BOUGHT NOTE, contracts. An instrument in writing, given by a broker to the seller of merchandise, in which it is stated that the goods therein mentioned have been sold for him. There appears, however, some confusion in the books, on the subject of these notes sometimes they are called sold notes. 2 B. & Ald. 144 Blackb. on Sales, 89.
2. This note is signed in the broker's name, as agent of the buyer and seller; and, if he has not exceeded his authority, the parties are thereby respectively bound. 1 Bell's Com. (5th ed.) 435; Holt's C. 170; Story on Agency, 28; 9 B. & Cr. 78; 17 E. C. L. R. 335; 5 B. & Ad. 521; 1 N. R. 252; 1 Moo. & R. 368; Moo. & M. 43; 22 E. C. L. R. 243; 2 M. & W. 440; Moo. & M. 43; 6 A. & E. 486; 33 E. C. L. R. 122; 16 East, 62 Gow, R. 74; 1 Camp. R. 385; 4 Taunt. 209; 7 Ves. 265. Vide Sold Note.
BOUND BAILIFFS. Sheriff's officers, who serve writs and make arrests; they are so called because they are bound to the sheriff for the due execution of their office. 1 Bl. Com. 345.
BOUNDARY, estates. By this term is understood in general, every separation, natural or artificial, which marks the confines or line of division of two contiguous estates. 3 Toull. n. 171.
2. Boundary also signifies stones or other materials inserted in the earth on the confines of two estates.
3. Boundaries are either natural or artificial. A river or other stream is a natural boundary, and in that case the centre of the stream is the line. 20 John. R. 91; 12 John. R. 252; 1 Rand. R. 417; 1 Halst. R. 1; 2 N. H. Rep. 369; 6 Cowen, R. 579; 4 Pick. 268; 3 Randolph's R. 33 4 Mason's R. 349-397.
4. An artificial boundary is one made by man.
5. The description of land, in a deed, by specific boundaries, is conclusive as to the quantity; and if the quantity be expressed as a part of the description, it will be inoperative, and it is immaterial whether the quantity contained within the specific boundaries, be greater or less than that expressed; 5 Mass. 357; 1 Caines' R. 493; 2 John. R. 27; 15 John. 471; 17 John. R. 146; Id. 29; 6 Cranch, 237; 4 Hen. & Munf. 125; 2 Bay, R. 515; and the same rule is applicable, although neither the courses and distances, nor the estimated contents, correspond with such specific boundaries; 6 Mass. 131; 11 Mass. 193; 2 Mass. 380; 5 Mass. 497; but these rules do not apply in cases where adherence to them would be plainly absurd. 17 Mass. 207. Vide 17 S. & R. 104; 2 Mer. R. 507; 1 Swanst. 9; 4 Ves. 180; 1 Stark. Ev. 169; 1 Phil. Ev. Index, h. t.; Chit. Pr. Index, h. t.; 1 Supp. to Ves. jr. 276; 2 Hill. Ab. c. 24, 209, and Index, h. t.
6. When a boundary, fixed and by mutual consent, has been permitted to stand for twenty-one years, it cannot afterwards be disturbed. In accordance with this rule, it has been decided, that where town lots have been occupied up to a line fence between them, for more than twenty-one years, each party gained an incontrovertible right to the line thus established, and this whether either party knew of the adverse claim or not; and whether either party has more or less ground than was originally in the lot he owns. 9 Watts, R. 565. See Hov. Fr. c. 8, p. 239 to 243; 3 Sum. R 170 Poth. Contr. de Societe, prem. app. n. 231.
7. Boundaries are frequently marked by partition fences, ditches, hedges, trees, &c. When such a fence is built by one of the owners of the land, on his own premises, it belongs to him exclusively; when built by both at joint expense, each is the owner of that part on his own land. 5 Taunt. 20. When the boundary is a hedge and a single ditch, it is presumed to belong to him on whose side the hedge is, because he who dug the ditch is presumed to have thrown the earth upon his own land, which was alone lawful to do, and that the hedge was planted, as is usual, on the top of the bank thus raised. 3 Taunt. 138. But if there is a ditch on each side of the hedge, or no ditch at all, the hedge is presumed to be the common property of both proprietors. Arch. N. P. 328; 2 Greenl. Ev. 617. A tree growing in the boundary line is the joint property of both owners of the land. 12 N. H. Rep. 454.
8. Disputes arising from a confusion of boundaries may be generally settled by an action at law. But courts of equity will entertain a bill for the settlement of boundaries, when the rights of one of the parties may be established upon equitable grounds. 4 Bouv. Inst. n. 3923.
BOUNTY. A sum of money or other thing, given, generally by' the government, to certain persons, for some service they have done or are about to do to the public. As bounty upon the culture of silk; the bounty given to an enlisted soldier; and the like. It cliffers from a reward, which is generally applied to particular cases; and from a payment, as there is no contract on the part of the receiver of the bounty.
BOVATA TERRAE. As much land as one ox can plough.
BRANCH. This is a metaphorical expression, which designates, in the genealogy of a numerous family, a portion of that family which has sprang from the same root or stock; these latter expressions, like the first, are also metaphorical.
2. The whole of a genealogy is often called the genealogical tree; and sometimes it is made to take the form of a tree, which is in the first place divided into as many branches as there are children, afterwards into as many branches as there are grand-children, then of great grandchildren, &c. If, for example, it be desired to have a genealogical tree of Peter's family, Peter will be made the trunk of the tree; if he has had two children, John and James, their names will be written on the first two branches; which will themelves shoot out as many smaller branches as John and James have children; from these other's proceed, till the whole family is represented on the tree; thus the origin, the application, and the use of the word branch in genealogy will be at once perceived.
BRANCHES. Those solid parts of trees which grow above the trunk.
2. In general the owner of a tree is the owner of the branches; but when they grow beyond his line, and extend over the adjoining estate, the proprietor of the latter may cut them off as far as they grow over his land. Rolle's R. 394.; 3 Bulst. 198. But as this nuisance is one of omission, and, as in the case of such nuisances, it is requisite to give notice before abating them, it would be more prudent, and perhaps necessary, to give notice to the owner of the tree to remove such nuisance. 1 Chit. Pr. 649, 650, 652. See Root; Tree.
TO BRAND. An ancient mode of punishment, which was to inflict a mark on an offender with a hot iron. This barbarous punishment has been generally disused.
BRANDY. A spirituous liquor made of wine by distillation. See stat. 22 Car. H. c. 4.
BREACH, contract, torts. The violation of an obligation, engagement or duty; as a breach of covenant is the non-performance or violation of a covenant; the breach of a promise is non-performance of a promise; the breach of a duty, is the refusal or neglect to execute an office or public trust, according to law.
2. Breaches of a contract are single or continuing breaches. The former are those which are committed at one single time. Skin. 367; Carth. 289. A continuing breach is one committed at different times, as, if a covenant to repair be broken at one time, and the same covenant be again broken, it is a continuing breach. Moore, 242; 1 Leon. 62; 1 Salk. 141; Holt, 178; Lord Raym. 1125. When a covenant running with the land is assigned after a single breach, the right of action for such breach does not pass to the assignee but if it be assigned after the commencement of a continuing breach, the right of action then vests in such assignee. Cro. Eliz. 863; 8 Taunt. 227;, 2 Moore, 164; 1 Leon. 62.
3. In general the remedy for breaches of contracts, or quasi contracts, is by a civil action.
BREACH OF THE PEACE. A violation of public order; the offence of disturbing the public peace. One guilty of this offence may be held to bail for his good behaviour. An act of public indecorum is also a breach of the peace. The remedy for this offence is by indictment. Vide Pace,
BREACH OF PRISON. An unlawful escape out of prison. This is of itself a misdemeanor. 1 Russ. Cr. 378; 4 Bl. Com. 129 2 Hawk. P. C. c. 18, s. 1 7 Conn. 752. The remedy for this offence is by indictment. See Escape.
BREACH OF TRUST. The wilful misappropriation, by a trustee, of a thing which had been lawfully delivered to him in confidence.
2. The distinction between larceny and a breach of trust is to be found chiefly in the terms or way in which the thing was taken originally into the party's possession; and the rule seems to be, that whenever the article is obtained upon a fair contract, not for a mere temporary purpose, or by one who is in the. employment of the deliverer, then the subsequent misappropriation is to be considered as an act of breach of trust. This rule is, however, subject to many nice distinctions. 15 S. & R. 93, 97. It has been adjudged that when the owner of goods parts with the possession for a particular purpose, and the person who receives them avowedly for that purpose, has at the time a fraudulent intention to make use of the possession as the weans of converting the goods to his own use, and does so convert them, it is larceny; but if the owner partwith the property, although fraudulent means have been used to obtain it, the, act of conversion is not larceny. Id. Alis. Princ. c. 12, p. 354.
3. In the Year Book, 21 H. VII. 14, the distinction is thus stated: Pigot. If I deliver a jewel or money to my servant to keep, and he flees or goes from me with the jewel, is it felony ? Cutler said, Yes : for so long as he is with me or in my house, that which I have delivered to him is adjudged to be in my possession; as my butler, who has my plate in keeping, if he flees with it, it is felony. Same law; if he who keeps my horse goes away with, him: The reason is, they are always in my possession. But if I deliver a horse to my servant to ride to market or the fair and he flee with him, it is no felony; for e comes lawfully to the possession of the horse by delivery. And so it is, if I give him a jewel to carry to London, or to pay one, or to buy a thing, and he flee with it, it is not felony : for it is out of my possession, and he comes lawfully to it. Pigot. It can well be: for the master in these cases has an action against him, viz., Detinue, or Account. See this point fully discussed in Stamf. P. C. lib. 1; Larceny, c. 15, p. 25. Also, 13 Ed. IV. fo. 9; 52 H. III. 7; 21 H. VII. 15.
BREACH. pleading. That part of the declaration in which the violation of the defendant's contract is stated.
2. It is usual in assumpsit to introduce the statement of the particular breach, with the allegation that the defendant, contriving and fraudulently intending craftily and subtilely to deceive and defraud the plaintiff, neglected and refused to perform, or performed the particular act contrary to the previous stipulation. ?
3. In debt, the breach or cause of action. complained of must proceed only for the non-payment of money previously alleged to be payable; and such breach is nearly similar, whether the action be in debt on simple contract, specially, record or statute, and is usually of the following form: " Yet the said defendant, although often requested so to, do, hath not as yet paid the said sum of ____ dollars, above demanded, nor any part thereof, to the said plaintiff, but bath hitherto wholly neglected and refused so to do, to the damage of the said plaintiff _________ dollars, and therefore he brings suit," &c.
4. The breach must obviously be governed by the nature of the stipulation; it ought to be assigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with its import and effect. Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127; and see 5 John. R. 168; 8 John. R. 111; 7 John. R. 376; 4 Dall. 436; 2 Hen. & Munf. 446.
5. When the contract is in the disjunctive, as, on a promise to deliver a horse by a particular day, or pay a sum of money, the breach ought to be assigned that the defendant did not do the one act nor the other. 1 Sid. 440; Hardr. 320; Com. Dig. Pleader, C.
BREAKING. Parting or dividing by force and violence a solid substance, or piercing, penetrating, or bursting through the same.
2. In cases of burglary and house-breaking, the removal, of any part of the house, or of the fastenings provided to secure it, with violence and a felonious intent, is called a breaking.
3. The breaking is actual, as in the above case; or constructive, as when the burglar or house-breaker gains an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 2; 2 Chit. Cr. Law, 1092; 1 Hale, P. C. 553; Alis. Prin. 282, 291. In England it has been decided that if the sash of a window be partly open, but not sufficiently so to admit a person, the raising of it so as to admit a person is not a breaking of the house. 1 Moody, Cr. Cas. 178. No reasons are assigned. It is difficult to conceive, if this case be law, what further opening will amount to a breaking. But see 1 Moody, Cr. Cas. 327, 377; and Burglary.
BREAKING DOORS. The act of forcibly removing the fastenings of a house, so that a person may enter.
2. It is a maxim that every man's house is his castle, and it is protected from every unlawful invasion. An officer having a lawful process, of a criminal nature, authorizing him to do so, may break an outer door, if upon making a demand of admittance it is refused. The house may also be broken open for the purpose of executing a writ of habere facias possessionem. 5 Co. 93; Bac. Ab. Sheriff, N 3.
3. The house protects the owner from the service of all civil process in the first instance, but not, if once lawfully arrested, he takes refuge in his own house; in that case the officer may pursue him, and break open any door for the Purpose. Foster, 320; 1 Rolle's R. 138 Cro. Jac. 555. Vide Door; House.
BREATH, med. juris. The air expelled from the chest at each expiration.
2. Breathing, though a usual sign of life, is not conclusive that a child was wholly born alive, as breathing may take place before the whole delivery of the mother is complete. 5 Carr. & Payn, 329; S. C. 24 E. C. L. R. 344. Vide Birth; Life; Infanticide.
BREPHOTROPHI, civil law. Persons appointed to take care of houses destined to receive foundlings. Clef des Lois Rom. mot Administrateurs.
BREVE, practice. A writ in which the cause of action is briefly stated, hence its name. Fleta, lib. 2, c. 13, 25; Co. Lit. 73 b.
2. Writs are distributed into several classes. Some are called brevia formata, others brevia de cursu, brevia judicialia, or brevia magistralia. There is a further distinction with respect to real actions into brevia nominata and innominata. The former, says Bacon, contain the time, place and demand very particularly; and therefore by such writ several lands by several titles cannot be demanded by the same writ. The latter contain only a general complaint, without expressing time, damages, &c., as in trespass quare clausum fregit, &o., and therefore several lands coming to the demandant by several titles may be demanded in such writ. F. N. B. 209; 8 Co. 87; Kielw. 105; Dy. 145; 2 Brownl. 274; Bac. Ab. Actions in General, C. See Innominate contracts.
BREVE DE RECTO. A writ of right. (q. v.)
BREVE TESTATUM, feudal law. A declaration by a superior lord to his vassal, made in the presence of the pares curias, by which he gave his consent to the grant of land, was so called. Ersk. Inst. B. 2, tit. 3, s. 17. This was made in writing, and had the operation of a deed. Dalr. Feud. Pr. 239.
BREVET. In France, a brevet is a warrant granted by the government to authorize an individual to do something for his own benefit, as a brevet d'invention, is a patent to secure a man a right as inventor.
2. In our army, it signifies a commission conferring on an officer a degree of rank immediately above the one which he holds in his particular regiment, without, however conveying a right to receive a corresponding pay.
BREVIA, writs. They were called brevia, because of the brevity in which the cause of action was stated in them.
BREVIA ANTICIPANTIA. This name is given to a number of writs, which are also called writs of prevention. See Quia Ti. met.
BREVIA FORMATA, Eng law. The collection of writs found in the Registrum Brevium was so called. The author of Fleta says, these writs were formed upon their cases. They were different from the writs de cursu, which were approved by the council of the whole realm, and could not be changed without the will of the same. Fleta, lib. 2, c. 13, 2. See 17 S. & R. 194-5, and authorities there cited.
BREVIA JUDICIALIA. Subsidiary process issued pending a suit, or process issued in execution of the judgment. They varied, says the author of Fleta, according to the variety of the pleadings of the parties and of their responses. Lib. 2. c. 13, 3; Co. Lit. 73 b, 54 b. Many of them, however, long since became fixed in their forms, beyond the power of the courts to alter them, unless authorized to do so by the legislature. See 1 Rawle, Rep. 52; Act of Pennsylvania, June. 16, 1836, 3, 4, 5.
BREVIA MAGISTRALIA. These were writs formed by the masters in chancery, pursuant to the stat. West. 2, c. 24. They vary according to the diversity of cases and complaints, of which, says the author of Fleta, some are personal, some real, some mixed, according as actions are diverse or various, because so many will be the forms of writs as there are kinds of actions. Fleta, lib. 2, c. 13, 4; Co. Lit. 73 b, 54 b.
BREVIARIUM. The name of a code of laws of Alaric II., king of the Visigoths.
BREVIBUS ET ROTULIS LIBERANDIS, Eng. law. A writ or mandate directed to a sheriff, commanding him to deliver to his successor the county and the appurtenances, with all the briefs, rolls, remembrances, and all other things belonging to his office.