


                                     E.

E CONVERSO. On the other side or hand; on the contrary. 

E PLURIBUS UNUM. One from more. The motto of the arms of the United States. 

EAGLE, money. A gold coin of the United States, of the value of ten dollars. 
It weighs two hundred and fifty-eight grains. Of one thousand parts, nine 
hundred are of pure gold, and one hundred of all Act of January 18, 1837, 4 
Sharsw. Cont. of Story's L. U. S. 2523, 4. Vide Money. 

EAR-WITNESS. One who attests to things he has heard himself. 

EARL, Eng. law. A title of nobility next below a marquis and above a 
viscount. 
     2. Earls were anciently called comites, because they were wont comitari 
regem, to wait upon the king for counsel and advice. He was also called 
shireman, because each earl had the civil government of a shire. 
     3. After the Norman conquest they were called counts, whence the shires 
obtained the names of counties. They have now nothing to do with the 
government of counties, which has entirely devolved on the sheriff, the 
earl's deputy, or vice comes. 

EARLDOM. The seigniory of an earl; the title and dignity of an earl. 

EARNEST, contracts. The payment of a part of the price of goods sold, or the 
delivery of part of such goods, for the purpose of binding the contract. 
     2. The effect of earnest is to bind the goods sold, and upon their 
being paid for without default, the buyer is entitled to them. But 
notwithstanding the earnest, the money must be paid upon taking away the 
goods, because no other time for payment is appointed; earnest only binds 
the bargain, and gives the buyer a right to demand, but a demand without 
payment of the money is void; after earnest given the vendor cannot sell the 
goods to another, without a default in the vendee, and therefore if the 
latter does not come and pay, and take the goods, the vendor ought to go and 
request him, and then if he does not come, pay for the goods and take them 
away in convenient time, the agreement is dissolved, and he is at liberty to 
sell them to any other person. 1 Salk. 113: 2 Bl. Com. 447; 2 Kent, Com. 
389; Ayl. Pand. 450; 3 Campb. R. 426. 

EASEMENTS, estates. An easement is defined to be a liberty privilege or 
advantage, which one man may have in the lands of another, without profit; 
it may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5 Barn. & 
Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord, 
R. 451; 14 Mass. R. 49 3 Pick. R. 408. 
     2. This is an incorporeal hereditament, and corresponds nearly to the 
servitudes or services of the civil law. Vide Lilly's Reg. h.t. 2 Bouv. 
Inst. n. 1600, et seq.; 3 Kent, Com. 344: Cruise, Dig. t. 31, c. 1, s. 17; 2 
Hill. Ab. c. 5; 9 Pick. R. 51; 1 Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 
102; Whatl. on Eas. passim; and the article Servitude. 

EASTER TERM, Eng. law. One of the four terms of the courts. It is now a 
fixed term beginning on the 15th of April and ending the 8th of May in every 
year. It was formerly a movable term. 

EAT INDE SINE DIE. Words used on an acquittal, or when a prisoner is to be 
discharged, that he may go without day, that is, that he be dismissed. 
Dane's Ab. Index, h.t. 

EAVES-DROPPERS, crim. law. Persons as wait under walls or windows or the 
eaves of a house, to listen to discourses, and thereupon to frame 
mischievous tales. 
     2. The common law punishment for this offence is fine, and finding 
sureties for good behaviour. 4 Bl. Com. 167; Burn's Just. h.t.; Dane's Ab. 
Index, h.t.; 1 Russ. Cr. 302. 
     3. In Tennessee, an indictment will not lie for eaves-dropping. 2 Tenn. 
R. 108. 

ECCHYMOSIS, med. jur. Blackness. It is an extravasation of blood by rupture 
of capillary vessels, and hence it follows contusion; but it may exist, as 
in cases of scurvy, and other morbid conditions, without the latter. Ryan's 
Med. Jur. 172. 

ECCLESIA. In classical Greek this word signifies any assembly, and in this 
sense it is used in Acts xix. 39. But ordinarily, in the New Testament, the 
word denotes a Christian assembly, and is rendered into English by the word 
church. It occurs thrice only in, the Gospels, viz. in Matt. xvi. 18, and 
xviii. 17; but very frequently in the other parts of the New Testament, 
beginning with Acts ii. 47. In Acts xix. 37, the word churches, in the 
common English version, seems to be improperly used to denote heathen 
temples. Figuratively, the word church is employed to signify the building 
set apart for the Christian assemblies; but the word eclesia is not used in 
the New Testament in that sense. 

ECCLESIASTIC. A clergyman; one destined to the divine ministry, as, a 
bishop, a priest, a deacon. Dom. Lois Civ. liv. prel. t. 2, s. 2, n. 14. 

ECCLESIASTICAL. Belonging to, or set apart for the church; as, distinguished 
from civil or secular. Vide Church. 

ECCLESIASTICAL COURTS. English law. Courts held by the king's authority as 
supreme governor of the church, for matters which chiefly concern religion. 
     2. There are ten courts which may be ranged under this class. 1. The 
Archdeacon's Court. 2. The Consistory Court. 3. The Court of Arches. 4. The 
Court of Peculiars. 5. The Prerogative Court. 6. The Court of Delegates, 
which is the great court of appeals in all ecclesiastical causes. 7. The 
Court of Convocation. 8. The Court of Audience. 9. The Court of Faculties. 
10. The Court of Commissioners of Review. 

ECCLESIASTICAL LAW. By this phrase it is intended to include all those rules 
which govern ecclesiastical tribunals. Vide Law Canon. 

ECCLESIASTICS, canon law. Those persons who compose the hierarchical state of

the church. They are regular and secular. Aso & Man. Inst. B. 2, t. 5, c. 4, 
Sec. 1. 

ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease accompanied by 
apoplectic convulsions, and which produces aberration of mind at childbirth. 
The word Eclampsia is of Greek origin - Significat splenaorem fulgorem 
effulgentiam, et emicationem quales ex oculis aliquando prodeunt. 
Metaphorice sumitur de emicatione flammae vitalis in pubertate et aetaeis 
vigore. Castelli, Lex. Medic. 
     2. An ordinary person, it is said, would scarcely observe it, and it 
requires the practised and skilled eye of a physician to discover that the
patient is acting in total unconsciousness of the nature and effect of her 
acts. There can be but little doubt that many of the tragical cases of 
infanticide proceed from this cause. The criminal judge and lawyer cannot 
inquire with too much care into the symptoms of this disease, in order to 
discover the guilt of the mother, where it exists, and to ascertain her 
innocence, where it does not. See two well reported cases of this kind in 
the Boston Medical Journal, vol. 27, No. 10, p. 161. 

EDICT. A law ordained by the sovereign, by which he forbids or commands 
something it extends either to the whole country, or only to some particular 
provinces. 
     2. Edicts are somewhat similar to public proclamations. Their 
difference consists in this, that the former have authority and form of law 
in themselves, whereas the latter are at most, declarations of a law, before 
enacted by congress, or the legislature. 
     3. Among the Romans this word sometimes signified, a citation to appear 
before a judge. The edict of the emperors, also called constitutiones 
principum, were new laws which they made of their own motion, either to 
decide cases which they had foreseen, or to abolish or change some ancient 
laws. They were different from their rescripts or decrees. These edicts were 
the sources which contributed to the formation of the Gregorian, 
Hermogenian, Theodosian, and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1, 
2, 7; Code, 1, 1 Nov. 139. 

EDICT PERPETUAL. The title of a compilation of all the edicts. This 
collection was made by Salvius Julianus, a jurist who was, selected by the 
emperor Adrian for the purpose, and who performed his task with credit to 
himself. 

EDICTS OF JUSTINIAN. These are thirteen constitutions or laws of that 
prince, found in most editions of the corpus juris civilis, after the 
Novels. Being confined to matters of police in the provinces of the empire, 
they are of little use. 

EFFECT. The operation of a law, of an agreement, or an act, is called its 
effect. 
     2. By the laws of the United States, a patent cannot be granted for an 
effect only, but it may be for a new mode or application of machinery to 
produce effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H. 
R. 61. 

EFFECTS. This word used simpliciter is equivalent to property or, worldly 
substance, and may carry the whole personal estate, when used in a will. 5 
Madd. Ch. Rep. 72; Cowp. 299; 15 Ves. 507; 6 Madd. Ch. R. 119. But when it 
is preceded and connected with words of a narrower import, and the bequest 
is not residuary, it will be confined to species of property ejusdem generis 
with those previously described. 13 Ves. 39; 15 Ves. 826; Roper on Leg. 210. 

EFFIGY, crim. law. The figure or representation of a person.
     2. To make the effigy of a person with an intent to make him the object 
of ridicule, is a libel. (q.v.) Hawk. b. 1, c. 7 3, s. 2 14 East, 227; 2 
Chit. Cr. Law, 866. 
     3. In France an execution by effigy or in effigy is adopted in the case 
of a criminal who has fled from justice. By the public exposure or 
exhibition of a picture or representation of him on a scaffold, on which his 
name and the decree condemning him are written, he is deemed to undergo the 
punishment to which he has been sentenced. Since the adoption of the Code 
Civil, the practice has been to affix the names, qualities or addition, and 
the residence of the condemned person, together with an extract from the 
sentence of condemnation, to a post set upright in the ground, instead of 
exhibiting a portrait of him on the scaffold. Repertoire de Villargues; 
Biret, Vo cab. 

EFFRACTION. A breach, made by the use of force.

EFFRACTOR. One who breaks through; one who commits a burglary.

EGO. I, myself. This term is used in forming genealogical tables, to 
represent the person who is the object of inquiry. 

EIGNE, persons. This is a corruption of the French word aine, eldest or 
first born. 
     2. It is frequently used in our old law books, bastard eigne. signifies 
an elder bastard when spoken of two children, one of whom was; born before 
the marriage of his parents, and the other after; the latter is called 
mulier puisne. Litt. sect. 399. 

EIRE, or EYRE, English law. A journey. Justices in eyre, were itinerant 
judges, who were sent once in seven years with a general commission in 
divers counties, to hear and determine such causes as were called pleas of 
the crown. Vide Justices in eyre. 

EJECTMENT, remedies. The name of an action which lies for the recovery of 
the possession of real property, and of damages for the unlawful detention. 
In its nature it is entirely different from a real action. 2 Term Rep; 696, 
700. See 17 S. & R. 187, and, authorities cited. 
     2. This subject may be considered with reference, 1st. To the form of 
the, proceedings. 2d. To the nature of the property or thing to be 
recovered. 3d. To the right to such property. 4th. To the nature of the 
ouster or injury. 5th. To the judgment. 
     3.-1. In the English practice, which is still adhered to in some 
states, in order to lay the foundation of this action, the party claiming 
title enters upon the land, and then gives a lease of it to a third person, 
who, being ejected by the other claimant, or some one else for him, brings a 
suit against, the ejector in his own name; to sustain the action the lessee 
must prove a good title in the lessor, and, in this collateral way, the 
title is tried. To obviate the difficulty of proving these forms, this 
action has been made, substantially, a fictitious process. The defendant 
agrees, and is required to confess that a lease was made to the plaintiff, 
that he entered under it, and has been ousted by the defendant, or, in other 
words, to admit lease, entry, and ouster, and that he will rely only upon 
his title. An actual entry, however, is still supposed, and therefore, an 
ejectment will not lie, if the right of entry is gone. 3 Bl. Com. 199 to 
206. In Pennsylvania, New York, Arkansas, and perhaps other states, these 
fictions have all been abolished, and the writ of ejectment sets forth the 
possession of the plaintiff, and an unlawful entry on the part of the 
defendant. 
     4.-2. This action is in general sustainable only for the recovery of 
the possession of property upon which an entry might in point of fact be 
made, and of which the sheriff could deliver actual possession: it cannot, 
therefore, in general, be sustained for the recovery of property which, in 
legal consideration, is not tangible; as, for a rent, or other incorporeal 
hereditaments, a water-course, or for a mere privilege of a landing held in 
common with other citizens of a town. 2 Yeates, 331; 3 Bl. Com. 206; Yelv. 
143; Run. Eject. 121 to 136 Ad. Eject. c. 2; 9 John. 298; 16 John. 284. 
     5.-3. The title of the party having a right of entry maybe in fee-
simple, fee-tail, or for life or years; and if it be the best title to the 
property the plaintiff will succeed. The plaintiff must recover on the 
strength. of his title, and not on the weakness or deficiency of that of the 
defendant. Addis. Rep. 390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 
Burr. 2487; 1 East, R. 246; Run. Eject. 15; 5 T. R. 110. 
     6.-4. The injury sustained must in fact or in point of law have 
amounted to an ouster or dispossession of the lessor of the plaintiff, or of 
the plaintiff himself, where the fictions have been abolished; for if there 
be no ouster, or the defendant be not in possession at the time of bringing 
the action, the plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' 
R. 335. 
     7.-5. The judgment is that the plaintiff do recover his term, of and 
in the tenements, and, unless the damages be remitted, the damages assessed 
by the jury with the costs of increase. In Pennsylvania, however, and, it is 
presumable, in all those states where the fictitious form of this action has 
been abolished, the plaintiff recovers possession of the land generally, and 
not simply a term of years in the land. See 2 Seam. 251; 4 B. Monr. 210; 3 
Harr. 73; 1 McLean, 87. Vide, generally, Adams on Ej.; 4 Bouv. Inst. n., 
3651, et seq.; Run. Ej.; Com. Dig. h.t.; Dane's Ab. h.t.; 1 Chit. Pl. 188 
to 193; 18 E. C. L. R. 158; Woodf. L. & T. 354 to 417; 2 Phil. Ev. 169.; 8 
Vin. Ab. 323; Arch. Civ. Pl. 503; 2 Sell. Pr. 85; Chit. Pr. Index, h.t.; 
Bac. Ab. h. t Doct. Pl. 227; Am. Dig. h.t.; Report of the Commissioners to 
Revise the Civil Code of Pennsylvania, January 16, 1835, pp. 80, 81, 83; 
Coop. Justinian, 448. 

EJUSDEM GENERIS. Of the same kind. 
     2. In the construction of laws, wills and other instruments, when 
certain things are enumerated, and then a phrase is used which might be 
construed to include other things, it is generally confined to things 
ejusdem generas; as, where an act (9 Ann. C. 20) provided that a writ of quo 
warranto might issue against persons who should usurp "the offices of 
mayors, bailiffs, port reeves, and other offices, within the cities, towns, 
corporate boroughs, and places, within Great Britain," &c.; it was held that 
"other offices" meant offices ejusdem generis; and that the word "places" 
signified places of the same kind; that is, that the offices must be 
corporate offices, and the places must be corporate Places. 5 T. R. 375,379; 
5 B. & C. 640; 8 D. & Ry. 393; 1 B. & C. 237. 
     3. So, in the construction of wills, when certain articles are 
enumerated, the terra goods is to be restricted to those ejusdem generis. 
Bac. Ab. Legacies, B; 3 Rand. 191; 3 Atk. 61; Abr. Eq. 201; 2 Atk. 113. 

ELDEST. He or she who has the greatest age.
     2. The laws of primogeniture are not in force in the United States; the 
eldest child of a family cannot, therefore, claim any right in consequence 
of being the eldest. 

ELECTION. This term, in its most usual acceptation, signifies the choice 
which several persons collectively make of a person to fill an office or 
place. In another sense, it means the choice which is made by a person 
having the right, of selecting one of two alternative contracts or rights. 
Elections, then, are of men or things. 
     2.-1. Of men. These are either public elections, or elections by 
companies or corporations. 
     3.-1. Public elections. These should be free and uninfluenced either 
by hope or fear. They are, therefore, generally made by ballot, except those 
by persons in their representative capacities, which are viva voce. And to 
render this freedom as perfect as possible, electors are generally exempted 
from arrest in all cases, except treason, felony, or breach of the peace, 
during their attendance on election, and in going to and returning from 
them. And provisions are made by law, in several states, to prevent the 
interference or appearance of the military on the election ground. 
     4. One of the cardinal principles on the subject of elections is, that 
the person who receives a majority or plurality of votes is the person 
elected. Generally a plurality of the votes of the electors present is 
sufficient; but in some states a majority of all the votes is required. Each 
elector has one vote. 
     5.-2. Elections by corporations or companies are made by the members, 
in such a way its their respective constitutions or charters direct. It is 
usual in these cases to vote a greater or lesser number of votes in 
proportion as the voter has a greater or less amount of the stock of the 
company or corporation, if such corporation or company be a pecuniary 
institution. And the members are frequently permitted to vote by proxy. See 
7 John. 287; 9 John. 147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend. 
509; 1 Wend. 98. 
     6.-2. The election of things. 1. In contracts, when a; debtor is 
obliged, in an alternative obligation, to do one of two things, as to pay 
one hundred dollars or deliver one hundred bushels of wheat, he has the 
choice to do the one or the other, until the time of payment; he has not the 
choice, however, to pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No. 
247; 11 John. 59. Or, if a man sell or agree to deliver one of two articles, 
as a horse or an ox, he has the election till the time of delivery; it being 
a rule that "in case an election be given of two several things, always be, 
which is the first agent, and which ought to do the first act, shall have 
the election." Co. Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure 
of the person who has the right to make his election in proper time, the 
right passes to the opposite party. Co. Litt. 145, a; Viner, Abr. Election, 
B, C; Poth. Obl. No. 247; Bac. Ab. h.t. B; 1 Desaus. 460; Hopk. R. 337. It 
is a maxim of law, that an election once made and pleaded, the party is 
concluded, electio semel facta, et placitum testatum, non patitur regressum. 
Co. Litt. 146; 11 John. 241. 
     7.-2. Courts of equity have adopted the principle, that a person shall 
not be permitted to claim under any instrument, whether it be a deed or 
will, without giving full effect to it, in every respect, so far as such 
person is concerned. This doctrine is called into exercise when a testator 
gives what does not belong to him, but to some other person, and gives, to 
that person some estate of his own; by virtue of which gift a condition is 
implied, either that he shall part with his own estate or shall not take the 
bounty. 9 Ves. 515; 10 Ves. 609; 13 Ves. 220. In such a case, equity will 
not allow the first legatee to, insist upon that by which he would deprive 
another legatee under the same will of the benefit to which he would be 
entitled, if the first legatee permitted the whole will to operate, and 
therefore compels him to make his election between his right independent of 
the will, and the benefit under it. This principle of equity does not give 
the disappointed legatee the right to detain the thing itself, but gives a 
right to compensation out of something else. 2 Rop. Leg. 378, c. 23, s. 1. 
In order to impose upon a party, claiming under a will, the obligation of 
making an election, the intention of the testator must be expressed, or 
clearly implied in the will itself, in two respects; first, to dispose of 
that which is not his own; and, secondly, that the person taking the benefit 
under the will should, take under the condition of giving effect thereto. 6 
Dow. P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492; 3 Bro. C. C. 
255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves. jr. 367, 371; 3 Ves. 
jr. 65; Amb. 433; 3 Bro. P. C. by Toml. 277; 1 B. & Beat. 1; 1 McClel. R. 
424, 489, 541. See, generally, on this doctrine, Roper's Legacies, c. 23; 
and the learned notes of Mr. Swanston to the case Dillon v. Parker, 1 
Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3 Desaus. R. 504; 8 
Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13 Price, 
R. 607; 1 McClel. R. 439; 1 Y. & C. 66; 2 Story, Eq. Jur. Sec. 1075 to 1135; 
Domat, Lois Civ. liv. 4, tit. 2, Sec. 3, art. 3, 4, 5; Poth. Pand. lib. 30, 
t. 1, n. 125; Inst. 2, 20, 4; Dig. 30, 1, 89, 7. 
     8. There are many other cases where a party may be compelled to make an 
election, which it does not fall within the plan of this work to consider. 
The reader will easily inform himself by examining the works above referred 
to. 
     9.-3. The law frequently gives several forms of action to the injured 
party, to enable him to recover his rights. To make a proper election of the 
proper remedy is of great importance. To enable the practitioner to make the 
best election, Mr. Chitty, in his valuable Treatise on Pleadings, p. 207, et 
seq., has very ably examined the subject, and given rules for forming a 
correct judgment; as his work is in the hands of every member of the 
profession, a reference to it here is all that is deemed necessary to say on 
this subject. See also, Hammond on Parties to Actions; Brown's Practical 
Treatise on Actions at Law, in the 45th vol. of the Law Library; U. S. Dig. 
Actions IV. 

ELECTION OF ACTIONS, practice. It is frequently at the choice of the 
plaintiff what kind of an action to bring; a skillful practitioner would 
naturally select that in which his client can most easily prove what is his 
interest in the matter affected; may recover all his several demands against 
the defendant; may preclude the defendant from availing himself of a 
defence, which be might otherwise establish; may most easily introduce his 
own evidence; may not be embarrassed by making too. many or too few persons 
parties to the suit; may try it in the county most convenient to himself; 
may demand bail where it is for the plaintiff's interest; may obtain a 
judgment with the least expense and delay; may entitle himself to costs; and 
may demand bail in error. 1 Chit. Pl. 207 to 214. 
     2. It may be laid down as a general rule, that when a statute 
prescribes a new remedy, the plaintiff has his election either to adopt such 
remedy, or proceed at common law. Such statutory remedy is cumulative, 
unless the statute expressly, or by necessary implication takes away the 
Common law remedy. 1 S. & R. 32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 
John. 220; 1 Call, 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383; 4 
Halst. 384; 3 Chit. Pr. 130. 

ELECTION OF A DEVISE OR LEGACY. It is an admitted principle, that a person 
shall not be permitted to claim under any instrument, whether it be a deed 
or a will, without giving full effect to it in every respect, so far as such 
person is concerned. When a testator, therefore, gives what belongs to 
another and not to him, and gives to the owner some estate of his own; this 
gift is under an implied condition, either that he shall part with his own 
estate, or not take the bounty. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves. 
697; 1 Suppl. to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator 
undertakes to dispose of an estate belonging to B, and devise to B other 
lands, or bequeath to him a legacy by the same will, B will not be permitted 
to keep his own estate, and enjoy at the same time the benefit of the devise 
or bequest made in his favor, but must elect whether he will part with his 
own estate, and accept the provisions in the will, or continue in possession 
of the former and reject the latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst. 
436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201; 
1 Dev. Eq. R. 283; 3 Desaus. 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1 
Whart. 490; 5 Dana, 345; White's L. C. in Eq. *233. 
     2. The foundation of the equitable doctrine of election, is the 
intention, explicit or presumed, of the author of the instrument to which it 
is applied, and such is the, import of the expression by which it is 
described as proceeding, sometimes on a tacit, implied, or constructive 
condition, sometimes on equity. See Cas. temp. Talb. 183; 2 Vern. 582; 2 
Ves. 14; 1 Eden, R. 536; 1 Ves. 306. See, generally, 1 Swan. 380 to 408, 
414, 425, 432, several very full notes. 
     3. As to what acts of acceptance or acquiescence will constitute an 
implied election, see 1 Swan. R. 381, n. a; and the cases there cited. 

ELECTOR, government. One who has the right to make choice of public officers 
one, who has a right to vote. 
     2. The qualifications of electors are generally the same as those 
required in the person to be elected; to this, however, there is one 
exception; a naturalized citizen may be an elector of president of the 
United States, although he could not constitutionally be elected to that 
office. 

ELECTORS OF PRESIDENT. Persons elected by the people, whose sole duty is to 
elect a president and vice-president of the U. S. 
     2. The Constitution provides, Am. art. 12, that "the electors shall 
meet in their respective states, and vote by ballot for president and vice-
president, one of whom at least shall not be an inhabitant of the same state 
with themselves; they shall name in their ballots the person voted for as 
president, and in distinct ballots the person voted for as vice-president; 
and they shall make distinct lists of all persons voted fur as president, 
and of all persons voted for as vice-president, and of the number of votes 
for each; which list they shall sign and certify, and transmit, sealed, to 
the seat of the government of the United States, directed to the president 
of the senate; the president of the senate shall, in the presence of the 
senate and the house of representatives, open all the certificates, and the 
votes shall then be counted; the person having the greatest number of, votes 
for president, shall be the president, if such number be the majority of the 
whole number of electors appointed; and if no, person have such majority, 
then from the persons having the highest numbers, not exceeding three, on 
the list of those voted for as president, the house of representatives shall 
choose immediately, by ballot, the president. But in choosing the president, 
the votes shall be taken by states, the representation from each state 
having one vote; a quorum, for this purpose, shall consist of a member or 
members from two-thirds of the states, and a majority of all the states 
shall be necessary to a choice. And if the house of representatives shall 
not choose a president whenever the right of choice shall devolve upon them, 
before the fourth day of March next following, then the vice-president shall 
act as president, as in the case of the death or other constitutional 
disability of the president. 
     3.-2. "The person having the greatest number of votes as vice-
president shall be vice-president, if such number be a majority of the whole 
number of electors appointed and if no person have a majority, them from the 
two highest numbers on the list, the senate shall choose the vice-president; 
a quorum for the purpose shall consist of two-thirds of the whole number of 
senators, and a majority of the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the office of president, shall 
be eligible to that of vice-president of the United States." Vide 3 Story, 
Const. Sec. 1448 to 1470. 

ELEEMOSYNARY. Charitable alms-giving.
     2. Eleemosynary corporations are colleges, schools, and hospitals. 1 
Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R. 346. 

ELEGIT, Eng. practice, remedies. A writ of execution directed to the 
sheriff, commanding him to make delivery of a moiety of the party's land, 
and all his goods, beasts of the plough only excepted. 
     2. The sheriff, on the receipt of the writ, holds an inquest to 
ascertain the value of the lands and goods he has seized, and then they are 
delivered to the plaintiff, who retains them until the whole debt and 
damages have been paid and satisfied; during that term he is called tenant 
by elegit. Co. Litt. 289. Vide Pow. Mortg. Index, h.t.; Wats. Sher. 206. As 
to the law of the several states on the subject. of seizing land and 
extending it. see 1 Hill. Ab. 556-6. 

ELIGIBILITY. Capacity to be elected. 
     2. Citizens are in general eligible to all offices; the exceptions 
arise from the want of those qualifications which the constitution requires; 
these are such as regard his person, his property, or relations to the 
state. 
     3.- 1. In. general, no person is eligible to any office, until he has 
attained the full age of twenty-one years; no one can be elected a senator 
of the United States, who shall not have attained the age of thirty years, 
been a 'citizen of th e United States nine years and who shall not be an 
inhabitant of the, state for which he shall be chosen. Const. art. 1, s. 3. 
No person, except a natural born citizen, or a citizen of the United States 
at the time of the adoption of this constitution, is eligible to the office 
of president, and no person shall be eligible to that office, who shall not 
have attained the age of thirty-five years, and been fourteen years a 
resident within the United States. Const. art. 2, s. 1. 
     4.-2. A citizen may be ineligible in consequence of his relations to 
the state; for example, holding an office incompatible with the office 
sought. Vide Ineligibility. Because he has not paid the taxes the law 
requires; because he has not resided a sufficient length of time in the 
state. 
     5.-3. He may be ineligible for want of certain property 
qualifications required by some, law. 

ELISORS, practice. Two persons appointed by the court to return a jury, when 
the sheriff and the coroner have been challenged as incompetent; in this 
case the elisors return the writ of venire directed to them, with a panel of 
the juror's names, and their return is final, no challenge being allowed to 
their array. 3 Bl. Com. 355,; 3  Cowen, 296; 1 Cowen, 32. 

ELL. A measure of length. In old English the word signifies arm, which sense 
it still retains in the word elbow. Nature has no standard of measure. The 
cubit, the ell, the span, palm, hand, finger, (being taken from the 
individual who uses them) varies. So of the foot, pace, mile, or mille 
passuum. See Report on Weights and Measures, by the Secretary of State of 
the United. States, Feb. 22, 1821; Fathom. 

ELOIGNE, practice. This word signifies, literally, to remove to a distance; 
to remove afar off. It is used as a return to a writ of replevin, when the 
chattels have been removed out of the way of the sheriff. Vide Elongata. 

ELONGATA, practice. There turn made by the sheriff to a writ of replevin, 
when the goods have been removed to places unknown to him. See, for the form 
of this return, Wats. Sher. Appx. c. 18, s. 3, p. 454; 3 Bl. Com. 148. 
     2. On this return the plaintiff is entitled to a capias in withernam. 
Vide Withernam, and Wats. Sher. 300, 301. The word eloigne, (q.v.) is 
sometimes used as synonymous with elongata. 

ELOPEMENT. This term is used to denote the departure of a married woman from 
her husband, and dwelling with an adulterer. 
     2. While the wife resides with her husband, and cohabits with him, 
however exceptionable her conduct may be, yet he is bound to provide her 
with necessaries, and to pay for them; but when she elopes, the husband is 
no longer liable for her alimony, and is not bound to pay debts of her 
contracting when the separation is notorious; and whoever gives her credit 
under these circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R. 
42; 3 Pick. R. 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12 
John. R. 293; Bull. N. P. 135; Stark. Ev. part 4, p. 699. 

ELOQUENCE OR ORATORY. The act or art of speaking well upon any subject with 
a view to persuade. It comprehends a good elocution, correct and appropriate 
expressions uttered. with fluency, animation and suitable action. The 
principal rules of the art, which must be sought for in other works, are 
summarily expressed in the following lines: 

      " Be brief, be pointed; let your matter stand
      Lucid in order, solid, and at hand;
      Spend not your words on trifles, but condense;
      Strike with the mass of thoughts, not drops of sense;
      Press to the close with vigor once begun,
      And leave, (how hard the task!) leave off when done;
      Who draws a labor'd length of reasoning out,
      Put straws in lines for winds to whirl about;
      Who draws a tedious tale of learning o'er,
      Counts but the sands on ocean's boundless shore;
      Victory in law is gain'd as battle's fought,
      Not by the numbers, but the forces brought;
      What boots success in skirmishes or in fray,
      If rout and ruin following close the day?
      What worth a hundred Posts maintained with skill,
      If these all held, the foe is victor still?
      He who would win his cause, with power must frame
      Points of support, and look with steady aim:
      Attack the weak, defend the strong with art,
      Strike but few blows, but strike them to the heart;
      All scatter'd fires but end in smoke and noise,
      The scorn of men, the idle play of boys.
      Keep, then, this first great precept ever near,
      Short be your speech, your matter strong and clear,
      Earnest your manner, warm and rich your style,
      Severe in taste, yet full of grace the while;
      So may you reach the loftiest heights of fame,
      And leave, when life is past, a deathless name."

ELSEWHERE. In another place. 
     2. Where one devises all his land in A, B and C, three distinct towns, 
and elsewhere, and had lands of much greater value than those in A, B and C, 
in another county, the lands in the other county were decreed to pass by the 
word elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J., 
and other judges, the word elsewhere, was adjudged to be the same as if the 
testator had said he devised all his lands in the three towns particularly 
mentioned, or in any other place whatever. 3 P. Wms. 5 6. See also Prec. 
Chan. 202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id. 808; 2 Barr. 
912; 5 Bro. P. C. 496; S. C. 1 East, 456; 1 Vern. 4 n. 
     3.-2. As to the effect of the word elsewhere, in the case of lands 
not purchased at the time of making the will, see 3 Atk. 254; 2 Vent. 351. 
Vide Alibi. 

EMANCIPATION. An act by which a person, who was once in the power of 
another, is rendered free. B y the laws of Louisiana, minors may be 
emancipated. Emancipation is express or implied. 
     2. Express emancipation. The minor may be emancipated by his father, 
or, if be has no father, by his mother, under certain restrictions. This 
emancipation takes place by the declaration, to that effect, of the father 
or mother, before a notary public, in the presence of two witnesses. The 
orphan minor may, likewise, be emancipated by the judge, but not before he 
has arrived at the full age of eighteen years, if the family meeting, called 
to that effect, be of opinion that he is able to administer his property. 
The minor may be emancipated against the will of his father and mother, when 
they ill treat him excessively, refuse him support, or give him corrupt 
example. 
     3. The marriage of the minor is an implied emancipation.
     4. The minor who is emancipated has the full administration of his 
estate, and may pass all act's which may be confined to such administration; 
grant leases, receive his revenues and moneys which may be due him, and give 
receipts for the same. He cannot bind himself legally, by promise or 
obligation, for any sum exceeding the amount of one year of his revenue. 
When he is engaged in trade, he is considered as leaving arrived to the age 
of majority, for all acts which have any relation to such trade. 
     5. The emancipation, whatever be the manner in. which it may have been 
effected, may be revoked, whenever the minor contracts engagements which 
exceed the limits prescribed by law. 
     6. By the English law, filial emancipation is recognized, chiefly, in 
relation to the parochial settlement of paupers. See 3 T. R. 355; 6 T. R. 
247; 8 T. R. 479; 2 East, 276; 10 East, 88.; 11 Verm. R. 258, 477. See 
Manumission. See Coop. Justin. 441, 480; 2 Dall. Rep. 57, 58; Civil Code of 
Louisiana, B. 1, tit. 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de 
Droit, par Ferriere; Diet. de Jurisp. art. Emancipation. 

EMBARGO, maritime law. A proclamation, or order of state, usually issued in 
time of war, or threatened hostilities, prohibiting the departure of ships 
or goods from some, or all the ports of such state, until further order. 2 
Wheat. 148. 
     2. The detention of ships by an embargo is such an injury to the owner 
as to entitle him to recover on a policy of insurance against "arrests or 
detainments." And whether the embargo be legally or illegally laid, the 
injury to the owner is the same; and the insurer is equally liable for the 
loss occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 
Bell's Com. 517, 5th ed. 
     3. An embargo detaining a vessel at the port of departure, or in the 
course of the voyage, does not, of itself, work a dissolution of a charter 
party, or the contract with the seamen. It is only a temporary restraint 
imposed by authority for legitimate political purposes, which suspends, for 
a time, the performance of such contracts, and leaves the rights of parties 
untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325, 
3 B. & P. 405-434; 4 East, R. 546-566. 

EMBEZZLEMENT, crim. law. The fraudulently removing and secreting of personal 
property, with which the party has been entrusted, for the purpose of 
applying it to his own use. 
     2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides, 
that if any person, within any of the laces under the sole and exclusive 
jurisdiction of the United States, or upon the high seas, shall take and 
carry away, with an intent to steal or purloin, the personal goods of 
another; or if any person or persons, having, at any time hereafter, the 
charge or custody of any arms, ordnance, munition, shot, powder, or 
habiliments of war, belonging to the. United States, or of any victuals 
provided for the victualling of any soldiers, gunners, marines, or pioneers, 
shall, for any lucre or gain, or wittingly, advisedly, and of purpose to 
hinder or impede the service of the United States, embezzle, purloin, or 
convey away, any of the said arms, ordnance, munition, shot or powder, 
habiliments of war, or victuals, that then, and in every of the cases 
aforesaid, the persons so offending, their counsellors, aiders and abettors, 
(knowing of, and privy to the offences aforesaid,) shall, on conviction, be 
fined, not exceeding the fourfold value of the property so stolen, embezzled 
or purloined the one moiety to be paid to the owner of the goods, or the 
United States, as the case may be, and the other moiety to the informer and 
prosecutor, and be publicly whipped, not exceeding thirty-nine stripes. 
     3. The Act of April 20, 1818, 3 Story, 1715, directs that wines and 
distilled spirits shall, in certain cases, be deposited in the public 
warehouses of the United States, and then it is enacted, s. 5, that if any 
wines, or other spirits, deposited under the provisions of this act, shall 
be embezzled, or fraudulently hid or removed, from any store or place 
wherein they shall have been deposited, they shall be forfeited, and the 
person or persons so embezzling, hiding, or removing the same, or aiding or 
assisting therein, shall be liable to the same pains and penalties as if 
such wines or spirits had been fraudulently unshipped or landed without 
payment of duty. 
     4. By the 21st section of the act to reduce into one the several acts 
establishing and regulating the post-office, passed March 3, 1825, 3 Story, 
1991, the offence of embezzling letters is punished with fine and 
imprisonment. Vide Letter. 
     5. The act more effectually to provide for the punishment of certain 
crimes against the United States, and for other purposes, passed March 3, 
1825, s. 24, 3 Story, 2006, enacts, that if any of the gold or silver coins 
which shall be struck or coined at the mint of the United States, shall be 
debased, or made worse, as to the proportion of fine gold or fine silver 
therein contained, or shall be of less weight or value than the same ought 
to be, pursuant to the several acts relative thereto, through the default or 
with the connivance of any of the officers or persons who shall be employed 
at the said mint, for the purpose of profit or gain, or otherwise, with a 
fraudulent intent and if any of the said officers or persons shall embezzle 
any of the metals which shall, at any time, be committed to their charge for 
the purpose of being coined; or any of the coins which shall be struck or 
coined, at the said mint; every such officer, or person who shall commit 
any, or either, of the said offences, shall be deemed guilty of felony, and 
shall be sentenced to imprisonment and hard labor for a term not less than 
one year, nor more than ten years, and shall be fined in a sum not exceeding 
ten thousand dollars. 
     6. When an embezzlement of a part of the cargo takes place on board of 
a ship, either from the fault, fraud, connivance or negligence of any of the 
crow, they are bound to contribute to the reparation of the loss, in 
proportion to their wages. When the embezzlement is fixed on any individual, 
he is solely responsible; when it is made by the crew, or some of the crew, 
but the particular offender is unknown, and from the circumstances of the 
case, strong presumptions of guilt apply to the whole crew, all must 
contribute. The presumption of innocence is always in favor of the crew, and 
the guilt of the parties must be established, beyond all reasonable doubt, 
before they can be required to contribute. 1 Mason's R. 104; 4 B. & P. 347; 
3 Johns. Rep. 17; 1 Marsh. Ins. 241; Dane's Ab. Index, h.t.; Wesk. Ins. 
194; 3 Kent, Com., 151; Hardin, 529. 

EMBLEMENTS, rights. By this term is understood the crops growing upon the 
land. By crops is here meant the products of the earth which grow yearly and 
are raised by annual expense and labor, or "great manurance and industry," 
such as grain; but not fruits which grow on trees which are not to be 
planted yearly, or grass, and the like, though they are annual. Co. Litt. 
55, b; Com. Dig. Biens, G; Ham. Part. 183, 184. 
     2. It is a general rule, that when the estate is terminated by the act 
of God in any other way than by the death of the tenant for life, or by act 
of the law, the tenant is entitled to the enablements; and when he dies 
before harvest time, his executors shall have the emblements, as a return 
for the labor and expense of the deceased in tilling the ground. 9 Johns. R. 
112; 1 Chit. P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 
4; Bac. Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.; Dane's Ab. 
Index, h.t.; 1 Penna. R. 471; 3 Penna. 496; Ang. Wat. Co. 1 Bouv. Inst. 
Index, h.t. 

EMBRACEOR, criminal law. He who, when a matter is on trial between party and 
party, comes to the bar with one of the parties, and having received some 
reward so to do, speaks in the case or privily labors the jury, or stands 
there to survey or overlook them, thereby to put them in fear and doubt of 
the matter. But persons learned in the law may speak in a case for their 
clients. Co. Litt. 369; Terms de la Ley. A person who is guilty of 
embracery. (q.v.) 

EMBRACERY, crim. law. An attempt to corrupt or influence a jury, or any way 
incline them to be more favorable to the one side than to the other, by 
money, promises, threats, or persuasions; whether the juror on whom such 
attempt is made give any verdict or not, or whether the Verdict be true or 
false. Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a; Hob. 294; 
Dy. 84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod. 111, 118; Com. 601; 5 
Cowen, 503. 

EMENDALS, Eng. law. This ancient word is said to be used in the accounts of 
the inner temple, where so much in emendals at the foot of an account 
signifies so much in bank, in stock, for the supply of emergencies. Cunn. 
Law Dict. 

EMIGRANT. One who quits his country for any lawful reason, with a design to 
settle elsewhere, and who takes his family and property, if he has any, with 
him. Vatt. b. 1, c. 19, Sec. 224. 

EMIGRATION. The act of removing from one place to another. It is sometimes 
used in the same sense as expatriation, (q.v.) but there is some difference 
in the signification. Expatriation is the act of abandoning one's country, 
while emigration is, perhaps not strictly, applied to the act of removing 
from one part of the country to another. Vide 2 Kent, Com. 36. 

EMINENCE; A title of honor given to cardinals.

EMINENT DOMAIN. The right which people or government retain over the estates 
of individuals, to resume the same for public use. 
     2. It belongs to the legislature to decide what improvements are of 
sufficient importance to justify the exercise of the right of eminent 
domain. See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am. Eq. Dig. 312 3 Toull. n. 
30 p. 23; Ersk. hist. B. 2) tit. 1, s. 2; Grotius, h.t. See Dominium. 

EMISSARY. One who is sent from one power or government into another nation 
for the purpose of spreading false rumors and to cause alarm. He differs 
from a spy. (q.v.) 

EMISSION, med. jur. The act by which any matter whatever is thrown from the 
body; thus it is usual to say, emission of urine, emission of semen, &c. 
     2. In cases of rape, when the fact of penetration is proved, it may be 
left to the jury whether emission did or did not take place. Proof of 
emission would perhaps be held to be evidence of penetration. Addis. R. 143; 
2 So. Car. Const. R. 351; 2 Chitty, Crim. Law, 810; 1 Beck's Med. Jur. 140 1 
Russ. C. & M. 560; 1 East, P. C. 437. 

TO EMIT. To put out; to send forth, 
     2. The tenth section of the first article of the constitution, contains 
various prohibitions, among which is the following: No state shall emit 
bills of credit. To emit bills of credit is to issue paper intended to 
circulate through the community for its ordinary purposes, as money, which 
paper is redeemable at a future day. 4 Pet. R. 410, 432; Story on Const. 
Sec. 1358. Vide Bills of credit. 

EMMENAGOGUES, med. jur. The name of a class of medicines which are believed 
to have the power. of favoring the discharge of the menses. These are black 
hellebore, savine, (vide Juneperius Sabina,) madder, mercury, polygala, 
senega, and pennyroyal. They are sometimes used for the criminal purpose of 
producing abortion. (q.v.) They always endanger the life of the woman. 1 
Beck's Medical Jur. 316; Dungl. Med. Diet. h.t.; Parr's Med. Dict. h.t.; 3 
Paris and Fonbl. Aled. Jur. 88. 

EMOLUMENT. The lawful gain or profit which arises from an office.

EMPALEMENT. A punishment in which a sharp polo was forced up the fundament. 
Encyc. Lond. h.t. 

TO EMPANEL, practice. To make a list or roll, by the sheriff or other 
authorized officer, of the names of jurors who are summoned to appear for 
the performance of such service as jurors are required to perform. 

EMPEROR, an officer. This word is synonymous with the Latin imperator; they 
are both derived from the. verb imperare. Literally, it signifies he who 
commands. 
     2. Under the Roman republic, the title emperor was the generic name 
given to the commanders-in-chief in the armies. But even then the 
application of the word was restrained to the successful commander, who was 
declared emperor by the acclamations of the army, and was afterwards honored 
with the title by a decree of the senate. 3. It, is now used to designate 
some sovereign prince who bears this title. Ayl. Pand. tit. 23. 

EMPHYTEOSIS, civil law. The name of a contract by which the owner of an 
uncultivated piece of land granted it to another either in perpetuity, or 
for a long time, on condition that he should: improve it, by building, 
planting or cultivating it, and should pay for it an annual rent; with a 
right to the grantee to alienate it, or transmit it by descent to his heirs, 
and under a condition that the grantor should never re-enter as long as the 
rent should be paid to him by the grantee or his assigns. Inst. 3, 25, 3. 18 
Toull. n. 144. 
     2. This has a striking resemblance to a ground-tent. (q.v.). See 
Nouveau Denisart, mot, Emphyteose; Merl. Reper. mot Emphyteose; Faber, De 
jure emphyt. Definit. 36; Code, 4, 66, 1. 

EMPIRE. This word signifies, first, authority or command; it is the power to 
command or govern those actions of men which would otherwise be free; 
secondly, the country under the government of an emperor but sometimes it is 
used to designate a country subject to kingly power, as the British empire. 
Wolff, Inst. Sec. 833. 

EMPLOYED. One who is in the service of another. Such a person is entitled to 
rights and liable to. perform certain duties. 
     2. He is entitled to a just compensation for his services; when there 
has been a special contract, to what has been agreed upon; when not, to such 
just recompense as he deserves. 
     3. He is bound to perform the services for which he has engaged 
himself; and for a violation of his engagement he may be sued, but he is not 
liable to corporal correction. An exception to this rule may be mentioned; 
on the ground of necessity, a sailor may be punished by reasonable 
correction, when it is necessary for the safety of the vessel, and to 
maintain discipline. 1 Bouv. Inst. n. 1001: 2 Id. n. 2296. 

EMPLOYEE. One who is authorized to act for another; a mandatory.

EMPLOYMENT. An employment is an office; as, the secretary of the treasury 
has a laborious and responsible employment; an agency, as, the employment of 
an auctioneer; it signifies also the act by which one is engaged to do 
something. 2 Mart. N. S. 672; 2 Harr. Cond. Lo. R. 778. 
     2. The employment of a printer to publish the laws of the United 
States, is not an office. 17 S. & R. 219, 223. See Appointment. 

EMPLOYER. One who has engaged or hired the services of another. He is 
entitled to rights and bound to perform duties. 
     2.-1. His rights are, to be served according to the terms of the 
contract. 2. He has a right against third persons for an injury to the 
person employed, or for harboring him, so as to deprive the employer of his 
services. 2 Bouv. Inst. n. 2295. 
     3. His duties are to pay the workman the compensation agreed upon, or 
if there be no special agreement, such just recompense as he deserves. Vide 
Hire; Hirer. 

EMPTION. The act of buying.

EMPTOR. A buyer; a purchaser.

EN DEMEURE. In default. This term is used in Louisiana. 3 N. S. 574. See 
Moral in. 

ENABLING POWERS. A term used in equity. When the donor of a power, who is 
the owner of the estate, confers upon persons not seised of the fee, the 
right of creating interests to take effect out of it, which could not be 
done by the donee of the power, unless by such authority; this is called an 
enabling power. 2 Bouv. Inst. n. 1928. 

TO ENACT. To establish by law; to perform or effect; to decree. The usual 
formula in making laws is, Be it enacted. 

ENCEINTE, med. jur. A French word, which signifies pregnant. 
     2. When a woman is pregnant, and is convicted of a capital crime, she 
cannot lawfully be punished till after her delivery. 
     3. in the English law, where a widow is suspected to feign herself with 
child, in order to produce a supposititious heir to the estate, the 
presumptive heir may have a writ de ventre inspiciendo, to examine whether 
she be with child or not. Cro. Eliz. 566; 4 Bro. C. C. 90. As to the signs 
of pregnancy, see 1 Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 
P. Wms. 591; 1 Cox, C. C. 297 and Pregnancy; Privement enceinte. 

ENCLOSURE. An artificial fence put around one's estate. Vide Close. 

ENCROACHMENT. An unlawful gaining upon the right or possession of another; 
as, when a man sets his fence beyond his line; in this case the proper 
remedy for the party injured is an action of ejectment, or an action of 
trespass. 

ENCUMBRANCE. A burden or charge upon an estate or property, so that it 
cannot be disposed of without being subject to it. A mortgage, a lien for 
taxes, are examples of encumbrances. 
     2. These do not affect the possession of the grantee, and may be 
removed or extinguished by a definite pecuniary value. See 2 Greenl. R. 22; 
5 Greenl. R. 94. 
     3. There are encumbrances of another kind which cannot be so removed, 
such as easements for example, a highway, or a preexisting right to take 
water from, the land. Strictly speaking, however, these are not 
encumbrances, but appurtenances to estates in other lands, or in the 
language of the civil law, servitudes. (q.v.) 5 Conn. R. 497; 10 Conn. R. 
422 15 John. R. 483; and see 8 Pick. R. 349; 2 Wheat. R. 45. See 15 Verm. R. 
683; l Metc. 480; 9 Metc. 462; 1 App. R. 313; 4 Ala. 21; 4 Humph. 99; 18 
Pick. 403; 1 Ala. 645; 22 Pick. 447; 11 Gill & John. 472. 

ENDEAVOR, crim. law. An attempt. (q.v.) Vide Revolt.

ENDORSEMENT. Vide Indorsement.

ENDOWMENT. The bestowing or assuring of a dower to a woman. It is sometimes 
used: metaphorically, for the setting a provision for a charitable 
institution, as the endowment of a hospital. 

ENEMY, international law. By this term is understood the whole body of a 
nation at war with another. It also signifies a citizen or subject of such a 
nation, as when we say an alien enemy. In a still more extended sense, the 
word includes any of the subjects or citizens of a state in amity with the 
United States, who, have commenced, or have made preparations for commencing 
hostilities against the United States; and also the citizens or subjects of 
a state in amity with the United States, who are in the service of a state 
at war with them. Salk. 635; Bac. Ab. Treason, G. 
     2. An enemy cannot, as a general rule, enter into any contract which 
can be enforced in the courts of law; but the rule is not without 
exceptions; as, for example, when a state permits expressly its own citizens 
to trade with the enemy; and perhaps a contract for necessaries, or for 
money to enable the individual to get home, might be enforced. 7 Pet. R. 
586. 
     3. An alien enemy cannot, in general, sue during the war, a citizen of 
the United States, either in the courts of, the United States, or those of 
the several states. 1 Kent, Com. 68; 15 John. R. 57 S. C. 16 John. R. 438. 
Vide Marsh. Ins. c. 2, s. 1; Park. Ins. Index. h.t.; Wesk. Ins. 197; Phil. 
Ins. Index. h.t.; Chit. Comm. Law, Index, h.t.; Chit. Law of Nations, 
Index, h.t. 
     4. By the term enemy is also understood, a person who is desirous of 
doing injury to another. The Latins had two terms to signify these two 
classes of persons; the first, or the public enemy, they called hostis, and 
the latter, or the private enemy, inimicus. 

TO ENFEOFF. To make a gift of any corporeal hereditaments to another. Vide 
Feoffment. 

TO ENFRANCHISE. To make free to incorporate a man in a society or body 
politic. Cunn. L. D. h.t. Vide Disfranchise. 

ENGAGEMENT. This word is frequently used in the French law to signify not 
only a contract, but the obligations arising from a quasi contract. The 
terms obligations (q.v.) and engagements, are said to be synonymous 17 
Toull. n. 1; but the Code seems specially to apply the term engagement to 
those obligations which the law, imposes on a man without the intervention 
of any contract, either on the part of the obligor or the obligee. Art. 
1370. 

ENGLESHIRE. A law was made by Canutus, for the preservation of his Danes, 
that when a man was killed, the hundred or town should be liable to be 
amerced, unless it could be proved that the person killed was an Englishman. 
This proof was called Engleshire. It consisted, generally, of the testimony 
of two males on the part of the father of him that had been killed, and two 
females on the part of his mother. Hal. Hist. P. C. 447; 4 Bl. Com. 195; 
Spelman, Gloss. See Francigena. 

TO ENGROSS, practice, conveyancing. To copy the rude draught of an 
instrument in a fair and large hand. See 3 Bouv. Inst. n, 2421, note. 

ENGROSSER. One who purchases large quantities of any commodities in order to 
have the command of the market, and to sell them again at high prices. 

TO ENJOIN. To command; to require; as, private individuals are not only 
permitted, but enjoined by law to arrest an offender when present at the 
time a felony is committed or dangerous wound given, on pain of fine and 
imprisonment if the wrong doer escape through their negligence. 1 Hale, 587; 
1 East, P. C. 298,304; Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. In a 
more technical sense, to enjoin, is to command or order a defendant in 
equity to do or not to do a particular thing by writ of injunction. Vide 
Injunction. 

TO ENLARGE. To extend; as, to enlarge a rule to plead, is to extend the time 
during which a defendant may plead. To enlarge, means also to set at 
liberty; as, the prisoner was enlarged on giving bail. 

ENLARGING. Extending or making more comprehensive; as an enlarging statute, 
which is one extending the common law. 

ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab. Coparceners, C. 
2. When partition is voluntarily made among coparceners in England, the 
eldest has the first choice, or primer election, (q.v.) and the part which 
she takes is called enitia pars. This right is purely personal, and 
descends; it is also said that even her assignee shall enjoy it; but this 
has also been doubted. The word enitia is said to be derived from the old 
French, eisne the eldest. Bac. Ab. Coparceners, C; Keilw. 1 a, 49 a; 2 And. 
21; Cro. Eliz. 18. 

ENJOYMENT. The right which a man possesses of receiving all the product of a 
thing for his necessity, his use, or his pleasure. 

ENLISTMENT. The act of making a contract to serve the government in a 
subordinate capacity, either in the army or navy. The contract so made, is 
also called an enlistment. See, as to the power of infants to enlist, 4 
Binn. 487; 5 Binn. 423; Binn. 255; 1 S. & R. 87; 11 S. & R. 93. 

ENORMIA. Wrongful acts. See Alia Enormia.

TO ENROLL. To register; to enter on the rolls of chancery, or other court's; 
to make a record. 

ENROLLMENT, Eng. law. The registering, or entering in the rolls of chancery, 
king's bench, common pleas, or exchequer, or by the clerk of the peace in 
the records of the quarter sessions, of any lawful act; as a recognizance, a 
deed of bargain and sale, and the like. Jacob, L. D. 

TO ENTAIL. To create an estate tail. Vide Tail. 

ENTIRE. That which is not divided; that which is whole. 
     2. When a contract is entire, it must in general be fully performed, 
before the party can claim the compensation which was to have been paid to 
him; for example, when a man hires to serve another for one year, he will 
not be entitled to leave him at any time before the end of the year, and 
claim compensation for the time, unless it be done by the consent or default 
of the party hiring. 6 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick. 
R. 209; 4 McCord's R. 26, 246; 4 Greenl. R. 454; 2 Penna. R. 454; 15 John. 
R. 224; 4 Pick. R. 114; 9 Pick. R. 298 19 John. R. 337; 4 McCord, 249; 6 
Harr. & John. 38. See Divisible. 

ENTIRETY, or, ENTIERTIE. This word denotes the whole, in contradistinction 
to moiety, which denotes the half part. A husband and wife, when jointly 
seized of land, are seized by entireties and not "pur mie" as joint tenants 
are. Jacob's Law Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. Johnson, 3 Penna. 
Law Journ. 350, 357. 

ENTREPOT. A warehouse; a magazine where goods are deposited, and which are 
again to be removed. 

ENTRY. criminal law. The unlawful breaking into a house, in order to commit 
a crime. In cases of burglary, the least entry with the whole or any part of 
the body, hand, or foot, or with any instrument or weapon, introduced for 
the purpose of committing a felony, is sufficient to complete the offence. 3 
Inst. 64. 

ENTRY, estates, rights. The taking possession of lands by the legal owner. 
   2. A person having a right of possession may assert it by a peaceable 
entry, and being in possession may retain it, and plead that it is his soil 
and freehold; and this will not break in upon any rule of law respecting the 
mode of obtaining the possession of lands. 3 Term Rep. B. R. 295. When 
another person has taken possession of lands or tenements, and the owner 
peaceably makes an entry thereon, and declares that be thereby takes 
possession of the same, he shall, by this notorious act of ownership, which 
is equal to a feodal investiture, be restored to his original right. 3 Bl. 
Com. 174. 
     3. A right of entry is not assignable at common law. Co. Litt. 214 a. 
As to the law on this subject in the United States, vide Buying of titles; 4 
Kent, Com. 439 2 Hill. Ab. c. 33, Sec. 42 to 52; also, article ReEntry; Bac. 
Ab. Descent, G; 8 Vin. Ab. 441. 
     4. In another sense, entry signifies the going upon another man's lands 
or his tenements. An entry in this sense may be justifiably made on 
another's land or house, first, when the law confers an authority; and 
secondly, when the party has authority in fact. 
     5. First, 1. An officer may enter the close of one against whose person 
or property he is charged with the execution of a writ. In a civil case, the 
officer cannot open (even by unlatching) the outer inlet to a house, as a 
door or window opening into the street 18 Edw. IV., Easter, 19, pl. 4; 
Moore, pl. 917, p. 668 Cooke's case, Wm. Jones, 429; although it has been 
closed for the purpose of excluding him. Cowp. 1. But in a criminal case, a 
constable may break open an outer door to arrest one within suspected of 
felony. 13 Edw. IV., Easter, 4, p. 9. If the outer door or window be open, 
he may enter through it to execute a civil writ; Palin. 52; 5 Rep. 91; and, 
having entered, he may, in every case, if necessary, break open an inner 
door. 1 Brownl. 50. 
     6.-2. The lord may enter to distrain, and go into the house for that 
purpose, the outer door being open. 5 Rep. 91. 
     7.-3. The proprietors of goods or chattels may enter the land of 
another upon which they are placed, and remove them, provided they are there 
without his default; as where his tree has blown down into the adjoining 
close by the wind, or his fruit has fallen from a branch which overhung it. 
20 Vin. Abr. 418. 
     8.-4. If one man is bound to repair bridge, he has a right of entry 
given him by law for that purpose. Moore, 889. 
     9.-5. A creditor has a right to enter the close of his debtor to 
demand the duty owing, though it is not to be rendered there. Cro. Eliz. 
876. 
    10.-6. If trees are excepted out of a demise, the lessor has the right 
of entering, to prune or fell them. Cro. Eliz. 17; 11. Rep. 53. 
    11.-7. Every traveller has, by law, the privilege of entering a common 
inn, at all seasonable times, provided the host has sufficient 
accommodation, which, if he has not, it is for him to declare. 
    12.- 8. Ever man may throw down a public nuisance, and a private one may 
be thrown down by the party grieved, and this before an prejudice happens, 
but only from the probability that it may happen. 5 Rep, 102 and see 1 
Brownl. 212; 12 Mod. 510 Wm. Jones, 221; 1 Str. 683. To this end, the abator 
has authority to enter the close in which it stands. See Nuisance. 
    13.-9. An entry may be made on the land of another, to exercise or 
enjoy therein an incorporeal right or hereditament to which he is entitled. 
Hamm. N. P. 172. See general Bouv. Inst. Index, h.t.; 2 Greenl. Ev. Sec. 
627; License. 

ENTRY, commercial law. The act of setting down the particulars of a sale, or 
other transaction, in a merchant's or tradesman's account books; such 
entries are, in general, prima facie evidence of the sale and delivery, and 
of work, done; but unless the entry be the original one, it is not evidence. 
Vide Original entry. 

ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies in favor of 
the reversioner, when the tenant for term of life, tenant for term of 
another's life, tenant by the curtesy, or tenant in dower, aliens and dies. 
T. L. 

ENTRY OF GOODS, commercial law. An entry of goods at the custom-house is the 
submitting to the officers appointed by law, who have the collection of the 
customs, goods imported. into the United States, together with a statement 
or description of such goods, and the original invoices of the same. The act 
of March 2, 1799, s. 36, 1 Story, L. U. S. 606, and the act of March 1, 
1823, 3 Story, L. U. S. 1881, regulate the manner of making entries of 
goods. 

ENTRY, WRIT OF. The name of a writ issued for the purpose of obtaining 
possession of land from one who has entered unlawfully, and continues in 
possession. This is a mere possessor action, and does not decide the right 
of property. 
     2. The writs of entry were commonly brought, where the tenant or 
possessor of the land entered lawfully; that is, without fraud or force; 13 
Edw. I. c. 25; although sometimes they were founded upon an entry made by 
wrong. The forms of these writs are very various, and are adapted to the, 
title and estate of the demandant. Booth enumerates and particularly 
discusses twelve varieties. Real Actions, pp. 175-200. In general they 
contain an averment of the manner in which the defendant entered. At the 
common law these actions could be brought only in the degrees, but the 
Statute of Marlbridge, c. 30; Rob. Dig. 147, cited as c. 29; gave a writ 
adapted to cases beyond the degrees, called a writ of entry in the post. 
Booth, 172, 173. The denomination of these writs by degrees, is derived from 
the circumstance that estates are supposed by the law to pass by degrees 
from one person to another, either by descent or purchase. Similar to this 
idea, or rather corresponding with it, are the gradations of consanguinity, 
indicated by the very common term pedigree. But in reference to the writs of 
entry, the degrees recognized were only two, and the writs were quaintly 
termed writs in the per, and writs in the per and cui. Examples of these 
writs are given in Booth on R. A. pp. 173, 174. The writ in the, per runs 
thus: "Command A, that be render unto B, one messuage, &c., into which he 
has not entry except (per) by &c. The writ in the per and cui contains 
another gradation in the transmission of the estate, and read thus: Command 
A, that he render, &c., one messuage, into which he hath not entry but (per) 
by C, (cui) to whom the aforesaid B demised it for a term of years, now 
expired," &c. 2 Institute, 153; Co. Litt. b, 239, a. Booth, however, makes 
three degrees, by accounting the estate in the per, the second degree. The 
difference is not substantial. If the estate had passed further, either by 
descent or conveyance, it was said to be out of the degrees, and to such 
cases the writ of entry on the. statute of Marlbridge, only, was applicable. 
3 Bl. Com. 181, 182; Report of Com. to Revise Civil Code of Penna. January 
15, 1835, p. 85. Vide Writ of entry. 

TO ENURE. To take, or have effect or serve to the use, benefit, or advantage 
of a person. The word is often written inure. A release to the tenant for 
life, enures to him in reversion; that is, it has the same effect for him as 
for the tenant for life. A discharge of the principal enures to the benefit 
of the surety. 

ENVOY, international law. In diplomatic language, an envoy is a minister of 
the second rank, on whom his sovereign or government has conferred a degree 
of dignity and respectability, which, without being on a level with an 
ambassador, immediately follows, and among ministers, yields the preeminence 
to him alone. 
     2. Envoys are either ordinary or extraordinary; by custom the latter is 
held in greater consideration. Vattel, liv. 4, c. 6, Sec. 72. 

EPILEPSY, med. jur. A disease of the brain, which occurs in paroxysms, with 
uncertain intervals between them. 
     2. These paroxysms are characterized by the loss of sensation, and 
convulsive motions of the muscles. When long continued and violent, this 
disease is very apt to end in dementia. (q.v.) It gradually destroys the 
memory, and impairs the intellect, and is one of the causes of an unsound 
mind. 8 Ves. 87. Vide Dig. 50, 16, 123; Id. 21, 1, 4, 5. 

EPISCOPACY, eccl. law. A form of government by diocesan bishops; the office 
or condition of a bishop. 

EPISTLES, civil law. The name given to a species of rescript. Epistles were 
the answers given by the prince, when magistrates submitted to him a 
question of law. Vicle Rescripts. 

EQUALITY. Possessing the same rights, and being liable to the same duties. 
See 1 Toull. No. l70, 193, Int. 
     2. Persons are all equal before the law, whatever adventitious 
advantages some may possess over others. All persons are protected by the 
law, and obedience to it is required from all. 
     3. Judges in court, while exercising their functions, are all upon an 
equality, it being a rule that inter pares non est potestas; a judge cannot, 
therefore, punish another judge of the same court for using any expression 
in court, although the words used might have been a contempt in any other 
person. Bac. Ab., Of the court of sessions, of justices of the peace. 
     4. In contracts the law presumes the parties act upon a perfect 
equality; when, therefore, one party uses any fraud or deceit to destroy 
this equality, the party grieved may avoid the contract. In case of a grant 
to two or more persons jointly, without designating what each takes, they 
are presumed to take in equal proportion. 4 Day, 395. 
     5. It is a maxim, that when the equity of the parties is equal, the law 
must prevail. 3 Call, R. 259. And that, as between different creditors, 
equality is equity. 4 Bouv. Inst. n. 3725; 1 Page, R. 181. See Kames on Eq. 
75. Vide Deceit; Fraud. 

EQUINOX. The name given to two periods of the year when the days and nights 
are equal; that is, when the space of time between the rising and setting of 
the sun is one half of a natural day. Dig. 43, 13, 1, 8. Vide Day. 

EQUITABLE. That which is in conformity to the natural law. Wolff, Inst. Sec. 
83. 

EQUITABLE ESTATE. An equitable estate is a right or interest in land, which, 
not having the properties of a legal estate, but being merely a right of 
which courts of equity will take notice, requires the aid of such court to 
make it available. 
     2. These estates consist of uses, trusts, and powers. See 2 Bouv. Inst. 
n. 1884. Vide Cestui que trust; Cestui que use. 

EQUITABLE MORTGAGE, Eng. law. The deposit of title-deeds, by the owner of an 
estate, with a person from whom he has borrowed money, with an accompanying 
agreement to execute a regular mortgage, or by the mere deposit, without 
even any verbal agreement respecting a regular security. 2 Pow. on Mort. 49 
to 61; 1 Mad. Ch. Pr. 537; 4 Madd. R. 249; 1 Bro. C. C. 269; 12 Ves. 197; 3 
Younge & J. 150; 1 Rus. R. 141. 
     2. In Pennsylvania, there is no such thing as an equitable mortgage. 3 
P. S. R; 233; 3 Penna. R. 239; 17 S. & R. 70; 1 Penna. R. 447. 

EQUITY. In the early history of the law, the sense affixed to this word was 
exceedingly vague and uncertain. This was owing, in part, to the fact, that 
the chancellors of those days were either statesmen or ecclesiastics, 
perhaps not very scrupulous in the exercise of power. It was then asserted 
that equity was bounded by no certain limits or rules, and that it was alone 
controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441. 
     2. In a moral sense, that is called equity which is founded, ex oequo 
et bono, in natural justice, in honesty, and in right. In an enlarged. legal 
view, "equity, in its true and genuine meaning, is the soul and spirit of 
the law; positive law is construed, and rational law is made by it. In this, 
equity is made synonymous with justice; in that, to the true and sound 
interpretation of the rule." 3 Bl. Com. 429. This equity is justly said to 
be a supplement to the laws; but it must be directed by science. The Roman 
law will furnish him with sure guides, and safe rules. In that code will be 
found, fully developed, the first principles and the most important 
consequences of natural right. "From the moment when principles of decision 
came to be acted upon in chancery," says Mr. Justice Story, "the Roman law 
furnished abundant materials to erect a superstructure, at once solid, 
convenient and lofty, adapted to human wants, and enriched by the aid of 
human wisdom, experience and learning." Com. on Eq. Jur. Sec. 23 Digest, 54. 
     3. But equity has a more restrained and qualified meaning. The remedies 
for the redress of wrongs, and for the enforcement of rights, are 
distinguished into two classes, first, those which are administered in 
courts of common law; and, secondly, those which are administered in courts 
of equity. Rights which are recognized and protected, and wrongs which are 
redressed by the former courts, are called legal rights and legal injuries. 
Rights which are recognized and protected, and wrongs which are redressed by 
the latter courts only, are called equitable rights and equitable injuries 
The former are said to be rights and wrongs at common law, and the remedies, 
therefore, are remedies at common law; the latter are said to be rights and 
wrongs in equity, and the remedies, therefore, are remedies in equity. 
Equity jurisprudence may, therefore, properly be said to be that portion of 
remedial justice which is exclusively administered by a court of equity, as 
contradistinguished from that remedial justice, which is exclusively 
administered by a court of law. Story, Eq. Sec. 25. Vide Chancery, and the 
authorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab. h.t.; 
Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, 
h.t. 

EQUITY, COURT OF. A court of equity is one which administers justice, where 
there are no legal rights, or legal rights, but courts of law do not afford 
a complete, remedy, and where the complainant has also an equitable right. 
Vide Chancery. 

EQUITY OF REDEMPTION. A right which the mortgagee of an estate has of 
redeeming it, after it has been forfeited at law by the non-payment at, the 
time appointed of the money secured by the mortgage to be paid, by paying 
the amount of the debt, interest and costs. 
     2. An equity of redemption is a mere creature of a court of equity, 
founded on this principle, that as a mortgage is a pledge for securing the 
repayment of a sum of money to the mortgagee, it is but natural justice to 
consider the ownership of the land as still vested in the mortgagor, subject 
only to the legal title of the mortgagee, so far as such legal title is 
necessary to his security. 
     3. In Pennsylvania, however, redemption is a legal right. 11 Serg. & 
Rawle, 223. 
     4. The phrase equity of redemption is indiscriminately, though perhaps 
not correctly applied, to the right of the mortgagor to regain his estate, 
both before and after breach of condition, In North Carolina by statute the 
former is called a legal right of redemption; and the latter the equity of 
redemption, thereby keeping a just distinction between these estates. 1 N. 
C. Rev. St. 266; 4 McCord, 340. 
     5. Once a mortgage always a mortgage, is a universal rule in equity. 
The right of redemption is said to be as inseparable from a mortgage, as 
that of replevying from a distress, and every attempt to limit this right 
must fail. 2 Chan. Cas. 22; 1 Vern. 33, 190; 2 John. Ch. R. 30; 7 John. Ch. 
R. 40; 7 Cranch, R. 218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2 
Sumner, R. 487. 
     6. The right of redemption exists, not only in the mortgagor himself, 
but in his heirs, and personal representatives, and assignee, and in every 
other person who has an interest in, or a legal or equitable lien upon the 
lands; and therefore a tenant in dower, a jointress, a tenant by the 
curtesy, a remainder-man and a reversioner, a judgment creditor, and every 
other incumbrancer, unless he be an incumbrancer pendente lite, may redeem. 
4 Kent, Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611; 9 Mass. R. 422; 2 
Litt. R. 334; 1 Pick. R. 485; 14 Wend. R. 233; 5 John. Ch. R. 482; 6 N. H. 
Rep. 25; 7 Vin. Ab. 52. Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, 
Com. 148; Pow. on Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab. 458; 
2 Supp. to Ves. Jr. 368; 2 Jac. & Walk. 194, n.; 1 Hill. Ab. c. 31; and 
article Stellionate. 

EQUIVALENT. Of the same value. Sometimes a condition must be literally 
accomplished in forma specifica; but some may be fulfilled by an equivalent, 
per oequi polens, when such appears to be the intention of the parties; as, 
I promise to pay you one hundred dollars, and then die, my executor may 
fulfill my engagement; for it is equivalent to you whether the money be paid 
to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760. 

EQUIVOCAL. What has a double sense.
     2. In the construction of contracts, it is a general rule that when an 
expression may be taken in two senses, that shall be preferred which gives 
it effect. Vide Ambiguity; Construction; Interpretation; and Dig. 22, 1, 4; 
Id 45, 1, 80; Id. 50, 17, 67. 

EQUULEUS. The name of a kind of rack for extorting confessions. Encyc. Lond. 

ERASURE, contracts, evidence. The obliteration of a writing; it will render 
it void or not under the same circumstances as an interlineation. (q.v.) 
Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4 Cruise, Dig. 368; 13 Vin. Ab. 41; 
Fitzg. 207; 5 Bing. R. 183; 3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R. 531; 5 
M. R. 190; 2 L. R. 291 3 L. R. 56; 4 L. R. 270. 
     2. Erasures and interlineations are presumed to have been made after 
the execution of a deed, unless the contrary be proved. 1 Dall. 67; 1 Pet. 
169; 4 Bin. 1; 10 Serg. & R. 64, 170, 419; 16 Serg. & R. 44. 

EREGIMUS. We have erected. In England, whenever the. right of creating or 
granting a new office is vested in the king, he must use proper words for 
the purpose, as eregimus, constituimus, and the like. Bac. Ab. Offices, &c., 
E. 

EROTIC MANIA, med. jur. A name given to a morbid activity of the sexual 
propensity. It is a disease or morbid affection of the mind, which fills it 
with a crowd of voluptuous images, and hurries its victim to acts of the 
grossest licentiousness, in the absence of any lesion of the intellectual 
powers. Vide Mania. 

ERROR. A mistake in judgment or deviation from the truth, in matters of fact 
and from the law in matters of judgment. 
     2.-1 Error of fact. The law has wisely provide that a person shall be 
excused, if, intending to do a lawful act, and pursuing lawful means to 
accomplish his object, he commit an act which would be criminal or unlawful, 
if it were done with a criminal design or in an unlawful manner; for 
example, thieves break into my house, in the night time, to commit a 
burglary; I rise out of my bed, and seeing a person with a drawn sword 
running towards my wife, I take him for one of the burglars, and shoot him 
down, and afterwards find he was one of my friends, whom, owing to the 
dimness of the light, I could not recognize, who had lodged with me, rose on 
the first alarm, and was in fact running towards my wife, to rescue her from 
the hands of an assassin; still I am innocent, because I committed an error 
as to a fact, which I could not know, and had, no time to inquire about. 
     3. Again, a contract made under a clear error is not binding; as, if 
the seller and purchaser of a house situated in Now York, happen to be in 
Philadelphia, and, at the time of the sale, it was unknown to both parties 
that the house was burned down, there will be no valid contract; or if I 
sell you my horse Napoleon, which we both suppose to be in my stable, and at 
the time of the contract he is dead, the sale is void. 7 How. Miss. R. 371 3 
Shepl. 45; 20 Wend. 174; 9 Shepl. 363 2 Brown, 27; 5 Conn. 71; 6 Mass. 84; 
12 Mass. 36. See Sale. 
     4. Courts of equity will in general correct and rectify all errors in 
fact committed in making deeds and contracts founded on good considerations. 
See Mistake. 
     5.-2. Error in law. As the law is, or which is the same thing, is 
presumed to be certain and definite, every man is bound to understand it, 
and an error of law will not, in general, excuse a man, for its violation. 
     6. A contract made under an error in law, is in general binding, for 
were it not so, error would be urged in almost every case. 2 East, 469; see 
6 John. Ch. R. 166 8 Cowen, 195; 2 Jac. & Walk. 249; 1 Story, Eq. Jur. 156; 
1 Younge & Coll. 232; 6 B. & C. 671 Bowy. Com. 135; 3 Sav. Dr. Rom. App. 
viii. But a foreign law will for this purpose be considered as a fact. 3 
Shepl. 45; 9 Pick. 112; 2 Ev. Pothier, 369, &c. See, also, Ignorance; 
Marriage; Mistake. 
     7. By error, is also understood a mistake made in the trial of a cause, 
to correct which a writ of error may be sued out of a superior court. 

ERROR, WRIT OF. A writ of error is one issued for a superior to an inferior 
court, for the purpose of bringing up the record and correcting an alleged 
error committed in the trial in the court below. But it cannot deliver the 
body from prison. Bro. Abr. Acc. pl. 45. The judges to whom the writ is 
directed have no power to return the record nisi judicium inde redditum sit. 
Nor can it be brought except on the final judgment. See Metcalf's Case, 11 
Co. Rep. 38, which is eminently instructive on this subject. Vide Writ of 
Error. 

ESCAPE. An escape is tho deliverance of a person who is lawfully imprisoned, 
out of prison, before such a person is entitled to such deliverance by law. 
5 Mass. 310. 
     2. It will be proper to consider, first, what is a lawful imprisonment; 
and, secondly, the different kinds of escapes. 
     3. When a man is imprisoned in a proper place under the process of a 
court having jurisdiction in the case, he is lawfully imprisoned, 
notwithstanding the proceedings may be irregular; but if the court has not 
jurisdiction the imprisonment is unlawful, whether the process be regular or 
otherwise. Bac. Ab. Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1 
Cowen, 309 8 Cowen, 192; 1 Root, R. 288. 
     4. Escapes are divided into voluntary and negligent; actual or 
constructive; civil and criminal and escapes on mesne process and execution. 
     5.-1. A voluntary escape is the giving to a prisoner, voluntarily, 
any liberty not authorized by law. 5 Mass. 310; 2 Chipm. 11. Letting a 
prisoner confined under final process, out of prison for any, even the 
shortest time, is an escape, although he afterwards return; 2 Bl. Rep. 1048; 
1 Roll. Ab. 806; and this may be, (as in the case of imprisonment under a 
ca. sa.) although an officer may accompany him. 3 Co. 44 a Plowd. 37; Hob. 
202; 1 Bos. & Pull. 24 2 Bl. Rep. 1048. 
     6. The effect of a voluntary escape in a civil case, when the prisoner 
is confined under final process, is to discharge the debtor, so that he 
cannot be retaken by the sheriff; but he may be again arrested if he was 
confined only on mesne process. 2 T. R. 172; 2 Barn. & A. 56. And the 
plaintiff may retake the prisoner in either case. In a criminal case, on the 
contrary, the officer not only has a right to recapture his prisoner, but it 
is his duty to do so. 6 Hill, 344; Bac. Ab. Escape in civil cases, C. 
     7.-2. A negligent escape takes place when the prisoner goes at large, 
unlawfully, either because the building or prison in which he is confined is 
too weak to hold him, or because the keeper by carelessness lets him go out 
of prison. 
     8. The consequences of a negligent escape are not so favorable to the 
prisoner confined under final process, as they are when the escape is 
voluntary, because in this case, the prisoner is to blame. He may therefore 
be retaken. 
     9.-3. The escape is actual, when the prisoner in fact gets out of 
prison and unlawfully regains his liberty. 
    10.-4. A constructive escape takes place when the prisoner obtains 
more liberty than the law allows, although he still remains in confinement 
The following cases are examples of such escapes: When a man marries his 
prisoner. Plowd. 17; Bac. Ab. Escape, B 3. If an underkeeper be taken in 
execution, and delivered at the prison, and neither the sheriff nor any 
authorized person be there to receive him. 5 Mass. 310. And when the keeper 
of a prison made one of the prisoners confined for a debt a turnkey, and 
trusted him with the keys, it was held that this was a constructive escape. 
2 Mason, 486. 
    11. Escapes in civil cases are, when the prisoner is charged in 
execution or on mesne process for a debt or duty, and not for a criminal 
offence, and he unlawfully gains his liberty. In this case, we have seen, 
the prisoner may be retaken, if the escape have not been voluntary; and that 
he may be retaken by the plaintiff when the escape has taken place without 
his fault, whether the defendant be confined in execution or not; and that 
the sheriff may retake the prisoner, who has been liberated by him, when he 
was not confined on final process. 
    12. Escapes in criminal cases take place when a person lawfully in 
prison, charged with a crime or under sentence, regains his liberty 
unlawfully. The prisoner being to blame for not submitting to the law, and 
in effecting his escape, may be retaken whether the escape was voluntary or 
not. And he may be indicted, fined and imprisoned for so escaping. See 
Prison. 
    13. Escape on mesne process is where the prisoner is not confined on 
final process, but on some other process issued in the course of the 
proceedings, and unlawfully obtains his liberty, such escape does not make 
the officer liable, provided that on the return day of the writ, the 
prisoner is forthcoming. 
    14. Escape on final process is when the prisoner obtains his liberty 
unlawfully while lawfully confined, and under an execution or other final 
decree. The officer is then, in general, liable to the plaintiff for the 
amount of the debt. 

ESCAPE, WARRANT. A warrant issued in England against a person who being 
charged in custody in the king's bench or Fleet prison, in execution or 
mesne process, escapes and goes at large. Jacob's L. D. h.t. 

ESCHEAT, title to lands. According to the English law, escheat denotes an 
obstruction of the course of descent, and a consequent determination of the 
tenure, by some unforeseen contingency; in which case the land naturally 
results back, by a kind of reversion, to the original grantor, or lord of 
the fee.. 2 Bl. Com. 244. 
     2. All escheats, under the English law, are declared to be strictly 
feudal, and to import the extinction of tenure. Wright on Ten. 115 to 117; 1 
Wm. Bl. R. 123. 
     3. But as the feudal tenures do not exist in this country, there are no 
private persons who succeed to the inheritance by escheat. The state steps 
in, in the place of the feudal lord, by virtue of its sovereignty, as the 
original and ultimate proprietor of all the lands within its jurisdiction. 4 
Kent, Com. 420. It seems to be the universal rule of civilized society, that 
when the deceased owner has left no heirs, it should vest in the public, and 
be at the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. 
liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 
Swift's Dig. 156; 2 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 
140, sect. 24; Jones on Land Office Titles in Penna. 5, 6, 93. For the rules 
of the Roman Civil Law, see Code Justinian, book 10. 

ESCHEATOR. The name of an officer whose duties are generally to ascertain 
what escheats have taken place, and to prosecute the claim of the 
commonwealth for the purpose of recovering the escheated property. Vide 10 
Vin. Ab. 158. 

ESCROW, conveyancing, contracts. A conditional delivery of a deed to a 
stranger, and not to the grantee himself, until certain conditions shall be 
performed, and then it is to be delivered to the grantee. Until the 
condition be performed and the deed delivered over, the estate does not 
pass, but remains in the grantor. 2 Johns. R. 248; Perk. 137, 138. 
     2. Generally, an escrow takes effect from the second delivery, and is 
to be considered as the deed of the party from that time; but this general 
rule does not apply when justice requires a resort to fiction. The relation 
back to the first delivery, so as to give the deed effect from that time, is 
allowed in cases of necessity, to avoid injury to the operation of the deed, 
from events happening between the first and second delivery. For example, 
when a feme sole makes a deed and delivers it as an escrow, and then marries 
before the second delivery, the relation back to the time when she was sole, 
is necessary to render the deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 
2024; 4 Kent, Com. 446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig. 
Fait, A 3; 13 Vin. Ab. 29; 5 Mass. R. 60; 2 Root, R. 81; 5 Conn. R. 113; 1 
Conn. R. 375; 6 Paige's R. 314; 2 Mass. R. 452; 10 Wend. R. 310; 4 Green]. 
R. 20; 2 N. H. Rep. 71; 2 Watts', R. 359; 13 John. R. 285; 4 Day's R. 66; 9 
Mass. R. 310 1 John. Cas. 81; 6 Wend. R. 666; 2 Wash. R. 58; 8 Mass. R. 238; 
4 Watts, R. 180; 9 Mass. Rep. 310; 2 Johns. Rep. 258-9; 13 Johns. Rep. 285; 
Cox, Dig. tit, Escrow; Prest. Shep. Touch. 56, 57, 58; Shep. Prec. 54, 56; 1 
Prest. Abst. 275; 3 Prest. Ab. 65; 3 Rep. 35; 5 Rep. 84. 

ESCUAGE, old Eng. law. Service of the shield. Tenants who hold their land by 
escuage, hold by knight's service. 1 Tho. Co. Litt. 272; Littl. s. 95, 86 b. 

ESNECY. Eldership. In the English law, this word signifies the right which 
the eldest coparcener of lands has to choose one of the parts of the estate 
after it has been divided. 

ESPLEES. The products which the land or ground yields; as the hay of the 
meadows, the herbage of the pasture, corn or other produce of the arable, 
rents and services. Termes de la Ley; see 11 Serg. & R. 2-5; Dane's Ab. 
Index, h.t. 

ESPOUSALS, contracts. A mutual promise between a man and a woman to marry 
each other, at some other time: it differs from a marriage, because then the 
contract is completed. Wood's Inst. 57; vide Dig. 23, 1, 1; Code, 5, 1, 4; 
Novel, 115, c. 3, s. 11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. 1, t. 6, 
c. 1, Sec. 1. 

ESQUIRE. A title applied by courtesy to officers of almost every 
description, to members of the bar, and others. No one is entitled to it by 
law, and, therefore, it confers, no distinction in law. 
     2. In England, it is a title next above that of a gentleman, and below 
a knight. Camden reckons up four kinds of esquires, particularly regarded by 
the heralds: 1. The eldest sons of knights and their eldest sons, in 
perpetual succession. 2. The eldest sons of the younger sons of peers, and 
their eldest sons in like perpetual succession. 3. Esquires created by the 
king's letters patent, or other investiture, and their eldest sons. 4. 
Esquires by virtue of their office, as justices of the peace, and others who 
bear any office of trust under the crown. 

ESSOIN, practice. An excuse which a party bound to be in court on a 
particular day, offers for not being there. 1 Sell. Pr. 4; Lee's Dict. h.t. 
     2. Essoin day is the day on which the writ is returnable. It is 
considered for many purposes as the first day of the term. 1 T. R. 183. See 
2 T. R. 16 n.; 4 Moore's R. 425. Vide Exoine. 

ESTABLISH. This word occurs frequently in the Constitution of the United 
States, and it is there used in different meanings. 1. To settle firmly, to 
fix unalterably; as, to establish justice, which is the avowed object of the 
constitution. 2. To make or form as, to establish an uniform rule of 
naturalization, and uniform laws on the subject of bankruptcies, which 
evidently does not mean that these laws shall be unalterably established as 
justice. 3. To found, to create, to regulate; as, congress shall have power 
to establish post roads and post offices. 4. To found, recognize, confirm or 
admit; as, congress shall make no law respecting an establishment of 
religion. 5. To create, to ratify, or confirm; as, we, the people, &c., do 
ordain and establish this constitution, 1 Story, Const. Sec. 454. 

ESTADAL, Spanish law. In Spanish America, this was a measure of land of 
sixteen square varas or yards. 2 White's Coll. 139. 

ESTATE. This word his several meanings: 1. In its most extensive sense, it 
is applied to signify every thing of which riches or, fortune may consist 
and includes personal and real property; hence we say personal estate, real 
estate. 8 Ves. 504. 2. In its more limited sense, the word estate is applied 
to lands, It is so applied in two senses. The first describes or points out 
the land itself, without ascertaining the extent or nature of the interest 
therein; as "my estate at A." The second, which is the proper and technical 
meaning of estate, is the degree, quantity, nature and extent of interest 
which one has in real property; as, an estate in fee, whether the same be a 
fee simple or fee tail; or an estate for life or for years, &c. Lord Coke 
says: Estate signifies such inheritance, freehold, term of years, tenancy by 
statute merchant, staple, eligit, or the like, as any man hath in lands or 
tenements, &c. Co. Lit. Sec. 650, 345 a. See Jones on Land Office Titles in 
Penna. 165-170. 
     2. In Latin, it is called status, because it signifies the condition 
or circumstances in which the owner stands with regard to his property.. 
     3. Estates in land may be considered in a fourfold view with regard, 1. 
To the quantity of interest which the tenant has in the tenement. 2. To the 
time during which that quantity of interest is to be enjoyed. 3. To the 
number and connexion of the tenants. 4. To what conditions may be annexed to 
the estate. 
     4.-1. The quantity of interest which the tenant has in his tenement 
is measured by its duration and extent. An estate, considered in this point 
of view, is said to be an estate of freehold, and an estate less than 
freehold. 
     5.-1. Freehold estates are of inheritance and not of inheritance. An 
estate in fee, (q.v.) which is the estate most common in this country, is a 
freehold estate of inheritance. Estates of freehold not of inheritance, are 
the following: 
     6.-1st. Estates for life. An estate for life is a freehold interest 
in lands, the duration of which is confined to the life or lives of some 
particular person or persons, or to the happening or not happening of some 
uncertain event. 
     7. Estates for life are divided into conventional or legal estates. The 
first created by the act of the parties, and the second by operation of law. 
     8.-1. Life estates may be created by express words; as, if A conveys 
land to B, for the term of his natural life; or they may arise by 
construction of law, as, if A conveys land to B, without specifying the term 
or duration, and without words of limitation. In the last case, B cannot 
have an estate in fee, according to. the English law, and according to the 
law of those parts of the United States which have adopted and not altered 
the common law in this particular, but he will take the largest estate which 
can possibly arise from the grant, and that is an estate for life. Co. Litt. 
42, a. So a conveyance "to I M, and his generation, to endure as long as 
the waters of the Delaware should run," passes no more than a life estate. 3 
Wash. C. C. Rep. 498. The life estate may be either for a man's own life, or 
for the life of another person, and in this last case it is termed an estate 
per autre vie. There are some estates for life, which may depend upon future 
contingencies, before the death of the person to whom they are granted; for 
example, an estate given to a woman dum sola fuerit, or durante viduitate, 
or to a man and woman during coverture, or as long as the grantee shall 
dwell in a particular house, is determinable upon the happening of the 
event. In the same manner, a house usually worth one hundred dollars a year, 
may be granted to a person still he shall have received one thousand 
dollars; this will be an estate for life, for as the profits are uncertain, 
and may rise or fall, no precise time can be fixed for the determination of 
the estate. On the contrary, where the time is fixed, although it may extend 
far beyond any life, as a term for five hundred years, this does not create 
a life estate. 
     9.-2. The estates for life created by operation of law, are, 1st. 
Estates tail after possibility of issue extinct. 2d. Estates by the curtesy. 
3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit. 3; 4 Kent, Com. 23; 1 
Brown's Civ. Law, 191; 2 Bl. Com. 103. The estate for life is somewhat 
similar to the usufruct (q.v.) of the civil law. 
    10. The incidents to an estate for life, are principally the following: 
1. Every tenant for life, unless restrained by covenant or agreement, may of 
common right take upon the land demised to him reasonable estovers or 
bote's. Co. Litt. 41. 
    11.-2. The tenant for life, or his representatives, shall not be 
prejudiced by any sudden determination of his estate, because such 
determination is contingent or uncertain. Co. Litt. 55. 
    12.-3. Under tenants or lessees of an estate for life, have the same, 
and even greater indulgences than the lessors, the original tenants for 
life; for when the tenant for life shall not have the emblements, because 
the estate determines by his own act, the exception shall not reach his 
lessee, who is a third person. l Roll. Ab. 727 2 Bl. Com. 122. 
    13.-2d. Estates by the curtesy. An estate by the curtesy is an estate 
for life, created by act of law, which is defined as follows: When a man 
marries a woman, seised at any time during the coverture of an estate of 
inheritance, in severalty, in coparcenary, or in common, and has issue by 
her born alive, and which might by possibility inherit the same estate as 
heir to the wife, and the wife dies in the lifetime of the husband, he holds 
the lands during, his life by the curtesy of England, and it is immaterial 
whether the issue be living at the time of the seisin, or at the death of 
the wife, or whether it was born before or after the seisin. Litt. s. 35; 
Co. Litt. 29, b; 8 Co. 34. By Act of Assembly of Pennsylvania, the birth of 
issue is not necessary, in all cases where the issue, if any, would have 
inherited. 
    14. There are four requisites indispensably necessary to the existence 
of this estate: 1. Marriage. 2. Seisin of the wife, which must have been 
seisin in deed, and not merely seisin in law; it seems, however, that the 
rigid rules of the common law, have been relayed, in this respect, as to 
what is sometimes called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death 
of the wife. 
    15.-1. The marriage must be a lawful marriage; for a void marriage 
does not entitle the husband to the curtesy; as if a married man were to 
marry a second wife, the first being alive, he would not be entitled to the 
curtesy in such second wife's estate. But if the marriage had been merely 
voidable, he would be entitled, because no marriage, merely voidable, can be 
annulled after the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6. 
    16.-2. The seisin of the wife must, according to the English law, be a 
seisin in deed; but this strict rule has been somewhat qualified by 
circumstances in this country. Where the wife is owner of wild uncultivated 
land, not held adversely, she is considered as seised in fact, and the 
husband is entitled to his curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 
Munf. 162 1 Stow. 590. When the wife's state is in reversion or remainder, 
the husband is not, in general, entitled to the curtesy, unless the 
particular estate is elided during coverture. Perk. s. 457, 464; Co. Litt. 
20, a; 3 Dev. R. 270; 1 Sumn. 263; but see 3 Atk. 469; 7 Viner, Ab. 149, pl. 
11. The wife's seisin must have been such as to enable her to inherit. 5 
Cowen, 74. 
    17.-3. The issue of the marriage, to entitle the husband to the 
curtesy, must possess the following qualifications: 1. Be born alive. 2. In 
the lifetime of the mother. 3. Be capable of inheriting the estate. 
    18.-1st. The issue must be born alive. As to what will be considered 
life, see Birth; Death; Life. 
    19.-2d. The issue must be born in the lifetime of the mother; and if 
the child be born after the death of the mother, by the performance of the 
Caesarian operation, the husband will not be entitled to the curtesy; as 
there was no issue born at the instant of the wife's death, the estate vests 
immediately on the wife's death to the child, in ventre sa mere, and the 
estate being once vested, it cannot be taken from him. Co. Litt. 29, b.; 8 
Co. Rep., 35, a. It is immaterial whether the issue be born before or after 
the seisin of the wife. 8 Co. Rep. 35, b. 
    20.-3d. The issue must be capable of inheriting the estate; When, for 
example, lands are given to a woman and the heirs male of her body, and she 
has a daughter, this issue will not enable her husband to take his curtesy. 
Co. Litt. 29, a. 
    21.-4th. The death of the wife is requisite to make the estate by the 
curtesy complete. 
    22. This estate is generally prevalent in the United States; in some of 
them it has received a modification. In Pennsylvania the right of the 
husband takes place although there be no issue of the marriage, in all cases 
where the issue, if any, would have inherited. In Vermont, the title by 
curtesy has been laid under the equitable restriction of existing only in 
the event that the children of the wife entitled to inherit, died within age 
and without children in South Carolina, tenancy by the curtesy, eo nomine, 
has ceased by the provisions of an act passed in 1791, relative to the 
distribution of intestates estates, which gives to the husband surviving his 
wife, the same share of her real estate, as she would have taken out of his, 
if left a widow, and that is one moiety, or one-third of it in fee, 
according to circumstances. In Georgia, tenancy by the curtesy does not 
exist, because, since 1785, all marriages vest the real, equally with the 
personal estate, in the husband. 4 Kent, Com. 29. In Louisiana, where the 
common law has not been adopted in this respect, this estate is unknown. 
    23. This estate is not peculiar to the English law, as Littleton 
erroneously supposes; Litt. s. 35; for it is. to be found, with some 
modifications, in the ancient laws of Scotland, Ireland, Normandy and 
Germany. In France there were several customs, which gave a somewhat similar 
estate to the surviving husband, out of the wife's inheritances. Merlin, 
Repert. mots Linotte, et Quarte de Conjoint pauvre. 
    24.-3d. Estate in dower. Dower is an estate for life which the law 
gives the widow in the third part of the lands and tenements, or 
hereditaments of which the husband was solely seised, at any time during the 
coverture, of an estate in fee or in tail, in possession, and to which 
estate in the lands and tenements the issue, if any of such widow, might, by 
possibility, have inherited. In Pennsylvania, the sole seisin of the. 
husband is not necessary. Watk. Prin. Con. 38; Lit. Sec. 36; Act of Penna. 
March 31, 1812. 
    25. To create a title to the dower, three things are indispensably 
requisite: 1. Marriage. This must be a marriage not absolutely void, and 
existing at the death of the husband; a wife de facto, whose marriage is 
voidable by decree, as well as a wife de jure, is entitled to it; and the 
wife shall be endowed, though the marriage be within the age of consent, and 
the husband dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud. 
22; Cruise, Dig. t. 6, c. 2, s, 2, et seq. 
    26.-2. Seisin. The husband must have been seised, some time during the 
coverture, of the estate of which the wife is dowable. Co. Litt. 31, a. An 
actual seisin is not indispensable, a seisin in law is sufficient. As to the 
effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. 
Litt. 31, a. 
    27.-3. Death of the husband. This must be a natural death; though 
there are authorities which declare that a civil death shall have the same 
effect. Cruise, Dig. tit. 6, ch. 2, Sec. 22. Vide, generally, 8 Vin. Ab. 
210; Bac. Ab. Dower; Com. Dig. Dower; Id. App. tit. Dower; 1 Supp. to. Ves. 
jr. 173, 189; 2 Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 
291; 2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr. 200; 4 
Kent, Com. 35; Amer. Dig. h.t.; Pothier, Traite du Douaire; 1 Swift's Dig. 
85; Perk. 300, et seq. 
    28.-4th. Estate tail after possibility of issue extinct. By this 
awkward, but perhaps necessary periphrasis, justified by Sir William 
Blackstone, 2 Com. 124, is meant the estate which is thus described by 
Littleton, Sec. 32 when tenements are given to a man and his wife in special 
tail, if one of them die without issue, the survivor is tenant in tail after 
possibility of issue extinct." 
    29. This estate though, strictly speaking, not more than an estate for 
life, partakes in some circumstances of the nature of an estate tail. For a 
tenant in tail after possibility of issue extinct, has eight qualities or 
privileges in common with a tenant in tail. 1. He is dispunishable for 
waste. 2. He is not compellable to attorn. 3. He shall not have aid of the 
person in reversion. 4. Upon his alienation no writ of entry in consimili 
casu lies. 5. After his death, no writ of intrusion lies. 6. He may join the 
mise in a writ of right in a special manner. 7. In a praecipe brought by him 
he shall not name himself tenant for life. 8. In a praecipe brought against 
him, he shall not be named barely tenant for life. 
    30. There are, however, four qualities annexed to this estate, which 
prove it to be, in fact, only an estate for life. 1. If this tenant makes a 
feoffment in fee, it is a forfeiture. 2. If an estate tail or in fee 
descends upon him, the estate tail after possibility of issue extinct is 
merged. 3. If he is impleaded and makes default, the person in reversion 
shall be received, as upon default of any other tenant for life. 4. An 
exchange between this tenant and a bare tenant for life, is good; for, with 
respect to duration, their. estates are equal. Cruise, Dig. tit. 4; Tho. Co. 
Litt. B. 2, c. 17; Co. Lit. 28, a. 
    31. Nothing but absolute impossibility of having issue, can give rise to 
this estate. Thus if a person gives lands to a man and his, wife, and to the 
heirs of their two bodies, and they live to a hundred years, without having 
issue, yet they are tenants in tail; for the law' sees no impossibility of 
their having issue, until the death of one of them. Co. Litt. 28, a. See 
Tenant in tail after possibility of issue extinct. 
    32.-2. An estate less than freehold is an estate which is not in fee, 
nor for life; for although a man has a lease for a thousand years, which is 
much longer than any life, yet it is not a freehold, but a mere estate for 
years, which is a chattel interest. Estates less than freehold are estates 
for years, estates at will, and estates at sufferance. 
    33.-1. An estate for years, is one which is created by a lease; for 
years, which is a contract for the possession and profits of land for a 
determinate period, with the recompense of rent; and it is deemed an estate 
for years, though the number of years should exceed the ordinary limits of 
human life; and it is deemed an estate for years though it be limited to 
less than a single year. It is denominated a term, because its duration is 
absolutely defined. 
    34. An estate for life is higher than an estate for years, though the 
latter should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1 
Brown's Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R. 
126; 8 Serg. & Rawle, 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325. 
    35.-3. An estate at will is not bounded by any definite limits with 
respect to time; but as it originated in mutual agreement, so it depends 
upon the concurrence of both parties. As it depends upon the will of both, 
the dissent of either may determine it. Such an estate or interest cannot, 
consequently, be the subject of conveyance to a stranger, or of transmission 
to representatives. Watk. Prin. Con. 1; Litt. Sec. 68. 
    36. Estates at will have become infrequent under the operation of 
judicial decisions. Where no certain term is agreed on, they are now 
construed to be tenancies from year to year, and each party is bound to give 
reasonable notice of an intention to terminate the estate. When the tenant 
holds over by consent given, either expressly or by implication, after the 
determination of a lease for years, it is held evidence of a new contract, 
without any definite period, and is construed. to. be a tenancy from year to 
year. 4 Kent, Com. 210; Cruise, Dig. tit. 9, c. 1. 
    37.-3. An estate at sufferance. The session of land by lawful title, but 
holds over by wrong after the determination of his interest. Co. Litt. 57, 
b. He has a bare naked possession, but no estate which he can transfer or 
transmit, or which is capable of enlargement by. release, for he stands in 
no privity to his landlord. 
    38. There is a material distinction between the case of a person coming 
to an estate by act of the party, and afterwards holding over, and by act of 
the law and then holding over. In the first case, he is regarded as a tenant 
at sufferance; and in the other, as an intruder, abator, and trespasser. Co. 
Litt. 57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. & 
Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126. 
    39.-II. As to the time of their enjoyment, estates are considered 
either in possession, (q.v.) or expectancy. (q.v.) The latter are either 
remainders, (q.v.) which are created, by the act of the parties, and these 
are vested or contingent, or reversions, (q, v.) created by act of law. 
    40.-III. An estate way be holden in a variety of ways the most common 
of which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In 
coparcenary. These will be separately considered. 
    41.-1. An estate in severally, is where only one tenant holds the 
estate in his own right, without any other person being joined or connected 
with him, in point-of interest, during the continuance of his estate. 
    42.-2. An estate in joint tenancy, is where lands or tenements are 
granted to two or more persons, to hold in fee simple, fee tail, for life, 
for years, or at will. 2 Bl. Com. 179. Joint tenants always take by 
purchase, and necessarily have equal shares; while tenants in common, also 
coparceners, claiming under ancestors in different degrees, may have unequal 
shares and the proper and best mode of creating an estate in joint tenancy, 
is to limit to A B and C D, and their assigns, if it be an estate for life; 
or to A B and C D, and their heirs, if in) fee. Watk. Prin. Con. 86. 
    43. The creation of the estate depends upon the expression in the deed 
or devise, by which the tenants hold, for it must be created by the acts of 
the parties, and does not result from the operation of law. Thus, an estate 
given to a number of persons, without any restriction or explanation, will 
be construed a joint tenancy; for every part of the grant can take effect 
only, by considering the estate equal in all, and the union of their names 
gives them a name in every respect. 
    44. The properties of this estate arise from its unities; these are, 1. 
Unity of title; the estate must have been created and derived from one and 
the same conveyance. 2. There must be a unity of time; the estate must be 
created and vested at the same period. 3. There must be a unity of interest; 
the estate must be for the same duration, and for the same quantity of 
interest. 4. There must be a unity of possession; all the tenants must 
possess and enjoy at the same time, for each must have an entire possession 
of every parcel, as of the whole. One has not possession of one-half, and 
another of the other half, but each has an undivided moiety of the whole, 
and not the whole of an undivided moiety. 
    45. The distinguishing incident of this estate, is the right of 
survivorship, or jus accrescendi; at common law, the entire tenancy or 
estate, upon the death of any of the joint tenants, went to the survivors, 
and so on to the last survivor, who took an estate of inheritance. The right 
of survivorship, except, perhaps, in estates held in trust, is abolished in 
Pennsylvania, New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, 
North and South Carolina, Georgia, and Alabama. Griffith's Register, h.t. 
In Connecticut it never was recognized. 1 Root, Rep. 48; 1 Swift's Digest, 
102. Joint tenancy may be destroyed by destroying any of its constituent 
unities, except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 
Swift's Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 
319, n. 4; 1 Vern. 353,; Com. Dig. Estates 
by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. see. 304
2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep. 18; Joint
tenant; Survivor; Entirety.
    46.-3. An estate in common, is one which is held by two or more 
persons by unity of possession. 
    47. They may acquire their estate by purchase, and hold by several and 
distinct titles, or by title derived at the same time, by the same deed or 
will; or by descent. In this respect the American law differs from the 
English common law. 
    48. This tenancy, according to the common law, is created by deed or 
will, or by change of title from joint tenancy or coparcenary; or it arises, 
in many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. 
Com. 192; 2 Prest. on Abstr. 75. 
    49. In this country it maybe created by descent, as well as by deed or 
will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com. Dig. Estates by 
Grant, K 8. 
    50. Estates in common can be dissolved in two ways only; first, by 
uniting all the titles and interests in one tenant secondly, by making 
partition. 
    51.-4. An estate in coparcenary, is an estate of inheritance in lands 
which descend from the ancestor to two or more persons who are called 
coparceners or parceners. 
    52. This is usually applied, in England, to cases where lands descend to 
females, when there are no male heirs. 
    53. As in the several states, estates generally descend to all the 
children equally, there is no substantial difference between coparceners and 
tenants in common. The title inherited by more persons than one, is, in some 
of the states, expressly declared to be a tenancy in common, as in New York 
and New Jersey, and where it is not so declared the effect is the same; the 
technical distinction between coparcenary and estates in common may be 
considered as essentially extinguished in the United States. 4 Kent, Com. 
363. Vide Estates. 
    54.-IV. An estate upon condition is one which has a qualification 
annexed to it by which it may, upon the happening or not happening of a 
particular event, be created, or enlarged, or destroyed. Conditions may be 
annexed to estates in fee, for life, or for years. These estates are divided 
into estates upon condition express, or in deed; and upon conditions 
implied, or in law. 
    55. Estates upon express conditions are particularly mentioned 'in the 
contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, Dig. 
tit. 13. 
    56. Estates upon condition in law are such as have a condition impliedly 
annexed to them, without any condition being specified in the deed or will. 
Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b. 
    57. Considered as to the title which may be had in them, estates are 
legal and equitable. 1. A legal estate is one, the right to which can be 
enforced in a court of law. 2. An equitable, is a right or interest in land, 
which not having the properties of a legal estate, but being merely a right 
of which courts of equity will take notice, require the aid of such a court 
to, make it available. See, generally, Bouv. Inst. Index, h.t. 

ESTER EN JUGEMENT, French law. Stare in judicio. To appear before a tribunal 
either as plaintiff or defendant. 

ESTIMATION OF VALUES. As the value of most things is variable, according to 
circumstances, the law in many cases determines the time at which the value 
of a thing should be taken; thus, the value of an advancement, is to be 
taken at the time of the gift. 1 Serg. & R. 425. Of a gift in frank-
marriage, at the time of partition between the parceners, and the bringing 
of the gift in frank-marriage into hotchpot. But this is a case sui generis. 
Co. Lit. Sec. 273; 1 Serg. & R. 426. Of the yearly value of properties; at 
the time of partition. Tho. Co. Lit. 820. Of a bequest of so pieces of coin; 
at the time of the will made. Godolph, 0. L. 273, part 3, chap. 1. Sec. 3. 
Of assets to make lineal warranty a bar; at the time of the descent. Co. 
Lit. 374, b. Of lands warranted; at the time of the warranty. Beames' Glanv. 
75 n.; 2 Serg. & Rawle, 444, see Eviction 2. Of a ship lost at sea; her 
value is to be taken at the port from which she sailed, deducting one-fifth; 
2 Serg. & Rawle, 258; 1 Caines, 572; 2 Condy. Marshall, 545; but different 
rules prevail on this subject in different nations. 2 Serg. & R. 259. Of 
goods lost at sea; their value is to be taken at the port of delivery. 2 
Serg. & R. 257. The comparative value of a life estate, and the remainder in 
fee, is one-third for the life and two-thirds for the remainder in fee; and 
moneys due upon a mortgage of lands devised to one for life, and the 
remainder in fee to another, are to be apportioned by the same rule. 1 Vern. 
70; 1 Chit. Cas. 223, 224, 271; Francis' Max. 3, Sec. 12, and note. See 
Exchange, 3-2. 

ESTOPPEL, pleading. An estoppel is a preclusion, in law, which prevents a 
man from alleging or denying a fact, in consequence o his own previous act, 
allegation or denial of a contrary tenor. Steph. Pl. 239. Lord Coke says, 
"an estoppel is, when a man is concluded by his own act or acceptance, to 
say the truth." Co. Litt. 352, a. And Blackstone defines "an estoppel to be 
a special plea in bar, which happens where a man has done some act, or 
executed some deed, which estops or precludes him from averring any thing to 
the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. & R. 444; 
they are not admitted in equity against the truth. Id. 442. Nor can jurors 
be estopped from saying the truth, because they are sworn to do so, although 
they are estopped from finding against the admission of the parties in their 
pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. 662; Angel on 
Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. notes. 
     2. An estoppel may, arise either from matter of record; from the deed 
of the party; or from matter in Pays; that is, matter of fact. 
     3. Thus, any confession or admission made in pleading, in a court of 
record, whether it be express, or implied from pleading over without a 
traverse, will forever preclude the party from afterwards contesting the 
same fact in any subsequent suit with his adversary. Com. Dig. Estoppel, A 
1. This is an estoppel by matter of record. 
     4. As an instance of an estoppel by deed, may be mentioned the case of 
a bond reciting a certain fact. The party executing that bond, will be 
precluded from afterwards denying in any action brought upon that 
instrument, the fact, so recited. 5 Barn. & Ald. 682. 
     5. An example of an estoppel by matter in pays occurs when one man has 
accepted rent of another. He will be estopped from afterwards. denying, in 
any action, with that person, that he was, at the time of such acceptance, 
his tenant. Com. Dig. Estoppel, A 3 Co. Litt. 352, a. 
     6. This doctrine of law gives rise to a kind of pleading that is 
neither by way of traverse, nor confession. and avoidance: viz. a pleading, 
that, waiving any question of fact, relies merely on the estoppel, and, 
after stating the previous act, allegation, or denial, of the opposite 
party, prays judgment, if he shall be received or admitted to aver contrary 
to what he before did or said. This pleading is called pleading by way of 
estoppel. Steph. 240a 
     7. Every estoppel ought to be reciprocal, that is, to bind both 
parties: and this is the reason that regularly a stranger shall neither take 
advantage or be bound by an estoppel. It should be directly affirmative, and 
not by inference nor against an estoppel. Co. Lit. 352, a, b; 1 R. 442-3; 9 
Serg. & R. 371, 430; 4 Yeates' 38 1 Serg. & R. 444; Corn. Dig. Estoppel, C 3 
Johns. Cas. 101; 2 Johns. R. 382; 8 W. & S. 135; 2 Murph. 67; 4 Mont. 370. 
Privies in blood, privies in estate, and privies in law, are bound by, and 
may take advantage of estoppels. Co. Litt. 352; 2 Serg. & Rawle, 509; 6 Day, 
R. 88. See the following cases relating to estoppels by; Matter of record: 4 
Mass. R. 625; 10 Mass. R. 155; Munf. R. 466; 3 East, R. 354; 2 Barn. & Ald. 
362, 971; 17 Mass. R. 365; Gilm. R. 235; 5 Esp. R. 58; 1 Show. 47; 3 East, 
R. 346. Matter of writing: 12 Johns. R. 347; 5 Mass. R. 395; Id. 286; 6 
Mass. R. 421; 3 John. Cas. 174; 5 John. R. 489; 2 Caines' R. 320; 3 Johns. 
R. 331; 14 Johns. R. 193; Id. 224; 17 Johns. R. 161; Willes, R. 9, 25; 6 
Binn. R. 59; 1 Call, R. 429; 6 Munf. R. 120; 1 Esp. R. 89; Id. 159; Id. 217; 
1 Mass. R. 219. Matter in pays: 4 Mass. R. 181; Id. 273 15 Mass. R. 18; 2 
Bl. R. 1259; 1 T. R. 760, n.; 3 T. R. 14; 6 T. R. 62; 4 Munf. 124; 6 Esp. R. 
20; 2 Ves. 236; 2 Camp. R. 844; 1 Stark. R. 192. And see, in general, 10 
Vin. Abr. 420, tit. Estoppel; Bac. Abr. Pleas, 111; Com. Dig. Estoppel; Id. 
Pleader, S 5; Arch. Civ. Pl. 218; Doct. Pl. 255; Stark. Ev. pt. 2, p. 206, 
302; pt. 4, p. 30; 2 Smith's Lead. Cas. 417-460. Vide Term. 

ESTOVERS, estates. The right of taking necessary wood for the use or 
furniture of a house or farm, from off another's estate. The word bote is 
used synonymously with the word estovers. 2 Bl. Com. 35; Dane's Ab. Index, 
h.t.; Woodf. L. & T. 232; 10 Wend. 639; 2 Bouv. Inst. n. 1652 57. 

ESTRAYS. Cattle whose owner is unknown. 
     2. In the United States, generally, it is presumed by local 
regulations, they are subject to, being sold for the benefit of the poor, of 
some other public use, of the place where found. 

ESTREAT. This term is used to signify a true copy or note of some original 
writing or record, and specially of flues and amercements imposed by a 
court, and extracted from the record, and certified to a proper officer or 
officers authorized and required to collect them. Vide F. N. B. 57, 76. 

ESTREPE. This word is derived from the French, estropier, to cripple. It 
signifies an injury to lands, to the damage of another, as a reversioner. 
This is prevented by a writ of estrepement. 

ESTREPEMENT. The name of a writ which lay at common law to prevent a party 
in possession from committing waste on an estate, the title to which is 
disputed, after judgment obtained in any real action, and before possession 
was delivered by the sheriff. 
     2. But as waste might be committed in some cases, pending the suit, the 
statute of Gloucester gave another writ of estrepement pendente placito, 
commanding the sheriff firmly to inhibit the tenant "ne faciat vastum vel 
strepementum pendente placito dicto indiscusso." By virtue of either of 
these writs, the sheriff may resist those who commit waste or offer to do 
so; and he may use sufficient force for the purpose. 3 Bl. Com. 225, 226. 
     3. This writ is sometimes directed to the sheriff and the party in 
possession of the lands, in order to make him amenable to the court as for a 
contempt in case of his disobedience to the injunction of the writ. At 
common law the process proper to bring the tenant into court is a venire 
facias, and thereon an attachment. Upon the defendant's coming in, the 
plaintiff declares against him. The defendant usually pleads "that he has 
done no waste contrary to the prohibition of the writ." The issue on this 
plea is tried by a jury, and in case they find against the defendant, they 
assess damages which the plaintiff recovers. But as this verdict convicts 
the defendant of a contempt, the court proceed against him for that cause as 
in other cases. 2 Co. Inst. 329; Rast. Ent. 317; Brev. Judic. 88; More's 
Rep. 100; 1 Bos. & Pull. 121; 2 Lilly's Reg. tit. Estrepement; 5 Rep. 119; 
Reg. Brev. 76, 77. 
     4. In Pennsylvania, by legislative enactment, the remedy by estrepement 
is extended for the benefit of any owner of lands leased for years or at 
will, at any time during the continuance or after the expiration of such 
demise, and due notice given to the tenant to leave the same, agreeably to 
law, or for any purchaser at sheriff or coroner's sale of lands. &c., after 
he has been declared the highest bidder by the sheriff or coroner; or for 
any mortgagee or judgment creditor, after the lands bound by such judgment 
or mortgage, shall have been condemned by inquisition, or which may be 
subject to be sold by a writ of venditioni exponas or levari facias. Vide 10 
Vin. Ab. 497; Woodf. Landl. & Ten, 447; Archb. Civ. Pl. 17; 7 Com. Dig. 659. 

ET CETERA. A Latin phrase, which has been adopted into English; it 
signifies. "and the others, and so of the rest," it is commonly abbreviated, 
&c. 
     2. Formerly the pleader was required to be very particular in making 
his defence. (q.v.) B making full defence, he impliedly admitted the 
jurisdiction of the court, and the competency of the plaintiff to sue; and 
half defence was used when the defendant intended to plead to the 
jurisdictions or disability. To prevent the inconveniences which might arise 
by pleading full or half defence, it became the practice to plead in the 
following form: "And the said C D, by E F, his attorney, comes and defends 
the wrong and injury, when, &c., and says," which was either full or half 
defence. 2 Saund. 209, c.; Steph. Pl. 432; 2 Chit. Pl. 455. 
     3. In practice, the &c. is used to supply the place of words which have 
been omitted. In taking recognizance, for example, it is usual to make an 
entry on the docket of the clerk of the court, as follows: A B, tent, &c., 
in the sum of $1000, to answer, &c. 6 S. & R. 427. 

ET NON. And not. These words are sometimes employed in pleading to convey a 
pointed denial. They have the same effect as without this, absque hoe. 3 
Bouv. Inst. n. 2981, note. 

EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going, remaining, 
and returning. It is employed in cases where a person either as a party, a 
witness, or one acting in some other capacity, as an elector, is privileged 
from arrest, in order to give him that freedom necessary to the performance 
of his respective obligations, to signify that he is protected from arrest 
eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380. 

EUNOMY. Equal laws, and a well adjusted constitution of government. 

EUNUCH. A male whose organs of generation have been so far removed or 
disorganized, that he is rendered incapable of reproducing his species. 
Domat, Lois Civ. liv. prel. tit. 2, s. 1, n. 10. 

EVASION. A subtle device to set aside the truth, or escape the punishment of 
the law; as if a man should tempt another to strike him first, in order that 
he might have an opportunity of returning the blow with impunity. He is 
nevertheless punishable, because he becomes himself the aggressor in such a 
case. Wishard, 1 H. P. C. 81 Hawk. P. C. c. 31, Sec. 24, 25; Bac. Ab. 
Fraud, A. 
     2. An escape from custody.

EVICTION. The loss or deprivation which the possessor of a thing suffers, 
either in whole or in part, of his right of property in such a thing, in 
consequence of the right of a third person established before a competent 
tribunal. 10 Rep. 128; 4 Kent,  Com. 475-7; 3 Id. 464-5. 
     2. The eviction may be total or partial. It is total, when the 
possessor is wholly deprived of his rights in the whole thing; partial, when 
he is deprived of only a portion of the thing; as, if he had fifty acres of 
land, and a third person recovers by a better title twenty-five; or, of some 
right in relation to the thing. as, if a stranger should claim and establish 
a right to some easement over the same. When the grantee suffers a total 
eviction, and he has a covenant of seisin, he recovers from the seller, the 
consideration money, with interest and costs, and no more. The grantor has 
no concern with the future rise or fall of the property, nor with the 
improvements made by the purchaser. This seems to be the general rule in the 
United States. 3 Caines' R. 111; 4 John. R. 1; 13 Johns. R. 50; 4 Dall. R. 
441; Cooke's Term. R. 447; 1 Harr. & Munf. 202; 5 Munf. R. 415; 4 Halst. R. 
139; 2 Bibb, R. 272. In Massachusetts, the measure of damages on a covenant 
of warranty, is the value of the land at the time of eviction. 3 Mass. R. 
523; 4 Mass. R. 108. See, as to other states, 1 Bay, R. 19, 265; 3 Des. Eq. 
R. 245; 2 Const. R. 584; 2 McCord's R. 413; 3 Call's R. 326. 
     3. When the eviction is only partial the damages to be recovered under 
the covenant of seisin, are a rateable part of the original price, and they 
are to bear the same ratio to the whole consideration, that the value of 
land to which the title has failed, bears to the value of the whole tract. 
The contract is not rescinded, so as to entitle the vendee to the whole 
consideration money, but only to the amount of the relative value of the 
part lost. 5 Johns. R. 49; 12 Johns. R. 126; Civ. Code of Lo. 2490; 4 Kent's 
Com. 462. Vide 6 Bac. Ab. 44; 1 Saund. R. 204: note 2, and 322 a, note 2; 1 
Bouv. Inst. n. 656. 

EVIDENCE. That which demonstrates, makes clear, or ascertains the truth of 
the very fact or point in issue; 3 Bl. Com. 367; or it is whatever is 
exhibited to a court or jury, whether it be by matter of record, or writing, 
or by the testimony of witnesses, in order to enable them to pronounce with 
certainty; concerning the truth of any matter in dispute; Bac. Ab. Evidence, 
in pr.; or it is that which is legally submitted to a jury, to enable them 
to decide upon the questions in dispute or issue, as pointed out by the 
pleadings and distinguished from all comment or argument. 1 Stark. Ev. 8. 
    2. Evidence may be considered with reference to, 1. The nature of the 
evidence. 2. The object of the evidence. 3. The instruments of evidence. 4. 
The effect of evidence. 1. As to its nature, evidence may be considered with 
reference to its being 1. Primary evidence. 2. Secondary evidence. 3. 
Positive. 4. Presumptive. 5. Hearsay. 6. Admissions. 
     4.-1. Primary evidence. The law generally requires that the best 
evidence the case admits of should be given; B. N. P. 293; 1 Stark. Ev. 102, 
390; for example, when a written contract has been entered into, and the 
object is to prove what it was, it is requisite to produce the original 
writing if it is to be attained, and in that case no copy or other inferior 
evidence will be received. 
     5. To this general rule there are several exceptions. 1. As it refers 
to the quality rather than to the quantity of evidence, it is evident that 
the fullest proof that every case admits of, is not requisite; if, 
therefore, there are several eye-witnesses to a fact, it may be sufficiently 
proved by one only. 
     2. It is not always requisite, when the matter to be proved has been 
reduced to writing, that the writing should be produced; as, if the 
narrative of a fact to be proved has been committed to writing, it may yet 
be proved by parol evidence. A receipt for the payment of money, for 
example, will not exclude parol evidence of payment. 14 Esp. R. 213; and see 
7 B. & C. 611; S. C. 14 E. C. L. R. 101; 1 Campb. R. 439; 3 B. & A. 566; 6 
E. C. L. R. 377. 
     6.-2. Secondary evidence. That species of proof which is admissible 
on the loss of primary evidence, and which becomes by that event the best 
evidence. 3 Yeates, Rep. 530. 
     7. It is a rule that the best evidence, or that proof which most 
certainly exhibits the true state of facts to which it relates, shall be 
required, and the law rejects secondary or inferior evidence, when it is 
attempted to be substituted for evidence of a higher or superior nature. 
This is a rule of policy, grounded upon a reasonable suspicion, that the 
substitution of inferior for better evidence arises from sinister motives; 
and an apprehension that the best evidence, if produced, would alter the 
case to the prejudice of the party. This rule relates not to the measure and 
quantity of evidence, but to its quality when compared with some other 
evidence of superior degree. It is not necessary in point of law, to give 
the fullest proof that every case may admit of. If, for example, there be 
several eye witnesses to a fact, it may be proved by the testimony of one 
only. 
     8. When primary evidence cannot be had, then secondary evidence will be 
admitted, because then it is the best. But before such evidence can be 
allowed, it must be clearly made to appear that the superior evidence is not 
to be had. The person who possesses it must be applied to, whether he be a 
stranger or the opposite party; in the case of a stranger, a subpoena and 
attachment, when proper, must be taken out and served; and, in the case of a 
party, notice to produce such primary evidence must be proved before the 
secondary evidence will be admitted. 7 Serg. & Rawle, 116; 6 Binn. 228; 4 
Binn. R. 295, note; 6 Binn. R. 478; 7 East, R. 66; 8 East, R. 278 3 B. & A. 
296; S. C. 5 E. C. L. R. 291. 
     9. After proof of the due execution of the original, the contents 
should be proved by a counterpart, if there be one, for this is the next 
best evidence; and it seems that no evidence of a mere copy is admissible 
until proof has been given that the counterpart cannot be produced. 6 T. R. 
236. If there be no counterpart, a copy may be proved in evidence. by any 
witness who knows that it is a copy, from having compared it with the 
original. Bull. N. P. 254; 1 Keb. 117; 6 Binn. R. 234; 2 Taunt. R. 52; 1 
Campb. R. 469 8 Mass. R. 273. If there be no copy, the party may produce an 
abstract, or even give parol evidence of the contents of a deed. 10 Mod. 8; 
6 T. R. 556. 
    10. But it has been decided that there are no degrees in secondary 
evidence: and when a party has laid the foundation for such evidence, he may 
prove the contents of a deed by parol, although it appear that an attested 
copy is in existence. 6 C. & P. 206; 8 Id. 389. 
    11.-3. Positive or direct evidence is that which, if believed, 
establishes the truth of a fact in issue, and does not arise from any 
presumption. Evidence is direct and positive, when the very facts in dispute 
are communicated by those who have the actual knowledge of them by means of 
their senses. 1 Phil. Ev. 116 1 Stark. 19. In one sense, there is but little 
direct or positive proof, or such proof as is acquired by means of one's own 
sense, all other evidence is presumptive but, in common acceptation, direct 
and positive evidence is that which is communicated by one who has actual 
knowledge of the fact. 
    12.-4. Presumptive evidence is that which is not direct, but where, on 
the contrary, a fact which is not positively known, is presumed or inferred 
from one or more other facts or circumstances which are known. Vide article 
Presumption, and Rosc. Civ. Ev. 13; 1 Stark. Ev. 18. 
    13.-5. Hearsay, is the evidence of those who relate, not what they 
know themselves, but what they have heard from others. 
    14. Such mere recitals or assertions cannot be received in evidence, for 
many reasons, but principally for the following: first, that the party 
making such declarations is not on oath and, secondly, because the party 
against whom it operates, has no opportunity of cross-examination. 1 Phil. 
Ev. 185. See, for other reasons, 1 Stark. Ev. pt. 1, p. 44. The general rule 
excluding hearsay evidence, does not apply to those declarations to which 
the party is privy, or to admissions which he himself has made. See 
Admissions. 
    15. Many facts, from their very nature, either absolutely, or usually 
exclude direct evidence to prove them, being such as are either necessarily 
or usually, imperceptible by the senses, and therefore incapable of the 
ordinary means of proof. These are questions of pedigree or relationship, 
character, prescription, custom, boundary, and the like; as also questions 
which depend upon the exercise of particular skill and judgment. Such facts, 
some from their nature, and others from their antiquity, do not admit of the 
ordinary and direct means of proof by living witnesses; and, consequently, 
resort must be had to the best means of proof which the nature of the cases 
afford. See Boundary; Custom; Opinion; Pedigree; Prescription. 
    16.-6. Admissions are the declarations which a party by himself, or 
those who act under his authority, make of the existence of certain facts. 
Vide Admissions. 
    17.- 2. The object of evidence is next to be considered. It is to 
ascertain the truth between the parties. It has been discovered by 
experience that this is done most certainly by the adoption of the following 
rules, which are now binding as law: 1. The evidence must be confined to the 
point in issue. 2. The substance of the issue must be proved, but only the 
substance is required to be proved. 3. The affirmative of the issue must be 
proved. 
    18.-1. It is a general rule, both in civil and criminal cases, that 
the evidence shall be confined to the point in issue. Justice and 
convenience require the observance of this rule, particularly in criminal 
cases, for when a prisoner is charged with an offence, it is of the utmost 
importance to him that the facts laid before the jury should consist 
exclusively of the transaction, which forms the subject of the indictment, 
and, which alone he has come prepared to answer. 2 Russ. on Cr. 694; 1 Phil. 
Ev. 166. 
    19. To this general rule, there are several exceptions, and a variety of 
cases which do not fall within the rule. 1. In general, evidence of 
collateral facts is not admissible; but when such a fact is material to the 
issue joined between the parties, it may be given in evidence; as, for 
example, in order to prove that the acceptor of a bill knew the payee to be 
a fictitious person; or that the drawer had general authority from him to 
fill up bills with the name of a fictitious payee, evidence may be given to 
show that he had accepted similar bills before they could, from their date, 
have arrived from the place of date. 2 H. Bl. 288. 
    20.-2. When special damage sustained by the plaintiff is not stated in 
the declaration, it is Dot one of the points in issue, and therefore, 
evidence of it cannot be received; yet a damage which is the necessary 
result of the defendant's breach of contract, may be proved, notwithstanding 
it is not in the declaration. 11 Price's Reports, 19. 
    21.-3. In general, evidence of the character of either party to a suit 
is inadmissible, yet in some cases such evidence may be given. Vide article 
Character. 
    22.-4. When evidence incidentally applies to another person or thing 
not included in the transaction in question, and with regard to whom or to 
which it is inadmissible; yet if it bear upon the point in issue, it will be 
received. 8 Bingh. Rep. 376; S. C. 21 Eng. C. L. R. 325 and see 1 Phil. Ev. 
158; 2 East, P. C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C. 
C. 376; 2 Yeates, 114; 9 Conn. Rep. 47. 
    23.-5. The acts of others, as in the case of conspirators, may be 
given in evidence against the prisoner, when referable to the issue; but 
confessions made by one of several conspirators after the offence has been 
completed, and when the conspirators no longer act in concert) cannot be 
received. Vide article Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 2 
Brec. R. 269; 3 Serg. & Rawle, 9; 1 Rawle, 362, 458; 2 Leigh's R. 745; 2 
Day's Cas. 205; 3 Serg. & Rawle, 220; 3 Pick. 33; 4 Cranch, 75; 2 B. & A. 
573-4 S. C. 5. E. C. L. R. 381. 
    24.-6. In criminal cases, when the offence is a cumulative one, 
consisting itself in the commission of a number of acts, evidence of those 
acts is not only admissible, but essential to support the charge. On an 
indictment against a defendant for a conspiracy, to cause himself, to be 
believed a man of large property, for the purpose of defrauding tradesmen 
after proof of a representation to one tradesman, evidence may therefore be 
given of a representation to another tradesman at a different time. 1 Campb. 
Rep. 399; 2 Day's Cas. 205; 1 John. R. 99; 4 Rogers' Rec. 143; 2 Johns. Cas. 
193. 
    25.-7. To prove the guilty knowledge of a prisoner, with regard to the 
transaction in question, evidence of other offences of the same kind, 
committed by the prisoner, though not charged in the indictment, is 
admissible against him. As in the case where a prisoner had passed a 
counterfeit dollar, evidence that he had. other counterfeit dollars in his 
possession is evidence to prove the guilty knowledge. 2 Const. R. 758; Id. 
776; 1 Bailey, R. 300; 2 Leigh's R. 745; 1 Wheeler's Cr. Cas. 415; 3 Rogers' 
Rec. 148; Russ. & Ry. 132; 1 Campb. Rep. 324; 5 Randolph's R. 701. 
    26.-2. The substance of the issue joined between the parties must be 
proved. 1 Phil. Ev. 190. Under this rule will be considered the quantity of 
evidence required to support particular averments in the declaration or 
indictment. 
    27. And, first, of civil cases. 1. It is a fatal variance in a contract, 
if it appear that a party who ought to have been joined as plaintiff has 
been omitted. 1 Saund. 291 b, n.; 2 T. R. 282. But it is no variance to omit 
a person who might have been joined as defendant, because the non-joinder 
ought to have been pleaded in abatement. 1 Saund. 291 d, n. 2. The 
consideration of the contract must be proved but it is not necessary for the 
plaintiff to set out in his declaration, or prove on the trial, the several 
parts of a contract consisting of distinct and collateral provisions; it is 
sufficient to state so much of the contract as contains the entire 
consideration of the act, and the entire act to be done in virtue of such 
consideration, including the time, manner, and other circumstances of its 
performance. 6 East, R. 568; 4 B. & A. 387; 6 E. C. L. R. 455. 
    28.-Secondly. In criminal cases, it may be laid down, 1. That it is, 
in general, sufficient to prove what constitutes an offence. It is enough to 
prove so much of the indictment as shows that the defendant has committed a 
substantive crime therein specified. 2 Campb. R. 585; 1 Harr. & John. 427. 
If a man be indicted for robbery, he may be found guilty of larceny, and not 
guilty of the robbery. 2 Hale, P. C. 302. The offence of which the party is 
convicted, must, however, be of the same class with that of which he is 
charged. 1 i Leach, 14; 2 Stra. 1133. 
    29.-2. When the intent of the prisoner furnishes one of the 
ingredients in the offence, and several intents are laid in the indictment, 
each of which, together with the act done, constitutes an offence, it is 
sufficient to prove one intent only. 3 Stark. R. 35; 14 E. C. L. R. 154, 
163. 
    30.-3. When a person or thing, necessary to be mentioned in an 
indictment, is described with circumstances of greater particularity than is 
requisite, yet those circumstances must be proved. 3 Rogers' Rec. 77; 3 
Day's Cas. 283. For example, if a party be charged with stealing a black 
horse, the evidence must correspond with the averment, although it was 
unnecessary to make it. Roscoe's Cr. Ev. 77 4 Ohio, 350. 
    31.-4. The name of the prosecutor, or party injured; must be proved as 
laid, and the rule is the same with reference to the name of a third person 
introduced into the indictment, as. descriptive of some person or thing. 
    32.-5. The affirmative of the issue must be proved. The general rule 
with regard to the burthen of proving the issue, requires that the party who 
asserts the, affirmative should prove it. But this rule ceases to operate 
the moment the presumption of law is thrown into the other scale. When the 
issue is on the legitimacy of a child therefore, it is incumbent on the 
party asserting the illegitimacy to prove it. 2 Selw. N. P. 709. Vide Onus 
Probandi; Presum 2 Gall. R. 485 and 1 McCord, 573. 
    33.-3. The consideration of the instruments of evidence will be the 
subject of this head. These consist of records, private writings, or 
witnesses. 
    34.-1. Records are to be proved by an exemplification, duly 
authenticated, (Vide Authentication, in all cases where the issue is nul 
tiel record. In other cases, an examined copy, duly proved, will, in 
general, be evidence. Foreign laws as proved in the mode pointed out under 
the article Foreign laws. 
    35.-2. Private writings are proved by producing the attesting witness; 
or in case of his death, absence, or other legal inability to testify, as 
if, after attesting the paper, he becomes infamous, his handwriting may be 
proved. When there is no witness to the instrument, it may be proved by the 
evidence of the handwriting of the party, by a person who has seen him 
write, or in a course of correspondence has become acquainted with his hand. 
See Comparison of handwriting, and 5 Binn. R. 349; 10 Serg. & Rawle, 110; 11 
Serg. & Rawle, 333 3 W. C. C. R. 31; 11 Serg. & Rawle, 347 6 Serg. & Rawle, 
12, 812; 1 Rawle, R. 223; 3 Rawle, R. 312; 1 Ashm. R. 8; 3 Penn. R. 136. 
    36. Books of original entry, when duly proved, are prima facie evidence 
of goods sold and delivered, and of work and labor done. Vide original 
entry. 
    37.-3. Proof by witnesses. The testimony of witnesses is called parol 
evidence, or that which is given viva voce, as contra-distinguished from 
that which is written or documentary. It is a general rule, that oral 
evidence shall in no case be received as equivalent to, or as a substitute 
for, a written instrument, where the latter is required by law; or to give 
effect to a written instrument which is defective in any particular which by 
law is essential to its validity; or to contradict, alter or vary a written 
instrument, either appointed by law, or by the contract of the parties, to 
be the appropriate and authentic memorial of the particular facts it 
recites; for by doing so, oral testimony would be admitted to usurp the 
place of evidence decidedly superior in degree. 1 Serg. & Rawle, 464; Id. 
27; Addis. R. 361; 2 Dall. 172; 1 Yeates, 140; 1 Binn. 616; 3 Marsh. Ken. R. 
333; 4 Bibb, R. 473; 1 Bibb, R. 271; 11 Mass. R. 30; 13 Mass. R. 443; 3 
Conn. 9; 20 Johns. 49; 12 Johns. R. 77; 3 Camp. 57; 1 Esp. C. 53; 1 M. & S. 
21; Bunb. 175. 
    38. But parol evidence is admissible to defeat a written instrument, on 
the ground of fraud, mistake, &c., or to apply it to its proper subject 
matter; or, in some instances, as ancillary to such application, to explain 
the meaning of doubtful terms, or to rebut presumptions arising 
extrinsically. In these cases, the parol evidence does not usurp the place, 
or arrogate the authority of, written evidence, but either shows that the 
instrument ought not to be allowed to operate at all, or is essential in 
order to give to the instrument its legal effect. 1 Murph. R. 426 4 Desaus. 
R. 211; 1 Desaus. R. 345 1 Bay, R. 247; 1 Bibb, R. 271 11 Mass. R. 30; see 1 
Pet. C. C. R. 85 1 Binn. R. 610; 3 Binn. R. 587: 3 Serg. Rawle, 340; Poth. 
Obl. Pl. 4, c. 2. 
    39.-4. The effect of evidence. Under this head will be considered, 
1st. The effect of judgments rendered in the United States, and of records 
lawfully made in this country; and, 2d. The effect of foreign judgments and 
laws. 
    40.-1. As a general rule, a judgment rendered by a court of competent 
jurisdiction, directly upon the point in issue, is a bar between the same 
parties: 1 Phil. Ev. 242; and privies in blood, as an heir 3 Mod. 141; or 
privies in estate 1 Ld. Raym. 730; B. N. P. 232; stand in the same 
situation. as those they represent; the verdict and judgment may be used for 
or against them, and is conclusive. Vide Res Judicata. 
    41. The Constitution of the United States, art. 4, s. 1, declares, that 
"Full faith and credit shall be given, in each state, to the public acts, 
records, and judicial proceedings of every other state. And congress may, by 
general laws, prescribe the manner in which Such acts, records and 
proceedings, shall be proved, and the effect thereof." Vide article 
Authentication and 7 Cranch, 481; 3 Wheat. R. 234 10 Wheat. R. 469; 17 Mass. 
R. 546; 9 Cranch, 192; 2 Yeates, 532; 7 Cranch, 408; 3 Bibb's R. 369; 5 
Day's R. 563; 2 Marsh. Kty. R. 293. 
    42.-2. As to the effect of foreign laws, see article Foreign Laws. For 
the force and effect of foreign judgments, see article Foreign Judgments. 
Vide, generally, the Treatises on Evidence, of Gilbert, Phillips, Starkie, 
Roscoe, Swift, Bentham, Macnally, Peake, Greenleaf, and Bouv. Inst. Index, 
h.t.; the various Digests, h.t. 

EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually attend other 
facts sought to be, proved; that which is not direct evidence. For example, 
when a witness testifies that a man was stabbed with a knife, and that a 
piece of the blade was found in the wound, and it is found to fit exactly 
with another part of the blade found in the possession of the prisoner; the 
facts are directly attested, but they only prove circumstances, and hence 
this is called circumstantial evidence. 
     2. Circumstantial evidence is of two kinds, namely, certain and 
uncertain. It is certain when the conclusion in question necessarily follows 
as, where a man had received a mortal wound, and it was found that the 
impression of a bloody left hand had been made on the left arm of the 
deceased, it was certain some other person than the deceased must have made 
such mark. 14 How. St. Tr. 1324. But it is uncertain whether the death was 
caused by suicide or by murder, and whether the mark of the bloody hand was 
made by the assassin, or by a friendly hand that came too late to the relief 
of the deceased. Id. Vide Circumstances. 

EVIDENCE, CONCLUSIVE. That which, while uncontradicted, satisfies the judge 
and jury it is also that which cannot be contradicted. 
     2. The record of a court of common law jurisdiction is conclusive as to 
the facts therein stated. 2 Wash. 64; 2 H. 55; 6 Conn. 508, But the judgment 
and record of a prize court is not conclusive evidence in the state courts, 
unless it had jurisdiction of the subject-matter; and whether it had or not, 
the state courts may decide. 1 Conn. 429. See as to the conclusiveness of 
the judgments of foreign courts of admiralty, 4 Cranch, 421, 434; 3 Cranch, 
458; Gilmer, 16 Const. R. 381 1 N. & M. 5 3 7. 

EVIDENCE, DIRECT. That which applies immediately to the fadum probandum, 
without any intervening process; as, if A testifies he saw B inflict a 
mortal wound on C, of which he, instantly died. 1 Greenl. Ev. Sec. 13. 

EVIDENCE, EXTRINSIC. External evidence, or that which is not contained in 
the body of an agreement, contract, and the like. 
     2. It is a general rule that extrinsic evidence cannot be admitted to 
contradict, explain, vary or change the terms of a contract or of a will, 
except in a latent ambiguity, or to rebut a resulting trust. 14 John. 1; 1 
Day, R. 8; 6 Conn. 270. 

EVOCATION, French law. The act by which a judge is deprived of the 
cognizance of a suit over which he had jurisdiction, for the purpose of 
conferring on other judges the power of deciding it. This is done with us by 
writ of certiorari. 

EWAGE. A toll paid for water passage. Cowell. The same as aquagium. (q.v.) 

EX CONTRACTU. This term is applied to such things as arise from a contract; 
as an action which arises ex contractu. Vide Action. 

EX DELICTO. Those actions which arise in consequence of a crime, 
misdemeanor, fault, or tort; actions arising ex delicto are case, replevin, 
trespass, trover. See Action. 

EX DOLO MALO. Out of fraud or deceit. When a cause of action arises from 
fraud or deceit, it cannot be supported: Ex dolo malo, non oritur actio. 

EX AEQUO ET BONO. In equity and good conscience. A man is bound to pay money 
which ex oequo et bono he holds for the use of another. 

EX MERO MOTU. Mere motion of a party's own free will. To prevent injustice, 
the courts will, ex mero motu, make rules and orders which the parties would 
not strictly be entitled to ask for. 

EX MORA. From the delay; from the default. All persons are bound to make 
amends for damages which arise from their own default. 

EX NECESSITATE LEGIS. From the necessity of law.

EX NECESSITATE REI. From the necessity of the thing. Many acts may be done 
ex necessitate ret, which would not be justifiable without it; and sometimes 
property is protected, ex necessitate rei, which, under, other 
circumstances, would not be so. For example, property put upon the land of 
another from necessity, cannot be distrained for rent. See Distress; 
Necessity. 

EX OFFICIO. By virtue of his office. 2. Many powers are granted and 
exercised by public officers which are not expressly delegated. A judge, for 
example, may, ex officio, be a conservator of the peace, and a justice of 
the peace. 

EX PARTE. Of the one part. Many things may be done ex parte, when the 
opposite party has had notice; an affidavit or deposition is said to be 
taken ex parte when only one of the parties attends to taking the same. Ex 
parte paterna, on the side of the father, or property descended to a person 
from his father; ex parte materna, on the part of the mother. 

EX POST FACTO, contracts, crim. law. This is a technical expression, which 
signifies, that something has been done after another thing, in relation to 
the latter. 
     2. An estate granted, may be made good or avoided by matter ex post 
facto, when an election is given to the party to accept or not to accept. 1 
Co. 146. 
     3. The Constitution of the United States, art. 1, sec. 10, forbids the 
states to pass any ex post facto law; which has been defined to be one which 
renders the act punishable in a manner in which it was not punishable when 
it was committed. 6 Cranch, 138. This definition extends to laws passed 
after the act, and affecting a person by way of punishment of that act, 
either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. 
S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index, h.t. 
     4. This prohibition in the constitution against passing ex post facto 
law's, applies exclusively to criminal or penal cases, and not to civil 
cases. Serg. Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, 
R. 350; 5 Monr. 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 
Binn. R. 271; 1 J. J. Marsh, 563; 2 Pet. R. 681; and the article 
Retrospective. 

EX VI TERMINI. By force of the term; as a bond ex vi termini imports a 
sealed instrument. 

EX VISITATIONE DEI. By or from the visitation of God. This phrase is 
frequently employed in inquisitions by the coroner, where it signifies that 
the death of the deceased is a natural one. 

EX TEMPORE. From the time without premeditation. 

EXACTION, torts. A willful wrong done by an officer, or by one who, under 
color of his office, takes more fee or pay for his services than what the 
law allows. Between extortion and exaction there is this difference; that in 
the former case the officer extorts more than his due, when something is due 
to him; in the latter, he exacts what is not his due, when there is nothing 
due to him. Wishard; Co. Litt. 368. 

EXAMINATION, crim. law. By the common law no one is bound to accuse himself. 
Nemo tenetur prodere seipsum. In England, by the statutes of Philip and 
Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10,) the principles of which 
have been adopted in several of the United States, the justices before whom 
any person shall be brought, charged with any of the crimes therein 
mentioned, shall take the examination of the prisoner, as well is that of 
the witnesses, in writing, which the magistrates shall subscribe, and 
deliver to the officer of the court where the trial is to be had. The 
signature of the prisoner, when not specially required by statute, is not 
indispensable, though it is proper to obtain it, when it can be obtained. 1 
Chit. Cr. Law, 87; 2 Leach, Cr. Cas. 625. 
     2. It will be proper to consider, 1. The requisites of such 
examination. 2. How it is to be proved. 3. Its effects. 
     3.-1. It is required that it should, 1st. Be voluntarily made, 
without any compulsion of any kind; and, 2d. It must be reduced to writing. 
1st. The law is particularly solicitous to let the prisoner be free in 
making declarations in his examination; and if the prisoner has not been 
left entirely free, or did not consider himself to be so, or if he did not 
feel at liberty wholly to decline any explanation or declaration whatever, 
the examination is not considered voluntary, and the writing cannot be read 
in evidence against him, nor can parol evidence be received of what the 
prisoner said on the occasion. 5 C. & P. 812; 7 C. & P. 177; 1 Stark. R. 
242; 6 Penn. Law Journ. 120. The prisoner, of course, cannot be sworn, and 
make his statement under oath. Bull. N. P. 242; 4 Hawk. P. C. book 2, c. 46, 
Sec. 37; 4 C. & P. 564. 2a. The statute requires that the examination shall 
be reduced to writing, or so much as may be material, and the law presumes 
the magistrate did his duty and took down all that was material. Joy on 
Conf. 89-92; 1 Greenl. Ev. Sec. 227. The prisoner need not sign the 
examination so reduced to writing, to give it validity; but, if being asked 
to sign it, he absolutely refuse, it will be considered incomplete. 2 Stark. 
R. 483; 2 Leach, Cr. Cas. 627, n. 
    4.-2. The certificate of the magistrate is conclusive evidence of the 
manner in which the examination was conducted. 7 C. & P. 177; 9 C. & P. 124; 
1 Stark. R. 242. Before it can be given in evidence, its identity must be 
proved, as well as the identity of the prisoner. When the prisoner has 
signed the examination, proof of his handwriting is sufficient evidence that 
he has read it; but if he has merely made his mark, or not signed it at all, 
the magistrate or clerk must identify the prisoner, and prove that the 
writing was duly read to him, and that he assented to it. l Greenl. Ev. Sec. 
520; 1 M. & Rob. 395. 
    5.-3. The effect of such an examination, when properly taken and 
proved, is sufficient to found a conviction. 1 Greenl. Ev. Sec. 216. 

EXAMINATION, practice. The interrogation of a witness, in order to ascertain 
his knowledge as to the facts in dispute between parties. When the 
examination is made by the party who called the witness, it is called an 
examination in chief. When it is made by the other party, it is known by the 
name of cross-examination. (q.v.) 
     2. The examination is to be made in open court, when practicable; but 
when,: on account of age, sickness, or other cause, the witness cannot be so 
examined, then it may be made before authorized commissioners. In the 
examination in chief the counsel cannot ask leading questions, except in 
particular cases. Vide Cross-examination; Leading question. 
     3. The laws of the several states require the private examination of a 
feme covert before a competent officer, in order to pass her title to her 
own real estate or the interest she has in that of her husband: as to the 
mode in which this is to be done, see Acknowledgment. See, also, 3 Call, R. 
394; 5 Mason's R. 59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3 
Rand. R. 468 1 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3 Yerg. R. 548 1 
Yerg. R. 413 3 J. J. Marsh. R. 241 2 A. K. Marsh. R. 67; 6 Wend. R. 9; 1 
Dall. 11, 17; 3 Yeates, R. 471; 8 S. & R. 299; 4 S. & R. 273. 

EXAMINED COPY. This phrase is applied to designate a paper which is a copy 
of a record, public book, or register, and which has been compared with the 
original. 1 Campb. 469. 
     2. Such examined copy is admitted in evidence, because of the public 
inconvenience which would arise, if such record, public book, or register, 
were removed from place to place, and because any fraud or mistake made in 
the examined copy would be so easily, detected. 1 Greenl. Ev. Sec. 91; 1 
Stark. Ev. 189-191. But an answer in chancery, on which the defendant was 
indicted for perjury, or where the original must be produced in order to 
identify the party by proof of handwriting, an examined copy would not be 
evidence. 1 M. & Rob. 189. Vide Copy. 

EXAMINERS, practice. Persons appointed to question students of law, in order 
to ascertain their qualifications before they are admitted to practice. 
Officers in the courts of chancery whose duty it is to examine witnesses, 
are also called examiners. Com. Dig. Chancery, P 1. For rules as to the mode 
of taking examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2. 

EXAMPLE. An example is a case put to illustrate a. principle. Examples 
illustrate, but do not restrain or change the laws: illustrant non 
restringunt legem. Co. Litt. 24, a. 

EXCAMBIATOR. The name of an exchanger of lands; a broker. This term is now 
obsolete. 

EXCAMBIUM. Exchange. (q.v.)

EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which the defendant 
alleges that the matter in dispute between the parties has been before 
adjudged. See Res judicata. 

EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev. 208, n. 

EXCEPTION, legislation, construction. Exceptions are rules which limit the 
extent of other more general rules, and render that just and proper, which 
would be, on account of its generality, unjust and improper. For example, it 
is a general rule that parties competent may make contracts; the rule that 
they shall not make any contrary to equity, or contra bonos mores, is the 
exception. 

EXCEPTION, contracts. An exception is a clause in a deed,. by which the 
lessor excepts something out of that which he granted before by the deed. 
     2. To make a valid exception, these things must concur: 1. The 
exception must be by apt words; as, saving and excepting, &c. 2. It must be 
of part of the thing previously described, and not of some other thing. 3. 
It must be part of the thing only, and not of all, the greater part, or the 
effect of the thing granted; an exception, therefore, in a lease, which 
extends to the whole thing demised, is void. 4. It must be of such thing as 
is severable from the demised premises, and hot of an inseparable incident. 
5. It must be of a thing as he that accepts may have, and which properly 
belongs to him. 6. It must be of a particular thing out of a general, and 
not of a particular thing out of a particular thing. 7. It must be 
particularly described and set forth; a lease of a tract of land, except one 
acre, would be void, because that acre was not particularly described. 
Woodf. Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77; 1 Shepl. R. 337; 
Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. R. 499; 6 N. H. 
Rep. 421. Exceptions against common right and general rules are construed as 
strictly as possible. 1 Barton's Elem. Conv. 68. 
     3. An exception differs from a reservation; the former is always a part 
of the thing granted; the latter is of a thing not in esse but newly created 
or reserved. An exception differs also from an explanation, which by the use 
of a videlicet, proviso, &c., is allowed only to explain doubtful clauses 
precedent, or to separate and distribute generals, into particulars. 3 Pick. 
R. 272. 

EXCEPTION, practice, pleading. This term is used in the civil, nearly in the 
same sense that the word plea has in the common law. Merl. Repert. h.t.; 
Ayl. Parerg. 251. 
     2. In chancery practice, it is the allegation of a party in writing, 
that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr. 
228. 
     3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5; 
Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do 
not tend to defeat the action, but only to retard its progress. Poth. Proc. 
civ. partie 1, c. 2, s. 2, art. 1; Code of Pract. of Lo. art. 332. 
Declinatory exceptions have this effect, as well as the exception of 
discussion opposed by a third possessor, or by a surety in an hypothecary 
action, or the exception taken in order to call in the warrantor. Id.; 7 N. 
S. 282; 1 L. R. 38, 420. These exceptions must, in general, be pleaded in 
limine litis before issue joined. Civ. Code of Lo. 2260; 1 N. S. 703; 2 N. 
S. 389; 4 L. R. 104; 10 L. R. 546. A declinatory exception is a species of 
dilatory exception, which merely declines the jurisdiction of the judge 
before whom the action is brought. Code of Pr. of L. 334. 
     4. Peremptory exceptions are those which tend to the dismissal of the 
action. Some relate to forms, others arise from the law. Those which relate 
to forms, tend to have the cause dismissed, owing to some nullities in the 
proceedings. These must be pleaded in limine litis. Peremptory exceptions 
founded on law, are those which, without going into the merits of the cause, 
show that the plaintiff cannot maintain his action, either because it is 
prescribed, or because the cause of action has been destroyed or 
extinguished. These may be pleaded at any time previous to definitive 
judgment. Id. art. 343, 346; Poth. Proc. Civ. partie 1, c. 2, s. 1, 2, 3. 
These, in the French law, are called Fins de. non recevoir. (q.v.) 
     5. By exception is also meant the objection which is made to the 
decision of a judge in the course of a trial. See Bill of Exception. 

EXCHANGE, com. law. This word has several significations.
     2.-1. Exchange is a negotiation by which one person transfers to 
another funds which he has in a certain place, either at a price agreed 
upon, or which is fixed by commercial usage. This transfer is made by means 
of an instrument which represents such funds, and is well known by the name 
of a bill of exchange. 
     3.-2. The price which is paid in order to obtain such transfer, is 
also known among merchants by the name of exchange; as, exchange on England 
is five per cent. See 4 Wash. C. C. R. 307. Exchange on foreign money is to 
be calculated according to the usual rate at the time of trial. 5 S. & R. 
48. 
     4.-3. Barter, (q.v.) or the transfer of goods and chattels for other 
goods and chattels, is also known by the name of exchange, though the term 
barter is more commonly used. 
     5.-4. The French writers on commercial law, denominate the profit 
which arises from a maritime loan, exchange, when such profit is a 
percentage on the money lent, considering it in the light of money lent in 
one place to be returned in another, with a difference in amount in the sum 
borrowed and that paid, arising from the difference of time and place. Hall 
on Mar. Loans, 56, n.; and the articles Interest; Maritime; Premium. 
     6.-5. By exchange is also meant, the place where merchants, captains 
of vessels, exchange agents and brokers, assemble to transact their 
business. Code de Comm. art. 71. 
     7.-6. According to the Civil Code of Louisiana, art. 1758, exchange 
imports a reciprocal contract, by which. the parties enter into mutual 
agreement. 14 Pet. 133. Vide the articles. Bills of Exchange; Damages on 
Bills of Exchange and Reexchange. Also Civ. Code of Lo. art. 2630. 

EXCHANGE conveyancing. An exchange is a mutual grant of equal interests in 
land, the one in consideration of the other. 2 Bl. Com. 323; Litt. s. 62; 
Touchs. 289; Watk. Prin. Con. It is said that exchange, in the United 
States, does not differ from bargain and sale. 2 Bouv. Inst. n. 2055. 
     2. There are five circumstances necessary to an exchange. 1. That the 
estates given be equal. 2. That the word escambium or exchange be used, 
which cannot be supplied by any other word, or described by circumlocution. 
3. That there be an execution by entry or claim in the life of the parties. 
4. That if it be of things which lie in grant, it be by deed. 5. That if the 
lands lie in several counties, it be by deed indented; or if the thing lie 
in grant, though they be in one county. In practice this mode of 
conveyancing is nearly obsolete. Vide Cruise, Dig. tit. 32 Perk. ch. 4 10 
Vin. Ab. 125; Com. Dig. h.t.; Nels. Ab. h.t.; Co. Litt. 51; Hardin's R. 
593 1 N. H. Rep. 65 3 Har. & John. 361; 1 Rolle's Ab. 813, 3 Wils. R. 489. 
Vide Watk. Prin. Con. b. 2, c. 5; Horsman, 362 and 3 Wood, 243, for forms. 

EXCHEQUER R, Eng. law. An ancient court of record set up by William the 
Conqueror. It is called exchequer from the chequered cloth, resembling a 
chessboard, which covers the table there. 3 Bl. Com. 45. It consists of two 
divisions; the receipt of the exchequer, which manages the royal revenue; 
and the court, or judicial part of it, which is again divided into a court 
of equity, and a court of common law. Id. 44. 
     2. In this court all personal actions may be brought, and suits in 
equity commenced, the plaintiff in both (fictitiously for the most part) 
alleging himself to be the king's debtor, in order to give the court 
jurisdiction of the cause. Wooddes. Lect. 69. But by stat. 2 Will. IV. c. 
39, s. 1, a change has been made in this respect. 

EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed. III. c. 12, 
to determine causes upon writs of error from the common law side of the 
court of exchequer. 3 Bl. Com. 55. Another court of exchequer chamber was 
created by the stat. 27 El. c. 8, consisting of the justices of the common 
bench, and the barons of the exchequer. It has authority to examine by writ 
of err6r the proceedings of the king's bench, not so generally as that 
erected by the statute of Edw. III., but in certain enumerated actions. 

EXCISES. This word is used to signify an inland imposition, paid sometimes 
upon the consumption of the commodity, and frequently upon the retail sale. 
1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. Sec. 950. 

EXCLUSIVE, rights. Debarring one from participating in a thing. An exclusive 
right or privilege, is one granted to a person to do a thing, and forbidding 
all others to do the same. A patent right or copyright, are of this kind. 

EXCLUSIVE, computation of time. Shut out; not included. As when an act is to 
be done within a certain time, as ten days from a particular time, one day 
is to be included and the other excluded. Vide Hob. 139; Cowp. 714; Lofft, 
276; Dougl. 463; 2 Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. & Rawle, 
43; 3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig. Estates, G 8; 
2 Chit. Pr. 69, 147. 

EXCOMMUNICATION, eccl. law. An ecclesiastical sentence, pronounced by a 
spiritual judge against a Christian man, by which he is excluded from the 
body of the church, and disabled to bring any action, or sue any person in 
the common law courts. Bac. Ab. h.t.; Co. Litt. 133-4. In early times it 
was the most frequent and most severe method of executing ecclesiastical 
censure, although proper to be used, said Justinian, (Nov. 123,) only upon 
grave occasions. The effect of it was to remove the excommunicated "person 
not only from the sacred rites but from the society of men. In a certain 
sense it interdicted the use of fire and water, like the punishment spoken 
of by Caesar, (lib, 6 de Bell. Gall.). as inflicted by the Druids. Innocent 
IV. called it the nerve of ecclesiastical discipline. On repentance, the 
excommunicated person was absolved and received again to communion. These 
are said to be the powers of binding and loosing the keys of the kingdom of 
heaven. This kind of punishment seems to have been adopted from the Roman 
usage of interdicting the use of fire and water. Fr. Duaren, De Sacris 
Eccles. Ministeriis, lib. 1, cap. 3. See Ridley's View of the Civil. and 
Ecclesiastical Law, 245, 246, 249. 

EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ issuing out of 
chancery, founded on a bishop's certificate that the defendant had been 
excommunicated, which writ is returnable in the king's bench. F. N. B. 62, 
64, 65 Bac. Ab. Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II. 
c. 12; 2 & 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1 H.V. c. 5; 
also Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro. Jac. 567; 1 Vent. 146; 1 
Salk. 293, 294, 295. 

EXCUSABLE HOMICIDE, crim. law. The killing of a human being, when the party 
killing is not altogether free from blame, but the necessity which renders 
it excusable, may be said to be partly induce by his own act. 1 East, P. C. 
220. 

EXCUSE. A reason alleged for the doing or not doing a thing. This word 
presents two ideas differing essentially from each other. In one case an 
excuse may be made in, order to own that the party accused is not guilty; in 
another, by showing that though guilty, he is less so, than he appears to 
be. Take, for example, the case of a sheriff who has an execution against an 
individual, and who in performance of his duty, arrests him; in an action by 
the defendant against the sheriff, the latter may prove the facts, and this 
shall be a sufficient excuse for him: this is an excuse of the first kind, 
or a complete justification; the sheriff was guilty of no offence. But 
suppose, secondly, that the sheriff has an execution against Paul, and by 
mistake, and without any malicious design, be arrests Peter instead of Paul; 
the fact of his having the execution against Paul and the mistake being 
made, will not justify the sheriff, but it will extenuate and excuse his 
conduct, and this will be an excuse of the second kind. 
     3. Persons are sometimes excused for the commission of acts, which 
ordinarily are crimes, either because they had no intention of doing wrong, 
or because they had no power of judging, and therefore had no criminal will 
(q.v.); or having power, of judging they had no choice, and were compelled 
by necessity. Among the first class may be placed infants under the age of 
discretion, lunatics, and married women committing an offence in the 
presence of their husbands, not malum in se, as treason or murder; 1 Hale's 
P. C. 44, 45 or in offences relating to the domestic concern or management 
of the house, as the keeping of a bawdy house. Hawk. b. 1, c. 1, s. 12. 
Among acts of the second kind may be classed, the beating or killing another 
in self-defence; the destruction of property in order to prevent a more 
serious calamity, as the tearing down of a house on fire, to prevent its 
spreading to the neighboring property, and the like. See Dalloz, Dict. h.t. 

EXEAT, eccl. law. This is a Latin term, which is used to express the written 
permission which a bishop gives to an ecclesiastic to exercise the functions 
of his ministry in another diocese. 

TO EXECUTE. To make, to perform, to do, to follow out. This term is 
frequently used in the law; as, to execute a deed is to make a deed. 
     2. It also signifies to perform, as to execute a contract; hence some 
contracts are called executed contracts, and others are called executory 
contracts. 
     3. To execute also means to put to death by virtue of a lawful 
sentence; as, the sheriff executed the convict. 

EXECUTED. Something done; something completed. This word is frequently used 
in connexion with others to designate a quality of such other words; as an 
executed contract; an executed estate; an executed trust, &c. It is opposed 
to executory. 
     2. An executed contract is one which has been fulfilled; as, where the 
buyer has paid thrice of the thing purchased by him. See Agreement. 
     3. An executed estate is when there is vested in the grantee a present 
and immediate right of present or future enjoyment; and in another sense, 
the term applies to the time of enjoyment; and in that sense, an estate is 
said to be executed, when it confers a present right of present enjoyment. 
When the right of enjoyment in possession is to arise at a future period, 
only, the estate is executed that is, it is merely vested in point of 
interest: when the right of immediate enjoyment is annexed to the estate, 
then only is the estate vested in possession. 1 Prest. on Est. 62. 
     4. Trusts executed are, when by deed or will, lands are conveyed, or 
devised, in terms or in effect, to and for the use of one person or several 
persons, in trust for others, without any direction that the trustees shall 
make any farther conveyance; so that it does not appear that the author of 
the trusts had a view to a future instrument for accomplishing his 
intention. Prest. on Est. 188. 

EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45, in the 
following connexion: Et...precipiatur vice comiti quod scire faciat parti... 
quod sit ad certum diem ostensura si quid sciat dicere quare hujustnodi 
irrotulata vel in fine contenta executionem habere non debeant. This statute 
is the origin of the scire facias post annum et diem quare executionem non, 
etc. To a plea in bar to such a writ, the defendant should conclude that the 
plaintiff ought not to have or maintain his aforesaid execution thereof 
against him, which is called the executio non, as in other cases by actio 
non. (q.v.) 10 Mod. 112; Yelv. 218. 

EXECUTION, contracts. The accomplishment of a thing; as the execution of a 
bond and warrant of attorney, which is the signing, sealing, and delivery of 
the same. 

EXECUTION, crim. law. The putting a convict to death, agreeably to law, in 
pursuance of his sentence. 

EXECUTION, practice. The act of carrying into effect the final judgment of a 
court, or other jurisdiction. The writ which authorizes the officer so to 
carry into effect such judgment is also called an execution. 
     2. A distinction has been made between an execution which is used to 
make the money due on a judgment out of the property of the defendant, and 
which is called a final execution; and one which tends to an end but is not 
absolutely final, as a capias ad satisfaciendum, by virtue of which the body 
of the defendant is taken, to the intent that the plaintiff shall be 
satisfied his debt, &c., the imprisonment not being absolute, but until he 
shall satisfy the same; this is called an execution quousque. 6 Co. 87. 
     3. Executions are either to recover specific things, or money. 1. Of 
the first class are the writs of habere facias seisinam.; (q.v.) habere 
facias possessionem; (q.v.) retorno habendo; (q.v.) distringas. (q.v.) 2. 
Executions for the recovery of money are those which issue against the body 
of the defendant, as the capias ad satisfaciendum, (q.v.); an attachment, 
(q.v.); those which issue against his goods and chattels; namely, the fieri 
facias, (q.v.); the, venditioni exponas, (q.v.); those which issue against 
his lands, the levari facias; (q.v.) the liberari facias; the elegit. (q.v.)
Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h.t.; 
Com. Dig. h.t.; the various Digests, h.t.; Tidd's Pr. Index, h.t.; 3 
Bouv. Inst. n. 3365, et seq. Courts will at any time grant leave to amend an 
execution so as to make it conformable to the judgment on which it was 
issued. 1 Serg. & R. 98. A writ of error lies on an award of execution. 5 
Rep. 32, a; 1 Rawle, Rep. 47, 48; Writ of Execution; 

EXECUTION PAREE. By the term execution paree, which is used in Louisiana, is 
meant a right founded on an authentic act; that is, and passed before a 
notary, by which the creditor may immediately, without citation or summons, 
seize and cause to be sold, the property of his debtor, out of the proceeds 
of which to receive his payment. It imports a confession of judgment, and is 
not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6 Toull. n. 
208; 7 Toull. 99. 

EXECUTIONER. The name given to him who puts criminals to death, according to 
their sentence; a hangman. 
     2. In the United States, executions are so rare that there are no 
executioners by profession. It is the duty of the sheriff or marshal to 
perform this office, or to procure a deputy to do it for him. 

EXECUTIVE, government. That power in the government which causes the laws to 
be executed and obeyed: it is usually. confided to the hands of the chief 
magistrate; the president of the United States is invested with this 
authority under the national government; and the governor of each state has 
the executive power in his hands. 
     2. The officer in whom is vested the executive power is also called the 
executive. 
     3. The Constitution of the United States directs that "the executive 
power shall be vested in a president of the United States of America." Art. 
2, s. 1. Vide Story, Const. B. 3, c. 36. 

EXECUTOR, trusts. The word executor, taken in its largest sense, has several 
acceptations. 1. Executor dativus, who is one called an administrator to an 
intestate. 2. Executor testamentarius, or one appointed to the office by the 
last will of a testator, and this is what is usually meant by the term. 
     2. In the civil law, the person who is appointed to perform the duties 
of an executor as to goods, is called haeres testamentarius; the term 
executor, it is said, is a barbarism unknown to that law. 3 Atk. 304. 
     3. An executor, as the term is at present accepted, is the person to 
whom the execution of a last will and testament of personal estate is, by 
the testator's appointment, confided, and who has accepted of the same. 2 
Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinb. t. 4, s. 
2, pl. 2. 
     4. Generally speaking, all persons who are capable of making wills may 
be executors, and some others beside, as infants and married women. 2 Bl. 
Corn. 503. 
     5. An executor is absolute or qualified; his appointment is absolute 
when he is constituted certainly, immediately, and without restriction in 
regard to the testator's effects, or limitation in point of time. It may be 
qualified by limitation as to the time or place wherein, or the subject 
matters whereon, the office is to be exercised; or the creation of the 
office may be conditional. It may be qualified. 1st. By limitations in point 
of time, for the time may be limited when the person appointed shall begin, 
or when he shall cease to be executor; as if a man be appointed executor 
upon the marriage of testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The 
appointment may be limited to a place; as, if one be appointed executor of 
all the testator's goods in the state of Pennsylvania. 3. The power of the 
executor may be limited as to the subject matter upon which if is to be 
exercised; as, when a testator appoints. A the executor of his goods and 
chattels in possession; B, of his choses in action. One may be appointed 
executor of one thing, only, as of a particular claim or debt due by bond, 
and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus 
appoint separate executors of distinct parts of his property, and may divide 
their authority, yet quoad the creditors of the testator they are all 
executors, and act as one executor, and may be sued as one executor. Cro. 
Car. 293. 4. The appointment may be conditional, and the condition may be 
either precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off. 
Ex. 23. 
     6. An executor derives his interest in the estate of the deceased 
entirely from the will, and it vests in him from the moment of the 
testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. & A. 
745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the 
personalty by appointment, but nothing in the lands of the testator, except 
by devise. He can touch nothing which was not personal at the testator's 
decease, except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec. 
93. Still his interest in the goods of the deceased is not that absolute, 
proper and ordinary interest, which every one has in his own proper goods. 
He is a mere trustee to apply the goods for such purposes as are sanctioned 
by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the 
testator, and therefore may sue and recover all the claims he had at the 
time of his death and may be sued for all debts due by him. 1 Will. Ex. 508, 
et seq. By the common law, however, such debts as were not due by some 
writing could not be recovered against the executors of a deceased debtor. 
The remedy was only in conscience or by a quo minus in the exchequer. 
Afterwards an action on the case in banco regis was given. Crom t. Jurisdic. 
66, b; Plowd. Com. 183: 11 H. VII. 26. 
     7. The following are the principal duties of an executor: 1. Within a 
convenient time after the testator's death, to collect the goods of the 
deceased, provided he can do so peaceably; when he is resisted, he must 
apply to the law for redress. 
     8.-2. To bury the deceased in a manner suitable to the estate he 
leaves behind him; and when there is just reason to believe he died 
insolvent, he is not warranted in expending more in funeral expenses (q.v.) 
than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & 
Rawle, 204 14 Serg. & Rawle, 64. 
     9.-3. The executor should prove the will in the proper office. 
    10.-4. He should make an inventory (q.v.) of the goods of the 
intestate, which should be filed in the office. 
    11.-5. He should ascertain the debts and credits of the estate, and 
endeavor to collect all claims with as little delay as possible, 
consistently with the interest of the estate. 
    12.-6. He should advertise for debts and credits: see forms of 
advertisements, 1 Chit. Pr. 521. 
    13.-7. He should reduce the whole of the goods, not specifically 
bequeathed into money, with all due expedition. 
    14.-8. Keep the money of the estate safely, but not mixed with his 
own, or he may be charged interest on it. 
    15.-9. Be at all times ready to account, and actually file an account 
within a year. 
    16.-10. Pay the debts and legacies in the order required by law. 
    17. Co-executors, however numerous, are considered, in law, as an 
individual person, and; consequently, the acts of any one of them, in 
respect of the administration of the assets, are deemed, generally, the acts 
of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint and 
entire authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924; 
Com. Dig. Administration, B 12. On the death of one or more of several joint 
executors, their rights and powers survive to the survivors. 
    18. When there are several executors and all die, the power is in common 
transferred to the executor of the last surviving executor, so that he is 
executor of the first testator; and the law is the same when a sole executor 
dies leaving an executor, the rights are vested in the latter. This rule has 
been changed, in Pennsylvania, and, perhaps, some other states, by 
legislative provision; there, in such case, administration cum testamento 
annexo must be obtained, the right does not survive to the executor of the 
executor. Act of Pennsylvania, of March 15 1832. s. 19. In general, 
executors are not responsible for each other, and they have a right to 
settle separate accounts. See Joint, Executors. 
    19. Executors may be classed into general and special; instituted and 
substituted; rightful and executor de son tort; and executor to the tenor. 
    20. A general executor is one who is appointed to administer the whole 
estate, without any limit of time or place, or of the subject-matter. 
    21. A special executor is one. who is appointed or constituted to 
administer either a part of the estate, or the whole for a limited time, or 
only in a particular place. 
    22. An instituted executor is one who is appointed by the testator 
without any condition, and who has the first right of acting when there are 
substituted executors. An example will show the difference between an 
instituted and substituted executor: suppose a man makes his son his 
executor, but if he will not act, he appoints his brother, and if neither 
will act, his cousin; here the son is the instituted executor, in the first 
degree, the brother is said to be substituted in the second degree, and the 
cousin in the third degree, and so on. See Heir, instituted, and Swinb. pt. 
4, s. 19, pl. 1. 
    23. A substituted executor is a person appointed executor, if another 
person who has been appointed refuses to act. 
    24. A rightful executor is one lawfully appointed by the testator, by 
his will. Deriving his authority from the will, he may do most acts, before 
he obtains letters testamentary, but he must be possessed of them before. he 
can declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex. 
173. 
    25. An executor de son tort, or of his own wrong, is one, who, without 
lawful authority, undertakes to act. as executor of a person deceased. To 
make fin executor de son tort, the act of the party must be, 1. Unlawful. 2. 
By asserting ownership, as taking goods or cancelling a bond, and not 
committing a mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done 
before probate of will, or granting letters of administration. 1 Salk. 313. 
One may be executor de son tort when acting under a forged will, which has 
been set aside. 3 T. R. 125. An executor de son tort. The law on this head 
seems to have been borrowed from the civil law doctrine of pro hoerede 
gestio. See Heinnec. Antiq. Syntagma, lib. 2, tit., 17, Sec. 16, p. 468. He 
is, in general, held responsible for all his acts, when he does anything 
which might prejudice the estate, and receives no, advantage whatever in 
consequence of his assuming the office. He cannot sue a debtor of the 
estate, but may be sued generally as executor. See a good reading on the 
liabilities of executors de son tort, in: Godolph. Orph. Legacy, 91, 93, and 
10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; Yelv. 
137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As to 
what acts will make a person liable as executor de son tort, see Godolph. O 
ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B 
3; 11 Vin. Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig. 
Administration C 3  Ham. on Part. 146 to 156; 8 John. R. 426; 7 John. R. 
161; 4 Mass. 654; 3 Penna. R. 129; 15 Serg. & Rawle, 39. 
    26.-2. The usurpation of an office or character cannot confer the 
rights and privileges of it, although it may charge the usurper with the 
duties and obligations annexed to it. On this principle an executor de son 
tort is an executor only for the purpose of being sued, not for the purpose, 
of suing. In point of form, he is sued as if he were a rightful executor. He 
is not denominated in the declaration executor (de son tort) of his own 
wrong. It would be improper to allege that the deceased person with whose 
estate he has intermeddled died intestate. Nor can he be made a co-defendant 
with a rightful executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190, 
note; Com. Dig. Abatement, F 10. If he take out letters of administration, 
he is still liable to be sued as executor, and in general, it is better to 
sue him as executor than as administrator. Godolph. 0. Leg. 93, 94, 95, Sec. 
2, 3. 
    27. An executor to the tenor. This phrase is based in the ecclesiastical 
law, to denote a person who is not directly appointed by the will an 
executor, but who is charged with the duties which appertain to one; as, "I 
appoint A B to discharge all lawful demands against my will." 3 Phill. 116; 
1 Eccl. Rep. 374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide. 
generally, Bouv. Inst. Index, h.t.; 11 Vin. Ab. h.t.; Bac. Ab. h.t.; 
Rolle, Ab. h.t.; Nelson's Ab. h.t.; Dane's Ab. Index, h.t.; Com. Dig. 
Administration; 1 Supp. to Ves. jr. 8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-
3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil. 
Ev. 289; 1 Rop. Leg.' 114; American Digests, h.t.; Swinburne, Williams, 
Lovelass, and Roberts' several treatises on the law of Executors; Off. Ex. 
per totum; Chit. Pr. Index; h.t. For the various pleas that may be pleaded 
by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp. 292. For the 
origin and progress of the law in relation to executors, the reader is 
referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par 
Delauriere, verbo Executeurs Testamentaires, and the same author on art. 
297, of the Custom of Paris; Poth. Des Donations Testamen taires. 

EXECUTORY. Whatever may be executed; as an executory sentence or judgment, 
an executory contract. 

EXECUTORY DEVISE, estates. An executory devise is a limitation by will of a 
future contingent interest in lands, contrary to the rules of limitation of 
contingent estate is in conveyances at law. When the limitation by will does 
not depart from those rules prescribed for the government of contingent 
remainders, it is, in that case, a contingent remainder, and not an 
executory devise. 4 Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763. 
     2. An executory devise differs from a contingent remainder, in three 
material points. 1. It needs no particular estate to precede and support it; 
for example, a devise to A B, upon his marriage. 2. A fee may be limited 
after a fee, as in the case of a devise of land to C D, in fee, and if he 
dies without issue, or before the age of twenty-one, then to E F, in fee. 3. 
A term for years may be limited over after a life estate created in the 
same. 2 Bl. Com. 172, 173. 
     3. To prevent perpetuities, a rule has been adopted that the 
contingency must happen during the time of a life or lives in being and 
twenty-one years after, and the months allowed for gestation in order to 
reach beyond the minority of a person not in esse at the time of making the 
executory devise. 3 P. Wms. 258; 7 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456; 
1 Gilm. 194; 2 Hayw. 375. 
     4. There are several kinds of executory devises; two relative to real 
estate, and one in relation to personal estate. 
     5.-1. When the devisor parts with his whole estate, but upon some 
contingency, qualifies the disposition of it, and limits an estate on that 
contingency. For example, when the testator devises to Peter for life, 
remainder to Paul, in fee, provided that if James should within three months 
after the death of Peter pay one hundred dollars to Paul, then to James in 
fee; this is an executory devise to James, and if he dies during the life of 
Peter, his heir may perform the condition. 10 Mod. 419; Prec. in Ch. 486; 2 
Binn. 532; 5 Binn. 252; 7 Cranch, 456; 6 Munf. 187; 1 Desaus. 137, 183; 4 
Id. 340, 459; 5 Day, 517. 
     6.-2. When the testator gives a future interest to arise upon a 
contingency, but does not part with the fee in the meantime; as in the case 
of a devise of the estate to the heirs of John after the death of John; or a 
devise to John in fee, to take effect six months after the testator's death; 
or a devise to the daughter of John, who shall marry Robert within fifteen, 
years. T. Raym. 82; 1 Salk. 226; 1 Lutw. 798. 
     7.-3. The executory bequest of a chattel interest is good, even 
though the ulterior legatee be not at the time in esse, and chattels so 
limited are protected from the demands of creditors beyond the life of the 
first taker, who cannot pledge them, nor dispose of them beyond his own life 
interest in them. 2 Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4 
Desaus.340; 1 Bay, 78. But such a bequest, after an indefinite failure of 
issue, is bad. See 2 Serg. & R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1 
Tho. Co. Litt. 595-6, 515-16. Vide, Com. Dig. Estates by Devise., N 16; 
Fearne on Rem. 381; Cruise's Dig. Index, h.t.; 4 Kent, Com. 357 to 381; 2 
Hill. Ab. c. 43, p. 533. 

EXECUTORY PROCESS, via executoria. In Louisiana, this is a process which can 
be resorted to only in two. cases, namely: 1. When the creditor's right 
arises-from an act importing a confession of judgment, and which contains a 
privilege or mortgage in his favor. 2. When the creditor demands the 
execution of a judgment which has been rendered by a tribunal different from 
that within whose jurisdiction the execution is sought. Code of Practice, 
art. 732. 

EXECUTORY TRUST. A trust is said to be executory where some further act is 
requisite to be done by the author of the trust himself or by the trustees, 
to give it its full, effect; as, in the case of marriage articles; or, as in 
the case of a will, where, property is vested in trustees in trust to settle 
or convey.; for, it is apparent in both of these cases, a further act, 
namely, a settlement or a conveyance, is contemplated. 
     2. The difference between an executed and an executory trust, is this, 
that courts of equity in cases of executed trusts will construe the 
limitations in the same manner as similar legal limitations. White's L. C. 
in Eq. 18. But, in cases of executory trusts, a court of equity is not, as 
in the case of executed trusts, bound to construe technical expressions with 
legal strictness, but will mould the trusts according to the intent of the 
creator of such trusts White's L. C. Eq. 18. 
     3. When a voluntary trust is executory, and not executed, if it could 
not be enforced at law, because it is a defective conveyance, it is not 
helped in equity, in favor of a volunteer. 4 John. Ch. 498, 500; 4 Paige, 
305; 1 Dev. Eq. R. 93. 
     4. But where the trust, though voluntary, has been executed in part, it 
will be sustained or enforced, in equity. 1 John. Ch. R. 329; 7 Penn. St. R. 
175, 178; White's L. C. in Eq. *176; 18 Ves. 140; 1 Keen's R. 551; 6 Ves. 
656; 3 Beav. 238. 

EXECUTRIX, A woman who has been appointed by. will to execute such will or 
testament. See Executor. 

EXEMPLIFICATION, evidence. A perfect copy of a record, or office book 
lawfully kept, so far as relates to the matter in question. 3 Bouv. Inst. n. 
3107. Vide, generally, 1 Stark. Ev. 151; 1 Phil. Ev. 307; 7 Cranch, 481; 3 
Wheat. 234; 10 Wheat. 469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 
John. Cas. 238. As to the mode of authenticating records of other states, 
see articles Authentication, and Evidence. 

EXEMPTION. A privilege which dispenses with the general rule; for example, 
in Pennsylvania, and perhaps in all the other states, clergymen are exempt 
from serving on juries. Exemptions are generally allowed, not for the 
benefit of the individual, but for some public advantage. 

EXEMPTS. Persons who are not bound by law, but excused from the performance 
of duties imposed upon others. 
     2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S. 252, it is 
provided, Sec. 2. That the vice-president of the United States the officers, 
judicial and executive, of the government of the United States; the members 
of both houses of congress, and their respective officers; all custom-house 
officers, with their clerks; all post officers, and stage drivers, who are 
employed in the care and conveyance of the mail of the post office of the 
United States; all ferrymen employed at any ferry on the post road; all 
inspectors of exports; all pilots; all mariners, actually employed in the 
sea service of any citizen or merchant within the United States; and all 
persons who now are, or may hereafter be, exempted by the laws of the 
respective states, Shall be, and are hereby, exempted from militia duty, 
notwithstanding their being above the age of eighteen, and under the age of 
forty-five years. 

EXEQUATUR, French law. This Latin word was, in the ancient practice, placed 
at the bottom of a judgment emanating from another tribunal, and was a 
permission and authority to the officer to execute it within the 
jurisdiction of the judge who put it below the judgment. 
     2. We have something of the same kind in our practice. When a warrant 
for the arrest of a criminal is issued by a justice of the peace of one 
county, and he flies into another, a justice of the latter county may 
endorse the warrant and then the ministerial officer may execute it in such 
county. This is called backing a warrant. 

EXEQUATUR, internat. law. A declaration made by the executive of a 
government near to which a consul has been nominated and appointed, after 
such nomination and appointment has been notified, addressed to the people, 
in which is recited the appointment of the foreign state, and that the 
executive having approved of the consul as such, commands all the citizens 
to receive, countenance, and, as there may be occasion, favorably assist the 
consul in the exercise of his place, giving and allowing him all the 
privileges, immunities, and advantages, thereto belonging. 3 Chit. Com. Law, 
56; 3 Maule & Selw. 290; 5 Pardes. 1445. 

EXERCITOR. A term in the civil law, to denote the person who fits out, and 
equips a vessel, whether he be the absolute or qualified owner, or even a 
mere agent. Emer. on Mar. Loans, c. 1, s. 1. 
     2. In English, we generally use the word "ship's husband," but 
exercitor is generally used to designate and distinguish from among several 
part owners of a ship, the one who has the immediate care an management of 
her. Hall on Mar. Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; 
Vicat, Vocab.; Ship's husband. 

EXHEREDATION, civil law. The act by which a forced heir is deprived of his 
legitimate or legal portion which the law gives him; disinherison. (q.v.) 

EXHIBIT, practice. Where a paper or other writing is on motion, or on other 
occasion, proved; or if an affidavit to which the paper writing is annexed, 
refer to it, it is usual to mark the same with a capital letter, and to add, 
"This paper writing marked with the letter A, was shown to the deponent at 
the time of his being sworn by me, and is the writing by him referred to in 
the affidavit annexed hereto." Such paper or other writing, with this 
attestation, signed by the judge or other person before whom the affidavit 
shall have been sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410; 
Gresl. Eq. Ev. 98. 

TO EXHIBIT. To produce a thing publicly, so that it may be taken possession 
of, or seized. Dig. 10, 4, 2. To exhibit means also to file of record; as, 
it is the practice in England in personal actions, when an officer or 
prisoner of the king's bench is defendant, to proceed against such defendant 
in the court in which he is an officer, by exhibiting, that is, filing a 
bill against him. Steph. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical 
language, to exhibit signifies to administer, to cause a thing to be 
taken by a patient. Chit. bled. Jur. 9. 

EXHIBlTANT. One who exhibits any thing; one who is complainant in articles 
of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124. 

EXHIBITION, Scotch law. An action for compelling the production of writings. 
In Pennsylvania, a party possessing writings is compelled, to produce them 
on proper notice being given, in default of which judgment is rendered 
against him. 

EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course of 
proceedings to outlawry, deriving its name and application from the 
mandatory words found therein, signifying, "that you cause to be exacted or 
required; and it is that proceeding in an outlawry which, with the writ of 
proclamation, issued at the same time, immediately precedes the writ of 
capias utlagatum. 2 Virg. Cas. 244. 

EXIGIBLE. That which may be exacted demandable; requirable.

EXILE, civil law. The: interdiction of all places except one in which the 
party is forced to make his residence. 
     2. This punishment did not deprive the sufferer of his right of 
citizenship or of his property, unless the exile were perpetual, in which 
case confiscation not unfrequently was a part of the sentence. Exile was 
temporary or perpetual. Dig. 48, 22, 4; Code, 10, 59, 2. Exile differs from 
deportation, (q.v.) and relegation. (q.v.) Vide, 2 Lev. 191; Co. Litt. 
133, a. 

EXILIUM. By this term is understood that kind of waste which either drove 
away the inhabitants into a species of exile, or had a tendency to do so; as 
the prostrating or extirpating of trees in an orchard or avenue, or about 
any house. Bac. Ab. Waste, A; Bract. lib. 4, c. 18, s. 13; 1 Reeves' Hist. 
Law, 386. 

EXITUS. Issue,, child, or offspring; rents or profits of land. Cowell, h.v. 
In pleading, it is the issue, or the end, termination, or conclusion of the 
pleadings, and is so called, because an issue brings the pleadings to a 
close. 3 Bl. Com. 314. 

EXIGENDARY, Eng. law. An officer who makes out exigents.

EXOINE, French law. An act or instrument in writing, which contains the 
reasons why a party in a civil suit, or a person accused, who has been 
summoned, agreeably to the requisitions of a decree, does not appear. Poth. 
Proced. Crim. s. 3,  art. 3. Vide Essoin. 

EXONERATION. The taking off a burden or duty. 
     2. It is a rule in the distribution of an intestate's estate that the 
debts which he himself contracted, and for which be mortgaged his land as 
security, shall be paid out of the personal estate in exoneration of the 
real. 
     3. But when the real estate is charged with the payment of a mortgage 
at the time the intestate buys it, and the purchase is made subject to it, 
the personal. is not in that case to be applied, in exoneration of the real 
estate. 2 Pow. Mortg. 780; 5 Hayw. 57; 3 Johns. Ch. R. 229. 
     4. But the rule for exonerating the real estate out of the personal, 
does not apply against specific or pecuniary legatees, nor the widow's right 
to paraphernalia, and with reason not against the interest of creditors. 2 
Ves. jr. 64; 1 P. Wms. 693; Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow. 
Mortg. Index, h.t. 

EXONERATUR, practice. A short note entered on a bail piece, that the bail is 
exonerated or discharged in consequence of having fulfilled the condition of 
his obligation, made by order of the court or of a judge upon a proper cause 
being shown. 
     2. A surrender is the most usual cause; but an exoneratur may be 
entered in other cases, as in case of death of the defendant, or his 
bankruptcy. 1 Arch. Pr. 280, 281, 282; Tidd's Pr. 240. 

EXPATRIATION. The voluntary act of abandoning one's country and becoming the 
citizen or subject of another. 
     2. Citizens of the United States have the right to expatriate 
themselves until restrained by congress; but it seems that a citizen cannot 
renounce his allegiance to the United States without the permission of 
government, to be declared by law. To be legal, the expatriation must be for 
a purpose which is not unlawful, nor in fraud of the duties of the emigrant 
at home.  
     3. A citizen may acquire in a foreign country commercial privileges 
attached to his domicil, and be exempted from the operation of commercial 
acts embracing only persons resident in the United States or under its 
protection. 2 Cranch, 120. Vide Serg. Const. Law, 318, 2d ed; 2 Kent, Com. 
36; Grotius, B. 2, c. 5, s. 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, 
c. 19, s. 218, 223, 224, 225 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7 Wheat. 
342; 1 Pet. C. C. R. 161; 4 Hall's Law Journ. 461; Bracken. Law Misc. 409; 9 
Mass. R. 461. For the doctrine of the English courts on this subject, see 1 
Barton's Elem. Conveyancing, 31, note; Vaugh, Rep. 227, 281, 282, 291; 7 Co. 
Rep. 16 Dyer, 2, 224, 298 b, 300 b; 2 P. Wms. 124; 1 Hale, P. C. 68; 1 Wood. 
382. 

EXPECTANCY, estates. Having a relation to or dependence upon something 
future. 
     2. Estates are of two sorts, either in possession, sometimes called 
estates executed; or in expectancy, which are executory. Expectancies are, 
first, created by the parties, called a remainder; or by act of law, called 
a reversion. 
     3. A bargain in relation to an expectancy is, in general, considered 
invalid. 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C. C. 10; Jer. Eq. Jur. 397. 

EXPECTANT. Having relation to, or depending upon something; this word is 
frequently used in connexion with fee, as fee expectant.  

EXPECTATION. That which may be expected, although contingent. In the 
doctrine of life annuities, that share or number of the years of human life 
which a person of a given age may expect to live, upon an equality of 
chances. 
     2. In general, the heir apparent will be relieved from a contract made 
in relation to his expectancy. See Post Obit. 

EXPENSAE LITIS. Expenses of the suit; the costs which are generally allowed 
to the successful party. 

EXPERTS. From the Latin experti,which signifies, instructed by experience. 
Persons who are selected by the courts or the parties in a cause on account 
of their knowledge or skill, to examine, estimate, and ascertain things, and 
make a report of their opinions. Merl. Repert. mot Expert; 2 Lois des 
Batimens, 253; 2 N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S. & R. 
336; Ray. Med. Jur. Prel. Views, Sec. 29; 3 Bouv. Inst. n. 3208. 

EXPILATION, civil law. The crime of abstracting the goods of a succession. 
     2. This is said not to be a theft, because the property no longer 
belongs to the deceased, nor to the heir before he has taken possession. In 
the common law, the grant of letters testamentary, or letters of 
administration, relate back to the time of the death of the testator or 
intestate, so that the property of the estate is vested in the executor or 
administrator from that period. 

EXPIRATION. Cessation; end. As, the expiration of, a lease, of a contract, 
or statute. 
     2. In general, the expiration of a contract puts an end to all the 
engagements of the parties, except to those which arise from the non-
fulfillment of obligations created during its existence. For example, the 
expiration of a partnership so dissolves it, that the parties cannot in 
general create any new liability, but it still subsists, to enable the 
parties to fulfill engagements in which the partners have engaged, or to 
compel others to perform their obligations towards them. See Dissolution; 
Contracts. 
     3. When a statute is limited as to time, it expires by mere lapse of 
time, and then it has no force whatever; and, if such a statute repealed or 
supplied a former statute, the first statute is, i so facto, revived by the 
expiration of the repealing statute; 6 Whart. 294; 1 Bland, R. 664 unless it 
appear that such was not the intention of the legislature. 3 East, 212 Bac. 
Ab. Statute, D. 

EXPORTATION, commercial law. The act of sending goods and merchandise from 
one country to another. 2 Mann. & Gran. 155; 3 Mann. & Gran. 959. 
     2. In order to preserve equality among the states, in their commercial 
relations, the constitution provides that "no tax or duty shall be laid on 
articles exported from any state." Art. 1, s. 9. And to prevent a pernicious 
interference with the commerce of the nation, the 10th section of the 1st 
article of the constitution contains the following prohibition: "No state 
shall, without the consent of congress, lay any imposts or duties on imports 
or exports, except what may be absolutely necessary for executing its 
inspection laws; and the net produce of all duties and imposts, laid by any 
state on imports or exports, shall be for the use of the treasury of the 
United States; and all such laws shall be subject to the revision and 
control of the congress." Vide 12 Wheat. 419; and the article Importation. 

EXPOSE' A French word, sometimes applied to a written document, containing 
the reasons or motives for doing a thing. The word occurs in diplomacy. 

EXPOSITION DE PART, French law. The abandonment of a child, unable to take 
care of itself, either in a public or private place. 
     2. If the child thus exposed should be killed in consequence of such 
exposure; as, if it should be devoured by animals, the person thus exposing 
it would be guilty of murder. Rose. Cr. Ev. 591. 

EXPRESS. That which is made known, and not left to implication. The opposite 
of implied. It is a rule, that when a matter or thing is expressed, it 
ceases to be implied by law: expressum facit cessare tacitum. Co. Litt. 183; 
1 Bouv. Inst. n. 97. 

EXPRESSION. The term or use of language employed to explain a thing. 
     2. It is a general rule, that expressions shall be construed, when they 
are capable of several significations, so as to give operation to the 
agreement, act, or will, if it can be done; and an expression is always to 
be understood in the sense most agreeable to the nature of the contract. 
Vide Clause; Construction; Equivocal; Interpretation; Words. 

EXPROMISSION, civil law. The act by which a creditor accepts a new debtor, 
who becomes bound instead of the old, the latter being released. It is a 
species of novation. (q.v.) 1 Bouv. Inst. n. 802. Vide Delegation. 

EXPROMMISSOR, civil law. By this term is understood the person who alone 
becomes bound for the debt of another, whether the latter were obligated or 
not. He differs from a surety, who is bound together with his principal. 
Dig. 12, 4, 4; Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8. 

EXPULSION. The act of depriving a member of a body politic, corporate, or of 
a society, of his right of membership therein, by the vote of such body or 
society, for some violation of hi's. duties as such, or for some offence 
which renders him unworthy of longer remaining a member of the same. 
     2. By the Constitution of the United States, art. 1, s. 5, Sec. 2, each 
house may determine the rules of its proceedings, punish its members for 
disorderly behaviour, and, with the concurrence of two-thirds' expel a 
member. In the case of John Smith, a senator from Ohio, who was expelled 
from the senate in 1807, the committee made a report which embraces the 
following points: 
     3.-1. That the senate may expel a member for a high misdemeanor, such 
as a conspiracy to commit treason. Its authority is not confined to an act 
done in its presence. 
     4.-2. That a previous conviction is, not requisite, in order to 
authorize the senate to expel a member from their body, for a high: offence 
against the United States. 
     5.-3. That although a bill of indictment against a party for treason 
and misdemeanor has been abandoned, because a previous indictment against 
the principal party had terminated in an acquittal, owing to the 
inadmissibility of the evidence upon that indictment, yet the senate may 
examine the evidence for themselves, and if it be sufficient to satisfy 
their. minds that the party is guilty of a high misdemeanor it is a 
sufficient ground of expulsion. 
     6.-4. That the 6th and 6th articles of the amendments of the 
Constitution of the United States, containing the general rights and 
privileges of the citizen, as to criminal prosecutions, refer only to 
prosecutions at law, and do not affect the jurisdiction of the senate as to 
expulsion. 
     7.-5. That before a committee of the senate, appointed to report an 
opinion relative to the honor and privileges of the senate, and the facts 
respecting the conduct of the member implicated, such member is not entitled 
to be heard in his defence by counsel, to have compulsory process for 
witnesses, and to be confronted with his accusers. It is before the senate 
that the member charged is entitled to be heard. 
     8.-6. In determining on expulsion, the senate is not bound by the 
forms of judicial proceedings, or the rules of judicial evidence; nor, it 
seems, is the same degree of proof essential which is required to convict of 
a crime. The power of expulsion must, in its nature, be discretionary, and 
its exercise of a more summary character. 1 Hall's Law Journ. 459, 465. 
     9. Corporations have the right of expulsion in certain cases, as such 
power is necessary to the good order and government of corporate bodies; and 
the cases in which the inherent power may be exercised are of three kinds. 
1. When an offence is committed which has no immediate relation to a 
member's corporate duty, but is of so infamous a nature as renders him unfit 
for the, society of honest men; such as the offences of perjury, forgery, 
and the like. But before an expulsion is made for a cause of this kind, it 
is necessary that there should be a previous conviction by a jury, according 
to the law of the land. 2. When the offence is against his duty as a 
corporator, in which case he may be expelled on trial and conviction before 
the corporation. 3. The third is of a mixed nature, against the member's 
duty. as a corporator, and also indictable by the law of the land. 2 
Binn.448. See, also, 2 Burr., 536. 
    10. Members of what are called joint stock incorporated companies, or 
indeed members of any corporation owning property, cannot, without express 
authority in the charter, be expelled, and thus deprived of their interest 
in the general fund. Ang. & Ames on Corp. 238. See; generally, Ang. & Ames 
on Corp. ch. 11; Willcock, on Mun. Cor. 270; 1 Co. 99; 2 Bing. 293.; 5 Day 
329; Sty. 478; 6 Conn. R. 532; 6 Serg. & Rawle, 469; 5 Binn. 486. 

EXTENSION, comm. law. This term is applied among merchants to signify an 
agreement made between a debtor and his creditors, by which the latter, in 
order to enable the former, embarrassed in his circumstances, to retrieve 
his standing, agree to wait for a definite length of time after their 
several claims should become due and payable, before they will demand 
payment. 
     2. Among the French, a similar agreement is known by the name of 
atermoiement. Merl. Rep. mot Atermoiement. 

EXTENT IN AID, English practice. An exchequer process, formerly much used, 
and now liable to be abused; it is regulated by 57 Geo. III. o. 117. 

EXTENT IN CHIEF, English practice. An execution issuing out of the exchequer 
at the suit 'of the crown. It is a mere "fiscal writ. See. West on Extents; 
2 Tidd. Index. 
     2. When land was extended at a valuation too low, there was no remedy 
at common law but to pay the money. 15 H. VII. Nor yet in chancery, unless 
there was fraud, because the extent was made by the oath of a jury, and 
deemed reasonable according to the writ of extent for that cause: otherwise 
every verdict might be examined in a court of chancery. Crompt. on. 
Jurisdic. 55 a. 

EXTENUATION. That which renders a crime or tort less heinous than it would 
be without it: it is opposed to aggravation. (q.v. ) 
     2. In general, extenuating circumstances go in mitigation of punishment 
in criminal cases, or of damages in those of a civil nature. See 
Aggravation; Mitigation. 

EXTERRITORIALITY. This term is used by French jurists to signify the 
immunity of certain persons, who, although in the state, are not amenable to 
its laws; foreign sovereigns, ambassadors, ministers plenipotentiary, and 
ministers from a foreign power, are of this class. Foelix, Droit Intern. 
Prive, liv. 2, tit. 2, c. 2, s. 4. See  Ambassador; Conflict of Laws; 
Minister. 

EXTINCTION OF A THING. When a thing which is the subject of a contract has 
been destroyed, the contract is of course rescinded as, for example, if Paul 
sell his horse Napoleon to Peter, and promises to deliver him to the buyer 
in ten days, and in the mean time the horse dies, the contract is rescinded, 
as it is impossible to deliver a thing which is not in esse; but if Paul 
engage to deliver a horse to Peter in ten days, and, for the purpose of 
fulfilling his contract, he buys a horse and it die, this is no cause for 
rescinding the contract, because he can buy another and complete it 
afterwards. When the subject of the contract is an individual, and not 
generally one of a species, the contract may be rescinded; when it is one of 
a species which has been destroyed, then, it may still be completed, and it 
will be enforced. Lec. El. Dr. Rom. Sec. 1009. 

EXTINGUISHMENT, contracts. The destruction of a right or contract, the act 
by which a contract is made void. 
     2. Art extinguishment may be by matter of fact and by matter of law. 1. 
It is by matter of fact either express, as when one receives satisfaction 
and full payment of a debt, and the creditor releases the debtor 11 John. 
513'; or implied, as when a person hath a yearly rent out of, lands and 
becomes owner either by descent or purchase, of the estate subject to the 
payment of the rent, the latter is extinguished 3 Stew. 60; but the person 
must have as high an estate in the land as in the rent, or the rent will not 
be extinct. Co. Litt. 147. See Merger. 
     3. There are numerous cases where the claim is extinguished b operation 
of law; for example, where two persons are jointly, but not severally 
liable, for a simple contract debt, a judgment obtained against one is at 
common law an extinguishment of the claim on the other debtor. Pet. C. C. 
301; see 2 John. 213. Vide, generally, Bouv. Inst. Index, h.t.; 2 Root, 
492; 3 Conn. 62; 1 Hamm. 187; 11 John. 513; 4 Conn. 428; 6 Conn. 373; 1 
Halst. 190 4 N. H. Rep. 251 Co. Litt. 147 b; 1 Roll. Ab. 933 7 Vin. Ab. 367; 
11 Vin. Ab. 461; 18 Vin. Ab. 493 to 515 3 Nels. Ab. 818; 14 Serg. & Rawle, 
209; Bac. Ab. h.t.; 5 Whart. R. 541. Vide Discharge of a Debt. 

EXTORSIVELY. A technical word used in indictments for extortion. In North 
Carolina, it seems, the crime of extortion may be charged without using this 
word. 1 Hayw. R. 406. 

EXTORTION, crimes. In a large sense it, signifies any oppression, under 
color of right: but in a more strict sense it means the unlawful taking by 
any officer, by color of his office, of any money or thing of value that is 
not due to him, or more than is due, or before it is due. 4 Bl. Com. 141; 1 
Hawk. P. C. c. 68, s. 1; 1 Russ. Cr. *144. To constitute extortion, there 
must be the receipt of money or something of value; the taking a promissory 
note, which is void, is. not sufficient to make an extortion. 2 Mass. R. 
523; see Bac. Ab. h.t.; Co. Litt. 168. It is extortion and oppression for 
an officer to take money for the performance of his duty, even though it be 
in the exercise of a discretionary power. 2 Burr. 927. It differs from 
exaction. (q.v.) See 6 Cowen, R. 661; 1 Caines, R. 130; 13 S. & R. 426 1 
Yeates, 71; 1 South. 324; 3 Penna. R. 183; 7 Pick.  279; 1 Pick. 171. 

EXTRA-DOTAL PROPERTY. In Louisiana this term is used to designate that 
property which forms no part of the dowry of a woman, and which is also 
called paraphernal property. Civ. Co. Lo. art. 2315. Vide Dotal Property. 

EXTRA VIAM. Out of the way. When, in an action of trespass, the defendant 
pleads a right of way, the defendant may reply extra viam, that the trespass 
was committed beyond the way, or make a new assignment. 16 East, 343, 349. 

EXTRACT. A part of a writing. In general this is not evidence, because the  
whole of the writing may explain the part extracted, so as to give it a 
different sense; but sometimes extracts from public books are evidence, as 
the extracts from the registers of births, marriages and burials, kept 
according to law, when the whole of the matter has been extracted which 
relates to the cause or matter in issue. 

EXTRADITION, civil law. The act of sending, by authority of law, a person 
accused of a crime to a foreign jurisdiction where it was committed, in' 
order that he may be tried there. Merl. Rep. h.t. 
     2. By the constitution and laws of the United States, fugitives from 
justice (q.v.) may be demanded by the executive of the one state where the 
crime has been committed from that of another where the accused is. Const. 
United States, art. 4, s. 2, 2 3 Story, Com. Const. U. S. Sec. 1801, et seq. 
     3. The government of the United States is bound by some treaty 
stipulation's to surrender criminals who take refuge within the country, but 
independently of such conventions, it is questionable whether criminals can 
be surrendered. 1 Kent. Com. 36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 
Serg. & Rawle, 125; 22 Amer. Jur. 330; Story's Confl. of Laws, p. 520; 
Wheat. Intern. Law, 111. 
     4. As to when the extradition or delivery of the supposed criminal is 
complete is not very certain. A case occurred in, France of a Mr. Cassado, a 
Spaniard, who had taken refuge in Bayonne. Upon an application made to the 
French government, he was delivered to the Spanish consul who had authority 
to take him to Spain, and while in the act of removing him with the 
assistance of French officers, a creditor obtained an execution against his 
person, and made an attempt to execute it and retain Cassado in France, but 
the council of state, (conseil d'etat) on appeal, decided that the courts 
could not interfere, and directed Cassado to be delivered to the Spanish 
authorities. Morrin, Dict. du Dr. Crim. h.v. 

EXTRAJUDICIAL. That which does not belong to the judge or his jurisdiction, 
notwithstanding which he takes. cognizance of it. Extrajudicial judgments 
and acts are absolutely void. Vide Coram non judice, and Merl. Repert. mots 
Exces de Pouvoir. 

EXTRAVAGANTES, canon law. This is the name given to the constitutions of the 
popes posterior to the Clementines; they are thus called quasi vagantes 
extra corpus juris, to express that they were out of the canonical law, 
which at first contained only the decrees of Gratian; afterwards the 
decretals of Gregory IX., the sexte of Boniface. VIII., the Clementines, and 
at last the extravagantes were added to it. There are the extravagantes of 
John XXII., and the common 'extravagantes.' The first contain twenty 
epistles, decretals or constitutions of that pope, divided under fifteen 
titles, without any subdivision into books. The others are epistles, 
decretals or constitutions of the popes who occupied the holy see, either 
before or after John XXII. they are divided into books like the decretals. 

EXTREMIS. When a person is sick beyond the hope of recovery, and near death, 
he is said to be in extremism. 
     2. A will made in this condition, if made without undue influence, by a 
person of sound mind, is valid. 
     3. The declarations of persons in extremis, when made with a full 
consciousness of approaching death, ate admissible in evidence when the 
death of the person making them is the subject of the charge, and the 
circumstances of the death the subject of such declarations. 2 B. & C. 605 
S. C. 9 Eng. C. L. Rep..196; and see 15 John.  286; 1 John. Rep. 159; 2 
John. R. 31; 7 John. 95; 2 Car. Law. Repos. 102; 5 whart, R. 396-7. 

EY. A watery place; water. Co. Litt 6.

EYE-WITNESS. One who saw the act or fact to which he testifies. When an eye-
witness testifies, and is a man of intelligence and integrity, much reliance 
must be placed on his testimony, for he has the means of making known the 
truth. 

EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2, s. b; Bract. 
lib. 2, c. 2. See Island.
