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tioned near enough to the port to make the entry apparently dangerous. The government of the United States have uniformly insisted, that the blockade should be effective by the presence of a competent force, stationed and present, at or near the entrance of the port; 1 Kent, Com. 145, and the authorities by him cited; and see 1 Rob. R. 80; 4 Rob. R. 66; 1 Acton's R. 64, 5; and Lord Erskine's speech, 8th March, 1808, on the orders in council, 10 Cobbett's Pari. Debates, 949, 950. But " it is not an accidental absence of the blockading force, nor the circumstance of being blown off by wind, (if the suspension and the reason of the suspension are known,) that will be sufficient in law to remove a blockade." But negligence or remissness on the part of the cruizers stationed to maintain the blockade, may excuse persons, under circumstances, for violating the blockade, 3 Rob. R. 156; 1 Acton's R. 59. To involve a neutral in the consequences of violating a blockade, it is indispensable he should have due notice of it: this information may be communicated to him in two ways; either actually, by a formal notice from the blockading power, or constructively by notice to his government, or by the notoriety of the fact. 6 Rob. R. 367; 2 Rob. R. 110; lb. I11,note; lb. 128; 1 Acton's R. 61—3. In considering the consequences of the violation of a blockade, it will be proper to take a view of what will amount to such a violation, and, then, of its effects. As all criminal acts require an intention to commit them, the party must intend to violate the blockade, or his acts will be perfectly innocent; but this intention will be judged of by the circumstances. This violation may be, either, by going into the place blockaded, or by coming out of it with a cargo laden after the commencement
of the blockade; and by placing himself so near a blockaded port as to be in a condition to slip in without observation, is a violation of the blockade, and raises the presumption of a criminal intent. 6 Rob. R. 30, 101, 182; 7 John. R. 47; 1 Edw. R. 202; 4 Cranch, 185. The sailing for a blockaded port, knowing it to be blockaded, is, it seems, such an act as to charge the party with a breach of the blockade. 5 Cranch, 335; 9 Cranch, 440, 446; 1 Kent, Com. 150. When the ship has contracted guilt by a breach of the blockade, she may be taken at any time before the end of her voyage, but the penalty travels no further than the end of her return voyage. 2 Rob. R. 128; 3 Rob. R. 147. When taken, the ship is confiscated, and the cargo is always, prima facie, implicated in the guilt of the owner or master of the ship; and the burden of rebutting the presumption that the vessel was going in for the benefit of the cargo, and with the direction of the owners, rests with them. 1 Rob. R. 67, 130; 3 Rob. R. 173; 4 Rob. R. 93; 1 Edw. R. 39. Vide, generally, 2 Bro. Civ. & Adm. Law, 314; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, 128 to 147 ; 1 Kent's Com. 143 to 151 ; Marsh. Ins. Index, h. t.; Dane's Ab. Index, h. t.; Mann. Comm. B. 3, c. 9.
BLOOD, kindred, a red fluid flowing through the veins and arteries of men and most animals. It is taken in law figuratively for stock or family. 1 Roper on Leg. 103; 1 Supp. to Ves. jr. 365. In a more extended sense it means kindred generally. Bac. Max. Reg. 18. Blood is either whole blood, when the parties are related through both the father and mother, or half blood. (q. v.) when they are related only through one of them. 5 Wharton, R. 477.
BOARD OF CIVIL AUTHORITY. A term used in Vermont. This board is composed of the selectmen and justices of the peace of their respective towns. They are authorised to abate taxes, and the like.
BODY POLITIC, government, corporations, when applied to the government, this phrase signifies the state, when it is passive; sovereign, when it is active; power when compared to its equal. As to the persons who compose the body politic or associate themselves, they take collectively the name of people, or nation; and individually they are citizens, when considered in relation to their political rights, and subjects as being admitted to the laws of the state. When it refers to corporations the term body politic means that the members of such corporation shall be considered as an artificial person.
BOILA.RY. A term used to denote the water which arises from a salt well, belonging to one who has no right to the soil. Ejectment may be maintained for it. 2 Hill. Ab. c. 14, § 5; Co. Litt. 4 b.
BONA, goods and chattels. In the Roman law, it signified every kind of property, real, personal and mixed, but chiefly it applied to real estates, chattels being chiefly distinguished by the words effects, movables, &c. Bona were, however, divided into bona mobilia, and bona immobilia. It is taken in the civil law in nearly the same sense that biens (q. v.) means in the French law.
BONA FIDE, in good faith. The law requires all persons in their transactions to act with good faith; and a contract where the parties have not acted bona Jide is void at the pleasure of the innocent party. 8 John. R. 446; 12 John. R. *320; 2 John. Ch. R. M. Good faith at the time of the contract and fraudulent acts subsequently to it, will not vitiate it, but such subsequent acts of fraud raise a presumption, and be
come a means of proof, of a want of good faith at the time. Vide Rob. Fraud. Conv. 33, 34; Inst. 2, 6; Dig. 41, 3, 10 and 44; lb. 41, 1, 48; Code, 7, 31; 9 Co. 11; Wingate's Maxims, max. 37; Lane, 47; Plowd. 473; 9 Pick. R. 265; 12 Pick. R. 545; 8 Conn. R. 330; 10 Conn. R. 30; 3 Watts, R. 25; 5 Wend. R. 20, 566.
BONA NOTABILIA, Engl, ecclesiastical law, notable goods. When a person dies having at the time of his death goods in any other diocese, besides the goods in the diocese where he dies, amounting to the value of five pounds in the whole, he is said to have bona notabilia, in which case proof of his will, or granting letters of administration belongs to the archbishop of the province. 1' Roll. Ab. 908; Toll. Ex. 51; Williams on Ex. Index, h. t.
BONA PERITURA, perishable goods. An executor, administrator or trustee, is bound to use due diligence in disposing of perishable goods, such as fattened cattle, grain, fruit, or any other article which may be worse for keeping. Bac. Ab. Executors, &c.(D); 11 Vin. Ab. 102; 1 Roll. Ab. 910; 5 Co. 9; Cro. Eliz. 518; Godb. 104; 3 Munf. R. 288; 1 Beat. R. 5, 14; Dane's Ab. Index, h. t. In Pennsylvania, when goods are attached, they may be sold by order of court, when they are of a perishable nature. Vide Wcsk. on Ins. 390; Serg. on Attachm. Index.
BOND, contract. An obligation or bond is a deed whereby the obligor obliges himself, his heirs, executors and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio; but there is generally a condition added, and if the obligor does some particular act the obligation shall be void, or else shall remain in full force. 2 Bl. Com. 340. The word bond ex vi termini imports a sealed instrument. 2 S. & R. 502; 1 Bald. R. 129; 2 Porter, R. 19; 1 Blackf. R. 241 ; Harp. R. 434; 6 Verm. R. 40. See Condition; Interest of money; Penalty. It is proposed to consider, 1. Of the form of a bond, namely, the words by which it may be made; the ceremonies required. 2. The condition. 3. Of the performance or discharge.
I. 1. There must be parties to a bond, an obligor and an obligee; no particular set of words are essential to create an obligation, but any words which declare the intention of the parties, and denote that one is bound to the other, will be sufficient, provided the ceremonies mentioned below have been observed. Shep. Touch. 367,8; Bac. Abr. Obligations, B; Com. Dig. Obligations, B 1.—2. It must be in writing, on paper or parchment, and if it be made on other materials it is void. Bac. Abr. Obligations, A.—3. It must be sealed, though it is not necessary that it should be mentioned in the writing that it is sealed. As to what is a sufficient sealing, see the above case, and the word, Seal.—4. It must be delivered by the party whose bond it is, to the other. Bac. Abr. Obligations, C. But the delivery and acceptance may be by attorney. The date is not considered of the substance of a deed, and therefore a bond which either has no date or an impossible one is still good, provided the real day of its being dated or given, that is, delivered, can be proved. 2 Bl. Comm. 304; Com. Dig. Fait, B. 3; 3 Call, 309. See Date.
II. The condition is either for the payment of money, or for the performance of something else. In the latter case, if the condition be against some rule of law merely, positively impossible at the time of making it, uncertain or insensible, the condition
alone is void, and the bond shall stand single and unconditional, for it is the folly of the obligor to enter into such an obligation from which he can never be released. If it be to do a thing malum in se, the obligation itself is void, the whole contract being unlawful. 2 Bl. Com. 340 ; Bac. Abr. Conditions, K, L; Com. Dig. Conditions, D 1, D 2, D 3, D 7, D 8.
III. 1. When, by the condition of an obligation, the act to be done to the obligee, is of its own nature transitory, as payment of money, delivery of charters, or the like, and no time is limited, it ought to be performed in convenient time. 6 Co. 31; Co. Lit. 208; Roll. Abr. 436.-2. A payment before the day is good. Co. Lit. 212, a; or before action brought, 10 Mass. 419; 11 Mass. 217.—3. If the condition be to do a thing within a certain time, it may be performed the last day of the time appointed. Bac. Abr. Conditions, P 3.—4. If the condition be to do an act, without limiting any time, he who has the benefit may do it at what time he pleases. Com. Dig. Conditions, G 3.—5. When the place where the act to be performed is agreed upon, the party who is to perform it is not obliged to seek the opposite party elsewhere; nor is he to whom it is to be performed bound to accept of the performance in another place. Roll. 445, 446; Com. Dig. Conditions, G 9; Bac. Abr. Conditions, P 4. See Performance.—6. For what amounts to a breach of a condition in a bond, see Bac. Abr. Conditions, O; Com. Dig. Conditions, M; and this Diet, tit. Breach.
BONUS, contracts. A premium paid to a grantor or vendor, as, the bank paid a bonus to the state for its charter; a consideration given for what is received.
BOOK. It is a work of the mind, written or printed, so large in extent
as to form a volume. The copyright (q. v.) or exclusive right to print and publish a book, may be secured to the author or his assigns for the term of twenty-eight years; and if the author be living, and a citizen of the United States, or resident therein, the same right shall be continued to him for the further term of fourteen years, by complying with the conditions of the act of Congress; one of which is, that he shall within three months after publication, deliver, or cause to be delivered, a copy of the same to the clerk of the said district. Act of February 3, 1831. 4 Sharsw. cont. of Story's L. U. S. 2223.
BOOKS, commerce,accounts. Merchants, traders and other persons, who are desirous of understanding their affairs, and of explaining them when necessary, keep, 1, a day book; 2, a journal; 3, a ledger; 4, a letter book; 5, an invoice book; 6, a cash book; 7, a bill book; 8, a bank book; 9, a check book. The reader is referred to these several articles. Commercial books are kept by single or by double entry.
BOOTY, tear, is the capture of personal property by a public enemy on land, in contradistinction to prize, which is a capture of such property by such an enemy on the sea. After booty has been in complete possession of the enemy for twenty-four hours, it becomes absolutely his, without any right of postliminy in favour of the original owner, particularly when it has passed, bona fide, into the hands of a neutral. 1 Kent, Com. 110. The right to the booty, Pothier says, belongs to the sovereign, but sometimes the right of the sovereign or the public is transferred to the soldiers to encourage them. Tr. du Droit de Propriete, part 1, c. 2, art, 1, 1 .2; Burl. Nat. and Pol. Law, vol. ii. part 4, c. 7, n. 12.
BOROUGH, an incorporated town; so called in the charter; it is
less than a city. 1 Mann. & Gran. 1; 39 E. C. L. R. 323.
BOROUGH ENGLISH, Eng. law. This, as the name imports, relates exclusively to the English law. It is a custom in many ancient boroughs, by which the youngest son succeeds to the burgage tenement on the death of the father. 2 Bl. Com. 83; in some parts of France, there was a custom by which the youngest son was entitled to an advantage over the other children in the estate of their father. Merl. Rep. mot Mainete.
BORROWER, contracts, isjhc to whom a thing is lent at his request. The contract of loan confers rights and imposes duties on the borrower.
1. In general, he has the right to use the thing borrowed, during the time and for the purpose intended between the parties; the right of using the thing bailed, is strictly confined to the use, expressed or implied, in the particular transaction, and by any excess, the borrower will make himself responsible. Jones's Bailment, 68; 5 Mass. R. 104; Cro. Jac. 244; 2 Ld. Raym. 909; Ayl. Pand. B. 4, t. 16, p. 517; Domat, B. 1, t. 5, § 2, n. 10, 11, 12; Dig. 13, 6, 18; Poth. Pret a Usage, ch. 2, § 1, n. 22; 2 Bulst. 306; Ersk. Pr. Laws of Scotl. B. 3, t. 1, § 9; 1 Const. Rep. So. Car. 121; Bracton, lib. 3, ch. 2, § 1, p. 99. The loan is considered strictly personal, unless from other circumstances a different intention may be presumed. 1 Mod. Rep. 210; S. C. 3 Salk. 271.
2. The borrower is bound to take extraordinary care of the thing borrowed; to use it according to the intention of the lender; to restore it in proper time; to restore it in a proper condition. Of these in their order. 1. The loan being gratuitous, the borrower is bound to extraordinary diligence, and is responsible for slight neglect in relation to the thing loaned. 2 Ld. Raym. 909, 916; Jones on Bailm. 65; 1 Dane's Abr. ch. 17, art. U; Dig. 44, 7, I, 4; Poth. Pret a Usage, ch. 2, § 2, art. 21, n. 48 2. The use is to be according to the condition of the loan; if there is any excess in the nature, time, manner, or quantity of the use, beyond what may be inferred to be within the intention of the parties, the borrower will be responsible, not only for any damages occasioned by the excess, but even for losses by accidents, which could not be foreseen or guarded against. 2 Ld. Raym. 909 ; Jones on Bailm. 68, 69. —3. The borrower is bound to make a return of the thing loaned, at the time, in the place, and in the manner contemplated by the contract. Domat, Liv. 1, t. 5, f 1, n. 11; Dig, 13, 6, 5, 17. If the borrower does not return the thing at the proper time, he is deemed to be in default, and ii generally responsible for all injuries, even for accidents. Jones on Bailm. 70; Pothier, Pret a Usage, ch. 2, § 3, art. 2, n. 60; Civil Code of Louis. art. 2870; Code Civil, art. 1881 ; Ersk. Inst. B. 3, t. 1, § 22; Ersk. Pr. Laws of Scotl. B. 3, t, 1, § 9.—4. As to the condition in which the thing is to be restored. The borrower not being liable for any loss or deterioration of the thing, unless caused by his own neglect of duty, it follows, that it is sufficient if he returns it in the proper manner and at the proper time, however much it may be deteriorated from accidental or other causes, not connected with any such neglect. Story on Bailm. ch. 4, § 268. See generally, Story on Bailm. ch. 4; Poth. Pret a Usage; 2 Kent, Com. 446-449; Vin. Abr. Bailment, B 6; Bac. Abr. Bailment; Civil Code of Louis. art. 2869-2876. Vide Lender.
BOTE, contracts, a recompense, satisfaction, amends, profit or advantage: hence came the word man
bote, denoting a compensation for a man slain; house-bote, cart-bote, plough-bote, signify that the tenant is privileged to cut wood for these uses. 2 Bl. Com. 35; Woodf. L. & T. 232.
BOTELESS, or bootless, without recompense, reward or satisfaction made; unprofitable or without success.
BOTTOMRY, maritime law, is a contract in nature of a mortgage of a ship, on which the owner borrows money to enable him to fit out the ship, or to purchase a cargo for a voyage proposed; and he pledges the keel or bottom of the ship, pars pro toto, as a security for the repayment: and it is stipulated that if the ship should be lost in the course of the voyage, by any of the perils enumerated in the contract, the lender also shall lose his money; but if the ship should arrive in safety, then he shall receive back his principal, and also the interest agreed upon, which is generally called marine interest, however this may exceed the legal rate of interest. Not only the ship and tackle if they arrive safe, but also the person of the borrower is liable for the money lent and the marine interest. See 2 Bl. Com. 458 Marsh. Ins. B. 2, c. 1; Ord. Louis XIV. B. 3, tit. 5; Laws of Wisbuy, art. 45; Code de Com. B. 2, tit. 9.
The contract of bottomry should specify the principal lent, and the rate of marine interest agreed upon; the subject on which the loan is effected; the names of the vessel and of the master; those of the lender and borrower; whether the loan be for an entire voyage; for what voyage; and for what space of time; and the period of repayment. Code de Com. art. 311; Marsh. Ins. B. 2.
Bottomry differs materially from a simple loan. In a loan, the money is at the risk of the borrower, and