from having compared it with the original. Bull. N. P. 254; 1 Keb. 117; 6 Binn. R. 234; 2 Taunt. R. 52; 1 Campb. R. 469; 8 Mass. R. 273. If there be no copy, the party may produce an abstract, or even give parol evidence of the contents of a deed. 10 Mod. 8; 6 T. R. 556. Before secondary evidence can be given of the contents of a paper which is in the possession of the opposite party, notice must be given to such party to produce it on the trial. 3 T. R. 306; 2 T. R. 201. And the service of such notice must be proved. 2 T. R. 201, n. EVOCATION, French law, is the act by which a judge is deprived of cognizance of a suit over which he had jurisdiction, for the purpose of conferring on other judges the power of deciding it. This is done with us by writ of certiorari. EX MERO MOTU, from mere motion. To prevent injustice, the courts will, ex mero motu, make rules and orders which the parties would not strictly be entitled to ask for. EX PARTE, of the one part. Many things may be done ex parte, when the opposite party has had notice; an affidavit, or deposition is said to be taken ex parte, when only one of the parties attends to taking the same. when it was committed. 6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193; 2 Pet. U. S. Rep. 413; 1 Kent, Com. 408; Dane's Ab. Index, h. t. This prohibition in the constitution against passing ex post facto laws, applies exclusively to criminal or penal cases, and not to civil cases. Serg. Const. Law, 356. EXACTION, torts, a wilful wrong done by an officer, or by one who, under colour of his office, takes more fee or pay for his services than what the law allows. Between extortion and exaction there is this difference; that in the former case the officer extorts more than his due, when something is due to him; in the latter he exacts what is not his due, when there is nothing due to him. Co. Litt. 368. EXAMINERS, practice, are persons appointed to question students of law, in order to ascertain their qualifications before they are admitted to practice. Officers in the courts of chancery whose duty it is to examine witnesses, are also called examiners. Com. Dig. Chancery, P. 1. EXCAMBIATOR, the name of an exchange of lands; a broker. EX POST FACTO, contracts, This term is now obsolete. crim. law. This is a technical ex- EXCEPTION, legislation, conpression which signifies, that some-struction. Exceptions are rules or thing has been after another thing, laws which bound the extent of in relation to the latter. An estate others; they limit the extent of the granted may be made good or avoid-rule to which they apply, and rened by matter ex post facto, when an der that just and proper, which election is given to the party to ac- would be, on account of its generalcept or not to accept. 1 Co. 146. ity, unjust and improper; for examThe constitution of the United States, ple, it is a general rule that parties art. 1, s. 10, forbids the states to competent may make contracts, the pass any ex post facto law, which rule that they shall not make any has been defined to be one which contrary to equity, or contra bonos renders the act punishable in a man-mores, is the exception. ner in which it was not punishable EXCEPTION, in contracts. An exception is a clause in a deed, by which the lessor excepts something, out of that which he granted before by the deed. To make a valid exception, these things must concur; 1, the exception must be by apt words, as, saving and excepting, &c.; 2, it must be of part of the thing demised, and not of some other thing; 3, it must be part of the thing only, and not of all, the greater part, or the effect of the thing granted; an exception, therefore, in a lease, which extends to the whole thing demised, is void; 4, it must be of such thing as is severable from the demised premises, and not of an inseparable incident; 5, it must be of such a thing as he that accepts may have, and which properly belongs to him; 6, it must be of a particular thing out of a general, and not of a particular thing out of a particular thing; 7, it must be particularly described and set forth; a lease of a tract of land, except one acre, would be void, because that acre was not particularly described. Woodf. Landl. & Ten. 10. 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. Répert, 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. EXCHANGE, comm. law. This word has several significations. sents 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. 3. Barter, (q. v.) or the transfer of goods and chattels for other goods and chattels, is also known by the name of exchange, though the term barter is more commonly used. 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 escambium 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. 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 chequed cloth, 1. Exchange is a negociation by resembling a chess board, which which one person transfers to ano- covers the table there; 3 Bl. Com. ther, funds which he has in a certain 43; it consists of two divisions; the place, either at a price agreed upon, receipt of the exchequer, which or which is fixed by commercial manages the royal revenue; and the usage. This transfer is made by cot, or judicial part of it, which means of an instrument which repre- is again divided into a court of VOL. I.-49. equity, and a court of common law. Ib. 44. 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. 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; Lofft. 276; Dougl. 463; 2 Mod. 280; Sav. 124; 3 Penna. Rep. 200; 1 Serg. & Rawle, 43; 3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig. Estates, G 8; 2 Chit. Pr. 69, 147. example the case of a sheriff who has an execution against an individual, 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, 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 fact of his having the execution against Paul and the mistake he 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 EXCUSE. A reason alleged for acts of the second kind may be the doing or not doing a thing. This classed, the beating or killing anoword presents two ideas differing ther in self-defence; the destruction essentially from each other. In one of property in order to prevent a case an excuse may be made in or- more serious calamity, as the tearder to show that the party accused ing down of a house on fire, to preis not guilty; in another, by show-vent its spreading to the neighbouring that though guilty, he is less so, ing property, and the like. than he appears to be. Take, for EXECUTION, contracts, signi 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. same. fies the accomplishment of a thing; death, according to their sentence; as, the execution of a bond and war- a hangman. In the United States rant of attorney, which is the sign-executions are so rare that there are ing, sealing, and delivery of the no executioners by profession. It is the duty of the sheriff or marEXECUTION, practice. The shal to perform this office, or to proact of carrying into effect the final cure a deputy to do it for them. judgment of a court, or other juris- EXECUTIVE, government, is diction. The writ which author- that power in the government which ises the officer so to carry into causes the laws to be executed and effect such judgment is also called obeyed: it is usually confided in the an execution. A distinction has hands of the chief magistrate; the been made between an execution president of the United States is inwhich 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. vested 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. EXECUTOR, trusts. The word executor taken in its largest sense, Executions are either to recover has several acceptations.-1. Exespecific things, or money.-1. Of cutor dativus, who is one called an the first class are the writs of habere administrator to an intestate; 2. facias seisinam, (q. v.) habere facias Executor testamentarius, or one appossessionem, (q. v.) retorno haben- pointed to the office by the last will do, (q. v.) distringas, (q. v.).—2. of a testator, and this is what is Executions for the recovery of mo- usually meant by the term. In the ney are those which issue against civil law the person who is appointthe body of the defendant, as the ed to perform the duties of an execapias ad satisfaciendum, (q. v.) an cutor as to goods, is called hæres attachment; (q. v.) those which testamentarius; the term executor, issue against his goods and chattels, it is said, is a barbarism unknown to namely, the fieri facias, (q. v.) the that law. 3 Atk. 304. An executor, venditioni exponas; (q. v.) those as the term is at present accepted, which issue against his lands, the is the person to whom the execution levari facias, (q. v.) the liberari of a last will and testament of perfacias, the elegit, (q. v.) Vide 10 sonal estate is, by the testator's apVin. Ab. 541; 1 Ves. Jr. 430; 1 pointment, confided. 2 Bl. Com. Sell. Pr. 512; 2 Bac. Ab. 683; 503; 2 P. Wms. 548; Toller, 30; Com. Dig. h. t.; Dane's Ab. h. t. ; 1 Will. on Ex. 112; Swinb. pt. 4, the various Digests, h. t.; Tidd's s. 2, pl. 2. Generally speaking all Pr. Index, h. t. persons who are capable of making name wills may be executors, and some given to him who puts criminals to others beside, as infants and married EXECUTIONER. The presents 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. women. 2 Bl. Com. 503. An exe- Dig. Administration, B 10, 5 B. & cutor is absolute or qualified; his A. 745; 2 W. Bl. Rep. 692. His appointment is absolute when he is interest in the goods of the deceased constituted certainly, immediately, is not that absolute, proper and orand without restriction in regard to dinary interest, which every one has the testator's effects, or limitation in in his own proper goods. He is a point of time. It may be qualified mere trustee to apply the goods for by limitation as to the time or place such purposes as are sanctioned by wherein, or the subject-matters law. 4 T. R. 645; 9 Co. 88 b; 2 whereon the office is to be exercised; Inst. 236; Off. Ex. 192. He reor 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; The following are the principal as, if a man be appointed executor duties of an executor: 1. Within a upon the marriage of testator's convenient time after the testator's daughter. Swinb. pt. 4, s. 17, pl. death, to collect the goods of the 4.-2. The appointment may be deceased, provided he can do so limited in point of place; as, if one peaceably; when he is resisted he be appointed executor of all the must apply to the law for redress. testator's goods in the state of Penn--2. To bury the deceased in a sylvania.-3. The power of the ex- manner suitable to the estate he ecutor may be limited as to the sub- leaves behind him; and when there ject-matter, upon which it is to be is just reason to believe he died inexercised; as, when a testator ap- solvent, he is not warranted in expoints A his executor of his goods pending more in funeral expenses and chattels in possession, B, of his (q. v.) than is absolutely necessary. choses in action. One may be ap- 2 Will. Ex. 636; 1 Salk. 296; 11 pointed executor of one thing only, Serg. & Rawle, 204; 14 Serg. & as of a particular claim or debt due Rawle, 64.-3. The executor should by bond, and the like. Off. Ex. 29; prove the will in the proper office.3 Phillim. 424. But although a 4. He should make an inventory testator may thus appoint separate (q. v.) of the goods of the intestate, executors of distinct parts of his which should be filed in the office. property and may divide their au- 5. He should ascertain the state thority, yet quoad creditors of the of the debts and credits of the estate, testator they are all executors, and and endeavour to collect all such as one executor, and may be sued as claims with as little delay as possible one executor. Cro. Car. 293.-4. consistently with the interest of the The appointment may be conditional, estate.--6. He should advertise for and the condition may be either debts and credits, see forms of adverprecedent or subsequent. Godolp. tisements, 1 Chit. Pr. 521.-7. He Orph. Leg, pt, 2, c. 2, s. 1; Off. should reduce the whole of the Ex. 23. goods, not specifically bequeathed, An executor derives his interest into money with all due expedition. in the estate of the deceased en--8. Keep the money of the estate tirely from the will, and it vests in in bank, but not mixed with his own him from the moment of the testa- account, or he may be charged intor's death. 1 Will. Ex. 159; Com. terest on it.-9. Be at all times |