SE DEFENDENDO, criminal law. Defending himself.
2. Homicide, se defendendo, is that which takes place upon a sudden rencounter, where two persons upon a sudden quarrel, without premeditation or malice, fight upon equal terms, and one, before a mortal stroke has been given, declines any further combat, and retreats as far as he can with safety, and kills his adversary, through necessity, to avoid immediate death. 2 Swift's Dig. 289 pamphl. Rep. of Selfridge's, Trial in, 1805 Hawk. bk. 1, c. 11, s. 13; 2 Russ. on Cr. 543; Bac. Ab. Murder, &c F 2.
SEA. The ocean; the great mass of waters which surrounds the land, and which probably extends from pole to pole, covering nearly three quarters of the globe. Waters within the ebb and flow of the tide, are to be considered the sea. Gilp. R. 526.
2. The sea is public and common to all people, and every person has an equal right to navigate it, or to fish there; Ang. on Tide Wat. 44 to 49; Dane's Abr. c. 68, a. 3, 4; Inst. 2, 1, 1; and to land upon the sea, shore. (q. v.)
3. Every nation has jurisdiction to the distance of a cannon shot, (q, v.) or marine league, over the water adjacent to its shore. 2 Cranch, 187, 234; 1 Circuit Rep. 62; Bynk. Qu. Pub. Juris. 61; 1 Azuni Mar. Law, 204; Id. 185; Vattel, 207:
SEA LETTER OR SEA BRIEF, maritime law. A document which should be found on board of every neutral ship; it specifies the nature and quantity of the cargo, the place from whence it comes, and its destination. Chit. Law of Nat. 197; 1 John. 192.
SEA SHORE, property. That space of land, on the border of the sea, which is alternately covered and left dry, by the rising and falling of the tide or, in other words, that space of land between high and low water mark. Hargr, Tr. 12; 6 Mass. 435, 439; 1 Pick. 180, 182; 5 Day, 22.
2. Generally, the sea shore belongs to the public. Angell on Tide Wat. 34, 5; 3 Kent's Com. 347.
3. By the Roman law, the shore included the land as far as the greatest wave extended in winter; est autem littus, maris, quatenus hibernus, fluctus maximus excurrit. Inst. lib. 2, t. 1, s. 3. Littus publicum est eatenus qua maxime fluctus exaestuat. Dig., lib, 50, t. 16, s. 112.
4. The Civil Code of Louisiana seems to have followed the law of the Insti-tutes and the Digest, for it enacts, art. 442, that the "sea shore is that space, of land over which the waters of the sea are spread in the highest water, during the winter season." Vide. 5 Rob. Adm. R. 182; Dougl. 425; 1 Halst. R. 1; 2 Roll. Ab. 170; Dyer, 326; 5 Co. 107; Bac. Ab., Courts of Admiralty,, A; 1 Am. Law Mag. 76; 16 Pet. R. 234, 367 Ang. on Tide Waters, Index, tit. Shore; 2 Bligh's N, S. 146; 5 M. & W. 327 Merl. Quest. de Droit, mots Rivage de la Mer; Inst. 2, 1, 2; 22 Maine, R. 350. For the law of Mass. vide Dane's Ab. c. 68, a 3, 4.
SEA WEED. A species of grass which grows in the sea.
2. When cast upon land, it belongs to the owner of the land adjoining the sea shore; upon the grounds, that it increases gradually, that it is useful as manure and a protection to the ground, and that it is some compensation for the encroachments of the sea upon the land. 2 John. R. 313, 323. Vide 5 Verm. R. 223.
3. The French differs from our law in this respect, as sea weeds there, when cast on the beach, belong to the first occupant. Dall. Dict. Propriete, art. 3, 2, n. 128.
SEA WORTHINESS, mer. law. The ability of a ship or other vessel to make a sea voyage with probable safety: there is, in every insurance, whether on ship or goods, an implied warranty that the ship shall be worthy when she sails on the voyage insured; that is, that she shall be "tight, staunch, and strong, properly manned, provided with all necessary stores, and in all respects fit for the intended voyage." Marsh. Ins. 153 2 Phil. Ev. 60 10 Johns. R. 58.
2. The following rules have been established in regard, to the warranty of sea-worthiness.
3. - 1. That it is of no consequence whether the insured was aware of the condition of the ship, or not. His innocence or ignorance is no answer to the fact that the ship was not sea-worthy.
4. - 2. - The opinion of carpenters who have repaired the vessel, however they may strengthen the presumption that the ship is sea-worthy, when it is favorable, is not conclusive of the fact of sea-worthiness. 4 Dow's Rep. 269.
5. - 3. The presumption, prima facie, is for sea-worthiness. 1 Dow's R. 336; And it is presumed that a vessel continues sea-worthy, if she was so at the inception of the risk. 20 Pick. 389. See 1 Brev. 252.
6. - 4. Any sort of disrepair left in the ship, by which she, or the cargo may suffer, is a breach of the warranty of sea-worthiness.
7. - 5. A deficiency of force in the crew, or of skill in the master, mate, &c., is a want of sea-worthiness. 1 Campb. 1; 14 East, R. 481. But if there was once a sufficient crew, their temporary absence will not be considered a breach of the warranty. 2 Barn. & Ald. 73; 1 John. Cas. 184; 1 Pet. 183.
8. - 6. A vessel may be rendered not sea-worthy by being overloaded. 2 Barn. & Ald . 320.
9. - 7. When the sea-worthiness arises from justifiable ignorance of the cause of the defect, and is discovered and remedied before any injury occurs, it is not to be considered as a defect. Ib. See, generally, 2 John. 124, 129; 3 John. Cas. 76; 1 John. 241; 1 Caines, 217 3 S. & R. 25 1 Whart. 399.
10. By an act of congress, approved July 20, 1840, as amended, by the act of July 29, 1850, it is provided, that if the first officer, (or a second and third officer,) and a majority of the crew of any vessel, shall make complaint in writing that she is in an unsuitable condition to go to sea, because she is leaky, or insufficiently supplied with sails, rigging, anchors, or any other equipment, or that the crew is insufficient to man her, or that her provisions, stores, and supplies are not, or have not been, during the voyage, sufficient and wholesome, thereupon, in any of these or like cases, the consul or commercial agent who may discharge any duties of a consul shall appoint two disinterested, competent, practical men, acquainted with maritime affairs, to examine into the causes of complaint, who shall, in their report, state what defects and deficiencies, if any they find to be well founded, as well as what, in their judgment ought to be done, to put the vessel in order for the continuance of her voyage.
SEAL, conveyancing, contracts. A seal is an impression upon wax, wafer, or some other tenacious substance capable of being impressed. 5 Johns. R. 239. Lord Coke defines a seal to be wax, with an impression. 3 Inst. 169. " Sigillum," says he, "est cera impressa, quia cera sine impressione non est sigillum." This is the common law definition of a seal. Perk. 129, 134; Bro. tit. Faits, 17, 30; 2 Leon 21; 5 John. 239; 2 Caines, R. 362; 21 Pick. R. 417.
2. But in Pennsylvania, New Jersey, and the southern and western states generally, the impression upon wax has been disused, and a circular, oval, or square mark, opposite the name of the signer, has the same effect as a seal the shape of it however is indifferent; and it is usually written with a pen. 2 Serg. & Rawle, 503; 1 Dall. 63; 1 Serg. & Rawle, 72; 1 Watts, R. 322; 2 Halst. R. 272.
3. A notary must use his official seal, to authenticate his official acts, and a scroll will not answer. 4 Blackf. R. 185. As to the effects of a seal, vide Phil. Ev. Index, h. t. Vide, generally, 13 Vin. Ab. 19; 4 Kent, Com. 444; 7 Caines' Cas. 1; Com. Dig. Fait, A 2.
4. Merlin defines a real to be a plate of metal with a flat surface, on which is engraved the arms of a prince or nation, or private individual or other device, with which an impression may be made on wax or other substance on paper or parchment, in order to authenticate them: the impression thus made is also called a seal. Repert. mot Sceau; 3 McCord's R. 583; 5 Whart. R. 563.
5. When a seal is affixed to an instrument, it makes it a specialty, (q. v.) and whether the seal be affixed by a corporation or an individual the effect is the same. 15 Wend. 256.
6. Where an instrument concludes with the words, "witness our hands and seals," and is signed by two persons, with only one seal, the jury may infer, from the face of the paper, that the person who signed last, adopted the seal of the first. 6 Penn. St. Rep. 302. Vide 9 Am Jur. 290-297; 1 Ohio Rep. 368; 3 John. 470. 12 ohu. 76; as to the origin and use of seals, Addis. on Cont. 6; Scroll.
7. The public seal of a foreign state, proves itself; and public acts, decrees and judgments, exemplified under this seal, are received as true and genuine. 2 Cranch, 187, 238; 4 Dall. 416; 7 Wheat. 273, 335; 1 Denio, 376; 2 Conn. 85, 90; 6 Wend. 475; 9 Mod. 66. But to entitle its seal to such authority, the foreign state must have been acknowledged by the government, within whose jurisdiction the forum is located. 3 Wheat. 610; 9 Ves. 347.
SEAL-OFFICE, English practice. The office at which certain judicial writs are sealed with the prerogative seal, and without which they are of no author-ity. The officer whose duty it is to seal such writs is called "sealer of writs;"
SEAL OF THE UNITED STATES, government. The seal used by the United States in congress assembled, shall be the seal of the United States, viz.: ARMS, pale-ways of thirteen pieces argent and gules; a chief azure; the escutcheon on the breast of the American eagle displayer proper, holding in his dexter talon, an olive branch, and in his sinister, a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto, "E pluribus unum." For the CREST: over the head of the eagle which appears above the escutcheon, a glory, or breaking through a cloud, proper, and surrounding thirteen stars, forming a constellation argent on an azure field. REVERSE, a pyramid unfin-ished. In the zenith an eye in a triangle, surrounded with a glory proper: over the eye, these words, "Annuit caeptis." On the base of the pyramid, the numerical letters, MDCCLXXVI; and underneath, the following motto, "Novus ordo sectorum." Resolution of Congress, June 20, 1782; Gordon's Dig. art. 207.
SEALING OF A VERDICT, practice. The putting a verdict in writing, and placing it in an envelop, which is sealed. To relieve jurors after they have agreed, it is not unusual for the counsel to agree that the jury shall seal their verdict, and then separate. When the court is again in session, the jury come in and give their verdict, in all respects as if it had not been sealed, and a juror may dissent from it, if since the sealing, he has honestly changed his mind. 8 Ham. 405; Gilm. 333; 3 Bouv. Inst. n. 3257.
SEALS, matters of succession. On the death of a person, according to the laws of Louisiana, if the heir wishes to obtain the benefit of inventory, and the delays for deliberating, he is bound as soon as he knows of the death of the deceased to whose succession he is called, and before committing any act of heirship, to cause the seals to be affixed on the effects of the succession, by any judge or justice of the peace. Civ. Code, of Lo. art. 1027.
2. In ten days after this affixing of the seals, the, heir is bound to present a petition to the judge of the place in which the succession, is opened, praying for the removal of the seals, and that a true and faithful inventory of the effects of the succession be made. Id. art. 1028.
3. In case of vacant estates, and estates of which the heirs are absent and not represented, the seals, after the decease, must be affixed by a judge or justice of the peace within the limits of his jurisdiction, and may be fixed by him, either ex officio, or at the request of the parties. Civ. Code of Lo. art. 1070. The seals are affixed at the request of the parties, when a widow, a testamentary executor, or any other person who pretends to have an interest in a succession or community of property, requires it. Id. art. 1071.; They are affixed ex officio, when the presumptive heirs of the deceased do not all reside in the place where be died, or if any of them happen to be absent. Id. art 1072.
4. The object of placing the seals on the effects of a succession, is for the purpose of preserving them, and for the interest of third persons. Id. art. 1068.
5. The seals must be placed on the bureaus, coffers, armoires, and other things, which contain the effects and papers of the deceased, and on the doors of the apartments which contain these things, so that they cannot be opened without tearing off, breaking, or altering the seals. Id. art. 1069.
6. The judge or justice of the peace, who affixes the seals, is bound to appoint guardian, at the expense of the succession, to take care of the seals and of the effects, of which an account is taken at the end of the proces-verbal of the affixing of the seals; the guardian must be domiciliated in the plaze where the inventory is taken. Id. art. 1079. And the judge; when he retires, must take with him the keys of all things and apartments upon which the seals have been affixed. lb.
7. The raising of the seals is done by the judge of the place, or justice of the peace appointed by him to that effect, in the presence of the witnesses of the vicinage, in the same manner as for the affixing of the seals. Id. art. 1084. See, generally; Benefit of Inventory, Succession; Code de Pro. Civ. 2e part. lib. 1, t. 1, 2, 3; Dict. de Jurisp. Scelle.
SEAMAN. A sailor; a mariner; one whose business is navigation. 2 Boulay Paty, Dr. Com. 232; Code de Commerce art. 262; Laws of Oleron, art. 7; Laws of Wishuy, art. 19. The term seamen, in it most enlarged sense, includes the captain a well as other persons of the crew; in a more confined signification, it extends only to the common sailors; 3 Pardes. n. 667; the mate; 1 Pet. Adm. Dee. 246; the cook and steward; 2 Id. 268; are considered, as to their rights to sue in the admiralty, as common seamen; and persons employed on board of steamboats and lighters, engaged in trade or commerce, on tide water, are within the admiralty jurisdiction, while those employed in ferry boats are not. Gilp. R. 203, 532. Persons who do not contribute their aid in navigating the vessel or to its preservation in the course of their occupation, as musicians, are not to be considered as seamen with a right to sue in the admiralty for their wages. Gilp. R. 516, See 1 Bell's Com. 509, 5th ed.; 2 Rob. Adm. R. 232; Dunl. Adm. Pr. h . t.
2. Seamen are employed either in merchant vessels for private service, or in public vessels for the service of the United States.
3. - 1. Seamen in the merchant vessels are required to enter into a contract in writing commonly called shipping articles. (q. v.) This contract being entered into, they are bound under. severe penalties, to render themselves on board the vessel according to the agreement: they are not at liberty to leave the ship without the consent of the captain or commanding officer, and for such absence, when less than forty-eight hours, they forfeit three day's wages for every day of absence; and when the absence is more than forty-eight hours, at one time, they forfeit all the wages due to them, and all their goods and chattels which were on board the vessel, or in any store where they may have been lodged at the time of their desertion, to the use of the owners of the vessel, and they are liable for damages for hiring other hands. They may be imprisoned for desertion until the ship is ready to bail.
4. On board, a seaman is bound to do his duty to the utmost of his ability; and when his services are required for extraordinary exertions, either in consequence of the death of other seamen, Or on account of unforeseen perils, he is not entitled to an increase of wages, although it may have been promised to him. 2 Campb. 317; Peake's N. P. Rep. 72; 1 T. R. 73. For disobedience of orders he may be imprisoned or punished with stripes, but the correction (q. v.) must be reasonable; 4 Mason, 508; Bee, 161; 2 Day, 294; 1 Wash. C. C. R. 316; and, for just cause, may be put ashore in a foreign country. 1 Pet. Adm. R. 186; 2 Ibid. 268; 2 East, Rep. 145. By act of Congress, September 28, 1850, Minot's Stat. at Large, U. S. p. 515, it is provided, that flogging in the navy and on board vessels of commerce, be, and the same is hereby abolished from and after the passage of this act.
5. Seamen are entitled to their wages, of which one-third is due at every port at which the vessel shall unlade and deliver her cargo, before the voyage be ended; and at the end of the voyage an easy and speedy remedy is given them to recover all unpaid wages. When taken sick a seaman is entitled to medical advice and aid at the expense of the ship: such expense being considered in, the nature of additional wages, and as constituting a just remuneration for his labor and services. Gilp. 435, 447; 2 Mason, 541; 2 Mass. R. 541.
6. The right of seamen to wages is founded not in the shipping articles, but in the services performed; Bee, 395; and to recover such wages the seaman has a triple remedy, against the vessel, the owner, and the master. Gilp. 592; Bee, 254.
7. When destitute in foreign ports, American consuls and commercial agents are required to provide for them, and for their passages to some port of the United States, in a reasonable manner, at the expense of the United States; and American vessels are bound to take such seamen on board at the request of the consul, but not exceeding two men for every hundred tons of the ship, and transport them to the United States, on such terms, not exceeding ten dollars for each person, as may be agreed on. Vide, generally, Story's Laws U. S. Index, h. t.; 3 Kent, Com, 136 to 156; Marsh. Ins. 90; Poth. Mar. Contr. translated by Cushing, Index, h. t.; 2 Bro. Civ. and Adm. Law, 155.
8. - 2. Seamen in the public service are governed by particular laws.
SEAMEN'S FUND. By the act of July 16, 1798, a provision is made for raising a fund for the relief of disabled and sick seamen: the master of every vessel arriving from a foreign port into the United States is required to pay to the collector of customs at the rate of twenty cents per month for every seaman employed on board of his vessel, which sum he may, retain out of the wages of such seaman: vessels engaged in the coasting trade, and boats, rafts or flats navigating the Mississippi, with intention to proceed to New Orleans, are also laid under similar obligations. The fund thus raised is to be employed by the president of the United States as circumstances shall require, for the benefit and convenience of sick and disabled American seamen. Act of March 3, 1802, s. 1.
2. By the act of congress, passed February 28, 1803, c. 62, 2 Story's L. U. S. 884, it is provided, that when a seaman is discharged in a foreign country with his own consent, or when the ship is sold there, he shall, in addition to his usual wages, be paid three months' wages into the hands of the American consul, two-thirds of which are to be paid to such seaman, on his engagement on board any vessel to return home, and the remaining one-third is retained in aid of a fund for the relief of distressed American seamen in foreign ports. See 11 John. R. 66; 12 John. Rep. 143; 1 Mason, R. 45; 4 Mason, R. 541; Edw. Adm. R. 239.
SEARCH, crim. law. An examination of a man's house, premises or person, for the purpose of discovering proof of his guilt in relation to some crime or misdemeanor of which be is accused.
2. The constitution of the United. States, amendments, art. 4, protects the people from unreasonable searches and seizures. 3 Story, Const. 1895; Rawle, Const. ch. 10, p. 127; 10 John. R. 263; 11 John. R. 500; 3 Cranch, 447.
3. By the act of March 2, 1799, s. 68, 1 Story's L. U. S. 632, it is enacted, that every collector, naval officer, and surveyor, or other person specially appointed, by either of them, for that purpose, shall have fall power and authority to enter any ship or vessel, in which they shall have reason to suspect any goods, wares, or merchandise, subject to duty, are concealed, and therein to search for, seize, and secure any such goods, wares, or merchandise; and if they shall have cause to suspect a concealment thereof in any particular dwelling house, store, building, or other place they or either of them shall; upon proper application, on oath, to any justice of the peace, be entitled to a warrant to enter such house, store, or other place, (in the day time only, and there to search for such goods; and if any shall be found, to seize and secure the same for trial; and all such goods, wares, and merchandise, on which the duties shall not have been paid, or secured to be paid, shall be forfeited.
SEARCH, practice. An examination made in the proper lien office for mortgages, liens, judgments, or other encumbrances, against real estate. The certificate given by the officer as to the result of such examination is also called a search.
2. Conveyancers and others who cause searches to be made ought to be very careful that they should be correct, with regard, 1. To the time during which the person against whom the search has been made owned the premises. 2. To the property searched against, which ought to be properly described. 3. To the form of the certificate of search.
SEARCH, RIGHT OF, mar. law. The right existing in a belligerent to examine and inspect the papers of a neutral vessel at sea. On the continent of Europe, this is called the right of visit. Dalloz, Dict. mots Prises Maritimes, n. 104-111.
2. The right does not extend to examine the cargo; nor does it extend to a ship of war, it being strictly confined to the searching of merchant vessels. The exercise of the right is to prevent the commerce of contraband goods. Although frequently resisted by powerful neutral nations, yet this right appears now to be fixed beyond contravention. The penalty for violently resisting this right is the confiscation of the property so withheld from visitation. Unless in extreme cases of gross abuse of his right by a belligerent, the neutral has no right to resist a search. 1 Kent, Com. 154; 2 Bro. Civ. and Adm. Law, 319; Mann. Comm. B. 3, c. 11.
SEARCH WARRANT, crim. law, practice. A warrant (q. v.) requiring the officer to whom it is addressed, to search a house or other place therein specified, for property therein alleged to have been stolen; and if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the warrant, or some other justice of the peace, or other lawfully authorized officer. It should be given under the hand and seal of the justice, and dated.
2. The constitution of the United States, amendments, art. 4, declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."
3. Lord Hale, 2 P. C. 149, 150, recommends great caution in granting such warrants. 1. That they be, not granted without oath made before a justice of a felony committed, and that the complainant has probable cause to suspect they are in such a house or place, and his reasons for such suspicion. 2. That such warrants express that the search shall be made in day time. 3. That they ought to be directed to a constable or other proper officer, and not to a private person. 4. A search warrant ought to command the officer to bring the stolen goods and the person in whose custody they are, before some justice of the peace. Vide 1 Chit. Cr. Law, 57, 64; 4 Inst. 176; Hawk. B. 2, c. 13, s. 17, n. 6; 11 St. Tr; 321; 2 Wils. 149, 291; Burn's Just. h. t.; Williams' Just. h. t.
SEARCHER, Eng. law. An officer of the customs, whose duty it is to examine and search all ships outward bound, to ascertain whether they have any prohibited or uncustomed goods on board.
SECK. This word has two significations. 1. It means a warrant of remedy by distress. Litt. s. 218; and vide Rent. 2. It imports want of present fruit or profit, as in the case of the reversion without rent or other service, except fealty. Co. Litt. 151 b, note 5.
SECOND. A measure equal to one sixtieth part of a minute. Vide Measure.
SECOND DELIVERANCE, practice. The name of a writ given by statute of Westminster the second, 13 Edw. 1. c. 2, founded on the record of a former action of replevin. 2 Inst. 341. It commands the sheriff, if the plaintiff make him secure of prosecuting his claim, and returning the chattels which were adjudged to the defendant by reason of the plaintiff's default, to make deliver-ance. On being nonsuited, the plaintiff in replevin might, at common law, have brought another replevin, and so in infinitum, to the intolerable vexation of the defendant. The statute of Westminster restrains the plaintiff When nonsuited from so doing, but allows him this writ, issuing out of the original record, in order to have the same distress delivered again to him, on his giving the like security as before. 3 Bl. Com. 150,; Hamm. N. P. 495; F. N. B. 68; 19 Vin. Ab. 1.
SECOND SURCHARGE, WRIT OF. The name of a writ issued in England against a commoner who has a second time surcharged the common. 3 Bl. Com. 239.
SECONDARY, construction. That which comes after the first, which is primary: as, the primary law of, nations the secondary law of nations.
SECONDARY, English law. An officer who is second or next to the chief officer; as secondaries to the prothonotaries of the courts of king's bench, or common pleas; secondary of the remembrancer in the exchequer, &c. Jacob, L. D. h. t.
SECONDARY EVIDENCE. That species of proof which is admissible on the loss of primary evidence, and which becomes, by that event, the best evidence. 3 Bouv. Inst. n. 3055.
SECONDS, crim. law. Those persons who assist, direct and support others engaged in fighting a duel.
2. As they are often much to blame in inciting the duellists to their rash act, and as they are always assisting in the commission of the crime, the laws generally punish them with severity but, in consequence of the false ideas too generally entertained on the subject of honor, the are too seldom enforced.
SECRET. That which is not to be revealed.
2. Attorneys and counsellors, who have been trusted professionally with the secrets of their clients, are not allowed to reveal them in a court of justice. The right of secrecy belongs to the client, and not to the attorney and counsellor.
3. As to the matter communicated, it extends to all cases where the client applies for professional advice or assistance; and it does not appear that the protection is qualified by any reference to proceedings pending or in contem-plation. Story, Eq. Pl. 600; 1 Milne & K. 104; 3 Sim. R. 467.
3. Documents confided professionally to the counsel cannot be demanded, unless indeed the party would himself be bound to produce them. Hare on Discov. 171. Grand jurors are sworn the commonwealth's secrets, their fellows and their own to keep. Vide Confidential comunications; Witness.
SECRET, rights. A knowledge of something which is unknown to orthers, out of which a profit may be made; for example, an invention of a machine, or the discovery of the effect of the combination of certain matters.
2. Instances have occurred of secrets of that kind being kept for many years, but they are liable to constant detection. As such secrets are not pro-perty, the possessors of them in general prefer making them public, and securing the exclusive right for years, under the patent laws, to keeping them in an insecure manner, without them. See Phil. on Pat. ch. 15; Gods. on Pat. 171; Dav. Pat. Cas. 429; 8 Ves. 215; 2 Ves. & B. 218; 2 Mer. 446; 3 Mer. 157; 1 Jac. & W. 394; 1 Pick. 443; 4 Mason, 15; 3 B. & P. 630.
SECRETARY. An officer who, by order of his superior, writes letters and other instruments. He is so called because he is possessed of the secrets of his employer. This term wag used in France in 1343, and in England the term secretary was first applied to the clerks of the king, who being always near his person were called clerks of the secret, and in the reign of Henry VIII. the term secretary of state came into it.
SECRETARY OF EMBASSY or OF LEGATION. An officer appointed by the sovereign power, to accompany a minister of first or secoud rank, and sometimes, though not often, of an inferior rank. He is, in fact, a species of public minister; for independently of his protection as attached to an ambassador's suite, be enjoys, in his own rights, the same protection of the law of nations, and the same immunities as an ambassador. But private secretaries of a minister must Dot be confounded with secretaries of embassy or of legation. Such private secretaries are entitled to protection only as belonging to the suite of the ambassador.
2. The functions of a secretary of legation consist in his employment by his minister for objects of ceremony; in making verbal reports to the secretary of state, or other foreign ministers; in taking care of the archives of the mission; in ciphering and deciphering despatches; in sometimes making rough draughts of the notes or letters whicb the minister writes to his colleagues or to the local authorities; in drawup proces verbaux; in presenting passports to the minister for his signature, and delivering them to the persons for whom they are intended; and, finally, in assisting the minister, under whom be is placed, in everything concerning the affairs of the mission. In the absence of the minister he is admitted to conferences and to present notes signed by the minister. Vide Ambassador; Minister; Suite.
SECRETARY OF LEGATION. An officer employed to attend a foreign mission, and to perform certain duties as clerk.
2. His salary is fixed by the act of congress of May 1, 1810, s. 1, at such a sum as the president of the United States may allow, not exceeding two thousand dollars.
3. The salary of a secretary of embassy, or the secretary of a minister plenipotentiary, is the same as that of a secretary of legation.
SECRETARY OF THE NAVY, government. This officer is appointed by the president. His duties are to execute all such orders as he shall receive from the president, relative to the procurement of naval stores and materials, and the construction, armament, equipment and employment of vessels of war; as well as all other matters connected with the naval establishment of the United States; act of 30th April, 1798, s. 1, 1 Story's Laws, 498; he appoints his own clerks and subordinate officers. Various other duties are imposed upon him by sundry acts of congress. Vide Gordon's Dig. art. 370 to 375.
2. His salary is six thousand dollars. Act of 20th Feb. 1819, 3 Story's Laws, 1720.
SECRETARY OF STATE OF THE UNITED STATES, government. The principal officer in the Department of State. (q. v.) He shall perform such duties as shall be enjoined on or entrusted to him by the president, agreeably to the constitution, refative to the correspondences, commissions or instructions to or with public ministers or consuls from the United States, or to negotiations with foreign states or princes, or to memorials or other applications from foreign public ministers or foreigners, or to such other matters respecting foreign affairs as the president of the United States shall assign to such department. The secretary shall conduct the business of his department in such manner as the president shall, from time to time, order or instruct. Act of 27th July, 1789 act of 15th Sept: 1789, s. 1. Besides these general laws, there are various, others which impose upon him inferior and less important duties.
2. His salary is six thousand dollars per annum. Act of 20th Feb. 1819.
SECRETARY OF THE TREASURY OF THE UNITEE STATES, government. An officer appointed by the president. His principal duties are, 1. To superintend the collection of the revenue. 2. To digest, prepare, and lay before congress at the commencement of every session, a report on the subject of finance. 3. To annex to the annual estimates of the appropriations required for the public service, a statement of the appropriations for the service of the year, which may have been made by former acts. 4. To give information to either house of congress, respecting all matters connected with his office. Besides these, there are other minor duties imposed upon him by various acts of congress.
2. His salary is six thousand dollars. Gord. Dig. art. 249 to 262.
SECRETARY FOR THE DEPARTMENT OF WAR, government. This officer is appointed by the president. He is required to perform and execute such duties as shall, from time to time, be enjoined on or entrusted to him by the president, agreeably to the constitution, relative to military commissions or to the land forces, or warlike stores of the United States, or to such other matters respecting military affairs as the president shall assign to the department of war, (q. v.) or relative to granting of lands to persons entitled thereto for military services rendered to the United States, or relative to Indian affairs. Act of 27th Aug., 1789, 1 Story's Laws, 31.
2. His salary is six thousand dollars per annum. Act of 20th Feb. 1819, 3 Story's Laws, 1720.
3. Various other duties are imposed upon the secretary by sundry acts of congress. Vide Laws, Index, Departments, &c.; Gordon's Dig. art. 368 to 382.
SECTA pleading. In ancient times the plaintiff was required to establish the truth of his declaration in the first instance, and before it was called in question, upon the pleading, by the simultaneous production of his secta, that is, a number of persons prepared to confirm his allegations. Bract. 214, a.
2. The practice of thus producing a secta, gave rise to the very. ancient formula almost invariably used at the conclusion of a declaration, as entered on the record, et inde producit sectam; and, though the actual production has, for many centuries, fallen into disuse, the formula still remains. Accordingly, except the count on a writ of right, and in dower, all declarations constantly conclude thus, "And therefore he brings his suit, &c. The count on a writ of right did not, in ancient times, conclude with the ordinary production of suit, but with the following formula peculiar to itself, "Et quod tale sit jus suum offert disrationare per corpus, talis liberi hominis, &c., and it concludes, at the present day, with an abbreviated. translation of the same phrase: "And, that such is his right, he offers," &c. The count in dower is an exception to the rule in question, and concludes without any production of suit, a peculiarity which appears always to have belonged to that action. Steph. Pl. 427, 8; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399.
SECTION OF LAND. The lands of the United States are surveyed into parcels of six hundred and forty acres; each such parcel is called a section. 1 Story's L. U. S. 422.
2. These sections are divided into half sections, each of which contains three hundred and twenty acres, and into quarter sections of one hundred and sixty acres each.
SECTORES. Among the Romans the bidders at an auction were so called. Bab. on Auct. 2.
TO SECURE. To protect, insure, or save a right.
2. The constitution of the United States, art. 1, s. 8, gives power to congress "to promote the progress of science and the useful arts by securing, for Iimited times, to authors and inventors the exclusive right to their respective writings and discoveries." The inventor of a machine has the right to it exclusively at common law, and the author a right to his manuscript. But they may abandon the, right by publishing the book without having secured a copy-right, (q. v.) or by using publicly the machine, and suffering others to use it, without having obtained a patent. (q. v.) Vide Secret.
SECURITY. That which renders a matter sure; an instrument which renders certain the performance of a contract. The term is also sometimes applied to designate a person who becomes the surety for another, or who engages himself for the performance of another's contract. See 3 Blackf. R. 431.
SECURITY FOR COSTS, practice. In some courts there is a rule that when the plaintiff resides abroad he shall give security for costs, and until that has been done, when demanded, he cannot proceed in his action.
2. This is a right which the defendant must claim in proper time, for if he once waives it, he cannot afterwards claim it; the waiver is seldom, or perhaps never expressly made, but is generally implied from the acts of the de-fendant. When the defendant had undertaken to accept short notice of trial; 2 Hen. Bl. 573; 3 Taunt. 272 or after issue joined, and when he knew of plain-tiff's residence abroad; or, with such knowledge, when the defendant takes any step in the cause these several acts will amount to a waiver. 5 Bar & Ald. 702; S. C. 1 Dow. & Ryl. 348; 1 M. & P. 30; S. C. 17 E. C. L. R. 164. Vide 3 John. Ch. R. 520; 1 John. Ch. Rep. 202; 1 Ves. jun. 396.
3. The fact that the defendant is out of the jurisdiction of the court, will not, alone, authorize the requisition of security for costs; he must have his domicil abroad. 1 Ves. jr. 396. When, the defendant resides abroad, he will be required to give such security, although he is a foreign prince. 33 E. C. L. Rep. 214. Vide 11 S. & Rawle, 121 1 Miles, R. 321; 2 Miles, 402.
SECUS. Otherwise.
SEDITION, crimes. The raising commotions or disturbances in the state; it is a revolt against legitimate authority, Ersk. Princ. Laws, Scotl. b. 4, t. 4, s. 14; Dig. Lib. 49, t. 16, 1. 3, 19.
2. The distinction between sedition and treason consists in this, that though its ultimate object is a violation of the public peace, or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or the subversion of the constitution. Alis. Crim. Law of Scotl. 580.
3. The. obnoxious and obsolete act of July 14, 1798, 1 Story's Laws U. S. 543, was called the sedition law, because its professed object was to prevent disturbances.
4. In the Scotch law, sedition is either verbal or real. Verbal is inferred from the uttering of words tending to create discord between the king and his people; real sedition is generally committed by convocating together any considerable number of people, without lawful authority, under the pretence of redressing some public grievance, to the disturbing of the public peace. 1 Ersk. ut supra.
SEDUCTION. The offence of a man who abuses the simplicity and confidence of a woman to obtain by false promises what she ought not to grant.
2. The woman being particeps criminis, has no remedy for the mere seduction, nor is there, to the discredit of the law, a direct remedy in her parents. The seducer may be sued, though not. directly or ostensibly for the seduction; but for the consequent inability to perform those services for which she was accountable to her master, or to her parent, who, for this purpose, is obliged to assume that less endearing relation; and if it cannot be proved that she filled that office, the action cannot be sustained. 7 Mann. & Gr. 1033. It follows, therefore, that when the daughter is of full age, and the father is not entitled to her services, and actually, she is not in his service, the father can maintain no action for the seduction. 5 Harr. & J. 27; 1 Wend. 447; 3 Pennsyl. 49; 10 John. 115. Vide 2 Watts 474; 9 John. 387; 2 Wend. 459; 5 Cowen 106; 2 Penn. 583; 6 Munf. 587; 2 A. K. Marsh. 128; 2 Overt. 93; 9 John. R. 387; 2 New Reports, 476; 6 East, 887; Peake's Rep. 253; 11 East, 24; 5 East, 45; 2 T. R. 4; 2 Selw. N. P. 1001; 2 Phil. Ev. 156; 3 Chitt. Bl. Com. 140, n.; 7 Com. Dig. 318; 6 M. & W. 55.
SEEDS. The substance which nature prepares for the reproduction of plants or animals.
2. Seeds which have been sown in the earth immediately become a part of the land in which they have been sown; quae sata solo cedere intelliguntur. Inst. 2, 1, 32.
SEIGNIOR or SEIGNEUR. Among the feudists, this name signified lord of the fee. F. N. B. 23. The most extended signification of this word includes not only a lord or peer of parliament, but is applied to the owner or proprietor of a thing; hence, the owner of a hawk, and the master of a fishing vessel, is called a seigneur. 37 Edw. Ill. c. 19; Barr. on the Stat. 258.
SEIGNIORY, Eng. law. The rights of a lord as such, in lands. Swinb. 174.
SEISIN, estates. The possession of an estate of freebold. 8 N. H. Rep. 57; 3 Hamm. 220; 8 Litt. 134; 4 Mass. 408. Seisin was used in contradistinction to that precarious kind of possession by which tenants in villenage held their lands, which was considered to be the possession of their lords in, whom the freehold continued.
2. Seisin is either in fact or in law.
3. Where a freehold estate is conveyed to a person by feoffment, with livery of seisin, or by any of those conveyances which derive their effect from the statute of uses, he acquires a seisin in deed or in fact, and a freehold in deed: but where the freehold comes to a person by act of law, as by descent, he only acquires a seisin in law, that is, a right of possession, and his-estate is called a freehold In law.
4. The seisin in law, which the heir acquires on the death of his ancestor, May be defeated by the entry of a stranger, claiming a right to the land, which is called an abatement. (q. v.)
5. The actual seisin of an estate may be lost by the forcible entry of a stranger who thereby ousts or dispossesses the owner this act is called a disseisin. (q. v.)
6. According to Lord Mansfield, the various alterations which have been made in the law for the last three centuries, "have left us but the name of feoffment, seisin, tenure, and, freeholder, without any precise knowledge of the thing originally signified by these sounds."
7. In the United States, a conveyance by deed executed and acknowledged, and properly recorded according to law, and the descent cast upon the heir are, in general, considered as a seisin in deed without entry; and a grant by letters- patent from the commonwealth has the same effect. 4 Mass. R. 546; 7 Mass. R. 494; 15. Mass. R. 214 1 Munf. R. 17O. The recording of a deed is equivalent to livery of seisin. 4 Mass. 546.
8. In Pennsylvania, Connecticut, Massachusetts and Ohio, seisin means merely, ownership, and the distinction between seisin in deed and in law is not known in practice. Walk. Intr. 324, 330; 1 Hill. Abr. 24 4 Day, R. 305; 4 Mass.; R. 489 14 Pick. R. 224. A patent by the commonwealth, in Kentucky, gives a, right entry, but not actual seisin. 3 Bibb, Rep. 57. Vide 1 Inst. 31; 19 Vin. Ab. 306; Dane's Abr. c. 104, a. 3; 4 Kent, Com. 2, 381; Cruise's Dig. t. 1, 23; Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 1, n. 80; Poth. Traite des Fiefs, part 1, c. 2; 3 Sumn. R. 170. Vide Livery of Seisin.
SEIZURE, practice. The act of taking possession of the property of a person condemned by the judgment of a competent tribunal, to pay a certain sum of money, by a sheriff, constable, or other officer, lawfully authorized thereto, by virtue of an execution, for the purpose of having such property sold according to law to satisfy the judgment. By seizure is also meant the taking possession of goods for a violation of a public law; as the taking possession of a ship for attempting an illicit trade. 2 Cranch, 18 7; 6 Cowen, 404; 4 Wheat. 100; 1 Gallis. 75; 2 Wash. C. C. 127, 567.
2. The seizure is complete as soon as the goods are within the power of the officer. 3 Rawle's Rep. 401; 16 Johns. Rep. 287; 2 Nott & McCord, 392; 2 Rawle's Rep. 142; Wats. on Sher. 172; Com. Dig. Execution, C 5.
3. The taking of part of the goods in a house, however, by virtue of a fieri facias in the name of the whole, is a good seizure of all. 8 East, R. 474. As the seizure must be made by virtue of an execution, it is evident that it cannot be made after the return day. 2 Caine's Rep. 243; 4 John. R. 450. Vide Door; House; Search Warrant.
SELECTI JUDICES. Judges among the Romans who were selected very much like our juries. They were returned by the praetor, drawn by lot, subject to be challenged and sworn. 3 Bl. Com. 366.
SELF-DEFENCE, crim. law. The right to protect one's person and property from injury.
2. It will be proper to consider, 1. The extent of the right of self-defence. 2. By whom it may be exercised. 3. Against whom. 4. For what causes.
3. - 1. As to the extent of the right, it may be laid down, first, that when threatened violence exists, it is the duty of the person threatened to use all, prudent and precautionary measures to prevent the attack; for example, if by closing a door which was usually left open, one could prevent an attack, it would be prudent, and perhaps the law might require, that it should be closed, in order to preserve the peace, and the aggressor might in such case be held to bail for his good behaviour; secondly, if, after having taken such proper precautions, a party should be assailed, he may undoubtedly repel force by force, but in most instances cannot, under the pretext that he has been attacked, use force enough to kill the assailant or hurt him after he has secured himself from danger; as, if a person unarmed enters a house to commit a larceny, while there he does not threaten any one, nor does any act which manifests an intention to hurt any one, and there are a number of persons present, who may easily secure him, no one will be justifiable to do him any injury, much less to kill him; he ought to be secured and delivered to the public authorities. But when an attack is made by a thief under such circumstances, and it is impossible to ascertain to what extent he may push it, the law does not requite the party assailed to weigh with great nicety the probable extent of the attack, and he may use the most violent means against his assailant, even to the taking of his life. For homicide may be excused, se defendendo, where a man has no other probable means of preserving his life from one who attacks him, while in the commission of a felony, or even on a sudden quarrel, he beats him, so that he is reduced to this inevitable necessity. Hawk. bk. 2, c. 11, s. 13. And the reason is that when so reduced, he cannot call to his aid the power of society or of the commonwealth, and, being unprotected by law, he reassumes his natural rights, which the law sanctions, of killing his adversary to protect himself. Toull. Dr. Civ. Fr. ]iv. 1, tit. 1, n. 210. See Pamph. Rep. of Selfridge's Trial in 1806 2 Swift's Ev. 283.
4. - 2. The party attacked may undoubtedly defend himself, and the law further sanctions the mutual and reciprocal defence of such as stand in the near relations of hushand and wife, patent and child, and master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in their person or property, it is lawful for him to repel force by force, for the law in these cases respects the passions of the human mind, and makes, it lawful in him, when external violence is offered to himself, or to those to whom he bears so near a connexion, to do that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. 2 Roll. Ab. 546; 1 Chit. Pr. 592.
5. - 3. The party making the attack may be resisted, and if several persons join in such attack they may all be resisted, and one may be killed although he may not himself have given the immediate cause for such killing, if by his presence and his acts, he has aided the assailant. See Conspiracy.
6. - 4. The cases for which a man may defend himself are of two kinds; first, when a felony is attempted, and, secondly, when, no felony is attempted or apprehended.
7. - 1st. A man may defend himself, and even commit a homicide for the prevention of any forcible and atrocious crime, which if completed would amount to a felony; and of course under the like circumstances, mayhem, wounding and battery would be excusable at common law. 1 East, P. C. 271; 4 Bl. Com. 180. A man may repel force by force in defence of his person, property or habitation, against any one who manifests, intends, attempts, or endeavors, by violence or surprise, to commit a forcible felony, such as murder, rape, robbery, arson, burglary and the like. In these cases he is not required to retreat, but he may resist, and even pursue his adversary, until he has secured himself from all danger.
8. - 2d. A man may defend himself when no felony has been threatened or attempted; 1. When the assailant attempts to beat another and there is no mutual combat; as, where one meets another and attempts to commit or does commit an assault and battery on him, the person attacked may defend himself; and an offer or, attempt to strike another, when sufficiently near, so that that there is danger, the person assailed may strike first, and is not required to wait until he has been struk. Bull. N. P. 18; 2 Roll. Ab. 547. 2. When there is a mutual combat upon a sudden quarrel. In these cases both parties are the aggressors; and if in the fight one is killed it will be manslaughter at least, unless the survivor can prove two things: 1st. That before the mortal stroke was given be had refused any further combat, and had retreated as far as he could with safety; and 2d. That he killed his adversary from necessity, to avoid his own destruction.
9. A man may defend himself against animals, and he may during the attack kill them, but not afterwards. 1 Car. & P. 106; 13 John. 312; 10 John. 365.
10. As a general rule no man is allowed to defend himself with force if he can apply to the law for redress, and the law gives him a complete remedy, See Assault; Battery; Necessity; Trespass.
SELECTMEN. The name of certain officers in several of the United States, who are invested by the statutes of the several states with various powers.
SELLER, contracts. One who disposes of a thing in consideration of money; a
vendor.
2. This term is more usually applied in the sale of chattels, that of vendor in the sale of estates.
3. The duties of the seller are, 1. To deal with fairness. 2. To deliver the thing sold at the time and place appointed, and to take care of it until deli-very; but when everything the seller has to do with the goods is complete, the property and the risk of accident to the goods, rests in the buyer, even before delivery, or payment. Noy's Max. ch. 24; 7 East, 571; 2 Bl. Com. 448. 3. To warrant the title of personal property when he sells it as his own, when it is in his possession. 2 Kent, Com. 374; 1 Lord Raym. 593; 1 Salk. 210.
4. The rights of the seller are, 1. To be paid the price agreed upon. 2. To be indemnified for any expenses he may have incurred to preserve the thing sold for the buyer, after the title to it has passed to the latter. 3. To stop the thing in transitu when the buyer has failed and the price has not been paid . See Stoppage, in transitu. Vide Purchaser, and the authorities there cited; Bouv. Inst. Index, h. t.
SEMBLE. A French word which signifies, it seems. It is commonly used before the statement of a point of law which has not been directly settled; but about which the court have expressed an opinion, and intimated what it is.
SEMI-PROOF, civ. law. Presumptions of fact are so called. This degree of proof is thus deaned: "Non est ignorandum, probationem semiplenam eam esse, per quam rei gestae fides aliqua fit judici; non tamen tanta ut jure debeat in pronuncianda sententia eam sequi." Mascardus, De Prob. vol. 1, Quaest. 11, n. 1, 4.
SEMINAUFRAGIUM. A term used by Italian lawyers, which literally signifies half-shipwreck, and by which they understand the jetsam, or casting merchan-dise into the sea to prevent shipwreck. Locre, Esp. du Code de Com. art. 409. It also signifies the state of a vessel which has been so much injured by tem-pest or accident, that to repair the damages, after being brought into port, and prepare her for sea, would cost more than her worth. 4 Law Rep. 120.
SEMPER PARATUS. The name of a plea by which the defendant alleges that he has always been ready to perform what is demanded of him. 3 Bl. Com. 303. The same as Tout temps prist. (q. v.)
SEN. This is said to be an ancient word which signified justice. Co. Litt. 61 a.
SENATE, government. The less numerous branch of the legislature.
2. The constitution of the United States, article 1, s. 3, cl. 1, directs that "the senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years; and each senator shall have one vote." The vice president of the United States," to use the language of the constitution, art. 1, s. 3, cl. 4, "shall be president of the senate, but shall have no vote unless they be equally divided." In the senate each state in its political capacity, is represented, upon a footing of perfect equality, like a congress of sovereigns or ambassadors, or like an assembly of peers. It is unlike the house of representatives. where the people are represented. Story, Const. ch. 10.
3. The senate of the United States is invested with legislative, executive and judicial powers.
4. - 1. It is a legislative body whose concurrence is requisite to the passage of every law. It may originate any bill, except those for raising rev-enue, which shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. Const. art. 1, s. 7, el. I.
5. - 2. The senate is invested with executive authority in concluding treaties and making appointments. Vide President of the United States of America.
6. - 3. It is invested with judicial power when it is formed into a court for the trial of impeachments. See Courts of the United States.
7. In most of the states the less numerous branch of the legislature bears the title of senate. In such a body the people are represented as well as in the other house. Vide article Congress; and, for the senates of the several states, the name of each state. See, also, articles Courts of the United States, I; House of Representatives; Vice-President of the United States.
SENATOR, government. One who is a member of a senate.
2. No person shall be a senator [of the national senate] who shall not have attained the age of thirty years, and been nine years a citizen of the United States and who shall not when elected, be an inhabitant of that state for which he shall be chosen. Const. U. S. art. 1, s. 3, cl. 5. Vide 1 Kent, Com. 224 Story on the Const. 726 to 730.
SENATUS CONSULTUM, civ. law. A decree or decision of the Roman senate, which had the force of law.
2. When the Roman people had so increased that there was no place where they could meet, it was found necessary to consult the senate instead of the people, both on public affairs and those which related to individuals. The opinion which was rendered on such an occasion was called senatus consultum. Inst. 1, 2, 5; Clef des Lois Rom. h. t.; Merl. Repert. h. t. These decrees frequently derived their titles from the names of the consuls or magistrates who proposed them; as, senatus-consultum Claudianum, Libonianum, Velleianum, &c. from Claudius, Libonius, Valleius. Ail. Pand. 30.
SENESCHALLUS. A steward. Co. Litt. 61 a.
SENILITY. The state of being old.
2. Sometimes in this state it is exceedingly difficult to know whether the individual is or is not so deprived of the powers of his mind as to be unable to manage his affairs. In general, senility of energy in some of the intellectual operations, while the affections remain natural and unperverted; such a state may, however, be followed by actual dementia or idiocy.
3. When on account of senility the party is unable to manage his affairs, a committee will be appointed as in case of lunacy. 1 Coll. on Lunacy, 66; 2 John. Ch. R. 232; 12 Ves. 446; 4 Call's R. 423; 5 John. Ch. R. 158; 8 Mass. 129; 2 Ves. sen. 407; 19 Ves. 285; 2 Cyclop. of Pract. Med. 872. See Aged Witness.
SENIOR. The elder. This addition is sometimes made to a man's name, when two persons bear the same, in order to distinguish them. In practice when nothing is mentioned, the senior is intended. 3 Miss. R. 59. See Junior.
SENTENCE. A judgment, or judicial declaration made by a judge in a cause. The term judgment is more usually applied to civil, and sentence to criminal proceedings.
2. Sentences are final, when they put, an end to the case; or interlocutory, when they settle only some incidental matter which has arisen in the course of its progress. Vide Aso & Man. Inst. B. 3, t. 8, c. 1.
SEPARALITER. Separately.
2. This word is sometimes used in indictments to show that the defendants are charged separately with offences, which, without the addition of this word, would seem, from the form of the indictment, to be charged jointly; as, for example, when two persons are indicted together for perjury, and the indictment states that A and B came before a commissioner, &c., this is alleging that they were both guilty of the same crime, when by law their crimes are distinct, and the indictment is vicious; but if the word separaliter is used, then the affirmation is that each was guilty of a separate offence. 2 Hale, P. C. 174.
SEPARATE ESTATE. That which belongs to one only of several persons; as, the separate estate of a partner, which does not belong to the partnership. 2 Bouv. Inst. n. 1519.
2. The separate estate of a married woman, is that which belongs to her, and over which her hushand has no right in equity. It may consist of lands or chattels. 4 Barb. S. C. Rep. 407; 1 Const. R. 452; 4 Bouv. Inst. n. 3996.
SEPARATE MAINTENANCE, contracts. An allowance made by a hushand to his wife for her separate support and maintenance.
2. When this allowance is regularly paid, and notice of it has been given, no person who has received such notice will be entitled to recover against the hushand for necessaries furnished to the wife, because the liability of the hushand, depends on a presumption of authority delegated by him to the wife, which is negatived by the facts of the case. 2 Stark. Ev. 699.
SEPARATE TRIAL, practice. The trial of one person by himself, when he is jointly indicted with others for an alleged offence.
2. On a joint indictment against two or more defendants for a crime of misdemeanor, it is in the discretion of the court whether to allow a separate trial for each prisoner, or to order the whole of them to be tried together. 1 Baldw. Rep. 81; 12 Wheat. 480; 5 Serg. & Rawle, 60; but see 1 Pet., C. C. Rep. 118.
SEPARATION, contracts. When the hushand and wife agree to live apart they are said to have made a separation.
2. Contracts of this kind are generally made by the hushand for himself and by the wife with trustees. 4 Paige's R. 516; 3 Paige's R. 483; 5 Bligh, N. S. 339; 1 Dow & Clark, 519. This contract does not affect the marriage, and the parties may, at any time agree to live together as hushand and wife. The hushand who has agreed to a total separation cannot bring an action for criminal conversation with the wife. Roper, Hush. and Wife, passim; 4 Vin. Ab. 173; 2 Stark. Ev. 698; Shelf. on Mar. & Div. ch. 6, p. 608.
3. Reconciliation after separation supersedes special articles of separation in courts of law and equity. 1 Dowl. P. C. 245; 2 Cox, R. 105; 3 Bro. C. C. 619, n.; 11 Ves. 532. Public policy forbids that parties should be permitted to make agreements for themselves to hold good whenever they choose to live separate. 5 Bligh, N. S. 367, 375; and see 1 Carr. & P. 36. See 5 Bligh, N. S. 339; 2 Dowl. P. C. 332; 2 C. & M. 388; 3 John. Ch. R. 521; 2 Sim. & Stu. 372; 1 Edw. R. 380; Desaus. R. 45, 198; 1 Y. & C. 28; 11 Ves. 526; 2 East, R. 283; 8 N. H. Rep. 350; 1 Hoff. R. 1.
SEPULCHRE. The place where a corpse is buried. The violation of sepulchres is a misdemeanor at common law. Vide Dead bodies.
TO SEQUESTER, civil and eccles. law. To renounce. Example, when a widow comes into court and disclaims having anything to do, or to intermeddle with her deceased hushand's estate, she is said to sequester. Jacob, L. D. h. t.
SEQUESTRATION, chancery practice. The process of sequestration is a writ of commission, sometimes directed to the sheriff, but most usually, to four or more commissioners of the complainant's own nomination, authorizing them to enter upon the real or personal estate of the defendant, and to take the rents, issues and profits into their own hands, and keep possession of, or pay the same as the court shall order and direct, until the party who is in contempt shall do that which he is enjoined to do, and which is specially mentioned in the writ. 1 Harr. Ch. 191; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
2. Upon the return of non est inventus to a commission of rebellion, a ser-geant-at-arms may be moved for; and if he certifies that the defendant cannot be taken, a motion may be made upon his certificate, for an order for a sequestration. 2 Madd. Chan. 203; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
3. Under a sequestration upon mesne process, as in respect of a contempt for want of appearance or answer, the sequestrators may take possession of the party's personal property and keep him out of possession; but no sale can take place, unless perhaps to pay expenses; for this process is only to form the foundation of taking the bill pro confesso. After a decree it may be sold. See 3 Bro. C. C. 72; 2 Cox, 224; 1 Ves. jr. 86; 3 Bro. C. C. 372; 2 Madd. Ch. Pr. 206. See, generally, as to this species of sequestration, 19 Vin. Abr. 325; Bac. Ab. h. t.; Com.; Chancery, D 7, Y 4; 1 Hov. Supp. to Ves. jr. 25 to 29; 1 Vern. by Raith. 58, note 1; Id. 421, note 1.
SEQUESTRATION, contracts. A species of deposit, which two or more persons, engaged in litigation about anything, make of the thing in contest to an indifferent person, who binds himself to restore it when the issue is decided, to the party to whom it is adjudged to belong. Louis. Code, art. 2942; Story on Bailm: 45. Vide 19 Vin. Ab. 325; 1 Supp. to Yes. jr. 29; 1 Vern. 58, 420; 2 Ves. jr. 23; Bac. Ab. h. t. 2. This is called a conventional sequestration, to distinguish it from a judicial sequestration, which is considered in the preceding article. Sec Dalloz, Dict. mot Sequestre.
SEQUESTRATION, Louisiana practice. The Code of Practice in civil cases in Louisiana, defines and makes the following provisions on the subject of sequestration. Art. 269. Sequestration is a mandate of the court, ordering the sheriff, in certain cases, to take in his possession, and to keep a thing of which another person has the possession, until after the decision of a suit, in order that it be delivered to him who shall be adjudged entitled to have the property or possession of that thing. This is what is properly called a judicial sequestratian. Vide 1 Mart. R. 79; 1 L. R. 439; Civil Code of Lo. 2941; 2948.
2. - Art. 270. In this acceptation, the word sequestration does not mean a judicial deposit, because sequestration may exist together with the right of administration, while mere deposit does not admit it.
3. - Art. 271. All species of property, real or personal, as well as the revenue proceeding from the same, may be sequestered.
4. - Art. 272. Obligations and titles may also be sequestered, when their ownership is in dispute.
5. - Art. 273. Judicial sequestration is generally ordered only at the request of one of the parties to a suit; there are cases, nevertheless, where it is decreed by the court without such request, or is the consequence of the execution of judgments.
6. - Art. 274. The court may order, ex officio, the sequestration of real property in suits, where the ownership of such property is in dispute and when one of the contending parties does not seem to have a more apparent right to the possession than the other. In such cases, sequestration may be ordered to continue, until the question of ownership shall have been decided.
7. - Art. 275. Sequestration may be ordered at the request of one of the parties in a suit in the following cases: 1. When one who had possessed for more than one year, has been evicted through violence, and sues to be restored to his possession. 2. When one sues for the possession of movable property, or of a slave, and fears that the party having possession, may ill treat the slave or send either that slave, or the property in dispute, out of the jurisdiction of the court, during the pendency of the suit. 3. When one claims the ownership, or the possession of real property, and has good ground to appre-hend, that the defendant may make use of his possession to dilapidate or to waste the fruits or revenues produced by such property, or convert them to his own use. 4. When a woman sues for a separation from bed and board, or only for a separation of property from her hushand, and has reason to apprehend that he will ruin her dotal property, or waste the fruits or revenues produced by the same during the pendency of the action. 5. When one has petitioned for a stay of proceedings, and a meeting of his creditors, and such creditors fear that he may avail himself of such stay of proceedings, to place the whole, or a part of his property, out of their reach. 6. A creditor by special mortgage shall have the power of sequestering the mortgaged property, when he appre-hends that it will be removed out of the state before he can have the benefit of his mortgage, and will make oath of the facts which induced his apprehension.
8. - Art. 276. A plaintiff wishing to obtain an order of sequestration in any one of the cases above provided, must annex to the petition in which he prays for such an order, an affidavit, setting forth the cause for which he claims such order, he must besides, execute his obligation in favor of the defendant, for such sum as the court shall determine, with the surety of one good and solvent person, residing within the jurisdiction of the court, to be responsible for such damages as the defendant may sustain, in case such sequestration should have been wrongfully obtained.
9. - Art. 277. When security is given in order to obtain the sequestration of real property which brings a revenue, the judge must require that it be given for an amount sufficient to compensate the defendant, not only for all damage which he may sustain, but also for the privation of such revenue, during the pendency of the action.
10. - Art. 278. The plaintiff when he prays for a sequestration of the property of one who has failed, is not required to give such security, though that property bring in a revenue.
11. - Art. 279. A defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside, by executing his obligation in favor of the sheriff, with one good and solvent surety, for whatever amount the judge may determine, as being equal to the value of the property to be left in his possession.
12. - Art. 280. The security thus given by the defendant, when the property sequestrated consists in movables or in slaves, shall be responsible that he shall not send away the same out of the jurisdiction of the court; that he shall not make an improper use of them; and that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff.
13. - Art. 281. As regards landed property, this security is given to prevent the defendant, while in possession, from wasting the property, and for the faithful restitution of the fruits that he may have received since the demand, or of their value in the event of his being cast in the suit.
14. - Art. 282. When the sheriff has sequestered property pursuant to an order of the court, he shall, after serving the petition and the copy of the order of sequestration on the defendant, send him return in writing to the clerk of the court which gave the order, stating in the same in what manner the order was executed, and annex to such return a true and minute inventory of the property sequestered, drawn by him, in the presence of two witnesses.
15. - Art. 283. The sheriff, while he retains possession of sequestered property, is bound to take proper care of the same and to administer the same, if it be of such nature as to admit of it, as a prudent father of a family administers his own affairs. He may confide them to the care of guardians or overseers, for whose acts he remains responsible, and he will be entitled to receive a just compensation for his administration, to be determined by the court, to be paid to him out of the proceeds of the property sequestered, if judgment be given in favor of the plaintiff.
SEQUESTRATOR. One to whom a sequestration is made.
2. A depositary of this kind cannot exonerate himself from the care of the thing sequestered in his hands, unless for some cause rendering it indispens-able that he should resign his trust. Louis. Code, art. 2947. See Stakeholder. Sequestrators are also officers appointed by a court of chancery, and named in a writ of sequestration. As to their powers and duties, see 2 Madd. Ch. Pr. 205, 6; Blake's Ch. Pr. 103; Newl. Ch. Pr. 18, 19; 1 Harr. Ch. 191.
SERF. During the feudal times certain persons who were bound to perform very onerous duties towards others, were so called. Poth. Des Personnes, p. 1, t. 1, a. 6, s. 4. There is this essential difference between a serf and a slave; the serf was bound simply to labor on the soil where he was born, without any right to go elsewhere without the consent of his lord; but he was free to act as he pleased in his daily action: the slave on the contrary is the property of his master, who may require him to act as he pleases in every respect, and who may sell him as a chattel. Lepage, Science du Droit, c. 3, art. 2, 2.
SERGEANT or SERJEANT, Engl. law. An officer in the courts of the highest grade among the practitioners of the law.
SERGEANT or SERJEANT, in the army. An inferior officer of a company of foot, or troop of dragoons appointed to see discipline observed, to teach the soldiers the exercise of their arms, and to order, straighten and form ranks, files, &c.
SERGEANT AT ARMS, An officer appointed by a legislative body, whose duties are to enforce the orders given by such bodies, generally under the warrant of its presiding officer.
SERIATIM. In a series, severally; as, the judges delivered their opinions seriatim.
SERJEANTY, Eng. law. A species of service which cannot be due or performed from a tenant to any lord but the king; and is either grand or petit serjeanty.
SERVANTS, (negro or mulatto,) Pennsylvania. By the fourth section of the act for the gradual abolition of slavery, passed the first day of March, 1780, 1 Smith's Laws of Penn. 492, it is "provided that every negro or mulatto child, born within this state after the passing of this act, (who would in case this act had not been made, have been a servant for years, or life, or a slave) shall be by virtue of this act the servant of such person, or his assigns who would in such case have been entitled to the service of such child, until such child attain unto the age of twenty-eight years, in the manner and on the conditions, whereon servants bound by indenture for four years are or may be retained or holden; and shall be liable to like correction and punishment, and entitled to like relief, in case he be evilly treated by his master, and to like freedom dues and privileges, as servants bound by indenture for four years are entitled, unless the person to whom such services belong shall abandon his claim to the same; in which case the overseers of the poor where such child shall be abandoned shall by indenture bind out every such child so abandoned as an apprentice for a time not exceeding the age hereinbefore limited for the service of such children." And by the thirteenth section it is enac-ted, "that no covenant of personal servitude or apprenticeship whatsoever shall be valid or binding on a negro or mulatto for a longer time than seven years, unless such servant or apprentice were at the commencement of such servitude or apprenticeship, under the age of twenty-one years, in which case such negro or mulatto may be holden as a servant or apprentice, respectively, according to the covenant, as the case shall be, until he shall attain the age of twenty-eight years, but no longer." See 6 Binn. 204; 1 Browne's R. 369, n.
2. The act requires that a register of such children as would have been slaves shall be kept by a public officer therein designated. The want of registry entitles such child to freedom.
SERVANTS. In Louisiana they are divided into free servants and slaves. See Slaves; Slavery.
2. Free servants are, in general, all free persons who let, hire, or engage their services to another in the state, to be employed therein at any work, commerce, or occupation whatever, for the benefit of him who has contracted with them, for a certain sum or retribution, or upon certain conditions.
3. There are three kinds of free servants in the state, to wit:
4. - 1. Those who only hire out their services by the day, week, month, or year, in consideration of certain wages.
5. - 2. Those who engage to serve for a fixed time for a certain consideration, and who are therefore considered not as having hired out, but as having sold their services.
6. - 3. Apprentices that is, those who engage to serve any one, in order to learn some art, trade, or profession. Civ. Code of Lo. art. 155, 156, 157.
SERVANTS, menial. Domestics those who receive wages, and who are lodged and fed in the house of another, and who are employed in his services. Such servants are not particularly recognized by law. They are called menial servants, or domestics, from living infra moenia, within the walls of the house. 1 Bl. Com. 324; Wood's Inst. 53; 1 Sw. Syst. 218. The right of the master to their services in every respect is grounded on the contract between them. 2. Labor-ers, or persons hired by the day's work, or any longer time, are not considered servants. 1 Sw. Syst. 218; 5 Binn. 167; 3 Serg. & Rawle, 351. Vide 12 Ves. 114; 2 Vern. 546; 16 Ves. 486; 1 Rop. on Leg. 121; 3 Deac. & Chit. 332; 1 Mont. & Bligh. 413; 2 Mart. N. S. 652; Poth. Proc. Civ. sect. 2, art. 5, 5; Poth. Ob. n. 710, 828, French ed.; 9 Toull. n. 314; Domestic; Operative.
SERVI. This name was given by the Romans to their slaves; they were so called from servare, to preserve, from the ancient practice of the generals of the army, who were accustomed to sell their captives, and preserved them rather than kill them: servi autem ex eo appellati sunt, quod imperatores captivos vendere, ac per hoc servare, nec occidere solent. Inst. 1 3, 3.
SERVICE, contracts. The being employed to serve another.
2. In cases of seduction, the gist of the action is not injury which the seducer has inflicted on the parent by destroying his peace of mind, and the reputation of his child, but for the consequent inability to perform those services for which she was accountable to her master or her parent who assumes this character for the purpose Vide Seduction, and 2 Mees. & W. 539; 7 Car. & P. 528.
SERVICE, feudal law. That duty which the tenant owes to his lord, by reason of his fee or estate.
2. The services, in respect of their quality, were either free or base, and in respect of their quantity and the time of exacting them, were either certain or uncertain. 2 Bl. Com. 62.
3. In the civil law by service is sometimes understood servitude. (q. v.)
SERVICE, practice. To execute a writ or process; as, to serve a writ of capias signifies to arrest a defendant under the process; Kirby, 48; 2 Aik. R. 338; 11 Mass. 181; to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.
2. When the service of a writ is prevented by the act of the party on whom it is to be served, it will, in general, be sufficient if the officer do everything in his power to serve it. 39 Eng. C. L. R. 431 1 M. & G. 238.
SERVIENT, civil law. A term applied to an estate or tenement by which a servitude is due to another estate or tenement. See Dominant; Servitude.
SERVITUDE, civil law. A term which indicates the subjection of one person to another person, or of a person to a thing, or of a thing to a person, or of a thing to a thing.
2. Hence servitudes are divided into real, personal, and mixed. Lois des Bat. P. 1, c. 1.
3. A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another proprietor. Louis. Code, art. 643. When used without any adjunct, the word servitude means a real or predial servitude. Lois des Bat. P. 1, c. 1.
4. The subjection of one person to another is a purely personal servitude; if it exists in the right of property which a person exercises over another, it is slavery. When the subjection of one person to another is not slavery, it consists simply in the right of requiring of another what he is bound to do, or not to do; this right arises from all kinds of contracts or quasi con tracts. Lois des Bat. P. 1, c. 1, art. 1.
5. The subjection of persons to things or of things to persons, are mixed servitudes. Lois des Bat. P. 1, c. 1, art. 2.
6. Real servitudes are divided into rural and urban. Rural servitudes are those which are due by an estate to another estate, such as the right of passage over the serving estate, or that which owes the servitude, or to draw water from it, or to water cattle there, or to take coal, lime and wood from it, and the like. Urban servitudes are those which are established over a building fur the convenience of another, such as the right of resting the joists in the wall of the serving building, of opening windows which overlook the serving estate, and the like. Dict. de Jurisp. tit. Servitudes. See, generally, Lois des Bat. Part 1 Louis. Code, tit. 4; Code Civil, B. 2, tit. 4; This Dict. tit. Ancient Lights; Easements; Ways; Lalaure, Des Servitudes, passim.
SERVITUDES, NATURAL, civil law. Those servitudes which arise in consequence of the nature of the soil.
2. By law the inferior heritages, are submitted in relation to the natural flow of waters, and the like, to the superior. An inferior field is, therefore, subject to the injury or prejudice which the situation of the ground, in its natural state, way cause it.
SERVITUDES, personal. Those by which the property of a subject, in Scotland, is burdened in favor, not of a tenement, but of a person. Ersk. Pr. L. Scot. B. 2, t. 9, s. 23. Life rent is the only personal servitude there.
SERVITUS, civil law. A service or servitude; a burden imposed by law, or the agreement of parties upon certain persons, for the benefit of others; or upon one estate for the advantage of another, or for the benefit of another person than the owner.
SERVITUS. Servitude; slavery; a state of bondage. "Servitus autem, est constitutio," say the Institutes of Justinian, 1, 3, 2, "qua quis dominio alieno contra naturam subjicitur." Servitude is a disposition of the law of nations, by which, against common right, one man has been subjected to the dominion of another. See Bract. 4 b; Co. Litt. 116.
SERVITUS LUMINUM, civil law. The name of a servitude by which an obligation is imposed on the owner of a house to allow windows or lights to be put in his wall by the owner of the adjoining house. Dig. 4, 14, 40.
SERVITUS STILLIClDII, civil law. The name of a servitude which obliges the owner of an estate to receive, or his right to turn aside, the droppings or stream from his neighbor's house. Dig. 8, 2, 20 and 21, 41; Voet, h. t. n. 13. Vide Stillicidium.
SERVITUS TIGNI IMMITTENDI, civil law. The name of a servitude which consists in requiring him who owes it, to permit his neighbor to place his joists on his wall. It differs from the servitude Oneris ferendi. (q. v.) in this, that in the former the owner of the servient building is bound to repair and rebuild the wall; whereas, in the latter he is not. Dig. lib. 8, 2.
SESSION. The time during which a legislative body, a court or other assembly sits for the transaction of business; as, a session of congress, which commences on the day appointed by the constitution, and ends when congress finally adjourns before the commencement of the next session; the session of a court, which commences at the day appointed by law, and ends when the court finally rises a term.
SESSION COURT, or COURT OF SESSION. The highest civil court in the kingdom of Scotland. The judges, called lords of the session, are fifteen in number.
2. It has extensive original jurisdiction, and its powers of review as a court of appeal have no limits. In 1808, it was divided into two chambers, called the first and second division; the lord president and seven judges constituting the former, and the lord justice clerk, who is head of the court of justiciary, with six judges, the latter. These divisions have independent but coordinate jurisdiction.
3. The high court of justiciary, or supreme criminal jurisdiction for Scotland consists of six judges, who are lords of the session, the lord justice clerk presiding. In this court the number of the jury is fifteen, and a majority decides. The court of session is divided into the inner house and outer house, with appeal from the latter to the former, and from the former to the house of lords of the United Kingdom. Encycl. Amer.
SET, contracts. Foreign bills of exchange are generally drawn in parts; as, "pay this my first bill of exchange, second and third of the same tenor and date not paid;" the whole of these parts, which make but one bill, are called a set. Chit. Bills, 175, 6, (edition of 1836); 2 Pardess. n. 342.
TO SET ASIDE. To annul; to make void; as to set aside an award.
2. When proceedings are irregular they may be set aside on, motion of the party whom they injuriously affect.
SET-OFF, contracts, practice. Defalcation; (q. v.) a demand which a defen-dant makes against the plaintiff in the suit for the purpose of liquidating the whole or a part of his claim.
2. A set-off was unknown to the common law, according to which mutual debts were distinct and inextinguishable except by actual payment or release. 1 Rawle's R. 293; Babb. on Set-off, 1.
3. The statute 2 Geo. II., c. 22, which has been generally adopted in the United States with some modifications however, allowed, in cases of mutual debts, the defendant to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such intention, under the general issue. The statute being made for the benefit of the defendant, is not compulsory; 8 Watts, R. 39; the defendant may Waive his right, and bring a cross action against the plaintiff. 2 Campb. 594; 5 Taunt. 148; 9 Watts, R. 179
4. It seems, however, that in some cases of intestate estates, and of insolvent estates, perhaps owing to the peculiar wording of the law, the statute has been held to operate on the rights of the parties before action brought, or an act done by either of them. 2 Rawle's R. 293; 3 Binn. Rep. 135; Bac. Ab. Bankrupt K.
5. Set-off takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant. A set-off is not allowed in actions arising ex delicto, as, upon the case, trespass, replevin or detinue. Bull. N. P. 181.
6. The matters which may be set off, may be mutual liquidated debts or damages, but unliquidated damages cannot be set off. 1 Black. R. 394; 2 John. 150; 8 Conn. 325; 1 M'Cord, 7; 3 Wend. 400; 1 Stew. & Port. 19; 2 Yeates, 208; 1 Sumn. 471; 2 Blackf. 31; 1 A. K. Marsh. 41; 6 Halst. 397; 5 Wash. C. C. 232 3 Bibb, 49; 2 Caines, 33. The statutes refer only to mutual unconnected debts; for at common law, when the nature of the employment, transaction or dealings necessarily constitute an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and therefore in an action, it is not necessary in such cases either to plead or give notice of set-off. 4 Burr. 2221.
7. In general, when the government is plaintiff, no set-off will be allowed. 9 Pet. 319; 4 Dall. 303. See 9 Cranch, 313; Paine, 156. But when an act of congress authorizes such set-off, it may be made. 9 Cranch, 213.
8. Judgments in the same rights may be set off against each other at the discretion of the court. 3 Bibb 233; 3 Watts 78; 3 Halst. 172; 4 Hamm. 90; 1 Stew. & Port. 24; 7 Mass. 140, 144; 8 Cowen 126. Vide Compensation; also Mon-tagu on Set-off; Babington on Set-off; 3 Stark. Ev. h. t.; Amer. Dig. h. t.; Whart. Dig. h. t.; 3 Chit. Bl. Com. 304, n.; 1 Chit. Pl. Index, h. t.; 8 Vin. Ab. 556; Bac. Ab. h. t. 1 Sell. Pr. 321; 5 Com. Dig. 595; 6 Id. 335; 7 Id. 336; 8 Id. 927; Chit. Pr. Index, h. t.; Bouv. Inst. Index, h. t. Vide Factor.
TO SETTLE. To adjust or ascertain to pay.
2. Two contracting parties are said to settle an account when they ascertain what is justly due by one to the other; when one pays the balance or debt due by him, he is said to settle such debt or balance. 11 Alab. R. 419
SETTLEMENT, domicil. The right which a person has of being considered as resident of a particular place.
2. It is obtained in various ways, to wit: 1. By birth. 2. By the legal settlement of the father, in the case of minor children. 3. By marriage. 4. By continued residence. 5. By the payment of requisite taxes. 6. By the lawful exercise of a public office. 7. By hiring and service for a year. 8. By serving an apprenticeship; and perhaps some others which depend upon the local statutes of the different states. Vide 1 Bl. Com. 363; 1 Dougl. 9; 2 Watts' Rep. 44, 342; 2 Penna. R. 432; 5 Serg. & Rawle, 417; 2 Yeates' R. 51; 5 Binn. R. 81; 3 Binn. R.. 22; 6 Serg. & Rawle, 103, 565; 10 Serg. & Rawle, 179. Vide Domicil.
SETTLEMENT, contracts. The conveyance of an estate, for the benefit of some person or persons.
2. It is usually made on the prospect of marriage for the benefit of the married pair, or one of them, or for the benefit of some other persons, as their children. Such settlements vest the property in trustees upon specified terms, usually for the benefit of the hushand and wife during their joint lives, and then for the benefit of the survivor for life, and afterwards for the benefit of children. Ante-nuptial agreements of this kind will be enforced in equity by a specific performance of them, provided they are fair and valid, and the intention of the parties is consistent with the principles and policy of law. Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers.
4. When made without consideration, after marriage, and the property of the hushand is settled upon his wife and children, the settlement will be valid against subsequent creditors, if, at the time of the settlement being made, he was not indebted; but, if he was then indebted, it will be void as to the creditors existing at the time of the settlement; 3 John. Ch. R. 481; 8 Wheat. R. 229; unless in cases where the hushand received a fair consideration in value of the thing settled, so as to repel the presumption of fraud. 2 Ves. 16 10 Ves. 139. Vide 1 Madd. Ch. 459; 1 Chit. Pr. 57; 2 Kent, Com. 145; 2 Supp. to Ves. jr. 80, 375; Rob. Fr. Conv. 188. See Atherl. on Mar. passim.
5. The term settlement is also applied to an agreement by which two or more persons, who have dealings together, so far arrange their accounts, as to ascertain the balance due from one to the other; and settlement sometimes signifies a payment in full.
TO SEVER, practice. When defendants who are sued jointly have separate de-fences, they may in general sever, that is, each one rely on his own separate defence; each may plead severally and insist on his own separate plea. See Severance.
SEVERAL. A state of separation or partition. A several agreement or cove-nant, is one entered into by two or more persons separately, each binding himself for the whole; a several action is one in which two or more persons are separately charged; a several inheritance, is one conveyed so as to descend, or come to two persons separately by moieties. Several is usually opposed to joint. Vide 3 Rawle, 306. See Contract; Joint Contract, Parties to action.
SEVERALTY, title to an estate. An estate in severalty is one which is held by the tenant in his own right only, without any other being joined or connected with him in point of interest, during the continuance of his estate. 2 Bl. Com. 179. Cruise, Dig. 479, 480.
SEVERANCE, pleading. When an action is brought in the name of several plain-tiffs, in which the plaintiffs must of necessity join, aud one or more of the persons so named do not appear, or make default after appearance, the other may have judgment of severance, or, as it is technically called, judgment ad sequendum solum.
2. But in personal actions, with the exception of those by executors, and of detinue for charters, there can be no summons and severance. Co. Lit. 139.
3. After severance, the party severed can never be mentioned in the suit, nor derive any advantage from it.
4. When there are several defendants, each of them may use such plea as, he may think proper for his own defence; and they may join in the same plea, or sever at their discretion; Co. Litt. 303, a except perhaps, in the case of di-latory pleas. Hob. 245, 250. But when the defendants have once united in the plea, they cannot afterwards sever at the rejoinder, or other later stage of the pleading. Vide, generally, Bro. Summ. and Sev.; 2 Rolle, 488; Archb. Civ. Pl. 59.
SEVERANCE, estates. The act by which any one of the unities of a joint tenancy is effected, is so called; because the estate is no longer a joint tenancy, but is severed.
2. A severance may be effected in various ways, namely: 1. By partition, which is either voluntary or compulsory. 2. By alienation of one of the joint tenants, which turns the estate into a tenancy in common. 3. By the purchase or descent of all the shares of the joint tenants, so that the whole estate becomes vested in one only. Com. Dig. Estates by Grant, K 5; 1 Binn. R. 175.
3. In another and a less technical sense, severance is the separation of a part of a thing from another; for example, the separation of malchinery from a mill, is a severance, and, in that case, the machinery which while annexed to the mill was real estate, becomes by the severance; personalty, unless such severance be merely temporary. 8 Wend. R. 587.
SEWER. Properly a trench artificially made for the purpose of carrying water into the sea, river, or some other place of reception. Public sewers are, in general, made at the public expense. Crabb, R. P. 113.
SEX. The physical difference between male and female in animals.
2. In the human species the male is called man, (q. v.) and the female, woman. (q. v.) Some human beings whose sexual organs are somewhat imperfect, have acquired the name of hermaphrodite. (q. v.)
3. In the civil state the sex creates a difference among individuals. Women cannot generally be elected or appointed to offices or service in public capa-cities. In this our law agrees with that of other nations. The civil law excluded women from all offices civil or public: Faemintae ab omnibus officiis civilibus vel publicis remotae sunt. Dig. 50, 17, 2. The principal reason of this exclusion is to encourage that modesty which is natural to the female sex, and which renders them unqualified to mix and contend with men; the pre-tended weakness of the sex is not probably the true reason. Poth. Des Personnes, tit. 5; Wood's Inst. 12; Civ. Code of Louis. art. 24; 1 Beck's Med. Juris. 94. Vide Gender; Male; Man; Women; Worthiest of blood.