TRIAL, practice., The examination before a competent tribunal, according to the laws, of the land, of the facts put in issue in a cause, for the purpose of determining such issue. 4 Mason, 232.
2. There are various kinds of trial, the most common of which is trial by jury. To insure fairdess this mode of trial lust be in public; it is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the Hiatter in dispute according to law, and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof, as the witnesses are called by a party they are questioned by him, and after they have been examined, which is called an examination in chief, they are subject to a cross-examination by the other party as to every part of their testimony. Having examined all his witnesses, the party who supports the affirmative of the issue closes; and the other party then calls his witnesses to explain his case or support his part of the issue these are in the same manner liable to a cross-examination. In case the parties should differ as to what is to be given in evidence, the judge, must decide the matter, and his decision is conclusive upon the parties so far as regards the trial; but, in civil cases, a bill of exceptions (q. v.) way be taken, so that the matter may be examined before another tribunal. When the evidence has been closed, the counsel for the party who supports the affirmative of the issue, then addressess the jury, by recapitulating the evidence and applying the law to the facts, and showing on what particular points he rests his case. The opposite counsel then addresses the jury, enforcing in like manner the facts and the law as applicable to his side of the case; to which the other counsel has a right to reply. It is then the duty of the judge to sum up the evidence and explain to the jury the law applicable to the case this is called his charge. (q. v.) The jurors then retire to deliberate upon their verdict, and, after having agreed upon it, they come into court and deliver it in public. In case they cannot agree they may, in cases of necessity, be discharged: but, it is said, in capital cases they cannot be. Very just and merited encomiums have been bestowed on this mode of trial, particularly in criminal cases. Livingston's Rep. on the Plan of a Penal Code, 13 3 Story, Const. 1773. The learned Duponceau has given beautiful sketch of this tribunal; "twelve invisible judges," said he, "whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are nowhere to be found, until the moment when the balance of justice being placed in their bands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens." Address at the opening of the Law Academy at Philadelphia. Vide, generally, 4 Com. Dig. 783; 7 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h. t.; 1 Sell. Pr. 405 4 Bl. Com. ch. 27; Chit. Pr. Index, h. t. 3 Bl. Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h. t. See Discharge of jury; Jury.
3. Trial by certificate. By the English law, this is a mode of trial allowed in such cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station, as affords them the most clear and complete knowledge of the truth.
4. As therefore such evidence, if given to a jury, must have been conclu-sive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. 3 Bl. Com. 333; Steph. Pl. 122.
5. Trial by the grand assise. This kind of trial is very similar to the common trial by jury. There is only one case in which it appears ever to have been applied, and there it is still in force.
6. In a writ of right, if the defendant by a particular form of plea appropriate to the purpose, (see the plea, 3 Chitty, 652,) denied the right of the demandant, as claimed, he had the option, till the recent abolition of the extravagant and barbarous method of wager by battel, of either offering battel or putting himself on the grand assise, to try whether he or the demandant "had the greater right." The latter course he may still take; and, if he does, the court award a writ for summoning four knights to make the election of twenty other recognitors. The four knights and twelve of the recognitors so elected, together making a jury of sixteen, constitute what is called the grand assise; and when assembled, they proceed to try the issue, or (as it is called in this case) the mise, upon the question of right. The trial, as in the case of a common jury, may be either at the bar or nisi prius; and if at nisi prius, a nisi prius record is made up; and the proceedings are in either case, in general, the same as where there is a common jury. See Wils. R. 419, 541; 1 Holt's N. P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402. Upon the issue or mise of right, the wager of battel or the grand assise was, till the abolition of the former, and the latter still is, the only legitimate method of trial; and the question cannot be tried by a jury in the common form. 1 B. & P. 192. See 3 Bl. Com. 351.
7. Trial by inspection or examination. This trial takes place when for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts, and, therefore, when the fact, from its nature, must be evident to the court either from ocular demon-stration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies ou the judgment alone. For example, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination whether be be the plaintiff or not. 9 Co. 30; 3 Bl. Com. 331; Steph. Pl. 123.
8. Judges of courts of equity frequently decide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injun ction on an allegation of piracy or infringement of a patent or copyright. 5 Ves. 709; 12 Ves. 270, and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4 Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1 Dall. 166.
9. Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action. If, on one side, a record be asserted to exist, and the opposite party deny its existence, under the form of traverse, that there is no such record remaining in court, as alleged, and issue be joined thereon, this is called an issue of nul tiel record; and the court awards, in such case, a trial by inspection and examination of the record: Upon this the party, affirming its existence, is bound to produce it in court, on a day given for the purpose, and if he fail to do so, judgment is given for his adversary.
10. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country. Steph. Pl. 122; 2 Bl. Com. 330.
11. Trial by wager of battel. In the old English law, this was a barbarous mode of trying facts, among a rude people, founded on the supposition that heaven would always interpose, and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as the stat. 59 Geo. III., c. 46, A. D. 1818. It never was in force in the United States. See 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B. & A. 405.
12. Trial by wager of law. This mode of trial has fallen into complete disuse; but in point of law, it seems, in England, to be still competent in most cases to which is anciently applied. The most important and best established of these cases, is, the issue of nil debet, arising in action of debt of simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now refained as mere form,) to prove the truth of his claim. On the other hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, be may conclude by offering to establish the truth of such plea, "against the plaintiff and his suit, in such manner as the court shall direct." Upon this the court awards the wager of law; Co. Ent. 119 a; Lill. Ent. 467; 3 Chit. Pl. 479; and the form of this proceeding, when so awarded, is that the defendant brings into court with him eleven of his neighbors, and for himself, makes oath that he does not owe the debt or detain the property alleged and then the eleven also swear that they believe him to speak the truth; and the defendant is then entitled to judgment. 3 Bl. Com. 343; Steph. Pl. 124. Blackstone compares this mode of trial to the canonical purgation of the catholic clergy, and to the decisory oath of the civil, law. See Oath, decisory.
13. Trial by witnesses. This species of trial by witnesses, or per testes, is without the intervention of a jury
14. This is the only method of trial known to the civil law, in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined; but it is very rarely used in the common law, which prefers the trial by jury in almost every instance.
15. In England, when a widow brings a writ of dower, and the tenant pleads that the tenant is not dead, this being looked upon as a dilatory plea, is, in favor of the widow, and for greater expedition, allowed to be tried by witnesses examined before the judges; and so, says Finch, shall no other case in our law. Finch's Law, 423. But Sir Edward Coke mentions others: as to try whether the tenant in a real action was duly summoned; or the validity of a challenge to a juror; so that Finch's observation must be confined to the trial of direct and not collateral issues. And in every case, Sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at least. 3 Bl. Com. 336.
TRIAL LIST. A list of cases marked down for trial for any one term.
TRIBUNAL. The seat of a judge; the place where he administers justice; but by this term is more usually understood the whole body of judges who compose a jurisdiction sometimes it is taken for the jurisdiction which they exercise.
2. This term is Latin, and derives its origin from the elevated seat where the tribunes administered justice.
TRIBUTE. A contribution which is sometimes raised by the sovereign from his subject, to sustain the expenses of the state. It is also a sum of money paid by one nation to another under some pretended right. Wolff, 1145.
TRINEPOS. This term was used among the Romans to denote the male descendant in the sixth degree in a direct line. It is still employed in making genealogical tables.
TRINITY TERM, Eng. law. One of the four terms of the courts; it begins on the 22d day of May, and ends on the 12th of June. St. 11 G. IV., and 1 W. IV., c. 70. It was formerly a movable term.
TRIORS, practice. Persons appointed according to law to try whether a person challenged to the favor is or is not qualified to serve on the jury. They do not exceed two in number without the consent of the prosecutor and defendant, or some special case is alleged by one of them, or when only one juror has been sworn and two triors are appointed with him. Co. Litt. 158 a; Bac. Ab. Juries, E 12.
2. Where the challenge is made to the first juror, the court will appoint two indifferent persons to be triors if they find him indifferent he shall be sworn, and join the triors in determining the next challenge. But when two jurors have been found impartial and have been sworn, then the office of the triors will cease, and every subsequent challenge will be decided upon by the jurymen. If more than two, jurymen have been sworn, the court may assign any two of them to determine the challenges. To the triors thus chosen no challenges can be admitted.
3. The following oath or affirmation is administered to them: "You shall well and truly try whether A B, the juror challenged, stands indifferent between the parties to this issue, so help you God" or to this you affirm. The trial then proceeds by witnesses before them; and they may examine, the juryman challenged on his voire dire, but he cannot be interrogated as to circumstances which may tend to his own disgrace, discredit, or the injury of his character. The finding of the triors is final. Being officers of the court, the triors may be punished for any mishehaviour in their office. Vide 2 Hale, 275; 4 Bl. Com. by Chitty, 353, n. 8; Tr. per Pais, 200; 1 Chit. Cr. Law, 549, 450; 4 Harg. St. Tr. 740, 750; 15 Serg. & Rawle, 156; 21 Wend. 509; 2 Green, 195.
TRIPARTITE. Consisting of three parts, as a deed tripartite, between A of the first part, B of the second part, and C of the third part.
TRIPLICATION, pleading. This was formerly used in pleading instead of rebutter. 1 Bro. Civ. Law, 469, n.
TRITAVUS. The male ascendant in the sixth degree was so called among the Romans. For the female ascendant in the same degree, the term is tritavia. In forming genealogical tables this convenient term is still used.
TRIUMVIRI CAPITALES or TREVIRI or TRESVIRI, Rom, civ. law. Officers who had charge of the prison, through whose intervention punishments were inflicted. Sallust in Catalin. They had eight lictors to execute their orders. Vicat, ad voc.
TRIVIAL. Of small importance. It is a rule in equity that a demurrer will lie to a bill on the ground of the triviality of the matter in dispute, as being below the dignity of the court. 4 Bouv. Inst. n. 4237. See Hopk. R. 112; 4 John. Ch. 183; 4 Paige, 364.
TRONAGE, Engl. law. A customary duty or toll for weighing wool, so called because it was weighed by a common trona, or beam. Fleta, lib. 2, c. 12.
TROVER, remedies. Trover signifies finding. The remedy is called an action of trover; it is brought to recover the value of personal chattels, wrongfully converted by another to his own use; the form supposed that the defendant might have acquired the possession of the property lawfully, namely, by finding, but if he did not, by bringing the action the plaintiff waives the trespass; no damages can therefore be recovered for the taking, all must be for the conversion. 17 Pick. 1; Anthon, 156; 21 Pick. 559; 7 Monr. 209; 1 Metc. 172.
2. It will be proper to consider the subject with reference, 1. To the thing converted. 2. The plaintiff's right. 3. The nature of the injury. 4. The pleadings. 5. The verdict and judgment.
3. - 1. The property affected must be some personal chattel; 3, Serg. & Rawle, 513; and it has been decided that trover lies for title deeds; 2 Yeates, R. 537; and for a copy of a record. Hardr. 111. Vide 2 T. R. 788; 2 Salk. 654; 2 New Rep. 170; 3 Campb. 417; 3 Johns. R. 432; 10 Johns. R. 172; 12 Johns. R. 484; 6 Mass. R. 394; 17 Serg. & Rawle, 285; 2 Rawle, R. 241. Trover will be sustained for animals ferae naturae, reclaimed. Hugh. Ab. Action upon the case of Trover and Conversion, pl. 3. But trover will not lie for personal property in the custody of the law, nor when the title to the property can be settled only by a peculiar jurisdiction; as, for example, property taken on the high seas, and claimed as lawful prize, because in such case, the courts of admiralty have exclusive jurisdiction. Cam. & N. 115, 143; but see 14 John. 273. Nor will it lie where the property bailed has been lost by the bailee, or stolen from him, or been destroyed by accident or from negligence case is the proper remedy. 2 Iredell, 98.
4.-2. The plaintiff must at the time of the conversion have had a property in the chattel either general or special; 1 Yeates, R. 19; 3 S. & R. 509; 15 John. R. 205, 349; 16 John. R. 159; 1 Humph. R. 199; he must also have had actual possession or right to immediate possession. The person who has the absolute or general property in a personal chattel may support this action, although he has never had possession, for it is a rule that the general property of personal chattels creates a constructive possession. 2 Saund. 47 a, note 1; Bac. Ab. Trover, C; 4 Rawle, R. 185. One who has a special property, which consists in the lawful custody of goods with a right of detention against the general owner, may maintain trover. Story, Bailm. 93 n.
5. - 3. There must have been a conversion, which may have been effected, 1st. By the wrongful taking of a personal chattel. 2d. By some other illegal assumption of ownership, or by illegally using or misusing it; or, 3d. By a wrongful detention., Vide Conversion.
6. - 4. The declaration should state that the plaintiff Was possessed of the goods (describing them) as of his own property, and that they came to the defendant's possession by finding; and the conversion should be properly averred, as that is the gist of the action. It is not indispensable to state the price or value of the thing converted. 2 Wash. 192. See 2 Cowen, 592 13 S. & R. 99; 3 Watts, 333; 1 Blackf. 51; 1 South 211; 2 South. 509. Vide form, 2 Chitty's Pl. 370, 371. The usual plea is not guilty, which is the general issue. Bull. N. P. 48.
7. - 5. The verdict should be for the damages sustained, and the measure of such damages is the value of the property at the time of the conversion, with interest. 17 Pick. 1; 7 Monr. 209; 1 Mete. 172; 8 Port. R. 191; 2 Hill, 132; 8 Dana, 192. The judgment, when for the plaintiff, is that he recover his damages and costs; 1 Chit. Pl. 157; when for the defendant, the judgment is that he recover his costs. Vide, generally, 1 Chit. Pl. 147 to 157 Chit. Pr. Index, h. t.; Bac. Ab. h. t.; Dane's Ab. h. t. Vin. Ab. h. t.; Com. Dig. Action upon the case upon trover; Id. Pleader, 2 I; Doct. Pl. 494; Amer. Digests, h. t.; Bouv. Inst. Index, h. t. As to the evidence to be given in actions of trover, see Rose. Civ. Ev. 395 to 412.
TROY WEIGHT. A weight less ponderous than the avoirdupois weight, in the proportion of seven thousand, for the latter, to five thousand seven hundred and sixty, to the former. Dane's Ab. Index, h. t. Vide Weights.
TRUCE, intern. law. An agreement between belligerent parties, by which they mutually engage to forbear all acts of hostility against each other for some time, the war still continuing. Burlamaqui's N. & P. Law, part 4, c. 11, 1.
2. Truces are of several kinds: general, extending to all the territories and dominions of both parties; and particular, restrained to particular places; as, for example, by sea, and not by land, &c. Id. part 4, c. 11, 5. They are also absolute, indeterminate and general; or limited and determined to certain things, for example, to bury the dead. Ib. idem. Vide 1 Kent, Com. 159; Com. Dig. Admiralty, E 8; Bac. Ab.;Prerogative, D 4; League; Peace; War.
TRUE BILL, practice. These words are endorsed on a bill of indictment, when a grand jury, after having heard the witnesses for the government, are of opinion that there is sufficient cause to put the defendant on his trial. Formerly, the endorsement was Billa vera, when legal proceedings were in Latin; it is still the practice to write on the back of the bill Ignoramus, when the jury do not find it to be a true bill. Vide Grand Jury.
TRUST, contracts, devises. An equitable right, title or interest in property, real or personal, distinct from its legal ownership; or it is a personal obligation for paying, delivering or performing anything, where the person trusting has no real. right or security, for by, that act he confides altogether to the faithfulness of those intrusted. This is its most general meaning, and includes deposits, bailments, and the like. In its more technical sense, it may be defined to be an obligation upon a person, arising out of a confidence reposed in him, to apply property faithfully, and according to such confidence. Willis on Trustees, 1; 4 Kent, Com. 295; 2 Fonb. Eq. 1; 1 Saund. Uses and Tr. 6; Coop. Eq. Pl. Introd. 27; 3 Bl. Com. 431.
2. Trusts were probably derived from the civil law. The fidei commissum, (q. v.) is not dissimilar to a trust.
3. Trusts are either express or implied. 1st. Express trusts are those which are created in express terms in the deed, writing or will. The terms to create an express trust will be sufficient, if it can be fairly collected upon the face of the instrument that a trust was intended. Express trusts are usually found in preliminary sealed agreements, such as marriage articles, or articles for the purchase of land; in formal conveyances, such as marriage settlements, terms for years, mortgages, assignments for the payment of debts, raising portions or other purposes; and in wills and testaments, when the bequests involve fiduciary interests for private benefit or public charity,, they may be created even by parol. 6 Watts & Serg. 97.
4. - 2d. Implied trusts are those which without being expressed, are deducible from the nature of the transaction, as matters of intent; or which are superinduced upon the transaction by operation of law, as matters of equity, independently of the particular intention of the parties.
5. The most common form of an implied trust is where property or money is delivered by one person to another, to be by the latter delivered to a third person. These implied trusts greatly extend over the business and pursuits of men: a few examples will be given.
6. When land is purchased by one man in the name of another, and the former pays the consideration money, the land will in general be held by the grantee in Trust for the person who so paid the consideration money. Com. Dig. Chancery, 3 W 3; 2 Fonbl. Eq. book 2, c. 5, 1, note a. Story, Eq. Jur. 1201.
7. When real property is purchased out of partnership funds, and the title is taken in the name of one of the partners, he will hold it in trust for all the partners. 7 Ves. jr. 453; Montague on Partn. 97, n.; Colly. Partn. 68.
8. When a contract is made for the sale of land, in equity the vendor is immediately deemed a trustee for the vendee of the estate; and the vendee, a trustee for the vendor of the purchase money; and by this means there is an equitable conversion of the property. 1 Fonbl. Eq. book 1, ch. 6, 9, note t; Story, Eq. Jur. SSSS 789, 790, 1212. See Conversion. For the origin of trusts in the civil law, see 5 Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 1, n. 18; 1 Brown's Civ. Law, 190. Vide Resulting Trusts. See, generally, Bouv. Inst. Index, h. t.
TRUSTEE, estates. A trustee is one to whom an estate has been conveyed in trust.
2. The trust estate is not subject to the specialty or judgment debts of the trustee, to the dower of his wife, or the curtesy of the hushand of a female trustee.
3. With respect to the duties of trustees, it is held, in conformity to the old law of uses, that pernancy of the profits, execution of estates, and defence of the land, are the three great properties of a trust, so that the courts of chancery will compel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land. 2. To execute such conveyances, in accordance with the provisions of the trust, as the cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity. Cruise, Dig. tit. 12, c. 4, s. 4.
4. It has been judiciously remarked by Mr. Justice Story, 2 Eq. Jur. 1267, that in a great variety of cases, it is not easy to say what the duty of a trustee is; and that therefore, it often becomes indispensable for him, before he acts, to seek, the aid and direction of a court of equity. Fonbl. Eq. book 2, c. 7, 2, and note c. Vide Vin. Ab. tit. Trusts, O, P, Q, R, S, T; Bouv. Inst. Index, h. t.
TRUSTEE PROCESS, practice. In Massacchusetts, this is a process given by statute, in imitation of the foreign attachment of the English law.
2. By this process, a creditor may attach any property or credits of his debtor in the hands of a third person. This third person is, in the English law, called the garnishee; in Massachusetts, he is the trustee. White's Dig. tit. 148. Vide Attachment.
TRUSTER. He who creates a trust. A convenient term used in the laws of Scotland. 1 Bell's Com. 321, 6th ed.
TRUTH. The actual state of things.
2. In contracts, the parties are bound to toll the truth in their dealings, and a deviation from it will generally avoid the contract; Newl. on Contr. 352-3; 2 Burr. 1011; 3 Campb. 285; and even concealment, or suppressio veri, will be considered fraudulent in the contract of insurance. 1 Marsh. on Ins. 464; Peake's N. P. C. 115; 3 Campb. 154, 506.
3. In giving his testimony, a witness is required to tell the truth, the whole truth, and nothing but the truth; for the object in the examination of matters of fact, is to ascertain truth.
4. When a defendant is sued civilly for slander or a libel, he may justify by giving the truth in evidence; but when a criminal prosecution is instituted by the commonwealth for a libel, he cannot generally justify by giving the truth in evidence.
5. The constitutions of several of the United States have made special provisions in favor of giving the truth in evidence in prosecutions for libels, under particular circumstances. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana and Illinois, it is declared, that in publications for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. The constitution of New York declares, that in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous, is true, and was published with good motives and for justifiable ends, the party shall be acquitted. By constitutional provision in Mississippi and Missouri, and by legislative enactment in New Jersey, Arkansas, Tennessee, Act of 1805, c. 6: and Vermont, Rev. Stat. tit. 11, c. 25, s. 68; the right to give the truth in evidence has been more extended; it applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege. Cooke on Def. 61.
TUB, measures. In mercantile law, a tub is a measure containing sixty pounds weight of tea; and from fifty-six to eighty-six pounds of camphor. Jacob's Law Dict. h. t.
TUB-MAN, Eng. law. A barrister who has a pre-audience in the Exchequer, and also one who has a particular place in court, is so called.
TUMBREL, punishment. A species of cart; according to Lord Coke, a dung-cart.
2. This instrument, like the pillory, was used as a means of exposure; and according to some authorities, it seems to have been synonymous with the trebucket or ducking stool. 1 Chit. Cr. Law, 797; 3 Inst. 219; 12 Serg. & Rawle, 220. Vide Com. Dig. h. t.; Burn's Just. Pillory and Tumbrel.
TUN, measure. A vessel of wine or oil, containing four hogsheads.
TURBARY, Eng. law. A right to dig turf; an easement.
TURNKEY. A person under the superintendence of a jailor, whose employment is to open and fasten the prison doors and to prevent the prisoners from escaping.
2. It is his duty to use due diligence, and he may be punished for gross neglect or wilful misconduct in permitting prisoners to escape.
TURNPIKE. A public road paved with stones or other hard substance.
2. Turnpike roads are usually made by corporations to which a power to make them has been granted. The grant of such power passes not only an easement for the road itself, but also so much land as is connected with it; as, for instance, for a toll house and a cellar under it, and a well for the use of the family. 9 Pick. R. 109. A turnpike is a public highway, and a building erected before the turnpike was made, though upon a part out of the travelled path, if continued there is a nuisance. 16 Pick. R. 175. Vide Road; Street; Way.
TURPIS CAUSA, contracts. A base or vile consideration, forbidden by law, which makes the contract void; as a contract, the consideration of which is the future illegal cohabitation of the obligee with the obligor.
TURPITUDE. Everything done contrary to justice, honesty, modesty or good morals, is said to be done with turpitude.
TUTELAGE. State of guardianship; the condition of one who is subject to the control of a guardian.
TUTOR, civil law. A person who has been lawfully appointed to the care of the person and property of a minor.
2. By the laws of Louisiana minors under the age of fourteen years, if males, and under the age of twelve years, if females, are both, as to their persons and their estates, placed under the authority of a tutor. Civ. Code, art. 263. Above that age, and until their, majority or emancipation, they are placed under the authority of a curator. Ibid.
TUTOR ALIENUS, Eng. law. The name given to a stranger who enters into the lands of an infant within the age of fourteen), and takes the profits.
2. He may be called to an account by the infant, and be charged as guardian in socage. Litt. s. 124; Co. Litt. 89 b, 90 a Hargr. n. 1.
TUTOR PROPRTUS. The name given to one who is rightly a guardian in socage in contradistinction, to a tutor alienus. (q. v.)
TUTORSHIP. The power which an individual, sui juris, has to take care of the person of one who is unable to take care of himself. Tutorship differs from curatorship, (q. v.) Vide Pro-curator; Pro-tutor; Undertutor.
TUTRIX. A woman who is appointed to the office of a tutor.
TWELVE TABLES. The name given to a code of Roman laws, commonly called the Law of the Twelve Tables. (q. v.)
TWENTY YEARS. The lapse of twenty years raises a presumption of certain facts, and after such a time, the party against whom the presumption has been raised, will be required to prove a negative to establish his rights.
2. After twenty years from the time it became due, a bond will be presumed to have been paid. 2 Cranch, 180; 3 Day, 289; 1 McCord, 145; 2 N. & McC. 160; 1 Bay. 482; 9 Watts, 441; 2 Speers, 357. And the same presumption arises that a judgment has been paid, if no steps have been taken by the plaintiff for twenty years after its rendition. 3 Brev. 476; 5 Conn. 1.
3. But the presumption of such payment is easily rebutted, by showing that interest has been regularly paid. 1 Bailey, 148; that the obliger has admitted it has not been paid 2 Harring, 124; 9 N. H. Rep. 398; or other circumstances calculated to rebut the presumption. The proof of facts which show that the obligor was poor and not likely to be able to pay the debt, is not sufficient. 5 Verm. 236.
4. When a debt is payable in instalments and secured by a penal bond, the presumption of payment arising from lapse of time applies to each instalment as it falls due. 3 Harring. 421.
5. By the English act of limitation, 21 Jac. 1, c. 16, the period during which a possessory action for land can be sustained is fixed at twenty years, so that an adverse possession of twenty years is a bar to an action of ejectment, and such lapse of time gives a possessory title to the land. This period has been adopted in many of the states of the Union, but there has been some variation in others. See Limitation of actions.
6. But this statute did not affect incorporeal hereditaments, which remained as before. In analogy to the act of limitation the courts presumed a grant after twenty years adverse possession. Ana new grants are presumed upon proof of an adverse, exclusive, and uninterrupted enjoyment of an incorporeal hereditament at the end of twenty years. And the burden of proving that the possession was adverse, that is, under a claim of title, with the knowledge or acquiescence of the owner of the land; and also that it was uninterrupted, rests on the party claiming such incorporeal hereditaments. 3 Kent, 441; 1 Cheves, R. 2; 4 Mason, 402; 2 Roll. Ab. 269; 2 Greenl. Ev. 444.
7. The time of enjoyment of a former owner who is in privity with the claimant, can, in general, be joined to his own in order to make up the period of twentv years, as in the case of the heir and ancestor, of grantor and grantee. 9 Pick. 251. But the enjoyment of a former owner whose title has escheated to the state by forfeiture, cannot be added to the time of the enjoyment of the grantee of the state. 2 Greenl. Ev. 543.
TYBURN TICKET, Eng. late. A certificate given to the prosecutor of a felon to conviction, is so called.
2. By the 10 & 11. W. III., c. 23, the original proprietor or first assignee of such certificate is exempted from all and all manner of parish and ward offices within the parish or ward where the felony shall have been committed. Bac. Ab. Constable, C.
TYRANNY, government. The violation of those laws which regulate the division and the exercises of the sovereign power of the state. It is a violation of -its constitution.
TYRANT, government. The chief magistrate of the state, whether legitimate or otherwise, who violates the constitution to act arbitrarily contrary to justice. Toull. tit. prel. n. 32.
2. The term tyrant and usurper, are sometimes used as synonymous, because usurpers are almost always tyrants; usurpation is itself a tyrannical act, but properly speaking, the words usurper and tyrant convey different ideas. A king may become a tyrant, although legitimate, when he acts despotically; while a usurper may cease to be a tyrant by governing according to the dictates of justice.
3. This term is sometimes applied to persons in authority who violate the laws and act arbitrarily towards others. Vide Despotism.