also signifies a citizen or subject of = such a=20 nation, as when we say an alien enemy. In a still more extended sense, = the word=20 includes any of the subjects or citizens of a state in amity with the = United=20 States, who, have commenced, or have made preparations for commencing=20 hostilities against the United States; and also the citizens or subjects = of a=20 state in amity with the United States, who are in the service of a state = at war=20 with them. Salk. 635; Bac. Ab. Treason, G.

2. An enemy cannot, as a general rule, enter into any contract which = can be=20 enforeed in the courts of law; but the rule is not without exceptions; = as, for=20 example, when a state permits expressly its own citizens to trade with = the=20 enemy; and perhaps a contract for necessaries, or for money to enable = the=20 individual to get home, might be enforced. 7 Pet. R . 586.

3. An alien enemy cannot, in general, sue during the war, a citizen = of the=20 United States, either in the courts of, the United States, or those of = the=20 several states. 1 Kent, Com. 68; 15 John. R. 57 S. C. 16 John. R. 438. = Vide=20 Marsh. Ins. c. 2, s. 1; Park. Ins. Index. h. t.; Wesk. Ins. 197; Phil. = Ins.=20 Index. h. t.; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, = Index, h.=20 t.

4. By the term enemy is also understood, a person who is desirous of = doing=20 injury to another. The Latins had two terms to signify these two classes = of=20 persons; the first , or the public enemy, they called hostis, and the = latter, or=20 the private enemy, inimicus.

TO ENFEOFF. To make a gift of any corporeal hereditaments to = another.=20 Vide Feoffment.

TO ENFRANCHISE. To make free to incorporate a man in a society = or body=20 politic. Cunn. L. D. h. t. Vide Disfranchise.

ENGAGEMENT. This word is frequently used in the French law to = signify=20 not only a contract, but the obligations arising from a quasi contract. = The=20 terms obligations (q. v.) and engagements, are said to be synonymous 17 = Toull.=20 n. 1; but the Code seems specially to apply the term engagement to those = obligations which the law, imposes on a man without the intervention of = any=20 contract, either on the part of the obligor or the obligee. Art. = 1370.

ENGLESHIRE. A law was made by Canutus, for the preservation of = his=20 Danes, that when a man was killed, the hundred or town should be liable = to be=20 amerced, unless it could be proved that the person killed was an = Englishman.=20 This proof was called Engleshire. It consisted, generally, of the = testimony of=20 two males on the part of the father of him that had been killed, and two = females=20 on the part of his mother. Hal. Hist. P . C. 447; 4 Bl. Com. 195; = Spelman,=20 Gloss. See Francigena .

TO ENGROSS, practice, conveyancing. To copy the rude draught = of an=20 instrument in a fair and large hand. See 3 Bouv. Inst. n, 2421, note. =

ENGROSSER. One who purchases large quantities of any = commodities in=20 order to have the command of the market, and to sell them again at high=20 prices.

TO ENJOIN. To command; to require; as, private individuals are = not=20 only permitted, but enjoined by law to arrest an offender when present = at the=20 time a felony is committed or dangerous wound given, on pain of fine and = imprisonment if the wrong doer escape through their negligence. 1 Hale, = 587; 1=20 East, P. C. 298, 304; Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. = In a=20 more technical sense, to enjoin, is to command or order a defendant in = equity to=20 do or not to do a particular thing by writ of injunction. Vide = Injunction.

TO ENLARGE. To extend; as, to enlarge a rule to plead, is to = extend=20 the time during which a defendant may plead. To enlarge, means also to = set at=20 liberty; as, the prisoner was enlarged on giving bail.

ENLARGING. Extending or making more comprehensive; as an = enlarging=20 statute, which is one extending the common law.

ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab.=20 Coparceners, C.

2. When partition is voluntarily made among coparceners in England, = the=20 eldest has the first choice, or primer election, (q. v.) and the part = which she=20 takes is called enitia pars. This right is purely personal, and = descends; it is=20 also said that even her as signee shall enjoy it; but this has also been = doubted. The word enitia is said to be derived from the old French, = eisne the=20 eldest. Bac. Ab. Coparceners, C; Keilw. 1 a, 49 a; 2 And. 21; Cro. Eliz. = 18.

ENJOYMENT. The right which a man possesses of receiving all = the=20 product of a thing for his necessity, his use, or his pleasure.

ENLISTMENT. Thc act of making a contract to serve the = government in a=20 subordinate capacity, either in the army or navy. The contract so made, = is also=20 called an enlistment. See, as to the power of infants to enlist, 4 Binn. = 487; .5=20 Binn. 423; Binn. 255; 1 S. & R. 87; 11 S. & R. 93.

ENORMIA. Wrongful acts. See Alia Enormia.

TO ENROLL. To register; to enter on the rolls of chancery, or = other=20 court's; to make a record.

ENROLLMENT, Eng. law. The registering, or entering in the = rolls of=20 chancery, king's bench, common pleas, or exchequer, or by the clerk of = the peace=20 in the records of the quarter sessions, of any lawful act; as a = recognizance, a=20 deed of bargain and sale, and the like. Jacob, L. D.

TO ENTAIL. To create an estate tail. Vide Tail.

ENTIRE. That which is not divided; that which is whole.

2. When a contract is entire, it must in general be fully performed, = before=20 the party can claim the compensation which was to have been paid to him; = for=20 example, when a man hires to serve another for one year, he will not be = entitled=20 to leave him at any time before the end of the year, and claim = compensation for=20 the time, unless it be done by the consent or default of the party = hiring. 6=20 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick. R. 209; 4 McCord's = R. 26,=20 246; 4 Greenl. R. 454; 2 Penna. R. 454; 15 John. R. 224; 4 Pick. R. 114; = 9 Pick.=20 R. 298 19 John. R. 337; 4 McCord, 249; 6 Harr. & John. 38. See=20 Divisible.

ENTIRETY, or, ENTIERTIE. This word denotes the whole, in=20 contradistinction to moiety, which denotes the half part. A hushand and = wife,=20 when jointly seized of land, are seized by entierties and not "pur mie" = as joint=20 tenants are. Jacob's Law Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. = Johnson, 3=20 Penna. Law Journ. 350, 357.

ENTREPOT. A warehouse; a magazine where goods are deposited, = and which=20 are again to be removed.

ENTRY. criminal law. The unlawful breaking into a house, in = order to=20 commit a crime. In cases of burglary, the least entry with the whole or = any part=20 of the body, hand, or foot, or with any instrument or weapon, introduced = for the=20 purpose of committing a felony, is sufficient to complete the offence. 3 = Inst.=20 64.

ENTRY, estates, rights. The taking possession of lands by the = legal=20 owner.

2. A person having a right of possession may assert it by a peaceable = entry,=20 and being in possession may retain it, and plead that it is his soil and = freehold; and this will not break in upon any rule of law respecting the = mode of=20 obtaining the possession of lands.

3 Term Rep. B. R. 295. When another person has taken possession of = lands or=20 tenements, and the owner peaceably makes an entry thereon, and declares = that be=20 thereby takes possession of the same, he shall, by this notorious act of = ownership, which is equal to a feodal investiture, be restored to his = original=20 right. 3 Bl. Com. 174. 3. A right of entry is not assignable at common = law. Co.=20 Litt. 214 a. As to the law on this subject in the United States, vide = Buying of=20 titles; 4 Kent, Com. 439 2 Hill. Ab. c. 33, =A742 to 52; also,artic le = ReEntry;=20 Bac. Ab. Descent, G; 8 Vin. Ab. 441.

4. In another sense, entry signifies the going upon another man's = lands or=20 his tenements. An entry in this sense may be justifiably made on = another's land=20 or house, first, when the law confers an authority; and secondly, when = the party=20 has authority in fact.

5. First, 1. An officer may enter the close of one against whose = person or=20 property he is charged with the execution of a writ. In a civil case, = the=20 officer cannot open (even by unlatching) the outer inlet to a house, as = a door=20 or window opening into the street 18 Edw. IV., Easter, 19, pl. 4; Moore, = pl.=20 917, p. 668 Cooke's case, Wm. Jones, 429; although it has been closed = for the=20 purpose of excluding him. Cowp. 1. But in a criminal case, a constable = may break=20 open an outer door to arrest one within suspected of felony. 13 Edw. = IV.,=20 Easter, 4, p. 9. If the outer door or window be open, he may enter = through it to=20 execute a civil writ; Palin. 52; 5 Rep. 91; and, having entered, he may, = in=20 every case, if necessary, break open an inner door. 1 Brownl. 50.

6. - 2. The lord may enter to distrain, and go into the house for = that=20 purpose, the outer door being open. 5 Rep. 91.

7. - 3. The proprietors of goods or chattels may enter the land of = another=20 upon which they are placed, and remove them, provided they are there = without his=20 default; as where his tree has blown down into the adjoining close by = the wind,=20 or his fruit has fallen from a branch which overhung it. 20 Vin. Abr. = 418.

8. - 4. If one man is bound to repair bridge, he has a right of entry = given=20 him by law for that purpose. Moore, 889.

9. - 5. A creditor has a right to enter the close of his debtor to = demand the=20 duty owing, though it is not to be rendered there. Cro. Eliz. 876.

10. - 6. If trees are excepted out of a demise, the lessor has the = right of=20 entering, to prune or fell them. Cro. Eliz. 17; 11. Rep. 53.

11. - 7. Every traveller has, by law, the privilege of entering a = common inn,=20 at all seasonable times, provided the host has sufficient accommodation, = which,=20 if he has not, it is for him to declare.

12.- 8. Ever man may throw down a public nuisance, and a private one = may be=20 thrown down by the party grieved, and this before an prejudice happens, = but only=20 from the probability that it may happen. 5 Rep, 102 and see 1 Brownl. = 212; 12=20 Mod. 510 Wm. Jones, 221; 1 Str. 683. To this end, the abator has = authority to=20 enter the close in which it stands. See Nuisance.

13. - 9. An entry may be made on the land of another, to exercise or = enjoy=20 therein an incorporeal right or hereditament to which he is entitled. = Hamm. N.=20 P. 172. See general Bouv. Inst. Index, h. t.; 2 Greenl. Ev. =A7627; = License.

ENTRY, commercial law. The act of setting down the particulars = of a=20 sale, or other transaction, in a merchant's or tradesman's accouut = books; such=20 entries are, in general, prima facie evidence of the sale and delivery, = and of=20 work, done; but unless the entry be the original one, it is not = evidence. Vide=20 Original entry.

ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which = lies in=20 favor of the reversioner, when the tenant for term of life, tenant for = term of=20 another's life, tenant by the curtesy, or tenant in dower, aliens and = dies. T.=20 L.

ENTRY OF GOODS, commercial law. An entry of goods at the = custom-house=20 is the submitting to the officers appointed by law, who have the = collection of=20 the customs, goods imported. into the United States, together with a = statement=20 or description of such goods, and the original invoices of the same. The = act of=20 March 2, 1799, s. 36, 1 Story, L. U. S. 606, and the act of March 1, = 1823, 3=20 Story, L. U. S. 1881, regulate the manner of making entries of = goods.

ENTRY, WRIT OF. The name of a writ issued for the purpose of = obtaining=20 possession of land from one who has entered unlawfully, and continues in = possession. This is a mere possessor action, and does not decide the = right of=20 property.

2. The writs of entry were commonly brought, where the tenant or = possessor of=20 the land entered lawfully; that is, without fraud or force; 13 Edw. I. = c. 25;=20 although sometimes they wer6 founded upon an entry made by wrong. The = forms of=20 these writs are very various, and are adapted to the, title and estate = of the=20 demandant. Booth enumerates and particularly discusses twelve varieties. = Real=20 Actions, pp. 175-200. In general they contain an averment of the manner = in which=20 the defendant entered. At the common law these actions could be brought = only in=20 the degrees, but the Statute of Marlbridge, c. 30; Rob. Dig. 147, cited = as c.=20 29; gave a writ adapted to cases beyond the degrees, called a writ of = entry in=20 the post. Booth, 172, 173. The denomination of these writs by degrees, = is=20 derived from the circumstance that estates are supposed by the law to = pass by=20 degrees from one person to another, either by descent or purchase. = Similar to=20 this idea, or rather corresponding with it, are the gradations of = consanguinity,=20 indicated by the very common term pedigree. But in reference to the = writs of=20 entry, the degrees recognized were only two, and the writs were quaintly = termed=20 writs in the per, and writs in the per and cui. Examples of these writs = are=20 given in Booth on R. A. pp. 173, 174. The writ in the, per runs thus: " = Command=20 A, that be render unto B, one messuage, &c., into which he has not = entry=20 except (per) by &c. The writ in the per and cui contains another = gradation=20 in the transmission of the estate, and read thus: Command A, that he = render,=20 &c., one messuage, into which he hath not entry but (per) by C, = (cui) to=20 whom the aforesaid B demised it for a term of years, now expired," = &c. 2=20 Institute, 153; Co. Litt. b, 239, a. Booth, however, makes three = degrees, by=20 accounting the estate in the per, the second degree. The difference is = not=20 substantial. If the estate had passed further, either by descent or = conveyance,=20 it was said to be out of the degrees, and to such cases the writ of = entry on=20 the. statute of Marlbridge, only, was applicable. 3 Bl. Com. 181, 182; = Report of=20 Com. to Revise Civil Code of Penna. January 15, 1835, p. 85. Vide Writ = of=20 entry.

TO ENURE. To take, or have effect or serve to the use, = benefit, or=20 advantage of a person. The word is often written inure. A release to the = tenant=20 for life, enures to him in reversion; that is, it has the same effect = for him as=20 for the tenant for life. A discharge of the principal enures to the = benefit of=20 the surety.

ENVOY, international law. In diplomatic language, an envoy is = a=20 minister of the second rank, on whom his sovereign or government has = conferred a=20 degree of dignity and respectability, which, without being on a level = with an=20 ambassador, immediately follows, and among ministers, yields the = preeminence to=20 him alone.

2. Envoys are either ordinary or extraordinary; by custom the latter = is held=20 in greater consideration. Vattel, liv. 4, c. 6, =A772.

EPILEPSY, med. jur. A discase of the brain, which occurs in = paroxysms,=20 with uncertain intervals between them.

2. These paroxysms are characterized by the loss of sensation, and = convulsive=20 motions of the muscles. When long continued and violent, this disease is = very=20 apt to end in dementia. (q. v.) It gradually destroys the memory, and = impairs=20 the intellect, and is one of the causes of an unsound mind. 8 Ves. 87. = Vide Dig.=20 50, 16, 123; Id. 21, 1, 4, 5.

EPISCOPACY, eccl. law. A form of government by diocesan = bishops; the=20 office or condition of a bishop.

EPISTLES, civil law. The name given to a species of rescript. = Epistles=20 were the answers given by the prince, when magistrates submitted to him = a=20 question of law. Vicle Rescripts.

EQUALITY. Possessing the same rights, and being liable to the = same=20 duties. See 1 Toull. No. l70, 193, Int.

2. Persons are all equal before the law, whatever adventitious = advantages=20 some may possess over others. All persons are protected by the law, and=20 obedience to it is required from all.

3. Judges in court, while exercising their functions, are all upon an = equality, it being a rule that inter pares non est potestas; a judge = cannot,=20 therefore, punish another judge of the same court for using any = expression in=20 court, although the words used might have been a contempt in any other = person.=20 Bac. Ab., Of the court of sessions, of justices of the peace.

4. In contracts the law presumes the parties act upon a perfect = equality;=20 when, therefore, one party uses any fraud or deceit to destroy this = equality,=20 the party grieved may avoid the contract. In case of a grant to two or = more=20 persons jointly, without designating what each takes, they are presumed = to take=20 in equal proportion. 4 Day, 395.

5. It is a maxim, that when the equity of the parties is equal, the = law must=20 prevail. 3 Call, R. 259. And that, as between different creditors, = equality is=20 equity. 4 Bouv. Inst. n. 3725; 1 Page, R. 181. See Kames on Eq. 75. Vide = Deceit;=20 Fraud.

EQUINOX. The name given to two periods of the year when the = days and=20 nights are equal; that is, when the space of time between the rising and = setting=20 of the sun is one half of a natural day. Dig. 43, 13, 1, 8. Vide = Day.

EQUITABLE. That which is in conformity to the natural law. = Wolff,=20 Inst. =A783.

EQUITABLE ESTATE. An equitable estate is a right or interest = in land,=20 which, not having the properties of a legal estate, but being merely a = right of=20 which courts of equity will take notice, requires the aid of such court = to make=20 it available.

2. These estates consist of uses, trusts, and powers. See 2 Bouv. = Inst. n.=20 1884. Vide Cestui que trust; Cestui que use.

EQUITABLE MORTGAGE, Eng. law. The deposit of title-deeds, by = the owner=20 of an estate, with a person from whom he has borrowed money, with an=20 accompanying agreement to execute a regular mortgage, or by the mere = deposit,=20 without even any verbal agreement respecting a regular security. 2 Pow. = on Mort.=20 49 to 61; 1 Mad. Ch. Pr. 537; 4 Madd. R. 249; 1 Bro. C. C. 269; 12 Ves. = 197; 3=20 Younge & J. 150; 1 Rus. R. 141.

2. In Pennsylvania, there is no such thing as an equitable mortgage. = 3 P. S.=20 R; 233; 3 Penna. R. 239; 17 S. & R. 70; 1 Penna. R. 447.

EQUITY. In the early history of the law, the sense affixed to = this=20 word was exceedingly vague and uncertain. This was owing, in part, to = the fact,=20 that the chancellors of those days were either statesmen or = ecclesiastics,=20 perhaps not very scrupulous in the exercise of power. It was then = asserted that=20 equity was bounded by no certain limits or rules, and that it was alone=20 controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, = 441.

2. In a moral sense, that is called equity which is founded, ex oequo = et=20 bono, in natural justice, in honesty, and in right. In an enlarged. = legal view,=20 "equity, in its true and genuine meaning, is the soul and spirit of the = law;=20 positive law is construed, and rational law is made by it. In this, = equity is=20 made synonymous with justice; in that, to the true and sound = interpretation of=20 the rule." 3 Bl. Com. 429. This equity is justly said to be a supplement = to the=20 laws; but it must be directed by science. The Roman law will furnish him = with=20 sure guides, and safe rules. In that code will be found, fully = developed, the=20 first principles and the most important consequences of natural right. = "From the=20 moment when principles of decision came to be acted upon in chancery," = says Mr.=20 Justice Story, "the Roman law furnished abundant materials to erect a=20 superstructure, at once solid, convenient and lofty, adapted to human = wants, and=20 enriched by the aid of human wisdom, experience and learning." Com. on = Eq. Jur.=20 =A723 Digest, 54.

3. But equity has a more restrained and qualified meaning. The = remedies for=20 the redress of wrongs, and for the enforcement of rights, are = distinguished into=20 two classes, first, those which are administered in courts of common = law; and,=20 secondly, those which are administered in courts of equity. Rights which = are=20 recognized and protected, and wrongs which are redressed by the former = courts,=20 are called legal rights and legal injuries. Rights which are recognized = and=20 protected, and wrongs which are redressed by the latter courts only, are = called=20 equitable rights and equitable injuries The former are said to be rights = and=20 wrongs at common law, and the remedies, therefore, are remedies at = common law;=20 the latter are said to be rights and wrongs in equity, and the remedies, = therefore, are remedies in equity. Equity jurisprudence may, therefore, = properly=20 be said to be that portion of remedial justice which is exclusively = administered=20 by a court of equity, as contradistinguished from that remedial justice, = which=20 is exclusively administered by a court of law. Story, Eq. =A725. Vide = Chancery,=20 and the authiorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's = Ab . h.=20 t.; Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. = Index,=20 h. t.

EQUITY, COURT OF. A court of equity is one which administers = justice,=20 where there are no legal rights, or legal rights, but courts of law do = not=20 afford a complete, remedy, and where the complainant has also an = equitable=20 right. Vide Chancery.

EQUITY OF REDEMPTION. A right which the mortgagee of an estate = has of=20 redeeming it, after it has been forfeited at law by the non-payment at, = the time=20 appointed of the money secured by the mortgage to be paid, by paying the = amount=20 of the debt, interest and costs.

2. An equity of redemption is a mere creature of a court of equity, = founded=20 on this principle, that as a mortgage is a pledge for securing the = repayraent of=20 a sum of money to the mortgagee, it is but natural justice to consider = the=20 ownership of the land as still vested in the mortgagor, subject only to = the=20 legal title of the mortgagee, so far as such legal title is necessary to = his=20 security.

3. In Pennsylvania, however, redemption is a legal right. 11 Serg. = &=20 Rawle, 223.

4. The phrase equity of redemption is indiscriminately, though = perhaps not=20 correctly applied, to the right of the mortgagor to regain his estate, = both=20 before and after breach of condition, In North Carolina by statute the = former is=20 called a legal right of redemption; and the latter the equity of = redemption,=20 thereby keeping a just distinction between these estates. 1 N. C. Rev. = St. 266;=20 4 McCord, 340.

5. Once a mortgage always a mortgage, is a universal rule in equity. = The=20 right of redemption is said to be as inseparable from a mortgage, as = that of=20 replevying from a distress, and every attempt to limit this right must = fail. 2=20 Chan. Cas. 22; 1 Vern. 33, 190; 2 John. Ch. R. 30; 7 John. Ch. R. 40; 7 = Cranch,=20 R. 218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2 Sumner, R. = 487.

6. The right of redemption exists, not only in the mortgagor himself, = but in=20 his heirs, and personal representatives, and assignee, and in every = other person=20 who has an interest in, or a legal or equitable lien upon the lands; and = therefore a tenant in dower, a jointress, a tenant by the curtesy, a=20 remainder-man and a reversioner, a judgment creditor, and every other=20 incumbrancer, unless he be an incumbrancer pendente lite, may redeem. 4 = Kent,=20 Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611; 9 Mass. R. 422; 2 Litt. = R. 334; 1=20 Pick. R. 485; 14 Wend. R. 233; 5 John. Ch. R. .482; 6 N. H. Rep. 25; 7 = Vin. Ab.=20 52. Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, Com. 148; Pow. = on=20 Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab. 458; 2 Supp. to = Ves. Jr.=20 368; 2 Jac. & Walk. 194, n.; 1 Hill. Ab. c. 31; and article = Stellionate.=20

EQUIVALENT. Of the same value. Sometimes a condition must be = literally=20 accomplished in forma specifica; but some may be fulfilled by an = equivalent, per=20 oequi polens, when such appears to be the intention of the parties; as, = I=20 promise to pay you one hundred dollars, and then die, my executor may = fulfil my=20 engagement; for it is equivalent to you whether the money be paid to you = b me or=20 by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.

EQUIVOCAL. What has a double sense.

2. In the construction of contracts, it is a general rule that when = an=20 expression may be taken in two senses, that shall be preferred which = gives it=20 effect. Vide Ambiguity; Construction; Interpretation; and Dig. 22, 1, 4; = Id 45,=20 1, 80; Id. 50, 17, 67.

EQUULEUS. The name of a kind of rack for extorting = confessions. Encyc.=20 Lond.

ERASURE, contracts, evidence. The obliteration of a writing; = it will=20 render it void or not under the same circumstances as an interlineation. = (q. v.)=20 Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4 Cruise, Dig. 368; 13 Vin. Ab. 41; = Fitzg.=20 207; 5 Bing. R. 183; 3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R. 531; = 5 M. R.=20 190; 2 L. R. 291 3 L. R. 56; 4 L. R. 270.

2. Erasures and interlineations are presumed to have been made after = the=20 execution of a deed, unless the contrary be proved. 1 Dall. 67; 1 Pet. = 169; 4=20 Bin. 1; 10 Serg. & R. 64, 170, 419; 16 Serg. & R. 44.

EREGIMUS. We have erected. In England, whenever the. right of = creating=20 or granting a new office is vested in the king, he must use proper words = for the=20 purpose, as eregimus, constituimus, and the like. Bac. Ab. Offices, = &c.,=20 E.

EROTIC MANIA, med. jur. A name given to a morbid activity of = the=20 sexual propensity. It is a disease or morbid affection of the mind, = which fills=20 it with a crowd of voluptuous images, and hurries its victim to acts of = the=20 grossest licentiousness, in the absence of any lesion of the = intellectual=20 powers. Vide Mania.

ERROR. A mistake in judgment or deviation from the truth, in = matters=20 of fact and from the law in matters of judgment.

2. - 1 Error of fact. The law has wisely provide that a person shall = be=20 excused, if, intending to do a lawful act, and pursuing lawful means to=20 accomplish his object, he commit an act which would be criminal or = unlawful, if=20 it were done with a criminal design or in an unlawful manner; for = example,=20 thieves break into my house, in the night time, to commit a burglary; I = rise out=20 of my bed, and seeing a person with a drawn sword running towards my = wife, I=20 take him for one of the burglars, and shoot him down, and afterwards = find he was=20 one of my friends, whom, owing to the dimness of the light, I could not=20 recognize, who had lodged with me, rose on the first alarm, and was in = fact=20 running towards my wife, to rescue her from the hands of an assassin; = still I am=20 innocent, because I committed an error as to a fact, which I could not = know, and=20 had, no time to inquire about.

3. Again, a contract made under a clear error is not binding; as, if = the=20 seller and purchaser of a house situated in Now York, happen to be in=20 Philadelphia, and, at the time of the sale, it was unknown to both = parties that=20 the house was burned down, there will be no valid contract; or if I sell = you my=20 horse Napoleon, which we both suppose to be in my stable, and at the = time of the=20 contract he is dead, the sale is void. 7 How. Miss. R. 371 3 Shepl. 45; = 20 Wend.=20 174; 9 Shepl. 363 2 Brown, 27; 5 Conn. 71; 6 Mass. 84; 12 Mass. 36. See=20 Sale.

4. Courts of equity will in general correct and rectify all errors in = fact=20 committed in making deeds and contracts founded on good considerations. = See=20 Mistake.

5. - 2. Error in law. As the law is, or which is the same thing, is = presumed=20 to be certain and definite, every man is bound to understand it, and an = error of=20 law will not, in general, excuse a man, for its violation.

6. A contract made under an error in law, is in general binding, for = were it=20 not so, error would be urged in almost every case. 2 East, 469; see 6 = John. Ch.=20 R. 166 8 Cowen, 195; 2 Jac. & Walk. 249; 1 Story, Eq. Jur. 156; 1 = Younge=20 & Coll. 232; 6 B. & C. 671 Bowy. Com. 135; 3 Sav. Dr. Rom. App. = viii.=20 But a foreign law will for this purpose be considered as a fact. 3 = Shepl. 45; 9=20 Pick. 112; 2 Ev. Pothier, 369, &c. See, also, Ignorance; Marriage;=20 Mistake.

7. By error, is also understood a mistake made in the trial of a = cause, to=20 correct which a writ of error may be sued out of a superior court.

ERROR, WRIT OF. A writ of error is one issued fro a superior = to an=20 inferior court, for the purpose of bringing up the record and correcting = an=20 alleged error committed in the trial in the court below. But it cannot = deliver=20 the body from prison. Bro. Abr. Acc. pl. 45. The judges to whom the writ = is=20 directed have no power to return the record nisi judicium inde redditum = sit. Nor=20 can it be brought except on the final judgment. See Metcalf's Case, 11 = Co. Rep.=20 38, which is eminently instructive on this subject. Vide Writ of = Error.

ESCAPE. An escape is tho deliverance of a person who is = lawfully=20 imprisoned, out of prison, before such a person is entitled to such = deliverance=20 by law. 5 Mass. 310.

2. It will be proper to consider, first, what is a lawful = imprisonment; and,=20 secondly, the different kinds of escapes.

3. When a man is imprisoned in a proper place under the process of a = court=20 having jurisdiction in the case, he is lawfully imprisoned, = notwithstanding the=20 proceedings may be irregular; but if the court has not jurisdiction the=20 imprisonment is unlawful, whether the process be regular or otherwise. = Bac. Ab.=20 Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1 Cowen, 309 8 = Cowen,=20 192; 1 Root, R. 288.

4. Escapes are divided into voluntary and negligent; actual or = constructive;=20 civil and criminal and escapes on mesne process and execution.

5. - 1. A voluntary escape is the giving to a prisoner, voluntarily, = any=20 liberty not authorized by law. 5 Mass . 310; 2 Chipm. 11. Letting a = prisoner=20 confined under final process, out of prison for any, even the shortest = time, is=20 an escape, although he afterwards return; 2 Bl. Rep. 1048; 1 Roll. Ab. = 806; and=20 this may be, (as in the case of imprisonment under a ca. sa.) although = an=20 officer may accompany him. 3 Co. 44 a Plowd. 37; Hob. 202; 1 Bos. & = Pull. 24=20 2 Bl. Rep. 1048.

6. The effect of a voluntary escape in a civil case, when the = prisoner is=20 confined under final process, is to discharge the debtor, so that he = cannot be=20 retaken by the sheriff; but he may be again arrested if he was confined = only on=20 mesne process. 2 T. R. 172; 2 Barn. & A. 56. And the plaintiff may = retake=20 the prisoner in either case. In a criminal case, on the contrary, the = officer=20 not only has a right to recapture his prisoner, but it is his duty to do = so. 6=20 Hill, 344; Bac. Ab. Escape in civil cases, C.

7. - 2. A negligent escape takes place when the prisoner goes at = large,=20 unlawfully, either because the building or prison in which he is = confined is too=20 weak to hold him, or because the keeper by carelessness lets him go out = of=20 prison.

8. The consequences of a negligent escape are not so favorable to the = prisoner confined under final process, as they are when the escape is = voluntary,=20 because in this case, the prisoner is to blame. He may therefore be = retaken.

9. - 3. The escape is actual, when the prisoner in fact gets out of = prison=20 and unlawfully regains his liberty.

10. - 4. A constructive escape takes place when the prisoner obtains = more=20 liberty than the law allows, although he still remains in confinement = The=20 following cases are examples of such escapes: When a man marries his = prisoner.=20 Plowd. 17; Bac. Ab. Escape, B 3. If an underkeeper be taken in = execution, and=20 delivered at the prison, and neither the sheriff nor any authorized = person be=20 there to receive him. 5 Mass. 310. And when the keeper of a prison made = one of=20 the prisoners confined for a debt a turnkey, and trusted him with the = keys, it=20 was held that this was a constructive escape. 2 Mason, 486.

11. Escapes in civil cases are, when the prisoner is charged in = execution or=20 on mesne process for a debt or duty, and not for a criminal offence, and = he=20 unlawfully gains his liberty. In this case, we have seen, the prisoner = may be=20 retaken, if the escape have not been voluntary; and that he may be = retaken by=20 the plaintiff when the escape has taken place without his fault, whether = the=20 defendant be confined in execution or not; and that the sheriff may = retake the=20 prisoner, who has been liberated by him, when he was not confined on = final=20 process.

12. Escapes in criminal cases take place when a person lawfully in = prison,=20 charged with a crime or under sentence, regains his liberty unlawfully. = The=20 prisoner being to blame for not submitting to the law, and in effecting = his=20 escape, may be retaken whether the escape was voluntary or not. And he = may be=20 indicted, fined and imprisoned for so escaping. See Prison.

13. Escape on mesne process is where the prisoner is not confined on = final=20 process, but on some other process issued in the course of the = proceedings, and=20 unlawfully obtains his liberty, such escape does not make the officer = liable,=20 provided that on the return day of the writ, the prisoner is = forthcoming.

14. Escape on final process is when the prisoner obtains his liberty=20 unlawfully while lawfully confined, and under an execution or other = final=20 decree. The officer is then, in general, liable to the plaintiff for the = amount=20 of the debt.

ESCAPE, WARRANT. A warrant issued in England against a person = who=20 being charged in custody in the king's bench or Fleet prison, in = execution or=20 mesne process, escapes and goes at large. Jacob's L. D. h. t.

ESCHEAT, title to lands. According to the English law, escheat = denotes=20 an obstruction of the course of descent, and a consequent determination = of the=20 tenure, by some unforeseen contingency; in which case the land naturally = results=20 back, by a kind of reversion, to the original grantor, or lord of the = fee.. 2=20 Bl. Com. 244.

2. All escheats, under the English law, are declared to be strictly = feudal,=20 and to import the extinction of tenure. Wright on Ten. 115 to 117; 1 Wm. = Bl. R.=20 123.

3. But as the feudal tenures do not exist in this country, there are = no=20 private persons who succeed to the inheritance by escheat. The state = steps in,=20 in the place of the feudal lord, by virtue of its sovereignty, as the = original=20 and ultimate proprietor of all the lands within its jurisdiction. 4 = Kent, Com.=20 420. It seems to be the universal rule of civilized society, that when=20 the-deceased owner has left no heirs, it should vest in the public, and = be at=20 the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. liv. = 1, t. 6,=20 s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. = 156; 2=20 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24; = Jones on=20 Land Office Titles in Penna. 5, 6, 93. For the rules of the Roman Civil = Law, see=20 Code Justinian, book 10.

ESCHEATOR. The name of an officer whose duties are generally = to=20 ascertain what escheats have taken place, and to prosecute the claim of = the=20 commonwealth for the purpose of recovering the escheated property. Vide = 10 Vin.=20 Ab. 158.

ESCROW, conveyancing, contracts. A conditional delivery of a = deed to a=20 stranger, and not to the grantee himself, until certain conditions shall = be=20 performed, and then it is to be delivered to the grantee. Until the = condition be=20 performed and the deed delivered over, the estate does not pass, but = remains in=20 the grantor. 2 Johns. R. 248; Perk. 137, 138.

2. Generally, an escrow takes effect from the second delivery, and is = to be=20 considered as the deed of the party from that time; but this general = rule does=20 not apply when justice requires a resort to fiction. The relation back = to the=20 first delivery, so as to give the deed effect from that time, is allowed = in=20 cases of necessity, to avoid injury to the operation of the deed, from = events=20 happening between the first and second delivery. For example, when a = feme sole=20 makes a deed and delivers it as an escrow, and then marries before the = second=20 delivery, the relation back to the time when she was sole, is necessary = to=20 render the deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 = Kent, Com.=20 446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig. Fait, A 3; 13 Vin. = Ab. 29;=20 5 Mass. R. 60; 2 Root, R. 81; 5 Conn. R. 113; 1 Conn. R. 375; 6 Paige's = R. 314;=20 2 Mass. R. 452; 10 Wend. R. 310; 4 Green]. R. 20; 2 N. H. Rep. 71; 2 = Watts', R.=20 359; 13 John. R. 285; 4 Day's R. 66; 9 Mass. R. 310 1 John. Cas. 81; 6 = Wend. R.=20 666; 2 Wash. R. 58; 8 Mass. R. 238; 4 Watts, R. 180; 9 Mass. Rep. 310; 2 = Johns.=20 Rep. 258-9; 13 Johns. Rep. 285; Cox, Dig. tit, Escrow; Prest. Shep. = Touch. 56,=20 57, 58; Shep. Prec. 54, 56; 1 Prest. Abst. 275; 3 Prest. Ab. 65; 3 Rep. = 35; 5=20 Rep. 84.

ESCUAGE, old Eng. law. Service of the shield. Tenants who hold = their=20 land by escuage, hold by knight's service. 1 Tho. Co. Litt. 272; Littl. = s. 95,=20 86 b.

ESNECY. Eldership. In the English law, this word signifies the = right=20 which the eldest coparcener of lands has to choose one of the parts of = the=20 estate after it has been divided.

ESPLEES. The products which the land or ground yields; as the = hay of=20 the meadows, the herbage of the pasture, corn or other produce of the = arable,=20 rents and services. Termes de la Ley; see 11 Serg. & R. 2-5; Dane's = Ab.=20 Index, h. t.

ESPOUSALS, contracts. A mutual promise between a man and a = woman to=20 marry each other, at some other time: it differs from a marriage, = because then=20 the contract is completed. Wood's Inst. 57; vide Dig. 23, 1, 1; Code, 5, = 1, 4;=20 Novel, 115, c. 3, s. 11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. = 1, t. 6,=20 c. 1, =A71.

ESQUIRE. A title applied by courtesy to officers of almost = every=20 description, to members of the bar, and others. No one is entitled to it = by law,=20 and, therefore, it confers, no distinction in law.

2. In England, it is a title next above that of a gentleman, and = below a=20 knight. Camden reckons up four kinds of esquires, particularly regarded = by the=20 heralds: 1. The eldest sons of knights and their eldest sons, in = perpetual=20 succession. 2. The eldest sons of the younger sons of peers, and their = eldest=20 sons in like perpetual succession. 3. Esquires created by the king's = letters=20 patent, or other investiture, and their eldest sons. 4. Esquires by = virtue of=20 their office, as justices of the peace, and others who bear any office = of trust=20 under the crown.

ESSOIN, practice. An excuse which a party bound to be in court = on a=20 particular day, offers for not being there. 1 Sell. Pr. 4; Lee's Dict. = h. t.

2. Essoin day is the day on which the writ is returnable. It is = considered=20 for many purposes as the first day of the term. 1 T. R. 183. See 2 T. R. = 16 n.;=20 4 Moore's R. 425. Vide Exoine.

ESTABLISH. This word occurs frequently in the Constitution of = the=20 United $tates, and it is there used in different meanings. 1. To settle = firmly,=20 to fix unalterably; as, to establish justice, which is the avowed object = of the=20 constitution. 2. To make or form as, to establish an uniform rule of=20 naturalization, and uniform laws on the subject of bankruptcies, which = evidently=20 does not mean that these laws shall be unalterably established as = justice. 3. To=20 found, to create, to regulate; as, congress shall have power to = establish post=20 roads and post offices. 4. To found, recognize, confirm or admit; as, = congress=20 shall make no law respecting an establishment of religion. 5. To create, = to=20 ratify, or confirm; as, we, the people, &c., do ordain and establish = this=20 constitution, 1 Story, Const. =A7454.

ESTADAL, Spanish law. In Spanish America, this was a measure = of land=20 of sixteen square varas or yards. 2 White's Coll. 139.

ESTATE. This word his several meanings: 1. In its most = extensive=20 sense, it is applied to signify every thing of which riches or, fortune = may=20 consist and includes personal and real property; hence we say personal = estate,=20 real estate. 8 Ves. 504. 2. In its more limited sense, the word estate = is=20 applied to lands, It is so applied in two senses. The first describes or = points=20 out the land itself, without ascertaining the extent or nature of the = interest=20 therein; as "my estate at A." The second, which is the proper and = technical=20 meaning of estate, is the degree, quantity, nature and extent of = interest which=20 one has in real property; as, an estate in fee, whether the same be a = fee simple=20 or fee tail; or an estate for life or for years, &c. Lord Coke says: = Estate=20 signifies such inheritance, freehold, term of years, tenancy by statute=20 merchant, staple, eligit, or the like, as any man hath in lands or = tenements,=20 &c. Co. Lit. =A7650, 345 a. See Jones on Land Office Titles in = Penna.=20 165-170.

2. In Latin, it is called status, because it signifies the condition = or=20 circumstances in which the owner stands with regard to his = property..

3. Estates in land may be considered in a fourfold view with regard, = 1. To=20 the quantity of interest which the tenant has in the tenement. 2. To the = time=20 during which that quantity of interest is to be enjoyed. 3. To the = number and=20 connexion of the tenants. 4. To what conditions may be annexed to the=20 estate.

4. - 1. The quantity of interest which the tenant has in his tenement = is=20 measured by its duration and extent. An estate, considered in this point = of=20 view, is said to be an estate of freehold, and an estate less than = freehold.=20

5.- =A71. Freehold estates are of inheritance and not of inheritance. = An estate=20 in fee, (q. v.) which is the estate most common in this country, is a = freehold=20 estate of inheritance. Estates of freehold not of inheritance, are the=20 following:

6. - 1st. Estates for life. An estate for life is a freehold interest = in=20 lands, the duration of which is confined to the life or lives of some = particular=20 person or persons, or to the happening or not happening of some = uncertain=20 event.

7. Estates for life are divided into conventional or legal estates. = The first=20 created by the act of the parties, and the second by operation of = law.

8. - 1. Life estates may be created by express words; as, if A = conveys land=20 to B, for the term of his natural life; or they may arise by = construction of=20 law, as, if A conveys land to B, without specifying the term or = duration, and=20 without words of limitation. In the last case, B cannot have an estate = in fee,=20 according to. the English law, and according to the law of those parts = of the=20 United States which have adopted and not altered the common law in this=20 particular, but he will take the largest estate which can possibly arise = from=20 the grant, and that is an estate for life. Co. Litt. 42, a. So a = conveyance " to=20 I M, and his generation, to endure as long as the waters of the Delaware = should=20 run," passes no more than a life estate. 3 Wash. C. C. Rep. 498. The = life estate=20 may be either for a man's own life, or for the life of another person, = and in=20 this last case it is termed an estate per autre vie. There are some = estates for=20 life, which may depend upon future contingencies, before the death of = the person=20 to whom they are granted; for example, an estate given to a woman dum = sola=20 fuerit, or durante viduitate, or to a man and woman during coverture, or = as long=20 as the grantee shall dwell in a particular house, is determinable upon = the=20 happening of the event. In the same manner, a house usually worth one = hundred=20 dollars a year, may be granted to a person still he shall have received = one=20 thousand dollars; this will be an estate for life, for as the profits = are=20 uncertain, and may rise or fall, no precise time can be fixed for the=20 determination of the estate. On the contrary, where the time is fixed, = although=20 it may extend far beyond any life, as a terw for five hundred years, = this does=20 not create a life estate.

9. - 2. The estates for life created by operation of law, are, 1st. = Estates=20 tail after possibility of issue extinct. 2d. Estates by the curtesy. 3d. = Dower.=20 4th. Jointure. Vide Cruise. Dig. tit. 3; 4 Kent, Com. 23; 1 Brown's Civ. = Law,=20 191; 2 Bl. Com. 103. The estate for life is somewhat similar to the = usufruct (q.=20 v.) of the civil law.

10. The incidents to an estate for life, are principally the = following: 1.=20 Every tenant for life, unless restrained by covenant or agreement, may = of common=20 right take upon the land demised to him reasonable estovers or bote's. = Co. Litt.=20 41.

11. - 2. The tenant for life, or his representatives, shall not be=20 pre-judiced by any sudden determination of his estate, because such=20 determination is contingent or uncertain. Co. Litt. 55.

12. - 3. Under tenants or lessees of an estate for life, have the = same, and=20 even greater indulgences than the lessors, the original tenants for = life; for=20 when the tenant for life shall not have the emblements, because the = estate=20 determines by his own act, the exception shall not reach his lessee, who = is a=20 third person. l Roll. Ab. 727 2 Bl. Com. 122.

13. - 2d. Estates by the curtesy. An estate by the curtesy is an = estate for=20 life, created by act of law, which is defined as follows: When a man = marries a=20 woman, seised at any time during the coverture of an estate of = inheritance, in=20 severalty, in coparcenary, or in common, and has issue by her born = alive, and=20 which migbt by possibility inherit the same estate as heir to the wife, = and the=20 wife dies in the lifetime of the hushand, he holds the lands during, his = life by=20 the curtesy of England, and it is immaterial whether the issue be living = at the=20 time of the seisin, or at the death of the wife, or whether it was born = before=20 or after the seisin. Litt. s. 35; Co. Litt. 29, b; 8 Co. 34. By Act of = Asserably=20 of Pennsylvania, the birth of issue is not necessary, in all cases where = the=20 issue, if any, would have inherited.

14. There are four requisites indispensably necessary to the = existence of=20 this estate: 1. Marriage. 2. Seisin of the wife, which must have been = seisin in=20 deed, and not merely seisin in law; it seems, however, that the rigid = rules of=20 the common law, have been relayed, in this respect, as to what is = sometimes=20 called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death of the = wife.

15. - 1. The marriage must be a lawful marriage; for a void marriage = does not=20 entitle the hushand to the curtesy; as if a married man were to marry a = second=20 wife, the first being alive, he would not be entitled to the curtesy in = such=20 second wife's estate. But if the marriage had been merely voidable, he = would be=20 entitled, because no marriage, merely voidable, can be annulled after = the death=20 of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.

16. - 2. The seisin of the wife must, according to the English law, = be a=20 seisin in deed; but this strict rule has been somewhat qualified by=20 circumstances in this country. Where the wife is owner of wild = uncultivated=20 land, not held adversely, she is considered as seised in fact, and the = hushand=20 is entitled to his curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 = Munf. 162 1=20 Stow. 590. When the wife's state is in reversion or remainder, the = hushand is=20 not, in general, entitled to the curtesy, unless the particular estate = is elided=20 during coverture. Perk. s. 457, 464; Co. Litt. 20, a; 3 Dev. R. 270; 1 = Sumn.=20 263; but see 3 Atk. 469; 7 Viner, Ab. 149, pl. 11. The wife's seisin = must have=20 been such as to enable her to inherit. 5 Cowen, 74.

17. - 3. The issue of the marriage, to entitle the hushand to the = curtesy,=20 must possess the following qualifications: 1. Be born alive. 2. In the = lifetime=20 of the mother. 3. Be capable of inheriting the estate.

18. - 1st. The issue must be born alive. As to what will be = considered life,=20 see Birth; Death; Life.

19. - 2d. The issue must be born in the lifetime of the mother; and = if the=20 child be born after the death of the mother, by the performance of the = Caesarian=20 operation, the hushand will not be entitled to the curtesy; as there was = no=20 issue born at the instant of the wife's death, the estate vests = immediately on=20 the wife's death to the child, in ventre sa mere, and the estate being = once=20 vested, it cannot be taken from him. Co. Litt. 29, b.; 8 Co. Rep., 35, = a. It is=20 immaterial whether the issue be born before or after the seisin of the = wife. 8=20 Co. Rep. 35, b.

20. - 3d. The issue must be capable of inheriting the estate; When, = for=20 example, lands are given to a woman and the heirs male of her body, and = she has=20 a daughter, this issue will not enable lier hushand to take his curtesy. = Co.=20 Litt. 29, a.

21. - 4th. The death of the wife is requisite to make the estate by = the=20 curtesy complete.

22. This estate is generally prevalent in the United States; in some = of them=20 it has received a modification. In Pennsylvania the right of the hushand = takes=20 place although there be no issue of the marriage, in all cases where the = issue,=20 if any, would have inherited. In Vermont, the title by curtesy has been = laid=20 under the equitable restriction of existing only in the event that the = children=20 of the wife entitled to inherit, died within age and without children in = South=20 Carolina, tenancy by the curtesy, eo nomine, has ceased by the = provisions of an=20 act passed in 1791, relative to the distribution of intestates estates, = which=20 gives to the hushand surviving his wife, the same share of her real = estate, as=20 she would have taken out of his, if left a widow, and that is one = moiety, or=20 one-third of it in fee, according to circumstances. In Georgia, tenancy = by the=20 curtesy does not exist, because, since 1785, all marriages vest the = real,=20 equally with the personal estate, in the hushand. 4 Kent, Com. 29. In = Louisiana,=20 where the common Iaw has not been adopted in this respect, this estate = is=20 unknown.

23. This estate is not peculiar to the English law, as Littleton = erroneously=20 supposes; Litt. s. 35; for it is. to be found, with some modifications, = in the=20 ancient laws of Scotland, Ireland, Normandy and Germany. In France there = were=20 several customs, which gave a somewhat similar estate to the surviving = hushand,=20 out of the wife's inheritances. Merlin, Repert. mots Linotte, et Quarte = de=20 Conjoint pauvre.

24. - 3d. Estate in dower. Dower is an estate for life which the law = gives=20 the widow in the third part of the lands and tenements, or hereditaments = of=20 which the hushand was solely seised, at any time during the coverture, = of an=20 estate in fee or in tail, in possession, and to which estate in the = lands and=20 tenements the issue, if any of such widow, might, by possibility, have=20 inherited. In Pennsylvania, the sole seisin of the. hushand is not = necessary.=20 Watk. Prin. Con. 38; Lit. =A736; Act of Penna. March 31, 1812.

25. To create a title to the dower, three things are indispensably = requisite:=20 1. Marriage. This must be a marriage not absolutely void, and existing = at the=20 death of the hushand; a wife de facto, whose marriage is voidable by = decree, as=20 well as a wife de jure, is entitled to it; and the wife shall be = endowed, though=20 the marriage be within the age of consent, and the hushand dies within = that age.=20 Co. Litt. 33, a; 7 Co. 42; Doct. & Stud. 22; Cruise, Dig. t. 6, c. = 2, s, 2,=20 et seq.

26. - 2. Seisin. The hushand must have been seised, some time during = the=20 coverture, of the estate of which the wife is dowable. Co. Litt. 31, a. = An=20 actual seisin is not indispensable, a seisin in law is sufficient. As to = the=20 effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. = Litt.=20 31, a.

27. - 3. Death of the hushand. This must be a natural death; though = there are=20 authorities which declare that a civil death shall have the same effect. = Cruise,=20 Dig. tit. 6, ch. 2, =A722. Vide, generally, 8 Vin. Ab. 210; Bac. Ab. = Dower; Com.=20 Dig. Dower; Id. App. tit. Dower; 1 Supp. to. Ves. jr. 173, 189; 2 Id. = 49; 1=20 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 291; 2 Ves. jr. 572; 5 = Ves.=20 130; Arch. Civ. Pl. 469; 2 Sell. Pr. 200; 4 Kent, Com. 35; Amer. Dig. h. = t.;=20 Pothier, Traite du Douaire; 1 Swift's Dig. 85; Perk. 300, et seq.

28. - 4th. Estate tail after possibility of issue extinct. By this = awkward,=20 but perhaps necessary periphrasis, justified by Sir William Blackstone, = 2 Com.=20 124, is meant the estate which is thus described by Littleton, =A732 = when=20 tenements are given to a man and his wife in special tail, if one of = them die=20 without issue, the survivor is tenant in tail after possibility of issue = extinct."

29. This estate though, strictly speaking, not more than an estate = for life,=20 partakes in some circumstances of the nature of an estate tail. For a = tenant in=20 tail after possibility of issue extinct, has eight qualities or = privileges in=20 common with a tenant in tail. 1. He is dispunishable for waste. 2. He is = not=20 compellable to attorn. 3. He shall not have aid of the person in = reversion. 4.=20 Upon his alienation no writ of entry in consimili casu lies. 5. After = his death,=20 no writ of intrusion lies. 6. He may join the mise in a writ of right in = a=20 special manner. 7. In a praecipe brought by him he shall not name = himself tenant=20 for life. 8. In a praecipe brought against him, he shall not be named = barely=20 tenant for life.

30. There are, however, four qualities annexed to this estate, which = prove it=20 to be, in fact, only an estate for life. 1. If this tenant makes a = feoffment in=20 fee, it is a forfeiture. 2. If an estate tail or in fee descends upon = him, the=20 estate tail after possibility of issue extinct is merged. 3. If he is = impleaded=20 and makes default, the person in reversion shall be received, as upon = default of=20 any other tenant for life. 4. An exchange between this tenant and a bare = tenant=20 for life, is good; for, with respect to duration, their. estates are = equal.=20 Cruise, Dig. tit. 4; Tho. Co. Litt. B. 2, c. 17; Co. Lit. 28, a.

31. Nothing but absolute impossibility of having issue, can give rise = to this=20 estate. Thus if a person gives lands to a man and his, wife, and to the = heirs of=20 their two bodies, and they live to a hundred years, without having = issue, yet=20 they are tenants in tail; for the law' sees no impossibility of their = having=20 issue, until the death of one of them. Co. Litt. 28, a. See Tenant in = tail after=20 possibility of issue extinct.

32. - =A72. An estate less than freehold is an estate which is not in = fee, nor=20 for life; for although a man has a lease for a thousand years, which is = much=20 longer than any life, yet it is not a freehold, but a mere estate for = years,=20 which is a chattel interest. Estates less than freehold are estates for = years,=20 estates at will, and estates at sufferance.

33. - 1. An estate for years, is one which is created by a leas; for = years,=20 which is a contract for the posspssion and profits of land for a = determinate=20 period, with the recompense of rent; and it is deemed an estate for = years,=20 though the number of years should exceed the ordinary limits of human = life; and=20 it is deemed an estate for years though it be limited to less than a = single=20 year. It is denominated a term, because its duration is absolutely = defined.

34. An estate for life is bigher than an estate for years, though the = latter=20 should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1 = Brown's=20 Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R. 126; = 8 Serg.=20 & Rawle, 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325.

35. - 3. An estate at will is not bounded by any definite limits with = respect=20 to time; but as it originated in mutual agreement, so it depends upon = the=20 concurrence of both parties. As it depends upon the will of both, the = dissent of=20 either may determine it. Such an estate or interest cannot, = consequently, be the=20 subject of conveyance to a stranger, or of transmission to = representatives.=20 Watk. Prin. Con. 1; Litt. =A768.

36. Estates at will have become infrequent under the operation of = judicial=20 decisions. Where no certain term is agreed on, they are now construed to = be=20 tenancies from year to year, and each party is bound to give reasonable = notice=20 of an intention to terminate the estate. When the tenant holds over by = consent=20 given, either expressly or by implication, after the determination of a = lease=20 for years, it is held evidence of a new contract, without any definite = period,=20 and is construed. to. be a tenancy from year to year. 4 Kent, Com. 210; = Cruise,=20 Dig. tit. 9, c . 1.

37.-3. An estate at sufferance. The session of land by lawful title, = but=20 holds over by wrong after the determination of his interest. Co. Litt. = 57, b. He=20 has a bare naked possession, but no estate which he can transfer or = transmit, or=20 which is capable of enlargement by. release, for he stands in no privity = to his=20 landlord.

38. There is a material distinction between the case of a person = coming to an=20 estate by act of the party, and afterwards holding over, and by act of = the law=20 and then holding over. In the first case, he is regarded as a tenant at=20 sufferauce; and in the other, as an intruder, abator, and trespasser. = Co. Litt.=20 57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. = &=20 Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.

39. - II. As to the time of their enjoyment, estates are considered = either in=20 possession, (q. v.) or expectancy. (q. v.) The latter are either = remainders, (q.=20 v.) which are created, by the act of the parties, and these are vested = or=20 contingent, or reversions, (q, v.) created by act of law.

40. - III. An estate way be holden in a variety of ways the most = common of=20 which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In=20 coparcenary. These will be separately considered.

41. - 1. dn estate in severally, is where only one tenant holds the = estate in=20 his own right, without any other person being joined or connected with = him, in=20 point-of interest, during the continuance of his estate.

42. - 2. dn estate in joint tenancy, is where lands or tenements are = granted=20 to two or more persons, to hold in fee simple, fee tail, for life, for = years, or=20 at will. 2 Bl. Com. 179. Joint tenants always take by purchase, and = necessarily=20 have equal shares; while tenants in common, also coparceners, claiming = under=20 ancestors in different degrees, may have unequal shares and the proper = and best=20 mode of creating an estate in joint tenancy, is to limit to A B and C D, = and=20 their assigns, if it be an estate for life; or to A B and C D, and their = heirs,=20 if in) fee. Watk. Prin. Con. 86.

43. The creation of the estate depends upon the expression in the = deed or=20 devise, by which the tenants hold, for it must be created by the acts of = the=20 parties, and does not result from the operation of law. Thus, an estate = given to=20 a number of persons, without any restriction or explanation, will be = construed a=20 joint tenancy; for every part of the grant can take effect only, by = considering=20 the estate equal in all, and the union of their names gives them a name = in every=20 respect.

44. The properties of this estate arise from its unities; these are, = 1. Unity=20 of title; the estate must have been created and derived from one and the = same=20 conveyance. 2. There must be a unity of time; the estate must be created = and=20 vested at the same period. 3. There must be a unity of interest; the = estate must=20 be for the same duration, and for the same quantity of interest. 4. = There must=20 be a unity of possession; all the tenants must possess and enjoy at the = same=20 time, for each must have an entire possession of every parcel, as of the = whole.=20 One has not possession of one-half, and another of the other half, but = each has=20 an undivided moiety of the whole, and not the whole of an undivided = moiety.

45. The distinguishing incident of this estate, is the right of = survivorship,=20 or jus accrescendi; at common law, the entire tenancy or estate, upon = the death=20 of any of the joint tenants, went to the survivors, and so on to the = last=20 survivor, who took an estate of inheritance. The right of survivorship, = except,=20 perhaps, in estates held in trust, is abolished in Pennsylvania, New = York,=20 Virginia, Kentucky, Indiana, Missouri, Tennessee, North and-South = Carolina,=20 Georgia, and Alabama. Griffith's Register, h. t. In Connecticut it never = was=20 recognized. 1 Root, Rep. 48; 1 Swift's Digest, 102. Joint tenancy may be = destroyed by destroying any of its constituent unities, except that of = time. 4=20 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 Swift's Dig. 102; 14 Vin. = Ab. 470;=20 Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4; 1 Vern. 353,; Com. = Dig.=20 Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. see. = 304 2=20 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep . 18; Joint tenant; = Survivor; Entirety.

46. - 3. An estate in common, is one which is held by two or more = persons by=20 unity of possession.

47. They may acquire their estate by purchase, and hold by several = and=20 distinct titles, or by title derived at the same time, by the same deed = or will;=20 or by descent. In this respect the American law differs from the English = common=20 law.

48. This tenancy, according to the common law, is created by deed or = will, or=20 by change of title from joint tenancy or coparcenary; or it arises, in = many=20 cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. = 192; 2=20 Prest. on Abstr. 75.

49. In this country it maybe created by descent, as well as by deed = or will.=20 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com. Dig. Estates by Grant, = K 8.

50. Estates in common can be dissolved in two ways only; first, by = uniting=20 all the titles and interests in one tenant secondly, by making = partition.

51. - 4. An estate in coparcenary, is an estate of inheritance in = lands which=20 descend from the ancestor to two or more persons who are called = coparceners or=20 parceners.

52. This is usually applied, in England, to cases where lands descend = to=20 females, when there are no male heirs.

53. As in the several states, estates generally descend to all the = children=20 equally, there is no substantial difference between coparceners and = tenants in=20 common. The title inherited by more persons than one, is, in some of the = states,=20 expressly declared to be a tenancy in common, as in New York and New = Jersey, and=20 where it is not so declared the effect is the same; the technical = distinction=20 between coparcenary and estates in common may be considered as = essentially=20 extinguished in the United States. 4 Kent, Com. 363. Vide Estates.

54. - IV. An estate upon condition is one which has a qualification = annexed=20 to it by which it may, upon the happening or not happening of a = particular=20 event, be created, or enlarged, or destroyed. Conditions may be annexed = to=20 estates in fee, for life, or for years. These estates are divided into = estates=20 upon condition express, or in deed; and upon conditions implied, or in = law.

55. Estates upon express conditions are particularly mentioned 'in = the=20 contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, = Dig. tit.=20 13.

56. Estates upon condition in law are such as have a condition = impliedly=20 annexed to them, without any condition being specified in the deed or = will.=20 Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b.

57. Considered as to the title which may be had in them, estates are = legal=20 and equitable. 1. A legal estate is one, the right to which can be = enforced in a=20 court of law. 2. An equitable, is a right or interest in land, which not = having=20 the properties of a legal estate, but being merely a right of which = courts of=20 equity will take notice, require the aid of such a court to, make it = available.=20 See, generally, Bouv. Inst. Index, h. t.

ESTER EN JUGEMENT, French law. Stare in judicio. To appear = before a=20 tribunal either as plaintiff or defendant.

ESTIMATION OF VALUES. As the value of most things is variable, = according to circumstances, the law in many cases determines the time at = which=20 the value of a thing should be taken; thus, the value of an advancement, = is to=20 be taken at the time of the gift. 1 Serg. & R. 425. Of a gift in=20 frank-marriage, at the time of partition between the parceners, and the = bringing=20 of the gift in frank-marriage into hotchpot. But this is a case sui = generis. Co.=20 Lit. =A7273; 1 Serg. & R. 426. Of the yearly value of properties; at = the time=20 of partition. Tho. Co. Lit. 820. Of a bequest of so pieces of coin; at = the time=20 of the will made. Godolph, 0. L. 273, part 3, chap. 1. =A73. Of assets = to make=20 lineal warranty a bar; at the time of the descent. Co. Lit. 374, b. Of = lands=20 warranted; at the time of the warranty. Beames' Glanv. 75 n.; 2 Serg. = &=20 Rawle, 444, see Eviction 2. Of a ship lost at sea; her value is to be = taken at=20 the port from which she sailed, deducting one-fifth; 2 Serg. & = Rawle, 258; 1=20 Caines, 572; 2 Condy. Marshall, 545; but different rules prevail on this = subject=20 in different nations. 2 Serg. & R. 259. Of goods lost at sea; their = value is=20 to be taken at the port of delivery. 2 Serg. & R. 257. The = comparative value=20 of a life estate, and the remainder in fee, is one-third for the life = and=20 two-thirds for the remainder in fee; and moneys due upon a mortgage of = lands=20 devised to one for life, and the remainder in fee to another, are to be=20 apportioned by the same rule. 1 Vern. 70; 1 Chit. Cas. 223, 224, 271; = Francis'=20 Max. 3, =A712, and note. See Exchange, 3-2.

ESTOPPEL, pleading. An estoppel is a preclusion, in law, which = prevents a man from alleging or denying a fact, in consequence o his own = previous act, allegation or denial of a contrary tenor. Stepb. Pl. 239. = Lord=20 Coke says, " an estoppel is, when a man is concluded by his own act or=20 acceptance, to say the truth." Co. Litt. 352, a. And Blackstone defines = "an=20 estoppel to be a special plea in bar, which happens where a man has done = some=20 act, or executed some deed, which estops or precludes him from averring = any=20 thing to the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. = &=20 R. 444; they are not admitted in equity against the truth. Id. 442. Nor = can=20 jurors be estopped from saying the truth, because they are sworn to do = so,=20 although they are estopped from finding against the admission of the = parties in=20 their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. = 662;=20 Angel on Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. = notes.

2. An estoppel may, arise either from matter of record; from the deed = of the=20 party; or from matter in Pays; that is, matter of fact.

3. Thus, any confession or admission made in pleading, in a court of = record,=20 whether it be express, or implied from pleading over without a traverse, = will=20 forever preclude the party from afterwards contesting the same fact in = any=20 subsequent suit with his adversary. Com. Dig. Estoppel, A 1. This is an = estoppel=20 by matter of record.

4. As an instance of an estoppel by deed, may be mentioned the case = of a bond=20 reciting a certain fact. The party executing that bond, will be = precluded from=20 afterwards denying in any action brought upon that instrument, the fact = , so=20 recited. 5 Barn. & Ald. 682.

5. An example of an estoppel by matter in pays occurs when one man = Las=20 accepted rent of another. He will be estopped from afterwards. denying, = in any=20 action, with that person, that he was, at the time of such acceptance, = his=20 tenant. Com. Dig. Estoppel, A 3 Co. Litt. 352, a.

6. This doctrine of law gives rise to a kind of pleading that is = neither by=20 way of traverse, nor confession. and avoidance: viz. a pleading, that, = waiving=20 any question of fact, relies merely on the estoppel, and, after stating = the=20 previous act, allegation, or denial, of the opposite party, prays = judgment, if=20 he shall be received or admitted to aver contrary to what he before did = or said.=20 This pleading is called pleading by way of estoppel. Steph. 240a

7. Every estoppel ought to be reciprocal, that is, to bind both = parties: and=20 this is the reason that regularly a stranger shall neither take = advantage or be=20 bound by an estoppel. It should be directly affirmative, and not by = inference=20 nor against an estoppel. Co. Lit. 352, a, b; 1 R. 442-3; 9 Serg. & = R. 371,=20 430; 4 Yeates' 38 1 Serg. & R. 444; Corn. Dig. Estoppel, C 3 Johns. = Cas.=20 101; 2 Johns. R. 382; 8 W. & S. 135; 2 Murph. 67; 4 Mont. 370. = Privies in=20 blood, privies in estate, and privies in law, are bound by, and may take = advantage of estoppels. Co. Litt. 352; 2 Serg. & Rawle, 509; 6 Day, = R. 88.=20 See the following cases relating to estoppels by; Matter of record: 4 = Mass. R.=20 625; 10 Mass. R. 155; Munf. R. 466; 3 East, R. 354; 2 Barn. & Ald. = 362, 971;=20 17 Mass. R. 365; Gilm. R. 235; 5 Esp. R. 58; 1 Show. 47; 3 East, R. 346. = Matter=20 of writing: 12 Johns. R. 347; 5 Mass. R. 395; Id. 286; 6 Mass. R. 421; 3 = John.=20 Cas. 174; 5 John. R. 489; 2 Caines' R. 320; 3 Johns. R. 331; 14 Johns. = R. 193;=20 Id. 224; 17 Johns. R. 161; Willes, R. 9, 25; 6 Binn. R. 59; 1 Call, R. = 429; 6=20 Munf. R. 120; 1 Esp. R. 89; Id. 159; Id. 217; 1 Mass. R. 219. Matter in = pays: 4=20 Mass. R. 181; Id. 273 15 Mass. R. 18; 2 Bl. R. 1259; 1 T. R. 760, n.; 3 = T. R.=20 14; 6 T. R. 62; 4 Munf. 124; 6 Esp. R. 20; 2 Ves. 236; 2 Camp. R. 844; 1 = Stark.=20 R. 192. And see, in general, 10 Vin. Abr. 420, tit. Estoppel; Bac. Abr. = Pleas,=20 111; Com. Dig. Estoppel; Id. Pleader, S 5; Arch. Civ. Pl. 218; Doct. Pl. = 255;=20 Stark. Ev. pt. 2, p. 206, 302; pt. 4, p. 30; 2 Smith's Lead. Cas. = 417-460. Vide=20 Term.

ESTOVERS, estates. The right of taking necessary wood for the = use or=20 furniture of a house or farm, from off another's estate. The word bote = is used=20 synonymously with the word estovers. 2 Bl. Com. 35; Dane's Ab. Index, h. = t.;=20 Woodf. L. & T. 232; 10 Wend. 639; 2 Bouv. Inst. n. 1652 57.

ESTRAYS. Cattle whose owner is unknown.

2. In the United States, generally, it is presumed by local = regulations, they=20 are subject to, being sold for the benefit of the poor, of some other = public=20 use, of the place where found.

ESTREAT. This term is used to signify a true copy or note of = some=20 original writing or record, and specially of flues and amercements = imposed by a=20 court, and extracted from the record, and certified to a proper officer = or=20 officers authorized and required to collect them. Vide F. N. B. 57, = 76.

ESTREPE. This word is derived from the French, estropier, to = cripple.=20 It signifies an injury to lands, to the damage of another, as a = reversioner.=20 This is prevented by a writ of estrepemeut.

ESTREPEMENT. The name of a writ which lay at common law to = prevent a=20 party in possession from committing waste on an estate, the title to = which is=20 disputed, after judgment obtained in any real action, and before = possession was=20 delivered by the sheriff.

2. But as waste might be committed in some cases, pending the suit, = the=20 statute of Gloucester gave another writ of estrepement pendente placito, = commanding the sheriff firmly to inhibit the tenant "ne faciat vastum = vel=20 strepementum pendente placito dicto indiscusso." By virtue of either of = these=20 writs, the sheriff may resist those who commit waste or offer to do so; = and he=20 may use sufficient force for the purpose. 3 Bl. Com. 225, 226.

3. This writ is sometimes directed to the sheriff and the party in = possession=20 of the lands, in order to make him amenable to the court as for a = contempt in=20 case of his disobedience to the injunction of the writ. At common law = the=20 process proper to bring the tenant into court is a venire facias, and = thereon an=20 attachment. Upon the defendant's coming in, the plaintiff declares = against him.=20 The defendant usually pleads "that he has done no waste contrary to the=20 prohibition of the writ." The issue on this plea is tried by a jury, and = in case=20 they find against the defendant, they assess damages which the plaintiff = recovers. But as this verdict convicts the defendant of a contempt, the = court=20 proceed against him for that cause as in other cases. 2 Co. Inst. 329; = Rast.=20 Ent. 317; Brev. Judic. 88; More's Rep. 100; 1 Bos. & Pull. 121; 2 = Lilly's=20 Reg. tit. Estrepement; 5 Rep. 119; Reg. Brev. 76, 77.

4. In Pennsylvania, by legislative enactment, the remedy by = estrepement is=20 extended for the benefit of any owner of lands leased for years or at = will, at=20 any time during the continuance or after the expiration of such demise, = and due=20 notice given to the tenant to leave the same, agreeably to law, or for = any=20 purchaser at sheriff or coroner's sale of lands. &c., after he has = been=20 declared the highest bidder by the sheriff or coroner; or for any = mortgagee or=20 judgment creditor, after the lands bound by such judgment or mortgage, = shall=20 have been condemned by inquisition, or which may be subject to be sold = by a writ=20 of venditioni exponas or levari facias. Vide 10 Vin. Ab. 497; Woodf. = Landl.=20 & Ten, 447; Archb. Civ. Pl. 17; 7 Com. Dig. 659.

ET CETERA. A Latin phrase, which has been adopted into = English; it=20 signifies. "and the others, and so of the rest," it is commonly = abbreviated,=20 &c.

2. Formerly the pleader was required to be very particular in making = his=20 defence. (q. v.) B making full defence, he impliedly admitted the = jurisdiction=20 of the court, and the competency of the plaintiff to sue; and half = defence was=20 used when the defendant intended to plead to the jurisdictions or = disability. To=20 prevent the inconveniences which might arise by pleading full or half = defence,=20 it became the practice to plead in the following form: " And the said C = D, by E=20 F, his attorney, comes and defends the wrong and injury, when, &c., = and=20 says," which was either full or half defence. 2 Saund. 209, c.; Steph. = Pl. 432;=20 2 Chit. Pl. 455.

3. In practice, the &c. is used to supply the place of words = which have=20 been omitted. In taking recognizance, for example, it is usual to make = an entry=20 on the docket of the clerk of the court, as follows: A B, tent, &c., = in the=20 sum of $1000, to answer, &c. 6 S. & R. 427.

ET NON. And not. These words are sometimes employed in = pleading to=20 convey a pointed denial. They have the same effect as without this, = absque hoe.=20 3 Bouv. Inst. n. 2981, note.

EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going, = remaining, and returning. It is employed in cases where a person either = as a=20 party, a witness, or one acting in some other capacity, as an elector, = is=20 privileged from arrest, in order to give him that freedom necessary to = the=20 performance of his respective obligations, to signify that he is = protected from=20 arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.

EUNOMY. Equal laws, and a well adjusted constitution of=20 government.

EUNUCH. A male whose organs of generation have been so far = removed or=20 disorganized, that he is rendered incapable of reproducing his species. = Domat,=20 Lois Civ. liv. prel. tit. 2, s. 1, n. 10.

EVASION. A subtle device to set aside the truth, or escape the = punishment of the law; as if a man should tempt another to strike him = first, in=20 order that he might have an opportunity of returning the blow with = impunity. He=20 is nevertheless punishable, because he becomes himself the aggressor in = such a=20 case. Wishard, 1 H. P . C. 81 Hawk. P. C. c. 31, =A724, 25; Bac. Ab. = Fraud, A.

2. An escape from custody.

EVICTION. The loss or deprivation which the possessor of a = thing=20 suffers, either in whole or in part, of his right of property in such a = thing,=20 in consequence of the right of a third person established before a = compenent=20 tribunal. 10 Rep. 128; 4 Kent, Com. 475-7; 3 Id. 464-5.

2. The eviction may be total or partial. It is total, when the = possessor is=20 wholly deprived of his rights in the whole thing; partial, when he is = deprived=20 of only a portion of the thing; as, if he had fifty acres of land, and a = third=20 person recovers by a better title twenty-five; or, of some right in = relation to=20 the thing. as, if a stranger should claim and establish a right to some = easement=20 over the same. When the grantee suffers a total eviction, and he has a = covenant=20 of seisin, he recovers from the seller, the consideration money, with = interest=20 and costs, and no more. The grantor has no concern with the future rise = or fall=20 of the property, nor with the improvements made by the purchaser. This = seems to=20 be the general rule in the United States. 3 Caines' R. 111; 4 John. R. = 1; 13=20 Johns. R. 50; 4 Dall. R. 441; Cooke's Term. R. 447; 1 Harr. & Munf. = 202; 5=20 Munf. R. 415; 4 Halst. R. 139; 2 Bibb, R. 272. In Massachusetts, the = measure of=20 damages on a covenant of warranty, is the value of the land at the time = of=20 eviction. 3 Mass. R. 523; 4 Mass. R. 108. See, as to other states, 1 = Bay, R. 19,=20 265; 3 Des. Eq. R. 245; 2 Const. R. 584; 2 McCord's R. 413; 3 Call's R. = 326.

3. When the eviction is only partial the damages to be recovered = under the=20 covenant of seisin, are a rateable part of the original price, and they = are to=20 bear the same ratio to the whole consideration, that the value of land = to which=20 the title has failed, bears to the value of the whole tract. The = contract is not=20 rescinded, so as to entitle the vendee to the whole consideration money, = but=20 only to the amount of the relative value of the part lost. 5 Johns. R. = 49; 12=20 Johns. R. 126; Civ. Code of Lo. 2490; 4 Kent's Com. 462. Vide 6 Bac. Ab. = 44; 1=20 Saund. R. 204: note 2, and 322 a, note 2; 1 Bouv. Inst. n. 656.

EVIDENCE. That which demonstrates, makes clear, or ascertains = the=20 truth of the very fact or point in issue; 3 Bl. Com. 367; or it is = whatever is=20 exhibited to a court or jury, whether it be by matter of record, or = writing, or=20 by the testimony of witnesses, in order to enable them to pronounce with = certainty; concerning the truth of any matter in dispute; Bac. Ab. = Evidence, in=20 pr.; or it is that which is legally submitted to a jury, to enable them = to=20 decide upon the questions in dispute or issue, as pointed out by the = pleadings=20 and distinguished from all comment or argument. 1 Stark. Ev. 8. 2. = Evidence may=20 be considered with reference to, 1. The nature of the evidence. 2. The = object of=20 the evidence. 3. The instruments of evidence. 4. The effect of evidence. = 1. As=20 to its nature, evidence may be considered with reference to its being 1. = Primary=20 evidence. 2. Secondary evidence. 3. Positive. 4. Presumptive. 5. = Hearsay. 6.=20 Admissions.

4. - 1. Primary evidence. The law generally requires that the best = evidence=20 the case admits of should be given; B. N. P. 293; 1 Stark. Ev. 102, 390; = for=20 example, when a written contract has been entered into, and the object = is to=20 prove what it was, it is requisite to produce the original writing if it = is to=20 be attained, and in that case no copy or other inferior evidence will be = received.

5. To this general rule there are several exceptions. 1. As it refers = to the=20 quality rather than to the quantity of evidence, it is evident that the = fullest=20 proof that every case admits of, is not requisite; if, therefore, there = are=20 several eye-witnesses to a fact, it may be sufficiently proved by one = only. 2.=20 It is not always requisite, when the matter to be proved has been = reduced to=20 writing, that the writing should be produced; as, if the narrative of a = fact to=20 be proved has been committed to writing, it may yet be proved by parol = evidence.=20 A receipt for the payment of money, for example, will not exclude parol = evidence=20 of payment. 14 Esp. R. 213; and see 7 B. & C. 611; S. C. 14 E. C. L. = R. 101;=20 1 Campb. R. 439; 3 B. & A. 566; 6 E. C. L. R. 377.

6. - 2. Secondary evidence. That species of proof which is admissible = on the=20 loss of primary evidence, and which becomes by that event the best = evidence. 3=20 Yeates, Rep. 530.

7. It is a rule that the best evidence, or that proof which most = certainly=20 exhibits the true state of facts to which it relates, shall be required, = and the=20 law rejects secondary or inferior evidence, when it is attempted to be=20 substituted for evidence of a higher or superior nature. This is a rule = of=20 policy, grounded upon a reasonable suspicion, that the substitution of = inferior=20 for better evidence arises from sinister motives; and an apprehension = that the=20 best evidence, if produced, would alter the case to the prejudice of the = party.=20 This rule relates not to the measure and quantity of evidence, but to = its=20 quality when compared with some other evidence of superior degree. It is = not=20 necessary in point of law, to give the fullest proof that every case may = admit=20 of. If, for example, there be several eye witnesses to a fact, it may be = proved=20 by the testimony of one only.

8. When primary evidence cannot be had, then secondary evidence will = be=20 admitted, because then it is the best. But before such evidence can be = allowed,=20 it must be clearly made to appear that the superior evidence is not to = be had.=20 The person who possesses it must be applied to, whether he be a stranger = or the=20 opposite party; in the case of a stranger, a subpoena and attachment, = when=20 proper, must be taken out and served; and, in the case of a party, = notice to=20 produce such primary evidence must be proved before the secondary = evidence will=20 be admitted. 7 Serg. & Rawle, 116; 6 Binn. 228; 4 Binn. R. 295, = note; 6=20 Binn. R. 478; 7 East, R. 66; 8 East, R. 278 3 B. & A. 296; S. C. 5 = E. C. L.=20 R. 291.

9. After proof of the due execution of the original, the contents = should be=20 proved by a counterpart, if there be one, for this is the next best = evidence;=20 and it seems that no evidence of a mere copy is admissible until proof = has been=20 given that the counterpart cannot be produced. 6 T. R. 236. If there be = no=20 counterpart, a copy may be proved in evidence. by any witness who knows = that it=20 is a copy, from having compared it with the original. Bull. N. P. 254; 1 = Keb.=20 117; 6 Binn. R. 234; 2 Taunt. R. 52; 1 Campb. R. 469 8 Mass. R. 273. If = there be=20 no copy, the party may produce an abstract, or even give parol evidence = of the=20 contents of a deed. 10 Mod. 8; 6 T. R. 556.

10. But it has been decided that there are no degrees in secondary = evidence:=20 and when a party has laid the foundation for such evidence, he may prove = the=20 contents of a deed by parol, although it appear that an attested copy is = in=20 existence. 6 C. & P. 206; 8 Id. 389.

11. - 3. Positive or direct evidence is that which, if believed, = establishes=20 the truth of a fact in issue, and does not arise from any presumption. = Evidence=20 is direct and positive, when the very facts in dispute are communicated = by those=20 who have the actual knowledge of them by means of their senses. 1 Phil. = Ev. 116=20 1 Stark. 19. In one sense, there is but little direct or positive proof, = or such=20 proof as is acquired by means of one's own sense, all other evidence is=20 presumptive but, in common acceptation, direct and positive evidence is = that=20 which is communicated by one who has actual knowledge of the fact.

12. - 4. Presumptive evidence is that which is not direct, but where, = on the=20 contrary, a fact which is not positively known, is presumed or inferred = from one=20 or more other facts or circumstances which are known. Vide article = Presumption,=20 and Rosc. Civ. Ev. 13; 1 Stark. Ev. 18.

13. - 5. Hearsay, is the evidence of those who relate, not what they = know=20 themselves, but what they have heard from others.

14. Such mere recitals or assertions cannot be received in evidence, = for many=20 reasons, but principally for the following: first, that the party making = such=20 declarations is not on oath and, secondly, because the party against = whom it=20 operates, has no opportunity of cross-examination. 1 Phil. Ev. 185. See, = for=20 other reasons, 1 Stark. Ev. pt. 1, p. 44. The general rule excluding = hearsay=20 evidence, does not apply to those declarations to which the party is = privy, or=20 to admissions which he himself has made. See Admissions.

15. Many facts, from their very nature, either absolutely, or usually = exclude=20 direct evidence to prove them, being such as are either necessarily or = usually,=20 imperceptible by the senses, and therefore incapable of the ordinary = means of=20 proof. These are questions of pedigree or relationship, character, = prescription,=20 custom, boundary, and the like; as also questions which depend upon the = exercise=20 of particular skill and judgment. Such facts, some from their nature, = and others=20 from their antiquity, do not admit of the ordinary and direct means of = proof by=20 living witnesses; and, consequently, resort must be had to the best = means of=20 proof which the nature of the cases afford. See Boundary; Custom; = Opinion;=20 Pedigree; Prescription.

16. - 6. Admissions are the declarations which a party by himself, or = those=20 who act under his authority, make of the existence of certain facts. = Vide=20 Admissions.

17.- =A72. The object of evidence is next to be considered. It is to = ascertain=20 the truth between the parties. It has been discovered by experience that = this is=20 done most certainly by the adoption of the following rules, which are = now=20 binding as law: 1. The evidence must be confined to the point in issue. = 2. The=20 substance of the issue must be proved, but only the substance is = required to be=20 proved. 3. The affirmative of the issue must be proved.

18. - 1. It is a general rule, both in civil and criminal cases, that = the=20 evidence shall be confined to the point in issue. Justice and = convenience=20 require the observance of this rule, particularly in criminal cases, for = when a=20 prisoner is charged with an offence, it is of the utmost importance to = him that=20 the facts laid before the jury should consist exclusively of the = transaction,=20 which forms the subject of the indictment, and, which alone he has come = prepared=20 to answer. 2 Russ. on Cr. 694; 1 Phil. Ev. 166.

19. To this general rule, there are several exceptions, and a variety = of=20 cases which do not fall within the rule. 1. In general, evidence of = collateral=20 facts is not admissible; but when such a fact is material to the issue = joined=20 between the parties, it may be given in evidence; as, for example, in = order to=20 prove that the acceptor of a bill knew the payee to be a fictitious = person; or=20 that the drawer had general authority from him to fill up bills with the = name of=20 a fictitious payee, evidence may be given to show that he had accepted = similar=20 bills before they could, from their date, have arrived from the place of = date. 2=20 H. Bl. 288.

20. - 2. When special damage sustained by the plaintiff is not stated = in the=20 declaration, it is Dot one of the points in issue, and therefore, = evidence of it=20 cannot be received; yet a damage which is the necessary result of the=20 defendant's breach of contract, may be proved, notwithstanding it is not = in the=20 declaration. 11 Price's Reports, 19.

21. - 3. In general, evidence of the character of either party to a = suit is=20 inadmissible, yet in some cases such evidence may be given. Vide article = Cha?-acter.

22. - 4. When evidence incidentally applies to another person or = thing not=20 included in the transaction in question, and with regard to whom or to = which it=20 is inadmissible; yet if it bear upon the point in issue, it will be = re-ceived. 8=20 Bingh. Rep. 376; S. C. 21 Eng. C. L. R. 325 and see 1 Phil. Ev. 158; 2 = East, P.=20 C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C. C. 376; 2 = Yeates,=20 114; 9 Conn. Rep. 47.

23. - 5. The acts of others, as in the case of conspirators, may be = given in=20 evidence against the prisoner, when referable to the issue; but = confessions made=20 by one of several conspirators after the offence has been completed, and = when=20 the conspirators no longer act in concert) cannot be received. Vide = article=20 Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 2 Brec. R. 269; 3 Serg. = &=20 Rawle, 9; 1 Rawle, 362, 458; 2 Leigh's R. 745; 2 Day's Cas. 205; 3 Serg. = &=20 Rawle, 220; 3 Pick. 33; 4 Cranch, 75; 2 B. & A. 573-4 S. C. 5. E. C. = L. R.=20 381.

24. - 6. In criminal cases, when the offence is a cumulative one, = consisting=20 itself in the commission of a number of acts, evidence of those acts is = not only=20 admissible, but essential to support the charge. On an indictment = against a=20 defendant for a conspiracy, to cause himself, to be believed a man of = large=20 property, for the purpose of defrauding tradesmen after proof of a=20 representation to one tradesman, evidence may therefore be given of a=20 representation to another tradesman at a different time. 1 Campb. Rep. = 399; 2=20 Day's Cas. 205; 1 John. R. 99; 4 Rogers' Rec. 143; 2 Johns. Cas. = 193.

25. - 7. To prove the guilty knowledge of a prisoner, with regard to = the=20 transaction in question, evidence of other offences of the same kind, = committed=20 by the prisoner, though not charged in the indictment, is admissible = against=20 him. As in the case where a prisoner had passed a counterfeit dollar, = evidence=20 that he had. other counterfeit dollars in his possession is evidence to = prove=20 the guilty knowledge. 2 Const. R. 758; Id. 776; 1 Bailey, R. 300; 2 = Leigh's R.=20 745; 1 Wheeler's Cr. Cas. 415; 3 Rogers' Rec. 148; Russ. & Ry. 132; = 1 Campb.=20 Rep. 324; 5 Randolph's R. 701.

26. - 2. The substance of the issue joined between the parties must = be=20 proved. 1 Phil. Ev. 190. Under this rule will be considered the quantity = of=20 evidence required to support particular averments in the declaration or=20 indictment.

27. And, first, of civil cases. 1. It is a fatal variance in a = contract, if=20 it appear that a party who ought to have been joined as plaintiff has = been=20 omitted. 1 Sauud. 291 b, n.; 2 T. R. 282. But it is no variance to omit = a person=20 who might have been joined as defendant, because the non-joinder ought = to have=20 been pleaded in abatement. 1 Saund. 291 d, n. 2. The consideration of = the=20 contract must be proved but it is not necessary for the plaintiff to set = out in=20 his declaration, or prove on the trial, the several parts of a contract=20 consisting of distinct and collateral provisions; it is sufficient to = state so=20 much of the contract as contains the entire consideration of the act, = and the=20 entire act to be done in virtue of such consideration, including the = time,=20 manner, and other circumstances of its performance. 6 East, R. 568; 4 B. = &=20 A. 387; 6 E. C. L. R. 455.

28. - Secondly. In criminal cases, it may be laid down, 1. That it = is, in=20 general, sufficient to prove what constitutes an offence. It is enough = to prove=20 so much of the indictment as shows that the defendant has committed a=20 substantive crime therein specified. 2 Campb. R. 585; 1 Harr. & = John. 427.=20 If a man be indicted for robbery, he may be found guilty of larceny, and = not=20 guilty of the robbery. 2 Hale, P. C. 302. The offence of which the party = is=20 convicted, must, however, be of the same class with that of which he is = charged.=20 1 i Leach, 14; 2 Stra. 1133.

29. - 2. When the intent of the prisoner furnishes one of the = ingredients in=20 the offence, and several intents are laid in the indictment, each of = which,=20 together with the act done, constitutes an offence, it is sufficient to = prove=20 one intent only. 3 Stark. R. 35; 14 E. C. L. R. 154, 163.

30. - 3. When a person or thing, necessary to be mentioned in an = indictment,=20 is described with circumstances of greater particularity than is = requisite, yet=20 those circumstances must be proved. 3 Rogers' Rec. 77; 3 Day's Cas. 283. = For=20 example, if a party be charged with stealing a black horse, the evidence = must=20 correspond with the averment, although it was unnecessary to make it. = Roscoe's=20 Cr. Ev. 77 4 Ohio, 350.

31. - 4. The name of the prosecutor, or party injured; must be proved = as=20 laid, and the rule is the same with reference to the name of a third = person=20 introduced into the indictment, as. descriptive of some person or = thing.

32. - 5. The affirmative of the issue must be proved. The general = rule with=20 regard to the burthen of proving the issue, requires that the party who = asserts=20 the, affirmative should prove it. But this rule ceases to operate the = moment the=20 presumption of law is thrown into the other scale. When the issue is on = the=20 legitimacy of a child therefore, it is incumbent on the party asserting = the=20 illegitimacy to prove it. 2 Selw. N. P. 709. Vide Onus Probandi; Presum = 2 Gall.=20 R. 485 and 1 McCord, 573.

33. - =A73. The consideration of the instruments of evidence will be = the=20 subject of this head. These consist of records, private writings, or=20 witnesses.

34. - 1. Records are to be proved by an exemplification, duly = authenticated,=20 (Vide Authentication, in all cases where the issue is nul tiel record. = In other=20 cases, an examined copy, duly proved, will, in general, be evidence. = Foreign=20 laws as proved in the mode pointed out under the article Foreign = laws.

35. - 2. Private writings are proved by producing the attesting = witness; or=20 in case of his death, absence, or other legal inability to testify, as = if, after=20 attesting the paper, he becomes infamous, his handwriting may be proved. = When=20 there is no witness to the instrument, it may be proved by the evidence = of the=20 handwriting of the party, by a person who has seen him write, or in a = course of=20 correspondence has become acquainted with his hand. See Comparison of=20 handwriting, and 5 Binn. R. 349; 10 Serg. & Rawle, 110; 11 Serg. = &=20 Rawle, 333 3 W. C. C. R. 31; 11 Serg. & Rawle, 347 6 Serg. & = Rawle, 12,=20 812; 1 Rawle, R. 223; 3 Rawle, R. 312; 1 Ashm. R. 8; 3 Penn. R. 136.

36. Books of original entry, when duly proved, are prima facie = evidence of=20 goods sold and delivered, and of work and labor done. Vide original = entry.

37. - 3. Proof by witnesses. The testimony of witnesses is called = parol=20 evidence, or that which is given viva voce, as contra-distinguished from = that=20 which is written or documentary. It is a general rule, that oral = evidence shall=20 in no case be received as equivalent to, or as a substitute for, a = written=20 instrument, where the latter is required by law; or to give effect to a = written=20 instrument which is defective in any particular which by law is = essential to its=20 validity; or to contradict, alter or vary a written instrument, either = appointed=20 by law, or by the contract of the parties, to be the appropriate and = authentic=20 memorial of the particular facts it recites; for by doing so, oral = testimony=20 would be admitted to usurp the place of evidence decidedly superior in = degree. 1=20 Serg. & Rawle, 464; Id. 27; Addis. R. 361; 2 Dall. 172; 1 Yeates, = 140; 1=20 Binn. 616; 3 Marsh. Ken. R. 333; 4 Bibb, R. 473; 1 Bibb, R. 271; 11 = Mass. R. 30;=20 13 Mass. R. 443; 3 Conn. 9; 20 Johns. 49; 12 Johns. R. 77; 3 Camp. 57; 1 = Esp. C.=20 53; 1 M. & S. 21; Bunb. 175.

38. But parol evidence is admissible to defeat a written instrument, = on the=20 ground of fraud, mistake, &c., or to apply it to its proper subject = matter;=20 or, in some instances, as ancillary to such application, to explain the = meaning=20 of doubtful terms, or to rebut presumptions arising extrinsically. In = these=20 cases, the parol evidence does not usurp the place, or arrogate the = authority=20 of, written evidence, but either shows that the instrument ought not to = be=20 allowed to operate at all, or is essential in order to give to the = instrument=20 its legal effect. 1 Murph. R. 426 4 Desaus. R. 211; 1 Desaus. R. 345 1 = Bay, R.=20 247; 1 Bibb, R. 271 11 Mass. R. 30; see 1 Pet. C. C. R. 85 1 Binn. R. = 610; 3=20 Binn. R. 587: 3 Serg. Rawle, 340; Poth. Obl. Pl. 4, c. 2.

39. - =A74. The effect of evidence. Under this head will be = considered, 1st.=20 The effect of judgments rendered in the United States, and of records = lawfully=20 made in this country; and, 2d. The effect of foreign judgments and = laws.

40. - 1. As a general rule, a judgment rendered by a court of = competent=20 jurisdiction, directly upon the point in issue, is a bar between the = same=20 parties: 1 Phil. Ev. 242; and privies in blood, as an heir 3 Mod. 141; = or=20 privies in estate 1 Ld. Raym. 730; B. N. P. 232; stand in the same = situation. as=20 those they represent; the verdict and judgment may be used for or = against them,=20 and is conclusive. Vide Res Judicata.

41. The Constitution of the United States, art. 4, s. 1, declares, = that "Full=20 faith and credit shall be given, in each state, to the public acts, = records, and=20 judicial proceedings of every other state. And congress may, by general = laws,=20 prescribe the manner in which Such acts, records and proceedings, shall = be=20 proved, and the effect thereof." Vide article Authentication and 7 = Cranch, 481;=20 3 Wheat. R. 234 10 Wheat. R. 469; 17 Mass. R. 546; 9 Cranch, 192; 2 = Yeates, 532;=20 7 Cranch, 408; 3 Bibb's R. 369; 5 Day's R. 563; 2 Marsh. Kty. R. = 293.

42. - 2. As to the effect of foreign laws, see article Foreign Laws. = For the=20 force and effect of foreign judgments, see article Foreign Judgments. = Vide,=20 generally, the Treatises on Evidence, of Gilbert, Phillips, Starkie, = Roscoe,=20 Swift, Bentham, Macnally, Peake, Greenleaf, and Bouv. Inst. Index, h. = t.; the=20 various Digests, h. t.

EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually = attend=20 other facts sought to be, proved; that which is not direct evidence. For = example, when a witness testifies that a man was stabbed with a knife, = and that=20 a piece of the blade was found in the wound, and it is found to fit = exactly with=20 another part of the blade found in the possession of the prisoner; the = facts are=20 directly attested, but they only prove circumstances, and hence this is = called=20 circumstantial evidence.

2. Circumstantial evidence is of two kinds, namely, certain and = uncertain. It=20 is certain when the conclusion in question necessarily follows as, where = a man=20 had received a mortal wound, and it was found that the impression of a = bloody=20 left hand had been made on the left arm of the deceased, it was certain = some=20 other person than the deceased must have made such mark. 14 How. St. Tr. = 1324.=20 But it is uncertain whether the death was caused by suicide or by = murder, and=20 whether the mark of the bloody hand was made by the assassin, or by a = friendly=20 hand that came too late to the relief of the deceased. Id. Vide=20 Circumstances.

EVIDENCE, CONCLUSIVE. That which, while uncontradicted, = satisfies the=20 judge and jury it is also that which cannot be contradicted.

2. The record of a court of common law jurisdiction is conclusive as = to the=20 facts therein stated. 2 Wash. 64; 2 H. 55; 6 Conn. 508, But the judgment = and=20 record of a prize court is not conclusive evidence in the state courts, = unless=20 it had jurisdiction of the subject-matter; and whether it had or not, = the state=20 courts may decide. 1 Conn. 429. See as to the conclusiveness of the = judgments of=20 foreign courts of admiralty, 4 Cranch, 421, 434; 3 Cranch, 458; Gilmer, = 16=20 Const. R. 381 1 N. & M. 5 3 7.

EVIDENCE, DIRECT. That which applies immediately to the fadum=20 probandum, without any intervening process; as, if A testifies he saw B = inflict=20 a mortal wound on C, of which he, instantly died. 1 Greenl. Ev. = =A713.

EVIDENCE, EXTRINSIC. External evidence, or that which is not = contained=20 in the body of an agreement, contract, and the like.

2. It is a general rule that extrinsic evidence cannot be admitted to = contradict, explain, vary or change the terms of a contract or of a = will, except=20 in a latent ambiguity, or to rebut a resulting trust. 14 John. 1; 1 Day, = R. 8; 6=20 Conn. 270.

EVOCATION, French law. The act by which a judge is deprived of = the=20 cognizance of a suit over which he had jurisdiction, for the purpose of=20 conferring on other judges the power of deciding it. This is done with = us by=20 writ of certiorari.

EWAGE. A toll paid for water passage. Cowell. The same as = aquagium.=20 (q. v.)

EX CONTRACTU. This term is applied to such things as arise = from a=20 contract; as an action which arises ex contractu. Vide Action.

EX DELICTO. Those actions which arise in consequence of a = crime,=20 misdemeanor, fault, or tort; actions arising ex delicto are case, = replevin,=20 trespass, trover. See Action.

EX DOLO MALO. Out of fraud or deceit. When a cause of action = arises=20 from fraud or deceit, it cannot be supported: Ex dolo malo, non oritur=20 actio.

EX AEQUO ET BONO. In equity and good conscience. A man is = bound to pay=20 money which ex oequo et bono he holds for the use of another.

EX MERO MOTU. Mere motion of a party's own free will. To = prevent=20 injustice, the courts will, ex mero motu, make rules and orders which = the=20 parties would not strictly be entitled to ask for.

EX MORA. From the delay; from the default. All persons are = bound to=20 make amends for damages which arise from their own default.

EX NECESSITATE LEGIS. From the necessity of law.

EX NECESSITATE REI. From the necessity of the thing. Many acts = may be=20 done ex necessitate ret, which would not be justifiable without it; and=20 sometimes property is protected, ex necessitate rei, which, under, other = circumstances, would not be so. For example, property put upon the land = of=20 another from necessity, cannot be distrained for rent. See Distress;=20 Necessity.

EX OFFICIO. By virtue of his office. 2. Many powers are = granted and=20 exercised by public officers which are not expressly delegated. A judge, = for=20 example, may, ex officio, be a conservator of the peace, and a justice = of the=20 peace.

EX PARTE. Of the one part. Many things may be done ex parte, = when the=20 opposite party has had notice; an affidavit or deposition is said to be = taken ex=20 parte when only one of the parties attends to taking the same. Ex parte = paterna,=20 on the side of the father, or property descended to a person from his = father; ex=20 parte materna, on the part of the mother.

EX POST FACTO, contracts, crim. law. This is a technical = expression,=20 which signifies, that something has been done after another thing, in = relation=20 to the latter.

2. An estate granted, may be made good or avoided by matter ex post = facto,=20 when an election is given to the party to accept or not to accept. 1 Co = .=20 146.

3. The Constitution of the United States, art. 1, sec. 10, forbids = the states=20 to pass any ex post facto law; which has been defined to be one which = renders=20 the act punishable in a manner in which it was not punishable when it = was=20 committed. 6 Cranch, 138. This definition extends to laws passed after = the act,=20 and affecting a person by way of punishment of that act, either in his = person or=20 estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1 Kent, = Com.=20 408; Dane's Ab. Index, h. t.

4. This prohibition in the constitution against passing ex post facto = law's,=20 applies exclusively to criminal or penal cases, and not to civil cases. = Serg.=20 Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, R. 350; 5 = Monr.=20 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1 = J. J.=20 Marsh, 563; 2 Pet. R. 681; and the article Retrospective.

EX VI TERMINI. By force of the term; as a bond ex vi termini = imports a=20 sealed instrument.

EX VISITATIONE DEI. By or from the visitation of God. This = phrase is=20 frequently employed in inquisitions by the coroner, where it signifies = that the=20 death of the deceased is a natural one.

EX TEMPORE. From the time without premeditation.

EXACTION, torts. A willful wrong done by an officer, or by one = who,=20 under color of his office, takes more fee or pay for his services than = what the=20 law allows. Between extortion and exaction there is this difference; = that in the=20 former case the officer extorts more than his due, when something is due = to him;=20 in the latter, he exacts what is not his due, when there is nothing due = to him.=20 Wishard; Co. Litt. 368.

EXAMINATION, crim. law. By the common law no one is bound to = accuse=20 himself. Nemo tenetur prodere seipsum. In England, by the statutes of = Philip and=20 Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10,) the = principles=20 of which have been adopted in several of the United States, the justices = before=20 whom any person shall be brought, charged with any of the crimes therein = mentioned, shall take the examination of the prisoner, as well is that = of the=20 witnesses, in writing, which the magistrates shall subscribe, and = deliver to the=20 officer of the court where the trial is to be had. The signature of the=20 prisoner, when not specially required by statute, is not indispensable, = though=20 it is proper to obtain it, when it can be obtained. 1 Chit. Cr. Law, 87; = 2=20 Leach, Cr. Cas. 625.

2. It will be proper to consider, 1. The requisites of such = examination. 2.=20 How it is to be proved. 3. Its effects.

3. - 1. It is required that it should, 1st. Be voluntarily made, = without any=20 compulsion of any kind; and, 2d. It must be reduced to writing. 1st. The = law is=20 particularly solicitous to let the prisoner be free in making = declarations in=20 his examination; and if the prisoner has not been left entirely free, or = did not=20 consider himself to be so, or if he did not feel at liberty wholly to = decline=20 any explanation or declaration whatever, the examination is not = considered=20 voluntary, and the writing cannot be read in evidence against him, nor = can parol=20 evidence be received of what the prisoner said on the occasion. 5 C. = & P.=20 812; 7 C. & P. 177; 1 Stark. R. 242; 6 Penn. Law Journ. 120. The = prisoner,=20 of course, cannot be sworn, and make his statement under oath. Bull. N. = P. 242;=20 4 Hawk. P. C. book 2, c. 46, =A737; 4 C. & P. 564. 2a. The statute = requires=20 that the examination shall be reduced to writing, or so much as may be = material,=20 and the law presumes the magistrate did his duty and took down all that = was=20 material. Joy on Conf. 89-92; 1 Greenl. Ev. =A7227. The prisoner need = not sign the=20 examination so reduced to writing, to give it validity; but, if being = asked to=20 sign it, he absolutely refuse, it will be considered incomplete. 2 = Stark. R.=20 483; 2 Leach, Cr. Cas. 627, n.

4. - 2. The certificate of the magistrate is conclusive evidence of = the=20 manner in which the examination was conducted. 7 C. & P. 177; 9 C. = & P.=20 124; 1 Stark. R. 242. Before it can be given in evidence, its identity = must be=20 proved, as well as the identity of the prisoner. When the prisoner has = signed=20 the examination, proof of his handwriting is sufficient evidence that he = has=20 read it; but if he has merely made his mark, or not signed it at all, = the=20 magistrate or clerk must identify the prisoner, and prove that the = writing was=20 duly read to him, and that he assented to it. l Greenl. Ev. =A7520; 1 M. = &=20 Rob. 395.

5. - 3. The effect of such an examination, when properly taken and = proved, is=20 sufficient to found a conviction. 1 Greenl. Ev. =A7216.

EXAMINATION, practice. The interrogation of a witness, in = order to=20 ascertain his knowledge as to the facts in dispute between parties. When = the=20 examination is made by the party who called the witness, it is called an = examination in chief. When it is made by the other party, it is known by = the=20 name of cross-examination. (q. v.)

2. The examination is to be made in open court, when practicable; but = when,:=20 on account of age, sickness, or other cause, the witness cannot be so = examined,=20 then it may be made before authorized commissioners. In the examination = in chief=20 the counsel cannot ask leading questions, except in particular cases. = Vide=20 Cross-examination; Leading question.

3. The laws of the several states require the private examination of = a feme=20 covert before a competent officer, in order to pass her title to her own = real=20 estate or the interest she has in that of her hushand: as to the mode in = which=20 this is to be done, see Acknowledment. See, also, 3 Call, R. 394; 5 = Mason's R.=20 59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3 Rand. R. = 468 1=20 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3 Yerg. R. 548 1 Yerg. R. = 413 3 J.=20 J. Marsh. R. 241 2 A. K. Marsh. R. 67; 6 Wend. R. 9; 1 Dall. 11, 17; 3 = Yeates,=20 R. 471; 8 S. & R. 299; 4 S. & R. 273.

EXAMINED COPY. This phrase is applied to designate a paper = which is a=20 copy of a record, public book, or register, and which has been compared = with the=20 original. 1 Campb. 469.

2. Such examined copy is admitted in evidence, because of the public=20 inconvenience which would arise, if such record, public book, or = register, were=20 removed from place to place, and because any fraud or mistake made in = the=20 examined copy would be so easily, detected. 1 Greenl. Ev. =A791; 1 = Stark. Ev.=20 189-191. But an answer in chancery, on which the defendant was indicted = for=20 perjury, or where the original must be produced in order to identify the = party=20 by proof of handwriting, an examined copy would not be evidence. 1 M. = & Rob.=20 189. Vide Copy.

EXAMINERS, practice. Persons appointed to question students of = law, in=20 order to ascertain their qualifications before they are admitted to = practice.=20 Officers in the courts of chancery whose duty it is to examine = witnesses, are=20 also called examiners. Com. Dig. Chancery, P 1. For rules as to the mode = of=20 taking examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2.

EXAMPLE. An example is a case put to illustrate a. principle. = Examples=20 illustrate, but do not restrain or change the laws: illustrant non = restringunt=20 legem. Co. Litt. 24, a.

EXCAMBIATOR. The name of an exchanger of lands; a broker. This = term is=20 now obsolete.

EXCAMBIUM. Exchange. (q. v.)

EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which = the=20 defendant alleges that the matter in dispute between the parties has = been before=20 adjudged. See Res judicata.

EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev. = 208,=20 n.

EXCEPTION, legislation, construction. Exceptions are rules = which limit=20 the extent of other more general rules, and render that just and proper, = which=20 would be, on account of its generality, unjust and improper. For = example, it is=20 a general rule that parties competent may make contracts; the rule that = they=20 shall not make any contrary to equity, or contra bonos mores, is the=20 exception.

EXCEPTION, contracts. An exception is a clause in a deed,. by = which=20 the lessor excepts something out of that which he granted before by the=20 deed.

2. To make a valid exception, these things must concur: 1. The = exception must=20 be by apt words; as, saving and excepting, &c. 2. It must be of part = of the=20 thing previously described, and not of some other thing. 3. It must be = part of=20 the thing only, and not of all, the greater part, or the effect of the = thing=20 granted; an exception, therefore, in a lease, which extends to the whole = thing=20 demised, is void. 4. It must be of such thing as is severable from the = demised=20 premises, and hot of an inseparable incident. 5. It must be of a thing = as he=20 that accepts may have, and which properly belongs to him. 6. It must be = of a=20 particular thing out of a general, and not of a particular thing out of = a=20 particular thing. 7. It must be particularly described and set forth; a = lease of=20 a tract of land, except one acre, would be void, because that acre was = not=20 particularly described. Woodf. Landl. and Ten. 10; Co. Litt. 47 a; = Touchs. 77; 1=20 Shepl. R. 337; Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. = R. 499;=20 6 N. H. Rep. 421. Exceptions against common right and general rules are=20 construed as strictly as possible. 1 Barton's Elem. Conv. 68.

3. An exception differs from a reservation; the former is always a = part of=20 the thing granted; the latter is of a thing not in esse but newly = created or=20 reserved. An exception differs also from an explanation, which by the = use of a=20 videlicet, proviso, &c., is allowed only to explain doubtful clauses = precedent, or to separate and distribute generals, into particulars. 3 = Pick. R.=20 272.

EXCEPTION, practice, pleading. This term is used in the civil, = nearly=20 in the same sense that the word plea has in the common law. Merl. = Repert. h. t.;=20 Ayl. Parerg. 251.

2. In chancery practice, it is the allegation of a party in writing, = that=20 some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr. = 228.

3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5; = Britton, cap.=20 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do not tend = to defeat=20 the action, but only to retard its progress. Poth. Proc. civ. partie 1, = c. 2, s.=20 2, art. 1; Code of Pract. of Lo. art. 332. Declinatory exceptions have = this=20 effect, as well as the exception of discussion opposed by a third = possessor, or=20 by a surety in an hypothecary action, or the exception taken in order to = call in=20 the warrantor. Id.; 7 N. S. 282; 1 L. R. 38, 420. These exceptions must, = in=20 general, be pleaded in limine litis before issue joined. Civ. Code of = Lo. 2260;=20 1 N. S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 546. A declinatory = exception is=20 a species of dilatory exception, which merely declines the jurisdiction = of the=20 judge before whom the action is brought. Code of Pr. of L. 334.

4. Peremptory exceptions are those which tend to the dismissal of the = action.=20 Some relate to forms, others arise from the law. Those which relate to = formes,=20 tend to have the cause dismissed, owing to some nullities in the = proceedings.=20 These must be pleaded in limine litis. Peremptory exceptions founded on = law, are=20 those which, without going into the merits of the cause, show that the = plaintiff=20 cannot maintain his action, either because it is prescribed, or because = the=20 cause of action has been destroyed or extinguished. These may be pleaded = at any=20 time previous to definitive judgment. Id. art. 343, 346; Poth. Proc. = Civ. partie=20 1, c. 2, s. 1, 2, 3. These, in the French law, are called Fins de. non = recevoir.=20 (q. v.)

5. By exception is also meant the objection which is made to the = decision of=20 a judge in the course of a trial. See Bill of Exception.

EXCHANGE, com. law. This word has several significations.

2. - 1. Exchange is a negotiation by which one person transfers to = another=20 funds which he has in a certain place, either at a price agreed upon, or = which=20 is fixed by commercial usage. This transfer is made by means of an = instrument=20 which represents such funds, and is well known by the name of a bill of=20 exchange.

3. - 2. The price which is paid in order to obtain such transfer, is = also=20 known among merchants by the name of exchange; as, exchange on England = is five=20 per cent. See 4 Wash. C. C. R. 307. Exchange on foreign money is to be=20 calculated according to the usual rate at the time of trial. 5 S. & = R.=20 48.

4. - 3. Barter, (q. v.) or the transfer of goods and chattels for = other goods=20 and chattels, is also known by the name of exchange, though the term = barter is=20 more commonly used.

5. - 4. The French writers on commercial law, denominate the profit = which=20 arises from a maritime loan, exchange, when such profit is a per centage = on the=20 money lent, considering it in the light of money lent in one place to be = returned in another, with a difference in amount in the sum borrowed and = that=20 paid, arising from the difference of time and place. Hall on Mar. Loans, = 56, n.;=20 and the articles Interest; Maritime; Premium.

6. - 5. By exchange is also meant, the place where merchants, = captains of=20 vessels, exchange agents and brokers, assemble to transact their = business. Code=20 de Comm. art. 71.

7. - 6. According to the Civil Code of Louisiana, art. 1758, exchange = imports=20 a reciprocal contract, by which. the parties enter into mutual = agreement. 14=20 Pet. 133. Vide the articles. Bills of Exchange; Damages on Bills of = Exchange and=20 Reexchange. Also Civ. Code of Lo. art. 2630.

EXCHANGE conveyancing. An exchange is a mutual grant of equal=20 interests in land, the one in consideration of the other. 2 Bl. Com. = 323; Litt.=20 s. 62; Touchs. 289; Watk. Prin. Con. It is said that exchange, in the = United=20 States, does not differ from bargain and sale. 2 Bouv. Inst. n. = 2055.

2. There are five circumstances necessary to an exchange. 1. That the = estates=20 given be equal. 2. That the word escambium or exchange be used, which = cannot be=20 supplied by any other word, or described by circumlocution. 3. That = there be an=20 execution by entry or claim in the life of the parties. 4. That if it be = of=20 things which lie in grant, it be by deed. 5. That if the lands lie in = several=20 counties, it be by deed indented; or if the thing lie in grant, though = they be=20 in one county. In practice this mode of conveyancing is nearly obsolete. = Vide=20 Cruise, Dig. tit. 32 Perk. ch. 4 10 Vin. Ab. 125; Com. Dig. h. t.; Nels. = Ab. h.=20 t.; Co. Litt. 51; Hardin's R. 593 1 N. H. Rep. 65 3 Har. & John. = 361; 1=20 Rolle's Ab. 813 .3 Wils. R. 489. Vide Watk. Prin. Con. b. 2, c. 5; = Horsman, 362=20 and 3 Wood, 243, for forms.

EXCHEQUER R, Eng. law. An ancient court of record set up by = William=20 the Conqueror. It is called exchequer from the chequered cloth, = resembling a=20 chesshoard, which covers the table there. 3 Bl. Com. 45. It consists of = two=20 divisions; the receipt of the exchequer, which manages the royal = revenue; and=20 the court, or judicial part of it, which is again divided into a court = of=20 equity, and a court of common law. Id. 44.

2. In this court all personal actions may be brought, and suits in = equity=20 commenced, the plaintiff in both (fictitiously for the most part) = alleging=20 himself to be the king's debtor, in order to give the court jurisdiction = of the=20 cause. Wooddes. Lect. 69. But by stat. 2 Will. IV. c. 39, s. 1, a change = has=20 been made in this respect.

EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed. = III. c.=20 12, to determine causes upon writs of error from the common law side of = the=20 court of exchequer. 3 Bl. Com. 55. Another court of exchequer chamber = was=20 created by the stat. 27 El. c. 8, consisting of the justices of the = common=20 bench, and the barons of the exchequer. It has authority to examine by = writ of=20 err6r the proceedings of the king's bench, not so generally as that = erected by=20 the statute of Edw. III., but in certain enumerated actions.

EXCISES. This word is used to signify an inland imposition, = paid=20 sometimes upon the consumption of the commodity, and frequently upon the = retail=20 sale. 1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. = =A7950.

EXCLUSIVE, rights. Debarring one from participating in a = thing. An=20 exclusive right or privilege, is one granted to a person to do a thing, = and=20 forbidding all others to do the same. A patent right or copyright, are = of this=20 kind.

EXCLUSIVE, computation of time. Shut out; not included. As = when an act=20 is to be done within a certain time, as ten days from a particular time, = one day=20 is to be included and the other excluded. Vide Hob. 139; Cowp. 714; = Lofft, 276;=20 Dougl. 463; 2 Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. & = Rawle, 43; 3=20 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig. Estates, G = 8; 2=20 Chit. Pr. 69, 147.

EXCOMMUNICATION, eccl. law. An ecclesiastical sentence, = pronounced by=20 a spiritual judge against a Christian man, by which he is excluded from = the body=20 of the church, and disabled to bring any action, or sue any person in = the common=20 law courts. Bac. Ab. h. t.; Co. Litt. 133-4. In early times it was the = most=20 frequent and most severe method of executing ecclesiastical censure, = although=20 proper to be used, said Justinian, (Nov. 123,) only upon grave = occasions. The=20 effect of it was to remove the excommunicated "person not only from the = sacred=20 rites but from the society of men. In a certain sense it interdicted the = use of=20 fire and water, like the punishment spoken of by Caesar, (lib, 6 de = Bell.=20 Gall.). as inflicted by the Druids. Innocent IV. called it the nerve of=20 ecclesiastical discipline. On repentance, the excommunicated person was = absolved=20 and received again to communion. These are said to be the powers of = binding and=20 loosing the keys of the kingdom of heaven. This kind of punishment seems = to have=20 been adopted from the Roman usage of interdicting the use of fire and = water. Fr.=20 Duaren, De Sacris Eccles. Ministeriis, lib. 1, cap. 3. See Ridley's View = of the=20 Civil. and Ecclesiastical Law, 245, 246, 249.

EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ = issuing out=20 of chancery, founded on a hishop's certificate that the defendant had = been=20 excommunicated, which writ is returnable in the king's bench. F. N. B. = 62, 64,=20 65 Bac. Ab. Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II. = c. 12; 2=20 & 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1 H. V. c. = 5; also=20 Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro. Jac. 567; 1 Vent. 146; 1 Salk. = 293,=20 294, 295.

EXCUSABLE HOMICIDE, crim. law. The killing of a human being, = when the=20 party killing is not altogether free from blame, but the necessity which = renders=20 it excusable, may be said to be partly induce by his own act. 1 East, P. = C.=20 220.

EXCUSE. A reason alleged for the doing or not doing a thing. = This word=20 presents two ideas differing essentially from each other. In one case an = excuse=20 may be made in, order to own that the party accused is not guilty; in = another,=20 by showing that though guilty, he is less so, than he appears to be. = Take, for=20 example, the case of a sheriff who has an execution against an = individual, and=20 who in performance of his duty, arrests him; in an action by the = defendant=20 against the sheriff, the latter may prove the facts, and this shall be a = sufficient excuse for him: this is an excuse of the first kind, or a = complete=20 justification; the sheriff was guilty of no offence. But suppose, = secondly, that=20 the sheriff has an execution against Paul, and by mistake, and without = any=20 malicious design, be arrests Peter instead of Paul; the fact of his = having the=20 execution against Paul and the mistake being made, will not justify the = sheriff,=20 but it will extenuate and excuse his conduct, and this will be an excuse = of the=20 second kind.

3. Persons are sometimes excused for the commission of acts, which = ordinarily=20 are crimes, either because they had no intention of doing wrong, or = because they=20 had no power of judging, and therefore had no criminal will (q. v.); or = having=20 power, of judging they had no choice, and were compelled by necessity. = Among the=20 first class may be placed infants under the age of discretion, lunatics, = and=20 married women committing an offence in the presence of their hushands, = not malum=20 in se, as treason or murder; 1 Hale's P. C. 44, 45 or in offences = relating to=20 the domestic concern or management of the house, as the keeping of a = bawdy=20 house. Hawk. b. 1, c. 1, s. 12. Among acts of the second kind may be = classed,=20 the beating or killing another in self-defence; the destruction of = property in=20 order to prevent a more serious calamity, as the tearing down of a house = on=20 fire, to prevent its spreading to the neighboring property, and the = like. See=20 Dalloz, Dict. h. t.

EXEAT, eccl. law. This is a Latin term, which is used to = express the=20 written permission which a hishop gives to an ecclesiastic to exercise = the=20 functions of his ministry in another diocese.

TO EXECUTE. To make, to perform, to do, to follow out. This = term is=20 frequently used in the law; as, to execute a deed is to make a deed.

2. It also signifies to perform, as to execute a contract; hence some = contracts are called executed contracts, and others are called executory = contracts.

3. To execute also means to put to death by virtue of a lawful = sentence; as,=20 the sheriff executed the convict.

EXECUTED. Something done; something completed. This word is = frequently=20 used in connexion with others to designate a quality of such other = words; as an=20 executed contract; an executed estate; an executed trust, &c. It is = opposed=20 to executory.

2. An executed contract is one which has been fulfilled; as, where = the buyer=20 has paid thrice of the: thing-purchased by him. See Agreement.

3. An executed estate is when there is vested in the grantee a = present and=20 immediate right of present or future enjoyment; and in another sense, = the term=20 applies to the time of enjoyment; and in that sense, an estate is said = to be=20 executed, when it confers a present right of present enjoyment. When the = right=20 of enjoyment in possession is to arise at a future period, only, the = estate is=20 executed that is, it is merely vested in point of interest: when the = right of=20 immediate enjoyment is annexed to the estate, then only is the estate = vested in=20 possession. 1 Prest. on Est. 62.

4. Trusts executed are, when by deed or will, lands are conveyed, or = devised,=20 in terms or in effect , to and for the use of one person or several = persons, in=20 trust for others, without any direction that the trustees shall make any = farther=20 conveyance; so that it does not appear that the author of the trusts had = a view=20 to a future instrument for accomplishing his intention. Prest. on = Est.188.

EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. = 45, in the=20 following connexion: Et...precipiatur vice comiti quod scire faciat = parti...=20 quod sit ad certum diem ostensura si quid sciat dicere quare hujustnodi=20 irrotulata vel in fine contenta executionem habere non debeant. This = statute is=20 the origin of the scire facias post annum et diem quare executionem non, = etc. To=20 a plea in bar to such a writ, the defendant should conclude that the = plaintiff=20 ought not to have or maintain his aforesaid execution thereof against = him, which=20 is called the executio non, as in other cases by actio non. (q. v.) 10 = Mod. 112;=20 Yelv. 218.

EXECUTION, contracts. The accomplishment of a thing; as the = execution=20 of a bond and warrant of attorney, which is the signing, sealing, and = delivery=20 of the same.

EXECUTION, crim. law. The putting a convict to death, = agreeably to=20 law, in pursuance of his sentence.

EXECUTION, practice. The act of carrying into effect the final = judgment of a court, or other jurisdiction. The writ which authorizes = the=20 officer so to carry into effect such judgment is also called an = execution.

2. A distinction has been made between an execution which is used to = make the=20 money due on a judgment out of the property of the defendant, and which = is=20 called a final execution; and one which tends to an end but is not = absolutely=20 final, as a capias ad satisfaciendum, by virtue of which the body of the = defendant is taken, to the intent that the plaintiff shall be satisfied = his=20 debt, &c., the imprisonment not being absolute, but until he shall = satisfy=20 the same; this is called an execution quousque. 6 Co. 87.

3. Executions are either to recover specific things, or money. 1. Of = the=20 first class are the writs of habere facias seisinam.; (q. v.) habere = facias=20 possessionem; (q. v.) retorno habendo; (q. v.) distringas. (q. v.) 2. = Executions=20 for the recovery of money are those which issue against the body of the=20 defendant, as the capias ad satisfaciendum, (q. v.); an attachment, (q. = v.);=20 those which issue against his goods and chattels; namely, the fieri = facias, (q.=20 v.); the, venditioni exponas, (q. v.); those which issue against his = lands, the=20 levari facias; (q. v.) the liberari facias; the elegit. (q. v.) Vide 10 = Vin. Ab.=20 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h. t.; Com. Dig. h. t.; = the=20 various Digests, h. t.; Tidd's Pr. Index, h. t.; 3 Bouv. Inst. n. 3365, = et seq.=20 Courts will at any time grant leave to amend an execution so as to make = it=20 conformable to the judgment on which it was issued. 1 Serg. & R. 98. = A writ=20 of error lies on an award of execution. 5 Rep. 32, a; 1 Rawle, Rep. 47, = 48; Writ=20 of Bxecution;

EXECUTION PAREE. By the term execution paree, which is used in = Louisiana, is meant a right founded on an authentic act; that is, and = passed=20 before a notary, by which the creditor may immediately, without citation = or=20 summons, seize and cause to be sold, the property of his debtor, out of = the=20 proceeds of which to receive his payment. It imports a confession of = judgment,=20 and is not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6 = Toull.=20 n. 208; 7 Toull. 99.

EXECUTIONER. The name given to him who puts criminals to = death,=20 according to their sentence; a hangman.

2. In the United States, executions are so rare that there are no=20 executioners by profession. It is the duty of the sheriff or marshal to = perform=20 this office, or to procure a deputy to do it for him.

EXECUTIVE, government. That power in the government which = causes the=20 laws to be executed and obeyed: it is usually. confided to the hands of = the=20 chief magistrate; the president of the United States is invested with = this=20 authority under the national government; and the governor of each state = has the=20 executive power in his hands.

2. The officer in whom is vested the executive power is also called = the=20 executive.

3. The Constitution of the United States directs that "the executive = power=20 shall be vested in a president of the United States of America." Art. 2, = s. 1.=20 Vide Story, Const. B. 3, c. 36.

EXECUTOR, trusts. The word executor, taken in its largest = sense, has=20 several accep tations. 1. Executor dativus, who is one called an = administrator=20 to an intestate. 2. Executor testamentarius, or one appointed to the = office by=20 the last will of a testator, and this is what is usually meant by the = term.

2. In the civil law, the person who is appointed to perform the = duties of an=20 executor as to goods, is called haeres testamentarius; the term = executor, it is=20 said, is a barbarism unknown to that law. 3 Atk. 304.

3. An executor, as the term is at present accepted, is the person to = whom the=20 execution of a last will and testament of personal estate is , by the = testator's=20 appointment, confided, and who has accepted of the same. 2 Bl. Com. 503; = 2 P.=20 Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl. 2.

4. Generally speaking, all persons who are capable of making wills = may be=20 executors, and some others beside, as infants and married women. 2 Bl. = Corn.=20 503.

5. An executor is absolute or qualified; his appointment is absolute = when he=20 is constituted certainly, immediately, and without restriction in regard = to the=20 testator's effects, or limitation in point of time. It may be qualified = by=20 limitation as to the time or place wherein, or the subject matters = whereon, the=20 office is to be exercised; or the creation of the office may be = conditional. It=20 may be qualified. 1st. By limitations in point of time, for the time may = be=20 limited when the person appointed shall begin, or when he shall cease to = be=20 executor; as if a man be appointed executor upon the marriage of = testator's=20 daughter. Swinb. p. 4, s. 17, pl. 4. 2. The appointment may be limited = to a=20 place; as, if one be appointed executor of all the testator's goods in = the state=20 of Pennsylvania. 3. The power of the executor may be limited as to the = subject=20 matter upon which if is to be exercised; as, when a testator appoints. A = the=20 executor of his goods and chattels in possession; B, of his choses in = action.=20 One may be appointed executor of one thing, only, as of a particular = claim or=20 debt due by bond, and the like. Off. Ex. 29; 3 Phillim. 424. But = although a=20 testator may thus appoint separate executors of distinct parts of his = property,=20 and may divide their authority, yet quoad the creditors of the testator = they are=20 all executors, and act as one executor, and may be sued as one executor. = Cro.=20 Car. 293. 4. The appointment may be conditional, and the condition may = be either=20 precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off. Ex. = 23. 6.=20 An executor derives his interest in the estate of the deceased entirely = from the=20 will, and it vests in him from the moment of the testator's death. 1 = Will. Ex.=20 159; Com. Dig. Administration, B 10; 5 B. & A. 745; 2 W. Bl. Rep. = 692. He=20 acquires an absolute legal title to the personalty by appointment, but = nothing=20 in the lands of the testator, except by devise. He can touch nothing = which was=20 not personal at the testator's decease, except by express direction. 9 = Serg.=20 & Rawle, 431; Gord. Law Dec. 93. Still his interest in the goods of = the=20 deceased is not that absolute, proper and ordinary interest, which every = one has=20 in his own proper goods. He is a mere trustee to apply the goods for = such=20 purposes as are sanctioned by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; = Off. Ex.=20 192. He represents the testator, and therefore may sue and recover all = the=20 claims he had at the time of his death and may be sued for all debts due = by him.=20 1 Will. Ex. 508, et seq. By the common law, however, such debts as were = not due=20 by some writing could not be recovered against the executors of a = deceased=20 debtor. The remedy was only in conscience or by a quo minus in the = exchequer.=20 Afterwards an action on the case in banco regis was given. Crom t. = Jurisdic. 66,=20 b; Plowd. Com. 183: 11 H. VII. 26.

7. The following are the principal duties of an executor: 1. Within a = convenient time after the testator's death, to collect the goods of the=20 deceased, provided he can do so peaceably; when he is resisted, he must = apply to=20 the law for redress.

8. - 2. To bury the deceased in a manner suitable to the estate he = leaves=20 behind him; and when there is just reason to believe he died insolvent, = he is=20 not warranted in expending more in funeral expenses (q. v.) than is = absolutely=20 necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204 14 = Serg.=20 & Rawle, 64.

9. - 3. The executor should prove the will in the proper office.

10. - 4. He should make an inventory (q. v.) of the goods of the = intestate,=20 which should be filed in the office.

11. - 5. He should ascertain the debts and credits of the estate, and = endeavor to collect all claims with as little delay as possible, = consistently=20 with the interest of the estate.

12. - 6. He should advertise for debts and credits: see forms of=20 advertisements, 1 Chit. Pr. 521.

13. - 7. He should reduce the whole of the goods, not specifically = bequeathed=20 into money, with all due expedition.

14.-8. Keep the money of the estate safely, but not mixed with his = own, or he=20 may be charged interest on it.

15.-9. Be at all times ready to account, and actually file an account = within=20 a year.

16. - 10. Pay the debts and legacies in the order required by law. =

17. Co-executors, however numerous, are considered, in law, as an = individual=20 person, and; consequently, the acts of any one of them, in respect of = the=20 administration of the assets, are deemed, generally, the acts of all. = Bac. Ab.=20 Executor, D; Touch. 484; for they have all a joint and entire authority = over the=20 whole property Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig. = Administration, B 12.=20 On the death of one or more of several joint executors, their rights and = powers=20 survive to the survivors.

18. When there are several executors and all die, the power is in = common=20 transferred to the executor of the last surviving executor, so that he = is=20 executor of the first testator; and the law is the same when a sole = executor=20 dies leaving an executor, the rights are vested in the latter. This rule = has=20 been changed, in Pennsylvania, and, perhaps, some other states, by = legislative=20 provision; there, in such case, administration cum testamento annexo = must be=20 obtained, the right does not survive to the executor of the executor. = Act of=20 Pennsylvania, of March 15 1832. s. 19. In general, executors are not = responsible=20 for each other, and they have a right to settle separate accounts. See = Joint,=20 Executors.

19. Executors may be classed into general and special; instituted and = substituted; rightful and executor de son tort; and executor to the = tenor.

20. A general executor is one who is appointed to administer the = whole=20 estate, without any limit of time or place, or of the = subject-matter.

21. A special executor is one. who is appointed or constituted to = administer=20 either a part of the estate, or the whole for a limited time, or only in = a=20 particular place.

22. An instituted executor is one who is appointed by the testator = without=20 any condition, and who has the first right of acting when there are = substituted=20 executors. An example will show the difference between an instituted and = substituted executor: suppose a man makes his son his executor, but if = he will=20 not act, he appoints his brother, and if neither will act, his cousin; = here the=20 son is the instituted executor, in the first degree, the brother is said = to be=20 substituted in the second degree, and the cousin in the third degree, = and so on.=20 See Heir, instituted, and Swinb. pt. 4, s. 19, pl. 1.

23. A substituted executor is a person appointed executor, if another = person=20 who has been appointed refuses to act.

24. A rightful executor is one lawfully appointed by the testator, by = his=20 will. Deriving his authority from the will, he may do most acts, before = he=20 obtains letters testamentary, but he must be possessed of them before. = he can=20 declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex. = 173.

25. An executor de son tort, or of his own wrong, is one, who, = without lawful=20 authority, undertakes to act. as executor of a person deceased. To make = fin=20 executor de son tort, the act of the party must be, 1. Unlawful. 2. By=20 assertingownership, as taking goods or cancelling a bond, and not = committing a=20 mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done before = probate of=20 will, or granting letters of administration. 1 Salk. 313. One may be = executor de=20 son tort when acting under a forged will, which has been set aside. 3 T. = R. 125=20 . An executor de son tort. The law on this head seems to have been = borrowed from=20 the civil law doctrine of pro hoerede gestio. See Heinnec. Antiq. = Syntagma, lib.=20 2, tit., 17, =A716, p. 468. He is, in general, held responsible for all = his acts,=20 when he does anything which might prejudice the estate, and receives no, = advantage whatever in consequence of his assuming the office. He cannot = sue a=20 debtor of the estate, but may be sued generally as executor. See a good = reading=20 on the liabilities of executors de son tort, in: Godolph. Orph. Legacy, = 91, 93,=20 and 10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; = Yelv.=20 137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As = to what=20 acts will make a person liable as executor de son tort, see Godolph. O = ubi sup.;=20 Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B 3; = 11 Vin.=20 Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig. Administration C 3 = Ham. on=20 Part. 146 to 156; 8 John. R. 426; 7 John. R. 161; 4 Mass. 654; 3 Penna. = R. 129;=20 15 Serg. & Rawle, 39.

26. - 2. The ussurpation of an office or character cannot confer the = rights=20 and privileges of it, although it may charge the usurper with the duties = and=20 obligations annexed to it. On this principle an executor de son tort is = an=20 executor only for the purpose of being sued, not for the purpose, of = suing. In=20 point of form, he is sued as if he were a rightful executor. He is not=20 denominated in the declaration executor (de son tort) of his own wrong. = It would=20 be improper to allege that the deceased person with whose estate he has=20 intermeddled died intestate. Nor can he be made a co-defendant with a = rightful=20 executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190, note; Com. Dig. = Abatement, F 10. If he take out letters of administration, he is still = liable to=20 be sued as executor, and in general, it is better to sue him as executor = than as=20 administrator. Godolph. 0. Leg. 93, 94, 95, =A7=A72, 3.

27. An executor to the tenor. This phrase is ased in the = ecclesiastical law,=20 to denote a person who is not directly appointed by the will an = executor, but=20 who is charged with the duties which appertain to one; as, "I appoint A = B to=20 discharge all lawful demands against my will." 3 Phill. 116; 1 Eccl. = Rep. 374;=20 Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide. generally, Bouv. Inst. = Index,=20 h. t.; 11 Vin. Ab. h. t.; Bac. Ab. h. t.; Rolle, Ab. h. t.; Nelson's Ab. = h. t.;=20 Dane's Ab. Index, h. t.; Com. Dig. Administration; 1 Supp. to Ves. jr. = 8, 90,=20 356, 438; 2 Id. 69; 1 Vern. 302-3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. = L. Rep.=20 185; 10 East, 295; 2 Phil. Ev. 289; 1 Rop. Leg.' 114; American Digests, = h. t.;=20 Swinburne, Williams, Lovelass, and Roberts' several treatises on the law = of=20 Executors; Off. Ex. per totum; Chit. Pr. Index; h. t. For the various = pleas that=20 may be pleaded by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; = Cowp.=20 292. For the origin and progress of the law in relation to executors, = the reader=20 is referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par=20 Delauriere, verbo Executeurs Testamentaires, and the same author on art. = 297, of=20 the Custom of Paris; Poth. Des Donations Testamen taires.

EXECUTORY. Whatever may be executed; as an executory sentence = or=20 judgment, an executory contract.

EXECUTORY DEVISE, estates. An executory devise is a limitation = by will=20 of a future contingent interest in lands, contrary to the rules of = limitation of=20 contingent estate is in conveyances at law. When the limitation by will = does not=20 depart from those rules prescribed for the government of contingent = remainders,=20 it is, in that case, a contingent remainder, and not an executory = devise. 4=20 Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.

2. An executory devise differs from a contingent remainder, in three = material=20 points. 1. It needs no particular estate to precede and support it; for = example,=20 a devise to A B, upon his marriage. 2. A fee may be limited after a fee, = as in=20 the case of a devise of land to C D, in fee, and if he dies without = issue, or=20 before the age of twenty-one, then to E F, in fee. 3. A term for years = may be=20 limited over after a life estate created in the same. 2 Bl. Com. 172, = 173.

3. To prevent perpetuities, a rule has been adopted that the = contingency must=20 happen during the time of a life or lives in being and twenty-one years = after,=20 and the months allowed for gestation in order to reach beyond the = minority of a=20 person not in esse at the time of making the executory devise. 3 P. Wms. = 258; 7=20 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456; 1 Gilm. 194; 2 Hayw. 375.

4. There are several kinds of executory devises; two relative to real = estate,=20 and one in relation to personal estate.

5. - 1. When the devisor parts with his whole estate, but upon some=20 contingency, qualifies the disposition of it, and limits an estate on = that=20 contingency. For example, when the testator devises to Peter for life, = remainder=20 to Paul, in fee, provided that if James should within three months after = the=20 death of Peter pay one hundred dollars to Paul, then to James in fee; = this is an=20 executory devise to James, and if he dies during the life of Peter, his = heir may=20 perform the condition. 10 Mod. 419; Prec. in Ch. 486; 2 Binn. 532; 5 = Binn. 252;=20 7 Cranch, 456; 6 Munf. 187; 1 Desaus. 137, 183; 4 Id. 340, 459; 5 Day, = 517.

6. - 2. When the testator gives a future interest to arise upon a=20 contingency, but does not part with the fee in the meantime; as in the = case of a=20 devise of the estate to the heirs of John after the death of John; or a = devise=20 to John in fee, to take effect six months after the testator's death; or = a=20 devise to the daughter of John, who shall marry Robert within fifteen, = years. T.=20 Raym. 82; 1 Salk. 226; 1 Lutw. 798.

7. - 3. The executory bequest of a chattel interest is good, even = though the=20 ulterior legatee be not at the time in esse, and chattels so limited are = protected from the demands of creditors beyond the life of the first = taker, who=20 cannot pledge them, nor dispose of them beyond his own life interest in = them. 2=20 Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4 Desaus.340; 1 = Bay, 78.=20 But such a bequest, after an indefinite failure of issue, is bad. See 2 = Serg.=20 & R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1 Tho. Co. Litt. = 595-6,=20 515-16. Vide, Com. Dig. Estates by Devise., N 16; Fearne on Rem. 381; = Cruise's=20 Dig. Index, h. t.; 4 Kent, Com. 357 to 381; 2 Hill. Ab. c. 43, p. = 533.

EXECUTORY PROCESS, via executoria. In Louisiana, this is a = process=20 which can be resorted to only in two. cases, namely: 1. When the = creditor's=20 right arises-from an act importing a confession of judgment, and which = contains=20 a privilege or mortgage in his favor. 2. When the creditor demands the = execution=20 of a judgment which has been rendered by a tribunal different from that = within=20 whose jurisdiction the execution is sought. Code of Practice, art. = 732.

EXECUTORY TRUST. A trust is said to be executory where some = further=20 act is requisite to be done by the author of the trust himself or by the = trustees, to give it its full, effect; as, in the case of marriage = articles; or,=20 as in the case of a will, where, property is vested in trustees in trust = to=20 settle or convey.; for, it is apparent in both of these cases, a further = act,=20 namely, a settlement or a conveyance, is contemplated.

2. The difference between an executed and an executory trust, is = this, that=20 courts of equity in cases of executed trusts will construe the = limitations in=20 the same manner as similar legal limit-ations. White's L. C. in Eq. 18. = But, in=20 cases of executory trusts, a court of equity is not, as in the case of = executed=20 trusts, bound to construe technical expressions with legal strictness, = but will=20 mould the trusts according to the intent of the creator of such trusts = White's=20 L. C. Eq. 18.

3. When a voluntary trust is executory, and not executed, if it could = not be=20 enforced at law, because it is a defective conveyance, it is not helped = in=20 equity, in favor of a volunteer. 4 John. Ch. 498, 500; 4 Paige, 305; 1 = Dev. Eq.=20 R. 93.

4. But where the trust, though voluntary, has been executed in part, = it will=20 be sustained or enforced, in equity. 1 John. Ch. R. 329; 7 Penn. St. R. = 175,=20 178; White's L. C. in Eq. *176; 18 Ves. 140; 1 Keen's R. 551; 6 Ves. = 656; 3=20 Beav. 238.

EXECUTRIX, A woman who has been appointed by. will to execute = such=20 will or testament. See Executor.

EXEMPLIFICATION, evidence. A perfect copy of a record, or = office book=20 lawfull kept, so far as relates to the matter in question. 3 Bouv. Inst. = n.=20 3107. Vide, generally, 1 Stark. Ev. 151; 1 Phil. Ev. 307; 7 Cranch, 481; = 3=20 Wheat. 234; 10 Wheat. 469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 = John.=20 Cas. 238. As to the mode of authenticating records of other states, see = articles=20 Authentication, and Evidence.

EXEMPTION. A privilege which dispenses with the general rule; = for=20 example, in Pennsylvania, and perhaps in all the other staies, clergymen = are=20 exempt from serving on juries. Exemptions are generally allowed, not for = the=20 benefit of the individual, but for some public advantage.

EXEMPTS. Persons who are not bound by law, but excused from = the=20 performance of duties imposed upon others.

2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S. 252, it = is=20 provided, =A72. That the vice-president of the United States the = officers,=20 judicial and executive, of the government of the United States; the = members of=20 both houses of congress, and their respective officers; all custom-house = officers, with their clerks; all post officers, and stage drivers, who = are=20 employed in the care and conveyance of the mail of the post office of = the United=20 States; all ferrymen employed at any ferry on the post road; all = inspectors of=20 exports; all pilots; all mariners, actually employed in the sea service = of any=20 citizen or merchant within the United States; and all persons who now = are, or=20 may hereafter be, exempted by the laws of the respective states, Shall = be, and=20 are hereby, exempted from militia duty, notwithstanding their being = above the=20 age of eighteen, and under the age of forty-five years.

EXEQUATUR, French law. This Latin word was, in the ancient = practice,=20 placed at the bottom of a judgment emanating from another tribunal, and = was a=20 permission and authority to the officer to execute it within the = jurisdiction of=20 the judge who put it below the judgment.

2. We have something of the same kind in our practice. When a warrant = for the=20 arrest of a criminal is issued by a justice of the peace of one county, = and he=20 flies into another, a justice of the latter county may endorse the = warrant and=20 then the ministerial officer may execute it in such county. This is = called=20 backing a warrant.

EXEQUATUR, internat. law. A declaration made by the executive = of a=20 government near to which a consul has been nominated and appointed , = after such=20 nomination and appointment has been notified, addressed to the people, = in which=20 is recited the appointment of the foreign state, and that the executive = having=20 approved of the consul as such, commands all the citizens to receive,=20 countenance, and, as there may be occasion, favorably assist the consul = in the=20 exercise of his place, giving and allowing him all the privileges, = immunities,=20 and advantages, thereto belonging. 3 Chit. Com. Law, 56; 3 Maule & = Selw.=20 290; 5 Pardes. 1445.

EXERCITOR. A term in the civil law, to denote the person who = fits out,=20 and equips a vessel, whether he be the absolute or qualified owner, or = even a=20 mere agent. Emer. on Mar. Loans, c. 1, s. 1.

2. In English, we generally use the word "ship's hushand," but = exercitor is=20 generally used to designate and distinguish from among several part = owners of a=20 ship, the one who has the immediate care an management of her. Hall on = Mar.=20 Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; Vicat, Vocab.; = Ship's=20 hushand.

EXHEREDATION, civil law. The act by which a forced heir is = deprived of=20 his legitimate or legal portion which the law gives him; disinherison. = (q.=20 v.)

EXHIBIT, practice. Where a paper or other writing is on = motion, or on=20 other occasion, proved; or if an affidavit to which the paper writing is = annexed, refer to it, it is usual to mark the same with a capital = letter, and to=20 add, " This paper writing marked with the letter A, was shown to the = deponent at=20 the time of his being sworn by me, and is the writing by him referred to = in the=20 affidavit annexed hereto." Such paper or other writing, with this = attestation,=20 signed by the judge or other person before whom the affidavit shall have = been=20 sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410; Gresl. Eq. = Ev.=20 98.

TO EXHIBIT. To produce a thing publicly, so that it may be = taken=20 possession of, or seized. Dig. 10, 4, 2. To exhibit means also to file = of=20 record; as, it is the practice in England in personal actions, when an = officer=20 or prisoner of the king's bench is defendant, to proceed against such = defendant=20 in the court in which he is an officer, by exhibiting, that is, filing a = bill=20 against him. Stepb. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical = language, to.=20 exhibit signifies to ad minist er, to cause a thing to be taken by a = patient.=20 Chit. bled. Jur. 9.

EXHIBlTANT. One who exhibits any thing; one who is complainant = in=20 articles of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124.

EXHIBITION, Scotch law. An action for compelling the = production of=20 writings. In Pennsylvania, a party possessing writings is compelled, to = produce=20 them on proper notice being given, in default of which judgment is = rendered=20 against him.

EXIGENT, or EXIGI FACIAS, practice. A writ issued in the = course of=20 proceedings to out lawry, deriving its name and application from the = mandatory=20 words found therein, signifying, "that you cause to be exacted or = required; and=20 it is that proceeding in an outlawry which, with the writ of = proclamation,=20 issued at the same time, immediately precedes the writ of capias = utlagatum. 2=20 Virg. Cas. 244.

EXIGIBLE. That which may be exacted demandable; = requirable.

EXILE, civil law. The: interdiction of all places except one = in which=20 the party is foreed to make his residence.

2. This punishment did not deprive the sufferer of his right of = citizenship=20 or of his property, unless the exile were perpetual, in which case = confiscation=20 not unfrequently was a part of the sentence. Exile was temporary or = perpetual.=20 Dig. 48, 22, 4; Code, 10, 59, 2. Exile differs from deportation, (q. v.) = and=20 relegation. (q. v.) Vide, 2 Lev. 191; Co. Litt. 133, a.

EXILIUM. By this term is understood that kind of waste which = either=20 drove away the inhabitants into a species of exile, or had a tendency to = do so;=20 as the prostrating or extirpating of trees in an orchard or avenue, or = about any=20 house. Bac. Ab. Waste, A; Bract. lib. 4, c. 18, s. 13; 1 Reeves' Hist. = Law,=20 386.

EXITUS. Issue,, child, or offspring; rents or profits of land. = Cowell,=20 h. v. In pleading, it is the issue, or the end, terminaion, or = conclusion of the=20 pleadings, and is so called, because an issue brings the pleadngs to a = close. 3=20 Bl. Com. 314.

EXIGENDARY, Eng. law. An officerwho makes out exigents.

EXOINE, French law. An act or instrument in writing, which = contains=20 the reasons why a party in a civil suit, or a person accused, who has = been=20 summoned, agreeably to the requisitions of a decree, does not appear. = Poth.=20 Proced. Crim. s. 3, art. 3. Vide Essoin.

EXONERATION. The taking off a burden or duty.

2. It is a rule in the distribution of an intestate's estate that the = debts=20 which he himself contracted, and for which be mortgaged his land as = security,=20 shall be paid out of the personal estate in exoneration of the real.

3. But when the real estate is charged with the payment of a mortgage = at the=20 time the intestate buys it, and the purchase is made subject to it, the=20 personal. is not in that case to be applied, in exoneration of the real = estate.=20 2 Pow. Mortg. 780; 5 Hayw. 57; 3 Johns. Ch. R. 229.

4. But the rule for exonerating the real estate out of the personal, = does not=20 apply against specific or pecuniary legatees, nor the widow's right to=20 paraphernalia, and with reason not against the interest of creditors. 2 = Ves. jr.=20 64; 1 P. Wms. 693; Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow. Mortg. = Index, h.=20 t.

EXONERATUR, practice. A short note entered on a bail piece, = that the=20 bail is exonerated or discharged in consequence of having fulfilled the=20 condition of his obligation, made by order of the court or of a judge = upon a=20 proper cause being shown.

2. A surrender is the most usual cause; but an exoneratur may be = entered in=20 other cases, as in case of death of the defendant, or his bankruptcy. 1 = Arch.=20 Pr. 280, 281, 282; Tidd's Pr. 240.

EXPATRIATION. The voluntary act of abandoning one's country = and=20 becoming the citizen or subject of another.

2. Citizens of the United States have the right to expatriate = themselves=20 until restrained by congress; but it seems that a citizen cannot = renounce his=20 allegiance to the United States without the permission of government, to = be=20 declared by law. To be legal, the expatriation must be for a purpose = which is=20 not unlawful, nor in fraud of the duties of the emigrant at home.

3. A citizen may acquire in a foreign country commercial privileges = attached=20 to his domicil, and be exempted from the operation of commercial acts = embracing=20 only persons resident in the United States or under its protection. 2 = Cranch,=20 120. Vide Serg. Const. Law, 318, 2d ed; 2 Kent, Com. 36; Grotius, B. 2, = c. 5, s.=20 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, c. 19, s. 218, 223, 224, = 225=20 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7 Wheat. 342; 1 Pet. C. C. R. 161; = 4=20 Hall's Law Journ. 461; Bracken. Law Misc. 409; 9 Mass. R. 461. For the = doctrine=20 of the English courts on this subject, see 1 Barton's Elem. = Conveyancing, 31,=20 note; Vaugh, Rep. 227, 281, 282, 291; 7 Co. Rep. 16 Dyer, 2, 224, 298 b, = 300 b;=20 2 P. Wms. 124; 1 Hale, P. C. 68; 1 Wood. 382.

EXPECTANCY, estates. Having a relation to or dependence upon = something=20 future.

2. Estates are of two sorts, either in possession, sometimes called = estates=20 executed; or in expectancy, which are executory. Expectancies are, = first,=20 created by the parties, called a remainder; or by act of law, called a=20 reversion.

3. A bargain in relation to an expectancy is, in general, considered = invalid.=20 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C. C. 10; Jer. Eq. Jur. 397.

EXPECTANT. Having relation to, or depending upon something; = this word=20 is frequently used in connexion with fee, as fee expectant.

EXPECTATION. That which may be expected, although contingent. = In the=20 doctrine of life annuities, that share or number of the years of human = life=20 which a person of a given age may expect to live, upon an equality of=20 chances.

2. In general, the heir apparent will be relieved from a contract = made in=20 relation to his expectancy. See Post Obit.

EXPENSAE LITIS. Expenses of the suit; the costs which are = generally=20 allowed to the successful party.

EXPERTS. From the Latin experti,which signifies, instructed by = experience. Persons who are selected by the courts or the parties in a = cause on=20 account of their knowledge or skill, to examine, estimate, and ascertain = things,=20 and make a report of their opinions. Merl. Repert. mot Expert; 2 Lois = des=20 Batimens, 253; 2 N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S. = & R.=20 336; Ray. Med. Jur. Prel. Views, =A729; 3 Bouv. Inst. n. 3208.

EXPILATION, civil law. The crime of abstracting the goods of a = succession.

2. This is said not to be a theft, because the property no longer = belongs to=20 the deceased, nor to the heir before he has taken possession. In the = common law,=20 the grant of letters testamentary, or letters of administration, relate = back to=20 the time of the death of the testator or intestate, so that the property = of the=20 estate is vested in the executor or administrator from that period.

EXPIRATION. Cessation; end. As, the expiration of, a lease, of = a=20 contract, or statute.

2. In general, the expiration of a contract puts an end to all the=20 engagements of the parties, except to those which arise from the = non-fulfilinent=20 of obligations created during its existence. For example, the expiration = of a=20 partnership so dissolves it, that the parties cannot in general create = any new=20 liability, but it still subsists, to enable the parties to fulfil = engagements in=20 which the partners have engaged, or to compel others to perform their=20 obligations towards them. See Dissolution; Contracts.

3. When a statute is limited as to time, it expires by mere lapse of = time,=20 and then it has no force whatever; and, if such a statute repealed or = supplied a=20 former statute, the first statute is, i so facto, revived by the = expiration of=20 the repealing statute; 6 Whart. 294; 1 Bland, R. 664 unless it appear = that such=20 was not the intention of the legislature. 3 East, 212 Bac. Ab. Statute, = D.

EXPORTATION, commercial law. The act of sending goods and = merchandise=20 from one country to another. 2 Mann. & Gran. 155; 3 Mann. & = Gran. 959.=20

2. In order to preserve equality among the states, in their = commercial=20 relations, the constitution provides that " no tax or duty shall be laid = on=20 articles exported from any state." Art. 1, s. 9. And to prevent a = pernicipus=20 interference with the commerce of the nation, the 10th section of the = 1st=20 article of the constitution contains the following prohibition: " No = state=20 shall, without the consent of congress, lay any imposts or duties on = imports or=20 exports, except what may be absolutely necessary for executing its = inspection=20 laws; and the net produce of all duties and imposts, laid by any state = on=20 imports or exports, shall be for the use of the treasury of the United = States;=20 and all such laws shall be subject to the revision and control of the = congress."=20 Vide 12 Wheat. 419; and the article Importation.

EXPOSE' A French word, sometimes applied to a written = document,=20 containing the reasons or motives for doing a thing. The word occurs in=20 diplomacy.

EXPOSITION DE PART, French law. The abandonment of a child, = unable to=20 take care of itself, either in a public or private place.

2. If the child thus exposed should be killed in consequence of such=20 exposure; as, if it should be devoured by animals, the person thus = exposing it=20 would be guilty of murder. Rose. Cr. Ev. 591.

EXPRESS. That which is made known, and not left to = implication. The=20 opposite of implied. It is a rule, that when a matter or thing is = expressed, it=20 ceases to be implied by law: expressum facit cessare tacitum. Co. Litt. = 183; 1=20 Bouv. Inst. n. 97.

EXPRESSION. The term or use of language employed to explain a=20 thing.

2. It is a general rule, that expressions shall be construed, when = they are=20 capable of several significations, so as to give operation to the = agreement,=20 act, or will, if it can be done; and an expression is always to be = understood in=20 the sense most agreeable to the nature of the contract. Vide Clause;=20 Construction; Equivocal; Interpretation; Words.

EXPROMISSION, civil law. The act by which a creditor accepts a = new=20 debtor, who becomes bound instead of the old, the latter being released. = It is a=20 species of novation. (q. v.) 1 Bouv. Inst. n. 802. Vide Delegation.

EXPROMMISSOR, civil law. By this term is understood the person = who=20 alone becomes bound for the debt of another, whether the latter were = obligated=20 or not. He differs from a surety, who is bound together with his = principal. Dig.=20 12, 4, 4; Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8.

EXPULSION. The act of depriving a member of a body politic, = corporate,=20 or of a society, of his right of membership therein, by the vote of such = body or=20 society, for some violation of hi's. duties as such, or for some offence = which=20 renders him unworthy of longer remaining a member of the same.

2. By the Constitution of the United States, art. 1, s. 5, =A72, each = house may=20 determine the rules of its proceedings, punish its members for = disorderly=20 behaviour, and, with the concurrence of two-thirds' expel a member. In = the case=20 of John Smith, a senator from Ohio, who was expelled from the senate in = 1807,=20 the committee made a report which embraces the following points:

3. - 1. That the senate may expel a member for a high misdemeanor, = such as a=20 conspiracy to commit treason. Its authority is not confined to an act = done in=20 its presence.

4. - 2. That a previous conviction is, not requisite, in order to = authorize=20 the senate to expel a member from their body, for a high: offence = against the=20 United States.

5. - 3. That although a bill of indictment against a party for = treason and=20 misdemeanor has been abandoned, because a previous indictment against = the=20 principal party had terminated in an acquittal, owing to the = inadmissibility of=20 the evidence upon that indictment, yet the senate may examine the = evidence for=20 themselves, and if it be sufficient to satisfy their. minds that the = party is=20 guilty of a high misdemeanor it is a sufficient ground of expulsion.

6. - 4. That the 6th and 6th articles of the amendments of the = Constitution=20 of the United States, containing the general rights and privileges of = the=20 citizen, as to criminal prosecutions, refer only to prosecutions at law, = and do=20 not affect the jurisdiction of the senate as to expulsion.

7. - 5. That before a committee of the senate, appointed to report an = opinion=20 relative to the honor and privileges of the senate, and the facts = respecting the=20 conduct of the member implicated, such member is not entitied to be = heard in his=20 defence by counsel, to have compulsory process for witnesses, and to be=20 confronted with his accusers. It is before the senate that the member = charged is=20 entitled to be heard.

8. - 6. - In determining on expulsion, the senate is not bound by the = forms=20 of judicial proceedings, or the rules of judicial evidence; nor, it = seems, is=20 the same degree of proof essential which is required to convict of a = crime. The=20 power of expulsion must, in its nature, be discretionary, and its = exercise of a=20 more summary character. 1 Hall's Law Journ. 459, 465.

9. Corporations have the right of expulsion in certain cases, as such = power=20 is necessary to the good order and government of corporate bodies; and = the cases=20 in which the inherent power may be exercised are of three kinds. 1. When = an=20 offence is committed which has no immediate relation to a member's = corporate=20 duty, but is of so infamous a nature as renders him unfit for the, = society of=20 honest men; such as the offences of perjury, forgery, and the like. But = before=20 an expulsion is made for a cause of this kind, it is necessary that = there should=20 be a previous conviction by a jury, according to the law of the land. 2. = When=20 the offence is against his duty as a corporator, in which case he may be = expelled on trial and conviction before the corporation. 3. The third is = of a=20 mixed nature, against the member's duty. as a corporator, and also = indictable by=20 the law of the land. 2 Binn.448. See, also, 2 Burr., 536.

10. Members of what are called joint stock incorporated companies, or = indeed=20 members of any corporation owning property, cannot, without express = authority in=20 the charter, be expelled, and thus deprived of their interest in the = general=20 fund. Ang. & Ames on Corp. 238. See; generally, Ang. & Ames on = Corp. ch.=20 11; Willcock, on Mun. Cor . 270; 1 Co. 99; 2 Bing. 293.; 5 Day 329; Sty. = 478; 6=20 Conn. R. 532; 6 Serg. & Rawle, 469; 5 Binn. 486.

EXTENSION, comm. law. This term is applied among merchants to = signify=20 an agreement made between a debtor and his creditors, by which the = latter, in=20 order to enable the former, embarrassed in his circumstances, to = retrieve his=20 standing, agree to wait for a definite length of time after their = several claims=20 should become due and payable, before they will demand payment.

2. Among the French, a similar agreement is known by the name of=20 atermoiement. Merl. Rep. mot Atermoiement.

EXTENT IN AID, English practice. An exchequer process, = formerly much=20 used, and now liable to be abused; it is regulated by 57 Geo. III. o. = 117.

EXTENT IN CHIEF, English practice. An execution issuing out of = the=20 exchequer at the suit 'of the crown. It is a mere "fiscal writ. See. = West on=20 Extents; 2 Tidd. Index.

2. When land was extended at a valuation too low, there was no remedy = at=20 common law but to pay the money. 15 H. VII. Nor yet in chancery, unless = there=20 was fraud, because the extent was made by the oath of a jury, and deemed = reasonable according to the writ of extent for that cause: otherwise = every=20 verdict might be examined in a court of chancery. Crompt. on. Jurisdic. = 55=20 a.

EXTENUATION. That which renders a crime or tort less heinous = than it=20 would be without it: it is opposed to aggravation. (q. v. )

2. In general, extenuating circumstances go in mitigation of = punishment in=20 criminal cases, or of damages in those of a civil nature. See = Aggravation;=20 Mitigation.

EXTERRITORIALITY. This term is used by French jurists to = signify the=20 immunity of certain persons, who, although in the state, are not = amenable to its=20 laws; foreign sovereigns, ambassadors, ministers plenipotentiary, and = ministers=20 from a foreign power, are of this class. Foelix, Droit Intern. Prive, = liv. 2,=20 tit. 2, c. 2, s. 4. See Ambassador; Conflict of Laws; Minister.

EXTINCTION OF A THING. When a thing which is the subject of a = contract=20 has been destroyed, the contract is of course rescinded as, for example, = if Paul=20 sell his horse Napoleon to Peter, and promises to deliver him to the = buyer in=20 ten days, and in the mean time the horse dies, the contract is = rescinded, as it=20 is impossible to deliver a thing which is not in esse; but if Paul = engage to=20 deliver a horse to Peter in ten days, and, for the purpose of fulfilling = his=20 contract, he buys a horse and it die, this is no cause for rescinding = the=20 contract, because he can buy another and complete it afterwards. When = the=20 subject of the contract is an individual, and not generally one of a = species,=20 the contract may be rescinded; when it is one of a species which has = been=20 destroyed, then, it may still be completed, and it will be enforced. = Lec. El.=20 Dr. Rom. =A71009.

EXTINGUISHMENT, contracts. The destruction of a right or = contract -=20 the act by which a contract is made void.

2. Art extinguishment may be by matter of fact and by matter of law. = 1. It is=20 by matter of fact either express, as when one receives satisfaction and = full=20 payment of a debt, and the creditor releases the debtor 11 John. 513'; = or=20 implied, as when a person hath a yearly rent out of, lands and becomes = owner=20 either by descent or purchase, of the estate subject to the payment of = the rent,=20 the latter is extinguished 3 Stew. 60; but the person must have as high = an=20 estate in the land as in the rent, or the rent will not be extinct. Co. = Litt.=20 147. See Merger.

3. There are numerous cases where the claim is extinguished b = operation of=20 law; for example, where two persons are jointly, but not severally = liable, for a=20 simple contract debt, a judgment obtained against one is at common law = an=20 extinguishment of the claim on the other debtor. Pet. C. C. 301; see 2 = John.=20 213. Vide, generally, Bouv. Inst. Index, h. t.; 2 Root, 492; 3 Conn. 62; = 1 Hamm.=20 187; 11 John. 513; 4 Conn. 428; 6 Conn. 373; 1 Halst. 190 4 N. H. Rep. = 251 Co.=20 Litt. 147 b; 1 Roll. Ab. 933 7 Vin. Ab. 367; 11 Vin. Ab. 461; 18 Vin. = Ab. 493 to=20 515 3 Nels. Ab. 818; 14 Serg. & Rawle, 209; Bac. Ab. h. t.; 5 Whart. = R. 541.=20 Vide Discharge of a Debt.

EXTORSIVELY. A technical word used in indictments for = extortion. In=20 North Carolina, it seems, the crime of extortion may be charged without = using=20 this word. 1 Hayw. R. 406.

EXTORTION, crimes. In a large sense it, signifies any = oppression,=20 under color of right: but in a more strict sense it means the unlawful = taking by=20 any officer, by color of his office, of any money or thing of value that = is not=20 due to him, or more than is due, or before it is due. 4 Bl. Com. 141; 1 = Hawk. P.=20 C. c. 68, s. 1; 1 Russ. Cr. *144. To constitute extortion, there must be = the=20 receipt of money or something of value; the taking a promissory note, = which is=20 void, is. not sufficient to make an extortion. 2 Mass. R. 523; see Bac. = Ab. h.=20 t.; Co. Litt. 168. It is extortion and oppression for an officer to take = money=20 for the performance of his duty, even though it be in the exercise of a=20 discretionary power. 2 Burr. 927. It differs from exaction. (q. v.) See = 6 Cowen,=20 R. 661; 1 Caines, R. 130; 13 S. & R. 426 1 Yeates, 71; 1 South. 324; = 3=20 Penna. R. 183; 7 Pick. 279; 1 Pick. 171.

EXTRA-DOTAL PROPERTY. In Louisiana this term is used to = designate that=20 property which forms no part of the dowry of a woman, and which is also = called=20 paraphernal property. Civ. Co. Lo. art. 2315. Vide Dotal Property.

EXTRA VIAM. Out of the way. When, in an action of trespass, = the=20 defendant pleads a right of way, the defendant may reply extra viam, = that the=20 trespass was committed beyond the way, or make a new assignment. 16 = East, 343,=20 349.

EXTRACT. A part of a writing. In general this is not evidence, = because=20 the whole of the writing may explain the part extracted, so as to give = it a=20 different sense; but sometimes extracts from public books are evidence, = as the=20 extracts from the registers of births, marriages and burials, kept = according to=20 law, when the whole of the matter has been extracted which relates to = the cause=20 or matter in issue.

EXTRADITION, civil law. The act of sending, by authority of = law, a=20 person accused of a crime to a foreign jurisdiction where it was = committed, in'=20 order that he may be tried there. Merl. Rep. h. t.

2. By the constitution and laws of the United States, fugitives from = justice=20 (q. v.) may be demanded by the executive of the one state where the = crime has=20 been committed from that of another where the accused is. Const. United = States,=20 art. 4, s. 2, 2 3 Story, Com. Const. U. S. =A71801, et seq.

3. The government of the United States is bound by some treaty = stipulation's=20 to surrender criminals who take refuge within the country, but = independently of=20 such conventions, it is questionable whether criminals can be = surrendered. 1=20 Kent. Com. 36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & = Rawle,=20 125; 22 Amer. Jur. 330; Story's Confl. of Laws, p. 520; Wheat. Intern. = Law,=20 111.

4. As to when the extradition or delivery of the supposed criminal is = complete is not very certain. A case occurred in, France of a Mr. = Cassado, a=20 Spaniard, who had taken refuge in Bayonne. Upon an application made to = the=20 French government, he was delivered to the Spanish consul who had = authority to=20 take him to Spain, and while in the act of removing him with the = assistance of=20 French officers, a creditor obtained an execution against his person, = and made=20 an attempt to execute it and retain Cassado in France, but the council = of state,=20 (conseil d'etat) on appeal, decided that the courts could not interfere, = and=20 directed Cassado to be delivered to the Spanish authorities. Morrin, = Dict. du=20 Dr. Crim. h.v.

EXTRAJUDICIAL. That which does not belong to the judge or his=20 jurisdiction, notwithstanding which he takes. cognizance of it. = Extrajudicial=20 judgments and acts are absolutely void. Vide Coram non judice, and Merl. = Repert.=20 mots Exces de Pouvoir.

EXTRAVAGANTES, canon law. This is the name given to the = constitutions=20 of the popes posterior to the Clementines; they are thus called quasi = vagantes=20 extra corpus juris, to express that they were out of the canonical law, = which at=20 first contained only the decrees of Gratian; afterwards the decretals of = Gregory=20 IX., the sexte of Boniface. VIII., the Clementines, and at last the=20 extravagantes were added to it. There are the extravagantes of John = XXII., and=20 the common 'extravagantes.' The first contain twenty epistles, decretals = or=20 constitutions of that pope, divided under fifteen titles, without any=20 subdivision into books. The others are epistles, decretals or = constitutions of=20 the popes who occupied the holy see, either before or after John XXII. = they are=20 divided into books like the decretals.

EXTREMIS. When a person is sick beyond the hope of recovery, = and near=20 death, he is said to be in extremism.

2. A will made in this condition, if made without undue influence, by = a=20 person of sound mind, is valid.

3. The declarations of persons in extremis, when made with a full=20 consciousness of approaching death, ate admissible in evidence when the = death of=20 the person making them is the subject of the charge, and the = circumstances of=20 the death the subject of such declarations. 2 B. & C. 605 S. C. 9 = Eng. C. L.=20 Rep..196; and see 15 John. 286; 1 John. Rep. 159; 2 John. R. 31; 7 John. = 95; 2=20 Car. Law. Repos. 102; 5 whart, R. 396-7.

EY. A watery place; water. Co. Litt 6.

EYE-WITNESS. One who saw the act or fact to which he = testifies. When=20 an eye-witness testifies, and is a man of intelligence and integrity, = much=20 reliance must be placed on his testimony, for he has the means of making = known=20 the truth.

EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2, = s. b;=20 Bract. lib. 2, c. 2. See lsand.

EYRE. Vide Eire Justiciarii Itinerantes.

Index

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