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lease of a tract of land, except one acre, would be void, because that acre was not particularly described. Woodf. Landl. & Ten. 10; Co. Litt. 47 a; Touchs. 77 ; 1 Shepl. R. 337; Wright's R. 711; 3 John. R. 375; ti Conn. R. 369; 6 Pick. R. 499; 6 N. H. Rep. 421. An exception differs from a reservation; the former is always part of the thing granted; the latter is of a thing not in esse but newly created or reserved. An exception differs also from an explananation, which by the use of a widely- cit, proviso, &c, is allowed only to explain doubtful clauses precedent, or to separate and distribute generals into particulars 3 Pick. R. 272.
EXCEPTION, practice, pleading. This term is used in the civil, nearly in the same sense that the word plea has in the common law. Merl. Repert, h. t.; Ayl. Parerg. 251. In chancery practice, it is the allegation of a party in writing, that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr. 228. Exceptions are dilatory or peremptory. Bract, lib. 5, tr. 5; Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress. Poth. Proc. civ. partie, T, c. 2, s. 2, art. I ; Code of Pract. ofLo. art. 332. Declinatory exceptions have this effect, as well as the exception of discussion opposed by a third possessor, or by a surety in an hypothecary action, or the exception taken in order to call in the warrantor. Id.; 7 N. S. 282; 1 L. R. 38, 420. These exceptions must in general be pleaded a limine litis before issue, joined. Civ. Code of Lo. 2260; 1 N/S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 646. A declinatory exception is a species of dilatory exception ; which merely declines the jurisdiction ofthe judge before whom the action is brought. Code of Pr. of L. art. 334. Peremptory exceptions
are those which tend to the dismissal of the action. Some relate to forms, others arise from the law. Those which relate to forms tend to have the cause dismissed, owing to some nullities in the proceedings. These must be pleaded in liviine litis. Peremptory exceptions founded on law, are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because it is prescribed, or because the cause of action has been destroyed or extinguished. These may be pleaded at any time previous to definitive judgment. Id. art. 343346; Poth. Proc. Civ. partie, 1, c. 2, s. 1, 2, 3. These in the French law, are called Fins de non recevoir, (q. v.)
EXCHANGE, comm. law. This word has several significations.
1. Exchange is a negociation by which one person transfers to another, funds which he has in a certain place, either at a price agreed upon, or which is fixed by commercial usage. This transfer is made by means of an instrument which represents such funds, and is well known by the name of bill of exchange.
2. The price which is paid in order to obtain such transfer, is also known among merchants by the name of exchange; as, exchange on England is five per cent. See 4 Wash. C. C. R. 307.
3. Barter, (q. v.) or the transfer of goods and chatties for other goods and chattels, is also known by the name of exchange, though the term barter is more commonly used.
4. The French writers on commercial law, denominate the profit which arises from a maritime loan, exchange, when such profit is a per centage on the money lent, considering it in the light of money lent in one place to be returned in another, with a difference in amount in the sum borrowed and that paid, arising from the difference of time and place. Hall on Mar. Loans, 56, n.; and the articles, Interest; Maritime; Premium.
5. By exchange is also meant, the place where merchants, captains of vessels, exchange agents and brokers, assemble to transact their business. Code de Comm. art. 71.
Vide the articles Bills of Exchange; Damages on Bills of Exchange, and Re-exchange. Also Civ. Code of Lo. art. 2630.
EXCHANGE, conveyancing. An exchange is a mutual grant of equal interests in land, the one in consideration of the other. 2 Bl. Com. 323; Litt. s. 62; Touchs. 289; there are five circumstances necessary to an exchange; 1. That the estates given be equal. 2. That the word escamhium or exchange be used, which cannot be supplied by any other word, or described by circumlocution. 3. That there be an execution by entry or claim in the life of the parties. 4. That if it be of things which lie in grant, it be by deed. 5. That if the lands lie in several counties, it be by deed indented; or if the thing lie in grant, though they be in one county. In practice this mode of conveyance is obsolete. Vide Cruise, Dig. tit. 32; Perk. ch. 4; 10 Vin. Ab. 125 ; Com. Dig. h. t.; Nels, Ab. h. t.; Co. Litt. 51 ; Hardin's R. 593; 1 N. H. Rep. 65; 3 Har. & John. 361; 1 Rolle's Ab. 813; 3 Wils. R. 489. Vide Horsman, 362; 3 Wood, 243, for forms.
EXCHEQUER, Eng. law, is an ancient court of record, set up by William the conqueror. It is called exchequer from the chequered cloth, resembling a chess board, which covers the table there; 3 Bl. Com. 43; it consists of two divisions; the receipt of the exchequer, which manages the royal revenue; and the court, or judicial part of it, which is again divided into a court of equity, and a court of common law. Ib. 44.
In this court all personal actions may be brought, and suits in equity commenced, the plaintiff in both (fictitiously for the most part,) alleging himself to be the king's debtor, in order to give the court jurisdiction of the cause. Wooddes. Lect. 69. But by stat. 2 Will., 4, c. 39, s. 1, a change has been made in this respect.
EXCHEQUER CHAMBER,— Eng. law, is a court erected by statute 31 Ed. 3, c. 12, to determine causes upon writs of error from the common law side of the court of exchequer. 3 Bl. .Com. 55. Another court of exchequer chamber was created by the stat. 27 El. c. 8, consisting of the justices of the common bench, and the barons of the exchequer. It has authority to examine by writ of error the proceedings of the king's bench, not so generally as that erected by the statute of Edw. 3, but in certain enumerated actions.
EXCISES. This word is used to signify an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale. 1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. § 950.
EXCLUSIVE, rights. The act of preventing one from participating [in a thing. An exclusive right or privilege, is one granted to a person to do a thing, and forbidding all others to do the same. A patentright or copy-right, are of this kind.
EXCLUSIVE, construction, when an act is to be done within a certain time, as ten days from a particular time, one day is to be included and the other excluded. Vide Hob. 139; Cowp. 714 ; Loffl. 276 ; Dougl. 463;
2 Mod. 280; Sav. 124; 3 Penna. Rep. 200; 1 Serg. <5z Rawle, 43; 3 B. & A. 581 ; Com. Dig. Temps, A;
3 East, 407; Com. Dig. Estates, G 8; 2 Chit. Pr. 69, 147.
EXCOMMUNICATION, eccles. law. Is an ecclesiastical censure or sentence pronounced by a spiritual judge against a Christian, by which he is excluded from the body of the church, and disabled to bring any action, or sue any person in the common law courts. Bac. Ab. h. t.; Co. Litt. 1*3.
EXCUSABLE HOMICIDE, crim. law, is the killing of a human being, when the party killing is not altogether free from blame, but the necessity which renders it excusable, may be said to be partly induced by his own act. 1 East, P. C. 220.
EXCUSE. A reason alleged for the doing or not doing a thing. This word presents two ideas differing essentially from each other. In one case an excuse may be made in order to show that the party accused is not guilty; in another, by showing that though guilty, he is less so, than he appears to be. Take, for example the case of a sheriff who has an execution against an individnal, and who in performance of his duty, arrests him; in an action by the defendant against the sheriff, the latter may prove the facts and this shall be a sufficient excuse for him: this is an excuse of the first kind, or two complete justification; the sheriff was guilty of no offence. But, suppose, secondly, that the sheriff has an execution against Paul, and by mistake, and without any malicious design, he arrests Peter instead of Paul, the face of his having the execution against Paul and the mistake being made, will not justify the sheriff, but it will extenuate and excuse his conduct, and this will be an excuse of the second kind.
Many persons are excused in the commission of acts, which but for the valid and lawful excuse would be crimes. These persons are generally excused because they had no intention of doing wrong, or so the law presumes, because they had no power of judging, and therefore had
no criminal will, (q. v.); or having power of judging they had no choice, and were compelled by necessity. Among the first class may be placed infants, under the age of discretion, lunatics, and married women, while acting in the presence of their husbands, when committing an offence, not malum in se, as treason or murder. 1 Hale's P. C. 44, 45; or in offences relating to the domestic concern or management of the house, as the keeping of a bawdy house, Hawk. b. 1, c. 1, s. 12. Among acts of the second kind may be classed, the beating or killing another in selfdefence; the destruction of property in order to prevent a more serious calamity, as the tearing down of a house on fire, to prevent its spreading to the neighbouring property, and the like. See Dalloz, Diet. h. t.
EXEAT, eccl. law. This is a Latin term which is used to express the written permission which a bishop gives to an ecclesiastic, his diocesan, to allow him to exercise the functions of his ministry in another diocese.
EXECUTION, contracts, signifies the accomplishment of a thing; as, the execution of a bond and warrant of attorney, which is the signing, sealing, and delivery of the same.
EXECUTION, crim. law. The putting a convict to death, agreeably to law, in pursuance of his sentence.
EXECUTION, practice. The act of carrying into effect the final judgment of a court, or other jurisdiction. The writ which authorises the officer so to carry into effect such judgment is also called an execution. A distinction has been made between an execution which is used to make the money due on a judgment out of the property of the defendant, and which is called a final execution; and one which tends to an end but is not absolutely final, as a capias ad satisfaciendum, by virtue of which the body of the defendant is taken, to the intent that the plaintiff shall be satisfied his debt, &c., the imprisonment not being absolute, but until he shall satisfy the same; this is called an execution quousque. 6 Co. 87.
Executions are either to recover specific things, or money.—1. Of the first class are the writs of habere facias seisinam, (q. v.) habere facias possessionem, (q. v.) retorno habendo, (q. v.) distringas, (q. v.).—2. Executions for the recovery of money are those which issue against the body of the defendant, as the capias ad satisfaciendum, (q. v.) an attachment; (q. v.) those which issue against his goods and chattels; namely, the fieri facias, (q. v.) the venditioni exponas; (q. v.) those which issue against his lands, the levari facias, (q. v.) the liberari facias, the eligit, (q. v.) Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h. t.; Com. Dig. h. U; the various Digests, h. t.; Tidd's Pr. Index, h. t.
EXECUTIONER. The name given to him who puts criminals to death, according to their sentence; a hangman. In the United States executions are so rare that there are no executioners by profession. It is the duty of the sheriff or marshal to perform this office, or to procure a deputy to do it for him.
EXECUTIVE, government, is that power in the government which causes the laws to be executed and obeyed: it is usually confided in the hands of the chief magistrate; the president of the United States is invested with this authority under the national government; and the governor of each state has the executive power in his hands. The officer in whom is vested the executive power is also called the executive. The constitution of the United States directs that "the executive power
shall be vested in a president of the United States of America." Art. 2, s. 1. Vide Story, Const. B. 3. c. 36.
EXECUTORS, trusts. The word executor taken in its largest sense, has several acceptations.—1. Executor dativus, who is one called an administrator to an intestate; Executor testamentarius, or one appointed to the office by the last will of a testator, and this is what is usually meant by the term. In the civil law the person who is appointed to perform the duties of an executor as to goods, is called haires testamentarius; the term executor, it is said, is a barbarism unknown to that law. 3 Atk. 304. An executor, as the term is at present accepted, is the person to whom the execution of a last will and testament of personal estate is, by the testator's appointment, confided. 2 Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will, on Ex. 112; Swinb. pt. 4, s. 2, pl. 2. Generally speaking all persons who are capable of making wills may be executors, and some others beside, as infants and married women. 2 Bl. Com. 503. An exe. cutor is absolute or qualified; his appointment is absolute when he is constituted certainly, immediately, and without restriction in regard to the testator's effects, or limitation in point of time. It may be qualified by limitation as to the time or place wherein, or the subject-matters whereon the office is to be exercised; or the creation of the office may be conditional. It may be qualified, 1st, by limitations in point of time, for the time may be limited when the person appointed shall begin, or when he shall cease to be executor; as, if a man be' appointed executor upon the marriage of testator's daughter. Swinb. pt. 4, s. 17, pi. 4.—2. The appointment may be limited in point of place; as, if one be appointed executor of all the
testator's goods in the state of Pennsylvania.—3. The power of the executor may be limited as to the subject-matter, upon which it is to be exercised; as when a testator appoints A-the executor of his goods and chattels in possession, B, of his choses in action. One may be appointed executor of one thing only, as of a particular claim or debt due by bond, and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus appoint separate executors of distinct parts of his property and may divide their authority, yet quoad creditors of the testator they are all executors, and as one executor, and may be sued as one executor. Cro. Car. 293.—4. The appointment may be conditional, and the condition may be either 'precedent or subsequent. Godolp. Orph. Leg. pt. 2, c. 2, s. 1; Off. Ex. 23.
An executor derives his interest in the estate of the deceased entirely from the will, and it vests in him from the moment of the testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10, 5 B. &' A. 745; 2 W. Bl. Rep. 692. His interest in the goods of the deceased is not that absolute, proper and ordinary interest, which every one has in his own proper goods. He is a mere trustee to apply the goods for such purposes as are sanctioned by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the testator and therefore may sue and recover all the claims he had at the time of his death; and may be sued for all debts due by him. 1 Will. Ex. 508 et seq.
The following are the principal duties of an executor': 1. Within a convenient time after the testator's death, to collect the goods of the deceased, provided he can do so peaceably; when he is resisted he must apply to the law for redress.
—2. To bury the deceased in a manner suitable to the estate he leaves behind him; and when there is just reason to believe he died insolvent, he is pot warranted in expending more in funeral expenses (q. v.) than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204; 14 Serg. & Rawlc, 64.—3. The executor should prove the will in the proper office.— 4. He should make an inventory (q. v.) of the goods of the intestate, which should be filed in the office. —5. He should ascertain the state of the debts and credits of the estate, and endeavour to collect all such claims with as little delay as possible consistently with the interest of the estate.—6. He should advertise for debts and credits, see forms of advertisements, 1 Chit. Pr. 521.—7. He should reduce the whole of the goods, not specifically bequeathed, into money with all due expedition. —8. Keep the money of the estate in bank, but not mixed with his own account, or he may be charged interest on it.—9. Be at all times ready to account and actually file an account within a year.—10. Pay the debts and legacies in the prder required by law.
Co-executors, however numerous, are considered in law as an individual person, and, consequently, the acts of any one of them, in respect of the administration of the assets, are deemed, generally, the acts of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint and entire authority over the whole property. Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig. Administration, B 12. On the death of one of several joint executors, the rights and power which he possessed survive to those who are still living. When there are several executors and all die, the power is in common transferred to the executor of the executor, so that