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Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8.
EXPULSION of a member of a body politic, corporate, or of a society, is the act of depriving such member of his right of membership therein, by the vote of such body or society, for some violation of his duties as such, or for some offence which renders him unworthy of longer remaining a member of the same. By the constitution of the United States, art. 1,js. 5, § 2, each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. In the case of John Smith, a senator from Ohio, who was expelled from the senate in 1807, the committee made a report which embraces the following points:
1. That the senate may expel a member for a high misdemeanor, such as a conspiracy to commit trea' son. Its authority is not confined to an act done in its presence.
2. That a previous conviction is not requisite, in order to authorise the senate to expel a member from their body, for a high offence against the United States.
3. That although a bill of indictment against a party for treason and misdemeanor has been abandoned, because a previous indictment against the principal party had terminated in an acqu ittal, owing to the inadmissibility of the evidence upon that indictment, yet the senate may examine the evidence for themselves, and if it be sufficient to satisfy their minds that the party is guilty of a high misdemeanor, it is a sufficient ground of expulsion.
4. That the 5th and 6th articles of the amendments of the constitution of the United States, containing the general rights and privileges of the citizen as to criminal prosecutions, refer only to prosecutions at law, and do not affect the jurisdiction of the senate as to expulsion.
5. That before a committee of the senate appointed to report an opinion, relative to the honour and privileges of the senate, and the facts respecting the conduct of the member implicated, such member is not entitled to be heard in his defence by counsel, to have compulsory process for witnesses, and to be confronted with his accusers. It is before the senate that the member charged is entitled to be heard.
6. In determining on expulsion, the senate is not bound by the forms of judicial proceedings, or the rules of judicial evidence; nor, it seems, is the same degree of proof essential which is required to convict of a crime. The power of expulsion must, in its nature, be discretionary, and its exercise of a more summary character. 1 Hall's Law Journ. 459, 465.
Corporations have the right of expulsion in certain cases, as such power is necessary to the good order and government of corporate bodies; and the cases in which this inherent power may be exercised are of three kinds: 1. When an offence is committed which has no immediate relation to a member's corporate duty, but is of so infamous a nature, as renders him unfit for the society of honest men; such are the offences of perjury, forgery and the like. But before an expulsion is made for a cause of this kind, it is necessary that there should be a previous conviction by a jury, according to the law of the land. 2. When the offence is against his duty as a corporator, in which case he may be expelled on trial and conviction before the corporation. 3. The third is of a mixed nature, against the member's duty as a corporator, and also indictable by the law of the land. 2 Binn. 448. See also 2 Burr. 536.
Members of what are called joint stock incorporated companies, or indeed members of any corporation owning property, cannot, without express authority in the charter, be expelled, and thus deprived of their interest in the general fund. Ang. Ac Ames on Corp. 233.
See, generally, Ang. & Ames on Corp. ch. 11; Willcock on Mun. Corp. 270; 11 Co. 99; 2 Bing. 293; 5 Day, 329; Sty. 478; 6 Conn. R. 532; 6 Serg. & Rawle, 469; 5 Binn. 486.
EXTENSION, comm. law. This term is applied among merchants to signify an agreement made between a debtor and his creditors, by which the latter, in order to enable the former, who is somewhat embarrassed in his circumstances, to retrieve his former standing, agree to wait for a I definite length of time after their several claims should become due and payable, before they will demand payment; as John Smith & Co. have received an extension. Among the French, a similar agreement is known by the name of atermoiement. Merl. Rep. mot Atermoiement.
EXTENT IN CHIEF, in English practice, is an execution issuing out of the exchequer at the suit of the crown. It is a mere fiscal writ. See West on Extents; 2 Tidd, Index.
EXTENT IN AID, in English practice, is an exchequer process, formerly much used, and now liable to be abused; it is regulated by 57 Geo. 3, c. 117.
EXTINCTION OF A THING. When a thing which is the subject of a contract has been destroyed, the contract is of course rescinded; as, for example, if Paul sell his horse Napoleon to Peter, and promises to deliver him to the buyer in ten days, and in the mean time the horse dies, the contract is rescinded, as it is impossible to deliver a thing which is not in esse; but, if Paul engage to deliver a horse to Peter in ten days, and, for the purpose of fulfilling his
contract, he buys a horse, and the horse dies, this is no cause for rescinding the contract, because he can buy another and complete it afterwards; when the subject of the contract is an individual, and not generally one of a species, the contract may be rescinded; when it is one of a species which has been destroyed, then it may still be completed, and it will be enforced. Lec. El. Dr. Rom. § 1009.
EXTINGUISHMENT, in contracts, the destruction of a right or contract, the act by which a contract is made void. The extinction of a right; as, when a person becomes owner, either by descent or purchase of an estate subject to the payment of a rent, the latter is extinguished. Vide Co. Litt. 147 b; 1 Roll. Ab. 933; 7 Vin. Ab. 367; 11 Vin. Ab. 461; 18 Vin. Ab. 493 W 515; 2 Nels. Ab. 818; 14 Serg. & Rawle, 209; Bac. Ab. h. t.; 5 Whart. Re 541. Vide Discharge of a debt.
EXTORTION, crimes, in a large sense signifies any oppression, under colour of right: but in a more strict sense it means the unlawful taking by any officer, by colour of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. 4 Bl. Com. 141; 1 Hawk. P. C. c. 68, s. 1 ; 1 Russ. Cr. "144. To constitute extortion, there must be the receipt of money or something of value; the taking a promissory note, which is void, is not sufficient to make an extortion. 2 Mass. R. 523; see Bac. Ab. h. t.; Co. Litt. 168. It differs from exaction, (q. v.) See 6 Cowen, R. 661; 1 Caines, R. 130.
EXTRA-DOTAL PROPERTY. In Louisiana this term is used to designate that property which forms no part of the dowry of a woman, and which is also called paraphernal property. Civ. Co. Lo. art. 2315. Vide Dotal property.
EXTRACT is a part of a writing. This is not evidence, because the whole of the writing may explain the part extracted so as to give it a different sense.
EXTRADITION, civil law, is the act of sending by authority of law, a person accused of a crime to a foreign jurisdiction where it was committed, in order that he may be tried there. Merl. Rep. h. t. By the constitution and laws of the United States fugitives from justice, (q. v.) may be demanded by the executive of one state where the crime has been committed from that of another where the accused is. Const. United States, art. 4, s. 2, 2; 3 Story, Com. Const. U. S. § 1801 et seq. The government of the United States is bound by some treaty stipulations to surrender criminals who take refuge within the country, but independently of such conventions, it is questionable whether criminals can be surrendered. 1 Kent, Com. M ; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 22 Amer. Jun 330; Story's Confl. of Laws, p. 520; Wheat. Intern. Law. 111.
EXTRAJUDICIAL, that which does not belong to the judge or his jurisdiction, notwithstanding which he takes cognizance of it. Extrajudicial judgments and acts are absolutely void. Vide Coram nonjudice, and Merl. Repert. mots Exces de Pouvoir.
EXTRAVAGANTES, canon law. This is I he name given to the constitutions of the popes posterior to the Clementines; they are thus called quasi vagantes extra corpus juris,
to express that they were out of the canonical law, which at first contained only the decrees of Gratian; afterwards the decretals of Gregory IX., the sexte of Boniface VIII., the Clementines, and at last the extravagantes were added to it. There are the extravagantes of John XXII., and the common extravagantes. The first contain twenty epistle's, decretals or constitutions of that pope, divided under fifteen titles, without any subdivision into books. The others are epistles, decretals or constitutions of the popes who occupied the holy see either before or after John XXII.; they are divided into books like the decretals.
EXTREMIS. When a person is sick beyond the hope of recovery, and he afterwards dies, he is said to be in extremis. A will made in this state is liable to be impeached; but if made without undue influence by a person of sound mind, it is valid. The declarations of persons in extremis, when made with a full consciousness of approaching death, are admissible in evidence when the death of the person making them is the subject of the charge, and the circumstances of the death the subject of such declarations. 2 B. & C. 605; S. C. 9 Engl. C. L. Rep. 196 ; and see 15 John. 286; 1 John. Rep. 159; 2 John. R. 31; 7 John. 95; 2 Car. Law Repos. 102; 5 Whart. R. 396, 7.
EY. A watery place; water. Co. Litt. 6.
EYOTT, a small island arising in a river. See Island.
EYRE. Vide Justiciarii Jtenerantes.
F, punishment, in the English law, formerly felons were branded and marked with a hot iron, with
this letter, on being admitted to the benefit of clergy.
FACT, is an action; a thing
done. It is either simple or compound. A fact is simple when it expresses a purely material act unconnected with any moral qualification; for example, to say Peter went in his house, kissed his children, took a book and went out, is to express four simple facts. A compound fact contains the materiality of the act, and the qualification which that act has in its connexion with morals and with the law. To say, then, that Peter has stolen a horse is to express a compound fact; for the fact of the stealing expresses at the same time, the material fact of taking the horse, and of taking him with the guilty intention of depriving the owner of his property and appropriating it to his own use; which is a violation of the law of property. Fact is also put in opposition to law; in every case which has to be tried there are facts to be established, and the law which bears on those facts. Facts are also to be considered as material or immaterial. Material facts are those which are essential to the right of action or defence, and therefore of the substance of the one or the other—these must always be proved; or immaterial, which are those not essential to the cause of action—these need not be proved. Facts are generally determined by a jury; but there are many facts, which not being the principal matters in issue, may be decided by the court; such, for example, whether a subpoena has or has not been served; whether a party has or has not been summoned, &c. As to pleading material facts, see Gould, Pl. c. 3, s. 28. Vide Eng. Ecc. R. 401, 2, and the article Circumttancen.
FACTO, in fact, in contradistinction to the thing being in law: it is applied to any thing actually done. Vide Ex post facto.
FACTOR, contracts, is an agent
employed to sell goods or merchandise consigned or delivered to him, by, or for his principal, for a compensation, commonly called factorage or commission. Paley on Ag. 13; 1 Liverm. on Ag. 68 ; Story on Ag. § 33; Com. Dig. Merchant, B; Mai. Lex Merc. 81; Beawes, Lex Merc. 44; 3 Chit. Com. Law, 193; 2 Kent, Com. 622, note (d), 3d ed.; 1 Bell's Com. 385, § 408, 409; 2 B. & Aid. 143. He is also called a commission merchant, or consignee. When he resides in the same state or country with his principal, he is called a home factor; and a foreign factor when he resides in a different state or country, 3 Chit. Com. Law, 193; 1 T. R. 112; 4 M. & S. 576; 1 Bell's Com. 289, § 313. When the agent accompanies the ship taking a cargo abroad, and it is consigned to him for sale, and he is to purchase a return cargo out of the proceeds, such agent is properly called a factor; he is, however, usually known by the name of a supercargo. Beawes, Lex Merc. 44, 47; Liverm. on Ag. 69, 70; 1 Domat, b. 1, t. 16, § 3, art. 2. A factor differs from a broker, in some important particulars, namely; he may buy and sell for his principal in his own name, as well as in the name of his principal; on the contrary, a broker must always buy and sell in the name of his principal. 3 Chit. Com. Law, 193, 210, 541; 2 B. & Aid. 143, 148; 3 Kent, Com. 622, note (d), 3d ed. Again a factor is entrusted with the possession, management, disposal and control of the goods to be bought and sold, and has a special property and a lien on them; the broker, on the contrary, has usually no such possession, management, control or disposal of the goods, nor any such special property nor lien. Paley on Ag. 13, (Loyd's ed.); 1 Bell's Com. 385. Before proceeding further, it will be proper to consider the difference which exists in the liability of a home or domestic factor and a foreign factor. By the usages of trade, or intendment of law, when domestic factors are employed in the ordinary business of buying and selling goods, it is presumed that a reciprocal credit between the principal and the agent and third persons has been given. When a purchase has been made by such a factor, he, as well as his principal, is deemed liable for the debt; and in case of a sale, the buyer is responsible both to the factor and principal for the purchase money; but this presumption may be rebutted by proof of exclusive credit. Story, Ag. § § 267,291, 293; Paley, Ag. 243, 371; 9 B. & C. 78; 15 East, R. 62. Foreign factors, or those acting for principals residing in a foreign country, are held personally liable upon all contracts made by them for their employers, whether they describe themselves in the contract as agents or not. In such cases the presumption is, that the credit is given exclusively to the factor. But this presumption may be rebutted by proof of a contrary agreement. Story, Ag. § 268; Paley, Ag. 248, 373; Bull. N. P. 130; Smith, Merc. Law, 66; 2 Liverm. Ag. 249; 1 B. & P. 368; 15 East, R. 62; 9 B. & C. 78. A factor is liable to duties, which will be first considered; and, afterwards a statement of his rights will be made.
1. His duties. He is required to use a reasonable exercise of skill and ordinary diligence in his vocation; in general, he has a right to sell the goods, but he cannot pawn them. He is bound to obey his instructions, but when he has none he may and ought to act according to the general usages of trade; sell for cash, when that is usual, or give credit on sales, when that is customary. He is bound to render a just account to his principal, and to pay him the moneys he may receive for him.
2. His rights. He has the right
to sell the goods in his own name, and is, for many, if not for all purposes, between himself and third persons, to be considered as the owner of the goods. He may, therefore, recover the price of goods sold by him, in his own name, and consequently he may receive payment and give receipts, and discharge the debtor, unless, indeed, notice has been given by the principal to the debtor not to pay. He has a lien on the goods for advances made by him and for his commissions.
Mr. Bell, in his Commentaries, vol. 1, page 265, (5th ed.) lays down the following rules with regard to the rights of the principal, in those cases in which the goods in the factor's hands have been changed in the course of his transactions.
1. When the factor has sold the goods of his principal, and failed before the price of the goods has been paid, the principal is the creditor, and preferable to the creditors of the factor. Cook's B. L. 4th ed. p. 400.
2. When bills have been taken for the price, and are still in the factor's hands, undiscounted at his failure; or where goods have been taken in return for those sold; the principal is entitled to them, as forming no part of the divisible fund. Willes, R. 400.
3. When the price has been paid in money, coin, bank-notes, &c, it remains the property of the principal, if kept distinct as his. 5 T. R. 277; 2 Burr. 1369; 5 Ves. jr. 169; 2 Mont. B. L. 233, notes.
4. When a bill received for goods, or placed with the factor, has been discounted, or when money coming into his hands has been paid away, the endorsee of the bill, or the person receiving the money, will be free from all claim at the instance of the principal. Vide 1 B. & P. 539, 648.
5. When the factor sinks the name