estate, or interest therein, by conveyance, executed and acknowledged and certified in the same manner as a feme sole, or other person. Whenever all the subscribing witnesses are dead, out of the jurisdiction, or cannot be had, the signature of the grantor or subscribing witnesses may be proved by proving handwriting. VERMONT.

Acknowledgment may be made "before a justice, town clerk, notary public, master in chancery, county clerk, judge or register of probate." Rev. Laws, see 1927. Acknowledgments or proofs without the state are valid, "if certified agreeably to the laws of the State, province or kingdom in which such acknowledgment or proof is taken," *** may be acknowledged or proof taken "before a justice of the peace, magistrate, or notary public within the United States, or in a foreign country, or before a commissioner appointed for that purpose by the governor of this State, or before a minister, chargé d'affaires, consul or vice-consul of the United States, in a foreign country." Rev. Laws, see 1946. The separate acknowledgment or private examination of the wife is not required.

Before me,

(Signature and title of officer.)

Proof by Subscribing Witness. In certain cases where deed is not acknowledged, proof of execution may be made by the subscribing witnesses before any judge of the supreme or county court in this State; and if the witnesses are dead or out of the State, the deed may be proved before such court by proving the handwriting of the grantor, and of any subscribing witness, or adducing other evidence to the satisfaction of the court. If a grantor refuses to acknowledge his deed, any person claiming under him may cite him before a justice of the peace to hear the testimony of the subscribing witnesses, and if the deed is proved to the satisfaction of the justice by one or more of the subscribing witnesses, he shall so certify, which shall be equivalent to a due acknowledgment by the grantor. These proceedings must be had in this State. VIRGINIA.

The court or clerk of any county or corporation in which real estate lies, or personalty generally may be at the time being, shall admit any deed or contract respecting it to record as to any person whose name is signed thereto, upon a certificate of his acknowledgment before a justice, a commissioner in chancery, or notary public within the United States, written on or annexed to it, to the following effect:8

Acknowledgment-General Form. State of, county of -, SS.

I, J. P., a justice of the peace (or notary public, or commissioner in chancery of the court of) of the county (or corporation) aforesaid, in the State for Territory, or District) of -, do certify that A. B. (or A. B. and W. B., etc.) whose name (or names) is (or are) signed to the writing above (or hereto annexed), bearing date on the -- day of, A. D. has (or have) acknowledged the same before me in my county (or corporation) aforesaid. Given under my hand this A. D.. (Signature and title of officer.) Or upon a certificate of acknowledgment of such person, before any commissioner appointed by the gov ernor, within the United States, so written or annexed, to the following effect:

State of, county of , SS.

day of

I, C. R., a commissioner appointea by the governor of the State of Virginia for the said State (or Territory, or District) of, certify that A. B. (or A. B. and W. B.), whose name (or names) is (or are) signed to the writing above (or hereto annexed), bearing date on the day of, A. D. has (or have) acknowledged the same before me in my State (or Territory, or District) aforesaid. Given under my hand this - day of A. D.. (Signature and title of officer.)

Or upon a certificate of the clerk of any county or f-See General Statutes, g-See Code, ch. 111. h-Code, ch. 111, 2503.

corporation court in this State, or his deputy, or of the clerk of any court out of this State and within the United States, that the said writing was acknowledged by such person, or proved as to him by two witnesses before such clerk,, or before the court of which he is clerk; or upon a certificate under the official seal of any minister plenipotentiary, chargé d'affaires, consulgeneral, consul, vice-consul, or commercial agent, appointed by the government of the United States to any foreign country, or of the proper officer of any court of such country, or of the mayor or other chief magistrate of any city, town, or corporation therein, that the said writing was acknowledged by such person, or proved as to him by two witnesses, before any person having such appointment, or before such court, mayor, or chief magistrate.g

Admission to record of writing from husband and wife; effect on right of wife.

When a husband and his wife have signed a writing, purporting or contracting to convey any estate, real or personal, or any writing authorizing another to convey, or contract to convey, any such estate, such writing may be admitted to record as to each of them, according to the provisions above, and when it shall have been so admitted to record as to the husband as well as the wife, or if it be a writing executed under a power of attorney, when such writing, as well as such power of attorney, shall have been so admitted to record, it shall operate to convey from the wife her right of dower in the real estate embraced therein, and pass from her and her representatives all right, title, and interest of every nature which, at the date of such writing, she may have in any estate conveyed or embraced therein, as effectually as if she were, at the date, an unmarried woman. Such writing shall not operate any further upon the wife or her representatives by means of any covenant or warranty contained therein which is not made with reference to her separate estate as a source of credit, or which, if it relate to her said right of dower or to any estate or interest conveyed other than her own, is not made with reference to her separate estate as a source of credit.

Conveyance by married woman of her separate estate; how signed ; when and where admitted to record.

Nothing contained in the preceding section shall be so construed as to impair or affect any right or power a married woman has, by her sole act, to convey or transfer any estate real or personal which is her separate estate; and any writing, which is to be or may be recorded, signed by a married woman, though not signed by her husband, conveying or transferring any estate, real or personal, which is her separate estate as aforesaid, may be admitted to record as to her, in the same manner as if she were unmarried.

Or, if the wife be without the United States, she may appear before any minister plenipotentiary, chargé d'affaires, consul-general, consul, vice-consul, or commercial agent, appointed by the government of the United States to any foreign country, or before any court of such country, or the mayor or other chief magistrate of any city, town, or corporation therein, who shall examine her, and make such explanation as is above required where the wife is in the United States, and if then she make such acknowledgment as is so required, the person having such appointment, or such mayor or chief magistrate, or the proper officer of such court, shall give a certificate, under his official seal, of the said examination, explanation, and declaration, to the effect required where the wife is within the United States, and upon or annexed to such writing in like manner.h

WASHINGTON.

Dower and courtesy are abolished. Private seals of grantors abolished. Acknowledgments taken beyond the United States may be by ministers, secretaries of legation, consuls and vice-consuls appointed by the United States government, or by the courts, mayors

State of, county of, ss.

Acknowledgments of deeds and mortgages may be taken by a judge of the supreme court, judge of the superior court, justice of the peace, county auditor, or his deputy, a clerk of the superior or supreme court, or his deputy, or a notary public.

"

Acknowledgment-Husband and Wife. State of, county of, ss. On this day of - A. D. before me (name and title of officer), personally appeared A. B. and W. B., his wife, personally known to me to be the identical persons described in, and who executed the foregoing conveyance, and I having first made known to them the contents thereof, they did thereupon severally acknowl edge before me that they executed the same as their voluntary act and deed, for the uses and purposes therein expressed.

In testimony whereof, I have hereunto set my hand and affixed my official seal the day and year first above mentioned. [Scal.]

(Signature and title of officer.)

WEST VIRGINIA.

Deeds in this State must be executed under seal, must be acknowledged, unless proved by two witnesses,

Any deed, mortgage, deed of trust, power of attorney, or contract in writing made in respect to real estate or goods and chattels, including leases for more than five years, shall be admitted to record as to any person whose name is signed thereto, upon a certificate of his acknowledgment before a justice, notary public, recorder, prothonotary, clerk of any court within the United States, or commissioner appointed within the same by the governor of this State, written on or annexed to the same; or proved by two witnesses as to him before the proper clerk of the county court or before the proper officer in foreign countries, k

If executed out of the United States, the certificate must be under the official seal of a minister plenipotentiary, chargé d'affaires, consul-general, consul, viceconsul, or commercial agent, appointed by the govern ment of the United States to any foreign country, or of the proper officer of any court of such county, or of the mayor or other chief magistrate of any city, town or corporation therein.

Acknowledgment-Single Persons. No form is prescribed by law for proving the execu tion of a conveyance, etc., by witness.

The two following forms for certificates of acknowledg ment are prescribed by the statute. The officer is not thereby required to certify that the grantors are personally known to him. The question of identity as to the grantors who appear before him is left to the officer certifying the acknowledgment. The wife must in all cases acknowledge the deed before the officer in person. Deeds, etc., can only be proved by witnesses, before the proper recording officer of the county where they are admitted to record; or when executed out of the United States, before a minister plenipotentiary, or other officer above mentioned, having authority to take acknowledg. ments in foreign countries,m Form

of Acknowledgment-Before
Commissioner.

State of, county of, ss.

I, C. R., a commissioner appointed by the governor of the State of West Virginia for the said State (or Territory or District) of (or I, J. P., a justice of the county aforesaid, and District of

or, I, etc., giving other official designation), do certify that A. B., whose name (or names) is (or are) signed to the writing above (or hereto annexed) bearing date on the day of A. D.

has (or have) this day acknowledged the same before me, in my said

day of

Given under my hand this A. D.. [Seal. (Signature and title of officer.)

1-See General Statutes, ch. 3. j-See General Statutes, ch. 85. K-See Code, ch. 72, 73, 74. 1-Code,

I, C. R., a notary public for the said county of do certify that A. B. and W. B., his wife, whose names are signed to the above writing, bearing date on the -day of -, 189, have this day acknowledged the same before me in my said county.

Given under my hand this

-day of ,189

(Signature and title of officer.)

Acknowledgment-Corporation.

State of West Virginia, county, to wit: I, C. R., a notary of the said county of —, do certify that A. B. personally appeared before me in my said county, and being by me duly sworn, did depose and say that he is the president of the corporation described in the writing above, bearing date the —— day of —, 18-, authorized by said corporation to execute and acknowledge deeds and other writings of said corporation, and that the seal affixed to said writing is the seal of the said corporation, and that said writing was signed and sealed by him in behalf of said corporation by its authority duly given. acknowledged the said writing to be the act and deed of said corporation. Given under my hand, this — day of, 18 (Signature and title.)

And the said

Acknowledgment-Certificate of Proof of Deeds, etc., by two Witnesses. State of West Virginia, county of -, SS. In the clerk's office of the county court of county (or consulate of the United States of America, ―, etc.), I, C. C., clerk of the county court of county (or, I, C. L., consul of the United States of America, at -, etc.), do hereby certify, that the foregoing deed, bearing date on the - day of

at

WISCONSIN. Conveyances, etc., executed within this State, of lands or any interest in lands therein, must be executed in the presence of two witnesses, who shall subscribe their name to the same as such, and the persons executing must acknowledge the execution before any judge or court commissioner, clerk of a circuit court, county clerk, notary public, or justice of the peace; and the officer taking the acknowledgment must indorse a certificate of the acknowledgment, and the true date of making it, under his hand.n

Deeds conveying land, or any interest in land situated in this State, if executed in any other State, Territory, or District of the United States, may be executed according to the laws of such place, and the acknowledgment may be before any judge of a court of record. notary public, justice of the peace, master in chancery, or other officer there authorized by law to take the acknowledgment of deeds therein, or before a commissioner appointed by the governor of this State for such purpose, and if executed within the jurisdiction of any military post outside of the State then it may be acknowledged before the commanding officer. But in all such cases, except the acknowledgment be made before a commissioner appointed by the governor, or a notary public (his seal of office affixed), there must be attached to the deed a certificate of the clerk, or the commandant of a military post, or other proper certifying officer of a court of records of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowlch. 73, 3, 4. m-Code, ch. 73, 2, 3. n-See General Statutes.

edgment was, at the date thereof, such officer as he is therein represented to be, that he believes the signature of such person subscribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such State, Territory, or District. If such deed be executed in any foreign country, it may be executed according to its laws, and acknowledged before any notary public, with his seal annexed, or other officer authorized by law there to take such acknowledgments, or any minister extraordinary or resident charge d'affaires, commissioner, or consul of the United States, appointed to reside therein, and certified by him.

A married woman's conveyance, whether by her sole deed or by her joining with her husband to convey her estate or release her dower, must be executed and acknowledged as if she were sole. She may bar her dower, if eighteen years of age, by simply joining in her husband's conveyance; and she may, by letter of attorney, executed in like manner, appoint an attorney, who may be her husband, to sell or convey her estate, or bar her dower in land, and his deed as her attorney shall be effectual.

Deeds of lands within the State may be executed by corporations created under the laws of the State, and shall be signed by the president, or other authorized officer of the corporation, and sealed with the seal of the corporation, and countersigned by the secretary or clerk thereof; and the person signing such deed may acknowledge execution thereof before any officer authorized by law to take acknowledgments. The common practice is for the officers signing the deed to acknowledge the same, and make oath that they are such officers, that the seal is the seal of the corporation, that they have signed and acknowledged such deed, and affixed the seal by order of the board of directors, trustees, or other managing board of the corporation. New York forms are followed, which see.y

Acknowledgment-Husband and Wife.
State of, county of, ss.
Personally came before me this

day of

189 the above (or within) named A. B. and W. B., his wife (or, if an officer, adding name of office) to me known to be the persons who executed the foregoing (or within) instrument, and acknowledged the same.

[Seal.]

(Signature and title of official.) No separate examination of wife is necessary The notary or justice may acknowledge in the form prescribed by the law of the State where the acknowledgment is taken, and affix certificate of clerk of court. No statutory provision for proof by subscribing witness out of this State. It is made by a proceeding in court on summons to refusing grantor, if to be found, etc.

WYOMING.

If any deed or mortgage shall be executed in any other State, Territory, or District of the United States, the same may be executed according to the laws of such State, Territory, or District, by any officer authorized by the laws of such State, Territory, or District to take the acknowledgment of deeds or mortgages therein, or before any commissioner appointed by the governor of this State for that purpose. In the cases where deeds and mortgages are executed and acknowledged outside of this State, and the officer before whom the acknowledgment is taken has no seal, such deed or mortgage shall have attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county or district within which such acknowledg ment was taken, under the seal of his office, that the person whose name is subs cribed to the certificate of acknowledgment at the date thereof was such officer as he is therein represented to be, that he knows the signature of such person subscribed thereto to be genuine, and that the deed or mortgage is executed according to the laws of such State, Territory, or District.y Every notary public, J. P. and com. of deeds shall add to his certificate the date when his commission or term of office expires.

When any married woman not residing in this State shall join her husband in any conveyance of y-See General Statutes. Z-Laws, 1859, ch. 37. a-2 Bouv. Inst. #. 1309; 2 Kent Comm. 478 Story Eq. Jur. 255; Liverm. Ag. 45; Paley Ag. (Lloyd Ed.) 41; 4 Wash. C. C. 559, 4 Mass. C. C. 296; 3 Pet. 69, 81; 6 Mass. 193: 3 Pick. 495: 1 Johns. Cas. 110; 2 Id 424; 12 Johns. 300; 3 Cow. 281. b-See 2 Roper Leg. 439: Ves. ch. 335; 2 Id. 371; 12 Id. 136; 3 P. Wms.

real estate situated within this State, the conveyance shall have the same effect as if she were sole, and the acknowledgment or proof of the execution of such con. veyance by her makes her the same as if she were sole. ACQUIESCENCE. See ACTS; AGENCY; CONTRACTS; ELECTION.

ACQUIESCENCE is a quiet consent or silent submission with apparent content: It is distinguished from avowed or express consent on the one hand, and opposition or open discontent on the other. It is a silent appearance of consent. A failure to make any objections.

It

Acquiescence in the acts of an agent, or one who has assumed that character, will be equivalent to an express authority for those acts." is a ratification, and like it relieves the person who has acted, of all responsibility, for it is now made the act of him who has acquiesced in it. Where a person is bound to choose between a paramount right and a testamentary disposition, his acquiescence in a state of things which indicates a choice, when he was aware of his rights, will, in the absence of proof to the contrary, be evidence of such choice.b

Acts of acquiescence which will constitute an implied choice or election are to be decided by the circumstances of each case, rather than by any general principle or test."

Acquisition. See DESCENT; GIFT; PROPERTY, ETC.; PURCHASE.

Acquittal. See CONTRACTS; CRIMINAL LAW. Acquittance. See CONTRACTS; RECEIPTS.

ACTS.

See ACCIDENT; AGENCY; AUTHORITY; CRIMINAL LAW; EVIDENCE; LEGISLATION; STATUTE LAW.

AN ACT is something done, and for which the person doing is responsible. Something done by an individual as a private person or as an officer. Something done by a body of persons, as, an association, a corporation, legislature, council, or a court. It includes not merely physical acts, but also decrees, orders, judgments, awards, edicts, laws, resolutions, and determinations.

Acts indicate the intention; the act does not make a person guilty unless the intention be guilty also. This, however, applies only in criminal cases, in civil matters it is otherwise.e

Acts of God wrong no one, in other words, no one is responsible for inevitable accidents.' See ACCIDENT.

Agents. The act of the agent within the scope of his authority is the act of his principal; but beyond such authority the agent alone is responsible, unless the act be ratified by such principal. See AGENCY.

Anticipation. The doing or taking of a thing before its proper time will not vitiate the act or discharge the obligation if no loss or damage occur, and the act be in good faith.

ch. 315.

Authority. To act for another, there must be a lawful delegation of power; to act for one's self, one must be under no legal disability. This authority may be coupled with an C-1 Swanst. ch. 282, n. and numerous cases there cited. d-8 Co. 291; Broom Max. 270; 13 Johns. 414. e-Broom Max. 270, 275, 329; 7 T R. 514 3 Bingh. N. C. 34, 468; 5 M. & G. 639, 368, 229: 5 Id 380; 9 Cl. & F. 531; 4 N. Y. 159, 163, 195; 2 Bouv Inst. 2. 2211. f-2 Bl. Comm. 122; Co. 97 b; 5 Id. 87. Co. Litt. 206 a; 4 Taunt. 309; 1 T. R. 33.

interest or not; it may be express or implied, general or special, limited or unlimited. See AGENCY.

Begun. An act already begun, whose completion depends upon the will of the parties, may be recalled; but if it depends upon the consent of a third person, or on a contingency, it cannot be recalled.g

Children. An infant is protected against his contracts, but not against his frauds or other torts. With regard to the responsibility of infants for crimes, the rule is that no infant within the age of seven years can be guilty of felony or be punished for any capital or less offence, for within that age an infant is, by presumption of law, doli incapax (incapable of mischief or crime), and cannot be endowed with any discretion; and against this presumption no averment can be received. This legal incapacity, however, ceases when the infant attains the age of fourteen years, after which period his act becomes subject to the same rule of construction as that of any other person. Between the ages of seven and fourteen years an infant is deemed prima facie (without proof to the contrary) to be doli incapax; but in this case the maxim "malice supplies the want of mature years" applies. See INFANTS.

Coercion. Direct or positive coercion takes place when a man is by physical force compelled to do an act contrary to his will. Implied coercion exists where a person is legally under subjection to another, and is induced in consequence of such subjection to do an act contrary to his will.

As will is necessary to the commission of a crime, or the making of a contract, a person coerced into either has no will on the subject, and is not responsible. The command of a superior to, an inferior, of a parent to a child,' of a master to his servant, or a principal to his agent, may amount to coercion. So of a man who falls into the hands of the enemies of his country, and they compel him, through fear of death, to fight against it. See CRIMINAL LAW. Compulsion is forcible inducement to the commission of an act.

m

Acts done under compulsion are not, in general, binding upon a party; but when a man is compelled by lawful authority to do that which he ought to do, that compulsion does not affect the validity of the act; as, for example, when a court of competent jurisdiction compels a party to execute a deed, under the pain of attachment for contempt, the grantor cannot object to it on the ground of compulsion.

g-Bac. Max. Reg. 20; see Story Ag. 424. h-Latch. 21; 3 Wend. 391; 3 M'Cord, 257; 16 Vt. 390; 15 Me. 33: 21 Wend. 615, 620; 6 Hill, 592, 594; 3 Foster Ň. H. 516; 1 Gray, 506. He is even liable for his own torts, though he act by his father's command; 10 Vt. 71; or through the agency of a third person; 16 Mass. 389. i-1 Russ. Cr. 2, 3, 31; Ala. (N. S.) 323. j-1 East. Pl. Cr. 225; 5 Blackf, 73; 2 Dall. 86; 5 Q. B. 279; 1 Dav. & M. 367. The law upon the responsibility of married women for crime is fully stated in i Bennett & H. Lead. Cr. Cas. -87. K-1 Wash. C. C. 209, 220; 12 Met. (Mass.) 56; 1 Blatch. C. C. 549: 13 How. 115. 1-Broom Max. (2d Ed.) 11. m-13 Mo. 246; 14 Id. 137, 340; 3

But if the court compelled a party to do an act forbidden by law, or had not jurisdiction over the parties, or the subject-matter, the act done by such compulsion would be void.

Constraint. It is a general rule that when one is compelled to enter into a contract, or to perform any contract, there is no effectual consent, though ostensibly there is a form of it. In such a case the act or contract will be voidable or of no effect. But the constraint te thus annul or vitiate the act or contract must be "such as would shake a man of firmness and resolution." n

Corporations and bodies politic. The acts of a corporation or body politic are to be treated as the acts of any other persons.

2.

Criminal acts. See CRIMINAL LAW. Diligence is the doing things in the proper time. There are three degrees of diligence: " 1. Ordinary diligence is that degree of diligence which men of ordinary prudence exercise in respect to their own concerns. Great or extraordinary diligence is that which very prudent persons take of their own concerns. 3. Slight diligence is that degree of diligence which men, habitually careless, or or little prudence, generally exercise in the management of their own business.

In the execution of every contract, trust, or undertaking some one of these degrees of diligence is applicable.

Duress by imprisonment exists where a person actually loses his liberty. If one be illegally deprived of his liberty until he sign and seal a bond or the like, he may allege this duress, and avoid the bond.P But if a man be legally imprisoned, and, either to procure his discharge, or, on any other fair account, seal a bond or deed, this is not by duress of impris onment, and he is not at liberty to avoid it. Where the proceedings at law are a mere pretext, the instrument may be avoided."

Duress by threats (which is either for fear of loss of life, or else for fear of mayhem, or of loss of limb) must be upon a sufficient reason." In this case a man may avoid his own act. A man may avoid his own act by reason of menaces for fear of-1. Loss of life; 2. Loss of mem ber; 3. Mayhem; 4. Imprisonment. Restraint of goods under circumstances of hardship will avoid a contract." In case of duress the act is considered involuntary."

The violence and threats must be such as are calculated to operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation, or fortune. The age Cush. 11 Met. (Mass.) 66: 5 Miss. 304; 14 Ala. 365; 22 32; 2 Denio, 341; 14 Johns. 119. n-Erskine Inst. 3, 1, 16; 4, 1, 26; 1 Bell Comm B. 3, pt. 1, ch. 1, 1, art. 1, p. 295. -Story Bailm.; 5 Kas. 433, 467. D-2 Bay, 211; 9 Johns. 201; 10 Pet. 107. q-Co. 2d Inst. 482; 3 Caines, 168; 6 Mass. 511; 1 Lev. 69; 1 Hen. & M. 350; 17 Me. 338. r-Al. 92; 1 Bl. Comm. 136. S-1 Bl. Comm. 131. t--Co. 2d Inst.; 2 Rolle Abr. 124; Bac. Abr. Duress Murd. A.; 2 Str. 856; Foster C. N. L. 322; 2 Ld. Raym. 1578; Savigny Dr. Rom. 114. 1-2 Bay, 211; 9 Johns. 201; 10 Pet. 137; but see 2 Met. (Ky.) 445; 2 Gall. C. C. 337. v-Wolffins Inst. 5.

sex, state of health, temper, and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration. Violence and threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the husband, the descendants or ascendants of the party are the object of them. If the violence used be only a legal restraint, or the threat only of doing that which the party using them had a right to do, they will not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law, and the circumstances of the case, are of this description.w But mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to 1 contract, will invalidate it; and arrest, with⚫ out cause of action, or a demand of bail in an unreasonable sum, or threat of such proceeding, oy this rule invalidate a contract made under their pressure.

The above rules all relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract, any threats, even of slight injury, will invalidate it.*

Fraud annuls all acts, obligations, and contracts into which it enters, and the law relieves the party defrauded. If both parties act fraudulently, neither can take advantage of the fraud of the other. If one acts fraudulently, he cannot set his own fraud aside for his own benefit. See FRAUD.

Idiots, lunatics, and non compotes mentis are in general absolved from all responsibility for their civil and criminal acts. They have no will, hence the exception. There are exceptions, however, to this rule. See MEDICAL LAW.

Judicial acts are those which belong to a judge and his jurisdiction, and over which he alone can exercise the functions of his office, and for which he is answerable to no other jurisdiction or power. But that which belongs neither to him nor to his jurisdiction he cannot Jawfully take cognizance of; if he does, his acts are absolutely void. A judicial act before one not a judge is void; as to a ministerial act, from whomsoever it proceeds, let it be valid."

Ministerial acts are those which are performed under the authority of a superior, as opposed to judicial; thus, the sheriff or constable is bound to obey the judicial commands of the court.

When an officer acts in both a judicial and ministerial capacity, he may be compelled to perform ministerial acts in a particular way;

w-See Norris Peakes, Ev. 440, and cases cited; also 6 Mass. 506, for the general rule at common law. x-Id. 1853; see generally, 2 Watts, 167; 1 Baily, 84; 6 Mass. 511; 6 N. H. 508; 2 Gail. C. C. 337. y-Merlin Rep. Z-Lofft, 458. a-See 10 Me. 377; Bac. Abr. J. P. (E); 1 Com. 295; 3 Id. 107; 9 Id. 275; 12 Id. 464. b-Bac. Max. Reg. 5. e-Dig. 10, 3: 10, 1; Com. Dig. Pl.; 3 M. 20; 3 M. 30. d-Hob. 134; 3 Wils. 126; Chitty Pl.

but when he acts in a judicial capacity he can only be required to proceed, the manner of so doing is left entirely to his judgment.a

Misconduct. The wrongful riding of the horse of another, without his leave or license, and thereby causing its death or injury, is an act for which the party is responsible in damages. The unlawful act or behavior of a person intrusted with the administration of justice, by which the rights of the parties and the justice of the case may have been affected, will impair and render void the proceeding affected by it. The unjust performance of some act which a party had no right, or which he contracted not, to do, will create no obligation for recompense therefor, but will render the party performing the act liable for the damages incurred.

Necessity is that which must be, and cannot be otherwise. It is irresistible power, compulsive force, physical or moral.

Where a person's actions are determined by causes beyond his control, he acts from necessity, and is not a free agent. Whatever is done through necessity, is done without any intention; and as the act is without will, and is compulsory, the agent is not legally responsible.b Necessity has no law," it is itself a law which cannot be avoided nor infringed. Notwithstanding this, no person can plead necessity in excuse for crime.

Negligence is the want of due diligence, a lack of care, an omission to do. It consists of the following degrees: 1. Ordinary negli gence is the want of ordinary diligence. 2. Slight negligence is the want of great diligence. 3. Gross negligence is the want of slight diligence.

In general, where a party has caused an injury or loss to another by his negligence he is responsible for all the consequences. A person who, during a dark night, drives his carriage on the wrong side of the road, by which he commits an injury upon another, is responsible for the consequences of his negligence. See BAILMENTS.

Non-performance is the neglect or failure to perform that which by one's act or contract, or by the requirements of the law, it becomes his duty to do.

Human action is exactly conformable to the laws which require us to obey them; their nonperformance involves us in the natural consequences which follow. The neglect to comply with the terms of our contract makes us responsible for the breach.

Where a legislative act requires a person to do a thing, its non-performance will subject the party to punishment.

Notice is information given of some act done 129, 130; 2 H. & M. 423; 1 Strange, 596; 3 East. 596. e-3 East. 593; 1 Campb. 497; 2 Id. 466; 5 B. & P. 119; see Gale & W. Easements; 6 T. R. 659; 1 East. 106; 4 B. & Ald. 590; 1 Taunt. 568; 2 Stant. 272: 2 Bingh. 170; 5 Esp. 35, 263; 5 B. & C. 550. Whether the incautious conduct of the plaintiff will excuse the negli gence of the defendant, see 1 Q. B. 29; 4 Perr. & D 642; 3 C. B. 9. 1-See i Russell Crimes, 48.