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Bouvier's Law Dictionary
1856 Edition

H

HABEAS CORPORA, English practice. A writ issued out of the C. = P.=20 commending the sheriff to compel the appearance of a jury in the cause = between=20 the parties. It answers the same purpose in that court as the Distringas = juratores answers in the K. B. For a form, see Bootes Suit at Law, = 151.

HABEAS CORPUS, remedies A writ of habeas corpus is an order in = writing, signed by the judge who grants the same, and sealed with the = seal of=20 the court of he is a judge, issued in the name of the sovereign power = where it=20 is granted, by such a court or a judge thereof, having lawful authority = to issue=20 the same, directed to any one having a person in his custody or under = his=20 restraint, commanding him to produce, such person at a certain time and = place,=20 and to state the reasons why he is held in custody, or under = restraint.

2. This writ was it common law considered as a remedy to remove the = illegal=20 restraint on a freeman. But anterior to the 31 Charles II. its benefit = was, in a=20 great degree, eluded by time-serving judges, who awarded it only in term = time,=20 and who assumed a discretionary power of awarding or refusing it. 3 = Bulstr. 23.=20 Three or four years before that statute was passed there had been two = very great=20 cases much agitated in Westminster Hall, upon writs of habeas corpus for = private=20 custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert = Viner, Lord=20 Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. = But the=20 court has wisely drew the line of distinction between civil = constitutional=20 liberty, as opposed to the power of the crown, and liberty as opposed to = the=20 violence and power of private persons. Wilmot's Opinions, 85, 86.

3. To secure the full benefit of it to the subject the statute 81 = Car. II. c.=20 2, commonly calfed the habeas corpus act, was passed. This gave to the. = writ the=20 vigor, life, and efficacy requisite for the due protection of the = liberty of the=20 subject. In England this. is considered as a high prerogative writ, = issuing out=20 of the court of king's bench, in term time or vacation, and running into = every=20 part of the king's dominions. It is also grantable as a matter of right, = ex=20 debito justitae, upon the application of any person.

4. The interdict De homine libero exhibendo of the Roman law, was a = remedy=20 very similar to the writ of habeas corpus. When a freeman was restrained = by=20 another, contrary to good faith, the praetor ordered that such person = should be=20 brought before him that he might be liberated. Dig.43, 29, 1.

5. The habeas corpus act has been substantially incorporated into the = jurisprudance of every state in the Union, and the right to the writ has = been=20 secured by most of the constitutions of the states, and of the United = States.=20 The statute of 31 Car. II. c. 2, provides that the person imprisoned, if = he be=20 not a prisoner convict, or in execution of legal process, or committed = for=20 treason or felony, plainly expressed in the warrant, or has not = neglected=20 wilfully, by the space of two whole terms after his imprisonment, to = pray a=20 habeas corpus for his enlargement, may apply by any one in his behalf, = in=20 vacation time, to a judicial officer for the writ of habeas corpus, and = the=20 officer, upon view of the copy of the warrant of commitment, or upon = proof of=20 denial of it after due demand, must allow the writ to be directed to the = person=20 in whose custody the party is detained, and made returnable immediately = before=20 him. And, in term time, any of the said prisoners may obtain his writ of = habeas=20 corpus, by applying to the proper court.

6. By the habeas corpus law of Pennsylvania, (the Act of February 18, = 1785,)=20 the benefit of the writ of habeas corpus is given in "all cases where = any=20 person, not being committed or detained for any criminal, or supposed = criminal=20 matter," Who "shall be confined or restrained of his or her liberty, = under any=20 color or pretence whatsoever." A similar provision is contained in the = habeas=20 corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.

7. The Constitution of the United State art. 1, s. 9, n. 2, provides, = that "=20 the privilege of the writ of habeas corpus shall not be suspended, = unless when,=20 in cases of rebellion or invasion, the public safety may require it and = the same=20 principle is contained in many of the state constitutions. In order = still more=20 to secure the citizen the benefit of this great writ, a heavy penalty is = inflicted upon the judges who are bound to grant it, in case of = refusal.

8. It is proper to consider, 1. When it is to be granted. 2. How it = is to be=20 served. 3. What return is to be made to it. 4. The bearing. 5. The = effect of the=20 judgment upon it.

9. - 1. The writ is to be granted whenever a person is in actual = confinement,=20 committed or detained as aforesaid, either for a criminal charge, or, as = in=20 Pennsylvania and New York, in all cases where he is confined or = restrained of=20 his liberty, under any color or pretence whatsoever. But persons = discharged on=20 bail will not be considered as restrained of their liberty so as to be = entitled=20 to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 = Serg=20 & Rawle, 356.

10. - 2. The writ may be served by any free person, by leaving it = with the=20 person to whom it is directed, or left at the gaol or prison with any of = the=20 under officers, under keepers, or deputy of the said officers or = keepers. In=20 Louisiana, it is provided, that if the person to whom it is addressed = shall=20 refuse to receive the writ, he who is charged to serve it, shall inform = him of=20 its contents; if he to whom the writ is addressed conceal himself, or = refuse=20 admittance to the person charged to serve it on him, the latlat shall = affix the=20 order on the exterior of the place where the person resides, or in which = the=20 petitioner is so confined. Lo. Code of Pract. art. 803. The service is = proved by=20 the oath of the party making it.

11. - 3. The person to whom the writ is addressed or directed, is = required to=20 make a return to it, within the time prescribed; he either complies, or = he does=20 not. If, he complies, he must positively answer, 1. Whether he has or = has not in=20 his power or custody the person to be set at liberty, or whether that = person is=20 confined by him; if he return that he has not and has not had him in his = power=20 or custody, and the return is true, it is evident that a mistake was = made in=20 issuing the writ; if the return is false, he is liable to a penalty, and = other=20 punishment, for making such a, false return. If he return that he has = such=20 person in his custody, then he must show by his return, further, by what = authority, and for what cause, he arrested or detained him. If he does = not=20 comply, he is to be considered in contempt of the court under whose seal = the=20 writ has been issued, and liable to a severe penalty, to be recovered by = the=20 party aggrieved.

12. - 4. When the prisoner is brought, before the judge, his judicial = discretion commences, and he acts under no other responsibility than = that which=20 belongs to the exercise of ordinary judicial power. The judge or court = before=20 whom the prisoner is brought on a habeas corpus, examines the return and = Papers,=20 if any, referred to in it, and if no legal cause be shown for the = imprisonment=20 or restraint; or if it appear, although legally committed, he has not = been=20 prosecuted or tried within the periods required by law, or that, for any = other=20 cause, the imprisonment cannot be legally continued, the prisoner is = discharged=20 from custody. In the case of wives, children, and wards, all the court = does, is=20 to see that they ire under no illegal restraint. 1 Strange, 445; 2. = Strange,=20 982; Wilmot's Opinions, 120.

13. For those offences which are bailable, when the prisoner offers=20 sufficient bail, he is to be bailed.

14. He is to be remanded in the following cases: 1. When it appears = he, is=20 detained upon legal process, out of some court having jurisdiction of = criminal=20 matters, 2. When he is detained by warrant, under the hand and seal of a = magistrate, for some offence for which, by law, the prisoner is not = bailable. 3.=20 When he is a convict in execution, or detained in execution by legal = civil=20 process. 4. When he is detained fora contempt, specially and plainly = charged in=20 the commitment, by some existing court, having authority to commit for = contempt.=20 5. When he refuses or neglects to give the requisite bail in a case = bailable of=20 right. The judge is not confined to the return, but he is to examine = into the=20 causes of the imprisonment, and then he is to discharge, bail, or = remand, as=20 justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.

15. - 5. It is provided by the habeas corpus act, that a person set = at=20 liberty by the writ, shall not again be imprisoned for the same offence, = by any=20 person whomsoever, other than by the legal order and process of such = court=20 wherein he shall be bound by recognizance to appear, or other court = having=20 jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. = R.282.

16. The habeas corpus can be suspended only by authority of the = legislature.=20 The constitution of the United States provides, that the privilege of = the writ=20 of habeas corpus shall not be suspended unless when, in cases of = invasion and=20 rebellion, the public safety may require it. Whether this writ ought to = be=20 suspended depends on political considerations, of which the legislature, = is to=20 decide. 4 Cranch, 101. The proclamation of a military chief, declaring = martial=20 law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. = Rep. Lo.=20 157, 159 3 Mart. Lo. R. 531.

17. There are various kinds of this writ; the principal of which are=20 explained below.

18. Habeas corpus ad deliberandum et recipiendum, is a writ which = lies to=20 remove a prisoner to take his trial in the county where the offence was=20 committed. Bac. Ab. Habeas Corpus, A.

19. Habeas corpus ad faciendum et recipiendum, is a writ which issues = out of=20 a court of competent jurisdiction, when a person is sued in an inferior = court,=20 commanding the inferior judges to produce the body of the defendant, = together=20 with the day and cause of his caption and detainer, (whence this writ is = frequently denominated habeas corpus cum causa) to do and receive = whatever the=20 court or the judge issuing the writ shall consider in that behalf. This = writ may=20 also be issued by the bail of a prisoner, who has been taken upon a = criminal=20 accusation, in order to surrender him in his own discharge; upon. the = return of=20 this writ, the court will cause an exoneretur to be entered on the bail = piece,=20 and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. = Cr. Law,=20 182.

20. Habeas corpus ad prosequendum, is a writ which issues for the = purpose of=20 removing a prisoner in order to prosecute. 3 Bl. Com. 130.

21. Habeas corpus ad respondendum, is a writ which issues at the = instance of=20 a creditor, or one who has a cause of action against a person who is = confined by=20 the process of some inferior court, in order to remove the prisoner and = charge=20 him with this new action in the court above. 2 Mod.198; 3 Bl. Com. = 107.

22. Habeas corpus ad satisfaciendum, is a writ issued at the instance = of a=20 plaintiff for the purpose of bringing up a prisoner, against whom a = judgment has=20 been rendered, in a superior court to charge him with the process of = execution.=20 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.

23. Habeas corpus ad subjiciendum, by way of eminence called the writ = of=20 habeas corpus, (q. v.) is a writ directed to the person detaining = another, and=20 commanding him to produce the body of the prisoner, with the day and = cause of=20 his caption and detention, ad faciendum, subjiciendum, et recipiendum, = to do,=20 submit to, and receive, whatsoever the judge or court awarding such writ = shall=20 consider in that behalf. 3 Bl. Com. 131; 3 Story, Const. =A71333.

24. Habeas corpus ad testificandum, a writ issued for the purpose of = bringing=20 a prisoner, in order that he may testify, before the court. 3 Bl. Com. = 130.

25. Habeas corpus cum causa, is a writ which may be issued by the = bail of a=20 prisoner, who has been taken upon a criminal accusation, in order to = render him=20 in their own discharge. Tidd's Pr. 405. Upon the return of this writ the = court=20 will cause an exoneretur to be entered on the bail piece, and remand the = defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law132. Vide, = generally,=20 Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; the = various=20 American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. = Index, h.=20 t.; Bouv. Inst. Index, h. t.

HABENDUM, conveyancing. This is a Latin word, which signifies = to=20 have.

2. In conveyancing, it is that part of a deed which usually declares = what=20 estate or interest is granted by it, its certainty, duration, and to = what use.=20 It sometimes qualifies the estate, so that the general implication of = the=20 estate, which, by construction of law, passes in the premises, may by = the=20 habendum be controlled; in which case the habendum may enlarge the = estate, but=20 not totally contradict, or be repugnant to it. It may abridge the = premises.=20 Perk. =A7170 , 176; Br. Estate, 36 Cont. Co. Litt. 299. It may explain = the=20 premises. More, 43; 2 Jones, 4. It may enlarge the premises Co. Litt. = 299; 2=20 Jones, 4. It may be frustrated by the premises, when they are general; = Skin. 544=20 but it cannot frustrate the premises, though it may restrain them. Skin. = 543.=20 Its proper office is not to give anything, but to limit or define the = certainty=20 of the estate to the feoffee or grantee, who should be previously named = in the=20 premises of the deed, or it is void. Cro. Eliz. 903. In deeds and = devises it is=20 sometimes construed distributively, reddendo singula singulis. 1 Saund. = 183-4,=20 notes 3 and 4; Yelv. 183, and note 1.

3. The habendum commences in our common deeds, with the words "to = have and to=20 hold." 2 Bl. Com. 298.; 14 Vin. Ab. 143; Com. Dig. Fait, E 9; 2 Co.55 a; = 8 Mass.=20 R. 175; 1 Litt. R. 220; Cruise, Dig. tit. 32, c. 20, s. 69 to93; 5 Serg. = &=20 Rawle, 375; 2 Rolle, Ab. 65; Plowd. 153; Co. Litt. 183; Martin's N. C. = Rep. 28;=20 4 Kent, Com. 456; 3 Prest. on Abstr. 206 to 210; 5 Barnw. & Cres. = 709; 7=20 Greenl. R. 455; 6 Conn. R. 289; 6 Har. & J. l32; 3 Wend. 99.

HABERDASHER. A dealer in miscellaneous goods and = merchandise.

HABERE. To have. This word is used in composition.

HABERE FACIAS POSSESSIONEM, Practice, remedies. The name of a = writ of=20 execution in the action of ejectment.

2. The sheriff, is commanded by this writ that, without delay, he = cause the=20 plaintiff to have possession of the land in dispute which is therein = described;=20 a fi. fa. or ca. sa. for costs may be included in the writ. The duty of = the=20 sheriff in the execution and return of that part of the writ, is the = same as on=20 a common fi. fa. or ca. sa. The sheriff is to execute this writ by = delivering a=20 full and, actual possession of the premises to the plaintiff. For this = purpose=20 he may break an outer or inner door of the house, and, should he be = violently=20 opposed, he may raise the posse comitatus. Wats. on Sher. 60, 215; 5 Co. = 91 b.;=20 1 Leon. 145; 3 Bouv. Inst. n. 3375.

3. The name of this writ is abbreviated hab. fa. poss. Vide 10 Vin. = Ab.14;=20 Tidd's Pr. 1081, 8th Engl. edit.; 2 Arch. Pr. 58; 3 Bl. Com. 412; Bing. = on=20 Execut. 115, 252; Bac. Ab. h. t.

HABERE FACIAS SEISINAM, practice, remedies. The name of a writ = of=20 execution, used in most real actions, by which the sheriff is directed = that he=20 cause the demandant to have seisin of the lands which he has recovered.3 = Bouv.=20 Inst. n. 3374.

2. This writ may be taken out at any time within a year and day after = judgment. It is to be executed nearly in the same manner as the writ of = habere=20 facias possessionem, and, for this purpose, the officer may break open = the outer=20 door of a house to deliver seisin to the demandant. 5 Co. 91 b; Com. = Dig.=20 Execution, E; Wats. Off. of Sheriff, 238. The name of this writ is = abbreviated=20 hab. fac. seis. Vide Bingh. on Exec. 115, 252; Bac. Ab. h. t.

HABERE FACIAS VISUM, practice. The name of a writ which lies = when a=20 view is to be taken of lands and tenements., F. N. B. Index, verbo = View.

HABIT. A disposition or condition of the body or mind acquired = by=20 custom or a frequent repetition of the same act. See 2 Mart. Lo. Rep. N. = S.=20 622.

2. The habit of dealing has always an important bearing upon the = construction=20 of commercial contracts. A ratification will be inferred from the mere = habit of=20 dealing between the parties; as, if a broker has been accustomed to = settle=20 losses on policies in a particular manner, without any objection being = made, or=20 with the silent approbation of his principal, and he should afterward = settle=20 other policies in the same manner, to which no objection should be made = within a=20 reasonable time, a just presumption would arise of an implied = ratification; for=20 if the principal did not agree to such settlement he should have = declared his=20 dissent. 2 Bouv. Inst. 1313-14.

HABITATION, civil law. It was the right of a person to live in = the=20 house of another without prejudice to the property.

2. It differed from a usufruct in this, that the usufructuary might = have=20 applied the house to any purpose, as, a store or manufactory; whereas = the party=20 having the right of habitation. could only use it for the residence of = himself=20 and family. 1 Bro. Civ. Law, 184 Domat. l. 1, t. 11, s. 2, n. 7.

HABITATION, estates. A dwelling-house, a home-stall. 2 Bl. = Com. 4;4=20 Bl. Com. 220. Vide House.

HABITUAL DRUNKARD. A person given to ebriety or the excessive = use of=20 intoxicating drink, who has lost the power or the will, by frequent = indulgence,=20 to control his appetite for it.

2. By the laws of Pennsylvania an habitual drunkard is put nearly = upon the=20 same footing with a lunatic; he is deprived of his property, and a = committee is=20 appointed by the court to take care of his person and estate. Act of = June 13,=20 1836, Pamph. p. 589. Vide 6 Watts' Rep. 139; 1 Ashm. R. 71.

3. Habitual drunkenness, by statutory provisions in some of the = states, is a=20 sufficient cause for divorce. 1 Bouv. Inst. n. 296.

HABITUALLY. Customarily, by habit. or frequent use or = practice, or so=20 frequently, as to show a design of repeating the same act. 2 N. S. 622: = 1 Mart.=20 Lo. R. 149.

2. In order to found proceedings in lunacy, it is requisite that the = insanity=20 should be habitual, yet it is not necessary that it should be continued. = 1 Bouv.=20 Inst. n. 379.

HAD BOTE, Engl. law. A recompense or amends made for violence = offered=20 to a person in holy olders.

HAEREDES PROXIMI. The children or descendants of the deceased. = Dalr.=20 Feud. Pr. 110; Spellm. Remains.

HAEREDES REMOTIORES. The kinsmen other than children or = descendants;=20 Dalr. Feud. Pr. 110; Spellm. Remains.

HAEREDITAS. An inheritance, or an estate which descends to one = by=20 succession. At common law an inheritance never ascends, haereditas = nunquam=20 ascendit. But in many of the states of the Union provision is made by = statute in=20 favor of ascendants.

HAEREDITAS JACENS. This is said of an inheritance which is not = taken=20 by the heirs, but remains in abeyance.

HAERES civil law. An heir, one who succeeds to the whole=20 inheritance.

2. These are of various kinds. 1. Haeres natus, an heir born; the = heir at=20 law: he is distinguished from, 2. Haeres factus, or an heir created by = will, a=20 testamentary heir, to whom the whole estate of the testator is given. 3. = Haeres=20 fiduciarius, an heir to whom the estate is given in trust for another. = Just. 2,=20 23, 1, 2. Haeres-legitimus, a lawful heir; this is one who is manifested = by the=20 marriage of his parents; haeres legitimus est quem nuptiae demonstrant; = haeres=20 suus, one's own heir, a proper heir; descendants. Just. 3, 1, 4, 5.

HALF. One equal part of a thing divided into two parts, either = in fact=20 or in contemplation. A moiety. This word is used in composition; as, = half cent,=20 half dime, &c.

HALF-BLOOD, parentage, kindred. When persons have only one = parent in=20 common, they are of the half-blood. For example, if John marry Sarah and = has a=20 son by that marriage, and after Sarah's death he marry Maria, and has by = her=20 another son, these children are of the half-blood; whereas two of the = children=20 of John and Sarah would be of the whole blood.

2. By the English common law, one related to an intestate of the = half-blood=20 only, could never inherit, upon the presumption that he is not of the = blood of=20 the original purchaser; but this rule has been greatly modified by the 3 = and 4=20 Wm. IV. c. 106.

3. In this country the common law principle on this subject may be = considered=20 as not in force, though in some states some distinction is still = preserved=20 between the whole and the half-blood. 4 Kent, Com. 403, n.; 2 Yerg. 115; = 1=20 M'Cord, 456; Dane's Ab. Index, h. t.; Reeves on Descents, passim. Vide=20 Descents.

HALF-BROTHER AND HALF-SISTER. Persons who have the same father = but=20 different mothers; or the same mother but different fathers.

HALF CENT, money. A copper coin of the United States, of the = value of=20 one two-hundredth part of a dollar, or five mills. It weighs eighty-four = grains.=20 Act of January 18, 1837, s. 12, 4 Sharswood's cont. of Story's L. U. S. = 2523, 4.=20 Vide Money.

HALF DEFENCE, pleading. It is the peculiar form of a defence, = which is=20 as follows, "venit et defendit vim et injuriam, et dicit," &c. It = differs=20 from full defence. Vide Defence; Et cetera;

HALF DIME, money. A silver coin of the United States, of the = value of=20 one- twentieth part of a dollar, or five cents. It weighs twenty grains = and=20 five-eighths of a grain. Of one thousand parts, nine hundred are of pure = silver,=20 and one hundred are of alloy. Act of January 18, 1837, s. 8 and 9,4 = Sharswood's=20 cont. of Story's L. U. S. 2523, 4. Vide Money.

HALF DOLLAR, money. A silver coin of the United States of the = value of=20 fifty cents. It weighs two hundred and six and one-fourth grains. Of one = thousand parts, nine hundred are of pure silver, and one hundred of = alloy. Act=20 of January 18, 1837, S. 8 and 9, 4 Sharsw. cont. of Story's L. U. = S.2523, 4.=20 Vide Money.

HALF EAGLE, money. A gold coin of the United States, of the = value of=20 five dollars. It weighs one hundred and twenty-nine grains. Of one = thousand=20 parts, nine hundred are of pure gold, and one hundred of alloy. Act of = January=20 18, 1837, 4 Sharsw. cont. of Story's L. U. S. 2523, 4. Vide Money.

HALF PROOF, semiplena probatio, civil law. Full proof is that = which is=20 sufficient to end the controversy, while half proof is that which is=20 insufficient, as the foundation of a sentence or decree, although in = itself=20 entitled to some credit. Vicat, voc. Probatio.

HALF SEAL. A seal used in the English chancery for the sealing = of=20 commissions to delegates appointed upon any appeal, either in = ecclesiastioal or=20 marine causes.

HALF YEAR, In the computation of time, a half year consists of = one=20 hundred and eighty-two days. Co. Litt. 135 b; Rev. Stat., of N. Y. part = 1, c.=20 19, t. 1. =A73.

HALL. A public building used either for the meetings of = corporations,=20 courts, or employed to some public uses; as the city hall, the town = hall.=20 Formerly this word denoted the chief mansion or habitation.

HALLUCINATION, med. jur. It is a species of mania, by which = "an idea=20 reproduced by the memory is associated and embodied by the imagination." = This=20 state of mind is sometimes called delusion or waking dreams.

2. An attempt has been made to distinguish hallucinations from = illusions; the=20 former are said to be dependent on the state of the intellectual organs = and, the=20 latter, on that of those of sense. Ray, Med. Jur. =A799; 1 Beck, med. = Jur. 538,=20 note. An instance is given of a temporary hallucination in the = celebrated Ben=20 Johnson, the poet. He told a friend of his that he had spent many a = night in=20 looking at his great toe, about which he had seen Turks and Tartars, = Romans and=20 Carthagenians, fight, in his imagination. 1 Coll. on Lun. 34. If, = instead of=20 being temporary, this affection of his mind had been permanent, he would = doubtless have been considered insane. See, on the subject of spectral=20 illusions, Hibbert, Alderson and Farrar's Essays; Scott on Demonology, = &c.;=20 Bostock's Physiology, vol. 3, p. 91, 161;1 Esquirol, Maladies Mentales, = 159.

HALMOTE. The name of a court among the Saxons. It had civil = and=20 criminal jurisdiction.

HAMESUCKEN, Scotch law. The crime of hamesucken consists in = "the=20 felonious seeking and invasion of a person in his dwelling house." 1 = Hume,312;=20 Burnett, 86; Alison's Princ. of the Cr. Law of Scotl. 199.

2. The mere breaking into a house, without personal violence, does = not=20 constitute the offence, nor does the violence without an entry with = intent to,=20 commit an assault. It is the combination of both which completes the = crime. 1.=20 It is necessary that the invasion of the house should have proceeded = from=20 forethought malice; but it is sufficient, if, from any illegal motive, = the=20 violence has been meditated, although it may not have proceeded from the = desire=20 of wreaking personal revenge, properly so called.2. The place where the = assault=20 was committed must have been the proper dwelling house of the party = injured, and=20 not a place of business, visit, or occasional residence. 3. the offence = maybe=20 committed equally in the day as in the night, and not only by effraction = of the=20 building by actual force but by an entry obtained by fraud, with the = intention=20 of inflicting personal violence, followed by its perpetration. 4. But = unless the=20 injury to the person be of a grievous and material, character, it is not = hamesucken, though the other requisites to the crime have occurred. When = this is=20 the case, it is immaterial whether the violence be done lucri caus=E4, = or from=20 personal spite. 5. The punishment of hamesucken in aggravated cases of = injury,=20 is death in cases of inferior atrocity, an arbitrary punishment. = Alison's Pr. of=20 Cr. Law of Scotl. ch. 6; Ersk. Pr. L. Scotl. 4, 9, 23. This term wag = formerly=20 used in England instead of the now modern term burglary. 4 Bl. Com. = 223.

HAMLET, Eng. law. A small village; a part or member of a = vill.

HANAPER OFFICE, Eng.law. This is the name of one of the = offices=20 belonging to the English court of chancery. 3 Bl. Com. 49.

HAND. That part of the human body at the end of the arm.

2. Formerly the hand was considered as the symbol of good faith, and = some=20 contracts derive their names from the fact that the hand was used in = making=20 them; as handsale, (q. v.) mandatum, (q. v.) which comes from =E4 manu = dat=E4. The=20 hand is still used for various legal or forensic purposes. When a person = is=20 accused of a crime and he is arraigned, and he is asked to hold up his = right=20 hand; and when one is sworn as a witness, he is required to lay his = right hand=20 on the Bible, or to hold it up.

3. Hand is also the name of a measure of length used in ascertaining = the=20 height of horses. It is four inches long. See Measure: Ell.

4. In a figurative sense, by hand is understood a particular form of = writing;=20 as if B writes a good hand. Various kinds of hand have been used, as, = the=20 secretary hand, the Roman hand, the court hand, &c. Wills and = contracts may=20 be written in any of these, or any other which is intelligible.

HANDBILL. A printed or written notice put up on walls, = &c., in=20 order to inform those concerned of something to be done.

HANDSALE, contracts. Anciently, among all the northern = nations,=20 shaking of hands was held necessary to bind a bargain; a custom still = retained=20 in verbal contracts; a sale thus made was called handsale, venditio per = mutuam=20 manum complexionem. In process of time the same word was used to signify = the=20 price or earnest which was given immediately after the shaking of hands, = or=20 instead thereof. In some parts of the country it is usual to speak of = hand money=20 as the part of the consideration paid or to be paid at the execution of = a=20 contract of sale. 2 Bl. Com. 448. Heineccius, de Antique Jure Germanico, = lib. 2,=20 =A7335; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 2, n.33.

HANDWRITING, evidence. Almost every person's handwriting has = something=20 whereby it may be distinguished from the writing of others, and this = difference=20 is sometimes intended by the term.

2. It is sometimes necessary to prove that a certain instrument or = name is in=20 the handwriting of a particular person; that is done either by the = testimony of=20 a witness, who saw the paper or signature actually written, or by one = who has by=20 sufficient means, acquired such a knowledge of the general character of = the=20 handwriting of the party, as will enable him to swear to his belief, = that the=20 handwriting of the person is the handwriting in question. 1 Phil. Ev. = 422;=20 Stark. Ev. h. t.; 2 John. Cas. 211; 5 John. R. 144; 1 Dall. 14; 2 = Greenl. R. 33;=20 6 Serg. & Rawle, 668; 1 Nott & M'Cord,554; 19 Johns. R. 134; = Anthon's N.=20 P. 77; 1 Ruffin's R. 6; 2 Nott & M'Cord,400; 7 Com. Dig. 447; Bac. = Ab.=20 Evidence, M; Dane's Ab. Index, h. t.

HANGING, punishment. Death by the halter, or the suspending of = a=20 criminal, condemned to suffer death, by the neck, until life is extinct. = A mode=20 of capital punishment.

HANGMAN. The name usually given to a man employed by the = sheriff to=20 put a man to death, according to law, in pursuance of a judgment of a = competent=20 court, and lawful warrant. The same as executioner. (q. v.)

HAP. An old word which signifies to catch; as, "to hap the = rent," to=20 hap the deed poll." Techn. Dict. h. t.

HARBOR. A place where ships may ride with safety; any = navigable water=20 protected by the surrounding country; a haven. (q. v.) It is public = property. 1.=20 Bouv. Inst. n. 435.

To HARBOR, torts. To receive clandestinely or without lawful = authority=20 a person for the purpose of so concealing him that another having a = right to the=20 lawful custody of such person, shall be deprived of the same; for = example, the=20 harboring of a wife or an apprentice, in order to deprive the hushand or = the=20 master of them; or in a less technical sense, it is the reception of = persons=20 improperly. 10 N. H. Rep. 247; 4 Scam. 498.

2. The harboring of such persons will subject the barborer to an, = action for=20 the injury; but in order to put him completely in the wrong, a demand = should be=20 made for their restoration, for in cases where the harborer has not = committed=20 any other wrong than merely receiving the plaintiff's wife, child, or=20 apprentice, he may be under no obligation to return them without a = demand. 1=20 Chit. Pr. 564; Dane's Ab. Index, h. t.; 2 N. Car. Law Repos.249; 5 How. = U. S.=20 Rep. 215, 227.

HARD LABOR, punishment. In those states where the penitentiary = system=20 has been adopted, convicts who are to be imprisoned, as part of their=20 punishment, are sentenced to perform hard labor. This labor is not = greater than=20 many freemen perform voluntarily, and the quantity required to be = performed is=20 not at all unreasonable. In the penitentiaries of Pennsylvania it = consists in=20 being employed in weaving, shoemaking, and such like employments.

HART. A stag or male deer of the forest five years old = complete.

HAT MONEY, mar. law. The name of a small duty paid to the = captain and=20 mariners of a ship, usually called primage. (q. v.)

TO HAVE. These words are used in deeds for the conveyance of = land, in=20 that clause which usually declared for what estate the land is granted. = The same=20 as Habendum. (q. v.) Vide Habendum; Tenendum.

HAVEN. A place calculated for the reception of ships, and so = situated,=20 in regard to the surrounding land, that the vessel may ride at anchor in = it in=20 safety. Hale, de Port. Mar. c. 2; 2 Chit. Com. Law, 2; 15 East, R. 304, = 5. Vide=20 Creek; Port; Road.

HAWKERS. Persons going from place to place with goods and = merchandise=20 for sale. To prevent impositions they are generally required to take out = licenses, under regulations established by the local laws of the = states.

HAZARDOUS CONTRACT, civil law. When the performance of that = which is=20 one of its objects, depends on an uncertain event, the contract is said = to be=20 hazardous. Civ. Co. of Lo. art. 1769 1 Bouv. Inst. n. 707.

2. When a contract is hazardous, and the lender may lose all or some = part of=20 his principal, it is lawful for him to charge more than lawful interest = for the=20 use of his money. Bac. Ab. Usury D; 1 J. J. Marsh, 596; 3 J. J. Marsh, = 84.

HEAD BOROUGH, English law. Formerly he was a chief officer of = a=20 borough, but now he is an officer subordinate to constable. St. Armand, = Hist.=20 Essay on the Legisl. Power of Eng. 88.

HEALTH. Freedom from pain or sickness; the most perfect state = of=20 animal life. It may be defined, the natural agreement and concordant=20 dispositions of the parts of the living body.

2. Public health is an object of the utmost importance and has = attracted the=20 attention of the national and state legislatures.

3. By the act of Congress of the 25th of February, 1799, 1 Story's L. = U. S.=20 564, it is enacted: 1. That the quarantines and other restraints, which = shall be=20 established by the laws of any state, respecting any vessels arriving in = or=20 bound to any port or district thereof, whether coming from a foreign = port or=20 some other part of the United States, shall be observed and enforced by = all=20 officers of the United States, in such place. Sect. 1. 2. In times of = contagion=20 the collectors of the revenue may remove, under the provisions of the = act, into=20 another district. Sect. 4. 3. The judge of any district court may, when = a=20 contagious disorder prevails in his district, cause the removal of = persons=20 confined in prison under the laws of the United States, into another = district.=20 Sect. 5. 4. In case of the prevalence of a contagious disease at the = seat of=20 government, the president of the United States may direct the removal of = any or=20 all public offices to a place of safety. Sect. 6. 5. In case of such = contagious=20 disease, at the seat of government, the chief justice, or in case of his = death=20 or inability, the senior associate justice of the supreme court of the = United=20 States, may issue his warrant to the marshal of the district court = within which=20 the supreme court is by law to be holden, directing him to adjourn the = said=20 session of the said court to such other place within the same or = adjoining=20 district as he may deem convenient. And the district judges may, under = the same=20 circumstances, have the same power to adjourn to some other part of = their=20 several districts. Sect. 7.

3. Offences against the provisions of the health laws are generally = punished=20 by fine and imprisonment. These are offences against public health, = punishable=20 by the common law by fine and imprisonment, such for example, as selling = unwholesome provisions. 4 Bl. Com. 162; 2 East's P. C.822; 6 East, R.133 = to 141;=20 3 M. & S. 10; 4 Campb. R. 10.

4. Private injuries affecting a man's health arise upon a breach of = contract,=20 express or implied; or in consequence of some tortions act unconnected = with a=20 contract.

5. - 1. Those injuries to health which arise upon contract are, 1st. = The=20 misconduct of medical men, when, through neglect, ignorance, or wanton=20 experiments, they injure their patients. 1 Saund. 312, n. 2. 2d. By the = sale of=20 unwholesome food; though the law does not consider a sale to be a = warranty as to=20 the goodness or quality of a personal chattel, it is otherwise with = regard to=20 food and liquors. 1 Rolle's Ab. 90, pl. 1, 2.

6.-2. Those injuries which affect a man's health, and which arise = from=20 tortious acts unconnected with contracts, are, 1st. Private nuisances. = 2d.=20 Public nuisances. 3d. Breaking quarantine. 4th. By sudden alarms, and=20 frightening; as by raising a pretended ghost. 4 Bl. Com. 197, 201, note = 25;1=20 Hale, 429; Smith's Forens. Med. 37 to 39; 1 Paris & Fonbl. 351, 352. = For=20 private injuries affecting his health a man may generally have an action = on the=20 case.

HEALTH OFFICER. The name of an officer invested with power to = enforce=20 the health laws. The powers and duties of health officers are regulated = by local=20 laws.

HEARING, chwncery practice. The term, hearing is given to the = trial of=20 a chancery suit.

2. The hearing is conducted as follows. When the cause is called on = in court,=20 the pleadings on each side are opened in a brief manner to the court by = the=20 junior counsel for the plaintiff; after which the plaintiff's leading = counsel=20 states the plaintiff's case, and the points in issue, and submits to the = court=20 his arguments upon them. Then the depositions (if any) of the = plaintiff's=20 witnesses, and such parts of the defendant's answer as support the = plaintiff's=20 case are read by the plaintiff's solicitor; after which the rest of the=20 plaintiff's counsel address the court; then the same course of = proceedings is=20 observed on the other side, excepting that no part of the defendant's = answer can=20 be read in his favor, if it be replied to; the leading counsel for the = plaintiff=20 is then heard in reply; after which the court pronounces the decree, = Newl. Pr.=20 153, 4; 14 Vin. Ab. 233; Com. Dig. Chancery, T. 1, 2, 3.

HEARING, crim. law. The examination of a prisoner charged with = a crime=20 or misdemeanor, and of the witnesses for the accuser.

2. The magistrate should examine with care all the witnesses for the=20 prosecution, or so many of them as will satisfy his mind that there is=20 sufficient ground to believe the prisoner guilty, and that the case = ought to be=20 examined in court and the prisoner ought to be tried. If, after the = hearing of=20 all such witnesses, the offence charged is not made out, or, if made = out, the=20 matter charged is not criminal, the magistrate is bound to discharge the = prisoner.

3. When the magistrate cannot for want of time, or on account of the = absence=20 of a witness, close the hearing at one sitting, he may adjourn the case = to=20 -another day, and, in bailable offences, either take bail from the = prisoner for=20 his appearance on that day, or commit him for a further hearing. See = Further=20 hearing.

4. After a final hearing, unless the magistrate discharge the = prisoner, it is=20 his duty to take bail in bailable offences, and he is the sole judge of = the=20 amount of bail to be demanded this, however, must not be excessive. He = is the=20 sole judge, also, whether the offence be bailable or not. When the = defendant can=20 give the bail required, he must be discharged; when not, he must be = committed to=20 the county prison, to take his trial, or to be otherwise disposed of = according,=20 to law. See 1 Chit. Cr. Law, 72, ch. 2.

HEARSAY EVIDENCE. The evidence of those who relate, not what = they know=20 themselves, but what they have heard from others.

2. As a general rule, hearsay evidence of a fact is not admissible. = If any=20 fact is to be substantiated against a person, it ought to be proved in = his=20 presence by the testimony of a witness sworn or affirmed to speak the = truth.

3. There are, however, exceptions to the rule. 1. Hearsay is = admissible when=20 it is introduced, not as a medium of proof in order to establish a = distinct=20 fact, but as being in itself a part of the transaction in question, when = it is a=20 part of the res gestae. 1 Phil. Ev. 218; 4 Wash. C. C. R. 729; 14 Serg. = &=20 Rawle, 275; 21 How. St. Tr. 535; 6 East, 193.

4. - 2. What a witness swore on a former trial, between the same = parties, and=20 where the same point was in issue as in the second action, and he is = since dead,=20 what he swore to is in general, evidence. 2 Show. 47; 11 John. R. 446; 2 = Hen.=20 & Munf. 193; 17 John. R. 176; But see 14 Mass. 234; 2 Russ. on Cr. = 683, and=20 the notes.

5. - 3. The dying declarations of a person who has received a mortal = injury,=20 as to the fact itself, and the party by whom it was committed, are good = evidence=20 under certain circumstances. Vide Declarations, and 15 John. R. 286; 1 = Phil. Ev.=20 215; 2 Russ. on Cr. 683.

6. - 4. In questions concerning public rights, common reputation is = admitted=20 to be evidence.

7. - 5. The declarations of deceased persons in cases where they = appear to=20 have been made against their interest, have been admitted.

8. - 6. Declarations in cases of birth and pedigree are also to be = received=20 in evidence.

9. - 7. Boundaries may be proved by hearsay evidence, but, it seems, = it must=20 amount to common tradition or repute. 6 Litt. 7; 6 Pet. 341; Cooke, = R142; 4 Dev.=20 342; 1 Hawks 45; 4 Hawks, 116; 4 Day, 265. See 3 Ham. 283; 3 Bouv. Inst. = n.=20 3065, et seq. 10. There are perhaps a few more exceptions which will be = found in=20 the books referred to below. 2 Russ. on Cr. B. 6, c.3; Phil. Ev. ch. 7, = s. 7; 1=20 Stark. Ev. 40; Rosc. Cr. Ev. 20; Rosc. Civ. Ev.19 to 24; Bac. Ab. = Evidence, K;=20 Dane's Ab. Index, h. t. Vide also, Dig. 39,3, 2, 8; Id. 22, 3, 28. see = Gresl.=20 Eq. Ev. pt. 2, c. 3, s. 3, p. 218, for the rules in courts of equity, as = to=20 receiving hearsay evidence 20 Am. Jur.68.

HEDGE-BOTE. Wood used for repairing hedges or fences. 2 Bl. = Com. 35;=20 16 John. 15.

HEIFER. A young cow, which has not had a calf. A beast of this = kind=20 two years and a half old, was held to be improperly described in the = indictment=20 as a cow. 2 East, P. C. 616; 1 Leach, 105.

HEIR. One born in lawful matrimony, who succeeds by descent, = and right=20 of blood, to lands, tenements or hereditaments, being an estate of = inheritance.=20 It is an established rule oflaw, that God alone can make an heir. = Beame's=20 Glanville, 143; 1 Thomas, Co. Lit. 931; and Butler's note, p.938. Under = the word=20 heirs are comprehended the heirs of heirs in infinitum.1 Co. Litt. 7 b, = 9 a, 237=20 b; Wood's Inst. 69. According to many authorities, heir may be nomen=20 collectivuum, as well in a deed as in a will, and operate in both in the = same=20 mannar, as heirs in the plural number. 1 Roll. Abr. 253; Ambl. 453; = Godb. 155;=20 T. Jones, 111; Cro, Eliz.313; 1 Burr. 38; 10 Vin. Abr. 233, pl. 1; 8 = Vin. Abr.=20 233; sed vide 2 Prest. on, Est. 9, 10. In wills, in order to effectuate = the=20 intention of the testator, the word heirs is sometimes construed to mean = next of=20 kin; 1 Jac. & Walk. 388; and children, Ambl. 273. See further, as to = the=20 force and import of this word, 2 Vent. 311; 1 P. Wms. 229; 3 Bro. P. C. = 60, 454;=20 2 P. Wms. 1, 369; 2 Black. R. 1010; 4 Ves. 26, 766, 794; 2 Atk. 89, 580; = 5 East=20 Rep. 533; 5 Burr. 2615; 11 Mod. 189; 8 Vin. Abr. 317; 1 T. R. 630; Bac. = Abr.=20 Estates in fee simple, B.

2. There are several kinds of heirs specified below.

3. By the civil law, heirs are divided into testamentary or = instituted heirs=20 legal heirs, or heirs of the blood; to which the Civil Code of Louisiana = has=20 added irregular heirs. They are also divided into unconditional and = beneficiary=20 heirs.

4. It is proper here to notice a difference in the meaning of the = word heir,=20 as it is understood by the common and by, the civil law. By the civil = law, the=20 term heirs was applied to all persons who were called to the succession, = whether=20 by the act of the party or by operation of law. The person who was = created=20 universal successor by a will, was called the testamentary heir; and the = next of=20 kin by blood was, in cases of intestaby, called the heir at law, or heir = by=20 intestacy. The executor of the common law is, in many respects, not = unlike the=20 testamentary heir of the civil law. Again, the administrator ln many = respects=20 corresponds with the heir by intestacy. By the common law, executors = unless=20 expressly authorized by the will and administrators, have no right, = except to=20 the personal estate of the deceased; whereas, the heir by the civil law = was=20 authorized to administer both the personal and real estate. 1 Brown's = Civ. Law,=20 344; Story, Confl. of Laws, =A7508.

5. All free persons, even minors, lunatics, persons of insane mind or = the=20 like, may transmit their estates as intestate ab intestato, and inherit = from=20 others. Civ. Code of Lo., 945; Accord, Co. Lit. 8 a.

6. The child in its mother's womb, is considered as born for all = purposes of=20 its own interest; it takes all successions opened in its favor, after = its=20 conception, provided it be capable of succeeding at the moment of its = birth.=20 Civ. Code of Lo. 948. Nevertheless, if the child conceived is reputed = born, it=20 is only in the hope of its birth; it is necessary then that the child be = born=20 alive, for it cannot be said that those who are born dead ever = inherited. Id.=20 949. See In ventre sa mere.

HEIR. APPARENT. One who has an indefeasible right to the = inheritance,=20 provided he outlive the ancestor. 2 Bl. Com. 208.

HEIR, BENEFICIARY. A term used in the civil law. Beneficiary = heirs are=20 those who have accepted the succession under the benefit of an inventory = regularly made. Civ. Code of Lo. art. 879. If the heir apprehend that = the=20 succession-will be burdened with debts beyond its value, he accepts with = benefit=20 of inventory, and in that case he is responsible only for the value of = the=20 succession. See inventory, benefit of.

HEIR, COLLATERAL. A collateral heir is one who is not of the = direct=20 line of the deceased, but comes from a collateral line; as, a brother, = sister,=20 an uncle and aunt, a nephew, niece, or cousin of the deceased.

HEIR, CONVENTIONAL, civil law. A conventional heir is one who = takes a=20 succession by virtue of a contract; for example, a marriage contract, = which=20 entitles the heir to the succession.

HEIR, FORCED. Forced heirs are those who cannot be = disinherited. This=20 term is used among the civilians. Vide Forced heirs

HEIR, GENERAL. Heir at common in the English law. The heir at = common=20 law is he who, after his father or ancestor's death has a right to, and = is=20 introduced into all his lands, tenements and hereditaments. He must be = of the=20 whole blood, not a bastard, alien, &c. Bac. Abr. Heir, B 2; = Coparceners;=20 Descent.

HEIR, IRREGULAR. In Louisiana, irregular heirs are those who = are=20 neither testamentary nor legal, and who have been established by law to = take the=20 succession. See Civ. Code of Lo. art. 874. When the deceased has left = neither=20 lawful descendants nor ascendants, nor collateral relations, the law = calls to=20 his inheritance either the surviving hushand or wife, or his or her = natural=20 children, or the state. Id. art., 911. This is called an irregular=20 succession.

HEIR AT LAW. He who, after his ancestor's death intestate, has = a right=20 to all lands, tenements, and hereditaments, which belonged to him, or of = which=20 he was seised. The same as heir general. (q. v.)

HEIR, LEGAL, civil law. A legal heir is one who is of the same = blood of=20 the deceased, and who takes the succession by force of law; this is = different=20 from a testamentary or conventional heir, who takes the succession in = virtue of=20 the disposition of man. See Civil, Code of Louis. art. 873, 875; Dict. = de=20 Jurisp., Heritier legitime. There are three classes of legal heirs, to = wit; the=20 children and other lawful descendants; the fathers and mothers and other = lawful=20 ascendants; and the collateral kindred. Civ. Code of Lo. art. = 883.

HEIR LOOM, estates. This word seems to be compounded of heir = and loom,=20 that is, a frame, viz. to weave in. Some derive the word loom from the = Saxon=20 loma, or geloma, which signifies utensils or vessels generally. However = this may=20 be, the word loom, by time, is drawn to a more general signification, = than it,=20 at the first, did bear, comprehending all implements of household; as, = tables,=20 presses, cupboards, bedsteads, wainscots, and which, by the custom of = some=20 countries, having belonged to a house, are never inventoried after the = decease=20 of the owner, as chattels, but accrue to the heir, with the house itself = minsheu. The term heir looms is applied to those chattels which are = considered=20 as annexed and necessary to the enjoyment of an inheritance.

2. They are chattels which, contrary to the nature of chattels, = descend to=20 the heir, along with the inheritance, and do not pass to the executor of = the=20 last proprietor. Charters, deeds, and other evidences of the title of = the land,=20 together with the box or chest in which they are contained; the keys of = a house,=20 and fish in a fish pond, are all heir looms. 1 Inst. 3 a; Id. 185 b; 7 = Rep. 17=20 b; Cro. Eliz. 372; Bro. Ab. Charters, pl. 13; 2 Bl. Com. 28; 14 Vin. Ab. = 291.=20

HEIR PRESUMPTIVE. A presumptive heir is one who, in the = present=20 circumstances, would be entitled to the inheritance, but whose rights = may be=20 defeated by the contingency of some nearer heir being born. 2 B1 = Com.208. In=20 Louisiana, the presumptive heir is he who is the nearest relation of the = deceased, capable of inheriting. This quality is given to him before the = decease=20 of the person from whom he is to inherit, as well as after the opening = of the=20 succession, until he has accepted or renounced it. Civ. Code of Lo. art. = 876.

HEIR, TESTAMENTARY, civil law. A testamentary heir is one who = is=20 constituted heir by testament executed in the form prescribed by law. He = is so=20 called to distinguish him from the legal heirs, who are called to the = succession=20 by the law; and from conventional heirs, who are so constituted by a = contract=20 inter vivos. See Haeres factus; Devisee.

HEIR, UNCONDITIONAL. A term used in the civil law, adopted by = the=20 Civil Code of Louisiana. Unconditional heirs are those who inherit = without any=20 reservation, or without making an inventory, whether their acceptance be = express=20 or tacit. Civ. Code of Lo. art. 878.

HEIRESS. A female heir to a person having an estate of = inheritance.=20 When there is more than one, they are called co-heiresses, or co-heirs.=20 HEPTARCHY, Eng. law. The name of the kingdom or government established = by the=20 Saxons, on their establishment in Britain so called because it was = composed of=20 seven kingdoms, namely, Kent, Essex, Sussex, Wessex, East Anglia, = Mercia, and=20 Northumberland.

HERALDRY, civil and canon law. The art or office of a herald. = It is=20 the art, practice, or science of recording genealogies, and blazoning = arms or=20 ensigns armorial. It also teaches whatever relates to the marshaling of=20 cavalcades, processions, and other public ceremonies. Encyc.; Ridley's = View of=20 the Civil and Canon Law, pt. 2, c. 1, =A76.

HERBAGE, English Law, A species of easement, which consists in = the=20 right to feed one's cattle on another man's ground.

HEREDITAMENTS, estates. Anything capable of being inherited, = be it=20 corporeal or incorporeal, real, personal, or mixed and including not = only lands=20 and everything thereon, but also heir looms, and certain furniture = which, by=20 custom, may descend to the heir, together with the land. Co. Litt. 5 b; = 1 Tho.=20 Co. Litt. 219; 2 Bl. Com. 17. By this term such things are denoted, as = may be=20 the subject-matter of inheritance, but not the inheritance itself; it = cannot=20 therefore, by its own intrinsic force, enlarge an estate, prima facie a = life=20 estate, into a fee. 2 B. & P. 251; 8 T. R. 503; 1 Tho. Co. Litt. = 219, note=20 T.

2. Hereditaments are divided into corporeal and incorporeal. = Corporeal=20 hereditaments are confined to lands. (q. v.) Vide Incorporeal = hereditaments, and=20 Shep. To. 91; Cruise's Dig. tit. 1, s. 1; Wood's Inst.221; 3 Kent, Com. = 321;=20 Dane's Ab. Index, h.t.; 1 Chit. Pr. 203-229; 2 Bouv. Inst. n. 1595, et = seq.

HEREDITARY. That which is inherited.

HERESY, Eng. law. The adoption of any erroneous religious = tenet, not=20 warranted by the established church.

2. This is punished by the deprivation of certain civil rights, and = by fine=20 and imprisonment. 1 East, P. C. 4.

3. In other countries than England, by heresy is meant the = profession, by=20 Christians, of religious opinions contrary to the dogmas approved by the = established church of the respective countries. For an account of the = origin and=20 progress of the laws against heresy, see Giannoni's Istoria di Napoli, = vol. 3,=20 pp, 250, 251, &c.

4. in the United State, happily, we have no established religion; = there can,=20 therefore, be no legal heresy. Vide Apostacy; Christianity.

HERISCHILD. A species of English military service, or knight's = fee.

HERIOTS, Eng. law. A render of the best beast or other goods, = as the=20 custom may be, to the lord, on the death of the tenant. 2 Bl. Com. = 97.

2. They are usually divided into two sorts, heriot service, and = heriot=20 custom; the former are such as are due upon a special reservation in the = grant=20 or lease of lands, and therefore amount to little more than a mere rent; = the=20 latter arise upon no special reservation whatsoever, but depend merely = upon=20 immemorial usage and custom. These are defined to be a customary tribute = of=20 goods and chattels, payable to the lord of the fee, on the decease of = the owner=20 of the land. 2 Bl. Com. 422. Vide Com. Dig. Copyhold, K 18; Bac. Ab. h. = t.; 2=20 Saund. lndex, h. t.; 1 Vern. 441.

HERITAGE. By this word is understood, among the civilians, = every=20 species of immovable which can be the subject of property, such as = lands,=20 houses, orchards, woods, marshes, ponds, &c., in whatever mode they = may have=20 been acquired, either by descent or purchase. 3 Toull. 472. It is = something that=20 can be inherited. Co. Litt. s. 731.

HERMAPHRODITES. Persons who have in the sexual organs the = appearance=20 of both sexes. They are adjudged to belong to that which prevails in = them. Co.=20 Litt. 2, 7; Domat, Lois Civ. liv. 1, t. 2, s. 1, n.. 9.

2. The sexual characteristics in the human species are widely = separated, and=20 the two sexes are never, perhaps, united in the same individual. 2 = Dunglison's=20 Hum. Physiol. 304; 1 Beck's Med. Jur. 94 to 110.

3. Dr. William Harris, in a lecture delivered to the Philadelphia = Medical=20 Institute, gives an interesting account of a supposed hermaphrodite who = came=20 under his own observation in Chester county, Pennsylvania. The = individual was=20 called Elizabeth, and till the age of eighteen, wore the female dress, = when she=20 threw it off, and assumed the name of Rees, with the dress and habits of = a man;=20 at twenty-five, she married a woman, but had no children. Her clitoris = was five=20 or six inches long, and in coition, which she greatly enjoyed, she used = this=20 instead of the male organ. She lived till she was sixty years of age, = and died=20 in possession of a large estate, which she had acquired by her industry = and=20 enterprise. Medical Examiner, vol. ii. p, 314. Vide 1 Briand, M=B4d. = L=B4g. c. 2,=20 art. 2 , =A72, n. 2; Dict. des Sciences M=B4d. art. Hypospadias, et art. = Impuissance; Guy, Med. Jur. 42,47.

HIDE, measures. In England, a hide of land, according to some=20 ancient-manuscripts, contained one hundred and twenty acres. Co. Litt. = 5; Plowd.=20 167; Touchst. 93.

HIERARCHY, eccl. law. A hierarchy signified, originally, power = of the=20 priest; for in the beginning of societies, the priests were entrusted = with all=20 the power but, among the priests themselves, there were different = degrees of=20 power and authority, at the summit of which was the sovereign pontiff, = and this=20 was called the hierarchy. Now it signifies, not so much the power of the = priests=20 as the border of power.

HIGH. This word has various signifcations: 1. Principal or = chief, as=20 high constable, high sheriff. 2. Prominent, in a bad sense, as high = treason. 3.=20 Open, not confined, as high seas.

HIGH CONSTABLE. An officer appointed in some cities bears this = name.=20 His powers are generally Iimited to matters of police, and are not more=20 extensive in these respects than those of constables. (q. v.)

HIGH COURT OF DELEGATES, English law. The name of a court = esthlished=20 by stat. 25 Hen. VIII. c. 19, s. 4. No permanent judges are appointed, = but in=20 every case of appeal to this court, there issues a special commission, = under the=20 great seal of Great Britain, directed to such persons as the lord = chancellor,=20 lord keeper, or lords commissioners of the great seal, for the time = being, shall=20 think fit to appoint to bear and determine the same. The persons usually = appointed, are three puisne judges, one from each court of common law, = and three=20 or more civilians; but in special cases, a fuller commission is = sometimes=20 issued, consisting of spiritual and temporal peers, judges of the common = law,=20 and civilians, three of each description. In case of the court being = equally=20 divided, or no common law judge forming part of the majority, a = commission of=20 adjuncts issues, appointing additional judges of the same description. 1 = Hagg.=20 Eccl. R. 384; 2 Hagg. Eccl. R. 84; 3 Hagg. Ecel. R. 471; 4 Burr. = 2251.

HIGH SEAS. This term, which is frequently used in the laws of = the=20 United States signifies the unenclosed waters of the ocean, and also = those=20 waters on the sea coast which are without the boundaries of low water = mark. 1=20 Gall. R. 624; 5 Mason's R. 290; 1 Bl. Com. 110; 2 Haze. Adm. R. 398; = Dunl. Adm.=20 Pr. 32, 33.

2. The Act of Congress of April 30 1790, s. 8, 1 Story'S L. U. S. 84, = enacts,=20 that if any person shall commit upon the high seas, or in any river, = haven,=20 basin, or bay, out of the jurisdiction of any particular state, murder, = &c.,=20 which, if committed within the body of a county, would, by the laws of = the=20 United States, be punishable with death, every such offender, being = thereof=20 convicted, shall suffer death and the trial of crimes committed on the = high=20 seas, or in any place out of the jurisdiction of any particular state, = shall be=20 in the district where the offender is apprehended, or into which he may = first be=20 brought. See 4 Dall. R. 426; 3 Wheat. R. 336; 5 Wheat 184, 412; 3 W. C. = C. R.=20 515; Serg. Const. Law, 334;13 Am. Jur. 279 1 Mason, 147, 152; 1 Gallis. = 624.

HIGH TREASON, English law. Treason against the king, in=20 contradistinction with petit treason, which is the treason of a servant = towards=20 his master; a wife towards her hushand; a secular or religious man = against his=20 prelate. See Petit treason; Treason.

HIGH WATER MARK. That part of the shore of the sea to which = the waves=20 ordinarily reach when he tide is at its highest. 6 Mass. R. 435; 1 Pick. = R.180;=20 1 Halst. R. 1; 1 Russ. on Cr. 107; 2 East, P. C. 803. Vide Sea shore; = Tide.

HIGHEST BIDDER, contracts. He who, at an auction, offers the = greatest=20 price for the property sold.

2. The highest bidder is entitled to have the article sold at his = bid,=20 provided there has been no unfairness on his part. A distinction has = been made=20 between the highest and the best bidder. In judicial sales, where the = highest=20 bidder is unable to pay, it is said the sheriff may offer the property = to the=20 next highest, who will pay, and he is considered the highest best = bidder. 1=20 Dall. R. 419.

HIGHWAY. A passage or road through the country, or some parts = of it,=20 for the use of the people. 1 Bouv. Inst. n. 442. The term highway is = said to be=20 a generic name for all kinds of public ways. 6 Mod R, 255.

2. Highways are universally laid out by public authority and repaired = at the=20 public expense, by direction of law. 4 Burr. Rep. 2511.

3. The public have an easement over a highway, of which the owner of = the land=20 cannot deprive them; but the soil and freehold still remain in the = owner, and he=20 may use the land above and below consistently with the easement. He may, = therefore, work a mine, sink a drain or water course, under the highway, = if the=20 easement remains unimpaired. Vide Road; Street; Way; and 4 Vin. Ab. 502; = Bac.=20 Ab. h. t.; Com. Dig. Chemin; Dane's Ab. Index, h. t.; Egremont on = Highways;=20 Wellbeloved on Highways; Woolrych on Ways; 1 N. H. Rep. 16; 1 Conn. R. = 103; 1=20 Pick. R. 122; 1 M'Cord's R. 67; 2 Mass. R. 127; 1 Pick. R. 122; 3 Rawle, = R. 495;=20 15 John. R. 483; 16 Mass. R.33; 1 Shepl. R. 250; 4 Day, R. 330; 2 Bail. = R. 271;=20 1 Yeates, Rep. 167.

4. The owners of lots on opposite sides of a highway, are prima facie = owners,=20 each of one half of the highway,, 9 Serg. & Rawle, 33; Ham. Parties, = 275;=20 Bro. Abr. Nuisance, pl. 18 and the owner may recover the possession in=20 ejectment, and have it delivered to him, subject to the public easement. = Adams=20 on Eject. 19, 18; 2 Johns. Rep. 357; 15 Johns. Rep.447; 6 Mass. 454; 2 = Mass.=20 125.

5. If the highway is impassable, the public have the right to pass = over the=20 adjacent soil; but this rule does not extend to private ways, without an = express=20 grant. Morg. Vad. Mec. 456-7; 1 Tho. Co. Lit. 275; note 1 Barton, Elem. = Conv.=20 271; Yelv. 142, note 1.

HIGHWAYMAN. A robber on the highway.

HILARY TERM, Eng. law. One of the four terms of the courts, = beginning=20 the11th and ending the 31st day of January in each year.

HIGLER, Eng. law. A person who carries from door to door, and = sells by=20 retail, small articles of provisions, and the like.

HIRE, contracts. A bailment, where a compensation is to be = given for=20 the use of a thing, or for labor or services about it. 2 Kent's Com. = 456; 1=20 Bell's Com. 451; Story on Bailim. =A7369; see 1 Bouv. Inst. n. 980, et = seq;=20 Pothier, Contrat de Louage, ch. 1, n. 1; Domat, B. 1, tit. 4 =A71, n. 1 = Code Civ.=20 art.. 1709, 1710; Civ. Code of Lo., art. 2644, 2645. See this Dict. = Hirer;=20 Letter.

2. The contract of letting and hiring is usually divided into two = kinds;=20 first, Locatio, or Locatio conductio rei, the bailment of a thing to be = used by=20 the hirer, for a compensation to be paid by him.

3. Secondly, Locatio operis, or the hire of the labor and services of = the=20 hirer, for a compensation to be paid by the letter.

4. And this last kind is again subdivided into two classes: 1. = Locatio operis=20 faciendi, or the hire of labor and work to be done, or care and = attention to be=20 bestowed on the goods let by the hirer, for a compensation; or,

5. - 2. Locatio operis mercium vehendarum, or the hire and carriage = of goods=20 from one place to another, for a compensation. Jones' Bailm. 85, 86,90, = 103,=20 118; 2 Kent's Com. 456; Code Civ. art. 1709, 1710, 1711.

6. This contract arises from the principles of natural law; it is = voluntary,=20 and founded in consent; it involves mutual and reciprocal obligations; = and it is=20 for mutual benefit. In some respects it bears a strong resemblance to = the=20 contract of sale, the principal difference between them being, that in = cases of=20 sale, the owner, parts with the whole proprietary interest in the thing; = and in=20 cases of hire, the owner parts with it only for a temporary use and = purpose. In=20 a sale, the thing itself is the object of the contract; in hiring, the = use of=20 the thing is its object. Vinnius, lib. 3, tit. 25, in pr.; Pothier, = Louage, n.=20 2, 3, 4; Jones Bdilm. 86; Story on Bailm. =A7371.

7. Three things are of the essence of the contract: 1. That there = should be a=20 thing to be let. 2. A price for the hire. 3. A contract possessing a = legal=20 obligation. Pothier, Louage, n. 6; Civ. Code of Lo. art. 2640.

8. There is a species of contract in which, though no price in money = be paid,=20 and which, strictly speaking, is not the contract of hiring, yet = partakes of its=20 nature. According to Pothier, it is an agreement which must be classed = with=20 contracts do ut des. (q. v.) It frequently takes place among poor people = in the=20 country. He gives the following example: two poor neighbors, each owning = a=20 horse, and desirous to plough their respective fields, to do which two = horses=20 are required, one agrees that he will let the other have his horse for a = particular time, on condition that the latter will let the former have = his horse=20 for the same length of time. Du Louage n. 458. This contract is not a = hiring,=20 strictly speaking, for want of a price; nor is it a loan for use, = because there=20 is to be a recompense. It has been supposed to be a partnership; but it = is=20 different from that contract, because there is no community of profits. = This=20 contract is, in general, ruled by, the same principles which govern the = contract=20 of hiring.19 Toull. n. 247.

9. Hire also, means the price given for the use of the thing hired; = as, the=20 hirer is bound to pay the hire or recompense. Vide Domat. liv. 1, tit.4; = Poth.=20 Contrat de Louage; Toull. tomes 18, 19, 20; Merl. R=B4pert. mot Louage; = Dalloz,=20 Dict. mot Louage; Argou, Inst. liv. 3, c. 27.

HIRER, contracts. Called, in the civil law, conductor, and, in = the=20 French law conducteur, procureur, locataire, is he who takes a thing = from=20 another, to use it, and pays a compensation therefor. Wood's Inst. B. 3, = c. 5,=20 p.236; Pothier, Louage, n. 1; Domat, B. 1, tit. 4, =A71, n. 2; Jones' = Bailm. 70;=20 see this Dict. Letter.

2. There is, on the part of the hirer, an implied obligation, not = only to use=20 the thing with due care and moderation but not to apply it to any other = use than=20 that for which it is hired; for example, if a horse is hired as a = saddle, horse;=20 the hirer has no right to use the horse in a cart, or to carry loads, or = as a=20 beast of burden. Pothier Louage, n. 189; Domat, B.1, tit. 4, =A72, art. = 2, 3;=20 Jones' Bailm. 68, 88; 2 Saund. 47 g, and note; 1 Bell's Com. 454; 1 = Cowen's R.=20 322; 1 Meigs, R. 459. If a carriage and horses are hired to go from = Philadelphia=20 to New York, the hirer has no right to go with them on a journey to = Boston.=20 Jones' Bailm. 68; 2 Ld. Raym.915. So, if they are hired for a week, he = has no=20 right to use them for a month, Jones' Bailm. 68; 2 Ld. Raym. 915; 5 = Mass. 104.=20 And if the thing be used for a different purpose from that which was = intended by=20 the parties, or in a different manner, or for a longer period, the hirer = is not=20 only responsible for all damages, but if a loss occur, although by = inevitable=20 casualty, he will be responsible therefor. 1 Rep. Const. C. So. Car. = 121; Jones'=20 Bailm. 68, 121; 2 Ld. Raym. 909, 917. In short, such a misuser is deemed = a=20 conversion of the property, for which the hirer is deemed responsible. = Bac. Abr.=20 Bailment, C; Id. Trover, C, D, E; 2 Saund. 47 g; 2 Bulst. 306, 309.

3. The above rules apply to cases where the hirer has the possession = as well=20 as the use of the thing hired when the owner or his agents retain the=20 possession, the hirer is not in general responsible for an injury done = to it.=20 For example, when the letter of a carriage and a pair of horses sent his = driver=20 with them and an injury occurred, the hirer was held not to be = responsible. 9=20 Watts, R. 556, 562; 5 Esp. R. 263; Poth. Louage n. 196; Jones, Bailm. = 88;=20 Story., Bailm. =A7403. But see 1 Bos. & P. 404, 409; 5 Esp. N. P. c = 35; 10 Am.=20 Jur. 256.

4. Another implied obligation of the hirer is to restore the thing = hired,=20 when the bailment, is determined. 4 T. R. 260; 3 Camp. 5, n.; 13 Johns.=20 R.211.

5. The time, the place, and the mode of restitution of the thing = hired, are=20 governed by the circumstances of each case depend and depend upon rules = of=20 presumption of the intention of the parties, like those in other cases = of=20 bailment. Story on Bailm. =A7415

6. There is also an implied obligation on the part of the hirer, to = pay the=20 hire or recompense. Pothier, Louage, n. 134; Domat, B. 2, tit. 2, =A72, = n. 11 Code=20 Civ; art. 1728. See, generally, Bouv. Inst. Index, h. t.; Employer; = Letter.

HIS EXCELLENCY. A title given by the constitution of = Massaebusetts to=20 the governor of that commonwealth. Const. part 2, c. 2, s. 1, art. 1. = This title=20 is customarily given to the governors of the other states, whether it be = the=20 official designation in their constitutions and laws or not.

HIS HONOR. A title given by the constitution of Massachusetts = to the=20 lieu- tenant governor of that commonwealth. Const. part 2, c. 2, s. 2, = art.1.=20 It, is also customarily given to some inferior magistrates, as the mayor = of a=20 city.

HISTORY, evidence. The recital of facts written and given out = for=20 true.

2. Facts stated in histories may be read in evidence, on the ground = of their=20 notoriety. Skin. R. 14; 1 Ventr. R. 149. But these facts must be of a = public=20 nature, and the general usages and customs of the country. Bull. P.248; = 7 Pet.=20 R. 554; 1 Phil. & Am. Ev. 606; 30 Howell's St. Tr. 492. Histories = are not=20 admissible in relation to matters not of a public nature, such as the = custom of=20 a particular town, a descent, the boundaries of a county, and the like. = 1 Salk.=20 281; S. C. Skin. 623; T. Jones, 164; 6 C. & P. 586, note. See 9 Ves. = 347; 10=20 Ves. 354; 3 John. 385; 1 Binn. 399; and Notoriety.

HODGE-PODGE ACT. A name given to a legislative act which = embraces many=20 subjects. Such acts, besides being evident proofs of the ignorance of = the makers=20 of them, or of their want of good faith, are calculated to create a = confusion=20 which is highly prejudicial to the interests of justice. Instances of = this=20 wretched legislation are everywhere to be found. See Barring on the = Stat. 449.=20 Vide Title; Legislation.

HOERES FACTUS, civil law. An heir instituted by testament; one = made an=20 heir by the testator. Vide Heir.

HOERES NATUS, civil law. An heir by intestacy; he on whom an = estate=20 descends by operation of law. Vide Heir.

HOGSHEAD. A measure of wine, oil, and the like, containing = half a=20 pipe; the fourth part of a tun, or sixty-three gallons.

TO HOLD. These words are now used in a deed to express by what = tenure=20 the grantee is to have the land. The clause which commences with these = words is=20 called the tenendum. Vide Habendum; Tenendum.

2. To hold, also means to decide, to adjudge, to decree; as, the = court in=20 that case held that the hushand was not liable for the contract of the = wife,=20 made without his express or implied authority.

3. It also signifies to bind under a contract, as the obligor is held = and=20 firmly bound. In the constitution of the United States, it is provided, = that no=20 person held to service or labor in one state under the laws thereof, = escaping=20 into another, shall, in consequence of any law or regulation therein, be = discharged from such service or labor, but shall be delivered up on the = claim of=20 the party to whom such service or labor may be due. Art. 4, sec. 3, = =A73; 2 Serg.=20 & R. 306; 3 Id. 4; 5 Id. 52; 1 Wash. C. C. R. 500; 2 Pick. 11; 16 = Pet. 539,=20 674.

HOLDER. The holder of a bill of exchange is the person who is = legally=20 in the possession of it, either by endorsement or delivery, or both, and = entitled to receive payment either from the drawee or acceptor, and is=20 considered as an assignee. 4 Dall. 53. And one who endorses a promissory = note=20 for collection, as an agent, will be considered the holder for the = purpose of=20 transmitting notices. 2 Hall, R. 112; 6 How. U. S. 248; 20 John.372. = Vide Bill=20 of Exchange.

HOLDING OVER. The act of keeping possession by the tenant, = without the=20 consent of the landlord of premises which the latter, or those under = whom he=20 claims, had leased to the former, after the term has expired.

2. When a proper notice has been given, this injury is remedied by,=20 ejectment, or, under local regulations, by summary proceedings. Vide 2 = Yeates'=20 R. 523; 2 Serg. & Rawle, 486; 5 Binn. 228; 8 Serg. & Rawle, 459; = 1 Binn.=20 334, a.; 5 Serg. & Rawle 174; 2 Serg. & Rawle, *50; 44 Rawle, = 123.

HOLOGRAPH. What is written by one's own hand. The same as = Olograph.=20 Vide Olograph.

HOMAGE, Eng. law. An acknowledgment made by the vassal in the = presence=20 of his lord, that he is his man, that is, his subject or vassal. The = form in law=20 French was, Jeo deveigne vostre home.

2. Homage was liege and feudal. The former was paid to the king, the = latter=20 to the lord. Liege, was borrowed from the French, as Thaumas informs us, = and=20 seems to have meant a service that was personal and inevitable. Houard, = Cout.=20 Anglo Norman, tom. 1, p. 511; Beames; Glanville, 215, 216,218, = notes.

HOME PORT. The port where the owner of a ship resides; this is = a=20 relative term.

HOMESTALL. The mansion-house.

HOMESTEAD. The place of the house or home place. Homestead = farm does=20 not necessarily include all the parcels of land owned by the grantor, = though=20 lying and occupied together. This depends upon the intention of the = parties when=20 the term is mentioned in a deed, and is to be gathered from the context. = 7 N. H.=20 Rep. 241; 15 John. R. 471. See Manor; Mansion.

HOMICIDE, crim. law. According to Blackstone, it is the = killing of any=20 human creature. 4 Com. 177. This is the most extensive sense of this = word, in=20 which the intention is not considered. But in a more limited sense, it = is always=20 understood that the killing is by human agency, and Hawkins defines it = to be the=20 killing of a man by a man. 1 Hawk. c. 8, s. 2. See Dalloz, Dict. h. t. = Homicide=20 may perhaps be described to be the destruction of the life of one human = being,=20 either by himself, or by the act, procurement, or culpable omission of = another.=20 When the death has been intentionally caused by the deceased himself, = the=20 offender is called felo de se; when it is caused by another, it is = justifiable,=20 excusable, or felonious.

2. The person killed must have been born; the killing before birth is = balled=20 foeticide. (q. v.)

3. The destruction of human life at any period after birth, is = homicide,=20 however near it may be to extinction, from any other cause.

4. - 1. Justifiable homicide is such as arises, 1st. From unavoidable = necessity, without any will, intention or desire, and without any = inadvertence=20 in the party killing, and therefore without blame; as, for instance, the = execution, according to law, of a criminal who has been lawully = sentenced to be=20 hanged; or, 2d. It is committed for the advancement of public justice; = as if an=20 officer, in the lawful execution of his office, either in a civil or = criminal=20 case, should kill a person who assaults and resists him. 4 Bl. Com. = 178-1 80.=20 See Justifiable Homicide.

5. - 2. Excusable homicide is of two kinds 1st. Homicide per = infortunium. (q.=20 v.) or, 2d. Se defendendo, or self defence. (q. v.) 4 Bl. Com. 182, = 3.

6. - 3. Felonious homicide, which includes, 1. Self-murder, or = suicide;2.=20 Man-slaughter, (q. v.); and , 3. Murder. (q. v.) Vide, generally, 3 = Inst. 47 to=20 57; 1 Hale P. C. 411 to 602; 1 Hawk. c. 8; Fost. 255 to 837; 1 East, P. = C. 214=20 to 391; Com. Dig. Justices, L. M.; Bac. Ab. Murder and Homicide; Burn's = Just. h.=20 t.; Williams' Just. h. t.; 2 Chit. Cr. Law, ch.9; Cro. C. C. 285 to 300; = 4 Bl.=20 Com. to 204; 1 Russ. Cr. 421 to 553; 2 Swift's Dig. 267 to 292.

HOMINE CAPTO IN WITHERNAM, Engl. law.. The name of a writ = directed to=20 the sheriff, and commanding him to take one who has taken any bondsman, = and=20 conveyed him out of the country, so that he cannot be replevied. Vide = Withernam;=20 Thesaurus, Brev. 63.

HOMINE ELIGENDO, English law. The name of a writ directed to a = corporation, requiring the members to make choice of a new man, to keep = the one=20 part of a seal appointed for statutes merchant. Techn. Dict. h. t.

HOMINE REPLEGIANDO. When a man is unlawfully in custody, he = may be=20 restored to his liberty by writ de hominereplegiando, upon giving bail; = or by a=20 writ of habeas, corpus, which is the more usual remedy. Vide Writ de = homine=20 replegiando.

HOMO. This Latin word, in its most enlarged sense, includes = both man=20 and woman. 2 Inst. 45. Vide Man.

HOMOLOGATION, civil law. Approbation, confirmation by a court = of=20 justice, a judgment which orders the execution of some act; as, the = approbation=20 of an award, and ordering execution on the same. Merl. Rep=B4rt. h. t.; = Civil Code=20 of Louis. Index, h. t.; Dig. 4, 8; 7 Toull. n. 224. To homologate, is to = say the=20 like, similiter dicere. 9 Mart. L. R. 324.

HONESTY. That principle which requires us to give every one = his due.=20 Nul ne doit slenrichir aux de ens du droit d'autrui.

2. The very object of social order is to promote honesty, and to = restrain=20 dishonesty; to do justice and to prevent injustice. It is no less a = maxim of law=20 than of religion, do unto others as you wish to be done by.

HONOR. High estimation. A testimony of high estimation. = Dignity.=20 Reputation. Dignified respect of character springing from probity, = principle, or=20 moral rectitude. A duel is not justified by any insult to our honor. = Honor is=20 also employed to signify integrity in a judge, courage in a soldier, and = chastity in a woman. To deprive a woman of her honor is, in some cases, = punished=20 as a public wrong, and by an action for the recovery of damages done to = the=20 relative rights of a hushand or a father. Vide Criminal = conversation.

2. In England, when a peer of parliament is sitting judicially in = that body,=20 his pledge of honor is received instead of an oath; and in courts of = equity,=20 peers, peeresses, and lords of parliament, answer on their honor only. = But the=20 courts of common law know no such distinction. It is needless to add, = that as we=20 are not encumbered by a nobility, there is no such distinction in the = United=20 States, all persons being equal in the eye of the law.

HONOR, Eng. law. The seigniory of a lord paramount. 2 Bl. Com. = 9f.

TO HONOR, contr. To accept a bill of exchange; to pay a bill = accepted,=20 or a promissory note, on the day it becomes due. 7 Taunt. 164; 1 T. R. = 172. Vide=20 To Dishonor.

HONORARIUM. A recompense for services rendered. It is usually = applied=20 only to the recompense given to persons whose business is connected with = science; as the fee paid to counsel.

2. It is said this honorarium is purely voluntary, and differs from a = fee,=20 which may be recovered by action. 5 Serg. & Rawle, 412; 3 Bl. Com. = 28;1=20 Chit. Rep. 38; 2 Atk. 332; but see 2 Penna. R. 75; 4 Watts' R. 334. Vide = Dalloz,=20 Dict. h. t., and Salary. See Counsellor at law.

HORS DE SON FEE, pleading in the ancient English law. These = words=20 signify out of his fee. A plea which was pleaded, when a person who = pretended to=20 be the lord, brought an action for rent services, as issuing out of his = land:=20 because if the defendant could prove the land was out of his fee, the = action=20 failed. Vide 9 Rep. 30; 2 Mod. 104; 1 Danvers' Ab. 655; Vin. Ab. h. = t.

HORSE. Until a horse has attained the age of four years, he is = called=20 a colt. (q. v.) Russ. & Ry. 416. This word is sometimes used as a = generic=20 name for all animals of the horse kind. 3 Brev. 9. Vide Colt; Gender; = and Yelv.=20 67, a.

HOSTAGE. A person delivered into the possession of a public = enemy in=20 the time of war, as a security for the performance of a contract entered = into=20 between the belligerents.

2. Hostages are frequently given as a security for the payment of a = ransom=20 bill, and if they should die, their death would not discharge the = contract. 3=20 Burr. 1734; 1 Kent, Com. 106; Dane's Ab. Index, h. t.

HOSTELLAGIUM, Engl. law. A right reserved to the lords to be = lodged=20 and entertained in the houses of their tenants.

HOSTILITY. A state of open enmity; open war. Wolff, Dr. de la = Rat.=20 =A71191. Hostility, as it regards individuals, may be permanent or = temporary; it=20 is permanent when the individual is a citizen or subject of the = government at=20 war, and temporary when he happens to be domiciliated or resident in the = country=20 of one of the belligerents; in this latter case the individual may throw = off the=20 national character he has thus acquired by residence, when he puts = himself in=20 motion, bona fide, to quit the country sine animo revertendi. 3 Rob. = Adm. Rep.=20 12; 3 Wheat. R. 14.

2. There may be a hostile character merely as to commercial purposes, = and=20 hostility may attach only to the person as a temporary enemy, or it may = attach=20 only to the property of a particular description. This hostile character = in a=20 commercial view, or one limited to certain intents and purposes only, = will=20 attach in, consequence of having possessions in the territory of the = enemy, or=20 by maintaining a commercial establishment there, or by a personal = residence, or,=20 by particular modes of traffic, as by sailing under the enemy's flag of=20 passport. 9 Cranch, 191 5 Rob. Adm. Rep.21, 161; 1 Kent Com. 73; Wesk. = on Ins.=20 h. t.; Chit. Law of Nat. Index, h. t.

HOTCHPOT, estates. This homely term is used figuratively to = signify=20 the blending and mixing property belonging to different persons, in = order to=20 divide it equally among those entitled to it. For example, if a man = seised of=20 thirty acres of land, and having two children, should, on the marriage = of one of=20 them, give him ten acres of it, and then die intestate seised of the = remaining=20 twenty; now, in order to obtain his portion of the latter, the married = child,=20 must bring back the ten acres he received, and add it to his father's = estate,=20 when an equal division of the whole will take place, and each be = entitled to=20 fifteen acres. 2 Bl. Com. 190. The term hotchpot is also applied to = bringing=20 together all the personal estate of the deceased, with the advancements = he has=20 made to his children, in order that the same may be divided agreeably to = the=20 provisions of the statute for the distribution of intestate's estates. = In=20 bringing an advancement into hotchpot, the donee is not required to = account for=20 the profits of the thing given; for example, he is not required to bring = into=20 hotchpot the produce of negroes, nor the interest of money. The property = must be=20 accounted for at its value when given. 1 Wash. R. 224; 17 Mass. 358; 2 = Desaus.=20 127.; 3 Rand. R. 117; 3 Pick. R. 450; 3 Rand. 559; Coop. Justin. = 575.

2. In Louisiana the term collation is used instead of hotchpot. The = collation=20 of goods is the supposed or real return to the mass of the succession, = which an=20 heir makes of property which he received in advance of his share or = otherwise,=20 in order that such property maybe divided, together with the other = effects of=20 the succession. Civ. Code of Lo. art. 1305; and vide from that article = to=20 article 1367. Vide, generally, Bac. Ab. Coparceners, E; Bac. Ab. = Executors,=20 &c., K; Com. Dig. Guardian, G 2, Parcener, C 4; 8 Com. Dig. App. = tit.=20 Distribution, Statute of, III. For the French law, see Merl. Rep=B4rt. = mots=20 Rapport a succession.

HOUR measure of time. The space of sixty minutes, or the = twenty-fourth=20 part of a natural day. Vide Date; Fraction; and Co. Litt. 135; 3 Chit.=20 Pr.110.

HOUSE, estates. A place for the habitation and dwelling of = man. This=20 word has several significations, as it is applied to different things. = In a=20 grant or demise of a house, the curtilage and garden will pass, even = without the=20 words "with the appurtenances," being added. Cro. Eliz. 89; S. C.; 3 = Leon. 214;=20 1 Plowd. 171; 2 Saund. 401 note 2; 4 Penn. St. R; 93.

2. In a grant or demise of a house with the appurtenaces, no more, = will pass,=20 although other lands have been occupied with the house. 1 P. Wms.603; = Cro. Jac.=20 526; 2 Co. 32; Co. Litt. 5 d.; Id. 36 a. b.; 2 Saund. 401, note 2.

3. If a house, originally entire, be divided into several apartments, = with an=20 outer door to each apartment and no communication with each other = subsists, in=20 such case the several apartments are considered as distinct houses. 6 = Mod. 214;=20 Woodf. Land. & Ten. 178.

4. In cases of burglary, the mansion or dwelling-house in which the = burglary=20 might be committed, at common law includes the outhouses, though not = under the=20 same roof or adjoining to the dwelling-house provided they were within = the=20 curtilage, or common fence, as the dwelling or mansion house. 3 Inst. = 64;1 Hale,=20 558; 4 Bl. Com. 225; 2 East, P. C. 493; 1 Hayw. N. C. Rep. 102, 142; 2 = Russ. on=20 Cr. 14.

5. The term house, in case of arson, includes not only the dwelling = but all=20 the outhouses, as in the case of burglary. It is a maxim in law that = every man's=20 house is his castle, and there he is entitled to perfect security; this = asylum=20 cannot therefore be legally invaded, unless by an officer duly = authorized by=20 legal process; and this process must be of a criminal nature to = authorize the=20 breaking of an outer door; and even with it, this cannot be done, until = after=20 demand of admittance and refusal. 5 Co. 93; 4 Leon. 41; T. Jones, 234. = The house=20 may be also broken for the purpose of executing a writ of habere facias. = 5 Co.=20 93; Bac. Ab. Sheriff, N3.

6. The house protects the owner from the service of all civil process = in the=20 first instance, but not if he is once lawfully arrested and he takes = refuge in=20 his own house; in that case, the officer may pursue him and break open = any door=20 for the purpose. Foster, 320; 1 Rolle, R. 138; Cro. Jac. 555; Bac. Ab. = ubi sup.=20 In the civil law the rule was nemo de domo sua extrahi debet. Dig. 50, = 17, 103.=20 Vide, generally, 14 Vin. Ab. 315; Yelv. 29 a, n.1; 4 Rawle, R. 342; = Arch. Cr.=20 Pl. 251; and Burglary.

7. House is used figuratively to signify a collection of persons, as = the=20 house of representatives; or an institution, as the house of refuge; or = a=20 commercial firm, as the house of A B & Co. of New Orleans; or a = family, as,=20 the house of Lancaster, the house of York.

HOUSE OF COMMONS, Eng. law. The representatives of the people, = in=20 contradistinction to the nobles, taken collectively are called the house = of=20 commons.

2. This house must give its consent to all bills before they acquire = the=20 authority of law, and all laws for raising revenue must originate = there.

HOUSE OF CORRECTIONS. A prison where offenders of a particular = class=20 are confined. The term is more common in England than in the United = States.

HOUSE OF LORDS. Eng. law. The English lords, temporal and = spiritual,=20 when taken collectively and forming a branch of the parliament, are = called the=20 House of Lords.

2. Its assent is required to all laws. As a court of justice, it = tries all=20 impeachments.

HOUSE OF REFUGE, punishment. The name given to a prison for = juvenile=20 delinquents. These houses are regulated in the United Statees on the = most humane=20 principles, by special local laws.

HOUSE OF REPRESENTATIVES, government. The popular branch of = the=20 legislature.

2. The Constitution of the United States, art. 1, s. 2, 1, provides, = that=20 "the house of representatives shall be composed of members chosen every = second=20 year by the people of, the several states; and the electors of each = state, shall=20 have the qualifications requisite for electors of the most numerous = branch of=20 the state legislature."

3. The general qualifications of electors of the assembly, or most = numerous=20 branch of the legislature, in the several state governments, are, that = they be=20 of the age of twenty-one years and upwards, and free resident citizens = of the=20 state in which they vote, and have paid taxes: several of the state=20 constitutions have prescribed the same or higher qualifications, as to = property,=20 in the elected, than in the electors.

4. The constitution of the United States, however, requires no = evidence of=20 property in the representatives, nor any declarations as to his = religious=20 belief. He must be free from undue bias or dependence, by not holding = any office=20 under the United States. Art. 1, s. 6, 2.

5. By the constitutions of the several states, the most numerous = branch of=20 the legislature generally bears the name of the house of = representatives. Vide=20 Story on Constitution of the United States, chap. 9 1 Kent's Com. = 228.

6. By the Act of June 22, 1842, c. 47, it is provided, =A71. That = from and=20 after the third day of March, one thousand eight hundred and = forty-three, the=20 house of representatives shall be composed of members elected agreeably = to a=20 ratio of one representative for every seventy thousand six hundred and = eighty=20 persons in each state, and ofone additional representative for each = state having=20 a fraction greater than one moiety of the said ratio, computed according = to the=20 rule prescribed by the constitution of the United States; that is to = say: within=20 the state of Maine, seven; within the state of New Hampshire, four; = within the=20 state of Massachusetts, ten; within the state of Rhode Island, two = within the=20 state of Connecticut, four; within the state of Vermont, four; within = the state=20 of New York, thirty-four; within the state of New Jersey, five; within = the state=20 of Pennsylvania, twenty-four; within the state of Delaware, one; within = the=20 state of Maryland, six; within the state of Virginia, fifteen; within = the state=20 of North Carolina, nine; within the state of South Carolina, seven; = within the=20 state of Georgia, eight; within the state of Alabama, seven; within = state of=20 Louisiana, four; within the state of Mississippi, four; within the state = of=20 Tennessee, eleven; within the state of Kentucky, ten; within the state = of Ohio,=20 twenty-one; within the state of Indiana, ten; within the state of = Illinois,=20 seven; within the state of Missouri, five; within the state of Arkansas, = one;=20 within the State of Michigan, three.

7.- =A72. That in every case where a state is entitled to more than = one=20 representative, the number to which each state shall be entitled under = this=20 apportionment shall be elected by districts. composed of contiguous = territory,=20 equal in number to the number of representatives to which said state may = be=20 entitled, no one district electing more than one representative.

8. For the constitutions of the houses of representatives in the = several=20 states, the reader is referred to the names of the states in this work. = Vide=20 Congress.

HOUSE-BOTE. An allowance of necessary timber out of the = landlord's=20 woods, for the repairing and support of a house or tenement. This = belongs of=20 common-right to any lessee for years or for life. House-bote is said to = be of=20 two kinds, estoveriam aedificandi et ardendi. Co. Litt. 41.

HOUSEKEEPER. One who occupies a house.

2. A person who occupies every room in the house, under a lease, = except one,=20 which is reserved for his landlord, who pays all the taxes, is not a=20 housekeeper. 1 Chit. Rep. 502. Nor is a person a housekeeper, who takes = a house,=20 which be afterwards underlets to another, whom the landlord refuses to = accept as=20 his tenant; in this case, the under-tenant aid the, taxes and let to the = tenant=20 the, first floor of the house, and the rent was paid for the whole house = to the=20 tenant, who paid it to the landlord. Id. note.

3. In order to make the party a house-keeper, he must be in actual = possession=20 of the house; 1 Chit. Rep. 288 and must occupy a whole house. 1 Chit. = Rep. 316.=20 See 1 Barn. & Cresw. 178; 2 T. R. 406; 1 Bott, 5; 3 Petersd, Ab. = 103, note;=20 2 Mart. Lo. R. 313.

HOVEL. A place used by hushandmen to set their ploughs, carts, = and=20 other farming utensils, out of the rain and sun. Law Latin Dict. A shed; = a=20 cottage; a mean house.

HOYMAN. The master or captain of a hoy.

2. Hoymen are liable as common carriers. Story, Bailm. =A7496.

HUE AND CRY, Eng. law. A mode of pursuing felons, or such as = have=20 dangerously wounded any person, or assaulted any one with intent to rob = him, by=20 the constable, for the purpose of arresting the offender. 2 Hale, P. C. = 100.

HUEBRA, Spanish law. An acre of land or as much as can be = ploughed in=20 a day by two oxen. Sp. Dict.; 2 White's Coll. 49.

HUISSIER. An usher of a court. In France, an officer of this = name=20 performs many of the duties which in this country devolve on the sheriff = or=20 constable. Dalloz, Dict. h. t. See 3 Wend. 173.

HUNDRED, Eng. law. A district of country originally = comprehending one=20 hundred families. In many cases, when an offence is committed within the = -hundred, the inhabitants tire civilly responsible to the party = injured.

2. This rule was probably borrowed from the nations of German origin, = where=20 it was known. Montesq. Esp. des Lois, ]iv. 30, c. 17. It was established = by=20 Clotaire, among the Franks. 11 Toull. n. 237.

3. To make the innocent pay for the guilty, seems to be contrary to = the first=20 principles of justice, and can be justified only by necessity. In some = of the=20 United States laws have been passed making cities or counties = responsible for,=20 the destruction of property by a mob. This can be justified only on the = ground=20 that it is the interest of every one that property should be protected, = and that=20 it is for the general good such laws should exist.

HUNDRED GEMOTE. The name of a court among the Saxons. It was = holden=20 every month, for the benefit of the inhabitants of the hundred.

HUNDREDORS. In England they are inhabitants of a local = division of a=20 county, who, by several statutes, are held to be liable in the cases = therein=20 specified, to make good the loss sustained by persons within the = hundred, by=20 robbery or other violence, therein also specified. The principal of = these=20 statutes are, 13 Edw. I. st. 2, c. 1, s. 4; 28 Edw. III. c. 11; 27 Eliz. = c. 13;=20 29 Car. II. c. 7; 8 Geo. II. c. 16; 22 Geo. II. c.24.

HUNGER. The desire for taking food. Hunger is no excuse for = larceny. 1=20 Hale, P. C. 54; 4 Bl. Com. 31. But it is a matter which applies itself = strongly=20 to the consciences of the judges in mitigation of the punishment.

2. When a person has died, and it is suspected he has been starved to = death,=20 an examination of his body ought to be made, to ascertain whether or not = he died=20 of hunger. The signs which usually attend death from hunger are the = following:=20 The body is much emaciated, and a foetid, acrid odor exhales from it, = although=20 death may have been very recent. The eyes are red and open, which is not = usual=20 in other causes of death. The tongue and throat are dry, even to = aridity, and=20 the stomach and intestines are contracted and empty. The gall bladder is = pressed=20 with bile, and this fluid is found scattered over the stomach and = intestines, so=20 as to tinge them very extensively. The lungs are withered, but all the = other=20 organs are generally in a healthy state. The blood vessels are usually = empty.=20 Foder=B4, tom. ii. p. 276, tom. iii. p. 231; 2 Beck's Med. Jur. 52; see = Eunom.=20 Dial. 2, =A747, p. 142, and the note at p. 384.

HUNTING. The act of pursuing and taking wild animals; the = chase.

2. The chase gives a kind of title by occupancy, by which the hunter = acquires=20 a right or property in the game which he captures. In the United States, = the=20 right of hunting is universal, and limited only so far as to exclude = hunters=20 from committing injuries to private property or to the public; as, by = shooting=20 on public roads. Vide Feroe naturae; Occupancy.

HURDLE, Eng. law. A species of sledge, used to draw traitors = to=20 execution.

HUshAND, domestic relations. A man who has a wife.

2. The hushand, as such, is liable to certain obligations, and = entitled to=20 certain rights, which will be here briefly considered.

3. First, of his obligations. He is bound to receive his wife at his = home,=20 and should furnish her with all the necessaries and conveniences which = his=20 fortune enables him to do, and which her situation requires; but this = does not=20 include such luxuries as, according to her fancy, she deems necessaries; = vide=20 article Cruelty, where this matter is considered. He is bound to love = his wife,=20 and to bear with her faults, and, if possible, by mild means to correct = them and=20 he is required to fulfil towards her his marital promise of fidelity, = and can,=20 therefore, have no carnal connexion with any other woman, without a = violation of=20 his obligations. As he is bound to govern his house properly, he is = liable for=20 its misgovernment, and he may be punished for keeping a disorderly = house, even=20 where his wife had the principal agency, and he is liable for her torts, = as for=20 her slander or trespass. He is also liable for the wife's debts, = incurred before=20 coverture, provided they are recovered from him during their joint = lives; and=20 generally for such as are contracted by her after coverture, for = necessaries, or=20 by his authority, express or implied. See 5 Whart. 395; 5 Binn. 235; 1 = Mod. 138;=20 5 Taunt. 356; 7 T. R. 166; 3 Camp. 27; 3 B. & Cr. 631; 5 W. & S. = 164.

4. Secondly, of his rights. Being the head of the family, the hushand = has a=20 right to establish himself wherever he may please, and in this he cannot = be=20 controlled by his wife; he may manage his affairs his own way; buy and = sell all=20 kinds of personal property, without any control, and he may buy any real = estate=20 he may deem proper, but, as the wife acquires a right in the latter, he = cannot=20 sell it, discharged of her dower, except by her consent, expressed in = the manner=20 prescribed by the laws of the state where such lands lie. At common law, = all her=20 personal property, in possession, is vested in him, and he may dispose = of it as=20 if he had acquired it by his own contract this arises from the principle = that=20 they are considered one person in law; 2 Bl. Com. 433 and he is entitled = to all=20 her property in action, provided he reduces it to possession during her = life.=20 Id. 484. He is also entitled to her chattels real, but these vest in him = not=20 absolutely, but sub modo; as, in the case of a lease for years, the = hushand is=20 entitled to receive the rents and profits of it, and may, if he pleases, = sell,=20 surrender, or dispose of it during the coverture, and it is liable to be = taken=20 in execution for his debts and, if he survives her, it is, to all = intents and=20 purposes, his own. In case his wife survives him, it is considered as if = it had=20 never been transferred from her, and it belongs to her alone. In his = wife's=20 freehold estate, he has a life estate, during the joint lives of himself = and=20 wife; and, at common law, when he has a child by her who could inherit, = he has=20 an estate by the curtesy. But the rights of a hushand over the wife's = property,=20 are very much abridged in some of the United States, by statutes. See = Act of=20 Pennsylvania, passed April 11, 1848.

5. The laws of Louisiana differ essentially from those of the other = states,=20 as to the rights and duties of hushand and wife, particularly as it = regards=20 their property. Those readers, desirous of knowing, the legislative = regulations=20 on this subject, in that state, are referred to the Civil Code of Louis. = B. 1,=20 tit. 4; B. 3, tit. 6. Vide, generally, articles Divorce; Marrriage; = Wife; and=20 Bac. Ab. Baron and Feme; Rop. H. & W.; Prater ou H. & W.; Clancy = on the=20 Rights, Duties and Liabilities of Hushand and Wife Canning on the = Interest of=20 Hushand and Wife, &c.; 1 Phil. Ev. 63; Woodf. L. & T. 75; 2 = Kent, Com.=20 109; 1 Salk. 113 to 119=F9; Yelv. 106a, 156a, 166a; Vern. by Raithby, 7, = 17, 48,=20 261; Chit. Pr. Index, h. t. Poth. du Contr. de Mar. n. 379; Bouv. Inst. = Index,=20 h. t.

HUshAND, mar. law. The name of an agent who is authorized to = make the=20 necessary repairs to a ship, and to act in relation to the ship, = generally, for=20 the owner. He is usually called ship's hushand. Vide Ship's Hushand.

HUshRECE, old Eng. law. The, ancient name of the offence now = called=20 burglary.

HUSTINGS, Engl. law. The name of a court held before the lord = mayor=20 and aldermen of London; it is the principal and supreme court of the = city., See=20 2 Inst. 327; St. Armand, Hist. Essay on the Legisl. Power of England, = 75.

HYDROMETER. An instrument for measuring the density of fluids; = being=20 immersed in fluids, as in water, brine, beer, brandy, &c., it = determines the=20 proportion of their densities, or their specific gravities, and thence = their=20 qualities.

2. By, the Act of Congress of January 12, 1825, 3 Story's' Laws U. S. = 1976,=20 the secretary of the treasury is authorized, under the direction of the=20 president of the United States, to adopt and substitute such hydrometer = as he=20 may deem best calculated to promote the public interest, in lieu of that = now=20 prescribed by law, for the purpose of ascertaining the proof of liquors; = and=20 that after such adoption and substitution, the duties imposed by law = upon=20 distilled spirits shall be levied, collected and paid, according to the = proof=20 ascertained by any hydrometer so substituted and adopted.

HYPOBOLUM, civ. law. The name of the bequest or legacy given = by the=20 hushand to his wife, at his death, above her dowry. Techn. Dict. h. = t.

HYPOTHECATION, civil law. This term is used principally in the = civil=20 law; it is defined to be a right which a creditor has over a thing = belonging to=20 another, and which consists in the power to cause it to be sold, in = order to be=20 paid his claim out of the proceeds.

2. There are two species of hypothecation, one called pledge, pignus, = and,=20 the other properly denominated hypothecation. Pledge is that species , = of=20 hypothecation which is contracted by the delivery of the debtor to the = creditor,=20 of the thing hypothecated. Hypothecation, properly so called, is that = which is=20 contracted without delivery of the thing hypothecated. 2 Bell's Com. 25, = 5th=20 ed.

3. Hypothecation is further divided into general and special when the = debtor=20 hypothecates to his creditor all his estate and property, which he has, = or may=20 have, the hypothecation is general; when the hypothecation is confined = to a=20 particular estate, it is special.

4. Hypothecations are also distinguished into conventional, legal, = and tacit.=20 1. Conventional hypothecations are those which arise by the agreement of = the=20 parties. Dig. 20, 1, 5.

5. - 2. Legal hypothecation is that which has not been agreed upon by = any=20 contract, express or implied; such as arises from the effect of = judgments and=20 executions.

6. - 3. A tacit, which is also a legal hypothecation, is that which = the law=20 gives in certain cases, without the consent of the parties, to secure = the=20 creditor; such as, 1st. The lien which the public treasury has over the = property=20 of public debtors. Code, 8, 15, 1. 2d. The landlord has a lien on the = goods in=20 the house leased, for the payment of his rent. Dig. 20, 2, 2; Code, 8, = 15, 7,=20 3d. The builder has a lien, for his bill, on the house he has built. = Dig. 20, 1.=20 4th, The pupil has a lien on the property of the guardian for the = balance of his=20 account. Dig. 46, 6, 22; Code, 6, 37, 20. 5th. There is hypothecation of = the=20 goods of a testator for the security of a legacy he has given. Code, 6, = 43,=20 1.

7. In the common law, cases of hypothecation, in the strict sense of = the=20 civil law, that is, of a pledge of a chattel, without possession by the = pledgee,=20 are scarcely to be found; cases of bottomry bonds and claims for = seamen's wages,=20 against ships are the nearest approach to it; but these are liens and = privileges=20 rather than hypothecations. Story, Bailm. =A7288. It seems that chattels = not in=20 existence, though they cannot be pledged, can be hypothecated, so that = the lien=20 will attach, as soon as the chattel has been prodced. 14 Pick. R. 497. = Vide,=20 generally, Poth. de l'Hypoth=B4que; Poth. Mar. Contr. translated by = Cushing, note.=20 26, p. 145; Commercial Code of France, translated by Rodman, note 52, p. = 351;=20 Merl. R=B4pertoire, mot Hypoth=B4que, where the subject is fully = considered; 2 Bro.=20 Civ. Law, 195; Ayl. Pand. 524; 1 Law Tracts, 224; Dane's Ab. h. t.; = Abbott on=20 Ship. Index, h. t.; 13 Ves. 599; Bac. Ab. Merchant, &c. G; Civil = Code of=20 Louis. tit. 22, where this sort of security bears the name of mortgage. = (q.=20 v.)

HYPOTHEQUE, French law. Properly, the right acquired by the = creditor=20 over the immovable property which has been assigned to him by his = debtor, as=20 security for his debt, although he be not placed in possession of it. = The=20 hypotheque might arise in two was. 1. By the express agreement of the = debtor,=20 which was the conventional hypotheque. 2. By disposition of law, which = was the=20 implied or Iegal hypotheque. This was nothing but a lien or privilege = which the=20 creditor enjoyed of being first paid out of the land subjected to this=20 incumbrance. For example, the landlord had hypotheque on the goods of = his tenant=20 or others, while on the premises let. A mason had the same on the house = he=20 built. A pupil or a minor on the land of his tutor or curator, who had = received=20 his money. Domat, Loix Civiles, 1. 3, & 1; 2 Bouv. Inst. 1817.

Index

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