BACHELOR. The first degree taken at the universities in the arts and sciences, as bachelor of arts, & c. It is called, in Latin, Baccalaureus, from bacalus, or bacillus, a staff, because a staff was given, by way of distinction, into the hands of those who had completed their studies. Some, however, have derived the word from baccalaura, others from bas chevalier, as designating young squires who aspire to the knighthood. (Dupin.) But the derivation. of the word is uncertain.
BACK-BOND. A bond given by one to a surety, to* indemnify such surety in case of loss. In Scotland, a back-bond is an instrument which, in conjunction with another which gives an absolute disposition, constitutes a trust. A declaration of trust.
BACK-WATER. That water in a stream which, in consequence of some obstruction below, is detained or checked in its course, or reflows.
2. Every riparian owner is entitled to the benefit of the water in its natural state. Whenever, therefore, the owner of land dams or impedes the water in such a manner as to back it on his neighbor above, he is liable to an action; for no one has a right to alter the level of the water, either where it enters, or where it leaves his property. 9 Co. 59; 1 B. & Ald. 258; 1 Wils. R. 178; 6 East, R. 203; 1 S. & Stu. 190.; 4 Day, R. 244; 7 Cowen, R. 266; 1 Rawle, R. 218; 5 N. R. Rep. 232; 9 Mass. R. 316; 7 Pick. R. 198; 4 Mason, R. 400; 1 Rawle, R. 27; 2 John. Ch. R. 162, 463; 1 Coxe's. R. 460. Vide, Dam; Inundation; Water-course; and 5 Ohio R. 322.
BACKING, crim. law practice. Backing a warrant occurs whenever it becomes necessary to execute it out of the jurisdiction of the magistrate who granted it; as when an offender escapes out of the county in which he committed the offence with which he is charged, into another county. In such a case, a magistrate of the county in which the offender may, be found, endorses, or writes his name on the back of the warrant, and thereby gives authority to execute it within his jurisdiction. This is called backing the warrant. This may be from county to county, if necessary.
BACKSIDE, estates. In England this term was formerly used in conveyances and even in pleadings, and is still, adhered to with reference to ancient descriptions in deeds, in continuing the transfer of the same. property. It imports a yard at the back part of, or behind a house, and belonging thereto: but although formerly used in pleadings, it is now unusual to adopt it, and the word yard is preferred. 1 Chitty's Pr. 177; 2 Ld. Raym. 1399.
BADGE. A mark or sign worn by some persons, or placed upon certain things for the purpose of designation. Some public officers, as watchmen, policemen, and the like, are required to wear badges that they may be readily known. It is used figuratively when we say, possession of personal property by the seller, is. a badge of fraud.
BAGGAGE. Such articles as are carried by a traveller; luggage. Every thing which a passenger, carries, with him is not baggage. Large sums of money, for example, carried in a travelling trunk, will not be considered baggage, so as to render the carrier responsible. 9 Wend. R. 85. But a watch deposited in his trunk is part of his baggage. 10 Ohio R. 145. See, as to what is baggage, 6 Hill, R. 586 5 Rawle, 188, 189; 1 Pick. 50.
2. In general a common carrier of passengers is responsible for baggage, if lost, though no distinct price be paid for transporting it, it being included in the passenger's fare. Id. The carrier's responsibility for the baggage begins as soon as it has been delivered to him, or to his servants, or to some other person authorized by him to receive it. Then the delivery is complete. The risk and responsibility of the carrier is at an end as soon as he has delivered the baggage to the owner or his agent; and if an offer to deliver it be made at a proper time, the carrier will be discharged from responsibility, us 'such yet, if the baggage remain in his custody afterwards, he will hold as, bailee, and be responsible for it according to the terms of such bailment ana, R. 92. Vide Common Carriers
3. By the act of congress of March 2, 1799, sect. 46, 1 Story's L. U. S. 612, it is declared that all wearing apparel and other personal baggage, &c., of persons who shall arrive in the United States, shall be free and exempted from duty.
BAIL, practice, contracts. By bail is understood sureties, given according to law, to insure the appearance of a party in court. The persons who become surety are called bail. Sometimes the term is applied, with a want of exactness, to the security given by a defendant, in order to obtain a stay of execution, after judgment, in civil cases., Bail is either civil or criminal.
2.- 1. Civil bail is that which is entered in civil cases, and is common or special bail below or bail above.
3. Common bail is a formal entry of fictitious sureties in the proper office of the court, which is called filing. common bail to the action. It is in the same form as special bail, but differs from it in this, that the sureties are merely fictitious, as John Doe and Richard Roe: it has, consequently, none of, the incidents of special bail. It is allowed to the defendant only when he has been discharged from arrest without bail, and it is necessary in such cases to perfect the appearance of the defendant. Steph. Pl. 56, 7; Grah. Pr. 155; Highm. on Bail 13.
4. Special bail is an undertaking by one or more persons for another, before some officer or court properly authorized for that purpose, that he shall appear at a certain time and place, to answer a certain charge to be exhibited against him. The essential qualification to enable a person to become bail, are that he must be, 1. a freeholder or housekeeper; 2. liable to the ordinary process of the court 3. capable of entering into a contract; and 4. able to pay the amount for which he becomes responsible.
1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5 Taunt. 174; Lofft, 148 3 Petersd. Ab. 104.
2. He must be subject to the ordinary process of the court; and a person privileged from arrest, either permanently or temporarily, will not be taken. 4 Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
3. He must be competent to enter into a contract; a feme covert, an infant, or a person non compos mentis, cannot therefore become bail.
4. He must be able to pay the amount for which he becomes responsible. But it is immaterial whether his property consists of real or personal estate, provided it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit. Rep. 97; 11 Price, 158; and be liable to the ordinary process of the law; 4 Burr. 2526; though this rule is not invariably adhered to, for when part of the property consisted of a ship, shortly expected, bail was permitted to justify in respect of such property. 1 Chit. R. 286, n. As to the persons who cannot be received because they are not responsible, see 1 Chit. R. 9, 116; 2 Chit. R. 77, 8; Lofft, 72, 184; 3 Petersd. Ab. 112; 1 Chit. R. 309, n.
5. Bail below. This is bail given to the sheriff in civil cases, when the defendant is arrested on bailable process; which is done by giving him a bail bond; it is so called to distinguish it from bail above. (q. v.) The sheriff is bound to admit a man to bail, provided good and sufficient sureties be tendered, but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4 Anne, c. 16, 20; B. N. P. 224; 2 Term Rep., 560. The sheriff, is not, however, bound-to demand bail, and may, at his risk, permit the defendant to be at liberty, provided he will appear, that is, enter bail above, or surrender himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking of bail below is, that the defendant will appear or put in bail to the action on the return day of the writ.
6. Bail above, is putting in bail to the action, which is an appearance of the defendant. Bail above are bound either to satisfy the plaintiff his debt and costs, or to surrender the defendant into custody, provided judgment should be against him and he should fail to do so. Sell. Pr. 137.
7. It is a general rule that the defendant having been held to bail, in civil cases, cannot be held a second time for the same cause of action. Tidd' s Pr. 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur. 594. See Auter action Pendent; Lis pendens.
8. - 2. Bail in criminal cases is defined to be a delivery or bailment of a person to sureties, upon their giving, together with himself, sufficient security for his appearance, he being supposed to be in their friendly custody, instead of going to prison.
9. The Constitution of the United States directs that "excessive bail shall not be required." Amend. art. 8.
10. By the acts of congress of September, 24, 1789, s. 33, and March 2, 1793, s. 4, authority is given to take bail for any crime or offence against the United States, except where the punishment is death, to any justice or judge of the United States, or to any chancellor, judge of the supreme or superior court, or first judge of any court of common pleas, or mayor of any city of any state, or to any justice of the peace or other magistrate of any state, where the offender may be found the recognizance tal,-en by any of the persons authorized, is to be returned to the court having cognizance of the offence.
11. When the punishment by the laws of the United States is death, bail can be taken only by the supreme or circuit court, or by a judge of the district court of the United States. If the person committed by a justice of the supreme court, or by the judge of a district court, for an offence not punishable with death, shall, after commitment, offer bail, any judge of the supreme or superior court of law, of any state, (there being no judge of the United States in the district to take such bail,) way admit such person to bail.
12. Justices of the peace have in general power to take bail of persons accused; and, when they have such authority they are required to take such bail There are many cases, however, under the laws of the several states, as well as under the laws of the United States,, as above mentioned, where justices of the peace cannot take bail, but must commit; and, if the accused offers bail, it must be taken by a judge or other,, officer lawfully authorized.
13. In Pennsylvania, for example, in cases of murder, or when the defendant is charged with the stealing of any horse, mare, or gelding, on the direct testimony of one witness; or shall be taken having possession of such horse, mare, or gelding, a justice of the peace cannot admit the party to bail. 1 Smith's L. of Pa. 581.
14. In all cases where the party is admitted to bail, the recognizance is to be returned to the court having jurisdict on of the offence charged. Vide Act of God. Arrest; Auter action pendent; Deat Lis pendens.
BAIL BOND, practice, contracts. A specialty by which the defendant and other persons, usually not less than two, though the sheriff may take only one, become bound to the sheriff in a penalty equal to that for which bail is demanded, conditioned for the due appearance of such defendant to the legal process therein described, and by which the sheriff has been commanded to arrest him. It is only where the defendant is arrested or in the custody of the sheriff, under other than final process, that the sheriff can take such bond. On this bond being tendered to him, which he is compelled to take if the sureties are good, he must discharge the defendant. Stat. 23 H. VI. c. 9.
2. With some exceptions, as for example, where the defendant surrenders; 5 T. R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326; nothing can be a performance of the condition of the bail bond, but putting in bail to the action. 5 Burr. 2683.
3. The plaintiff has a right to demand from the sheriff an assignment of such bond, so that he may sue it for his own benefit. 4 Ann. c. 16, 20; Wats. on Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites of a bail bond, see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T. R. 702; 9 East, 55; . D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R. 264 East, 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.
BAIL PIECE. A certificate given by a judge or the clerk of the court, or other person authorized to keep the record, in which it is certified that A B, the bail, became bail, for C D, the defendant, in a certain sum, and in a particular case. It was the practice formerly, to write these certificates upon small pieces of parchment, in the following form: (See 3 Bl. Com. Appendix.)
In the Court of ______________, of the Term of ________, in the year of our Lord, ____________, ________________City and County of ________________, ss. Theunis Thew is delivered to bail upon the taking of his body, to Jacobus Vanzant, of the city of_________________, merchant, and to John Doe, of the same city, yeoman. SMITH, JR. At the suit of Attorney for Deft. PHILIP CARSWELL. Taken and acknowledged the ____ day of _______, A. D. _____, before me. D. H.
2. As the bail is supposed to have the custody of the defendant, when he is armed with this process, he may arrest the latter, though he is out of the jurisdiction of the court in which he became bail, and even in a different state. 1 Baldw. 578; 3 Com. 84, 421; 2 Yeates, 263 8 pick. 138; 7 John. 145; 3 Day, 485. The bail may take him even while attending court as a suitor, or any time, even on Sunday. 4 Yeates, 123; 4 Conn. 170. He may break even an outer door to seize him; and command the assistance of the sheriff or other officers; 8 Pick. 138; and depute his power to others.. 1 John. Cas. 413; 8 Pick. 140. See 1 Serg. & R. 311.
BAILABLE ACTION. One in which the defendant is entitled to be discharged from arrest, only upon giving bail to answer.
BAILABLE PROCESS. Is that process by which an officer is required to arrest a person, and afterwards to take bail for his appearance. A capias ad respondendum is bailable, but a capias ad satisfaciendum is not.
BAILEE, contracts. One to whom goods are bailed.
2. His duties are to act in good faith he is bound to use extraordinary diligence in those contracts or bailments, where he alone receives the benefit, as in loans; he must observe ordinary diligence of those bailments, which are beneficial to both parties, as hiring; and he will be responsible for gross negligence in those bailments which are only for the benefit of the bailor, is deposit and mandate. Story's Bailm. 17, 18, 19. He is bound to return the property as soon as the purpose for which it was bailed shall have been accomplished.
3. He has generally a right to retain and use the thing bailed, according to the contract, until the object of the bailment shall have been accomplished.
4. A bailee with a mere naked authority, having a right to remuneration for his trouble, but coupled with no other interest, may support trespass for any injury, amounting to a trespass, done while he was in the actual possession of the thing. 4 Bouv. Inst. n. 3608.
BAILIFF, account render. A bailiff is a person who has, by delivery, the custody and administration of lands or goods for the benefit of the owner or bailor, and is liable to render an account thereof. Co. Lit. 271; 2 Leon. 245; 1 Mall . Ent. 65. The word is derived from the old French word bailler, to bail, that is, to deliver. Originally, the word implied the delivery of real estate, as of land, woods, a house, a part of the fish in a pond; Owen, 20; 2 Leon. 194; Keilw. 114 a, b; 37 Ed. III. 7; 10 H. VII. 7, 30; but was afterwards extended to goods and chattels. Every bailiff is a ,receiver, but every receiver is not a bailiff. Hence it is a good plea that the defendant never was receiver, but as bailiff. 18 Ed. III. 16. See Cro. Eliz. 82-3; 2 Anders. 62-3, 96-7 F. N. B. 134 F; 8 Co. 48 a, b.
2. From a bailiff is required administration, care, management, skill. He is, therefore, entitled to allowance for the expense of administration, and for all things done in his office, according to his own judgment, without the special direction of his principal, and also for casual things done in the common course of business: 1 Mall. Ent. 65, (4) 11; 1 Rolle, Ab. 125, 1, 7; Co. Lit. 89 a; Com. Dig. E 12 Bro. Ab. Acc. 18 Lucas, Rep. 23 but not for things foreign to his office. Bro. Ab. Acc .26, 88; Plowd. 282b, 14; Com. Dig. Acc. E13; Co. Lit. 172; 1 Mall. Ent. 65, (4) 4. Whereas, a mere receiver, or a receiver who is not also a bailiff, is not entitled to allowance for any expenses. Bro. Ab. Acc. 18; 1 Mall. Ent. 66, (4) 10; 1 Roll. Ab. 118; Com. Dig. E 13; 1 Dall. 340.
3. A bailiff may appear and plead for his principal in an assize; " and his plea com- mences " thus, " J. S., bailiff of T. N., comes " &c., not " T. N., by his bailiff, J. S., comes," &c. 2 Inst. 415; Keilw. 117 b. As to what matters he may plead, see 2 Inst. 414.
BAILIFF, office. Magistrates who for merly administered justice in the parliaments or courts of France, answering to the English sheriffs as mentioned by Bracton. There are still bailiffs of particular towns in England as the bailiff of Dover Castle, &c., otherwise bailiffs are now only officers or stewards, &c. as Bailiffs of liberties, appointed by every lord within his liberty, to serve writs, &c. Bailiff errent or itenerant, appointed to go about the country for the same purpose. Sheriff 's bailies, sheriff's officers to execute writs; these are also called bound bailiffs because they are usually bound in a bond to the sheriff for the due exeecution of their office. Bailiffs of court baron, to summon the court, &c. Bailffs of hushandry, appointed by private persons to collect their rents and manage their estates. Water bailiffs, officers in port towns for searching ships, gathering tolls, &c. Bac. Ab. h. t.
BAILMENT, contracts. This word is derived from the French, bailler, to deliver. 2 Bl. Com. 451; Jones' Bailm. 90 Story on Bailm. c. 1, 2. It is a compendious expression, to signify a contract resulting from delivery. It has been defined to be a delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purposes for which they are bailed shall be answered. 1 Jones' Bailm. 1. Or it is a delivery of goods in trust, on a contract either expressed or implied, that the trust shall be duly executed, and the goods redelivered, as soon as the time or use for which they were bailed shall have elapsed or be performed. Jones' Bailm. 117.
2. Each of these definitions, says Judge Story, seems redundant and inaccurate if it be the proper office of a definition to include those things only which belong to the genus or class. Both these definitions suppose that the goods are to be restored or redelivered; but in a bailment for sale, as upon a consignment to a factor, no redelivery is contemplated between the parties. In some cases, no use is contemplated by the bailee, in others, it is of the essence of the contract: in some cases time is material to terminAte the contract; in others, time is necessary to give a new accessorial right. Story,on Bailm. c. 1, 2.
3. Mr. Justice Blackstone has defined a bailment to be a delivery of goods in trust, upon contract, either expressed or implied, that the trust shall be faithfully executed on the part of the bailee. 2 Bl. Com. 451. And in another place, as the delivery of goods to another person for a particular use. 2 Bl. Com. 395. Vide Kent's Comm. Lect. 40, 437.
4. Mr. Justice Story says, that a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story on Bailm. c. 1, 2. This corresponds very nearly with the definition of Merlin. Vide Repertoire, mot Bail.
5. Bailments are divisible into three kinds: 1. Those in which the trust is for the benefit of the bailor, as deposits and mandates. 2. Those in which the trust is for the benefit of the bailee, as gratuitous loans for use. 3. Those in which the trust is for the benefit of both parties, as pledges or pawns, and hiring and letting to hire. See Deposit; Hire; Loans; mandates and Pledges.
6. Sir William Jones has divided bailments into five sorts, namely: 1. Depositum, or deposit. 2. Mandatum, or commission without recompense. 3. Commodatum, or loan for use, without pay. 4. Pignori acceptum, or pawn. 5. Locatum, or hiring, which is always with reward. This last is subdivided into, 1. Locatio rei, or biring, by which the hirer gains a temporary use of the thing. 2. Locatio operis faciendi, when something is to be done to the thing delivered. 3. Locatio operis mercium vehendarum, when the thing is merely to be carried from one place to another. See these several words. As to the obligations and duties of bailees in general, see Diligence, and Story on Bailm. c. 1; Chit. on Cont. 141; 3 John. R. 170; 17 Mass. R. 479; 5 Day, 15; 1 Conn. Rep. 487; 10 Johns. R. 1, 471; 12 Johns. R. 144, 232; 11 Johns. R. 107; 15 Johns. R. 39; 2 John. C. R. 100; 2 Caines' Cas. 189; 19 Johns. R. 44; 14 John. R. 175; 2 Halst. 108; 2 South. 738; 2 Harr. & M'Hen. 453; 1 Rand. 3; 2 Hawks, 145; 1 Murphy, 417; 1 Hayw. 14; 1 Rep. Con. Ct. 121, 186; 2 Rep. Con. Ct. 239; 1 Bay, 101; 2 Nott & M'Cord, 88, 489; 1 Browne, 43, 176; 2 Binn. 72; 4 Binn. 127; 5 Binn. 457; 6 Binn. 129; 6 Serg. & Rawle, 439; 8 Serg. & Rawle, 500, 533; 14 Serg. & R. 275; Bac. Ab. h. t.; 1 Bouv. Inst. n. 978-1099.
BAILOR, contracts. He who bails a thing to another.
2. The bailor must act with good faith towards the bailee; Story's Bailm. 74, 76, 77; permit him to enjoy the thing bailed according to contract; and, in some bailments, as hiring, warrant the title and possession of the thing hired, and probably, to keep it in suitable order and repair for the purpose of the bailment. Id. Vide Inst. lib. 3, tit. 25.
BAILIWICK. The district over which a sheriff has jurisdiction; it signifies also the same as county, the sheriff's bailiwick extending over the county.
2. In England, it signifies generally that liberty which is exempted from the sheriff of the county over which the lord of the liberty appoints a bailiff. Vide Wood's Inst. 206.
BAIR-MAN, Scottish law. A poor insolvent debtor left bare.
BAIRN'S PART, Scottish, law. Children's part a third part of the defunct's free movables, debts deducted, if the wife survive, and a half if there be no relict.
BALANCE, com. law. The amount which remains due by one of two persons, who have been dealing together, to the other, after the settlement of their accounts.
2. In the case of mutual debts, the balance only can be recovered by the assignee of an insolvent, or the executor of a deceased person. But this mutuality must have existed at the time of the assignment by the insolvent, or at the death of the testator.
3. The term general balance is sometimes used to signify the difference which is due to a party claiming a lien on goods in his hands, for work or labor done, or money expended in relation to those and other goods of the debtor. 3 B. & P. 485; 3 Esp. R. 268.
BALANCE SHEET. A statement made by merchants and others to show the true state of a particular business. A balance sheet should exhibit all the balances of debits and credits, also the value of merchandize, and the result of the whole. Vide Bilan.
BALANCE OF TRADE, Com. law. The difference between the exports and importations, between two countries. The balance of trade is against that country which has imported more than it has exported, for which it is debtor to the other country.
BALIVA. A bailiwick or jurisdiction.
BALIVO AMOVENDO, Eng. practice. A writ to remove a bailiff out of his office.
BALLASTAGE, mar. law. A toll paid for the privilege, of taking up ballast from the bottom of the port. This arises from the property in the soil. 2 Chit. Com. Law, 16.
BALLOT, government. A diminutive ball, i. e. a little ball used in giving votes; the act itself of giving votes. A little ball or ticket used in voting privately, and, for that purpose, put, into a box, (commonly called a ballot-box,) or into some other contrivance.
BALNEARII, civil law. Stealers of the clothes of person who were washing in the public baths. Dig. 47, 17; 4 Bl. Com. 239; Calviui Lex. Jurid.
BAN, A proclamation, or public notice any summons or edict by which a thing is forbidden or commanded. Vide Bans of Matrimony; Proclamation; Cowell's Interp.
BANC or BANK. The first of these is a French word signifying bench, pronounced improperly bank. 1. The seat of judgment, as banc le roy, the king's bench banc le common pleas, the bench of common pleas.
2. The meeting of all the judges or such as may form a quorum, as, the court sit in banc. Cowell's Interp.
BANCO. A commercial term, adopted from the Italian, used to distinguish bank money from the common currency; as $1000,
BANDIT. A man outlawed; one who is said to be under ban.
BANE. This word was formerly used to signify a malefactor. Bract. 1. 2, t. 8, c. 1.
BANISHMENT, crim. law. A punishment inflicted upon criminals, by compelling them to quit a city, place, or country, for, a specified period of time, or for life. Vide 4 Dall. 14. Deportation; Relegation.
BANK, com. law. 1. A place for the deposit of money. 2. An institution, generally incorporated, authorized to receive deposits of money, to lend money, and to issue promissory notes, usually known by the name of bank notes. 3. Banks are said to be of three kinds, viz : of deposit, of discount, and of circulation; they generally perform all these operatious. Vide Metc. & Perk. Dig. Banks and Banking.
BANKBOOK ,commerce. A book which persons dealing with a bank keep, in which the officers of the bank enter the amount of money deposited by them, and all notes or bills deposited by them, or discounted for their use.
BANK NOTE, contracts. A bank note resembles a common promissory note, (q. v.) issued by a bank or corporation authorized to act as a bank. It is in fact a promissory note, but such notes are not, for many purposes, to be considered as mere securities for money; but are treated as money, in the ordinary course and transactions of business, by the general consent of mankind and, on payment of them, when a receipt is required, the receipts are always given as for money, not as for securities or notes. 1 Burr. R. 457; 12 John. R. 200; 1 John. Ch. R. 231; 9 John. R. 120; 19 John. 144; 1 Sch. & Lef. 318, 319; 11 Ves. 662; 1 Roper, Leg. 3; 1 Ham. R. 189, 524; 15 Pick. 177; 5 G. & John. 58; 3 Hawks, 328; 5 J. J. Marsh. 643.
2. Bank notes are assignable by delivery. Rep. Temp. Hard. 53 9 East, R. 48; 4 East, R. 510 Dougl. 236. The holder of a bank note is prima facie entitled to prompt payment of it, and cannot be affected by the fraud of any former holder in obtaining it, unless evidence be given to bring it home to his privity. 1 Burr. 452; 4 Rawle, 185 13 East, R. 135 Dane's Ab. Index, h. t.; Pow. on Mortg. lndex, h. t. U. S. Dig. h. t. Vide Bouv. Inst. Index, h. t. Note; Promissory note; Reissuable note.
3. They cannot be taken in execution. Cunning. on Bills, 537; Hardw. Cases, 53; 1 Arch. Pr. 268 1 Wils. Rep. 9 Cro. Eliz. 746, pl. 25
BANK STOCK. The capital of a bank. It is usually divided in shares of a certain amount. This stock is generally transferable on the bools of the bank, and considered as personal property. Vide Stock.
BANKER, com. law. A banker is one engaged in the business of receiving other persons money in deposit, to be returned on demand discounting other persons' notes, and issuing his own for circulation. One who performs the business usually transacted by a bank. Private bankers are generally not permitted.
2. The business of bankers is generally performed through the medium of incorporated banks.
3. A banker may be declared a bankrupt by adverse proceedings against him. Act of Congress of 19th Aug. 1841. See 1 Atk. 218; 2 H. Bl. 235; 1 Mont. B. L. 12.
4. Among the ancient Romans there were bankers called argentarii, whose office was to keep registers of contracts between individuals, either to loan money, or in relation to sales and stipulations. These bankers frequently agreed with the creditor to pay him the debt due to him by the debtor. Calvini Lex. Jurid.
BANKERS' NOTE, contracts. In England a distinction is made between bank notes, (q. v.) and bankers' notes. The latter are promissory notes, and resemble bank notes in every respect, except that they are given by persons acting as private bankers. 6 Mod. 29; 3 Chit. Com. Law, 590; 1 Leigh's N. P. 338.
BANKRUPT. A person who has done, or suffered some act to be done, which is by law declared an act of bankruptcy; in such case he may be declared a bankrupt.
2. It is proper to notice that there is much difference between a bankrupt and an insolvent. A man may be a bankrupt, and yet be perfectly solvent; that is, eventually able to pay all his debts or, he may be insolvent, and, in consequence of not having done, or suffered, an act of bankruptcy. He may not be a bankrupt. Again, the bankrupt laws are intended mainly to secure creditors from waste, extravagance, and mismanagement, by seizing the property out of the hands of the debtors, and placing it in the custody of the law; whereas the insolvent laws only relieve a man from imprisonment for debt after he has assigned his property for the benefit of his creditors. Both under bankrupt and insolvent laws the debtor is required to surrender his property, for the benefit of his creditors. Bankrupt laws discharge the person from imprisonment, and his property, acquired after his discharge, from all liabilities for his debts insolvent laws simply discharge the debtor from imprisonment, or liability to be imprisoned, but his after-acquired property may be taken in satisfaction of his former debts. 2 Bell, Com. B. 6, part 1, c. 1, p. 162; 3 Am. Jur. 218.
BANKRUPTCY. The state or condition of a bankrupt.
2. Bankrupt laws are an encroacbment upon the common law. The first in England was the stat. 34 and 35 H. VIII., c. 4, although the word bankrupt appears only in the title, not in the body of the act. The stat. 13 Eliz. c. 7, is the first that defines the term bankrupt, and discriminates bankruptcy from mere insolvency. Out of a great number of bankrupt laws passed from time to time, the most considerable are the statutes 13 Eliz. c. 7; 1 James I., c. 19 21 James I., c. 19 5 Geo. II., c. 30. A careful consideration of these statutes is sufficient to give am adequate idea of the system of bankruptcy in England. See Burgess on Insolvency, 202-230.
3. The Constitution of the United States, art. 1, s. 8, authorizes congress "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States." With the exception of a short interval during which bankrupt laws existed in this country, this power lay dormant till the passage of the act of 1841, since repealed.
4. Any one of the states may pass a bankrupt law, but no state bankrupt or insolvent law can be permitted to impair the obligation of contracts; nor can the several states pass laws conflicting with an act of congress on this subject 4 Wheat. and the bankrupt laws of a state cannot affect the rights of citizens of another state. 12 Wheat. It. 213. Vide 3 Story on the Const. 1100 to 1110 2 Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the Const. c. 9 6 Pet. R. 348 Bouv. Inst. Index, h. t. Vide Bankrupt.
BANKS OF RIVERS, estates. By this term is understood what retains the river in its natural channel, when there is the greatest flow of water.
2. The owner of the bank of a stream, not navigable, his in general the right to the middle of the stream. Vide Riparian Proprietor.
3. When by imperceptible increase the banks on one side extend into the river, this addition is called alluvion. (q. v.) When the increase is caused by the sudden transfer of a mass of earth or soil from the opposite bank, it is called an increase by avulsion. (q. v.)
BANNITUS. One outlawed or banished. See Calvini Lex.
BANS OF MATRIMONY. The giving public notice or making proclamation of a matrimonial contract, and the intended celebration of the marriage of the parties in pursuance of such contract, to the end that persons objecting to the same, may have an opportunity to declare such objections before the marriage is solemnized. Poth. Du Mariage, partie 2, c. 2. Vide Ban.
BAR, actions. A perpetual destruction or temporary taking away of the action of the plaintiff. In ancient authors it is called exceptio peremptorid. Co. Litt. 303 b Steph. Pl. Appx. xxviii. Loisel (Institutes Coutumieres, vol. ii. p. 204) says, "Exceptions (in pleas) have been called bars by our ancient practitioners, because, being opposed, they arrest the party who has sued out the process, as in war (une barriere) a barrier arrests an enemy; and as there have always been in our tribunals bars to separate the advocates from the judges, the place where the advocates stand (pour parler) when they speak, has been called for that reason (barreau) the bar."
2. When a person is bound in any action, real or personal, by judgment on demurrer, confession or verdict, he is barred, i. e. debarred, as to that or any other action of the like nature or degree, for the same thing, forever; for expedit reipublicae ut sit finis litim.
3. But there is a difference between real and personal actions.
4. In personal actions, as in debt or account, the bar is perpetual, inasmuch as the plaintiff cannot have an action of a higher nature, and therefore in such actions he has generally no remedy, but by bringing a writ of error. Doct. Plac. 65; 6 Co. 7, 8 4 East, 507, 508.
5. But if the defendant be barred in a real action, by judgment on a verdict, demurrer or confession, &c., he may still have an action of a higher nature, and try the same right again. Lawes, Pl. 39, 40. See generally, Bac. Ab. Abatement, N; Plea in bar. Also the case of Outram v. Morewood, 3 East, Rep. 346-366; a leading case on this subject.
BAR, practice. A place in a court where the counsellors and advocates stand to make their addresses to the court and jury; it is so called because formerly it was closed with a bar. Figuratively the counsellors and attorneys at law are called the bar of Philadelphia, the New York bar.
2. A place in a court having criminal jurisdiction, to which prisoners are called to plead to the indictment, is also called, the bar. Vide Merl. Repert. mot Barreau, and Dupin, Profession d'Avocat, tom. i. p. 451, for some eloquent advice to gentlemen of the bar.
BAR, contracts. An obstacle or opposition. 2. Some bars arise from circumstances, and others from persons. Kindred within the prohibited degree, for example, is a bar to a marriage between the persons related; but the fact that A is married, and cannot therefore marry B, is a circumstance which operates as a bar as long as it subsists; for without it the parties might marry.
BAR FEE, Eng. law. A fee taken time out of mind by the sheriff for every prisoner who is acquitted. Bac. Ab. Extortion.
BARBICAN. An ancient word to signify a watch-tower. Barbicanage was money given for the support of a barbican.
BARGAIN AND SALE, conveyancing, contracts. A contract in writing to convey lands to another person; or rather it is the sale of a use therein. In strictness it is not an absolute conveyance of the seizin, as a feoffment. Watk. Prin. Conv. by Preston, 190, 191. The consideration must be of money or money's worth. Id. 237.
2. In consequence of this conveyance a use arises to a bargainee, and the statute 27 Henry VIII. immediately transfers the˜20legal estate and possession to him.
3. A bargain and sale, may be in fee, for life, or for years.
4. The proper and technical words of this conveyance are bargain and sale, but any other words that would have been sufficient to raise a use, upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale. Proper words of limitation must, however, be inserted. Cruise Dig. tit. 32, c. 9; Bac. Ab. h. t. Com. Dig. h. t.; and the cases there cited; Nels. Ab. h. t. 2 Bl. Com. 338.
5. This is the most common mode of conveyance in the United States. 4 Kent, Com. 483; 3 Pick. R. 529; 3 N. H. Rep. 260; 6 Harr. & John. 465; 3 Wash. C. C. Rep. 376; 4 Mass. R. 66; 4 Yeates, R. 295; 1 Yeates, R. 828; 3 John. R. 388; 4 Cowen's R. 325; 10 John. R. 456, 505; 3 N. H. Rep. 261; 14 John. R. 126; 2 Harr. & John. 230; 2 Bouv. Inst. n. 207 7 8.
BARGAINEE. A person to whom a bargain is made; one who receives the advantages of a bargain.
BARGAINOR. A person who makes a a bargain, and who becomes bound to perform it.
BARGEMEN. Persons who own and keep a barge for the purpose of carrying the goods of all. such other persons who may desire to employ them. They are liable as common, carriers. Story, Bailm. 496.
BARLEYCORN. A lineal measure, containing one-third of an inch. Dane's Ab. c. 211, a. 13, s. 9. The barleycorn was the first measure, with its division and multiples, of all our measures of length, superfices, and capacity. Id. c. 211, a. 1 2, s. 2.
BARN, estates. A building on a farm used to receive the crop, the stabling of animals, and other purposes.
2. The grant or demise of a barn, without words superadded to extend its meaning, would pass no more than the barn itself, and as much land as would be necessary for its complete enjoyment. 4 Serg. & Rawle, 342.
BARON. This word has but one signification in American law, namely, hushand: we use baron and feme, for hushand and wife. And in this sense it is going out of use.
2. In England, and perhaps some other countries, baron is a title of honor; it is the first degree of nobility below a viscount. Vide Com. Dig. Baron and Feme; Bac. Ab. Baron and Feme; and the articles. Hushand; Marriage; Wife.
3. In the laws of the middle ages, baron or bers, (baro) signifes a great vassal; lord of a fief and tenant immediately from the king: and the words baronage, barnage and berner, signify collectively the vassals composing the court of the king; as Le roi et son barnage, The king and his court. See Spelman's Glossary, verb. Baro.
BARONS OF EXCHEQUER, Eng. law. The name given to the five judges of the Exchequer formerly these were baros of the realm, but now they are chosen from persons learned in the law.
BARRACK. By this term, as used in Pennsylvania, is understood an erection of upright posts supporting a sliding roof, usually of thatch. 5 Whart. R. 429.
BARRATOR, crimes. One who has been guilty of the offence of barratry.
BARRATRY, crimes. In old law French barat, baraterie, signifying robbery, deceit, fraud. In modern usage it may be defined as the habitual moving, exciting, and maintaining suits and quarrels, either at law or otherwise. 1 Inst. 368; 1 Hawk. 243.
2. A man cannot be indicted as a common barrator in respect of any number of false and groundless actions brought in his own right, nor for a single act in right of another; for that would not make him a common barrator.
3. Barratry, in this sense, is different from maintenance (q. v.) and champerty. (q. v.)
4. An attorney cannot be indicted for this crime, merely for maintaining another in a groundless action. Vide 15 Mass. R. 229 1 Bailey's R. 379; 11 Pick. R. 432; 13 Pick. R. 362; 9 Cowen, R. 587; Bac. Ab. h. t.; Hawk. P. C. B. 1, c. 21; Roll. Ab. 335; Co. Litt. 368; 3 Inst. 175.
BARRATRY, maritime law, crimes. A fraudulent act of the master or mariners, committed contrary to their duty as such, to the prejudice of the owners of the ship. Emer. tom. 1, p. 366; Merlin, Repert. h. t.; Roccus, h. t.; 2 Marsh. Insur. 515; 8 East, R. 138, 139. As to what will amount to barratry, see Abbott on Shipp. 167, n. 1; 2 Wash. C. C. R. 61; 9 East, R. 126; 1 Str. 581; 2 Ld. Raym. 1349; 1 Term R. 127; 6 Id. 379; 8 Id. 320; 2 Cain. R. 67, 222; 3 Cain. R. 1; 1 John. R. 229; 8 John. R. 209, n. 2d edit.; 5 Day. R. 1; 11 John. R. 40; 13 John. R, 451; 2 Binn. R. 274; 2 Dall. R. 137; 8 Cran. R. 39; 3 Wheat. R. 168; 4 Dall. R. 294; 1 Yeates, 114.
2. The act of Congress of April, 30, 1790, s. 8, 1 Story's Laws U. S. 84, punishes with death as piracy, "any captain or mariner of any ship or other vessel who shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize to the value of fifty dollars; or yield up such ship or vessel to any pirate or if any such seamen shall lay violent hands upon his commander, thereby to binder or prevent his fighting in defence of his ship, or goods, committed to his trust, or shall make a revolt in the said ship."
BARREL. A measure of capacity, equal to tliirty-six gallons.
BARREN MONEY, civil law. This term is used to denote money which bears no interest.
BARRENNESS. The incapacity to produce a child. This, when arising from impotence, is a cause for dissolving a marriage. 1 Fodere, Med. Leg. 254.
BARRISTER, English law. A counsellor admitted to plead at the bar.
2. Ouster barrister, is one who pleads ouster or without the bar.
3. Inner barrister, a serjeant or king's counsel who pleads within the bar.
4. Vacation barrister, a counsellor newly called to the bar, who is to attend for several long vacations the exercise of the house.
5. Barristers are called apprentices, apprentitii ad legem, being looked upon as learners, and not qualified until they obtain the degree of serjeant. Edmund Plowden, the author of the Commentaries, a volume of elaborate reports in the reigns of Edward VI., Mary, Philip and Mary, and Elizabeth, describes himself as an apprentice of the common law.
BARTER. A contract by which the parties exchange goods for goods. To complete the contract the goods must be delivered, for without a delivery, the right of property is not changed.
2. This contract differs from a sale in this, that barter is always of goods for goods, whereas a sale is an exchange of goods for money. In the former there never is a price fixed, in the latter a price is indispensable. All the differences which may be pointed out betwen these two contracts, are comprised in this; it is its necessary consequence. When the contract is an exchange of goods on one side, and on the other side the consideration is partly goods and partly money, the contract is not a barter, but a sale. See Price; Sale.
3. If an insurance be made upon returns from a country where trade is carried on by barter, the valuation of the goods in return shall be made on the cost of those given in barter, adding all charges. Wesk. on Ins. 42. See 3 Camp. 351 Cowp. 818; 1 Dougl. 24, n.; 1 N. R. 151 Tropl. de l'Echange.
BARTON, old English law. The demesne land of a manor; a farm distinct from the mansion.
BASE. Something low; inferior. This word is frequently used in composition; as base court, base estate, base fee, &c.
BASE COURT. An inferior court, one not of record. Not used.
BASE ESTATE, English law. The estate which base tenants had in their lands. Base tenants were a degree above villeins, the latter being compelled to perform all the commands of their lords; the former did not hold their lands by the performance of such commands. See Kitch. 41.
BASE FEE, English law. A tenure in fee at the will of the lord. This was distinguished from socage free tenure. See Co. Litt. 1, 18.
BASILICA, civil law. This is derived from a Greek word, which signifies imperial constitutions. The emperor Basilius, finding the Corpus Juris Civilis of Justinian too long and obscure, resolved to abridge it, and under his auspices the work proceeded to the fortieth book, which, at his death, remained unfinished. His son and successor, Leo, the philosopher, continued the work, and published it in sixty books, about the year 880. Constantine Porphyro-genitus, younger brother of Leo, revised the work, re-arranged it, and republished it, Anno Domini, 910. From that time the laws of Justinian ceased to have any force in the eastern empire, and the Basilica were the foundation of the law observed there till Constantine XIII, the last of the Greek emperors, under whom, in 1453, Constantinople was taken by Mahomet the Turk, who put an end to the empire and its laws. Histoire de la Jurisprudence Etienne, Intr. a 1'etude du Droit Romain, LIII. The Basilica were written in Greek. They were translated into Latin by J. Cujas (Cujacius) Professor of Law in the University of Bourges, and published at Lyons, 22d of January, 1566, in one vol. fo.
BASTARD. A word derived from bas or bast, signifying abject, low, base; and aerd, nature. Minshew, Co. Lit. 244; a. Enfant de bas, a child of low birth. Dupin. According to Blackstone, 1 Com. 454, a bastard in the law sense of the word, is a person not only begotten, but born out of lawful matrimony. This definition does not appear to be complete, inasmuch as it does not embrace the case of a person who is the issue of an illicit connection, during the coverture of his mother. The common law, says the Mirror, only taketh him to be a son whom the marriage proveth to be so. Horne's Mirror, c. 2, 7; see Glanv. lib 8, cap. 13 Bract. 63, a. b.; 2 Salk. 427;, 8 East, 204. A bastard may be perbaps defined to be one who is born of an illicit union, and before the lawful marriage of his parents.
2. A man is a bastard if born, first) before the marriage of his parents; but although he may have been begotten while his parents were single, yet if they afterwards marry, and he is born during the coverture, he is legitimate. 1 Bl. Com. 455, 6. Secondly, if born during the coverture, under circumstances which render it impossible that the hushand of his mother can be his father. 6 Binn. 283; 1 Browne's R. Appx. xlvii.; 4 T. R. 356; Str. 940 Id. 51 8 East, 193; Hardin's R. 479. It seems by the Gardner peerage case, reported by Dennis Le Marebant, esquire, that strong moral improbability that the hushand is not the father, is sufficient to bastardize the issue. Bac. Ab. tit. Bastardy, A, last ed. Thirdly, if born beyond a competent time after the coverture has determined. Stark. Ev. part 4, p. 221, n. a Co. Litt. 123, b, by Hargrave & Butler in the note. See Gestation.
3. The principal right which bastard children have, is that of maintenance from their parents. 1 Bl. Com. 458; Code Civ. of Lo. 254 to 262. To protect the public from their support, the law compels the putative father to maintain his bastard children. See Bastardy; Putative father.
4. Considered as nullius filius, a bastard has no inheritable blood in him, and therefore no estate can descend. to him; but he may take by testment, if properly described, after he has obtained a name by reputation. 1 Rop. Lew. 76, 266; Com. Dig. Descent, C, l2; Ie. Bastard, E; Co. Lit. 123, a; Id. 3, a; 1 T. R. 96 Doug. 548 3 Dana, R. 233; 4 Pick. R. 93; 4 Desaus. 434. But this hard rule has been somewhat mitigated in some of the states, where, by statute, various inheritable qualities have been conferred upon bastards. See 5 Conn. 228; 1 Dev. Eq. R. 345; 2 Root, 280; 5 Wheat.. 207; 3 H. & M. 229, n; 5 Call. 143; 3 Dana, 233.
5. Bastards can acquire the rights of legitimate children only by an act of the legislature. 1 Bl. Com. 460; 4 Inst. 36.
6. By the laws of Louisiana, a bastard is one who is born of an illicit union. Civ. Code of Lo. art. 27, 199. There are two sorts of illegitimate cbildren; first, those who are born of two persons, who, at the moment such children were conceived, might have legally contracted marriage with each other; and, secondly, those who are born from persons, to whose marriage there existed at the time, some legal impediment. Id. art. 200. An adulterous bastard is one produced by an unlawful connexion between two persons, who, at the time he was conceived, were, either of them, or both, connected by marriage with some other person or persons. Id. art. 201. Incestuous bastards are those who are produced by the illegal connexion of two persons who are relations within the degrees prohibited by law. Id. art. 202.
7. Bastards, generally speaking, belong to no family, and have no relations; accordingly they are not subject to paternal authority, even when they have been acknowledged. See 11 East, 7, n. Nevertheless, fathers and mothers owe alimony. to their children when they are in need. Id. art. 254, 256. Alimony is due to bastards, though they be adulterous or incestuous, by the mother and her ascendants. Id. art. 262.
8. Children born out of marriage, except those who are born from an incestuous or adulterous connexion, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before the marriage or by the contract of marriage itself. Every other mode of legitimating children is abolished. Id. art. 217. Legitimation may even be extended to deceased children who have left issue, and in that ease, it enures to the benefit of that issue. Id. art. 218. Children legitimated by a subsequent marriage, have the same rights as if born during the marriage. Id. art. 219. See, generally, Vin. Abr. Bastards Bac. Abr. Bastard; Com. Dig. Bastard; Metc. & Perk. Dig. h. t.; the various other American Digests, h. t.; Harr. Dig. h. t.; 1 Bl. Com. 454 to 460; Co. Litt. 3, b.; Bouv. Inst. Index, h. t., And Access; Bastardy; Gestation; Natural Children.
BASTARD EIGNE', Eng. law. Elder bastard. By the old English law, when, a man had a bastard son, and he afterwards married the mother, and by her had a legitimate son, the first was called a bastard eigne, or, as it is now spelled, aine, and the second son was called puisne, or since born, or sometimes he was called mulier puisne. See Mulier; Eigne, 2 Bl. Com. 248.
BASTARDY, crim. law. The offence of begetting a bastard child.
BASTARDY, persons. The state or condition of a bastard. The law presumes every child legitimate, when born of a woman in a state of wedlock, and casts the onus probandi (q. v.) on the party wlio affirms the bastardy. Stark. Ev. h. t.
BASTON. An old French word, which signifies a staff, or club, In some old English statutes the servants or officers of the wardens of the Fleet are so called, because they attended the king's courts with a red staff. Vide Tipstaff.
BATTEL, in French Bataille; Old English law. An ancient and barbarous mode of trial, by Bingle combat, called wager of battel, where, in appeals of felony, the appellee might fight with the appellant to prove his innocence. It was also used in affairs of chivalry or honor, and upon civil cases upon certain issues. Co. Litt. 294. Till lately it disgraced the English code. This mode of trial was abolished in England by stat. 59 Geo.,III. c. 46.
2. This mode of trial was not peculiar to England. The emperor Otho, A. D. 983, held a diet at Verona, at which several sovereigns and great lords of Italy, Germany and France were present. In order to put a stop to the frequent perjuries in judicial trials, this diet substituted in all cases, even in those which followed the course of the Roman law, proof by combat for proof by oath. Henrion de Pansey, Auth. Judic. Introd. c. 3; and for a detailed account of this mode of trial see Herb. Antiq. of the Inns of Court, 119-145.
BATTERY. It is proposed to consider, 1. What is a battery; 2. When a battery, may be justified.
2. 1. A battery is the unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him. 1 Saund. 29, b. n. 1; Id. 13 & 14, n. 3. It must be either wilfully committed, or proceed from want of due care. Str. 596; Hob. 134; Plowd. 19 3 Wend. 391. Hence an injury, be it never so small, done to the person of another, in an angry, spiteful, rude or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him, are batteries in the eye of the law. 1 Hawk. P. C. 263. See 1 Selw. N. P. 33, 4. And any thing attached to the person partakes of its inviolability if, therefore, A strikes a cane in the hands of B, it is a battery. 1 Dall. 1 14 1 Ch. Pr. 37; 1 Penn. R. 380; 1 Hill's R. 46; 4 Wash. C. C. R. 534 . 1 Baldw. R. 600.
3. - 2. A battery may be justified, 1. on the ground of the parental relation 2. in the exercise of an office; 3. under process of a court of justice or other legal tribunal 4. in aid of an authority in law; and lastly, as a necessary means of defence.
4. First. As a salutary mode of correction. For example: a parent may correct his child, a master his apprentice, a schoolmaster his scholar; 24 Edw. IV.; Easter, 17, p. 6 and a superior officer, one under his command. Keilw. pl. 120, p. 136 Bull. N. P. 19 Bee, 161; 1 Bay, 3; 14 John. R. 119 15 Mass. 365; and vide Cowp. 173; 15 Mass. 347.
5. - 2. As a means to preserve the peace; and therefore if the plaintiff assaults or is fighting with another, the defendant may lay hands upon him, and restrain him until his anger is cooled; but he cannot strike him in order to protect 'the party assailed, as he way in self-defence. 2 Roll. Abr. 359, E, pl. 3.
6. - 3. Watchmen may arrest, and detain in prison for examination, persons walking in the streets by might, whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed. 3 Taunt. 14.
7. - 4. Any person has a right to arrest another to prevent a felony.
8. - 5. Any one may arrest another upon suspicion of felony, provided a felony has actually been committed and there is reasonable ground for suspecting the person arrested to be the criminal, and that the party making the arrest, himself entertained the suspicion.
9. - 6. Any private individual may arrest a felon. Hale's P. C. 89.
10. - 7. It is lawful for every man to lay hands on another to preserve public decorum; as to turn him out of church, and to prevent him from disturbing the congregation or a funeral ceremony. 1 Mod. 168; and see 1 Lev. 196; 2 Keb. 124. But a request to desist should be first made, unless the urgent necessity of the case dispenses with it.
11. Secondly. A battery may be justified in the exercise of an office. 1. A constable may freshly arrest one who, in, his view, has committed a breach of the peace, and carry him before a magistrate. But if an offence has been committed out of the constable's sight, he cannot arrest, unless it amounts to a felony; 1 Brownl. 198 or a felony is likely to ensue. Cro. Eliz. 375.
12. - 2. A justice of the peace may generally do all acts which a constable has authority to perform hence he may freshly arrest one who, in his view has broken the peace; or he may order a constable at the moment to take him up. Kielw. 41.
13. Thirdly. A battery may be justified under the process of a court of justice, or of a magistrate having competent jurisdiction. See 16 Mass. 450; 13 Mass. 342.
14. Fourthly. A battery may be justified in aid of an authority in law. Every person is empowered to restrain breaches of the peace, by virtue of the authority vested in him by the law.
15. Lastly. A battery may be justified as a necessary means of defence. 1. Against the plaintiffs assaults in the following instances: In defence of himself, his wife, 3 Salk. 46, his child, and his servant. Ow. 150; sed vide 1 Salk. 407. So, likewise, the wife may justify a battery in defending her hushand; Ld. Raym. 62; the child its parent; 3 Salk. 46; and the servant his master. In these situations, the party need not wait until a blow has been given, for then he might come too late, and be disabled from warding off a second stroke, or from protecting the person assailed. Care, however, must be taken, that the battery do not exceed the bounds of necessary defence and protection; for it is only permitted as a means to avert an impending evil, which might otherwise overwhelm the party, and not as a punishment or retaliation for the injurious attempt. Str. 953. The degree of force necessary to repel an assault will naturally depend upon, and be proportioned to, the violence of the assailant; but with this limitation any degree is justifiable. Ld. Raym. 177; 2 Salk. 642.
16. - 2. A battery may likewise be justified in the necessary defence of one's property; if the plaintiff is in the act of entering peaceably upon the defendant's land, or having entered, is discovered, not committing violence, a request to depart is necessary in the first instance; 2 Salk. 641; and if the plaintiff refuses, the defendant may then, and not till then, gently lay hands upon the plaintiff to remove him from the close and for this purpose may use, if necessary, any degree of force short of striking the plaintiff, as by thrusting him off. Skinn. 228. If the plaintiff resists, the defendant may oppose force to force. 8 T. R. 78. But if the plaintiff is in the act of forcibly entering upon the land, or having entered, is discovered subverting the soil, cutting down a tree or the like, 2 Salk. 641, a previous request is unnecessary, and the defendant may immediately lay hands upon the plaintiff. 8 T. R. 78. A man may justify a battery in defence of his personal property, without a previous request, if another forcibly attempt to take away such property. 2 Salk. 641. Vide Rudeness; Wantonness.
BATTURE. An elevation of the bed of a river under the surface of the water; but it is sometimes used to signify the same elevation when it has risen above the surface. 6 M. R. 19, 216. The term battures is applied, principally, to certain portions of the bed of the river Mississippi, which are left dry when the water is low, and are covered again, either in whole or in part by the annual swells. The word battures, in French, signifies shoals or shallows, where there is not water enough for a ship to float. They are otherwise called basses or brisans. Neuman's Marine Pocket Dict.; Dict. de Trevoux.
BAWDY-HOUSE, crim. law. A house of ill-fame, (q. v.) kept for the resort and unlawful commerce of lewd people of both sexes.
2. Such a house is a common nuisance, as it endangers the public peace by drawing together dissolute and debauched persons; and tends to corrupt both sexes by an open profession of lewdness. 1 Russ. on Cr.; 299: Bac. Ab. Nuisances, A; Hawk. B. 1, c. 74, 1-5.
3. The keeper of such a house may be indicted for the nuisance; and a married woman, because such houses are generally kept by the female sex, may be indicted with her hushand for keeping such a house. 1 Salk. 383; vide Dane's Ab. Index, h. t. One who assists in establishing a bawdyhouse is guilty of a misdemeanor. 2 B. Monroe, 417.
BAY. Is an enclosure to keep in the water for the supply of a mill or other contrivance, so that the water may be able to, drive the wheels of such mill. Stat. 27 Eliz. c. 19.
2. A large open water or harbor where ships may ride, is also called a bay; as, the Chesapeake Bay, the, Bay of New York.
BEACH. The sea shore. (q. v.)
BEACON. A signal erected as a sea mark for the use of mariners; also, to give warning of the approach of an enemy. 1 Com. Dig. 259; 5 Com. Dig. 173.
TO BEAR DATE. In the description of a paper in a declaration, to say it bears date such a day, is to aver that such date is upon it; and if, on being produced, it is dated at another day, the variance will be fatal. But if it be averred it was made on such a day, and upon its production it bears date on another day, it will not be a variance, because it might have been made one day and dated another. 3 Burr. 904.
BEADLE. Eng. law. A messenger or apparitor of a court, who cites persons to appear to what is alleged against them, is so called.
BEARER. One who bears or carries a thing.
2. If a bill or note be made payable to bearer, it will pass by delivery only, without endorsement; and whoever fairly acquires a right to it, may maintain an action against the drawer or acceptor.
3. It has been decided that the bearer of a bank note, payable to bearer, is not an assignee of a chose in action within the 11th section of the judiciary act of, 1789, c. 20, limiting the jurisdiction of the circuit court. 3 Mason, R. 308.
4. Bills payable to bearer are contra-distinguished from those payable to order, which can be transferred only by endorsement and delivery.
5. Bills payable to fictitious payees, are considered as bills payable to, bearer.
BEARERS, Eng. crim. law. Such as bear down or oppress others; maintainers. In Ruffhead's Statutes it is employed to translate the French word emparnours, which signifies, according to Kelham, undertakers of suits. 4 Ed. III. c. 11. This word is no longer used in this sense.
BEARING DATE. These words are frequently used in conveyancing and in pleading; as, for example, a certain indenture bearing date the first day of January, 1851, which signifies not that the indenture was made on that day, but simply that such date has been put to it.
2. When in a declaration the plaintiff alleges that the defendant made his promissory note on such a day, he will not be considered as having alleged it bore date on that day, so as to cause a variance between the declaration and the note produced bearing a different date. 2 Greenl. Ev. 1610; 2 Dowl. & L. 759.
BEAU PLEADER, Eng. law. Fair pleading. See Stultiloquium.
2. This is the name of a writ upon the statute of Marlbridge, 52 H. III. c. 11, which enacts, that neither in the circuit of justices, nor in counties, hundreds, or courts baron, any fines shall be taken for fair pleading; namely, for not pleading fairly or aptly to the purpose. Upon this statute this writ was ordained, directed to the sheriff, bailiff, or him who shall demand the fine; and it is a prohibition or command not to do it. Now Nat. Br. 596 2 Inst. 122; Termes de la Le 2 Reeves' Hist. Eng. Law, 70 Cowel; Crabb's Hist. of the Eng. Law, 150. The explanations given of this term are not very satisfactory.
BEDEL, Eng. law. A cryer or messenger of a court, who cites men to appear and answer. There are also inferior officers of a parish or liberty who bear this name.
BEE. The name of a well known insect.
2. Bees are considered ferae naturae while unreclaimed; and they are not more subjects of property while in their natural state, than the birds which have their nests on the tree of an individual. 3 Binn. R. 546 5 Sm. & Marsh. 333. This agrees with the Roman law. Inst. 2 1, 14; Dig. 41, 1, 5, 2; 7 Johns. Rep. 16; 2 Bl. Com. 392 Bro. Ab. Propertie, 37; Coop. Justin. 458.
3. In New York it has been decided that bees in a tree belong, to the owner of the soil, while unreclaimed. When they have been reclaimed, and the owner can identify them, they belong to him, and not to the owner of the soil. 15 Wend. R. 550. See 1 Cowen, R. 243.
BEGGAR. One who obtains his livelihood by asking alms. The laws of several of the states punish begging as an offence.
BEHAVIOUR. In old English, haviour without the prefix be. It is the manner of having, holding, or keeping one's self or the carriage of one's self with respect to propriety, morals, and the requirements of law. Surety to be of -good behaviour is a larger requirement than surety to keep the peace. Dalton, c. 122; 4 Burn's J. 355.
BEHOOF. As a word of discourse, Signifies need, (egestas, necessitas, indigentia.) It comes from behoove, (Sax. behoven,) to need or have need of. In a secondary sense, which is the law sense of the word, it signifies use, service, profit, advantage, (interesse, opus.) It occurs in conveyances of land in fee simple.
BELIEF. The conviction of the mind, arising from evidence received, or from information derived, not from actual perception by our senses, but from. the relation or information of others who have had the means of acquiring actual knowledge of the facts and in whose qualifications for acquiring that knowledge, and retaining it, and afterwards in communicating it, we can place confidence. " Without recurring to the books of metaphysicians' "says Chief Justice Tilghman, 4 Serg. & Rawle, 137, "let any man of plain common sense, examine the operations of, his own mind, he will assuredly find that on different subjects his belief is different. I have a firm belief that, the moon revolves round the earth. I may believe, too, that there are mountains and valleys in the moon; but this belief is not so strong, because the evidence is weaker." Vide 1 Stark. Ev. 41; 2 Pow. Mortg. 555; 1 Ves. 95; 12 Ves. 80; 1 P. A. Browne's R 258; 1 Stark. Ev. 127; Dyer, 53; 2 Hawk. c. 46, s. 167; 3 Wil. 1, s. 427; 2 Bl. R. 881; Leach, 270; 8 Watts, R. 406; 1 Greenl. Ev. 7-13, a.
BELOW. Lower in place, beneath, not so high as some other thing spoken of, of tacitly referred to.
2. The court below is an inferior court, whose, proceedings may be examined on error by a superior court, which is called the court above.
3. Bail below is that given to the sheriff in bailable actions, which is so called to distinguish it from bail to t-he action, which is called bail above. See Above; Bail above; Bail below.
BENCH. Latin Bancus, used for tribunal. In England there are two courts to which this word is applied. Bancus Regius, King's Bench Bancus Communis, Com- mon Bench or Pleas. The jus banci, says Spelman, properly belongs to the king's judges, who administer justice in the last resort. The judges of the inferior courts, as of the barons, are deemed to, judge plano pede, and are such as are called in the civil law pedanei judices, or by the Greeks Xauaidixastai, that is, humi judicantes. The Greeks called the seats of their higher judges Bumata, and of their inferior judges Bathra. The Romans used the word sellae and tribunalia, to designate the seats of their higher judges, and subsellia, to designate those of the lower. See Spelman's Gloss. (ad verb.) Bancus; also, 1 Reeves Hist. Eng. Law, 40, 4to ed., and postea Curia Regis.
BENCH WARRANT, crim. law. The name of a process sometimes given to an attachment issued by order of a criminal court, against an individual for some contempt, or for the purpose of arresting a person accused; the latter is seldom granted unless when a true bill has been found.
BENCHER, English law. A bencher is a senior in the inns of court, entrusted with their government and direction.
BENEFICE, eccles. law. In its most extended sense, any ecclesiastical preferment or dignity; but in its more limited sense, it is applied only to rectories and vicarages.
BENEFICIA. In the early feudal times, grants were made to continue only during the pleasure of the grantor, which were called munera, (q. v.) but soon afterwards these grants were made for life, and then they assumed the name of beneficia. Dalr. Feud. Pr. 199. Pomponius Laetus, as cited by Hotoman, De Feudis, ca. 2, says, " That it was an ancient custom, revived by the emperor Constantine, to give lands and villas to those generals, prefects, and tribunes, who had grown old in enlarging the empire, to supply their necessities as long as they lived, which they called. parochial parishes, &c. But, between (feuda) fiefs or feuds, and (parochias) parishes, there was this difference, that the latter were given to old men, veterans, &c., who, as they had deserved well of the republic, sustained the rest of their life (publico beneficio) by the public benefaction; or, if any war afterwards arose, they were called out, not so much as soldiers, as leaders, (majistri militum.) Feuds, (feuda,) on the other hand, were usually given to robust young men who could sustain the labors of war. In later times, the word parochia was appropriated exclusively to ecclesiastical persons, while the word beneficium (militare) continued to be used in reference to military fiefs or fees.
BENEFICIAL. Of advantage, profit or interest; as the wife has a beneficial interest in property held by a trustee for her. Vide Cestui que trust.
BENEFICIAL INTEREST. That right which a person has in a contract made with another; as if A makes a contract with B that he will pay C a certain sum of money, B has the legal interest in the contract, and C the beneficial interest. Hamm. on Part. 6, 7, 25 2 Bulst. 70.
BENEFICIARY. This term is frequently used as synonymous with the technical phrase cestui que trust. (q. v.)
BENEFICIO PRIMO ECCLESIASTICO HABENDO, Eng. eccl. law. A writ directed from the king to the chancellor, commanding him to bestow the benefice which shall first fall in the king's gift, above or under a certain value, upon a particular and certain person.
BENEFICIUM COMPETENTIAE. The right which an insolvent debtor had, among the Romans, on making session of his property for the benefit of his creditors, to retain what was required for him to live honestly according to his condition. 7 Toull. n. 258.
BENEFIT. This word is used in the same sense as gain (q. v.) and profits. (q. v.) 20 Toull. n. 199.
BENEFIT OF CESSION, Civil law. The release of a debtor from future imprisonment for his debts, which the law operates in his favor upon the surrender of his property for the benefit of his, creditors, Poth. Proced. Civ. 5eme part., c. 2, 1. This was something like a discharge under the insolvent laws, which releases the person of the debtor, but not the goods he may acquire afterwards. See Bankrupt; Cessio Bo. Insolvent.
BENEFIT OF CLERGY, English law. An exemption of the punishment of death which the laws impose on the commission of certain crimes, on the culprit demanding it. By modern statute's, benefit of clergy was rather a substitution of a more mild punishment for the punishment of death.
2. It was lately granted, not only to the clergy, as was formerly the case, but to all persons. The benefit of clergy seems never to have been extended to the crime of high treason, nor to have embraced misdemeanors inferior to felony. Vide 1 Chit. Cr. Law, 667 to 668 4 Bl. Com. ch. 28. But this privilege improperly given to the clergy, because they had more learning than others) is now abolished by stat. 7 Geo. IV. c. 28, s. 6.
3. By the Act of Congress of April 30, 1790, it is provided, 30, that the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is, or shall be declared to be, death.
BENEFIT OF DISCUSSION, civil law. The right which a surety has to cause the property of the principal debtor to be applied in satisfaction of the obligation in the first instance. See Civil Code of Lo. art. 3014 to 3020, and Discussion.
BENEFIT OF DIVISION. In the civil law, which, in this respect, has been adopted in Louisiana, although, when there are several sureties, each one is bound for the whole debt, yet when one of them is sued alone, he has a right to have the debt apportioned among all the solvent sureties on the same obligation, so that he shall be compelled to pay his own share only. This is called the benefit of division. Civil Code of Lo. art. 3014 to 3020. See 2 Bouv. Inst. n. 1414.
BENEFIT OF INVENTORY, civil law. The benefit of inventory is the privilege which the heir obtains of being liable for the charges and debts of the succession, only to the value of the effects of the succession, in causing an inventory of these effects within the time and manner proscribed by law. Civil Code of Louis. art. 1025. Vide Poth. Traits des Successions, c. 3, s. 3, a. 2.
BENEVOLENCE, duty. The doing a kind action to another, from mere good will, without any legal obligation. It is a moral duty only, and it cannot be enforeed by law. A good wan is benevolent to the poor, but no law can compel him to be so.
BENEVOLENCE, English law. An aid given by the subjects to the king under a pretended gratuity, but in realty it was an extortion and imposition.
TO BEQUEATH. To give personal property by will to another.
BEQUEST. A gift by last will or testament; a legacy. (q. v.) This word is sometimes, though improperly used, as synonymous with devise. There is, however, a distinction between them. A bequest is applied, more properly, to a gift by will of a legacy, that is, of personal property; devise is properly a gift by testament of real property. Vide Devise.
BESAILE or BESAYLE, domestic relations. The grea-grandfather, proavus. 1 Bl. Com. 186. Vide dile.
BEST EVIDENCE. Means the best evideince of which the nature of the case admits, not the highest or strongest evidence which the nature of the thing to be proved admits of: e. g. a copy of a deed is not the best evidence; the deed itself is better. Gilb. Ev. 15; 3 Campb.. 236; 2 Starkey, 473 2 Campb. 605; 1 Esp. 127.
2. The rule requiring the best evidence to be produced, is to be understood of the best legal evidence. 2 Serg. & R. 34; 3 Bl. Com. 368, note 10, by Christian. It is relaxed in some cases, as, e. g. where the words or the act of the opposite party avow the fact to be proved. A tavern keeper's sign avows his occupation; taking of tithes avows the clerical character; so, addressing one as The Reverend T. S." 2 Serg. & R. 440 1 Saund. on Plead. & Evid. 49.
BETROTHMENT. A contract between a man and a woman, by which they agree that at a future, time they will marry together.
2. The requisites of this contract are 1. That it be reciprocal. 2. That the parties be able to contract.
3. The contract must be mutual; the Promise of the one must be the consideration for the promise of the other. It must be obligatory on both parties at the same instant, so that each may have an action upon it, or it will bind neither. 1 Salk. 24, Carth. 467; 5 Mod. 411; 1 Freem. 95; 3 Keb. 148; Co. Lit. 79 a, b.
4. The parties must be able to contract. if either be married at the time of betrothment, the contract is void; but the married party cannot take advantage of his own wrong, and set up a marriage or previous engageinent, as an answer to the action for the breach of the contract, because this disability proceeds from the defendant's own act. Raym. 387 3 Just. 89; I Sid. 112 1 Bl. Com. 438.
5. The performance of this engagement or completion of the marriage, must be performed within a reasonable time. Either party may, therefore, call upon the other to fulfil the engagement, and in case of refusal or neglect to do so, within a reasonable time after request made, may treat the betrothment as at an end, and bring action for the breach of the contract. 2 C. & P. 631.
6. For a breach of the betrothment, without a just cause, an action on the case may be maintained for the recovery of damages. See Affiance; Promise of Marriage.
BETTER EQUITY. In England this term has lately been adopted. In the case of Foster v. Blackston, the master of the rolls said, be could no where find in the authorities what in terms was a better equity, but on a reference to all the cases, he considered it might be thus defined: If a prior incumbrancer did not take a security which effectually protected him against any subsequent dealing to his prejudice, by the party who had the legal estate, a second incumbrancer, taking a security which in its nature afforded him that protection, had what might properly be called a better equity. 1 Ch. Pr. 470, note. Vide 4 Rawle, R. 144 3 Bouv. Inst. n. 2462.
BETTERMENTS. Improvement's made to an estate. It signifies such improvements as have been made to the estate which render it better than mere repairs. See 2 Fairf. 482; 9 Shepl. 110; 10 Shepl. 192; 13 Ohio, R. 308; 10 Yerg. Verm. 533; 17 Verm. 109.
BEYOND SEA. This phrase is used in the acts of limitations of several of the states, in imitation of the phraseology of the English statute of limitations. In Pennsylvania, the term has been construed to signify out of the United States. 9 S. & R. 288; 2 Dall. R. 217; 1 Yeates, R. 329. In Georgia, it is equivalent to without the limits of the state; 3 Wheat. R. 541; and the same construction prevails in Maryland; 1 Har. & John. 350; 1 Harr. & M'H. 89; in South Carolina; 2 McCord, Rep. 331; and in Massachusetts. 3 Mass. R. 271; 1 Pick. R. 263. Vide Kirby, R. 299; 3 Bibb. R. 510; 3 Litt. R. 48; 1 John. Cas. 76. Within the four seas, infra quatuor maria, and beyond the four seas, extra quatuor maria, in English law books signify within and without the kingdom of England, or the jurisdiction of the king of England. Co. Lit. 244 a; 1 Bl. Com. 457.
BIAS. A particular influential power which sways the judgment; the inclination or propensity of the mind towards a particular object.
2. Justice requires that the judge should have no bias for or against any individual; and that his mind should be perfectly free to act as the law requires.
3. There is, however, one kind of bias which the courts suffer to influence them in their judgments it is a bias favorable to a class of cases, or persons, as distinguished from an individual case or person. A few examples will explain this. A bias is felt on account of convenience. 1 Ves. sen. 13, 14; 3 Atk. 524. It is also felt in favor of the heir at law, as when there is an heir on one side and a mere volunteer on the other. Willes, R. 570 1 W. Bl. 256; Amb. R. 645; 1 Ball & B. 309 1 Wils. R. 310 3 Atk. 747 Id. 222. On the other hand, the court leans against double portions for children; M'Clell. R. 356; 13 Price, R. 599 against double provisions, and double satisfactions; 3 Atk. R. 421 and against forfeitures. 3 T. R. 172. Vide, generally, 1 Burr. 419 1 Bos. & Pull. 614; 3 Bos. & Pull. 456 Ves. jr. 648 Jacob, Rep. 115; 1 Turn. & R. 350.
BID, contracts. A bid is an offer to pay a specified price for an article about to be sold at auction. The bidder has a right to withdraw his bid at any time before it is accepted, which acceptance is generally manifested by knocking down the hammer. 3 T. R. 148; Hardin's Rep. 181; Sugd. Vend. 29; Babington on Auct. 30, 42; or the bid may be withdrawn by implication. 6 Penn. St. R. 486; 8, Id. 408. Vide 0ffer.
BIDDER, contracts. One who makes an offer to pay a certain price for an article which is for sale.
2. The term is applied more particularly to a person who offers a price for goods or other property, while up for sale at an auction. The bidder is required to act in good faith, and any combination between him and others, to prevent a fair competition, would avoid the sale made to himself.
3. But there is nothing illegal in two or more persons agreeing together to purchase a property at sheriff's sale, fixing a certain price which they are. willing to give, and appointing one of their number to be the bidder. 6 Watts & Serg. 122.
4. Till the bid is accepted, the bidder may retract it. Vide articles, Auction and Bid; 3 John. Cas. 29 6 John. R. 194; 8 John. R. 444 1 Fonbl. Eq. b. 1, c. 4, 4, note (x).
BIENS. A French word, which signifies property. In law, it means property of every description, except estates of freehold and inheritance. Dane's Ab. c. 133, a, 3 Com. Dig. h. t.; Co. Litt. 118, b; Sugd. Vend. 495.
2. In the French law, this term includes all kinds of property, real and personal. Biens are divided into biens meubles, movable or personal property; and biens immeubles, immovable property or real estate. This distinction between movable and immovable property, is, however, recognized by them, and gives rise in the civil, as well as in the common law, to many important distinctions as to rights and remedies. Story, Confl. of Laws, 13, note 1.
BIGAMUS, Canon law, Latin. One guilty of bigamy.
BIGAMY, crim. law, domestic relations. The wilful contracting of a second marriage when the contracting party knows that the first is still subsisting; or it is the state of a man who has two wives, or of a woman who has two hushands living at the same time. When the man has more than two wives, or the woman more than two hushands living at the same time, then the party is said to have committed polygamy, but the name of bigamy is more frequently given to this offence in legal proceedings. 1 Russ. on Cr. 187.
2. In England this crime is punishable by the stat. 1 Jac. 1, c. 11, which makes the offence felony but it exempts from punishment the party whose hushand or wife shall continue to remain absent for seven years before the second marriage, without being heard from, and persons who shall have been legally divorced. The statutory provisions in the U. S. against bigamy or polygamy, are in general similar to, and copied from the statute of 1 Jac. 1, c. 11, excepting as to the punishment. The several exceptions to this statute are also nearly the same in the American statutes, but the punishment of the offence is different in many of the states. 2 Kent, Com. 69; vide Bac. Ab. h. t.; Com. Dig. Justices, 5; Merlin, Repert. mot Bigamie; Code, lib. 9, tit. 9, 1. 18; and lib. 5, tit. 5, 1. 2.
3. According to the canonists, bigamy is three-fold, viz.: (vera, interpretative, et similitudinaria,) real, interpretative and similitudinary. The first consisted in marrying two wives successively, (virgins they may be,) or in once marrying a widow; the second consisted, not in a repeated marriage, but in marrying (v. g. meretricem vel ab alio corruptam) a harlot; the third arose from two marriages indeed, but the one metaphorical or spiritual, the other carnal. This last was confined to persons initiated in sacred orders, or under the vow Of continence. Deferriere's Tract, Juris Canon. tit. xxi. See also Bac. Abr. h. t.; 6 Decret, 1. 12. Also Marriage.
BILAN. A book in which bankers, merchants and traders write a statement of all they owe and all that is due to them. This term is used in the French law, and in the state of Louisiana. 5 N. S; 158. A balance sheet. See 3 N. S. 446, 504.
BILATERAL CONTRACT, civil law. A contract in which both the contracting parties are bound to fulfil obligations reciprocally towards each other; Lec. Elem. 781; as a contract of sale, where one becomes bound to deliver the, thing sold, and the other to pay the price of it. Vide Contract; Synallagmatic contract.
BILINGUIS, English law. One who uses two tongues or languages. Formerly a jury, part Englishmen and part foreigners, to give a verdict between an Englishman and a foreigner. Vide Medietas Linguae, Plowd. 2. It is abolished in Pennsylvania. Act April 14, 1834, 149.
BILL, legislation. An instrument drawn or presented by a member or committee to a legislative body for its approbation and enactment. After it has gone through both houses and received the constitutional sanction of the chief magistrate, where such approbation is requisite, it becomes a law. See Meigs, R. 237.
BILL, chancery practice. A complaint in writing addressed to the chancellor, containing the names of the parties to the suit, both complainant and defendant, a statement of the facts on which the complainant relies, and the allegations which he makes, with an averment that the acts complained of are contrary to equity , and a prayer for relief and proper process. Its office in a chancery suit, is the same as a declaration in an action at law, a libel in a court of admiralty or an allegation in, the spiritual courts.
2. A bill usually consists of nine parts. 1. The address, which must be to the chancellor, court or judge acting as such. 2. The second part consists of the names of the plaintiffs and their descriptions; but the description of the parties in this part of the bill does not, it seems, constitute a sufficient averment, so as to put that fact in issue. 2. Ves. & Bea. 327. 3. The third part is called the premises or stating part of the bill, and contains the plaintiff's case. 4. In the fourth place is a general charge of confederacy. 5. The fifth part consists of allegations of the defendant's pretences, and charges in evidence of them. 6. The sixth part contains the clause of jurisdiction and in averment that the acts complained of are contrary to equity. 7. The seventh part consists of a prayer that the parties answer the premises, which is usually termed the interrogatory part. 8. The prayer for relief sought forms the eighth part. And, 9. The ninth part is a prayer for process. 2 Mad. Ch. 166; Blake's Ch. P. 35; 1 Mitf. Pl. 41. The facts contained in the bill, as far as known to the complainant, must, in some cases, be sworn to be true; and such as are not known to him, he must swear he believes to be true; and it must be signed by counsel; 2 Madd. Ch. Pr. 167; Story, Eq. Pl. 26 to 47; and for cases requiring an affidavit, see, 3 Brow. Chan. Cas. 12, 24, 463; Bunb. 35; 2 Brow. 11 1 Fow. Proc. 256 Mitf. Pl. 51; 2 P. Wms. 451; 3 Id. 77; 1 Atk. 450; 3 Id. 17, 132; 3 Atk. 132 Preced. in Ch. 332 Barton's Equity, 48 n. 1, 53 n. 1, 56 n. 1 2 Brow. Ch. Cas. 281, 319; 4 Id. 480
3. Bills may be divided into three classes, namely: 1. Original bills. 2. Bills not original. 3. Bills in the nature of original bills.
4. - 1. An original bill is one which prays the decree of the court, touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is exhibited. Hinde, 19; Coop. Eq. Pl. 43. Original bills always relate to some matter not before litigated in the court by the same persons, and standing in the same interests. Mitf. Eq. Pl. by Jeremy, 34; Story, Eq. Pl., 16. They may be divided into those which pray relief, and those which do not pray relief.
5. - 1st. Original bills praying relief are of three kinds. First. Bills Praying the decree or order of the court, touching some right claimed by the party exhibiting the bill, in opposition to some right, real or supposed, claimed by the party against whom the bill is exhibited, or touching some wrong done in violation of the plaintiff's right. Mitf. Eq. Pl. 32.
6. - Secondly. A bill of interpleader, is one in which the person exhibiting it claims no right in opposition to the rights claimed by the person against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety of the person exhibiting the bill. Hinde, 20; Coop. Eq. Pl. 43; Mitf. Pl. 32. The Practical Register defines it to be a bill exhibited by a third person, who, not knowing to whom he ought of right to render a debt or duty, or pay his rent, fears he may be hurt by some of the claimants, and therefore prays be may interplead, so that the court may judge to whom the thing belongs, and he be thereby safe on the payment. Pr. Reg. 78; Harr. Ch. Pr. 45; Edw. Inj. 393; 2 Paige, 199 Id. 570; 6 John. Ch. R. 445.
7. The interpleader has been compared to the intervention (q. v.) of the civil law. Gilb. For. Rom. 47. But there is a striking difference between them. The tertius in our interpleader in equity, professes to have no interest in the subject, and calls upon the parties who allege they have, to come forward and discuss their claims: the tertius of the civil law, on the other hand, asserts a right himself in the 'Subject, which two persons are at the time actually contesting, and insists upon his right to join in the discussion. A bill of interpleader may be filed, though the party has not been sued at law, or has been sued by one only of the conflicting claimants, or though the claim of one of the defendants is actionable at law, and the other in equity. 6 Johns. Chan. R. 445. The requisites of a bill of this kind are, 1. It must admit the want of interest in the plaintiff in the subject matter of dispute. 2. The plaintiff must annex an affidavit that there is no collusion between him and either of the parties. 3. The bill must contain an offer to bring the money into court, when there is any due; the want of which is a ground of demurrer, unless the money has actually been paid into court. Mitf. Eq. Pl. 49; Coop. Eq. Pl. 49; Barton, Suit in Eq. 47, note 1. 4. The plaintiff should state his own rights, and thereby negative any interest in the thing in controversy; and also should state the several claims of the opposite parties; a neglect on this subject is good cause of demurrer. Mitf. Eq. Pl. by Jeremy, 142; 2 Story on Eq. 821; Story, Eq. Pl. 292. 5. The bill should also show that there are persons in esse capable of interpleading, and setting up opposite claims. Coop. Eq. Pl. 46; 1 Mont. Eq. Pl. 234; Story, Eq. Pl. 295; Story on Eq. 821; 1 Ves. 248. 6. The bill should pray that the defendants set forth their several titles, and interplead, settle, and adjust their demands between themselves. The bill also generally prays an injunction to restrain the proceedings of the claimants, or either of them, at law; and, in this case, the bill should offer to bring the money into court and the court will not in general act upon this part of the prayer, unless the money be actually brought into court. 4 Paige's R. 384 6 John. Ch. R. 445.
8. Thirdly. A bill of certiorari, is one praying the writ of certiorari to remove a cause from an inferior court of equity. Coop. El q. 44. The requisites of this bill are that it state, 1st. the proceedings in the inferior court; 2d. the incompetency of such court, by suggesting that the cause is out of its jurisdiction; or that the witnesses live out of its jurisdiction; or are not able, by age or infirmity, or the distance of the place, to follow the suit there or that, for some other cause, justice is not likely to be done-, 3d. the bill must pray a writ of certiorari, to certify and remove the record and the cause to the superior court. Wyatt, Pr. Reg. 82; Harr. Ch. Pr. 49; Story, Eq. Pl. 298. This bill is seldom used in the United States.
9. - 2d. Original bills not praying relief are of two kinds. First,. Bills to secure evidence, which are bills to perpetuate the testimony of witnesses or bills to examine witnesses de bene esse. These will be separately considered.
10. - 1. A bill to perpetuate the testimony of witnesses, is one which prays leave to examine them, and states that the witnesses are old, infirm, or sick, or going beyond the jurisdiction of the court, whereby the party is in danger of losing the benefit of their testimony. Hinde, 20. It does not pray for relief. Coop. Eq. Pl. 44.
11. In order to maintain such a bill, it is requisite to state on its face all the material facts to support the jurisdiction. It must state, 1. the subject-matter toucbing which the plaintiff is desirous of giving evidence. Rep. Temp. Finch, 391; 4 Madd. R. 8, 10. 2. It must show that the plaintiff has some interest in the subject-matter, which may be endangered if the testimony in support of it be lost; and a mere expectancy, however strong, is not sufficient. 6 Ves. 260 1 Vern. 105; 15 Ves. 136; Mitf. Eq. Pl. by Jeremy, 51 Coop. Eq. Pl., 52. 3. It must state that the defendant has, or pretends to have, or that he claims an interest to contest the title of the plaintiff in the subject-matter of the proposed testimony. Coop. Pl. 56; Story, Eq. Pl. 302. 4. It must exhibit some ground of necessity for perpetuating the evidence. Story, Eq. Pl. 303 Mitf. Eq. Pl. by Jeremy, 52, 148 and note y; Coop. Eq. Pl. 53. 5. The right of which the bill is brought to perpetuate the evidence or testimony, should be described with reasonable certainty in the bill, so as to point the proper interrogations on both sides to the true merits of the controversy. 1 Vern. 312; Coop. Eq. Pl. 56. 6. It should pray leave to examine the witnesses touching the matter stated, to the end that their testimony maybe preserved and perpetuated. Mitf. Pl 52. A bill to perpetuate testimony differs from a bill to take testimony de bene esse, in this, that the latter is sustainable only when there is a suit already depending, while the former can be maintained only when no present suit can be brought at law by the party seeking the aid of a court to try his right. Story, Eq. Pl. 307. The canonists had a similar rule. According to the canon law, witnesses could be examined before any action was commenced, for fear that their evidence might be lost. x, cap. 5 Boehmer, n. 5 8 Toull. n. 23.
12. - 2. Bill to take testimony de bene esse. This bill, the name of which is sufficiently descriptive of its object, is frequently confounded with a bill to perpetuate testimony; but although it bears a close analogy to it, ,it is very different. Bills to perpetuate testimony can be maintained only, when no present suit can be maintained at law by the party seeking the aid of the court to try his right; whereas bills to take testimony de bene esse, are sustainable only in aid of a suit already depending. 1 Sim. & Stu. 83. The latter may be brought by a person who is in possession, or out of possession; and whether he be plaintiff or defendant in the action at law. Story, Eq Pl. 307 and 303, note; Story on Eq. 1813, note 3. In many respects the rules which regulate the framing of bills to perpetuate testimony, are applicable to bills to take testimony ae bene esse.
13. - Secondly. A bill of discovery, emphatically so called, is one which prays for the discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his custody or power. Hinde, 20; Blake's Ch. Pr. 37. Every bill, except the bill of certiorari, may in truth, be considered a bill of discovery, for every bill seeks a disclosure of circumstances relative to the plaintiff's case; but that usually and emphatically distinguished by this appellation is a bill for the discovery of facts, resting in the knowledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery.
14. This bill is commonly used in aid of the jurisdiction of some other court as to enable the plaintiff Ito prosecute or defend an action at law. Mitf. Pl. 52. "The plaintiff, in this species of bill, must be entitled to the discovery he seeks, and shall only have a discovery of what is necessary for his own title, as of deeds he claims under, and not to pry into that of the defendant. 2 Ves. 445. See Blake's Ch. Pr. 45 Mitf. Pl. 52 Coop. Eq. Pl. 58 1 Madd. Ch. Pr. 196 Hare on Disc. passim Wagr. on Disc. passim.
15. The action ad exhibendum, in the Roman law, was not unlike a bill of discovery. Its object was to force the party against whom it was instituted, to exhibit a thing or a title in his power. It was always preparatory to another, which was always a real action in the sense of the word in the Roman law. See Action ad exhibendum; Merlin, Questions de Droit, tome i. 84.
16. - II . Bills not original. These are either in addition to, or a continuance of an original bill, or both. Mitf. c. 1, s . 2; Story, Eq. Pl. 388; .4 Bouv. Inst. n. 4100.
17. - 1st. Of the first class are, 1. A supplemental bill. This bill is occasioned by some defect in a suit already instituted, whereby the parties cannot obtain complete justice, to which otherwise the case by their bill would have entitled them. It is used for the purpose of supplying some irregularity discovered in the formation of the original bill, or some of the proceedings there upon; or some defect in a suit, arising from events happening since the points in the original were at issue, which give an interest to˜20persons not parties to the suit. Blake's Ch. Pr. 50. See 3 Johns. Ch. R. 423.
18. It is proper to consider more minutely 1. in what cases such a bill may be filed; 2. its particular requisites.
19.- 1. A supplemental bill may be filed, 1st. whenever the imperfection in the original bill arises from the omission of some material fact, which existed before the filing of the bill, but the time has passed in which it can be introduced into the bill by amendment,, Mitf. Eq. Pl. 55, 61, 325 but leave of court must be obtained, before a bill which seeks to change the original structure of the bill, and to introduce a new and different case, can be filed. 2d. When a party necessary to the proceedings has been omitted, and cannot be admitted by an amendment. Mitf. Eq. Pl. 61 6 Madd. R. 369; 4 John. Ch. R. 605. 3d. When, after the court has decided upon the suit as framed, it appears necessary to bring some other matter before the court to obtain the full effect of the decision; or before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined, (in which case, an amendment is not in general permitted,) some other point appears necessary to be made, or some additional discovery is found requisite. Mitf. Eq. Pl. by Jeremy, 55; Coop Eq. Pl. 73; 3 Atk. R. 110; 12 Paige, R. 200. 4th. When new events or new matters have occurred since the filing of the bill; Coop. Eq. Pl. 74; these events or matters, however, are confined to such as refer to and support the rights and interests already mentioned in the bill. Story, Eq. Pl. 336.
20. - 2. The supplemental bill must state the original bill, and the proceedings thereon and when it is occasioned by an event which has occurred subsequently to the original bill, it must state that event, and the consequent alteration with regard to the parties. In general, the supplemental bill must pray that all defendants appear and answer the charges it contains. Mitf. Eq. Pl. by Jeremy, 75 Story, Eq. Pl. 343.
21. - 2. A bill of revivor, which is a continuance of the original bill, when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone. Mitf. Pl. 33, 70; 2 Madd. Ch. Pr. 526. See 3 Johns. Ch. R. 60: Story, Eq. Pl. 354, et. seq.
22. - 3. A bill of revivor and supplement. This is a compound of a supple-mental bill and bill of revivor, and not only continues the suit, which has abated by the death of the plaintiff, or the like, but supplies any defects in the original bill, arising from subsequent events, so as to entitle the party to relief on the whole merits of his case. 5 Johns.Ch R. 334; Mitf. Pl. 32, 74.
23. - 2d. Among the second class may be placed, 1. A cross bill. This is one which is brought by a defendant in a suit against the plaintiff, respecting the matter in question in that bill. Coop. Eq. Pl. 85 Mitf. Pl. 75.
24. A bill of this kind is usually brought to obtain, either a necessary discovery, or full relief to all the parties. It frequently happens, and particularlly if any questions arises between two defendants to a bill, that the court cannot make a complete decree without a cross bill, or cross bills to bring every matter in dispute completely before the court, litigated by the proper parties, and upon proper proofs. In this case it becomes necessary for some one of the defendants to the original bill to file a bill against the plaintiff and other defendants in that bill, or some of them, and bring the litigated point properly before the court.
25. A cross bill should state the original bill, and the proceedings thereon, and the rights of the party exhibiting the bill which are necessary to be made the subject of a cross litigation, or the grounds on which he resists the claims of the plaintiff in the original bill, if that is the object of the new bill.
26. A cross bill may be filed to answer the purpose of a plea puis darrein continuance at the common law. For example, where, pending a suit, and after replication and issue joined, the defendant having obtained a release and attempted to prove it viva voce at the bearing, it was determined that the release not being in issue in the cause, the court could not try the facts, or direct a trial at law for that purpose, and that a new bill must be filed to put the release in issue. Mitf. Pl. 75, 76 Coop. Eq. Pl. 85; 1 Harr. Ch. Pr. 135.
27. A cross bill must be brought before publication is passed on the first bill, 1 Johns. Ch. R. 62, and not after, except the plaintiff in the cross bill go to the hearing on the depositions already published; because of the danger of perjury and subornation, if the parties should, after publication of the former depositions, examine witnesses, de novo, to the same matter before examined into. 7 Johns. Ch. Rep. 250; Nels. Ch. R. 103.
28. - 2. A bill of review. Bills of review are in the nature of writs of error. They are brought to have decrees of the court reviewed, altered, or reversed, and there are two sorts of these bills. The first is brought where the decree has been signed and enrolled and the second, where the decree has not been signed and enrolled. 1 Ch. Cas. 54; 3 P. Wms. 371. The first of these is called, by way of preeminence, a bill of review; while the other is distinguished by the appellation of a bill in the nature of a bill of review, or a supplemental bill iii the nature of a bill of review. Coop. Eq. Pl. 88; 2 Madd. Ch. Pr. 537.
29. A bill of review must be either for error in point of law; 2 Johns. C. R. 488; Coop. Eq. Pl. 89; or for some new matter of fact, relevant to the case, discovered since publication passed in the cause; and which could not, with reasonable diligence, have been discovered before. 2 Johns. C. R. 488; Coop. Eq. Pl. 94. See 3 Johns. R. 124,
30. - 3. Bill to impeach a decree on the ground of fraud. When a decree has been obtained by fraud, it may be impeached by original bill, without leave of court. As the principal point in issue, is the fraud in obtaining it, it must be established before the propriety of the decree can be investigated, and the fraud must be distinctly stated in the bill. The prayer must necessarily be varied according to the nature of the fraud used, and the extent of its operation in obtaining an improper decision of the court. When the decree to set aside a fraudulent decree has been obtained, the court will restore the parties to their former situation, whatever their rights may be. Mitf. Eq. Pl. 84; Sto. Eq. Pl. 426.
>31. - 4. Bill to suspend a decree. The operation of a decree may be suspended under special circumstances, or avoided by matter subsequent to the decrees upon a new bill for that purpose. See 1 Ch. Cas. 3, 61 2 Ch . Cal 8 Mitf. Eq. Pl. 85 , 86.
32. - 5. Bill to carry a decree into execution. This is one which is filed when from the neglect of parties, or some other cause, it may become impossible to carry a decree into execution without the further decree of the court. Hinde, 68; 1 Harr. Ch. 148.
33. - 6. Bills partaking of the qualities of some one or more of other bills. These are,
34. First. Bill in the nature of a bill of revivor. A bill in the nature of a bill of revivor, is one which is filed when the death of a party, whose interest is not determined by his death, is attended with such a transmission of his interest, that the title to it, as well as the person entitled, may be litigated in the court of chancery, as in the case of a devise of real estate, the suit is not permitted to be continued by bill of revivor. 1 Ch. Cas. 123; Id. 174; 3 Ch. Rep. 39; Mosely, R. 44. In such cases an original bill, upon which the title may be litigated, must be filed, and this bill will have so far the effect of a bill of revivor, that if the, title of the representative by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill, as if the suit had been continued by bill of revivor. 1 Vern. 427; 2 Vern. 548 Id. 672; 2 Bro. P. C. 529; 1 Eq. Cas. Ab. 83; Mitf. Pl. 66, 67.
35. Secondly. Bill in the nature. of a supplemental bill. An original bill in the nature of a supplemental bill, is one filed when the interest of the plaintiff or defendant, suing or defending, wholly determines, and the same property becomes vested in another person not claiming under him. Hinde, 71; Blake's Ch. Pr. 38. The principal difference between this and a supplemental bill, seems to be, that a supplemental bill is applicable to such cases only, where the same parties or the same interests remain before the court; whereas, an original bill in the nature of a supplemental bill, is properly applicable where new parties, with new interests, arising from events occurring since the institution of the suit, are brought before the court. Coop. Eq. Pl. 75; Story, Eq. Pl. 345.
36. Thirdly. Bill in the nature of a bill of review. A bill in the nature of a bill of review, is one brought by a person not bound by a decree, praying that the same may be examined and reversed; as where a decree is made against a person who has no interest at all in the matter in dispute, or had not an interest sufficient to render the decree against him binding upon some person claiming after him. Relief may be obtained against error in the decree, by a bill in the nature of a bill of review. This bill in its frame resembles a bill of review, except that instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new matter made the subject of the supplemental bill, at the same time that it is reheard upon the original bill; and that the plaintiff may have such relief as the nature of the case made by the supplemental bill may require. 1 Harr. Ch. P. 145.
37. There are also bills which derive their names from the object which the complainant has in view. These will be separately considered.
38.- 1. Bill of foreclosure. A bill of foreclosure is one filed by a mortgagee against the mortgagor, for the purpose of having the estate, sold, thereby to obtain the sum mortgaged on the premises, with interest and costs. 1 Madd. Ch. Pr. 528. As to the persons who are to be made parties to a bill of foreclosure, see Story, Eq. Pl. 199-202.
39. - 2. Bill of information. A bill of information is a bill instituted in behalf of the state, or those whose rights are the object of its care and protection. It is commenced by information exhibited in the name of the attorney-general, and differs from other bills little more than in name. If the suit immediately concerns the right of the state, the information is generally exhibited without a relator. If it does not immediately concern those rights, it is conducted at the instance and under the immediate direction of, some person whose name is inserted in the information, and is termed the relator; the officers of the state, in such or the like cases, are not further concerned than as they are instructed and advised by those whose rights the state is called upon to protect and establish. Blake's Ch. Pl. 50; see Harr. Ch. Pr. 151.
40. - 3. Bill to marshal assets. A bill to marshal assets is one filed in favor of simple contract creditors, and of legatees, devisees, and heirs, but not in favor of next of kin, to prevent specialty. creditors from exhausting the personal estate. See Marshaling of Assets.
41. - 4. Bill to marshal securities. A bill to marshal securities is one which is filed against a party who has two funds by which his debt is secured, by a person having an interest in only one of those funds. As if A has two mortgages and B has but one, B has a right to throw A upon the security which B cannot touch. 2 Atk. 446; see 8 Ves. 388, 395. This last case contains a luminous exposition in all its bearings. In Pennsylvania, and perhaps in some other states, the object of this bill is reached by subrogation, (q. v.) that is, by substituting the creditor, having but one fund to resort to, to the rights of the other creditor, in respect to the other fund.
42. - 5. Bill for a new trial. This is a bill filed in a court of equity praying for an injunction after judgment at law, when there is any fact, which renders it against conscience to execute such judgment, and of which the injured party could not avail himself in a court of law-, or, if he could, was prevented by fraud or accident, unmixed with any fault or negligence of himself or his agents. Mitf. Pl. by Jer. 131; 2 Story Eq. 887. Of late years bills of this description are not countenanced. Id.˜201 John. Ch. R. 432 6 John. Ch. R. 479.
43. - 6. Bill of peace. A bill of peace is one which is filed when a person has a right which may be controverted by various persons, at different times, and by different actions. In such a case the court will prevent a multiplicity of suits, by directing an issue to determine the right, and ultimately grant an injunction. 1 Madd. Ch. Pr. 166; 1 Harr. Ch. Pr. 104; Blake's Ch. Pr. 48; 2 Story, Eq. Jur. 852 to 860; Jeremy on Eq. Jurisd. 343 2 John. Ch. R. 281; 8 Cranch, R. 426.
44. There is another class of cases in which a bill of peace is now ordinarily applied; namely, when the plaintiff, after repeated and satisfactory trials, has established his right at law, and is still in danger of new attempts to controvert it. In order to quiet the possession of the plaintiff, and to suppress future litigation, courts of equity, under such circumstances, will interfere, and grant a perpetual injunction. 3 John. R. 529; 8 Cranch, R. 462; Mit. Pl. by Jeremy, 143; 2 John. Ch. R. 281; Ed. on Inj. 356.
45. - 7. Bill quia timet. A bill quia timet, is one which is filed when a person is entitled to property of a personal nature after another's death, and has reason to apprehend it may be destroyed by the present possessor; or when he is apprehensive of being subjected to a future inconvenience, probable or even possible to happen or be occasioned by the neglect, inadvertance, or culpability of another. Upon a proper case being made out, the court will, in one case, secure the property for the use of the party (which is the object of the bill) by compelling the person in possession of it, to give a proper security against any subsequent disposition or wilful destruction and in the other case, they will quiet the party's apprehension of future inconvenience, by removing the causes which may lead to it. 1 Harr. Ch. Pr. 107; 1 Madd. Ch. Pr. 218: Blake's Ch. Pr. 37, 47; 2 Story, Eq. Jur. 825 to 851. Vide, generally, Bouv. Inst. Index, h. t.
BILL, merc. law. An account containing the items of goods sold, or of work done by one person against another. It differs from an account stated (q. v.) in this, that the latter is a bill approved and sanctioned by the debtor, whereas a bill is made out by the creditor alone.
BILL OF ADVENTURE, com. law, contracts. A writing signed by a merchant, to testify that the goods shipped on board a certain vessel belong to another person who is to take the hazard, the subscriber signing only to oblige himself to account to him, for the proceeds.
BILL OP ATTAINDER, legislation, punishment. An act of the legislature by which one or more persons are declared to be attainted, and their property confiscated.
2. The Constitution of the United States declares that no state shall pass any bill of attainder.
3. During the revolutionary war, bills of attainder, and ox post facto acts of confiscation, were passed to a wide extent. The evils resulting from them, in times of more cool reflection, were discovered to have far outweighed any imagined good. Story on Const. 1367. Vide Attainder; Bill of Pains and Penalties.
BILL-BOOK, commerce, accounts. One in in which an account is kept of promissory notes, bills of exchange, and other bills payable or receivable: it ought to contain all that a man issues or receives. The book should show the date of the bill, the term it has to run before it becomes due, the names of all the parties to it, and the time of its becoming due, together with the amount for which it was given.
BILL OF CONFORITY. The name of a bill filed by an executor or administrator, who finds the affairs of the deceased so much involved that he cannot safely administer the estate, except under the direction of a court of chancery. This bill is filed against the creditors generally, for the purpose of having all their claims adjusted, and procuring a final decree settling the order of payment of the assets. 1 Story, Eq. Jur. 440.
BILL 0F COST, practice. A statement of the items which form the total amount of the costs of a suit or action. This is demandable as a matter of right before the payment of the costs.
BILL OF CREDIT. It is provided by the Constitution of the United States, art. 1, s. 10, that no state shall " emit bills of credit, or make anything but gold and silver coin a tender in payment or debts." Such bills of credit are declared to mean promissory notes or bills issued exclusively on the credit of the. state, and for the payment of which the faith of the state only is pledged. The prohibition, therefore, does not apply to the notes of a state bank, drawn on the credit of a particular fund set apart for the purpose. 2 M'Cord's R. 12; 2 Pet. R. 818; 11 Pet. R. 257. Bills of credit may be defined to be paper issued and intended to circulate through the community for its ordinary purposes, as money redeemable at a future day. 4 Pet. U. S. R. 410; 1 Kent, Com. 407 4 Dall. R. xxiii.; Story, Const. 1362 to 1364 1 Scam. R. 87, 526.
2. This phrase is used in another sense among merchants it is a letter sent by an agent or other person to a merchant, desiring him to give credit to the bearer for goods or money. Com. Dig. Merchant, F 3; 5 Sm. & Marsh. 491; R. M. Charlt. 151; 4 Pike, R. 44; 3 Burr. Rep. 1667.
BILL OP DEBT, BILL OBLIGATORY, contracts. When a merchant by his writing acknowledges himself in debt to another, in a certain sum to be paid on a certain day and subscribes it at a day and place certain. It may be under seal or not. Com. Dig. Merchant, F 2.
BILL OF EXCEPTION, practice. The statement in writing, of the objection made by a party in a cause, to the decision of the court on a point of law, which, in confirmation of its accuracy, is signed and sealed by the judge, or court who made the decision. The object of the bill of exceptions is to put the question of law on record, for the information of the court of error having cognizance of such cause.
2. The bill of exception is authorized by the statute of Westminster 2, 13 Ed. I. c. 31, the principles of which have, been adopted in all the states of the Union. It is thereby enacted, "when one impleaded before any of the justices, alleges an exception praying they will allow it, and if they will not, if he that alleges the exception writes the same, and requires 'that the justices will put their seals, the justices shall do so, and if one will not, another ,shall; and if, upon complaint made of the justice, the king cause the record to come before him, and the exception be not found in the roll, and the plaintiff show the written exception, with the seal of the justices thereto put, the justice shall be commande to appear at a certain day, either to confess or deny his seal, and if he cannot deny his seal, they shall proceed to judgment according to the exception, as it ought to be allowed or disallowed." The statute extends to both plaintiff and defendant. Vide the, form of confessing a bill of exceptions, Burr. 1692. And for precedents see Bull. N. P. 317; Brownlow's Entries; Latine Redivio, 129; Trials per pais, 222, 3; 4 Yeates, 317, 18; 2 Yeates, 295, 6. 485, 6; 1 Morgan's Vade Mecum, 471-5. Bills of exception differ materially from special verdicts; 2 Bin. 92; and from the opinions of the court filed in the cause. 10 S. & R. 114, 15.
3. Here will be considered, 1 the cases in which a bill of exceptions may be had; 2. the time of making the exception; 3. the form of the bill; 4. the effect of the bill.
4. - 1. In general a bill of exception can be had only in a civil case. When in the course of the trial of a cause, the judge, either in his charge to the jury, or in deciding an interlocutory question, mistakes the law, or is supposed by the counsel on either. side, to have mistaken the law, the counsel against whom the decision is made may tender an exception to his opinion, and require him to seal a bill of exceptions. 3 Bl. Com. 372. See Salk. 284, pl. 16 7 Serg. & Rawle, 178; 10 Id. 114, 115 Whart. Dig. Error, D, E 1 Cowen, 622; 2 Caines, 168; 2 Cowen, 479 5, Cowen, 243 3 Cranch, 298 4 Cranch, 62; 6 Cranch, 226; 17 Johns. R. 218; 3 Wend. 418 9 Wend. 674. In criminal cases, the judges, it seems, are not required to seal a bill of exceptions. 1 Chit. Cr. Law, 622; 13 John. R. 90; 1 Virg. Cas. 264; 2 Watts, R. 285; 2 Sumn. R. 19. In New York, it is provided by statute, that on the trial of any indictment, exceptions to any decision of the court may be made by the defendant, in the same cases and manner provided by law in civil cases and a bill thereof shall be settled, signed and sealed, and filed with the clerk of the court. But such bill of exception shall not stay or delay the rendering of judgment, except in some specified cases. Grah. Pr. 768, note.. Statutory provisions have been made in several other states authorizing the taking of exceptions in criminal cases. 2 Virg. Cas. 60 and note 14 Pick. R. 370; 4 Ham. R. 348; 6 Ham. R. 16 7 Ham. R. 214; 1 Leigh, R. 598; 14 Wend. 546. See also 1 Halst. R. 405; 2 Penn. R. 637.
5. - 2. The bill of exceptions must be tendered at the time the decision complained of is made or if the exception be to the charge of the court, it must be made before the jury have given their verdict. 8 S. & R. 216 4 Dall. 249; S. C. 1 Binn. 38; 6 John. 279; 1 John. 312; 5 Watts, R. 69; 10 John. R. 312; 5 Monr. R. 177; 7 Wend. R. 34; 7 S. & R. 219; 11 S. & R. 267 4 Pet. R. 102; Ala. R. 66; 1 Monr. 215 11 Pet. R. 185; 6 Cowen, R. 189. In practice, however, the, point is merely noted, at the time, and the bill is afterwards settled. 8 S. & R. 216; 11 S. & R. 270; Trials per pais, 467; Salk. 288; Sir T. Ray. 405 Bull. N. P. 315-16; Jacob's Law Dict. They may be sealed by the judge after the record has been removed by a writ of error, and after the expiration of his office. Fitz. N. B. 21 N, note.
6. - 3. The bill of exception must be signed by the judge who tried the cause; which is to be done upon notice of the time and place, when and where it is to be done. 3 Cowen, 32; 8 Cowen, 766; Bull. N. P. 316 3 Bl. Com. 372. When the bill of exception is sealed, both parties are concluded by lit. 3 Dall. 38; Bull. N. P. 316.
7.- 4. The bill of exceptions, being part of the record, is evidence between the parties, as to the facts therein stated. 3 Burr. 1765. No notice can be taken of objections or exceptions not appearing on the bill. 8 East, 280; 3 Dall. 38, 422, n.; 2 Binn. 168. Vide, generally, Dunlap's Pr.; Grah. Pr.; Tidd's Pr.; Chit. Pr.; Penna. Pr.; Archibold's Pr. Sellon's Pr.; in their several indexes, h. t.; Steph. Pl. 111; Bac. Ab. h. t.; 1 Phil. Ev. 214; 12 Vin. Ab. 262; Code of Pract. of Louisiana, art. 487, 8, 9; 6 Watts & Serg, 386, 397; 3 Bouv. Inst. n. 3228-32.
BILL OF EXCHANGE, contracts. A bill of exchange is defined to be an open letter of request from, and order by, one person on another, to pay a sum of money therein mentioned to a third person, on demand, or at a future time therein specified. 2 Bl. Com. 466; Bayl. on Bills, 1; Chit. Bills, 1; 1 H. Bl. 586; 1 B. & P. 291, 654; Selw. N. P. 285. Leigh's N. P. 335; Byles on Bills, 1; 1 Bouv. Inst. n. 895.
2. The subject will be considered with reference, 1 . to the parties to a bill; 2. the form; 3. their different kinds 4. the indorsement and transfer; 5. the acceptance 6. the protest.
3. - 1. The parties to a bill of exchange are the drawer, (q. v.) or he who makes the order; the drawee, (q. v.) or the person to whom it is addressed; the acceptor, (q. v.) or he who accepts -the bill; the payee, (q. v.) or the party to whom, or in whose favor the bill is made. The indorser, (q. v.) is he who writes his name on the back of a bill; the indorsee, (q. v.) is one to whom a bill is transferred by indorsement; and the holder, (q. v.) is in general any one of the parties who is in possession of the bill, and entitled to receive the money therein mentioned.
4. Some of the parties are sometimes fictitious persons. When a bill is made payable to a fictitious person, and indorsed in the name of the fictitious payee, it is in effect a bill to bearer, and a bona fide holder, ignorant of that fact, may recover on it, against all prior parties, who were privy to the transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 1 Camp. 130; 19 Ves. 311. In a case where the drawer and payee were fictitious persons, the acceptor was held liable to a bona fide holder. 10 B. & C. 468; S. C. 11 E. C. L. R. 116. Vide, as to parties to a bill, Chit. Bills, 15 to 76, (ed. of 1836.)
5. - 2. The form of the bill. 1. The general requisites of a bill of exchange, are, 1st. that it be in writing. R. T. Hardw. 2; 2 Stra. 955; 1 Pardess. 344-5.
6.- 2d. That it be for the payment of money, and not for the payment of merchandise. 5 T. R. 485; 3 Wils. 213; 2 Bla. Rep. 782; 1 Burr. 325; 1 Dowl. & Ry. N. P. C. 33; 1 Bibb's R. 502; 3 Marsh. (Kty.) R. 184; 6 Cowen, 108; 1 Caines, R. 381; 4 Mass. 245; 10 S. & R. 64; 14 Pet. R. 293; 1, M'Cord, 115; 2 Nott & M'Cord, 519; 9 Watts, R. 102. But see 9 John. R. 120; and 19 John. R. 144, where it was held that a note payable in bank bills was a good negotiable note.
7. - 3d. That the money be payable at all events, not depending on any contingency, either with regard to the fund out of which payment is to be made, or the parties by or to whom payment is to be made. 8 Mod. 363; 4 Vin. Ab. 240, pl. 16; 1 Burr. 323; 4 Dougl. 9; 4 Ves. 372; Russ. & Ry. C. C. 193; 4 Wend. R. 576; 2 Barn. & Ald. 417.
8. - 2. The particular requisites of a bill of exchange. It is proper here to remark that no particular form or set of words is necessary to be adopted. An order " to deliver money," or a promise that " A B shall receive money," or a promise " to be accountable" or " responsible" for it, have been severally held to be sufficient for a bill or note. 2 Ld. Raym. 1396; 8 Mod, 364.
9. The several parts of a bill of exchange are, 1st. that it be properly dated as to place
10.- 2d. That it be properly dated as to the time of making. As the time a bill, becomes due is generally regulated by the time when it was made, the date of the instrument ought to be clearly expressed. Beawes, pl. 3 1 B . & C. 398; 2 Pardess. n. 333.
11. - 3d. The superscription of the sum for which the bill is payable is not indispensable, but if it be not mentioned in the bill, the superscription will aid. the omission. 2 East, P. C. 951.
12. - 4th. The time of payment ought to be expressed in the bill; if no time be mentioned, it is considered as payable on demand. 7 T. R. 427; 2 Barn. & C. 157.
13. - 5th. Although it is proper for the drawer to name the place of payment, either in the body or subscription of the bill, it is not essential; and it is the common practice for the drawer merely to write the address of the drawee, without pointing out any, place of payment; in such case the bill is considered payable, and to be presented at the residence of the drawee, where the bill was made, or to him personally any where. 2 Pardess. n. 337 10 B. & C. 4; Moody & M. 381; 4 Car. & Paine, 35. It is at the option of the drawer whether or not to prescribe a particular place of payment, and make the payment there part of the contract. Beawes, pl. 8. The drawee, unless restricted by the drawer, may also fix a place of payment by his acceptance. Chit. Bills, 172.
14. - 6th. There must be an order or request to pay and that must be a matter of right, and not of favor. Mood. & M. 171. But it seems that civility in the terms of request cannot alter the legal effect of the instrument. "il vous plair a de payer," is, in France, the proper language of a bill. Pailliet, Manuel de Droit Francais, 841. The word pay is not indispensable, tor the word deliver is equally operative. Ld. Raym. 1397.
15. - 7th. Foreign bills of exchange consist, generally, of several parts; a party who has engaged to deliver a foreign bill, is bound to deliver as many parts as may be requested. 2 Pardess. n. 342. The several parts of a bill of exchange are called a set; each part should contain a condition that it shall be paid, provided the others remain unpaid. Id. The whole set make but one bill.
16. - 8th. The bill ought to specify to whom it is to be paid. 2 Pardess. n. 338; 1 H. Bl. 608; Russ. & Ry. C. C. 195. When the name of the payee is in blank, and the bill has been negotiated by indorsement, the holder may fill the blank with his own name. 2 M. & S. 90; 4 Camp. 97. It may, however, be drawn payable to bearer, and then it is assignable by delivery. 3 Burr. 1526.
17. - 9th. To make a bill negotiable, it must be made payable to order, or bearer, or there must be other operative and equivlent words of transfer. Beawes, pl. 3; Selw. N. P. 303, n. 16; Salk. 133. if, however, it is not intended to make the bill negotiable, these words need not be inserted, and the instrument will, nevertheless, be valid as a bill of exchange. 6 T. R. 123; 6 Taunt. 328; Russ. & Ry. C. C. 300; 3 Caines' R. 137; 9 John. It. 217. In France, a bill must be made payable to order. Code de Com. art. 110; 2 Pardess. n. 339.
18. - 10th. The sum for which the bill is drawn, must be clearly expressed in the body of it, in writing at length. The sum must be fixed and certain, and not contingent. 2 Stark. R. 375. And it may be in the money of any country. Payment of part of the bill, the residue being unpaid, cannot be indorsed. The, contract is indivisible, and the acceptor would thereby be compelled to make two payments instead of one. But when part of a bill has been paid the residue may be assigned, since then it becomes a contract for the residue only. 12 Mod. 213; 1 Salk. 65; Ld. Ray. 360.
19. - 11th. It is usual to insert the words, value received, but it is. implied that every bill and indorsement has been made for value received, as much as if it had been expressed in totidem verbis. 3 M. & S. 352; Bayl. 40, n. 83.
20. - 12th. It is usual, when the drawer of the bill is debtor to the drawee, to insert in the bill these words: " and put it to my account but when the drawee, or the person to whom it is directed, is debtor to the drawer, then he inserts these words : "and put it to your account;" and, sometimes, where a third person is debtor to the drawee, it may be expressed thus: "and put it to the account of A B;" Marius, 27;. C, om. Dig. Merchant, F 5; R. T. Hardw. 1, 2, 3; but it is altogether unnecessary to insert any of these words. 1 B. & C. 398; S. C. 8 E. C. L. R. 108.
21. - 13th. When the drawer is desirous to inform the drawee that he has drawn a bill, he inserts in it the words, "as per advice;" but when he wishes the bill paid without any advice from him, he writes, "without further advice." In the former case the drawee is not authorized to pay the bill till he has received the advice; in the latter he may pay before he has received advice.
22. - 14th. The drawee must either subscribe the bill, or, it seems, his name may be simply inserted in the body of the instrument. Beawes, pl. 3; Ld. Raym. 1376 1 Stra. 609.
23. - 15th. The bill being a letter of request from the maker to a third person, should be addressed to that person by the Christian name and surname, or by the ful