BACHELOR. The first degree taken at the universities in the arts and
sciences, as bachelor of arts, & c. It is called, in Latin, Baccalaureus,
from bacalus, or bacillus, a staff, because a staff was given, by way of
distinction, into the hands of those who had completed their studies. Some,
however, have derived the word from baccalaura, others from bas chevalier, as
designating young squires who aspire to the knighthood. (Dupin.) But the
derivation. of the word is uncertain.
BACK-BOND. A bond given by one to a surety, to* indemnify such surety
in case of loss. In Scotland, a back-bond is an instrument which, in conjunction
with another which gives an absolute disposition, constitutes a trust. A
declaration of trust.
BACK-WATER. That water in a stream which, in consequence of some
obstruction below, is detained or checked in its course, or reflows.
2. Every riparian owner is entitled to the benefit of the water in its
natural state. Whenever, therefore, the owner of land dams or impedes the water
in such a manner as to back it on his neighbor above, he is liable to an action;
for no one has a right to alter the level of the water, either where it enters,
or where it leaves his property. 9 Co. 59; 1 B. & Ald. 258; 1 Wils. R. 178;
6 East, R. 203; 1 S. & Stu. 190.; 4 Day, R. 244; 7 Cowen, R. 266; 1 Rawle,
R. 218; 5 N. R. Rep. 232; 9 Mass. R. 316; 7 Pick. R. 198; 4 Mason, R. 400; 1
Rawle, R. 27; 2 John. Ch. R. 162, 463; 1 Coxe's. R. 460. Vide, Dam; Inundation;
Water-course; and 5 Ohio R. 322.
BACKING, crim. law practice. Backing a warrant occurs whenever it
becomes necessary to execute it out of the jurisdiction of the magistrate who
granted it; as when an offender escapes out of the county in which he committed
the offence with which he is charged, into another county. In such a case, a
magistrate of the county in which the offender may, be found, endorses, or
writes his name on the back of the warrant, and thereby gives authority to
execute it within his jurisdiction. This is called backing the warrant. This may
be from county to county, if necessary.
BACKSIDE, estates. In England this term was formerly used in
conveyances and even in pleadings, and is still, adhered to with reference to
ancient descriptions in deeds, in continuing the transfer of the same. property.
It imports a yard at the back part of, or behind a house, and belonging thereto:
but although formerly used in pleadings, it is now unusual to adopt it, and the
word yard is preferred. 1 Chitty's Pr. 177; 2 Ld. Raym. 1399.
BADGE. A mark or sign worn by some persons, or placed upon certain
things for the purpose of designation. Some public officers, as watchmen,
policemen, and the like, are required to wear badges that they may be readily
known. It is used figuratively when we say, possession of personal property by
the seller, is. a badge of fraud.
BAGGAGE. Such articles as are carried by a traveller; luggage. Every
thing which a passenger, carries, with him is not baggage. Large sums of money,
for example, carried in a travelling trunk, will not be considered baggage, so
as to render the carrier responsible. 9 Wend. R. 85. But a watch deposited in
his trunk is part of his baggage. 10 Ohio R. 145. See, as to what is baggage, 6
Hill, R. 586 5 Rawle, 188, 189; 1 Pick. 50.
2. In general a common carrier of passengers is responsible for baggage, if
lost, though no distinct price be paid for transporting it, it being included in
the passenger's fare. Id. The carrier's responsibility for the baggage begins as
soon as it has been delivered to him, or to his servants, or to some other
person authorized by him to receive it. Then the delivery is complete. The risk
and responsibility of the carrier is at an end as soon as he has delivered the
baggage to the owner or his agent; and if an offer to deliver it be made at a
proper time, the carrier will be discharged from responsibility, us 'such yet,
if the baggage remain in his custody afterwards, he will hold as, bailee, and be
responsible for it according to the terms of such bailment ana, R. 92. Vide
3. By the act of congress of March 2, 1799, sect. 46, 1 Story's L. U. S. 612,
it is declared that all wearing apparel and other personal baggage, &c., of
persons who shall arrive in the United States, shall be free and exempted from
BAIL, practice, contracts. By bail is understood sureties, given
according to law, to insure the appearance of a party in court. The persons who
become surety are called bail. Sometimes the term is applied, with a want of
exactness, to the security given by a defendant, in order to obtain a stay of
execution, after judgment, in civil cases., Bail is either civil or
2.- 1. Civil bail is that which is entered in civil cases, and is common or
special bail below or bail above.
3. Common bail is a formal entry of fictitious sureties in the proper office
of the court, which is called filing. common bail to the action. It is in the
same form as special bail, but differs from it in this, that the sureties are
merely fictitious, as John Doe and Richard Roe: it has, consequently, none of,
the incidents of special bail. It is allowed to the defendant only when he has
been discharged from arrest without bail, and it is necessary in such cases to
perfect the appearance of the defendant. Steph. Pl. 56, 7; Grah. Pr. 155; Highm.
on Bail 13.
4. Special bail is an undertaking by one or more persons for another, before
some officer or court properly authorized for that purpose, that he shall appear
at a certain time and place, to answer a certain charge to be exhibited against
him. The essential qualification to enable a person to become bail, are that he
must be, 1. a freeholder or housekeeper; 2. liable to the ordinary process of
the court 3. capable of entering into a contract; and 4. able to pay the amount
for which he becomes responsible.
1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5 Taunt.
174; Lofft, 148 3 Petersd. Ab. 104.
2. He must be subject to the ordinary process of the court; and a person
privileged from arrest, either permanently or temporarily, will not be taken. 4
Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
3. He must be competent to enter into a contract; a feme covert, an infant,
or a person non compos mentis, cannot therefore become bail.
4. He must be able to pay the amount for which he becomes responsible. But it
is immaterial whether his property consists of real or personal estate, provided
it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit. Rep. 97; 11 Price,
158; and be liable to the ordinary process of the law; 4 Burr. 2526; though this
rule is not invariably adhered to, for when part of the property consisted of a
ship, shortly expected, bail was permitted to justify in respect of such
property. 1 Chit. R. 286, n. As to the persons who cannot be received because
they are not responsible, see 1 Chit. R. 9, 116; 2 Chit. R. 77, 8; Lofft, 72,
184; 3 Petersd. Ab. 112; 1 Chit. R. 309, n.
5. Bail below. This is bail given to the sheriff in civil cases, when the
defendant is arrested on bailable process; which is done by giving him a bail
bond; it is so called to distinguish it from bail above. (q. v.) The sheriff is
bound to admit a man to bail, provided good and sufficient sureties be tendered,
but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4 Anne, c. 16, §20; B. N.
P. 224; 2 Term Rep., 560. The sheriff, is not, however, bound-to demand bail,
and may, at his risk, permit the defendant to be at liberty, provided he will
appear, that is, enter bail above, or surrender himself in proper time. 1 Sell.
Pr. 126, et seq. The undertaking of bail below is, that the defendant will
appear or put in bail to the action on the return day of the writ.
6. Bail above, is putting in bail to the action, which is an appearance of
the defendant. Bail above are bound either to satisfy the plaintiff his debt and
costs, or to surrender the defendant into custody, provided judgment should be
against him and he should fail to do so. Sell. Pr. 137.
7. It is a general rule that the defendant having been held to bail, in civil
cases, cannot be held a second time for the same cause of action. Tidd' s Pr.
184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur. 594. See Auter
action Pendent; Lis pendens.
8. - 2. Bail in criminal cases is defined to be a delivery or bailment of a
person to sureties, upon their giving, together with himself, sufficient
security for his appearance, he being supposed to be in their friendly custody,
instead of going to prison.
9. The Constitution of the United States directs that "excessive bail shall
not be required." Amend. art. 8.
10. By the acts of congress of September, 24, 1789, s. 33, and March 2, 1793,
s. 4, authority is given to take bail for any crime or offence against the
United States, except where the punishment is death, to any justice or judge of
the United States, or to any chancellor, judge of the supreme or superior court,
or first judge of any court of common pleas, or mayor of any city of any state,
or to any justice of the peace or other magistrate of any state, where the
offender may be found the recognizance tal,-en by any of the persons authorized,
is to be returned to the court having cognizance of the offence.
11. When the punishment by the laws of the United States is death, bail can
be taken only by the supreme or circuit court, or by a judge of the district
court of the United States. If the person committed by a justice of the supreme
court, or by the judge of a district court, for an offence not punishable with
death, shall, after commitment, offer bail, any judge of the supreme or superior
court of law, of any state, (there being no judge of the United States in the
district to take such bail,) way admit such person to bail.
12. Justices of the peace have in general power to take bail of persons
accused; and, when they have such authority they are required to take such bail
There are many cases, however, under the laws of the several states, as well as
under the laws of the United States,, as above mentioned, where justices of the
peace cannot take bail, but must commit; and, if the accused offers bail, it
must be taken by a judge or other,, officer lawfully authorized.
13. In Pennsylvania, for example, in cases of murder, or when the defendant
is charged with the stealing of any horse, mare, or gelding, on the direct
testimony of one witness; or shall be taken having possession of such horse,
mare, or gelding, a justice of the peace cannot admit the party to bail. 1
Smith's L. of Pa. 581.
14. In all cases where the party is admitted to bail, the recognizance is to
be returned to the court having jurisdict on of the offence charged. Vide Act of
God. Arrest; Auter action pendent; Deat Lis pendens.
BAIL BOND, practice, contracts. A specialty by which the defendant and
other persons, usually not less than two, though the sheriff may take only one,
become bound to the sheriff in a penalty equal to that for which bail is
demanded, conditioned for the due appearance of such defendant to the legal
process therein described, and by which the sheriff has been commanded to arrest
him. It is only where the defendant is arrested or in the custody of the
sheriff, under other than final process, that the sheriff can take such bond. On
this bond being tendered to him, which he is compelled to take if the sureties
are good, he must discharge the defendant. Stat. 23 H. VI. c. 9.
2. With some exceptions, as for example, where the defendant surrenders; 5 T.
R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326; nothing can be a
performance of the condition of the bail bond, but putting in bail to the
action. 5 Burr. 2683.
3. The plaintiff has a right to demand from the sheriff an assignment of such
bond, so that he may sue it for his own benefit. 4 Ann. c. 16, §20; Wats. on
Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites of a bail bond,
see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T. R. 702; 9 East, 55;
. D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R. 264 East,
568; Hurls. on Bonds, 56; U. S. Dig. Bail V.
BAIL PIECE. A certificate given by a judge or the clerk of the court,
or other person authorized to keep the record, in which it is certified that A
B, the bail, became bail, for C D, the defendant, in a certain sum, and in a
particular case. It was the practice formerly, to write these certificates upon
small pieces of parchment, in the following form: (See 3 Bl. Com. Appendix.)
In the Court of ______________, of the Term of ________, in the year of our
Lord, ____________, ________________City and County of ________________, ss.
Theunis Thew is delivered to bail upon the taking of his body, to Jacobus
Vanzant, of the city of_________________, merchant, and to John Doe, of the same
city, yeoman. SMITH, JR. At the suit of Attorney for Deft. PHILIP CARSWELL.
Taken and acknowledged the ____ day of _______, A. D. _____, before me. D.
2. As the bail is supposed to have the custody of the defendant, when he is
armed with this process, he may arrest the latter, though he is out of the
jurisdiction of the court in which he became bail, and even in a different
state. 1 Baldw. 578; 3 Com. 84, 421; 2 Yeates, 263 8 pick. 138; 7 John. 145; 3
Day, 485. The bail may take him even while attending court as a suitor, or any
time, even on Sunday. 4 Yeates, 123; 4 Conn. 170. He may break even an outer
door to seize him; and command the assistance of the sheriff or other officers;
8 Pick. 138; and depute his power to others.. 1 John. Cas. 413; 8 Pick. 140. See
1 Serg. & R. 311.
BAILABLE ACTION. One in which the defendant is entitled to be
discharged from arrest, only upon giving bail to answer.
BAILABLE PROCESS. Is that process by which an officer is required to
arrest a person, and afterwards to take bail for his appearance. A capias ad
respondendum is bailable, but a capias ad satisfaciendum is not.
BAILEE, contracts. One to whom goods are bailed.
2. His duties are to act in good faith he is bound to use extraordinary
diligence in those contracts or bailments, where he alone receives the benefit,
as in loans; he must observe ordinary diligence of those bailments, which are
beneficial to both parties, as hiring; and he will be responsible for gross
negligence in those bailments which are only for the benefit of the bailor, is
deposit and mandate. Story's Bailm. §17, 18, 19. He is bound to return the
property as soon as the purpose for which it was bailed shall have been
3. He has generally a right to retain and use the thing bailed, according to
the contract, until the object of the bailment shall have been accomplished.
4. A bailee with a mere naked authority, having a right to remuneration for
his trouble, but coupled with no other interest, may support trespass for any
injury, amounting to a trespass, done while he was in the actual possession of
the thing. 4 Bouv. Inst. n. 3608.
BAILIFF, account render. A bailiff is a person who has, by delivery,
the custody and administration of lands or goods for the benefit of the owner or
bailor, and is liable to render an account thereof. Co. Lit. 271; 2 Leon. 245; 1
Mall . Ent. 65. The word is derived from the old French word bailler, to bail,
that is, to deliver. Originally, the word implied the delivery of real estate,
as of land, woods, a house, a part of the fish in a pond; Owen, 20; 2 Leon. 194;
Keilw. 114 a, b; 37 Ed. III. 7; 10 H. VII. 7, 30; but was afterwards extended to
goods and chattels. Every bailiff is a ,receiver, but every receiver is not a
bailiff. Hence it is a good plea that the defendant never was receiver, but as
bailiff. 18 Ed. III. 16. See Cro. Eliz. 82-3; 2 Anders. 62-3, 96-7 F. N. B. 134
F; 8 Co. 48 a, b.
2. From a bailiff is required administration, care, management, skill. He is,
therefore, entitled to allowance for the expense of administration, and for all
things done in his office, according to his own judgment, without the special
direction of his principal, and also for casual things done in the common course
of business: 1 Mall. Ent. 65, (4) 11; 1 Rolle, Ab. 125, 1, 7; Co. Lit. 89 a;
Com. Dig. E 12 Bro. Ab. Acc. 18 Lucas, Rep. 23 but not for things foreign to his
office. Bro. Ab. Acc .26, 88; Plowd. 282b, 14; Com. Dig. Acc. E13; Co. Lit. 172;
1 Mall. Ent. 65, (4) 4. Whereas, a mere receiver, or a receiver who is not also
a bailiff, is not entitled to allowance for any expenses. Bro. Ab. Acc. 18; 1
Mall. Ent. 66, (4) 10; 1 Roll. Ab. 118; Com. Dig. E 13; 1 Dall. 340.
3. A bailiff may appear and plead for his principal in an assize; " and his
plea com- mences " thus, " J. S., bailiff of T. N., comes " &c., not " T.
N., by his bailiff, J. S., comes," &c. 2 Inst. 415; Keilw. 117 b. As to what
matters he may plead, see 2 Inst. 414.
BAILIFF, office. Magistrates who for merly administered justice in the
parliaments or courts of France, answering to the English sheriffs as mentioned
by Bracton. There are still bailiffs of particular towns in England as the
bailiff of Dover Castle, &c., otherwise bailiffs are now only officers or
stewards, &c. as Bailiffs of liberties, appointed by every lord within his
liberty, to serve writs, &c. Bailiff errent or itenerant, appointed to go
about the country for the same purpose. Sheriff 's bailies, sheriff's officers
to execute writs; these are also called bound bailiffs because they are usually
bound in a bond to the sheriff for the due exeecution of their office. Bailiffs
of court baron, to summon the court, &c. Bailffs of hushandry, appointed by
private persons to collect their rents and manage their estates. Water bailiffs,
officers in port towns for searching ships, gathering tolls, &c. Bac. Ab. h.
BAILMENT, contracts. This word is derived from the French, bailler, to
deliver. 2 Bl. Com. 451; Jones' Bailm. 90 Story on Bailm. c. 1, §2. It is a
compendious expression, to signify a contract resulting from delivery. It has
been defined to be a delivery of goods on a condition, express or implied, that
they shall be restored by the bailee to the bailor, or according to his
directions, as soon as the purposes for which they are bailed shall be answered.
1 Jones' Bailm. 1. Or it is a delivery of goods in trust, on a contract either
expressed or implied, that the trust shall be duly executed, and the goods
redelivered, as soon as the time or use for which they were bailed shall have
elapsed or be performed. Jones' Bailm. 117.
2. Each of these definitions, says Judge Story, seems redundant and
inaccurate if it be the proper office of a definition to include those things
only which belong to the genus or class. Both these definitions suppose that the
goods are to be restored or redelivered; but in a bailment for sale, as upon a
consignment to a factor, no redelivery is contemplated between the parties. In
some cases, no use is contemplated by the bailee, in others, it is of the
essence of the contract: in some cases time is material to terminAte the
contract; in others, time is necessary to give a new accessorial right. Story,
on Bailm. c. 1, §2.
3. Mr. Justice Blackstone has defined a bailment to be a delivery of goods in
trust, upon contract, either expressed or implied, that the trust shall be
faithfully executed on the part of the bailee. 2 Bl. Com. 451. And in another
place, as the delivery of goods to another person for a particular use. 2 Bl.
Com. 395. Vide Kent's Comm. Lect. 40, 437.
4. Mr. Justice Story says, that a bailment is a delivery of a thing in trust
for some special object or purpose, and upon a contract, express or implied, to
conform to the object or purpose of the trust. Story on Bailm. c. 1, §2. This
corresponds very nearly with the definition of Merlin. Vide Repertoire, mot
5. Bailments are divisible into three kinds: 1. Those in which the trust is
for the benefit of the bailor, as deposits and mandates. 2. Those in which the
trust is for the benefit of the bailee, as gratuitous loans for use. 3. Those in
which the trust is for the benefit of both parties, as pledges or pawns, and
hiring and letting to hire. See Deposit; Hire; Loans; mandates and Pledges.
6. Sir William Jones has divided bailments into five sorts, namely: 1.
Depositum, or deposit. 2. Mandatum, or commission without recompense. 3.
Commodatum, or loan for use, without pay. 4. Pignori acceptum, or pawn. 5.
Locatum, or hiring, which is always with reward. This last is subdivided into,
1. Locatio rei, or biring, by which the hirer gains a temporary use of the
thing. 2. Locatio operis faciendi, when something is to be done to the thing
delivered. 3. Locatio operis mercium vehendarum, when the thing is merely to be
carried from one place to another. See these several words. As to the
obligations and duties of bailees in general, see Diligence, and Story on Bailm.
c. 1; Chit. on Cont. 141; 3 John. R. 170; 17 Mass. R. 479; 5 Day, 15; 1 Conn.
Rep. 487; 10 Johns. R. 1, 471; 12 Johns. R. 144, 232; 11 Johns. R. 107; 15
Johns. R. 39; 2 John. C. R. 100; 2 Caines' Cas. 189; 19 Johns. R. 44; 14 John.
R. 175; 2 Halst. 108; 2 South. 738; 2 Harr. & M'Hen. 453; 1 Rand. 3; 2
Hawks, 145; 1 Murphy, 417; 1 Hayw. 14; 1 Rep. Con. Ct. 121, 186; 2 Rep. Con. Ct.
239; 1 Bay, 101; 2 Nott & M'Cord, 88, 489; 1 Browne, 43, 176; 2 Binn. 72; 4
Binn. 127; 5 Binn. 457; 6 Binn. 129; 6 Serg. & Rawle, 439; 8 Serg. &
Rawle, 500, 533; 14 Serg. & R. 275; Bac. Ab. h. t.; 1 Bouv. Inst. n.
BAILOR, contracts. He who bails a thing to another.
2. The bailor must act with good faith towards the bailee; Story's Bailm.
§74, 76, 77; permit him to enjoy the thing bailed according to contract; and, in
some bailments, as hiring, warrant the title and possession of the thing hired,
and probably, to keep it in suitable order and repair for the purpose of the
bailment. Id. §Vide Inst. lib. 3, tit. 25.
BAILIWICK. The district over which a sheriff has jurisdiction; it
signifies also the same as county, the sheriff's bailiwick extending over the
2. In England, it signifies generally that liberty which is exempted from the
sheriff of the county over which the lord of the liberty appoints a bailiff.
Vide Wood's Inst. 206.
BAIR-MAN, Scottish law. A poor insolvent debtor left bare.
BAIRN'S PART, Scottish, law. Children's part a third part of the
defunct's free movables, debts deducted, if the wife survive, and a half if
there be no relict.
BALANCE, com. law. The amount which remains due by one of two persons,
who have been dealing together, to the other, after the settlement of their
2. In the case of mutual debts, the balance only can be recovered by the
assignee of an insolvent, or the executor of a deceased person. But this
mutuality must have existed at the time of the assignment by the insolvent, or
at the death of the testator.
3. The term general balance is sometimes used to signify the difference which
is due to a party claiming a lien on goods in his hands, for work or labor done,
or money expended in relation to those and other goods of the debtor. 3 B. &
P. 485; 3 Esp. R. 268.
BALANCE SHEET. A statement made by merchants and others to show the
true state of a particular business. A balance sheet should exhibit all the
balances of debits and credits, also the value of merchandize, and the result of
the whole. Vide Bilan.
BALANCE OF TRADE, Com. law. The difference between the exports and
importations, between two countries. The balance of trade is against that
country which has imported more than it has exported, for which it is debtor to
the other country.
BALIVA. A bailiwick or jurisdiction.
BALIVO AMOVENDO, Eng. practice. A writ to remove a bailiff out of his
BALLASTAGE, mar. law. A toll paid for the privilege, of taking up
ballast from the bottom of the port. This arises from the property in the soil.
2 Chit. Com. Law, 16.
BALLOT, government. A diminutive ball, i. e. a little ball used in
giving votes; the act itself of giving votes. A little ball or ticket used in
voting privately, and, for that purpose, put, into a box, (commonly called a
ballot-box,) or into some other contrivance.
BALNEARII, civil law. Stealers of the clothes of person who were
washing in the public baths. Dig. 47, 17; 4 Bl. Com. 239; Calviui Lex.
BAN, A proclamation, or public notice any summons or edict by which a
thing is forbidden or commanded. Vide Bans of Matrimony; Proclamation; Cowell's
BANC or BANK. The first of these is a French word signifying bench,
pronounced improperly bank. 1. The seat of judgment, as banc le roy, the king's
bench banc le common pleas, the bench of common pleas.
2. The meeting of all the judges or such as may form a quorum, as, the court
sit in banc. Cowell's Interp.
BANCO. A commercial term, adopted from the Italian, used to
distinguish bank money from the common currency; as $1000,
BANDIT. A man outlawed; one who is said to be under ban.
BANE. This word was formerly used to signify a malefactor. Bract. 1.
2, t. 8, c. 1.
BANISHMENT, crim. law. A punishment inflicted upon criminals, by
compelling them to quit a city, place, or country, for, a specified period of
time, or for life. Vide 4 Dall. 14. Deportation; Relegation.
BANK, com. law. 1. A place for the deposit of money. 2. An
institution, generally incorporated, authorized to receive deposits of money, to
lend money, and to issue promissory notes, usually known by the name of bank
notes. 3. Banks are said to be of three kinds, viz : of deposit, of discount,
and of circulation; they generally perform all these operatious. Vide Metc.
& Perk. Dig. Banks and Banking.
BANKBOOK ,commerce. A book which persons dealing with a bank keep, in
which the officers of the bank enter the amount of money deposited by them, and
all notes or bills deposited by them, or discounted for their use.
BANK NOTE, contracts. A bank note resembles a common promissory note,
(q. v.) issued by a bank or corporation authorized to act as a bank. It is in
fact a promissory note, but such notes are not, for many purposes, to be
considered as mere securities for money; but are treated as money, in the
ordinary course and transactions of business, by the general consent of mankind
and, on payment of them, when a receipt is required, the receipts are always
given as for money, not as for securities or notes. 1 Burr. R. 457; 12 John. R.
200; 1 John. Ch. R. 231; 9 John. R. 120; 19 John. 144; 1 Sch. & Lef. 318,
319; 11 Ves. 662; 1 Roper, Leg. 3; 1 Ham. R. 189, 524; 15 Pick. 177; 5 G. &
John. 58; 3 Hawks, 328; 5 J. J. Marsh. 643.
2. Bank notes are assignable by delivery. Rep. Temp. Hard. 53 9 East, R. 48;
4 East, R. 510 Dougl. 236. The holder of a bank note is prima facie entitled to
prompt payment of it, and cannot be affected by the fraud of any former holder
in obtaining it, unless evidence be given to bring it home to his privity. 1
Burr. 452; 4 Rawle, 185 13 East, R. 135 Dane's Ab. Index, h. t.; Pow. on Mortg.
lndex, h. t. U. S. Dig. h. t. Vide Bouv. Inst. Index, h. t. Note; Promissory
note; Reissuable note.
3. They cannot be taken in execution. Cunning. on Bills, 537; Hardw. Cases,
53; 1 Arch. Pr. 268 1 Wils. Rep. 9 Cro. Eliz. 746, pl. 25
BANK STOCK. The capital of a bank. It is usually divided in shares of
a certain amount. This stock is generally transferable on the bools of the bank,
and considered as personal property. Vide Stock.
BANKER, com. law. A banker is one engaged in the business of receiving
other persons money in deposit, to be returned on demand discounting other
persons' notes, and issuing his own for circulation. One who performs the
business usually transacted by a bank. Private bankers are generally not
2. The business of bankers is generally performed through the medium of
3. A banker may be declared a bankrupt by adverse proceedings against him.
Act of Congress of 19th Aug. 1841. See 1 Atk. 218; 2 H. Bl. 235; 1 Mont. B. L.
4. Among the ancient Romans there were bankers called argentarii, whose
office was to keep registers of contracts between individuals, either to loan
money, or in relation to sales and stipulations. These bankers frequently agreed
with the creditor to pay him the debt due to him by the debtor. Calvini Lex.
BANKERS' NOTE, contracts. In England a distinction is made between
bank notes, (q. v.) and bankers' notes. The latter are promissory notes, and
resemble bank notes in every respect, except that they are given by persons
acting as private bankers. 6 Mod. 29; 3 Chit. Com. Law, 590; 1 Leigh's N. P.
BANKRUPT. A person who has done, or suffered some act to be done,
which is by law declared an act of bankruptcy; in such case he may be declared a
2. It is proper to notice that there is much difference between a bankrupt
and an insolvent. A man may be a bankrupt, and yet be perfectly solvent; that
is, eventually able to pay all his debts or, he may be insolvent, and, in
consequence of not having done, or suffered, an act of bankruptcy. He may not be
a bankrupt. Again, the bankrupt laws are intended mainly to secure creditors
from waste, extravagance, and mismanagement, by seizing the property out of the
hands of the debtors, and placing it in the custody of the law; whereas the
insolvent laws only relieve a man from imprisonment for debt after he has
assigned his property for the benefit of his creditors. Both under bankrupt and
insolvent laws the debtor is required to surrender his property, for the benefit
of his creditors. Bankrupt laws discharge the person from imprisonment, and his
property, acquired after his discharge, from all liabilities for his debts
insolvent laws simply discharge the debtor from imprisonment, or liability to be
imprisoned, but his after-acquired property may be taken in satisfaction of his
former debts. 2 Bell, Com. B. 6, part 1, c. 1, p. 162; 3 Am. Jur. 218.
BANKRUPTCY. The state or condition of a bankrupt.
2. Bankrupt laws are an encroacbment upon the common law. The first in
England was the stat. 34 and 35 H. VIII., c. 4, although the word bankrupt
appears only in the title, not in the body of the act. The stat. 13 Eliz. c. 7,
is the first that defines the term bankrupt, and discriminates bankruptcy from
mere insolvency. Out of a great number of bankrupt laws passed from time to
time, the most considerable are the statutes 13 Eliz. c. 7; 1 James I., c. 19 21
James I., c. 19 5 Geo. II., c. 30. A careful consideration of these statutes is
sufficient to give am adequate idea of the system of bankruptcy in England. See
Burgess on Insolvency, 202-230.
3. The Constitution of the United States, art. 1, s. 8, authorizes congress
"to establish an uniform rule of naturalization, and uniform laws on the subject
of bankruptcies throughout the United States." With the exception of a short
interval during which bankrupt laws existed in this country, this power lay
dormant till the passage of the act of 1841, since repealed.
4. Any one of the states may pass a bankrupt law, but no state bankrupt or
insolvent law can be permitted to impair the obligation of contracts; nor can
the several states pass laws conflicting with an act of congress on this subject
4 Wheat. and the bankrupt laws of a state cannot affect the rights of citizens
of another state. 12 Wheat. It. 213. Vide 3 Story on the Const. §1100 to 1110 2
Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the Const. c. 9 6 Pet. R. 348
Bouv. Inst. Index, h. t. Vide Bankrupt.
BANKS OF RIVERS, estates. By this term is understood what retains the
river in its natural channel, when there is the greatest flow of water.
2. The owner of the bank of a stream, not navigable, his in general the right
to the middle of the stream. Vide Riparian Proprietor.
3. When by imperceptible increase the banks on one side extend into the
river, this addition is called alluvion. (q. v.) When the increase is caused by
the sudden transfer of a mass of earth or soil from the opposite bank, it is
called an increase by avulsion. (q. v.)
BANNITUS. One outlawed or banished. See Calvini Lex.
BANS OF MATRIMONY. The giving public notice or making proclamation of
a matrimonial contract, and the intended celebration of the marriage
of the parties in pursuance of such contract, to the end that persons
objecting to the same, may have an opportunity to declare such objections
before the marriage is solemnized. Poth. Du Mariage, partie 2, c.
2. Vide Ban.