Gambar halaman
PDF
ePub

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 proportions. 4 Day, 395. 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. 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 of a natural day. Dig. 43, 13, 1, 8. Vide Day.

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. 433, 440, 441.

In a moral sense that is called equity ,which is founded in natural justice, in honesty, and in right, ex aqua et bono. 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 said to be a supplement to the laws; and nothing is perhaps more correct and just, but it must be directed by

science, without which the magistrate must tremble to set in the temple of justice, and without which his mind will wander in pursuit of a phantom of equity purely imaginary. The Roman law will furnish him with the surest guides, and the safest rules; here will be found fully developed the first principles and the most 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. § 23.

But eqnity 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 recognised 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. (j 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; Woddes. Lect. 114.

EQUITY, COURT OF. Vide Chancery.

EQUITY OF REDEMPTION, is a right which the mortgagee of an estate has of redeeming it, after it has been forfeited at law by the nonpayment at the time appointed of the money secured by the mortgage to be paid, by paying the amount of the debt, interest and costs. An I equity of redemption is a mere creature of a court of equity, founded on this principle, that as a mortgage is j nothing more than a pledge for securing the repayment of a sum of money to the morgagee, 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. In Pennsylvania, however, redemption is a legal right. 11 Serg. & Rawle, 223. 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, Mo.

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.

Vol. I.—44

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; 1 Pow. on Mortg. ch. 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.

EQUIVOCAL. What has a double sense. 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.

ERASURE, contracts, evidence, is 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. 36 S; 13 Vin. Ab. 41 ; Fitzg. 207 ; 5 Bing. R. 183; 3 C. & P. 55; 2 Wend. R. 555; 11 Conn. R. 531; 5 M. R. 190; 2 L. R. 291; 3 L. R. 56; 4 L. R. 270.

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, is the non-conformity or opposition of our ideas to the nature or state of things. It differs from ignorance, (q. v.) which is the want of knowledge. Error is also a mistake made in the trial of a cause, to correct which a writ of error (q. v.) may be sued out of a superior court. Vide Marriage; Mistake.

ERROR, WRIT OF. Vide Writ of Error.

ESCAPE. An escape is the deliverance of a person out of prison, who is lawfully imprisoned, before such person is entitled to such deliverance by law. Escapes are either negligent or voluntary, in civil or criminal cases.

It is not necessary that the party should be held in actual imprisonment within a gaol; if he be in custody of a proper officer he may escape as much as if he were in prison. 3 Bl. Com. 290, 415; 1 Hal. P. C. 590; 2 Hawk. P. C. 134; 4 Bl. Com. 130,

The prisoner's being out of prison for any or the shortest time, is an escape, although he afterwards return. 2 Bl. Rep. 1048; 1 Rolle's Abr. 806; and though he has a keeper with him, 3 Co. 44 a; Plowd. Com. 37; Hob. 202; 1 Bos. & Pull. 24; 2 Bl. R. 1048. See also 5 Mass. R. 310; 7 Mass. R. 98; 4 Mass. R. 391; 2 Mass. R. 549; 9 Johns. R. 329; 13 Johns. R. 366; 9 Johns. R. 146; 5Johns.R.115; lSJohns. R. 152; 3 Binn. R. 404; 13 Johns. R. 503; 6 Johns. R. 62; 10 Johns. R. 220; 14 Johns. R. 263; 10 Johns. R. 420; 18 Johns. R. 48; Com. Dig. Escape, C; Bac. Abr. Escape; Vin. Abr. Escape.

ESCAPE, CONSTRUCTIVE.— Where the prisoner still remains in prison, but owing to some act of the keeper he is not in the same strict

confinement in which he ought to be, it is a constructive escape; as if a man marries his prisoner, Plowd. 17; Bac. Abr. Escape, B 3; or if an underkeeper of the gaol be taken in execution, and delivered at the gaol house, and neither the sheriff nor any authorised person is there to receive him. 5 Mass. R. 310.

ESCAPE, VOLUNTARY. Voluntary escapes are such as are by the consent of the keeper.

In civil cases, when the prisoner is confined under a ca. sa. after a voluntary escape, the sheriff can never retake his prisoner, and he must answer for the debt. Carter, 212. But the plaintiff, having been in no default, may retake him by virtue of stat. 8 & 9 W. 3, c. 26; and independently of the statute, he might have a new action of debt, or scire facias quare executionem non, against the prisoner. Bac. Abr. Escape in civil cases, C.

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. Jacobs, 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. 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 Wms. Bl. R. 123. 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,

SCCt 24..

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, is 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. 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; 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 Greenl. 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.

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 the estate has been divided.

ESPLEES, are 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; 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, § 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. 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, is 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 Diet. h. t. Essoin-day is the day on which the writ is returnable. It is considered for many purposes as the first dav of the term. 1 T. R. 183. See 2 t. R. 16 n.; 4 Moore's. R. 425. Vide Eroine.

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 finalterably 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 rmd establish this constitution. 1 Story, Const. § 454.

ESTATE. This word has 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 estates is applied to lands. An estate in land means such an interest as the tenant has therein. In Latin it is called status, because

it signifies the condition or circumstance in which the owner stands with regard to his property. To ascertain this with precision and accuracy, estates in lands may be considered in a three-fold view; first, with regard to the quantity of interest which the tenant has in his tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; thirdly, with regard to the number and connexion of the tenants.

I. The quantity of interest which the tenant has in his tenement is measured by its duration and extent; this occasion, the first division of estates into such as are of freehold, and such as are less than freehold. 1. Freehold estates are of inheritance and not of inheritance. 1st. Estates of inheritance, are absolute, as fee simple; and limited, which are qualified, as where an estate is granted to A B, tenant of the manor of Dale; or conditional, as fee tail, and the like. 2d. Freehold estates not of inheritance, are estates for life. These are either conventional, or such as are created by deed: or legal, which arise by operation of law. The estates of tenant in tail after the possibility of issue extinct, tenant by the curtesy, and tenant in dower, are of this description. 2. Estates less than freehold. These are estates for years, estates at will, and estates by sufferance.

Both estates of freehold and less than freehold may be, 1, equitable, namely, to the use, or in trust; 2, upon condition, expressed or implied; 3, as a pledge or security, as a mortgage.

II. The time of their enjoyment. Estates are either in possession, or expectancy; the latter are either remainders, created by the act of the parties, which are vested or contingent; or reversions created by act of law.

« SebelumnyaLanjutkan »