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.