Bouvier's Law Dictionary, 1856 Edition

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Bouvier's Law Dictionary
1856 Edition

UBERRIMA FIDES. Perfect good faith; abundant good faith.

2. This phrase is used to express that a contract must be made in = perfect=20 good faith, concealing nothing; as in the case of insurance, the insured = must=20 observe the most perfect good faith towards the insurer. 1 Story, Eq. = Jur. =A7317;=20 3 Kent, Com. 283, 4th ed.

UKAAS, or UKASE. The name of a law or ordinance emanating from = the=20 czar of Russia.

ULLAGE, com. law. When a cask is gauged, what it wants of = being full=20 is called ullage.

ULTIMATUM. The last proposition made in making a contract, a = treaty,=20 and the like; as, the government of the United States has given its = ultimatum,=20 has made the last proposition it will make to complete the proposed = treaty. The=20 word also means the result of a negotiation, and it comprises the final=20 determination of the parties concerned in the object in dispute.

ULTIMUM SUPPLICIUM. The last or extreme punishment; the = penalty of=20 death.

ULTIMUS HAERES. The last or remote heir; the lord. So called = in=20 contra-dis-tinction to the haeredes proximus, (q. v.) and the haeredes=20 remotiores. (q. v.) Dalr Feud. Pr. 110.

UMPIRAGE. The decision of an umpire. This word is used for the = judgment of an umpire, as the word award is employed to designate that = of=20 arbitrators.

UMPIRE. A person selected by two or more arbitrators. When = they are=20 authorize to do so by the submission of the parties, and they cannot = agree as to=20 the subject-matter referred to them, whose duty it is to decide the = matter in=20 dispute. Sometimes the term is applied to a single arbitrator, selected = by the=20 parties themselves. Kyd on Awards, 6, 75, 77 Caldw. on Arb. 38; Dane's = Ab.=20 Index, h. t.; 3 Vin. Ab. 93; Com. Dig. Arbitrament, F; 4 Dall. 271, 432; = 4 Sco.=20 N. S. 378; Bouv. Inst. Index, h. t.

UNA VOCE. With one voice unanimously.

UNALIENABLE. The state of a thing or right which cannot be = sold.

2. Things which are not in commerce, as public roads, are in their = nature=20 unalienable. Some things are unalienable, in consequence of particular=20 provisions in the law forbidding their sale or transfer, as pensions = granted by=20 the government. The natural rights of life and liberty are = unalienable.

UNANIMITY. The agreement of all the persons concerned in a = thing in=20 design and opinion.

2. Generally a simple majority (q. v.) of any number of persons is = sufficient=20 to do such acts as the whole number can do; for example, a majority of = the=20 legislature can pass a law: but there are some cases in which unanimity = is=20 required; for example, a traverse jury, composed of twelve individuals, = cannot=20 decide an issue submitted to them, unless they are unanimous.

UNCERTAINTY. That which is unknown or vague. Vide = Certainty.

UNCONDITIONAL. That which is without condition; that which = must be=20 performed without regard to what has happened or may happen.

UNCONDITIONAL CONTRACT, contracts. One which does not depend = upon any=20 condition whatever. 1 Bouv. Inst. n. 730.

UNCONSCIONABLE BARGAIN, contracts. A contract which no man in = his=20 senses, not under delusion, would make, on the one hand, and which no = fair and=20 honest man would accept, on the other. 4 Bouv. Inst. n. 3848.

UNCONSTITUTIONAL. That which is contrary to the = constitution.

2. When an act of the legislature is repugnant or contrary to the=20 constitution, it is, ipso facto, void. 2 Pet. R. 522; 12 Wheat. 270; 3 = Dall.=20 286; 4 Dall. 18.

3. The courts have the power, and it is their duty, when an act is=20 unconstitutional, to declare it to be so; but this will not be done = except in a=20 clear case and, as an additional guard against error, the supreme court = of the=20 United States refuses to take up a case involving constitutional = questions, when=20 the court is not full. 9 Pet. 85. Vide 6 Cranch, 128; 1 Binn. 419; 5 = Binn. 355;=20 2 Penns 184; 3 S. & R. 169; 7 Pick. 466; 13 Pick. 60; 2 Yeates, 493; = 1 Virg.=20 Cas. 20; 1 Blackf. 206 6 Rand. 245 1 Murph. 58; Harper, 385 1 Breese, = 209 Pr.=20 Dee. 64, 89; 1 Rep. Cons. Ct. 267 1 Car. Law Repos. 246 4 Munr. 43; 5 = Hayw. 271;=20 1 Cowen, 550; 1 South. 192; 2 South. 466; 7 N H. Rep. 65, 66; 1 Chip, = 237, 257;=20 10 Conn. 522; 7 Gill & John. 7; 2 Litt. 90; 3 Desaus. 476.

UNCORE PRIT, pleading. This barbarous phrase of old French, = which is=20 the same with encore pret, yet ready, is used in a plea in bar to an = action of=20 debt on a bond due at a day past; when the defendant pleads a tender on = the day=20 it became due, and adds that he is uncore prit, still ready to pay the = same. 3=20 Bl. Com. 303; Doct. Pl. 526 Dane's Ab. Index, h. t. Vide tout temps = prist.

UNDE NIHIL HABET. Of which she has nothing. When no dower had = been=20 assigned to the widow during the time prescribed by law, she could, at = common=20 law, sue out a writ of dower unde nihil habet. 3 Bl. Com. 183.

UNDERLEASE, contracts. An alienation by a tenant of a part of = his=20 lease, reserving to himself a reversion; it differs from an assignment, = which is=20 a transfer of all the tenant's interest in the lease. 3 Wils. 234; S. C. = Bl.=20 Rep. 766. And even a conveyance of the whole estate by the lessee, = reserving to=20 himself the rent, with a power of re-entry for non-payment, was held to = be, not=20 an assignment, but an underlease. Str. 405. In Ohio it has been decided = that the=20 transfer of only a part of the lands, though for the whole term, is an=20 underlease; 2 Ohio, R. 216; in Kentucky, such a transfer, on the = contrary, is=20 considered as an assignment. 4 Bibb. R. 538.

2. In leases there is frequently introduced a covenant on the part of = the=20 lessee, that he will not underlet the premises, nor assign the lease. = This=20 refers to the voluntary act of the tenant, and the covenant is not = broken when=20 the lease is transferred without any act on his part; as, if it be sold = by the=20 sheriff on execution, or by assignees in bankruptcy, or by an executor. = 8 T. R.=20 57; 3 M. & S. 353; 1 Ves. 295.

3. The underlessor has a right to distrain for the rent due to him, = which,=20 the assignor of a lease has not. The under-lessee is not liable = personally to=20 the original lessor, nor is his property subject to his claim for rent = longer=20 than while it is on the leased premises, when it may be distrained upon. = The=20 assignee of the lessee stands in a different situation. He is liable to = an=20 action by the landlord or his assignee for the rent, upon the ground of = privity=20 of estate. 1 Hill. Ab. 125, 6; 4 Kent, Com. 95; 9 Pick. R. 52; 14 Mass. = 487; 5=20 Watts, R. 134. Vide 2 Bl. R. 766; 3 Wils. 234; 4 Campb. 73; Bouv. Inst. = Index,=20 tit. Underletting. Vide Estate for years; Lease; Lessee; Notice to quit; = Tenant=20 for years.

UNDER-SHERIFF. A deputy of a sheriff. The principal is called=20 high-sheriff, and the deputy the under-sheriff. Vide 1 Phil . Ev. Index, = h.=20 t.

UNDER-TENANT. One who holds by virtue of an underlease. (q. = v.) See=20 Subtenant.

UNDERTAKING, contracts. An engagement by one of the parties to = a=20 contract to the other, and not the mutual engagement of the parties to = each=20 other; a promise. 5 East, R. 17; 2 Leon. 224, 5; 4 B, & A. 595.

UNDERTOOK. Assumed; promised.

2. This is a technical word which ought to be inserted in every = declaration=20 of assumpsit, charging that the defendant undertook to perform the = promise which=20 is the foundation of the suit; and this though the promise be founded on = a legal=20 liability, or would be implied in evidence. Bac. Ab Assumpsit, F; 1 = Chit. Pl.=20 88, note p.

UNDER-TUTOR, law of Louisiana. In every tutorship, there shall = be an=20 undertutor, whom it shall be the duty of the judge to appoint at the = time=20 letters of tutorship are certified for the tutor.

2. It is the duty of the under-tutor to act for the minor, whenever = the=20 interest of the minor is in opposition to the interest of the tutor. = Civil Code,=20 art. 300, 301; 1 N. S. 462; 9 M. R. 643; 11 L. R. 189; Poth. Des = Personnes,=20 partie prem. tit. 6, s. 5, art. 2. Vide Pro-curator; Protutor.

UNDERWRITER, insurances. One who signs a policy of insurance, = by which=20 he becomes an insurer.

2. By this act he places himself as to his responsibility, in the = place of=20 the insured. He may cause a re-insurance (q. v.) to be made for his = benefit; and=20 it is his duty to act with good faith, and, without quibbling, to pay = all just=20 demands against him for losses. Marsh. Ins. 45,

UNDIVIDED. That which is held by the same title by two or more = persons, whether their rights are equal, as to value or quantity, or = unequal.=20

2. Tenants in common, joint-tenants, and partners, hold an undivided = right in=20 their respective properties, until partition has been made. The rights = of each=20 owner of an undivided thing extends over the whole and every part of it, = totum=20 in toto, et totum in qualibet parte. Vide Partition; Per my et per tout. =

UNICA TAXATIO, practice. The ancient language of a special = award of=20 venire, where of several defendants, one pleads, and one lets judgment = go by=20 default, whereby the jury, who are to try and assess damages on the = issue, are=20 also to assess damages against the defendant suffering judgment by = default.=20 Lee's Dict. h. t.

UNILATERAL CONTRACT, civil law. When the party to whom an = engagement=20 is made, makes no express agreement on his part, the contract is called=20 uni-lateral, even in cases where the law attaches certain obligations to = his=20 acceptance. Civ. Code of Lo. art. 1758. Code Nap. 1103. A loan of money, = and a=20 loan for use, are of this kind. Poth. Obl. part 1, c. 1, s. 1, art. 2; = Lee.=20 Elemen. =A7781.

UNINTELLIGIBLE. That which cannot be understood.

2. When a law, a contract, or will, is unintelligible, it has no = effect=20 whatever. Vide Construction, and the authorities there referred to.

UNIO PROLIUM. A species of adoption used among the Germans; it = signifies union of descent. It takes place when a widower, having = children,=20 marries a widow, who also has children. These parents then agree that = the=20 children of both marriages shall have the rights to their succession, as = those=20 which may be the fruits of their marriage. Lec. Elem. =A7187.

UNION. By this word is understood the United States of = America; as,=20 all good citizens will support the Union.

UNITED STATES OF AMERICA. The name of this country. The United = States,=20 now thirty-one in number, are Alabama, Arkansas, Connecticut, Delaware, = Florida,=20 Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland,=20 Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New = Jersey, New=20 York North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina,=20 Tennessee, Texas, Vermont, Virginia, Wisconsin, and California.

2. The territory of which these states are composed was at one time = dependent=20 generally on the crown of Great Britain, though governed by the local=20 legislatures of the country. It is not within the plan of this work to = give a=20 history of the colonies; on this subject the reader is referred to = Kent's Com.=20 sect. 10; Story on the Constitution, Book 1; 8 Wheat. Rep. 543; = Marshall, Hist.=20 Colon.

3. The neglect of the British government to redress grievances which = had been=20 felt by the people, induced the colonies to form a closer connexion than = their=20 former isolated state, in the hopes that by a union they might procure = what they=20 had separately endeavored in vain, to obtain. In 1774, Massachusetts = recommended=20 that a congress of the colonies should be assembled to deliberate upon = the state=20 of public affairs; and on the fourth of September of the following year, = the=20 delegates to such a congress assembled in Philadelphia. Connecticut, = Delaware,=20 Maryland, Massachusetts, New Hampshire, New Jersey, New York, North = Carolina,=20 Pennsylvania, Rhode Island, South Carolina, and Virginia, were = represented by=20 their delegates; Georgia alone was not represented. This congress, thus=20 organized, exercised de facto and de jure, a sovereign authority, not as = the=20 delegated agents of the governments de facto of the colonies, but in = virtue of=20 the original powers derived from the people. This, which was called the=20 revolutionary government, terminated only when superseded by the = confederated=20 government under the articles of confederation, ratified in 1781. Serg. = on the=20 Const. Intr. 7, 8.

4. The state of alarm and danger in which the colonies then stood = induced the=20 formation of a second congress. The delegates, representing all the = states, met=20 in May, 1775. This congress put the country in a state of defence, and = made=20 provisions for carrving on the war with the mother country; and for the = internal=20 regulations of which they were then in need; and on the fourth day of = July,=20 1776, adopted and issued the Declaration of Independence. (q. v.) The = articles=20 of confederation, (q. v.) adopted on the first day of March, 1781, 1 = Story on=20 the Const. =A7225; 1 Kent's Comm. 211, continued in force until the = first=20 Wednesday in March, 1789, when the present constitution was adopted. 5 = Wheat.=20 420.

5. The United States of America are a corporation endowed with the = capacity=20 to sue and be sued, to convey and receive property. 1 Marsh. Dec. 177, = 181. But=20 it is proper to observe that no suit can be brought against the United = States=20 without authority of law.

6. The states, individually, retain all the powers which they = possessed at=20 the formation of the constitution, and which have not been given to = congress.=20 (q. v.)

7. Besides the states which are above enumerated, there are various=20 territories, (q. v.) which are a species of dependencies of the United = States.=20 New states may be admitted by congress into this union; but no new state = shall=20 be formed or erected within the jurisdiction of any other state, nor any = state=20 be formed by the junction of two or more states, or parts of states, = without the=20 consent of the legislatures of the states concerned, as well as of = congress.=20 Const. art. 4, s. 3. And the United States shall guaranty to every state = in this=20 union, a republican form of government. Id. art. 4, s. 4. See the names = of the=20 several states; and Constitution of the United States.

UNITY, estates. An agreement or coincidence of certain = qualities in=20 the title of a joint estate or an estate in common.

2. In a joint estate there must exist four unities; that of interest, = for a=20 joint-tenant cannot be entitled to one period of duration or quantity of = interest in lands, and the other to a different; one cannot be tenant = for life,=20 and the other for years: that of title, and therefore their estate must = be=20 created by one and, the same act; that of time, for their estates must = be vested=20 at one and the same period, as well as by one and the same title; and = lastly,=20 the unity of possession: hence joint-tenants are seised per my et per = tout, or=20 by the half or moiety and by all: that is, each of them has an entire=20 possession, as well of every parcel as of the whole. 2 Bl. Com. 179-182; = Co.=20 Litt. 188.

3. Coparceners must have the unities of interest, title, and = possession.

4. In tenancies in common, the unity of possession is alone required. = 2 Bl.=20 Com. 192; 2 Bouv. Inst. n. 1861-83. Vide Estate in Common; Estate in=20 Joint-tenancy; Joint-tenants; Tenant in Common; Tenants, Joint.

UNITY OF POSSESSION. This term is used to designate the = possession by=20 one person of several estates or rights. For example, a right to an = estate to=20 which an easement is attached, or the dominant estate, and to an estate = which an=20 easement encumbers, or the servient estate, in such case the easement is = extinguished. 3 Mason, Rep. 172; Poph. 166; Latch, 153; and vide Cro. = Jac. 121.=20 But a distinction has been made between a thing that has being by = prescription,=20 and one that has its being ex jure naturae; in the former case unity of=20 possession will extinguish the easement; in the latter, for example, the = case of=20 a water course, the unity will not extinguish it. Poth. 166.

2. By the civil code of Louisiana, art. 801, every servitude is=20 extin-guished, when the estate to which it is due, and the estate owing = it, are=20 united in the same hands. But it is necessary that the whole of the two = estates=20 should belong to the same proprietor; for if the owner of one estate = only=20 acquires the other in part or in common with another person, confusion = does not=20 take effect. Vide Merger.

UNIVERSAL LEGACY. A term used among civilians. An universal = legacy is=20 a testamentary disposition, by which the testator gives to one or = several=20 persons the whole of the property which he leaves at his decease. Civil = Code of=20 Lo. art. 1599; Code Civ. art. 1003; Poth. Donations testamentaires, c. = 2, sect.=20 1, =A72.

UNIVERSAL PARTNERSHIP. The name of a specie's of partnership = by which=20 all the partners agree to put in common all their property, universorum = bonorum,=20 not only what they then have, but also what they shall acquire. Poth. Du = Contr.=20 de Societe, n. 29.

2. In Louisiana, universal partnerships are allowed, but properly = which may=20 accrue to one of the parties, after entering into the partnership, by = donation,=20 succession, or legacy, does not become common stock, and any stipulation = to that=20 effect, previous to the obtaining the property aforesaid, is void. Civ. = Code,=20 art. 2800.

UNIVERSITY. The name given to certain societies or = corporations which=20 are seminaries of learning where youth are sent to finish their = education. Among=20 the civilians by this term is understood a corporation.

UNJUST. That which is done against the perfect rights of = another; that=20 which is against the established law; that which is opposed to a law = which is=20 the test of right and wrong. 1 Toull. tit. prel. n. 5; Aust. Jur. 276, = n.; Hein.=20 Lec. El. =A71080.

UNKNOWN. When goods have been stolen from some person unknown, = they=20 may be so described in the indictment; but if the owner be really known, = an=20 indictment alleging the property to belong to some person unknown is = improper. 2=20 East's P. C. 651 1 Hale, P. C. 512; Holt's N. P. C. 596 S. C. 3 Engl. = Common Law=20 Rep. 191; 8 C. & P. 773. Vide Indictment; Quidam.

UNLAWFUL. That which is contrary to law.

2. There are two kinds of contracts which are unlawful; those which = are void,=20 and those which are not. When the law expressly prohibits the = transaction in=20 respect of which the agreement is entered into and declares it to be = void, it is=20 absolutely so. 3 Binn. R. 533. But when it is merely prohibited, without = being=20 made void, although unlawful, it is not void. 12 Serg. & Rawle, 237; = Chitty,=20 Contr. 230; 23 Amer. Jur. 1 to 23; 1 Mod. 35; 8 East, R. 236, 237; 3 = Taunt. R.=20 244; Hob. 14. Vide Condition; Void.

UNLAWFUL ASSEMBLY, crim. law. A disturbance of the public = peace by=20 three or more persons who meet together with an intent mutually to = assist each=20 other in the execution of some unlawful enterprise of a private nature, = with=20 force and violence; if they move forward towards its execution, it is = then a=20 rout (q. v.) and if they actually execute their design, it amounts to a = riot.=20 (q. v.) 4 Bl. Com. 140; 1 Russ. on Cr. 254; Hawk. c. 65, s. 9; Com. Dig. = Forcible Entry, D 10; Vin. Abr. Riots, &c., A.

UNLAWFULLY, pleadings. This word is frequently used in = indictments in=20 the description of the offence; it is necessary when the crime did not = exist at=20 common law, and when a statute, in describing an offence which it = creates, uses=20 the word, 1 Moody, Cr. Cas. 339; but it is unnecessary whenever the = crime=20 existed at common law, and is manifestly illegal. 1 Chitty, Crim. Law, = *241;=20 Hawk. B. 2, c. 95, s. 96; 2 Roll. Ab. 82; Bac. Abr. Indictment, G 1 Cro. = C. C.=20 38, 43.

UNLIQUIDATED DAMAGES. Such damages, as are unascertained. In = general=20 such damages cannot be set-off. No interest will be allowed on = unliquidated=20 damages. 1 Bouv. Inst. n. 1108. See Liquidated, Liquidated Damages.

UNQUES, law French. Yet. This barbarous word is frequently used in = pleas as,=20 Ne unques executor, Ne unquas guardian, Ne unques accouple; and the = like.

UNSOUND MIND; UNSOUND MEMORY. These words have been adopted in = several=20 statutes, and sometimes indiscriminately used to signify, not only = lunacy, which=20 is periodical madness, but also a permanent adventitious insanity as=20 distinguished from idiocy. 1 Ridg. Parl. Cases, 518; 3 Atk. 171.

2. The term unsound mind seems to have been used in those statutes in = the=20 same sense as insane; but they have been said to import that the party = was in=20 some such state as was contradistinguished from idiocy and from lunacy, = and yet=20 such is made him a proper subject of a commission to inquire of idiocy = and=20 lunacy. Shelf. on Lun. 5; Ray, Med. Jur. Prel. =A78; Hals. Med. Jur. = 336; 8 Ves.=20 66; 19 Ves. 286; 1 Beck's Med. Jur. 573; Coop. Ch. Cas. 108; 12 Ves. = 447; 2 Mad.=20 Ch. Pr. 731, 732.

UNSOUNDNESS. Vide Crib-biting; Roaring; Soundness.

UNWHOLESOME FOOD. Food not fit to be eaten; food which, if = eaten,=20 would be injurious.

2. Although the law does not in general consider a sale to be a = warranty or=20 goodness of the quality of a personal chattel, yet it is otherwise with = regard=20 to food and liquor when sold for consumption. 1 Roll. Ab. 90, pl. 1 and = 2.

UPLIFTED HAND. When a man accused of a crime is arraigned, he = is=20 required to raise his hand, probably in order to identify the person who = pleads.=20 Perhaps for the same reason when a witness adopts a particular mode of = taking an=20 oath, as when he does not swear upon the gospel, but upon Almighty God, = he is=20 requested to hold up his hand.

URBAN. Relating to a city; but in a more general sense it = signifies=20 relating to houses.

2. It is used in this latter sense in the civil code of Louisiana, = articles=20 706 and 707. All servitudes are established either for the use of houses = or for=20 the use of lands. Those of the first kind are called urban servitudes, = whether=20 the buildings to which they are due be situated in the city or in the = country.=20 Those of the second kind are called rural servitudes.

3. The principal kinds of urban servitudes are the following: the = right of=20 support; that of drip; that of drain, or of preventing the drain, that = of view=20 or of lights, or of preventing the view or lights from being obstructed: = that of=20 raising buildings or walls, or of preventing them from being raised that = of=20 passage and that of drawing water. Vide 3 Toull. p. 441; Poth. Introd. = au tit.=20 13 de la Coutume d'Orleans, n. 2; Introd. Id. n. 2.

USAGE. Long and uniform practice. In its most extensive = meaning this=20 term includes custom and prescription, though it differs from them in a = narrower=20 sense, it is applied to the habits, modes, and course of dealing which = are=20 observed in trade generally, as to all mercantile transactions, or to = some=20 particular branches of trade.

2. Usage of trade does not require to be immemorial to establish it; = if it be=20 known, certain, uniform, reasonable, and not contrary to law, it is = sufficient.=20 But evidence of a few instances that such a thing has been done does not = establish a usage. 3 Watts, 178; 3 Wash. C. C. R. 150; 1 Gallis. 443; 5 = Binn.=20 287; 9 Pick. 426; 4 B. & Ald. 210; 7 Pet. 1; 2 Wash. C. C. R. 7. =

3. The usages of trade afford ground upon which a proper construction = may be=20 given to contracts. By their aid the indeterminate intention of parties = and the=20 nature and extent of their contracts arising from mere implications or=20 presumptions, and act of an equivocal character may be ascertained; and = the=20 meaning of words and doubtful expressions may become known. 2 Mete. 65; = 2 Sumn.=20 569; 2 G. & J. 136; 13 Pick. 182; Story on Ag. =A777; 2 Kent, Com. = 662, 3d=20 ed.; 5 Wheat. 326; 2 Car. & P. 525; 3 B. & Ald. 728; Park. on = Ins. 30; 1=20 Marsh. Ins. 186, n. 20; 1 Caines, 45 Gilp. 356, 486; 1 Edw. Ch. R. 146; = 1 N.=20 & M. 519; 15 Mass. 433; 1 Rill, R. 270; Wright, R. 573; Pet. C. C. = R. 230; 5=20 Hamm. 436 6 Pet. 715; 2 Pet. 148; 6 Porter, 123 1 Hall, 612; 9 Mass. = 155; 9=20 Wheat. 582 11 Wheat. 430; 1 Pet. 25, 89.

4. Courts will not readily adopt these usages, because they are not=20 unfrequently founded in mistake. 2 Sumn. 377. See 3 Chitt. Pr. 55; = Story, Confl.=20 of Laws, =A7270; 1 Dall. 178; Vaugh. 169, 383; Bouv. Inst. Index, h. t. =

USANCE, commercial law. The term usance comes from usage, and=20 signifies the time which by usage or custom is allowed in certain = countries, for=20 the payment of a bill of exchange. Poth. Contr. du Change, n. 15.

2. The time of one, two or three mouths after the date of the bill, = according=20 to the custom of the places between which the exchanges run.

3. Double or treble is double or treble the usual time, and half = usance is=20 half the time. Where it is necessary to divide a month upon a half = usance, which=20 is the case when the usance is for one month or three, the division,=20 notwithstanding the difference in the length of the months, contains = fifteen=20 days.

USE, estates. A confidence reposed in another, who was made = tenant of=20 the land or terre tenant, that he should dispose of the land according = to the=20 intention of the cestui que use, or him to whose use it was granted, and = suffer=20 him to take the profits. Plowd. 352; Gilb. on Uses, 1; Bac. Tr. 150, = 306;=20 Cornish on Uses, 1 3; 1 Fonb. Eq. 363; 2 Id. 7; Sanders on Uses, 2; Co. = Litt.=20 272, b; 1 Co. 121; 2 Bl. Com. 328; 2 Bouv. Inst. n. 1885, et seq.

2. In order to create a use, there must always be a good = Consideration;=20 though, when once raised, it may be passed by grant to a stranger, = without=20 consideration. Doct. & Stu. , Dial. ch. 22, 23; Rob. Fr. Conv. 87, = n.

3. Uses were borrowed from the fidei commissum (q. v.) of the civil = law; it=20 was the duty of a Roman magistrate, the praetor fidei commissarius, whom = Bacon=20 terms the particular chancellor for uses, to enforce the observance of = this=20 confidence. Inst. 2, 23, 2.

4. Uses were introduced into England by the ecclesiastics in the = reign of=20 Edward Ill or Richard II, for the purpose of avoiding the statutes of = mortmain;=20 and the clerical chancellors of those times held them to be fidei = commissa, and=20 binding in conscience. To obviate many inconveniencies and difficulties, = which=20 had arisen out of the doctrine and introduction of uses, the statute of = 274=20 Henry VIII, c. 10, commonly called the statute of uses, or in = conveyances and=20 pleadings, the statute for transferring uses into possession, was = passed. It=20 enacts, that "when any person shall be seised of lands, &c., to the = use,=20 confidence or trust of any other person or body politic, the person or=20 corporation entitled to the use in fee simple, fee tail, for life, or = years, or=20 otherwise, shall from thenceforth stand and be seised or possessed of = the land,=20 &c., of and in the like estate as they have in the use, trust or = confidence;=20 and that the estates of the persons so seised to the uses, shall be = deemed to be=20 in him or them that have the use, in such quality, manner, form and = condition,=20 as they had before in the use." The statute thus executes the use; that = is, it=20 conveys the possession to the use, and transfers the use to the = possession; and,=20 in this manner, making the cestui que use complete owner of the lands = and=20 tenements, as well at law as in equity. 2 Bl. Com. 333; 1 Saund. 254, = note=20 6.

5. A modern use has been defined to be an estate of right, which is = acquired=20 through the operation of the statute of 27 Hen. VIII., c. 10; and which, = when it=20 may take effect according to the rules of the common law, is called the = legal=20 estate; and when it may not, is denominated a use, with a term = descriptive of=20 its modification. Cornish on Uses, 35.

6. The common law judges decided, in the construction of this = statute, that a=20 use could not be raised upon a use; Dyer, 155 A; and that on a feoffment = to A=20 and his heirs, to the use of B and his heirs, in trust for C and his = heirs, the=20 statute executed only the first use, and that the second was a mere = nullity. The=20 judges also held that, as the statute mentioned only such persons as = were seised=20 to the use of others, it did not extend to a term of years, or other = chattel=20 interests, of which a termor is not seised but only possessed. Bac. Tr. = 336;=20 Poph. 76; Dyer, 369; 2 Bl. Com. 336; The rigid literal construction of = the=20 statute by the courts of law again opened the doors of the chancery = courts. 1=20 Madd. Ch. 448, 450.

USE, civil law. A right of receiving so much of the natural = profits of=20 a thing as is necessary to daily sustenance; it differs from usufruct, = which is=20 a right not only to use but to enjoy. 1 Browne's Civ. Law, 184; Lecons = Elem. du=20 Dr. Civ. Rom. =A7414, 416.

USE AND OCCUPATION. When a contract has been made, either by express = or=20 implied agreement, for the use of a house or other real estate, where = there was=20 no amount of rent fixed and ascertained, the landlord can recover a = reasonable=20 rent in an action of assumpsit for use and occupation. 1 Munf. R. 407; 2 = Aik. R.=20 252; 7 J. J. Marsh. 6; 4 Day, R. 228; 13 John. R. 240; 13 John. R. 297; = 4 H.=20 & M. 161; 15 Mass. R. 270; 2 Whart. R. 42; 10 S. & R. 251.

2. The action for use and occupation is founded not on a privity of = estate,=20 but on a privity of contract; 3 S. & R. 500; C. & N. 19; = therefore it=20 will not lie where the possession is tortious. 2 N. & M. 156; 3 S. = & R.=20 500; 6 N. H. Rep. 298; 6 Ham. R. 371; 14 Mass. R. 95. See Arch. L. & = T.=20 148.

USEFUL. That which may be put into beneficial practice.

2. The patent act of congress of July 4, 1836, sect. 6, in describing = the=20 subjects of patents, mentions "new and useful art," and "new and useful=20 improvement." To entitle the inventor to a patent, his invention must, = to a=20 certain extent, be beneficial to the community, and not be for an = unlawful=20 object, or frivolous, or insignificant. 1 Mason, 182; 1 Pet. C. C. R. = 322; 1=20 Bald. 303; 14 Pick. 217; Paine, 203.

USHER. This word is said to be derived from a huissier, and is = the=20 name of an inferior officer in some English courts of law Archb. Pr. = 25.

USUCAPTION, civil law. The manner of acquiring property in = things by=20 the lapse of time required by law.

2. It differs from prescription, which has the same sense, and means, = in=20 addition, the manner of acquiring and losing, by the effect of time = regulated by=20 law, all sorts of rights and actions. Merl. Repert. mot Prescription, = tom. xii.=20 page 671; Ayl. Pand. 320; Wood's Inst. Civ. Law, 165; Lecons Elem. du = Dr. Rom.=20 =A7437; 1 Browne's Civ. Law, 264, n.; vattel, ii. 2, c. 2, =A7140.

USUFRUCT, civil law. The right of enjoying a thing, the = property of=20 which is vested in another, and to draw from the same all the profit, = utility=20 and advantage which it may produce, provided it be without altering the=20 substance of the thing.

2. The obligation of not altering the substance of the thing, = however, takes=20 place only in the case of a complete usufruct.

3. Usufructs are of two kinds; perfect and imperfect. Perfect = usufruct, which=20 is of things which the usufructuary can enjoy without altering their = substance,=20 though their substance may be diminished or deteriorated naturally by = time or by=20 the use to which they are applied; as a house, a piece of land, animals, = furniture and other movable effects. Imperfect or quasi usufruct, which = is of=20 things which would be useless to the usufructuary if be did not consume = and=20 expend them, or change the substance of them, as money, grain, liquors. = Civ.=20 Code of Louis. art. 525, et seq.; 1 Browne's Civ. Law, 184; Poth. Tr. du = Douaire, n. 194; Ayl. Pand. 319; Poth. Pand. tom. 6, p. 91; Lecons El. = du Dr.=20 Civ. Rom. 414 Inst. lib. 2, t. 4; Dig. lib. 7, t. 1, 1. 1 Code, lib. 3, = t. 33; 1=20 Bouv. Inst. Theolo. ps. 1, c. 1, art. 2, p. 76.

USUFRUCTUARY, civil law. One who has the right and enjoyment = of an=20 usufruct.

2. Domat, with his usual clearness, points out the duties of the=20 usufructuary, which are, 1. To make an inventory of the things subject = to the=20 usu-fruct, in the presence of those having an interest in them. 2. To = give=20 secur-ity for their restitution; when the usufruct shall be at an end. = 3. To=20 take good care of the things subject to the usufruct. 4. To pay all = taxes, and=20 claims which arise while the thing is in his possession, as a = ground-rent. 5. To=20 keep the thing in repair at his own expense. Lois Civ. liv. 1, t. 11, s. = 4. See=20 Estate for life.

USURPATION, torts. The unlawful assumption of the use of = property=20 which belongs to another; an interruption or the disturbing a man in his = right=20 and possession. Toml. Law Dict. h. t.

2. According to Lord Coke, there are two kinds of usurpation. 1. When = a=20 stranger, without right, presents to a church, and his clerk is = admitted; and,=20 2. When a subject uses a franchise of the king without lawful authority. = Co.=20 Litt. 277 b.

USURPATION, government. The tyrannical assumption of the = government by=20 force contrary to and in violation of the constitution of the = country.

USURPED POWER, insurance. By an article of the printed = proposals which=20 are considered as making a part of the contract of insurance it is = provided,=20 that "No loss of damage by fire, happening by any invasion, foreign = enemy, or=20 any military or usurped power whatsoever will be made good by this = company."=20 Lord Chief J. Wilmot, Mr. Justice Clive, and Mr. Justice Bathurst, = against the=20 opinion of Mr. Justice Gould, determined that the true import of the = words=20 usurped power in the proviso, was an invasion, from abroad, or an = internal=20 rebellion, where armies are drawn up against each other, when the laws = are=20 silent, and when the firing of towns becomes unavoidable; but that those = words=20 could not mean the power of a common mob. 2 Marsh. Ins. 390.

USURPER, government. One who assumes the right of government = by force,=20 contrary to and in violation of the constitution of the country. Toull. = Dr. Civ.=20 n. 32. Vide Tyranny,

USURY, contracts. The illegal profit which is required and = received by=20 the lender of a sum of money from the borrower for its use. In a more = extended=20 and improper sense, it is the receipt of any profit whatever for the use = of=20 money: it is only in the first of these senses that usury will be here=20 considered.

2. To constitute a usurious contract the following are the = requisites: 1. A=20 loan express or implied. 2. An agreement that the money lent shall be = returned=20 at all events. 3. Not only that the money lent shall be returned, but = that for=20 such loan a greater interest than that fixed by law shall be paid.

3. - 1. There must be a loan in contemplation of the parties; 7 Pet. = S. C.=20 Rep. 109, 1 Clarke R. 252; and if there be a loan, however disguised, = the=20 contract will be usurious, if it be so in other respects. Where a loan = was made=20 of depreciated bank notes to be repaid in sound funds, to enable the = borrower to=20 pay a debt he owed dollar for dollar, it was considered as not being = usur-ious.=20 1 Meigs, R. 585. The bona fide sale of a note, bond or other security at = a=20 greater discount than would amount to legal interest, is not per se, a = loan,=20 although the note may be endorsed by the seller, and he remains = responsible. 9=20 Pet. S. C. Rep. 103; 1 Clarke, R. 30. But, if a note, bond; or other = security be=20 made with a view to evade the laws of usury, and afterwards sold for a = less=20 amount than the interest, the transaction will be considered a loan; 2 = Johns.=20 Cas. 60; 3 Johns. Cas. 66; 15 Johns. R. 44 2 Dall. 92; 12 Serg. & = Rawle, 46=20 and a sale of a man's own note, endorsed by himself, will, be considered = a loan.=20 lt is a general rule that a contract, which, in its inception, is = unaffected by=20 usury, can never be invalidated by any subsequent usurious transaction. = 7 Pet.=20 S. C. Rep. 109. On the contrary, when the contract was originally = usurious, and=20 there is a substitution by a new contract, the latter will generally be=20 considered usurious. 15 Mass. R. 96.

4. - 2. There must be a contract for the return of the money at all = events;=20 for if the return of the principal with interest, or of the principal = only,=20 depend upon a contingency, there can be no usury; but if the contingency = extend=20 only to interest, and the principal be beyond the reach of hazard, the = lender=20 will be guilty of usury, if he received interest beyond the amount = allowed by=20 law. As the principal is put to hazard in insurances, annuities and = bottomry,=20 the parties may charge and receive greater interest than is allowed by = law in=20 common cases, and the transaction will not be usurious.

5. - 3. To constitute usury the borrower must not only be obliged to = return=20 the principal at all events, but more than lawful interest: this part of = the=20 agreement must be made with full consent and knowledge of the = contracting=20 parties. 3 Bos. & Pull, 154. When the contract is made in a foreign = country=20 the rate of interest allowed by the laws of that country may be charged, = and it=20 will not be usurious, although greater than the amount fixed by law in = this.=20 Story, Confl. of Laws, =A7292. Vide, generally, Com. Dig. h. t.; Bac. = Ab. h. t.; 8=20 Com. Dig. h. t.; Lilly's Reg. h. t.; Dane's Ab. h. t.; Petersdorff's Ab. = h. t.;=20 Vin. Ab. h. t.; 2 Bl. Com. 454; Comyn on Usury, passim; 1 Pt. S. C Rep. = Index,=20 h. t.; 1 Supp. to Yes. jr. 307, 337; Yelv. 47; 1 Ves. jr. 527; 1 Saund = 295, note=20 1; Poth. h. t.; and the article Anatocism; Interest.

UTERINE BROTHER, domestic relations. A brother by the mother's = side.

UTI POSSIDETIS. This phrase, which means as you possess, is = used in=20 international law to signify that the parties to a treaty are to retain=20 possession of what they have acquired by force during the war.

TO UTTER, crim. law. To offer, to publish.

2. To utter and publish a counterfeit note is to assert and declare, = directly=20 or indirectly, by words or actions, that the note offered is good. It is = not=20 necessary that it should be passed in order to complete the offence of = uttering.=20 2. Binn. R. 338, 9. It seems that reading out a document, although the = party=20 refuses to show it, is a sufficient uttering. Jebb's Ir. Cr. Cas. 282. = Vide=20 East, P. C. 179; Leach, 251; 2 Stark. Ev. 378 1 Moody, C. C. 166; 2 = East, P. C.=20 974 Russ. & Ry. 113; 1 Phil. Ev. Index, h. t.; Roscoe's Cr. Ev. 301. = The=20 merely showing a false instrument with intent to gain a credit when = there was no=20 intention or attempt made to pass it, it seems would not amount to an = uttering.=20 Russ. & Ry. 200. Vide Ringing the charge.

UTTER BARRISTER, English law, Those barristers who plead = without the=20 bar, and are distinguished from benchers, or those who have been readers = and who=20 are allowed to plead within the bar, as the king's counsel are. The same = as=20 ouster barrister. See Barrister. civil law. A woman lawfully = married.

Index

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