Bouvier's Law Dictionary, 1856 Edition

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Bouvier's Law Dictionary
1856 Edition

GABEL. A tax, imposition, or duty. This word is said to have = the same=20 signification that gabelle formerly had in France. Cunn. Dict. h. t. But = this=20 seems to be an error for gabelle signified in that country, previously = to its=20 revolution, a duty upon salt. Merl. Rep. h. t. Lord Coke says, that = gabel or=20 gavel, gablum, gabellum, gabelletum, galbelletum, and gavillettum = signify a=20 rent, duty, or service, yielded or done to the king or any other lord. = Co. Litt.=20 142, a.

GAGE, contracts. Personal property placed by a debtor in = possession of=20 his creditor, as a security for his debt; a pawn. (q. v.) Hence mortgage = is a=20 dead pledge.

GAGER DEL LEY. Wager of law. (q. v.)

GAIN. The word is used as synonymous with profits. (q. v.) See = Fruit.

GAINAGE, old Eng. law. It signifies the draft oxen, horses, = wain,=20 plough, and furniture for carrying on the work of tillage by the baser = sort of=20 soke men and villeins, and sometimes the land itself, or the profits = raised by=20 cultivating it. Bract. lib. 1, c. 9.

GALLON, measures. A gallon is a liquid measure, containing two = hundred=20 and thirty-one cubic inches, or four quarts.

GALLOWS. An erection on which to bang criminals condemned to=20 death.

GAME. Birds and beasts of a wild-nature, obtained by fowling = and=20 hunting. Bac. Ab. h. t.; Animals; Ferae natural.

GAMING. A contract between two or more persons by which they = agree to=20 play by certain rules at cards, dice, or other contrivance, and that one = shall=20 be the loser, and the other the winner. When considered in itself, and = without=20 regard to the end proposed by the player's, there is nothing in it = contrary to=20 natural equity, and the contract will be considered as a reciprocal = gift, which=20 the parties make of the thing played for, under certain. conditions.

2. There are some games which depend altogether upon skill, others, = upon=20 chance, and some others are of a mixed nature. Billiards is an example = of the=20 first; lottery of the second; and backgammon of the last.

3. In general, at common law all games are lawful, unless some fraud = has been=20 practiced, or such games are contrary to public policy. Each of the = parties to=20 the contract must, 1. Have a right to the money or thing played for. 2. = He must=20 have given his full and free consent, and not been entrapped by fraud. = 3. There=20 must be equality in the play. 4. The play must be conducted fairly. But = even=20 when all these rules have been observed, the courts will not countenance = gaming=20 by giving too easy a remedy for the recovery of money won at play. Bac. = Ab. h.=20 t. A.

4. But when fraud has been practiced, as in all other cases, the = contract is=20 void and in some cases, when the party has been guilty of cheating, by = playing=20 with false dice, cards and the like, he may be indicted at common law, = and fined=20 and imprisoned, according to the heinousness of the offence. 1 Russ. on = Cr,=20 406.

5. Statutes have been passed in perhaps all the states forbidding = gaining for=20 money, at certain games, and prohibiting the recovery of money lost at = such=20 games. Vide Bac. Ab. h. t.; Dane's Ab. Index, h. t.; Poth. Traite du = Jeu;=20 Merlin, Repertoire, mot Jeu; Barbeyrac, Traite du Jeu, tome 1, p. 104, = note 4; 1=20 P. A. Browne's Rep. 171: 1 Overt. R. 360; 3 Pick. 446; 7 Cowen, 496; 1 = Bibb,=20 614; 1 Miss. 635; Mart. & Yerg. 262; 1 Bailey, 315; 6 Rand. 694; 8 = Cowen,=20 139; 2 Blackf. 251; 3 Blackf. 294; and Stakeholder; Wagers.

GAMING HOUSES, crim. law. Houses kept for the purpose of = pemitting=20 persons to gamble for money or other valuable thing. They are nuisances = in the=20 eye of the law, being detrimental to the public, as they promote = cheating and=20 other corrupt practices. 1 Russ. on Cr. 299; Roscoe's Cr. Ev. 663; Hawk. = B. 1,=20 ch. 75, s. 6; 3 Denio's R. 101; 8 Cowen, 139; This offence is punished = in=20 Pennsylvania, an perhaps in most of the states, by statutory = provisions.

GANANCIAL, Spanish law. A term which in Spanish signifies = nearly the=20 same as acquets. Bienes gananciales are thus defined: " Aquellos que el = marido y=20 la muger o cualquiera de los dos adquieren o aumentan durante el = matrimonio por=20 compra o otro contrato, 6 mediante su trabajo e industria, como tambien = los=20 frutos de los bienos proprios que cada uno elevo al matrimonio, et de = los que=20 subsistiendo este adquieran para si por cualquier titulo." 1 Febr. Nov. = lib. 1,=20 tit. 2, c. 8, s. 1. This is a species of community; the property of = which it is=20 formed belongs in common to the two consorts, and, on the dissolution of = the=20 marriage, is divisible between them in equal shares. It is confined to = their=20 future acquisition durante el matrimonio, and the frutos, or rents and = profits=20 of the other property. 1 Burge on Confl. of Laws, 418, 419; Aso & = Man. Inst.=20 B. 1, t. 7, c. 5, =A71.

GAOL. A prison or building designated by law or used by the = sheriff,=20 for the confinement or detention of those, whose persons are judicially = ordered=20 to be kept in custody., This word, sometimes written jail, is said to be = derived=20 from the Spanish jaula, a cage, (derived from caula,) in French geole, = gaol. 1=20 Mann. & Gran. 222, note a. Vide 6 John. R. 22; 14 Vin. Ab. 9; Bac. = Ab. h.=20 t.; Dane's Ab. Index, h. t.; 4 Com. Dig. 619; and the articles Gaoler; = Prison;=20 Prisoner.

GAOL-DELIVERY, Eng. law. To insure the trial, within a certain = time,=20 of all prisoners, a patent in the nature of a letter is issued from the = king to=20 certain persons, appointing them his justices, and authorizing them to = deliver=20 his goals. Cromp. Jurisd. 125; 4 Inst. 168; 4 Bl. Com. 269; 2 Hale, P. = C. 22,=20 32; 2 Hawk. P. C. 14, 28. In the United States, the judges of the = criminal=20 courts are required to cause the accused to be tried within the times = prescribed=20 by the local statutes, and the constitutions rcqpire a speedy trial.

GAOLER. The keeper of a gaol or prison, one who has the legal = custody=20 of the placo where prisoners are kept.

2. It is his duty to keep the prisoners in safe custody, and for = this,=20 purpose he may use all necessary force. 1 Hale, P. C. 601. But any = oppression of=20 a prisoner under a pretended necessity will be punished; for the = prisoner,=20 whether he be a debtor or a criminal, is entitled to the protection of = the laws=20 from oppression.

GARDEN. A piece of ground appropriated to raising plants and=20 flowers.

2. A garden is a parcel of a house and passes with it. Br. Feoffm. de = terre,=20 53; 2 Co. 32; Plowd. 171; Co. Litt. 5 b, 56 a, b. But see Moore, 24; = Bac. Ab.=20 Grants, I.

GARNISH, Eng. law. Money paid by a prisoner to his fellow = prisoners on=20 his entrance into prison. .

TO GARNSIH. To warn; to garnish the heir, is to warn the heir. = Obsolete.

GARNISHEE, practice. A person who has money or property in his = possession, belonging to a defendant, which money or property has been = attached=20 in his hands, and he has had notice of such attachment; he is so called = because=20 he has had warning or notice of the attachment.

2. From the time of the notice of the attachment, the garnishee is = bound to=20 keep the property in his hands to answer the plaintiff's claim, until = the=20 attachment is dissolved, or he is otherwise discharged. Vide Serg. on = Att. 88 to=20 110; Com. Dig. Attachment, E.

3. There are garnishees also in the action of detinue. They are = persons=20 against whom process is awarded, at the prayer of the defendant, to warn = them to=20 come in and interplead with the plaintiff. Bro. Abr. Detinue, = passim.

GARNISHMENT. A warning to any one for his appearance, in a = cause in=20 which he is not a party, for the information of the court, and = explaining a=20 cause. For example, in the practice of Pennsylvania, when an attachment = issues=20 against a debtor, in order to secure to the plaintiff a claim due by a, = third=20 person to such debtor, notice is given to such third person, which = notice is a=20 garnishment, and he is called the garnishee.

2. In detinue, the defendant cannot have a sci. fac. to garnish a = third=20 person unless he confess the possession of the chattel or thing = demanded. Bro.=20 Abr. Garnishment, 1, 5. And when the garnishee comes in, he cannot vary = or=20 depart from the allegation of the defendant in his prayer of = garnishment. The=20 plaintiff does not declare de novo against the garnishee; but the = garnishee, if=20 he appears in due time, may have oyer of the original declaration to = which he=20 pleads. See Bro. Abr. Garnishee and Garnishment, pl. 8, and this title,=20 passim.

GAUGER. An officer appointed to examine all tuns, pipes, = hogsheads,=20 barrels, and tierces of wine, oil, and other liquids, and to give them a = mark of=20 allowance, as containing lawful measure.

GAVEL. A tax, imposition or tribute; the same as gabel. (q. = v.)

GAVELKIND. Given to all the kindred, or the hold or tenure of = a=20 family, not the kind of tenure. Eng. law. A tenure or custom annexed or=20 belonging to land in Kent, by which the lands of the father are equally = divided=20 among all his sons, or the land of the brother among all his brothers, = if he=20 have no issue of his own. Litt. s. 210.

GELD, old Eng. law. It signifies a fine or compensation for an = offence; also, rent, money or tribute.

GEMOTE. An assembly. Wittena gemote, during the time of the = Saxons in=20 England, signified an assembly of wise men. The parliament.

GENDER. That which designates the sexes.

2. As a general rule, when the masculine is used it includes the = feminine,=20 as, man (q. v.) sometimes includes women. This is the general rule, = unless a=20 contrary intention appears. But in penal statutes, which must be = construed=20 strictly, when the masculine is used and not the feminine, the latter is = not in=20 general included. 3 C. & P. 225. An instance to the contrary, = however, may=20 be found in the construction, 25 Ed. III, st. 5, c. 2, =A71, which = declares it to=20 be high treason, "When a man doth compass or imagine the death of our = lord the=20 king," &c. These words, "our lord the king," have been construed to = include=20 a queen regnant. 2 Inst. 7, 8, 9; H. P. C. 12; 1 Hawk. P. C. c. 17; Bac. = Ab.=20 Treason, D.

3. Pothier says that the masculine often includes the feminine, but = the=20 feminine never includes the masculine; that according to this rule if a = man were=20 to bequeath to another all his horses, his mares would pass by the = legacy; but=20 if he were to give all his mares, the horses would not be included. = Poth.=20 Introd. au titre 16, des Testaments et Donations Testamentaires, n. 170; = 3 Brev.=20 R. 9. In the Louisiana code in the French language, it is provided that = the word=20 fils, sons, comprehends filles, daughters. Art. 3522, n. 1. Vide Ayl. = Pand. 57;=20 4 Car. & Payne, 216; S. C. 19 Engl. Com. Law R. 351; Barr. on the = Stat. 216,=20 note; Feme; Feme covert; Feminine; Male; Man; Sex; Women; Worthiest of=20 blood.

GENEALOGY. The summary history or table of a house or family, = showing=20 how the persons there named are connected together.

2. It is founded on the idea of a lineage or family. Persons = descended from=20 the common father constitute a family. Under the idea of degrees is = noted the=20 nearness or remoteness, of relationship, in which one person stands with = respect=20 to another. A series of several persons, descended from a common = progenitor, is=20 called a line. (q. v.) Children stand to each other in the relation = either of=20 full blood or half blood, according as they are descended from the same = parents,=20 or have only one parent in common. For illustrating descent and = relationship,=20 genealogical tables are constructed, the order of which depends on the = end in=20 view. In tables, the object of which is to show all the individuals = embraced in=20 a fanlily, it is usual to begin with the oldest progenitor, and to put = all the=20 persons of the male or female sex in descending, and then in collateral = lines.=20 Other tables exhibit the ancestors of a particular person in ascending = lines=20 both on the father's and mother's side. In this way 4, 8, 16, 32- = &c.=20 ancestors are exhibited, doubling at every degree. Some tables are = constructed=20 in the form of a tree, after the. model of canonical law, (arbor=20 consanguinitatis,) in which the progenitor is placed beneath, as if for = the root=20 or stem. Vide Branch; Line.

GENER. A son-in-law. Dig. 50, 16, 156.

GENERAL. This word has several meanings, namely: 1. A = principal=20 officer, particularly in the army. 2. Something opposed to special; as, = a=20 general verdict, the general issue, which expressions are used in=20 contradistinction to special verdict, special issue. 3. Principal, as = the=20 general post office. 4. Not select, as a general ship. (q. v.) 5. Not=20 particular, as a general custom. 6. Not limited, as general = jurisdiction. 7.=20 This word is sometimes annexed or prefixed to other words to express or = limit=20 the extent of their signification; as Attorney General, Solicitor = General, the=20 General Assembly, &c.

GENERAL ASSEMBLY. This name is given in some of the states to = the=20 senate and house of representatives, which compose the legislative = body.

GENERAL IMPARLANCE, pleading. One granted upon a prayer, in = which the=20 defendant reserves to himself no exceptions, and is always from one term = to=20 another. Gould on Pl. c. 2, =A717.

2. After such imparlance, the defendant cannot plead to the = jurisdiction nor=20 in abatement, but only to the action or merits. See Imparlance.

GENERAL ISSUE, pleading. A plea which traverses or denies at = once the=20 whole indictment or declaration, without offering any special matter, to = evade=20 it. It is called the general issue, because, by importing an absolute = and=20 general denial of what is alleged in the indictment or declaration, it = amounts=20 at once to an issue. 2 Bl. Com. 305.

2. The general issue in criminal cases, is, not guilty. In civil = cases, the=20 general issues are almost as various as the forms of action; in = assumpsit, the=20 general issue is non-assumpsit; in debt, nil debet; in detinue, non = detinet; in=20 trespass, non cul. or not guilty; in replevin, non cevit, &c.

3. Any matter going to show that a deed or contract, or other = instrument is=20 void, may be given in evidevce under the general issue; 10 Mass. 267, = 274; 14=20 Pick. 303, 305; such as usury. 2 Mass. 540; 12 Mass. 26; 15 Mass. 48, = 54. See 4=20 N. Hamp. R. 40; 2 Wend. 246; 6 Mass. 460; 10 Mass. 281. But a right to = give=20 evidence under the general issue, any matter which would avail under a = special=20 plea does not extend to matters in abatement. 9 Mass. 366: 14 Mass. 273; = Gould=20 on Pl. c. 4, pt. 1, =A79, et seq.; Special Issue.

GENERAL LAND OFFICE. One of the departments of government of = the=20 United St

ates. 2. It was established by the Act of April 25,1812, 2 Story's = Laws U. S.=20 1238; another act was passed March 24, 1824, 3 Story, 1938, which = authorized the=20 employment of additional officers. And it was reorganized by the = following act,=20 entitled "An act to reorganize the General Land Office," approved July = 4,=20 1836.

3. - =A71. Be it enacted, &c. That from and after the passage of = this act,=20 the executive duties now prescribed, or which may hereafter be = prescribed by=20 law, appertaining to the surveying and sale of the public lands of the = United=20 States, or in anywise respecting such public lands, and, also, such as = relate to=20 private claims of land, and the issuing of patents for all grants of = land under=20 the authority of the government of the United States, shall be subject = to the=20 supervision and control of the commissioner of the general land office, = under=20 the direction of the president of the United States.

4. - =A72. That there shall be appointed in said office, by the = president, by=20 and with the advice and consent of the senate, two subordinate officers, = one of=20 whom shall be called principal clerk of the public lands, and the other=20 principal clerk on private land claims, who shall perform such duties as = may be=20 assigned to them by the commissioners of the general land office; and in = case of=20 vacancy in the office of the commissioner of the general land office, or = of the=20 absence or sickness of the commissioner, the duties of said office shall = devolve=20 upon. and be performed, ad interim, by the principal clerk of the public = lands.

5. - =A73. That there shall be appointed by the president, by and = with the=20 advice and consent of the senate, an officer to be styled the principal = clerk of=20 the surveys, whose duty it shall be to direct and superintend the making = of=20 surveys, the returns thereof, and all matters relating thereto, which = are done=20 through the officers of the surveyor general; and he shall perform such = other=20 duties as may be assigned to him by the commissioner of thegeneral land = office.=20

6. - =A74. That there shall be appointed by the president, by and = with the=20 consent of the senate, a recorder of the general land office, whose duty = it=20 shall be, in pursuance of instructions from the commissioner, to certify = and=20 affix the seal of the general land office to all patents for public = lands, and=20 he shall attend to the correct engrossing and recording and transmission = of such=20 patents. He shall prepare alphabetical indexes of the names of = patentees, and of=20 persons entitled to patents and he shall. prepare such copies and=20 exemplifications of matters on file, or recorded in the general land = office, as=20 the commissioner may from time to time direct.

7.- =A75. That there shall be appointed by the president, by and with = the=20 advice and consent of the senate, an officer to be called the solicitor = of the=20 general land office, with an annual salary of two thousand dollars, = whose duty=20 it shall be to examine and present a report to the commissioner, of the = state of=20 facts in all cases referred by the commissioner to his attention which = shall=20 involve questions of law, or where the facts are in controversy between = the=20 agents of government and, individuals, or there are conflicting claims = of=20 parties before the department, with his opinion thereon; and, also, to = advise=20 the commissioner, when required thereto, on all questions growing out of = the=20 management of the public lands, or the title thereto, private land = claims,=20 Virginia military scrip, bounty lands, and preemption claims and to = render such=20 farther professional services in the business of the department as may = be=20 required, and shall be connected with the discharge of the duties = theroof.

8.- =A76. That it shall be lawful for the president of the United = States, by=20 and with the advice and consent of the senate, to appoint a secretary, = with a=20 salary of fifteen hundred dollars per annum, whose duty it shall be, = under the=20 direction of the president, to sign in his name, and for him, all = patents for=20 land sold or granted under the authority of the United States.

9. - =A77. That it shall be the duty of the commissioner, to cause to = be=20 prepared, and to certify, under the seal of the general land office, = such copies=20 of records, books, and papers on file in his office, as may be applied = for, to=20 be used in evidence in courts of justice.

10. - =A78. That whenever the office of recorder shall become vacant, = or in=20 case of the sickness or absence of the recorder, the duties of his = office shill=20 be performed, ad interim, by the principal clerk on private land = claims.

11. - =A79. That the receivers of the land offices shall make to the = secretary=20 of the treasury mouthly returns of the moneys received in their several = offices,=20 and pay over such money, pursuant to his instructions. And they shall = also make=20 to the commissioner of the general land office, like monthly returns, = and=20 transmit to him quarterly accounts current of the debits and credits of = their=20 several offices with the United States.

12. - =A710. That the commissioner of the general land office shall = be entitled=20 to receive an annual salary of three thousand dollars; the recorder of = the=20 general land office an annual salary of fifteen hundred dollars; the = principal=20 clerk of the surveys, an annual salary of eighteen hundred dollars; and = each of=20 the said principal clerks an annual salary of eighteen hundred dollars = from and:=20 after the date of their respective commissions; and that the said = commissioner=20 be authorized to employ, for the service of the general land office, one = clerk,=20 whose annual salary shall not exceed fifteen hundred dollars; four = clerks, whose=20 annual salary Shall not exceed fourteen hundred dollars each; sixteen = clerks,=20 whose annual salary shall not exceed thirteen hundred dollars each; = twenty=20 clerks, whose annual salary shall not exceed twelve hundred dollars = each; five=20 clerks, whose annual salary shall not exceed eleven hundred dollars = each;=20 thirty-five clerks, whose annual salary shall not exceed one thousand = dollars=20 each; one principal draughtsman, whose annual salary shall not exceed = fifteen=20 hundred dollars;, one assistant draughtsman, whose annual salary shall = not=20 exceed twelve hundred dollars; two messengers, whose annual salary shall = not=20 exceed seven hundred dollars each; three assistant messengers, whose = annual=20 salary shall not exceed three hundred and fifty dollars each and two = packers, to=20 make up packages of patents, blank forms, and other things necessary to = be=20 transmitted to the district land offices, at a salary of four hundred = and fifty=20 dollars each.

13. - =A711. That such provisions of the Act of the 25th of April, in = the year=20 one thousand eight hundred and twelve, entitled An act for the = establishment of=20 a general land office in the department of the treasury, and of all acts = amendatory thereof, as are inconsistent with the provisions of this act, = be, and=20 the same are hereby repealed.

14. - =A712. That from the first day of the month of October, until = the first=20 day of the month of April, in each and every ear, the general land = office and=20 all the bureaus and offices therein, as well as those in the departments = of the=20 treasury, war, navy, state, and general post-office, shall be open for = the=20 transaction of the public business at least eight hours in each and = every day,=20 except Sundays and the twenty-fifth day of December; and from the first = day of=20 April until the first day of October, in each year, Ill the aforesaid = offices=20 and bureaus shall be kept open for the transaction of the public = business at=20 least ten hours, in each and every day, except Sundays and the fourth = day of=20 July.

15. - =A713. That if any person shall apply to any register of any = land office=20 to enter any land whatever, and the said register shall knowingly and = falsely=20 inform the person so applying that the same has already been entered, = and refuse=20 to permit the person so applying to enter the same, such register shall = be=20 liable therefor, to the person so applying, for five dollars for each = acre of=20 land which the person so applying offered to enter, to be recovered by = action of=20 debt, in any court of record having jurisdiction of the amount.

16. - =A714. That all and every of the officers whose salaries are = hereinbefore=20 provided for, are hereby prohibited from directly or indirectly = purchasing, or=20 in any way becoming interested in the purchase, of, any of the public = land; and=20 in case of a violation of this section by such officer, and on proof = thereof=20 being made to the president of the United States, such officer, so = offending,=20 shall be, forthwith, removed from office.

GENERAL SHIP. One which is employed by the master or owners, = on a=20 particular voyage, and is hired by a number of persons, unconnected with = each=20 other, to convey their respective goods to the place of destination.

2. This contract, although usually made with the master, and not with = the=20 owners, is considered in law to be made with them also, and that both he = and=20 they are separately bound to the performance of it. Abbott on Ship. 112, = 215,=20 216.

GENERAL SPECIAL IMPARLANCE, pleading. One in which the = defendant=20 reserves to himself " all advantages and exceptions whatsoever." 2 Chit. = Pl.=20 408.

2. This kind of imparlance allows the defendant not only to plead in=20 abatement and to the action, but also to the jurisdiction of the court. = Gould on=20 Pl. c. 2, =A719. See Imparlance.

GENERAL TRAVERSE, pleading. One preceded by a general = inducement, and=20 denying, in general terms, all that is last before alleged on the = opposite side,=20 instead of pursuing the words of the allegations, which it denies. Gould = on Pl.=20 vii. 5, 6.

2. Of this sort of traverse, the replication de injuria sua propria, = absque=20 tali causa, in answer to a justification, is a familiar example. Bac. = Ab. Pleas,=20 H 1 Steph. Pl. 171; Gould, Pl. c. 7, =A75 Archb. Civ. Pl. 194. Vide = T?-averse;=20 Special Traverse.

GENS. A word used by the Romans to represent race and nation. = 1 Tho.=20 Co. Litt. 259, n. 13. In the French law, it is used to signify people or = nations, as Droit des Gens, the law of nations.

GENTLEMAN. In the English law, according to Sir Edward Coke, = is one=20 who bears a coat of armor. 2 Inst. 667. In the United States, this word = is=20 unknown to the law, but in many places it is applied, by courtesy, to = all men.=20 See Poth. Proc. Crim. sect. 1, App. =A73.

GENTLEWOMAN. This word is unknown to the law in the United = States, and=20 is but little used. In England. it was, formerly, a good addition of the = state=20 or degree of a woman. 2 Inst. 667.

GENUS. It denotes the number of beings, or objects, which = agree in=20 certain general properties, common to them all, so that genus is, in = fact, only=20 an abstract idea, expressed by some general name or term; or rather a = name or=20 term, to signify what is called au abstract idea. Thus, goods is the = generic=20 name, and includes, generally, all personal property; but this word may = be=20 restrained, particularly in bequests to such goods as are of the same = kind as=20 those previously enumerated. Vide 3 Ves. 311 11 Ves. 657; 1 Eq. Cas. Ab. = 201,=20 pl. 14; 2 Ves. sen. 278, 280; Dig. 50, 17, 80; Id. 12, 1, 2, 3.

GEORGIA. The name of one of the original states of the United = States=20 of America. George the Second granted a charter to Lord Percival, and = twenty=20 others, for the government of the province of Georgia. It was governed = under=20 this charter till the year 1751, when it was surrendered to the crown. = From that=20 period to the time of the American revolution, the colony was governed = as other=20 royal provinces.

2. The constitution of the state, as revised, amended, and compiled = by the=20 convention of the state, was adopted at Louisville, on the 30th day of = May,=20 1798. It directs, art. 1, s. 1, that the legislative, executive, and = judiciary=20 departments of government shall be distinct, and each department shall = be=20 confided to a separate body of magistracy.

3.-1. The legislative power is vested in two separate and distinct = branches,=20 to wit, a senate and house of representatives, styled the General = Assembly."=20 1st. The senate is elected annually, and is composed of one member from = each=20 county, chosen by the electors thereof. The senate elect, by ballot, a = president=20 out of their own body. 2d. The house of representatives is composed of = members=20 from all the counties, according to their respective numbers of free = white=20 persons, and including three-fifths of all the people of color. The = enumeration=20 is made once in seven years, and any county containing three thousand = persons,=20 according to the foregoing plan of enumeration, is entitled to two = members;=20 seven thousand to three members; and twelve thousand to four members; = but each=20 county shall have at least one, and not more than four members. The=20 representatives are chosen annually. The house of representatives choose = their=20 speaker and other officers.

4. - 2. The executive power is vested in a governor, elected by the = general=20 assembly, who holds his office for the term of two years. In case of = vacancy in=20 his office, the president of the senate acts as governor, until the = disability=20 is removed, or until the next meeting of the general assembly.

5. - 3. The judicial powers of the state are, by the 3d article of = the=20 constitution, distributed as follows:

=A71. The judicial powers of this state shall be vested in a superior = court,=20 and in such inferior jurisdictions as the legislature shall, from time = to time,=20 ordain and establish. The judges of the superior courts shall be elected = for the=20 term of three years, removable by the governor, on the address of = two-thirds of=20 both houses for that purpose, or by impeachment and conviction thereon. = The=20 superior court shall have exclusive and final jurisdiction in all = criminal cases=20 which shall be tried in the county wherein the crime was committed; and = in all=20 cases respecting titles to land, which shall be tried in the county = where the=20 land lies; and shall have power to correct errors in inferior = judicatories by=20 writs of certiorari, as well as errors in the superior courts, and to = order new=20 trials on proper and legal grounds Provided, That such new trials shall = be=20 determined, and such errors corrected, in the superior court of the = county in=20 which such action originated. And the said court shall also have = appellative=20 jurisdiction in such other cases as the legislature may by law direct, = which=20 shall in no case tend to remove the cause from the county in which the = action=20 originated; and the judges thereof, in all cases of application for new = trials,=20 or correction of error, shall enter their opinions on the minutes of the = court.=20 The inferior courts shall have cognizance of all civil cases, which = shall be=20 tried in the county wherein the defendant resides, except in cases of = joint=20 obligors, residing in different counties, which may be commenced in = either=20 county; and a copy of the petition and process served on the party or = parties=20 residing out of the county in which the suit may be commenced, shall be = deemed=20 sufficient service, under such rules and regulations as the legislature = may=20 direct; but the legislature may, by law, to which two-thirds of each = branch=20 shall concur, give concurrent jurisdiction to the superior courts. The = superior=20 and inferior courts shall sit in each county twice in every year, at = such stated=20 times as the legislature shall appoint.

6. - =A72. The judges shall have salaries adequate to their services, = established by law, which shall not be increased or diminished during = their=20 continuance in office; but shall not receive any other perquisites or = emoluments=20 whatever, from parties or others, on account of any duty required of = them.

7. - =A73. There shall be a state's attorney and solicitors appointed = by the=20 legislature, and commissioned by the governor, who shall hold their = offices for=20 the term of three years, unless removed by sentence on impeachment, or = by the=20 governor, on the address of each branch of the general assembly. They = shall have=20 salaries adequate to their services, established by law, which shall not = be=20 increased or diminished during their continuance in office.

8. - =A74. Justices of the inferior courts shall be appointed by the = general=20 assembly, and be commissioned by the governor, and shall hold their = commissions=20 during good behaviour, or as long a they respectively reside in the = county for=20 which they shall be appointed, unless revoved by sentence on = impeachment, or by=20 the governor, on the address of two-thirds of each branch of the general = assembly. They may be compensated for their services in such manner as = the=20 legislature may by law direct.

9. - =A75. The justices of the peace shall be nominated by the = inferior courts=20 of the several counties, and commissioned by the governor; and there = shall be=20 two justices of the peace in each captain's district, either or both of = whom=20 shall have power to try all cases of a civil nature within their = district, where=20 the debt or litigated demand does not exceed thirty dollars, in such = manner as=20 the legislature may by law direct. They shall hold their appointments = during=20 good behaviour, or until they shall be removed by conviction, on = indictment in=20 the superior court, for malpractice in office, or for any felonious or = infamous=20 crime, or by the governor, on the address of two-thirds of each branch = of the=20 legislature.

10. - =A76. The powers of a court of ordinary or register of = probates, shall,=20 be invested in the inferior courts of each county; from whose decision = there may=20 be an appeal to the superior court, under such restrictions and = regulations as=20 the general assembly may by law direct; but the inferior court shall = have power=20 to vest the care of the records, and other proceedings therein, in the = clerk, or=20 such other person as they may appoint; and any one or more justices of = the said=20 court, with such clerk or other person, may issue citations and grant = temporary=20 letters in time of vacation, to hold until the next meeting of the said = court;=20 and such clerk or other person may grant marriage licenses.

11. - =A77. The judges of the superior courts, or any one of them, = shall have=20 power to issue writs of mandamus. prohibi tion, scire facias, and all = other=20 writ's which may be necessary for carrying their powers fully into = effect.

GERMAN, relations, germanus. Whole or entire, as respects = genealogy or=20 descent; thus, "brother-german," denotes one who is brother both by the = father=20 and mother's side cousins-germane" those in the first and nearest = degree, i. e.,=20 children of brothers or sisters. Tech. Dict.; 4 M. & C. 56.

GERONTOCOMI, civil law.. Officers appointed to manage = hospitals for=20 poor old persons. Clef des Lois Rom. mot Administrateurs.

GESTATION, med. jur. The time during which a female, who has=20 conceived, carries the embryo or foetus in her uterus. By the common = consent of=20 mankind, the term of gestation is considered to be ten lunar months, or = forty=20 weeks, equal to nine calendar months and a week. This period has been = adopted,=20 because general observation, when it could be correctly made, has proved = its=20 correctness. Cyclop. of Pract. Med. vol. 4, p. 87, art. Succession of=20 inheritance. But this may vary one, two, or three weeks. Co. Litt. 123 = b, Harg.=20 & Butler's, note 190*; Ryan's Med. Jurisp. 121; Coop. Med. Jur: 18; = Civ.=20 Code of Louis. art. 203-211; 1 Beck's Med. Jur. 478. See Pregnancy.

GIFT, conveyancing. A voluntary conveyance; that is, a = conveyance not=20 founded on the consideration of money or blood. The word denotes rather = the=20 motive of the conveyance; so that a feoffment or grant may be called a = gift when=20 gratuitous. A gift is of the same nature as a settlement; neither = denotes a form=20 of assurance, but the nature of the transaction. Watk. Prin. 199, by = Preston.=20 The operative words of this conveyance are do or dedi. The maker of this = instrument is called the donor, and he to whom it is made, the donee. 2 = B. Com.=20 316 Litt. 69; Touchs. ch. 11.

GIFT, contracts. The act by which the owner of a thing, = voluntarily=20 transfers the title and possession of the same, from himself to another = person=20 who accepts it, without any consideration. It differs from a grant, = sale, or=20 barter in this, that in each of these cases there must be a = consideration, and a=20 gift, as the definitionstates, must be without consideration.

2. The manner of making the gift may be in writing, or verbally, and, = as far=20 as personal chattels are concerned, they are equally binding. Perk. = =A757; 2 Bl.=20 Com. 441. But real estate must be transferred by deed.

3. There must be a transfer made with an intention of passing the = title, and=20 delivering the possession of the thing given, and it must be accepted by = the=20 donee. 1 Madd. Ch. R. 176, Am. ed. p. 104; sed vide 2 Barn. & Ald. = 551;=20 Noy's Rep. 67.

4. The transfer must be without consideration, for if there be the = least=20 consideration, it will change the contract into a sale or barter, if = possession=20 be delivered; or if not, into an executory contract. 2 Bl. Com. 440.

5. Gifts are divided into gifts inter vivos, and gifts causa mortis; = and=20 also' into simple or proper gifts; that is, such as are to take = immediate=20 effect, without any condition; and qualified or improper gifts, or such = as=20 derive their force upon the happening, of some condition or contingency; = as, for=20 example, a donatio causa mortis. Vide Donatio causa mortis; Gifts inter = vivos;=20 and Vin. Ab. h. t.; Com. Dig. Biens, D 2, and Grant; Bac. Ab. Grant; 14 = Vin. Ab.=20 19 3 M. & S. 7 5 Taunt. 212 1 Miles, R. 109.

GIFT INTER Vivos. A gift made from one or more persons, = without any=20 prospect of immediate death, to one or more others.

2. These gifts are so called to distinguish them from gifts = causa-mortis,=20 (vide Donatio causa mortise,) from which they differ essentially. 1. A = gift=20 inter vivos, when completed by delivery, passes the title to the thing = so that=20 it cannot be recovered back by the giver; the gift causa mortis is = always given=20 upon the implied condition that the giver may, at any time during his = life,=20 revoke it. 7 Taunt. 231; 3 Binn. 366. 2. A gift inter vivos may be made = by the=20 giver at any time; the donatio causa mortis must be made by the donor = while in=20 peril of death. In both cases there must be a delivery. 2 Kent's Com. = 354; 1=20 Beav. R. 605; 1 Miles, R. 109.

GIFTOMAN, Swedish law. He who has a right to dispose of a = woman in=20 marriage.

2. This right is vested in the father, if living; if dead, in the = mother.=20 They may nominate a person in their place; but for want of such = nomination, the=20 brothers german; and for want of them, the consanguine brothers; and in = default=20 of the latter, uterine brothers have the right, but they are bound to = consult=20 the paternal or maternal grandfather. Swed- Code, tit. of Marriage.

GILL. A measure of capacity, equal to one-fourth of a pint. = Vide=20 Measure.

GIRANTEM, mer. law. An Italian word,, which signifies the = drawer. It=20 is derived from, girare, to draw, in the same manner as the English verb = to=20 murder, is transformed into murdrare in our old indictments. Hall, Mar. = Loans,=20 183, n.

GIRTH., A girth or yard is a measure of length. The word is of = Saxon=20 origin, taken from the circumference of the human body. Girth is = contracted from=20 girdeth, and signifies as much as girdle. See Ell.

GIST, pleading. Gist of the action is the essential ground or = object=20 of it, in point of law, and without which there is no cause of action. = Gould on=20 Pl. c. 4, =A712. But it is observable that the substance or gist of the = action is=20 not always the principal cause of the plaintiff Is complaint in point of = fact,=20 nor that on which he recovers all or the greatest part of his = damages.

2. It frequently bappens that upon that part of his declaration which = contains the substance or gist of the, action, he only recovers nominal = damages,=20 and he gets his principal satisfaction on account of matter altogether=20 collateral thereto. A familiar instance of this is the case where a = father sues=20 the defendant for a trespass for the seduction of his daughter. The gist = of the=20 action is the trespass, and the loss of his daughter's services, but the = collateral cause is the injury done to his feelings, for which the = principal=20 damages are given. In stating the substance or gist of the action, every = thing=20 must be averred which is necessary to be proved at the trial. Vide 1 = Vin. Ab.=20 598; 2 Phil. Ev. 1, note. See Bac. Abr. Pleas, B; Doct. P. 85. See = Damages,=20 special, in pleading; 1 Vin. At. 598; 2 Phil. Ev. 1, n.

GIVER, contracts. He who makes a gift. (q. v.) By his gift, = the giver=20 always impliedly agrees with the donee that he will not revoke the = gift.

GIVING IN PAYMENT. This term is used in Louisiana; it = signifies that a=20 debtor, instead of paying a debt he owes in money, satisfies his = creditor by=20 giving in payment a movable or immovable. Vide Dation en paiement.

GIVING TIME, contracts. Any agreement by which a creditor = gives his=20 debtor a delay or time in paying his debt, beyond that contained in the = original=20 agreement. When other persons are responsible to him, either as drawer,=20 endorser, or surety, if such time be given without the consent of the = latter, it=20 discharges them from responsibility to him. 1 Gall. Rep. 32; 7 John. R. = 332; 10=20 John. Rep. 180; Id. 587 Kirby, R. 397 3 Binn. R. 523; 2 John. Ch. R. = 554; 3=20 Desaus. Ch. Rep. 604; 2 Desaus. Ch. R. 230, 389 2 Ves. jr. 504; 6 Ves. = jr. 805 3=20 Atk. 91; 2 Bos. & Pull,. 62; 4 M. & S. 232; Bac. Ab. = Obligations, D; 6.=20 Dow. P. C. 238; 3 Meriv. R. 272; 5 Barn., & A. 187. Vide 1 Leigh's N = . P.=20 31; 1 B. & P. 652; 2 B. & P. 61; 3 B. & P. 363; 8 East, R. = 570; 3=20 Price, R. 521; 2 Campb. R. 178. 12 East,.R. 38; 5 Taunt. R. 319; S. C. 1 = E. C.=20 L. R. 119; Rosc. Civ. Ev. 171; 8 Watts, R. 448; 4 Penn. St. R. 73; 10 = Paige, 76;=20 and the article Forbearance.

2. But more delay in suing, without fraud or any agreement with the=20 principal, is not such giving time as will discharge the surety. 1 = Gallis. 32; 2=20 Pick. 581 3 Blackf. 93 7 John. 332. See Surety.

GLADIUS. In our old Latin authors, and in the Norman laws, = this word=20 was used to signify supreme jurisdiction, jus gladii.

GLEANING. The act of gathering such grain in a field where it = grew, as=20 may, have been left by the reapers after the sheaves were gathered.

2. There is a custom in England, it is said, by which the poor are = allowed to=20 enter and glean upon another's land after harvest without being guilty = of a=20 trespass. 3 Bl. Com. 212 . But it has been decided that the community = are not=20 entitled to claim this privilege as a right. 1 Hen. Bl. 51. In the = United=20 States, it is believed, no such right exists. This right seems to have = existed=20 in some parts of France. Merl. Rep. mot Glanage. As to whether gleaning = would or=20 would not amount to larceny, vide Woodf. Landl. & Ten. 242; 2 Russ. = on Cr.=20 99. The Jewish law may be found in the 19th chapter of Leviticus, verses = 9 and=20 10. See Ruth, ii. 2, 3; Isaiah, xvii. 6.

GLEBE, eccl. law. The land which belongs to a church. It is = the dowry=20 of the church. Gleba est terra qua consistit dos ecclesiae. Lind. 254; 9 = Cranch,=20 Rep. 329. In the civil law it signified the soil of an inheritance; = there were=20 serfs of the glebe, called gleboe addicti. Code, 11, 47, 7 et 21; Nov. = 54, c.=20 1.

GLOSS. Interpretation, comment, explanation, or remark, = intended to=20 illustrate the text of an author.

GLOSSATOR. A commentator or annotator of the Roman law. One of = the=20 authors of the Gloss.

GLOUCESTER, STATUTE OF. An English statute, passed 6 Edw. I., = A. D.,=20 1278; so called, because it was passed at Gloucester. There were other = statutes=20 made at Gloucester, which do not bear this name. See stat. 2 Rich. = II.

GO WITHOUT DAY. These words have a technical sense. When a = party is=20 dismissed the court, he is said to go without day; that is, there is no = day=20 appointed for him to appear again.

GOD. From the Saxon god, good. The source of all good; the = supreme=20 being. 1. Every man is presumed to believe in God, and he who opposes a = witness=20 on the ground of his unbelief is bound to prove it. 3 Bouv. Inst. u. = 3180.

2. Blasphemy against the Almighty, by denying his being or = providence, was an=20 offence punishable at common law by fine and imprisonment, or other = infamous=20 corporal punishment. 4 Bl. Corn. 60; 1 East, P. C. 3; 1 Russ. on Crimes, = 217.=20 This offence his been enlarged in Pennsylvania, and perhaps most of the = states,=20 by statutory provision. Vide Christianity; Blasphemy; 11 Serg. & = Rawle,=20 394.

3. By article 1, of amendments to the Constitution of the United = States, it=20 is provided that "Congress shall make no laws respecting an = establishment of=20 religion, or prohibiting the free exercise thereof." In the United = States,=20 therefore, every one is allowed to worship God according to the dictates = of his=20 own conscience.

GOD AND MY COUNTRY. When a prisoner is arraigned, he is asked, = How=20 will you be tried? he answers, "By God and my country." This practice = arose when=20 the prisoner had the right to choose the mode of trial, namely, by = ordeal or by=20 jury, and then he elected by God or by his country, that is, by jury. It = is=20 probable that originally it was "By God or my country" for the question = asked=20 supposes an option in the prisoner, and the answer is meant to assert = his=20 innocence by declining neither sort of trial. 1 Chit. Cr. Law, 416; = Barr. on the=20 Stat. 73, note.

GOD B0TE, eccl. law. An ecclesiastical or church fine imposed = upon an.=20 offender for crimes and offences committed against God.

GOING WITNESS. One who is going out of the jurisdiction of the = court,=20 although only into a state or country under the general sovereignty; as, = for=20 example, if he is going from one to another of the United States; or, in = Great=20 Britain, from England to Scotland. 2 Dick. 454.

GOLD. A metal used in making money, or coin. It is pure when = the metal=20 is unmixed with any other. Standard gold, is gold mixed with some other = metal,=20 called alloy. Vide Money.

GOOD BEHAVIOUR. Conduct authorized by law. Surety of good = behaviour=20 may be demanded from any person who is justly suspected, upon sufficient = grounds, of intending to commit a crime or misdemeanor. Surety. for good = behaviour is somewhat similar to surety of the peace, but the = recognizance is=20 more easily forfeited, and it ought to be demanded with greater caution. = 1 Binn.=20 98, n.; 2 Yeates, 437; 14 Vin. Ab. 21; Dane's Ab. Index, h. t. As to = what is a=20 breach of good behaviour, see 2 Mart. N. S. 683; Hawk. b. 1, c. 61, s. 6 = Chit.=20 Pr. 676. Vide Surdy of the peace.

GOOD AND LAWFUL MEN, probi et legales homines. The law = requires that=20 those who serve on juries shall be good. and lawful men; by which is = understood=20 those qualified to serve on juries; that is, that they be of full age, = citizens,=20 not infamous nor non compos mentis, and they must be res ident in the = county=20 where the venue is laid. Bac. Ab. Juries, A; Cro. Eliz. 654; 3 Inst. 30; = 2=20 Rolle's R. 82; Cam. & Norw. 38.

GOOD CONSIDERATION, contracts. A good consideration is one = which flows=20 from kindred or natural love and affection alone, and is not of a=20 pecuniary.nature. Vin. Ab. Consideration, B; 1 Bouv. Inst. n. 613. Vide=20 Consideration.

GOOD WILL. By this term is meant the benefit which arises from = the=20 establishment of particular trades or occupations. Mr. Justice Story = describes a=20 good will to be the advantage of benefit which is acquired by an = establishment,=20 beyond the mere value of the capital, stocks, funds, or property = employed=20 therein, in consequence of the general public patronage and = encouragement, which=20 it receives from constant or habitual customers, on account of its local = position, or common celebrity, or reputation for skill or affluence, or=20 punctuality, or from other accidental circumstances or necessities, or = even from=20 ancient partialities, or prejudices. Story, Partn. =A799; see 17 Ves. = 336; 1=20 Hoffm. R. 68; 16 Am. Jur. 87.

2. As between partners, it has been held that the good will of a = partnership=20 trade survives; 6 Ves. 539; but this appears to be doubtful; 16 Ves. = 227; and a=20 distinction, in this respect, has been suggested between commercial and=20 professional partnerships; the advantages of established connexions in = the=20 latter being held to survive, unless the benefit is excluded by positive = stipulation. 3 Madd. 79. As to the sale, of the good-will of a trade or=20 business, see. 3 Meriv. 452; 1 Jac. & Walk. 689; 2 Swanst. 332; 1 = Ves. &=20 Beames, 505; 17 Ves. 346; 2 Madd. 220; Gow on Partn. 428; Collyer on = Partn. 172,=20 note; 2 B. & Adolph. 341; 4 Id. 592, 596; 1 Rose, 123; 5 Russ. 29; 2 = Watts,=20 111; 1 Chit. Pr. 868; 1 Sim. & Stu. 74; 2 Russ. R. 170; 1 Jac. & = W. 380;=20 1 Russ. R. 376; 1 P. & W. 184; 2 Mad. R. 198; l T. R. 118. Vide 5 = Bos. &=20 Pull. 67; 1 Bro. C. C. 160, as to the effect of a bankrupt's assignment = on a=20 good-will; and 16 Amer. Jur. 87.

GOODS, property. For some purposes this term includes money, = valuable=20 securities, and other mere personal effects. The term. goods and = chattels,=20 includes not only personal property in possession, but also choses in = action. 12=20 Co. 1; 1 Atk. 182. The term chattels is more comprehensive than that of = goods,=20 and will include all animate as well as inanimate property, and also a = chattel=20 real, as a lease for years of house or land. Co. Litt. 118; 1 Russ. Rep. = 376.=20 The word goods simply and without qualification, will pass the whole = personal=20 estate when used in a will, including even stocks in the funds. But in = general=20 it will be limited by the context of the will. Vide 2 Supp. to Ves. jr. = 289; 1=20 Chit. Pr. 89, 90; 1. Ves. jr. 63; Hamm. on Parties, 182; 3 Ves. 212; 1 = Yeates,=20 101; 2 Dall. 142; Ayl. Pand. 296; Wesk. Ins. 260; 1 Rop. on Leg. 189; 1 = Bro. C.=20 C. 128; Sugd. Vend. 493, 497; and the articles Biens; Chattels; = Furniture. 2.=20 Goods are said to be of different kinds, as adventitious, such as are = given or=20 arise otherwise than by succession; dotal goods, or those which accrue = from a=20 dowry, or marriage portion; vacant goods, those which are abandoned or = left at=20 large.

GOODS SOLD AND DELIVERED. This phrase is frequently used in = actions of=20 assumpsit, and the sale and delivery of goods are the foundation of the = action.=20 When a plaintiff declares for goods sold and delivered, he is required = to prove,=20 first, the contract of sale; secondly, the delivery of the goods, or = such=20 disposition of them as will be equivalent to it; and, thirdly, their = value. 11 .=20 Shepl. 505. These will be separately considered.

2. - 1. The contract of sale may be express, as where the purchaser = actually=20 bought the goods on credit, and promised to pay for them at a future = time; or=20 implied, where from his acts the defendant manifested an intention to = buy them;=20 as, for example, when one takes goods by virtue of a sale made by a = person who=20 has no authority to sell, and the owner afterwards affirms the contract, = he may=20 maintain an action for goods sold and delivered. 12 Pick. 120. Again, = ifthe=20 goods come, to the hands of the defendant tortiously, and are converted = by him=20 to his own use, the plaintiff may waive the tort, and recover as for = goods sold=20 and delivered. 3 N. H. Rep. 384; 1 Miss. R. 430, 643; 3 Watts, 277; 5 = Pick. 285;=20 4 Binn. 374; 2 Gill & John. 326; 3 Dana, 552; 5 Greenl. 323. 3. - 2. = The=20 delivery must be made in accordance with the terms of the sale, for if = there has=20 not been such delivery no action can be maintained. 2 Ired. R. 12; 15 = Pick. 171;=20 3 John. 534.

4.- 3. The plaintiff must prove the value of the goods; where there = is an=20 express agreement as to their value, be established by evidence, but = where there=20 is no such express agreement, the value of the goods at the time of sale = must be=20 proved. Coxe, 261. And the purchaser of goods cannot defend, against an = action=20 for the purchase money, by showing that the property was of no value. 8 = Port.=20 133.

5. To support an action for goods sold and delivered, it is = indispensable=20 that the goods should have been sold for money, and that the credit on = which=20 they were sold should have expired. But where the goods have been sold = on a=20 credit to be paid for by giving a note or bill, and the purchaser does = not give=20 it according to contract, although the seller cannot recover in = assumpsit for=20 goods sold and delivered till the credit has expired, yet he may proceed = immediately for a breach of the agreement. 21 Wend. 175.

6. When goods have been sold to be paid for partly in money, and = partly in=20 goods to be delivered to the vendor, the plaintiff must declare = specially, and=20 he cannot recover on the common count for goods sold and delivered. 1 = Chit. Pl.=20 339; 1 Leigh's N. P. 88; 1 H. Bl. 287; Holt, 179.

GOUT, med. jur. contracts. An inflammation of the fibrous and=20 ligamentous parts of the joints.

2. In cases of insurance on lives, when there is warranty of health, = it seems=20 that a man subject to the gout, is a life capable of being, insured, if = he has=20 no sickness at the time to make it an unequal contract. 2 Park, Ins. = 583.

GOVERNMENT, natural and political law. The manner in which = sovereignty=20 is exercised in each state.

2. There are three simple forms of government, the democratic, the=20 aristocratic, and monarchical. But these three simple forms may be = varied to=20 infinity by the mixture and divisions of their different powers. = Sometimes by=20 the word government is understood the body of men, or the individual in = the=20 state, to whom is entrusted the executive power. It is taken in this = sense when=20 the government is spoken of in opposition to other bodies in the = state.

3. Governments are also divided into monarchical and republican; = among the=20 monarchical states may be classed empires, kingdoms, and others; in = these the=20 sovereignty resides in, a single individual. There are some monarchical = states=20 under the name of duchies, counties, and the like. Republican states are = those=20 where the sovereignty is in several persons. These are subdivided into=20 aristocracies, where the power is exercised by a few persons of the = first rank=20 in the state; and democracies, which are those governments where the = common=20 people may exercise the highest powers. 1 Bouv. Inst. n. 20. See = Aristocracy;=20 Democracy; Despotism; Monarchy; Theocracy.

4. It should be remembered, however, that governments, for the most = part,=20 have not been framed on models. Their parts and their powers grew out of = occasional acts, prompted by some urgent expediency, or some private = interest,=20 which, in the course of time, coalesced and hardened into usages. These = usages=20 became the object of respect and the guide of conduct long before they = were=20 embodied in written laws. This subject is philosophically treated by Sir = James=20 McIntosh, in his History of England. See vol. 1, p. 71, et seq.

GOVERNOR. The title of the executive magistrate in each state = and=20 territory of the United States. Under the names of the particular = states, the=20 reader will find some of the duties of the governor of such state.

GRACE. That which a person is not entitled to by law, but = which is=20 extended to him as a favor; a pardon, for example, is an act of grace. = There=20 are-certain days allowed to a payer of a promissory note or bill of = exchange,=20 beyond the time which appears on its face, which are called days of = grace. (q.=20 v.)

GRADUS. This is a Latin word, literally signifying a step;=20 figuratively it is used to designate a person in the ascending or = descending=20 line, in genealogy; a degree.

GRAFFER. This word is a corruption of the French word = greffier, a=20 clerk, or prothonotary. It signifies a notary or scrivener; vide stat. 5 = Hen.=20 VII 1. c. 1.

GRAFT. A figurative term in chancery practice, to designate = the right=20 of a mortgagee in premises, to which the mortgagor at the time of making = the=20 mortgage had an imperfect title, but who afterwards obtained a good = title. In=20 this case the new mortgage is considered a graft into the old stock, = and, as=20 arising in consideration of the former title. 1 Ball & Beat. 46; Id. = 40; Id.=20 57; 1 Pow. on Mortg. 190. See 9 Mass. 34. The same principle has = obtained by=20 legislative enactment in Louisiana. If a person contracting an = obligation=20 towards another, says the Civil Code, art. 2371, grants a mortgage on = property=20 of which he is not then the owner, this mortgage shall be valid, if the = debtor=20 should ever acquire the ownership of, the property, by whatever = right.

GRAIN, weight. The twenty-fourth part of a pennyweight.

2. For scientific purposes the grain only is used, and sets of = weights are=20 constructed in decimal progression, from 10,000 grains downward to one = hundredth=20 of a grain.

GRAIN, corn. It signifies wheat, rye, barley, or other corn = sown in=20 the ground In Pennsylvania, a tenant for a certain term is entitled to = the=20 way-going crop. 5 inn. 289, 258; 2 Binn. 487; 2 Serg. & Rawle, = 14.

GRAINAGE, Eng. law. The name of an ancient duty collected in = London,=20 consisting of one-twentieth part of the salt imported into that = city.

GRAMME. A French weight. The gramme is the weight of a cubic=20 centimetre of distilled water, at the temperature of zero. It is equal = to=20 15.4441 grains troy, or 5.6481 drachms avoirdupois. Vide. Measure.

GRAND. An epithet frequently used to denote that the thing. to = which=20 it is joined is of more importance and dignity, than other things of the = same=20 name; as, grand assize, a writ in a real action to determine the right = of=20 property in land; grand cape, a writ used in England, on a plea of land, = when=20 the tenant makes default in appearance at the day given for the king to = take the=20 land into his hands; grand days, among the English lawyers, are those = days in=20 term which are solemnly kept in the inns of court and chancery, namely,=20 Candlemas day, in Hilary term; Ascension day, in Easter term; and All = Saint's=20 day, in Michaelmas term; which days are dies non juridici. Grand = distress is the=20 name of a writ so called because of its extent, namely, to all. the = goods and=20 chattels of the party distrained within the county; this writ is = believed to be=20 peculiar to England. Grand Jury. (q. v.) Grand serjeantry, the name of = an=20 ancient English military tenure.

GRAND BILL OF SALE, Eng. law. The name of an instrument used = for the=20 transfer of a ship, while she is at sea; it differs from a common bill = of sale.=20 (q. v.) See 7 Mart. Lo. R. 318; 1 Harr. Cond. Lo. R. 567.

GRAND COUTUMIER. Two collections of laws bore this title. The = one,=20 also called the Coutumier of France, is a collection of the customs, = usages, and=20 forms of practice, which had been used from time immemorial in France: = the=20 other, called the Coutumier de Normandie, which indeed made a part of = the=20 former, with some alterations, was composed about the fourteenth of = Henry II.,=20 in 1229, and is a collection of the Norman laws not as they stood at the = Conquest of England, by William the Conqueror, but some time afterwards, = and=20 contains many provisions, probably borrowed from the old:English or = Saxon laws.=20 Hale's Hist. C. L. c. 6.

GRAND JURY, practice. A body of men, consisting of not less = than=20 twelve nor more than twenty-four, respectively returned by the sheriff = of every=20 county to every session of the peace, oyer and terminer and general gaol = delivery, to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. = L. 310,=20 1.

2. There is just reason to believe that this institution existed = among the=20 Saxons, Crabb's C. L. 35. By the constitutions of Clarendon, enacted 10 = H. II.=20 A. D. 1164, it is provided, that "if such men were suspected, whom none = wished=20 or dared to accuse, the sheriff, being thereto required by the bishop, = should=20 swear twelve men of the neighborhood, or village, to declare the truth"=20 respecting such supposed crime; the jurors being summoned as witnesses = or=20 accusers, rather than judges. If this institution did not exist before, = it seems=20 to be pretty certain that this statute established grand juries, or = recognized=20 them, if they existed before.

3. A view of the important duties of grand juries will be taken, by=20 considering, 1. The organization of the grand jury. 2. The extent of its = jurisdiction. 3. The mode of doing business. 4. The evidence to be = received. 5.=20 Their duty to make presentments. 6. The secrecy to be observed by the = grand=20 jury.

4. - 1. Of the organization of the grand jury. The law requires that=20 twenty-four citizens shall be summoned to attend on the grand jury; but = in=20 practice, not more than twenty-three are sworn, because of the = inconvenience=20 which else might arise, of having twelve, who are sufficient to find a = true=20 bill, opposed to twelve others who might be against it. 6 Adolph. & = Ell.=20 236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all = who=20 present themselves are sworn, as it scarcely ever happens that all who = are=20 summoned are in attendance. The grand jury cannot consist of less than = twelve,=20 and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7 Sm. = &=20 Marsh. 58. Being called into the jurybox, they are usually permitted to = select a=20 foreman whom the court appoints, but the court may exercise the right to = nominate one for them. The foreman then takes the following oath or = affirmation,=20 namely: "You A B, as foreman of this inquest for the body of the ______ = of=20 _________, do swear, (or affirm) that you will diligently inquire, and = true=20 presentments make, of all such articles, matters and things as shall be = given=20 you in charge, or otherwise come to your knowledge touching the present = service;=20 the commonwealth's counsel, your fellows and yhour own, you shall keep = secret;=20 you shall present no one for envy, hatred or malice; nor shall you leave = any one=20 unpresented for fear, favor, affection, hope of reward or gain; but = shall=20 present all things truly, as they come to your knowledge, according to = the best=20 of your understanding, (so help you God.") It will be perceived that = this oath=20 contains the substance of the duties of the grand jury. The foreman = having been=20 sworn or affirmed, the other grand jurors are sworn or affirmed = according to=20 this formula: "You 'and each of you do swear (or affirm) that the same = oath (or=20 affirmation) which your foreman has taken on his part, you and every one = of you=20 shall well and truly observe on your part." Being so sworn or affirmed, = and=20 having received the charge of the court, the grand jury are organized, = and may=20 proceed to the room provided for them to transact the business which may = be laid=20 before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury constitute = a=20 regular body until discharged by the court, or by operation of law, as = where=20 they cannot continue by virtue of an act of assembly beyond a certain = day. But=20 although they have been formally discharged by the court, if they have = not=20 separated, they may be called back, and fresh bills submitted to them; 9 = C.=20 & P. 43; S. C. 38 E. C. L. R. 2 8.

5. - 2. The extent of the grand jury's jurisdiction. Their = jurisdiction is=20 coextensive with that of the court for which they inquire; both as to = the=20 offences triable there, and the territory over which such court has=20 jurisdiction.

6. - 3. The mode of doing business. The foreman acts as president, = and the=20 jury usually appoint one of their number to perform the duties of = secretary. No=20 records are to be kept of the acts of the grand jury, except for their = own use,=20 because, as will be seen hereafter, their proceedings are to be secret. = Being=20 thus prepared to enter upon their duties, the grand jury are supplied = with bills=20 of indictment by the attorney-general or other officer, representing the = state=20 or commonwealth against offenders. On these bills are endorsed the names = of the=20 witnesses by whose testimony they are supported. The witnesses are in = attendance=20 in another room, and must be called when wanted. Before they are = examined as to=20 their knowledge of the matters mentioned in the indictment, care must be = taken=20 that they have been sworn or affirmed. For the sake of convenience, they = are=20 generally sworn or affirmed in open court before they are sent to be = examined,=20 and when so qualified, a mark to that effect is made opposite their = names.

7. In order to save time, the best practice is to find a true bill, = as soon=20 as the jury are satisfied that the defendant ought to be put upon his = trial. It=20 is a waste of time to examine any other witness after they have arrived = at that=20 conclusion. Twelve at least must agree, in order to find a true bill; = but it is=20 not required that they should be unanimous. Unless that number consent, = the bill=20 must be ignored. When a defendant is to be put upon his trial, the = foreman must=20 write on the back of the indictment "a true bill," sign his name as = foreman, and=20 date the time of finding. On the. contrary, where there is not = sufficient=20 evidence to authorize the finding of the bill, the jury return that they = are=20 ignorant whether the person accused committed the offence charged in the = bill,=20 which is expressed by the foreman endorsing on the bill "ignoramus," = signing his=20 name as before, and dating the time.

8. - 4. Of the evidence to be received. In order to, ascertain the = facts=20 which the jury have not themselves witnessed, they must depend upon the=20 statement of those who know them, and who will testify to them. When the = witness, from his position and ability, has been in a condition to know = the=20 facts about which he testifies, he is deserving of implicit confidence; = if, with=20 such knowledge, he has no motive for telling a false or exaggerated = story, has=20 intelligence enough to tell what he knows, and give a probable account = of the=20 transaction. If, on the other hand, from his position he could not know = the=20 facts, or if knowing them, he distorts them, he is undeserving of = credit. The=20 jury are the able judges of the credit and confidence to which a witness = is=20 entitled.

9. Should any member of the jury be acquainted with any fact on which = the=20 grand jury are to act, he must, before he testifies, be sworn or = affirmed, as=20 any other witness, for the law requires this sanction in all cases.

10. As the jury are not competent to try the accused, but merely to=20 investigate the case so far as to ascertain whether he ought to be put = on his=20 trial, they cannot hear evidence in his favor; theirs is a mere = preliminary=20 inquiry; it is when he comes to be tried in court that he may defend = himself by=20 examining witnesses in his favor, and showing the facts of the case.

11. - 5. Of presentments. The jury are required to make true = presentments of=20 all such matters which may be given to them in charge, or which have = otherwise=20 come to their knowledge. A presentment, properly speaking, is the notice = taken=20 by the grand jury of any offence from their own knowledge, as of a = nuisance, a=20 libel, or the like. In these cases, the authors of the offence should be = named,=20 so that they may be indicted,

12. - 6. Of the secrecy to be observed by the grand jury. The oath = which they=20 have taken obliges them to keep secret the commonwealth's counsel, their = fellows=20 and their own. Although contrary to the general spirit of our = institutions,=20 which do not shun daylight, this secrecy is required by law for wise = purposes.=20 It extends to the votes given in any case, to the evidence delivered by=20 witnesses, and the communications of the jurors to each other; the = disclosure of=20 these facts, unless under the sanction of law, would render the = imprudent juror=20 who should make them public, liable to punishment. Giving intelligence = toa=20 defendant that a bill has been found against him, to enable him to = escape, is so=20 obviously wrong, that no one can for a moment doubt its being criminal. = The=20 grand juror who should be guilty of this offence might, upon conviction, = be=20 fined and imprisoned. The duration of the secrecy appears not to be = definitely=20 settled, but it seems this injunction is to remain as long as the = particular=20 circumstances of each case require. In a case, for example, where a = witness=20 swears to a fact in open court, on the trial, directly in opposition to = what he=20 swore before the grand jury, there can be no doubt the injunction of = secrecy, as=20 far as regards this evidence, would be at an end, and the grand juror = might be=20 sworn to testify what this witness swore to in the grand jury's room, in = order=20 that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4 = Greenl.=20 Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide, = generally,=20 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark. Ev. 232, = n. 1; 1=20 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. =A71778 2 Swift's Dig. = 370; 4 Bl.=20 Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685.

GRANDCHILDREN, domestic relations. The children of one's = children.=20 Sometimes these may claim bequests given in a will to children, though = in=20 general they can make no such claim. 6 Co. 16.

GRANDFATHER, domestic relations. The father of one's father or = mother.=20 The father's father is called the paternal grandfather; the mother's = father is=20 the maternal grandfather.

GRANDMOTHER, domestic relations. The mother of one's father or = mother.=20 The father's mother is called the paternal grandmother; the mother's = mother is=20 the maternal grandmother.

GRANT, conveyancing, concessio. Technically speaking, grants = are=20 applicable to the conveyance of incorporeal rights, though in the = largest sense,=20 the term comprehends everything that is granted or passed from one to = another,=20 and is applied to every species of property. Grant is one of the usual = words in=20 a feoffment, and differs but little except in the subject-matter; for = the=20 operative words used in grants are dedi et concessi, "have given and=20 granted."

2. Incorporeal rights are said to lie in grant and not in livery, for = existing only in idea, in contemplation of law, they cannot be = transferred by=20 livery of possession; of course at common law, a conveyance in writing = was=20 necessary, hence they are said to be in grant, and to pass by the = delivery of=20 the deed.

3. To render the grant effectual, the common law required the consent = of the=20 tenant of the land out of which the rent, or other incorporeal interest=20 proceeded; and this was called attornment. (q. v.) It arose from the = intimate=20 alliance between the lord and vassal existing under the feudal tenures., = The=20 tenant could not alien the feud without the consent of the lord, nor the = lord=20 part with his seigniory without the consent of the tenant. The necessity = of=20 attornment has been abolished in the United States. 4 Kent, Com. 479. He = who=20 makes the grant is called the grantor, and he to whom it is made the = grantee.=20 Vide Com. Dig. h. t.; 14 Vin. Ab. 27; Bac. Ab. h. t. 4 Kent, Com. 477; 2 = Bl.=20 Com. 317, 440; Perk. ch. 1; Touchs. c. 12; 8 Cowen's R. 36.

4. By the word grant, in a treaty, is meant not only a formal grant, = but any=20 concession, warrant, order, or permission to survey, possess or settle; = whether=20 written or parol, express, or presumed from possession. Such a grant may = be made=20 by law, as well as by a patent pursuant to a law., 12 Pet. R. 410. See,=20 generally, 9 A. & E. 532; 5 Mass. 472; 9 Pick. 80.

GRANT, BARGAIN, AND SELL. - By the laws of the states of = Pennsylvania,=20 Delaware, Missouri, and Alabama, it is declared that the words grant, = bargain,=20 and sell) shall amount to a covenant that the grantor was seised of an = estate in=20 fee, freed from encumbrances done or suffered by him, and for quiet = enjoyment as=20 against all his acts. These words do not amount to a general warranty, = but=20 merely to a covenant that the grantor has not done any acts nor created = any,=20 encumbrance, by which the estate may be defeated. 2 Binn. R. 95 3 Penna. = R. 313;=20 3 Penna., R. 317, note; 1 Rawle, 377; 1 Misso. 576. Vide 2 Caines R. = 188; 1=20 Murph. R. 343; Id. 348; Ark. Rev. Stat, ch. 31, s. 1; 11 S. & R. = 109.

GRANTEE. He to whom a grant is made.

GRANTOR. He by whom a grant is made.

GRASSHEARTH, old Engl. law. The name of an ancient customary = service=20 of tenants doing one day's work for their landlord.

GRATIFICATION. A reward given voluntarily for some service or = benefit=20 rendered, without being requested so to do, either expressly or by=20 implication.

GRATIS. Without reward or consideration.

2. When a bailee undertakes to perform some act or work gratis, he is = answerable for his gross negligence, if any loss should be sustained in=20 consequence of it; but a distinction exists between non-feasance and=20 misfeasance; between a total omission to do an act which one = gratuitously=20 promises to do, and a culpable negligence in the execution of it; in the = latter=20 case he is responsible, while in the former he would not, in general, be = bound=20 to perform his contract. 4 Johns. R. 84; 5 T. 143; 2 Ld. Raym. 913.

GRATIS DICTUM. Assaying not required; a statement voluntarily = made=20 without necessity.

GRATUITOUS CONTRACT, civ. law. One, the object of which is for = the=20 benefit of the person with whom it is made, without any profit, received = or=20 promised, as a consideration for it as, for example, a gift. 1 Bouv. = Inst. n.=20 709.

GRAVAMEN. The grievance complained of; the substantial cause, = of the=20 action. See Greenl. Ev. =A766.

GRAVE. A place where a dead body is interred.

2. The violation of the grave, by taking up the dead body, or = stealing the=20 coffin or grave clothes, is a misdemeanor at common law. 1 Russ. on. Cr. = 414. A=20 singular case, illustrative of this subject, occurred in Louisiana. A = son, who=20 inherited a large estate from his mother, buried her with all her = jewels, worth=20 $2000; he then made a sale of all he inherited from his mother, for = $30,000.=20 After this, a thief broke the grave and stole the jewels, which, after = his=20 conviction, were left with the clerk of the court, to be delivered to = the owner.=20 The son claimed them, and so did the purchaser of the inheritance; it = was held=20 that the jewels, although buried with the mother, belonged to the son, = and, that=20 they passed to the purchaser by a sale of the whole inheritance. 6 = Robins. L. R.=20 488. See Dead Body.

3. In New York, by statutory enactment, it is provided, that every = person who=20 shall open a grave, or other place of interment, with intent, 1. To = remove the=20 dead body of any human being, for the purpose of selling the same, or = for the=20 purpose of dissection; or, 2. To steal the coffin, or any part thereof, = or the=20 vestments or other articles interred with any dead body, shall, upon = conviction,=20 be punished by imprisonment, in a state prison, not exceeding two years, = or in a=20 county gaol, not exceeding six months, or by fine not, exceeding two = hundred and=20 fifty dollars, or by both such fine and imprisonment. Rev. Stat. part 4, = tit. 5,=20 art. 3, =A715.

GREAT CATTLE. By this, term, in the English law, is, meant all = manner=20 of beasts except sheep and yearlings. 2 Rolle's Rep. 173.

GREAT CHARTER. The name of the charter granted by the English = King=20 John, securing to the English people their principal liberties; magna = charta.=20 (q. v.)

GREAT LAW. The name of an act of the legislature of = Pennsylvania,=20 passed at Chester, immediately after the arrival of William Penn, = December 7th,=20 1682. Serg. Land Laws of Penn. 24, 230.

GREE, obsolete. It signified satisfaction; as, to make gree to = the=20 parties, is, to agree with, or satisfy them for, an offence done.

GREEN WAX, Eng. law. The name of the estreats of fines, = issues, and=20 amerce ments in the exchequer, delivered to the sheriff under the seal = of that=20 court, which is made with green wax.

GROS BOIS, or GROSSE BOIS. Such wood as, by the common law or = custom,=20 is reputed timber. 2 hist. 642.

GROSS. Absolute; entire, not depending on another. Vide = Common.

GROSS ADVENTURE. By this term the French lay writers signify a = maritime loan, or bottomry. (q, v.) It is so called because the lender = exposes=20 his money to the perils of the sea; and contributes to the gross or = general=20 average. Poth. h. t.; Pard. Dr. Com . h. t.

GROSS AVERAGE, mar. law. That kind of average which falls on = the ship,=20 cargo, and freight, and. is distinguished from particular average. See=20 Average.

GROSS NEGLIGENCE. Lata culpa, or, as the Roman lawyers most = accurately=20 call it) dolo proxima, is, in practice, considered as equivalent to = dolus or=20 fraud itself, and consists, according to the best interpreters, in the = omission=20 of that care which even inattentive and thoughtless men never fail to = take of=20 their own property. Jones on Bailments, 20. It must not be confounded, = however,=20 with fraud, for it may exist consistently with good faith and honesty of = intention, according to common law authorities.

GROSS WEIGHT. The total weight of goods or merchandise, with = the=20 chests, bags, and the like, from which. are to be deducted tare and = tret.

GROUND RENT, estates. In Pennsylvania, this term is used to = signify a=20 perpetual rent issuing out of some real estate. This rent is redeemable = where=20 there is a covenant in the deed that, before the expiration of a period = therein=20 named, it may be redeemed by the payment of a certain sum of money; or = it is=20 irredeemable, when there is no such agreement; and, in the latter case, = it=20 cannot be redeemed without the consent of both parties. See 1 Whart. R. = 837; 4=20 Watts, R. 98; Cro. Jac. 510; 6 Halst. 262; 7 Wend. 463; 7 Pet. 596; 2 = Bouv.=20 Inst. n. 1659, and note, and Emphyteosis.

GROUNDAGE, mar. law. The consideration paid for standing a = ship in a=20 port. Jacobs, Dict. h. t., Vide Demurrage.

GUARANTEE, contracts. He lo whom a guaranty is made.

2. The guarantee is entitled to receive payment, in the first place, = from the=20 debtor, and, secondly, from the guarantor. He must be careful not to = give time=20 beyond that stipulated in the original agreement, to the debtor, without = the=20 consent of the guarantor; the guarantee should, at the instance of the=20 guarantor, bring an action against the principal for the recovery of the = debt. 2=20 Johns. Oh. R. 554; 17 Johns. R. 384; 8 Serg. & Rawle, 116; 10 Serg. = &=20 Rawle, 33; 2 Bro. C. C. 579, 582; 2 Ves. jr. 542. But the mere omission = of the=20 guarantee to sue the principal debtor will not, in general, discharge = the=20 guarantor. 8 Serg. & Rawle, 112; 3 Yeates, R. 157; 6 Binn. R. 292, = 300.

GUARANTOR, contracts. He who makes a guaranty.

2. The guarantor is bound to fulfil the engagement he has entered = into,=20 provided the principal debtor does not. He is bound only to the extent = that the=20 debtor is, and any payment made by the latter, or release of him by the=20 creditor, will operate as a release of the guarantor; 3 Penna. R. 19; or = even if=20 the guarantee should give time to the debtor beyond that contained in = the=20 agreement, or substitute a new agreement, or do any other act by which = the=20 guarantor's situation would be worse, the obligation of the latter would = be=20 discharged. Smith on Mer. Law, 285.

3. A guarantor differs from a surety in this, that the former cannot = be sued=20 until a failure on the part of the principal, when sued; while the = latter may be=20 sued at the same time with the principal. 10 Watts, 258.

GUARANTY, contracts. A promise made upon a good consideration, = to=20 answer for the payment of some debt, or the performance of some duty, in = case of=20 the failure of another person, who is, in the first instance, liable to = such=20 payment or performance. 1 Miles' Rep. 277.

2. The English statute of frauds, 29 Car. II. c. 3, which, with = modification,=20 has been adopted in most of the states; 3 Kent's Com. 86 requires, that = "upon=20 any special promise to answer for the debt, default, or miscarriage of = another=20 person, the agreement, Or some memorandum, or note thereof, must be in = writing,=20 and signed by the party to be charged therewith, or some other thereunto = by him=20 lawfully authorized." This clause of the statute is not in force in=20 Pennsylvania. To render this statute valid, under the statute, its form = must be=20 in writing; it must be made upon a sufficient consideration; and it must = be to=20 fulfil the engagement of another.

3. - 1. The agreement must be in writing, and signed by the party to = be=20 bound, or some one authorized by him. It should substantially contain = the names=20 of the party promising, and of the person on whose behalf the promise is = made;=20 the promise itself, and the consideration for it.

4. - 2. The word agreement in the statute includes the consideration = for the=20 promise, as well as the promise itself; if, therefore, the guaranty be = for a=20 subsisting, debt, or engagement of another person, not only the = engagement, but=20 the consideration for it, must appear in the writing. 5 East, R. 10. = This has=20 been the construction which has been given in Eugland, and which has = been=20 followed in New York and South Carolina, though it has been rejected in = several=20 other states. 3 John. R. 210; 8 John. R. 29; 2 Nott & McCord, 372, = note; 4=20 Greenl. R. 180, 387; 6 Conn..R. 81; 17 Mass. R. 122. The decisions have = all=20 turned upon the force of the word agreement; and where by statute the = word=20 promise has been introduced, by requiring the promise or agreement to be = in=20 writing, as in Virginia, the construction has not been so strict. 5 = Cranch's R.=20 151, 2.

5. - 3. The guaranty must be to answer for the debt or default of = another.=20 The term debt implies, that the liability of the principal debtor had = been=20 previously incurred; but a default may arise upon an executory contract, = and a=20 promise to pay for goods to be furnished to another, is a collateral = promise to=20 pay on the other's default, provided the credit was given, in the first=20 instance, solely to the other. It is a general rule, that when a promise = is made=20 by a third person, previous to the sale of goods, or other credit given, = or=20 other liability incurred, it conies within the statute, when it is = conditional=20 upon the default of another, who is solely liable in the first instance, = otherwise not; the only inquiry to ascertain this, is, to whom was it = agreed,=20 that the vendor or creditor should look in. the first instance ? Many = nice=20 distinctions have been made on this subject. 1st. When a party actually=20 purchases goods himself, which are to be delivered to a third person, = for, his=20 sole use, and the latter was not to be responsible, this is not a case = of=20 guaranty, because the person to whom the goods were furnished, never was = liable.=20 8 T. R. 80. 2d. Where a person buys goods, or incurs any other = liability,=20 jointly with another, but for the use of that other, and this fact is = known to=20 the creditor, the guaranty must be in writing. 8 John. R. 89. 3d. A = person may=20 make himself liable, in the third place, by adding his credit to that of = another, but conditionally only, in case of the other's default. This = species of=20 promise comes immediately within the meaning of the statute, and in the = cases is=20 sometimes termed a collateral promise.

6. Guaranties are either special or for a particular transaction, or = they are=20 continuing guaranties; that is, they are to be valid for other = transactions,=20 though not particularly mentioned. 2 How. U. S. 426; 1 Metc. 24; 7 Pet. = 113; 12=20 East, 227; 6 M. & W. 612; 6 Sc. N. S. 549; 2 Campb. 413; 3 Campb. = 220,; 3 M.=20 & P. 573; S, C. 6 Bing. 244 2 M. & Sc. 768; S. C. 9 Bing. 618 3 = B. &=20 Ald. 593; 1 C. & M. 48; S. C. 1 Tyr. 164. Vide, generally, Fell on=20 Mercantile Guaranties; Bouv. Inst. Index, h. t.; 3 Kent's Com. 86; = Theob. P.=20 & S. c. 2 & 3; Smith on Mer. Law, c. 10; 3 Saund. 414, n., 5; = Wheat.=20 Dig. 182 14 Wend. 231. The following authorities refer to cases of = special=20 guaranties of notes. 6 Conn. 81; 20 John. 367; 1 Mason 368; 8 Pick. 423; = 2 Dev.=20 & Bat. 470; 14 Wend. 231. Of absolute guaranties. 2 Har. & J. = 186; 3=20 Fairf. 193 1 Mason, 323; 12 Pick. 123. Conditional guaranties. 12 Conn. = 438. To=20 promises to guaranty. 8 Greenl. 234; 16 John. 67.

GUARDIANS, domestic relations. Guardians are divided into, = guardians=20 of the person, in the civil law called tutors; and guardians of the = estate, in=20 the sam law are known by the name of curators. For the distinction = between them,=20 vide article Curatorship; 2 Kent, Com. 186 1 Bouv. Inst. n. 336, et. = seq.

2. - 1. A guardian of the person is one who has been lawfully = invested with=20 the care of the person of an infant, whose father is dead.

3. The guardian must be properly appointed he must be capable of = serving; he=20 must be appointed guardian of an infant; and after his appointment he = must=20 perform the duties imposed on him by his office.

4. - 1st. In England, and in some of the states where the English law = has=20 been adopted in this respect, as in Pennsylvania; Rob. Dig. 312, by = Stat. 12=20 Car. If. c. 24; power is given to the father to appoint a testamentary = guardian=20 for his children, whether born or unborn. According to Chancellor Kent, = this=20 statute has been adopted in the state of New York, and probably = throughout this=20 country. 2 Kent, Com. 184. The statute of Connecticut, however, is an = exception;=20 there the father cannot appoint a testamentary guardian. 1 Swift's Dig. = 48.

5. All other kinds of guardians, to be hereafter noticed, have been=20 superseded in practice by guardians appointed by courts having = jurisdiction of=20 such matters. Courts of chancery, orphans courts, and courts of a = similar=20 character having jurisdiction of testamentary matters in the several = states,=20 are, generally, speaking, invested with the power of appointing = guardians.

6. - 2d. The person appointed must be capable of performing the = duties; an=20 idiot, therefore, cannot be appointed guardian.

7. - 3d. The person over whom a guardian is appointed, must be an = infant; for=20 after the party has attained his full age, he is entitled to all his = rights, if=20 of sound mind, and, if not, the person appointed to take care of him is = called a=20 committee. (q. v.) No guardian of the person can be appointed over an = infant=20 whose father is alive, unless the latter be non compos mentis, in which = case one=20 may be appointed, as if the latter were dead.

8. - 4th. After his appointment, the guardian of the person is = considered as=20 standing in the place of the father, and of course the relative powers = and=20 duties of guardian and ward correspond, in a great measure, to those of = parent=20 and child; in one prominent matter they are different. The father is = entitled to=20 the services of his child, and is bound to support him; the guardian is = not=20 entitled to the ward's services, and is not bound to maintain him out of = his own=20 estate.

9. - 2. A guardian of the estate is one who has been lawfully = invested with=20 the power of taking care and managing the estate of an infant. 1 John. = R. 561; 7=20 John. Ch. R. 150. His appointment is made in the same manner, as that of = a=20 guardian of a person. It is the duty of the guardian to take reasonable = and=20 prudent care of the estate of the ward, and manage it in the most = advantageous=20 manner; and when the guardianship shall expire, to account with the ward = for the=20 administration of the estate.

10. Guardians have also been divided into guardians by nature; = guardian's by=20 nurture; guardians in socage; testamentary guardians; statutory = guardians; and=20 guardians ad litem.

11. - 1. Guardian by nature, is the father, and, on his death, the = mother;=20 this guardianship extends only to the custody of the person; 3 Bro. C. = C. 186; 1=20 John. Ch. R. 3; 3 Pick. R. 213; and continues till the child shall = acquire the=20 age of twenty one years. Co. Litt. 84 a.

12. - 2. Guardian by nurture, occurs only when the ifant is without = any other=20 guardian, and the right belongs exclusively to the parents, first to the = father,=20 and then to the mother. It extends only to the person, and determines, = in males=20 and females, at the age of fourteen. This species of guardianship has = become=20 obsolete.

13. - 3. Guardian in socage, has the custody of the infant's lands as = well as=20 his person. The common law gave this guardianship to the next of blood = to the=20 child to whom the inheritance could not possibly descend. This species = of=20 guardianship has become obsolete, and does not perhaps exist in this = country;=20 for the guardian must be a relation by blood who cannot possibly = inherit, and=20 such a case can rarely exist. 2 Wend. 153: 15 Wend. 631; 6 Paige, 390; 7 = Cowen,=20 36; 5 John.66.

14. - 4. Testamentary guardians; these are appointed under the stat. = 12 Car.=20 II., above mentioned; they supersede the claims of any other guardian, = and=20 extend to the person, an real and personal estate of the child, and = continue=20 till the ward arrives at full age.

15. - 5. Guardians appointed by the courts, by virtue of statutory = authority.=20 The distinction of guardians by nature, and by socage, appear to have = become=20 obsolete, and have been essentially superseded in practice by the = appointment of=20 guardians by courts of chancery, orphans' courts, probate courts, and = such other=20 courts as have jurisdiction to, make such appointments. Testamentary = guardians=20 might, as those of this class, be considered as statutory guardians, = inasmuch as=20 their appointment is authorized by a statute.

16. - 6. Guardian ad litem, is pointed for the infant to defend him = in an=20 action brought against him. Every court, when an infant is sued in a = civil=20 action, has power to appoint a guardian ad litem when he has no = guardian, for as=20 the infant cannot appoint an attorney, he would be without assistance if = such a=20 guardian-were not appointed. The powers and duties of a guardian ad = litem are=20 confined to the defence of the suit. F. N. B. 27; Co. Litt. 88 b, note = 16; Id.=20 135 b, note 1; see generally Bouv. Inst. Index, h. t.; Coop. Inst. 445 = to=20 455.

GUARDIANS OF THE POOR. The name given to officers whose duties = are=20 very similar to those of overseers of the poor, (q. v.) that is, = generally to=20 relieve the distresses of such poor persons who are unable to take care = of=20 themselves.

GUARDIANSHIP, persons. The power or protective authority given = by law,=20 and imposed on an individual who is free and in the enjoyment of his = rights,=20 over one whose weakness on account of his age, renders him unable to = protect=20 himself. Vide Tutor.

GUBERNATOR, civil law. A pilot or steersman of a ship. 2 Pet. = Adm.=20 Dec. Appx. lxxxiii.

GUEST. A traveller who stays at an inn or tavern-with the = consent of=20 the keeper: Bac. Ab. Inns, C 5; 8 Co. 32. And if, after having taken = lodgings at=20 an inn, he leaves his horse there, and goes elsewhere to lodge, he is = still to=20 be considered a guest. But not if he merely leaves goods for which the = landlord=20 receives no compensation. 1 Salk. 888; 2 Lord Raym. 866; Cro. Jac. 188. = The=20 length of time a man is at an inn makes no difference, whether he stays = a day,=20 or a week, or a month, or longer, so always, that, though not strictly=20 transiens, he retains his character as a traveller. But if a person = comes upon a=20 special contract to board and sojourn at an inn, he is not in the sense = of the=20 law a guest, but a boarder. Bac. Ab. Inns, C. 5; Story, Bailm. = =A7477.

2. Inkeepers are generally liable for all goods belonging to the = guest,=20 brought within the inn. It is not necessary that the goods should have = been in=20 the special keeping of the innkeeper to make him liable. This rule is = founded on=20 principles of public utility, to which all private considerations ought = to=20 yield. 2 Kent, Com. 459; 1 Hayw. N. C. Rep. 40; 14 John. R. 175; Dig. 4, = 9, 1.=20 Vide 8 Barb. & Ald. 283; 4 Maule & Selw. 306; 1 Holt's N. P. = 209; 1=20 Salk. 387; S. C. Carth. 417; 1 Bell's Com. 469 Dane's Ab. Index, h. t.; = Yelv.=20 67, a; Smith's Leading Cases, 47; 8 Co. 32.

GUIDON DE LA MER, (LE). The name of a treatise on maritime = law,=20 written in Rouen, then Normandy, in 1671, as is supposed. it was = received on the=20 continent of Europe almost as equal in authority to one of the ancient = codes of=20 maritime law. The author of this work is unknown. This tract or treatise = is=20 contained in the Collection de Lois Maritimes," by J. M. Pardessus. vol. = 2, p.=20 371, et seq.

GUILD. A fraternity or company. Guild hall, the place of = meeting of=20 guilds. Beame's, Glanville, 108 (n).

GUILT, crim. law. That quality which renders criminal and = liable to=20 punishment; or it is that disposition to violate the law, which has = manifested=20 itself by some act already done. The opposite of innocence. Vide = Rutherf. Inst.=20 B. 1, c. 18, s. 10.

2. In general everyone is presumed innocent until guilt has been = proved; but=20 in some cases the presumption of guilt overthrows that of innocence; as, = for=20 example, where a party destroys evidence to which the opposite party is=20 entitled. The spoliation of papers, material to show the neutral = character of a=20 vessel, furnishes strong presumption against the neutrality of the ship. = 2=20 Wheat. 227. Vide Spoliation.

GUILTY. The state or condition of a person who has committed a = crime,=20 misdemeanor or offence.

2. This word implies a malicious intent, and must be applied to = something=20 universally allowed to be a crime. Cowp. 275.

3. In pleading, it is a plea by which a defendant who is charged with = a=20 crime, misdemeanor or tort, admits or confesses it. In criminal = proceedings,=20 when the accused is arraigned, the clerk asks him,: How say you, A B, = are you=20 guilty or not guilty?" His answer, which is given ore tenus, is called = his plea;=20 and when he admits the charge in the indictment he answers or pleads = guilty.

Index

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