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Bouvier's Law Dictionary
1856 Edition

W

WADSET, Scotch law. A right, by which lands, or other = heritable=20 subjects, are impignorated by the proprietor to his creditor in security = of his=20 debt; and, like other heritable rights, is perfected by seisin.

2. Wadsets, by the present practice, are commonly made out in the = form of=20 mutual contracts, in which one party sells the land, and the other = grants, the=20 right of reversion. Ersk. Pr. L. Scot., B. 2, t. 8, s. 1, 2.

3. Wadsets are proper or improper. Proper, where the use of the land = shall go=20 for the use of the money. Improper, where the reverser agrees to make up = the=20 deficiency; and where it amounts to more, the surplus profit of the land = is=20 applied to the extinction of the principal. Id. B. 2, t. 8, s. 12, = 13.

WADSETTER, Scotch law. A creditor to whom a wadset is = made.

TO WAGE, contracts. To give a pledge or security for the performance = of=20 anything; as to wage or gage deliverance; to wage law, &c. Co. Litt. = 294.=20 This word is but little used.

WAGER OF BATTEL. A superstitious mode of trial which till = lately=20 disgraced the English law.

2. The last case of this kind was commenced in the year 1817, but not = procceded in to judgment; and at the next session of the British = parliament an=20 act was passed to abolish appeals of murder, treason, felony or other = offences,=20 and wager of battel, or joining issue or trial by battel in writs of = right. 59=20 Geo. III. c. 46. For the history of this species of trial the reader is = referred=20 to 4 Bl. Com. 347; 3 Bl. Com. 337; Encyclopedie, Gage de Bataille; = Steph. Pl.=20 122, and App. note 35.

WAGER OF LAW, Engl. law. When an action of debt is brought = against a=20 man upon a simple contract, and the defendant pleads nil debit, and = concludes=20 his plea with this formula, "And this he is ready to defend against him = the said=20 A B and his suit, as the court of our lord the king here shall = consider,"=20 &c., he is said to wage his law. He is then required to swear he = owes the=20 plaintiff nothing, and bring eleven compurgators who will swear they = believe=20 him. This mode of trial, is trial by wager of law.

2. The wager of law could only be had in actions of debt on simple = contract,=20 and actions of detinue; in consequence of this right of the defendant, = now=20 actions on simple contracts are brought in assumpsit, and instead of = bridging=20 detinue, trover has been substituted.

3. If ever wager of law had any existence in the United States, it is = now=20 completely abolished. 8 Wheat. 642. Vide Steph. on Plead. 124, 250, and = notes,=20 xxxix.; Co. Entr. 119; Mod. Entr. 179; Lilly's Entr. 467; 3 Ch it. Pl. = 497; 13=20 Vin. Ab. 58; Bac. Ab. h. t.; Dane's Ab. Index, h. t. For the origin of = this form=20 of trial, vide Steph. on Pl. notes xxxix; Co. Litt. 294, 5 3 Bl. Com. = 341.

WAGER POLICY, contracts. One made when the insured has no = insurable=20 interest.

2. It has nothing in common with insurance but the name and form. It = is=20 usually in such terms as to preclude the necessity of inquiring into the = interest of the insured; as, "interest or no interest," or, "without = further=20 proof of interest than the policy."

3. Such contracts being against the policy of the law are void. 1 = Marsh. Ins.=20 121 Park on Ins. Ind. h. t.; Wesk. Ins. h. t.; See 1 Sumn. 451; 2 Mass. = 1 3=20 Caines, 141.

WAGERS. A wager is a bet a contract by which two parties or = more agree=20 that a certain sum of money, or other thing, shall be paid or delivered = to one=20 of them, on the happening or not happening of an uncertain event.

2. The law does not prohibit all wagers. 1 Browne's Rep. 171 Poth. du = Jeu, n.=20 4.

3. To restrain wagers within the bounds of justice the following = conditions=20 must be observed: 1. Each of the parties must have the right to dispose = of the=20 thing which is the object of the wager. 2. Each must give a perfect and = full=20 consent to the contract, 3. There must he equality between the parties. = 4. There=20 must be good faith between them. 5. The wager must not be forbidden by = law.=20 Poth. du 4. In general, it seems that a wager is legal and maybe = enforced in a=20 court of law 3 T. R. 693, if it be not, 1st, Contrary to public policy, = or=20 immoral; or if it do not in some other respect tend to the detriment of = the=20 public. 2d. If it do not affect the interest, feelings, or character of = a third=20 person.

5. - 1. Wagers on the event of an election laid before the poll is = open; 1 T.=20 R. 56. 4 Johns. 426; 4 Harr. & McH. 284; or after it is closed; 8 = Johns.=20 454, 147; 2 Browne's Rep. 182; are unlawful. And wagers are against = public=20 policy if they are in restraint of marriage; 10 East, R. 22; made as to = the mode=20 of playing an illegal game; 2 H. Bl. 43; 1 Nott & McCord, 180; 7 = Taunt. 246;=20 or on an abstract speculative question of law or judicial practice, not = arising=20 out of circumstances in which the parties have a real interest. 12 East, = R. 247,=20 and Day's notes, sed vide Cowp. 37.

6. - 2. Wagers as to the sex of an individual Cowp. 729; or whether = an=20 unmarried woman had borne or would have a child; 4 Campb. 152, are = illegal; as=20 unnecessarily leading to painful and indecent considerations. The = supreme court=20 of Pennsylvania have laid it down as a rule, that every bet about the = age, or=20 height, or weight, or wealth, or circumstances, or situation of any = person, is=20 illegal; and this whether the subject of the bet be man, woman, or = child,=20 married or single, native or foreigner, in this country or abroad. 1 = Rawle, 42.=20 And it seems that a wager between two coach-proprietors, whether or not = a=20 particular person would go by one of their coaches is illegal, as = exposing that=20 person to inconvenience. 1 B. & A. 683.

7. In the case even of a legal wager, the authority of a stakeholder, = like=20 that of an arbitrator, may be rescinded by either party before the event = happens. And if after his authority has been countermanded, and the = stake has=20 been demanded, he refuse to deliver it, trover or assumpsit for money = had and=20 received is maintainable. 1 B. & A. 683. And where the wager is in = its=20 nature illegal, the stake may be recovered, even after the event, on = demand made=20 before it has been paid over. 4 Taunt. 474; 5 T. R. 405; sed vide 12 = Johns. 1.=20 See further on this subject, 7 Johns. 434; 11 Johns. 23; 10 Johns. = 406,468; 12=20 Johns. 376; 17 Johns. 192; 15 Johns. 5; 13 Johns. 88; Mann. Dig. Gaming; = Harr.=20 Dig. Gaining; Stakeholder.

WAGES, contract. A compensation given to a hired person for = his or her=20 services. As to servants wages, see Chitty, Contr. 171 as to sailors' = wages,=20 Abbott on Shipp. 473; generally, see 22. Vin. Abr. 406; Bac. Abr. = Master,=20 &c., H; Marsh. Ins. 89; 2 Lill. Abr. 677; Peters' Dig. Admiralty, = pl. 231,=20 et seq.

WAIFS. Stolen goods waived or scattered by a thief in his = flight in=20 order to effect his escape.

2. Such goods by the English common law belong to the king. 1 Bl. = Com. 296; 5=20 Co. 109; Cro. Eliz. 694. This prerogative has never been adopted here = against=20 the true owner, and never put in practice against the finder, though = against him=20 there would be better reason for adopting it. 2 Kent, Com. 292. Vide = Com. Dig.=20 h. t.; 1 Bro. Civ. Law, 239, n.

WAIVE. A term applied to a woman as outlaw is applied to a = man. A man=20 is an outlaw, a woman is a waive. T. L., Crabb's Tech. Dict. h. t.

To WAIVE. To abandon or forsake a right.

2. To waive signifies also to abandon without right; as "if the felon = waives,=20 that is, leaves any goods in his flight from those who either pursue = him, or are=20 apprehended by him so to do, he forfeits them, whether they be his own = goods, or=20 goods stolen by him." Bac. Ab . Forfeiture, B.

WAIVER., The relinquishment or refusal to accept of a = right.

2. In practice it is required of every one to take advantage of his = rights at=20 a proper time and, neglecting to do so, will be considered as a waiver. = If, for=20 example, a defendant who has been misnamed in the writ and declaration, = pleads=20 over, he cannot afterwards take advantage of the error by pleading in = abatement,=20 for his plea amounts to a waiver.

3. In seeking for a remedy the party injured may, in some instances, = waive a=20 part of his right, and sue for another; for example, when the defendant = has=20 committed a trespass on the property of the plaintiff, by taking it = away, and=20 afterwards he sells it, the injured party may waive the trespass, and = bring an=20 action of assumpsit for the recovery of the money thus received by the=20 defendant. 1 Chit. Pl. 90.

4. In contracts, if, after knowledge of a supposed fraud, surprise or = mistake, a party performs the agreement in part, he will be considered = as having=20 waived the objection. 1 Bro. Parl. Cas. 289.

5. It is a rule of the civil law, consonant with reason, that any one = may=20 renounce or waive that which has been established in his favor: Regula = est juris=20 antique omnes licentiam habere his quae pro se introducta sunt, = renunciare. Code=20 2, 3, 29. As to what will amount to a waiver of a forfeiture, see 1 = Conn. R. 79;=20 7 Conn. R. 45; 1 Jo Cas. 125; 8 Pick. 292; 2 N. H, Rep. 120 163; 14 = Wend. 419; 1=20 Ham. R. 21. Vide Verdict.

WAKENING, Scotch law. The revival of an action.

2. An action is said to sleep, when it lies over, not insisted on for = a year=20 in which case it is suspended. 4, t. 1, n. 33. With us a revival is by = scire=20 facias. (q. v.)

WALL. A building or erection so well known as to need no = definition.=20 In general a man may build a wall on any part of his estate, to any = height he=20 may deem proper, and in such form as may best accommodate him; but he = must take=20 care not to erect a wall contrary to the local regulations, nor in such = a manner=20 as to be injurious to his neighbors. See Dig. 50, 16, 157. Vide Party = Wall.

WANTONNESS, crim. law. A licentious act by one man towards the = person=20 of another without regard to his rights; as, for example, if a man = should=20 attempt to pull off another's hat against his will in order to expose = him to=20 ridicule, the offence would be an assault, and if he touched him it = would amount=20 to a battery. (q. v.)

2. In such case there would be no malice, but the wantonness of the = act would=20 render the offending party liable to punishment.

WAPENTAKE. An ancient word used in England as synonymous with = hundred.=20 (q. v.) Fortesc. De Laud. ch. 24.

WAR. A contention by force; or the art of paralysing the = forces of an=20 enemy.

2. It is either public or private. It is not intended here to speak = of the=20 latter.

3. Public war is either civil or national. Civil war is that which is = waged=20 between two parties, citizens or members of the same state or nation. = National=20 war is a contest between two or more independent nations) carried on by=20 au-thority of their respective governments.

4. War is not only an act, but a state or condition, for nations are = said to=20 be at war not only when their armies are engaged, so as to be in the = very act of=20 contention, but also when, they have any matter of controversy or = dispute=20 subsisting between them which they are determined to decide by the use = of force,=20 and have declared publicly, or by their acts, their determination so to = decide=20 it.

5. National wars are said to be offensive or defensive. War is = offensive on=20 the part of that government which commits the first act of violence; it = is=20 defensive on the part of that government which receives such act; but it = is very=20 difficult to say what is the first act of violence. If a nation sees = itself=20 menaced with an attack, its first act of violence to prevent such = attack, will=20 be considered as defensive.

6. To legalize a war it must be declared by that branch of the = government=20 entrusted by the constitution with this power. Bro. tit., Denizen, pl. = 20. And=20 it seems it need not be declared by both the belligerent powers. Rob. = Rep. 232.=20 By the constitution of the United States, art. 1, s. 7, congress are = invested=20 with power "to declare war, grant letters of marque and reprisal, and = make rules=20 concerning captures on land and water; and they have also the power to = raise and=20 support armies, and to provide and maintain a navy." See 8 Cranch, R. = 110, 154;=20 1 Mason, R. 79, 81; 4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. = 1=20 Rutherf. Inst. B. 1, c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1; = Lee on=20 Capt. c. 1; Chit. Law of Nat. 28; Marten's Law of Nat. B. 8, c. 2; Phil. = Ev.=20 Index, h., t. Dane's Ab. Index, h. i.; Com. Dig. h. t. Bac. Ab. = Prerogative, D=20 4; Merl. Repert. mot Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, =A71; = Mann. Com.=20 B. 3, c. 1.

WARD, domestic relations. An infant placed by authority of law = under=20 the care of a guardian.

2. While under the care of a guardian a ward can make no contract = whatever=20 binding upon him, except for necessaries. When the relation of guardian = and ward=20 ceases, the latter is entitled to have an account of the administration = of his=20 estate from the former. During the existence of this relation, the ward = is under=20 the subjection of his guardian, who stands in locoparentis.

WARD, a district. Most cities are divided for various purposes = into=20 districts, each of which is called a ward.

WARD, police. To watch in the day time, for the purpose of = preventing=20 violations of the law.

2. It is the duty of all police officers and constables to keep ward = in their=20 respective districts.

WARD IN CHANCERY. An infant who is under the superintendence = of the=20 chancellor.

WARDEN. A guardian; a keeper. This is the name given to = various=20 officers: as, the warden of the prison; the wardens of the port of = Philadelphia;=20 church wardens.

WARDSHIP, Eng. law. Wardship was the right of the lord over = the person=20 and estate of the tenant, when the latter was under a certain age. When = a tenant=20 by knight's service died, and his heir was under age, the lord was = entitled to=20 the custody of the person and the lands of the heir, without any = account, until=20 the ward, if a male, should arrive at the age of twenty-one years, and, = if a=20 female, at eighteen. Wardship was also incident to a tenure in socage, = but in=20 this case, not the lord, but the nearest relation to whom the = inheritance could=20 not descend, was entitled to the custody of the person and estate of the = heir=20 till he attained the age of fourteen years; at which period the wardship = ceased=20 and the guardian was bound, to account. Wardship in copyhold estates = partook of=20 that in chivalry and that guardian like the latter, he was required lib. = 7, c.=20 9; Grand Cout. c. 33; Reg. Maj. c. 42.

WAREHOUSE. A place adapted to the reception and storage of = goods and=20 merchandise. 9 Shepl. 47.

2. The act of congress of February 25, 1799, 1 Story's Laws U. S. = 565,=20 authorizes the purchase of suitable warehouses, where goods may be = unladen and=20 deposited from any vessel which shall be subject to quarantine or other=20 re-straint, pursuant to the health laws of any state, at such convenient = place=20 or places as the safety of the revenue and the observance of such health = laws=20 may require.

3. And the act of 2d March, 1799, s. 62, 1 Story's Laws U. S. 627, = authorizes=20 an importer of goods, instead of, securing the duties to be paid to the = United=20 States, to deposit so much of such goods as the collector may in his = judgment=20 deem sufficient security for the duties and the charges of safe keeping, = for=20 which the importer shall give his own bond; which goods shall be kept by = the=20 collector with due care, at the expense and risk of the party on whose = account=20 they have been deposited, until the sum specified, in such bond becomes = due;=20 when, if such sum shall not be paid, so much of such deposited goods = shall be=20 sold at public sale, and the proceeds, charges of safe keeping and sale = being=20 deducted, shall be applied to the payment of such sum, rendering the = overplus,=20 and the residue of the goods so deposited, if there be any, to the = depositor or=20 his representatives.

WAREHOUSEMAN. A warehouseman is a person who receives goods = and=20 merchandise to be stored in his warehouse for hire.

2. He is bound to use ordinary care in preserving such goods and=20 merchan-dise, and his neglect to do so will render him liable to the = owner.=20 Peake, R. 114; 1 Esp. R. 315; Story, Bailm. =A7444; Jones' Bailm. 49, = 96, 97; 7=20 Cowen's R. 497; 12 John. Rep. 232; 2 Wend. R. 593; 9 Wend. R. 268; 1 = Stew. Rep.=20 284. The warehouseman's liability commences as soon as the goods arrive, = and the=20 crane of the warehouse is applied to raise them into the warehouse. 4 = Esp. R.=20 262.

WARRANDICE, Scotch law. A clause in a charter of heritable = rights by=20 which the grantor obliges himself, that the right conveyed shall be = effectual to=20 the receiver. It is either personal or real. A warranty. Ersk. Pr. B. 2, = t. 3,=20 n. 11.

WARRANT, crim. law, Practice. A writ issued by a justice of = the peace=20 or other authorized officer, directed to a constable or other proper = person,=20 requiring him to arrest a person therein named, charged with committing = some=20 offence, and to bring him before that or some other justice of the = peace.

2. It should regularly be made under the hand and seal of the justice = and=20 dated. No warrant ought to be issued except upon the oath or affirmation = of a=20 witness charging the defendant with, the offence. 3 Binn. Rep. 88.

3. The reprehensible practice of issuing blank warrants which once = prevailed=20 in England, was never adopted here. 2 Russ. on Cr. 512; Ld. Raym. 546; 1 = Salk.=20 175; 1 H. Bl. R. 13; Doct. Pl. 529; Wood's Inst. 84; Com. Dig. Forcible = Entry, D=20 18, 19; Id. Imprisonment, H 6,; Id. Pleader, 3 K 26; Id. Pleader, 3 M = 23. Vide=20 Search warrant.

4. A bench warrant is a process granted by a court authorizing a = proper=20 officer to apprehend and bring before it some on charged with some = contempt,=20 crime or misdemeanor. See Bench warrant.

5. A search warrant is a process issued by a competent court or = officer=20 authorizing an officer therein named or described, to examine a house or = other=20 place for the purpose of finding goods which it is alleged have been = stolen. See=20 Search warrant.

WARRANT OF ATTORNEY, practice. An instrument in writing, = addressed to=20 one or more attorneys therein named, authorizing them generally to = appear in any=20 court, or in some specified court, on behalf of the person giving it, = and to=20 confess judgment in favor of some particular person therein named, in an = action=20 of debt, and usually containing a stipulation not to bring any writ of = error, or=20 file a bill in equity, so as to delay him.

2. This general authority is usually qualified by reciting a bond = which=20 commonly accompanies it, together with the condition annexed to it, or = by a=20 written defeasance stating the terms upon which it was given, and = restraining=20 the creditor from making immediate use of it. 31. In form it is = generally by=20 deed; but it seems, it need not necessarily be so. 5 Taunt. 264.

4. This instrument is given to the creditor as a security. Possessing = it, he=20 may sign judgment and issue an execution, without its being necessary to = wait=20 the termination. of an action. Vide 14 East, R. 576; 2 T. R. 100; 1 H. = Bl. 75; 1=20 Str 20; 2 Bl. Rep. 1133; 2 Wils. 3; 1 Chit. Rep. 707.

5. A warrant of attorney given to confess a judgment is not = revocable, and,=20 notwithstanding a revocation, judgment may be entered upon it. 2 Ld. = Raym. 766,=20 850; 1 Salk. 87; 7 Mod. 93; 2 Esp, Rep. 563. The death of the debtor is, = however, generally speaking, a revocation. Co. Litt. 62 b; 1 Vent. 310. = Vide=20 Hall's Pr. 14, n.

6. The virtue of a warrant of attorney is spent by the entry of one = judgment,=20 and a second judgment entered on the same warrant is irregular. 1 Penna. = R. 245;=20 6 S. & R. 296: 14 S. & R. 170; Addis. R. 267; 2 Browne's R. 321, = 3 Wash.=20 C. C. R. 558. Vide, generally, 18 Eng. Com. Law Rep. 94, 96, 179, 209; 1 = Salk.=20 402; 3 Vin. Ab. 291; 1 Sell. Pr. 374; Com. Dig. Abatement, E 1, 2; Id. = Attorney,=20 B 7, 8; 2 Archbold's Pr. 12; Bingh. on Judgments, 38; Grah. Pr. 618; l = Crompt.=20 Pr. 316; 1 Troub. & Haly's Pr. 96.

7. A warrant of attorney differs from a cognovit, actionem. (q. v.) = See Metc.=20 & Perk. Dig. Bond, IV.

WARRANTEE. One to whom a warranty is made. Touchst. 181.

WARRANTIA CHARTAE. An ancient and now obsolete writ, which was = issued=20 when a man was enfeoffed of land with warranty, and then he was sued or=20 impleaded in assize or other action, in which he could not vouch or call = to=20 warranty.

2. It was brought by the feoffor pending the first suit against him, = and had=20 this valuable incident, that when the warrantor was vouched, and = judgment passed=20 against the tenant, the latter obtained judgment simultaneously against = the=20 warrantor, to recover other lands of equal value. Termes de la Ley, h. = t.; F. N.=20 B. 134; Dane's Ab. Index, h. t.; Rand. 141, 148, 156; 4 Leigh's R. 132; = 11 S.=20 & R. 115 Vin. Ab. h. t. Co. Litt. 100; Hob. 22, 217.

WARRANTOR. One who makes a warranty. Touchst, 181.

WARRANTY, contracts. This word has several significations, as = it is=20 applied to the conveyance and sale of lands, to the sale of goods, and = to the=20 contract of insurance.

2. - 1. The ancient law relating to warranties of land was full of = subtleties=20 and intricacies; it occupied the attention of the most eminent writers = on the=20 English law, and it was declared by Lord Coke, that the learning of = warranties=20 was one of the most curious and cunning learnings of the law; but it is = now of=20 little use even in England. The warranty was a covenant real, whereby = the=20 grantor of an estate of freehold, and his heirs, were bound to warrant = the=20 title; and either upon voucher, or judgment in, a writ of warrantia = chartae, to=20 yield other lands to the value of those from which there had been an = eviction by=20 paramount title Co. Litt. 365; Touchst.; 181 Bac. Ab. h. t.; the heir of = the=20 warrantor was bound only on condition that he had, as assets, other = lands of=20 equal value by descent.

3. Warranties were lineal and collateral.

4. Lineal, when the heir derived title to the land warranted, either = from or=20 through the ancestor who made the warranty.

5. Collateral warranty was when the heir's title was not derived from = the=20 warranting ancestor, and yet it barred the heir from claiming the land = by any=20 collateral title, upon the presumption that he might thereafter have = assets by=20 descent from or through the ancestor; and it imposed upon him the = obligation of=20 giving the warrantee other lands, in case of eviction, provided he had = assets. 2=20 Bl. Com. 301, 302.

6. The statute of 4 Anne, c. 16, annulled these collateral = warrantees, which=20 bid become a great grievance. Warranty in its original form, it is = presumed, has=20 never been known in the United States. The more plain and pliable form = of a=20 covenant has been adopted in its place and this covenant, like all other = covenants, has always been held to sound in damages which after judgment = may be=20 recovered out of the personal or real estate, as in other cases. Vide 4 = Kent,=20 Com. 457; 3 Rawle's R. 67, n.; 2 Wheat-. R. 45; 9 Serg. & Rawle, = 268; 11=20 Serg. & Rawle, 109; 4 Dall. Rep. 442; 2 Saund. 38, n. 5.

7. - 2. Warranties in relation, to the sale of personal chattels are = of two=20 kinds, express or implied.

8. An express warranty is one by which the warrantor covenants or = undertakes=20 to insure that the thing which is the subject of the. contract, is or is = not as=20 there mentioned; as, that a horse is sound; that he is not five years = old.

9. An implied warranty is one which, not being expressly made, the = law=20 implies by the fact of the sale; for example, the seller is, understood = to=20 warrant the title of goods be sells, when they are in his possession at = the time=20 of the sale; Ld. Raym. 593; 1 Salk.. 210; but if they are not then in = his=20 possession, the rule of caveat emptor applies, and the buyer purchases = at his=20 risk. Cro. Jac. 197.

10. In general there is no implied warranty of the quality of the = goods sold.=20 2 Kent, Com. 374; Co. Litt. 102, a; 2 Black Comm. 452; Bac. Abr. Action = on the=20 case E; 2 Com. Contr. 263; Dougl. 20; 2 East, 31 4; Id. 448, n.; Ross on = Vend.=20 c. 6; 1 Johns. R. 274; 4 Conn. R. 428; 1 Dall. Rep. 91; 10 Mass. R. 197; = 20=20 Johns. Rep., 196; 3 Yeates, R. 262; 1 Pet. Rep. 317; 12 Serg. & = Rawle, 181;=20 1 Hard. Kent. Rep. 531; 1 Murphy, Rep. 138; 2 Id. 245; 4 Haywood's Term. = R. 227;=20 2 Caines' Rep. 48. The rule of the civil law was, that a fair price = implied a=20 warranty of title; Dig. 21, 2, 1; this rule, has been adopted in = Louisiana;=20 Code, art. .247 7; and in South Carolina. 1 Bay, R. 324; 2 Bay, R. 380 1 = Const.=20 R. 182; 2 Const. R. 353. Vide Harr. Dig. Sale, II. 8; 12 East, R. = 452.

11. - 3. In the contract of insurance, there are certain warranties = which are=20 inducements to the insurer to enter into it. A warranty of this kind is = a=20 stipulation or agreement on the part of the insured, in the nature of a=20 condition precedent. It may be affirmative; as where the insured = undertakes for=20 the truth of some positive allegation: as, that the thing insured is = neutral=20 property: or, it may be promissory; as, that the ship shall sail on or = before a=20 given day. 6 N. S. 53.

12. Warranties are also express or implied. An express warranty is a=20 particular stipulation introduced into the written contract, by the = agreement of=20 the parties; an implied warranty is an agreement which necessarily = results from=20 the nature of the contract: as, that the ship shall be seaworthy when = she sails=20 on the voyage insured.

13. The warranty being in the nature of a condition precedent, it is = to be=20 performed by the insured, before he can demand the performance of the = contract=20 on the part of the insurer. Marsh. Inst. B. 1, c. 9. See, generally, = Bouv. Inst.=20 Index, h. t.

WARRANTY, VOUCHER TO, practice. A warranty is a contract real, = annexed=20 to lands and tenements, whereby a man is bound to defend such lands and=20 tenements from another person; and in case of eviction by title = paramount, to=20 give him lands of equal value.

2. Voucher to warranty is the calling of such warrantor into court by = the=20 party warranted, (when tenant in a real action brought for recovery of = such=20 lands,) to defend the suit for him; Co. Litt. 101, b; Com. Dig. Voucher, = A 1;=20 Booth, 43 2 Saund. 32, n. 1; and the time of such voucher is after the=20 deman-dant has counted. It lies in most real and mixed actions, but not = in=20 personal. Where the voucher has been made and allowed by the court, the = vouchee=20 either voluntarily appears, or there issues a judicial writ (called a = summons ad=20 warrantizandum,) commanding the sheriff to summon him. Where he, either=20 voluntar-ily or in obedience to this writ, appears and offers to warrant = the=20 land to the tenant, it is called entering into the warranty; after which = he is=20 considered as tenant in the action, in the place of the original tenant. = The=20 deman-dant then counts against him de novo, the vouchee pleads to the = new count,=20 and the cause proceeds to issue. 2 Inst. 241 a; 2 Saund. 32, n. 1; = Booth,=20 46.

3. Voucher of warranty is, in the present rarity of real actions, = unknown in=20 practice. Steph. Plead. 85.

WASTE. A spoil or destruction houses, gardens, trees, or other = corporeal hereditaments, to the disherison of him that hath the = remainder or=20 reversion in fee simple or fee tail 2 Bl. Comm. 281.

2. The doctrine of waste is somewhat different in this country from = what it=20 is in England. It is adapted to our circumstances. 3 Yeates, R. 261; 4 = Kent,=20 Com. 76; Walk. Intr. 278; 7 John. Rep. 227; 2 Hayw. R. 339; 2 Hayw. R. = 110; 6=20 Munf. R. 134; 1 Rand. Rep. 258; 6 Yerg. Rep. 334. Waste is either = voluntary or=20 permissive.

3. - =A71. Voluntary waste. A voluntary waste is an act of = commission, as=20 tearing down a house. This kind of waste is committed in houses, in = timber, and=20 in land. It is committed in houses by removing wainscots, floors, = benches,=20 furnaces, window-glass, windows, doors, shelves, and other things once = fixed to=20 the freehold, although they may have been erected by the lessee himself, = unless=20 they were erected for the purposes of trade. See Fixtures; Bac. Ab. = Waste, C 6.=20 And this kind of waste may take place not only in pulling down houses, = or parts=20 of them, but also in changing their forms; as, if the tenant pull down a = house=20 and erect a new one in the place, whether it be larger or smaller than = the=20 first; 2 Roll. Ab. 815 , 1. 33; or convert a parlor into a stable; or a=20 grist-mill into a fulling-mill; 2 Roll. Abr. 814, 815; or turn two rooms = into=20 one. 2 Roll. Ab. 815, 1. 37. The building of a house where there was = none before=20 is said to be a waste; Co. Litt. 53, a; and taking it down after it is = built, is=20 a waste. Com. Dig. Waste, D 2. It is a general rule that when a lessee = has=20 annexed anything to the freehold during the term, and afterwards takes = it away,=20 it is waste. 3 East, 51. This principle is established in the French = law. Lois=20 des Bit. part. 2,

3, art. 1; 18 Toull. n. 457.

4. But at a very early period several exceptions were attempted to be = made to=20 this rule, which were at last effectually engrafted upon it in favor of = trade,=20 and of those vessels and utensils, which are immediately subservient to = the=20 purposes of trade. Ibid.

5. This relaxation of the old rule has taken place between two = descriptions=20 of persons; that is, between the landlord and tenant, and between the = tenant for=20 life or tenant in tail and the remainder-man or reversioner.

6. As between the landlord and tenant it is now the law, that if the = lessee=20 annex any chattel to the house for the purpose of his trade, he may = disunite it=20 during the continuance of his interest, 1 H. B. 258. But this relation = extends=20 only to erections for the purposes of trade.

7. It has been decided that a tenant for years may remove = cider-mills,=20 orna-mental marble chimney pieces, wainscots fixed only by screws, and = such=20 like. 2 Bl. Com. 281, note by Chitty. A tenant of a farm cannot remove = buildings=20 which he has erected for the purposes of husbandry, and the better = enjoyment of=20 the profits of the land, though he thereby leaves the premises the same = as when=20 he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep. 5; 7 Mass. Rep. = 433.

8. Voluntary waste may be committed on timber, and in the country = from which=20 we have borrowed our laws, the law is very strict. In Pennsylvania, = however, and=20 many of the other states, the law has applied itself to our situation, = and those=20 acts which in England would amount to waste, are not so accounted here. = Stark.=20 Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild and uncultivated = land, wholly=20 covered with wood and timber, is leased, the lessee may fell a part pf = the wood=20 and timber, so as to fit the land for cultivation, without being liable = to=20 waste, but he cannot cut down the whole so as permanently to injure the=20 inheritance. And to what extent the wood and timber on such land may be = cut down=20 without waste, is a question of fact for the jury under the direction of = the=20 court. 7 Johns. R. 227. The tenant may cut down trees for the reparation = of the=20 houses, fences, hedges, stiles, gates, and the like; Co. Litt. 53, b; = and for=20 mixing and repairing all instruments of husbandry, as ploughs, carts, = harrows,=20 rakes, forks, &c. Wood's Inst. 344. The tenant may, when he is = unrestrained=20 by the terms of his lease, out down timber, if there be not enough dead = timber.=20 Com. Dig Waste, D 5; F. N. B. 59 M. Where the tenant, by the conditions = of his=20 lease, is entitled to cut down timber, he is restrained nevertheless = from=20 cutting down ornamental trees, or those planted for shelter; 6 Ves. 419; = or to=20 exclude objects from sight. 16 Ves. 375.

9. Windfalls are the property of the landlord, for whatever is = severed by=20 inevitable necessity, as by a tempest, or by a trespasser, and by wrong, = belongs=20 to him who has the inheritance. 3 P. Wms. 268; 11 Rep. 81, Bac. Abr. = Waste, D=20 2.

10. Waste is frequently committed on cultivated fields, orchards, = gardens,=20 meadows, and the like. It is proper here to remark that there is an = implied=20 covenant or agreement on the part of the lessee to use a farm in a=20 husbandman-like manner, and not to exhaust the soil by neglectful or = improper=20 tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to convert = arable to=20 woodland and the contrary, or meadow to arable; or meadow to orchard. = Co. Lit.=20 53, b. Cutting down fruit trees; 2 Roll. Abr. 817, l. 30; although = planted by=20 the tenant himself, is waste; and it was held to be waste for an = outgoing tenant=20 of garden ground to plough up strawherry beds which be had bought of a = former=20 tenant when he entered. i Camp. 227.

11. It is a general rule that when lands are leased on which there = are open=20 mines of metal or coal or pits of gravel, lime, clay, brick, earth, = stone, and=20 the like, the tenant may dig out of such mines, or pits. Com. Dig. = Waste, D 4.=20 But he cannot open any new mines or pits without being guilty of waste = Co. Lit.=20 53 b; and carrying away the soil, is waste. Com. Dig. Waste, D 4.

12. - =A72. Permissive waste. Permissive waste in houses is = punishable where=20 the tenant is expressly bound to repair, or where he is so bound on an = implied=20 covenant. See 2 Esp. R. 590; 1 Esp. Rep. 277; Bac. Abr. Covenant, F. It = is waste=20 if the tenant suffer a house leased to him to remain uncovered so long = that the=20 rafters or other timbers of the house become rotten, unless the house = was=20 uncovered when the tenant took possession. Com. Dig. Waste, D 2.

13. - =A73. Of remedies for waste. The ancient writ of waste has been = superseded. It is usual to bring case in the nature of waste instead of = the=20 action of waste, as well for permissive as voluntary waste.

14. Some decisions have made it doubtful whether an action on the = case for=20 permissive waste can be maintained against any tenant for years. See 1 = New Rep.=20 290; 4 Taunt. 764; 7 Taunt. 392; S. C. 1 Moore, 100; 1 Saund. 323, a, n. = i. Even=20 where the lessee covenants not to do waste, the lessor has his election = to bring=20 either an action on the case, or of, covenant, against the lessee for = waste done=20 by him during the term. 2 Bl. Rep. 1111; 2 Saund. 252, c. n. In an = action on the=20 case in the nature of waste, the plaintiff recovers only damages for the = waste.

15. The latter action has this advantage over an action of waste, = that it may=20 be brought by him in reversion or remainder for life or years, as well = as in fee=20 or in tail; and the plaintiff is entitled to costs in this action, which = he=20 cannot have in an action of waste., 2 Saund. 252, n. See, on the subject = in=20 general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr. Waste; Vin. = Abr.=20 Waste; Com. Dig. Waste; Supp. to Ves. jr. 50, 325, 441; 1 Vern. R. 23, = n.; 2=20 Saund. 252, a, n. 7, 259, n. 11; Arch. Civ. Pl. 495; 2 Sell. Pr. 234; 3 = Bl. Com.=20 180, note by Chitty; Anier. Dig. Waste; Whart. Dig. Waste; Bouv. Inst. = Index, h.=20 t.

As to remedies against waste by injunction, see 1 Vern. R. 23, n.; 5 = P. Wms.=20 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107, 419; 8 Ves. 70; 16 Ves. = 375; 2=20 Swanst. 251; 3 Madd. 498; Jacob's R. 70; Drew. on Inj. part 2, c. 1, p. = 134. As=20 between tenants in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132; 3 Bro. = C. C.=20 622; 2 Dick. 667; Bouv. Inst. Index, h. t.; and the article Injunction. = As to=20 remedy by writ of estrepement to prevent waste, see Estrepement; Woodf = Landl.=20 & T. 447; 2 Yeates, 281; 4 Smith's Laws of Penn. 89; 3 Bl. Com. 226. = As to=20 remedies in cases of fraud in committing waste, see Hov. Fr. ch. 7, p. = 226 to=20 238.

WASTE BOOK, com. law. A book used among merchants. All the = dealings of=20 the merchant are recorded in this book in chronological order as they = occur.=20

WATCH, police. To watch is, properly speaking, to stand sentry = and=20 attend guard during the night time: certain officers called watchmen are = appointed in most of the United States, whose duty it is to arrest all = persons=20 who are violating the law, or breaking the peace. (q. v.) Vide 1 Bl. = Com. 356; 1=20 Chit. Cr. Law, 14, 20.

WATCH AND WARD. A phrase used in the English law, to denote = the=20 superinten-dence and care of certain officers, whose duties are to = protect the=20 public from harm.

WATCHMAN. An officer in many cities and towns, whose duty it = is to=20 watch during the night and take care of the property of the = inhabitants.

2. He possesses generally the common law authority of a constable (q. = v.) to=20 make arrests, where there is reasonable ground to suspect a felony, = though there=20 is no proof of a felony having been committed. 1 Chit. Cr. L. 24; 2 = Hale, 96;=20 Hawk. B. 2, c. 13, s. 1, &c.; 1 East, P. C. 303; 2 Inst. 52; Com. = Dig.=20 Imprisonment, H 4; Dane's Ab. Index, h. t.; 3 Taunt. R. 14; 1 B. & = A. 227;=20 Peake, R. 89; 1 Moody's Cr. Cas. 334; 1 Esp. R. 294; and vide Peace.

3. By an act of congress, approved Sept. 30, 1850, the compensation = of=20 watchmen in the various departments of government, shall be five hundred = dollars=20 per annum.

WATER. That liquid substance of which the sea, the rivers, and = creeks=20 are composed.

2. A pool of water, or a stream or water course, is considered as = part of the=20 land, hence a pool of twenty acres, would pass by the grant of twenty = acres of=20 land, without mentioning the water. 2 Bl. Com. 18; 2 N. H. Rep. 255; 1, = Wend. R.=20 255; 5 Paige, R. 141; 2 N. H. Rep. 371; 2 Brownl. 142; 5 Cowen, R. 216; = 5 Conn.=20 R. 497; 1 Wend. R. 237. A mere grant of water passes only a fishery. Co. = Lit. 4=20 b.

3. Like land, water is distinguishable into different parts, as the = sea, (q.=20 v.) rivers, (q. v.) docks, (q. v.) canals, (q. v.) ponds, q v.) and = sewers, (q.=20 v.) and to these may be added at water course. (q. v.) Vide 4 Mason, R. = 397=20 River; Water course.

WATER BAILIFF, English law. An officer appointed to search = ships in=20 ports. 10 H. vii., 30.

WATER COURSE. This term is applied to the flow or movement of = the=20 water in rivers, creeks, and other streams.

2. In a legal sense, property In a water course is comprehended under = the=20 general name of land; so that a grant of land conveys to the grantee not = only=20 fields, meadows, and the like, but also all the rivers and streams, = which=20 naturally pass over the surface of the land. 1 Co. Lit. 4; 2 Brownl. = 142; 2 N.=20 Hamp. Rep. 255; 5 Wend. Rep. 128.

3. Those who own land bounding upon a water course, are denominated = by the=20 civilians riparian proprietors, and this convenient term has been = adopted by=20 judges and writers on the common law. Ang. on Water Courses, 3; 3 Kent, = Com.=20 354; 4 Mason's R. 397.

4. Every proprietor of lands on the banks of a river has naturally an = equal=20 right to the use of the water which flows in the stream adjacent to his = lands,=20 as it was wont to run (currere solebat) without diminution or = alteration.

5. No proprietor has a right to use the water to the prejudice of = other=20 proprietors, above or below him, unless he has a prior right to divert = it, or a=20 title to some exclusive enjoyment. He has no property in the water = itself, but a=20 simple usufruct as it passes along. Agua currit et debet currere, is the = language of the law. 3 Rawle, Rep. 84; 9 Co. 57, b.

6. Though he may use the water while it runs over his lands, he = cannot=20 unreasonably detain it or give it another direction, and he must return = it to=20 its ordinary channel when it leaves his estate. Without the consent of = the=20 adjoining proprietors, he cannot divert or diminish the quantity of the = water,=20 which would otherwise descend to the proprietor below, nor throw the = water back=20 upon the proprietor above, without a grant, or an uninterrupted = enjoyment of=20 twenty years, which is evidence of it. 3 Kent, Com. 353; 1 Wils. R. 178; = 6 East,=20 203; 1 Simon & Stuart, 190; 2 John. Ch R. 162, 463; 4 Mass. R. 401 = 17 John.=20 R. 321; 5 Ohio R. 822; 3 Fairf. R. 407; 8 Greenl. R. 268; 16 Pick. Rep. = 247; 1=20 Coxes Rep, 460; Dig. 39, 3, 4, and 10; Pothier, Traite du Contrat de = Societe, 2e=20 app. n. 236, 237; Bell's Law of Scotland, 691; Ang. on' Water Courses, = 12; 2=20 Conn. R. 584.

7. When there are two opposite riparian proprietors, each owns that = portion=20 of the bed of the river which is adjoining his land usque ad filum = aquae; or, in=20 other words, to the thread or central line of the stream; Harg. Tracts, = 5;=20 Holt's Rep. 499; and if hydraulic works be erected on both banks, each = is=20 entitled to an equal share of the water. 1 Paige's Chanc. Rep. 448.

8. The water can only be used by each as an entire stream, in its = natural=20 channel; for of the property in the water there can be no severance. 13 = John. R.=20 212.

9. But it seems that when an island is on the side of a river, so as = to give=20 the riparian owner on that side one-fourth of the water, the other is = entitled=20 to the whole of the three-fourths of the river. 10 Wend. Rep. 260. See, = also, 13=20 Mass. Rep. 507; 2 Caines' Cas. 87; 9 Pick. R. 528; 3 Kent, Com. 344, = 345; 3=20 Rawle's R. 84; 2 Watts, R. 327; 8 Greenl. R. 138, 253; 9 Pick. Rep. 59; = 10 Pick.=20 R. 348; 10 Wend. R. 167; Com. Dig. Action for Nuisance, A; 4 D. & R. = 583; S.=20 C. 2 B. & C. 910; 1 Campb. R. 463; 6 East, R. 208; 1 Wils. Rep. = 174;; 1 B.=20 & A. 258; 5 Taunt. R. 454; 2 Esp. R. 679; 2 Hill. Abr. c. 14, 16, = 17; Ham.=20 N. P. 199; 1 Vin. Ab. 557 22 Vin. Abr. 525; 2 Chit. Bl. 403, n. 7; 3 = Roll. 140,=20 l. 40; Lois des Bat. part 1, c. 3, sed. 1, art. 3; Crabb on R. P. =A7398 = to 443.=20 Vide River.

WATER ORDEAL. An ancient form of trial, now abolished, by = which the=20 accused, tied band and foot, were cast into cold water, and if they did = not sink=20 they were deemed innocent or they were compelled to plunge their limbs = into hot=20 water, and if they came out unhurt they were considered innocent. Vide=20 Ordeal.

WAVESON. This name is given to such goods as after shipwreck = appear=20 upon the waves. Jacob, Law Dict. h. t.

WAY, estates. A passage, street or road. A right of w>=20

Transfer interrupted!

ual or a particular description of = persons, such=20 as the inhabitants of a particular place, or the owners or occupiers of = such=20 place may have, of going over another person's ground.

2. It is an incorporeal hereditament of a real nature, a mere = easement,=20 entirely different from public or private roads.

3. A right of way may arise, 1. By prescription and immemorial usage. = 2=20 McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br. Chem. 2; 1 = Roll. Ab.=20 936. 2. By grant. 3 Lev. 305; 1 Ld. Raym. 75; 17 Mass. 416; Crabb on R. = P. =A7366.=20 3. By reservation 4. By custom. 5. By acts of the legislature. 6. From=20 necessity, when a man's ground is enclosed and completely blocked up, so = that he=20 cannot, without passing over his neighbor's land, reach the public road. = For=20 example, should A grant a piece of land to B, surrounded by land = belonging to A;=20 a right of way over A's land passes of necessity to B, otherwise he = could not=20 derive any benefit from the acquisition. Vide 3 Rawle, 495; 2 Fairf. R. = 1,56; 2=20 Mass. 203; 2 McCord, 448; 3 McCord, 139; 2 Pick. 577; 14 Mass. 56; 2 = Hill, S. C.=20 R. 641; and Necessity. The way is to be taken where it will be least = injurious=20 to the owner. 4 Kent, Com. 338. 4. Lord Coke, adopting the civil law, = says there=20 are three kinds of ways. 1. A foot-way, called iter. 2. A foot-way and=20 horse-way, called adus. 3. A cart-way, which contains the other two, = called via.=20 Co. Lit. 56, a; Pothier, Pandectae, lib. 8, t. 3, =A71; Dig. 8, 3; 1 = Bro. Civ.=20 Law, 177. Vide Yelv. 142, n; Id. 164; Woodf. Landl. & Ten. 544; 4 = Kent, Com.=20 337; Ayl. Pand. 307; Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M. = 151; 1=20 Bail. R. 58; 2 Hill. Abr. c. 6; Crabb on Real Prop. =A7360 to 397; Bouv. = Inst.=20 Index, h. t.; Easement; Servitude.

WAY BILL, contracts. A writing in which is set down the names = of=20 passengers, who are carried in a public conveyance, or the description = of goods=20 sent with a common carrier by land; when the goods are carried by water, = the=20 instrument is called a bill of lading. (q. v.)

WAY GOING CROP. In Pennsylvania, by the custom of the, = country, a=20 tenant for a term certain is entitled after the expiration of his Iease, = to=20 enter and take away the crop of grain which he had put into the ground = the=20 preceding fall. This is called the way going crop. 5 Binn. R. 289; 2 S. = & R.=20 14; 1 P. R. 224.

WAYS AND MEANS. In legislative assemblies there is usually = appointed a=20 committee whose duties are to inquire into, and propose to the house, = the ways=20 and means to be adopted to raise funds for the use of the government. = This body=20 is called the committee of ways and means.

WEAR. A great dam made across a river, accommodated for the = taking of=20 fish, or to convey a stream to a mill. Jacob's Law Dict. h. t. Vide Dam. =

WED. A covenant or agreement; whence a wedded husband.

WEEK. Seven days of time.

2. The week commences immediately after twelve o'clock, on the night = between=20 Saturday and Sunday, and ends at twelve o'clock, seven days of = twenty-four hours=20 each thereafter.

3. The first day of the week is called Sunday; (q. v.) the second, = Monday;=20 the third, Tuesday; the, fourth, Wednesday; the fifth, Thursday; the = sixth,=20 Friday; and the seventh, Saturday. Vide 4 Pet. S. C. Rep. 361.

WEIGHAGE, mer. law. In the English law it is a duty or toll = paid for=20 weighing merchandise; it is called tronage, (q. v.) for weighing wool at = the=20 king's beam, or pesage, for weighing other avoirdupois goods. 2 Chit. = Com: Law,=20 16.

WEIGHT. A quality in natural bodies, by which they tend = towards the=20 centre of the earth.

2. Under the article Measure, (q. v.) it is said that by the = constitution=20 congress possesses the power "to fix the standard of weights and = measures," and=20 that this power has not been exercised.

3. The weights now generally used in the United States, are the same = as those=20 of England; they are of two kinds: 

1. AVOIRDUPOIS WEIGHT.
1st. Used in almost all commercial transactions,=20
and in the comwon dealings of life.
27 1/3 1/2 grains         =3D 1 dram
16 drams                  =3D 1 ounce
16 ounces                 =3D 1 pound, (lb.)
28 pounds                 =3D 1 quarter, (qr.)
4 quarters                =3D 1 hundred weight, (cwt.)
20 hundred weight         =3D 1 ton.
    2d. Used for meat and fish.
8 pounds                 =3D 1 stone
    3d. Used in the wool trade.
    Cwt. qr. lb.
7 pounds               =3D 1 clove
14 pounds              =3D 1 stone    =3D 0 0 14
2 stones               =3D 1 tod      =3D 0 1 0
6 1/2 tods             =3D 1 wey      =3D 1 2 14
2 weys                 =3D 1 sack     =3D 3 1 0
12 sacks               =3D 1 last     =3D 39 0 0
    4th. Used for butter and cheese.
8 pounds               =3D 1 clove
56 pounds              =3D 1 firkin.
        2. TROY WEIGHT.
24 grams              =3D 1 pennyweight
20 pennyweights       =3D 1 ounce
12 ounces             =3D 1 pound.

4. These are the denominations of troy weight, when used for weighing = gold,=20 silver and precious stones, except diamonds. Troy weight is also used by = apo-thecaries in compounding medicines; and by them the ounce is divided = into=20 eight drams, and the drain into three scruples, so that the latter is = equal to=20 twenty grains. For scientific purposes, the grain only is used, and sets = of=20 weights are constructed in decimal progression, from 10,000 grains = downward to=20 one-hundredth of a grain. The caret, used for weighing diamonds, is = three and=20 one-sixth grains.

5. A short account of the French weights and measures is given under = the=20 article Measure.

WEIGHT OF EVIDENCE. This phrase is used to signify that the = proof on=20 one side, of a cause is greater than on the other.

2. When a verdict has been rendered against the weight of the = evidence, the=20 court may, on this ground, grant a new trial, but the court will = exercise this=20 power not merely with a cautious, but a strict and sure judgment, before = they=20 send the case to a second jury.

3. The general rule under such circumstances is, that the verdict = once found=20 shall stand: the setting aside is the exception, and ought to be an = exception,=20 of rare and almost singular occurrence. A new trial will be granted on = this=20 ground for either party; the evidence, however, is not to be weighed in = golden=20 scales. 2 Hodg. R. 125; S. C. 3 Bingh. N. C. 109; Gilp. 356; 4 Yeates, = 437; 3=20 Greenl. 276; 8 Pick. 122; 5 Wend. 595; 7 Wend. 380; 2 Vir. Cas. 235.

WELCH MORTGAGE, Eng. law, contracts. A species of security = which=20 partakes of the nature of a mortgage, as there is a debt due, and an = estate is=20 given as a security for the repayment, but differs from it in the = circumstances=20 that the rents and profits are to be received without account till the = principal=20 money is paid off, and there is no remedy to enforce payment, while the=20 mortgagor has a perpetual power of redemption.

2. It is a species of vivum vadium. Strictly, however, there is this=20 distinction between a Welch mortgage and a vivum vadium. In the latter = the rents=20 and profits of the estate are applied to the discharge of the principal, = after=20 paying the interest; while in the former the rents and profits are = received in=20 satisfaction of his interest only. 1 Pow. Mortg. 373, a.

WELL. A hole dug in the earth in order to obtain water.

2. The owner of the estate has a right to dig in his own ground, at = such a=20 distance as is permitted by law, from his neighbor's land; he is not = restric-ted=20 as to the size or depth, and is not liable to any action for rendering = the well=20 of his neighbor useless by so doing. Lois des Bat. part. 1, c. 3, sect. = 2, art.=20 2, =A72.

WELL KNOWING. These words are used in a declaration when the = plaintiff=20 sues for an injury which is not immediate and with force, and the act or = nonfea-sance complained of was not prima facie actionable, not only the = injury,=20 but the circumstances under which it was committed, ought to be stated, = as where=20 the injury was done by an animal. In such case, the plaintiff after = stating the=20 injury, continues, the defendant well knowing the mischievous propensity = of his=20 dog, permitted him to go at large. Vide Scienter.

WERE. The name of a fine among the Saxons imposed upon a = murderer.

2. The life of every man, not excepting that of the king himself, was = esti-mated at a certain price, which was called the were, or vestimatio = capitis.=20 The amount varied according to the dignity of the person murdered. The = price of=20 wounds was also varied according to the nature of the wound, or the = member=20 injured.

WERGILD, or WEREGILD, old Eng. law. The price which in a = barbarous=20 age, a person guilty of homicide or other enormous offence was required = to pay,=20 instead of receiving other punishment. 4 Bl. Com. 188. See, for the = etymology of=20 this word, and a tariff which was paid for the murder of the different = classes=20 of men, Guizot, Essais sur l'Histoire de France, Essai 4eme, c. 2, = =A72.

WETHER. A castrated ram, at least one year old in ark = indictment it=20 may be called a sheep. 4 Car. & Payne, 216; 19 Eng. Com. Law Rep. = 351.

WHALER, mar. law. A vessel employed in the whale fishery.

2. It is usual for the owner of the vessel, the captain and crew, to = divide=20 the profits in just proportions, under an agreement similar to the = contract Di=20 Colonna. (q. v.)

WHARF. A space of ground artificially prepared for the = reception of=20 merchan-dise from a ship or vessel, so as to promote the convenient = loading and=20 discharge of such vessel.

WHARFAGE. The money paid for landing goods upon, or loading = them from=20 a wharf. Dane's Ab. Index, h. t.

WHARFINGER. One who owns or keeps a wharf, for the purpose of=20 receiving and shipping merchandise to or from it, for hire.

2. Like a warehouseman, (q.v.) a wharfinger is responsible for = ordinary=20 neglect, and is therefore required to take ordinary, care of goods = entrusted to=20 him as such. The responsibility of a wharfinger begins when he acquires, = and=20 ends when he ceases to have the custody of the goods in that = capacity.

3. When he begins and ceases to have such custody depends generally = upon the=20 usages of trade and of the business. When goods are delivered at a = wharf, and=20 the wharfinger has agreed, expressly or by implication, to take the = custody of=20 them, his responsibility commences; but a mere delivery at the wharf, = without=20 such assent, does not make him liable. 3 Campb. R. 414; 4 Campb. R. 72; = 6 Cowen,=20 R. 757. When goods are in the wharfinger's possession to be sent on = board of a=20 vessel for a voyage, as soon as he delivers the possession and the care = of them=20 to the proper officers of the vessel, although they are not actually = removed, he=20 is, by the usages of trade, deemed exonerated from any further = responsibility. 5=20 Esp. R. 41; Story, Bailm. =A7453 Abbott on Shipp. 226; Molloy, B. 2. 2, = s. 2;=20 Roccus, Not. 88; Dig. 9, 4, 3.

WHEEL. The punishment of the wheel was formerly to put a = criminal on a=20 wheel, and then to break his bones until he expired. This barbarous = punishment=20 was never used in the United States, and it has been abolished in almost = every=20 civilized country.

WHELPS. The young of certain animals of a base nature, or = ferae=20 naturae.

2. It is a rule that when no larceny can be committed of any = creatures of a=20 base nature, which are ferae naturae, though tame and reclaimed, it = cannot be=20 committed of the young of such creatures in the nest, kennel, or den. 3 = Inst.=20 109; 1 Russ. on Cr. 153.

3. The owner of the land is, however, considered to have a qualified = property=20 in such animals, ratione impotentia. 2 Bl. Com. 394.

WHEN. At which time, in wills, standing by itself unqualified = and=20 unexplained, this is a word of condition denoting the time at which the = gift is=20 to continence. 6 Ves. 243; 2 Meriv. 286.

2. The context of a will may show that the word when is to be applied = to the=20 possession only, not to the vesting of a legacy; but to justify this=20 construction, there must be circumstances, or other expressions in the = will,=20 showing such to have been the testator's intent. 7 Ves. 422; 9 Ves. 230 = Coop.=20 145; 11 Ves. 489; 3; Bro. C. C. 471. For the effect of the word when in=20 contracts and in wills in the French law, see 6 Toull. n. 520.

WHEN AND WHERE. These words are used in a plea when full = defence is=20 made the form is, "when and were it shall behove him." This acknowledges = the=20 jurisdiction of the court. 1 Chit. Pl. *414.

WHEREAS. This word implies a recital, and in general cannot be = used in=20 the direct and positive averment of a fact in a declaration or plea. = Those facts=20 which are directly denied by the terms of the general issue, or which = may, by=20 the established usage of pleading, be specially traversed, must be = averred in=20 positive and direct terms; but facts, however material, which are not = directly=20 denied by the terms of the general issue, though liable to be contested = under=20 it, and which, according to the usage of pleading, cannot be specially=20 tra-versed, may be alleged in the declaration by way of recital, under a = whereas. Gould, Pl. c. 43, =A742; Bac. Ab. Pleas, &c., B. 5, 4; 2 = Chit. Pl.=20 151, 178, 191; Gould, Pl. c. 3, =A747.

WHIPPING, punishment. The infliction of stripes.

2. This mode of punishment, which is still practiced in some of the = states,=20 is a relict of barbarism; it has yielded in most of the middle and = northern=20 states to the penitentiary system.

3. The punishment of whipping, so far as the same was provided by the = laws of=20 the United States, was abolished by the act of congress of February 28, = 1839, s.=20 5. Vide 1 Chit. Cr. Law, 796; Dane's Ab. Index, h. t.

WHITE PERSONS. The acts of congress which authorize the = naturalization=20 of aliens, confine the description of such aliens to free white = persons.

2. This of course excludes the African race when pure, but it is not = easy to=20 say what shade of color or mixture of blood will make a white person. =

3. The constitution of Pennsylvania, as amended, confines the right = of=20 citi-zenship to free white persons; and these words, white persons, or = similar=20 words, are used in most of the constitutions of the southern states, in=20 describing the electors.

WHITE RENT, English law. Rents paid in silver, and called = white rents=20 or redditus albi, to distinguish them from other rents which were not = paid in=20 money. 12 Inst. 19. Vide Alba firma.

WHOLE BLOOD. Being related by both the father and mother's = side; this=20 phrase is used in contradistinction to half, blood, (q. v.) which is = relation=20 only on one side. See Blood.

WHOLESALE. To sell by wholesale, is to sell by large parcels,=20 generally in original packages, and not by retail. (q. v.)

WIDOW. An unmarried woman whose husband is dead.

2. In legal writings, widow is an addition given to a woman who is = unmarried=20 and whose husband is dead. The addition of spinster is given to a woman = who=20 never was married. Lovel. on Wills, 269. See Addition. As to the rights = of a=20 widow, seq Dower.

WIDOW'S CHAMBER, Eng. law. In London the apparel of a widow = and the=20 furniture of her chamber, left by her deceased husband, is so called, = and the=20 widow is entitled to it. 2 Bl. Com. 518.

WIDOWHOOD. The state of a man whose wife is dead or of a woman = whose=20 husband is dead. In general there is no law to regulate the time during = whichh a=20 man must remain a widower, or a woman a widow, before they marry a = second time.=20 The term widowhood is mostly applied to the state or condition of a = widow.

WIDOWER. A man whose wife is dead. A widower has a right to = administer=20 to his wife's separate estate, and as her administrator to collect debts = due to=20 her, generally for his own use.

WIFE, domestic relations. A woman who has a husband.

2. A wife, as such, possesses rights and is liable to obligations. = These will=20 be considered. 1st. She may make contracts for the purchase of real = estate for=20 her own benefit, unless her husband expressly dissents. 6 Binn. R. 427. = And she=20 is entitled to a legacy directly given to her for her separate use. 6 = Serg.=20 & Rawle, R. 467. In some places, by statutory provision, she may act = as a=20 feme sole trader, and as such acquire personal property. 2 Serg. & = Rawle, R.=20 289.

3. 2d. She may in Pennsylvania, and in most other states, convey her = interest=20 in her own or her husband's lands by deed acknowledged in a form = prescribed by=20 law. 8 Dowl. R. 630.

4. - 3d. She is under obligation to love, honor and obey her husband = and is=20 bound to follow him wherever he may desire to establish himself: 5 N. S. = 60; (it=20 is presumed not out of the boundaries of the United States,) unless the = husband,=20 by acts of injustice and such as are contrary to his marital duties, = renders her=20 life or happiness insecure.

5. - 4th. She is not liable for any obligations she enters into to = pay money=20 on any contract she makes, while she lives with her husband; she is = presumed in=20 such case to act as the agent of her husband. Chitty, Contr. 43

6. - 5th. The incapacities of femes covert, apply to their civil = rights, and=20 are intended for their protection and interest. Their political rights = stand=20 upon different grounds, they can, therefore, acquire and lose a national = char-acter. These rights stand upon the general principles of the law of = nations. Harp. Eq. R. 5 3 Pet. R. 242.

7. - 6th. A wife, like all other persons, when she acts with freedom, = may be=20 punished for her criminal acts. But the law presumes, when she commits = in his=20 presence a crime, not malum in se, as murder or treason, that she acts = by the=20 command and coercion of her husband, and, upon this ground, she is = exempted from=20 punishment. Rose. on Cr. Ev. 785. But this is only a presumption of law, = and if=20 it appears, upon the evidence, that she did not in fact commit the act = under=20 compulsion, but was herself a principal actor and inciter in it, she may = be=20 punished. 1 Hale, P. C. 516; 1 Russ. on Cr. 16, 20. Vide Contract; = Divorce;=20 Husband; Incapacity; Marriage; Necessaries; Parties to actions; Parties = to=20 contracts; Women and, generally, Bouv. Inst. Index,

WIFE'S EQUITY. By this phrase is understood the equitable = right of a=20 wife to have settled upon her and her children a suitable provision out = of her=20 estate whenever the husband cannot obtain it, without the aid of a court = of=20 equity. Shelf. on M. and D., 605.

2. By the marriage the husband acquires an interest in the property = of his=20 wife in consideration of the obligation which he contracts by the = marriage, of=20 maintaining her and their children. The common law enforces this duty = thus=20 voluntarily assumed by him, and he can alien the property to which he is = thus=20 entitled jure mariti, or in case of his bankruptcy or insolvency it = would vest=20 in his assignee for the benefit of his creditors, and the wife would be = left=20 with her children, entirely destitute, notwithstanding her fortune may = have been=20 great. To remedy this evil, courts of equity, in certain cases, give a = provision=20 to the wife, which is called the wife's equity.

3. The principle upon which courts of equity act is, that he who = seeks the=20 aid of equity must do equity, and that will be withheld until an = adequate=20 settlement has been made. 1 P. Wms. 459, 460. See 5 My. & Cr. 105; = 11 Sim.=20 569; 4 Hare, 6.

4. It will be proper to consider, 1. Out of what property the wife = has a=20 right to claim her equity to a settlement. 2. Against whom she may make = such a=20 claim. 3. Her rights. 4. The rights of her children. 5. When her rights = to a=20 settlement will be barred.

5. - 1. Where the property is equitable and not recoverable at law, = it cannot=20 be obtained without making a settlement upon a wife and children, if one = be=20 required by her 2 P. Wins. 639; and where, though the property be legal = in its=20 nature, it becomes, from collateral circumstances, the subject of a suit = in=20 equity, the wife's right to a settlement will attach. 5 My. & Cr. = 97. See 2=20 Ves. jun., 607, 680; 4 Bro. C. C, 338; 3 Ves. 166, 421; 9 Ves. 87; 5 = Madd. R.=20 149; 5 Ves. 517; 13 Maine, 124 10 Ala. R. 401; 9 Watts, 90; 5 John. Ch. = R. 464;=20 3 Cowen, 591; 6 Paige, 366; 2 Bland. 545; 2 Paige, 303.

6. - 2. The wife's equity to a settlement is binding not only upon = the=20 husband, but upon his assignee under the bankrupt or insolvent laws. 2 = Atk. 420;=20 3 Ves. 607; 4 Bro. C. C. 138; 6 John. Ch. R. 25; 1 Paige, 620; 4 Metc. = 486; 4=20 Gill & John. 283; 5 Monr. 338; 10 Ala. R. 401 1 Kelly, 637. And even = where=20 the husband assigned the wife's equitable right for a valuable = consideration,=20 the assignee was considered liable. 4 Ves. 19.

7. - 3. As to the amount of the rights of the wife, the general rule = is that=20 one half of the wife's property shall be settled upon her. 2 Atk. 423; 3 = Ves.=20 166. But it is in the discretion of the court to give her, an adequate=20 settlement for herself and children. 5 John. Ch. R. 464; 6 John. Ch. R. = 25; 3=20 Cowen, 591; 1 Desaus. 263: 2 Bland. 545; 1 Cox, R. 153; 5 B. Monr. 31; 3 = Kelly,=20 193; 1 D, & W. 407; 9 Sim, 597; 1 S. & S. 250.

8. - 4. Whenever the wife insists upon her equity, the right will be=20 exten-ded to her children, but the right is strictly personal to the = wife, and=20 her children cannot insist upon it after her death. 2 Eden, 337; 1 J. = & W.=20 472; 1 Madd. R. 467; 11 Bligh, N. S. 104; 2 John. Ch. R. 206; 3 Cowen, = 591; 10=20 Ala. R. 401; 1 Sanf. 129.

9. - 5. The wife's equity will be barred, first, by an adequate = settlement=20 having been made upon her; 2 Ves. 675; when she lives in adultery apart = from her=20 husband 4 Ves. 146; but a female ward of court, married without its = consent,=20 will not be barred, although she should be living in adultery. 1 V. = & B.=20 302.

WILD ANIMALS. Animals in a state of nature; animals ferae naturae. = Vide=20 Animals; Ferae naturae.

WILFULLY, intentionally.

2. In charging certain offences it is required that they should be = stated to=20 be wilfully done. Arch. Cr. Pl. 51, 58; Leach's Cr. L. 556.

3. In Pennsylvania it has been decided that the word maliciously was = an=20 equivalent for the word wilfully, in an indictment for arson. 5 Whart. = R.=20 427.

WILL, criminal law. The power of the mind which directs the = actions of=20 a man.

2. In criminal law it is necessary that there should be an act of the = will to=20 commit a crime, for unless the act is wilful it is no offence.

3. It is the consent of the will which renders human actions = commendable or=20 culpable, and where there is no win there can be no transgression.

4. The defect or want of will may be classed as follows: 1. Natural, = as that=20 of infancy. 2. Accidental; namely, 1st. Dementia. 2d. Casualty or = chance. 3d.=20 Ignorance. (q. v.) 3. Civil; namely, 1st. Civil subjection. 2d. = Compulsion. 3d.=20 Necessity. 4th. Well-grounded fear. Hale's P. C. c. 2 Hawk. P. C. book = 1, c.=20 1.

WILL or TESTAMENT. The legal declaration of a man's intentions = of what=20 he wills to be performed after his death. Co. Litt. 111; Swinb. Pt. 1, = s. II. 1;=20 Shep. Touch. 398; Bac. Abr. Wills, A.

2. The terms will and testament are synonymous, and they are used=20 indifferently by common lawyers, or one for the other. Swinb. p. 1, s. = 1. 5;=20 Bac. Ab. Wills. A. Civilians use the term testament only. See Testament. =

3. There are five essential requisites to make a good will.

4. - 1. The testator must be legally capable of making a will. = Generally all=20 persons who may make valid contracts can dispose of their property by = will. See=20 Parties to contracts. This act requires a power of the mind freely to = dispose of=20 property. Infants, because of their tender age, and married women, on = account of=20 the supposed influence and control of their husbands, have no capacity = to make a=20 will, with these exceptions, that infants at common law may dispose of = their=20 personal estate, the males when over fourteen years of age, and the = females when=20 over twelve; this rule in relation to infants is not uniform in the = United=20 States. Swinb. p. 2, s. 2; Bac. Ab. Wills, B. Persons devoid of = understanding,=20 as idiots and lunatics, cannot make a will.

5. - 2. The testator at the time of making his will must have animum=20 test-andi, or a serious intention to make such will. If a man therefore=20 jestingly or boastingly and not seriously, writes or says that such a = person=20 shall have his goods or be his executor, this is no will. Bac. Ab. = Wills, C;=20 Com. Dig. Estates by Devise, D 1. See 4 Serg. & Rawle, 545; 2 = Yeates, 324; 5=20 Binn. 490; 1 Des. R. 543.

6. - 3. The mind of the testator in making his will must be free, and = not=20 moved by fear, fraud or flattery. In such cases the will is void or at = least=20 voidable. Bac. Ab. Wills, C; see 3 Serg. & Rawle, 269. Vide = influence.

7. - 4. There must be a person to take, capable of taking; for to = render a=20 devise or bequest valid there must be a donee in esse, or in rerum = natura, and=20 one that shall have capacity to take the thing given, when it is to = vest, or the=20 gift shall be void. Plowd. 345. See Legatee.

8. - 5. The will must be put in proper form., Wills are either = written or=20 nuncupative.

9. - 1. A will in writing must be, 1. Written on paper or parchment; = it may=20 be in any language, and in any character, provided it can be read or = understood.=20 2. It must be signed by the testator or some person authorized by him; = but a=20 sealing has been held to be a sufficient signing. 2 Str. 764. But see 3 = Lev. R.=20 1; 1 Const. R. 343; 18 Ves. R. 183; 2 Ball & B. 104 5 Mood. R. 484, = and=20 article To sign. And it ought to be signed by the attesting witnesses. = In some=20 states three witnesses are required, who should sign the will as such at = the=20 request and in the presence of the testator and of each other. This = formality=20 should generally be pursued, as the testator may have lands in such = states which=20 would not pass without it. See, as to the attestation of wills, Bac. Ab. = Wills,=20 D; Rob. on Wills, c. 1, part 15. 3. It must be published, that is, the = testator=20 must do some act from which it can be concluded that he intended the = instrument=20 to operate as his will. 6 Cruise, 79; 4 Burn's Eccl. Law, 119. As to the = republication of wills, see Bac. Abr. Wills, D 3; and article = Publication. 4. To=20 make a good will of goods and chattels there must be an executor named = in it,=20 otherwise it will be a codocil only, and the party is said to die = intestate; in=20 such a case administration must be granted. Bac. Abr. Wills, D 2.

10. - 2. A nuncupative will or testament, is a verbal declaration by = a=20 tes-tator of his will before a competent number of legal witnesses.

11. Before the statute of frauds they were very common, but by that = statute,=20 29 C. H. c. 3, which has been substantially adopted in a number of the = states,=20 these wills were laid under many restrictions. Vide Dane's Ab. chap. = 127, a. 2;=20 3 Harr. & John. 208; 6 Munf. R. 123; 1 Munf. R. 456; 4 Hen. & = Munf.=20 91-100.

12. In New York nuncupative wills have been abolished, except made by = a=20 soldier while in actual military service, or by a mariner while at sea. = 2 New=20 York Revised Statutes, 60, sec. 22. As to nuncupative wills in = Louisiana, see=20 Testament nuncupative; and Civil Code of Louisiana, article 1574.

13. It is a rule that the last will revokes all former wills. It = follows then=20 that a man cannot by any testamentary act impose upon himself the = inability of=20 making another inconsistent with and revoking the first will. Bac. Ab. = Wills, E;=20 Swinb. pt. 7, s. 14.

14. A will voluntarily and intentionally made by a competent = testator,=20 according to the form required by law, may be avoided, 1st. By = revocation, see=20 Revocation; Bac. Abr. Wills, G 1; Vin. Abr. Devise, P; 1 Rolle, Ab. 615; = Com.=20 Dig. Estates by Dev. F; and, 2d. By fraud.

15. Among the civilians they have two other kinds of wills, namely: = the=20 mystic, which is a will enveloped in a paper and sealed, and the = witnesses=20 attest that fact, the other is the olographic; which is wholly written = by the=20 testator himself. See Testament. As to wills and testaments, see = Swinburne on=20 Wills; Roberts on Wills; Lovelass on Wills; Roper on Legacies; Lowndes = on=20 Legacies; Will. on Ex. pt. 1; Vin. Abr. Devise; Rolle's Abr. Devise; = Bac. Abr.=20 Wills and Testaments; Com. Dig. Estates by Devise; Nels. Abr. h. t.; = Amer. Dig.=20 Wills; Whart. Dig. Wills; Toll. on Executors; Off. Ex.; Orph. Legacy; = Touchst,=20 ch. 23 Civil Code of Louisiana, B. 3, tit. 2; Bouv. Inst. Index, h. t.; = and the=20 articles Devise; Legacy; Testament.

WINCHESTER MEASURE. The standard measure originally kept at=20 Winchester, in England.

WINDOW. An opening made in the wall of a house to admit light = and air,=20 and to enable those who are in to look out.

2. The owner has a right to make as many windows in his house when = not built=20 on the line of his property as he may deem proper, although by so doing = be may=20 destroy the privacy of his neighbors. Bac. Ab. Actions in general, = B.

3. In cities and towns it is evident that the owner of a house cannot = open=20 windows in the partition wall without the consent of the owner of the = adjoining=20 property, unless he possesses the right of having ancient lights. (q. = v.) The=20 opening of such windows and destroying the privacy of the adjoining = property, is=20 not, however, actionable; the remedy against such encroachment is by = obstructing=20 them, without encroaching upon the rights of the party who opened them, = so as to=20 prevent a right from being acquired by twenty years use. 3 Camp. 82.

WISCONSIN. The name of one of the new states of the United = States, of=20 America.

2. The constitution of Wisconsin was adopted by a convention, at = Madison, on=20 the first day of February, 1848.

3. The right of suffrage is vested by the third article of the = constitution,=20 as follows: Sect. 1. Every male person of the age of twenty-one years or = upwards, belonging to either of the following classes, who shall have = resided in=20 this state for one year next preceding any election, shall be deemed a=20 qual-ified elector at such election. 1st. White citizens of the United = States.=20 2d. White persons of foreign birth who shall have declared their = intention to=20 become citizens, conformably to the laws of the United States on the = subject of=20 naturalization. 3d. Persons of Indian blood who have once been declared = by law=20 of congress to be citizens of the United States, any subsequent act of = congress=20 to the contrary notwithstanding.

4th. Civilized persons of Indian descent, not members of any tribe; = Provided,=20 that the legislature may at any time extend by law the right of suffrage = to=20 persons not herein enumerated, but no such law shall be in force until = the same=20 shall have been submitted to a vote of the people at a general election, = and=20 approved by a majority of all the votes cast at such election.

Sect. 2. No person under guardianship, non compos mentis, or insane = shall be=20 qualified to vote at any election; nor shall any person, convicted of = treason or=20 felony, be qualified to vote at any election, unless restored to civil=20 rights.

Sect. 3. All votes shall be given by ballot, except for such township = officers as may by law be directed or allowed to be otherwise = chosen.

Sect. 4. No person shall be deemed to have lost his residence in this = state=20 by reason of absence on business of the United States or of this = state.

Sect. 5. No soldier, seaman or marine, in the army or navy of the = United=20 States, shall be deemed a resident in this state, in consequence of = being=20 stationed within the same.

Sect. 6. Laws may be passed excluding from the right of suffrage all = persons=20 who have been, or may be convicted of bribery, or larceny, or any = infamous=20 crime, and depriving every person who shall make or become directly or=20 indirectly interested in any bet or wager depending upon the result of = any=20 election, of the right to vote at such election. 4, The fourth article = vests the=20 legislative power in a senate and assembly. These will be separately = considered,=20 by taking a view, 1. Of the senate. 2. Of the assembly.

5. - =A71. The senate. It will be proper to examine, first, the = qualification=20 of the senators; secondly, the time of their election; third, the = duration of=20 their office fourth, the number of senators.

6. - 1. The senators must have resided one year within the state, and = be=20 qualified electors in the district which they may be chosen to = represent. Sect.=20 6.

7. - 2. Senators are elected on the Tuesday following the first = Monday of=20 November by the qualified electors of the several districts. One half = every=20 year.

8. - 3. They hold their office for two years.

9. - 4. The senate shall consist of a number of members not more than = one-third, nor less than one-fourth of the number of the members of the=20 assembly. Sect. 2.

10. - =A72. The assembly will be, considered in the same order.

11. - 1. Members of the assembly must have resided one year in the = state, and=20 be qualified electors for the district for which they may be chosen.

12. - 2. Members of the assembly are elected at the same time = senators are=20 elected.

13. - 3. They are elected annually.

14. - 4. The number of members of the assembly shall never be less = than=20 fifty-four nor more than one hundred.

15. The two houses are invested severally with the following = powers:

Sect. 7. Each house shall be the judge of the elections, returns and=20 quali-fications of its own members; and a majority of each shall = constitute a=20 quorum to do business, but a smaller number may adjourn from day to day, = and may=20 compel the attendance of absent members, in such manner and under such = penalties=20 as each house may provide.

Sect. 8. Each house may determine the rules of its own proceedings, = punish=20 for contempts and disorderly behaviour; and, with the concurrence of = two-thirds=20 of all the members elected, expel a member; but no member shall be = expelled a=20 second time for the same cause.

Sect. 9. Each house shall choose its own officers, and the senate = shall=20 choose a temporary president when the lieutenant-governor shall not = attend as=20 president, or shall act as governor.

Sect. 10. Each house shall keep a journal of its proceedings and = publish the=20 same, except such parts as require secrecy. The doors of each house = shall be=20 kept open, except when the public welfare shall require secrecy. Neither = house=20 shall, without the consent of the other, adjourn for more than three = days.

16. By the fifth article, the executive power is vested in a = governor.

17. - Sect. 1. The executive power shall be vested in a governor, who = shall=20 hold his office for two years; a lieutenant governor shall be elected at = the=20 same time, and for the same term.

18. - Sect. 2. No person, except a citizen of the United States, and = a=20 qua-lified elector of the state, shall be eligible to the office of = governor or=20 lieutenant governor.

19. - Sect. 3. The governor and lieutenant governor shall be elected = by the=20 qualified electors of the state, at the times and places of choosing = members of=20 the legislature. The persons respectively having the highest, number of = votes=20 for governor and lieutenant-governor shall be elected, but in case two = or more=20 shall have an equal and the highest number of votes for governor or=20 lieutenant-governor, the two houses of the legislature, at its next = annual=20 session, shall forthwith, by joint ballot, choose one of the persons so = having=20 an equal and the higbest number of votes, for governor or lieutenant = governor.=20 The returns of election for governor or lieutenant governor shall be = made in=20 such manner as shall be provided by law.

20. - Sect. 4. The governor shall be commander-in-chief of the = military. and=20 naval forces of the state. He shall have power to convene the = legislature on=20 extra-ordinary occasions; and in case of invasion, or danger from the=20 preva-lence of contagious disease at the seat of government, he may = convene them=20 at any other suitable place within the state. He shall communicate to = the=20 legislature at every session, the condition of the state; and recommend = such=20 matters to them for their consideration as he may deem expedient. He = shall=20 transact all necessary business with the officers of the government, = civil and=20 military. He shall expedite all such measures as may be resolved upon by = the=20 legislature, and shall take care that the laws be faithfully = executed.

21. - Sect. 5. The governor shall receive during his continuance in = office an=20 annual compensation of one thousand two hundred and fifty dollars.

22. - Sect. 6. The governor shall have the power to grant reprieves,=20 commutations and pardons after conviction for all offences, except = treason, and=20 cases of impeachment, upon such conditions and with such restrictions = and=20 lim-itations as he may think proper, subject to such regulations as may = be=20 provided by law relative to the manner of applying for pardons. Upon = conviction=20 for treason he shall have the power to suspend the execution of the = sentence,=20 until the case shall be reported to the legislature at its next meeting, = when=20 the legislature shall either pardon, or commute the sentence, direct the = execution of the sentence, or grant a further reprieve. He shall = annually=20 communicate to the legislature each case of reprieve, commutation or = pardon=20 granted, stating the name of the convict, the crime of which he was = convicted,=20 the sentence and its date, and the date of the commutation, pardon or = re-prieve,=20 with his reasons for granting the same.

23. - Sect. 7. In case of the impeachment of the governor, or his = removal=20 from office, death, inability from mental or physical disease, = resignation or=20 absence from the state, the powers and the duties of the office shall = devolve=20 upon the lieutenant-governor for the residue of the term, until the = governor,=20 absent or impeached, shall have returned, or the disability shall cease. = But=20 when the governor shall, with the consent of the legislature, be out of = the=20 state in time of war, at the head of the military force thereof, he = shall=20 continue commander-in-chief of the military force of the state.

24. - Sect. 8. The lieutenant-governor shall be president of the = senate, but=20 shall have only a casting vote therein. If during a vacancy in the = office of=20 governor, the lieutenant governor shall be impeached, displaced, resign, = die, or=20 from mental or physical disease, become incapable of performing the = duties of=20 his office, or be absent from the state the secretary of state shall act = as=20 governor until the vacancy shall be filled, or the disability shall = cease.

25. - Sect. 9. The lieutenant governor shall receive double the per = them=20 allowance of members of the senate, for every day's attendance as = president of=20 the senate, and the same mileage as shall be allowed to members of the=20 legislature.

26. - Sect. 10. Every bill which shall have passed the legislature, = shall,=20 before it becomes a law, be presented to the governor; if he approve, he = shall=20 sign it, but if not, he shall return it with his objections to that = house in=20 which it shall have originated, who shall enter the objections It large = upon the=20 journal, and proceed to reconsider it. If after such reconsideration,=20 two-thirds. of the members present shall agree to pass the bill, it = shall be=20 sent, together with the objections, to the other house, by which it = shall=20 likewise be reconsidered, and if approved by two-thirds of the members = present,=20 it shall become a law. But in all such cases, the votes of both houses = shall be=20 determined by, yeas and nays, and the names of the members, voting for = or=20 against the bill, shall be entered on the journal of each house = respectively. If=20 any bill shall not be returned by the governor within three days = (Sundays=20 excepted) after it shall have been presented to him, the same shall be a = law,=20 unless the legislature shall by their adjournment prevent its return, in = which=20 case it shall not be a Iaw.

27. The seventh article establishes the judiciary as follows:

Sect. 1. The court for the trial of impeachments shall be composed of = the=20 senate. The house of representatives shall have the power of impeaching = all=20 civil officers of this state, for corrupt conduct in office, or for = crimes and=20 misdemeanors; but a majority of all the members elected shall concur in = an=20 impeachment. On the trial of an impeachment against the governor, the = lieutenant=20 governor shall not act as a member of the court. No judicial officer = shall=20 exercise his office after he shall have been impeached until his = acquittal.=20 Before the trial of an impeachment, the members, of the court shall take = an oath=20 or affirmation truly and impartially to try the impeachment according to = the=20 evidence; and no person shall be convicted without a concurrence of = two-thirds=20 of the members present. Judgment in case of impeachment shall not extend = further=20 than to removal from office, or removal from office and disqualification = to hold=20 any office of honor, profit or trust under the state; but the party = impeached=20 shall be liable to indictment, trial and punishment according to = law.

28. - Sect. 2. The judicial power of this state, both as to matters = of law=20 and equity, shall be vested in a supreme court, circuit courts, courts = of=20 probate, and in justices of the peace. The legislature may also vest = such=20 jurisdiction as shall be deemed necessary in municipal courts and shall = have=20 power to establish inferior courts in the several counties with limited = civil=20 and criminal jurisdiction: Provided, that the jurisdiction which may be = vested=20 in municipal courts shall not exceed, in their respective = municipalities, that=20 of circuit courts, in their respective circuits, as prescribed in this=20 constitution: And that the legislature shall provide as well for the = election of=20 judges of the municipal courts, as of the judges of inferior courts, by = the=20 qualified electors of the respective jurisdictions. The term of office = of the=20 judges of the said municipal and inferior courts shall not be longer = than that=20 of the judges of the circuit court.

29. - Sect, 3. The supreme court, except in cases otherwise provided = in this=20 constitution, shall have appellate jurisdiction only, which shall be = coextensive=20 with the state; but in no case removed to the supreme court shall a = trial by=20 jury be allowed. The supreme court shall have a general superintending = control=20 over all inferior courts; it shall have power to issue writs of habeas = corpus,=20 mandamus, injunction, quo warranto certiorari, and other original and = remedial=20 writs, and to hear and determine the same.

30. - Sect. 4. For the term of five years and thereafter until the=20 legislature shall otherwise provide, the judges of the several courts = shall be=20 judges of the supreme court, four of whom shall constitute a quorum, and = the=20 concurrence of a majority of the judges present shall be necessary to a=20 decision. The legislature shall have power, if they should think it = expedient=20 and necessary to provide by law for the organization of a separate = supreme=20 court, with the jurisdiction and powers prescribed in this constitution, = to=20 consist of one chief justice and two associate justices, to be elected = by the=20 qualified electors of the state, at such time and in such manner as the=20 legislature may provide. The separate supreme court, when so organized, = shall=20 not be changed or discontinued by the legislature; the judges thereof = shall be=20 so classified that but one of them shall go out of office at the same = time, and=20 the term of office shall be the same as provided for the judges of the = circuit=20 court. And whenever the legislature may consider it necessary to = establish a=20 separate supreme court, they shall have power to reduce the number of = circuit=20 court judges to four, and subdivide the judicial circuits, but no such=20 subdivision or reduction shall take effect till after the expiration of = the term=20 of some one of the said judges, or till a vacancy occur by some other = means.

31. Circuits are established, and they may be changed by the = legislature.

Sec. 7. For each circuit there shall be a judge chosen by the = qualified=20 electors therein, who shall hold his office as is provided in this = constitution=20 until his successor shall be chosen and qualified, and after he shall = have been=20 elected, he shall reside in the circuit for which he was elected. One of = said=20 judges shall be designated as chief justice, in such manner as the = legislature=20 shall provide. And the legislature shall, at its first session, provide = by law=20 as well for the election of, as for classifying, the judges of the = circuit court=20 to be elected under this constitution, in such manner, that one of the = said=20 judges shall go out of office in two years, one in three years, one in = four=20 years, one in five years and one in six years, and thereafter the judge = elected=20 to fill the office, shall bold the same for six years.

32. - 8. The circuit courts shall have original jurisdiction in all = matters=20 civil and criminal within this state, not excepted in this constitution, = and not=20 hereafter prohibited by law, and appellate jurisdiction from all = inferior courts=20 and tribunals, and a supervisory control over the same. They shall also = have the=20 power to issue writs of habeas corpus, mandamus, injunction, quo = warranto,=20 certiorari, and all other writs necessary to carry into effect their = orders,=20 judgments and decrees, and give them a general control over inferior = courts and=20 jurisdictions.

33. - Sect. 9. When a vacancy shall happen in the office of a judge = of the=20 supreme or circuit court, such vacancy shall be filled by an appointment = of the=20 governor, which shall continue until a successor is elected and = qualified; and=20 when elected, such successor shall hold his office the residue of the = unexpired=20 term. There shall be no election for a judge or judges at any general = election=20 for state or county officers, nor within thirty days either before or = after such=20 election.

34. - Sect. 10. Each of the judges of the supreme and circuit courts = shall=20 receive a salary, payable quarterly, of not less than one thousand five = hundred=20 dollars annually; they shall receive no fees of office or other = compensation=20 than their salaries; they shall hold no office of public trust, except a = judicial office, during the term for which they are respectively = elected, and=20 all votes for either of them for any office except a judicial office, = given by=20 the legislature or the people, shall be void. No person shall be = eligible to the=20 office of judge who shall not at the time of his election be a citizen = of the=20 United States, and have attained the age of twenty-five years, and be a=20 qualified elector within the jurisdiction for which he may be = chosen.

35. - Sect. 11. The supreme court shall hold at least one term = annually at=20 the seat of government of the state at such times as shall be provided = by law,=20 and the legislature may provide for holding other terms, and at other = places=20 when they may deem it necessary. A circuit court shall be held at least = twice a=20 year, in each county of this state, organized for judicial purposes. The = judges=20 of the circuit court may hold courts for each other, and shall do so = when=20 required by law.

WISTA. Among the Saxons, this was a measure of land; it = contained a=20 half hide, or sixty acres.

TO WIT. To know, that is to say, namely. See Scilicet.

WITH STRONG HAND, pleading. This is a technical phrase = indispensable=20 in describing a forcible entry in an indictment. No other word or = circumlocution=20 will answer the same purpose. 8 T. R. 357.

WITHDRAWING A JUROR, practice. An agreement made between the = parties=20 in a suit to require one of the twelve juror's impanneled to try a cause = to=20 leave the jury box; the act of leaving the box by such a juror is also = called=20 the withdrawing a juror.

2. This arrangement usually takes place at the recommendation of the = judge,=20 when it is obviously improper the case should proceed any further.

3. The effect of withdrawing a juror puts an end to that particular = trial,=20 and each party must pay his own costs. 3 T. R. 657; 2 Dowl. R. 721; S. = C. 1=20 Crom. M. & R. 64.

4. But the plaintiff may bring a new suit for the same cause of an = action. R.=20 & M. 402; S. C. 21 E. C. L. R. 472; 3 Barn. & Adolph. 349; S. C. = 23 E.=20 C. L. R. 91. See 3 Chit. Pr. 916.

WITHERNAM, practice. The name of a writ which issues on the = return of=20 elon-gata to an alias or pluries writ of replevin, by which the sheriff = is=20 commanded to take the defendant's own goods which may be found in his = bailiwick,=20 and keep them safely, not to deliver them to the plaintiff until such = time as=20 the defendant chooses to submit himself, and allow the distress, and the = whole=20 of it, to be reprevied, and he is thereby further commanded that he do = return to=20 the court in what manner he shall have executed the writ. Hamm. N. P. = 453; 2=20 Inst. 140; F. N. B. 68, 69; 19 Vin. Ab. 7; 7 Com. Dig. 674; Grotius, 3, = 2, 4, n.=20 1.

WITHOUT, pleading. This word is adopted in formal traverses, = and is a=20 negative signifying "and not for;" accordingly the language of the elder = entries=20 sometimes is, It et nemy pur tiel cause," &c. Hamm. N. P. 120.

WITHOUT DAY. This signifies that the cause or thing to which = it=20 relates is indefinitely adjourned; as when a case is adjourned without = day, it=20 is not again to be inquired into; when the legislature adjourn without = day they=20 are not to meet again. This is usually expressed in Latin, sine die.

WITHOUT IMPEACHMENT OF WASTE. When a tenant for life holds the = land=20 without impeachment of waste, he is of course dispunishable for waste = whether=20 wilful or otherwise. But still this right must not be wantonly abused so = as to=20 destroy the estate, and he will be enjoined from committing malicious = waste.=20 Dane's Ab. c. 78, a. 14, =A77; Bac. Ab. Waste, N; 2 Eq. Cas. Ab. tit. = Waste, A.=20 pl, 8; 2 Bouv. Inst. n. 2402. See Impeachment of Waste and Waste.

WITHOUT RECOURSE. Vide Sans Recours and Indorsement; Chit. on = Bills,=20 179; 14 S. & R. 325; 3 Cranch, 193; 7 Cranch, 159; 1 Cowen, 538; 12 = Mass.=20 172; 6 Shipl. R. 354.

WITHOUT RESERVE, contracts. These words are frequently used in = conditions of sale at public auction, that the property offered, or to = be=20 offered for sale, will be sold without reserve.

2. When a property is advertised to be sold without reserve, if a = puffer be=20 employed to bid, and actually bid at the sale, the courts will not = enforce a=20 contract against a purchaser, into which he may have been drawn by the = vendor's=20 want of faith. 5 Madd. R. 34. Vide Puffer.

WITHOUT THIS, THAT, pleading. These are technical words used = in a=20 traverse, (q. v.) for the purpose of denying a material fact in the = preceding=20 pleadings, whether declaration, plea, replication, &c. In Latin it = is called=20 absque hoc. (q. v.) Lawes on Pl. in Civ. Act. 119; Com. Dig. Pleader, G = 1;=20 Summary of Pleading, 75; 1 Saund. 103, n.; Ld. Raym. 641; 1 Burr. 320; 1 = Chit.=20 Pl. 576, note a.

WITNESS. One who, being sworn or affirmed, according to law, = deposes=20 as to his knowledge of facts in issue between the parties in a = cause.

2. In another sense by witness is understood one who is called upon = to be=20 present at a transaction, as a wedding, or the making of a will. When a = person=20 signs his name to an instrument, as a deed, a bond, and the like, to = signify=20 that the same was executed in his presence, he is called an attesting=20 witness.

3. The testimony of witnesses can never have the effect of a = demonstration,=20 because it is not impossible, indeed it frequently happens, that they = are=20 mistaken, or wish themselves to deceive. There can, therefore, result no = other=20 certainty from their testimony than what arises from analogy. When in = the calm=20 of the passions, we listen only to the voice of reason and the impulse = of nature=20 we feel in ourselves a great repugnance to betray the truth, to the = pre-judice=20 of another, and we have observes that honest, intelligent and = disinterested=20 persons never combine to deceive others by a falsehood. We conclude = then, by=20 analogy, with a sort of moral certainty, that a fact attested by several = witnesses, worthy of credit, is true. This proof derives its whole force = from a=20 double presumption. We presume, in the first place, on the good sense of = the=20 witnesses that they have not been mistaken; and, secondly, we presume on = their=20 probity that they wish not to deceive. To be certain that they have not = been=20 deceived, and that they do not wish to mislead, we must ascertain, as = far as=20 possible, the nature and the quality of the facts proved; the quality = and the=20 person of the witness; and the testimony itself, by comparing it with = the=20 deposition of other witnesses, or with known facts. Vide = Circumstances.

4. It is proper to consider, 1st. The character of the witness. 2d. = The=20 quality of the witness. 3d. The number of witnesses required by law.

5. - 1. When we are called upon to rely on the testimony of another = in order=20 to form a judgment as to certain facts, we must be certain, 1st. That he = knows=20 the facts in question, and that he is not mistaken; and, 2d. That he is = disposed=20 to tell the truth, and has no desire to impose on those who are to form = a=20 judgment on his testimony. The confidence therefore, which we give to = the=20 witness must be considered, in the first place, by his capacity or his=20 organization, and in the next, by the interest or motive which he has to = tell or=20 not to tell the truth. When the facts to which the witness testifies = agree with=20 the circumstances which are known to exist, he becomes much more = credible than=20 when there is a contradiction in this respect. It is true that until = impeached=20 one witness is as good as another; but when a witness is impeached, = although he=20 remains competent, he is not as credible as before. Vide Circumstances;=20 Competency; Credibility.

6. - 11. As to the quality of the witnesses, it is a general rule = that all=20 persons way be witnesses. To this there are various exceptions. A = witness may be=20 incompetent, 1. For want of understanding. 2. On account of interest. 3. = Because=20 his admission is contrary to public policy. 4. For want of religious = principles;=20 and, 5. On account of infamy.

7. - =A71. Persons who want understanding, it is clear, cannot be = witnesses,=20 because they are to depose to facts which they know; and if they have no = understanding, they cannot know the facts. There are two classes of = persons of=20 this kind.

8. - 1. Infants. A child of any age capable of distinguishing between = good=20 and evil may be examined as a witness; and in all cases, the examination = must be=20 under oath or affirmation. 1 Phil. Ev. 19; 1 Const. R. 354. This appears = to be=20 the rule in England; though formerly it was held by some judges that it = was a=20 presumption of law that the child was incompetent when he was under = seven years=20 of age. Gilb. Ev. 144; 1 East, R. 422; 1 East, P. C. 443; 1 Leach, 199. = When the=20 child is under fourteen, he is presumed incapable until capacity is = shown; 2=20 Tenn. Rep. 80; 19 Mass. R. 225; and see 18 John. R. 105; when he is over = fourteen he may be sworn without a previous examination. 2 South. R. = 589.

9. - 2. Idiots and lunatics. An idiot cannot be examined as a = witness, but a=20 lunatic, (q. v.) during a lucid interval, (q. v.) may be examined. A = person in a=20 state of intoxication cannot be admitted as a witness. 15 Serg. & = Rawle,=20 235. See Ray, Med. Jur. c. 22, =A7300 to 311.

10. - =A72. Interest in the event of the suit excludes the witness = from=20 examination, unless under certain circumstances. See article Interest. = The=20 exceptions are the cases of informers, (q. v.) when the statute makes = them=20 witnes-ses, although they may be entitled to a penalty; 1 Phil. Ev. 96; = persons=20 enti-tled to a reward, (q. v.) are sometimes competent; agents are also = admitted=20 in order to prove a contract made by them on the part of the principal, = 1 Phil.=20 Ev. 99; and see 1 John. Cas. 408; 2 John. Cas. 60; 2 John. R. 189; 13 = Mass. R.=20 380; 11 Mass. R. 60; 2 Marsh. In 706 b; 1 Dall. R. 7; 1 Caines' R. 167. = A mere=20 trustee may be examined by either party. 1 Clarke, R. 281. An interested = witness=20 competency may be restored by a release. 1 Phil. Ev. 101. Vide, = generally, 1=20 Day's R. 266, 269; 1 Caines' R. 276; 8 John. R. 518; 4 Mass. R. 488; 3 = John.=20 Cas. 82, 269; 1 Hayw. 2; 5 Halst. R. 297; 6 Binn. R. 319; 4 Binn. 83; 1 = Dana's=20 R. 181; 1 Taylor's R. 55; Bac. Ab. Evidence B; Bouv. Inst. Index, h. = t.

11. - =A73. There are some persons who cannot be examined as = witnesses, because=20 it is inconsistent with public policy that they should testify against = certain=20 persons; these are,

12. - 1. Husband and wife. The reason for excluding them from giving=20 evidence, either for or against each other, is founded partly on their = identity=20 of interest, partly on a principle of public policy which deems it = necessary to=20 guard the security and confidence of private life, even at the risk of = an=20 occasional failure of justice. They cannot be witnesses for each other = because=20 their interests are absolutely the same; they are not witnesses against = each=20 other, because it is against the policy of marriage. Co. Litt. 6, b; 2 = T. R.=20 265, 269; 6 Binn. 488. This is the rule when either is a party to a = civil suit=20 or action.

13. But where one of them, not being a party, is interested in the = result,=20 there is a distinction between the giving evidence for and against the = other. It=20 is an invariable rule that neither of them is a witness for the other = who is=20 interested in the result, and that where the husband is disqualified by = his=20 interest, the wife is also incompetent. 1 Ld. Raym. 744; 2 Str. 1095; 1 = P. Wms.=20 610.

14. On the other hand, where the interest of the husband, consisting = in a=20 civil liability, would not have protected him from examination, it seems = that=20 the wife must also answer, although the effect may be to subject her = husband to=20 an action. This case differs very materially from those where the = husband=20 himself could not have been examined, either because he was a party or = because=20 he would criminate himself. The party to whom the testimony of the wife = is=20 essential, has a legal interest in her evidence; and as he might insist = on=20 examining the husband, it would, it seems, be straining the rule of = policy too=20 far to deprive him of the benefit of the wife's testimony. In an action = for=20 goods sold and delivered, it has been held that the wife of a third = person is=20 competent to prove that the credit was given to her husband. 1 Str. 504; = B. N.=20 P. 287. See 1 H. & M. 154; 11 Mass. 286; 1 Har. & J. 478; 1 = Tayl. 9; 6=20 Binn. 488; 1 Yeates; 390, 534.

15. When neither of them is either a party to the suit, nor = interested in the=20 general result, the husband or wife is, it seems, competent to prove any = fact,=20 provided the evidence does not directly criminate, or tend to criminate, = the=20 other. 2 T. R. 263.

16. It has been held in Pennsylvania that the deposition of a wife on = her=20 death-bed, charging her husband with murdering her, was good evidence = against=20 him, on his trial for murder. Addis. 332. On an indictment for a = conspiracy in=20 inveigling a young girl from her mother's house, and she being = intoxicated,=20 procuring the marriage ceremony to be recited between her and one of the = de-fendants, the girl is a competent witness to prove the facts. 2 = Yeates,=20 114.

17. See, as to the competency of a wife de facto, but not de jure, = Stark. Ev,=20 pt. 4, p. 711. And on an indictment for forcible entry, the wife of the=20 prosecutor was examined as a witness to prove the force, but only the = force. 1=20 Dall. 68.

18. 2. Attorneys. They cannot be examined as witnesses as to = confidential=20 communications which they have received from their clients, made while = the=20 relation of attorney and client subsisted. 3 Johns. Cas. 198. See 3 = Yeates, 4.=20 Communications thus protected must have been made to him as instructions = ne-cessary for conducting the cause, and not any extraneous or = impertinent=20 matter; 3 Johns. Cas. 198; they must have been made to him in the = character of a=20 counsel and not as a friend merely; 1 Caines' R. 15 7; they must have = been made=20 while the relation of counsel and client existed, and not after. 13 = John. Rep.=20 492. An attorney may be examined as to the existence of a paper = entrusted to him=20 by his client, and as to the fact that it is in his possession, but he = cannot be=20 compelled to produce it, or disclose its date or contents. 17 Johns. R. = 335. See=20 18 Johns. R. 330. He may also be called to prove a collateral fact not = entrusted=20 to him by his client; as to prove. his client's handwriting. 19 Johns. = R. 134: 3=20 Yeates, 4. He is a competent witness for his client, although his = judgment fee=20 depends upon his success; 1 Dall. 241; or he expects to receive a larger = fee=20 from his client if the latter succeeds. 4 S. & R. 82. In Louisiana, = the=20 reverse has been decided. It is there held that an attorney cannot = become a=20 witness for his client in a cause in which he was employed, by = renouncing his=20 fee, and having his name struck off from the record, in that case. 3 N. = S. 88.=20 Vide Confidential Communications.

19. - 3. Confessors. In New York it has been held that a confessor = could not=20 be compelled to disclose secrets which he had received in auricular = confession.=20 City Hall Rec. 80 n. Vide Confessor; Confidential Communications.

20. - 4. Jurors. A juror is not competent to prove his own or the = conduct of=20 his fellow jurors to impeach a verdict they have rendered. 5 Conn. R. = 348. See=20 Coxe, R. 166, and article Grand Jury. And a judge in a cause which is on = trial=20 before him cannot be a witness, as he cannot decide on his own = competency, nor=20 on the weight of his own testimony, compared with that of another; 2 = Mart. R. N.=20 S. 312; 1 Greenl. Ev. =A7364.

21. - 5. Slaves. It is said that a slave could not be a witness at = common law=20 because of the unbounded influence his master had over him. 4 Dall. R. = 145, note=20 1; but see 1 St. Tr. 113 Macnally's Ev. 156. By statutory provisions in = the=20 slave states, a slave is generally held incompetent in actions between = white=20 persons. See 7 Monr. R. 91; 4 Ham. R. 353; 5 Litt. R. 171; 3 Harr. & = John.=20 97; 1 McCord, R. 430. In New York a free black man is competent to prove = facts=20 happening while he was a slave. 1 John. R. 508; see 10 John. R. 132. =

22. - 6. A party to a negotiable instrument, is not allowed to give = evidence=20 to invalidate it. 1 T. R. 300. But the rule is confined to negotiable=20 instruments. 1 Bl. R. 365. This rule does not appear to be very firmly=20 established in England. In the state courts of some of the United States = it has=20 been adopted, and may now be considered to be law. 2 Dall. R. 194; ld. = 196; 2=20 Binn. R. 154; 2 Dall. R. 242; 1 Cain. R. 258, 267; 2 Johns. R. 165; Id. = 258; 1=20 John. R. 572; 3 Mass R. 559; Id. 565; Id. 27; Id. 31; 1 Day, R. 17; 6 = Pet. 51; 8=20 Pet. 12; 5 Greenl. 374; 1 Bailey, 479; 2 Dall. 194. But flee 16 John. = 70; 8=20 Wend. 90; 20 John. 285. The witness may however testify to subsequent = facts, not=20 tending to show that the instrument was originally invalid. Peake's N. = P. C. 6.=20 See 2 Wash. 63; 1 Hen. & Munf. 165, 166, 175; 1 Cranch, R. 194.

23. - =A74. When the witness has no religious principles to bind his=20 conscience, the law rejects his testimony; but there is not such defect = of=20 religious principles, when the witness believes in the existence of a = God, who=20 will reward or punish in this world or that which is to come. Willes' R. = 550.=20 Vide the article Infidel where the subject is more fully examined and = Atheist;=20 Future state.

24. - =A75. Infamy (q. v.) is a disqualification while it = remains.

25. - III. As to the number of witnesses, it is a general rule that = one=20 witness is sufficient to establish a fact, but to this there are = exceptions,=20 both in civil and criminal cases.

26. - 1. In civil cases. The laws of perhaps all the states of the = Union=20 require two witnesses and some require even more, to prove the execution = of a=20 last will and testament devising lands.

27. - 2. In criminal cages, there are several instances where two = witnesses=20 at least are required. The constitution of the United States, art. 3, s. = 3,=20 provides that no person shall be convicted of treason, unless on the = testimony=20 of two witnesses to the same overt act, or on confession in open court. = In cases=20 of perjury there must evidently be two witnesses, or one witness, and = such=20 circumstances as have the effect of one witness; for if there be but one = witness, then there is oath against oath, and therefore uncertainty. =

28. A witness may be compelled to attend court. In the first place a = subpoena=20 requiring his attendance must be served upon him personally, and on his = neglect=20 to attend, an attachment for contempt will be issued. See, generally, = Bouv.=20 Inst. Index, h. t.

WITNESS, AGED. It has been laid down as a rule that to be = considered=20 an aged witness, a person must be at least seventy years old. See Aged=20 Witness.

WITNESS, GOING. A going witness is one who is about to leave = the=20 jurisdiction of the court in which a cause is depending. See Going = Witness.

WITNESS INSTRUMENTARY, Scotch law. He who has attested a deed = or other=20 writing.

2. When witnesses attest a deed without knowing the grantor, and = seeing him=20 subscribe, or bearing him own his subscription, and the deed happens to = be=20 forged, the witnesses are declared accessory to forgery. Ersk. Pr. L. = Scot, 4,=20 4, 37; 6 Hill, N. Y. Rep. 303.

WOMEN, persons. In its most enlarged sense, this word = signifies all=20 the females of the human species; but in a more restricted sense, it = means all=20 such females who have arrived at the age of puberty. Mulieris = appellatione etiam=20 virgo viri potens continetur. Dig. 50, 16, 13.

2. Women are either single or married. 1. Single or unmarried women = have all=20 the civil rights of men; they may therefore enter into contracts or = engagements;=20 sue and be sued; be trustees or guardians, they may be witnesses, and = may for=20 that purpose attest all papers; but they are generally, not possessed of = any=20 political power; hence they cannot be elected representatives of the = people, nor=20 be appointed to the offices of judge, attorney at law, sheriff, = constable, or=20 any other office, unless expressly authorized by law; instances occur of = their=20 being appointed post-mistresses nor can they vote at any election. = Wooddes.=20 Lect. 31; 4 Inst. 5; but see Callis, Sew. 252; 2 Inst 34; 4 Inst. 311, = marg.

3. - 2. The existence of a married woman being merged, by a fiction = of law,=20 in the being of her husband, she is rendered incapable, during the = coverture, of=20 entering into any contract, or of suing or being sued, except she be = joined with=20 her husband; and she labors under all the incapacities above mentioned, = to which=20 single women are subject. Vide Abortion; Contract; Divorce; Feminine; = Foetus;=20 Gender; Incapacity; Man; Marriage; Masculine; Mother; Necessaries; = Parties to=20 Actions Parties to Contracts; Pregnancy; Wife.

WOODGELD, old Eng. law. To be free from the payment of money = for=20 taking of wood in any forest. Co. Litt. 233 a. The same as Pudzeld. (q. = v.)

WOODS, A piece of land on which forest trees in great number = naturally=20 grow. According to Lord Coke, a grant to another of omnes boscos suos, = all his=20 woods, will pass not only all his trees, but the land on which they = grow. Co.=20 Litt. 4 b.

WORD, construction. One or more syllables which when united = convey an=20 idea a single part of speech.

2. Words are to be understood in a proper or figurative sense, and = they are=20 used both ways in law. They are also used in a technical sense. It is a = general=20 rule that contracts and wills shall be construed as the parties = understood them;=20 every person, bowever, is presumed to understand the force of the words = be uses,=20 and therefore technical words must be taken according to their legal = import,=20 even iii wills, unlesh the testator manifests a clear intention to the = contrary.=20 1 Bro. C. C. 33; 3 Bro. C. C. 234; 5 Ves. 401 8 Ves. 306.

3. Every one is required to use words in the sense they are generally = understood, for, as speech has been given to man to be a sign of his = thoughts,=20 for the purpose of communicating them to others, he is bound in treating = with=20 them, to use such words or signs in the sense sanctioned by usage, that = is, in=20 the sense in which they themselves understand them, or else he deceives = them.=20 Heinnec. Praelect. in Puffendorff, lib. 1, cap. 17, =A72 Heinnec. de = Jure Nat.=20 lib. 1, =A7197; Wolff, lust. Jur. Nat. =A77981.

4. Formerly, indeed, in cases of slander, the defamatory words = received the=20 mildest interpretation of which they were susceptible, and some = ludicrous=20 decisions were the consequence. It was gravely decided, that to say of a = merchant, "he is a base broken rascal, has broken twice, and I will make = him=20 break a third time," that no action could be maintained, because it = might be=20 intended that he had a hernia: ne poet dar porter action, car poet estre = intend=20 de burstness de belly. Latch, 104. But now they are understood in their = usual=20 signification. Comb. 37; Ham. N. P. 282. Vide Bouv. Inst. Index, h. t.;=20 Construction; Interpretation.

WORK AND LABOR. In actions of assumpsit, it is usual to put in = a=20 count, commonly called a common count, for work and labor done, and = materials=20 furnished by the plaintiff for the defendant; and when the work was not = done=20 under a special contract, the plaintiff will be entitled to recover on = the=20 common count for work, labor, and materials. 4 Tyr. R. 43; 2 C. & M. = 214.=20 Vide Assumpsit; Quantum meruit.

WORKHOUSE. A prison where prisoners are kept in employment; a=20 penitentiary. A house provided where the poor are taken care of, and = kept in=20 employment.

WORKING DAYS. In settling laydays, (q. v.) or days of = demurrage, (q.=20 v.) sometimes the contract specifies working days in the computation, = Sundays=20 and custom-house holidays are excluded. 1 Bell's Com. 577, 5th ed.

WORKMAN. One who labors, one who is employed to do business = for=20 another.

2. The obligations of a workman are to perform the work he has = undertaken to=20 do; to do it in proper time; to do it well to employ the things = furnished him=20 according to his contract.

3. His rights, are to be paid what his work is worth, or what it = deserves; to=20 have all the facilities which the employer can give him for doing his = work. 1=20 Bouv. Just. n. 1000 to 1006.

WORSHIP. The honor and homage rendered to the Creator.

2. In the United States, this is free, every one being at liberty to = worship=20 God according to the dictates of his conscience. Vide Christianity; = Religious=20 test.

WORSHIP, Eng. law. A title or addition given to certain = persons. 2=20 Inst. 666; Bac. Ab. Misnomer, A 2.

WORTHIEST OF BLOOD. All expression to designate that, in = descent, the=20 sons are to be preferred to daughters, which is the law of England. See = some=20 singular reasons given for this, in Plowd. 305.

WOUND, med. jur. This term, in legal medicine, comprehends all = lesions=20 of the body, and in this it differs from the meaning of the word when = used in=20 surgery. The latter only refers to a solution of continuity, while the = former=20 comprises not only these, but also every other kind of accident, such as = bruises, contusions, fractures, dislocations, and the like. Cooper's = Surgical=20 Dict. h. t.; Dunglison's Med. Dict. h. t.; vide Dictionnaire des = Sciences=20 Medicales, mot Blessures 3 Fodere, Med. Leg. =A7687-811.

2. Under the statute 9 Geo. IV. c. 21, sect. 12, it has been held in = England,=20 that to make a wound, in criminal cases, there must be "an injury to the = person=20 by which the skin is broken." 6 C. & P. 684; S. C. 19 Engl. C. L. = Rep. 526.=20 Vide Beck's Med. Jur. c. 15; Ryan's Med. Jur. Index, h. t.; Roscoe's Cr. = Ev.=20 652; 19 Engl. Com. L. Rep. 425, 430, 526, 529; Dane's Ab. Index, h. t.; = 1=20 Moody's Cr. Cas. 278; 4 C. & P. 381; S. C. 19 E. C. L. R. 430; 4 C. = & P.=20 446; S. C. 19 E. C. L. R. 466; 1 Moody's Cr. C. 318; 4 C. & P. 558; = S. C. 19=20 E. C. L. R. 526; Carr. Cr. L. 239; Guy, Med. Jur. ch. 9, p. 446; Merl. = Repert.=20 mot Blessure.

3. When a person is found dead from wounds, it is proper to inquire = whether=20 they are the result of suicide, accident, or homicide. In making the=20 examination, the greatest attention should be bestowed on all the = circumstances.=20 On this subject some general directions have been given under the = article Death.=20 The reader is referred to 2 Beck's Med. Jur. 68 to 93. As to, wounds on = the=20 living body, see Id. 188.

WRECK, mar. law. A wreck (called in law Latin, wreccum maris, = and in=20 law French, wrec de mer,) signifies such goods, as after a shipwreck, = are cast=20 upon land by the sea, and left there within some county, so as not to = belong to=20 the jurisdiction of the admiralty, but to the common law. 2 Inst. 167; = Bract. 1.=20 3, c. 3; Mirror, c. 1, s. 13, and c. 3.

2. The term `wreck of the sea' includes, 1. Goods found at low water, = between=20 high and low water mark; and 2. Goods between the same limits, partly = resting on=20 the ground, but still moved by the water. 3 Hagg. Adm. R. 257.

3. When goods have touched the ground, and have again been floated by = the=20 tide, and are within low water mark; whether they are to be considered = wreck=20 will depend upon the circumstances whether they were, seized by a person = wading,=20 or swimming, or in a boat. 3 Hagg. Adm. R. 294. But if a human being, or = even an=20 animal, as a dog, cat, hawk, &c. escape alive from the ship, or if = there be=20 any marks upon the goods by which they may be known again, they are not, = at=20 common law, considered as wrecked. 5 Burr. 2738-9; 2 Chit. Com. Law, c. = 6, p.=20 102; 2 Kent, Com. 292; 22 Vin. Ab. 535; 1 Bro. Civ. Law, 238; Park, Ins. = Index,=20 h. t.; Molloy, Jur. Mar. Index, h. t.

4. The act of congress of March 1, 1823, provides, =A721, That, = before any=20 goods, wares or merchandise, which may be taken from any wreck, shall be = admitted to an entry, the same shall be appraised in the manner = prescribed in=20 the sixteenth section of this act and the same proceedings shall be = ordered and=20 executed in all cases where a reduction of duties shall be claimed on = account of=20 damage which any goods, wares, or merchandise, shall have sustained in = the=20 course of the voyage and in all cases where the owner, importer, = consignee, or=20 agent, shall be dissatisfied with such appraisement, he shall be = entitled to the=20 privileges provided in the eighteenth section of this act. Vide = Naufrage.

WRIT, practice. A mandatory precept issued by the authority, = and in=20 the name of the sovereign or the state, for the purpose of compelling = the=20 defendant to do something therein mentioned.

2. It is issued by a court or other competent jurisdiction, and is=20 return-able to the same. It is to be under seal and tested by the proper = officer, and is directed to the sheriff, or other officer lawfully = authorized to=20 execute the same. Writs are divided into, 1. Original. 2. Of mesne = process. 3.=20 Of execution. Vide 3 Bl. Com. 273; 1 Tidd, Pr. 93; Gould on Pl. c. 2, s. = 1.=20 There are several kinds of writs, some of which are mentioned below.

WRIT DE BONO ET MALO. An ancient writ which was issued in the = case of=20 each prisoner, instead of a general commission of general jail delivery = for all=20 the prisoners. This writ has not been used for a very long time, and is=20 obsolete. 4 Bl. Com. 210.

WRIT OF CONSPIRACY. The name of an ancient writ, now = superseded by the=20 more convenient remedy of an action on the case, which might have been = sued=20 against parties guilty of a conspiracy. F. N. B. 260. See = Conspiracy.

WRIT OF DECEIT. The name of a writ which lies where one man = has done=20 anything in the name of another, by which the latter is damnified and = deceived.=20 F. N. B. 217.

2. The modern practice is to sue a writ of trespass on the case to = remedy the=20 injury. See Deceit.

WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment, = and 3=20 Bl. Com. 199.

WRIT DE HAERETICO COMBURENDO, Engl. law. The name of a writ = formerly=20 issued by the secular courts, when a man was turned over to them by the=20 ecclesiastical tribunals, after having been condemned for heresy.

2. It was founded on the statute 2 Hen. IV. c. 15; it was first used, = A. D.=20 1401, and as late as the year 1611. By virtue of this writ, the unhappy = man=20 against whom it was issued, was burned to death. See 12 Co. R. 92.

WRIT DE HOMINE RELEGIANDO, practice. A writ which lies to = replevy a=20 man out of prison, or out of the custody of any private person, in the = same=20 manner in which cattle taken in distress may be replevied, upon giving = security=20 to the sheriff that the man shall be forthcoming to answer to any charge = against=20 him.

2. This writ is almost entirely superseded by the more effectual writ = of=20 habeas corpus. 3 Bl. Com. 129; Com. Dig. Imprisonment, L 4; Lord Raym. = 613; F.=20 N. B. 66; 1 Atk. 633; 14 Vin. Ab. 305; Dane's Ab. h. t.; 7 Com. Dig. = 271; 5=20 Binn. R. 304; 1 John. R. 23; 14 John. R. 263 2 Cain. C. Err. 322.

WRIT DE ODIO ET ATIA, Engl. law. This writ is probably = obsolete, and=20 superseded by the writ of habeas corpus. It was anciently directed to = the=20 sheriff, commanding him to inquire whether a prisoner charged with = murder was=20 committed upon just cause or suspicion, or merely propter odium et = atiam, for=20 hatred and ill-will; and, if upon the inquisition due cause of suspicion = did not=20 appear, then there issued another writ for the sheriff to admit him to = bail, 3=20 Bl. Com. 128; Com. Dig. Imprisonment, L 3.

WRIT OF COVENANTS, practice. A writ which lies where a party = claims=20 damage for breach of covenant, i. e. of a promise under seal.

WRIT OF DEBT, practice. A writ which lies where the party = claims the=20 re-covery of a debt, i. e. a liquidated or certain sum of money alleged = to be=20 due to him. This is debt in the debet, which is the principal and only = common=20 form. There is another species mentioned in the books, called the debt = in the=20 detinet, which lies for the specific recovery of goods, under a contract = to=20 deliver them. 1 Chit. Pl. 101.

WRIT OF DETINUE, practice. A writ which lies where a party = claims the=20 spe-cific recovery of goods and chattels, or deeds and writings detained = from=20 him. This is seldom used: trover is the more frequent remedy, in cases = where it=20 may be brought.

WRIT OF DOWER, practice. A writ which lies for a widow = ciaiming the=20 specific recovery of her dower, no part having been yet assigned to her. = It is=20 usually called a writ of dower unde nihil habet. 3 Chit. Pl. 393; Booth, = 166.

2. There is another species, called a writ of right of dower, which = applies=20 to the particular case where the widow has received a part of her dower = from the=20 tenant himself, and of land lying in the same town in which she claims = the=20 residue. Booth, 166; Glanv. lib. 6, c. 4, 5. This latter writ is seldom = used in=20 practice.

WRIT OF EJECTMENT, practice. The name of a process issued by a = party=20 claiming land or other real estate, against one who is alleged to be = unlawfully=20 in possession. Vide Ejectment.

WRIT OF ENTRY, practice. A writ requiring the sheriff to = command the=20 tenant of land that he render to the demandant the premises in question, = or to=20 appear in court on such a day to show cause why he hath not done so. Co. = Litt.=20 238. See 2 Pick. 473; 10 Pick. 359; 14 Mass. 20; 15 Mass. 305; 5 N. = Hamp. R.=20 450; 6 N. Hamp. R. 555; 7 Pick. 36.

WRIT OF ERROR, practice. A writ issued out of a court of = competent=20 jurisdiction, directed to the judge of a court of record in which final = judgment=20 has been given, and commanding them, in some cases, themselves to = examine the=20 re-cord; in others to send it to another court of appellate = jurisdiction,=20 therein named, to be examined in order that some alleged error in the = proceeding=20 may be corrected. Steph. Pl. 138; 2 Saund. 100, n. 1; Bac. Ab. Error, in = pr.=20

2. The first is called a writ of error coram nobis or vobis. When an = issue in=20 fact has been decided, there is not in general any appeal except by = motion for a=20 new trial; and although a matter. of fact should exist which was not = brought=20 into the issue, as for example, if the defendant neglected to Plead a = release,=20 which he might have pleaded, this is no error in the proceedings, though = a=20 mistake of the defendant. Steph. Pl. 139. But there are some facts which = affect=20 the validity and regularity of the proceeding itself, and to remedy = these errors=20 the party in interest may sue out the writ of error coram vobis. The = death of=20 one of the parties at the commencement of the suit; the appearance of an = infant=20 in a personal action, by an attorney, and not by guardian; the coverture = of=20 either party, at the commencement of the suit, when her husband is not = joined=20 with her, are instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212; 2 = Tidd's=20 Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.

3. The second species is called, generally, writ of error, and is the = more=20 common. Its object is to review and correct an error of the law = committed in the=20 proceedings, which is not amendable, or cured at common law, or by some = of the=20 statutes of amendment or jeofail. Vide, generally, Tidd's Pr. ob. 43; = Graham's=20 Pr. B. 4, o. 1; Bac. Ab. Error; 1 Vern. 169; Yelv. 76; 1 Salk. 322; 2 = Saund. 46,=20 n. 6, and 101, n. 1; 3 Bl. Com. 405; Serg. Const. Law, ch. 5.

4. In the French law the demande en cassation is somewhat similar to = our=20 proceeding in error; according to some of the best writers on French = law, it is=20 considered as a new suit, and it is less an action between the original = parties,=20 than a question between the judgment and the law. It is not the action = which is=20 to be judged, but the judgment; "la demande en cassation est un nouveau = proces,=20 bien moins entre les parties qui figuraient dans le premier, qu'entre = l'arret et=20 la loi." Henrion de Pansey, de l'Autorite judiciare dans les = gouvernemens=20 monarchiques, p. 270, edit. in 8vo.; 6 Toull. n. 193. Ce n'est point le' = proces=20 qu'il s'agit de juger, mais le jugement. Ib.

5. A writ of error is in the nature of a suit or action, when it is = to=20 restore the party who obtains it to the possession of any thing which is = withheld from him, not when its operation is entirely defensive. 3 = Story. Const.=20 =A71721. And it is considered generally as a new action. 6 Port 9.

WRIT OF EXECUTION, practice. A writ to put in force the = sentence that=20 the law has given: it is addressed to the Sheriff (and in the courts of = the=20 United States, to the marshal) commanding him, according to the nature = of the=20 case, either to give the plaintiff possession of lands; or to enforce = the=20 delivery of a chattel which was the subject of the action; or to levy = for the=20 plain-tiff, the debt, or damager, and costs recovered; or to levy for = the=20 defendant his costs; and that, either upon the body of the opposite = party, his=20 lands, or goods, or in some cases, upon his body, land, and goods; the = extent=20 and manner of the execution directed, always depending upon the nature = of the=20 judgment. 3 Bl. Com. 413.

2. Writs of execution are supposed to be actually awarded by the = judges in=20 court; but no such award is in general, actually made. The attorney, = after=20 signing final judgment, sues out of the proper office a writ of = execution, in=20 the form to which he conceives he would be entitled upon such judgment = as he.=20 has entered, if such entry has been actually made; and, if not made, = then upon=20 such as he thinks he is entitled to enter; and he does this, of course, = upon=20 peril that, if he takes a wrong execution, the proceeding is legal and = void, and=20 the opposite party entitled to redress. Steph. Pl, 137, 8. See Ca. Sa.;=20 Execution; Fi. Fa.; Haberefa. possessionem; Vend. Exp.

WRIT OF EXIGI FACIAS. The name of a process issued in the = course of=20 proceedings in outlawry, and which immediately precedes the writ of = capias=20 agatum. See Exigent, or Exigi Facias.

WRIT OF FORMEDON, practice. This writ lies where a party = claims the=20 specific recovery of lands and tenements, as issue in tail; or as = remainder-man=20 or reversioner, upon the determination of an estate in tail. Co. Litt. = 236 b;=20 Booth, 139, 151, 154.

WRIT OF INQUIRY, practice. When in an action sounding in = damages, (q.=20 v.) as covenant, trespass, and the like, an interlocutory judgment is = rendered,=20 which is, that the plaintiff ought to recover his damages, without = specifying=20 the amount, it not yet being ascertained, the court does not in general=20 undertake the office of assessing the damages, but issues a writ of = inquiry,=20 which is a writ directed to the sheriff of the county where the facts = are=20 alleged by the pleadings to have occured, commanding him to inquire into = the=20 amount of damages sustained "by the oath or affirmation of twelve good = or lawful=20 men of his county;" and to return such inquisition, when made, to the = court.

2. The finding of the sheriff and jury under such a proceeding is = called an=20 inquisition. (q. v.)

3. The court will, on application, order that a writ of inquiry shall = be=20 executed before a judge, where it appears that important questions of = law will=20 arise. 2 John. R. 107.

4. When executed before the sheriff, he acts ministerially, and not=20 judicially, and therefore, it may be executed before a deputy of the = sheriff. 2=20 John R. 63. Vide Steph. Pl. 126; Grah. Pr. 639; 2 Archb. Pr. 19; Tidd's = Pr. 513;=20 Yelv. 152, n.; 18 Eng. Com. Law Rep. 181, n., 189, n.; 1 Marsh. R. 129; = l Sell.=20 Pr. 346; Watson on Sher. 221; 2 Saund. 107, n. 2.

WRITS, JUDICIAL, practice. In England those writs which issue = from the=20 common law courts during the progress of a suit, are described as = judicial=20 writs, by way of distinction from the original one obtained from = chancery. 3 Bl.=20 Com. 282.

WRIT OF MAINPRIZE, English law. A writ directed to the sheriff = (either=20 gen-erally, when any man is imprisoned for a bailable offence, and bail = has been=20 refused; or specially, when the offence or cause of commitment is not = properly=20 bailable below) commanding him to take sureties for the prisoner's = appearance,=20 commonly called mainpernors, and to set him at large. 3 B]. Com. 128. = Vide=20 Mainprize.

WRIT OF MESNE, Breve' de medio, old English law. A writ which = was so=20 called, by reason of the words used in the writ, namely, Unde idem A qui = medius=20 est inter C et praefatum B; that is, A, who is mesne between C, the lord = paramount, and B, the tenant paravail. Co. Litt. 100, a.

WRIT, ORIGINAL, practice, English law. An original writ is a = mandatory=20 letter issuing out of the court of chancery under the great seal and in = a king's=20 name, directed to the sheriff of the county where the injury is alleged = to have=20 been committed, containing a summary statement of the cause of = complaint, and=20 requiring him in most cases, to command the defendant to satisy the = claim; and,=20 on his failure to comply, then to summon him to appear in one of the = superior=20 courts of common law, there to account for his non-compliance. In some = cases,=20 however, it omits the former alternative, and requires the sheriff = simply to=20 enforce the appearance. Steph. Pl. 5.

WRIT OF REPLEVIN, practice. The name of a process issued for = the=20 recovery of goods and chattels. Vide Replevin.

WRIT OF PRAECIPE. This writ is also called a writ of covenant, = and is=20 sued out by the party to whom lands are to be conveyed by fine; the = foundation=20 of which is a supposed agreement or covenant that the one shall convey = the land=20 to the other. 2 Bl. Com. 349, 350.

WRIT OF PREVENTION. This name is given to certain writs which = may be=20 issued in anticipation of suits which may arise. Co. Litt. 100. See Quia = Timet.=20

WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out = by a=20 widow when the executors of her deceased husband refused to let her have = a third=20 part of her late husband's goods after the debts were paid. F. N. B. = 284.

WRIT OF RESTITUTION. A writ which is issued on the reversal of = a=20 judgment, commanding the sheriff to restore to the defendant below, the = thing=20 levied upon, if it has not been sold, and if it has been sold, the = proceeds.=20 Bac. Ab. Execution, Q. Vide Restitution.

WRIT PRO RETORNO HABENDO, remedies, practice. The name of a = writ which=20 re-cites that the defendant was summoned to appear to answer the = plaintiff in a=20 plea whereof he took the cattle of the said plaintiff, specifying them, = and that=20 the said plaintiff afterwards made default, wherefore it was then = considered=20 that the said plaintiff and his pledges of prosecuting should be in = mercy and=20 that the said defendant should go without day, and that he should have = re-turn=20 of the cattle aforesaid. It then commands the sheriff, that he should = cause to=20 be returned the cattle aforesaid, to the said defendant without delay, = &c. 2=20 Sell. Pr. 168. Vide Judgment in replevin.

WRIT OF PROCESS, Engl. law, pradice. If the defendant does not = appear,=20 in obedience to the original writ, there issue, when the time for = appearance is=20 past, other writs, returnable on some general return day in the term, = called=20 writs of process, enforcing the appearance of the defendant, either by=20 attachment, or distress of his property, or arrest of his person, = according to=20 the nature of the case.

2. These differ from the original writ in the following particulars; = they=20 issue not out of chancery, but out of the court of common law, into = which the=20 original writ is returnable; and, accordingly, are not under the great = seal, but=20 the private seal of the court; and they bear teste in the named of the = chief=20 justice of that court, and not in the name of the king himself. It may = also be=20 observed, that in common with all other writs issuing from the court of = common=20 law, during the progress of the suit, they are described as judicial = writs, by=20 way of distinction from the original one obtained from the chancery. 4 = Bl. Com.=20 282. See further, as to the nature of those writs, 1 Tidd's Pr. 106-193, = 4th=20 edit.; 1 Sellon's Pr. 64-102.

WRIT OF PROCLAMATION, Engl. practice. A writ which issues, at = the same=20 time with the exigi facias, by virtue of Stat. 31 Eliz. c. 3, s. 1, by = which the=20 sheriff is commanded to make proclamations in the statute = prescribed.

2. When it is not directed to the same sheriff as the writ of exigi = facias=20 is, it is called a foreign writ of proclamation. Lee's Dict. of Pr.; 4 = Reev.=20 Inst. 261.

WRIT OF QUARE IMPEDIT, English law. The remedy by which, where = the=20 right of a party to benefice is obstructed, he recovers the = presentation; and is=20 the form of action now constantly adopted to try a disputed title to an=20 advowson. Booth, 223 1 Arch. Civ. Pl. 34.

WRIT OF RECAPTION, practice. This writ lies where, pending an = action=20 of replevin, the same distrainor takes, for the same supposed cause, the = cattle=20 or goods of the same distrainee. See F. N. B. 169.

2. This writ is nearly obsolete, as trespass, which is found to be a=20 pre-ferable remedy, lies for the second taking; and, as the defendant = cannot=20 justify, the plaintiff must necessarily recover damages proportioned to = the=20 injury.

WRIT OF RIGHT, practice. The remedly appropriate to the case = where a=20 party claims the specific recovery of corporeal hereditaments in fee = simple;=20 founding his title on the right of property, or mere right, arising = either from=20 his own seisin, or the seisin of his ancestor or predecessor. F. N. B. 1 = B 3 Bl.=20 Com. 391.

2. At common law, a writ of right lies only against the tenant of the = free-hold demanded. 8 Cranch, 239.

3. This writ brings into controversy only the rights of the parties = in the=20 suit, and a defence that a third person has better title will not avail. = Id.; 7=20 Wheat. 27; 3 Pet. 133. See 2 Wheat. 306; 4 Bing. N. S. 711; 3 Bing. N. = S. 434; 4=20 Scott, R. 209; 6 Scott, R. 435; Id. 738; 1 Bing. N. S. 597; 5 Bing. N. = S. 161; 6=20 Ad. & Ell. 103; 1 H. Bl. 1; 5 Taunt. R. 326; 1 Marsh. R. 68; 2 Bos. = & P.=20 570; 1 N. R. 64; 4 Taunt. R. 572; 3 Bing. R. 167; 2 W. Bl. Rep. 1261; 1 = B. &=20 B. 17; 2 Car. & P. 187; Id. 271 Holt, R. 657; 8 Cranch, 229; 3 = Fairf. 312; 7=20 Wend. 250; 3 Bibb, 57; 3 Rand. 568 2 J. J. Marsh. 104; 2 A. K. Marsh. = 396; 1=20 Dana, 410; 2 Leigh, R. 1 4 Mass. 64; 17 Mass. 74.

WRIT OF TRESPASS, practice. This writ lies where a party = claims=20 damages for a trespass committed against his person, or tangible and = corporeal=20 property. See Trespass.

WRIT OF TRESPASS ON THE CASE, practice. A writ which lies = where a=20 party sues for damages for any wrong or cause of complaint to which = covenant or=20 trespass will not apply. See 3 Woodd. 167; Steph. Pl. 15.

2. This action originates in the power given by the statute of Westm. = 2, to=20 the clerks of chancery to frame new writs in consimili casu with writs = already=20 known. Under this power they constructed many writs for different = injuries,=20 which were considered as in consimili casu, with, that is, to bear a = certain=20 analogy to a trespass. The new writs invented for the cases supposed to = bear=20 such analogy, have received, accordingly, the appellation of writs of = trespass=20 on the case, as being founded on the particular circumstances of the = case thus=20 requiring a remedy, and, to distinguish them from the old writ of = trespass; 3=20 Reeves, 89, 243, 391; and the injuries themselves, which are the = subjects of=20 such writs, are not called trespasses, but have the general name of = torts, wrong=20 or grievances.

3. The writs of trespass on the case, though invented thus, pro re = nata, in=20 various forms, according to the nature of the different wrongs which=20 respectively called them forth began nevertheless, to be viewed as = constituting=20 collectively a new individual form of action; and this new genus took = its place,=20 by the name of Trespass on the case, among the more ancient actions of = debt,=20 covenant, trespass, &c. Such being the nature of this action, it = comprises,=20 of course, many different species. There are two, however, of more = frequent use=20 than any other species of trespass on the case, or, perhaps, than any = other firm=20 of action whatever. These are assumpsit and trover. Steph. Pl. 15, = 16.

WRIT OF TOLT, Eng. law. The name of a writ to remove = proceedings on a=20 writ of right patent from the court baron into the county court. 3 Bl.=20 Commen-taries, App. No. 1, =A72.

WRIT OF WASTE. The name of a writ to be issued against a = tenant who=20 has committed waste of the premises. There are several forms of this = writ, that=20 against a tenant in dower differs from the others. F. N. B. 125.

WRITING. The act of forming by the hand letters or characters = of a=20 particular kind on paper or other suitable substance, and artfully = putting them=20 together so as to co nvey ideas. It differs from printing, which is the=20 formation of words on paper or other proper substance by means of a = stamp.=20 Sometimes by writing ii understood printing, and sometimes printing and = writing=20 mixed.

2. Many contracts are required to be in writing; all deeds for real = estate=20 must be in writing, for it cannot be conveyed by a contract not in = writing, yet=20 it is the constant practice to make deeds partly in printing, and partly = in=20 writing. Wills, except nuncupative wills, must begin writing, and signed = by the=20 testator; and nuncupative wills must be reduced to writing by the = witnesses=20 within a limited time after the testator's death.

3. Records, bonds, bills of exchange and many other engagements, = must, from=20 their nature, be made in writing, See Frauds, statute of; Language.

WRITING OBLIGATORY. A bond; an agreement reduced to writing, = by which=20 the party becomes bound to perform something, or suffer it to be = done.

WRONG. An injury; (q. v.) a tort (q. v.) a violation of right. = In its=20 most usual sense, wrong signifies an injury committed to the person or = property=20 of another, or to his relative rights, unconnected with contract; and = these=20 wrongs are committed with or without force. But in a more extended=20 signification, wrong includes the violation of a contract; a failure by = a man to=20 perform his undertaking or promise is a wrong or injury to him to whom = it was=20 made. 3 Bl. Com. 158.

2. Wrongs are divided into public and private. 1. A public wrong is = an act=20 which is injurious to the public generally, commonly known by the name = of crime,=20 misdemeanor, or offence, and it is punishable in various ways, such as=20 indictments, summary proceedings, and upon conviction by death, = imprisonment,=20 fine, &c. 2. Private wrongs, which are injuries to individuals, = unaffecting=20 the public: these are redressed by actions for damages, &c.

WRONG-DOER. One who commits an injury, a tort-feasor. (q. v.) = Vide=20 Dane's Abridgment, Index, h. t.

WRONGFULLY INTENDING. These words are used in a declaration = when in an=20 action for an injury, the motive of the defendant in committing it can = be=20 proved, for then his malicious intent ought to be averred. This is = sufficiently=20 done if it be substantially alleged, in general terms, as wrongfully = intending.=20 3 Bouv. Inst. n. 2871.

Index

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