Bouvier's Law Dictionary
1856 Edition





MACEDONIAN DECREE, civil law. A decree of the Roman senate, which derived its name from that of a certain usurer who was the cause of its being made, in consequence of his exactions. It was intended to protect sons who lived under the paternal jurisdiction, from the unconscionable contracts which they sometimes made on the expectations after their fathers' deaths; another, and perhaps, the principle object, was to cast odium on the rapacious creditors. It declared such contracts void. Dig. 14, 6, 1; Domat, Lois, Civ. liv. 1, tit. 6, §4; Fonbl. Eq . B. 1, c. 2, §12, note. Vide Catching bargain; Post obit.

MACHINATION. The act by which some plot or conspiracy is set on foot.



MADE KNOWN. These words are used as a return to a scire facias, when it has been served on the defendant.

MAGISTER. A master, a ruler, one whose learning and position makes him su- perior to others, thus: one who has attained to a high degree, or eminence, in science and literature, is called a master; as, master of arts.

MAGISTER AD FACULTATES, Eng. eccl. law. The title of an officer who grants dispensations; as, to marry, to eat flesh on days prohibited, and the like. Bac. Ab. Eccles. Courts, A 5.

MAGISTER NAVIS. The master of a ship; a sea captain. MAGISTER SOCIETATIS, Civil law. The principal manager of the business of a society or partnership.

MAGISTRACY, mun. law. In its most enlarged signification, this term includes all officers, legislative, executive, and judicial. For example, in most of the state constitutions will be found this provision; "the powers of the government are divided into three distinct departments, and each of these is confided to a separate magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another." In a more confined sense, it signifies the body of officers whose duty it is to put the laws in force; as, judges, justices of the peace, and the like. In a still narrower sense it is employed to designate the body of justices of peace. It is also used for the office of a magistrate.


2. The president of the United States is the chief magistrate of this nation; the governors are the chief magistrates of their respective states.

3. It is the duty of all magistrates to exercise the power, vested in them for the good of the people, according to law, and with zeal and fidelity. A neglect on the part of a magistrate to exercise the functions of his office, when required by law, is a misdemeanor. Vide 15 Vin. Ab. 144; Ayl. Pand. tit. 22; Dig. 30, 16, 57; Merl. Rep. h. t.; 13 Pick. R. 523



MAIDEN. The name of an instrument formerly used in Scotland for beheading criminals.

MAIL. This word, derived from the French malle, a trunk, signifies the bag, valise, or other contrivance used in conveying through the post office, letters, packets, newspapers, pamphlets, and the like, from place to place, under the authority of the United States. The things thus carried are also called the mail.

2. The laws of the United States have provided for the punishment of robberies or wilful injuries to the mail; the act of March 3, 1825, 3 Story's Laws U. S. 1985, provides-

§22. That if any person shall rob any carrier of the mail of the United States, or other person entrusted, therewith, of such mail, or of part thereof, such offender or offenders shall, on conviction, be imprisoned not less than five years, nor exceeding ten years; and, if convicted a second time of a like offence, he or they shall suffer death; or if, in effecting such robbery of the mail, the first time, the offender shall wound the person having the custody thereof, or put his life in jeopardy, by the use of dangerous weapons, such offender or offenders shall suffer death. And if any person shall at- tempt to rob the mail of the United States, by assaulting the person having custody thereof, shooting at him, or his horse or mule, or, threatening him with dangerous weapons, and the robbery is not effected, every such offender, on conviction thereof, shall be punished by imprisonment, not less than two years, nor exceeding ten years. And, if any person shall steal the mail, or shall steal or take from, or out of, any mail, or from, or out of, any post office, any letter or packet; or, if any person shall take the mail, or any letter or packet therefrom, or from any post office, whether with or without the consent of the person having custody thereof, and shall open, embezzle, or destroy any such; mail, letter, or packet, the same containing any articles of value, or evidence of any debt, due, demand, right, or claim, or any release, receipt, acquittance, or discharge, or any other articles, paper, or thing, mentioned and described in the twenty-first section of this act; or, if any person shall, by fraud or deception, obtain from any person having custody thereof, any mail, letter, or packet, containing any article of value, or evidence thereof, or either of the writings referred to, or next above mentioned, such offender, or offenders, on conviction thereof, shall be imprisoned not less than two, nor exceeding ten years. And if any person shall take any letter, or packet, not containing any article of value, or. evidence thereof, out of a post office, or shall open any letter or packet, which shall have been in a post office, or in custody of a mail carrier, before it shall have been de-livered to the person to whom it is directed, with a design to obstruct the correspondence, to pry into another's business or secrets; or shall secrete, embezzle, or destroy, any such mall, letter, or packet, such offender, upon conviction, shall pay, for every such offence, a sum not exceeding five hundred dollars, and be imprisoned not exceeding twelve months.

3. - §23. That, if any person shall rip, cut, tear, burn, or otherwise injure, any valise, portmanteau, or other bag used, or designed to be used, by any person acting under the authority of the postmaster general, or any person in whom his powers are vested in a conveyance of any mail, letter packet, or newspaper, or pamphlet, or shall draw or break any staple, or loosen any part of any lock, chain, or strap, attached to, or belonging to any such valise, portmanteau, or bag, with an intent to rob, or steal any mail, letter, packet, newspaper, or pamphlet, or to render either of the same insecure, every such offender, upon conviction, shall, for every such offence, pay a sum, not less than one hundred dollars, nor exceeding five hundred-dollars, or be imprisoned not leas than one year, nor exceeding three years, at the discretion of the court before whom such conviction is had.

4. - §24. That every person who, from and after the passage of this act, shall procure, and advise, or assist, in the doing or perpetration of any of the acts or crimes by this act forbidden, shall be subject to the same pen-alties and punishments as the persons are subject to, who shall actually do or perpetrate any of the said acts or crimes, according, to the provision of this act.

5.- §25. That every person who shall be imprisoned by a judgment of court, under and by virtue of the twenty-first, twenty-second, twenty-third, or, twenty-fourth sections of this act, shall be kept at hard labor during the period of such imprisonment.

MAILE, ancient English law. A small piece of money; it also signified a rent, because the rent was paid with maile.


TO MAIM, crim. law. To deprive a person of such part of his body as to ren- der him less able in fighting or defending himself than he would have otherwise been. Vide Mayhem.

MAINE. One of the new states of the United State's of America. This state was admitted into the Union by the Act of Congress of March 3, 1820, 3 Story's L. U . S. 1761, from and after the fifteenth day of March, 1820, and is thereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states in all respects whatever.

2. The constitution of this state was adopted October 29th, 1819. The powers of the government are vested in three distinct departments, the legislative, executive and judicial.

3. - 1. The legislative power is vested in two distinct branches, a house of representatives and senate, each to have a negative on the other, and both to be styled The legislature of Maine. 1. The house of representatives is to consist of not less than one hundred, nor more than two hundred members; to be apportioned among the counties according to law; to be elected by the quali-fied electors for one year from the next day preceding the annual meeting of the legislature. 2. The senate consists of not less than twenty, nor more than thirty-one members, elected at the same time, and for the same term, as the representatives, by the qualified electors of the districts into which the state shall, from time to time, be divided. Art. 4, part 2, s. 1. The veto power is given to the governor, by art. 4, part 3, s. 2.

4. - 2. The supreme executive power of the state is vested in a governor, who is elected by the qualified electors, and holds his office one year from the first Wednesday of January in each year. On the first Wednesday of January annually, seven persons, citizens of the United States, and resident within the state, are to be elected by joint ballot of the senators and representatives in convention, who are called the council. This council is to advise the governor in the executive part of government, art. 5, part 2, s. 1 and 2.

5. - 3. The judicial power of the State is distributed by the 6th article of the constitution as follows:

6. - §1. The judicial power of this state shall be vested in a supreme judicial court, and such other courts as the legislature shall, from time to time, establish.

7. - §2. The justices of the supreme judicial court shall, at stated times, receive a compensation, which shall not be diminished during their continuance in office, but they shall receive no other fee or reward.

8. - §3. They shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the governor, council, senate, or house of representatives.

9. - §4. All judicial officers; except justices of the peace, shall hold their offices during good behaviour, but not beyond the age of seventy years.

10. - §5. Justices of the peace and notaries public shall hold their offices during seven years, if they so long behave themselves well, at the expiration of which term, they may be re-appointed, or others appointed, as the public interest may require.

11. - §6. The justices of the supreme judicial court shall bold no office under the United States, nor any state, nor any other office under this state, except that of justice of the peace. For a history of the province of Maine, see 1 Story on the Const. §82.

MAINOUR, crim. law. The thing stolen found in the hands of the thief who has stolen it; hence when a man is found with property which he has stolen, he is said to be taken with the mainour, that is, it is found in his hands.

2. Formerly there was a distinction made between a larceny, when the thing stolen was found in the hands of the criminal, and when the proof depended upon other circumstances not quite so irrefragable; the former properly was termed pris ove maynovere, or ove mainer, or mainour, as it is generally written. Barr. on the Stat. 315, 316, note:

MAINPERNABLE. Capable of being bailed; one for whom bail may be taken; bailable.

MAINPERNORS, English law. Those persons to whom a man, is delivered out of custody or prison, on their becoming bound for his appearance.

2. Mainpernors differ from bail: a man's bail may imprison or surrender him up before the stipulated day of appearance; mainpernors can do neither, but are merely sureties for his appearance at the day; bail are only sureties that the party be answerable for all the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever. 3. Bl. Com. 128; vide Dane's Index, h. t.

MAINPRISE, Engl. law. The taking a man into friendly custody, who might otherwise be committed to prison, upon security given for his appearance at a time and place assigned. Wood's Inst. B. 4, c. 4.

2. Mainprise differs from bail in this, that a man's mainpernors are barely his sureties, and cannot imprison him themselves to secure his appearance, as his bail may, who are looked upon as his gaolers, to whose custody he is committed.. 6 Mod. 231; 7 Mod. 77, 85, 98; Ld. Raym. 606; Bac. Ab. Bail in Civil Cases; 4 Inst. 180. Vide Mainpernors. Writ of Mainprise; and 15 Vin. Ab. 146; 3 Bl. Com. 128.

MAINTENANCE, crimes. A malicious, or at least, officious interference in a suit in which the offender has no interest, to assist one of the parties to it against the other, with money or advice to prosecute or defend the action, without any authority of law. 1 Russ. Cr. 176.

2. But there are many acts in the nature of maintenance, which become justifiable from the circumstances under which they are done. They may be justi-fied, 1. Because the party has an interest in the thing in variance; as when he has a bare contingency in the lands in question, which possibly may never come in esse. Bac. Ab. h. t. 2. Because the party is of kindred or affinity, as father, son, or heir apparent, or husband or wife. 3. Because the relation of landlord and tenant or master and servant subsists between the party to the suit and the person who assists him. 4. Because the money is given out of charity. 1 Bailey, S. C. Rep. 401. 5. Because the person assisting the party to the suit is an attorney or counsellor: the assistance to be rendered must, however, be strictly professional, for a lawyer is not more justified in giving his client money than another man. 1 Russ. Cr. 179. Bac. Ab Mainte-nance: Bro. Maintenance. This offence is punishable by fine and imprisonment. 4 Black Com. 124; 2 Swift's Dig. 328; Bac. Ab. h. t. Vide 3 Hawks, 86; 1 Greenl. 292; 11 Mass. 553 , 6 Mass. 421; 5 Pick. 359; 5 Monr. 413; 6 Cowen, 431; 4 Wend. 806; 14 John. R. 124; 3 Cowen, 647; 3 John. Ch. R. 508 7 D. & R. 846; 5 B. & C. 188.

MAINTENANCE, quasi contracts. The support which one person, who is bound by law to do so, gives to another for his living; for example, a father is bound to find maintenance for his children; and a child is required by law to main-tain his father or mother when they cannot support themselves, and he has ability to maintain them. 1 Bouv. Inst. n. 284-6.

MAINTAINED, pleadings. This is a technical word, indispensable in an indict- ment for maintenance, which no other word or circumlocution will supply. 1 Wils. 325.

MAINTAINORS, criminal law. Those who maintain or support a cause depending between others, not being retained as counsel or attorney. For this they may be fined and imprisoned. 2 Swift's Dig. 328; 4 Bl. Com. 124; Bac. Ab. Barrator.

MAISON DE DIEU. House of God. In England the term, borrowed from the French, signified formerly a hospital, an almshouse, a monastery. 39 Eliz. c. 5.




MAJOR GENERAL. A military officer, commanding a division or number of regi- ments; the next in rank below a lieutenant general.

MAJORES. The male ascendant beyond the sixth degree were so called among the Romaus, and the term is still used in making genealogical tables.









MAKING HIS LAW. A phrase used to denote the act of a person who wages his law. Bac. Ab. Wager of law, in pr.

MALA FIDES. Bad faith. It is opposed to bona fides, good faith.

MALA PRAXIS, crim. law. A Latin expression, to signify bad or unskilful practice in a physician or other professional person, as a midwife, whereby the health of the patient is injured.

2. This offence is a misdemeanor (whether it be occasioned by curiosity and experiment or neglect) because, it breaks the trust which the patient has put in the physician, and tends directly to his destruction. 1 Lord Raym. 213. See forms of indictment for mala praxis, 3 Chitty Crim. Law, 863; 4 Wentw. 360; Vet. Int. 231; Trem. P. C. 242. Vide also, 2 Russ. on Cr. 288; 1 Chit. Pr. 43; Com. Dig. Physician; Vin. Ab. Physician.



5. - 3. Ignorant mal practice, which is the administration of medicines, calculated to do injury, which do harm, and which a well educated and scientific medical man would know were not proper in the case. Besides the public remedy for mal practice, in many cases the party injured may bring a civil action. 5 Day's R. 260; 9 Conn. 209. See M. & Rob. 107; 1 Saund. 312, n. 2; l Ld. Raym. 213; 1 Briand, Med. Leg. 50; 8 Watts, 355; 9 Conn. 209.

MALA PROHIBITA. Those things which are prohibited by law, and therefore unlawful.

2. A distinction was formerly made in respect of contracts, between mala prohibita and mala in se; but that distinction has been exploded, and, it is now established that when the provisions of an act of the legislature have for their object the protection of the public, it makes no difference with respect to contracts, whether the thing be prohibited alsolutely or under a penalty. 5 B. & A 5, 340; 10 B. & C. 98; 3 Stark. 61; 13 Pick. 518; 2 Bing. N. C. 636, 646.


MALEDICTION, Eccles. law. A curse which was anciently annexed to donations of lands made to churches and religious houses, against those who should violate their rights.



MALFEASANCE, contracts, torts. The unjust performance of some act which the party had no right, or which he had contracted not to do. It differs from mis- feasance, (q. v.) and nonfeasance. (q. v.) Vide 1 Chit. Pr. 9; 1 Chit. Pl. 134.

MALICE, crim. law. A wicked intention to do an injury. 4 Mason, R. 115, 505: 1 Gall. R. 524. It is not confined to the intention of doing an injury to any particular person, but extends to an evil design, a corrupt and wicked notion against some one at the time of committing the crime; as, if A intended to poison B, conceals a quantity of poison in an apple and puts it in the way of B, and C, against whom he had no ill will, and who, on the contrary, was his friend, happened to eat it, and die, A will be guilty of murdering C with malice aforethought. Bac. Max. Reg. 15; 2 Chit. Cr. Law, 727; 3 Chit. Cr. Law,. 1104.

2. Malice is express or implied. It is express, when the party evinces an intention to commit the crime, as to kill a man; for example, modern duelling. 3 Bulstr. 171. It is implied, when an officer of justice is killed in the discharge of his duty, or when death occurs in the prosecution of some unlawful design.

3. It is a general rule that when a man commits an act, unaccompanied by any circumstance justifying its commission, the law presumes he has acted advisedly and with an intent to produce the consequences which have ensued. 3 M. & S. 15; Foster, 255; 1 Hale, P. C. 455; 1 East, P. C. 223 to 232, and 340; Russ. & Ry. 207; 1 Moody, C. C. 263; 4 Bl. Com. 198; 15 Vin. Ab. 506; Yelv. 105 a; Bac. Ab. Murder and Homicide, C 2. Malice aforethought is deliberate premedi-tation. Vide Aforethought.

MALICE, torts. The doing any act injurious to another without a just cause.

2. This term, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions an injury to another. 11 S. & R. 39, 40.

3. Indeed in some cases it seems not to require any intention in order to make an act malicious. When a slander has been published, therefore, the pro-per question for the jury is, not whether the intention of the publication was to injure the plaintiff, but whether the tendency of the matter published, was so injurious. 10 B. & C. 472: S. C. 21 E. C. L. R. 117.

4. Again, take the common case of an offensive trade, the melting of tallow for instance; such trade is not itself unlawful, but if carried on to the annoyance of the neighboring dwellings, it becomes unlawful with respect to them, and their inhabitants may maintain an action, and may charge the act of the defendant to be malicious. 3 B. & C. 584; S. C. 10 E. C. L. R. 179.

MALICE AFORETHOUGHT, pleadings. In an indictment for murder, these words, which have a technical force, must be used in charging the offence; for without them, and the artificial phrase murder, the indictment will be taken to charge manslaughter only. Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242, and the authorities and cases there cited.

2. Whenever malice aforethought is necessary to constitute the offence, these words must be used in charging the crime in the indictment. 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91.

MALICIOUS. With bad, and unlawful motives; wicked.

MALICIOUS ABANDONMENT. The forsaking without a just cause a husband by the wife, or a wife by her husband. Vide Abandonment, Malicious.

MALICIOUS MISCHIEF, This expression is applied to the wanton or reckless de- struction of property, and the wilful perpetration of injury to the person. Alis. Prin. 448; 3 Dev. & Batt. 130; 8 Leigh, 719; 5 Ired. R. 364; 8 Port. 447; 2 Metc. 21; 3 Greenl. 177.

MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These terms import a wanton prosecution or arrest, made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result.

2. This definition will be analysed by considering, 1. The nature of the prosecution or arrest. 2. Who is liable under it. 3. What are malice and probable cause. 4. The proceedings. 5. The result of the prosecution and afterwards, 6. The remedy.

3. - 1. Where the defendant commenced a criminal prosecution wantonly and in other respects against law, he will be responsible. Addis. R. 270; 12 Conn. 219. The prosecution of a civil suit, when malicious, is a good cause of action, even when there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1 Wend. 345. But no action lies for commencing a civil action, though without sufficient cause. 1 Penns. R. 235.

4. - 2. The action lies against the prosecutor and even against a mere informer, when the proceedings are malicious. 5 Stew. & Port. 367. But grand jurors are not liable to an action for a malicious prosecution, for information given by them to their fellow jurors, on which a prosecution is founded. Hardin, 556. Such action lies against a plaintiff in a civil action who ma- liciously sues out the writ and prosecutes it; 16 Pick. 453; but an action does not lie against an attorney at law for bringing the action, when regularly employed. 16 Pick. 478. See 6 Pick. 193.

5. - 3. There must be malice and want of probable cause. 1 Wend. 140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Cooke, 90; Litt. Sel. Cas. 106; 4 Litt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 Call. 446; 2 Hall, 315; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable cause.

6. - 4. The Proceedings under which the original prosecution or action was held, must have been regular, in the ordinary course of justice, and before a tribunal having power to ascertain the truth or falsity of the charge, and to punish the supposed offender, the now plaintiff. 3 Pick. 379, 383. When the proceedings are irregular, the prosecutor is a trespasser. 3 Blackf. 210 . See Regular and irregular process.

7. - 5. The malicious prosecution or action must be ended, and the plain-tiff must show it was groundless, either by his acquittal or by obtaining a final judgment in his favor in a civil action. 1 Root, R. 553; 1 N. & M. 36; 2 N. & M. 54, 143; 7 Cowen, 715; 2 Dev. & Bat. 492.

8. - 6. The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained. 5 Stew. & Porter, 367; 2 Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill. & John. 377. See Case; Regular and irregular process.

See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493 to 551; Bac. Ab. Actions on the case, H; Bouv. Inst. Index, h. t.

MALUM IN SE. Evil in itself.

2. An offence malum in se is one which is naturally evil, as murder, theft, and the like; offences at common law are generally mala in sese.

3. An offence malum prohibitum, on the contrary, is not naturally an evil, but becomes so in consequence of its being forbidden; as playing at games, which being innocent before, have become unlawful in consequence of being forbidden. Vide Bac. Ab. Assumpsit, A, note; 2 Rolle's Ab. 355.

MALVEILLES. Ill-will. In some ancient records this word signifies malicious practices, or crimes and misdemeaners.

MALVERSATION, French law. This word is applied to all punishable faults committed in the exercise of an office, such as corruptions, exactions, extortions and larceny. Merl. Repert. b. t.

MAN. A human being. This definition includes not only the adult male sex of the human species, but women and children; examples: "of offences against man, some are more immediately against the king, other's more immediately against the subject." Hawk. P. C. book 1, c. 2, s. 1. Offences against the life of man come under the general name of homicide, which in our law signifies the killing of a man by a man." Id. book 1, c. 8, s. 2.


MANAGER. A person, appointed or elected to manage the affairs of another, but the term is more usually applied to those officers of a corporation who are authorized to manage its affairs. 1 Bouv. Inst. n. 190.

2. In banking corporations these officers are commonly called directors, and the power to conduct the affairs of the company, is vested in a board of directors. In other private corporations, such as railroad companies, canal, coal companies, and the like, these officers are called managers. Being agents, when their authority is limited, they have no power to bind their principal beyond such authority. 17 Mass. R. 29; 1 Greenl. R. 81.

3. The persons appointed on the part of the house of representatives to prosecute impeachments before the senate, are called managers.

MANBOTE. In a barbarous age, when impunity could be purchased with money, the compensation which was paid for homicide was called manbote.

MANCIPATIO, civil law. The act of transferring things called res mancipi. (q. v.) This is effected in the presence of not less than five witnesses, who must be Roman citizens and of the age of puberty, and also in the presence of another person of the same condition, who holds a pair of brazen scales, and hence is called Libripens. The purchaser (qui mancipio accipit) taking hold of the thing, says I affirm that this slave (homo) is mine, ex jure quiritium, and he is purchased by me with this piece of money (sas) and brazen scales. He then strikes the scales with the piece of money and gives it to the seller as a symbol of the price (quasi pretii loco.) The purchaser or person to whom the mancipatio was made did not acquire the possession of the mancipatio; for the acquisition of possession was a separate act. Gaius. 1, 119; Id. iv. 181.

Both mancipatio and in jure cessio existed before the twelve tables. Frag. Vat. 50. Mancipation no longer existed in the code of Justinian, who took away all distinction between res mancipi and nec mancipi. Smith's Dict. Gr. & Rom. Antiq. Verb. Mancipium; Coop. Jus. 442.

MANDAMUS, practice. The name of a writ, the principal word of which when the proceedings were in Latin, was mandamus, we command.

2. It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice. 20 Pick. 484; 21 Pick. 258; Dudley, 37; 4 Humph. 437.

3. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. 2 T. R. 385; 1 Cowen's R. 501; 11 Shepl. 151; 1 Pike, 11.

4. This writ was introduced io prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. 3 Burr. R. 1267; 1 T. R. 148, 9.; 2 Pick. 414; 4 Pick. 68; 10 Pick. 235, 244; 7 Mass; 340; 3 Binn. 273; 5 Halst. 57; Cooke, 160; 1 Wend. 318; 5 Pet. 190; 1 Caines, R. 511; John. Cas. 181; 12 Wend. 183; 8 Pet. 291; 12 Pet. 524; 2 Penning. 1024; Hardin, 172; 7 Wheat. 534; 5 Watts. 152; 2 H. & M. 132; 3 H. & M. 1; 1 S. & R. 473; 5 Binn. 87; 3 Conn. 243; 2 Virg. Cas. 499; 5 Call. 548. Mandamus will not lie where the law has given another specific remedy. 1 Wend. 318; 10 John. 484; 1 Cow. 417; Coleman, 117; 1 Pet. 567; 2 Cowen, 444; 2 M'Cord, 170; Minor, 46; 2 Leigh, 165; Const. Rep. 165, 175, 703.

5. The 13th section of the act of congress of September, 24, 1789, gives the supreme court power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States. The issuing of a mandamus to courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in the supreme court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend a mandamus. The latter clause of the above section, authorizing this writ to be issued by the supreme court, to persons holding office under the authority of the United States, is, therefore, not warranted by the constitution, and void. 1 Cranch, R. 175.

6. The circuit courts of the United States may also issue writs of mandamus, but their power in this particular, is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. 7 Cranch, R. 504; 8 Wheat. R. 598; 1 Paine's R. 453. Vide, generally, 3 Bl. Com. 110; Com. Dig. h. t; Bac. Ab. h. t.; Vin. Ab. h. t.; Selw. N. P. h. t.; Chit. Pr. h. t.; Serg. Const. Index, h. t.; Ang. on Corp. Index, h. t.; 3 Chit. Bl. Com. 265 n. 7; 1 Kent. Com. 322; Dane's Ab. Index, h. t.; 6 Watts & Serg. 386, 397; Bouv. Inst. Index, h. t.; and the article "Courts of the United States."

MANDANT. The principal in the contract of mandate is so called. Story, Ag. 337.

MANDATARIUS. One who is entrusted with and undertakes to perform a mandate. This word is used by the civilians in the same sense that we use mandatary. Poth. du Mandat, n. 1.



MANDATE, practice. A judicial command or precept issued by a court or magi- trate, directing the proper officer to enforce a judgment, sentence or decree. Jones'. Bailm. 52; Story on Bailm. 137.



3. There is no particular form or manner of entering into the contract of mandate, prescribed either by the common law, or by the civil law, in order to give it validity. It may be verbal or in writing; it may be express or implied it may be in solemn form or in any other manner. Story on Bailm. 160. The contract may be varied at the pleasure of the parties. It may be absolute or conditional, general or special, temporary or permanent. Wood's Civ. Law, 242; 1 Domat, B. 1. tit. 15, 1, 6, 7, 8; Poth. Contr. de Mandat, c. 1, 3, n. 34, 35, 36.

4. As to the degree of diligence which the mandatory is bound to exercise, see Mandatory; Negligence; Pothier, Mandat, h. t; Louis. Code, tit. 15 Code Civ. t. 13, c. 2 Story on Bailm. 163 to 195; 1 Bouv. Inst. n. 1073.



7. - 2. It may be dissolved by the death of the mandatory; for, being founded in personal confidence, it is not presumed to pass to his representatives, unless there is some special stipulation to that effect. But this principally applies to cases where the mandate remains wholly unexecuted; for if it be in part executed, there may in some cases, arise a personal obligation on the part of the representatives to complete it. Story on Bailm. 202.; 2 Kent's Com. 504, 4; Pothier, Mandat, c. 4, 1, n. 101.


9. The death of the mandator, in like manner, puts an end to the contract. See 2 Mason's R. 342; 8 Wheat. R. 174; 2 Kent's Com. 507; 1 Domat, B. 1, tit. 15, 4, n. 6, 7, 8; Pothier, Contract de Mandat, c. 4, 2, n. 103. But although an unexecuted mandate ceases with the death of the mandator, yet, if it be executed in part at that time, it is binding to that extent, and his representatives must indemnify the mandatory. Story on Bailm. 204, 205.

10. - 3. The contract of mandate may be dissolved by a change in the state of the parties; as if either party becomes insane, or, being a woman, marries before the execution of the mandate. Story on Bailm. 206; 2 Roper, Husb. and Wife, 69, 73; Salk. 117; Bac. Abr. Baron and Feme, E; 2 Kent's Com. 506,



13. So, if the mandator sells the property, it ceases upon the sale, if it be made known to the mandatory. 7 Ves. jr. 276; Story on Bailm. 207.

14. By the civil law the contract of mandate ceases by the revocation of the authority. Story on Bailm. 208; Code Civ. art. 2003 to 2008; Louis, Code, art. 2997.



. MANDATOR, contracts. The person employing another to perform a mandate. Story on Bailm. 138; 1 Brown, Civ. Law, 382; Halif. Anal. Civ. Law, 70.

MANDAVI BALLIVO, English law. The return made by a sheriff, when he has committed the execution of a writ to a bailiff of a liberty, who has the right to execute the writ.

MANHOOD. The ceremony of doing homage by the vassal to his lord was de- nominated homagium or manhood, by the feudists. The formula used was devenio vester homo, I become you Com. 54. See Homage.


2. - 1. Mania may be divided into intellectual and moral.

1. Intellectual mania is that state of mind which is characterised by certain hallucinations, in which the patient is impressed with the reality of facts or events which have never occurred, and acts in accordance with such belief; or, having some notion not altogether unfounded, carries it to an ex- travagant and absurd length. It may be considered as involving all or most of the operations of the understanding, when it is said to be general; or as be-ing confined to a particular idea, or train of ideas, when it is called partial.



5. Moral mania or moral insanity, (q. v.) is divided into, first, general, where all the moral faculties are subject to a general disturbance and secondly, partial, where one or two only of the moral powers are perverted.



8. - 2. In general, persons laboring under mania are not responsible nor bound for their acts like other persons, either in their contracts or for their crimes, and their wills or testaments are voidable. Vide Insanity; Moral Insanity. 2 Phiilim. Ecc. R. 69; 1 Hagg. Cons: R. 414; 4 Pick. R. 32; 3 Addams, R. 79; 1 Litt. R. 371.

MANIA A POTU. Insanity arising from the use of spirituous liquors. Vide Delirium Tremens.

MANIFEST, com. law. A written instrument containing a true account of the cargo of a ship or commercial vessel.

2. The Act of March 2, 1799, s. 23, requires that when goods, wares, or mer- chandise, shall be brought into the United States, from any foreign port or place, in any ship or vessel, belonging, in whole or in part to a citizen or inhabitant of the United States, the manifest shall be in writing, signed by the master of the vessel, and that it shall contain the names of the places where the goods in such manifest mentioned, shall have been respectively taken on board, and the places within the United States, for which they are respec tively consigned, particularly noticing the goods destined for each place, respectively; the name, description, and build of such vessel, and her true admeasurement or tonnage, the place to which she belongs, with the name of each owner, according to her register, the name of her master, and a just and particular account of the goods so laden on board, whether in package or stowed loose, of any kind whatsoever, with the marks and numbers on each package, the numbers and descriptions of the packages in words at length, whether leaguer, pipe, butt, puncheon, hogshead, barrel, keg, case, bale, pack, truss, chest, box, bandbox, bundle, parcel, cask, or package of any kind, describing each by its usual denomination; the names of the persons to whom they are respectively consigned, agreeably to the bills of lading, unless when the, goods are consigned to order, when it shall be so expressed; the names of the several passengers on; board, distinguishing whether cabin or steerage passengers, or both, with their baggage, specifying the number and description of packages belonging to each, respectively; together with an account of the remaining sea stores, if any. And if any merchandise be imported, destined for different districts, or ports, the quantities and packages thereof shall be inserted in successive order in the manifest; aud all spirits, wines aud teas, constituting the whole or any part of the cargo of any vessel, shall be inserted in successive order, distinguishing the ports to which they may be destined, and the kinds, qualities and quantities thereof; and if merchandise be imported by citizens or inhabitants of the United States, in vessels other than of the United States, the manifests shall be of the form and shall contain the particulars aforesaid, except that the vessel shall be specially described as provided by a form in the act. 1 Story's Laws, 593, 594.

3. The want of a manifest, where one is required, or when it is false, is severely punished.

MANIFEST, evidence. That which is clear and requires no proof; that which is noto- rious. See Notoriety.

MANIFESTO. A solemn declaration, by the constituted authorities of a nation, which contains the reasons for its public acts towards another.

2. On the declaration of war, a manifesto is usually issued in which the nation declaring the war, states the reasons for so doing. Vattel, liv. 3, c. 4, 64; Wolff, 1187. See Anti-Manifesto.

MANKIND. Persons of the male sex; but in a more general sense, it includes persons of both sexes; for example, the statute of 25 Hen. VIII., c. 6, makes it felony to commit, sodomy with mankind or beast. Females as well as males axe included under the term mankind. Fortesc. 91; Bac. Ab. Sodomy. See Gender.

MANNER AND FORM, pleading. After traversing any allegation in pleading, it is usual to say "in manner and form as he has in his declaration in that behalf alleged," which is as much as to include in the traverse, not only the mere fact opposed to it, but that in the manner and form in which it is stated by the other party. These words, however, only put in issue the substantial statement of the manner of tho fact traversed, and do not extend to the time, place, or other circumstances attending it, if they were not originally material and necessary to be proved as laid. 3 Bouv. Inst. p. 297. See Modo et forma.

MANNOPUS. An ancient word which signifies goods taken in the hands of an ap- prehended thief.













MANSTEALING. This word is sometimes used synonymously with kidnapping. The latter is more technical. 4 Bl. Com. 219.

MANU FORTI. With strong hand. (q. v.) This term is used in pleading in cases of forcible entry, and no other words are of equal import. Dane's Ab. ch. 132, a. 6; ch. 203, a. 12.

MANU OPERA. This has the same meaning with mannopus. (q. v.)

MANUAL. That which is employed or used by the hand, of which a present profit may be made. Things in the manual occupation of the owner cannot be distrained for rent. Vide Tools.

MANUCAPTIO, practice. In the English law it is a writ which lies for a man taken on suspicion of felony and the like, who cannot be admitted to bail by the sheriff, or others having power to let to mainprise. F. N. B. 249.

MANUCAPTORS. The same as mainpernors. (q. v.)


MANUMISSION, contracts. The agreement by which the owner or master of a slave sets him free and at liberty; the written instrument which contains this agreement is also called a manumission.

2. In the civil law it was different from emancipation, which, properly speaking, was applied to the liberation of children from paternal power. Inst. liv. 1, t. 5 & 12; Co. Litt. 137, a; Dane's Ab. h. t.





MARAUDER. One who, while employed in the army as a soldier, commits a larceny or robbery in the neighborhood of the camp, or while wandering away from the army. Merl. Repert. h. t.

MARC-BANCO. The name of a coin. The marc-banco of Hamburg, as money of account, at the custom-house, is deemed and taken to be of the value of thirty-five cents. Act of March 3, 1843.


MARETUM. Marshy ground overflowed by the sea or great rivers. Co. Litt. 5.

MARINARIUS. An ancient word which signified a mariner or seaman; in England marinarius capitaneus, was the admiral or warden of the ports.


MARINE CONTRACT. One which relates to business done or transacted upon the sea and in sea ports, and over which the courts of admiralty have jurisdiction concurrent with the courts of common law; such contracts include according to civilians and jurists among other things, charter parties, affreightments, marine hypothecations, contracts for the marine service in the building, re-pairing, supplying and navigating ships; contracts and quasi contracts respec- ting averages, contributions and jettisons, and policies of insurance. 2 Gall. R. 398, where Judge Story gave a very learned opinion on the subject.

MARINE INSURANCE, contracts. A contract by which one party, for a stipulated premium, undertakes to indemnify the other, against all perils or sea risks, to which his ship; freight or cargo, or some of them, may be exposed, during a certain voyage or fixed period of time. 1 Bouv. Inst. n. 1175, et seq. See Insurance Marine.

MARINE INTEREST, contracts. A compensation paid for the use and risk of money loaned on respondentia and bottomry; provided the money be loaned and put in risk, there is no limit as to the amount which may be lawfully charged by the lender. 2 Marsh. Ins. 749; Hall on Mar. Loans; Pothier, Pret a. la Grosse, n. 19; 1 Stuart's (L. C.) R. 130.

MARINE LEAGUE. A measure equal to the twentieth part of a degree. Bouch. Inst. n. 1845, not. Vide Cannon Shot; Sea.

MARINER. One whose occupation is to navigate vessels on the sea. Vide Seamen Shipping articles.

2. By act of congress, 1 Story, Laws of U. S., ch. 56, s. 4, p. 109, it is provided, that no sum exceeding one dollar shall be recovered from any seaman or mariner (in the merchant service,) by any person, for any debt contracted during the time such seaman or mariner shall actually belong to any ship or vessel, until the voyage for which such seaman or mariner engaged, shall be ended.

MARITAGIUM. Anciently that portion which was given with a daughter in marriage.

2. During the existence of the feudal law, it was the right which the lord of the fee had, under certain tenures, to dispose of the daughters of his vassal in marriage. By this word was also understood marriage. Beames' Glanv. 138, n; Bract. 21 a; Spelm. Gl. ad voc.; 2 Bl. Com. 69; Co. Litt. 21 b, 76 a.

MARITAL. That which belongs to marriage; as marital rights, marital duties.

2. Contracts made by a feme sole with a view to deprive her intended husband of his marital rights, with respect to her property, are a fraud upon him, and may be set aside in equity. By the marriage, the husband assumes the duty of paying her debts, contracted previous to the coverture, and of supporting her during its existence; and he cannot, therefore, be fraudulently deprived, by the intended wife, of those rights which enable him to perform the duties which attach to him. 2 Cha. R. 42; Newl. Contr. 424; 1 Vern. 408; 2 Vern. 17; 2 P. Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves. jr. 22; 2 Cox, R. 28; 2 Beav. 528; 2 Ch. R. 81; White's. L. C. in Eq. *277; 1 Hill, Ch. R. 1, 4; 13 Maine, R. 124; 1 McMull. Eq. R. 237 3 Iredell's Eq. R. 487; 4 Wash. C. C. R. 224.

MARITAL PORTION. In Louisiana, this name is given to that part of a deceased husband's estate, to which the widow is entitled. Civil Code, 334, art. 55; 3 Mart. N. S. 1.

MARITIME. That which belongs to or is connected with the sea.


2. There are maritime causes also for torts and injuries committed at sea.

3. In general, the courts of admiralty have a concurrent jurisdiction with courts of law, of all maritime causes: and in some cases they have exclusive jurisdiction.

MARITIME CONTRACT. One which relates to the navigation of the sea.

2. The admiralty has jurisdiction in case of the breach of such contract, whether it has been entered into on land or at sea. 4 Wash. C. C. R. 453; see 2 Gallis. 465; 2 Sumn. 1; Gilp. 529.

MARITIME LAW. That system of law which relates to the affairs of the sea, such as seamen, ships, shipping, navigation, and the like.

MARITIME LOAN. A contract or agreement by which one, who is the lender, lends to another, who is the borrower, a certain sum of money, upon condition that if the thing upon which the loan has been made, should be lost by any peril of the sea, or vis major, the lender shall not be repaid, unless what remains shall be equal to the sum borrowed; and if the thing arrive in safety, or in case it shall not have been injured, but by its own defects or the fault of the master or mariners, the borrower shall be bound to return the sum borrowed, together with a certain sum agreed upon as the price of the hazard incurred. Emer. Mar. Loans, c. 1, s. 2; Poth. h. t. Vide Bottomry; Gross Adventure; Interest, maritime; Respondentia.

MARITIME PROFIT, mar. law. The French writers use the term maritime profit to signify any profit derived from a maritime lean. Vide Interest maritime.






2. Markets are generally regulated by local laws.


MARKET OVERT, Engl. law. Market overt is an open or public market; that is, a place appointed by law or custom for the sale of goods and chattels at stated times in public.

2. In London, every day except Sunday, is market day. In the country, particular days are fixed for market days. 2 Bl. Com. 449.

3. It is a general rule that sales of vendible articles made in market overt, are good not only between the parties, but are also binding on all those who have any property or right therein. Id. 2 Chitt. Com. Law, 148 to 154; Com. Dig. Market, E; Bac. Abr. Fairs and Market, E; 5 B. & A. 624; Dane's Abr. chap. 45, a 2.

4. There is no law recognizing the effect of a sale in market overt in Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130; in New York; 1 Johns, 480; in Massachusetts; 8 Mass. R. 521; 14 Mass. R. 500; in Ohio; 5 Ohio, R. 203; nor in Vermont. 1 Tyl. R. 341; nor indeed in any of the United States. 10 Pet. 161.

MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52 Hen. III, A. D. 1267, so called because it was enacted at Marlebridge. Barr. on Stat. 58.

MARQUE AND REPRISAL. The name given to a commission granted by the supreme power of a state to a private person for the purpose of seizing the property of a foreign state or its subjects. Wheat. Law of Nations, 340. Vide Letters of Marque.









9. - 3. Impotency, (q. v.) which must have existed at the time of the marriage, and be incurable. 2 Phill. Rep. 10; 2 Hagg. Rep. 832.



















28. - 11. It makes all the issue legitimate.

Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h. t.; Com. Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr. 194; Ayl. Parergon, 359; 1 Bro. Civ. Law, 94; Rutherf. Inst. 162; 2 Supp. to Ves. jr. 334; Roper on Husband & Wife; Poynter on Marriage and Divorce; Merl. Repert. h. t.; Pothier, Traite du Contrat de Marriage; Toullier, h. t.; Chit. Pract. Index, h. t.; Dane's Ab. Index, h. t., Burge on the Confl. of Laws, Index, h. t.; Bouv. Inst. Index, h. t.

MARRIAGE BROKAGE. By this expression is meant the act by which a person interferes, for a consideration to be received by him, between a man and a woman, for the purpose of promoting a marriage between them. The money paid for such service is also known by this name.

2. It is a doctrine of the courts of equity that all marriage brokage contracts are utterly void, as against public policy; and are, therefore, incapable of confirmation. 1 Fonb. Eq. B. 1, ch. 4, s. 10, note a; 1 Story, Eq. Jur. 263; Newl. on Contr. 469.

MARRIAGE PORTION. That property which is given to a woman on her marriage. Vide Dowry.



MARRIAGE SETTLEMENT. An agreement made by the parties in contemplation of marriage by which the title to certain property is changed, and the property to some extent becomes tied up, and is rendered inalienable. Rice's Eq. R. 315. See 2 Hill, Ch. R. 3; Ril. Ch. Cas. 76; 8 Leigh, 29; 1 Dev. & Bat. Eq. 389; 2 Dev. & Bat. Eq. 103; 1 Bald. 344; 15 Mass. 106; 1 Yeates, 221; 7 Pet. 348; 4 Bouv. Inst. n. 3947. Vide Settlement, Contracts.















MARSHALLING SECURITIES, equity. When a party has two funds by which his debt is secured, and another creditor has a claim only on one of these funds, a court of equity will compel the creditor having a double security to resort to that fund which will leave the other creditor his security, this is called marshalling assets. 4 Bouv. Inst. n. 3788; 1 Story, Eq. Jur. 633 Amb. 91; 8 Ves. 389; 9 Ves. 209.

2. Marshalling of assets respects two different funds, and two different sets of parties, where one set can resort to either fund, the other only to one. It is grounded on obvious equity. It does no prejudice to anybody, and it effectuates the testator's intent. It takes place in favor of simple contract creditors, and of legatees, devisees and heirs, and in a few other cases, but not in favor of the next of kin. 4 Bro. C. C. 411; 1 P. Wms. 680.

3. The cases in which a court of equity marshals real and personal assets for the payment of simple contract debts and legacies, may be classed as follows: 1. Where there are specialty and simple contract debts and legacies and lands left to descend. In this case if the specialty creditors take a satisfaction for their debts out of the personal estate, the simple contract creditors first, and then the legatees, shall stand in the place of the specialty creditors, for obtaining satisfaction out of the lands, to the amount of so much as was received by the specialty creditors out of the personal estate.

4. - 2. Where there are specialty and simple contract debts, and lands are specifically devised. In this case if the creditors take a satisfaction for their debts out of the personal estate, the simple contract creditors shall stand in the place of the specialty creditors for obtaining a satisfaction out of the lands to the amount of so much as was received by the specialty creditors out of the personal estate, but then there can be no relief for the legatees, because there is as much equity to support the, specific devise of the lands, as to support the bequest of the legatees.

5. - 3. Where the debts are charged upon the lands. Here the legatees shall have the personal estate towards their satisfaction, and if the creditors take it in payment or towards the discharge of their debts, the legatees shall stand in their place pro tanto to have a discharge out of the lands.

6. - 4. When simple contract debts and legacies are both charged on the land. In this case the land shall be sold and all paid equally. 1 Madd. Ch. Pr. 617.

MARSHALSEA, English law. The name of a prison belonging to the court of the king's bench.

MARTIAL LAW. Vide Law Martial.

MARYLAND. One of the original states of the United States of America. The province of Maryland was included in the patent of the Southern or Virginia company; and upon the dissolution of that company, it reverted to the crown. Charles the First, on the 20th of June, 1632, granted it by patent to Lord Baltimore. Under this charter Maryland continued to be governed, with some short intervals of interruption, down to the period of the American Revolution, by the successors of the original proprietor. 1 Chalmer's Annals, 203.

2. Upon the revolution of 1688, the government of Maryland was seised into the hands of the crown, and was not again restored to the proprietary until 1716; from that period no alteration occurred until the American Revolution. Bacon's Laws of Maryland, 1692, 1716.

3. The original constitution of this state was adopted on the 14th day of August, 1776. The present constitution was adopted in 1851.

4. The powers of the government are distributed into the legislative, the executive, and the judicial.

5. - 1st. The legislature shall consist of two distinct branches, a senate and a house of delegates, which shall be styled "The general assembly of Maryland." Art. III. s. 1.

6. - 2. The general assembly shall meet on the first Wednesday of January, 1852, on the same day, in the year 1853, and on the same day, 1854, and on the same day in every second year thereafter, and at no other time, unless convened by the proclamation of the governor. Art. III. s. 7.

7. - 3. The senate will be considered with reference to the qualification of the electors; the qualification of the members; the length of time for which they are elected; and the time of their election. 1. Every free white male person of twenty-one years of age or upwards, who shall have been one year next preceding the election a resident of the state, and for six months a resident of the city of Baltimore, or of any county in which he may offer to vote, and being at the time of the election, a citizen of the United States, shall be entitled to vote in the ward or election district in which he re-sides, in all elections hereafter to be held; an& at all such elections the vote shall be taken by ballot. And in case any county or city shall be so divided as to form portions of different electoral districts for the election of congressmen, senator, delegate or other officer or officers, then to en-title a person to vote for such officer, he must have been a resident of that part of the county or city which shall form a part of the electoral district in which he offers to vote for six months next preceding the election: but a person who shall have acquired a residence in such county or city, entitling him to vote at any such election, shall be entitled to vote in the election district from which he remoted, until he shall have acquired a residence in the part of the county or city to which he has removed. Art. I. s. 1. 2. No person shall be eligible as a senator who at the time of his election is not a citizen of the United States, and who bas not resided at least three years next preceding the day of his election, in this state, and the last year thereof in the county or city which he may be chosen to represent, if such county or city shall have been so long established, and if not, then in the county from which, in whole or in part, the same may have been formed; nor shall any person be eligible as a senator unless he shall have attained the age of twenty-five years. No member of congress, or person bolding any civil or military office under the United States, shall be eligible as a senator; and if any person, after his election as a senator, be elected to congress, or be appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall vacate his seat. No minister or preacher of the gospel of any denomination, and no person holding any civil office of profit or trust under the state, except justices of the peace, shall be eligible as senator. Art. III. ss. 9, 10, 11. 3. Every county of the state, and the city of Baltimore, shall be entitled to elect one senator, who shall serve for four years from the day of their election. The first election shall take place on the first Wednesday of November, 1851, and an election for one-half the senators, as nearly as practicable, shall be held on the same day every second year thereafter. Art. III. 2, 3, 4, 5.

8. - 4. The house of delegates will be treated of in the same manner which has been observed in considering the senate. 1. The electors are qualified in the same manner as the electors of the senate. 2. No person shall be a delegate who shall not have attained the age of twenty-one years; the other qualifications are the same as those for a senator. 3. The whole number of delegates shall never exceed eighty, nor be less than sixty-five, and shall be apportioned among the several counties according to the population of each, the city of Baltimore to have four more delegates than the most populous county; no county to have less than two delegates, the apportionment to be made after the returns of the national census in 1860 are published, and in like manner after each subsequent census. They are to serve two years from the day of their election, which takes place on the same day as that for senators.

9. - 1. The executive power of the state shall be vested in a governor, whose term of office shall commence on the second Wednesday of January next ensuing his election, and continue for four years, and until his successor shall have qualified.

10. - 2. The first election for governor under this constitution shall be held on the first Wednesday of November, in the year eighteen hundred and fifty-three, and on the same day and month in every fourth year thereafter, at the places of voting for delegates to the general assembly, and every person qualified to vote for delegates shall be qualified, and entitled to vote for governor; the election to be held in the same manner as the election of dele-gates, and the returns thereof, under seal, to be addressed to the speaker of the house of delegates, and enclosed and transmitted to the secretary of state, and delivered to the said speaker at the commencement of the session of the legislature next ensuing said election.

11. - 3. The speaker of the house of delegates shall then open the said returns in the presence of both houses, and the person having the highest number of votes, and being constitutionally eligible, shall be the governor, and shall qualify in the manner herein prescribed, on the second Wednesday of January next ensuing his election, or as soon thereafter as may be practicable.

12. - 4. If two or more persons shall have the highest and an equal number of votes, one of them shall be chosen governor by the senate and house of delegates; and all questions in relation to the eligibility of governor, and to the returns of said election, and to the number and legality of votes therein given, shall be determined by the house of delegates. And if the person or persons having the highest number of votes be ineligible, the governor shall be chosen by the senate and house of delegates. Every election of governor, by the legislature, shall be determined by a joint majority of the senate and house of delegates, and the vote shall be taken viva voce. But if two or more persons shall have the highest and an equal number of votes, then a second vote shall be taken, which shall be confined to the persons having an equal number; and if the votes should again be equal, then the election of governor shall be determined by lot between those who shall have the highest and an equal number on the first vote.

13. - 5. The state shall be divided into three districts. St. Mary's, Charles, Calvert, Prince George's, Anne Arundle, Montgomery, and Howard counties, and the city of Baltimore to be the first; the eight counties of the Eastern shore to be the second; and Baltimore, Harford, Frederick, Washington, Allegany, and Carroll counties, to be the third. The governor, elected from the third district in October last, shall continue in office during the term for which he was elected. The governor shall be taken from the first district, at the first election of governor under this constitution; from the second district at the second election, and from the third district at the third election, and in like manner, afterwards, from each district, in regular succession.

14. - 6. A person to be eligible to the office of governor, must have attained the age of thirty years, and been for five years a citizen of the United States, and for five years next preceding his election a resident of the state, and for three years a resident of the district from which he was elected.

15. - 7. In case of the death or resignation of the governor, or of his removal from the state, the general assembly, if in session, or if not, at their next session, shall elect some other qualified resident of the same district, to be the governor for the residue of the term for which the said governor had been elected.

16. - 8. In case of any vacancy in the office of governor during the recess of the legislature, the president of the senate shall discharge the duties of said office till a governor is elected as herein provided for; and in case of the death or resignation of said president, or of his removal from the state, or of his refusal to serve, then the duties of said office shall, in like manner, and for the same interval, devolve upon the speaker of the house of dele-gates, and the legislature may provide by law for the case of impeachment or inability of the governor, and declare what person shall perform the executive duties during such impeachment or inability; and for any vacancy in said office, not herein provided for, provision may be made by law, and if such vacancy should occur without such provision being made, the legislature shall be convened by the secretary of state for the purpose of filling said vacancy.

17. - 9. The governor shall be commander-in-chief of the land and naval forces of the state, and may call out the militia to repel invasions, suppress insurrections, and enforce the execution of the laws; but shall not take the command in person without the consent of the legislature.

18. - 10. He shall take care that the laws be faithfully executed.

19. - 11. He shall nominate, and by and with the advice and consent of the senate, appoint all civil and military officers of the state, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office.

20. - 12. In case of any vacancy during the recess of the senate, in any office which the governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force till the end of the next session of the legislature, or till some other person is appointed to the same office, whichever shall first occur, and the nomination of the person thus a pointed during the recess, or of some other person in his place, shall be made to the senate within thirty days after the next meeting of the legislature.

21. - 13. No person, after being rejected by the senate, shall be again nominated for the same office at the same seision, unless at the request of the senate; or be appointed to the same office during the recess of the legislature.

22. - 14. All civil officers appointed be the governor and senate shall be nominated to the senate within fifty days from the commencement of each regular session of the legislature; and their term of office shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless sooner removed from office) and until their successors, respectively, qualify according to law.

23. - 15. The governor may suspend or arrest any military officer of the state for disobedience of orders, or other military offence, and may remove him in pursuance of the sentence of a court-martial; and may remove for incompetency or misconduct, all civil officers, who receive appointments from the executive for a term not succeeding two years.

24. - 16. The governor may convene the legislature, or the senate alone, on extraordinary occasions; and whenever, from the presence of an enemy or from any other cause, the seat of government shall become an unsafe place for the meeting of the legislature, he may direct their sessions to be held at some other convenient place.

25. - 17. It shall be the duty of the governor semi-annually, and oftener if he deem it expedient, to examine the bankbook, account books, and official proceedings of the treasurer anA comptroller of the state.

26. - 18. He shall, from time to time, inform the legislature of the condition of the state, and recommend to their consideration such measures as he may judge necessary and expedient.

27. - 19. He shall have power to grant reprieves and pardons, except in cases of impeachment, and in cases in which he is prohibited by other articles of this constitution, and to remit fines and forfeitures for offences against the state; but shall not remit the principal or interest of any debt due to the state, except in cases of fines and forfeitures; and before granting a nolle prosequi, or pardon, he shall give notice, in one or more newspapers, of the application made for it, and of the day on or after which his decision will be given; and in every case in which he exercises this power, he shall report to either branch of the legislature. Whenever required, the petitions, recommendations and reasons which influence his decision.

28. - 20. The governor shall reside at the seat of government, and shall receive for his services an annual salary of thirty-six hundred dollars.

29. - 21. When the public interest requires it, he shall have power to employ counsel, who shall be entitled to such compensation as the legislature may allow in each case after the services of such counsel shall have been performed.

29. - 22. A secretary of state shall be appointed by the governor, by and with the advice and consent of the senate, who shall continue in office, unless sooner removed by the governor, till the end of the official term of the governor from whom he received his appointment, and shall receive an annual salary of one thousand dollars.

30. - 23. He shall carefully keep and preserve a record of all official acts an proceedings (which may, at all times, be inspected by a committee of either branch of the legislature,) and shall perform such other duties as may be prescribed by law or as may properly belong to his office.

31. - 3d. The judicial power of this state shall be vested in a court of appeals, in circuit courts, in such courts for the city of Baltimore as may be hereinafter prescribed, and in justices of the peace.

32. - 2. The court of appeals shall have appellate jurisdiction only, which shall be co-extensive with the limits of the state. It shall consist of a chief justice and three associate justices, any three of whom shall form a quorum, whose judgment shall be final and conclusive in all cases of appeals; and who shall have the jurisdiction which the present court of appeals of this state now has, and such other appellate jurisdiction as hereafter may be provided for by law. And in every case decided, an opinion, in writing, shall be filed, and provision shall be made, by law, for publishing reports of cases argued and determined in the said court. The governor, for the time being, by and with the advice and consent of the senate, shall designate the chief justice, and the court of appeals shall hold its sessions at the city of Annapolis, on the first Monday of June, and the first Monday of December, in each and every year.

33. - 3. The state shall be divided into four judicial districts: Allegany, Washington, Frederick, Carroll, Baltimore, and Harford counties, shall compose the first; Montgomery, Howard, Anne Arundel, Calvert, St. Mary's, Charles and Prince George's, the second; Baltimore city, the third; and Cecil, Kent, Queen Anne's, Talbot, Caroline, Dorchester, Somerset, ana Worcester, shall compose the fourth district. And one person from among those learned in the law having been admitted to practice in this this state at least, five years, and above the age of thirty years at the time of his election, and a resident of the judicial district, shall be elected from each of said districts by the legal and qualified voters therein, as a judge of the said court of appeals, who shall hold his office for the term of ten years from the time of his election, or until he shall have attained the age of seventy years, whichever may first happen, and be reeligible thereto until he shall have attained the age of seventy years, and not after, subject to removal for incompetency, wilful neglect of duty, or misbehaviour in office, on conviction in a court of law, or by the governor upon the address of the general assembly, two-thirds of the members of each house concurring in such address; and the salary of each of the judges of the court of appeals shall be two thousand five hundred dollars annually, and shall not be increased or diminished during their continuance in office; and no fees or perquisites of any kind, shall be allowed by law to any of the said judges.

34. - 4. No judge of the court of appeals shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degrees as may be prescribed by law, or when he shall have been of counsel in said case; when the court of appeals, or any of its members shall be thus disqualified to bear and determine any case or cases in said court, so that by reason thereof no judgment can be rendered in said court, the same shall be certified to the governor of the state, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of said case or cases.

35. - 5. All judges of the court of appeals, of the circuit courts, and of the courts for the city of Baltimore, shall, by virtue of their offices, be conservator's of the peace throughout the state.

36. - 6. All public commissions and grants shall run thus: "The State of Maryland," &c., and shall be signed by the governor, with the seal of the state annexed; all writs and process shall run in the same style, and be tested, sealed and signed as usual; and all indictments shall conclude "against the peace, government and dignity of the state."

37. - 7. The state shall be divided into eight judicial circuits, in manner and form following, to wit; St. Mary's, Charles, and Prince George's counties shall be the first: Anne, Arundel, Howard, Calvert and Montgomery counties shall be the second; Frederick and Carroll counties shall be the third; Washington and Allegany counties shall be the fourth; Baltimore city shall be the fifth; Baltimore, Harford and Cecil counties shall be the sixth; Kent, Queen Anne's, Talbot and Caroline counties shall be the seventh; and Dorchester, Somerset and Worcester counties shall be the eighth; and there shall be elec-ted, as hereinafter directed, for each of the said judicial circuits, except the fifth, one person from among those learned in the law, having been admitted to practice in this state, and who shall have been a citizen of this state at least five years, and above the age of thirty years at the time of his election, and a resident of the judicial circuit, to be judge thereof; the said judges shall be styled circuit judges, and shall respectively hold a term of their courts at least twice in each year, or oftener if required by law, in each county composing their respective circuits; and the said courts shall be called circuit courts for the county in which they may be held, and shall have and exercise in the several counties of this state, all the power, authority and jurisdiction which the county courts of this state now have and exercise, or which may hereafter be prescribed by law, and the said judges in their re-spective circuits, shall have and exercise all the power, authority and jurisdiction of the present court of chancery of Maryland; provided, nevertheless, that Baltimore county court may hold its sittings within the limits of the city of Baltimore, until provision shall be made by law for the location of a county seat within the limits of the said county proper, and the erection of a court house and all other appropriate buildings, for the convenient administration of justice in said court.

38. - 8. The judges of the several judicial circuits shall be citizens of the United States, and shall have resided five years in this state, and two years in the judicial circuit for which they may be respectively elected, next before the time of their election, and shall reside therein while they continue to act as judges; they shall be taken from among those who, having the other qualifications herein prescribed, are most distinguished for integrity, wisdom and sound legal knowledge, and shall be elected by the qualified voters of the said circuits, and shall hold their offices for the term of ten years, removable for misbehaviour, on conviction in a court of law or by the governor, upon the address of the general assembly, provided that two-thirds of the members of each house shall concur in such address, and the said judges shall each receive a salary of two thousand dollars a year, and the same shall not be increased or diminished during the time of their continuance in office; and no judge of any court in this state, shall receive any perquisite, fee, commission or reward, in addition thereto, for the performance of any judicial duty.

39. - 9. There shall be established for the city of Baltimore one court of law, to be styled "the court of common pleas," which shall have civil jurisdiction in all suits where the debt or damage claimed shall be over one hundred dollars, and shall not exceed five hundred dollars; and shall, also, have jurisdiction in all cases of appeal from the judgment of justices of the peace in the said city, and shall have jurisdiction in all applications for the benefit of the insolvent laws of this state, and the supervision and control of the trustees thereof.

40. - 10. There shall also be established, for the city of Baltimore, another court of law, to be styled the superior court of Baltimore city, which shall have jurisdiction over all suits where the debt or damage claimed shall exceed the sum of five hundred dollars, and in case any plaintiff or plain-tiffs shall recover less than the sum or value of five hundred dollars, he or they shall be allowed or adjudged to pay costs in the discretion of the court. The said court shall also have jurisdiction as a court of equity within the limits of the said city, and in all other civil cases which have not been heretofore assigned to the court of common pleas.

41. - 11. Each of the said two courts shall consist of one judge, who shall be elected by the legal and qualified voters of the said city, and shall bold his office for the term of ten years, subject to the provisions of this constitution, with regard to the election and qualification of judges and their removal from office, and the salary of each of the said judges shall be twenty-five hundred dollars a year; and the legislature shall, wherever it may think the same proper and expedient, provide, by law, another court for the city of Baltimore, to consist of one judge to be elected by the qualified voters of the said city, who shall be subject to the same constitutional provisions, hold his office for the same term of years, and receive the same compensation as the judge of the court of common pleas of the said city, and the said court shall have such jurisdiction and powers as may be prescribed by law.

42. - 12. There shall also be a criminal court for the city of Baltimore, to be styled the criminal court of Baltimore, which shall consist of one judge, who shall also be elected by the legal and qualified voters of the said city, and who shall have and exercise all the jurisdiction now exercised by Baltimore city court, and the said judge shall receive a salary of two thousand dollars a year, and shall be subject, to the provisions of this constitution with regard to the election and qualifications of judges, term of office, and removal therefrom.

43. - 13. The qualified voters of the city of Baltimore, and of the several counties of the state, shall, on the first, Wednesday of November, eighteen hundred and fifty-one, and on the same day of the same month in, every fourth year forever thereafter, elect three men to be judges of the orphans' court of said city and counties respectively, who shall be citizens of the state of Maryland, and citizens of the city or county for which they may be severally elected at the time of their eiection. They shall have all the powers now vested in the orphans' courts of this state, subject to such changes therein as the legislature may prescribe, and each of said judges shall be paid at a per diem rate, for the time they are in session, to be fixed by the legislature, and paid by the said counties and city respectively.

44. - 14. The legislature, at its first session after the adoption of this constitution, shall fix the number of justices of the peace and constables for each ward of the city of Baltimore, and for each election district in the several counties, who shall be elected by the legal and qualified voters thereof respectively, at the next general election for delegates thereafter, and shall hold their offices for two years from the time of their election, and until their successors in office are elected and qualified; and the legislature may, from time to time, increase or diminish the number of justices of the peace and constables to be elected in the several wards and election districts, as the wants and interests of the people may require. They shall be, by virtue of their offices, conservators of the peace in the said counties and city respectively, and shall have such duties and compensation as now exist, or may be provided for by law. In the event of a vacancy in the office of a justice of the peace, the governor shall appoint a person to serve as justice of the peace, until the next regular election of said officers, and in case of a vacancy in the office of constable, the county commissioners of the county, in which a vacancy may occur, or the mayor and city council of Baltimore, as the case may be, shall appoint a person to serve as constable until the next regular election thereafter for said officers. An appeal shall lie in all civil cases from the judgment of a justice of the peace to the circuit court, or, to the court of common pleas of Baltimore city, as the case way be, and on all such appeals, either party shall be entitled to a trial by jury, according to the laws now existing, or which way be hereafter enacted. And the mayor and city council may provide, by ordinance, from time to time, for the creation and government of such temporary additional police, as they may deem necessary to preserve the public peace.

45. - 15. No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consan-guinity, within such degrees as may be prescribed by law, or where he shall have been of counsel in the case and whenever any of the judges of the circuit courts, or of the courts for Baltimore city, shall be thus disqualified, or whenever, by reason of sickness, or any other cause, the said judges, or any of them, may be unable to sit in any cause, the parties may, by consent, appoint a proper person to try the said cause, or the judges, or any of them, shall do so when directed by law.

46. - 16. The present chancellor and the register in chancery, and, in the event of any vacancy in their respective offices, their successors in office respectively, who are to be appointed as at present, by the governor and senate, shall continue in office, with the powers and compensation as at present established, until the expiration of two years after the adoption of this constitution by the people, and until the, end of the session of the legislature next thereafter, after which the said offices of chancellor and register shall be abolished. The legislature shall, in the mean time, provide by law for the recording, safe-keeping, or other disposition, of the records, decrees and other proceedings of the court of chancery, and for the copying and attestation thereof, and for the custody and use of the great seal of the state, when required, after the expiration of the said two years, and for transmitting to the said counties, and to the city of Baltimore, all the cases and proceedings in said court then undisposed of and unfinished, in such manner, and under such regulations as may be deemed necessary and proper: Provided, that no new business shall originate in the said court, nor shall any cause be removed to the same from any other court, from and after the ratification of this constitution.

47. - 17. The first election of judges, clerks, registers of wills, and all other officers, whose election by the people is provided for in this article of the constitution, except justices of the peace and constables, shall take place throughout the state on the first Wednesday of November next after the ratification of this constitution by the people.

48. - 18. In case of the death, resignation, removal, or other disqualification of a judge of any of the courts of law, the governor, by and with the advice and consent of the senate, shall thereupon appoint a person, duly quali-fied, to fill said office until the next general election for delegates thereafter; at which time an election shall be held as hereinbefore prescribed, for a judge, who shall hold the said office for ten years, according to the provisions of this constitution.

49. - 19. In case of the death, resignation, removal, or other disqualification of the judge of an orphans' court, the vacancy shall be filled by the appointment of the governor, by and with the advice and consent of the senate.

50. - 20. Whenever lands lie partly in one county, and partly in another or partly in a county and partly in the city of Baltimore, or whenever persons proper to be made defendants to proceedings in chancery, reside some in one county and some in another, that court shall have jurisdiction in which proceedings shall have been first commenced, subject to such rules, regulations and alterations as may be prescribed by law.

51. - 21. In all suits or actions at law, issues from the orphans' court or from any court sitting in equity, in petitions for freedom, and in all pre-sentments and indictments now pending, or which may be pending at the time of the adoption of this constitution by the people, or which may hereafter be instituted in any of the courts of law of this state, having jurisdiction thereof, the judge or judges thereof, upon suggestion in writing, if made by the state's attorney, or the prosecutor for the state, or upon suggestion in writing, supported by affidavit, made by any of the parties thereto, or other proper evidence, that a fair and impartial trial cannot be had in the court where such suit or action at law, issues or petitions, or presentment and indictment is depending, shall order and direct the record of proceedings in such suit or action, issues or petitions, presentment or indictment, to be transmitted to the court of any adjoining county; provided, that the removal in all civil causes be confined to an adjoining county within the judicial circuit, except as to the city of Baltimore, where the removal may be to an adjoining county, for trial, which court shall hear and determine the same in like manner as if such suit or action, issues or petitions, presentment or indictment, had been originally instituted therein; and provided also, that such suggestion shall be made as aforesaid, before or during the term in which the issue or issues may be joined in said suit or action, issues or petition, presentment or indictment, and that such further remedy in the premises may be provided by law, as the legislature shall from time to time direct and enact.

52. - 22. All election of judges, and other officers provided for by this constitution, shall be certified, and the returns made by the clerks of the respective counties to the governor, who shall issue commissions to the different persons for the offices to which they shall have been respectively elected; and in all such elections, the person having the greatest number of votes, shall be declared to be elected.

53. - 23. If, in any case of election for judges, clerks of the courts of law and registers of wills, the opposing candidates shall have an equal number of votes, it shall be the duty of the governor to order a new election; and in case of any contested election, the governor shall send the returns to the house of delegates, who shall judge of the election and qualification of the candidates at such election.

MASCULINE. That which belongs to the male sex.

2. The masculine sometimes includes the feminine, vide an example under the article Man, and see also the articles Gender, Worthiest of blood; Poth. Intr. au titre 16, des Testamens et Donations Testamentaires, n. 170; Ayl, Pand. 57; 4 C. & P. 216; S. C. 19 E. C. L. R. 551 3 Fred. Code, pr. 1, b. 1, t. 4, s. 3; 3 Brev. R. 9.









9. - 2. The electors are required to elect annually a lieutenant governer. When the office of governor happens to be vacant he acts as governor, and at other times he is a member of the council. Part 2, c. 2, s. 2, art. 2 and 3.












MASTER IN CHANCERY. An officer of the court of chancery.












MATER FAMILIAS, civil law. The mother of a family, and, by extension, the mistress of a family.

MATERIAL MEN. This name is given to persons who furnish materials for the purpose of constructing or erecting ships, houses, and other buildings.

2. By the common law material men have a lien on a foreign ship for supplies of materials furnished for such ship, which may be recovered in the admiralty. 9 Wheat. 409. But they have no lien for furnishing materials for repairs of domestic ships. Wheat. 438.

3. In several of the states, laws have been enacted giving material men a lien on houses and other buildings when they have furnished materials for constructing the same.

MATERIALITY. That which is important; that which is not merely of form but of substance.

2. When a bill for discovery has been filed, for example, the defendant must answer every material fact which is charged in the bill, and the test in these cases seems to be that when, if the defendant should answer in the affirmative, his answer would be of use to the plaintiff, the answer would be mate-rial, and it must be made. 4 Price, R. 364; 13 Price, R. 291; 2 Y. & J. 385.

3. In order to convict a witness of a perjury, it is requisite to prove that the matter he swore to was material to the question then depending. Vide 3 Chit. Pr. 233; 3 Dowl. 104; 10 Bing. 340; Perjury.

MATERIALS. Everything of which anything is made.

2. When materials are furnished to a workman he is bound to use them according to his contract, as a tailor is bound to employ the cloth I furnish him with, to make me a coat that shall fit me, for if he so make it that I cannot wear it, it is not a proper employment of the materials. But if the undertaker use ordinary skill and care, he will not be responsible, although the mate-rials may be injured; as, if a gem be delivered to a jeweler, and it is broken without any unskilfulness, negligence or rashness of the artisan, he will not be liable. Poth. Louage, n. 428.

3. The workman is to use ordinary diligence in the care of the materials entrusted with him, or to exercise that caution which a prudent man takes of his own affairs, and he is also bound to preserve them from any unexpected danger to which they may be exposed. 1 Gow. R. 30; 1 Camp. 138.

4. When there is no special contract between the parties, and the materials perish while in the possession of the workman or undertaker, without his default, either by inevitable casualty, by internal defect, by superior force, by robbery or by any peril not guarded against by ordinary diligence, he is not responsible. This is the case only when the material belongs to the em-ployer and the workman only undertakes to put his work upon it. But a distinction must be observed in the case when the employer has engaged a workman to make him an article out of his own materials, for in that case the employer has no property in it, until the work be completed, and the article be deli-vered to him; if, in the mean time, the thing perishes, it is the loss of the workman, who is wholly its owner, according to the maxim res perit domino. In the former case the employer is the owner; in the latter the workman; in the first case it is a bailment, in the second a sale of the thing in futuro. Domat. B. 1, t. 4, 7, n. 3; Id. B. 1, t. 4, 8, n. 10.

5. Another distinction must be made in the case when the thing given by the employer was to become the property of the workman, and an article was to be made out of similar materials, and before its completion it perished. In this case the title to the thing having passed to the workman, the loss must be his. 1 Blackf. 353; 7 Cowen, 752, 756, note; 21 Wend. 85; 3 Mason, 478; Dig. 19, 2, 31; 1 Bouv. Inst. 1006-7.

6. In some of the states by their laws persons who furnish materials for the construction of a building, have a lien against such building for the payment of the value of such materials. See Lien of Mechanics.

MATERNA MATERNIS. This expression is used in the French law to signify that in a succession the property coming from the mother of a deceased person, descends to his maternal relations.

MATERNAL. That which belongs to, or comes from the mother: as, maternal authority, maternal relation, maternal estate, maternal line. Vide Line.

MATERNAL PROPERTY. That which comes from the mother of the party, and other ascendants of the maternal stock. Domat, Liv. Prel. tit. 3, s. 2, n. 12. MATERNITY. The state or condition of a mother.

2. It is either legitimate or natural. The former is the condition of the mother who has given birth to legitimate children, while the latter is the condition of her who has given birth to illegitimate children. Maternity is always certain, while the paternity (q. v.) is only presumed.

MATERTERA. Maternal aunt; the sister of one's mother. Inst. 3, 4, 3; Dig. 38, 10, 10, 14.

MATHEMATICAL EVIDENCE. That evidence which is established by a demonstration. It is used in contradistinction to moral evidence. (q. v.)

MATRICULA, civil law. A register in which are inscribed the names of persons who become members of an association or society. Dig. 50, 3, 1. In the ancient church there was matricula clericorum, which was a catalogue of the officiating clergy; and matricula pauperum, a list of the poor to be relieved; hence to be entered in the university is to be matriculated.




MATRIMONY. See Marriage.

MATRINA. A godmother.

MATRON. A married woman, generally an elderly married woman.

2. By the laws of England, when a widow feigns herself with child, in order to exclude the next heir, and a supposititious birth is expected, then, upon the writ de ventre inspiciendo, a jury of women is to be, impanneled to try the question, whether with child or not. Cro, Eliz. 566. So when a woman was sentenced to death, and she declared herself to be quick with child, a jury of matrons is impanneled to try whether she be or be not with child. 4 Bl. Com. 395. See Pregnancy; Quick with child.


MATTER IN PAYS. Literally, matter in the country; matter of fact, as distinguished from matter of law, or matter of record. Steph. Pl. 197. Vide Country.

MATTER IN DEED. Matter in deed is such matter as may be proved or established by a deed or specialty. In another sense it signifies matter of fact, in contradistinction to matter of law. Co. Litt. 320; Steph. Pl. 197.

MATTER OF FACT, pleading. Matter which goes in denial of a declaration, and Dot in avoidance of it. Bac. Ab. Pleas, &c. G 3; Hob. 127.

MATTER OF LAW, pleading. That which goes in avoidance of a declaration or other pleading, on the ground that the law does not authorize them. It does not deny the matter or fact contained in such pleading, but admitting them avoids them. Bac. Ab. Pleas, &c. G 3. Matter of law, is that which is referred to the decision of the court; matter of fact that which is submitted to the jury.

MATTER OF RECORD. Those facts which may be proved by the production of a record. It differs from matter in deed, which consists of facts which may be proved by specialty. Vide Estoppel.




MATURITY. The time when a bill or note becomes due. In order to bind the endorsers such note or bill must be protested, when not paid, on the last day of grace. See Days of grace.










Abundans cautela non nocet. Abundant caution does no harm. 11 Co. 6.



















Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur. A hidden ambiguity of the words is supplied by the verification, for whatever ambiguity arises concerning the deed itself is removed by the verification of the deed. Bacon's Max. Reg. 23.









Animus ad se omne jus ducit. It is to the intention that all law applies.




Argumentum a majori ad minus negative non valet; valet e converso. An argument from the greater to the less is of no force negatively; conversely it is. Jenk. Cent. 281.










Bonum defendentis ex integra causa, malum ex quolibet defectu. The good of a defendant arises from a perfect case, his harm from some defect. 11 Co. 68.





Catalla juste possessa amitti non possunt. Chattels justly possessed cannot be lost. Jenk. Cent. 28.



Caveat emptor. Let the purchaser beware.

Cavendum est a fragmentis. Beware of fragments. Bacon, Aph. 26.


C'est le crime qui fait la honte, et non pas l'echafaud. It is the crime which causes the shame, and not the scaffold.








Commodum ex injuria sua non habere debet. No man ought to derive any benefit of his own wrong. Jenk. Cent. 161.

Communis error facit jus. A common error makes law. What was af first illegal, being repeated many times, is presumed to have acquired the force of usage, and then it would be wrong to depart from it. The converse of this maxim is communis error no facit just. A common error does not make law.


Confirmare nemo potest priusquam just ei acciderit. No one can confirm before the right accrues to him. 10 Co. 48.






Consentientes et agentes pari poena plectentur. Those consenting and those perpetrating are embraced in the same punishment. 5 Co. 80.






Consuetudo est optimus interpres legum. Custom is the best expounder of the law. 2 Co. Inst. 18; Dig. 1, 3, 37; Jenk. Cent. 273.











Contractus legem ex conventione accipiunt. The agreement of the parties makes the law of the contract. Dig. 16, 3, 1, 6.

Contractus ex turpi causa, vel contra bonos mores nullus est. A contract founded on a base and unlawful consideration, or against good morals, is null. Hob. 167; Dig. 2, 14, 27, 4.







Cujus per errorem dati repetitio est, ejus consulto dati donatio est. Whoever pays by mistake what he does not owe, may recover it back; but he who pays, knowing he owes nothing; is presumed to give.




Culpa tenet suos auctores. A fault finds its own.






















Debita sequuntur personam debitoris. Debts follow the person of the debtor. Story, Confl. of Laws, §362.











Dilationes in lege sunt odiosae. Delays in law are odious.











Donatio non praesumitur. A gift is not presumed.














Electiones fiant rite et libere sine interruptione aliqua. Elections should be made in due form and freely, without any interruption. 2 Co. Inst. 169.










































Facta sunt potentiora verbis. Facts are more powerful than words.


Factum negantis nulla probatio. Negative facts are not proof.







Fiat justitia ruat coelum. Let justice be done, though the heavens should fall.

Felonia implicatur in quolibet proditione. Felony is included or implied in every treason. 3 Co. Inst. 15.



Fictio est contra veritatem, sed pro veritate habetur. Fiction is against the truth, but it is to have truth.
















Fraus latet in generalibus. Fraud lies hid in general expressions.



















Haeredem est nomen collectivum. Heir is a collective name.









Hominum causa jus constitutum est. Law is established for the benefit of man.














































In majore summa continetur minor. In the greater sum is contained the less. 5 Co. 115.



In maxima potentia minima licentia. In the greater power is included the smaller license. Hob. 159.











In propria cuusa nemo judex. No one can be judge in his own cuase.




In republica maxime conservanda sunt jura belli. In the state the laws of war are to be greatly preserved. 2 Co. Inst. 58.









Inclusio unius est exclusio alterius. The inclusion of one is the exclusion of another. 11 Co. 58.





Index animi sermo. Speech is the index of the mind.















































Jura naturae sunt immutabilia. The laws of nature are unchangeable.






















Lata culpa dolo aequiparatur. Gross negligence is equal to fraud.

Le contrat fait la loi. The contract makes the law.





















Lex est ab aeterno. The law is from everlasting.


Lex est norma recti. Law is a rule of right.



Lex favet doti. The law favors dower.

















Lex punit mendacium. The law punishes falsehood.


Lex reprobat moram. The law dislikes delay.



Lex succurit ignoranti. The laws succor the ignorant.













Magister rerum usus; magistra rerum experientia. Use is the master of things; experience is the mistress of things. Co. Litt. 69, 229.





Major haeriditas venit unicuique nostrum a jure et legibus quam a parentibus. A greater inheritance comes to every one of us from right and the laws than from parents. 2 Co. Inst. 56.





Majus est delictum seipsum occidare quam alium. It is a greater crime to kill one's self than another.











Mandata licita recipiunt strictam interpretationem, sed illicita latam et extensam. Lawful commands receive a strict interpretation, but unlawful, a wide or broad construction. Bacon's Max. Reg. 16.





Matrimonia debent esse libera. Marriages ought to be free.


Maxime ita dicta quia maxima ejus dignitas et certissima auctoritas, atque quod maxime omnibus probetur. A maxim is so called because its dignity is chiefest, and its authority most certain, and because universally approved by all. Co. Litt. 11.














Minima paena corporalis est major qualibet pecuniaria. The smallest bodily punishment is greater than any pecuniary one. 2 Inst. 220.



Minor minorem custodire non debet, alios enim praesumitur male regere qui seipsum regere nuscit. A minor ought not to be guardian of a minor, for he is unfit to govern others who does not know how to govern himself. Co. Litt. 88.








Mora reprobatur in lege. Delay is disapproved of in law.


Mortuus exitus non est exitus. To be dead born is not to be born. Co. Litt. 29. See 2 Paige, 35; Domat, liv. prel. t. 2, s. 1, n. 4, 6; 2 Bouv. Inst. n. 1721 and 1935.



Multa non vetat lex. quae tamen tacite damnavit. The law forbids many things, which yet it has silently condemned.






















Negatio duplex est affirmatio. A double negative is an affirmative.








Nemo contra factum suum venire potest. No man can contradict his own deed. 2 Inst. 66.

Nemo damnum facit, nisi qui id fecit quod facere jus non habet. No one is considered as committing damages, unless he is doing what he has no right to do. Dig. 50, 17, 151.



Nemo debet esse judex in propria causa. No one should be judge in his own cause. 12 Co. 113.

Nemo debet ex aliena jactura lucrari. No one ought to gain by another's loss.



Nemo est haeres viventes. No one is an heir to the living. 2 Bl. Com. 107; 1 Vin. Ab. 104, tit. Abeyance; Merl. Rep. verbo Abeyance; Co. Litt. 342; 2 Bouv. Inst. n. 1694, 1832.











Nemo potest esse tenes et dominus. No man can be at the same time tenant and landlord of the same tenement.



Nemo praesumitur alienam posteritatem suae praetulisse. No one is presumed to have preferred another's posterity to his own.

Nemo praesumitur donare. No one is presumed to give.

Nemo praesumitur esse immemor suae aeternae salutis, et maxime in articulo mortis. No man is presumed to be forgetful of his eternal welfare, and particularly at the point of death. 6 Co. 76.

Nemo praesumitur malus. No one is presumed to be bad.






Nemo punitur sine injuria, facto, seu defalto. No one is punished unless for some wrong, act or default. 2 Co. Inst. 287.















Nihil infra regnum subditos magis conservat in tranquilitate et concordia quam debita legum administratio. Nothing preserves in tranquility and concord those who are subjected to the same government better than a due administration of the laws. 2 Co. Inst. 158.






Nihil quod inconveniens est licitum est. Nothing inconvenient is lawful.












Necessity creates equity.

No one may be judge in his own cause.



Nomen non sufficit si res non sit de jure aut de facto. A name does not suffice if there be not a thing by law or by fact. 4 Co. 107.




Nomina sunt symbola rerum. Names are the symbols of things.





Non consentit qui errat. He who errs does not consent. 1 Bouv. Inst. n. 581.


Non decipitur qui scit se decipi. He is not deceived who knows himself to be deceived. 5 co. 60.






Non est recedendum a communi abservantia. There is no departing from a common observance. 2 Co. 74.











Non omne damnum inducit injuriam. Not every loss produces an injury. See 3 Bl. Com. 219; 1 Smith's Lead. Cas. 131; Broom's Max. 93; 2 Bouv. Inst. n. 2211.









Non solum quid licet, sed quidest conveniens considerandum, quia nihil quod inconveniens est licitum. Not only what is permitted, but what is proper, is to be considered, because what is improper is illegal. Co. Litt. 66.

















Nullus commodum capere potest de injuria sua propria. No one shall take advantage of his own wrong. Co. Litt. 148.

Nullus recedat e curia concellaria sine remedio. No one ought to depart out of the court of chancery without a remedy.

Nunquam fictio sine lege. There is no fiction without law.




Officers may not examine the judicial acts of the court.













Omne sacramentum debet esse de certa scientia. Every oath ought to be founded on certain knowledge. 4 Co. Inst. 279.









Omnis consensus tollit errorem. Every consent removes error. 2 Inst. 123.




Omnis interpretatio si fieri potest ita fienda est in instrumentis, ut omnes contrarietates amoveantur. The interpretation of instruments is to be made, if they will admit of it, so that all contradictions may be removed. Jenk. Cent. 96.






Once a mortgage always a mortgage.


One should be just before he is generous.

One may not do an act to himself.






Optimus interpretandi modus est sic legis interpretare ut leges legibus accordant. The best mode of interpreting laws is to make them accord. 8 Co. 169.

Optimus interpres rerum usus. Usage is the best interpreter of things. 2 Inst. 282.

Optimus legum interpres consuetudo. Custom is the best interpreter of laws. 4 Inst. 75.







Paria copulantur paribus. Things unite with similar things.




Partus sequitur ventrem. The offspring follow the condition of the mother. This is the law in the case of slaves and animals; 1 Bouv. Inst. n. 167, 502; but with regard to freemen, children follow the condition of the father.

Parum differunt quae re concordant. Thing differ but little which agree in substance. 2 Buls. 86.













Perpetuities are odious in law and equity.





Pluralities are odious in law.



Plus exempla quam peccata nocent. Examples hurt more than offences.









Possession of the termer, possession of the reversioner.



Possibility cannot be on a possibility.




Potentia inutilis frustra est. Useless power is vain.


Potestas stricte interpretatur. Power should be strictly interpreted.






Praesumptio violenta, plena probatio. Strong presumption is full proof.

Praesumptio violenta valet in lege. Strong presumption avails in law.




Precedents has as much law as justice.




Principia data sequuntur concomitantia. Given principles follow their concomitants.







Privilegium est beneficium personale et extinguitur cum persona. A privilege is a personal benefit and dies with the person. 3 Buls. 8.

















Quae cohaerent personae a persona separari nequeunt. Things which belong to the person ought not to be separated from the person. Jenk. Cent. 28.





Quae in auria acta sunt rite agi praesummuntur. Whatever is done in court is presumed to be rightly done. 3 Buls. 43.



Quae malasunt inchoata in principio vex bono peragantur exitu. Things bad in the commencement seldom end well. 4 Co. 2.



Quae rerum natura prohibentur, nulla lege confirmata sunt. Whatis prohibited in the nature of things, cannot be confirmed by law. Finch's Law, 74.



Quaelibet jurisdictio cancellos suos habet. Every jurisdiction has its bounds.













Quando duo juro concurrunt in und persona, aequum est ac si essent in diversis. When two rights concur in one person, it is the same as if they were in two separate persons. 4 Co. 118.


















Qui doit inheritoer al pere, doit inheriter al fitz. He who ought to inherit from the father, ought to inherit from the son.













Qui nascitur sine legitimo matrimonio, matrem sequitur. He who is born out of lawful matrimony, follows the condition of the mother.











Qui per fraudem agit, frustra agit. He who acts fraudulently acts in vain. 2 Roll. R. 17.










Qui tardius solvit, minus solvit. He who pays tardily, pays less than he ought. Jenk. Cent. 38.











Qusquis est qui velit juris consultus haberi, continuet studium, velit a quocunque doceri. Whoever wishes to be a lawyer, let him continually study, and desire to be taught everything.












Quod est necessarium est licitum. What is necessary is lawful.


Quod fieri non debet, factum valet. What ought not to be done, when done, is valid. 5 Co. 38.
















































Relatio semper fiat ut valeat dispositio. Reference should always be had in such a manner that a disposition in a will should avail. 6 Co. 76.





Remainder must vest at the same instant that the particular estate determines.

Remainder to a person not of a capacity to take at the time of appointing it, is void. Plowd. 27.

Remedies ought to be reciprocal.



















Reservatio non debet esse de proficuis ipsis quia ea conceduntur, sed de redditu nova extra proficua. A reservation ought not to be of the profits themselves, because they are granted, but from the new rent out of the profits. Co. Litt. 142.




Rights never die.




Saepe viatorim nova non vetus orbita fallit. Often it is the new road, not the old one, which deceives the traveller. 4 Co. Inst. 34.







Sapientis judicis est cogitare tantum sibi esse permissum, quantum commissum et creditum. A wise man should consider as much what he premises as what he commits and believes. 4 Co. Inst. 193.

Satisfaction should be made to that fund which has sustained the loss. 4 Bouv. Inst. n. 3731.











Securius expediuntur negotia commissa pluribus, et plus vident oculi quam oculus. Business entrusted to several speeds best, and several eyes see more than one eye. 4 Co. 46.





Semper praesumitur pro sententia. Presumption is always in favor of the sentence. 3 Buls. 43.



Sensus verborum ex causa dicendi accipiendus est, et sermones semper accipiendi sunt secundum subjectam materiam. The sense of words is to be taken from the occasion of speaking them, and discourses are always to be interpreted according to the subject-matter. 4 Co. 14.




Sequi debet potentia justitiam, non praecedere. Power should follow justice, not precede it. 2 Co. Inst. 454.


Sermo relatus ad personam, intelligi debet de conditione personae. A speech relating to the person is to be understood as relating to his condition. 4 Co. 16.



Si judicas, cognasce. If you judge, understand.










Silent leges inter arma. Laws are silent amidst arms. 4 Co. Inst. 70.





Solo cedit quodquod solo implantatur. What is planted in the soil belongs to the soil. Inst. 2, 1, 32; 2 Bouv. Inst. n. 1572.

Solus Deus haeredem facit. God alone makes the heir.








Statutum affirmativum non derogat communi legi. An affirmative statute does not take from the common law. Jenk. Cent. 24.








Superflua non nocent. Superfluities do no injury.

Surplusagium non nocet. Surplusage does no harm. 3 Bouv. Inst. n. 2949.






Terra transit cum onere. Land passes with the incumbrances. Co. Litt. 45.

Testamenta latissimam interpretationem habere debent. Wills ought to have the broadest interpretation.





Testis nemo in sua causa esse potest. No one can be a witness in his own cause.





Things shall not be void which may possibly be good.

Trusts survive.



Tonte exception non surveillee tend a prendre la place du principe. Every exception not watched tends to assume the place of the principle.









Ubi cessat remedium ordinarium ibi decurritur ad extraordinarium. When a common remedy ceases to be of service, recourse must be had to an extraordinary one. 4 Co. 93.




















Ubicunque est injuria, ibi damnum sequitur. Wherever there is a wrong, there damages follow. 10 Co. 116.










Usury is odious in law.

















Verba ita sunt intelligenda, ut res magis valeat quam pereat. Words are to be so understood that the subject-matter may be preserved rather than destroyed. Bacon's Max. in Reg. 3.















Voluit sed non dixit. He willed but did not say.





What a man cannot transfer, he cannot bind by articles.






When the foundation fails, all fails.

Where two rights concur, the more ancient shall be preferred.



MAY. To be permited; to be at liberty; to have the power.





MAYHEMAVIT. Maimed. This is a term of art which cannot be supplied in pleadings by any other word; as, mutilavit, truncavit, &c. 3 Tho. Co. Litt. 548.

MAYOR, officer. The chief or executive magistrate of a city who bears this title.

2. It is generally his duty to cause the laws of the city to be enforeed, and to superintend inferior officers, such as constables, watchmen and the like. But the power and authority which mayors possess being given to them by local regulations, vary in different places.

MAYOR'S COURT. The name of a court usually established in cities, composed of a mayor, recorder and aldermen, generally having jurisdiction of offences committed within the city, and of other matters specially given them by the statute.






                        1. MEASURES OF LENGTH.
  12 inches = l foot
   3 feet = l yard
   51/2 yards = l rod or pole
  40 poles = 1 furlong
   8 furlongs = l mile 
  69 1/15 miles = l degree of a great circle
     of the earth.


                   Particular measures of length.
 1st. Used for measuring cloth of all kinds.
  1 nail = 2 1/4 inches
  1 quarter = 4 inches 
  1 yard = 4 quarters
  1 ell = 5 quarters. 2d. used for the height of horses.
  1 hand = 4 inches. 3d. Used in measuring depths.
  1 fathom = 6 feet.


1 link = 7 92/100 inches
  1 chain = 100 links.                    6.-2. MEASURES OF SURFACE.144 square inches = l square foot
    9 square feet = l square yard
   30 1/4 square yards = l perch or rod
   40 perches = l rood
    4 roods or 160 perches = l acre
  640 acres--l square mile.             7. - 3. MEASURES OF SOLTDITY AND CAPACITY.1st. Measures of solidity.1728 cubic inches = l cubic foot
    27 cubic feet = l cubic yard.


4 gills = l pint = 34 2/3 cubic inches nearly.
  2 pints = l quart = 691/2         "       "
  4 quarts = 1 gallon = 277 1/4     "       " 
  2 gallons = l peck = 554 1/2      "       "
  8 gallons= 1 bushel = 2218 1/2    "       "
  8 bushels = l quarter = 10 1/4 cubic feet "
  5 quarters = l load = 51 1/2      "       "



 2 gallons = 1 peck-704 cubic in. nearly.
   8 gallons = 1 bushel=28151/2  "     "
   3 bushels = 1 sack = 41 cubic feet  "
  12 sacks=l chaldron = 58 2/3   "     "8.-4. MEASURES OF WEIGHTS. See art. Weights.9.-5., ANGULAR MEASURE; or, DIVISION OF THE CIRCLE.
  60 seconds = l minute
  60 minutes = l degree
  30 degrees = 1 sign 
  90 degrees = 1 quadrant
 360 degrees, or 12 signs = 1 circumference.


















  2 metre and 8 tenths, 2 m. 8.
 10 metre and 4 hundredths, 10 m. 04.




 The Metre, is 3.28 feet, or 39.871 in.
     Are, is 1076.441 square feet.
     Litre, is 61.028 cubic inch
     Stere, is 35.317 cubic feet.


MEAN. This word is sometimes used for mesne. (q. v.)

MEASON-DUE. A corruption of Maison de Dieu. (q. v.)

MEDIATE, POWERS. Those incident to primary powers, given by a principal to Iiis agent. For example, the general authority given to collect, receive and pay debts due by or to the principal is a primary power. In order to accomplish this it is frequently required to settle accounts, adjust disputed claims, resist those which are unjust, and answer and defend suits; these subordinate powers are sometimes called mediate powers. Story, Ag. 58. See Primary powers, and 1 Camp. R. 43, note 4 Camp. R. 163; 6 S. & R. 149.


MEDIATOR. One who interposes between two contending parties, with their consent, for the purpose of assisting them in settling their differences. Sometimes this term is applied to an officer who is appointed by a sovereign nation to promote the settlement of disputes between two other nations. Vide Minister; Mediator.



MEDICINE CHEST. A box containing an assortment of medicines.



MEDIETAS LINGUAE. Half tongue. This expression was used to signify that a jury for the trial of a foreigner or alien for a crime, was to be composed one half of natives and the other of foreigners. The jury de medietate linguae is used in but a few if any of the United States. Dane's Ab. vol. 6, c. 182, a, 4, n. 1. Vide 2 Johns. R. 381; 1 Chit. Cr. Law, 525; Bac. Ab. Juries, E 8.

MELANCHOLIA, med. jur. A name given by the ancients to a species of par- tial intellectual mania, now more generally known by the name of monomania. (q. v.) It bore this name because it was supposed to be always attended by dejection of mind and gloomy ideas. Vide Mania.,

MELIORATIONS, Scotch law. Improvements of an estate, other than mere repairs; betterments. (q. v.) 1 Bell's Com. 73.

MELIUS INQUIRENDUM VEL INQUIRENDO. English practice. A writ which in certain cases issues after an imperfect inquisition returned on a capias utlugatum in outlawry. This melius inquirendum commands the sheriff to summon another inquest in order that the value, &c., of lands, &c., may be better or more cor- rectly ascertained. Its use is rare.

MEMBER. This word has various significations: 1. The limits of the body use- ful in self-defence. Membrum est pars corporis habens destinatum operationem in corpore. Co. Litt. 126 a. See Limbs.

2. - 2. An individual who belongs to a firm, partnership, company or corporation. Vide Corporation; Partnership.

3. - 3. One who belongs to a legislative body, or other branch of the government; as, a member of the house of representatives; a member of the court.

MEMBER OF CONGRESS. A member of the senate or house of representatives of the United States.

2. During the session of congress they are privileged from arrest, except for treason, felony, or breach of the peace; they receive a compensation of eight dollars per day while in session, besides mileage. (q. v.)

3. They are authorized to frank letters and receive them free of postage for sixty days before, during, and for sixty days after the session.

4. They are prohibited from entering into any contracts with the United States, directly or indirectly, in whole or in part for themselves and others, under the penalty of three thousand dollars. Act of April 21, 1808, 2 Story's L. U. S. 1091. Vide Congress; Frank.

MEMBERS, English law. Places where a custom-house has been kept of old time, with officers or deputies in attendance; and they are lawful places of exportation or importation. 1 Chit. Com. L. 726.

MEMORANDUM. Literally, to be remembered. It is an informal instrument recording some fact or agreement, so called from its beginning, when it was made in Latin. It is sometimes commenced with this word, though written in English; as "Memorandum, that it is agreed," or it is headed with the words, "Be it remembered that," &c. The term memorandum is also applied to the clause of an instrument.

MEMORANDUM, insurance. A clause in a policy limiting the liability of the insurer. Its usual form is as follows, namely, "N. B. Corn, fish, salt, fruit, flour and seed, are warranted free from average, unless general, or the ship be stranded: sugar, tobacco, hemp, flax, hides and skins, are warranted free from average, under five percent; and all other goods, also the ship and freight, are warranted free from average, under three percent unless general, or the ship be stranded." Marsh. Ins.223; 5 N. S. 293; Id. 540; 4 N. S. 640; 2 L. R. 433; Id. 435.



MEMORANDUM CHECK. It is not unusual among merchants, when one makes a tem- porary loan from another, to give the lender a check on a bank, with the express or implied agreement that it shall be redeemed by the maker himself, and that it shall not be presented at the bank for payment. If passed to a third person, it will be valid in his hands, like any other check. 11 Paige, R. 612.











MENSA ET THORO. The phrase a mensa et thoro is applied to a divorce which separates the husband and wife but does not dissolve the marriage. Vide Divorce.

MERCHANDISE. By this term is understood all those things which merchants sell either wholesale or retail, as dry goods, hardware, groceries, drugs, &c. It is usually applied to personal chattels only, and to those which are not required for food or immediate support, but such as remain after having been used or which are used only by a slow consumption. Vide Pardess. n. 8; Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8 Pet. 277; 2 Story, R. 16, 53, 54; 6 Wend. 335.

MERCHANT. One whose business it is to buy and sell merchandise; this applies to all persons who habitually trade in merchandise. 1 Watts & S. 469; 2 Salk. 445.

2. In another sense, it signifies a person who owns ships, and trades, by means of them, with foreign nations, or with the different States of the United States; these are known by the name of shipping merchants. Com. Dig. Merchant, A; Dyer, R. 279 b; Bac. Ab. h. t.

3. According to an old authority, there are four species of merchants, namely, merchant adventurers, merchant dormant, merchant travellers, and merchant residents. 2 Brownl. 99. Vide, generally, 9 Salk. R. 445; Bac. Ab. h. t.; Com. Dig. h. t.; 1 Bl. Com. 75, 260; 1 Pard. Dr. Com. n. 78

MERCHANTMAN. A ship or vessel employed in a merchant's service. This term is used in opposition to a ship of war.

MERCHANTS' ACCOUNTS. In the statute of limitations, 21 Jac. 1. c. 16, there is an exception which has been copied in the acts of the legislatures of a number of the States, that its provisions shall not apply to such accounts as concern trade and merchandise between merchant and merchant, their factors or servants.

2. This exception, it has been holden, applies to actions of assumpsit as well as to actions of account. 5 Cranch, 15. But to bring a case within the exception, there must be an account, and that account open and current, and it must concern trade. 12 Pet. 300. See 6 Pet. 151; 5 Mason, R. 505; Bac. Ab. Limitation of Actions, E 3; and article Limitation.


MERCY, crim. law. The total or partial remission of a punishment to which a convict is subject. When the whole punishment is remitted, it is called a pardon; (q. v.) when only a part of the punishment is remitted, it is frequently a conditional pardon; or before sentence, it is called clemency or mercy. Vide Rutherf. Inst. 224; 1 Kent, Com. 265; 3 Story, Const. 1488.

MERE. This is the French word for mother. It is frequently used as, in ventre sa mere, which signifies; a child unborn, or in the womb.




3. The merger is produced, either from the meeting of an estate of higher degree, with an estate of inferior degree; or from the meeting of the particular estate and the immediate reversion, in the same person. 4 Kent, Com. 98. Vide 3 Prest. on Conv. which is devoted to this subject. Vide, generally, Bac. Ab. Leases, &c. R; 15 Vin. Ab. 361; Dane's Ab. Index, h. t.; 10 Verm. R. 293;; 8 Watts, R. 146; Co. Litt. 338 b, note 4; Hill. Ab. Index, h. t.; Bouv. Inst; Index, h. t.; and Confusion; Consolidation; Unity of Possession.









MERITS. This word is used principally in matters of defence.

2. A defence upon the merits, is one that rests upon the justice of the cause, and not upon technical grounds only; there is, therefore, a difference between a good defence, which may be technical or not, and a defence on the merits. 5 B. & Ald. 703 1 Ashm. R. 4; 5 John. R. 536; Id. 360; 3 John. R. 245 Id. 449; 6 John. R. 131; 4 John. R. 486; 2 Cowen, R. 281; 7 Cowen, R. 514; 6 Wend. R. 511; 6 Cowen, R. 895.


MESCROYANT. Used in our ancient books. An unbeliever. Vide Infidel.

MESE. An ancient word used to signify house, probably from the French maison; it is said that by this word the buildings, curtilage, orchards and gardens will pass. Co. Litt. 56.

MESNE. The middle between two extremes, that part between the commencement and the end, as it relates to time.

2. Hence the profits wbich a man receives between disseisin and recovery of lands are called mesne profits. (q. v.) Process which is issued in a suit between the original and final process, is called mesne process. (q . v.)

3. In England, the word mesne also applies to a dignity: those persons who hold lordships or manors of some superior wbo is called lord paramount, and grant the same to inferior persons, are called mesne lords.

MESNE PROCESS. Any process issued between original and final process; that is, between the original writ and the execution. See Process, mesne.

MESNE PROFITS, torts, remedies. The value of the premises, recovered in ejectment, during the time that the lessor of the plaintiff has been illegally kept out of the possession of his estate by the defendant; such are properly recovered by an action of trespass, quare clausum fregit, after a recovery in ejectment. 11 Serg. & Rawle, 55; Bac. Ab. Ejectment, H; 3 Bl. Com. 205.

2. As a general rule, the plaintiff is entitled to recover for such time as be can prove the defendant to have been in possession, provided he does not go back beyond six years, for in that case, the defendant may plead the statute of limitations. 3 Yeates' R, 13; B. N. P. 88.

3. The value of improvements made by the defendant, may be set off against a claim for mesne profits, but profits before the demise laid, should be first deducted from the value of the improvement's. 2 W. C. C. R. 165. Vide, generally, Bac. Ab. Ejectment, H; Woodf. L. & T. ch. 14, s. 3; 2 Sell. Pr. 140; Fonbl. Eq. Index, h. t.; Com. L & T. Index, h. t.; 2 Phil. Ev. 208; Adams on Ej. ch. 13; Dane's Ab. Index, h. t.; Pow. Mortg. Index, h. t.; Bouv. Inst. Index, h. t.

MESNE, WRIT of. The name of an ancient writ, which lies when: the lord para- mount distrains on the tenant paravail; the latter shall have a writ of mesne against the lord who is mesne. F. N. B. 316.



MESSUAGE, property. This word is synonymous with dwelling-house; and a grant of a messuage with the appurtenances, will not only pass a house, but all the buildings attached or belonging to it, as also its curtilage, garden and orchard, together with the close on which the house is built. 1 Inst. 5, b.; 2 Saund. 400; Ham. N. P. 189; 4 Cruise, 321; 2 T. R. 502; 1 Tho. Co. Litt. 215, note 35; 4 Blackf. 331. But see the cases cited in 9 B. & Cress. 681; S. C. 17 Engl. Com. L. R. 472. This term, it is said, includes a church. 11 Co. 26; 2 Esp. N. P. 528; 1 Salk. 256; 8 B. & Cress. 25; S. C. 15 Engl. Com. L. Rep. 151. Et vide 3 Wils. 141; 2 Bl. Rep. 726; 4 M. & W. 567; 2 Bing. N. C. 617; 1 Saund. 6. METHOD. The mode of operating or the means of attaining an object. 2. It has been questioned whether the method of making a thing can be patented. But it has been considered that a method or mode may be the subject of a patent, because, when the object of two patents or effects to be produced is essentially the same, they may both be valid, if the modes of attaining the desired effect are essentially different. Dav. Pat. Cas. 290; 2 B. & Ald. 350; 2 H. Bl. 492; 8 T. R. 106; 4 Burr. 2397; Gods. on Pat. 85; Perpigna, Manuel des Inventeurs, &c., c. 1, sect. 5, 1, p. 22.

METRE or METER. This word is derived from the Greek, and signifies a measure.

2. This is the standard of French measure.

3. The fundamental base of the metre is the quarter of the terrestrial meridian, or the distance from the pole to equator, which has been divided into ten millions of equal parts, one of which is of the length of the metre. The metre is equal to 3.28 feet, or 39.371 inches. Vide Measure.

MEUBLES MEUBLANS. A French term used in Louisiana, which signifies simply household furniture. 4 N. S. 664; 3 Harr. Cond. R. 431.

MICEL GEMOT, Eng. law. In Saxon times, the great council of the nation bore this name, sometimes also called the witena gemot, or assembly of wise men; in aftertimes, this assembly assumed the name of parliament. Vide 1 Bl. Comm. 147.

MICHAELMAS TERM. Eng. law. One of the four terms of the courts; it begins on the 2d day of November, and ends on the 25th of November. It was formerly a movable term. St. 11 G. IV. and 1 W. IV. 70.

MICHIGAN. One of the new, states of the United States of America. This state was admitted into the Union by the Act, of Congress of January 26th, 1837, Sharsw. cont. of Story's L. U. S. 2531, which enacts "that the state of Michigan shall be one and is hereby declared to be one, of the United States of Amaerica, and admitted into the Union on an equal footing with the original states, in all respects whatever."

2. The first constitution of this state was adopted by a convention of the people, begun and held at the capital in the city of Detroit, on Monday, the eleventh day of May, 1835. This was superseded by the present constitution, which was adopted 1850. It provides, article 3, l; The powers of the government shall be divided into three distinct departments; the legislative, the executive, and the judicial; and one department shall never exercise the powers of another, except in such cases as are expressly provided for in this constitution.

3. - 1. Art. 4, relates to the Legislative department, and provides that

1. The legislative power shall be vested in a senate and house of representatives.

4. - 6. No person holding any office under the United States [or this state] or any county office, except notaries public, officers of the militia and officers elected by townships, shall be eligible to, or have a seat in either house of the legislature, and all votes given for any such person shall be void.

5. - 7. Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest, nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the terraination of each session. They shall not be questioned in any other place for any speech in either house.


7. - 9. Each house shall choose its own officers, determine the rules of its proceeding, and judge of the qualifications, elections, and return of its own members and may, with the concurrence of two-thirds of all the members elected, expel a member; no member shall be expelled a second time for the same cause, nor for any cause known to his constituents antecedent to his election. The reason for such expulsion shall be entered upon the journal, with the names of the members voting on the question.

8. - 10. Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy; the yeas and nays of the members of either house, on any question, shall be entered on the journal at the request of one-fifth of the members present. Any member of either house may dissent from and protest against any act, proceeding or resolution which he may deem injurious to any person or the public, and have the reason of his dissent entered on the journal.

9. - 11. In all elections by either house, or in joint convention, the votes shall be given viva voce. All votes on nominations to the senate shall be taken by yeas and nays, and published with the journal of its proceedings.

10. - 12. The doors of each house shall be open, unless the public welfare require secrecy; neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than where the legislature may then be in session.

11. - 1st. In considering the house of representatives, it will be proper to take a view of the qualifications of members; the qualification of the electors; the number of members; the time for wbich they are elected.

12. - 1. The representatives must be citizens of the United States, and qualified electors in the respective counties which they represent. Art. 4, S.

5. 2. In all elections, every white male citizen, every white male inhabitant residing in the state on the twenty-fourth day of June, one thousand eight hundred and thirty-five; every white male inhabitant residing in the first day of January, one thousand eight hundred and fifty, who has declared his in- tention to become a citizen of the United States pursuant to the laws thereof six months preceding an election, or who has resided in this state two years and six months and declared his intention as aforesaid and every civilized male inhabitant of Indian descent, a native of the United States, and not a member of any tribe, shall be an elector and entitled to vote; but no citizen or inhabitant shall be an elector or entitled to vote at any election, unless he shall be above the age of twenty-one years, and has resided in this state three months and in the township or ward in which he offers to vote ten days next preceding such election. Art. 7, 1. 3. The house of representatives shall consist of not less than sixty-five nor more than one hundred members. Art. 4, s. 3. 4. The election of representatives, pursuant to the provisions of this constitution, shall be held on the Tuesday succeeding the first Monday of November, in the year one thousand eight hundred and fifty-two, and on the Tuesday succeeding the first Monday of November of every second year thereafter. Art. 4, s. 34. Representatives shall be chosen for two years. Art. 4, s. 3.

13. - 2d. The senate will be considered in the same order. 1. Senators must be citizens of the United States, and be qualified electors in the district which they represent. Art. 4, s. 5. 2. They are elected by the electors of representatives. Art. 7, s. 1. 3. The senate shall consist of thirty-two members. Art. 4, s. 2. 4. The senators shall be elected for two years, at the same time and in the same manner as the representatives are required to be chosen. Art. 4, section 2, 34.

14. - 2. The executive department is regulated by the fifth article of the constitution as follows, namely:

1. The executive power is vested in a governor, who shall hold his office for two years; a lieutenant governor shall be chosen for the same term.

l5. - 2 No person shall be eligible to the office of governor or lieutenant governor, who has not been five years a citizen of the United States, and a resident of this state two years next preceding the election; nor shall any person be eligible to either office who has not attained the age of thirty years.

16. - 3. The governor and lieutenant governor shall be elected at the times and places of choosing members of the legislature. The Person having the highest number of votes for governor and lieutenant governor shall be elected; in case two or more persons have an equal and the highest number of votes for governor or lieutenant governor, the legislature shall by joint vote choose one of such persons.

17. - 4. The governor shall be commander-in-chief of the military and naval forces, and may call out such forces to execute the laws, to suppress insurrections and to repel invasions.

18. - 5. He shall transact all necessary; business with the officers of government; and may require information, in writing, from the officers of the executive department, upon any subject relating to the duties of their respective offices.

19. - 6. He shall take care that the laws be faithfully executed.

20. - 7. He may convene the legislature on extraordinary occasions.

21. - 8. He shall give to the legislature, and at the close of his official term to the next legislature, information by message of the condition of the state, and recommend such measures to them as he shall deem expedient.

22. - 9. He may convene the legislature at some other place, when the seat of government becomes dangerous from disease or a common enemy.

23. - 0. He shall issue writs of election to fill such vacancies as occur in the senate or house of representatives.

24. - 1. He may grant reprieves, commutations and pardons after convictions, for all offences except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to regulations provided by law, relative to the manner of ap- plying for pardons. Upon conviction for treason, he may suspend the execution of the sentence until the case shall be reported to the legislature at its next session, when the legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall communicate to the legislature at each session information of each case of reprieve, commutation or pardon granted, and the reasons therefor.

25. - 12. In case of the impeachment of the governor, his removal from office, death, inability, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the disability ceases. When the governor shall be out of the state in time of war, at the head of a military force thereof, he shall continue commander-in-chief of all the military force of the state.

26. - 13. During a vacancy in the office of governor, if the lieutenant governor die, resign, be impeached, displaced, be incapable of performing the duties of his office, or absent from the state, the president pro tempore of the senate shall act as governor until the vacancy be filled, or the disability cease.

27. - 14. The lieutenant governor shall, by virtue of his office, be president of the senate. In committee of the whole he may debate all questions; and when there is an equal division, he shall give the casting vote.

28. - 15. No member of congress, nor any person holding office under the United States, or this state, shall execute the office of governor.

29. - 16. No person elected governor or lieutenant governor shall be eligible to any office or appointment from the legislature, or either house thereof, during the time for which he was elected. All votes for either of them, for any such office, shall be void.

30.- 17. The lieutenant governor and president of the senate pro tempore, when performing the duties of governor, shall receive the same compensation as the governor.

31. - 18. All official acts of the governor, his approval of the laws excepted, shall be authenticated by the great seal of the state, which shall be kept by the secretary of state.

32. - 19. All commissions issued to persons holding office under the provisions of this constitution, shall be in the name and by the authority of the people of the state of Michigan, sealed with the great seal of the state, signed by the governor, and countersigned by the secretary of state.

32. - 3. The judicial department is regulated by the sixth article as follows, namely:

33. - 1. The judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.

34. - 2. For the term of six years, and thereafter, until the legislature otherwise provide, the judges of the several circuit courts shall be judges of the supreme court, four of whom shall constitute a quorum. A concurrence of three shall be necessary to a final decision. After six years the legislature may provide by law for the organization of a supreme court, with the jurisdiction and powers prescribed in this constitution, to consist of one chief justice and three associate justices, to be chosen by the electors of the state. Such supreme court, when so organized, shall not be changed or discontinued by the legislature for eight years thereafter. The judges thereof shall be so classified that but one of them shall go out of office at the same time. Their term of office, shall be eight years.

35. - 3. The supreme court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warrants, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.

36. - 4. Four terms of the supreme court shall be held annually, at such times and places, as may be designated by law.

37. - 5. The supreme court shall, by general rules, establish, modify and amend the practice in such court and in the circuit courts, and, simplify the same. The legislature shall, as far as practicable, abolish distinctions between law and equity proceedings. The office of master in chancery is prohibited.

38. - 6. The state shall be divided, into eight judicial circuits; in each of which the electors thereof shall elect one circuit judge, who shall hold his office for the term of six years, and until his successor is elected and qualified.

39. - 7. The legislature may alter the limits of circuits, or increase the number of the same. No alteration or increase shall have the effect to remove a judge from office. In every additional circuit established the judge shall be elected by the electors of such circuit, and his term of office shall continue as provided in this constitution for judges of the circuit court.

40. - 8. The circuit courts shall have original jurisdiction in all matters civil and criminal, not excepted in this constitution, and not probibited by law; and, appellate jurisdiction from all inferior courts and tribunals, and a supervisory control of the same. They shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs necessary to carry into effect their orders, judgments and decrees, and give there a general control over inferior courts and tribunals within their respective jurisdictions.

41. - 9. Each of the judges of the circuit courts shall receive a salary payable quarterly. They shall be ineligible to any other than a judicial office during the term for which they are elected, and for one year thereafter. All votes for any person elected such judge for any office other than judicial, given either by the legislature or the people, shall be void.42. - 10. The supreme court may appoint a reporter of its decisions. The decisions of the supreme court shall be in writing, and signed by the judges concurring therein. Any judge dissenting there from, shall give the reasons of such dissent in writing, under his signature. All such opinions shall be filed in the office of the clerk of the supreme court. The judges of the circuit court, within their respective jurisdictions, may fill vacancies in the office of county clerk and of prosecuting, attorney; but no judge of the supreme court, or, circuit court, shall exercise any other power of appointment to public office.

43. - 11. A circuit court shall be held at least twice in each year, in every county organized for judicial purposes, and four times in each year in counties containing ten thousand inhabitants. Judges of the circuit court may hold courts for each other, and shall do so when required by law.

44. - 12. The clerk of each county organized for judicial purposes shall be the clerk of the circuit court of such county, and of the supreme court when held within the same.

45. - 13. In each of the counties organized for judicial purposes, there shall be a court of probate. The judge of such court shall be elected by the electors of the county in which he resides, and shall hold his office for four years, and until his successor is elected and qualified. The jurisdiction, powers, and duties of such court, shall be prescribed by law.

46. - 14. When a vacancy occurs in the office of judge of the supreme, circuit or probate court, it shall be filled by appointment of the governor, which shall continue until a successor is elected and qualified. When elected, such successor shall hold his office the residue of the unexpired term.

47. - 15. The supreme court, the circuit and probate court of each county, shall be courts of record, and shall each have a common seal.

48. - 16. The legislature may provide by law for the election of one or more persons in each organized county, who may be vested with judicial powers, not exceeding those of a judge of the circuit court at chambers.

49. - 17. There shall be not exceeding four justices of the peace in each organized township. They shall be elected by the electors of the townships, and shall hold their offices for four years, and until their successors are elected and qualified. At the first election in any township, they shall be classified as shall be prescribed by law. A justice elected to fill a vacancy shall hold his office for the residue of the unexpired term. The legislature may increase the number of justices in cities.

50. - 18. In civil cases justices of the peace shall have exclusive jurisdiction to the amount of one hundred dollars, and concurrent jurisdiction to the amount of three hundred dollars, which may be increased to five hundred dollars, with such exceptions and restrictions as may be provided by law. They shall also have such criminal jurisdiction and perform such duties as shall be prescribed by the legislature.

51. - 19. Judges of the supreme court, circuit judges, and justices of the peace, shall be conservators of the peace within their respective jurisdictions.

52. - 20. The first election of judges of the circuit courts shall be held on the first Monday in April, one thousand eight hundred and fifty-one, and every sixth year thereafter. Whenever an additional circuit is created, provision. shall be made to hold the subsequent election of such additional judges at the regular elections herein provided.

53. - 1. The first election of judges of the probate courts shall be held on the Tuesday succeeding the first Monday of November, one thousand eight hundred and fifty-two, and every fourth year thereafter.

54. - 22. Whenever a judge shall remove beyond the limits of the jurisdiction for which he was elected or a justice of the peace from the township in which he was elected, or by a change in the boundaries of such township shall be placed without the same, they shall be deemed to have vacated their respective offices.

55. - 23. The legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law.

56. - 24. Any suitor in any court of this state shall have the right to prosecute or defend his suit, either in his own proper person, or by an attorney or agent, of his choice.

57. - 5. In all prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury shall have the right to determine the law and the fact.

58. - 26. The person, houses, papers, and possessions of every person shall be secure from unreasonable searches and seizure. No warrant to search any place, or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.

59. - 27. The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties, in such manner as shall be prescribed by law.

60. - 8. In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve, men in all courts not of record; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and have the assistance of counsel for his defence.

61. - 29. No person, after acquittal upon the merits, shall be tried for the same offence; all persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason, when the proof is evident or the presumption great.

62. - 30. Treason against the state shall consist only in levying war against, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless upon the testimony of two witnesses to the same overt act, or on confession in open court.

63. - 31. Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted, nor, shall witnesses be unreasonably detained.


65. - 33. No person shall be imprisoned for debt arising out of, or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers, or in any professional employment. No person shall be imprisoned for a militia fine in time of peace.

66. - 34. No person shall be rendered incompetent to be a witness, on account of his opinions on matters of religious belief.67. - 35. The style of all process shall be, "In the name of the people of the State of Michigan."

MIDDLEMAN contracts. A person who is employed both by the seller and purchaser of goods, or by the purcbaser alone, to receive them into his possession, for the purpose of doing something in or about them; as, if goods be delivered from a ship by the seller, to a wharfinger, to be by him forwarded to the purchaser, who has been appointed by the latter to receive them; or if goods be sent to a packer, for and by orders of the vendee, the packer is to be considerpd as a middleman.

2. The goods in both, these cases will be considered in transitu, provided the purchaser has not used the wharfinger's or the packer's warehouse as his own, an have an ulterior place of delivery in view. 3 B. & P. l27, 469; 4 Esp. R. 82; 2 B. & P. 457; 1 Campb. 282; 1 Atk. 245; 1 H. Bl. 364; 3 East, R. 93; Whit. on Trans. 195.

3. By middleman is also understood one who has been employed as an agent by a principal, and who has employed a subagent under him by authority of the principal, either express or implied. He is not in general Iiable for the wrongful acts of the sub-agent, the principal being alone responsible. 3 Campb. N. P. Cas. 4; 6 T. R. 411; 14 East, 65.




MILEAGE. A compensation allowed by law to officers, for their trouble and expenses in travelling on public business.

2. The mileage allowed to members of congress, is eight dollars for every twenty miles of estimated distance, by the most usual roads, from his place of residence to the seat of congress, at tbe commencement and end of every session. Act of Jan. 22, 1818; 3 Story, Laws U. S. 1657.

3. In computing mileage the distance by the road usually travelled is that which must be allowed, whether in fact the officer travels a more or less distant way to suit his own convenience. 5 Shepl. R. 431.

MILITARY. That which belongs or relates to the army.







6. - 3. It is presumable the framers of the constitution contemplated a full exercise of all the powers of organizing, arming, and disciplining the militia; nevertheless, if congress had declined to exercise them, it was competent to the state governments respectively to do it. But congress has ex- ecuted these powers as fully as was thought right, and covered the whole ground of their legislation by different laws, notwithstanding important provisions may have been omitted, or those enacted might be beneficially altered or enlarged.














MILLED MONEY. This term means merely coined money, and it is not necessary that it should be marked or rolled on the edges. Running's case, Leach, 708.

MIL-REIS. The name of a coin. The mil-reis of Portugal is taken as money of account, at the custom-house, to be of the value of one hundred and twelve cents. Act of March 13, 1843.

2. The mil-reis of Azores, is deemed of the value of eighty-three and one-third cents. Act of Match 3, 1843.

3. The mil-reis of Maderia, is deemed of the value of one hundred cents. Id.

MIND AND MEMORY. It is usual in considering the state of a testator at the time of making his will, to ascertain whether he was of sound mind and memory; that is, whether he had capacity to make a will. These words then import capacity, ability.

MINE. An excavation made for obtaining minerals from the bowels of the earth, and the minerals themselves are known by the name of mine.

2. Mines are therefore considered as open and not open. An open mine is one at which work has been done, and a part of the materials taken out. When land is let on which there is an open mine, the tenant may, unless restricted by his lease, work the mine; 1 Cru. Dig. 132; 5 Co. R. 12; 1 Chit. Pr. 184, 5; and he may open new pit's or shafts for working the old vein, for otherwise the working of the same mine might be impracticable. 2 P. Wms. 388; 3 Tho. Co. Litt. 237; 10 Pick. R. 460. A mine not opened, cannot be opened by a tenant for years unless authorized, nor even by a tenant for life, without being guilty of waste. 5 Co. 12.

3. Unless expressly excepted, mines would be included in the conveyance of land, without being expressly named, and so vice versa, by a grant of a mine, the land itself, the surface above the mine, if livery be made, will pass. Co. Litt. 6; 1 Tho. Co. Litt. 218; Shep. To. 26. Vide, generally, 15 Vin. Ab. 401; 2 Supp. to Ves. jr. 257, and the cases there cited, and 448; Com. Dig. Grant, G 7; Id. Waifs, H. 1; Crabb, R. P. 98-101; 10 East, 273; 1 M. & S. 84; 2 B. & A. 554; 4 Watts, 223-246.

4. In New York the following provisions have been made in relation to the mines in that state, by the revised statutos, part 1, chapter 9, title 11. It is enacted as follows, by

1. The following mines are, and shall be, the property of this state, in its right of sovereignty. 1. All mines of gold and silver discovered, or hereafter to be discovered, within this state. 2. All mines of other metals discovered, or hereafter to be discovered, upon any lands owned by persons not being citizens of any of the United States. 3. All mines of other metals discovered, or hereafter to be discovered, upon lands oned by a citizen of any of the United States, the ore of which, upon an average, shall contain less than two equal third parts in value, of copper, tin, iron or lead, or any of those metals.

6. - 2. All mines, and all minerals and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of this state, are, and shall be the property of the people, subject to the provisions hereinafter made to encourage the discovery thereof.

6. - 3. All mines of whatever description, other than mines of gold and silver, discovered or hereafter to be discovered, upon any lauds owned by a citizen of the United states, the ore of which, upon an average, shall contain two equal third parts or more, in value, of copper, tin, iron and lead, or any of those metals, shall belong to the owner of such land.

7. - 4. Every person who shall make a discovery of any mine of gold or silver, within this state, and the executors, administrators or assigns of such person, shall be exempted from paying to the people of this state, any part of the ore, profit or produce of such mine, for the term of twenty-one years, to be computed from the time of giving notice of such discovery, in the manner hereinafter directed.

8. - 5. No person discovering a mine of gold or silver within this state, shall work the same, until he give notice thereof, by information in writing, to the secretary of this state, describing particularly therin the nature and situation of the mine. Such notice shall be registered in a book, to be kept the secretary for that purpose.

9. - 6. After the expiration of the term above specified, the discoverer of the mine, or his representatives, shall be preferred in any contract for the working of such mine, made with the legislature or under its authority.

10. - 7. Nothing in this title contained shall affect any grants heretofore made by the legislature, to persons having discovered mines; nor be construed to give to any person a right to enter on, or to break up the lands of any other person, or of the people of this state, or to work any mines in such lands, unless the consent, in writing, of the owner thereof, or of the commissioners of the land office, when the lands belong to the people of this state, shall be previously obtained.

MINISTER, government. An officer who is placed near the sovereign, and is invested with the administration of some one of the principal branches of the government.

2. Ministers are responsible to the king or other supreme magistrate who has appointed them. 4 Conn. 134.

MINISTER, international law. This is the general name given to public functionaries who represent their country abroad, such as ambassadors, (q.v.) envoys, (q.v.) and residents. (q.v.) A custom of recent origin has introduced a new kind of ministers, without any particular determination of character; these are simply called ministers, to indicate that they are invested with the general character of a sovereign's mandatories, without any particular assignment of rank or character.

2. The minister represents his government in a vague and indeterminate manner, which cannot be equal to the first degree; and be possesses all the rights essential to a public minister.

3. There are also ministers plenipotentiary, who, as they possess full powers, are of much greater distinction than simple ministers. These also, are without any particular attribution of rank and character, but by custom are now placed immediately below the ambassador, or on a level with the envoy extraordinary. Vattel, liv. 4, c. 6, 74; Kent, Com. 38; Merl. Repert. h. t. sect. 1, n. 4.

4. Formerly no distinction was made in the different classes of public ministers, but the modern usage of Europe introduced some distinctions in this respect, which, on account of a want of precision, became the source of controversy. To obviate these, the congress of Vienna, and that of Aix la Chapelle, put an end to these disputes by classing ministers as follows: 1. Ambassadors, and papal legates or nuncios. 2. Envoys, ministers, or others accredited to sovereigns, (aupres des souverains). 3. Ministers resident, accredited to sovereigns. 4. Charges d'Affaires, accredited to the minister of foreign affairs. Recez du Congres de Vienne, du 19 Mars, 1815; Protocol du Congres d' Aix la Chapelle, du 21 Novembre, 1818; Wheat, Intern. Law, pt. 3, c. 6.

5. The act of May 1, 1810, 2 Story's L. U. S. 1171, fixes a compensation for public, ministers, as follows

1. Be it enacted, &c. That the president of the United States shall not allow to any minister plenipotentiary a greater sum than at the rate of nine thousand dollars per annum, as a compensation for all his personal services and expenses; nor to any charge des affaires, a greater sum than at the rate of four thousand five bundred dollars per annum, as a compensation for all his personal services and expenses, nor to the secretary of any legation, or embassy to any foreign country, or secretary of any minister plenipotentiary, a greater sum than at the rate of two thousand dollars per annum, as a compensation for all his personal services and expenses; nor to any consul who shall be appointed to reside at Algiers, a greater sum than at the rate of four thousand dollars per annum, as a compensation for all his personal services and expenses; nor to any other consul who shall be appointed to reside at any other of the states on the coast of Barbary, a greater sum than at the rate of two thousand dollars per annum, as a compensation for all his personal services and expenses; nor shall there be appointed more than one consul for any one of the said states: Provided, it shall be lawful for the president of the United States to allow to a minister plenipotentiary, or charge des affaires, on going from the United States to any foreign country, an outfit, which shall in no case exceed one year's full salary of such minister or charge des affaires; but no consul shall be allowed an outfit in any case whatever, any usage or custom' to the contrary notwithstanding.

6. - 2. That to entitle any charge des affaires, or secretary of any legation or embassy to any foreign country, or secretary of any minister pleni-potentiary, to the compensation hereinbefore provided, they shall, respectively, be appointed by the president of the United Staies, by and with the advice and consent of the senate; but in the recess of the senate, the president is hereby authorized to make such appointments, which shall be submitted to the senate at the next session thereafter, for their advice and consent; and no compensation shall be allowed to any charge des affaires, or any of the secretaries hereinbefore described, who shall not be appointed as aforesaid: Provided, That nothing herein contained shall be construed to authorize any appointment, of a secretary to a charge des affaires, or to any consul residing on the Barbary coast; or to sanction any claim against the United States for expenses incident to the same, any usage or custom to the contrary notwithstanding.

7. The Act of August 6, 1842, sect. 9, directs, that the president of the United States shall not allow to any minister, resident a greater sum than at the rate of six thousand dollars per annum, as a compensation for all his personal services and expenses: Provided, that it shall be lawful for the president to allow to such minister resident, on going from the United States to any foreign country, an outfit, which shall in no case exceed one year's full salary of such minister resident.

MINISTER, eccles. law. One ordained by some church to preach the gospel.

2. Ministers are authorized in the United States, generally, to marry, and are liable to fines and penalties for marrying minors contrary to the local regulations. As to the right of ministers or parsons, see Am. Jur. No. 30, p. 268; Anth. Shep. Touch. 564; 2 Mass. R. 500; 10 Mass. R. 97; 14 Mass. R. 333; 3 Fairf. R. 487.


MINISTERIAL. That which is done under the authority of a superior; opposed to judidial; as, the sheriff is a ministerial officer bound to obey the judicial commands of the court.


MINISTERIAL TRUSTS. These which are also called instrumental trusts, demand no further exercise of reason or understanding, than every intelligent agent must necessarily employ as to convey an estate. They are a species of special trusts, distinguished from discretionary trusts, which necessarily require much exercise of the understanding. 2 Bouv. Inst. A. 1896.

MINOR, persons. One under the age of twenty-one years, while in a state of infancy; one who has not attained the age of a major. The terms major and minor, are more particularly used in the civil law. The common law terms are adult and infant. See Infant.

MINORITY. The state or condition of a minor; infancy. In another sense, it signifies the lesser number of votes of a deliberative assembly; opposed to majority. (q.v.)

MINT. The place designated by law, where money is coined by authority of the government of the United States.

2. The mint was established by the Act of April 2, 1792, 1 Story's L. U. S. 227, and located at Philadelphia, where, by virtue of sundry acts of congress, it still remains. Act of April 24, 1800, 1 Story, 770; Act of March 3, 1801, 1 Story, 816; Act of May 19, 1828, 4 Sharsw. cont. of Story's L. U. S. 2120.

3. Below will be found a reference to the acts of congress now in force in relation to the mint. Act of January 18, 1837, 4 Sharsw. cont. of Story, L. U. S. 2120; Act of May 19, 1828, 4 Id. 2120; Act of May 3, 1835; Act of February 13, 1837; Act of March 3, 1849; Act of March 3, 1851, s. 11. Vide Coin; Foreign Coin; Money.






MIRROR DES JUSTICES. The Mirror of Justices, a treatise written during the reign of Edward II. Andrew Horne is its reputed author. It was first published in 1642, and in 1768 it was translated into English by William Hughes. Some diversity of opinion seems to exist as to its merits. Pref. to 9 & 10 Co. Rep. As to the history of this celebrated book see St. Armand's Hist. Essays on the Legislative power of England, 68, 59.

MIS. A syllable which prefixed to some word signifies some fault or defect; as, misadventure, misprision, mistrial, and the like.


2. When applied to homicide, misadventure is the act of a man who, in the performance of a lawful act, without any intention to do harm, and after using proper precaution to prevent danger, unfortunately kills another person. The act upon which the death ensues, must be neither malum in se, nor malum prohibitum. The usual examples uuder this head are, 1. When the death ensues from innocent recreations. 2. From moderate and lawful correction (q. v.) in foro domestico. 3. From acts lawful and indifferent in themselves, done with proper and ordinary caution. 4 Bl. Com. 182; 1 East, P C. 221.







MISCASTING. By this term is not understood any pretended miscasting or mis- valuing, but simply an error in auditing and numbering. 4 Bouv. Inst. n. 4128.

MISCOGNlSANT. This word, which is but little used, signifies ignorant or not knowing. Stat. 32 H. VIII. c. 9.

MISCONDUCT. Unlawful behaviour by a person entrusted in any degree: with the administration of justice, by which the rights of the parties and the justice of the, case may have been affected.

2. A verdict will be set aside when any of the jury have been guilty of such misconduct, and a court will set aside an award, if it has been obtained by the misconduct of an arbitrator. 2 Atk. 501, 504; 2 Chit. R. 44; 1 Salk. 71; 3 P. Wms. 362; 1 Dick. 66.

MISCONTINUANCE, practice. By this term is understood a continuance of a suit by undue process. Its effect is the same as a discontinuance. (q. v.) 2 Hawk. 299; Kitch. 231; Jenk. Cent. 57.

MISDEMEANOR, crim. law. This term is used to express every offence infe- rior to felony, punishable by indictment, or by particular prescribed proceedings; in its usual acceptation, it is applied to all those crimes and offences for which the law has not provided a particular name; this word is generally used in contradistinction to felony; misdemeanors comprehending all indictable offences, which do not amount to felony, as perjury, battery, libels, conspiracies and public nuisances.

2. Misdemeanors have sometimes been called misprisions. (q. v.) Burn's Just. tit. Misdemeanor; 4 Bl. Com. 5, n. 2; 2 Bar. & Adolph. 75: 1 Russell, 43; 1 Chitty, Pr. 14; 3 Verm. 347; 2 Hill, S. C. 674; Addis. 21; 3 Pick. 26; 1 Greenl. 226; 2 P. A. Browne, 249; 9 Pick. 1; 1 S. & R. 342; 6 Call. 245; 4 Wend. 229; 2 Stew. & Port. 379. And see 4 Wend. 229, 265; 12 Pick. 496; 3 Mass. 254; 5 Mass. 106. See Offence.

MISDIRECTION, practice. An error made by a judge in charging the jury in a special case.

2. Such misdirection is either in relation to matters of law or matters of fact.

3. - 1. When the judge at the trial misdirects the jury, on matters of law, material to the issue, whatever may be the nature of the case, the verdict will be set aside, and a new trial granted; 6 Mod. 242; 2 Salk. 649; 2 Wils. 269; or if such misdirection appear in the bill of exceptions or otherwise upon the record, a judgment founded on a verdict thus obtained, will be reversed. When the issue consists of a mixed question of law and fact and there is a conceded state of facts, the rest is a question for the court; 2 Wend. R. 596; and a misdirection in this respect will avoid the verdict.

4. - 2. Misdirection as to matters of fact will in some cases be sufficient to vitiate the proceedings. If, for example, the judge should undertake to dictate to the jury. When the, judge delivers, his opinion to the jury on a matter of fact, it should be delivered as mere opinion, and not as direc- tion. 12 John. R. 513. But the judge is in general allowed to very liberal discretion in charging a jury on matters of fact. 1 McCl. & Y. 286.

5. As to its effects, misdirection must be calculated to do injustice; for if justice has been done, and a new trial would produce the same result, a new trial will not be granted on that account, 2 Salk. 644, 646; 2 T. R. 4; 1 B. & P. 338; 5 Mass. R. 1; 7 Greenl. R. 442; 2 Pick. R. 310; 4 Day's R. 42; 5 Day's R. 329; 3 John. R. 528; 2 Penna. R. 325.

MISE, English law. In a writ of right which is intended to be tried by the grand assize, the general issue is called the mise. Lawes, Civ. Pl. 111; 7 Cowen, 51. This word also signifies expenses, and it is so commonly used in the entries of judgments in personal actions; as when the plaintiff recovers, the judgment is quod recuperet damna sua for such value, and pro mises et custagiis for costs and charges for so much, &c.

MISERABILE DEPOSITUM, civ. law. The name of an involuntary deposit, made under pressing necessity; as, for instance, shipwreck, fire, or other inevitable calamity. Poth. Proced. Civ. 5eme part., ch. 1, 1 Louis. Code, 2935.

MISERICORDIA, mercy. An arbitrary or discretionary amercement.

2. To be in mercy, is to be liable to such punishment as the judge may in his discretion inflict. According to Spelman, misericordia is so called, because the party is in mercy, and to distinguish this fine from redemptions, or heavy fines. Spelm. GI. ad voc.; see Co. Litt. 126 b, and Madox's Excheq. c. 14. See Judgment of Misericordia.

MISFEASANCE, torts, contracts. The performance of an act which might lawfully be done, in an improper manner, by which another person receives an injury. It differs from malfeasance, (q. v.) or, nonfeasance (q. v.) Vide, generally, 2 Vin. Ab. 35; 2 Kent, Com. 443; Doct. Pl. 62; Story, Bail. 9.

2. It seems to be settled that there is a distinction between misfeasance and nonfeasance in the case of mandates. In cases of nonfeasance, the mandatary is not generally liable, because his undertaking being gratuitous, there is no consideration to support it; but in cases of misfeasance, the common law gives a remedy for the injury done, and to the extent of that injury. 5 T. R. 143; 4 John. Rep. 84; Story, Bailment, 165; 2 Ld. Raym. 909, 919, 920; 2 Johns. Cas. 92; Doct. & Stu. 210; 1 Esp. R. 74; 1 Russ. Cr. 140; Bouv. Inst. Index h. t.

MISJOINDER, pleading. Misjoinder of causes of action, or counts, consists in joining, in different counts in one declaration, several demands, which the law does not permit to be joined, to enforce several distinct, substantive rights of recovery; as, where a declaration joins a count in trespass with another in case, for distinct wrongs or a count in tort, with another in contract. Gould. 6n PI. c. 4, 98; Archb. Civ. PI. 61, 78 176; Serg. and Rawle, 358; Dane's Ab. Index, h. t.

2. Misjoinder of parties, consists in joining as plaintiffs or defendants, persons, who have not a joint interest. When the misjoinder relates to the plaintiffs, the defendants may, at common law, plead the matter in abatement, whether the action be real; 12 H. IV., 15; personal; Johns. Ch. R. 350, 438; 12 John. R. 1; 2 Mass. R. 293; or mixed; or it will be good cause of nonsuit at the trial. 3 Bos. & Pull. 235. Where the objection appears upon the face of the declaration, the defendant may demur generally; 2 Saund. 145; or move in arrest of judgment; or bring a writ of error.

3. When in actions ex contractu against several, there is a misjoinder of the defendants, as if there be too many persons made defendants, and the objection appears on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; and, if the objection do not appear on the pleadings, the plaintiff may be nonsuited upon the trial, if he fail in proving a joint contract. 5 Johns. R. 280; 2 Johns. R. 213; 11 Johns. R. 101; 5 Mass. R. 270.

4. In actions ex delicto, the misjoinder cannot in general be objected to, because in actions for torts, one defendant may be found guilty and the others acquitted. Archb. Civ. Pl. 79. As to the cases in which a misjoinder may be aided by a nolle prosequi, see 2 Archb. Pr. 218-220.

MISNOMER. The act of using a wrong name.


3. - 1. In general, when the party can be ascertained, a mistake in the name will not avoid the contract. 11 Co. 20, 21; Lord Raym. 304; Hob. 125. Nihil facit error nominis, cum de corpori constat, is the rule of the civil law.

4. - 2. Misnomers of legatees will not in general avoid the legacy, when tho person intended can be ascertained from the context. Example: Thomas Stockdale bequeathed "to his nephew Thomas Stockdale, second son of his brother John Stockdale," 1000ú, John had no son named Thomas, his second son was named William, and he claimed the legacy. It was determined, in his favor, because the mistake of the name was obviated by the correct description given of the person, namely, the second son of John Stockdale. 19 Ves. 381; S. C. Coop. 229; and see Ambl. 175; 3 Leon. 18; Co; Litt. 3 a; Finch's R. 403; Domat l. 4, t. 2, s. 1, n. 22; 1 Rop. Leg. 131.

5. - 3. Misnomers in suits or actions, when the mistake is in the name of one of the parties, must be pleaded in abatement; 1 Chit. Pl. 440; 1 Mass. 76; 5 Mass. 97; 15 Mass. 469; 16 Mass: 146; 10 S. & R. 257; 4 Cowen, R. 148; Coxe, 138; 6 Munf. 219; 2 Wash. C. C. R. 200; 2 Penna. R. 984; 5 Halst. R. 295; 1 Pen. R. 75, 137; 6 Munf. 580; 3 Caines, 170; 1 Tayl. R. 148; 8 Yerg. 101; Harp. R. 49; for the misnomer of one of the parties sued is not material on the general issue, when the identity is proved. 16 East, R. 110.

6. The names of third persons must, be correctly laid, for the error will not be helped by pleading the general issue; but, if a sufficient description be given, it has been held, in a civil case, that the misnomer was immaterial. Example: in an action for medicines alleged to have been furnished to defendant's wife, Mary, and his wife was named Elizabeth, the misnomer was held to be immaterial, the word wife being the material word. 2 Marsh. R. 159. In indictments, the names of third persons must be correctly given. Rose. Cr. Ev. R. 78. Vide, generally, 18 E. C. L. R. 149; 10 East, R. 83, n; Bac. Ab. h. t.; Dane's Ab. h. t.; 1 Vin. Ab. 7; 15 Vin. Ab. 466; 2 Phil, Ev. 2, note b; Bac. Ab. Abatement, D; Archb. Civ. Pl. 305; 1 Metc. & Perk. Dig. Abatement, V; and this Dictionary, Abatement; Contracts; Parties to Contracts; Parties to Actions.

MISPLEADING. Pleading incorrectly, or omitting anything in pleading which is essential to the support or defence of an action, is so called.

2. Pleading not guilty to an action of debt, is an example of the first; and when the plaintiff sets out a title not simply in a defective manner, but sets out a defective title, is an example of the second. See 3 Salk. 365.

MISPRISION, crim. law. 1. In its larger sense, this word is used to signify every considerable misdemeanor, which has not a certain name given to it in the law; and it is said that a misprision is contained in every treason or felony whatever. 2. In its narrower sense it is the concealment of a crime.

2. Misprision of treason, is the concealment of treason, by being merely passive; Act of Congress of April 30, 1790, 1 Story's L. U. S. 83; 1 East, P. C. 139; for if any assistance be given, to the traitor, it makes the party a principal, as there is no accessories in treason.

3. Misprison of felony, is the like concealment of felony, without giving any degree of maintenance to the felon; Act of Congress of April 30, 1790, s. 6, 1 Story's L. U. S. 84; for if any aid be given him, the party becomes an accessory after the fact.

4. It is the duty of every good citizen, knowing of a treason or felony having been committed; to inform a magistrate. Silently to observe the commission of a felony, without using any endeavors to apprehend the offender, is a misprision. 1 Russ. on Cr. 43; Hawk. P. C. c. 59, s. 6; Id. Book 1, c. s. 1; 4 Bl. Com. 119.

5. Misprisions which are merely positive, are denominated contempts or high misdemeanors; as, for example, dissuading a witness from giving evidence. 4 Bl. Com. 126.

MISREADING, contracts. When a deed is read falsely to an illiterate or blind man, who is a party to it, such false reading amounts to a fraud, because the contract never had the assent of both parties. 5 Co. 19; 6 East, R. 309; Dane's Ab. c. 86, a, 3, 7; 2 John. R. 404; 12 John. R. 469; 3 Cowen, R. 537.

MISRECITAL, contracts, pleading. The incorrect recital of a matter of fact, either in an agreement or a plea; under the latter term is here understood the declaration and all the subsequent pleadings. Vide Recital, and the cases there cited; and Bac. Ab. Pleas, &c. B. 5, n. 3.



MISSING SHIP, mar. law. When a ship or other vessel has been at sea for a much longer time than she ought to have been, she is presumed to have perished there with all on board, and such a vessel is called a missing ship.

2. There is no precise time fixed as to when the presumption is to arise, and this must depend upon the circumstances of each case. 2 Str. R. 1199; Park. Ins. 63; Marsh. Ins. 488; 2 Johns. R. 150; 1 Caines' R. 525; Holt's N. P. Rep. 242.

MISSISSIPPI. The name of one of the new states of the United States of America. This state was admitted into the Union, by a resolution of congress, passed the 10th day of December, 1817; 3 Story's L. U. S. 1716; by which it is "Resolved, that the state of Mississippi, shall be one, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with these original states, in all respects whatever."

2. The constitution of this state was adopted at the town of Washington, the 15th day of August, 1817. It was revised by a convention, and adopted on the 26th day of October, 1832, when it went into operation.

3. By the second article of the constitution, a provision is made for the distribution of powers as follows, namely;

1. The powers of the government of the state of Mississippi, shall be divided into three distinct departments, and each of them confided to a separate body of magistracy; to wit; those which are, legislative to one, those which are judicial to another, and those which are executive to another.


5. - 1st. The legislative power of this state is vested in two distinct branches the one styled "the senate" the other, "the house of representatives;" and both together, "the legislature of the state of Mississippi.

6. The following regulations, contained in the third article of the constitution, apply to both branches of the legislature.

7. - 16. Each house may determine the rules of its own proceedings punish members for disorderly behaviour, and, with the consent of two-thirds, expel a member, but not a second time for the same cause; and shall have all other powers necessary for a branch of the legislature of a free and independent state.

8. - 17. Each house shall keep a journal of its proceedings, and publish the same; and the yeas and nays of the members of either house, on any question, shall, at the desire of any three members present, be entered on the journal.

9. - 18. When vacancies happen in either house, the governor, or the person exercising the powers of the governor, shall issue writs of election to fill such vacancies.

10. - 19. Senators and representatives shall, in all cases, except of treason, felony, or breach of the peace, be privileged from arrest during the session of the legislature and in going to and returning from the same, allowing one day for every twenty miles such member may reside from the place at which the legislature is convened.

11. - 20. Each house may punish, by imprisonment, during the session, any person, not a member, for disrespectful or disorderly behaviour in its presence, or for obstructing any of its proceedings: Provided, such imprisonment shall not, at any one time, exceed forty-eight hours.

12. - 21. The doors of each house shall be open, except on such occasions of great emergency, as, in the opinion of the house, may require secrecy.

13. - 22. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting.

14. - 23. Bills may originate in either house, and be amended, altered or rejected by the other, but no bill shall have the force of a law, until on three several days, it be read in each house, and free discussion be allowed thereon, unless four-fifths of the house in which the bill shall be pending, may deem it expedient to dispense with this rule; and every bill having passed both houses, shall be signed by the speaker and president of their respective houses.

15. - 24. All bills for raising revenue shall originate in the house of representatives, but the senate may amend or rejec

t them as other bills.16. - 25. Each member of the legislature shall receive from the public treasury a compensation for his services, which may be increased or diminished by law, but no increase of compensation shall take effect during the session at which such increase shall have been made.

17. - 26. No senator or representative shall, during the term for which be shall have been elected, nor for one year thereafter, be appointed to any civil office of profit under this state, which shall have been created, or the emoluments of which shall have been increased, during such term, except such offices as may be filled, by elections by the people; and no member of either house of the legislature shall, after the commencement of the first session of the legislature after his election and during the remainder of the term for which he is elected, be eligible to any office or place, the appointment to which may be made in whole or in part by either branch of the legislature.

18. - 27. No judge of any court of law or equity, secretary of state, attorney general, clerk of any court of record, sheriff or collector, or any, person bolding a lucrative office under the United States or this state, shall be eligible to the legislature: Provided, That offices in the militia, to which there

is attached no annual salary, and the office of justice of the peace, shall not be deemed lucrative. 19. - 28. No person who hath heretofore been, or hereafter may be, a collector or holder of public moneys, shall have a seat in either house of the legislature, until such person shall have accounted for, and paid into the treasury, all sums for which he may be accountable.

20.- 29. The first election for senators and representatives shall be general throughout the state, and shall be held on the first Monday and day following in November 1833; and thereafter, there shall be biennial elections for senators to fill the places of those whose term of service may have expired.

21. - 30. The first and all future sessions of the legislature shall be held in the town of Jackson, in the county of Hinds, until the year 1850. During the first session thereafter, the legislature shall have power to designate by law the permanent seat of government: Provided, however, That unless such designation be then made by law, the seat of government shall continue permanently at the town of Jackson. The first session shall commence on the third Monday in November, in the year 1833. And in every two years thereafter, at such time as may be prescribed by law.

22. - 1. The senate. Under this lead will be considered the qualification of senators; their number; by whom they are elected; the time for which they are elected.

1. No person shall be a senator unless he be a citizen of the United States; and shall have been an inhabitant of this state for four years next preceding his election, and the last year thereof a resident of the district for which he shall be chosen, and have attained the age of thirty years. Art. 3, s. 14.

2. The number of senators shall never be less than one-fourth, nor more than one-third, of the whole number of representatives. Art. 3, s. 10. 3. The qualifications of electors is as follows: every free white male person of the age of twenty-one years or upwards, who shall be a citizen of the United States, and shall have resided in this state one year next preceding an election, and the last four months within the county, city, or town in which he offers to vote, shall be deemed a qualified elector. Art. 3, s. 1. 4. The senators shall be chosen for four years, and on their being convened in consequence of the first election, they shall be divided by lot from their respective districts into two classes, as nearly equal as can be. And the seats of the senators of the first class shall be vacated at the expiration of the second year.

23. - 2. The house of representatives, will be considered in the same order that has been observed in relation, to the senate. 1. No person shall, be a representative unless he be a citizen of the United States, and shall have been an inhabitant of this state two years next prceeding his election, and the last year thereof a resident of the county, city or town for which be shall be chosen; and shall have attained the age of twenty-one years. Art. 3, s. 7. 2. The number of representatives shall not be less than thirty-six, nor more than one hundred. Art. 3, s. 9. 3. They are elected by the same electors who elect senators. Art. 3, s. 1. 4. The representatives are chosen every two years on the first Monday and day following in November. They serve two years from the day of the commencement of the general election and no longer. Art. 3, s. 5, and 6.

24. - 2d. The judicial power. By the fourth article of the constitution, the judicial power is distributed as follows, namely:

1. The judicial power of this state shall be vested in one high court of errors and appeals, and such other courts of law and equity as are hereafter provided for in this constitution.

25. - 2. The high court of errors and appeals shall consist of three judges, any two of whom shall form a quorum. The legislature shall divide the state into three districts, and the qualified electors of each district shall elect one of said judges for the term of six years.

26. - 3. The office of one of said judges shall be vacated in two years, and of one in four years, and of one in six years, so that at the expiration of every two years, one of said judges shall be elected as aforesaid.

27. - 4. The high court of errors and appeals shall have no jurisdiction, but such as properly belongs to a court of errors and appeals.

28. - 5. All vacancies that may occur in said court, from death, resignation or removal, shall be filled by election as aforesaid. Provided, however, that if the unexpired term do not exceed one year, the vacancy sbalI be filled by executive appointment.

29. - 6. No person shall be eligible to the office of judge of the high court of errors and appeals, who shall not have attained, at the time of his election, the age of thirty yers.

30. - 7. The high court of errors and appeals shall be held twice in each year, at such place as the legislature shall direct, until the year eighteen hundred and thirty-six, and afterwards at the seat of government of the state.

31. - 8. Tbe secretary of state, on receiving all the official returns of the first election, shall proceed, forthwith, in the presence and with the assistance of two justices of the peace, to determine by lot among the three candidates having the highest number of votes, which of said judges elect shall serve for the term of two years, which shall serve for the term of four years, and which shall serve for the term of six years, and having so determined the same, it shall be the duty of the governor to issue commissions accordingly.

32. - 9. No judge shall sit on the trial of any cause when the parties or either of them shall be connected with him by affinity or consanguinity, or when he may be interested in the same, except by consent of the judge and of the parties; and whenever a quorum of said court are situated as aforesaid, the governor of the state shall in such case specially commission two or more men of law knowledge for the determination thereof.

33. - 10. The judges of said court shall, receive for their services a compensation to be fixed by law, which shall not be diminished during their continuance in office.

34. - 11. The judges of the circuit court shall be elected by the qualified electors of each judicial district, and hold their offices for the term of four years, and reside in their respective districts.

35. - 12. No person shall be eligible to the office of judge of the circuit court, who shall not, at the time of his election, have attained the age of twenty-six years.

36. - 13. The state shall be divided into convenient districts, and each district shall contain not less than three nor more than twelve counties.

37. - 14. The circuit court shall have original jurisdiction in all matters, civil and criminal, within this state; but in civil cases only when the principal of the sum in controversy exceeds fifty dollars.

38.- 15. A circuit court shall be held in each county of this state, at least twice in each year; and the judges of said courts shall interchange circuits with each other, in such manner as may be prescribed by law, and shall receive for their services a compensation to be fixed by law, which shall not be diminished during their continuance in office.

39. - 16. A separate superior court of chancery, shall be establisbed, with full jurisdiction in all matters of equity; Provided, however, the legislature may give to the circuit courts of each county equity jurisdiction in all cases where the value of the thing, or amount in controversy, does not exceed five hundred dollars; also, in all cases of divorce, and for the foreclosure of mortgages. The chancellor shall be elected by the qualified electors of the whole state, for the term of six years, and shall be at least thirty years old at the time of his election.

40. - 17. The style of all process, shall be "The state of Mississippi," and all prosecutions shall be carried on in the name and by the authority of "The state of Mississippi," and shall conclude "against the peace and dignity of the same."41. - 18. A court of probates shall be established in each county of this state, with jurisdiction in all matters testamentary and of administration in orpbans' business and the allotment of dower, in cases of idiotcy and lunacy, and of persons non compos mentis; the judge of said court shall be elected by the qualified electors of the respective counties, for the term of two years.

42. - 19. The clerk of the high court, of errors and appeals shall be appointed by said court, for the term of four years, and the clerks of the circuit, probate, and other inferior courts, shall be elected by the qualified electors of the respective counties, and shall hold their offices for the term of two years.

43. - 20. The qualified electors of each county shall elect five persons for the term of two years, who shall constitute a board of police for each county, a majority of whom may transact business; which body shall have full jurisdiction over roads, highways, ferries, and bridges, and all other matters of county police, and shall order all county elections to fill vacancies that may occur in the offices of their respective counties: the clerk of the court of probate shall be the clerk of the board of county police.

44. - 21. No person shall be eligible as a member of said board, who shall not have resided one year in the county: but this qualification shall not extend to such new counties as may hereafter be established until one year after tbeir orgainization; and all vacancies that may occur in said board shall be supplied by election as aforesaid to fill the unexpired term.

45. - 22. The judges of all the courts of the state, and also the members of the board of county police, shall in virtue of their offices be conservators of tbe peace, and shall be by law vested with ample powers in this respect.

46. - 23. A competent number of justices of the peace and constables shall be chosen in each county by the qualified electors thereof, by districts, who shall hold their offices for the term of two years. The jurisdiction of justices of the peace shall be limited to causes in which the principal of the amount in controversy shall not exceed fifty dollars. In all causes tried by a justice of the peace, the right of appeal shall be secured under such rules and regulations as shall be prescribed by law.

47. - 24. The legislature may from time to time establish, such other inferior courts as may be deemed necessary, and abolish the same whenever they shall deem it expedient.

48. - 25. There shall be an attorney general elected by the qualified electors of the state: and a competent number of district attorneys shall be elected by qualified voters of their respective districts, whose compensation and term of service, shall be prescribed by law.

49. 26. The legislature shall, provide by law for determining contested elections of judges of the high court of errors and appeals, of the circuit and probate courts, and other officers.

50. - 27. The judges of the several courts of this state, for wilful neglect of duty or other reasonable cause, shall be removed by the governor on the address of two-thirds of both houses of the legislature; the address to be by joint vote of both houses. The cause or causes for which such removal shall be required, shall be stated at length in such address, and on the journals of each house. The judge so intended to be removed, shall be notified and admitted to a hearing in his own defence before any vote for such address shall pass; the vote on such address shall be taken by yeas and nays, and entered on the journals of each house.

51. - 28. Judges of probate, clerks, sheriffs, and other county officers, for wilful neglect of duty, or misdemeanor in office, shall be liable to presentment or indictment by a grand jury, and trial by a petit jury, and upon conviction shall be removed from office.

52. - 3d. The chief executive power of this state shall be vested in a governor. It will be proper to consider his qualifications; by whom he is elected; the time for which he is elected; his rights, duties and powers; and how, vacancies are supplied when the office of governor becomes vacant.

53. - 1. The governor shall be at least thirty years of age, shall have been a citizen of the United States for twenty years, shall have resided in this state at least five years next preceding the day of his election, and shall not be capable of holding the office more than four in any term of six years. Art. 5, s. 3.

54. - 2. The governor shall be elected by the qualified elector's of the state. Art. 5, s. 2.

55. - 3. He shall hold his office for two years from the time of his installation. Art 5, s. 1.

56. - 4. He shall, at stated times, receive for his services a compensation which shall not be increased or diminished during the term for which he shall be elected. Art. 5 s. 4.

57. - 5. He shall be commander-in-chief of the army and navy in this state, and of the militia, except when they shall be called into the service of the United States. Art. 5, s. 5.

58. - 6. He may require information in writing, from the officers in the executive department, on any subject relating to the duties of their respective offices. Art. 5, s. 6.

59. - 7. He may, in cases of emergency, convene the legislature at the seat of government, or at a different place, if that shall have become, since their last adjournment, dangerous from an enemy or from disease; and in case of disagreement between the two houses with respect to the time of adjournment, adjourn them to such time as he shall think proper, not beyond the day of the next stated meeting of the legislature. Art. 5, s. 7.

60. - 8. He shall from time to time give to the legislature information of the state of the government, and recommend to their consideration, such measures as he may deem necessary and expedient. Art. 5, s. 8.

61. - 9. He shall take care that the laws be faithfully executed. Art. 5, s. 9.

62. - 10. In all criminal and penal cases, except in those of treason and impeachment, he shall have power to grant reprieves and pardons, and remit fines; and in cases of forfeiture to stay the collection until the end of the next session of the legislature, and to remit forfeitures by and with the advice and consent of the senate. In cases of treason he shall have power to grant reprieves by and with the advice and consent of the senate, but may respite the sentence until the end of the next session of the legislature. Art. 5, s. 10.

63. - 11. All commissions shall be in the name and by the authority of the state of Mississippi; be sealed with the great seal, and signed by the governor, and be attested by the secretary of state. The governor is also invested with the veto power. Art. 5, s. 15 and 16.

64. Whenever the office of governor shall become vacant by death, resignation, removal from office, or otherwise, the president of the senate shall exercise the office of governor until another governor shall be duly qualified; and in case of the death, resignation, removal from office, or other disqualifications of the president of the senate so exercising the office of governor, the speaker of the house of representatives shall exercise the office, until a president of the senate shall have been chosen; and when the office of governor, president of the senate, and speaker of the house shall become vacant, in the recess of the senate, the person acting as secretary of state for the time being, shall by proclamation convene the senate, that a president may be chosen to exercise the office of governor. Art. 5, s. 17.






















20. - 15. The courts respectively shall appoint their clerks, who shall hold their offices during good behaviour. For any misdemeanor in office, they shall be liable to be tried aud removed by the Supreme court, in such manner as the general assembly shall by law provide.






2. Mistakes in making a contract are distinguished ordinarily into, first, mistakes as to the motive; secondly, mistakes as to the person, with whom the contract is made; thirdly, as to the subject matter of the contract; and, lastly, mistakes of fact and of law. See Story, Eq. Jur. 110; Bouv. Inst. Index, h. t.; Ignorance; Motive.



MISTRIAL. An erroneous trial on account of some defect in the persons trying, as if the jury come from the wrong county or because there was no issue formed, as if no plea be entered; or some other defect of jurisdiction. 3 Cro. 284; Hob. 5; 2 M. & S. 270.

MISUSE OF PROPERTY. The unlawful use of property.

2. The misuse of personal property delivered lawfully to the defendant, is a conversion which will enable the owner immediately to maintain trover. 6 Shepl. 382; 8 Leigh, 565; 3 Bouv. Inst. n. 3525.

MISUSER. An unlawful use of a right.


MITIGATION. To make less rigorous or penal.




MITIOR SENSUS, construction. The more lenient sense. It was formerly held in actions for libel and slander, that when two or more constructions could be put upon the words, one of which would not be actionable the words were to be so construed, for verba accipienda sunt in mitiore sensu. 4 Co. 13, 20. It is now, however, well established, that they are not to be taken in the more lenient, or more severe sense, but in the sense which fairly belongs to them, and which they were intended to convey. 2 Campb. 403; 2 T. R. 206.

MITTER, law-French. To put, to send, or to pass; as mitter' l'estate, to pass the estate; mitter le droit, to pass a right. 2 Bl. Com. 324; Bac. Ab. Release, C; Co. Lit. 193, 273, b. Mitter a large, to put or, set at large. Law French Dict. h. t.




MIXED ACTIONS, practice. An action partaking of a real and personal action by which real property is demanded, and damages for a wrong sustained: an ejectment is of this nature. 4 Bouv. Inst. n. 3650.

MIXED OR COMPOUND LARCENY, crim. law. A larceny which has all the properties of simple larceny, and is accompanied with one or both the aggravations of violence to the person or taking from the house.

MIXED GOVERNMENT. A government composed of some of the powers of a monarchical, aristocratical, and democratical government. See Government.

MIXED PROPERTY. That kind of property which is not altogether real nor personal, but a compound of both. Heir-looms, tomb-stones, monuments in a church, and title deeds to an estate, are of this nature. 1 Ch. Pr. 95; 2 Bl. Com. 428; 3 Barn. Adolph. 174; 4 Bingh. R. 106; S. C. 13 Engl. Com. Law Rep. 362.

MIXT CONTRACT, civil law. One in which one of the parties confers a benefit on the other, and requires of the latter something of less value than what he has given; as a legacy charged with something of less value than the legacy itself. Poth. Oblig. n. 12. See Contract.

MIXTION. The putting of different goods or chattels together in such a manner that they can no longer be separated; as putting the wines of two different persons into the same barrel, the grain of several persons into the same bag, and the like. 2. The intermixture may be occasioned by the wilful act of the party, or owner of one of the articles; by the wilful act of a stranger; by the neglilence of the owner or a stranger; of by accident. See, as to the rights of the parties under each of these circumstances, the article Confusion of goods. Vide Aso & Man. Inst. B. 2, t.

MOBBING AND RIOTING, Scotch law. The general term mobbing and rioting includes all those convocations of the lieges for violent and unlawful purposes, which are attended with injury to the persons or property of the lieges, or terror and alarm to the neighborhood in which it takes place. The two phrases are usually placed together, but, nevertheless, they have distinct meanings, and are sometimes used separately in legal language; the word mobbing being peculiarly applicable to the unlawful assemblage and violence of a number of persons, and that of rioting to the outrageous behaviour of a single individual. Alison, Prin. C. Law of Scotl. c. 23, p. 509.


2. The Act of Congress of July 4, 1836, section 6, requires an inventor who is desirous to take out a patent for his invention, to furnish a model of his invention, in all cases which admit of represent ation by model, of a convenient size to exhibit advantageously its several parts.

MODERATE CASTIGAVIT, pleading. The name of a plea in trespass by which the defendant justifies an assault and battery, because he moderately corrected the plaintiff, whom he had a right to correct. 2 Chit. Pl. 676; 2 Bos. & Pull. 224. Vide Correction, and 15 Mass. R. 347; 2 Phil. Ev. 147; Bac. Ab. Assault, &c. C.

2. This plea ought to disclose, in general terms, the cause which rendered the correction expedient. 3 Salk. 47.

MODERATOR. A person appointed to preside at a popular meeting; sometimes he is called a chairman.



MODO ET FORMA, pleading. In manner and form. These words are used in tendering an issue in a civil case.

2. Their legal effect is to put in issue all material circumstances and no other, they may therefore be always used with safety.

3. These words are sometimes of the substance of the issue and sometimes merely words of form. When they are of the substance of the issue, they put in issue the circumstances alleged as concomitants of the principal matter denied by the pleader, such as time, place, manner, &c. When not of the substance of the issue they do not put in issue such circumstances. Bac. Ab. Plea, G 1; Lawes' Pl. 120; Hardr. 39. To determine when they are of the substance of the issue and when not so, the established criterion is, that when the circumstances of manner, time, place, &c. alleged in connexion with the principal fact traversed, are originally and, in themselves material, and therefore necessary to be proved as stated, the words modo et forma are of the substance of the issue, and do, consequently, put those concomitants in issue; but that when such concomitants or circumstances are not in themselves material, and therefore not necessary to be proved as stated, the words modo et forma, are not of the substance of the issue, and consequently do not put them in issue. Lawes on Pl. 120; and see Gould, Pl. c. 6, 22; Steph. Pl. 213; Dane's Ab. Index, h. t.; Kitch. 232. See Bac. Ab. Verdict, P; Vin. Ab. Modo et Forma.

MODUS, civil law. Manlier; means; way.

MODUS, eccl. law. Where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, as a pecuniary compensation, or the performance of labor, or when any means are adopted by which the general law of tithing is altered, and a new method of taking them is introduced, it is called a modus decimandi, or special manner of taking tithes. 2 Bl. Com. 29.

MOHATRA, French law. The name of a fraudulent contract, made to cover a usurious loan of money.

2. It takes place when an individual buys merchandise from another oil a credit at a high price, to sell it immediately to the first seller, or to a third person, who acts as his agent, at a much less price for cash. 16 Toull. n. 44; 1 Bouv. Inst. n. 1118.

MOIETY. The half of anything; as, if a testator bequeath one moiety of his estate to A, and the other to B, each shall take an equal part. Joint tenants are said to hold by moieties. Lit. 125; 3 M. G. & S. 274, 283

MOLESTATION, Scotch law, The name of an action competent to the proprietor of a landed estate, against those who disturb his possession, It is chiefly used in questions of commonty, or, of controverted marches. Ersk. Prin. B. 4, t. 1, n. 48.

MOLITER MANUS IMPOSUIT, pleading. In an action of trespass to the person, the defendant frequently justifies by pleading that he used no more force than was necessary to remove the plaintiff who, was unlawfully in the house of the defendant, and for this purpose he gently laid his hands upon him, molitur manus imposuit.

2. This plea may be used whenever the defendant laid hold of the plaintiff to prevent his committing a breach of the peace.

3. When supported by evidence, it is a complete defence. Ham. N. P. 149; 2 Chit. Pl. 574, 576; 12 Vin. Ab. 182; Bac. Abr. Assault and Battery, C 8.

MOLITURA. Toll paid for grinding at a mill; multure. Not used.

MONARCHY, government. That form of government in which the sovereign power is entrusted to the hands of a single magistrate. Toull. tit. prel. n. 30. The country governed by a monarch is also called a monarchy.

MONEY. Gold, silver, and some other less precious metals, in the progress of civilization and commerce, have become the common standards of value; in order to avoid the delay and inconvenience of regulating their weight and quality whenever passed, the governments of the civilized world have caused them to be manufactured in certain portions, and marked with a Stamp which attests their value; this is called money. 1 Inst. 207; 1 Hale's Hist. 188; 1 Pardess. n. 22; Dom. Lois civ. liv. prel. t. 3, s. 2, n. 6.

2. For many purposes, bank notes; (q. v.) 1 Y. & J, 380; 3 Mass. 405; 14 Mass. 122; 2 N. H. Rep. 333; 17 Mass. 560; 7 Cowen, 662; 4 Pick. 74; Bravt. 24; a check; 4 Bing. 179; S. C. 13 E. C. L. R. 295; and negotiable notes; 3 Mass. 405; will be so considered. To support a count for money had and received, the receipt by the defendant of bank notes, promissory notes: 3 Mass. 405; 3 Shepl. 285; 9 Pick. 93; John. 132; credit in account, in the books of a third person; 3 Campb. 199; or any chattel, is sufficient; 4 Pick. 71; 17 Mass. 560; and will be treated as money. See 7 Wend. 311; 8 Wend. 641; 7 S. & R. 246; 8 T. R. 687; 3 B. & P. 559; 1 Y. & J. 380.

3. The constitution of the United States has vested in congress the power "to coin money, and regulate the value thereof." Art. 1, s. 8.

4. By virtue of this constitutional authority, the following provisions have been enacted by congress.

1. Act of April 2, 1792, 1 Story's L. U. S. 229.

1. 9. That there shall be from time to time, struck and coined at the said mint, coins of gold, silver, and copper, of the following denominations, values, and descriptions, viz: Eagles; each to be of the value of ten dollars, or units, and to contain two hundred and forty-seven grains and four-eighths of a grain of pure, or two hundred and seventy grains of standard, gold. Half eagles; each to be of the value of five dollars, and to contain one hundred and twenty-three grains and six-eighths of a pure, or one hundred and thirty-five grains of standard gold. Quarter eagles; each to be of the value of two dollars and a half dollar, and to contain sixty-one grains and seven-eighths of a grain of pure, or sixty-seven grains and four-eighths of a grain of standard gold. Dollars, or units; each to be of the value of a Spanish milled dollar, as the same is now current, and to contain three hundred and seventy-one grains and four-sixteenth parts of a grain of pure, or four hundred and sixteen grains of standard silver. Half dollars; each to be of half the value of the dollar or unit, and to contain one hundred and eighty-five grains and ten-sixteenth parts of a grain of pure, or two hundred and eight grains of standard, silver. Quarter dollars; each to be of one-fourth the value of the dollar, or unit, and to contain ninety-two grains and thirteen-sixteenth parts of a grain of pure, or one hundred and four grains of standard, silver. Dimes; each to be of the value of one-tenth of a dollar, or unit, and to contain thirty-seven grains and two sixteenth parts of a grain of pure, or forty-one grains and three-fifth parts of a grain of standard, silver. Half dimes; each to be of the value of one-twentieth of dollar, and to contain eighteen grains and nine-sixteenth parts of a grain of pure, or twenty grains and four-fifth parts of a grain of standard, silver. Cents; each to be of the value of the one-hundredth part of a dollar, and to contain eleven pennyweights of copper. Half cents; each to be of the value of half a cent, and to contain five pennyweights and, a half a pennyweight of copper.

5. - 10. That upon the said coins, respectively, there shall be the following devises and legends, namely: Upon one side of each of the said coins there shall be an impression emblematic of liberty, with an inscription of the word liberty, and the year of the coinage; and, upon the reverse of each of the gold and silver coins, there shall be the figure or representation of an eagle, with this inscription, "United States of America:" and, upon the reverse of each of the copper coins there shall be an inscription which shall express the denomination of the piece, namely, cent or half cent, as the case may require.

6. - 11. That the proportional value of gold to silver in all coins which shall, by law, be current as money within the United States, shall be as fifteen to one, according to quantity in weight, of pure gold or pure silver; that is to say, every fifteen pounds weight of pure silver shall be of equal value in all payments, with one pound weight of pure gold; and so in proportion, as to any greater or less quantities of the respective metals.

7. - 12. That the standard for all gold coins of the United States, shall be eleven parts fine to one part alloy: and accordingly, that eleven parts in twelve, of the entire weight of each of the said coins, shall consist of pure gold, and the remaining one-twelfth part of alloy; and the said alloy shall be composed of silver and copper in such proportions, not exceeding one-half silver, as shall be found convenient; to be regulated by the director of the mint for the time being, With the approbation of the president of the United States, until further provision shall be made by law. And to the end that the necessary information may be had in order to the making of such further provision, it shall be the duty of the director of the mint, at the expiration of a year after commencing the operations of the said mint, to report to congress the practice thereof during the said year, touching the composition of the alloy of the said gold coins, the reasons for such practice, and the experiments and observations which shall have been made concerning the effects of different proportions of silver and copper in the said alloy.

8.- 13. That the standard for all silver coins of the United States, shall be one thousand four hundred and eighty-five parts fine to one hundred and seventy-nine parts alloy; and, accordingly, that one thousand four hundred and eighty-five parts in one thousand six hundred and sixty-four parts, of the entire weight of each of the said coins, shall consist of pure silver, and the remaining one hundred and seventy nine parts of alloy, which alloy shall be wholly of copper.

9. - 2. Act of June 28, 1834, 4 Sharsw. cont. of Story's Laws U. S. 2376.

1. That the gold coins of the United States shall contain the following quantities of metal, that is to say: each eagle shall contain two hundred and thirty-two grains of pure gold, and two hundred and fifty-eight grains of standard gold; each half-eagle, one hundred and sixteen grains of pure gold, and one hundred and twenty-nine grains of standard gold; each quarter eagle shall contain fifty-eight grains of pure gold, and sixty-four and a half grains of standard gold; every such eagle shall be of the value of ten dollars; every such half eagle shall be of the value of five dollars; and every such quarter eagle shall be of the value of two dollars and fifty cents; and the said gold coins shall be receivable in all payments, when of full weight, according to their respective values; and when of less than full weight, at less values, proportioned to their respective actual weights.

10. - 2. That all standard gold or silver deposited for coinage after the thirty-first of July next, shall be paid for in coin under the direction of the secretary of the treasury, within five days from the making of such deposit, deducting from the amount of said deposit of gold and silver, one-half of one per centum: Provided, That no deduction shall be made unless said advance be required by such depositor within forty days.

11. - 3. That all gold coins of the United States, minted anterior to the thirty-first day of July next, shall be receivable in all payments at the rate of ninety-four and eight-tenths of a cent per pennyweight.

12. - 3. Act of January 18, 1837, 4 Sharsw. cont. of Story's Laws U. S. 2524. 9. That of the silver coins, the dollar shall be of the weight of four hundred and twelve and one-half grains; the half dollar of the weight of two hundred and six and one-fourth grains; the quarter dollar of the weight of one hundred and three and one-eighth grains; the dime, or tenth part of a dollar, of the weight of forty-one and a quarter grains; and the half dime, or twentieth part of a dollar, of the weight of twenty grains, and five-eighths of a grain. And that dollars, half dollars, and quarter dollars, dimes and half dimes, shall be legal tenders of payment, according to their nominal value, for any sums whatever.

13. - 10. That of the gold coins, the weight of the eagle shall be two hundred and fifty-eight grains; that of the half eagle, one hundred and twenty-nine grains; and that of the quarter eagle, sixty-four and one-half grain;. And that for all sums whatever, the eagle shall be a legal tender of payment for ten dollars; the half eagle for five dollars and the quarter eagle for two and a half dollars.

14.- 11. That the silver coins heretofore issued at the mint of the United States, and the gold coins issued since the thirty-first day of July, one thousand eight hundred and thirty-four, shall continue to be legal tenders of payment for their nominal values, on the same terms as if they were of the coinage provided for by this act.

15. - 12. That of the copper coins, the weight of the cent shall be one hundred and sixty-eight grains, and the weight of the half cent eighty four grains. And the cent shall be considered of the value of one hundredth part of a dollar, and the half cent of the value of one two-hundredth part of a dollar.

16. - 13. That upon the coins struck at the mint, there shall be the following devices and legends; upon one side of each of said coins, there shall be an impression emblematic of liberty, with an inscription of the word LIBERTY, and the year of the coinage; and upon the reverse of each of the gold and silver coins, there shall be the figure or representation of an eagle, with the inscription United States of America, and a designation of the value of the coin; but on the reverse of the dime and half dime, cent and half cent, the figure of the eagle shall be omitted.

17. - 38. That all acts or parts of acts heretofore passed, relating to the mint and coins of the United States, which are inconsistent with the provisions of this act, be, and the same are hereby repealed.

18. - 4. Act of March 3, 1825, 3 Story's L. U. S. 2005.

20. That, if any person or persons shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or willingly aid or assist in falsely making, forging, or counterfeiting any coin, in the resemblance or similitude of the gold or silver coin, which has been, or hereafter may be, coined at the mint of the United States; or in the resemblance or similitude of any foreign gold or silver coin which by law now is, or hereafter may be made current in the United States; or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the United States, from any foreign place, with intent to pass, utter, publish, or sell, as true, any such false, forged, or counterfeited coin, knowing the same to be false, forged, or counterfeited, with intent to defraud any body politic, or corporate, or any other person or persons, whatsoever; every person, so offending, shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine, not exceeding five thousand dollars, and by imprisonment, and confinement to hard labor, not exceeding ten years, according to the, aggravation of the offence.

19. - 21. That, if any person or persons shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging or counterfeiting any coin, in the resemblance or similitude of any copper coin, which has been, or hereafter may be, coined at the mint of the United States; or shall pass, utter, publish, or sell, or attempt to pass, utter, publish or sell, or bring into the United States, from any foreign place, with intent to pass, utter, publish, or sell as true, any such false, forged, or counterfeited coin, with intent to defraud any body politic, or corporate, or any other person or persons whatsoever; every person so offending, shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine, not exeeeding one thousand dollars, and by imprisonment, and confinement, to hard labor, not exceeding three years. See generally, 1 J. J. Marsh. 202; 1 Bibb, 330; 2 Wash. 282; 3 Call, 557; 5 S. & R. 48; 1 Dall. 124; 2 Dana, 298; 3 Conn. 534; 4 Harr. & McHen. 199.

20. - 5. Act of March 3, 1849, Minot's Statutes at Large of U. S. 397.


22. - 2. That, for all sums whatever, the double eagle shall be a legal tender for twenty dollars, and the gold dollar shall be a legal tender for one dollar.

23. - 3. That all laws now in force in relation to the coins of the United States, and the striking and coining the same, shall, so far as applicable, have full force and effect in relation to the coins herein authorized, whether, the said laws are penal or otherwise; and whether they are for preventing counterfeiting or debasement, for protecting the currency, for regulating and guarding the process of striking and coining, and the preparations therefor, or for the security of the coin, or for any other purpose.

24. - 4. That, in adjusting the weights of gold coins henceforward, the following deviations from the standard weight shall not be exceeded in any of the single pieces; namely, in the double eagle, the eagle, and the half eagle, one half of a grain, and in the quarter eagle, and gold dollar, one quarter of a grain; and that, in weighing a large number of pieces together, when delivered from the chief coiner to the treasurer, and from the treasurer to the depositors, the deviation from the standard weight shall not exceed three pennyweights in one thousand double eagles; two pennyweights in one thousand, eagles; one and one half pennyweights in one thousand half eagle;; one pennyweight in one thousand quarter eagles; and one half of a pennyweight in one thousand gold dollars.

25. - 6. Act of March 3, 1851. Minot's Statutes at Large, U. S. 591.

26. - 11. That from and after the passage of this act, it shall be lawful to coin at the mint of the United States and its branches, a piece of the denomination and legal value of three cents, or three hundredths of a dollar, to be composed of three-fourths silver and one-fourth copper and to weigh twelve grains and three eighths of a grain; that the said coin shall bear such devices as shall be conspicuously different from those of the other silver coins, and of the gold dollar, but having the inscription United States of America, and its denomination and date; and that it shall be a legal tender in payment of debts for all sums of thirty cents and under. And that no ingots shall be used for the coinage of the three cent pieces herein authorized, of which the quality differs more than five thousandths from the legal standard; and that in adjusting the weight of the said coin, the following deviations from the standard weight shall not be exceeded, namely, one half of a grain in the single piece, and one pennyweight in a thousand pieces.

MONEY BILLS, legislation. Pills or projects of laws providing for raising revenue, and for making grants or appropriations of the public treasure.

2. The first clause of the seventh section of the constitution of the United States declares, "all bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills." Vide Story on the Const. 871 to 877.

3. What bills are properly "bills for raising revenue," in the sense of the constitution, has been matter of some discussion. Tucker's Black. App. 261 and note; Story, 877. In practice, the power has been confined to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes, which may incidentally create revenue. Story, Ibid.; 2 Elliott's Debates, 283, 284.

MONEY COUNTS, pleadings. The common counts in an action of assumpsit are so called, because they are founded on express or implied promises to pay money in consideration of a precedent debt; they are of four descriptions: 1. The indebitatus assumpsit. (q. v.) 2. The quantum meruit. (q. v.) 3. The quantum valebant. (q. v.) and, 4. The account stated. (q. v.) 2. Although the plaintiff cannot resort to an implied promise when there is a general contract, yet he may, in many cases, recover on the common counts, notwithstanding there was a special agreement, provided it has been executed. 1 Camp. 471; 12 East, 1; 7 Cranch, Rep. 299; 10 Mass. Rep. 287; 7 Johns. Rep. 132; 10 John. Rep. 136; 5 Mass. Rep. 391. It is therefore advisable to insert the money counts in an action of assumpsit, when suing on a special contract. 1 Chit. Pl. 333, 4.

MONEY HAD AND RECEIVED. An action of assumpsit will lie to recover money to which the plaintiff is entitled, and which in justice and equity, when no rule of policy or strict law prevents it, the defendant ought to refund to the plaintiff, and which he cannot with a good conscience retain, on a count for money had and received. 6 S. & R. 369; 10 S. & R. 219: 1 Dall. 148; 2 Dall. 154; 3 J. J. Marsh. 175; 1 Harr. 447; 1 Harr. & Gill. 258; 7 Mass. 288; 6 Wend. 290; 13 Wend. 488; Addis. on Contr. 230.

2. When the money has been received by the defendant in consequence of some tortious act to the plaintiff's property, as when he cut down the plaintiff's timber and sold it, the plaintiff may waive the tort and sue in assumpsit for money had and received. 1 Dall. 122; 1 Blackf. 181; 5 Pick. 285; 1 J. J. Marsh. 543: 4 Pick. 452; 12 Pick. 120; 4 Binn. 374; 3 Watts, 277; 4 Call, 451.

3. In general the action for money had and received lies only where money has been received by the defendant. 14 S. & R. 179; 1 Pick. 204; 7 S. & R. 246; 1 J. J. Marsh. 544; 3 J. J. Marsh. 6; 7 J. J. Marsh. 100; 3 Bibb, 378; 11 John. 464. But bank notes or any other property received as money, will be considered for this purpose as money. 17 Mass. 560; 3 Mass. 405; 14 Mass. 122; Brayt. 24; 7 Cowen, 622; 4 Pick. 74. See 9 S. & R. 11.

4. No privity of contract between the parties is required in order to support this action, except that which results from the fact of one man's having the money of another, which he cannot conscientiously retain. 17 Mass. 563, 579. See 2 Dall. 54; Mart. & Yerg. 221; 5 Conn. 71.

MONEY LENT. In actions of assumpsit a count is frequently introduced in the declaration charging that the defendant promised to pay the plaintiff for money lent. To recover, the plaintiff must prove that the defendant received his money, but it is not indispensable that it should be originally lent. If, for example, money has been advanced upon a special contract, which has been abandoned and rescinded, and which cannot be enforced, the law raises an implied promise from the person who holds the money to pay it back as money lent. 5 M. & P. 26; 7 Bing. 266; 9 M. & W. 729; 3 M. & W. 434. See 1 Chip. 214; 3 J. J. Marsh. 37.

MONEY PAID. When one advances money for tbe benefit of another with his consent, or at his express request, although he be not benefited by the transaction, the creditor may recover the money in an action of assumpsit declaring for money paid for the defendant. 5 S. & R. 9. But one cannot by a voluntary payment of another's debt make himself creditor of that other. 1 Const. R. 472; 1 Gill. & John. 497; 5 Cowen, 603; 10 John. 361; 14 John. 87; 2 Root, 84; 2 Stow. 500; 4 N. H. Rep. 138; 3 John. 434; 8 John. 436; 1 South. 150.

2. Assumpsit for money paid will not lie where property, not money, has been paid or received. 7 S. & R. 246; 8 Bibb, 378; 14 S. & R. 179; 10 S. & R. 75; 7 J. J. Marsh. 18. But see 7 Cowen, 662.

3. But where money has been paid to the defendant either for a just, legal or equitable claim, although it could not have been enforced at law, it cannot be recovered as money paid. See Money had and received.

4. The form of declaring is for "money paid by the plaintiff, for the use of the defendant and at his request." 1 M. & W. 511.

MONITION, practice. In those courts which use the civil law process, (as the court of admiralty, whose proceedings are, under the provisions of the acts of congress, to be according to the course of the civil law,) it is a process in the nature of a summons; it is either, general, special, or mixed.

2. - 1. The general monition is a citation or summons to all persons interested, or, as is commonly said, to the whole world, to appear and show cause why the libel filed in the case should not be sustained, and the prayer of relief granted. This is adopted in prize cases, admiralty suits for forfeitures, and other suits in rem, when no particular individuals are summoned to answer. In such cases the taking possession of the property libeled, and this general citation or nomination, served according to law, are considered constructive notice to the world of the pendency of the suit; and the judgment rendered thereupon is conclusive upon the title of the property which may be affected. In form, the monition is a warrant of the court, in an admiralty cause, directed to the marshal or his deputy, commanding him in the name of the president of the United States, to give public notice, by advertisements in such newspapers as the court may select, and by notification to be posted in public places, that a libel has been filed in a certain admiralty cause pending, and of the time and place appointed for the trial. A brief statement of the allegations in the libel is usually contained in the monition. The monition is served in the manner directed in the warrant.

3. - 2. A special monition is a similar warrant, directed to the marshal or his deputy, requiring him to give special notice to certain persons, named in the warrant, of the pendency of the suit, the grounds of it, and the time and place of trial. It is served by delivery of a copy of the warrant, attested by the officer, to each one of the adverse parties, or by leaving the same at his usual place of residence; but the service should be personal if possible. Clerke's Prax. tit. 21; Dunlap's Adm. Pr. 135.

4. - 3. A mixed monition is one which contains directions for a general monition to all persons interested, aud a special summons to particular persons named in the warrant. This is served by newspaper advertisements, by notifications posted in public places, and by delivery of a copy attested by the officer to each person specially named, or by leaving it at his usual place of residence. See Dunlap's Adm. Pr. Index, h. t.; Bett's Adm. Pr. Index, h. t.

MONITORY LETTER, eccl. law. The process of an official, a bishop or other prelate having jurisdiction, issued to compel, by ecclesiastical censures, those who know of a crime or other matter which requires to be explained, to come and reveal it. Merl. Repert. h. t.

MONOCRACY. A government by one person only.

MONOCRAT. A monarch who governs alone; an absolute governor. MONOGAMY. A marriage contracted between one man and one woman, in exclusion of all the rest of mankind; it is used in opposition to bigamy and polygamy. (q. v.) Wolff, Dr. de la Nat. 857. The state of having only one husband or one wife at one time.

MONOGRAM. A character or cipher composed of one or more letters interwoven, being an abbreviation of a name.

2. A signature made by a monogram would perhaps be binding, provided it could be proved to have been made and intended as a signature. 1 Denio, R. 471. And there seems to be no reason why such a signature should not be as binding as one which is altogether illegible. See Initial; Mark; Signature.







MONSTER, physiology, persons. An animal which has a conformation contrary to the order of nature. Dunglison's Human Physiol. vol. 2, p. 422.

2. A monster, although born of a woman in lawful wedlock, cannot inherit. Those who have however the essential parts of the human form and have merely some defect of coformation, are capable of inheriting, if otherwise qualified. 2 Bl. Com. 246; 1 Beck's Med. Jurisp. 366; Co. Litt. 7, 8; Dig. lib. 1, t. 5, l. 14; 1 Swift's Syst. 331 Fred. Code, Pt. 1, b. 1, t. 4, s. 4.

3. No living human birth, however much it may differ from human shape, can be lawfully destroyed. Traill. Med. Jur. 47, see Briand, Med. Leg. 1ere part. c. 6, art. 2, 3; 1 Fodere, Med. Leg. 402-405.

MONSTRANS DE DROIT. Literally showing of right, in the English law, is a process by which a subject claim from the crown a restitution of a right. Bac. Ab. Prerogative, E; 3 Bl. 256; 1 And. 181; 5 Leigh's R. 512.

MONSTRANS DE FAIT. Literally, showing of a deed; a profert. Bac. Ab. Pleas, &c. I 12, n. 1.

MONSTRAVERUNT, WRIT OF, Eng. law. A writ which lies for the tenants of ancient demesne who hold by free charter, and not for those tenants who hold by copy of court roll, or by the rod, according to the custom of the manor. F. N. B. 31.

MONTES PIETATIS, or Monts de Piete. The name of institutions established by public authority for lending money upon pledge of goods. In those establishments a fund is provided, with suitable warehouses, and all necessary accommodations. Directors, manage these concerns. When the money for which the goods pledged is not returned in proper time, the goods are sold to reimburse the institutions.

2. These establishments are found principally on the continent of Europe. With us private persons, called pawnbrokers, perform this office, sometimes with doubtful fidelity. See Bell's Com. B. 5, c. 2, s. 2.





5. Among the Greeks and Romans the months were Iunar, and probably the mode of computation adopted in the English law has been adopted from the codes of these countries. Clef des Lois Rom. mot Mois.





MONUMENT. A thing intended to transmit to posterity the memory of some one; it is used, also, to signify a tomb where a dead body has been deposited. In this sense it differs from a cenotaph, which is at empty tomb. Dig. 11, 7, 2, 6; Id. 11, 7, 2, 42.

MONUMENTS. Permanent landmarks established for the purpose of ascertaining boundaries.

2. Monuments may be either natural or artificial objects, as rivers, known streams, springs, or marked trees. 7 Wheat. R. 10; 6 Wheat. R. 582; 9 Cranch, 173; 6 Pet. 498; Pet. C. C. R. 64; 3 Ham. 284; 5 Ham. 534; 5 N. H. Rep. 524; 3 Dev. 75. Even posts set up at the corners, 5 Ham. 534, and a clearing, 7 Cowen, 723, are considered as monuments. Sed vide 3 Dev. 75.

3. When monuments are established, they must govern, although neither courses, nor distances, nor 'computed' contents correspond; 5 Cowen, 346; 1 Cowen, 605; 6 Cowen, 706; 7 Cowen, 723; 6 Mass. 131; 2 Mass. 380; 3 Pick. 401; 5 Pick. 135; 3 Gill & John. 142,; 5 Har. & John. 163, 255; 2 Id. 260; Wright, 176; 5 Ham. 534; 1 H. & McH. 355; 2 H. & McH. 416; Cooke, 146; 1 Call, 429; 3 Call, 239; 3 Fairf. 325; 4 H. & M. 125; 1 Hayw. 22; 5 J. J. Marsh. 578; 3 Hawks, 91; 3 Murph. 88; 4 Monr. 32; 5 Monr. 175; 2 Overt. 200; 2 Bibb, 493; S. C. 6 Wheat. 582; 4 W. C. C. Rep. 15. Vide Boundary.

MOORING, mar. law. The act of arriving of a ship or vessel at a particular port, and there being anchored or otherwise fastened to the shore.

2. Policies of insurance frequently contain a provision that the ship is insured from one place to another, "and till there moored twenty-four hours in good safety." As to what shall be a sufficient mooring, see 1 Marsh. Ins. 262; Park. on Ins. 35; 2 Str. 1251; 3. T. R. 362.

MOOT, English law. A term used in the inns of court, signifying the exercise of arguing imaginary cases, which young barristers and students used to perform at certain times, the better to be enabled by this practice to defend their clients cases. A moot question is one which has not been decided.

MORA, In civil law. This term, in mora, is used to denote that a party to a contract, who is obliged to do anything, has neglected to perform it, and is in default. Story on Bailm. 123, 259; Jones on Bailm. 70; Poth. Pret a Usage, c. 2, 2, art. 2, n. 60; Encyclopedie, mot Demeure; Broderode, mot Mora.

MORA, estates. A moor, barren or unprofitable ground; marsh; a heath. 1 Inst. 5; Fleta, lib. 2, c. 71.

MORAL EVIDENCE. That evidence which is not obtained either from intuition or demonstration. It consists of those convictions of the mind, which are produced by the use of the senses, the testimony of men, and analogy or induction. It is used in contradistinction to mathematical, evidence. (q. v.) 3 Bouv. Inst. n. 3050.

MORAL INSANITY, med. jur. A term used by medical men, which has not yet acquired much reputation in the courts. Moral insanity is said to consist in a morbid perversion of the moral feelings, affections, inclinations, temper, habits, and moral dispositions, without any notable lesion of the intellect, or knowing and reasoning faculties, and particularly without any maniacal hallucination. Prichard, art. Insanity, in Cyclopaedia of Practical Medicine

2. It is contended that some human beings exist, who, in consequence of a deficiency in the moral organs, are as blind to the dictates of justice, as others are deaf to melody. Combe, Moral Philosophy, Lect. 12.

3. In some, this species of malady is said to display itself in an irresistible propensity to commit murder; in others, to commit theft, or arson. Though most persons afflicted with this malady commit such crimes, there are others whose disease is manifest in nothing but irascibility. Annals D'Hygiene tom. i. p. 284. Many are subjected to melancholy, and dejection, without any delusion or illusion. This, perhaps without full consideration, has been judicially declared to be a "groundless theory." The courts, and law writers, have not given it their full assent. 1 Chit. Med. Jur. 352; 1 Beck, Med. Jur. 553 Ray, Med. Jur. Prel. Views, 23, p. 49.

MORAL OBLIGATION. A duty which one owes, and which he ought to perform, but which he is not legally bound to fulfil.

2. These obligations are of two kinds 1st. Those founded on a natural right; as, the obligation to be charitable, which can never be enforced by law. 2d. Those which are supported by a good or valuable antecedent consideration; as, where a man owes a debt barred by the act of limitations, this cannot be recovered by law, though it subsists in morality and conscience; but if the debtor promise to pay it, the moral obligation is a sufficient consideration for the promise, and the creditor may maintain an action of assumpsit, to recover the money. 1 Bouv. Inst. n. 623.

MORATUR, IN LEGE. He demurs in law. He rests on the pleadings of the case, and abides the judgment of the court.

MORGANTIC MARRIAGE. During the middle ages, there was an intermediate estate between matrimony and concubinage, known by this name. It is defined to be a lawful and inseparable conjunction of a single man, of noble and illustrious birth, with a single woman of an inferior or plebeian station, upon this condition, that neither the wife nor children should partake of the title, arms, or dignity of the husband, nor succeed to his inheritance, but should have a certain allowance assigned to them by the morgantic contract. The marriage ceremony was regularly performed; the union: was for life and indissoluble; and the children were considered legitimate, though they could not inherit. Fred. Code, book 2, art. 3; Potb. Du Marriage, 1, c. 2, s. 2; Shelf. M. & D. 10; Pruss. Code, art. 835.

MORT D'ANCESTOR. An ancient and now almost obsolete remedy in the English law. An assize of mort d'ancestor was a writ which was sued out where, after the decease of a man's ancestor, a stranger abated, and entered into the estate. 1, Co. Litt. 159. The remedy in such case is now to bring ejectment.















15. Mortgage, with respect to the manner in which it binds the property, is divided into general mortgage, or special mortgage. General mortage is that which binds all the property, present or future, of the debtor. Special mortgage is that which binds only certain specified property. Art. 3255.


MORTGAGEE, estates, contracts. He to whom a mortgage is made.

2. He is entitled to the payment of the money secured to him by the mortgage; he has the legal estate in the land mortgaged, and may recover it in ejectment, on the other hand he cannot commit waste; 4 Watts, R. 460; he cannot make leases to the injury of the mortgagor; and he must account for the profits he receives out of the thing mortgaged when in possession. Cruise, Dig. tit. 15, c. 2.

MORTGAGOR, estate's, contracts. He who makes a mortgage.




2. Mortmain is also employed to designate all prohibitory laws, which limit, restrain, or annul gifts, grants, or devises of lands and other corporeal hereditaments to charitable uses. 2 Story, Eq. Jur. 1137, note 1. See Shelf. on Mortm. 2, 3.

MORTUARIES, Eng. law. These are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister, in many parishes, on the death of the parishioner. 2 Bl. Com. 425.

MORTUUM VADIUM. A mortgage; a dead pledge

MORTUUS EST. A return made by the sheriff, when the defendant is dead, as an excuse for not executing the writ. 4 Watts, 270, 276.

MOTHER, domestic relations. A woman who has borne a child.

2. It is generally the duty of a mother to support her child, when she is left a widow, until he becomes of age, or is able to maintain himself; 8 Watts, R. 366; and even after he becomes of age, if he be chargeable to the public, she may, perhaps, in all the states, be compelled, when she has sufficient means, to support him. But when the child has property sufficient for his support, she is not, even during his minority, obliged to maintain him. 1 Bro. C. C. 387; 2 Mass. R. 415; 4 Miss. R. 97.

3. When the father dies without leaving a testamentary guardian, at common law, the mother is entitled to be the guardian of the person and estate of the infant, until he arrives at fourteen years, when he is able to choose a guardian. Litt. sect. 123; 3 Co. 38; Co. Litt. 84 b; 2 Atk. 14; Com Dig. B, D, E; 7 Ves. 348. See 10 Mass. 135, 140; 15 Mass. 272; 4 Binn. 487; 4 Stew. & Part. 123; 2 Mass. 415; Harper, R. 9; 1 Root, R. 487.

4. In Pennsylvania, the orphans' court will, in such case, appoint a guardian until the infant shall attain his fourteenth year. During the joint lives of the parents, (q. v.) the father (q. v.) is alone responsible for the support of the children; and has the only control over them, except when in special cases the mother is allowed to have possession of them. 1 P. A. Browne's Rep. 143; 5 Binn. R. 520; 2 Serg. & Rawle 174. Vide 4 Binn. R. 492, 494.

5. The mother of a bastard child, as natural guardian, has a right to the custody and control of such child, and is bound to maintain it. 2 Mass. 109; 12 Mass. 387, 433; 2 John. 375; 15 John. 208; 6 S. & R. 255; 1 Ashmead, 55.

MOTHER-IN-LAW. In Latin socrus. The mother of one's wife, or of one's husband.



MOTIVE. The inducement, cause or reason why a thing is done.

2. When there is such a mistake in the motive, that had the truth been known, the contract would pot have been made, it is generally void., For example, if a man should, after the death of Titius, of which he was ignorant, insure his life, the error of the motive would avoid the contract. Toull. Dr. Civ. Fr. liv. 3, c. 2, art. 1. Or, if Titius should sell to Livius his horse, which both parties supposed to be living at some distance from the place where the contract was made, when in fact, the horse was then dead, the contract would be void. Poth. Vente, n. 4; 2 Kent, Com. 367. When the contract is entered into under circumstances of clear mistake or surprise, it will not be enforced. See the following authorities on this subject. 1 Russ. & M. 527; 1 Ves. jr. 221; 4 Price, 135; 1 Ves. jr. 210; Atkinson on Titl. 144. Vide Cause; Consideration.

3. The motive of prosecutions is frequently an object of inquiry, particularly when the prosecutor is a witness, and in his case, as that of any other witness, when the motion is ascertained to be bad, as a desire of revenge for a real or supposed injury, the credibility of the witness will be much weakened, though this will not alone render him incompetent. See Evidence; Witness.



MOVABLES, estates. Such subjects of property as attend a man's person wherever he goes, in contradistinction to things immovable. (q. v.)

2. Things movable by their nature are such as may be carried from one place to another, whether they move themselves, as cattle, or cannot be removed without an extraneous power, as inanimate things. Movables are further distinguished into such as are in possession, or which are in the power of the owner, as, a horse in actual use, a piece of furniture in a man's own house; or such as are in the possession of another, and can only be recovered by action, which are therefore said to be in action, as a debt. Vide art. Personal Property, and Fonbl. Eq. Index, h. t.; Pow. Mortg. Index, h. t.; 2 Bl. Com. 884; Civ. Code of Lo. art. 464 to 472; 1 Bouv. Inst. n. 462.

MULATTO. A person born of one white and one black parent. 7 Mass. R. 88; 2 Bailey, 558.

MULCT, punishment. A fine imposed on the conviction of an offence.

MULCT, commerce. An imposition laid on ships or goods by a company of trade, for the maintenance of consuls and the like. Obsolete.

MULIER. A woman, a wife; sometimes it is used to designate a marriageable virgin, and in other cases the word mulier is employed in opposition to virgo. Poth. Pand. tom. 22, h. t. In its most proper signification, it means a wife.

2. A son or a daughter, born of a lawful wife, is called filius mulieratus or filia mulierata, a son mulier, or a daughter mulier. The term is used always in contradistinction to a bastard; mulier being always legitimate. Co. Litt. 243.

3. When a man has a bastard son, and afterwards marries the mother, and has by her another son, the latter is called the mulier puisne. 2 Bl. Com. 248.

MULTIFARIOUSNESS, equity pleading. By multifariousness in a bill, is understood the improperly joining in one bill distinct matters, and thereby confounding them; as, for example, the uniting in one bill, several matters, perfectly distinct and unconnected, against one defendant; or the demand of several matters of distinct natures, against several defendants in the same bill. Coop. Eq. Pl. 182; Mitf. by Jeremy, 181; 2 Mason's R. 201; 18 Ves. 80; Hardr. R. 337; 4 Cowen's R. 682; 4 Bouv. Inst. n. 4165.

2. In order to prevent confusion in its pleadings and decrees, a court of equity will anxiously discountenance this multifariousness. The following case will illustrate this doctrine; suppose an estate should be sold in lots to different persons, the purchasers could not join in exhibiting one bill against the vendor for a specific performance; for each party's case would be distinct, and would depend upon its own peculiar circumstances, and therefore there should be a distinct bill upon each contract; on the other hand, the vendor in the like case, would not be allowed to file one bill for a specific performance against all the purchasers of the estate, for the same reason. Coop. Eq. Pl. 182; 2 Dick. Rep. 677; 1 Madd. Rep. 88; Story's Eq . PI. 271 to 286. It is extremely difficult to say what constitutes multifariousness as an abstract proposition. Story, Eq. Pl. 530, 539; 4 Blackf. 249; 2 How. S. C. Rep. 619, 642; 4 Bouv. Inst. n. 4243.

MULTITUDE. The meaning of this word is not very certain. By some it is said that to make a multitude there must be ten persons at least, while others contend that the law has not fixed any number. Co. Litt. 257.

MULTURE, Scotch law. The quantity of grain or meal payable to the proprietor of the mill, or to the multurer, his tacksman, for manufacturing the corns. Ersk. Prin. Laws of Scotl. B. 2 t. 9, n. 19.

MUNERA. The name given to grants made in the early feudal ages, which were mere tenancies at will, or during the pleasure of the grantor. Dalr. Feud. 198, 199; Wright on Ten. 19.

MUNICIPAL. Strictly, this word applies only to what belongs to a city. Among the Romans, cities were called municipia; these cities voluntarily joined the Roman republic in relation to their sovereignty only, retaining, their laws, their liberties, and their magistrates, who were thence called municipal magistrates. With us this word has a more extensive meaning; for example, we call municipal law, not the law of a city only, but the law of the state. 1 Bl. Com. Municipal is used in contradistinction to international; thus we say an offence against the law of nations is an international offence, but one committed against a particular state or separate community, is a municipal offence.

MUNICIPALITY. The body of officers, taken collectively, belonging to a city, who are appointed to manage its affairs and defend its interests.

MUNIMENTS. The instruments of writing and written evidences which the owner of lands, possessions, or inheritances has, by which he is enabled to defend the title of his estate. Termes de la Ley, h. t.; 3 Inst. 170.

MURAGE. A toll formerly levied in England for repairing or building public walls.

MURAL MONUMENTS. Monuments made in walls.

2. Owing to the difficulty or impossibility of removing them, secondary evidence may be given of inscriptions on walls, fixed tables, gravestones, and the like. 2 Stark. Rep. 274.






6. Virginia has adopted the same distinction. 6 Rand. R. 721. Vide, generally, Bac. Ab. h. t.; 15 Vin. Ab. 500; Com. Dig. Justices, M 1, 2; Dane's Ab. Index, h. t.; Hawk. Index, h. t.; 1 Russ. Cr. b. 3, c. 1; Rosc. Cr. Ev. h. t. Hale, P. C. Index, h. t.; 4 Bl. Com. 195; 2 Swift's Syst. Index, h. t.; 2 Swift's Dig. Index, h. t.; American Digests, h. t.; Wheeler's C. C. Index, h. t.; Stark. Ev. Index, h. t.; Chit. Cr. Law, Index, h. t.; New York Rev. Stat. part 4, c. 1, t. 1 and 2.


MURDRUM, old Engl. law. During the times of the Danes, and afterwards till the reign of Edward III, murdrum was the killing of a man in a secret manner, and in that it differed from simple homicide.

2. When a man was thus killed, and he was unknown, by the laws of Canute he was presumed to be a Dane, and the vill was compelled to pay forty marks for his death. After tlie conquest, a similar law was made in favor of Frenchmen, which was abolished by 3 Edw. III.

3. By murdrum was also understood the fine formerly imposed in England upon a person who had committed homicide perinfortunium or se defendendo. Prin. Pen. 219, note r.


TO MUSTER, mar. law. By this term is understood to collect together and exhibit soldiers and their arms; it also signifies to employ recruits and put their names down in a book to enrol them.

MUSTER-ROLL, maritime law; A written document containing the name's, ages, quality, place of residence, and, above all, place of birth, of every person of the ship's company. It is of great use in ascertaining the ship's; neutrality. Marsh. Ins. B. 1, c. 9, s. 6, p. 407; Jacobs. Sea Laws, 161; 2 Wash. C. C. R. 201.

MUSTIRO. This name is given to the issue of an Indian and a negro. Dudl. S. Car. R. 174.

MUTATION, French law. This term is synonymous with change, and is particularly applied to designate the change which takes place in the property of a thing in its transmission from one person to another; permutation therefore happens when, the owner of the thing sells, exchanges or gives it. It is nearly synonymous with transfer. (q. v.) Merl. Repert. h. t.

MUTATION OF LIBEL, practice. An amendment allowed to a libel, by which there is an alteration of the substance of the libel, as by propounding a new cause of action, or asking one thing instead of another. Dunl. Adm. Pr. 213; Law's Eccl. Law, 165-167; 1 Paine's R. 435; 1 Gall. R. 123; 1 Wheat. R. 26l.

MUTATIS MUTANDIS. The necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered, when necessary, as to names, offices, and the like.








MUTINY, crimes. The unlawful resistance of a superior officer, or the raising of commotions and disturbances on board of a ship against the authority of its commander, or in the army in opposition to the authority of the officers; a sedition; (q. v.) a revolt. (q. v.)

2. By the act for establishing rules and articles for the government of the armies of the United States, it is enacted as follows: Article 7. Any officer or soldier, who shall begin, excite, or cause, or join in, any mutiny or sedition in any troop or company in the service of the United States, or in any party, post, detachment or guard, shall suffer death, or such other punishment as by a court martial shall be inflicted. Article 8. Any officer, non-commissioned officer, or soldier, who being present at any mutiny or sedition, does not use his utmost endeavors to suppress the same, or coming to the knowledge of any intended mutiny, does not without delay give information thereof to his commanding officer, shall be punished by the sentence of a court martial, with death, or otherwise, according to the nature of his offence.

3. And by the act for the better government of the navy of the United States, it is enacted as follows,: Article 13. If any person in the navy shall make or attempt to make any mutinous assembly, he shall, on conviction thereof by, a court martial, suffer death; and if any person as aforesaid, shall utter any seditious or mutinous words, or shall conceal or connive at any mutinous or seditious practices, or shall treat with contempt his superior, being in the execution of his office, or being witness to any mutiny or sedition, shall not do his utmost to suppress it, he shall be punished at the discretion of a court martial. Vide 2 Stra. R. 1264.

MUTUAL. Reciprocal.




MUTUARY, contracts. A person who borrows personal chattels to be consumed by him, and returned to the lender in kind; the person who receives the benefit arising from the contract of mutuum. Story, Bailm. 47.

MUTUUM, or loan for consumption, contracts. A loan of personal chattels to be consumed by the borrower, and to be returned to the lender in kind and quantity; as a loan of corn, wine, or money, which are to be used or consumed, and are to be replaced by other corn, wine, or money. Story on Bailm. 228; Louis. Code, tit. 12, c. 2; Ayliffe's Pand. 481; Poth. Pand. tom. 22, h. t.; Dane's Ab. Index, h. t.; 1 Bouv. Inst. logo.

2. It is of the essence of this contract, 1st. That there be either a certain sum of money, or a certain quantity of other things, which is to be consumed by use which is to be the subject-matter of the contract, and which is loaned to be consumed. 2d. That the thing be delivered to the borrower. 3d. That the property in the thing be transferred to him. 4th. That he obligates himself to return as much. 5th. That the parties agree on all these points. Poth. Pràt. de Consomption, n. 1; 1 Bouv. Inst. n. 1091-6.

MYSTERY or MISTERY. This word is said to be derived from the French mestier now written màtier, a trade. In law it signifies a trade, art, or occupation. 2 Inst. 668.

