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Crimes committed in proceedings in bankruptcy, 80.
Damages, when not considered as debts, 68. Debts of petitioning creditor, 44. proof of, 59. how made, 62. when contingent, 63. not due, 64. mutual, 65. of sureties, 66. preferred, 78.
of bankrupt must be at least 2000 dollars, 19, 21.
creditors must amount to 500 dollars,
Decree, when made, 55.
when granted, 24. not granted, 25.
effect of, 25. District court, jurisdiction of, 2.
always open, 2.
judicial capacity of, 3.
legislative capacity of, 4.
executive capacity of, 5. Dividends, 73.
notice of, 76.
second, 78. Evidence in bankruptcy, what, M. Executor when a defaulter not to be discharged, 17. Factor may be decreed a bankrupt, 19. Fees, table of, to be made, 5.
for proving debts, what, 72. Feme covert, may be a bankrupt, when, 19.
rights of, not affected by bankrupt's discha rge, 25. Fraud to prevent a discharge, 24. Hearing, M.
In transitu, property in, may be stopt, 31. Infant may be a bankrupt, 19.
rights of, not affected by bankrupt's discharge, 25. Interest, when it may be proved as a debt, 67.
Judgments may be proved as debts, when, 69.
Jury trial, when it may be had, 3.
Liens not affected by bankruptcy, when, 32.
Limitation of actions against assignees, 29.
Lunatic, when he may be a bankrupt, 19.
Mortgage not affected by bankrupt's discharge, 7, 8, 32.
Mutual debts, what, 65. credits, what, C5.
Nature of petition, 41. dividend, 75.
Officer, defaulting not to be discharged, 17.
Partners, discharge of, 25,79. solvent not discharged, 25.
Payments, when void, 29.
form of, 36, 51.
requisites of j 37.
oath to, 40.
notice of, 41.
of creditor, 43.
when to be presented, 50. Petitioning creditor, who is a, 44.
amount of, 46. notice of, 47. when created, 48. when payable, 49. Preferences, when they will prevent a discharge, 24.
debts to be paid without, 78.
when allowed, 78.
when void, 29. Proceedings before a decree, 34.
when petition to be presented, M.
are matter of record, 62. Proof of debts, 59.
by whom made, 60.
how made, 70.
effect of, 71. Property of bankrupt vested in the assignees, 29.
fraudulent transfer of, void, 29.
what does not vest in assignees, 31.
how disposed of, 33.
conveyance of, how made, 33.
Underwriter may be made a bankrupt, 19. Verdict, when it may be proved as a debt, 69.
BANKRUPTCY, the state of a man unable to pursue his business and meet his engagements, in consequence of the derangement of his affairs. The constitution of the United States, art. 1, s. 8, authorises Congress "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States." With the exception of a short interval during which bankrupt laws existed in this country, this salutary power has laid dormant till the passage of the act of 1841. Any one of the states may pass a bankrupt law, but no state bankrupt or insolvent law can be permitted to impair the obligation of contracts; nor can the several states pass laws conflicting with an act of congress on this subject; 4, Wheat. 122; and the bankrupt laws of a state cannot affect the rights of citizens of another state. 12 Wheat. R. 213. Vide 3 Story on the Const. § 1100 to 1110; 2 Kent, Com. 321; Serg. on Const. Law, 322; Rawle on the Const. c. 9; 6 Pet. R. 348. Vide Bankrupt.
BANKS OF RIVERS, estates. By this term is understood what contains the river in its natural channel, when there is the greatest flow of water. The owner of the bank has a right to the middle of the stream. Vide Riperian Proprietor. When by imperceptible increase the banks on one side become more extended and encroach upon the river, this addition is called alluvion (q. v.); when the increase is sudden and can be perceived it is then called avulsion, (q. v.)
BANNITUS. One outlawed or banished. This word is obsolete.
BANS OF MATRIMONY, is the giving public notice or making proclamation of a matrimorial contract, and the intended celebration of the marriage of the parties in pursuance of such contract, to the end that persons objecting to the same may have an opportunity to declare such objections before the marriage is solemnized. Poth. Du Mariage, partie 2, & 2. Vide Ban.
BAR, in actions, is a perpetual destruction or temporary taking away of the action of the plaintiff. In an
cient authors it is called exceptio peremptoria. Co. Lift. 303 b; Steph. PI. Appx. xxviii. When a person is bound in any action real or personal, by judgment on demurrer, confession or verdict, he is barred as to that or any other action, of the like nature or degree for the same thing, forever; for exjtedit reipublica ut sit finis litium. But there is a difference between real and personal actions. In personal actions, as debt or account, the bar is perpetual, inasmuch as the plaintiff cannot have an action of a higher nature, and therefore in such actions he has generally no remedy but by bringing a writ of error. Doct. Plate, 65; 6 Co. 7, 8; 4 East, 507, 508. But, if the defendant be barred in a real action, by judgment on a verdict, demurrer or confession, &c. he may still have an action of a higher nature and try the same right again. Ib. Lawes, Pl. 39, 40. See generally, Bac. Ab. Abatement, N; Plea in bar.
BAR, practice, a place in a court where the counsellors and advocates stand to make their addresses to the court and jury; it is so called because formerly it was closed with a bar. Figuratively the counsellors and attorneys at law are called the bar; the bar of Philadelphia, the New York bar. A place in a court having criminal jurisdiction, to which prisoners are called to plead to the indictment, is also called the bar. Vide Merl. Repert. mot Barreau, and Dupin, Profession d'Avocat, tom. i. p. 451, for some eloquent advice to gentlemen of the bar.
BAR, contracts, is an obstacle or opposition. Some bars arise from circumstances and others from persons. Kindred within the prohibited degree, for example, is a bar to a marriage between the persons related; but the fact that A is married, and cannot therefore marry B, is a circumstance which operates as a bar as long as it subsists; for without it the parties might marry.
BARBICAN, an ancient word to signify a watch-tower. Barbicanage was money given for the support of a barbican.
BARGAIN AND SALE, conveyancing, contracts, is a contract by which a person conveys his lands to another, for a pecuniary consideration. In consequence of this conveyance a use arises to a bargainee, and the statute 27 Henry VIII. immediately transfers the legal estate and possession to him. A bargain and sale may be in fee, for life, or for years. The proper and technical words of this conveyance are bargain and sale, but any other words that would have been sufficient to raise a use, upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale. Proper words of limitation must, however, be inserted. Cruise Dig. tit. 32, ch. 9; Bac. Ab. h. t.; Com. Dig. h. t.; and the cases there cited; Nels. Ab. h. t.; 2 Bl. Com. 338. This is the most common mode of conveyance in the United States. 4 Kent", Com. 483; 3 Pick. R. 529; 3 N. H. Rep. 260; 6 Harr. & John. 465; 3 Wash. C. C. Rep. 376; 4 Mass. R. 66; 4 Yeates, R. 295; 1 Yeates, R. 328; 3 John. R. 388; 4Cowen's R. 325; 10 John. R. 456, 505; 3 N. H. Rep. 261; 14 John. R. 126; 2 Harr. & John. 230.
BARLEYCORN, a lineal measure containing one-third of an inch. Dane's Ab. c. 211, a. 13, s. 9. The barleycorn was the first measure, with its divisions and multiples, of all our measures of length, superficies, and capacity. Ib. c. 211, a. 12, s. 2.
BARN, estates, a building on a farm used to receive the crop, the stabling of animals and other purposes. The grant or demise of a barn without words superadded to extend its meaning, would pass no
more than the barn itself and as much land as would be necessary for its complete enjoyment. 4 Scrg. & Rawle, 342.
BARON. This word has but one signification in American law, namely, husband: we use baron and feme, for husband and wife. And in this sense it is going out of use. In England, and perhaps some other countries, baron is a title of honour; it is the first degree of nobility below a viscount. Vide Com. Dig. Baron and Feme. Bac. Ab. Baron and Feme; and the articles Husband; Marriage; Wife.
BARRACK. By this term, as used in Pennsylvania, is understood an erection of upright posts supporting a sliding roof, usually of thatch. 5 Whart. R. 429.
BARRATOR, crimes, one who has been guilty of the offence of barratry.
BARRATRY, crimes, is the habitual moving, exciting, and maintaining suits and quarrels either at law or otherwise. A man cannot be indicted as a common barrator in respect of any number of false and groundless actions brought in his own right, nor for a single act in right of another, for that would not make him a common barrator. Barratry, in this sense, is different from maintainance (q. v.) and champerty, (q. v.) An attorney cannot be indicted for this crime, merely for maintaining another in a groundless action. Vide 15 Mass. R. 229; 1 Bailey's R. 379; 11 Pick. R. 432; 13 Pick. R. 362; 9 Cowen, R. 587; Bac. Ab. h. t.; Hawk. P. C. B. 1, c. 21; Roll. Ab. 335; Co. Litt. 368; 3 Inst. 175.
BARRATRY, maritime law, crimes, is a fraudulent act of the master or mariners, committed contrary to their duty as such, to the prejudice of the owners of the ship. Emer. tom. 1, p. 360; Merlin, Repert, h. t.; Roccus, h. t.; 2 Marsh. Insur. 515; 8 East, R. 138,139; as to what will amount to barratry, see Abbott on Shipp. 167, n. (1); 2 Wash. C. C. R. 61; 9 East, R. 126; 1 Str. R. 581; 2 Ld. Raym. 1349; 1 Term R. 127; 6 Id. 379; 8 Id. 230; 2 Cain. R. 67, 222; 3 Cain. R. 1; 1 John. R. 229; 8 John. R. 209, n. 2d edit.; 5 Day R. 1; 11 John. R. 40; 13 John. R. 451; 2 Binn. R. 274; 2 Dall. R. 137; 8 Cran. R. 39; 3 Wheat. R. 168; 4 Dall. R. 294; 1 Yeates, 114. The act of Congress of 30th April, 1790, s. 8,1 Story's Laws U. S. 84, punishes with a death as piracy "any captain or mariner of any ship or other vessel who shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize to the value of fifty dollars; or yield up such ship or vessel to any pirate; or if any such seaman shall lay violent hands upon his commander, thereby to hinder or prevent his fighting in defence of his ship, or goods, committed to his trust, or shall make a revolt in the said ship."
BARREL. A measure of capacity, equal to thirty-six gallons.
BARRISTER, English law. A counsellor admitted to plead at the bar.—Ouster barrister, is one who pleads ouster or without the bar.— Inner barrister, a serjeant or king's counsel who pleads within the bar.— Vacation barrister, a counsellor newly called to the bar, who is to attend for several long vacations the exercise of the house. Barristers are called apprentices, apprentitii ad legem, being looked upon as learners, and not qualified until they obtain the degree of serjeant.
BARTER, in contracts, is an exchange, between two or more persons of goods for goods. If an insurance be made upon returns from a country where trade is carried on by barter, the valuation of goods in return shall be made on the cost of those given in
barter, adding all charges. Wesk. Ins. 42. See Price. Barter differs from sale in this, that in the latter, the exchange of goods is for money. Vide 3 Campb. R. 351; Cowp. 618; 1 Dougl. 24, n.; IN. R. 151; and Exchange.
BARTON, old English law. The demesne land of a manor; a farm distinct from the mansion.
BASE COURT. An inferior court, one not of record. Not used.
BASE ESTATE, English law, was the estate which base tenants had in their lands. Base tenants were a degree above villeins, the latter being compelled to perform all the commands of their lords, the former did not hold their lands by the performance of such commands. See Kitch. 41.
BASE FEE, English law. A tenure in fee at the will of the lord; this was distinguished from socage free tenure. See Co. Litt. 1,18.
BASILICA, civil law. This is derived from a Greek word which signifies imperial constitutions. The emperor Basilius finding the corpus juris civilis of Justinian, too long and obscure, resolved to abridge it, and under his auspices the work proceeded to the fortieth book, which at his death, remained unfinished. His son and successor, Leo, the philosopher, continued the work, and published it in sixty books about the year 880. Constantine Porphyro-geneta, younger brother of Leo, revised the work, re-arranged it, and republished it, anno domini, 910. From that time the laws of Justinian ceased to have any force in the eastern empire, and the Basilica were the foundation of the law observed there till Constantine XIII., the last of the Greek emperors, under whom in 1453, Constantinople was taken by Mahomet the Turkish emperor, who put an end to the empire and its laws. Histoire de la Jurisprudence; Etienne, Intr. a l'etude du Droit Romain § LIII. The Basilica were written in Greek.
BASTARD. A bastard, according to Sir William Blackstone, 1 Comm. 454, is one that is not only begotten, but born out of lawful matrimony: this definition does not appear to be complete, inasmuch as it does not embrace the case of a person who is the issue of an illicit connexion, during the coverture of his mother. A bastard may be perhaps defined to be one who is born of an illicit union, and before the lawful marriage of his parents. A man is a bastard if born, first, before the marriage of his parents; but although he may have been begotten while his parents were single, yet if they afterwards marry, and he is born during the coverture, he is legitimate, 1 Bl. Com. 455, 6. Secondly, if born during the coverture, under circumstances which render it impossible that the husband of his mother can be his father, 6 Binn. 283; 1 Browne's R. Appx. xlvii; 4 T. R. 356; Str. »40; lb. 51 ; 8 East, 193; Hardin's R. 479; it seems by the Gardner peerage case, reported by Denis Le Marchant, esquire, that strong moral improbability that the husband is not the father, is sufficient to bastardize the issue. Bac. Ab. tit. Bastardy, A. last ed.; thirdly, if born beyond a competent time after the coverture has determined. Stark. Ev. part 4, p. 221. n. a; Co. Litt. 123, b, by Hargrave & Butler in the note. See Gestation.
The principal right which bastard children have is that of maintenance from their parents. 1 Bl. Com. 45*; Code Civ. of Lo. 254 to 262. To protect the public from their support the law compels the putative father to maintain his bastard children. See Bastardy, Putative father.
Considered as nullus filius, a bastard has no inheritable blood in him, and therefore no estate can descend
to him, but he may take by testament, if properly described, after he has obtained a name by reputation. 1 Rop. Leg. 76, 266; Com. Dig. Descent, C 12; lb. Bastard, E; Co. Lit. 123, a; lb. 3, a; IT. R. 96; Doug. 548; 3 Dana, R. 233; 4 Pick. R. 93; 4 Desaus. 434. But this hard rule has been somewhat mitigated in some of the states, where by statute, various inheritable qualities have been conferred upon bastards. See 5 Conn. 228; 1 Dev. Eq. R. 345; 2 Root, 280; 5 Wheat. 207; 3 H. & M. 229, n; 5 Call, 143; 3 Dana, 233.
Bastards can acquire the rights of legitimate children only by an act of the legislature. 1 Bl. Com. 460; 4Inst. 36.
By the laws of Louisiana, a bastard is one who is born of an illicit union. Civ. Code of Lo. art. 27, 199. There are two sorts of illegitimate children; first, those who are born of two persons, who, at the moment such children were conceived might have legally contracted marriage with each other; and, secondly, those who are born from persons, to whose marriage there existed at the time, some legal impediment. lb. art. 200. An adulterous bastard is one produced by an unlawful connexion between two persons, who, at the time he was conceived, were, either of them, or both, connected by marriage with some other person. lb. art. 201. Incestuous bastards are those who are produced by the illegal connexion of two persons who are relations within the degrees prohibited by law. Ib. art. 202.
Bastards, generally speaking, belong to no family, and have no relations; accordingly they are not submitted to the paternal authority, even when they have been acknowledged. Sec 11 East, 7, n. Nevertheless fathers and mothers owe alimony to their children when they are in need.