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Bouvier's Law Dictionary
1856 Edition

T

TABELLIO. An officer among the Romans who reduced to writing = and into=20 proper form, agreements, contracts, wills, and other instruments, and = witnessed=20 their execution. The term tabellio is derived from the Latin tabula, seu = tabella, which in this sense, signified those tables or plates covered = with wax=20 which were then used instead of paper. 8 Toull. n. 5; Delauriere, sur = Ragneau,=20 mot Notaire.

2. Tabelliones differed from notaries in many respects: they had = judicia=20 jurisdiction in some cases, and from their judgments there were no = appeals.=20 Notaries were then the clerks or aiders of the tabelliones, they = received the=20 agreements of the parties, which they reduced to short notes; and these=20 contracts were not binding until they were written in extenso, which was = done by=20 the tabelliones. Encyclopedie de, M. D'Alembert, mot Tabellion; Jac. = Law. Dict.=20 Tabellion; Merlin, Repertoire, mot Notaire, =A71; 3 Giannone's Istoria = di Napoli,=20 p. 86.

TABLEAU OF DISTRIBUTION. In Louisiana this is a list of = creditors of=20 an insolvent estate, stating what each is entitled to. 4 N. S. 535.

TABLES. A synopsis in which many particulars are brought = together in a=20 general view; as genealogical tables, which are composed of the names of = persons=20

TABULA IN NAUFRAGIO, Engl. law. Literally a plank in a wreck. = This=20 figure has been used to denote the condition of a third mortgagee, who = obtained=20 his mortgage without any knowledge of a second mortgage, and then, being = puisne,=20 takes the first encumbrance; in this case he shall squeeze out and have=20 satisfaction before the second. 2 Ves. 573; 2 Fonbl. Eq. B. 3, c. 2, = =A72; 2=20 Ventr. 337; 1 Ch. Cas. 162; 1 Story, Eq. =A7=A7414, 415; and = Tacking.

TACIT. That which, although not expressed, is understood from = the=20 nature of the thing, or from the provision of the law; implied.

TACIT LAW. A law which derives its authority from the common = consent=20 of the people, without any legislative enactment. 1 Bouv. Inst. n. = 120.

TACK, Scotch law. A contract of location by which the use of = land, or=20 any other immovable subject, is, set to the lessee or tacksman for a = certain=20 yearly rent, either in money, the fruits of tho ground, or services. = Ersk. Prin.=20 Laws of Scot. B. 2, t. 6, n. 8; 1 Tho. Co. Litt. 209. This word is = nearly=20 synonymous with lease.

TACKING, Engl. law. The union of securities given at different = times,=20 so as to prevent any intermediate purchasers claiming title to redeem, = or=20 otherwise discharge one lien, which is prior, without redeeming or = discharging=20 other liens also, which are subsequent to his own title. Jer. Eq. Jur. = B. 1, c.=20 2, =A71, p. 188 to 191; 1 Story, Eq. Jur. =A7412.

2. It is an established doctrine in the English chancery that a bona = fide=20 purchaser and without any notice of a defect in his title at the time of = the=20 purchase, may lawfully buy any statute, mortgage, or encumbrance, and if = he can=20 defend by those at law, his adversary shall have no help in equity to = set those=20 encumbrances aside, for equity will not disarm such a purchaser. And as=20 mortgagees are considered in equity as purchasers pro tanto, the same = doctrine=20 has extended to them, and a mortgagee who has advanced his money without = notice=20 of any prior encumbrance, may, by getting an assignment of a statute, = judgment,=20 or recognizance, protect himself from any encumbrance subsequent to such = statute, judgment or recognizance, though prior to his mortgage; that = is, he=20 will be allowed to tack or unite his mortgage to such old security, and = will by=20 that means be entitled to recover all moneys for which such security was = given,=20 together with the money due on his mortgage, before the prior. = mortgagees are=20 entitled to recover anything. 2 Fonbl. Eq. 306; 2 Cruise, t. 15, c. 5, = s. 27;=20 Powell on Morg. Index, h. t.; 1 Vern. 188; 8 Com. Dig. 953; Madd. Ch. = Index, h.=20 t.

3. This doctrine is inconsistent with the laws of the several states, = which=20 require the recording of mortgages. Caines' Cas. Er. 112; 1 Hop. C. R. = 231; 3=20 Pick. 50; 2 Pick. 517.

4. The doctrine of tacking seems to have been acknowledged in the = civil law,=20 Code, 8, 27, 1; but see Dig. 13, 7, 8; and see 7 Toull. 110. But this = tacking=20 could not take place to the injury of intermediate encumbrancers. Story = on Eq.=20 =A71010, and the authorities cited in the note.

TAIL. An estate tail is an estate of inheritance, to a man or = a woman=20 and his or her heirs of his or her body, or heirs of his body of a = particular=20 description, or to several persons and the heirs of their bodies, or the = heirs=20 generally or specially of the body or bodies of one person, or several = bodies.=20 Prest. on Estates, 355; Cruise, tit. 2, c. 1, s. 12.

2. Estates tail, as qualified "in their limitation and extent, are of = sev-eral sorts. They have different denominations, according to the=20 circumstances under which, or the persons to whom they are limited. They = are=20 usually divided into estates tail general or special.

3. But they may be more advantageously arranged under the following=20 classes.

4. - 1. As to the extent of the degree to which the estates may = descend, they=20 are, 1st, general; 2d, qualified.

5. - 2. As to the sex of the person who may succeed, they are, 1st. = General,=20 as extending to males or females of the body, without exception. 2d. = Special, as=20 admitting only one sex to the succession, and excluding the other = sex.

6. - 3. As to the person by whom or by whose body those heirs are to = be=20 begotten, they are either, 1st. General, as to all the heirs of the body = of a=20 man or woman. 2d. Special, as to the heirs of the body of a man or woman = begotten by a particular person, or to the heirs of the two bodies of a = man and=20 woman. On the several species of estates tail noticed under this = division, it=20 may be observed, that the samer estate may at the same time, be general = in one=20 respect; as, for example, to all the heirs of the body in whatever = degree they=20 are related; and may be, special in another respect, as that these heirs = shall=20 be males, &c. Prest. on Estates, 383, 4.

7. The law relating to entails is diversified in the several states. = In=20 Indiana and Louisiana they never existed they are unknown in Illinois = and=20 Vermont. In Ohio, Virginia, Tennessee, Kentucky, and New York, estates = tail are=20 converted into estates in fee simple by statute; and they may be barred = by a=20 simple conveyance in Pennsylvania. In Alabama, Missouri, Mississippi, = New=20 Jersey, Connecticut and North Carolina, they have been modified, and in = Georgia,=20 they have been abolished without reservation. Griff. Reg. h. t. Vide, = generally,=20 8 Vin. Ab. 227 to 272; 10 Id. 257 to 269; 20 Id. 163; Bac. Ab. Estate in = tail; 4=20 Com. Dig. 17; 4 Kent, Com. 12; Bouv. Inst. Index, h. t.; and. 1 Bro. = Civ. Law,=20 188, where an attempt is made to prove that an estate resembling an = estate tail=20 was not unknown to the Romans.

TAKE. This is a technical expression which signifies to be = entitled=20 to; as, a devisee will take under the will. To take also signifies to = seize, as=20 to take and carry away.

TAKING, crim. torts. The act of laying hold upon an article, = with or=20 without removing the same; a felonious taking is not sufficient without = a=20 carrying away, to constitute the crime of larceny. (q. v.) And when the = taking=20 has been legal, no subsequent act will make it a crime. 1 Moody, Cr. = Cas.=20 160.

2. The taking is either actual or constructive. The former is when = the thief=20 takes, without any pretence of a contract, the property in question.

3. A constructive felonious taking occurs when, under pretence of a = contract,=20 the thief obtains the felonious possession of goods; as, when under the = pretence=20 of hiring, he had a felonious intention at the time of the pretended = contract,=20 to convert the property to his own use. The court of criminal sessions = for the=20 city and county of Philadelphia have decided that in the case of a man = who found=20 a quantity of lumber, commonly called a raft, floating on the river = Delaware and=20 fastened to the shore, and sold it, to another person, at so low a = price. as to=20 enable the purchaser to remove it, and did no other act himself, but = afterwards=20 the purchaser removed it, that thls was a taking by the thief, and he = was=20 actually convicted and sentenced to two years imprisonment in the = penitentiary.=20 Hill's case, Aug. Sessions, 1838. It cannot be doubted, says Pothier, = Contr. de=20 Vente, n. 271, that by selling and delivering a thing which he knows = does not=20 belong to him, the party is guilty of theft.

4. When property is left through inadvertence with a person and he = conceals=20 it animo furandi, he is guilty of a felonious taking and may be = convicted of=20 larceny. 17 Wend. 460.

5. But when the owner parts with the property willingly, under an = agreement=20 that he is never to receive the style indentical property, the taking is = not=20 felonious; as, when a person delivered to the defendant a sovereign to = get it=20 changed, and the defendant never returned either with the sovereign or = the=20 change, this was not larceny. 9 C. & P. 741. See 1 Moody, C. C. 179; = Id.=20 185; 1 Hill. R. 94; 2 Bos. & P. 508; 2 East, P. C. 554; 1 Hawk. c. = 33, s. 8;=20 1 Hale, P. C. 507; 3 Inst. 408; and Carrying away; Finder; Invito = Domino;=20 Larceny; Robbery.

6. The wrongful taking of the personal property of another, when in = his=20 actual possession, or such taking of the goods of another who, has the = right of=20 immediate possession, subject the tort feasor to an action. For example, = such=20 wrongful taking will be evidence of a conversion, and an action of = trover may be=20 maintained. 2 Saund. 47, h. t.; 3 Willes, 55. Trespass is a concurrent = remedy in=20 such a case. 3 Wils. 336. Replevin may be supported by the unlawful = taking of a=20 personal chattel. 1 Chit. Pl. 158. Vide Bouv. Inst. Index, h. t.

TALE, comm. law. A denomination of money in China. In the = computation=20 of the ad valorem duty on goods, &c. it is computed at one dollar = and=20 forty-eight cents. Act of March 2, 1799, s. 61, 1 Sto. L. U. S. 626. = Vide=20 Foreign Coins.

TALE, Eng. law. The declaration or count was anciently so = called in=20 law pleadings. 3 Bl. Com. 293.

TALES, Eng. law. The name of a book kept in the king's bench = office,=20 of such jurymen as were of the tales. See Tales de circumstantibus.

TALES DE CIRCUMSTANTIBUS, practice. Such persons as are = standing=20 round. When ever the panel of the jury is exhausted the court order that = the=20 jurors wanted shall be selected from among the bystanders which order = bears the=20 name of tales d circumstantibus. Bac. Ab. Juries, C.

2. The judiciary act of Sept. 24, 1789, 1 Story, L. U. S. 64, = provides, =A729,=20 that When from challenges, or otherwise, there shall not be a jury to = determine=20 any civil or criminal cause, the marshal or his deputy shall, by order = of the=20 court where such defect of jurors shall happen, return jurymen de = talibus=20 circumstantibus sufficient to complete the panel; and when the marshal = or his=20 deputy are disqualified as aforesaid, jurors may be returned by such=20 disinterested persons as the court shall appoint. See 2 Hill, So. Car. = R. 381; 2=20 Penna. R. 412; 4 Yeates, 236; Coxe, 283; 1 Blackf. 63; 2 Harr. & J. = 426; 1=20 Pick. 43, n.

TALLAGE. This word is derived from the French tailler, and = signifies=20 liter-ally to cut. In England it is used to signify subsidies, taxes, = customs,=20 and indeed any imposition whatever by the government for the purpose of = raising=20 a revenue. Bac. Ab. Smuggling, &c. B; Fortesc. De Laud. 26; Madd. = Exch. ch.=20 17; 2 Inst. 531, 532 Spelm. Gl. h. v.

TALLIES, evidence. The parts of a piece of wood out in two, = which=20 persons use to denote the quantity of goods supplied by one to the = other. Poth.=20 Obl. pt. 4, c. 1, art. 2, =A77.

TALZIE, HEIR IN. Scotch law. Heirs of talzie or tailzie, are = heirs of=20 estates entailed. 1 Bell's Com. 47.

TANGIBLE PROPERTY. That which may be felt or touched; it must=20 necessarily be corporeal, but it may be real or personal. A house and a = horse=20 are, each, tangible property. The terni is used in contradistinction to = property=20 not tangible. By the latter expression, is; meant that kind of property = which,=20 though in possession as respects the right, and, consequently, not = strictly=20 choses in action, yet differ; from goods, because they are neither = tangible nor=20 visible, though the thing produced from the right be perfectly so. In = this class=20 may be mentioned copyrights and patent-rights. 1 Bouv. Inst. n. 467, = 478.

TARDE VENIT, Practice. The name of a return made by the = sheriff to a=20 writ, when it came into his hands too late to be executed before the = return=20 day.

2. The sheriff is required to show that he has yielded obedience to = the writ,=20 or give a good excuse for his omission; and he may say, quod breve adeo = tarde=20 venit quod exequi non possunt. It is usual to return the writ with an=20 indorsement of tarde venit. Com. Dig. Return, D 1.

TARE, weights. An allowance in the purchase and sale of = merchandise,=20 for the weight of the box, bag, or cask, or other thing, in which the = goods are=20 packed. It is also an allowance made for tiny defect, waste, or = diminution in=20 the weight, quality or quantity of goods. It differs from tret. (q. = v.)

TARIFF. Customs, duties, toll. or tribute payable upon = merchandise to=20 the general government is called tariff; the rate of customs, &c. = also bears=20 this name and the list of articles liable to duties is also called the=20 tariff.

2. For the tariff of duties imposed on the importation of foreign=20 merchan-dise into the United States.

TAVERN. A place of entertainment; a house kept up for the=20 accommodation of strangers.

2. These are regulated by various local laws. For the liabilities of = tavern=20 keepers, Vide Story on Bailm. art. 7; 2 Kent, Com. 458; 12 Mod. 487; = Jones'=20 Bailm. 94; 1 Bl. Com. 430; 1 Roll. Ab. 3, F; Bac. Ab. Inn, &c.; 1 = Bouv.=20 Inst. 1015, et seq.; and the articles Inn; Inn-keeper.

TAXES. This term in its most extended sense includes all = contributions=20 imposed by the government upon individuals for the service of the state, = by=20 whatever name they are called or known, whether by the name of tribute, = tithe,=20 talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or = other=20 name.

2. The 8th section of art. 1, Const. U. S. provides, that "congress = shall=20 have power to lay and collect taxes, duties, imposts, and excises, to = pay,"=20 &c. "But all duties, imposts and excises shall be uniform throughout = the=20 United States."

3. In the sense above mentioned, taxes are usually divided into two = great=20 classes, those which are direct, and those which are indirect. Under the = former=20 denomination are included taxes on land or real property, and under the = latter=20 taxes on articles of consumption. 5 Wheat. R. 317.

4. Congress have plenary power over every species of taxable = property, except=20 exports. But there are two rules prescribed for their government, the = rule of=20 uniformity and the rule of apportionment. Three kinds of taxes, namely, = duties,=20 imposts and excises are to be laid by the first rule; and capitation and = other=20 direct taxes, by the second rule. Should there be any other species of = taxes,=20 not direct, and not included within the words duties, imposts or = customs, they=20 might be laid by the rule of uniformity or not, as congress should think = proper=20 and reasonable. Id.

5. The word taxes is, in a more confined sense, sometimes applied in=20 contradistinction to duties, imposts and excises. Vide, generally, Story = on the=20 Const. c. 14; 1 Kent, Com. 254; 8 Dall. 171; 1 Tuck. Black. App. 232; 1 = Black.=20 Com. 308; The Federalist, No. 21, 36; Woodf. Landl. and Ten. 197, = 254.

TAXING COSTS, practice. The act by which it is ascertained to = what=20 costs a party is entitled.

2. It is a rule that the jury must assess the damages and costs = separately,=20 so that it may appear to the court that the costs were not considered, = in the=20 damages; and when the jury give costs in an amount insufficient to = answer the=20 costs of the suit, the plaintiff may pray that the officer may tax the = costs,=20 and such taxation is inserted in the judgment: this is said to be done = ex=20 assensu of the plaintiff, because at his prayer. Bac. Ab. Costs, K. The = costs=20 are taxed in the first instance, by the prothonotary or clerk of the = court. See=20 2 Wend. R. 244; 1 Cowen, R. 591; 7 Cowen, R. 412; 2 Yerg. R. 245, 310; = 6. Yerg.=20 R. 412; Harp. R. 326; 1 Pick. R. 211; 10 Mass. R. 26; 16 Mass. R. 370. A = bill of=20 costs having been once submitted to such an officer for taxation, cannot = be=20 withdrawn from him and referred to another. 2 Wend. R. 252.

TEAMSTER. One who drives horses in a wagon for the purpose of = carrying=20 goods for hire he is liable as a common carrier. Story, Bailm. = =A7496.

TECHNICAL. That which properly belongs to an art.

2. In the construction of contracts, it is a general rule that = technical=20 words are to be taken according to their approved and known use in the = trade in=20 which the contract is entered into, or to which it relates, unless they = have=20 manifestly been understood in another sense by the parties. 2 B. & = P. 164; 6=20 T. R. 320; 3 Stark. Ev. 1036, and the article Construction.

3. Words which do not of themselves denote that they are, used in a = technical=20 sense, are to have their plain, popular, obvious and natural meaning. 6 = Watts=20 & Serg. 114.

4. The law, like other professions, has a technical language. "When a = mechanic speaks to me of the instruments aud operations of his trade,", = says Mr.=20 Wynne, Eunom. Dial. 2, s. 5, "I shall be as unlikely to comprehend him, = as he=20 would me in the language of my profession, though we both of us spoke = English=20 all the while. Is it wonderful then, if in systems of law, and = especially among=20 the hasty recruits of commentators, you meet (to use Lord Coke's = expression)=20 with a whole army of words that cannot defend themselves in a = grammatical war?=20 Technical language, in all cases, is formed from the most intimate = knowledge of=20 any art. One words stands for a great many, as it is. always to be = resolved into=20 many ideas by definitions. It is, therefore, unintelligible, because it = is=20 concise, and it is useful for the same reason." Vide Language.

TEINDS, Scotch Law. That liquid proportion of the rents or = goods of=20 the people, which is due to churchmen for performing divine service, or=20 exercising the other spiritual functions proper to their several = offices. Ersk.=20 Pr. L. Scot. B. 2, t. 10, s. 2. See Tithes.

TELLER. An officer in a bank or other institution. He is said = to take=20 that name from tallier, or one who kept a tally, because it is his duty = to keep=20 the accounts between the bank or other institution and its customers, or = to make=20 their accounts tally. In another sense teller signifies a person = appointed to=20 receive votes. In England the name of teller is given to certain = officers in the=20 exchequer.

TEMPORARY. That which is to last for a limited time; as, a = temporary=20 sta-tute, or one whic>=20

Transfer interrupted!

articular period of time after its = enactment the=20 opposite of perpetual.

TENANCY or TENANTCY. The state or condition of a tenant; the = estate=20 held by a tenant, as a tenant at will, a tenancy for years.

TENANT, estates. One who holds or possesses lands or tenements = by any=20 kind of title, either in fee, for life, for years, or at will. See 5 = Mann. &=20 Gr. 54; S. C. 44 Eng. C. L. Rep. 39; 5 Mann. & Gr. 112; Bouv. Inst. = Index, h=20 . t.

2. Tenants may be considered with regard to the estate to which they = are=20 en-titled. There are tenants in fee; tenants by the curtesy; tenants in = dower;=20 tenants in tail after. possibility of issue extinct; tenants for life = tenants=20 for years; tenants from year to year; tenants at Will; and tenants at = suffrance.=20 When considered with regard to their number, tenants are in severalty; = tenants=20 in common; and joint tenants. There is also a kind of tenant, called = tenant to=20 the praecipe. These will be separately examined.

3. Tenant in fee is he who has an estate of inheritance in the land. = See=20 Fee.

4. Tenant by the curtesy, is where a man marries a woman seised of an = estate=20 of inheritance, that is, of lands and tenements in fee simple or fee = tail; and=20 has by her issue born alive, which was capable of inheriting her estate. = In this=20 case he shall, on the death of his wife, hold the lands for life, as = tenant by=20 the curtesy. Co. Litt. 29, a; 2 Lilly's Reg. 656; 2 Bl. Com. 126. See=20 Curtesy.

5. Tenant in dower is where the hushand of a woman is seised of an = estate of=20 inheritance, and dies; in this case, the wife shall have the third part = of the=20 lands and tenements of which he was seised at any time during the = coverture, to=20 hold to herself during the term of her natural life. 2 Bl. Com. 129; = Com. Dig.=20 Dower, A 1. See Dower.

6. Tenant in tail after possibility of issue extinct, is where one is = tenant=20 in special tail, and a person from whose body the issue was to spring, = dies=20 without issue; or having issue, becomes extinct; in these cases the = survivor=20 becomes tenant in tail after possibility of issue extinct. 2 Bl. Com. = 124; and=20 vide Estate tail after possibility of issue extinct.

7. Tenant for life, is he to whom lands or tenements are granted, or = to which=20 he derives by operation of law a title for the term of his own life, or = for that=20 of any other person, or for more lives than one.

8. He is called tenant for life, except when he bolds the estate by = the life=20 of another, when he is called tenant er autre vie. 2 Bl. Com. 84; Com. = Dig.=20 Estates, E 1; Bac. Ab. Estates, See Estate for life; 2 Lilly's Reg. = 557.

9. Tenant for years, is he to whom another has let lands, tenements = and=20 hereditaments for a term of certain years, or for a lesser definite = period of=20 time, and the lessee enters thereon. 2, Bl. Com. 140; Com. Dig Estates = by grant,=20 G.

10. A tenant for years has incident to, and unseparable from his = estate,=20 unless by special agreement, the same estovers to which a tenant for = life is=20 entitled. See Estate for life. With regard to the crops or emblements, = the=20 tenant for years is not, in general, entitled to them after the = expiration of=20 his term. 2 Bl. Com. 144. But in Pennsylvania, the tenant is entitled to = the way=20 going crop. 2 Binn. 487; 5 Binn. 285, 289 2 S. & R. 14. See 5 B. = & A.=20 768; this Diet. Distress; Estate for years; Lease; Lessee; Notice to = quit.;=20 Underlease.

11. Tenant from year to year, is he to whom another has let lands or=20 tenements, without any certain or determinate estate; especially if an = annual=20 rent be reserved Com. Dig. Estates, R 1. And when a person is let into=20 possession as a tenant, without any agreement as to time, the inference = now is,=20 that he is a tenant from year to year, until the contrary be proved; = but, of=20 course, such presumption may be rebutted. 3 Burr. 1609; 1 T. R. 163; 3 = T. R. 16;=20 5 T. R. 471; 8 T. R. 3; 3 East 451. The difference between a tenant from = year to=20 year, and a tenant for years, is rather a distinction in words than in=20 substance. Woodf., L. & J. 163.

12. Tenant at will, is when lands or tenements are let by one man to = another,=20 to have and th bold to him at the will of the lessor, by force of which = the=20 lessee is in possession. In this case the lessee is called tenant at = will.

13. Every lease at will must be at the will of both parties. Co. Lit. = 55; 2=20 Lilly's Reg. 555; 2 Bl. Com. 145., See Com. Dig. Estates, H 1; 12 Mass. = 325; 1=20 Johns. Cas. 33; 2 Caines' C. Err. 314; 2 Caines' R. 169; 17 Mass. R. = 282; 9=20 Johns. R. 331; 13 Johns. R. 235. Such a tenant may be ejected by the = landlord at=20 any time. 1 Watt's & Serg. 90.

14. Tenant at suffrance, is he who comes into possession by a lawful = demise,=20 and after his term is ended, continues the possession wrongfully, and = holds=20 over. Co. Lit. 57, b; 2 Leo. 46; 3 Leo. 153. See 1 Johns. Cas. 123; 5 = Johns. R.=20 128; 4 Johns. R. 150; Id. 312.

15. Tenant in severalty, is he who holds land and tenements in his = own right=20 only, without any other person being joined or connected with him in = point of=20 interest, during his estate therein. 2 Bl. Com. 179.

16. Tenants in common, are such as hold by several and distinct = titles, but=20 by unity of possession. 2 Bl. Com. 161. See Estate in common; 7 Cruise, = Dig.=20 Ind. tit. Tenancy in Common; Bac. Abr. Joint-Tenants and Tenants in = Common; Com.=20 Dig. Abatement, E 10, F 6; Chancery, 3 V 4 Devise, N 8; Estates, K 8, K = 2 Supp.=20 to Ves. jr. vol. 1, 272, 315; 1 Vern. It. 353; Arch. Civ. Pl. 53, = 73.

17. Tenants in common may have title as such to real or personal = property;=20 they may be tenants of a house, land, a horse, a ship, and the like.

18. Tenants in common are bound to account to each other; but they = are bound=20 to account only for the value of the property as it was when they = entered, and=20 not for any improvement or labor they put upon it, at their separate = expense. 1=20 McMull. R. 298. Vide Estates in common; and 4 Kent, Com. 363. Joint = tenants, are=20 such as hold lands or tenements by joint tenancy. See Estate in joint = tenany; 7=20 Cruise, Dig. Ind. tit. Joint Tenancy; Bac. Abr. Joint Tenants and = Tenants in=20 Common; Com. Dig. Estates, K 1; Chancery, 3 V 1; Devise, N 7, N 8; 2 = Saund. Ind.=20 Joint Tenants; Preston on Estates, 2 Bl. Com. 179.

19. Tenants to the praecipe, is be against whom the writ of praecipe = is=20 brought, in suing out a common recovery, and must be the tenant or = seised of the=20 freehold. 2 Bl. Com. 362.

TENANT OF THE DEMESNE, Eng. law. One who is tenant of a mesne = lord; as=20 where A is tenant of B, and C of A; B is the lord, A the mesne lord and = C tenant=20 of the demesne. Ham. N. P. 392, 393.

TENANT BY THE MANNER. One who has a less estate than a fee in = land,=20 which remains in the reversioner. He is so called because in avowries = and other=20 pleadings, it is specially shown in what manner, he is tenant of the = land, in=20 contradistinction to the veray tenant, who is called simply, tenant. = Hamm. N. P.=20 393. See Veray.

TENANT PARAVAIL, English law. The tenant of a tenant; and is = so called=20 because he has the avails or profits of the land. Ham. N. P. 892, = 393.

TENANT RIGHT, Eng. law. In leases from the crown, corporations = or the=20 church, it is usual to grant a further term to the old tenants in = preference to=20 strangers, and, as this expectation is seldom disappointed, such tenants = are=20 considered as baying an ulterior interest beyond their subsisting term; = and this=20 interest is called the tenant right. Bac. Ab. Leases and Terms for = years, U.

TENDER, contracts, pleadings. A tender is an offer to do or = perform an=20 act which the party offering, is bound to perform to the party to whom = the offer=20 is made.

2. A tender may be of money or of specific articles; these will be = separately=20 considered. =A71. Of the lender of money. To make la valid tender the = following=20 requisites are necessary: 1. It must be made by a person capable of = paying: for=20 if it be made by a stranger without the consent of the debtor, it will = be=20 insufficient. Cro. Eliz. 48, 132; 2 M. & S. 86; Co. Lit. 206.

3. - 2. It must be made to the creditor having capacity to receive = it, or to=20 his authorized agent. 1 Camp. 477; Dougl. 632; 5 Taunt. 307; S. C. 1 = Marsh. 55;=20 6 Esp. 95; 3 T. R. 683; 14 Serg. & Rawle, 307; 1 Nev. & M. 398; = S. C. 28=20 E. C. L. R. 324; 4 B. & C. 29 S. C. 10 E. C. L. R. 272; 3 C. & = P. 453 S.=20 C. 14 E. C. L. R. 386; 1 M. & W. 310; M. & M. 238; 1 Esp. R. 349 = 1 C.=20 & P. 365

4. - 3. The whole sum due must be offered, in the lawful coin of the = United=20 States, or foreign coin made current by law; 2 N. & M. 519; and the = offer=20 must be unqualified by any circumstance whatever. 2 T. R. 305; 1 Campb. = 131; 3=20 Campb. 70; 6 Taunt. 336; 3 Esp. C. 91; Stark. Ev. pt. 4, page 1392, n. = g; 4=20 Campb. 156; 2 Campb. 21; 1 M. & W. 310. But a tender in bank notes, = if not=20 objected to on that account, will be good. 3 T. R. 554; 2 B. & P. = 526; 1=20 Leigh's N. P. c. 1, S. 20; 9 Pick. 539; see 2 Caines, 116; 13 Mass. 235; = 4 N. H.=20 Rep. 296; 10 Wheat 333. But in such case, the amount tendered must be = what is=20 due exactly, for a tender of a five dollar note, demanding change, would = not be=20 a good tender of four dollars. 3 Campb. R. 70; 6 Taunt. R. 336; 2 Esp. = R. 710; 2=20 D. & R. 305; S. C. 16 E. C. L. R. 87. And a tender was held good = when made=20 by a check contained in a letter, requesting a receipt in return which = the=20 plaintiff sent back demanding a larger sum, without objecting to the = nature of=20 the tender. 8 D. P. C. 442. When stock is to be tendered, everything = must be=20 done by the debtor to enable him to transfer it, but it is not = absolutely=20 requisite that it should be transferred. Str. 504, 533, 579 .

5. - 4. If a term had been stipulated in favor of a creditor, it must = be=20 expired; the offer should be made at the time agreed upon for the = performance of=20 the contract if made afterwards, it only goes in mitigation of damages, = provided=20 it be made before suit brought. 7 Taunt. 487; 8 East, R. 168; 5 Taunt. = 240; 1=20 Saund. 33 a, note 2. The tender ought to be made before day-light is = entirely=20 gone. 7 Greenl. 31.

6. - 5. The condition on which the debt was contracted must be = fulfilled.

7. - 6. The tender must be made at the place agreed upon for the = payment, or,=20 if there be no place appointed for that purpose, then to the creditor or = his=20 authorized agent. 8 John. 474; Lit. Sel. Cas. 132; Bac. Ab. h. t. c.

8. When a tender has been properly made, it is a complete defence to = the=20 action but the benefit of a tender is lost, if the creditor afterwards = demand=20 the thing due from the debtor, and the latter refuse to pay it. Kirby, = 293.

9. - =A72. Of the tender of specific articles. It is a rule that = specific=20 articles maybe tendered at some particular place, and not, like money, = to the=20 person of the creditor wherever found. When no place is expressly = mentioned in=20 the contract, the place of delivery is to be ascertained by the intent = of the=20 parties, to be collected from the nature of the case and its = circumstances. If,=20 for example, the contract is for delivery of goods from the seller to = the buyer=20 on demand, the former being the manufacturer of the goods or a dealer in = them,=20 no place being particularly named, the manufactory or store of the = seller will=20 be considered as the place intended, and a tender there will be = sufficient. When=20 the specific articles are at another place at the time of sale, that = will be the=20 place of delivery. 2 Greenl. Ev. =A7609 4 Wend. 377; 2 Applet. 325.

10. When the goods are cumbrous, and the place of delivery is not = designated,=20 nor to be inferred from the circumstances, it is presumed that it was = intended=20 that they should be delivered at any place which the creditor might = reasonably=20 appoint; if the creditor refuses, or names an unreasonable place, the = debtor may=20 select a proper place, and having given notice to the creditor, deliver = the=20 goods there. 2 Kent, Comm. 507; 1 Greenl. 120; Chip. on Contr. 51 13 = Wend. 95; 2=20 Greenl. Ev. =A7610. Vide, generally, 20 Vin., Ab. 177; Bac. Ab. h. t.; 1 = Sell.=20 314; Com. Dig. Action upon the case upon Assumpsit, H 8-Condition, L 4 = Pleader,=20 2 G 2-2 W, 28,49-3 K 23-3 M 36; Chipm, on Contr. 31, 74; Ayl. Pand. B. = 4, t. 29;=20 7 Greenl. 31 Bouv. Inst. Index, h. t.

TENEMENT, estates. In its most extensive signification = tenement=20 comprehends every thing which may be holden, provided it be of a = permanent=20 nature; and not only lands and inheritances which are holden, but also = rents and=20 profits a prendre of which a man has any frank tenement, and of which he = may be=20 seised ut de libero tenemento, are included under this term. Co. Litt. 6 = a; 1=20 Tho. Co. Litt. 219; Pork. s. 114; 2 Bl. Com. 17. But the word tenements = simply,=20 without other circumstances, has never been construed to pass a fee. 10 = Wheat.=20 204. In its more confined and vulgar acceptation, it means a house or = building.=20 Ibid. an 1 Prest. on Est. 8. Vide 4 Bing. 293; S C. l1 Eng. C. L. Rep. = 207; 1 T.=20 R. 358; 3 T. R. 772; 3 East, R. 113; 5 East, R. 239; Burn's Just. Poor, = 525 to=20 541; 1 B. & Adolph. 161; S. C. 20 Engl. C. L. Rep. 36 8; Com. Dig. = Grant, E=20 2; Trespass, A 2; Wood's Inst. 120; Babington on Auctions, 211, 212.

TENENDAS, Scotch law. The name of a clause in charters of = heritable=20 rights which derives its name from its first words tenendus praedictas = terras,=20 and expresses the particular tenure by which the lands are to be holden. = Ersk.=20 Prin. B. 2, t. 3, n. 10.

TENENDUM, conveyancing. This is a Latin word, which signifies = to=20 hold.

2. It was formerly that part of a deed which was used to express the = tenure=20 by which the estate granted was holden; but since all freehold tenures = were=20 converted into socage, the tenendum is of no further use even in = England, and is=20 therefore joined to the habendum in this manner, "to have and to hold." = The=20 words "to hold" have now no meaning in our deeds. 2 Bl. Com. 298. Vide=20 Habendum.

TENERI, contracts. That part of a bond where the obligor = declares=20 himself to be held and firmly bound to the obligee, his heirs, = executors,=20 administrators and assigns, is called the teneri. 3 Call, 350.

TENNESSEE. The name of one of the new states of the United = States of=20 America. This state was admitted into the Union by virtue of the "act = for the=20 admission of the state of Tennessee into the Union," approved June 1, = 1796, 1=20 Story's L. IT. S. 450, which recites and enacts as follows:

2. Whereas, by the acceptance of the deed of cession of the state of = North=20 Carolina, congress are bound to lay out, into one or more states, the = territory=20 thereby ceded to the United States:

3. - =A71. Be it enacted, &c., That the whole of the territory = ceded to the=20 United States by the state of North Carolina, shall be one state, and = the same=20 is hereby declared to be one of the United States of America, on an = equal=20 footing with the original states in all respects whatever, by the name = and title=20 of the state of Tennessee. That, until the next general census, the said = state=20 of Tennessee shall be entitled to one representative in the house of=20 representatives of the United States; and, in all other respects, as far = as they=20 may be applicable, the laws of the United States shall extend to, and = have force=20 in, the state of Tennessee, in the same manner as if that state had = originally=20 been one of the United States.

4. The constitution was adopted on the sixth day of February, 1796; = and=20 amended by a convention which sat at Nashville, on the 30th day of = August, 1834.=20 The powers of the government are divided into three distinct = departments; the=20 legislative, executive, and judicial. Art. 2, 1.

5. - 1st. The legislative authority of the state is vested in a = general=20 assembly, which consists of a senate and house of representatives, both=20 dependent on the people.

6. - 1. The senate will be considered with reference to the = qualifications of=20 the electors; the qualifications of the members; the number of members; = the=20 length of time for which they are elected; and, the time of their = election. 1.=20 Every free white man of the age of twenty-one years, being a citizen of = the=20 United States, and a citizen of the county wherein he may offer his vote = six=20 months next preceding the day of his election, shall be entitled to vote = for=20 members of the general assembly, and other civil officers, for the = county and=20 district in which he resides; provided, that no person shall be = disqualified=20 from voting on account of color, who is now, by the laws of this state, = a=20 competent witness in a court of justice against a white man. Art. 4, = sect. 1. 2.=20 No person shall be a senator, unless he be a citizen of the United = States, of=20 the age of thirty years, and shall have resided three years in this = state, and=20 one year in, the county or district, immediately preceding the election. = Art. 2,=20 s. 10. 3. The number of senators shall not exceed one-third of the = number of=20 representatives. Art. 2, s. 6. 4. Senators shall hold their office for = the term=20 of two years. Art. 2, s. 7. 5. Their election takes place on the first = Thursday=20 of August, 1835, and every second year thereafter. Art. 2 , s. 7.

7. - 2. The house of representatives will be considered in the same = order=20 which has been observed in considering the senate. 1. The qualifications = of the=20 electors of representatives are the same as those of senators. 2. To be = elected=20 a representative, the candidate must be a citizen of the United States, = of the=20 age of twenty-one years, and must have been a citizen of the state for = three=20 years, and a resident of the county he represents one year immediately = preceding=20 the election. Art. 2, s. 9. 3. The number of representatives shall not = exceed=20 seventy-five, until the population of the state shall exceed one million = and a=20 half; and shall never thereafter exceed ninety-nine. Art. 2, s. 5. 4. = They are=20 elected for two years. Art. 2, s. 7. 5. The election is to be at the = same time=20 as that of senators. Art. 2, s. 7.

8. - 2d. The supreme executive power of this state is vested in a = governor.=20 Art. 3, s. 2. 1. He is chosen by the electors of the members of the = general=20 assembly. Art. 3, s. 2. 2. He shall be at least thirty years of age, = shall be a=20 citizen of the United States, and shall have been a citizen of this = state seven=20 years next before his election. Id. sect. 3. He shall hold his office = for two=20 years, and until his successor shall be elected and qualified. He shall = not be=20 eligible more than six years in any term of right. Id. sect. 4. 3. He = shall be=20 elected by the electors of the members of the general assembly, at the = times and=20 places where they respectively vote for the members thereof. Id. s. 2. = 4. He=20 shall be commander-in-chief of the army and navy of the state, and of = the=20 militia, except when they are called into the service of the United = States;=20 shall have the power to grant reprieves and pardons, except in cases of=20 impeachment; may convene the legislature on extraordinary occasions, by=20 proclamation; take care that the laws be faithfully executed; from time = to time=20 give to the general assembly information of the state of the government, = and=20 recommend to their consideration such measures as he shall deem = expedient may=20 requite information in writing from the officers in the executive = department,=20 upon any subject relating to the duties of their respective offices. Id. = s. 5 to=20 11. 5. He shall, at stated times, receive a compensation for his = services, which=20 shall not be increased nor diminished during the period for which he = shall have=20 been elected. Id. s. 7. 6. In case of the removal of the governor from = office,=20 or of his death, or resignation, the duties of the office shall devolve = on the=20 speaker of the senate; and in case of a vacancy in the office of the = latter, on=20 the speaker of the house of representatives. Id. s, 12.

9. - 3d. The judicial power of the state is vested, by the sixth = article of=20 the constitution, in one supreme court; in such inferior courts as the=20 legislature shall, from time to time, ordain and establish, and the = judges=20 thereof; and in justices of the peace. The legislature may also vest = such=20 jurisdiction as may be deemed necessary in corporation courts.

10. - 1. The supreme court shall be composed of three judges; one of = whom=20 shall reside in each of the grand divisions of the state. The judges = shall be=20 thirty-five years of, age, and shall be elected for the term of twelve = years.=20 The jurisdiction of the supreme court shall be appellate only, under = such=20 restrictions and regulations as may, from time to time, be prescribed by = law:=20 but it may possess such other jurisdiction as is now conferred by law on = the=20 present supreme court. The concurrence of two of the judges shall be = necessary=20 to a decision. Said courts shall be held at one place, and at one place = only, in=20 each of the three grand divisions of the state.

11. - 2. The judges of such inferior courts as the legislature may = establish,=20 shall be thirty-five years of age, and shall be elected for eight years. = The=20 jurisdiction of such inferior courts shall be regulated by law. The = judges shall=20 not charge juries with regard to matters of fact, but may state the = testimony=20 and declare the law. They shall have power in all civil cases to issue = writs of=20 certiorari to remove any cause or transcript thereof, from any inferior=20 jurisdiction, into said court, on sufficient cause, supported by oath or = affirmation.

12. - 3. Judges of the courts of law, and equity are appointed by a = joint=20 vote of both houses of the general assembly; but courts may be = established to be=20 holden by justices of the peace.

13. - 4. The judges of the supreme court and inferior courts shall, = at stated=20 times, receive a compensation for their services, to be ascertained by = law,=20 which shall not be increased nor diminished, during the time for which = they are=20 elected. They shall not be allowed any fees or perquisites of office, = nor bold=20 any other office of trust or profit under this state or the United = States.

TENET. Which he holds. There are two ways of stating the = tenure in an=20 action of waste. The averment is either in the tenet and the tenuit; it = has a=20 refer-ence to the time of the waste done, and not to the time of = bringing the=20 action.

2. When the averment is in the tenet the plaintiff on obtaining a = verdict,=20 will recover the place wasted, namely, that part of the premises in = which the=20 waste was exclusively done, if it were done in a par only, together with = treble=20 damages. But when the averment is in the tenuit, the tenancy being at an = end, he=20 will have judgment for his damages only. 2 Greenl. Ev. 652.

TENOR, pleading. This word, applied to an instrument in = pleading,=20 signifies an exact copy; it differs from purport. (q. v.) 2 Phil. Ev. = 99; 2=20 Russ. on Cr. 365; 1, Chit. Cr. Law, 235; 1 Mass. 203; 1 East, R. 180, = and the=20 cases cited in the notes. In chancery practice, by tenor is understood a = certified copy of records of other courts removed into chancery by = certiorari.=20 Gresl. Ev. 309.

TENUIT. Which he held. When the tenancy is ended and the = tenant is=20 sued in an action of waste, the averment of tenure is in the tenuit. For = a=20 distinction between the averment in the tenet and tenuit, see 2 Greenl. = Ev.=20 =A7652, and Tenet.

TENURE, estates. The manner in which lands or tenements are = holden. 2.=20 According to the English law, all lands are held mediately or = immediately from=20 the king, as lord paramount and supreme proprietor of all the lands in = the=20 kingdom. Co. Litt. 1 b, 65 a; 2 Bl. Com. 105.

3. The idea of tenure; pervades, to a considerable degree, the law of = real=20 property in the several states; the title to land is essentially = allodial, and=20 every tenant in fee simple has an absolute and perfect title, yet in = technical=20 language, his estate is called an estate in fee simple, and the tenure = free and=20 common socage. 3 Kent, Com. 289, 290. In the states formed out of the = North=20 Western Territory, it seems that the doctrine of tenures is not in = force, and=20 that real estate is owned by an absolute and allodial title. This is = owing to=20 the wise provisions on this subject contained in the celebrated = ordinance of=20 1787. Am. Jur. No. 21, p. 94, 5. In New York, 1 Rev. St. 718; = Pennsylvania, 5=20 Rawle, R. 112; Connecticut, 1 Rev. L. 348 and Michigan, Mich. L. 393, = feudal=20 tenures have been abolished, and lands are held by allodial titles. = South=20 Carolina has adopted the statute, 12 C. II., c. 24, which established in = England=20 the tenure of free and common socage. 1 Brev. Dig. 136. Vide Wright on = Tenures;=20 Bro. h. t.; Treatises of Feuds and Tenures by Knight's service; 20 Vin = Ab. 201;=20 Com. Dig. h. t.; Bac. Ab. h. Thom. Co. Litt. Index, h. t.; Sulliv. Lect. = Index,=20 h. t.

TENSE. A term used in, grammar to denote the distinction of = time.

2. The acts of a court of justice ought to be in the present tense; = as,=20 "praeceptum est," not "preaceptum fuit;" but the acts of, the party may = be in=20 the preterperfect tense, as "venit, et protulit hic in curia quandum = querelam=20 suam;" and the continuances are in the preterperfect tense; as, = "venerunt," not=20 "veniunt." 1 Mod. 81.

3. The contract of marriage should be made in language in the present = tense.=20 6 Binn. Rep. 405. Vide 1 Saund. 393, n. 1.

TERCE, law of Scotland. A life-rent competent by law to widows = who=20 have not accepted of special provisions in the third part of the = heritable=20 subjects in which the hushand died infeft.

2. The terce takes place only where the marriage has subsisted for a = year and=20 day, or where a child has been born alive of it. No terce is due out of = lands in=20 which the hushand was not infeft, unless in case of a fraudulent = omission. Cr.=20 423, =A728; St. 2, 6, 16. The terce is not limited to lands, but extends = to=20 teinds, and to servitudes and other burdens affecting lands. Ersk. Pr. = L. Scot.=20 B. 2, t. 9, s. 26, 27; Burge on the Confl. of Laws, 429 to 435.

TERM, construction. Word; expression speech.

2. Terms or words are characters by which we announce our sentiments, = and=20 make known to others things with which we are acquainted. These must be = properly=20 construed or interpreted in order to understand the parties using them. = Vide=20 Construction; Interpretation; Word.

TERM, contracts. This word is used in the civil, law to denote = the=20 space of time granted to the debtor for discharging his obligation; = there are=20 express terms resulting from the positive stipulations of the agreement; = as,=20 where one undertakes to pay a certain sum on a certain day and also = terms which=20 tacitly result from the nature of the things which are the object of the = engagement, or from the place where the act is agreed to be done. For = instance,=20 if a builder engage to construct a house for me, I must allow a = reasonable time=20 for fulfilling his engagement.

2. A term is either of right or of grace; when it makes part of the = agreement=20 and is expressly or tacitly included in it, it is of right when it is = not part=20 of the agreement, it is of grace; as if it is not afterwards granted by = the=20 judge at the requisition of the debtor. Poth. on Oblig. P. 2, c. 3, art. = 3; 1=20 Bouv. Inst. n. 719 et seq.

TERM, estates. The limitation of an estate, as a term for = years, for=20 life, and the like. The word term does not merely signify the time = specified in=20 the lease, but the estate also and interest that passes by that lease; = and=20 therefore the term may expire during the continuance of the time, as by=20 surrender, forfeiture and the like. 2 Bl. Com. 145; 8 Pick. R. 339.

TERM, practice. The space of time during which a court holds a = session; sometimes the term is a monthly, at others it is a quarterly = period,=20 according to the constitution of the court.

2. The whole term is considered as but one day so that the judges may = at any=20 time during the term, revise their judgments. In the computation of the = term all=20 adjournments are to be included. 9 Watts, R. 200. Courts are presumed to = know=20 judicially when their terms are required to be held by public law. 4 = Dev. R.=20 427. See, 1 generally, Peck, R. 82; 6 Yerg. R. 395; 7 Yerg. R. 365; 6 = Rand. R.=20 704; 2 Cowen, R. 445; 1 Cowen, R. 58; 5 Binn. R. 389; 4 S. & R. 507 = 5 Mass.=20 R. 195, 435.

TERM ATTENDANT ON THE INHERITANCE. This phrase is used in the = English=20 courts of equity, to signify that when a term has been created for a = particular=20 purpose, which is satisfied, and the instrument by which it is created = does not=20 provide for a cesser of the term, on the happening of the event, the = benefit in=20 it becomes subject to the rules of equity, and must be moulded and = disposed of=20 according to the equitable interests of all persons having claims upon = the=20 inheritance; and, when the purposes of the trust fire satisfied, the = ownership=20 of the term belongs in equity, to the owner of the inheritance, whether=20 de-clared by the original conveyance to attend it or not.

2. Terms attendant on the inherit ance are but little known in the = United=20 States. 1 Hill. Ab. 243.

TERM PROBATORY. A probatory term is the time during which = evidence may=20 be taken in a cause. Vide Probatory term.

TERM FOR YEARS. An estate for years, (q. v.) and the time = during which=20 such estate is to be beld, are each called a term; hence the term may = expire=20 before the time, as by a surrender. Co. Litt. 45. If, for example, a = conveyance=20 be made to Peter for three years, and after the expiration of the said = term to=20 Paul for six, and Peter surrenders or forfeits his term after one year, = Paul's=20 estate takes effect immediately; if, on the contrary, the language had = been=20 after the expiration of the said time, or of the said three years, the = result=20 would have been different, and Paul's estate would not have taken effect = till=20 the end of such time, notwithstanding the forfeiture or surrender.

2. Whatever be its duration, a term for years is less than an estate = for=20 life. If, therefore, the same person have a term for years and an estate = for=20 life immediately succeeding it, the term is merged; but if the order of = the=20 estates be reversed, that is, if the greater precede the less, there is = no=20 merger. Co. Litt. 54 b; Vin. Ab. Merger, F 4 and G 13; Godb. 51; Biss. = on Est.=20 c. 8, s. 1, n. 3, p. 186. Vide Estate for years; Leases.

TERMINUM. In the civil law, says Spelman, this word signifies = a day=20 set to the defendant, and, in that sense, Bracton, Glanville and some = others=20 sometimes use it. Reliquiae Spelmanianae, p. 71; Beames' Gl. 27 n.

TERMINUS A QUO. The starting point of a private way is so = called.=20 Hamm. N. P. 196.

TERMINUS AD QUEM. The point of termination of a private way is = so=20 called.

TERMOR. One who holds lands and tenements for a term of years = or,=20 life. Litt. sect. 100; 4 Tyr. 561.

TERRE-TENANT, or improperly terre-tenant. One who has the = actual=20 possession of land; but in a more technical sense, he who is seised of = the land;=20 and, in the latter sense the owner of the land, or the person seised, is = the=20 terre-tenant, and not the lessee. 4 W. & S. 256; Bac. Ab. Uses and = Trusts,=20 in pr. It has been holden that mere occupiers of the land are not = terre-tenants.=20 Bee 16 S. & R, 432; 3 Penna. 229; 2 Saund. 7, n. 4; 2 Bl. Com. 91, = 328.

TERRIER, Engl. Iaw. A roll, catalogue or survey of lands, = belonging=20 either to a single person or a town, in which are stated the quantity = of, acres,=20 the names of the tenants, and the like.

2. By the ecclesiastical law an inquiry is directed to be made from = time to=20 time, of the temporal rights of the clergyman of every parish, and to be = returned into the registry of the bishop: this return is denominated a = terrier.=20 1 Phil. & Am. Ev. 602, 603.

TERRITORIAL COURTS. The courts established in the territories = of the=20 United States. Vide Courts of the United States.

TERRITORY. Apart of a country, separated from the rest, and = subject to=20 a particular jurisdiction. The word is derived from terreo, and is so = called=20 because the magistrate within his jurisdiction has the power of = inspiring a=20 salutary fear. Dictum cat ab eo quod magistratus intra fines ejus = terrendi jus=20 habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the = ecclesiastical=20 jurisdictions, Francis Duaren observes, that the ecclesiastics are said = not to=20 have territory, nor the power of arrest or removal, and are not unlike = the Roman=20 magistrates of whom Gellius says vocationem habebant non prehen-sionem. = De=20 Sacris Eccles. Minist. lib. 1, cap. 4. In the sense it is used in the=20 constitution of the United States, it signifies a portion of the country = subject=20 to and belonging to the United States, which is not within the boundary = of any=20 of them.

2. The constitution of the United States, art. 4, s. 3, provides, = that "the=20 congress shall have power to dispose of, and make all needful rules and=20 regu-lations respecting the territory or other property of the United = States;=20 and nothing in this constitution shall be construed, so as to preclude = the=20 claims of the United States or of any state."

3. Congress possesses the power to erect territorial governments = within the=20 territory of the United States; the power of congress over such = territory is=20 exclusive and universal, and their legislation is subject to no control, = unless=20 in the case of ceded territory, as far as it may be affected by = stipulations in=20 the cessions, or by the ordinance of 1787, 3 Story's L. U. S. 2073, = under which=20 any part of it has been settled. Story on the Const. =A71322; Rawle on = the Const:=20 237; 1 Kent's Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.

4. The only organized territories of the United States are Oregon, = Minnesota,=20 New Mexico and Utah. Vide Courts of the United States.

TERROR. That state of the mind which arises from the event or=20 phenomenon that may serve as a prognostic of some catastrophe affright = from=20 apparent danger.

2. One of the constituents of the offence of riot is that the acts of = the=20 persons engaged in it should be to the terror of the people, as a show = of arms,=20 threatening speeches, or turbulent gestures; but it is not requisite, in = order=20 to constitute this crime, that personal violence should be committed. 3 = Camp. R.=20 369; 1 Hawk. P. C. c. 65, s. 5; 4 C. & P. 373. S. C. 19 E. C. L. R. = 425 4 C.=20 & P. 538; S. C. 19 E. C. L. R. 616. Vide Rolle's R. 109; Dalt. Just. = c. 186;=20 19 Vin. Ab. Riots, A 8.

3. To constitute a forcible entry, 1 Russ. Cr. 287, the act must be=20 accom-panied with circumstances of violence or terror; and in order to = make the=20 crime of robbery, there must be violence or putting in fear, but both = these=20 circumstances need not concur. 4 Binn. R. 379. Vide Riot; Robbery; = Putting in=20 fear.

TERTIUS INTERVENIENS, civil law. One, who claiming an interest = in the=20 subject or thing in dispute in action between other parties, asserts his = right=20 to act with the plaintiff, to be joined with him, and to recover the = matter in=20 dispute because he has an interest in it or to join the defendant, and = with him,=20 oppose the interest of the plaintiff, which it is his interest to = defeat. He=20 differs from the intervener or he who interpleads in equity. 4 Bouv. = Inst. n.=20 3819, note.

TEST. Something by which to ascertain the truth respecting = another=20 thing. 7 Penn. St. Rep. 428; 6 Whart. 284. Vide Religious Test.

TESTACY. The state or condition of dying after making a will, = which=20 was valid at the time of testator's death.

TESTAMENT, civil law. The appointment of an executor or = testamentary=20 heir, according to the formalities prescribed by law. Domat, Liv. 1, = tit. 1, s.=20 1.

2. At first there were only two sorts of testaments among the Romans = that=20 called calatis comitiis, and another called in procinctu. (See below.) = In the=20 course of time these two sorts of testament having become obsolete, a = third form=20 was introduced, called per aes et libram, which was a fictitious sale of = the=20 inheritance to the heir apparent. The inconveniences which were = experienced from=20 these fictitious sales again changed the form of testaments; and the = praetor=20 introduced another which required the seal of seven witnesses. The = emperors=20 having increased the solemnity of those testaments, they were called = written or=20 solemn testaments, to distinguish them from nuncupative testaments which = could=20 be made without writing. Afterwards military testaments were introduced, = in=20 favor of soldiers actually engaged in military service.

3. Among the civilians there are various kinds of testaments, the = principal=20 of which are mentioned below.

4. A civil testament is one made according to all the forms = prescribed by=20 law, in contradistinction to a military testament, in making which some = of the=20 forms may be dispensed with. Civil testaments are more ancient than = military=20 ones; the former were in use during the time of Romulus, the latter were = introduced during the time of Coriolanus. See Hist. de la Jurisp. Rom. = de M.=20 Terrason, p. 119.

5. A common testament is one which is made jointly by several = persons. Such=20 testaments are forbidden in Louisiana, Civ. Code of Lo. art. 1565, and = by the=20 laws of France, Code Civ. 968, in the same words, namely, "A testament = cannot be=20 made by the same act, by two or more persons, either for the benefit of = a third=20 person, or under the title of a reciprocal or mutual disposition."

6. A testament calatis comitiis, or made in the comitia, that is, the = assembly of the Roman people, was an ancient manner of making wills used = in=20 times of peace amonn the Romans. The comitia met twice a year for this = purpose.=20 Those who wished to make such testaments caused to be convoked the = assembly of=20 the people by these words, calatis comitiis. None could make such will's = that=20 were not entitled to be at the assemblies of the people. This form of = testament=20 was repealed by the law of the Twelve Tables.

7. Testament ab irato, a term used in the civil law. A testament ab = irato, is=20 one made in a gust of passion or hatred against the presumptive heir = rather than=20 from a desire to benefit the devisee. When the facts of unreasonable = anger are=20 proved, the will is annulled as unjust, and as not having been freely = made. Vide=20 Ab irato.

8. A mystic testament is also called a solemn testament, because it = requires=20 more formality than a nuncupative testament; it is a form of making a = will,=20 which consists principally in enclosing it in an envelope and sealing it = in the=20 presence of witnesses.

9. This kind of testament is used in Louisiana. The following are the = provisions of the civil code of that state on the subject, namely: the = mystic or=20 secret testament, otherwise called the close testament, is made in the = following=20 manner: the testator must, sign his dispositions, whether he has = written. them=20 himself, or has caused them to be written by another person. The paper=20 containing, those dispositions, or the paper serving as their envelope, = must be=20 closed and sealed. The testator shall present it thus closed and sealed = to the=20 notary and to witnesses, or he shall cause it to be and sealed in their=20 presence; then he shall declare to the notary, in the presence of the = witnesses,=20 that that paper contains his testament written by himself, or by another = by his=20 direction, and signed by him, the testator. The notary shall then draw = up the=20 act of superscription, which shall be written on that paper, or on the = sheet=20 that serves as its envelope, and that act shall be signed by the = testator, and=20 by the notary and the witnesses. Art. 1577, 5 M. R. 1 82. All that is = above=20 prescribed shall be done without interruption or turning aside to other = acts;=20 and in case the testator, by reason of any hindrance that has happened = since the=20 signing of the testament, cannot sign the act of superscription, mention = shall=20 be made of the declaration made by him thereof; without its being = necessary, in=20 that case, to increase the number of witnesses. Art. 1578. Those who = know not=20 how, or are not able to write, and those who know not how, or are not = able to=20 sign their names, cannot make dispositions in the form of the mystic = will. Art.=20 1579. If any one of the witnesses to the act of superscription knows not = how to=20 sign, express mention shall be made thereof. In all cases the act must = be signed=20 by at least two witnesses. Art. 1580.

10. Nuncupative, testament, a term used in the civil law. A = numcupative=20 testament was one made verbally, in the presence of seven witnesses; it = was not=20 necessary that it should have been, in writing; the proof of it was by = parol=20 evidence.

11. In Louisiana, testaments, whether nuncupative or mystic, must be = drawn up=20 in writing, either by the testator himself, or by some other person = under his=20 dictation. Civil Code of Lo. art. 1568. The custom of making verbal = statements,=20 that is to say, resulting from the mere deposition of witnesses, who = were=20 pregent when the testator made known to them his will, without his = having=20 committed it, or caused it to be committed to writing, is abrogated. Id. = art.=20 1569. Nuncupative testaments may be made by public act, or by act under = private=20 signature. Id. art. 1570. See Will, nuncupative.

12. Olographic testament, a term used in the civil law. The = olographic=20 tes-tament is that which is written wholly by the testator himself. In = order to=20 be valid, it must be entirely written, dated, and signed by the hand of = the=20 tes-tator. It is subject to no other form. See Civil Code of Lo. = art.

TESTAMENTARY. Belonging to a testament; as a testamentary = gift; a=20 testamen-tary guardian, or one appointed by will or testament; letters=20 testamentary, or a writing under seal given by an officer lawfully = authorized,=20 granting power to one named as executor to execute a last will or = testament.

TESTATE. One who dies having made a testament; a testator. = This word=20 is used in this sense, in the act of the legislature of Pennsylvania, = entitled=20 "An act relative to dower and for other purposes." Sect. 2, 5 Sm. Laws, = 257.

TESTATOR. One who has made a testament or will.

2. In general, all persons may be testators. But to this rule there = are=20 various exceptions. First, persons who are deprived of understanding = cannot make=20 wills; idiots, lunatics and infants, are among this class. Secondly, = persons who=20 have understanding, but being under the power of others, cannot freely = exercise=20 their will; and this the law presumes to be the case with a married = woman, and,=20 therefore, she cannot make a will without the express consent of her = hushand to=20 the particular will. When a woman makes a will under some general = agreement on=20 the part of the hushand that she shall make a will, the instrument is = not=20 properly a will, but a writing in the nature of a will or testament. = Thirdly,=20 persons who are deprived of their free will cannot make a testament; as, = a=20 person in duress. 2 Bl. Com. 497; 2 Bouv. Inst. n. 2102, et seq. See = Devisor;=20 Duress; Feme covert;, Idiot; Influence; Parties to Contracts; Testament; = Wife;=20 Will.

TESTATRIX. A woman who makes a will or testament, is so = called.

TESTATUM, practice. The name of a writ which is issued by the = court of=20 one county, to the sheriff of another county, in the same state, when = the=20 defen-dant cannot be found in the county where the court is located; for = example, after a judgment has been obtained, and a ca. sa. has been = issued,=20 which has been returned non est inventus, a testatum ca. sa. may be = issued to=20 the sheriff of the county where the defendant is. Vide 20 Vin. Ab. 259; = 7 Com.=20 Dig. 424.

TESTATUM, conveyancing. That part of a deed which commences = with the=20 words "this indenture witnesseth."

TESTE, practice. The teste of a writ is the concluding clause, = commencing with the word witness, &c.

2. The act of congress of May 8, 1792, 1 Story's Laws U. S. 257, = directs that=20 all writs and process issuing from the supreme or a circuit court, shall = bear=20 teste of the chief justice of the supreme court, or if that office be = vacant, of=20 the associate justice next in precedence; and that all writs or process = issuing=20 from a district court, shall hear teste of the judge of such court, or, = if the=20 said office be vacant, of the clerk thereof. Vide Serg. Const. Law, = Index, h.=20 t.; 20 Vin. Ab. 262; Steph. Plead. 25.

TESTES. Witnesses.

TO TESTIFY. To give evidence according to law; the examination = of a=20 witness who declares his knowledge of facts.

TESTIMONIAL PROOF, civ. law. This word is used in the same = sense as we=20 use parol evidence, and, in contradistinction to literal proof, which is = written=20 evidence.

TESTIMONY, evidence. The statement made by a witness under = oath or=20 affirmation. Vide Bill to perpetuate testimony.

TESTMOIGNE. This is an old and barbarous French word, = signifying in=20 the old books, evidence. Com. Dig. h. t.

TEXAS. The name of one of the new states of the United, States = of=20 America. Texas was an independent republic. By the joint resolution of = congress=20 of March 1, 1845, congress gave consent that the republic of Texas might = be=20 erected into a new state, to be called the state of Texas, with a = republican=20 form of government to be adopted by the people. And by the joint = resolution of=20 congress of the 29th day of December, 1845, the state of Texas was = admitted into=20 the union on an equal footing with the original states in all respects=20 whatever.

2. The constitution of the state was adopted in convention by the = deputies of=20 the people of Texas, at the city of Austin the 27th day of August, = 1845.

3. By the second article, it is provided that the powers of the = government of=20 the state of Texas shall be divided into three distinct departments, and = each of=20 them be confided to a separate body of magistracy, to wit: those which = are=20 legislative, to one; those which are executive, to another; and those = which are=20 judicial, to another; and no person, or collection of persons, being of = one of=20 those departments, shall exercise any power properly attached to either = of the=20 others, except in the instances herein expressly permitted.

4. - =A71. In considering the legislative power, it will be proper to = consider,=20 1. The qualification of voters. 2. The rights of members of the = legislature. 3.=20 The senate. 4. The house of representatives.

5. - 1. By sections. 1st and 2d, it is declared that every free male = person=20 who shall have attained the age of twenty-one years, and who shall be a = citizen=20 of the United States, or who is, at the time of the adoption of this=20 constitution by the congress of the United States, a citizen of the = republic of=20 Texas, and shall have resided in this state one year next preceding an = election,=20 and the last six months within the district, county, city, or town in = which he=20 offers to vote, (Indians not taxed, Africans, and the descendants of = Africans,=20 excepted,) shall be deemed a qualified elector and should such qualified = elector=20 happen to be in any other county situated in the district in which he = resides at=20 the time of an election, he shall be permitted to vote for any district = officer:=20 Provided, That the qualified electors shall be permitted to vote = anywhere in the=20 state for state officers: And provided further, That no soldier, seaman, = or=20 marine, in the army or navy of the United States, shall be entitled to = vote at=20 any election created by this constitution.

Sect. 2. All free male persons over the age of twenty-one years, = (Indians not=20 taxed, Africans, and descendants of Africans, excepted,) who shall have = resided=20 six months in Texas, immediately preceding the acceptance of this = constitution=20 by the congress, of the United States, shall be deemed qualified = electors.

6. - 2. The powers of the two houses are defined by the following = sections of=20 the third article, namely,

Sec. 12. The house of representatives, when assembled, shall elect a = speaker=20 and its other officers; and the senate shall choose a president for the = time=20 being, and its other officers. Each house shall judge of the = qualifications and=20 elections of its own members; but contested elections shall be = determined in=20 such manner as shall be directed by law. Two-thirds of each house shall=20 constitute a quorum to do business, but a smaller number may adjourn = from day to=20 day, and compel the attendance of absent members, in such manner and = under such=20 pen alties as each house may provide.

Sec. 13. Each house may determine the rules of its own proceedings; = punish=20 members for disorderly conduct; and with the consent of two-thirds, = expel a=20 member, but not a second time for the same offence.

Sec. 14. Each house shall keep a journal of its own proceedings, and = publish=20 the same; and the yeas and nays of the members of either house on any = question=20 shall, at the desire of any three members present, be entered on the=20 journals.

Sec. 16. Senators and representatives shall, in all cases, except in = treason,=20 felony, or breach of the peace, be privileged from arrest during the = session of=20 the legislature; and, in going to and returning from the same, allowing = one day=20 for every twenty miles such member may reside from the place at which = the=20 legislature is convened.

Sec. 17. Each house may punish, by imprisonment during the session, = any=20 person, not a member, for disrespectful or disorderly conduct in its = presence,=20 or for obstructing,any of its proceedings, provided such imprisonment = shall not,=20 at any one time, exceed forty-eight hours.

Sec. 18. The doors of each house shall be kept open.

7. - 3. The senate will be considered by taking a view, 1. Of the=20 qualifications of senators. 2. Of the time of their election. 3. Of the = length=20 of their service. 4. By whom chosen.

8. - 1st. The 11th section of the 3d article of the constitution = directs that=20 no person shall be a senator unless he be a citizen of the United = States, or at=20 the time of the acceptance of this constitution by the congress of the = United=20 States a citizen of the republic of Texas, and shall have been an = inhabitant of=20 this state three years next preceding the election; and the last year = thereof a=20 resident of the district for which he shall be chosen, and have attained = the age=20 of thirty years.

9. - 2d. Elections are to be held at such times and places as are now = or may=20 hereafter be designated by law. Art. 3, s. 7.

10. - 3d. Senator; are duly elected for four years.

11. - 4th. Senators are chosen by the qualified electors.

12. - 1. The house of representatives will be considered in the same = order=20 which has been observed in speaking of the senate.

13. - 1st. By the 6th section of the 3d article of the constitution, = it is=20 declared that no person shall be a reprsentative unless he be a citizen = of the=20 United States, or at the time of the adoption of this constitution a = citizen of=20 the republic of Texas, and shall have been an inhabitant of this state = two years=20 next preceding his election, and the last year thereof a citizen of the = county,=20 city, or town for which he shall be chosen, and shall have attained the = age of=20 twenty-one years at the time of his election.

14. - 2d. Elections are to be held at such times and places as 'are = now or=20 may hereafter be designated by law. Art. 3, s. 7.

15. - 3d. The members of the house of representatives hold their = office for=20 two, years from the day of the general election; and the sessions of the = legislature shall be biennial, at such times as shall be prescribed by = law. Art.=20 3, s. 6.

16. - 4th. The members of the house of representatives shall be = chosen by the=20 qualified electors. Art. 3, s. 5.

17. - =A72. The judicial power is vested in one supreme court, in = district=20 courts, and in such inferior courts as the legislature may from time to = time=20 ordain and establish; and such jurisdiction may be vested in corporation = courts.=20 as may be deemed necessary, and be directed by law. Art. 4, s. 1. Each = of these=20 will be separately considered.

18. - 1. The supreme court will be considered by, 1. Taking a view of = the=20 appointment of the judges, and the time during which they hold their = office. 2.=20 The organization of the court. 3. Its jurisdiction.

19. - 1st. The governor shall nominate, and, by and with the advice = and=20 consent of two-thirds of the senate, shall appoint the judges of the = supreme and=20 district courts, and they shall hold their offices for six years. Art. = 4, s.=20 5.

20. - 2d. The supreme court shall consist of a chief justice and two=20 associates, any two of whom shall form a quorum. 4, s. 2. It appoints = its own=20 clerk.

21. - 3d. The 3d section of the 4th article of the constitution = declares that=20 the supreme court shall have appellate jurisdiction only, which shall be = co-extensive with the limits of the state; but in criminal cases, and in = appeals=20 from interlocutory judgments, with such exceptions and under such = regu-lations=20 as the legislature shall make; And the supreme court and judges thereof = shall=20 have power to issue the writ of habeas corpus, and, under such = regu-lations as=20 may be prescribed by law, may issue Writs of mandamus, and such other = writs as,=20 shall be necessary to enforce its own jurisdiction; and also compel a = judge of=20 the district court to proceed to trial and judgment in a cause; and the = supreme=20 court shall hold its sessions once every year, between the months of = October and=20 June inclusive, at not more than three places in the state.

22. - 2. The circuit courts will be considered in the same order = observed=20 with regard to the supreme court.

23. - 1st. Circuit court judges are appointed in the same way as = judges of=20 the supreme court, and hold their office for the same time.

24. - 2d. By the 6th section of the 4th article of the constitution, = if is=20 directed that the state shall be divided into convenient judicial = districts. For=20 each district there shall be appointed a Judge, who shall reside in the = same,=20 and hold the courts at one place in each county, and at least twice in = each=20 year, in such manner as may be prescribed by law. The clerk is elected = by the=20 qualified voters of members of the legislature. Art. 4, s. 11.

24. - 3d. By the tenth section of the fourth article, jurisdiction is = given=20 to the district courts in these words: The district court shall have = original=20 jurisdiction of all criminal cases, of all suits in bebalf of the state = to=20 recover penalties, forfeitures and escheats, and of all cases of = divorce, and of=20 all suits, complaints, and pleas whatever, without regard to -any = distinction=20 between law and equity, when the matter in controversy shall be valued = at or=20 amount to one hundred dollars, exclusive of interest; and the said = courts, or=20 the judges thereof, shall have power to issue all writs necessary to = enforce=20 their own jurisdiction, and give them a general superintendence and = control over=20 inferior jurisdictions; and in the trial of all criminal cases, the jury = trying=20 the same shall find and assess the amount of punishment to be inflicted, = or fine=20 imposed; except in capital cases, and where the. punishment or fine = imposed=20 shall be specifically imposed by law.

25. - =A73. The supreme executive power is vested in a governor. We = will=20 consider, 1. His qualifications. 2. By whom elected. 3. Duration of his = office.=20 4. His power and duty.

26. - 1st. He must be at least thirty years of age, be a citizen of = the=20 United States, or a citizen of Texas, at the time of the adoption of the = constitution, and shall have resided in the same three years next = immediately=20 preceding his election. Art. 5, s. 4.

27. - 2d. The governor shall be elected by the qualified electors of = the=20 state, at the time and places of elections for members of the = legislature. Art.=20 5, s. 2.

28. - 3d. He holds his office for two years from the regular time of=20 installation, and until his successor shall have been duly qualified, = but shall=20 not be eligible for more than four years in any term of six years. Art. = 5, s.=20 4.

29. - 4th. He is commander-in-chief of the army and navy of the state = - may=20 require information from officers of the executive department - may = convene the=20 legislature, or adjourn the same, when the houses cannot agree - may = recommend=20 measures to the legislature - shall cause the laws to be executed. Art. = 5.

30. There shall be a lieutenant governor, who shall be chosen at = every=20 election for governor, by the same persons and in the same manner, = continue in=20 office for the same time, and, possess the same qualifications. In = voting for=20 governor and lieutenant-governor, the electors shall distinguish for = whom they=20 vote as governor, and for whom as lieutenant-governor. The lieutenant = governor=20 shall, by virtue of his office, be president of the senate, and have, = when in=20 committee of the whole, a right to debate and vote on all questions, and = when=20 the senate is equally divided, to give the casting vote. In case of the = death,=20 resignation, removal from office, inability or refusal of the governor = to serve=20 or of his impeachment or absence from the state, the lieutenant governor = shall=20 exercise the power and authority appertaining to the office of governor = until=20 another be chosen at the periodical election and be duly qualified or = until the=20 governor impeached, absent, or disabled, shall be acquitted, return, or = his=20 disability be removed. Art. 5, s. 12.

THAINLAND, old Eng. law. The land which was granted by the = Saxon kings=20 to their thains or thanes was so called. Crabb's C. L. 10.

The name of a coin. The thaler of Prussia and of the northern states = of=20 Germany is deemed as money of account, at the custom-house, to be of the = value=20 of sixty-nine cents. Act of May 22, 1846.

2. The thaler of Bremen, of seventy-two grotes, is deemed of the = value of=20 seventy-one cents. Act of March 3, 1843.

THEFT, crimes. This word is sometimes used as synonymous with = larceny,=20 (q. v.) but it is not so technical. Ayliffe's Pand. 581 2 Swift's Dig. = 309.

2. In the Scotch law, this is a proper and technical word, and = signifies the=20 secret and felonious abstraction of the property of another for sake of = lucre,=20 without his consent. Alison, Princ. Cr. Law of Scotl. 250.

THEFT-BOTE. The act of receiving a man's goods from the thief, = after=20 they had been stolen by him, with the intent that he shall escape=20 punishment.

2. This is an offence punishable at common law by fine and = imprisonment.=20 Hale's P. C. 130. Vide Compounding a felony.

THEOCRACY. A species of government which claims to be = immediately=20 directed by God.

2. La religion qui, dans l'antiquite, s'associa souvent au = despotisms, pour=20 regner. par son bras ou a son ombrage, a quelquefois tents de regner = seule.=20 Clest ce qu'elle appelait le regne de Dieu, la thiocratie. Matter, De=20 l'influence des Moeurs sur les lois, et de l'influence dos Lois sur les = moeurs,=20 189. Religion, which in former tinies, frequently associated itself with = despotism, to reign, by its power, or under its shadow, has sometimes = attempted=20 to reign alone, and this she has called the reign of God, theocracy.

THIEF, crimes. One who has been guilty of larceny or = theft.

THING ADJUDGED. That which has been decided by a final = judgment, by a=20 tribu-nal of competent jurisdiction, from which there can be no appeal, = either=20 because the appeal did not lie, or because the time fixed by law for the = appealing has elapsed, or because it has been confirmed on the appeal. = Vide res=20 judicata.

2. The Roman law agrees with ours, for it requires a final judgment = or=20 sentence before the decision acquires the force of the thing adjudged. = Dig. 42,=20 1; Code, 7, 52; Extravag. 2, 27.

THINGS. By this word is understood every object, except man, = which may=20 become an active subject of right. Code du Canton de Berne, art. 332. In = this=20 sense it is opposed, in the language of the law, to the word persons. = (q.=20 v.)

2. Things, by the common raw, are divided into, 1. Things real, which = are=20 such as are permanent, fixed and immovable, and which cannot be carried = from=20 place to place; they are are usually said to consist in lands, tenements = and=20 hereditaments. 2 Bl. Com. 16; Co. Litt. 4 a to 6 b. 2. Things personal, = include=20 all sorts of things movable which attend a man's person wherever he = goes. Things=20 personal include not only things movable, but also something more, the = whole of=20 which is generally comprehended under the name of chattels. Chattels are = distinguished into two kinds, namely, chattels real and chattels = personal. See=20 Chattel.

3. It is proper to remark that sometimes it depends upon the = destination of=20 certain objects, whether they are to be considered personal or real = property.=20 See Dalloz, Dict. choses, art 1, =A72. Destination; Fixtures; Mill.

4. Formerly, in England, a very low and contemptuous opinion was = entertained=20 of personal property, which was regarded as only a transient commodity. = But of=20 late years different ideas have been entertained of it; and the courts, = both in=20 that country, and in this, now regard a man's personal property in a = light,=20 nearly, if not quite equal to his realty; and have adopted a more = enlarged and=20 still Iess technical mode of considering the one than the other, = frequently=20 drawn from the rules which they found already established by the Roman = law,=20 wherever those rules appear to be well-grounded and apposite to the case = in=20 question, but principally from reason and convenience, adapted to the=20 circumstances of the times. 2 Bl. Com. 385.

5. By the Roman or civil law, things are either inpatrimonio, capable = of=20 being possessed by single persons exclusive of others; or extra = patrimoiium,=20 incapable of being so possessed.

9. Things in patrimonio are divided into corporeal and incorporeal, = and the=20 corporeal again into movable and immovable.

7. Corporeal things are those which are visible and tangible, as = lands,=20 houses, horses, jewels, and the like; incorporeal are not the object of=20 sensation, but are the creatures of the mind, being rights issuing out = of a=20 thing corporeal, or concerning or exercisable within the same; as, an=20 obligation, a hypothecation, a servitude, and, in general, that which = consists=20 only in a certain right. Domat, Lois Civ. Liv. Prel. t. 31 s. 2, =A73; = Poth.=20 Traite dos Choses, in princ.

8. Corporeal things are either movable or immovable. The movable are = those=20 which have been separated from the earth, as felled trees, or gathered = fruits,=20 or stones dug out from quarries or those which are naturally separated, = as=20 an-imals. Immovable things are those parts of the surface of the earth, = in=20 what-ever manner thev way be distinguished, either as building;, woods, = meadows,=20 fields,or otherwise, and to whomsoever they may belong. Under the name = of=20 immovables is included everything which adheres to the surface of the = earth,=20 either by its nature, as trees; or which has been erected by the hands = of man,=20 as houses and other buildings, although, by being separated, such things = way=20 become movables. Domat, Lois Civ. Liv. Prel. tit. 3, s. 1, =A75 and 6. = See=20 Movables; Immovables.

9. Things extra patrimonium are, 1. Common. 2. Public. 3. Res = universitatis.=20 4. Res nullius.

10. - 1. Things common are, the heavens, light, air, and the sea, = which=20 cannot be appropriated by any man or set of men, so as to deprive others = from=20 the. use of them. Domat, Lois Civ. Liv. Prel. tit. 3, s. 1, =A71; =A71 = lnst. de rer.=20 div.; L. 2, =A71, ff. de rer. div.; Ayliffe, Pand. B. 2, t. 1, in = med.

11. - 2. Things public, res publicae, the property of which was in = the state,=20 and their use common to all the members of it, as navigable rivers, = ways,=20 bridges, harbors, banks, and the right of fishing.

12. - 3. Res universitatis, or things belonging to cities or bodies = politic.=20 Such things belong to the corporation or body politic in respect of the = property=20 of them; but as to their use, they appertain to those persons that are = of the=20 corporation or body politic: such may be theatres, market houses, and = the like.=20 They differ from things public, inasmuch as the latter belong to a = nation. The=20 lands or other revenue belonging to a corporation, do not fall under = this class,=20 but, are juris privati.

13. - 4. Res nullius, or things which are not the property of any man = or=20 number of men, are principally those of divine right; they are of three = sorts:=20 things sacred, things religious, and things sanct. Things sacred were = those=20 which were duly and publicly consecrated by the priests, as churches, = their=20 ornaments, &c. Things religious were those places which became so by = burying=20 in them a dead body, even though no consecration of these spots by a = priest had=20 taken place. Things sanct were those which by certain reverential awe = arising=20 from their nature, something augmented by religious ceremonies, were = guarded and=20 defended from the injuries of men; such were the gates and walls of a = city,=20 offences against which were capitally punished. 1 Bro. Civ. Law, B. 2, = c. 1, p.=20 172.

See, in general, Domat, Lois Civ. Liv. Prel. tit. 3; 1 Bro. Civ. Law, = B. 2,=20 c. 1 Poth. Traite des Choses; Ersk. Pr. Law Scot. B. 2, tit. 1; = Toullier, Droit=20 Francais, Liv. 2, tit. 1 Ayliffe, Pand. B. 3, t. 1; Inst. 2, 1, 2 Dig. = 1, 8=20 Bouv. Inst. Index, h. t.

THIRD PARTIES. This term includes all persons who are not = parties to=20 the contract, agrement or instrument of writing, by which their interest = in the=20 thing conveyed is sought to be affected. 1 N. S. 384. See also 2 L. R. = 425 6 M.=20 R. 528.

2. But it is difficult to give a very definite idea of third persons, = for=20 sometimes those who are not parties to the contract, but who represent = the=20 rights of the original parties, as executors, are not to be considered = third=20 person. See Duverg. tome 16, n. 34, 35, 36, et idem, tome 17, n. 190; 2 = Bouv.=20 Inst. n. 1335, et seq.

THIRLAGE, Scotch law. The name of servitude by which lands are = astricted or thirled to a particular mill, and the possessors bound to = grind=20 their grain there, for the payment of certain multures and sequels as = the agreed=20 price of grinding. Ersk. Prin. B. 2, t. 9, n. 18.

THOROUGHFARE. A street or way so open that one can go through = and get=20 out of it without returning. It differs from a cul de sac, (q. v.) which = is open=20 only at one end.

2. Whether a street which is not a thoroughfare is a highway, seems = not fully=20 settled. See 1 Campb. 260; 5 Taunt. 137; 11 East, 376, n.; Hawk. P. C. = B. 1, c.=20 76, s. 1; 5 Barn. & Ald. 456. See Dedication.

THOUGHT. The operation of the mind. No one can be punished for = his=20 mere thoughts however wicked they may be. Human laws cannot reach them, = first,=20 because they are unknown; and, secondly, unless made manifest by some = action,=20 they are not injurious to any one; but when they manifest themselves, = then the=20 act, which is the consequence, may be punished. Dig. 50 16, 225.

THREAD. A figurative expression used to signify the central = line of a=20 stream or water course. Harg. Tracts, 5; 4 Mason's Rep. 397; Holt's R. = 490. Vide=20 Filum aguae; Island; Water course; River.

THREAT, crim. law. A menace of destruction or injury to the = lives or=20 property of those against whom it is made.

2. Sending threatening letters to persons for the purpose of = extorting money,=20 is said to, be a misdemeanor at common law. Hawk. B. 1, c. 53, s. 1; 2 = Russ. on=20 Cr. 575; 2 Chit. Cr. L. 841; 4 Bl. Com. l26. To be indictable, the = threat must=20 be of a nature calculated to overcome a firm and prudent man. The party = who=20 makes a threat may be held to bail for his good behaviour. Vide Com. = Dig.=20 Battery, D; 13 Vin. Ab. 357.

THREAT, evidence. Menace.

2. When a confession is obtained from a person accused of crime, in=20 consequence of a threat, evidence of such confession cannot be received, = because, being obtained by the torture of fear, it comes in so = questionable a=20 shape, that no credit ought to be given to it; 1 Leach, 263; this is the = general=20 principle, but what amounts to a threat is not so easily defined. It is = proper=20 to observe, however, that the threat must be made by a person having = authority=20 over the prisoner, or by another in the presence of such authorized = person, and=20 not dissented from by the latter. 8 C. & P. 733. Vide Confession, = and the=20 cases there cited.

THROAT, med. jur. The anterior part of the neck. Dungl. plea. = Diet. h.=20 t.; Coop. Dict. h. t.; 2 Good's Study of Med. 302; 1 Chit. Med. Jur. 97, = n.

2. The word throat, in an indictment which charged the defendant with = murder,=20 by "cutting the throat of the deceased," does not mean, and is not to be = confined to that part of the neck which is scientifically called the = throat, but=20 signifies that which is commonly called the throat. 6 Carr. & Payne, = 401; S.=20 C. 25 Engl. Com. Law Rep. 458.

TICK, contracts. Credit; as, if a servant usually buy for the = master=20 upon tick, and the servant buy something without the master's order, = yet, if the=20 master were trusted by the trader, he is liable. 1 Show. 95; 3 Keb. 625; = 10 Mod.=20 111; 3 Esp. R. 214; 4 Esp. R. 174.

TIDE. The ebb and flow of the sea.

2. Arms of the sea, bays, creeks, coves, or rivers, where the tide = ebbs and=20 flows, are public, and all persons may use the same for the purposes of=20 navi-gation and for fishing, unless restrained by law. To give these = rights at=20 common law, the tide must ebb and flow: the flowing of the waters of a = lake into=20 a river, and their reflowing, being not the flux and reflux of the = tides, but=20 mere occasional and rare instances of a swell in the lake, and a setting = up of=20 the waters into the river, and the subsiding of such swells, is not to = be=20 considered an ebb and flow of the tide, so as to constitute a river = technically=20 navigable. 20 John. R. 98. See 17 John. R. 195; 2 Conn. R. 481.

3. In Pennsylvania, the common law principle, that the flux and = reflux of the=20 tide ascertain the character of the river, has been rejected. 2 Binn. R. = 475.=20 Vide Arm of the sea; Navigable river; Sea shore.

TIE. When two persons receive an equal number of votes at an = election,=20 there is said to be a tie.

2. In that case neither is elected. When the votes are given on any = question=20 to be decided by a deliberative assembly, and there is a tie, the = question is=20 lost. Vide Majority.

TIEL. An old manner of spelling tel. Such as nul tiel record, = no such=20 record.

TIEMPO INHABIL. A Spanish phrase used in Louisiana, to express = a time=20 when a man is not able to pay his debts.

2. A man cannot dispose of his property, at such a time, to the = prejudice of=20 his creditors. 4 N. S. 292; 3 Mart. Lo. R. 270; 10 Mart. Lo. R. 704.

TIERCE, measures. A liquid measure containing the third part = of a=20 pipe, or forty-two gallons.

TIGNI IMMITTENDI, civil law. The name of a servitude; it is = the right=20 of inserting a beam or timber from the wall of one house into that of a=20 neighboring house, in order that it may rest on the latter, and that the = wall of=20 the latter may bear this weight. Dig. 8, 2, 36; Id. 8, 5, 14.

TIMBER TREES. According to Blackstone, oak, ash, elm, and such = other=20 trees as are commonly used for building, are considered timber. 2 Comm. = 28. But=20 it has been contended, arguendo, that to make it timber, the trees must = be=20 felled and severed from the stock. 6 Mod. 23 Stark on Slander, 79. Vide = 12=20 Johns. R. 239; 2 Suppl. to Ves. jr.

TIME, contracts, evidence, practice. The measure of duration., = It is=20 divided into years, months. days, (q. v.) hours, minutes, and seconds. = It is=20 also divided into day and night. (q. v.)

2. Time is frequently of the essence of contracts and crimes, and = sometimes=20 it is altogether immaterial.

3. Lapse of time alone is often presumptive evidence of facts which = are=20 otherwise unknown; an uninterrupted enjoyment of certain rights for = twenty or=20 twenty-one years, is evidence that the party enjoying them is legally = entitled=20 to them; after such a length of time, the law presumes payment of a bond = or=20 other specialty. 10 S. & R. 63, 383; 3 S. & R. 493; 6 Munf. R. = 532; 2=20 Cranch, R. 180; 7 Wheat. R. 535; 2 W. C. C R. 323; 4 John. R. 202; 7 = John' R.=20 556; 5 Conn. 1; 3 Day 289; 1 McCord 145; 1 Bay, 482; 7 Wend. 94; 5 Verm. = 236.

4. In the computation of time, it is laid down generally, that where = the=20 computation is to be made from an act done, the day when such act was = done is=20 included. Dougl. 463. But it will be excluded whenever such exclusion, = will=20 prevent a forfeiture. 4 Greenl. 298. Sed vide 15 Ves. 248; 1 Ball & = B. 196.=20 In general, one day is taken inclusively and the other exclusively. 2 = Browne;=20 Rep. 18. Vide Chitt. Bl. 140 n. 2; 2 Evans , Poth. 50; 13 Vin. Abr. 52, = 499; 15=20 Vin. Ab. 554; 20 Vin. Ab. 266; Com. Dig. Temps; 1 Rop. Legacy, 518; 2 = Suppl. to=20 Ves. jr. 229; Graham's Pract. 185; 1 Fonbl. Equity, 430; Wright, R. 580; = 7 John.=20 R. 476; 1 Bailey, R. 89; Coxe, Rep. 363; 1 Marsh. Keny. Rep. 321; 3 = Marsh. Keny.=20 Rep. 448; 3 Bibb, R. 330; 6 Munf. R. 394; vide Computation.

TIME, pleading. The avertment of time is generally necessary = in=20 pleading; the rules are different, in different actions.

2. - 1. Impersonal actions, the pleadings must allege the time; that = is, the=20 day, month and year when each traversable fact occurred; and when there = is=20 occasion to mention a continuous act, the period of its duration ought = to be=20 shown. The necessity of laying a time extends to traversable facts only; = time is=20 generally considered immaterial, ana any time may be assigned to a given = fact.=20 This option, however, is subject to certain restrictions. 1st. Time = should be=20 laid under a videlicit, or the party pleading it will be required to, = prove it=20 strictly. 2d. The time laid should not be intrinsically impossible, or=20 inconsistent with the fact to which it relates. 3d. There are some = instances in=20 which time forms a material point in the merits of the case; and, in = these=20 instances, if a traverse be taken, the time laid is of the substance of = the=20 issue, and must be strictly proved. With respect to all facts of this=20 description; they must be truly stated, at the peril of a failure for = variance;=20 Cowp. 671: and here a videlicit will give no help. Id. 6 T. R 463; 5 = Taunt. 2; 4=20 Serg. & Rawle, 576; 7 Serg. & Rawle, 405. Where the time needs = not to be=20 truly stated, (as is generally the case,) it is subject to a rule of the = same=20 nature with one that applies to venues in transitory matters, namely, = that the=20 plea and subsequent pleadings should follow the day alleged in the writ = or=20 declaration; and if in these cases no time at all be laid, the omission = is aided=20 after verdict or judgment by confession or default, by operation of the = statute=20 of jeofails. But where, in the plea or subsequent pleadings, the time = happens to=20 be material, it must be alleged, and there the pleader may be allowed to = depart=20 from the day in the writ and declaration.

3. - 2. In real or mixed actions, there is no necessity for alleging = any=20 particular day in the declaration. 3 Bl. Com. App. No. 1, =A76; Lawes' = Pl. App.=20 212; 3 Chit. Pl. 620-635; Cro. Jac. 311; Yelv. 182 a, note; 2 Chitt. Pl. = 396, n.=20 r; Gould, Pl. c. 3, =A799, 100; Steph. Pl. 314; Com. Dig. Pleader, C = 19.

4. - 3. In criminal pleadings, it is requisite, generally, to show = both the=20 day and the year on which the offence was committed; but the indictment = will be=20 good, if the day and year can be collected from the whole statement, = though they=20 be not expressly averred. Com. Dig. Indictm. G 2; 5 Serg. & Rawle, = 315.=20 Although it be necessary that a day certain should be laid in the = indictment,=20 the prosecutor may give evidence, of an offence committed, on any other = day,=20 previous to the finding of the indictment. 5 Serg. & Rawle, 316; = Arch. Cr.=20 Pl. 95; 1 Phil Evid. 203; 9 East, Rep. 157. This rule, however, does not = authorize the laying of a day subsequent to the trial. Addis. R. 36. See = generally Bouv. Inst. Index, h. t.

TIPPLING HOUSE. A place where spirituous liquors are sold and = drunk in=20 vio-lation of law. Sometimes the mere selling is considered as evidence = of=20 keeping a tippling house.

TIPSTAFF. An officer appointed by the marshal of the court of = king's=20 bench, to attend upon the judges with a kind of a rod or staff tipped = with=20 silver.

2. In the United States, the courts sometimes appoint an officer who = is known=20 by this name, whose duty it is to wait on the court and serve its = process.

TITHES, Eng. law. A right to the tenth part of the produce of, = lands,=20 the stocks upon lands, and the personal industry of the inhabitants. = These=20 tithes are raised for the support of the clergy.

2. Fortunately, in the United States, the clergy can be supported by = the zeal=20 of the people for religion, and there are, no tithes. Vide Cruise, Dig. = tit. 22;=20 Ayliffe's Parerg. 504.

TITHING, Eng. law. Formerly a district containing ten men with = their=20 fam-ilies. In each tithing there was a tithing man whose duty it was to = keep the=20 peace, as a constable now is bound to do. St. Armand, in his Historical = Essay on=20 the Legislative Power of England, p. 70, expresses, an opinion that the = tithing=20 was composed not of ten common families, but of ten families of lords of = a=20 manor.

TITLE estates. A title is defined by Lord Coke to be the means = whereby=20 the owner of lands hath the just possession of his property. Co. Lit. = 345; 2 Bl.=20 Com. 195. Vide 1 Ohio Rep. 349. This is the definition of title to lands = only.

2. There are several stages or degrees requisite to form a complete = title to=20 lands and tenements. 1st. The lowest and most imperfect degree of title = is the=20 mere possession, or actual occupation of the estate, without any = apparent right=20 to hold or continue such possession; this happens when one man disseises = another. 2 Bl. Com. 195. 2dly. The next step to a good and perfect title = is the=20 right of possession, which may reside in one man, while the actual = possession is=20 not in himself, but in another. This right of possession is of two = sorts; an=20 apparent right of possession, which may be defeated by proving a better; = and an=20 actual right of possession, which will stand the test against all = opponents.=20 Idem. 196. 3dly. The mere right of property, the jus proprietatis = without either=20 possession or the right of possession. Id. 197.

3. A title is either good, marketable, doubtful, or bad.

4. A good title is that which entitles a man by right to a property = or=20 estate, and to the lawful possession of the same.

5. A marketable title is one which a court of equity considers to be = so clear=20 that it will enforce its acceptance by a purchaser. The ordinary = acceptation of=20 the term marketable title, would convey but a very imperfect notion of = its legal=20 and technical import.

6. To common apprehension, unfettered by the technical and = conventional=20 distinction of lawyers, all titles being either good or bad, the former = would be=20 considered marketable, the latter non-marketable. But this is not the = way they=20 are regarded in courts of equity, the distinction taken there being not = between=20 a title which is absolutely good or absolutely bad, but between a title, = which=20 the court considers to be so clear that it will enforce its acceptance = by a=20 purchaser, and one which the court will not go so far as to declare a = bad title,=20 but only that it is subject to so much doubt that a purchaser ought not = to be=20 compelled to accept it. 1 Jac. & Walk. R. 568. In short, whatever = may be the=20 private opinion of the court, as to the goodness of the title yet if = there be a=20 reasonable doubt either as to a matter of law or fact involved in it, a=20 purchaser will not be compelled to complete his purchase; and such a = title,=20 though it may be perfectly secure and unimpeachable as a holding title = is said,=20 in the current language of the day, to be unmarketable. Atkins on = Tit.2.

7. The doctrine of marketable titles is purely equitable and of = modern=20 ori-gin. Id. 26. At law every title not bad is marketable. 6 Taunt. R. = 263; 5=20 Taunt. R. 625; S. C. 1 Marsh., R. 258. See Dalzell v. Crawford, 2 Penn. = Law=20 Journ. 17.

8. A doubtful title is one which the court does not consider to be so = clear=20 that it will enforce its acceptance by a purchaser, nor so defective as = to=20 declare it a bad title, but only subject to so much doubt that a = purchaser ought=20 not to be compelled to accept it. 1 Jac. & Walk. R. 568; 9 Cowen, R. = 344;=20 vide Title, Marketable.

9. At common law, doubtful, titles are unknown; there every title = must be=20 either good or bad. Atkins on Tit. 17. See Dalzell v. Crawford, 2 Penn. = Law=20 Journ. 17.

10. A bad title is one which conveys no property to a purchaser of an = estate.

11. Title to real estate is acquired by two methods, namely, by = descent and=20 by purchase. (See these words.)

12. Title to personal property may accrue in three different ways. By = original acquisition. 2. By transfer, by act of law. 3. By transfer, by, = act of=20 the parties.

13. - =A71. Title by original acquisition is acquired, 1st. By = occupancy. This=20 mode of acquiring title has become almost extinct in civilized = governments, and=20 it is permitted to exist only in those few special cases, in which it = may be=20 consistent with the public good. First. Goods taken by capture in war = were, by=20 the common law, adjudged to belong to the captor, but now goods taken = from=20 enemies in time of war, vest primarily in the sovereign, and they belong = to the=20 individual captors only to the extent and under such regulations, as = positive=20 laws may prescribe. Finch's Law, 28, 178 Bro. tit. Property, pl. 18, 38; = 1=20 Wilson, 211; 2 Kent, Com. 290, 95. Secondly. Another instance of = acquisition by=20 occupancy, which still exists under certain limitations, is that of = goods=20 casually lost by the owner, and unreclaimed, or designedly abandoned by = him; and=20 in both these cases they belong to the fortunate finder. 1 Bl. Com. 296. = See=20 Derilict.

14. - 2d. Title by original acquisition is acquired by accession. See = Accession.

15. - 3d. It is acquired by intellectual labor. It consists of = literary=20 pro-perty as the construction of maps and charts, the writing of books = and=20 papers. The benefits arising from such labor are secured to the owner. = 1. By=20 patent rights for inventions. See Patents. 2. By copyrights. See = Copyrights.

16. - =A72. The title to personal property is acquired and lost by = transfer, by=20 act of law, in various ways. 1. By forfeiture. 2. By succession. 3. By = marriage.=20 4. By judgment. 5. By insolvency. 6. By intestacy.

17. - =A73. Title is also acquired and lost by transfer by the act of = the=20 party. 1. By gift. 2. By contract or sale.

18. In general, possession constitutes the criterion of title of = personal=20 property, because no other means exist by which a knowledge of the fact = to whom=20 it belongs can be attained. A seller of a chattel is not, therefore, = required to=20 show the origin of his title, nor, in general, is a purchaser, with-out = notice=20 of the claim of the owner, compellable to make restitution; but, it = seems, that=20 a purchaser from a tenant for life of personal chattels, will not be = secure=20 against the claims of those entitled in remainder. Cowp. 432; 1 Bro. C. = C. 274;=20 2 T. R. 376; 3 Atk. 44; 3 V. & B. 16.

19. To the rule that possession is the criterion of title of property = may be=20 mentioned the case of ships, the title of which can be ascertained by = the=20 register. 15 Ves. 60; 17 Ves. 251; 8 Price, R. 256, 277.

20. To convey a title the seller must himself have a title to the = property=20 which is the subject of the transfer. But to this general rule there are = exceptions. 1. The lawful coin of the United States will pass the = property along=20 with the possession. 2. A negotiable instrument endorsed in blank is=20 transferable by any person holding it, so as by its delivery to give a = good=20 title "to any person honestly acquiring it." 3 B. & C. 47; 3 Burr. = 1516; 5=20 T. R. 683; 7 Bing. 284; 7 Taunt. 265, 278; 13 East, 509; Bouv. Inst. = Index, h.=20 t.

TITLE, legislation That part of an act of the legislature by = which it=20 is known, and distinguished from other acts the name of the act.

2. A practice has prevailed of late years to crowd into the same act = a mass=20 of heterogeneous matter, so that it is almost impossible to describe, or = even to=20 allude to it in the title of the act. This practice has rendered the = title of=20 little importance, yet, in some cases, it is material in the = construction of an=20 act. 7 East, R. 132, 134; 2 Cranch, 386. See Lord Raym. 77; Hard. 324; = Barr. on=20 the Stat. 499, n.

TITLE, persons. Titles are distinctions by which a person is=20 known.

3. The constitution of the United States forbids the tyrant by the = United=20 States, or any state of any title of nobility. (q. v.) Titles are = bestowed by=20 courtesy on certain officers; the president of the United States = sometimes=20 re-ceives the title of excellency; judges and members of congress that = of=20 honor-able; and members of the bar and justices of the peace are called=20 esquires. Cooper's, Justinian, 416'; Brackenridge's Law Miscell. Index, = h.=20 t.

3. Titles are assumed by foreign princes, and, among their subjects = they may=20 exact these marks of honor, but in their intercourse with foreign = nations they=20 are not entitled to them as a matter of right. Wheat. Intern. Law, pt. = 2, c. 3,=20 =A76.

TITLE, Iiterature. The particular division of a subject, as a = law, a=20 book, and the like; for example, Digest, book 1, title 2; for the law = relating=20 to bills of exchange, see Bacon's Abridgment, title Merchant.

TITLE, rights. The name of a newwpaper a book, and the = like.

3. The owner of a newspaper, having particular title, has a right to = such=20 title, an an injunction will lie to prevent its use un lawfully by = another. 8=20 Paige, 75. See Pardess. n. 170.

TITLE, pleading, rights. The right of action which the = plaintiff has;=20 the declaration must show the plaintiff's title, and if such title be = not shown=20 in that instrument, the defect cannot be cured by any of the future = pleadings.=20 Bac. Ab. Pleas, &c. B 1.

TITLE DEEDS. Those deeds which are evidences of the title of = the owner=20 of an estate.

2. The person who is entitled to the inheritance has a right to the=20 possession of the title deeds. 1 arr. & Marsh. 653.

TITLE OF A DECLARATION, pleading. At the top of every = declaration the=20 name of the court is usually stated, with the term of which the = declaration is=20 filed, and in the margin the venue, namely, the city or county where the = cause=20 is intended to be tried is set down. The first two of these compose what = is=20 called the title of the declaration. 1 Tidd's Pr. 866.

TO WIT. That is to say; namely; scilicet; (q. v.) videlicet. = (q.=20 v.)

TOFT. A place or piece of ground on which, a house formerly = stood,=20 which has been destroyed by accident or decay; it also signifies a = messuage.

TOGATI. Rom. civ, law. Under the empire, when the toga had = ceased to=20 be the usual costume of the Romans, advocates were nevertheless obliged = to wear=20 it whenever they pleaded a cause. Hence they were called togati. This=20 denomination received an official or legal sense in the imperial = constitutions=20 of the fifth and sixth centuries, and the words togati, consortium = (corpus,=20 ordo, collegium,) togatorum, frequently occur in those acts.

TOKEN, contracts, crimes. A document or sign of the existence = of a=20 fact.

2. Tokens are either public or general, or privy tokens. They are = true or=20 false. When a token is false and indicates a general intent to defraud, = and it=20 is used for that purpose, it will render the offender guilty of the = crime of=20 cheating; 12 John. 292; but if it is a mere privy token, as = counterfeiting a=20 letter in another man's name, in order to cheat but. one individual, it = would=20 not be indictable. 9 Wend. Rep. 182; 1 Dall. R. 47; 2 Rep. Const. Cr. = 139; 2=20 Virg. Cas. 65; 4 Hawks, R. 348; 6 Mass. IR. 72; 1 Virg. Cas. 150; 12 = John. 293;=20 2 Dev. 199; 1 Rich. R. 244.

TOKEN, commercial law. In England, this name is given to = pieces of=20 metal, made in the shape of money, passing among private persons by = consent at a=20 certain value. 2 Adolpb. P. S. 175; 2 Chit. Com. Law, 182.

TOLERAT10N. In some. countries, where religion is established = by 1aw,=20 cer-tain sects who do not agree with the established religion are = nevertheless=20 permitted to exist, and this permission is called toleration. Those are=20 per-mitted and allowed to remain rather as a matter of favor than a = matter of=20 right.

2. In the United States, there is no such a thing as toleration, all = men have=20 an equal right to worship God according to the dictates of their own=20 consciences. See Christianity; Conscience; Religious test.

TOLL, contracts. A sum of money for the use of something, = generally=20 applied to the consideration which is paid for the use of a road, = bridge, or the=20 like, of a public nature. Toll is also the compensation paid to a miller = for=20 grinding another person's grain.

2. The rate of taking toll for grinding is regulated by statute in = most of=20 the states. See 2 Hill. Ab. oh. 17; 6 Ad. & Ell. N. S. 31,; 6 Q. B. = 3 1.

TO TOLL, estates, rights. To bar, defeat, or take away; as to = toll an=20 entry into lands, is to deny. or take away the right of entry.

TOLLS. In a general sense, tolls signify any manner of = customs,=20 subsidy, prestation, imposition, or sum of money demanded for exporting = or=20 importing of any wares or merchandise, to be taken of the buyer. 2 Inst. = 58.

TON. Twenty hundred weight, each hundred weight being one = hundred and=20 twelve pounds avoirdupois. See act of congress of Aug. 30, 1842, c. 270, = s.=20 20.

TONNAGE, mar. law. The capacity of a ship or vessel.

2. The act of congress of March 2, 1799, s. 64, 1 Story's L. U. S. = 630,=20 directs that to ascertain the tonnage of any ship or vessel, the = surveyor,=20 &c. shall, if the said ship or vessel be double decked, take the = length=20 thereof from the forepart of the main stem, to the afterpart of the = stern post,=20 above the upper deck, the breadth thereof, at the broadest part above = the=20 mainwales, half of which breadth shall be accounted the depth of such = vessel,=20 and then deduct from the length three-fifths of the breadth, multiply = the=20 remainder by the breadth and the product of the depth, and shall divide = this=20 last product by ninety-five, the quotients whereof shall be deemed the = true=20 contents or tonnage of such ship or vessel. And if such ship or vessel = shall be=20 single decked, the said, surveyor shall take the length and breadth as = above=20 directed, in respect to a double deck ship or vessel, and shall deduct = from the=20 length three-fifths of the breadth, and taking the depth from the = under-side of=20 the deck plank to the ceiling of the hold, shall multiply and divide as=20 aforesaid, and the quotient shall be deemed the tonnage of such ship or=20 vessel.

3. The duties paid on the tonnage of a ship or vessel are also called = tonnage.

4. These duties are altogether abolished in relation. to American = vessels by=20 the act of May 31, 1830, s. 1, 4 Story's Laws U. S. 2216. And by the = second=20 section of the same act, all tonnage duties on foreign vessels are = abolished,=20 provided the president of the, United States shall be satisfied that the = discriminating or countervailing duties of such foreign nation, so far = as they=20 operate to the disadvantage. of the United States, have been = abolished.

5. The constitution of the United States provides, art. 1, s. 10, n. = 2, that=20 no state shall, without the consent of congress, lay any duty on = tonnage.

TONTINE, French law. The name of a partnership composed of = creditors=20 or, re-cipients of perpetual or life-rents or annuities, formed on the = condition=20 that the rents of those who may die, shall accrue to the survivors, = either in=20 whole or in part.

2. This kind of partnership took its name from Tonti, an Italian, who = first=20 conceived the idea and put it in practice. Merl. Repert. h. t. Dall. = Dict. h.=20 t.; 5 Watts, 851.

TOOK AND CARRIED AWAY, pleadings. In an indictment for simple = larceny,=20 the words "feloniously took and carried away" the goods stolen, are=20 indispensable. Bac. Abr. Indictment, GI; Com. Dig. Indictment, G 6; Cro. = C. C.=20 37; 1 Chit. Cr. Law, 0244. Vide Taking.

TOOLS. The Massachusetts act of assembly of 1805, c. 100, = which=20 provided that "the tools of any debtor necessary for his trade and = occupation,=20 should be exempted from execution," was held to designate those = implements which=20 are commonly used by the hand of one man, in some manual labor necessary = for his=20 subsistence. The apparatus of a printing office, such as types, presses, = &c.=20 are not therefore included under the term tools. 13 Mass. Rep. 82; 10 = Pick. 423;=20 3 Verm. 133; and see 2 Pick. 80; 5 Mass. 313.

2. By the forty-sixth section of the act of March 2, 1789, 1 Story's = Laws U.=20 S. 612, the tools or implements of a mechanical trade of persons who = arrive in=20 the United States, are free and exempted from duty.

TORT. An injury; a wrong; (q. v.) hence the expression an = executor de=20 son tort, of his own wrong. Co. Lit. 158.

2. Torts may be committed with force, as trespasses, which may be an = injury=20 to the person, such as assault, battery, imprisonment; to the property = in=20 possession; or they may be committed without force. Torts of this nature = are to=20 the absolute or relative rights of persons, or to personal property in=20 possession or reversion, or to real property, corporeal or encorporeal, = in=20 possession or reversion: these injuries may be either by nonfeasance,=20 malfeasance, or misfeasance. 1 Chit. Pl. 133-4. Vide 1 Fonb. Eq. 4; = Bouv. Inst.=20 Index, h. t.; and the article Injury.

TORTFEASOR. A wrong-doer, one who does wrong; one who commits = a=20 trespass or is guilty of a tort.

TORTURE, punishments. A punishment inflicted in some countries = on=20 supposed criminals to induce them to confess their crimes, and to reveal = their=20 associates.

2. This absurd and tyrannical practice never was in use in the United = States;=20 for no man is bound to accuse himself. An attempt to torture a person = accused of=20 crime, in order to extort a confession, is an indictable offence. 2 = Tyler, 380.=20 Vide Question.

TOTAL. Complete; containing the whole; as the total amount of = an=20 account is all the items of such account added together; total = incapacity, is an=20 absolute and complete incapacity to do a thing. A married woman is = totally=20 incapable to make a contract, because, although having intelligence, she = has not=20 legal capacity and an idiot is totally incapable to enter into a = contract,=20 because he has no will.

TOTAL LOSS. A technical expression, importing an utter loss of = the=20 property for the voyage, and no more. 1 T. R. 187. Vide Loss, and 2 = Phil. Ev.=20 54, n.; 16 East, R. 214 Park's Ins. Index, h. t.; Marsh. Ins. 486.

TOTALITY. The whole sum or quantity.

2. In making a tender, it is requisite that the totality of the sum = due=20 should be offered, together with the interest and costs. Vide = Tender.

TOTIDEM VERBIS. In so many words.

TOTIES QUOTIES. As often as the thing shall happen.

TOUCH AND STAY. These words are frequently introduced in = policies of=20 insurance, giving the party insured the right to stop and stay at = certain=20 designated points in the course of the voyage. A vessel which has the = power to=20 touch and stay at a place in the course of the voyage, must confine = herself=20 strictly to the terms of the liberty so given; for any attempt to trade = at such=20 a port during such a stay, as by shipping or landing goods, will amount = to a=20 species of deviation which will discharge the underwriters, unless the = ship have=20 also liberty to trade, as well as to touch and stay at such a place. 1 = Marsh.=20 Ins. 275; 1 Esp. R. 610; 5 Esp. R. 96.

TOUJOURS ET UNCORE PRIST. Always, and still ready. This is the = name of=20 a plea of tender, as where a man is indebted to another, and he tenders = the=20 amount due, and after wards the creditor brings a suit, the defendant = may plead=20 the tender, and add that he has always been and is still ready to pay = what he=20 owes, which may be done by the formula toujours et uncore prist. He must = then=20 pay the money into court, and if the issue be found for him, the = defendant will=20 be exonerated from costs, and the plaintiff made justly liable for them. = 3 Bouv.=20 Inst. n. 2923 Vide Tout temps prist.

TOUR D'ECHELLE, French law. Tour d'echelle is a right which = the owner=20 of an estate has of placing ladders on his neighbor's property to = facilitate the=20 reparation of a party wall, or of buildings which are supported by that = wall. It=20 is a species of servitude. Lois des Bat. part 1, c. 3, sect. 2, art. 9, = =A71.

2. In another sense by this term, or echellage, is understood the = space of=20 ground left unoccupied around a building for the purpose of enabling the = owner=20 to repair it with convenience; this is not a servitude, but an actual = corporeal=20 property. Td. part 1, c. 3, sect. 2, art. 9, =A72.

TOUT TEMPS PRIST, pleading. These old French words signify = always=20 ready. The name of a plea to an action where the defendant alleges that = he has=20 always been ready to perform what is demanded of him; and he adds that = he is=20 still ready, uncore prist. (q. v.) 3 Bl. Com. 303; 20 Vin. Ab. 306; Com. = Dig.=20 Pleader, 2 Y 5.

TOWAGE, contracts. That which is given for towing ships in = rivers.=20 Guidon de la Mer, ch. 16; Poth. Des Avaries, n. 147; 2 Chit. Com. Law, = 16.

TOWN. This word is used differently in different parts of the = United=20 States. In Pennsylvania and some other of the middle states, it = signifies a=20 village or a city. In some of the northeastern states it denotes a = subdivision=20 of a county, called in other places a township.

TRADE. In its most extensive signification this word includes = all=20 sorts of dealings by way of Bale or exchange. In a more limited sense it = signifies the dealings in a particular business, as the India trade; by = trade is=20 also understood the business of a particular mechanic, hence boys are = said to be=20 put apprentices to learn a trade, as the trade of a carpenter, = shoemaker, and=20 the like. Bac. Ab. Master and Servant, D 1. Trade differs from art. (q. = v.)

2. It is the policy of the law to encourage trade, and therefore all=20 contracts which restrain the exercise of a man's talents in trade are=20 detrimental to the commonwealth, and therefore void; though he may bind = himself=20 not to exercise a trade in a particular place, for, in this last case, = as he may=20 pursue it in another place, the commonwealth has the benefit of it. 8 = Mass. 223;=20 9 Mass. 522. Vide Ware R. 257, 260 Com. Dig. h. t.; Vin. Ab. h. t.

TRADE MARKS. Signs, writings or tickets put upon manufactured = goods,=20 to distinguish them from others.

2. It seems at one time to have been thought that no man acquired a = right in=20 a particular mark or stamp. 2 Atk. 484. But it was afterwards considered = that=20 for one man to use as his own another's name or mark, would be a fraud = for which=20 an action would lie. 3 Dougl. 293; 3 B. & C. 541; 4 B. & Ad. = 410. 1=20 court of equity will restrain a party from, using the marks of another. = Eden,=20 Inj. 314l; 2 Keene, 213; 3 Mylne & C. 339.

3. The Monthly Law Magazine for December 1840, in an article copied = into the=20 American Jurist, vol. 25, p. 279, says, "The principle to be extracted, = after an=20 examination of these cases, appear to be the following: First, that the = first=20 producer or vendor of any article gains no right of property in that = article so=20 as to prevent others from manufacturing, producing or vending it.

4. Secondly, that although any other person may manufacture, produce, = and=20 sell any such article, yet he must not, in manner, either by using the = same or=20 similar marks, wrappers, labels, or devices, or colorable imitations = thereof, or=20 otherwise, hold out to the public that he is manufacturing, producing, = or=20 selling the identical article, prepared, manufactured, produced, or sold = by the=20 other; that is to say, he may not make use of the name or reputation of = the=20 other in order to sell his own preparation.

5. Thirdly, the right to use or restrain others from using any mark = or name=20 of a firm, is in the nature of goodwill, and therefore goes to the = surviving or=20 continuing partner in such firm, and the personal representative of a = deceased=20 partner has an interest in it.

6. Fourthly, that courts of equity in these cases only act as = auxiliary to=20 the legal right, and to prevent injury, and give a relief by account, = when=20 damages at law would be inadequate to the injury received; and they will = not=20 interfere by injunction in the first instance, unless a good legal title = is=20 shown, and even then they never preclude the parties from trying the = right at=20 law, if desired.

7. Fifthly, if the legal title be so doubtful as not to induce the = court to=20 grant the injunction, yet it will put the parties in a position to try = the legal=20 right at law, notwithstanding the suit.

8. Sixthly, that before the party is entitled to relief in equity, he = must=20 truly represent his title, and the mode in which he became possessed of = the=20 article for the vending of which he claims protection; it being a clear = rule of=20 courts of equity not to extend their protection to persons whose case is = not=20 founded on truth."

9. In France the law regulates the rights of merchants and manu = facturers as=20 to their trade marks with great minuteness. Dall. Dict. mot Propriete=20 Industrielle. See, generally, 4 Mann. & Gr. 357; B. & C. 541; 5 = D. &=20 R. 292; 2 Keen, 213; and Deceit.

TRADER. One who makes it his business to buy merchandise or = goods and=20 chattels, and to sell the same for the purpose of making a profit. The = quantum=20 of dealing is immaterial, when an intention to deal generally exists. 3 = Stark.=20 56; 2 C. & P. 135; 1 T. R. 572.

2. Questions as to who is a trader most frequently arise under the = bankrupt=20 laws, and the most difficult among them are those cases where the party = follows=20 a business which is not that of buying and selling principally, but in = which he=20 is occasionally engaged in purchases and sales.

3. To show who is a trader will be best illustrated by a few = examples: A=20 farmer who in addition to his usual business, occasionally buys a horse = not=20 calculated for his usual occupation, and sells him again to make a = profit, and=20 who in the course of two years had so bought and sold five or six = horses, two of=20 which had been sold after be bad bought them for the sake of a guinea = profit,=20 was held to be a trader. 1 T. R. 537, n.; 1 Price, 20. Another firmer = who bought=20 a large quantity of potatoes, not to be used on his farm, but merely to = sell=20 again for a profit, was also declared to be a trader. 1 Str. 513. See 7 = Taunt.=20 409; 2 N. R. 78; 11 East, 274. A butcher who kills only such cattle as = be has=20 reared himself is not a trader, but if he buy them and kill and sell = them with a=20 view to profit, he is a trader. 4 Burr. 21, 47. See 2 Rose, 38; 3 Camp. = 233=20 Cooke, B. L. 48, 73; 2 Wils. 169; 1 Atk. 128; Cowp.745. A brickmaker who = follows=20 the business, for the purpose of enjoying the profits of his real estate = merely,=20 is not a trader; but when he buys the earth by the load or otherwise, = and=20 manufactures it into bricks, and sells them with a view to profit, he is = a=20 trader. Cook, B. L. 52, 63; 7 East, 442; 3 C. & P. 500; Mood. & = M. 263 2=20 Rose, 422; 2 Glyn & J. 183; 1 Bro. C. C. 173. For further examples, = the=20 reader is referred to 4 M. & R. 486; 9 B. & C. 577; 1 T. R. 34; = 1 Rose,=20 316; 2 Taunt. 178; 2 Marsh. 236; 3 M. & Scott. 761; 10 Bing. 292 = Peake, 76;=20 1 Vent. 270; 3 Brod. & B. 2 6 Moore, 56.

TRADITIO BREVIS MANUS. This term is used in the civil law to = designate=20 the delivery of a thing, by the mere consent of the parties; as, when = Peter=20 holds the property of Paul as bailee, and, afterwards, he buys it, it is = not=20 necessary that Paul should deliver the property to Peter, and he should=20 re-deliver it to Paul, the mere consent of the parties transfers the = title to=20 Paul. 1 Duverg. n. 252; 6 Shipl. R. 231; Poth. Pand. lib. 50, CDLXXIV.; = 1 Bouv.=20 Inst. n. 944.

TRADITION, contracts, civil law. The act by which a thing is = delivered=20 by one or more persons to one or more others.

2. In sales it is the delivery of possession by the proprietor with = an=20 intention to transfer the property to the receiver. Two things are = therefore=20 requisite in order to transmit property in this way: 1. The intention or = consent=20 of the former owner to transfer it; and, 2. The actual delivery in = pursuance of=20 that intention.

3. Tradition is either real or symbolical. The first is where the = ipsa=20 corpora of movables are put into the hands of the receiver. Symbolical = tradition=20 is used where the thing is incapable of real delivery, as, in immovable=20 subjects, such as lands and houses; or such as consist in jure (things=20 incorporeal) as things of fishing and the like. The property of certain=20 movables, though they are capable of real delivery, may be transferred = by=20 symbol. Thus, if the subject be under look and key, the delivery of the = key is=20 considered as a legal tradition of all that is contained in the = repository.=20 Cujas, Observations, liv. 11, ch. 10; Inst. lib. 2, t. 1, =A740; Dig. = lib. 41, t.=20 1, 1. 9; Ersk. Princ. Laws of Scotl. bk. 2, t. 1, s. 10, 11; Civil Code = Lo. art.=20 2452, et seq.

4. In the common law the term used in the place of tradition is = delivery. (q.=20 v.)

TRAFFIC. Commerce, trade, sale or exchange of merchandise, = bills,=20 money and the like.

TRAITOR, crimes. One guilty of treason.

2. The punishment of a traitor is death.

TRAITOROUSLY, pleadings. This is a technical word, which is = essential=20 in an indictment for treason in order to charge the crime, and which = cannot be=20 supplied by any other word, or any kind of circumlocution. Having been = well laid=20 in the statement of the treason itself, it is not necessary to state = every overt=20 act to have been traitorously committed. Vide Bac. Ab. Indictment, G 1; = Com.=20 Dig. Indictment, G. 6; Hawk. B. 2, c. 25, s. 55; 1 East's P. C. 115; 2 = Hale,=20 172, 184; 4 Bl. Com. 307; 8 Inst. 15; Cro. C. C. 87; Carth. 319; 2 Salk. = 683; 4=20 Harg. St. Tr. 701; 2 Ld. Raym. 870; Comb. 259; 2 Chit. Cr. Law, 104, = note=20 (b).

TRANSACTION, contracts, civil law. An agreement between two or = more=20 persons, who for the purpose of preventing or putting an end to a = law-suit,=20 adjust their differences by mutual consent, in the manner which they = agree on;=20 in Louisiana this contract must be reduced to writing. Civil Code of = Louis,=20 3038.

2. Transactions regulate only the differences which appear to be = clearly=20 comprehended in them by the intentions of the parties, whether they be = explained=20 in a general or particular manner, unless it be the necessary = consequence of=20 what is expressed; and they do not extend to differences which the = parties,=20 never intended to include in them. Id. 3040.

3. To transact, a man must have the capacity to dispose of the things = included in the transaction. Id. 3039; 1 Domat, Lois Civiles, liv. 1, t. = 13, s.=20 1; Dig. lib. 2, t. 15, l. 1; Code lib. 2, t. 4, 1. 41. In the common law = this is=20 called a compromise. (q. v.)

TRANSCRIPT. A copy of an original writing or deed.

2. In Pennsylvania, the act of assembly of March 20th, 1810, s. 10, = calls a=20 copy of the proceedings before a justice of the peace in any case, a = transcript:=20 the proper term would be an exemplification.

TRANSFER, cont. The act by which the owner of a thing delivers = it to=20 another person, with the intent of passing the rights which he has in it = to the=20 latter.

2. It is a rule founded on the plainest dictates of common sense, = adopted in=20 all systems of law, that no one can transfer a right to another which he = has not=20 himself: nemo plus juris ad alienum transfers potest quam ipse habet. = Dig. 50,=20 17, 54 10 Pet. 161, 175; Co. Litt. 305.

3. To transfer means to change; for example, one may transfer a = legacy,=20 either, 1st. By the change of the person of the legatee, as, I bequeath = to=20 Primus a horse wliich I before bequeathed to Secundus. 2d. By the change = of the=20 thing bequeathed, as, I bequeath to Tertius my History of the United = States=20 instead of my copy of the Life of Washington. 3d. By the change of the = person=20 who was bound to pay the legacy, as, I direct that the sun) of one = bundred=20 dollars, which I directed should be charged upon my house which I gave = to=20 Quartus, shall be paid by my executors.

TRANSFEREE. He to whom a transfer is made.

TRANSFERENCE, Scotch law. The name of an action by which a = suit, which=20 was pending at the time the parties died, is transferred from the = deceased to=20 his representatives, in the same condition in which it stood formerly. = If it be=20 the pursuer who is dead, the action is called a transference active; if = the=20 defender, it is a transference passive. Ersk. Prin. B. 4, t. 1, n. = 32.

TRANSFEROR. One who makes a transfer.

TRANSGRESSION. The violation of a law.

TRANSHIPMENT, mar. law. The act of taking the cargo out of one = ship=20 and loading it in another.

2. When this is done from necessity, it does not affect the liability = of an=20 insurer on the goods. 1 Marsh. Ins. 166; Abbott on Shipp. 240. But when = the=20 master tranships goods without necessity, he is answerable for the loss = of them=20 by capture by public enemies. 1 Gallis. R. 443.

TRANSIRE, Eng. law. A warrant for the custom-house to let = goods pass:=20 a permit. (q. v.) See, for a form of a transire, Harg. L. Tr. 104.

TRANSITORY. That which lasts but a short time, as transitory = facts=20 that which may be laid in different places, as a transitory action.

TRANSITORY ACTION, pract., plead. Actions are transitory when = the=20 venue may lawfully be laid in any county, though the cause of action = arose out=20 of the jurisdiction of the court. Vide Actions, and 1 Chit. Pl. 273; = Com. Dig.=20 Actions, N 12; Cowp. 161; 9 Johns. R. 67; 14 Johns. R. 134; 3 Bl. Com. = 294; 3=20 Bouv. Inst. n. 2645. Vide Bac. Ab. Actions local and transitory.

TRANSITUS. The act of going, or of removing goods, from one = place to=20 another. The transitus of goods from a seller commences the moment he = has=20 delivered them to an agent for the purpose of being carried to another = place,=20 and ends when the delivery is complete, which delivery may be by putting = the=20 purchaser into actual possession of the goods, or by making him a = symbolical=20 delivery. 2 Hill, S. C. 587; 5 John. 335; 2 Pick. 599; 11 Pick.. 352; 2 = Aik. 79;=20 5 Ham. 88; 6 Rand. 473. See Stoppage in transitu.

TRANSLATION. The copy made in one language of what has been = written,=20 or spoken in another.

2. In pleading, when a libel or an agreement, written in a foreign = language,=20 must be averred, it is necessary that a translation of it should also be = given.

3. In evidence, when a witness is unable to speak the English = language so as=20 to convey his ideas, a translation of his testimony must be made. In = that case,=20 an interpreter should be sworn to translate to him, on oath, the = questions=20 propounded to him, and to translate to the court and jury his answers. 4 = Mass.=20 81; 5 Mass. 219; 2 Caines' Rep. 155; Louis. Code of Pr. 784, 5.

4. It has been determined that a copyright may exist in a = translation, as a=20 literary work. 3 Ves. & Bea. 77; 2 Meriv. 441, n.

5. In the ecclesiastical law, translation denotes the removal from = one place=20 to another.; as, the bishop was translated from the diocese of A, to = that of B.=20 In the civil law, translation signifies the transfer of property. Clef = des Lois=20 Rom. h. t.

6. Swinburne applies the term translation to the bestowing of a = legacy which=20 had been given to one, on another; this is a species of ademption, (q. = v.) but=20 it differs from it in this, that there may be an ademption without a=20 translation, but there can be no translation without an ademption. Bac. = Ab.=20 Legacies, C.

7. By translation is also meant the transfer of property, but in this = sense=20 it is seldom used. 2 Bl. Com. 294. Vide Interpreter.

TRANSMISSION, civ. law. The right which heirs or legatees may = have of=20 passing to their successors, the inheritance or legacy to which they = were=20 entitled, if they happen to die without having exercised their rights. = Domat,=20 liv. 3, t. 1, s. 10; 4 Toull. n. 186; Dig. 50, 17, 54; Code, 6, 51.

TRANSPORTATION, punishment. In the English law, this = punishment is=20 inflicted by virtue of sundry statutes; it was unknown to the common = law. 2 H.=20 Bl. 223. It is a part of the judgment or sentence of the court, that the = party=20 shall be transported or sent into exile. 1 Ch. Cr. Law, 789 to 796: = Princ. of=20 Pen. Law, c. 4 =A72.

TRAVAIL. The act of child-bearing.

2. A woman is said to be in her travail from the time the pains of=20 child-bearing commence until her delivery. 5 Pick. 63; 6 Greenl. R. = 460.

3. In some states, to render the mother of a bastard child a = competent=20 witness in the prosecution of the alleged father, she must have accused = him of=20 being the father during the time of her travail. 2 Root, R. 490; 1 Root, = R. 107;=20 2 Mass. R. 443; 5 Mass. R. 518; 8 Greenl. R. 163; 3 N. H. Rep. 135; 6 = Greenl. R.=20 460. But in Connecticut, when the state prosecutes, the mother is = competent,=20 although she did not accuse the father during her travail. 1 Day, R. = 278.

TRAVERSE, crim. law practice. This is a technical term, which = means to=20 turnover: it is applied to an issue taken upon an indictment for a = misdemeanor,=20 and means nothing more than turning over or putting off the trial to a = following=20 sessions or assize; it has, perhaps with more propriety, been applied to = the=20 denying or taking issue upon an indictment, without reference to the = delay of=20 trial. Dick. Sess. 151; Burn's Just. h. t.; 4 Bl. Com. 351.

TRAVERSE, pleading. This term, from the French traverser, = signifies to=20 deny or controvert anything which is alleged in the declaration, plea,=20 replication or other pleadings; Lawes' Civ. Plead. 116, 117 there is no = real=20 distinction between traverses and denials, they are the same in = substance.=20 Willes. R. 224. however, a traverse, in the strict technical meaning, = and more=20 ordinary acceptation of the term, signifies a direct denial in formal = words,=20 "without this that," &c. Summary of Pleadings, 75; 1 Chit. Pl. 576, = n.=20 a.

2. All issues are traverses, although all traverses cannot be said to = be=20 issues, and the difference is this; issues are where one or more facts = are=20 affirmed on one side, and directly and merely denied on the other; but = special=20 traverses are where the matter asserted by one party is not directly and = merely=20 denied or put in issue. by the other, but he alleges some new matter or=20 distinction inconsistent with what is previously stated, and then = distinctly=20 excludes the previous statement of his adversary. The new matter so = alleged is=20 called the inducement to the traverse, and the exclusion of the previous = statement, the traverse itself. Lawes' Civ. Pl. 117. See, in general, 20 = Vin.=20 Abr. 339; Com. Dig. Pleader, G; Bac. Abr. Pleas, H; Yelv. R. 147, 8; 1 = Saund.=20 22, n. 2; Gould. on Pl. ell. 7 Bouv. Inst. Index, n. t.

3. A traverse upon a traverse is one growing out of the same point, = or=20 subject matter, as is embraced in a preceding traverse on the other = side. Gould=20 on Pl. ch. 7, =A742, n. It is a general rule, that a traverse, well = tendered on=20 one side, must be accepted on the other. And hence it follows, as a = general=20 rule, that there cannot be a traverse upon a traverse, if the, first = traverse is=20 material. The meaning of the rule is, that when one party has tendered a = material traverse, the other cannot leave it and tender another of his = own to=20 the same point upon the inducement of the first traverse, but must join = in that=20 first tendered; otherwise the parties might alternately tender traverses = to each=20 other, in unlimited succession, without coming to an issue. Gould on Pl. = ch. 7,=20 =A742.

4. In cases where the first traverse is immaterial, there may be a = traverse=20 upon a traverse. Id. ch. 7, =A743. And where the plaintiff might be = ousted of some=20 right or liberty the law allows him, there may be a traverse upon a = traverse,=20 although the first traverse include what is material. Poph. 101; Mo. = 350; Com.=20 Dig. Pleader, G 18; Bac. Abr. Pleas, H 4; Hob. 104, marg.; Cro. Eliz. = 99, 418;=20 Gould on Pl. ch. 7, 44.

5. Traverses may be divided into general traverses, (q. v.) and = special=20 traverses. (q. v.) There is a third kind called a common traverse. (q. = v.)

TREASON, crim. law. This word imports a betraying, treachery, = or=20 breach of allegiance. 4 Bl. Com. 75.

2. The constitution of the United States, art. 3, s. 3, defines = treason=20 against the United States to consist only in levying war (q. v.) against = them,=20 or in adhering to their enemies, giving them aid or comfort. This = offence is=20 punished with death. Act of April 30th, 1790, 1 Story's Laws U. S. 83. = By the=20 same article of the constitution, no person shall be convicted of = treason,=20 unless on the testimony of two witnesses to the same overt act, or on = confession=20 in open court. Vide, generally, 3 Story on the Const. ch. 39, p. 667; = Serg. on=20 the Const. ch. 30; United States v. Fries, Pamph.; 1 Tucker's Blackst. = Comm.=20 Appen. 275, 276; 3 Wils. Law Lect. 96 to 99; Foster, Disc. I; Burr's = Trial; 4=20 Cranch, R. 126, 469 to 508; 2 Dall. R. 246; 355; 1 Dall. Rep. 35; 3 = Wash. C. C.=20 Rep. 234; 1 John. Rep. 553 11 Johns. R. 549; Com. Dig. Justices, K; 1 = East, P.=20 C. 37 to 158; 2 Chit. Crim. Law, 60 to 102; Arch. Cr. Pl. 378 to = 387.

TREASURE TROVE. Found treasure.

2. This name is given to such money or coin, gold, silver, plate, or = bullion,=20 which having been hidden or concealed in the earth or other private = place, so=20 long that its owner is unknown, has been discovered by accident. Should = the=20 owner be found it must be restored to him; and in case of not finding = him, the=20 property, according to the English law, belongs to the king. In the = latter case,=20 by the civil law, when the treasure was found by the owner of the soil, = he was=20 considered as entitled to it by the double title of owner and finder; = when found=20 on another's property, one-half belonged to the owner of the estate, and = the=20 other to the finder; when found on public property, it belonged one-half = to the=20 public treasury, and the other to the finder. Lecons du Dr. Rom. = =A7350-352. This=20 includes not only gold and silver, but whatever may constitute riches, = as vases,=20 urns, statues, &c.

3. The Roman definition includes the same things under the word = pecunia; but=20 the thing found must have a commercial value for ancient tombs would not = be=20 considered a treasure. The thing must have been hidden or concealed in = the=20 earth; and no one must be able to establish his right to it. It must be = found,=20 by a pure accident, and not in consequence of search. Dall. Dict. = Propriete,=20 art. 3, s. 3.

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

TREASURER. An officer entrusted with the treasures or money = either of=20 a private individual, a corporation, a company, or a state.

2. It is his duty to use ordinary diligence in the performance of his = office,=20 and to account with those whose money he has.

TREASURER. OF THE MINT. An officer created by the act of = January 18,=20 1837, whose duties are prescribed as follows: The treasurer shall = receive and=20 safely keep all moneys which shall be for the use and support of the = mint; shall=20 keep all the current accounts of the mint, and pay all moneys due by the = mint,=20 on warrants from the director. He shall receive all bullion brought to = the mint=20 for coinage; shall be the keeper of all bullion and coin in the mint, = except=20 while the same is legally placed in the hands of other officers, and = shall, on=20 warrants from the director, deliver all coins struck at the mint to the = persons=20 to whom they shall be legally payable. And he shall keep regular and = faithful=20 accounts of all the transactions of the mint, in bullion and coins, both = with=20 the officers of the mint and the depositors; and shall present, = quarter-yearly,=20 to the treasury department of the United States, according to such forms = as=20 shall be prescribed by that department, an account of the receipts and=20 dishursements of the mint, for the purpose of being adjusted and = settled.

2. This officer is required to give bond to the United States with = one or=20 more sureties to the satisfaction of the secretary of the treasury, in = the sum=20 of ten thousand dollars. His salary is two thousand dollars.

TREASURER OF THE UNITED STATES, government. Before entering on = the=20 duties of his office, the treasurer is required to give bond with = sufficient=20 sureties, approved by the secretary of the treasury and the first = comptroller,=20 in the sum of one hundred and fifty thousand dollars, payable to the = United=20 States, with condition for the faithful performance of the duties of his = office,=20 and the fidelity of the. persons by him employed. Act of 2d September, = 1789, s.=20 4.

2. His principal duties are, 1. To receive and keep the moneys of the = United=20 States, and dishurse the same by warrants drawn by the secretary of the=20 treasury, countersigned by the proper officer, and recorded according to = law.=20 Id. s. 4. 2. To take receipts for all moneys paid by him.

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

TREASURY. The place where treasure is kept the office of a = treasurer.=20 The term is more usually applied to the public than to a private = treasury. Vide=20 Department of the Treasury o the United States.

TREATY, international law. A treaty is a compact made between = two or=20 more independent nations with a view to the public welfare treaties are = for a=20 perpetuity, or for a considerable time. Those matters which are = accomplished by=20 a single act, and are at once perfected in their execution, are called=20 agreements, conventions and pactions.

2. On the part of the United States, treaties are made by the = president, by=20 and with the consent of the senate, provided two-thirds of the senators = present=20 concur. Const. article 2, s. 2, n. 2.

3. No state shall enter into any treaty, alliance or confederation; = Const.=20 art. 1, s. 10, n. 1; nor shall any state, without the consent of = congress, enter=20 into any agreement or compact with another state, or with a foreign = power. Id.=20 art. 1, see. 10, n. 2; 3 Story on the Const. =A71395.

4. A treaty is declared to be the supreme law of the land, and is = therefore=20 obligatory on courts; 1 Cranch, R. 103; 1 Wash. C. C. R. 322 1 Paine, = 55;=20 whenever it operates of itself without the aid of a legislative = provision; but=20 when the terms of the stipulation import a contract, and either of the = parties=20 engages to perform a particular act, the treaty addresses itself to the=20 polit-ical, not the judicial department, and the legislature must = execute the=20 contract before it can become a rule of the court. 2 Pet. S. C. Rep. = 814. Vide=20 Story on the Constitut. Index, h. t.; Serg. Constit. Law, Index, h. t.; = 4 Hall's=20 Law Journal, 461; 6 Wheat. 161: 3 Dall. 199; 1 Kent, Comm. 165, 284.

5. Treaties are divided into personal and real. The personal relate=20 exclusively to the persons of the contracting parties, such as family = alliances,=20 and treaties guarantying the throne to a particular sovereign and his = family. As=20 they relate to the persons they expire of course on the death of the = sov-ereign=20 or the extinction of his family. Real treaties relate solely to the=20 subject-matters of the convention, independently of the persons of the=20 contracting parties, and continue to bind the state, although there may = be=20 changes in its constitution, or in the persons of its rulers. Vattel, = Law of=20 Nat. b. 2, c. 12, 183-197.

TREATY OF PEACE. A treaty of peace is an agreement or contract = made by=20 belligerent powers, in which they agree to lay down their arms, and by = which=20 they stipulate the conditions of peace, and regulate the manner in which = it is=20 to be restored and supported Vatt. lib. 4, c. 2, =A79.

TREBLE COSTS, remedies. By treble costs, in the English law, = is=20 understood, 1st. The usual taxed costs. 2d. Half thereof. 3d. Half the = latter;=20 so that in effect the treble costs amount only to the taxed costs, and=20 three-fourths thereof. 1 Chitty, R. 137; 1 Chitt. Pract. 27.

2. Treble costs are sometimes given by statutes, and this is the = construction=20 put upon them.

3. In Pennsylvania the rule is different; when an act of assembly = gives=20 treble costs, the party is allowed three times the usual costs, with the = exception, that the fees of the officers are not to be trebled, when = they are=20 not regularly or usually payable by the defendant. 2 Rawle, R. 201.

4. And in New York the directions of the statute are to be strictly = pursued,=20 and the costs are to be trebled. 2 Dunl. Pr. 731.

TREBLE DAMAGES, remedies. In actions arising ex contractu some = statutes give treble damages; and these statutes have been liberally = construed=20 to mean actually treble damages; for example, if the jury give twenty = dollars=20 damages for a forcible entry the court will award forty dollars more, so = as to=20 make the total amount of damages sixty dollars. 4 B. & C. 154; = M'Clell. Rep.=20 567.

2. The construction on the words treble damages, is different from = that which=20 has been put on the words treble costs. (q. v.) Vide 6 S. & R. 288; = 1=20 Browne, R. 9; 1 Cowen, R. 160, 175,176, 584; 8 Cowen, 115.

TREBUCKET. The name of an engine of punishment, said to be = synonymous=20 with tumbrel. (q. v.)

TREE. A woody plant, which in respect of thickness and height = grows=20 greater than any other plant.

2. Trees are part of the real estate while growing, and before they = are=20 severed from the freehold; but as soon as they are cut down, they are = personal=20 property.

3. Some trees are timber trees, while others do not bear that = denomination.=20 Vide Timber, and 2 Bl. Com. 281.

4. Trees belong to the owner of the land where they grow, but if the = roots go=20 out of one man's land into that of another, or the branches spread over = the=20 adjoining estates, such roots or branches may be cut off by the owner of = the=20 land into which they thus grow. Rolle's R. 394; 3 Bulstr. 198; Vin. Ab. = Trees,=20 E; and tit. Nuisance, W 2, pl. 3; 8 Com. Dig. 983; 2 Com. Dig. 274; 10 = Vin. Ab.=20 142; 20 Viii. Ab. 415; 22 Vin. Ab. 583; 1 Supp. to Ves. jr. 138; 2 Supp. = to Ves.=20 jr. 162, 448; 6 Ves. 109.

5. When the roots grow into the adjoining land, the owner of such = land may=20 lawfully claim a right to hold the tree in common with the owner of the = land=20 where it was planted; but if the branches only overshadow the adjoining = land,=20 and the root does not enter it, the tree wholly belongs owner of the = estate=20 where the roots grow. 1 Swift's Dig. 104; 1 Hill. Ab. 6; 1 Ld. Raym. = 737. Vide=20 13 Pick. R. 44; 1 Pick., R. 224; 4 Mass. R. 266; 6 N. H. Rep. 430; 3 = Day, 476;=20 11 Co. 50; Rob. 316; 2 Rolle, It. 141 Moo. & Mal. 112; 11 Conn. R. = 177; 7=20 Conn. 125; 8 East, R. 394; 5 B. & Ald. 600; 1 Chit. Gen. Pr. 625; 2 = Phil.=20 Ev. 138; Gale & Wheat. on Easem. 210; Code Civ. art. 671; Pardes. = Tr. des=20 Servitudes, 297; Bro. Ab. Demand, 20; Dall. Dict. mot Servitudes, art. 3 = =A78; 2=20 P. Wms. 606; Moor, 812; Hob. 219; Plowd. 470; 5 B. & C. 897; S. C. 8 = D.=20 & R. 651. When the tree grows directly on the boundary line, so that = the=20 Iine passes through it, it is the property of both owners, whether it be = marked=20 as a boun dary or not. 12 N. H. Rep. 454.

TRESAILE or TRESAYLE, domestic relations. The grandfather's=20 grandfather. 1 Bl. Com. 186.

TRESPASS torts. An unlawful act committed with violence, ti et = armis,=20 to the person, property or relative rights of another. Every felony = includes a=20 tres-pass, in common parlance, such acts are not in general considered = as=20 tres-passes, yet they subject the offender to an action of trespass = after his=20 conviction or acquittal. See civil remedy.

2. There is another kind of trespass, which is committed without = force, and=20 is known by the name of trespass on the case. This is not generally = known by the=20 name of trespass. See Case.

3. The following rules characterize the injuries which are = denominated=20 tres-passes, namely: 1. To determine whether an injury is a trespass, = due regard=20 must be had to the nature of the right affected. A wrong with force can = only be=20 offered to the absolute rights of personal liberty and security, and to = those of=20 property corporeal; those of health, reputation and in property = incorporeal,=20 together with the relative rights of persons, are, strictly speaking, = incapable=20 of being injured with violence, because the subject-matter to which they = relate,=20 exists in either case only in idea, and is not to be seen or handled. An = exception to this rule, however, often obtains in the very instance of = injuries=20 to the relative rights of persons; and wrongs offered to these last are=20 frequently denominated trespasses, that is, injuries with force.

4. - 2. Those wrongs alone are characterized as trespasses the = immediate=20 consequences of which are injurious to the plaintiff; if the damage = sustained is=20 a remote consequence of the act, the injury falls under the denomination = of=20 trespass on the case.

5. - 3. No act is injurious but that which is unlawful; and = therefore, where=20 the force applied to the plaintiff's property or person is the act of = the law=20 itself, it constitutes no cause of complaint. Hamm. N. P. 34; 2 Pbil. = Ev. 131;=20 Bac. Abr. h. t.; 15 East R. 614; Bouv. Inst. Index, h. t. As to what = will=20 justify a trespass, see Battery.

TRESPASS, remedies. The name of an action, instituted for the = recovery=20 of damages, for a wrong committed against the plaintiff, with immediate = force;=20 as an assault and battery against the person; an unlawful entry into = his, land,=20 and an unlawful injury with direct force to his personal property. It = does not=20 lie for a mere non-feasance, nor when the matter affected was not = tangible.

2. The subject will be considered with regard, 1. To the injuries for = which=20 trespass may be sustained. 2. The declaration. 3. The plea. 4. The = judgment.

3. - =A71. This part of the subject will be considered with reference = to=20 injuries, 1. The person. 2. To personal property. 3. To real property. = 4. When=20 trespass can or cannot be justified by legal proceedings.

4. - 1. Trespass is the proper remedy for an assault and battery, = wounding,=20 imprisonment, and the like, and it also lies for an injury to the = relative=20 rights when occasioned by force; as, for beating, wounding, and = imprisoning a=20 wife or servant, by which the plaintiff has sustained a loss. 9 Co. 113; = 10 Co.=20 130. Vide Parties to actions; Per guod, and 1 Chit. Pr. 37.

5. - 2. The action of trespass is the proper remedy for injuries to = personal=20 property, which may be committed by the several acts of unlawfully = striking,=20 chasing, if alive, and carrying away to the damage of the plaintiff, a = personal=20 chattel, 1 Saund. 84, n. 2, 3; F. N. B. 86; Bro. Trespass, pl. 407; = Toll.=20 Executors, 112; Cro. Jac. 362, of which another is the owner and in = possession;=20 but a naked possession or right to immediate possession, is a sufficient = title=20 to support this action. 1 T. R. 480; and gee 8. John. R. 432; 7 John. R. = 535; 11=20 John. R. 377; Cro. Jac. 46; 1 Chit. Pl. 165.

6. - 3. Trespass is the proper remedy for the several acts of = breaking=20 through an enclosure, and coming into contact with any corporeal = hereditament,=20 of which another is the owner and in possession, and by which a damage = has=20 ensued. There is an ideal fence, reaching in extent upwards, a = superficie terrae=20 usque ad caelum, which encircles every man's possessions, when he is = owner of=20 the surface, and downwards as far as his property descends; the entry,=20 therefore, is breaking through this enclosure, and this generally = constitutes,=20 by itself, a right of action. The plaintiff must be the owner, and in=20 possession. 5 East, R. 485; 9 John. R. 61; 12 John. R. 183; 11 John. R. = 385; Id.=20 140; 3 Hill, R. 26. There must have been some injury, however, to = entitle the=20 plaintiff to recover, for a man in a balloon may legally be said to = break the=20 close of the plaintiff, when passing over it, as he is wafted by the = wind, yet=20 as the owner's possession is not by that act incommoded, trespass could = not=20 probably be maintained; yet, if any part of the machinery were to fall = upon the=20 land, the aeronaut could not justify an entry into it to remove it, = which proves=20 that the act is not justifiable. 19 John. 381 But the slightest injury, = as=20 treading down the grass, is sufficient. Vide 1 Chit. Pl. 173; 2 John, R. = 357: 9=20 John. R. 113, 377; 2 Mass. R. 127; 4 Mass. R. 266; 4 John. R . 150.

7. - 4. It is a general rule that when the defendant has acted under = regular=20 process of a court of competent jurisdiction, or of a single magistrate = having=20 jurisdiction of the subject-matter, it is a sufficient justification to = him; but=20 when the court has no jurisdiction and the process is wholly void, the = defendant=20 cannot justify under it.

8. But there are some cases, where an officer will not be justified = by the=20 warrant or authority of a court, having jurisdiction. These exceptions = are=20 generally founded on some matter of public policy or convenience; for = example,=20 when a warrant was issued against a mail carrier, though the officer was = justified in serving the warrant, he was liable to an indictment for = detaining=20 such mail carrier under the warrant, for by thus detaining him, he was = guilty of=20 "wilfully obstructing or retarding the passage of the mail, or of the = driver or=20 carrier," contrary to the provisions of the act of congress of 1825, ch. = 275, s.=20 9. 8 Law Rep. 77. See Ambassador; Justification.

9. - =A72. The declaration should contain a concise statement of the = injury=20 complained of, whether to the person, personal or real property, and it = must=20 allege that the injury was conimitted vi et armis and contra pacem; in = which=20 particulars it differs from a declaration in case. See Case, = remedies.

10. - =A73. The general issue is not guilty. But as but few matters = can be=20 given in evidence under this plea, it is proper to plead special matters = of=20 defence.

11. - =A74. The judgment is generally for the damages assessed by the = jury, and=20 for costs. When the judgment is for the defendant, it is that be recover = his=20 costs. Vide Irregularity; Regular and Irregular process. Vide, = generally, Bro.=20 Ab. h. t.; Nelson's Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Com. = Dig. h.=20 t.; Vin. Ab. h. t.; the various American and English Digests, h. t.; 2 = Phil. Ev.=20 131; Ham. N. P. 33 to 265; Chit. Pr. Index, h. t.; Rose. Civ. Ev. h. t.; = Stark.=20 Ev. h. t.; Bouv. Inst. Index, h. t.

TRESPASS DE BONIS ASPORTATIS, practice. The action brought by = the=20 owner of goods for unlawfully taking and carrying them away, is so = called. This=20 action will lie for taking away another's goods, even though he should = return=20 them, because by such taking he has deprived the owner of his right to = enjoy=20 them. 1 Bouv. Inst. n. 3611.

TRESPASS ON THE CASE, practice. The technical name of an = action,=20 instituted for the recovery of damages caused by an injury unaccompanied = with=20 force, or where the damages sustained are only consequential. See Case, = and 3=20 Bouv. Inst. n. 3482 to 3509.

TRESPASS QUARE CLAUSUM FREGIT, practice. This is the name of a = remedy=20 which lies to recover damages when the defendant has unlawfully and = wrongfully=20 trespassed upon the real estate of the plaintiff.

2. This action must be brought by the tenant in possession, for the = injury is=20 done to his possession. A remainder-man or reversioner cannot sustain = it. 3. As=20 the injury must be committed to the possession, one who has a mere = incorporeal=20 right cannot maintain this action. 4 Bouv. Inst. n. 3600.

TRESPASS VI ET ARMIS, practice. This is the remedy brought by = the=20 plaintiff for an immediate injury committed with force. It is = distinguished from=20 an action of trespass on the case, in this, that in the latter the = injury is=20 consequential, and not committed with direct force. 3 Bouv. Inst. n. = 2871, 3482;=20 4 Bouv. Inst. n. 8583.

TRESPASSER. One who couimits a trespass.

2. A man is a trespasser by his own direct actohen he acts without = any=20 excuse; or he may be a trespasser in the execution of a legal process in = an=20 illegal manner; 1 Chit. Pl. 183: 2 John. Cas. 27; or when the court has = no=20 juris4iction over the subject-matter when the court has jurisdiction but = the=20 proceeding is defective and void; when the process has been misapplied, = as, when=20 the defendant has taken A's goods on an execution against B; when the = process=20 has been abused 1 Chit. Pl. 183-187 in all these cases a man is a = trespasser ab=20 initio. And a person capable of giving his assent may become a = trespasser, by an=20 act subsequent to the tort. If, for example, a an take possession of = land for=20 the use of another, the latter may afterwards recognize and adopt the = act; by so=20 doing, he places himself in the situation of one who had previously = commanded=20 it, and consequently is himself a trespasser, if the other had no right = to=20 enter, nor he to command the entry. 4 Inst. 317; Ham. N. P. 215. Vide 1 = Rawle's=20 R. 121.

TRET, weights and measures. An allowance made for the water or =

TRIAL, practice., The examination before a competent tribunal, = according to=20 the laws, of the land, of the facts put in issue in a cause, for the = purpose of=20 determining such issue. 4 Mason, 232.

2. There are various kinds of trial, the most common of which is = trial by=20 jury. To insure fairdess this mode of trial lust be in public; it is = conducted=20 by selecting a jury in the manner prescribed by the local statutes, who = must be=20 sworn to try the Hiatter in dispute according to law, and the evidence. = Evidence=20 is then given by the party on whom rests the onus probandi or burden of = the=20 proof, as the witnesses are called by a party they are questioned by = him, and=20 after they have been examined, which is called an examination in chief, = they are=20 subject to a cross-examination by the other party as to every part of = their=20 testimony. Having examined all his witnesses, the party who supports the = affirmative of the issue closes; and the other party then calls his = witnesses to=20 explain his case or support his part of the issue these are in the same = manner=20 liable to a cross-examination. In case the parties should differ as to = what is=20 to be given in evidence, the judge, must decide the matter, and his = decision is=20 conclusive upon the parties so far as regards the trial; but, in civil = cases, a=20 bill of exceptions (q. v.) way be taken, so that the matter may be = examined=20 before another tribunal. When the evidence has been closed, the counsel = for the=20 party who supports the affirmative of the issue, then addressess the = jury, by=20 recapitulating the evidence and applying the law to the facts, and = showing on=20 what particular points he rests his case. The opposite counsel then = addresses=20 the jury, enforcing in like manner the facts and the law as applicable = to his=20 side of the case; to which the other counsel has a right to reply. It is = then=20 the duty of the judge to sum up the evidence and explain to the jury the = law=20 applicable to the case this is called his charge. (q. v.) The jurors = then retire=20 to deliberate upon their verdict, and, after having agreed upon it, they = come=20 into court and deliver it in public. In case they cannot agree they may, = in=20 cases of necessity, be discharged: but, it is said, in capital cases = they cannot=20 be. Very just and merited encomiums have been bestowed on this mode of = trial,=20 particularly in criminal cases. Livingston's Rep. on the Plan of a Penal = Code,=20 13 3 Story, Const. 1773. The learned Duponceau has given beautiful = sketch of=20 this tribunal; "twelve invisible judges," said he, "whom the eye of the=20 corrupter cannot see, and the influence of the powerful cannot reach, = for they=20 are nowhere to be found, until the moment when the balance of justice = being=20 placed in their bands, they hear, weigh, determine, pronounce, and = immediately=20 disappear, and are lost in the crowd of their fellow citizens." Address = at the=20 opening of the Law Academy at Philadelphia. Vide, generally, 4 Com. Dig. = 783; 7=20 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h. t.; 1 Sell. Pr. 405 4 Bl. Com. ch. = 27; Chit.=20 Pr. Index, h. t. 3 Bl. Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h. = t. See=20 Discharge of jury; Jury.

3. Trial by certificate. By the English law, this is a mode of trial = allowed=20 in such cases where the evidence of the person certifying is the only = proper=20 criterion of the point in dispute. For, when the fact in question lies = out of=20 the cognizance of the court, the judges must rely on the solemn = averments or=20 information of persons in such station, as affords them the most clear = and=20 complete knowledge of the truth.

4. As therefore such evidence, if given to a jury, must have been=20 conclu-sive, the law, to save trouble and circuity, permits the fact to = be=20 determined upon such certificate merely. 3 Bl. Com. 333; Steph. Pl. = 122.

5. Trial by the grand assise. This kind of trial is very similar to = the=20 common trial by jury. There is only one case in which it appears ever to = have=20 been applied, and there it is still in force.

6. In a writ of right, if the defendant by a particular form of plea=20 appropriate to the purpose, (see the plea, 3 Chitty, 652,) denied the = right of=20 the demandant, as claimed, he had the option, till the recent abolition = of the=20 extravagant and barbarous method of wager by battel, of either offering = battel=20 or putting himself on the grand assise, to try whether he or the = demandant "had=20 the greater right." The latter course he may still take; and, if he = does, the=20 court award a writ for summoning four knights to make the election of = twenty=20 other recognitors. The four knights and twelve of the recognitors so = elected,=20 together making a jury of sixteen, constitute what is called the grand = assise;=20 and when assembled, they proceed to try the issue, or (as it is called = in this=20 case) the mise, upon the question of right. The trial, as in the case of = a=20 common jury, may be either at the bar or nisi prius; and if at nisi = prius, a=20 nisi prius record is made up; and the proceedings are in either case, in = general, the same as where there is a common jury. See Wils. R. 419, = 541; 1=20 Holt's N. P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402. = Upon the=20 issue or mise of right, the wager of battel or the grand assise was, = till the=20 abolition of the former, and the latter still is, the only legitimate = method of=20 trial; and the question cannot be tried by a jury in the common form. 1 = B. &=20 P. 192. See 3 Bl. Com. 351.

7. Trial by inspection or examination. This trial takes place when = for the=20 greater expedition of a cause, in some point or issue being either the = principal=20 question or arising collaterally out of it, being evidently the object = of sense,=20 the judges of the court, upon the testimony of their own senses, shall = decide=20 the point in dispute. For where the affirmative or negative of a = question is=20 matter of such obvious determination, it is not thought necessary to = summon a=20 jury to decide it; who are properly called in to inform the conscience = of the=20 court in respect of dubious facts, and, therefore, when the fact, from = its=20 nature, must be evident to the court either from ocular demon-stration = or other=20 irrefragable proof, there the law departs from its usual resort, the = verdict of=20 twelve men, and relies ou the judgment alone. For example, if a = defendant pleads=20 in abatement of the suit that the plaintiff is dead, and one appears and = calls=20 himself the plaintiff, which the defendant denies; in this case the = judges shall=20 determine by inspection and examination whether be be the plaintiff or = not. 9=20 Co. 30; 3 Bl. Com. 331; Steph. Pl. 123.

8. Judges of courts of equity frequently decide facts upon mere = inspection.=20 The most familiar examples are those of cases where the plaintiff prays = an injun=20 ction on an allegation of piracy or infringement of a patent or = copyright. 5=20 Ves. 709; 12 Ves. 270, and the cases there cited. And see 2 Atk. 141; 2 = B. &=20 C. 80; 4 Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1 = Dall.=20 166.

9. Trial by the record. This trial applies to cases where an issue of = nul=20 tiel record is joined in any action. If, on one side, a record be = asserted to=20 exist, and the opposite party deny its existence, under the form of = traverse,=20 that there is no such record remaining in court, as alleged, and issue = be joined=20 thereon, this is called an issue of nul tiel record; and the court = awards, in=20 such case, a trial by inspection and examination of the record: Upon = this the=20 party, affirming its existence, is bound to produce it in court, on a = day given=20 for the purpose, and if he fail to do so, judgment is given for his=20 adversary.

10. The trial by record is not only in use when an issue of this kind = happens=20 to arise for decision, but it is the only legitimate mode of trying such = issue,=20 and the parties cannot put themselves upon the country. Steph. Pl. 122; = 2 Bl.=20 Com. 330.

11. Trial by wager of battel. In the old English law, this was a = barbarous=20 mode of trying facts, among a rude people, founded on the supposition = that=20 heaven would always interpose, and give the victory to the champions of = truth=20 and innocence. This mode of trial was abolished in England as late as = the stat.=20 59 Geo. III., c. 46, A. D. 1818. It never was in force in the United = States. See=20 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B. & A. = 405.

12. Trial by wager of law. This mode of trial has fallen into = complete=20 disuse; but in point of law, it seems, in England, to be still competent = in most=20 cases to which is anciently applied. The most important and best = established of=20 these cases, is, the issue of nil debet, arising in action of debt of = simple=20 contract, or the issue of non detinet, in an action of detinue. In the=20 declaration in these actions, as in almost all others, the plaintiff = concludes=20 by offering his suit (of which the ancient meaning was followers or = witnesses,=20 though the words are now refained as mere form,) to prove the truth of = his=20 claim. On the other hand, if the defendant, by a plea of nil debet or = non=20 detinet, deny the debt or detention, be may conclude by offering to = establish=20 the truth of such plea, "against the plaintiff and his suit, in such = manner as=20 the court shall direct." Upon this the court awards the wager of law; = Co. Ent.=20 119 a; Lill. Ent. 467; 3 Chit. Pl. 479; and the form of this proceeding, = when so=20 awarded, is that the defendant brings into court with him eleven of his=20 neighbors, and for himself, makes oath that he does not owe the debt or = detain=20 the property alleged and then the eleven also swear that they believe = him to=20 speak the truth; and the defendant is then entitled to judgment. 3 Bl. = Com. 343;=20 Steph. Pl. 124. Blackstone compares this mode of trial to the canonical=20 purgation of the catholic clergy, and to the decisory oath of the civil, = law.=20 See Oath, decisory.

13. Trial by witnesses. This species of trial by witnesses, or per = testes, is=20 without the intervention of a jury

14. This is the only method of trial known to the civil law, in which = the=20 judge is left to form in his own breast his sentence upon the credit of = the=20 witnesses examined; but it is very rarely used in the common law, which = prefers=20 the trial by jury in almost every instance.

15. In England, when a widow brings a writ of dower, and the tenant = pleads=20 that the tenant is not dead, this being looked upon as a dilatory plea, = is, in=20 favor of the widow, and for greater expedition, allowed to be tried by = witnesses=20 examined before the judges; and so, says Finch, shall no other case in = our law.=20 Finch's Law, 423. But Sir Edward Coke mentions others: as to try whether = the=20 tenant in a real action was duly summoned; or the validity of a = challenge to a=20 juror; so that Finch's observation must be confined to the trial of = direct and=20 not collateral issues. And in every case, Sir Edward Coke lays it down, = that the=20 affirmative must be proved by two witnesses at least. 3 Bl. Com. = 336.

TRIAL LIST. A list of cases marked down for trial for any one=20 term.

TRIBUNAL. The seat of a judge; the place where he administers = justice;=20 but by this term is more usually understood the whole body of judges who = compose=20 a jurisdiction sometimes it is taken for the jurisdiction which they=20 exercise.

2. This term is Latin, and derives its origin from the elevated seat = where=20 the tribunes administered justice.

TRIBUTE. A contribution which is sometimes raised by the = sovereign=20 from his subject, to sustain the expenses of the state. It is also a sum = of=20 money paid by one nation to another under some pretended right. Wolff,=20 =A71145.

TRINEPOS. This term was used among the Romans to denote the = male=20 descendant in the sixth degree in a direct line. It is still employed in = making=20 genealogical tables.

TRINITY TERM, Eng. law. One of the four terms of the courts; = it begins=20 on the 22d day of May, and ends on the 12th of June. St. 11 G. IV., and = 1 W.=20 IV., c. 70. It was formerly a movable term.

TRIORS, practice. Persons appointed according to law to try = whether a=20 person challenged to the favor is or is not qualified to serve on the = jury. They=20 do not exceed two in number without the consent of the prosecutor and = defendant,=20 or some special case is alleged by one of them, or when only one juror = has been=20 sworn and two triors are appointed with him. Co. Litt. 158 a; Bac. Ab. = Juries, E=20 12.

2. Where the challenge is made to the first juror, the court will = appoint two=20 indifferent persons to be triors if they find him indifferent he shall = be sworn,=20 and join the triors in determining the next challenge. But when two = jurors have=20 been found impartial and have been sworn, then the office of the triors = will=20 cease, and every subsequent challenge will be decided upon by the = jurymen. If=20 more than two, jurymen have been sworn, the court may assign any two of = them to=20 determine the challenges. To the triors thus chosen no challenges can be = admitted.

3. The following oath or affirmation is administered to them: "You = shall well=20 and truly try whether A B, the juror challenged, stands indifferent = between the=20 parties to this issue, so help you God" or to this you affirm. The trial = then=20 proceeds by witnesses before them; and they may examine, the juryman = challenged=20 on his voire dire, but he cannot be interrogated as to circumstances = which may=20 tend to his own disgrace, discredit, or the injury of his character. The = finding=20 of the triors is final. Being officers of the court, the triors may be = punished=20 for any mishehaviour in their office. Vide 2 Hale, 275; 4 Bl. Com. by = Chitty,=20 353, n. 8; Tr. per Pais, 200; 1 Chit. Cr. Law, 549, 450; 4 Harg. St. Tr. = 740,=20 750; 15 Serg. & Rawle, 156; 21 Wend. 509; 2 Green, 195.

TRIPARTITE. Consisting of three parts, as a deed tripartite, = between A=20 of the first part, B of the second part, and C of the third part.

TRIPLICATION, pleading. This was formerly used in pleading = instead of=20 rebutter. 1 Bro. Civ. Law, 469, n.

TRITAVUS. The male ascendant in the sixth degree was so called = among=20 the Romans. For the female ascendant in the same degree, the term is = tritavia.=20 In forming genealogical tables this convenient term is still used.

TRIUMVIRI CAPITALES or TREVIRI or TRESVIRI, Rom, civ. law. = Officers=20 who had charge of the prison, through whose intervention punishments = were=20 inflicted. Sallust in Catalin. They had eight lictors to execute their = orders.=20 Vicat, ad voc.

TRIVIAL. Of small importance. It is a rule in equity that a = demurrer=20 will lie to a bill on the ground of the triviality of the matter in = dispute, as=20 being below the dignity of the court. 4 Bouv. Inst. n. 4237. See Hopk. = R. 112; 4=20 John. Ch. 183; 4 Paige, 364.

TRONAGE, Engl. law. A customary duty or toll for weighing = wool, so=20 called because it was weighed by a common trona, or beam. Fleta, lib. 2, = c.=20 12.

TROVER, remedies. Trover signifies finding. The remedy is = called an=20 action of trover; it is brought to recover the value of personal = chattels,=20 wrongfully converted by another to his own use; the form supposed that = the=20 defendant might have acquired the possession of the property lawfully, = namely,=20 by finding, but if he did not, by bringing the action the plaintiff = waives the=20 trespass; no damages can therefore be recovered for the taking, all must = be for=20 the conversion. 17 Pick. 1; Anthon, 156; 21 Pick. 559; 7 Monr. 209; 1 = Metc.=20 172.

2. It will be proper to consider the subject with reference, 1. To = the thing=20 converted. 2. The plaintiff's right. 3. The nature of the injury. 4. The = pleadings. 5. The verdict and judgment.

3. - 1. The property affected must be some personal chattel; 3, Serg. = &=20 Rawle, 513; and it has been decided that trover lies for title deeds; 2 = Yeates,=20 R. 537; and for a copy of a record. Hardr. 111. Vide 2 T. R. 788; 2 = Salk. 654; 2=20 New Rep. 170; 3 Campb. 417; 3 Johns. R. 432; 10 Johns. R. 172; 12 Johns. = R. 484;=20 6 Mass. R. 394; 17 Serg. & Rawle, 285; 2 Rawle, R. 241. Trover will = be=20 sustained for animals ferae naturae, reclaimed. Hugh. Ab. Action upon = the case=20 of Trover and Conversion, pl. 3. But trover will not lie for personal = property=20 in the custody of the law, nor when the title to the property can be = settled=20 only by a peculiar jurisdiction; as, for example, property taken on the = high=20 seas, and claimed as lawful prize, because in such case, the courts of = admiralty=20 have exclusive jurisdiction. Cam. & N. 115, 143; but see 14 John. = 273. Nor=20 will it lie where the property bailed has been lost by the bailee, or = stolen=20 from him, or been destroyed by accident or from negligence case is the = proper=20 remedy. 2 Iredell, 98.

4.-2. The plaintiff must at the time of the conversion have had a = property in=20 the chattel either general or special; 1 Yeates, R. 19; 3 S. & R. = 509; 15=20 John. R. 205, 349; 16 John. R. 159; 1 Humph. R. 199; he must also have = had=20 actual possession or right to immediate possession. The person who has = the=20 absolute or general property in a personal chattel may support this = action,=20 although he has never had possession, for it is a rule that the general = property=20 of personal chattels creates a constructive possession. 2 Saund. 47 a, = note 1;=20 Bac. Ab. Trover, C; 4 Rawle, R. 185. One who has a special property, = which=20 consists in the lawful custody of goods with a right of detention = against the=20 general owner, may maintain trover. Story, Bailm. 93 n.

5. - 3. There must have been a conversion, which may have been = effected, 1st.=20 By the wrongful taking of a personal chattel. 2d. By some other illegal=20 assumption of ownership, or by illegally using or misusing it; or, 3d. = By a=20 wrongful detention., Vide Conversion.

6. - 4. The declaration should state that the plaintiff Was possessed = of the=20 goods (describing them) as of his own property, and that they came to = the=20 defendant's possession by finding; and the conversion should be properly = averred, as that is the gist of the action. It is not indispensable to = state the=20 price or value of the thing converted. 2 Wash. 192. See 2 Cowen, 592 13 = S. &=20 R. 99; 3 Watts, 333; 1 Blackf. 51; 1 South 211; 2 South. 509. Vide form, = 2=20 Chitty's Pl. 370, 371. The usual plea is not guilty, which is the = general issue.=20 Bull. N. P. 48.

7. - 5. The verdict should be for the damages sustained, and the = measure of=20 such damages is the value of the property at the time of the conversion, = with=20 interest. 17 Pick. 1; 7 Monr. 209; 1 Mete. 172; 8 Port. R. 191; 2 Hill, = 132; 8=20 Dana, 192. The judgment, when for the plaintiff, is that he recover his = damages=20 and costs; 1 Chit. Pl. 157; when for the defendant, the judgment is that = he=20 recover his costs. Vide, generally, 1 Chit. Pl. 147 to 157 Chit. Pr. = Index, h.=20 t.; Bac. Ab. h. t.; Dane's Ab. h. t. Vin. Ab. h. t.; Com. Dig. Action = upon the=20 case upon trover; Id. Pleader, 2 I; Doct. Pl. 494; Amer. Digests, h. t.; = Bouv.=20 Inst. Index, h. t. As to the evidence to be given in actions of trover, = see=20 Rose. Civ. Ev. 395 to 412.

TROY WEIGHT. A weight less ponderous than the avoirdupois = weight, in=20 the proportion of seven thousand, for the latter, to five thousand seven = hundred=20 and sixty, to the former. Dane's Ab. Index, h. t. Vide Weights.

TRUCE, intern. law. An agreement between belligerent parties, = by which=20 they mutually engage to forbear all acts of hostility against each other = for=20 some time, the war still continuing. Burlamaqui's N. & P. Law, part = 4, c.=20 11, =A71.

2. Truces are of several kinds: general, extending to all the = territories and=20 dominions of both parties; and particular, restrained to particular = places; as,=20 for example, by sea, and not by land, &c. Id. part 4, c. 11, =A75. = They are=20 also absolute, indeterminate and general; or limited and determined to = certain=20 things, for example, to bury the dead. Ib. idem. Vide 1 Kent, Com. 159; = Com.=20 Dig. Admiralty, E 8; Bac. Ab.;Prerogative, D 4; League; Peace; War.

TRUE BILL, practice. These words are endorsed on a bill of = indictment,=20 when a grand jury, after having heard the witnesses for the government, = are of=20 opinion that there is sufficient cause to put the defendant on his = trial.=20 Formerly, the endorsement was Billa vera, when legal proceedings were in = Latin;=20 it is still the practice to write on the back of the bill Ignoramus, = when the=20 jury do not find it to be a true bill. Vide Grand Jury.

TRUST, contracts, devises. An equitable right, title or = interest in=20 property, real or personal, distinct from its legal ownership; or it is = a=20 personal obligation for paying, delivering or performing anything, where = the=20 person trusting has no real. right or security, for by, that act he = confides=20 altogether to the faithfulness of those intrusted. This is its most = general=20 meaning, and includes deposits, bailments, and the like. In its more = technical=20 sense, it may be defined to be an obligation upon a person, arising out = of a=20 confidence reposed in him, to apply property faithfully, and according = to such=20 confidence. Willis on Trustees, 1; 4 Kent, Com. 295; 2 Fonb. Eq. 1; 1 = Saund.=20 Uses and Tr. 6; Coop. Eq. Pl. Introd. 27; 3 Bl. Com. 431.

2. Trusts were probably derived from the civil law. The fidei = commissum, (q.=20 v.) is not dissimilar to a trust.

3. Trusts are either express or implied. 1st. Express trusts are = those which=20 are created in express terms in the deed, writing or will. The terms to = create=20 an express trust will be sufficient, if it can be fairly collected upon = the face=20 of the instrument that a trust was intended. Express trusts are usually = found in=20 preliminary sealed agreements, such as marriage articles, or articles = for the=20 purchase of land; in formal conveyances, such as marriage settlements, = terms for=20 years, mortgages, assignments for the payment of debts, raising portions = or=20 other purposes; and in wills and testaments, when the bequests involve = fiduciary=20 interests for private benefit or public charity,, they may be created = even by=20 parol. 6 Watts & Serg. 97.

4. - 2d. Implied trusts are those which without being expressed, are=20 deducible from the nature of the transaction, as matters of intent; or = which are=20 superinduced upon the transaction by operation of law, as matters of = equity,=20 independently of the particular intention of the parties.

5. The most common form of an implied trust is where property or = money is=20 delivered by one person to another, to be by the latter delivered to a = third=20 person. These implied trusts greatly extend over the business and = pursuits of=20 men: a few examples will be given.

6. When land is purchased by one man in the name of another, and the = former=20 pays the consideration money, the land will in general be held by the = grantee in=20 Trust for the person who so paid the consideration money. Com. Dig. = Chancery, 3=20 W 3; 2 Fonbl. Eq. book 2, c. 5, =A71, note a. Story, Eq. Jur. = =A71201.

7. When real property is purchased out of partnership funds, and the = title is=20 taken in the name of one of the partners, he will hold it in trust for = all the=20 partners. 7 Ves. jr. 453; Montague on Partn. 97, n.; Colly. Partn. = 68.

8. When a contract is made for the sale of land, in equity the vendor = is=20 immediately deemed a trustee for the vendee of the estate; and the = vendee, a=20 trustee for the vendor of the purchase money; and by this means there is = an=20 equitable conversion of the property. 1 Fonbl. Eq. book 1, ch. 6, =A79, = note t;=20 Story, Eq. Jur. SSSS 789, 790, 1212. See Conversion. For the origin of = trusts in=20 the civil law, see 5 Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 1, n. 18; 1 = Brown's=20 Civ. Law, 190. Vide Resulting Trusts. See, generally, Bouv. Inst. Index, = h.=20 t.

TRUSTEE, estates. A trustee is one to whom an estate has been = conveyed=20 in trust.

2. The trust estate is not subject to the specialty or judgment debts = of the=20 trustee, to the dower of his wife, or the curtesy of the hushand of a = female=20 trustee.

3. With respect to the duties of trustees, it is held, in conformity = to the=20 old law of uses, that pernancy of the profits, execution of estates, and = defence=20 of the land, are the three great properties of a trust, so that the = courts of=20 chancery will compel trustees, 1. To permit the cestui que trust to = receive the=20 rents and profits of the land. 2. To execute such conveyances, in = accordance=20 with the provisions of the trust, as the cestui que trust shall direct. = 3. To=20 defend the title of the land in any court of law or equity. Cruise, Dig. = tit.=20 12, c. 4, s. 4.

4. It has been judiciously remarked by Mr. Justice Story, 2 Eq. Jur. = =A71267,=20 that in a great variety of cases, it is not easy to say what the duty of = a=20 trustee is; and that therefore, it often becomes indispensable for him, = before=20 he acts, to seek, the aid and direction of a court of equity. Fonbl. Eq. = book 2,=20 c. 7, =A72, and note c. Vide Vin. Ab. tit. Trusts, O, P, Q, R, S, T; = Bouv. Inst.=20 Index, h. t.

TRUSTEE PROCESS, practice. In Massacchusetts, this is a = process given=20 by statute, in imitation of the foreign attachment of the English = law.

2. By this process, a creditor may attach any property or credits of = his=20 debtor in the hands of a third person. This third person is, in the = English law,=20 called the garnishee; in Massachusetts, he is the trustee. White's Dig. = tit.=20 148. Vide Attachment.

TRUSTER. He who creates a trust. A convenient term used in the = laws of=20 Scotland. 1 Bell's Com. 321, 6th ed.

TRUTH. The actual state of things.

2. In contracts, the parties are bound to toll the truth in their = dealings,=20 and a deviation from it will generally avoid the contract; Newl. on = Contr.=20 352-3; 2 Burr. 1011; 3 Campb. 285; and even concealment, or suppressio = veri,=20 will be considered fraudulent in the contract of insurance. 1 Marsh. on = Ins.=20 464; Peake's N. P. C. 115; 3 Campb. 154, 506.

3. In giving his testimony, a witness is required to tell the truth, = the=20 whole truth, and nothing but the truth; for the object in the = examination of=20 matters of fact, is to ascertain truth.

4. When a defendant is sued civilly for slander or a libel, he may = justify by=20 giving the truth in evidence; but when a criminal prosecution is = instituted by=20 the commonwealth for a libel, he cannot generally justify by giving the = truth in=20 evidence.

5. The constitutions of several of the United States have made = special=20 provisions in favor of giving the truth in evidence in prosecutions for = libels,=20 under particular circumstances. In the constitutions of Pennsylvania, = Delaware,=20 Tennessee, Kentucky, Ohio, Indiana and Illinois, it is declared, that in = publications for libels on men in respect to their public official = conduct, the=20 truth may be given in evidence, when the matter published was proper for = public=20 information. The constitution of New York declares, that in all = prosecutions or=20 indictments for libels, the truth may be given in evidence to the jury; = and if=20 it shall appear to the jury that the matter charged as libelous, is = true, and=20 was published with good motives and for justifiable ends, the party = shall be=20 acquitted. By constitutional provision in Mississippi and Missouri, and = by=20 legislative enactment in New Jersey, Arkansas, Tennessee, Act of 1805, = c. 6: and=20 Vermont, Rev. Stat. tit. 11, c. 25, s. 68; the right to give the truth = in=20 evidence has been more extended; it applies to all prosecutions or = indictments=20 for libels, without any qualifications annexed in restraint of the = privilege.=20 Cooke on Def. 61.

TUB, measures. In mercantile law, a tub is a measure = containing sixty=20 pounds weight of tea; and from fifty-six to eighty-six pounds of = camphor.=20 Jacob's Law Dict. h. t.

TUB-MAN, Eng. law. A barrister who has a pre-audience in the=20 Exchequer, and also one who has a particular place in court, is so = called.

TUMBREL, punishment. A species of cart; according to Lord = Coke, a=20 dung-cart.

2. This instrument, like the pillory, was used as a means of = exposure; and=20 according to some authorities, it seems to have been synonymous with the = trebucket or ducking stool. 1 Chit. Cr. Law, 797; 3 Inst. 219; 12 Serg. = &=20 Rawle, 220. Vide Com. Dig. h. t.; Burn's Just. Pillory and Tumbrel.

TUN, measure. A vessel of wine or oil, containing four = hogsheads.

TURBARY, Eng. law. A right to dig turf; an easement.

TURNKEY. A person under the superintendence of a jailor, whose = employment is to open and fasten the prison doors and to prevent the = prisoners=20 from escaping.

2. It is his duty to use due diligence, and he may be punished for = gross=20 neglect or wilful misconduct in permitting prisoners to escape.

TURNPIKE. A public road paved with stones or other hard = substance.

2. Turnpike roads are usually made by corporations to which a power = to make=20 them has been granted. The grant of such power passes not only an = easement for=20 the road itself, but also so much land as is connected with it; as, for=20 instance, for a toll house and a cellar under it, and a well for the use = of the=20 family. 9 Pick. R. 109. A turnpike is a public highway, and a building = erected=20 before the turnpike was made, though upon a part out of the travelled = path, if=20 continued there is a nuisance. 16 Pick. R. 175. Vide Road; Street; = Way.

TURPIS CAUSA, contracts. A base or vile consideration, = forbidden by=20 law, which makes the contract void; as a contract, the consideration of = which is=20 the future illegal cohabitation of the obligee with the obligor.

TURPITUDE. Everything done contrary to justice, honesty, = modesty or=20 good morals, is said to be done with turpitude.

TUTELAGE. State of guardianship; the condition of one who is = subject=20 to the control of a guardian.

TUTOR, civil law. A person who has been lawfully appointed to = the care=20 of the person and property of a minor.

2. By the laws of Louisiana minors under the age of fourteen years, = if males,=20 and under the age of twelve years, if females, are both, as to their = persons and=20 their estates, placed under the authority of a tutor. Civ. Code, art. = 263. Above=20 that age, and until their, majority or emancipation, they are placed = under the=20 authority of a curator. Ibid.

TUTOR ALIENUS, Eng. law. The name given to a stranger who = enters into=20 the lands of an infant within the age of fourteen), and takes the = profits.

2. He may be called to an account by the infant, and be charged as = guardian=20 in socage. Litt. s. 124; Co. Litt. 89 b, 90 a Hargr. n. 1.

TUTOR PROPRTUS. The name given to one who is rightly a = guardian in=20 socage in contradistinction, to a tutor alienus. (q. v.)

TUTORSHIP. The power which an individual, sui juris, has to = take care=20 of the person of one who is unable to take care of himself. Tutorship = differs=20 from curatorship, (q. v.) Vide Pro-curator; Pro-tutor; Undertutor.

TUTRIX. A woman who is appointed to the office of a tutor.

TWELVE TABLES. The name given to a code of Roman laws, = commonly called=20 the Law of the Twelve Tables. (q. v.)

TWENTY YEARS. The lapse of twenty years raises a presumption = of=20 certain facts, and after such a time, the party against whom the = presumption has=20 been raised, will be required to prove a negative to establish his = rights.

2. After twenty years from the time it became due, a bond will be = presumed to=20 have been paid. 2 Cranch, 180; 3 Day, 289; 1 McCord, 145; 2 N. & = McC. 160; 1=20 Bay. 482; 9 Watts, 441; 2 Speers, 357. And the same presumption arises = that a=20 judgment has been paid, if no steps have been taken by the plaintiff for = twenty=20 years after its rendition. 3 Brev. 476; 5 Conn. 1.

3. But the presumption of such payment is easily rebutted, by showing = that=20 interest has been regularly paid. 1 Bailey, 148; that the obliger has = admitted=20 it has not been paid 2 Harring, 124; 9 N. H. Rep. 398; or other = circumstances=20 calculated to rebut the presumption. The proof of facts which show that = the=20 obligor was poor and not likely to be able to pay the debt, is not = sufficient. 5=20 Verm. 236.

4. When a debt is payable in instalments and secured by a penal bond, = the=20 presumption of payment arising from lapse of time applies to each = instalment as=20 it falls due. 3 Harring. 421.

5. By the English act of limitation, 21 Jac. 1, c. 16, the period = during=20 which a possessory action for land can be sustained is fixed at twenty = years, so=20 that an adverse possession of twenty years is a bar to an action of = ejectment,=20 and such lapse of time gives a possessory title to the land. This period = has=20 been adopted in many of the states of the Union, but there has been some = variation in others. See Limitation of actions.

6. But this statute did not affect incorporeal hereditaments, which = remained=20 as before. In analogy to the act of limitation the courts presumed a = grant after=20 twenty years adverse possession. Ana new grants are presumed upon proof = of an=20 adverse, exclusive, and uninterrupted enjoyment of an incorporeal = hereditament=20 at the end of twenty years. And the burden of proving that the = possession was=20 adverse, that is, under a claim of title, with the knowledge or = acquiescence of=20 the owner of the land; and also that it was uninterrupted, rests on the = party=20 claiming such incorporeal hereditaments. 3 Kent, 441; 1 Cheves, R. 2; 4 = Mason,=20 402; 2 Roll. Ab. 269; 2 Greenl. Ev. 444.

7. The time of enjoyment of a former owner who is in privity with the = claimant, can, in general, be joined to his own in order to make up the = period=20 of twentv years, as in the case of the heir and ancestor, of grantor and = grantee. 9 Pick. 251. But the enjoyment of a former owner whose title = has=20 escheated to the state by forfeiture, cannot be added to the time of the = enjoyment of the grantee of the state. 2 Greenl. Ev. 543.

TYBURN TICKET, Eng. late. A certificate given to the = prosecutor of a=20 felon to conviction, is so called.

2. By the 10 & 11. W. III., c. 23, the original proprietor or = first=20 assignee of such certificate is exempted from all and all manner of = parish and=20 ward offices within the parish or ward where the felony shall have been=20 committed. Bac. Ab. Constable, C.

TYRANNY, government. The violation of those laws which = regulate the=20 division and the exercises of the sovereign power of the state. It is a=20 violation of -its constitution.

TYRANT, government. The chief magistrate of the state, whether = legitimate or otherwise, who violates the constitution to act = arbitrarily=20 contrary to justice. Toull. tit. prel. n. 32.

2. The term tyrant and usurper, are sometimes used as synonymous, = because=20 usurpers are almost always tyrants; usurpation is itself a tyrannical = act, but=20 properly speaking, the words usurper and tyrant convey different ideas. = A king=20 may become a tyrant, although legitimate, when he acts despotically; = while a=20 usurper may cease to be a tyrant by governing according to the dictates = of=20 justice.

3. This term is sometimes applied to persons in authority who violate = the=20 laws and act arbitrarily towards others. Vide Despotism.

Index

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