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must be paid at all events. But in bottomry, the money is at the risk of the lender during the voyage. Upon a loan only legal interest can be received ; but upon bottomry, any interest may be legally reserved which the parties agree upon.
See generally, Mete. & Perk. Dig. h. t.; Marsh. Inst. B. 2; Bac. Abr. Merchant, K; Com. Dig. Merchant, E 4; 3 Mass. 443; 8 Mass. 340: 4 Binn. 244: 4 Cranch, 328; 3 Johns. R. 352; 2 Johns. Cas. 250; 1 Binn. 405; 8 Cranch, 418; 1 Wheat. 96; 2 Dall. 194. See also this Diet. tit. Respondentia; Vin. Abr. Bottomry Bonds.
BOUGHT NOTE, contracts, is an instrument in writing, given by a broker to the seller of merchandize, in which is stated that the goods therein mentioned have been sold for him. This note is signed in the broker's name, as agent of the buyer and seller; and, if he has not exceeded his authority, the parties are thereby respectively bound. 1 Bell's Com. (5th ed.) 435; Holt's C. 170; Story on Agency, § 28; 9 B. & Cr. 78; 17 E. C. L. R. 335; 5 B. & Ad. 521; 1 N. R. 252; 1 Moo. & R. 368; Moo. & M. 43; 22 E. C. L. R. 243; 2 M. & W. 440; Moo. & M. 43; 6 A. & T. 486; 33 E. C. L. R. 122; 16 East, 62; Gow, R. 74; 1 Camp. R. 385; 4 Taunt. 209; 7 Ves. 265. Vide Sold Note.
BOUNDARY, estates. By this term is understood, in general, every separation natural or artificial, which marks the confines or line of division of two contiguous estates. Boundary also signifies stones or other materials inserted in the earth on the confines of two estates. Boundaries are either natural or artificial. A river or other stream is a natural boundary, and in that case the centre of the stream is the line; 20 John. R. 91; 12 John. R. 252; 1 Band. R. 417; 1 Halst. R. 1 ; 2 N
H. Rep. 369; 6 Cowen R. 579; 4 Pick. 268; 3 Randolph's R. 33; 4 Mason's R. 349-397. An artificial boundary is one made by man. The description of land, in a deed, by specific boundaries, is conclusive as to the quantity; and if the quantity be expressed as a part of the description it will be inoperative, and it is immaterial whether the quantity contained within the specific boundaries, be greater or less than that expressed. 5 Mass. 357; 1 Caines's R. 493; 2 John. R. 27; 15 John. 471; 17 John. R. 146 ; Id. 29; 6 Cranch, 237; 4 Hen. & Munf. 125; 2 Bay R. 515; and the same rule is applicable, although neither the courses and distances, nor the estimated contents correspond with such specific boundaries. 6 Mass. 131; 11 Mass. 193; 2 Mass. 380; 5 Mass. 497; but these rules do not apply in cases where adherence to them would be plainly absurd. 17 Mass. 207. Vide 17 S. & R. 104; 2 Mer. R. 507; 1 Swanst. 9; 4 Ves. 180; 1 Stark. Ev. 169; 1 Phil. Ev. Index, h. t.; Chit. Pr. Index, h. t.; 1 Supp. to Ves. jr. 276; 2 Hill. Ab. c. 24, § 209, and index, h. t. When a boundary, fixed and by mutual consent has been been permitted to stand for twenty-one years, it cannot afterwards be disturbed. In accordance with this rule, it has been decided, that where town lots have been occupied up to a line fence between them for more than twenty-one years, each party gained an incontrovertible right to the line thus established, and this whether either party knew of the adverse claim or not; and wheth. er either party has more or less ground than was originally in the lot he owns. 9 Watts, R. 565. See Hov. Fr. c. 8, p. 239 to 234; 3 Sumn. R. 170; Poth. Contr. de So ciete, prem. app. n. 231. BOUNTY, is a sum of money or other thing, given, generally by the government, to certain persons, for some good they have done or are about to do to the public. As bounty upon the culture of silk; the bounty given to an enlisted soldier; and the like. It differs from a reward, which is generally applied to particular cases; and from a payment, as their is no contract on the part of the receiver of the bounty.
BOVATA TERRiE. As much land as one ox can plough.
BRANCH. This'is a metaphorical expression, which designates, in the genealogy of a numerous family, a portion of that family which has sprung from the same root or stock; these latter expressions, like the first are also metaphorical. The whole of a genealogy is often called the genealogical tree; and sometimes it is made to take the form of a tree, which is in the first place divided into as many branches as there are children, afterwards into as many branches as there are grandchildren, then of great-grandchildren, &c. If, for example, it be desired to form the genealogical tree of Peter's family, Peter will be made the trunk of the tree; if he has had two children, John and James, their names will be written on the first two branches; which will themselves shoot out as many twigs as John and James have children; these will produce others, till the whole family shall be represented on the tree; thus the origin, the application, and the use of the word branch in genealogy will be at once perceived.
BREACH, contracts, torts, the violation of an obligation or duty; as a breach of a covenant is the non-performance of a covenant, the breach of a duty, is the refusal or neglect to execute an office, trust or the like, according to law; breach of the peace is the disturbance of the public peace. Vide article Peace.
Breach of prison, is the act of escapeing from prison. 1 Russ. Cr. 37b; 4 Bl. Com. 129; 2 Hawk. P. C. c. 18, s. 1 ; 7 Conn. R. 752; and articles False Imprisonment; Imprisonment; Regular and Irregular process; Prison. A breach of promise, is the non-performance of a promise or engagement. For breaches of contracts, the remedy is by an action on such contracts; for the breach of those duties which amount to quasi contracts, the remedy is also a civil action; and for breaches of peace or violations of the public law, the offender may be indicted for a misdemeanor.
TO BRAND. An ancient mode of punishment, which was to inflict a mark on an offender with a hot iron. This barbarous punishment has been generally disused.
BRANDY. A spirituous Jiquor made of wine by distillation. See Stat. 22 Car. 2, c. 4.
BREACH, pleading, is that part of the declaration in which the violation of the defendant's contract is stated. It is usual in assumpsit to introduce the statement of the particular breach, with the allegation that the defendant contriving and fraudulently intending craftily and subtilely to deceive and defraud the plaintiff, neglected and refused to perform, or performed the particular act, contrary to the previous stipulation. In debt the breach or cause of action complained of must proceed only for the non-payment of money previously alleged to be payable ; and such breach is nearly similar, whether the action be in debt on simple contract, specialty, record or statute, and is usually of the following form: "Yet the said defendant, although often requested so to do, hath not as
yet paid the said sum of dollars,
above demanded, nor any part thereof to the said plaintiff, but hath hitherto wholly neglected and refused so to do, to the damage of the said plaintiff dollars, and therefore he
brings suit, &c. The breach must obviously be governed by the nature of the stipulation; it ought to be assigned in the contract, either negatively or affirmatively, or in words which are co-extensive with its import and effect. Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127; and see 5 John. R. 168; 8 John. R. I11 ; 7 John. R. 37*6; 4 Dall. 43tj; 2 Hen. & Munf. 446. When the contract is in the disjunctive, as, on a promise to deliver a horse by a particular day, or pay a sum of money, the breach ought to be assigned that the defendant did not do the one act nor the other. 1 Sid. 440; Hardr. 320; Com. Dig. Pleader, C.
BREACH OF THE PEACE, criminal law. Any offence against public tranquillity, or against person or property, when accompanied by violence; any act of public indecorum. Vide article Peace.
BREACH OF TRUST, is the wilful misappropriation, by a trustee, of a thing which had been lawfully delivered to him in confidence. The distinction between larceny and a breach of trust is to be found chiefly in the terms or way in which the thing was taken originally into the party's possession; and the rule seems to be, that whenever the article is obtained upon a fair contract, not for a mere temporary purpose, or by one who is in the employment of the deliverer, then the subsequent misappropriation is to be considered as an act of breach of trust. This rule is, however, subject to many nice distinctions. 15 S. & R. 93, 97. It has been adjudged that when the owner of goods parts with the possession for a particular purpose, and the person who receives them avowedly for that purpose, has at the time a fraudulent intention to make use of
the possession as the means of converting the goods to his own use, and does so convert them, it is larceny; but if the owner part with the property, although fraudulent means have been used to obtain it, the act of convertion is not larceny, lb. Alis. Princ. c. 12, p. 354.
BREAK DOWN. This phrase is applied to a witness who has made a statement of what he will swear to, and who, afterwards, when under the influence of his oath, contradicts or materially qualifies such previous statement. He is then said to break down. 3 Chit. Pr. 840.
BREAKING. Forcibly tearing asunder. In cases of burglary and house-breaking, the removal of any part of the house or of the fastenings provided to secure it, with violence and a felonious intent, is called a breaking. The breaking is actual, as in the above case, or constructive, as when the burglar or house-breaker, gains an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 2; 2 Chit. Cr. Law, 1092, 1 Hale, P. C. 553; Alis. Prin. 282, 291; in England it has been decided that if the sash of a window be partly open, but not sufficiently so to admit a person, the raising of it so as to admit a person is not a breaking of the house. 1 Moody, Cr. Cas. 178. No reasons are assigned. It is difficult to conceive how a window made in the usual way, can be otherwise than partially open, and what will amount to a sufficient opening to render a further opening not a breaking? But see 1 Moody, Cr. Cas. 327, 377; and Burglary.
BREAKING DOORS, is the act of forcibly removing the fastenings of a house, so that a person may enter. It is a maxim that every man's house is his castle, and it is protected from every unlawful invasion. An officer having a lawful process of a criminal nature, authorising him to do so, may break an outer door, if upon making a demand of admittance it is refused. The house may also be broken open for the purpose of executing a writ of habere facias. 5 Co. 93; Bac. Ab. Sheriff, N a. The house protects the owner from the service of all civil process in the first instance, but not if he is once lawfully arrested, and he takes refuge in his own house; in that case the officer may pursue him, and break open any door for the purpose. Foster, 320; 1 Rome's R. 138; Cro. Jac. 555. V. Door; House.
BREATH, med. juris. The air expelled from the chest at each expiration. Breathing though a usual sign of life, is not conclusive that a child was wholly born alive, as breathing may take place before the whole delivery of the mother is complete. Until the child is wholly born it being killed maliciously is not murder or infanticide, (q. v.) 5 Carr. & Payn. 3J9; S. C. 24 Engl. C. L. R. 344. Vide Birth; Life.
BREPHOTROPHI, civil law. Persons appointed to take care of houses destined to receive foundlings. Clef Lois Rom. mot Administrateurs.
BREVE, practice, is a writ in which the cause of action is briefly stated, hence its name. It is issued to summon or attach a defendant re quiring him to answer to an action, or any thing commanded to be done by the same.
BREVE DE RECTO. A writ of right, (qr v.)
BREVIA FORMATA, English law, is the appellation given to the collection in the book styled, The Register of Writs, (q. v.) when other forms were invented. The brevia formata were adapted to those causes of complaint that most frequently occurred.
BREVIBUS ET ROLULIS LIBERANDIS. Eng. law. A writ or
mandate directed to a sheriff commanding him to deliver to his successor the county and the appurtenances, with all the briefs, rolls, remembrancers, and all other things belonging to his office.
BRIBE, crim. law. The gift or promise, which is accepted, of some advantage, as the inducement for some illegal act or omission; or of some illegal emolument, as a consideration, for preferring one person to another, in the performance of a legal act.
BRIBERY, crim. law, is the re ceiving or offering any undue reward by or to any person whomsoever, whose ordinary profession or business relates to the administration of public justice, in order to influence his behaviour in office, and to incline him to act contrary to his duty and the known rules of honesty and integrity. 3 Inst. 149; 1 Hawk. P. C. c. 67, s. 2; 4 Bl. Com. 139;
1 Russ. Cr. 156. The term bribery extends now further and includes the offence of giving a bribe to many other officers. The offence of the giver and of the receiver of the bribe has the same name. For the sake of distinction that of the former might be properly denominated positive, while that of the latter might be called negative bribery.
An attempt to bribe, though unsuccessful, has been holden to be criminal, and the offender may be indicted.
2 Dall. 384; 4 Burr. 2500; 3 Inst. 147; 2 Campb. R. 229; 2 Wash. 88; 1 Virg. Cas. 138; 2 Virg. Cas. 460.
BRIBOUR. One that pilfers other men's goods; a thief. See 28 E. 2, c. 1.
BRIDGE, is a building constructed over a river,creek, orother stream, or over a ditch or other place, in order to facilitate the passage over the same. Bridges are of several kinds, public and private. Public bridges may be divided into, 1st, those which belong to the public, as state, county or township bridges, over which all the people have a right to pass, with or without paying toll; these are built by public authority at the public expense, either of the state itself, or a district or part of the state. 2dly, those which have been built by companies, or at the expense of private individuals, and over which all the people have a right to pass, on the payment of a toll fixed by law; 3dly, those which have been built by private individuals, and which have been dedicated to public uses. 2 East, R. 356; 5 Burr. R. 2594; 2B1.R.C85; 1 Camp. R. 262, n.; 2 M. & S. 262. A private bridge is one erected for the use of one or more private persons; such bridge will not be considered a public bridge although it may be occasionally used by the public. 12 East, R. 203, 4. Vide 7 Pick. R. 344; 11 Pet. R. 539; 7 N. H. Rep. 59; 1 Pick. R. 432; 4 John. Ch. R. 150.
BRIEF, Eccl. law. The name of a kind of papal rescript. Briefs are writings sealed with wax, and differ in this respect from bulls, (q. v.) which are sealed with lead. They are so called, because they usually are comprised in short compendious writings. Ayl. Parerg. 132.
BRIEF, practice, is a detailed and abridged statement of a party's case. It should contain, 1st. A statement of the names of the parties, and of their residence and occupation, the character in which they sue and are sued, and wherefore they prosecute or resist the action. 2d. An abridgment of all the pleadings. 3d. A regular, chronological and methodical statement of the facts in plain common language. 4th. A summary of the points or questions in issue, and of the proof which is to support such issues, mentioning specially the names of the witnesses by which the
facts are to be proved, or if there be written evidence, an abstract of such evidence. 5th. The personal character of the witnesses should be mentioned; whether the moral character is good or bad, whether they are naturally timid or over-zealous, whether firm or wavering. 6th. If known, the evidence of the opposite party, and such facts as are calculated to oppose, confute, or repel it. Perspicuity and conciseness are the most desirable qualities of a brief, but when the facts are material they cannot be too numerous, when the argument is pertinent and weighty, it cannot be too extended. Brief is also used in the sense of here, (q. v.)
BRIEF OF TITLE, practice, conveyancing, is an abridgment of all the patents, deeds, indentures, agreements, records and papers relating to certain real estate. In making a brief of title, the practitioner should be careful to place every deed and other paper in chronological order. The date of each deed ; the names of the parties; the consideration ; the description of the property ; should be particularly noted, and all covenants should also be particularly inserted.
BROCAGE, contracts, the wages or commissions of a broker; his occupation is also sometimes called brocage. This word is also spelled brokerage.
BROKERAGE, contracts, the trade or occupation of a broker; the commissions paid to a broker for his services.
BROKERS, commerce, are those who are engaged for others, in the negotiation of contracts, relative to property, with the custody of which they have no concern. Paley on Agency, 13; see Com. Dig. Merchant, C. A broker is, for some purposes, treated as the agent of both parties ; but in the first place, he is deemed the agent only of the person