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tained 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.
EARNEST, contracts, is 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. 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; 6 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. This is an incorporeal hereditament, and corresponds nearly to the servitudes or services of the civil law. Vide Lilly's Reg. h. t.; 3 Kent, Com. 344; Cruise, Dig. t. 31, c. 1, s. 17 ; 2 Hill. Ab. c 5; 9 Pick. R. 251; 1 Bail. R. 56; 5 Mass. R.
129; 4 McCord's R. 102; Whatl. on Eas. passim; and the article Servitude.
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 dismisssed. Dane's Abr. Index, h. t.
EAVES-DROPPERS, trim, law, are such persons as wait under walls or windows or the eaves of a house, to listen after discourses, and thereupon to frame mischievous tales. 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.
EBRIOSITY. This word is used by the Germans to describe that condition of a man which gradually results from the excessive use of intoxicating liquors, and is characterised by certain abiding effects. When insanity is produced by a long continued use of intoxicating drinks, it excuses those acts which would otherwise be considered crimes. 5 Mason's R. 28; 1 Russ. on Crimes, 7. Vide Drunkenness
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.
ECCLESIASTICAL. Belonging to, or set apart for the church; as distinguished from civil or secular. Vide Church.
ECCLESIASTICAL COURTS, English lair, are courts held by the king's authority as supreme governor of the church, for matters which chiefly concern religion. 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 o Faculties; 10. The Court of Commissioners of Review.
ECCLESIASTICAL LAW.— Vide Law, Canon.
ECCLESIASTICS, canon law, are those persons who compose the hierarchial state of the church. They are regular and secular. Aso & Man. Inst. B, 2, t. 5, c. 4, § 1.
ECLAMPSIA PARTURTENTIUM, med. jur. The name of a | disease accompanied by apoplectic convulsions,and which producesaberration of mind at child-birth. 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 a 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 in order to discover the guilt of the mother, where it exists, and to ascertain her innocence, where it does not. The innocent should not suffer for the guilty; and what, in the eye of science is a mere misfortune, should not, when it can be avoided, be punished as a crime. See two well reported cases of this kind in the Boston Medical Journal, vol. 27, No. 10, p. 161.
EDICT, in some countries, is a law ordained by the sovereign, by which he forbids or commands something, and extends either to the whole country, or only to some particular provinces. Edicts are somewhat similar to the president's proclamation; their difference consists in this, that the former have authority and force of law in themselves, whereas
the latter are only declarations of a law, which has been before enacted by congress.
Among the Romans this word sometimes signified a citation to appear before a judge. The edicts of the emperors, also called constituiones 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, Theodorian, and Justinian codes. Vide Dig. 1, 4, 1,1; Inst. 1, 2, 7; Code, 1,1; Nov. 139.
EDICT, PERPETUAL, is 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, 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.
EE, in the termination of words, has a passive signification, usually denoting the person to whom an act is done; as the grantee, he to whom a grant is made; the donee, he to whom a gift is made; the lessee, ho to whom a lease is made. Vide Litt. s. 57; 2 Bl. Com. 140.
EFFECT. The operation of a law ; an agreement, or an act, is called its effect. What is null produces no effect.
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. 326; Roper on Leg. 210.
EFFIGY, crim. law, is the figure or representation of a person. To make the effigy of a person with an intent to make him the object of ridicule is a libel, (q. v.) Hawk. b. l,c. 73, s. 2; 14 East, 227; 2 Chit. Cr. Law, 866.
EIGNE, persons. This is a corruption of the French word aine, eldest or first born. It is frequently used in our old law books; bustard 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, signifies a journey. Justices in eire, 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, is the name of an action which lies for the recovery of the possession of real property, and of damages for the unlawful detention. 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.
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. Corn. 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.
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, MI ; 3 Bl. Com. 206; Yclv. 143; Run. Eject. 121 to 136; Ad. Eject. c. 2; 9 John. 298; 16 John. 284.
3. The title of the party having a right of entry may be in fee-simple, fee-tail or for life or years; and if it is the best title to the property the plaintiff will succeed. The plaintiff must recover on the strength of his title, and not on the 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.
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's R. 335.
5. The judgment is that the plaintiff do recover his term, of and in the tenements, and, unless the damages be remitted, as is most usual, the damages assessed by the jury with the costs of increase.
Vide, generally, Adams on Ej.; Run. Ej.; Com. Dig. h. t.; Dane's Ab. h. t.; 1 Chit. PI. 1«8 to 193; 18 E. C. L. R. 158; Woodf. L. & T. 354 to 417; 2 Phil. Ev. 169; 8 Vin. Ab. 323; Arch. Civ. PI. 503; 2 Sell. Pr. 85; Chit. Pr. Index, h. t.; Bac. Ab. h. t.; Doct. PI. 227; Am. Dig. h. t.
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 of things.
§ 1. Of men. These are either public elections or elections by companies or corporations.
1. Public elections. These should be free and uninfluenced either by hope or fear. They are, therefore, generally made by ballot, (though there are exceptions, as in Virginia, where elections to any office of honour, trust, or profit, are viva voce, Const. of Virg. art. 3, s. 15;) 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 elections, 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.
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, as in Maine, Const, art. 4, part 1, § 5, a majority of all the votes is required. Each elector has one vote.
2. Elections by corporations or companies are made by the members in such a way as 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. "l47; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend. 509; 1 Wend. 98.
§2. The election of things. l.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. Obi. 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 he, 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 a failure on the part 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. Obi. 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.
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 Ron. Leg. 378, ch. 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. 533; 3 Bro. P. C. by Toml. 277; 1 B. & Beat. 1; M'Clel. R. 424, 439, 541. See generally, on this doctrine, Roper's Legacies, ch. 23; and the learned notes of Mr. Swanston to the case Dillon v. Parker, 1 Swanst. R. 394, and 381; Com. Dig. Appendix, tit. Election; 3 Desaus. R. 504; 3 Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13 Price, R. 607; 1 M'Clel. R. 439; 1 Y. & C. M.
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.
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. U. S. Dig. Actions IV.