Gambar halaman

territory over which such court has jurisdiction.

3. The mode of doing business.— The foreman acts as president, and the jury usually appoint one of their number to perform the duties of secretary. No records are to be kept of the acts of the grand jury, except for their own use, because, as will be seen hereafter, their proceedings are to be secret. Being thus prepared to enter upon their duties, the grand jury are supplied with bills of indictment by the attorney-general against offenders. On these bills are endorsed the names of the witnesses by whose testimony they are supported. The witnesses are in attendance in another room, and must be called when wanted. Before they are examined as to their knowledge of the matters mentioned in the indictment, care must be taken that they have been sworn or affirmed. For the sake of convenience they are generally sworn or affirmed in open court before they are sent to be examined, and when so qualified, a mark to that effect is made opposite their names.

In order to save time, the best practice is to find a true bill, as soon as the jury are satisfied that the defendant ought to be put upon his trial. It is a waste of time to examine any other witness after they have arrived at that conclusion. Twelve at least must agree, in order to find a true bill; but it is not required that they should be unanimous. Unless that number consent, the bill must be ignored. When a defendant is to be put upon his trial, the foreman must write on the back of the indictment "a true bill," sign his name as foreman, and date the time of finding. On the contrary, where there is not sufficient evidence to authorise the finding of the bill, the jury return that they are ignorant whether the person accused committed the offence

charged in the bill, which is expressed by the foreman endorsing on the bill "ignoramus," signing his name as before, and dating the time.

4. of the evidence to be received. In order to ascertain the facts which the jury have not themselves witnessed, they must depend upon the statement of those who know them, and who will testify to them. When the witness, from his position and ability, has been in a condition to know the facts about which he testifies, he is deserving of implicit confidence; if, with such knowledge, he has no motive for telling a false or exaggerated story, has intelligence enough to tell what he knows, and gives a probable account of the transaction. If, on the other hand, from his position he could not know the facts, or if knowing them, he distorts them, he is undeserving of credit. The jury are the sole judges of the credit and confidence to which a witness is entitled.

Should any member of the jury be acquainted with any fact on which the grand jury are to act, he must, before he testifies, be sworn or affirmed, as any other witness, for the law requires this sanction in all cases.

As the jury are not competent to try the accused, but merely to investigate the case so far as to ascertain whether he ought to be put on his trial; they cannot hear evidence in his favour; their's is a mere preliminary inquiry; it is when he comes to be tried in court that he may defend himself by examjning witnesses in his favour and showing the facts of the case.

5. Of presentments. The jury are required to make true presentments of all such matters which may be given to them in charge, or which have otherwise come to their knowledge. A presentment, properly speaking, is the notice taken by the grand jury of any offence from their own knowledge, as of a nuisance, a libel, or the like. In these cases, the authors of the offence should be named, so that they may be indicted.

6. Of the secrecy to be observed by the grand jury. The oath which they have taken obliges them to keep secret, "the commonwealth's counsel, your fellows *nd your own." Although contrary to the general spirit of our institutions, which do not shun day-light, this secrecy is required by law for wise purposes. It extends to the votes given in any case, to the evidence delivered by witnesses, and the communications of the jurors to each other; the disclosure of these facts, unless under the sanction of law, would render the imprudent juror who should make them public, liable to punishment. Giving intelligence to a defendant that a bill has been found against him, to enable him to escape, is so obviously wrong, that no one can for a moment doubt its being criminal. The grand juror who should be guilty of this offence might, upon couviction, be fined and imprisoned. The duration of the secrecy appears not to be definitely settled, but it seems this injunction is to remain as long as the particular circumstances of each case require. In a case, for example, where a witness swears to a fact in open court, on the trial, directly in opposition to what he swore before the grand jury, there can be no doubt the injunction of secrecy, as far as regards this evidence, would be at an end, and the grand juror might be sworn to testify what this witness swore to in the grand jury's room, in order that the witness might be prosecuted for perjury. 2 Russ. Cr. 616; 4 Greenl. Rep. 439; but see contra, 2 Halst. R. 347.

Vide, generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; g Russ. Cr.

616; 2 Stark. Ev. 232, n. (1); 1 Hawk. 65, 506; 2 Hawk. ch. 25; 3 Story, Const. § 1778; 2 Swift's Dig. 370; 4 Bl. Com. 402; Archb. Cr. PI. 63.

GRANDFATHER, domestic relations, is the father of one's father or mother. The father's father is called the paternal grandfather; the mother's father is the maternal grandfather.

GRANDMOTHER, domestic relations, is the mother of one's father or mother. The father's mother is called the paternal grandmother ; the mother's mother is the maternal grandmother.

GRANT, conveyancing, concessio. Technically speaking, grants are applicable to the conveyance of incorporeal rights, though in the largest sense, the term comprehends every thing that is granted or passed from one to another, and is applied to every species of property. Grant is one of the usual words in a feoffment, and differs but little except in the subject-matter; for the operative words used in grants are dedi et concessi, "have given and granted." Incorporeal rights are said to lie in grant and not in livery, for existing only in idea, in contemplation of law, they Cannot be transferred by livery of possession; of course at common law, a conveyance in writing was necessary, hence they are said to be in grant, and pass by the delivery of the deed. To render the grant effectual, the common law required the consent of the tenant of the land out of which the rent, or other incorporeal interest proceeded; and this was called attornment, (q. v.) It arose from the intimate alliance between the lord and vassal existing under the feudal tenures. The tenant could not alien the feud without the consent of the lord, nor the lord part with his seignory without the consent of the tenant. The necessity

[ocr errors]

of attornment has been abolished in the United States. 4 Kent, Com. 479. He who makes the grant is called the grantor, and he to whom it is made, the grantee. Vide Com. Dig. h. t.; 14 Vin. Ab. 27; Bac. Ab. h. t.; 4 Kent, Com. 477; 2 Bl. Com. 317, 440; Perk. ch. 1; Touchs. c. 12; 8 Cowen's R. M.

By the word grant in a treaty is meant not only a formal grant, but any concession, warrant, order, or permission to survey, possess or settle, whether written or parole, express, or presumed from possession. Such a grant may be made by law, as well as by a patent pursuant to a law. 12 Pet. R. 410. See, generally, 9 A. & E. 532; 5 Mass. 472; 9 Pick. 80.

GRANT, BARGAIN, AND SELL. By the laws of the states of Pennsylvania, Delaware, Missouri, and Arkansas, it is declared that the words grant, bargain, and sell, shall amount to a covenant that the grantor was seised of an estate in fee, freed from encumbrances done or suffered by him, and for quiet enjoyment as against all his acts. These words do not amount to a general warranty, but merely to a covenant that the grantor has not done any acts, nor created any encumbrance, by which the estate may be defeated. 2 Binn. R. 95; 3 Penna. R. 313; vide 2 Caines's R. 188; 1 Murph. R. 343; lb. 348; Ark. Rev. Stat. ch. 31, s. 1; 11 S. & R. 109.

GRASS HEARTH, old Engl, law. The name of an ancient customary service of tenant's doing one day's work for their landlord.

GRATIFICATION. A reward given voluntarily for some service or benefit rendered, without being requested so to do, either expressly or by implication.

GRATIS, without reward or consideration. When a bailee undertakes to perform some act or work

Vol. I.—52. 1

gratis, he is answerable for his gross negligence, if any loss should be sustained in consequence of it; but a distinction exists between non-feasance and misfeasance; between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the execution of it; in the latter case he is responsible, while in the former he would not in general be bound to perform his contract. 4 Johns. R. 84; 5 T. R. 143; 2 Ld. Raym. 913.

GRATUITOUS CONTRACT,— civ. law, is one the object of which is for the benefit of the person with whom it is made, without any profit, received or promised, as a consideration for it; as, for example, a gift.

GRAVAMEN. The grievance complained of; the substantial cause of the action. See Greenl. Ev. § 66.

GRAVE, a place where a dead body is interred. The violation of the grave by taking up the dead body, or stealing the coffin or grave clothes is a misdemeanor at common law. 1 Russ. on Cr. 414. Sec Dead Body. In New York by statutory enactment it is provided that every person who shall open a grave or other place of interment, with intent, 1, to remove the dead body of any human being, for the purpose of selling the same, or for the purpose of dissection; or, 2, to steal the coffin, or any part thereof, or the vestments or other articles interred with any dead body, shall upon conviction be punished by imprisonment, in a state prison, not exceeding two years, or in a county gaol, not exceeding six months, or by fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment. Rev. Stat. part 4, tit. 5, art. 3, § 15.

GREAT LAW. The name of an act of the legislature of Pennsylvania passed at Chester immediately after the arrival of William Penn, December 7th, 1682. Serg. Land Laws of Penn. 24, 230.

GREE, obsolete, signified satisfaction; as, to make gree to the parties, is to agree with, or satisfy them for an offence done.

GREEN WAX, Engl. law. The name of the estreats of fines, issues, and amercements in the exchequer, delivered to the sheriff under the seal of that court, which is made with green wax.

GROS BOIS.or GROSSE BOIS. Such wood as by the common law or custom is reputed timber. 2 Inst. 642.

GROSS, absolute, entire, not depending on another. Vide Common.

GROSS ADVENTURE. By this term the French law writers signify a maritime loan, or bottomry, (q. v.) It is so called because the lender exhis money to the perils of the i; and contributes to the gross or

Smeral average. Poth. h. t.; Pard. r. Com. h. t,

GROSS WEIGHT. The total weight of goods or merchandise, with the chests, bags, and the like, from which are to be deducted tare and tret.

GROUND RENT, estatet. In Pennsylvania this term is used to signify a perpetual rent issuing out of some real estate. These rents are redeemable, where there is a covenant in the deed that before the expiration of a period therein named, it may be redeemed by the payment of a certain sum of money; or it is irredeemable, when there is no such agreement; and, in the latter case, it cannot be redeemed without the consent of both parties. See 1 Whart. R. 337; 4 Watts, R. 98; and Emphy teoris.

GROUNDAGE, mar. law, is the consideration paid for standing a ship in a port. Jacobs, Diet. h. t. Vide Demurrage.

GUAGER. An officer appointed

to examine all tuns, pipes, hogsheads, barrels and tierces of wine, oil, and other liquids, and to give them a mark of allowance, as containing lawful measure.

GUARANTEE, contracts. He to whom a guaranty is made. The guarantee is entitled to receive payment in the first place from the debtor, and, secondly, from the guarantor. He must be careful not to give time beyond that stipulated in original agreement, to the debtor, without the consent of the guarantor; the guarantee should, at the instance of the guarantor, bring an action against the principal for the recovery of the debt. 2 Johns. Ch. R. 554; 17 Johns. R. 384; 8 Serg. & Rawle, 116; 10 Serg. & Rawle, 33; 2 Bro. C. C. 579, 58a; 2 Ves. jr. 542. But the mere omission of the guarantee to sue the principal debtor will not in general discharge the guarantor. 8 Serg. & Rawle, 112; 3 Yeates, R. 157; 6 Binn. R. 292, 300.

GUARANTOR, contracts. He who makes a guaranty. The guarantor is bound to fulfil the engagement he has entered into, provided the principal debtor does not. He is bound only to the extent that the debtor is, and any payment made by the latter, or release of him by the creditor, will operate as a release of the guarantor, 3 Penna. R. 19; or even if the guarantee should give time to the debtor beyond that contained in the agreement, or substitute a new agreement, or do any other act by which the guarantor's situation would be worse, the obligation of the latter would be discharged. Smith on Mer. Law, 285.

GUARANTY, contracts, is a promise made upon a good consideration, to answer for the payment of some debt or the performance of some duty, in case of the failure of another person, who is, in the first instance, liable to such payment or performance. The English statute of frauds, 29 Car. II. c. 3, which, with modifications, has been adopted in most of the states, 3 Kent's Com. 86, requires that " upon any special promise to answer for the debt, default or miscarriage of another person, the agreement or some memorandum or note thereof, must be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." This clause of the statute is not in force in Pennsylvania. To render this contract valid, under the statute, its form must be in writing; it must be made upon a sufficient consideration; and it must be to fulfil the engagement of another.

1. The agreement must be in writing and signed by the party to be bound, or some one authorised by him. It should substantially contain the names of the party promising, and of the person on whose behalf the promise is made; the promise itself, and the consideration for it.

2. The word agreement in the statute includes the consideration for the promise, as well as the promise itself; if, therefore, the guaranty be for a subsisting debt, or engagement of another person, not only the engagement but the consideration for it, must appear in the writing. 5 East, R. 10. This has been the construction which has been given in England, and which has been followed in New York and South Carolina, though it has been rejected in several other states. 3 John. R. 210; 8 John. R. 29; 2 Nott & M'Cord, 372, note; 4 Greenl. R. 180, 387; 6 Conn. R. 81; 17 Mass. R. 122. The decisions have all turned upon the force of the word agreement; and where by statute the word promise has been introduced, by requiring the promise or agreement, to be in

writing, as in Virginia, the construction has not been so strict. 5 Cranch's R. 151, 2.

3. The guaranty must be to answer for the debt or default of another. The term debt implies, that the liability of the principal debtor had been previously incurred; but a default may arise upon an executory contract and a promise to pay for goods to be furnished to another, is a collateral promise to pay on the other's default, provided the credit was given, in the first instance, solely to the other. It is a general rule that when a promise is made by a third person, previous to the sale of goods, or other credit given, or other liability incurred, it comes within the statute, when it is conditional upon the default of another, who is solely liable in the first instance, otherwise not; the only inquiry to ascertain this, is, to whom was it agreed that the vendor or creditor should look in the first instance? Many nice distinctions have been made on this subject. 1st. When a party actually purchases goods himself, which are to be delivered to a third person for his sole use, and the latter was not to be responsible, this is not a case of guaranty, because the person to whom the goods were furnished never was liable. 2 T. R. 80.—2d. Where a person buys goods, or incurs any other liability, jointly with another, but for the use of that other, and this fact is known to the creditor, the guaranty must be in writing. 8 John. R. 89.—3d. A person may make himself liable, in the third place, by adding his credit to that of another, but conditionally only, in case of the other's default. This species of promise comes immediately within the meaning of the statute, and in the cases is sometimes termed a collateral promise.

Vide generally, Fell on Mercantile Guaranties; 3 Kent's Com. 86;

« SebelumnyaLanjutkan »