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committed within the body of a county would, by the laws of the United States be punishable with death, every such offender, being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought. See 4 Dall. R. 426 ; 3 Wheat. R. 336 ; 5 Wheat. 184, 412; 3 W. C. C. R. 515 /'i, Serg. Const. Law, 334; 13 Am. Jur. 279.
HIGH WATER MARK, is that part of the shore of the sea to which the waves reach on ordinary occasions, when the tide is at its highest. 6 Mass. R. 435; 1 Pick. R. 180; 1 Halst. R. 1; 1 Russ. on Cr. 107; 2 East, P. C. 803. Vide Sea shore; Tide..
HIGHEST BIDDER, contracts, he who, at an auction, offers the greatest price for the property sold. The highest bidder is entitled to have the article sold at his bid, provided there has been no unfairness on his part. A distinction has been made between the highest and the best bidder. In judicial sales, where the highest bidder is unable to pay, it is said the sheriff may offer the property to the next highest, who will pay, and he is considered the best bidder. 1 Dall. R. 419.
HIGHWAY. This is said to be a generic name for all kinds of public ways, 6 Mod. R. 255. Highways are universally laid out by public authority, and repaired at the public expense, by direction of law. The public have an easement over it highway, of which the owner of the land cannot deprive them; but the soil and freehold still remain in the owner, and he may use the land above and below consistently with the easement. He may, therefore, work a mine, sink a drain or water-course,
under the highway, if the easement remains unimpaired. Vide Road; Street; Way; and 4 Vin. Ab. 502; Bac. Ab. h. t.; Com. Dig. Chemin; Dane's Ab. Index, h. t.; Egremont on Highways; Wellbeloved on Highways; Woolrych on Ways; 1 N.
H. Rep. 16; 1 Conn. R'. 103; 1 Pick. R. 122; 1 M'Cord's R. 67; 2 Mass. R. 127; 1 Pick. R. 122; 3 Rawle, R. 495; 15 John. R.483; 16 Mass. R. 33; 1 Shepl. R. 250; 4 Day, R. 330; 2 Bail. R. 271.
HIGHWAYMAN, a robber on the highway.
HIGLER, Eng. law, a person who carries from door to door, and sells by retail, small articles of provisions, and the like.
HIRE, contracts, is a bailment, where a compensation is to be given for the use of a thing or for labour or services about it. 2 Kent's Com. 456; 1 Bell's Com. 451; Story on Bailm. § 369; See Pothier, Contrat de Louage, ch. 1, n. 1; Domat, B.
I, tit. 4, § 1, n. I ; Code Civ. art. 1709, 1710; Civ. Code of Lo. art. 2644; 2645. See this Diet. Hirer; Letter.
The contract of letting and hiring is usually divided into two kinds; first, Location or Locatio conductio rei, the bailment of a thing to be used bjr the hirer for a compensation to be paid by him. Secondly, Locatio operis, or the hire of the labour and services of the hirer for a compensation to be paid by the letter. And this last kind is again subdivided into two classes; 1. Locatio operit facienda, or the hire of labour and work to be done, or care and attention to be bestowed on the goods let by the hirer for a compensation; or, 2, Locatio operis mercium vehendarum, or the hire and carriage of goods from one place to another, for a compensation. Jones's Bailm. 85, 86, 90, 103, 118; 2 Kent's Com. 456; Code Civ. art, 1709,1710,1711.
This contract arises from the principles of natural law; it is voluntary, and founded in consent; it involves mutual and reciprocal obligations; and it is for mutual benefit. In some respects it bears a strong resemblance to the contract of sale; the principal difference between them being, that in cases of sale, the owner parts with the whole proprietary interest in the thing, and in cases of hire, the owner parts with it only for a temporary use and purpose. In a sale, the thing itself is the object of the contract; in hiring, the use of the thing is its object. Vinnius, lib. 3, tit. 25, in pr.; Pothier, Louage, n. 2, 3, 4; Jones's Bailm. 86; Story on Bailm. § 371.
Three things are of the essence of the contract; 1. That there should be a thing to be let; 2, a price for the hire; and, 3, a contract possessing a legal obligation. Pothier, Louage, n. 6. Civ. Code of Lo. art. 2640.
There is a species of contract in which, though no price in money be paid, and which strictly speaking is not the contract of hiring, yet partakes of its nature. According to Pothier it is an agreement which must he classed with contracts do vt des. It frequently takes place among poor people in the country. He gives the following example: two poor neighbours, each owning a horse, and desirous to plough their respective fields, to do which two horses are required, one agrees that he will let the other have his horse for a particular time, on condition that the latter will let the former have his horse for the same length of time. Du Louage, n. 458. This contract is not a hiring strictly speaking, for want of a price; nor is it a loan for use, because there is to be a recompense. It has been supposed to be a partnership; but it is different from that contract, because there is no community of pro
fits. This contract is in general ruled by the same principles which govern the contract of hiring. 19 Toull. n. 247.
Hire also means the price given for the use of the thing hired; as, the hirer is bound to pay the hire or recompense.
Vide Domat, liv. 1, tit. 4; Poth. Contrat de Louage; Toull. tomes 18, 19,20; Merl. Repert. mot Louage; Dalloz, Dict. mot Louage; Argou, Inst. liv. 3, c. 27.
HIRER, contracts, called in the civil law, conductor, and in the French law, condueteur, procureur, locataire, is he who takes a thing from another, to use it, and pays a compensation therefor. Wood's Inst. B. 3, c. 5, p. 236; Pothier, Louage, n. 1; Domat, B. 1, tit. 4, §
1, n. 2; Jones's Bailm. 70; see this Diet. Letter.
There is, on the part of the hirer, an implied obligation, not only to use the thing with due care and moderation, but not to apply it to any other use than that for which it is hired; for example, if a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden. Pothier, Louage, n. 189; Domat, B. 1, tit. 4, § 2, art.
2, 3; Jones's Bailm. 68, 88; 2 Sauna". 47 g, and note; 1 Bell's Com. 454; 1 Cowen's R. 322; 1 Meigs, R. 459. If a carriage and horses are hired to go from Philadelphia to New York, the hirer has no right to go with them on a journey to Boston. Jones's Bailm. 68; 2 Ld. Raym. 915. So if they are hired for a week, he has no right to use them for a month. Jones's Bailm. 68; 2 Ld. Raym. 915; 5 Mass, 104. And if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer pe. riod, the hirer is not only responsible for all damages, but if a loss occurs, although by inevitable casualty, he will be responsible therefor. 1 Rep. Const. C. So. Car. 121; Jones's Bailm. 68, 121; 2 Ld. Raym. 909, 917. In short, such a mis-user is deemed a conversion of the property, for which the hirer is deemed responsible. Bac. Abr. Bailment, C; Id. Trover, C, D, E; 2 Saund. 47 g; 2 Bulst. 306, 309. The above rules apply to cases where the hirer has trie possession as well as the use of the thing hired; when the owner or his agents retain the possession, the hirer is not in general responsible for any injury done to it. For example, when the letter of a carriage and a pair of horses sent his driver with them, and an injury occurred, the hirer was held not to be responsible. 9 Watts, R. 556, 562; 5 Esp. R. 263; Poth. Louage, n. 196; Jones, Bailm. 88; Story, Bailm. § 403.
Another implied obligation of the hirer is to restore the thing hired, when the bailment is determined. 4 T. R. 260. And 3 Campb. 5, n; 13 Johns. R. 211.
The time, the place, and the mode of restitution of the thing hired, are governed by the circumstances of each case, and depend upon rules of presumption of the intention of the parties, like those in other cases of bailment. Story on Bailm. § 415.
There is also an implied obligation on the part of the hirer, to pay the hire or recompense. Pothier, Louage, n. 134; Domat, B. 2, tit. 2, § 2, n, 11 ; Code Civ. art. 1728.
See generally, Employer; Hire; Letter.
HIS EXCELLENCY, a title given by the constitution of Massachusetts to the governor of that commonwealth. Const. part 2, c. 2, s. 1, art. 1.
HIS HONOUR. A title given by the constitution of Massachusetts to the lieutenant governor of that
commonwealth. Const. part, 2, c. 2, s. 2, art. 1.
HISTORY, evidence. The recital of facts written and given out for true. Facts stated in ancient histories may be read in evidence, on the ground of their notoriety. Skin. R. 14; 1 Ventr. R. 149. But these facts must be of a public nature, and the general usages and customs of the country. Bull. N. P. 248; 7 Pet. R. 554; 1 Phil. & Am. Ev. 606; 30 Howell's St. Tr. 492. Histories are not admissible in relation to matters not of a public nature, such as the custom of a particular town, a descent, the boundaries of a county, and the like. 1 Salk. 2^1; S. C. Skin. 623; T. Jones, 164; 6 C. & P. 586, note. See 9 Ves. 347; 10 Ves. 354; 3 John. 385; 1 Binn. 399; and Notoriety. ,
HOGSHEAD. A measure of wine, oil, and the like, containing half a pipe, the fourth part of a tun, or sixty-three gallons.
TO HOLD. Vide Habendum; Tenendum.
HOLDER. The holder of a bill of exchange is the person who is legally in the possession of it, either by endorsement or delivery, or both, and entitled to receive payment either from the drawee or acceptor, and is considered as an assignee. 4 Dall. 53. Vide Bill of Exchange.
HOLDING OVER, the act of keeping possession by the tenant, without the consent of the landlord, of premises which the latter, or those under whom he claims, had leased to the former, after the term has expired. When a proper notice has been given, this injury is remedied by ejectment, or, under local regulations, by summary proceedings. Vide 2 Yeates's R. 523; 2 Serg. & Rawle, 486 ; 5 Binn. 228; 8 Serg. & Rawle, 459; 1 Binn. 334, n.; 5 Serg. & Rawle, 174; 2 Serg. <fc Rawle, *50; 4 Rawle, 123.
HOLOGRAPH. Vide Olograph.
HOMAGE, Engl, law, is an acknowledgment made by the vassal in the presence of his lord, that he is his man, that is, his subject or vassal. The form in law French was, Jeo deceigne vostre home.
HOMESTALL. The mansionhouse.
HOMESTEAD. The place of the house or home place. Homestead farm does not necessarily include all the parcels of land owned by the grantor though lying and occupied together. This depends upon the intention of the parties when the term is mentioned in a deed, and is to be gathered from the context. 7 N. H. Rep. 241; 15 John. R. 471. See Manor; Mansion.
HOMICIDE, crim. Ian , is, according to Blackstone, the killing of any human creature, 4 Com. 177. This is the most extensive sense of this word, in which the intention is not considered. But in a more limited sense, it is always understood that the killing is by human agency, and Hawkins defines it to be the killing of a man by a man. 1 Hawk. c. 8, s. 2. See Dalloz, Diet. h. t. Homicide may perhaps be described to be the destruction of the life of one human being, either by himself, or by the act, procurement or culpable omission of another. When the death has been intentionally caused by the deceased himself, the offence is called felo de se; when it is caused by another, it is justifiable, excusable, or felonious.
The person killed must have been born, the killing before birth is called foeticide, (q. v.) The destruction of human life at any period after birth, is homicide, however near it may be extinction, from any other cause.
1. Justifiable homicide is such as arises, 1st, from unavoidable necessity, without any will, intention or
desire, and without any inadvertence in the party killing, and therefore without blame; as, for instance, the execution, according to law, of a criminal who has been lawfully sentenced to be hanged: or, 2dly, it is committed for the advancement of public justice; as, if an officer, in the lawful execution of his office, either in a civil or criminal case, should kill a person who assaults and resists him. 4 Bl. Com. 178—180.
2. Excusable homicide is of two kinds, 1st, homicide per infortunium, (q. v.); or, 2d, se defendendo, or self defence, (q. v.) 4 Bl. Com. 182, 3.
3. Felonious homicide, which includes, 1, self murder, or suicide; 2, manslaughter, (q. v.); and, 3, murder, (q. v.)
Vide, generally, 3 Inst. 47 to 57; 1 Hale, P. C. 411 to 502; 1 Hawk, c. 8; Fost. 255 to 337; 1 East, P. C. 214 to 391; Com. Dig. Justices, L, M; Bac. Ab. Murder and Homicide; Burn's Just. h. t.; Williams's Just. h. t.; 2 Chit. Cr. Law, ch. 9; Cro. C. C. 285 to 300; 4 Bl. Com. 176 to 204; 1 Russ. Cr. 421 to 553; 2 Swift's Dig. 267 to 292.
HOMINE CAPTO IN WITHERNAM, Engl. law. The name of a writ directed to the sheriff and commanding him to take one who has taken any bondsman, and conveyed him out of the country, so that he cannot be replevied. Vide Withernam.
HOMINE ELIGENDO, Engl, law. The name of a writ directed to a corporation, requiring the members to make choice of a new man, to keep the one part of a seal appointed for statutes merchant. Techn. Diet, h. t.
HOMINE REPLEGIANDO,— vide Writ de homine replegiando.
HOMO. This Latin word, in its most enlarged sense, includes both man and woman. 2 Inst. 45. Vide Man.
HOMOLOGATION, civil law. Approbation, confirmation by a court of justice, a judgment which orders the execution of some act; as the approbation of an award, and ordering execution on the same. Merl. Repert. h. t.; Civil Code of Louis. Index, h. t.; Dig. 4, 8; 7 Toull. n. 254.
HONORARIUM, a recompense for services rendered. It is usually applied only to the recompense given to persons whose business is connected with science; as the fee paid to counsel. It is said this honorarium is purely voluntary, and differs from a fee, which may be recovered by action. 5 Serg. & Rawle, 412; 3 Bl. Com. 28; 1 Chit. Rep. 38; 2 Atk. 332; but see 2 Penna. R. 75; 4 Watts's R. 334. Vide Dalloz, Diet. h. t., and Salary.
HONOUR. It is the esteem we have of ourselves, and the consciousness that we deserve the esteem of others, because we have not departed from the principles of virtue, in which we are resolved to continue. This is true honour. False honour is the standard of respect to which we claim to be entitled, without considering whether or not we are deserving it. It is the latter which causes duels. A duel is not justified by any insult to our honour. Honour is also employed to signify integrity in a judge, courage in a soldier, and chastity in a woman. To deprive a woman of her honour is in some cases punished as a public wrong, and by an action for the recovery of damages done to the relative rights of a husband or a father. Vide Criminal Conversation. In England, when a peer of parliament is sitting judicially in that body, his pledge of honour is considered equal to another's oath; and in courts of equity peers, peeresses and lords of parliament answer on their honour only. But the courts of common law know no such dis
tinction. It is needless to add that as we are not encumbered by a nobility, there is no such distinction in the United States, all persons being equal in the eyes of the law.
TO HONOUR, contr., is to accept a bill of exchange; to pay a bill accepted, or a promissory note, on the dav it becomes due. 7 Taunt. 164; 1 T. R. 172. Vide To Dishonour.
HORS DE SON FEE, pleading in the ancient English law. These words signify out of his fee. A plea which was pleaded, when a person who pretended to be the lord, brought an action for rent services, as issuing out of his land: because if the defendant could prove the land was out of his fee, the action failed. Vide 9 Rep. 30; 2 Mod. 104; 1 Danvers's Ab. fi55; Vin. Ab. h. t.
HORSE, a stallion, the male of the mare; until a horse has attained the age of four years, he is called a colt, (q. v.) Russ. & Ry. 416. This word is sometimes used as a generic name for all animals of the horse kind. Vide Colt; Gender, and Yelv. 67, a.
HOSTAGE. A person delivered in the possession of a public enemy in time of war as a security for the performance of a contract entered into between the belligerents. Hostages are frequently given as a security for the payment of a ransom bill, and if they should die, their death would not discharge the contract. 3 Burr. 1734; 1 Kent, Com. 106 ; Dane's Ab, Index, h. t.
HOSTELLAGIUM, Engl. law. A right reserved to the lords to be lodged and entertained in the houses of their tenants.
HOSTILITY. A state of open enmity, open war. Hostility, as it regards individuals, may be permanent or temporary; it is permanent when the individual is a citizen or subject of the government at war, and temporary when he happens to