SPADONES, civil law. Those who, on account of their temperament, or some accident they have suffered, are unable to procreate. Inst. 1, 11, 9; Dig. 1, 7, 2, 1; and vide Impotence.
SPARSIM. This Latin adverb signifies scatteredly, here and there, in a scattered manner, sparsedly, dispersedly. It is sometimes used in law; for example, the plaintiff may recover the place wasted, not only where the injury has been total, but where trees, growing sparsim in a close, are cut. Bac. Ab. Waste, M; Brownl. 240; Co. Litt. 54, a; 4 Bouv. Inst. n. 3690.
TO SPEAK. This term is used in the English law, to signify the permission given by a court to the prosecutor and defendant in some cases of misdemeanor, to agree together, after which the prosecutor comes into court and declares himself to be satisfied; when the court pass a nominal sentence. 1 Chit. Pr. 17.
SPEAKER. The presiding officer of the house of representatives of the United States is so called. The presiding officer of either branch of the state legislatures generally bears this name.
SPEAKING DEMURRER, equity pleading. One which contains an argument in the body of it; as, for instance, when a demurrer says, "in or about the year 1770," which is upwards of twenty years before the bill filed. 2 Ves. jr. 83; S. C. 4 Bro. C. C. 254.
SPECIAL. That which relates to a particular species or kind, opposed to general; as special verdict and general verdict; special imparlance and general imparlance; special jury, or one selected for a particular case, and general jury; special issue and general issue, &c.
SPECIAL AGENT. A special agent is one whose authority is confined to a particular, or an individual instance. It is a general rule, that he who is invested with a special authority, must act within the bounds of his authority, and he cannot bind his principal beyond what he is authorized to do. 2 Bouv. Inst. n. 1299; 2 John. 48; 1 Wash. C. C. lT4; 5 John. 48; 15 John. 44; 8 Wend. 494.
SPECIAL ASSUMPSIT, practice. Where an action of assumpsit (q. v.) has been brought on a special contract, and the plaintiff declares upon it, setting out its particular language, or its legal effect. It is distinguished from a general assumpsit, where the plaintiff, instead of setting out the particular language, or effect of the original contract, declares as for a debt, arising out of the execution of the contract, where that constitutes the debt. 3 Bouv. Inst. n. 3426.
SPECIAL BAIL. A person who becomes specially bound to answer for the appearance of another; the recoguizance or act by which such person thus becomes bound, is also called special bail. Vide Bail.
SPECIAL CONSTABLE. One who has been appointed a constable for a particular occasion, as in the case of an actual tumult or a riot, or for the purpose of serving a particular process.
SPECIAL DAMAGES. Such as actually have been suffered, and are not implied by law. Vide Damages, Special; and 1 Chit. Pl. 385; Com. Dig. Action on the case for Defamation, D 30, G 11.
SPECIAL DEMURRER, pleading. One which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection, and the particular ground of the exception. 3 Bouv. Inst. n. 3022. See Demurrer.
SPECIAL DEPOSIT. A deposit made of a particular thing with the depositary: it is distinguished from an irregular deposit.
2. When a thing has been specially deposited with a depositary, the title to it remains with the depositor, and if it should be lost, the loss will fall upon him. When, on the contrary, the deposit is irregular, as where money is deposited in a bank, the title to which is transferred to the bank, if it be, lost, the loss will be borne by the bank. This will result from the same principle; the loss will fall, in both instances, on the owner of the thing, according to the rule res perit domino. See 1 Bouv. Inst. n. 1 054.
SPECIAL ERRORS. Special pleas in error are those which assign for error matters in confession and avoidance, as a release of errors, the act of limitations, and the like, to which the plaintiff in error may reply or demur.
SPECIAL IMPARLANCE, pleading. One which contains the clause, "saving to himself all advantages and exceptions, as well to the writ, as to the declaration aforesaid." 2 Chit. Pl. 407, 8.
2. This imparlance admits the jurisdiction of the court, but the defendant may plead in abatement or to the action; that is, to the writ or the count. Gould. on Pl. c. 2, 18; Lawes on Pl. 84. See imparlance.
SPECIAL INJUNCTION. One obtained only on motion and petition, with notice to the other party, and is applied for, sometimes on affidavit before answer, but more frequently upon merits disclosed in the defendant's answer. 4 Bouv. lust. n. 3756. See Injunction.
SPECIAL ISSUE, pleading. A plea to the action which denies some particular material allegation, which is in effect a denial of the entire right of action. It differs from the general issue whicli traverses or denies the whole declaration or indictment. Gould. on Pl. c. 2, 38. See General Issue; Issue.
SPECIAL JURY. One selected in a particular way by the parties. A pannel is made out, and each party is entitled to strike from it the names of a certain number of jurors, as provided for by the local statutes, and from those who remain, the jury in that case must be selected. This is also called a struck jury.
SPECIAL NON EST FACTUM. The name of a plea by which the defendant says that the deed which he has executed is not his own or binding upon him, because of some circumstance which shows that it was not intended to be his deed, or because it was not binding upon him for some lawful reason; as, when the defendant delivered the deed to a third person as an escrow to be delivered upon a condition, and it has been delivered without the performance of the condition, he may plead non est factum, state the fact, of the conditional delivery, the non-performance of the condition, and add, "and so it is not his deed;" or if the defendant be a feme covert, she may plead non est factum, that she was a feme covert at the time the deed was made, "and so it is not her deed." Bac. Ab. Pleas, &c. H 3, 1 2; Gould. on Pl. c. 6, part 1, 64. See Issint.
SPECIAL OCCUPANT, estates. When an estate is granted to a man and his heirs during the life, of cestui que vie, and the grantee die without alienation, and while the life for which he held continues, the heir will succeed, and is called a special occupant. 2 Bl. Com. 259. In the United States the statute provisions of the different states vary considerably upon this subject. In New York and New Jersey, special occupancy is abolished. Virginia, and probably Maryland, follow the English statutes; in Massachusetts and other states, where the real and personal estates of intestates are distributed in the same way and manner, the question does not seem to be material. 4 Kent, Com. 27.
SPECIAL PARTNERSHIP. Special or limited partnerships are of two kinds; 1. Those at common law. 2. Limited partnerships, or those in commendam.
2. Special partnerships at common law, are those formed for a particular or special branch of business, as contradistinguished from the general business of the parties, or of one of them.
3. A limited or special partnership, under special acts of assembly, may be found in several states. In such partnerships some of the partners are liable as general partners, while others are responsible only to the extent of the capital they have furnished. See 2 Bouv. Inst. n. 1472, 1473, and In Commendam; Partnership.
SPECIAL PLEA IN BAR. One which advances new matter. It differs from the general in this, that the latter denies some material allegation, but never advances new matter. Gould on Pl. c. 2, 38.
SPECIAL PLEADER, Engl. practice. A special pleader is a lawyer whose professional occupation is to give verbal or written opinions upon statements submitted to him, either in writing or verbally, and to draw pleadings, civil or criminal, and such practical proceedings as may be out of the general course. 2 Chit. Pr. 42.
SPECIAL PLEADING. The allegartion of special or new matter, as distinguished from a direct denial of matter previously alleged on the opposite side. Gould on Pl. c. 1, s. 18; Co. Litt. 282; 3 Wheat. R. 246 Com. Dig. Pleader, E 15.
SPECIAL PROPERTY. This term is used as synonymous with qualified or limited property. It is that property which is not perfect in the hands of the possessor, but his right is qualified or limited; as, where a person is possessed of an animal ferae naturae, he has a property in such animal, but this is not a general right, for if the animal should escape, and be taken by another person, the latter only would have a special property in it.
2. Again, a person may have a special property in a chattel in consequence of the peculiar circumstances of the owner; a bailee, for example, has a special property in the thing bailed. 1 Bouv. Inst. n. 475 to 477.
SPECIAL REQUEST. One actually made, at a particular time and place; this term is used in contradistinction to a general request, which need not state. the time when, nor place where made. 3 Bouv. Inst. n. 2843.
SPECIAL RULE. A rule or order of court made in a particular case, for a particular purpose; it is distinguished from a general rule, which applies to a class of cases. It differs also from a common rule, or rule of course.
SPECIAL TRAVERSE, pleading. A technical special traverse begins in most cases, with the words absque hoc, (without this,) which words in pleading form a technical form of negation. Lawes' Pl. 116 to 120.
2. A traverse commencing with these words is special, because, when it thus commences, the inducement and the negation are regularly both special; the former consisting of new matter, and the latter pursuing, in general, the words of the allegation traversed, or at least those of them which are material. For example, if the defendant pleads title to land in himself, by alleging that Peter devised the land to him, and then died seised in fee; and the plaintiff replies that Peter died seised in fee intestate, and alleges title in himself, as heir of Peter without this, that Peter devised the land to the defendant; the traverse is special. Here the allegation of Peter's intestacy, &c., forms the special inducement; and the absque hoc, with what follows it, is a special denial of the alleged devise, i. e. a denial of it in the words of the allegation. Lawes on Pl. 119, 120; Gould, Pl. ch. 7, 6, 7; Steph. Pl. 188. Vide Traverse; General Traverse.
SPECIAL TRUST. A special trust, is one where a trustee is interposed for the execution of some purpose particularly pointed out, and is not, as in the case of a simple trust, a mere passive depositary of the estate, but is required to exert himself actively in the execution of the settler's intention; as, where a conveyance is made to trustees upon trust to reconvey, or to sell for the payment of debts. 2 Bouv. Inst. n. 1896. See Trust.
SPECIAL VERDICT, practice. A special verdict is one by which the facts of the case are put on the record, and the law is submitted to the judges. Vide Verdict; Bac. Ab. Verdict, D.
SPECIALTY, contracts. A writing sealed aud delivered, containing some agreement. 2 Serg. & Rawle, 503; 1 Binn. Rep. 261; Willes, 189; 1 P. Wms. 130. In a more confined meaning, it signifies a writing sealed and delivered, which is given as a security for the payment of a debt, in which such debt is particularly specified. Bac. Ab. Obligation, A.
2. Although in the body of the writing it is not said, that the parties have set their hands and seals, yet if the instrument be really sealed it is a specialty, and if it be not sealed, it is not a specialty, although the parties in the body of the writing make mention of a seal. 2 Serg. & Rawle, 504; 2 Rep. 5 a; Perk. 129. Vide Bond; Debt; Obligation.
SPECIE. Metallic money issued by public authority.
2. This term is used in contradistinction to paper money, which in some countries is emitted by the government, and is a mere engagement which repre-sents specie. Bank paper in the United States is also called paper money. Specie is the only constitutional money in this country. See 4 Monr. 483.
SPECIFIC LEGACY. A bequest of a particular thing.
2. It follows that a specific legacy may be of animals or inanimate things, provided they are specified and separated from all other things; a specific legacy may therefore be of money in a bag, or of money marked and so described; as, I give two eagles to A B, on which are engraved the initials of my name. A specific legacy may also be given out of a general fund. Touch. 433 Amb. 310; 4 Ves. 565; 3 Ves. & Bea. 5. If the specific article given be, not found among the assets of the testator, the legatee loses his legacy; but on the other hand, if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies. 1 Vern. 31; 1 P. Wms. 422; 3 P. Wms. 365; 3 Bro. C. C. 160; vide 1 Roper on Leg. 150; 1 Supp. to Ves. jr. 209 . Id. 231; 2 Id. 112; and articles Legacy; Legatee.
SPECIFIC PERFORMANCE, remedies. The actual accomplishment of a contract by the party bound to fulfil it.
2. Many contracts are entered into by parties to fulfil certain things, and then the contracting parties neglect or refuse to fulfil their engagements. In such cases the party grieved has generally a remedy at law, and he may recover damages for the breach of the contract; but, in many cases, the recovery of damages is an incompetent remedy, and the party seeks to recover a specific performance of the agreement.
3. It is a general rule, that courts of equity will entertain jurisdiction for a specific performance of agreements, whenever courts of law can give but an inadequate remedy; and it is immaterial whether the subject relate to real or personal estate. 1 Madd. Ch. Pr. 295; 2 Story on Eq. 717; 1 Sim, & Stu. 607; 1 P. Wms. 570; 1 Sch. & Lef. 553; 1 Vern. 159.
4. But the rule is confined to cases where courts of law cannot give an adequate remedy. 2 Story on Eq. 718; Eden on Inj. ch. 3, p. 27. Vide, generally, 2 Story on Eq. ch. 18, 712 to 792; 1 Supp. to Ves. jr. 96, 148, 184, 211, 495; 2 Supp. to Ves. jr. 65, 164; Fonb. Eq. b. 1, c. 1, s. 5; Sugd. Vend. 145.
SPECIFICATION, civil law. A term used in the civil law, by which is meant a person's making a new species or subject from materials belonging to another. Bouv. Inst. Theolo. ps. 1, c. 1, art. 1, 4, Is. 4, p. 74.
2. When the new species can be again reduced to the matter of which it was made, the law considers the former mass as still existing, and, therefore, the new species as an accessory to the former subject; but where the thing made cannot be so reduced, as in the case of wine, which cannot be again turned into grapes, there is no place for the fictio juris; and, there, the workmanship draws after it the property of the material. Inst. 2, 1, 25 Dig. 41, 1, 7, 7. See Accession; Confusion; Mixtion; and Aso & Man. Inst. B. 2, t. 2, c. 8.
SPECIFICATION, practice, contracts. A particular and detailed account of a thing: example, in order to obtain a patent for an invention, it is necessary to file a specification or an instrument of writing, which must lay open and disclose to the public every part of the process by which the invention can be made useful if the specification does not contain the whole truth relative to the discovery, or contains more than is requisite to produce the desired effect, and the concealment or addition was made for the purpose of deception, the patent would be void; for if the specification were insufficient on account of its want of clearness, exactitude or good faith, it would be a fraud on society that the patentee should obtain a monopoly without giving up his invention. 2 Kent, Com. 300; 1 Bell's Com. part 2, c. 3, s. 1, p. 112; Perpigna on Pat. 67; Renouard, Des Brevets d'Inv. 252.
2. In charges against persons accused of military offences, they must be particularly described and clearly expressed; this is called the specification. Tytl. on Courts Mart. 109.
SPECIMEN. A sample; a part of something by which the other may be known.
2. The act of congress of July 4, 1836, section 6, requires the inventor or discoverer of an invention or discovery to accompany his petition and specification for a patent with specimens of ingredients, an of the composition of matter, sufficient in quantity for the purpose of experiment, where the invention or discovery is of the composition of matter.
SPECULATION, contracts. The hope or desire of making a profit by the purchase and resale of a thing. Pard. Dr. Com. n. 12. The profit so made; as, be made a good speculation.
SPEECH. A formal discourse in public.
2. The liberty of speech is guarantied to members of the legislature, to counsel in court in debate.
3. The reduction of a speech to writing and its publication is a libel, if the matter contained in it is libelous; and the repetition of it upon occasions not warranted by law, when the matter is slanderous, wili be slander and. tho character of the speaker will be no protection to him from an action. 1 M. & S. 273; 1 Esp. C. 226 Bouv. Inst. Index, h. t. See Debate; Liberty of speech.
SPELLING, The art of putting the proper letters in words.
2. It is a rule that when it appears with certainty what is meant, bad spelling will not avoid a contract; for example, where a man agreed to pay thirty pounds, he was held bound to pay thirty pounds; and seutene was holden to be seventeen. Cro. Jac. 607; 10 Coke, 133, a; 2 Roll. Ab. 147.
3. Even in an indictment undertood has been holden as understood. 1 Chit. Cr. Law.
4. A misspelling of a name in a declaration, will not be sufficient to defeat the plaintiff, on the ground of variance between the writing produced, and the declaration, if such name be idem sonans; as Kay for Key. 16 East, 110; 2 Stark. 29; Segrave for Seagrave. 2 Str. 889. See Idem Sonans.
SPENDTHRIFT. By the Rev. Stat. of Vermont, tit. 16, c. 65, s. 9, spendthrift is defined to be a person who by excessive drinking) gaming, idleness or debauchery of any kind, shall so spend, waste, or lessen his estate as to expose himself or his family to want or suffering, or expose the town to charge or expense, for support of himself or family.
SPERATE. That of which there is hope.
2. In the accounts of an executor and the inventory of the personal assets, he should distinguish between those assets which are sperate, and those which are desperate; he will be prima facie responsible for the former, and discharged for the latter. 1 Chit. Pr. 520; 2 Williams Ex. 644; Toll. Ex. 248. See Desperate.
SPES RECUPERANDI. The hope of recovery. This term is applied to cases of capture of an enemy's property as a booty or prize. As between the belligerent parties, the title to the property taken as a prize passes the moment there is no longer any hope of recovery. 2 Burr. Rep. 683. Vide Infra praesidea; Jus Postliminy; Bopty; Piize.
SPINSTER. An addition given, in legal writings, to a woman who never was married. Lovel. on Wills, 269.
SPLITTING A CAUSE OF ACTION. The bringing an action for only a part of the cause of action. This is not permitted either at law nor in equity. 4 Bouv. Inst. n. 4167.
SPOLIATION, Eng. eccl. law. The name of a suit sued out in the spiritual court to recover for the fruits of the church, or for the church itself. F. N. B. 85.
2. It is also a waste of church property by an ecclesiastical person. 3 Bl. Com. 90.
SPOLIATION, torts. Destruction of a thing by the act of a stranger; as, the erasure or alteration of a writing by the act of a stranger, is called spoliation. This has not the effect to destroy its character or legal effect. 1 Greenl. Ev. 566. 2. By spoliation is also understood the total destruction of a thing; as, the spoliation of papers, by the captured party, is generally regarded as proof of. guilt, but in America it is open to explanation, except in certain cases where there is a vehement presumption of bad faith. 2 Wheat. 227, 241; 1 Dods. Adm. 480, 486. See Alteration.
SPONSALIA, or STIPULATIO SPONSALITIA. A promise lawfully made between persons capable of marrying each other, that at some future time they will marry. See Espousals; Ersk. Inst. B. 1, t. 6, n. 3.
SPONSIONS, international law. Agreements or engagements made by certain public officers, as generals or admirals, in time of war, either without author-ity, or by exceeding the limits of authority under which they purport to be made.
2. Before these conventions can have any binding authority on the state, they must be confirmed by express or tacit ratification. The former is given in positive terms and in the usual forms; the latter is justly implied from the fact of acting under the agreement as if bound by it, and from any other circumstance from which an assent may be fairly presumed. Wheat. Intern. Law, pt. 3, c. 2, 3; Grotius, de Jur. Bel. ac Pac. 1. 2, c. 15, 16; Id. 1. 3, c. 22, 1-3: Vattel, Law of Nat, B. 2, c. 14, 209 -212; Wolff, 1156.
SPONSOR, civil law. He who intervenes for another voluntarily and without being requested. The engagement which he enters into is only accessory to the principal. Vide Dig. 17, 1, 18; Nov. 4, ch. 1 Code de Com. art. 158, 159; Code Nap. 1236 Wolff, Inst. 1556.
SPRING. A fountain.
2. The owner of the soil has the exclusive right to use a spring arising on his grounds. When another has an easement, or right to draw water from such a spring, acquired by grant or prescription, if the spring fails the easement ceases, but if it returns, the right revives.
3. The waters which flow from the spring give rise to a variety of diffi-culties, the principal of which are, 1st. The owner of the inheritance in which the spring arises turns their course. The owner of the inferior estate, whose, meadow they fertilized, and who is deprived of them, claiming the right to them. 2d. The owner of the spring does not prevent the water from flowing on the inferior estate, but gives them a new direction injurious to it. 3d. The owner of the superior inheritance disposes of the water in such a way as to deprive the owner of the estate below him. The rights of these different owners will be separately considered.
4. - l. The owner of land on which there is a natural spring, has a right to use it for domestic and culinary purposes and for watering his cattle, and he may make an aqueduct to another part of his land, and use all the water required to keep the aqueduct in order, or to keep the water pure. 15 Conn. 366. He may also use it for irrigation, provided the volume be not materially decreased. Ang. W. C. 34. Vide Irrigation; and 1 Root, 535; 2 Watts. 327; 2 Hill, S. C. 634; Coxe, 460; 2 Dev. & Bat. 50; 9 Conn. 291; 3 Pick. 269; 13 Mass. 420; 8 Mass. 136; 8 Greenl. 253.
5. - 2. The owner of the spring cannot lawfully turn the current or give it a new direction. He is bound to let it enter the inferior estate on the same level it has been accustomed to, and at the same place; for every man is entitled to a stream of water flowing through his land, without diminution or alteration. 6 East, 206; 2 Conn. 584. Vide 3 Rawle, 84 12 Wend. 330; 10 Conn. 213; 14 Verm. 239.
6. - 3. The owner of the superior inheritance, or of the land on which there is a spring, has no right to deprive the owner of the estate below him; 1 Yeates, 574; 5 Pick. 175; 3 Har. & John. 231; 12 Verm. 178; 13 Conn. 303; 3 Scam. 492; nor can be detain the water unreasonably. 17 John. 306; 2 B. C. 910. Vide Ham. N. P. 199; 1 Dall. 211; 3 Rawle's R. 256; Jus Aquaeductus; Pool; Stagnum; Back Water; lrrigation, Mill; Rain Water; Water Course.
SPRINGING USE, estates. One to arise on a future event, when no preceding estate is limited, and does not take effect in derogation of any preceding interest. Example: a grant is made to A in fee, to the use of B in fee, after the fourth of July; no use arises till the limited period. The use in the mean time results to the grantor, who has a determinable fee. A springing use differs from a resulting use, (q. v.) or a shifting use. (q. v.) 4 Kent, Com. 292; Com. Dig. Uses, K 7 Wils. on Springing Uses; Corn. on Uses, 91; 2 Bouv. Inst. n. 1889.
SPY. One who goes into a place for the purpose of ascertaining the best way of doing an injury there.
2. The term is mostly applied to an enemy who comes into the camp for the purpose of ascertaining its situation in order to make an attack upon it. The punishment for, this crime is death. See Articles of War, 1 Story's Laws U. S. 992; Vattel, Droit des Gens. liv. 3, 179.