A Dictionary Of Law

[The following are excerpts from the above stated law dictionary]

Abatement; Abatement of a nuisance: The removal of a nuisance. Whatever unlawfully annoys or doeth damage to another may be abated, i.e., taken away or removed by the party aggrieved thereby, he committing no riot. An injunction may prevent, and a verdict for damages may punish, but neither will “abate” a nuisance. Page 4.

"It is not a trespass to enter upon another's premises to abate a nuisance, retake goods, make repairs, demand rent, distrain, or capture an estray." Keifer v. Carrier, 53 Wis. 404 (1881).

Abatement; Abatement of a writ: Quashing or setting it aside on account of some fatal defect in it. Page 4.

Abatement; Plea in abatement: Matter of defense which defeats an action for the present because of a defect in the writ or declaration. Because they are dilatory, pleas in abatement are not favored. Pages 4-5.

"The plea [guilty, not-guilty, etc.] waives objection to the complaint for misnomer or for neglect to add a place of residents." State v. Drury, 13 R.I. 510 (1882); 41 N.H. 407; 1 Bish. Cr. Proc. Section 791.

Actor: A doer, a plaintiff. Page 28. [compare with “Plaintiff”]

Address: The name and residence of the drawee in a bill of exchange. Page 29.

Alien: One born in a strange country under obedience to a strange prince, or out of the liegeance of the king. One born out of a king's dominion or allegiance. Page 47.

Alien enemy: One who owes allegiance to an adverse belligerent. Page 47.

Allegiance: The tie, or ligamen, which binds the subject to the king in return for that protection which the king affords the subject. Page 50.

Alter: To make a thing different from what it was; as, by cutting out a brandmark. Page 53.

Ambassador: See MINISTER. Page 54. [compare with “Asylum”, “Deputy”, “Embassador” and “Minister”]

Assembly; Lawful assembly: Any congregating of people or citizens directed or permitted by the law of the place. Page 79.

Asylum: Immunity from law; as, the status of a public minister. Page 87. [compare with “Ambassador”, “Deputy”, “Embassador” and “Minister”]

Bank: 1. A judge's seat; also, a court sitting for the decision of matters of law - but for this, banc is the word more generally used. 2. An institution for the deposit, discount, or circulation of money. Page 104

Bribery: 1. In old English, theft, rapine, open violence, official extortion. 2. The ladder and broader doctrine is that any attempt to influence an officer in his official conduct, whether in the executive, legislative, or judicial department of the government, by the offer of a reward or pecuniary consideration, is an indictable common-law misdemeanor. The general election laws of Pennsylvania prohibiting bribery include caucuses...Page 136 [compare with “caucus”]

Business: Labor may be business, but it is not necessarily so; and business is not always labor. The making of a contract is business, but not labor. Page 141

Business paper: Commercial paper; negotiable instruments. Page 142

Buy: To acquire by giving a consideration, usually money; to purchase. Page 142

Caucus: See BRIBERY. Page 155 [compare with “bribery”]

Champertor: The unlawful maintenance of a suit in consideration of some bargain to have a part of the thing in dispute, or some profit out of it. A common example is (or was) the case of a contract by an attorney to collect a claim for a percentage. As between an attorney and his client, it is essential that the attorney prosecute the suit at his own expense. Page 163

Character: That which a person is, in distinction from that which he may be reputed to be. Reputation may be evidence of character, but it is not character itself. Page 165

General charge: It is clearly error to charge upon a conjectural state of facts, of which no evidence has been offered. Page 167.

Christianity: Christianity is parcel of the laws of England; and, therefore, to reproach the Christian religion is to speak in subversion of the law. Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far they can find that its precepts and principles have been incorporated in and made a component part of the law of the State. The maxim can have no reference to the law of the National government, since the sources of that law are the Constitution, treaties, and acts of Congress. Page 180

College: In the civil law, corporations were called collegia, from the idea of individuals being gathered together. Maxim: Three form a corporation. Page 193.

Color of law: Pretense or semblance of legal right or authority. See EXTORTION. Page 195. [compare with “extortion”]

Commerce: Transportation is the means by which commerce is carried on. Page 198.

Condonation: Forgiveness by a husband or a wife of a breach, in the other, of marital duty. The free, voluntary, and full forgiveness and remission of a matrimonial offense. Page 223.

Confession and avoidance: The act or proceeding by which a party admits the truth of an allegation he proposes to answer, and then states matter intended to avoid the legal inference which may be drawn from the admission. Page 224.

Conscience; Right of conscience: The constitutional declaration that "no human authority can control or interfere with the rights of conscience," refers to the right to worship the Supreme Being according to the dictates of the heart: to adopt any creed or hold any opinion on the subject of religion: and, for conscience sake, to do, or to forbear to do, any act not prejudicial to the public weal. Page 229.

Consensual: In the sense of resting upon mere consent, all contracts, except marriage, may be said to be consensual.. Page 230.

Corporation: Being the mere creature of law, each possesses only those properties which the charter of its creation confers upon it, expressly or incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality and individuality: "properties by which a perpetual succession of many members are considered as the same, and may act as a single individual” (Dartmouth College v. Woodward, 4 Wheat. 636 (1819); 97 U.S. 666; 101 id. 83; 1 BL. Com. 468). [compare with “immortality”]

"The United States may be deemed a corporation; so may a State; and so, a county." United States v. Hillegas, 3 Wash. 73 (1811). Page 261.

Corpus delicti: The corpus delicti must be proved like any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury. A confession alone is not regarded as sufficient proof. The State must first produce sufficient evidence to send the case to the jury, and the jury are first to be satisfied, from that evidence, that the crime has been committed. Page 266.

Covenant: A clause of agreement in a deed, whereby either party may stipulate for the truth of certain facts, or bind himself to perform, or give, something to or for the other. Page 287.

Covert baron: A wife, under the protection of her husband or baron. Page 290.

Coverture: The condition of a woman during marriage. Page 290.

Crier: On the assembling of the Supreme Court the proclamation made by the marshal is in these words: “The honorable the chief justice and associate justices of the Supreme Court of the United States. Oyez! oyez! oyez! all persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is not sitting. God save the United States and this honorable Court. Page 293.

Custom: The uncontradicted testimony of one witness may be sufficient to establish custom. Page 303.

Custom of merchants: A system of customs, originating among merchants, and allowed for the benefit of trade as part of the common law. Page 303.

Dead: See Alive. Page 313.
Alive: See DEATH. Page 49.
Death: Cessation of life; extinction of political existence. See LIFE. Page 313.
Life: For purposes of inheriting or receiving a beneficial interest, begins with conception. For the purpose of transferring civil rights, begins with birth. Page 626.

Demandant: One who demands a thing as due; specifically, the plaintiff in a real action, as, partition. Page 338.

Demurrer: A declaration that "the party will go no further, because the other has not showed sufficient matter against him:" imports that the objector will wait the judgment of the court whether he is bound to proceed. Page 339.

Deputy: One who acts officially for another; the substitute of an officer - usually of a ministerial officer. Page 347. [compare with “Ambassador”, “Asylum”, “Embassador”, and “Minister”]

Dilatory: Said of a defense or a plea that resists the plaintiff's present right of recovery by interposing some temporary objection, as that the court has no jurisdiction, that the plaintiff lacks capacity to sue. Page 357.

Discovery: Finding a previously unknown country or land. Spoken of as the “right of discovery” or of “original discovery.”

The English possessions in America were not claimed by right of conquest, but by right of discovery. According to the principles of international law, as then understood, the Indian tribes were regarded as the temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nations by which any portion of the country was first discovered.

The Europeans respected the right of the natives as occupants, but asserted the ultimate dominion to be in themselves; and exercised, as a consequence, a power to grant the soil while it was yet in the possession of the natives. Page 361.

Discretion; Judicial Discretion: Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law and can will nothing. When they are said to exercise a “discretion,” it is a mere legal discretion, a discretion in discerning the course prescribed by law; and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for giving effect to the will of the legislature, in other words to the will of the law.

“The [private] discretion of a judge,” said Lord Camden, “is the law of tyrants: it is always unknown; it is different in different men: it is casual, and depends upon constitution, temper and passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature can be liable.” Page 363.

Duress: In its more extended sense, that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness.

Actual violence is not necessary to constitute duress, even at common law, as understood in the parent country, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because, in that state of the case, there is no consent.

Where there is an arrest for an improper purpose, without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful purpose, even though under proper process, it may be construed as “duress of imprisonment:” and if the person arrested executes a contract or pays money for his release, he may avoid the contract as one procured by duress, and recover the money in an action for money had and received.

“Duress per minas,” as defined at common law, is where a party enters into a contract for fear of loss of life, loss of limb, of mayhem, or imprisonment.

“Duress of imprisonment” is a compulsion by an illegal restraint of liberty.

“Duress of goods” is by unlawfully seizing or withholding property, or threatening to do so, till some demand be acceded to. Pages 387-388.

Elopement: The act in a wife of voluntarily leaving her husband to live with another man. The "leaving" implies a going beyond the husband's actual control. Page 398.

Embassador: See Minister. Page 398. [compare with “Ambassador”, “Asylum”, “Deputy” and “Minister”]

Employed: May refer to any present occupation, but commonly to continuous occupation. "Employed" in anything imports not only the act of doing it, but also being engaged to do it, being under contract or orders to do it. Page 400.

Enemy; Alien enemy: One who owes allegiance to a government at war with ours, dwelling within our territory or seeking some action from a department of our government. Page 401.

Evidence; Prima facie evidence: Such evidence as in judgment of the law is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose. That which suffices for the proof of a particular fact until contradicted and overcome by other evidence. Page 420. [compare with “Primus; Prima Facie”]

Expositio: Words in constitutions, treaties, statutes, old writings generally, will be given the sense and scope they had with the makers or framers. The courts will not disturb the construction put upon a doubtful law by long usage. Page 435.

Extortion: The abuse of public justice which consists in an officer's unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him, or more than is due, or before it is due. Page 438. [compare with “Color of law”]

Family Bible: Containing entries of family incidence, - births, marriages, and deaths, made by a parent, since deceased, will be received in evidence. Page 449.

Feme covert: A married woman. By marriage, husband and wife are one person in law. Under his protection and "cover," she does everything; and is therefore called in law-French a feme-covert; while her condition is called "coverture." Page 454.

Fiction: Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment which the defendant was not allowed to traverse; as, that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object was to give jurisdiction…Legal fiction may be used to signify an assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged while its operation is modified. The “fact” is that the law has been wholly changed; the “fiction” is that it remains what it always was. Page 458. [compare with “person; fictitious”]

Fictitious: Not real; feigned: as, a fictitious – action, case, issue, name, party, payee. A fictitious case is a suit brought upon facts with respect to which no real controversy exists. Page 458. [compare with “person; fictitious”]

Figures: Numerals. Arabic, 1893; Roman, MDCCCXCIII. The objection to using Arabic figures in formal documents is that they may be readily altered. In some States they are not allowed in complaints and indictments, except in setting forth copies. It is considered better to date formal instruments by writing the day and year in words; and to write in words in the body of a bill, note, or receipt the sum for which it is given. Page 459.

Force and fear: Is ground for annulling a contract, when the fear would affect a mind of ordinary firmness. Page 466.

Forum coeli: The court of heaven. Page 472.

Government: Government is formed by depriving all persons of a portion of their natural rights. The rights they enjoy under government are not conferred by it, but are those of which they have not been deprived. It is only by a deprivation of all persons of a portion of their rights that it is possible to form and maintain government. Government is a moral relation, necessarily resulting from the nature of man. Page 491.

Holiday: A secular day on which the law exempts all persons from the performance of contracts for labor or other personal service, from attendance at court, and from attention to legal proceedings. Legal or public holidays are appointed by statute law, or are authorized by custom having the force of law. Page 512.

Home: Where a person takes up his abode, without any present intention to remove there - from permanently. Page 512.

Homo: A human being; man, a man; a person. Page 514.

Homo; Novus homo: A new man; a man pardoned of crime. Page 514.

Husband: At common law, husband and wife are one person in law, and he is that person; that is, the legal existence of the woman is suspended or at least incorporated into that of the husband, under whose protection she performs everything. They cannot give evidence for or against each other. He may chastise her moderately. For any crime committed in his presence, except treason and murder, she is presumed to act by his coercion.

By the common law, her money and earnings belonged to him absolutely. The idea was that as he was bound to support the wife and the family, he was entitled to whatever she possessed or acquired. She is always under his power. Hence the disabilities and safeguards the law places around her. He is liable for her frauds, torts, and breaches of trust. Either person may prove the marriage collaterally. She cannot be compelled to incriminate him. In bigamy, the lawful wife cannot prove the marriage. Neither can she testify as to a confidential communication, except by consent. In the Federal courts, she is not a competent witness for or against him in a criminal case, on the score of public policy. Page 518.

Idem Sonans: Sounding the same; substantially identical in sound. Page 520.

Immortality: See Corporation. Page 523. [compare with “Corporation”]

Imparlance: Before the defendant puts in his defense he is entitled to demand one impariance [conference] to see if he can end the matter amicably without further suit, by talking with the plaintiff; a practice supposed to have arisen in obedience to the precept "Agree with thine adversary quickly, whilst thou art in the way." Mat.5:25. Impariances are no longer recognized in this country, where, after appearance by the defendant, the cause stands continued until the end of the time within which the plea is to be filed. Page 525.

Imposition: See Deceit, Extortion, Fraud. Page 527.

Indian: When members leave their tribe and become merged into the masses of people they owe complete allegiance to the government of the United States and are subject to its courts. Page 535-536.

Inhabitant: One domiciled: one who has his domicile or fixed residence in a place, in opposition to a mere "sojourner." Page 544. [compare with “reside; residence”]

Innocent: If one of two innocent parties must suffer for a deceit, it is more consonant to reason that he who puts the trust and confidence in the deceiver should be the loser, rather than the stranger. The loss should fall on him who by reasonable diligence could have protected himself. He who gave the power to do the wrong must bear the burden of the consequences. Page 548.

Insurance: A contract to pay money in the even of pecuniary loss from a specified cause. The contract of insurance sprang up from the law maritime, and derives all its material rules and incidence therefrom. Pages 555-557.

Insurance company: An association, usually incorporated, which makes a business of entering into contracts of insurance. Page 558.

Interpretation: The act of finding out the true sense of any form of words, that is, the sense their author intended: and of enabling others to derive from them the same idea. Properly precedes construction, but does not go beyond the written text. Pages 564-565.

Jury: A body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society. Page 582.

Law-merchant; law of merchants: The rules applicable to commercial paper were transplanted into the common law from the law merchant. They had their origin in the customs and course of business of merchants and bankers, and are now recognized by the courts because they are demanded by the wants and conveniences of the mercantile world. Pages 670-671.

Legal: "Legal" looks more to the letter, and "lawful" to the spirit, of the law. "Legal" is more appropriate for conformity to positive rules of law; "lawful” for accord with ethical principle. "Legal" imports rather that the forms of law are observed, that the proceeding is correct in method, that rules prescribed have been obeyed; "lawful" that the act is rightful in substance, that moral quality is secured. Page 610.

Lobbying: Seeking to influence the vote of a member of the legislature by bribery, promise of reward, intimidation, or other dishonest means. Lobbying is a felony, by the constitution of California and Georgia. Page 636.

Legal memory; memory of man; time of memory: Originally, indefinite, but by statute in 1276, made to begin with the reign of Richard I, 1189. At another time the period was practically sixty years. In 1832, it was changed to twenty years. Page 639.

Merchandise: Objects of commerce, wares, goods, commodities; whatever is usually bought or sold in trade. Provisions daily sold in market [food, clothing] horses, cattle, and fuel are not usually included, and realty never. Page 670.

Merchant: One who buys to sell again, and who does both, not occasionally or incidentally, but habitually and as a business. One who buys and sells and article; not, then, a manufacturer who sells his own productions. A banker is merchant, according to both the commercial law and the civil law. Page 670. [compare with “Trader”]

Minister; Ministerial: A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to, or exercise of, his own judgment upon the propriety of the act to be done. Page 677. [compare with “Ambassador”, “Asylum”, “Deputy” and “Embassador”]

Minister; Foreign minister: In the diplomatic sense, a minister who comes from another jurisdiction or government.

The modern law of nations recognizes a class of public officers, who, while bearing various designations, chiefly significant in the relation of rank, precedence, or dignity, possess in substance the same functions, rights and privileges, - being agents of their respective governments for the transaction of diplomatic business abroad, possessing also such powers as their respective governments may please to confer, and enjoying, as a class, established legal rights and immunities of person and property in the governments to which they are accredited as the representatives of sovereign powers.

Disregarding questions of dignity, these diplomatic agents might all be dominated ambassadors, because they are immediate officers of the sovereign; or envoys, because they are persons sent; or ministers, because engaged in public service or duty; or procurators, because they are the proctors of their respective governments; or legates, because officially employed as the substitute of the superior; or nuncios, or internuncios, because they are messengers to or between governments; or deputies, because they are deputed; or commissioners, because they hold and discharge commissions; or charges d'affairs, because they are charged with business; or agents, because they act for their governments. All these, and other designations of public ministers, are found in the history of modern negotiations, the name having no fixed relation to the functions or powers, or true nature of the office. Page 678. [compare with “Ambassador”, “Asylum”, “Deputy” and “Embassador”]

Money-order: The act of June 8, 1872, c. 355, provided for the establishment of the money order system of the United States. Page 684.

Name: A designation by which a person, natural or artificial, is known. When a person is known equally well by two names he may be sued or indicted by either name, or by both. When a nickname is used, evidence will be received as to the true name. Such a name is but an alias for the true name.

The rule that a middle name is really no part of one's name has not been extended to the Christian name; on the contrary, the law presumes that every person has a Christian name. Where there is a mistake in the name used in the writ, and the writ is yet served on the right person, he is thereby informed that he is the person meant, and he should plead the misnomer in an abatement. A non-resident, to whom a wrong name is given in an order of publication, receives no legal notice.

The law recognizes only one Christian name. There are cases countenancing, if not establishing, that the omission of a middle letter is not a misnomer or variance; if so, the middle letter is immaterial, and a wrong letter may be disregarded. “Jr.” or “Sr.” is not part of a man's name. Nor is “Mrs.” a part. Identity of name is prima facie evidence of identity of person. Pages 694-695.

Negative: It is not a maxim of law that a negative is incapable of proof. When the negative ceases to be a simple one, - when it is qualified by time, place, or circumstance, - much of the objection is removed; and proof of a negative may reasonably be required when the qualifying circumstances are the direct matter in issue, or the affirmative is either probable in itself, or supported by a presumption, or peculiar means of proof are in the hands of the party asserting the negative. When a presumption is in favor of a party who asserts the negative, it affords an additional reason for casting the burden of proof on his adversary; it is when a presumption is in favor of the party who asserts the affirmative that its effect becomes visible, as the opposite side is then bound to prove his negative. One class of exceptions to the rule, that the burden of proof rests on the party holding the affirmative, includes the cases in which the plaintiff grounds his right of action upon a negative allegation which is an essential element in his case. So, where the negative allegation involves a charge of criminal neglect of duty, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in those cases the presumption of law is in favor of the party charged. Page 702.

Oath: Calling God to witness the truth of what is said. A solemn adjuration to God to punish the affiant, if he swears falsely. The sanction of oath is a belief that the Supreme Being will punish falsehood.

Oaths were instituted long before the beginning of the Christian era, and were always held in the highest veneration. The substance of an oath has nothing to do with Christianity. The forms have always been different in different countries. But still the substance is the same, which is that God in all of them is called upon to witness to the truth of what we say…Such infidels who believe a God and that he will punish them if they swear falsely, may be admitted as witnesses. And such infidels (if any such there be) who either do not believe a God, or, if they do, do not think that he will either reward or punish them in this world or in the next, cannot be witnesses in any case nor under any circumstances…because an oath cannot possibly be any tie or obligation upon them. Page 720.

Ordinance: An ordinance of the councils of a municipality, though binding upon the community affected by it, is not a “law” in the legal sense; it is not prescribed by the supreme power in a State, from which alone a law can emanate, and it is not of general authority throughout the Commonwealth…They are local regulations for the government of the inhabitants of the particular place. Page 738.

Peine forte et dure: Punishment severe and hard; or prison hard and strong. The name of the punishment inflicted upon a prisoner who refused to plead to an indictment for felony.

The accused, nearly naked, was laid on his back, upon the ground, with arms and feet drawn apart by cords, and with as great a weight of iron or stone placed upon his chest as he could bear. The next day he had three morsels of bread, and the next day three draughts of the stagnant water nearest the prison; and so on, on alternate days, till he died or answered. The practice was abolished in 1772. The desire probably was to save the accused property, otherwise forfeited to his family. Page 763

Permanent: Does not always embrace the idea of absolute perpetuity. Page 769.

Person, fictitious: See DECOY; FORGERY. Page 771. [compare with “Fiction”]

Pillory: A contrivance for inflicting punishment by exposing the offender to public disgrace. A frame of wood erected on a post or posts, with movable boards containing holes through which the head and hands were put. Page 773.

Place; Place of contract: Matters bearing upon the execution, the interpretation, and the validity of a contract, are determined by the law of the place where the contract was made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, the admission of evidence, the statute of limitations, depend upon the law of the place where suit is brought. Page 775.

Plaintiff: In common law proceedings we speak of the actor (the party bringing suit) as “plaintiff,”…In the equity rules of the Supreme Court, the actor is always called plaintiff. Page 776. [compare with “Actor”]

Pleading: Courts are not established to determine what the law might be upon possible facts, but to adjudge the rights of parties upon existing facts; and when their jurisdiction is invoked parties will be presumed to present in their pleadings the actual, and not supposable, facts touching the matter in controversy.

All pleading is a logical process. The object is to facilitate the administration of justice, by simplifying the grounds of controversy and ultimately narrowing the contest to a single and direct affirmative and negative – a definite point of law or fact. Page 778.

Pleading; Dilatory pleas: tend to delay or put off the suit (or the plaintiff's eventual remedy) by questioning the propriety of the remedy, rather than by denying the injury. Page 778-779.

Pleading; Special plea; Pleading; Pleader: The allegation of special or new matter to avoid the effect of an allegation by the opposite party. See abatement. Page 779. [compare with “Abatement”]

Policy; Public Policy: What is the “public policy” of a State, and what is contrary to it, if inquired into beyond what its constitution, laws, and judicial decisions make known, will be found to be a matter of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will differ.

What is termed the “policy of the government,” with reference to any particular legislation, is generally a very uncertain thing, upon which all sorts of opinions may be formed. It is a ground much too unstable upon which to rest the interpretation of a statute.

Anything more indistinct, undefined, and incapable of certainty or uniformity than “public policy” in the law determining the responsibility of common carriers, and restricting its limitation by special contract, can hardly be imagined. Page 783.

Primus; Prima Facie: At first view; on first appearance. A prima facie case or evidence is that which is received or continues until the contrary is shown. Pages 809-810. [compare with “Evidence; Prima facie evidence”]

Profanity: Public profane swearing from its tendency to disturb the peace, corrupt the morals of Christianity, was an indictable offense at common law. The view now is that a single utterance of a profane word is not per se indictable, if it is not spoken with a loud voice, nor with repetitions. To be indictable, the profanity should take such form, and be uttered under such circumstances as to constitute a public nuisance. Page 821.

Protestation: Pleading, as so to avoid an implied admission of a fact which cannot be positively affirmed or denied, is by a “protestation:” the party interposes an oblique allegation or denial of the fact by protesting (protestando) that the matter does or does not exist; at the same time avoiding a direct affirmation or denial. Coke's definition is “an exclusion of a conclusion.”

Prevents the party from being concluded by a fact or circumstance which cannot be directly affirmed or denied without “duplicity,” and which, without protest, he might be deemed to have tacitly waived or admitted. Page 841

Prohibition: The police power of a State is as broad and plenary as its taxing power; and property within a State is subject to the operations of the former as long as it is within the regulating restrictions of the latter. Page 1140 (Addenda).

Proofs: In criminal cases the burden of proof never shifts, but is upon the government throughout. Page 835.

Punishment: The reasonableness of the punishment administered by a school teacher to a pupil is a question of fact. The teacher has a right to require obedience to reasonable rules and a proper submission to his authority, and to inflict punishment for disobedience; being governed, as to mode and severity, by the nature of the offense, the age, size, and physical condition of the pupil. And in punishing for a particular offense the teacher may take into consideration habitual disobedience. Page 845.

Quash: To make void or abate; to overthrow, annul. The ground for exercising the summary power of quashing writs is to clear the record of irregular, void, or defective proceedings. Not being a matter of right, but of privilege, the motion will not be received when presented at an unreasonable time, as, after issue joined on a plea of not guilty. Page 850.

Reading: If a party who can read will not read a deed placed before him for execution, or if, being unable to read, he will not demand to have it read or explained to him, he is guilty of supine negligence, which is not the subject of protection, in equity or in law.

If a party who can read and write signs a contract without reading the contents, he will be bound by the contract, in the absence of fraud or coercion in procuring his signature. Page 858.

Rebut: To contradict, oppose, do away with; to adduce counter testimony or proof. Rebutting evidence is evidence adduced to rebut a presumption of fact or of law, that is, to avoid its effect; also, any evidence adduced to destroy the effect of prior evidence, whether by explanation or direct denial. Page 859.

Religion: In this country, the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property nor infringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establishment of no sect.

Laws are made for the government of actions; and while they cannot interfere with mere religious belief and opinions, they may with practices. Thus, they prevent human sacrifices, burning alive on the funeral pile, plural marriages, and the like. To permit such practices would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Under such circumstances government could exist in name only.

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; no man can of right be compelled to attend, erect, or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishment or modes of worship.

As early as December 7, 1682, it was enacted by William Penn and the deputies, “That no person, now at or any time hereafter Living in this Province, who shall confess and acknowledge one Almighty God to be Creator, Upholder and Ruler of the World, And who professes him or herself Obliged in Conscience to Live peaceably and quietly under the civil government, shall in any case be molested or prejudiced for his or her Conscientious persuasion or practice. Nor shall he or she at any time be compelled to frequent or maintain any religious worship, place or Ministry whatever, Contrary to his or her mind, but shall freely and fully enjoy his or her Christian liberty in that respect, without any Interruption or reflection. And if any person shall abuse or deride any other, for his or her different persuasion and practice in matters of religion, such person shall be looked upon as a Disturber of the peace, and be punished accordingly.” (“The great Law” of the Prov. Of Penn.; Linn, 107, 478).

The separation of church and state is not so complete that the state is indifferent to the welfare and prosperity of the church. This is a Christian commonwealth. Religion lies at the basis of morality. For the purpose of securing the best and most thoroughly extended morality, it is fitting that religion and the church be recognized.

The criminal laws of every country are shaped in greater or less degree by the prevailing public sentiment as to what is right, proper, and decorous, or the reverse; and they punish as crimes acts which disturb the peace and order or tend to shock the moral sense or sense of propriety and decency of the community. The moral sense is largely regulated and controlled by the religious belief; and therefore it is that those things which, estimated by a Christian standard, are profane and blasphemous, are properly punished as crimes against society, since they are offensive in the highest degree to the general public sense and have a direct tendency to undermine the moral support of the laws and to corrupt the community. Pages 872-873.

Res: A thing, or things; whatever may be possessed, seized or attached; property; matter, subject-matter. Page 886. [compare with “Reside”]

Rescission; Rescissory: Where a party desires to rescind upon the ground of mistake or fraud, he must, upon discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred…Delay and vacillation are fatal to the right which had before subsisted. Page 890.

Reside; Residence: Residence also implies more than a temporary sojourn. Residence means a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere temporary locality of existence. Ordinarily, the place of one's permanent domicile, rather than his temporary abode. Page 892. [compare with “Res”, “Inhabitant”]

Reside; Residence; Resident: Literally, one who sits, abides, inhabits, or dwells in a particular place. A person sojourning (i.e. residing) at a place is prima facie residing there, and cannot be a resident of another place at the same time. Pages 892-893. [compare with “Res”, “Inhabitant”]

Retornum: Return. Page 897.

Retornum; Retorno habendo: A judgment awarding a defendant in replevin the possession and property of the goods or articles. Page 897.

Review; Bill of review: No bill of review shall be admitted unless the party first obeys and performs the decree, and enters into a recognizance with sureties…” Page 900.

Road: Has never been defined to mean land; it is difficult to find a definition which does not include the sense of “way,” though the latter word is more generic, referring to many things besides roads. “Road” is generally applied to a highway, street, or lane, often to a path-way or private-way, yet strictly it means only one particular kind of way. Page 909. [compare with “Way”]

Roman Law: The common law of England has been largely influenced by the Roman law, in several respects:…Through the development of commercial law. Page 910.

Scold: A troublesome and angry woman, who, by brawling and wrangling among her neighbors, breaks the public peace, increases discord, and becomes a nuisance to the neighborhood. At common law, a common scold is a public nuisance. The sentence was that she be placed in a tre-bucket, castigatory, or cucking-stool, that is, in Anglo-Saxon, the scolding stool. The offence is now punishable, if at all, by fine, or by fine and imprisonment.

In 1824 a woman was convicted of this offense in the city of Philadelphia, and the sentence was, as at common law, that she “be placed in a ducking or cucking-stool, and be plunged three times in the water.” This sentence was reversed by the supreme court, which decided that the old common law punishment had not been adopted in Pennsylvania. The court also said that the punishment was introduced at a time when women were subjected to degradation as slaves; that authorities differ as to what the original punishment was, and how, therefore, it was to be executed upon offenders, if executed at all.

In 1866 the same court, in reviewing the record in another case, said that the law has been considered settled since the decision in the James Case; that the penal code of 1860 did not abolish the offense; and that, as to the unreasonableness of punishing women alone for a too free use of the tongue, it is enough to say that the common law, which is the expressed wisdom of ages, adjudges that it is not unreasonable. Page 923.

Sea-worthy: Not capable of going to sea or being navigated on the sea, but sound, stanch, and strong in all respects, and equipped, furnished, and provided with officers, men, provisions, and documents for a certain service. Page 926.

Servant: Master and servant: Describes the relation of employer and employee.

For all acts done by a servant in obedience to the express order of the master, or in execution of the master's business, within the scope of his employment, and for an act in any sense warranted by the express or implied authority conferred upon him, considering the nature of the service required, the instruction given, and the circumstances under which the act is done, the master is responsible. For acts not done within these conditions the servant is responsible. Pages 937-938.

Shyster: Has reference to the professional character and standing of a lawyer. Page 951.

Side of the court: The law side and the equity side of a court designate a court administering justice, in the former case under the forms of strict law or common law, in the latter case according to the more liberal principles of equity. The equity side of the courts is deemed always open for pleadings and proceedings preparatory to the hearing of causes upon their merits. Page 952.

Sign: Although in general understanding refers to writing the name at the foot or bottom of a document, is not confined to that meaning. The primary meaning is to write one's name on paper or to show or declare assent or attestation by some sign or mark. But it may be that a will cannot be considered as “signed” unless the testator's name is affixed at the bottom, or otherwise outside the body. Page 952. [compare with “Subscribe”]

Sign; Sign-manual: Any autograph signature. Page 953. [compare with “Subscribe”]

Sine die: Without a day – for the reassembling of a body, or for the appearance of a defendant. Page 954.

Sleep: “Sleeping with a man” is equivalent to lying awake with a man, and being “in bed with a man” is equivalent to sleeping with him. Page 956.

Solicitor: A practitioner in courts of equity. Page 959.

Solicitor-general: A law-officer next in rank to the attorney-general. Page 959.

Stranger: Strangers are “third persons” generally – all persons in the world except parties and privies. For example, those who are in no way parties to a covenant, nor bound by it, are said to be strangers to the covenant. Page 980.

Sub; Sub potestate: Under authority – another's power. Page 983.

Subscribe: To sign one's own name beneath or at the end of an instrument; also, to write one's name as attesting witness. The purpose of a law requiring the subscription to a will at the end of the paper is to prevent fraudulent additions before or after execution. Page 985. [compare with “Sign”]

Suffer: Is synonymous with permit, q.v.; as, in a statute against “suffering” an animal to go at large. To suffer an act to be done, by a person who can prevent it, is to permit or consent to it, to approve it, not to hinder it. It implies willingness. Page 987.

Sunday: The duty of observing the day set apart is imposed upon all as members of the body politic without reference to the religious faith and worship of any. The day, as a day of rest, is a legal holiday rather than a holy day. Page 992.

Laws setting aside Sunday as a day of rest are upheld not from any right of the government to legislate for the promotion of religious observance, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws…and their validity has been sustained by the highest courts of the States. Page 992.

Besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to the state, considered merely as a civil institution. It humanizes by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people the sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker. Page 993.

Surcharge: Overcharge; an excessive or unlawful charge. Page 995.

Surety: A person who engages to be answerable for the debt, default, or miscarriage of another. The engagement constitutes a contract of suretyship. A person who, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person who ought himself to have made or performed before the former was compelled to do so. Pages 995-996.

Telegraph: A telegraph company holds the same relation to commerce as a carrier of messages that a railroad company holds as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. Page 1012. [compare with “Telephone”]

Telephone: A conversation held through a telephone is a message, or a communication, transmitted by a telegraph, - a telegram. A telephone is a telegraph. The idea conveyed by each term is the sending of intelligence to a distance. Page 1012. [compare with “Telegraph”]

Title: A person may have a title to property although he is not the absolute owner. If he has the actual or constructive possession, or the right of possession, he has a title. Page 1034.

Tort: A government is not responsible for the wrongful acts of its officers. Page 1041.

Trader: One who buys and sells goods. Page 1043. [compare with “Merchant”]

Tramp: A wandering, homeless vagabond. Tramps are persons who rove about from place to place begging, and all vagrants living without visible means of support who stroll over the country without lawful occasion. Page 1047. [compare with “Vagrant”]

Traffic: The passing of goods or commodities from one person to another for an equivalent in goods or money; and a trafficker is one who traffics - a trader, a merchant. Page 1047.

Transaction: Is broader than “contract.” A contract is a transaction, but a transaction is not necessarily a contract. Page 1047.

Usury: Lending money on a contract to receive again the principle sum and an increase by way of compensation for the use is called lending on “interest” by those who think it lawful, and “usury” by those who do not think so…The Mosaical precept was political, not moral: while it prohibited the Jews from taking usury from their brethren, it expressly permitted them to take it from strangers. This proves that taking a moderate reward for the use is not malum in se. To demand an exorbitant price for the loan of a horse, or a loan of a sum of money, is equally contrary to conscience; but a reasonable equivalent for the inconvenience the owner may feel by the want of the thing, and for the hazard of losing it entirely, is not more immoral in one case than in the other…To a moderate profit we give the name of “interest,” and to an exorbitant profit the odious name of “usury.” Page 1074.

Vadium; Vadium mortuum: A dead pledge; mortgage. A security with the condition that if the money be not promptly repaid the debtor's estate will be forfeited. Page 1079.

Vagrant: One who wanders about, and has no certain calling. A person who roams about from place to place, begging, or living without labor or visible means of support. Any act of begging or vagrancy is prima facie evidence. Idleness in any person whatsoever is a high offense against public economy. Page 1079-1080. [compare with “Tramp”]

Vehicle: In the Revised Statutes, acts and resolutions of Congress, includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land. Page 1082.

Voluntary: In accordance with ones own free will; without constraint or compulsion; spontaneous; free. Page 1093.

War: A statute of limitations did not run against the right of action upon a contract made previous to, and maturing after, the commencement of the war; because the courts were closed to public enemies. Page 1101.

Ward of court: A minor or lunatic under the protection of a court of equity. More particularly, a minor under the personal care of a guardian. Page 1101.

Warrantor: He who makes a warranty. “Warranty” and “guarantee” are identical in signification and effect; the one usually denoting a covenant in a conveyance, the other a parole promise. Speaking generally, “warranty” is applied to a contract as to title, quality or quantity of a thing sold; “guarantee” to the contract by which one person is bound to another for the fulfillment of the promise or engagement of a third party. Pages 1104-1105.

Way; Public way; highway; public highway: A lawful public road. “Highway” applies to all great roads leading from town to town, to markets, and to public places, and denotes a way that is common to all passengers. “Highway” is a generic name, embracing every kind of way common to all citizens, whether a foot-way, a horse-way, a cart-way, or way by water, however laid out originally and under whosesoever's charge. Roads are divided into “highways” and “private ways.” Highways are subdivided into “public highways” and “neighborhood roads.” Page 1109. [compare with “Road”]

Willful; willfully: In common parlance “willful” means intentional, as distinguished from accidental or involuntary; in penal statutes it means with evil intent, with legal malice, without ground for believing the act to be lawful. The ordinary meaning of “willful” in statutes, is not merely “voluntary,” but with a bad purpose. Sometimes it means little more than “intentional” or “designed.” But that is not its ordinary signification in criminal and penal statutes; in them it most frequently conveys the idea of legal malice in greater or less degree – implies an evil intent without justifiable excuse.

Only want or defect of will will protect the doer of a forbidden act from the punishment annexed thereto. An involuntary act induces no guilt…to constitute a crime against human laws, there must be a vicious will and an unlawful act thereon. Pages 1114-1115.

Woman: In the United States unmarried women have all the civil rights of men: they may make contracts, sue and be sued, be trustees and guardians, be witnesses, and attest all kinds of papers. But exercise of political powers has not been generally conferred upon them: while she is a citizen (q.v.), she is not eligible to office, not entitled to vote, nor has she a constitutional right to practice law.

It is not one of the privileges an immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong or should belong to the family and institutions is repugnant to the idea of the wife adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of common law that it became a maxim that a wife had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, not withstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exists in full force in most of the States; as, that she, without his consent, is incapable of making a contract binding on either of them. This incapacity renders her incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor at law. That unmarried women are not affected by the incapacities which arise out of the married state are exceptions to the general rule. But the rules of civil society must be adopted to the general constitution of things, and cannot be based upon exceptional cases. It is within the province of legislation to ordain what offices, positions, and callings shall be filled and discharged by men, and what by men or women.

When women are excluded from the right to vote for particular officers, they are excluded from the right to hold the offices. Pages 1119-1120.

Words: Words get their point and meaning almost entirely from the time, place, circumstances, and intent with which they are used. The same word may have different meanings even in the same sentence. Page 1121.

Worship: No definition of this word, as used in “divine worship,” “religious worship,” “place of worship,” and similar expressions, applicable to all cases, has, seemingly, been framed by any court. The word has no technical, legal signification; each case, in which its meaning has been the subject of contention, has been decided upon its own merits. “Religious worship” has no technical meaning, in a legal sense. Receiving compulsory prices for admission to a camp meeting on Sunday is worldly employment or business, and not within the exception of “works of necessity and charity.” Page 1122.