BAR, actions. A perpetual destruction or temporary taking away of the
action of the plaintiff. In ancient authors it is called exceptio peremptorid.
Co. Litt. 303 b Steph. Pl. Appx. xxviii. Loisel (Institutes Coutumieres, vol.
ii. p. 204) says, "Exceptions (in pleas) have been called bars by our ancient
practitioners, because, being opposed, they arrest the party who has sued out
the process, as in war (une barriere) a barrier arrests an enemy; and as there
have always been in our tribunals bars to separate the advocates from the
judges, the place where the advocates stand (pour parler) when they speak, has
been called for that reason (barreau) the bar."
2. When a person is bound in any action, real or personal, by judgment on
demurrer, confession or verdict, he is barred, i. e. debarred, as to that or any
other action of the like nature or degree, for the same thing, forever; for
expedit reipublicae ut sit finis litim.
3. But there is a difference between real and personal actions.
4. In personal actions, as in debt or account, the bar is perpetual, inasmuch
as the plaintiff cannot have an action of a higher nature, and therefore in such
actions he has generally no remedy, but by bringing a writ of error. Doct. Plac.
65; 6 Co. 7, 8 4 East, 507, 508.
5. But if the defendant be barred in a real action, by judgment on a verdict,
demurrer or confession, &c., he may still have an action of a higher nature,
and try the same right again. Lawes, Pl. 39, 40. See generally, Bac. Ab.
Abatement, N; Plea in bar. Also the case of Outram v. Morewood, 3 East, Rep.
346-366; a leading case on this subject.
BAR, practice. A place in a court where the counsellors and advocates
stand to make their addresses to the court and jury; it is so called because
formerly it was closed with a bar. Figuratively the counsellors and attorneys at
law are called the bar of Philadelphia, the New York bar.
2. A place in a court having criminal jurisdiction, to which prisoners are
called to plead to the indictment, is also called, the bar. Vide Merl. Repert.
mot Barreau, and Dupin, Profession d'Avocat, tom. i. p. 451, for some eloquent
advice to gentlemen of the bar.
BAR, contracts. An obstacle or opposition. 2. Some bars arise from
circumstances, and others from persons. Kindred within the prohibited degree,
for example, is a bar to a marriage between the persons related; but the fact
that A is married, and cannot therefore marry B, is a circumstance which
operates as a bar as long as it subsists; for without it the parties might
BAR FEE, Eng. law. A fee taken time out of mind by the sheriff for
every prisoner who is acquitted. Bac. Ab. Extortion.
BARBICAN. An ancient word to signify a watch-tower. Barbicanage was
money given for the support of a barbican.
BARGAIN AND SALE, conveyancing, contracts. A contract in writing to
convey lands to another person; or rather it is the sale of a use therein. In
strictness it is not an absolute conveyance of the seizin, as a feoffment. Watk.
Prin. Conv. by Preston, 190, 191. The consideration must be of money or money's
worth. Id. 237.
2. In consequence of this conveyance a use arises to a bargainee, and the
statute 27 Henry VIII. immediately transfers the˜20legal estate and possession
3. A bargain and sale, may be in fee, for life, or for years.
4. The proper and technical words of this conveyance are bargain and sale,
but any other words that would have been sufficient to raise a use, upon a
valuable consideration, before the statute, are now sufficient to constitute a
good bargain and sale. Proper words of limitation must, however, be inserted.
Cruise Dig. tit. 32, c. 9; Bac. Ab. h. t. Com. Dig. h. t.; and the cases there
cited; Nels. Ab. h. t. 2 Bl. Com. 338.
5. This is the most common mode of conveyance in the United States. 4 Kent,
Com. 483; 3 Pick. R. 529; 3 N. H. Rep. 260; 6 Harr. & John. 465; 3 Wash. C.
C. Rep. 376; 4 Mass. R. 66; 4 Yeates, R. 295; 1 Yeates, R. 828; 3 John. R. 388;
4 Cowen's R. 325; 10 John. R. 456, 505; 3 N. H. Rep. 261; 14 John. R. 126; 2
Harr. & John. 230; 2 Bouv. Inst. n. 207 7 8.
BARGAINEE. A person to whom a bargain is made; one who receives the
advantages of a bargain.
BARGAINOR. A person who makes a a bargain, and who becomes bound to
BARGEMEN. Persons who own and keep a barge for the purpose of carrying
the goods of all. such other persons who may desire to employ them. They are
liable as common, carriers. Story, Bailm. 496.
BARLEYCORN. A lineal measure, containing one-third of an inch. Dane's
Ab. c. 211, a. 13, s. 9. The barleycorn was the first measure, with its division
and multiples, of all our measures of length, superfices, and capacity. Id. c.
211, a. 1 2, s. 2.
BARN, estates. A building on a farm used to receive the crop, the
stabling of animals, and other purposes.
2. The grant or demise of a barn, without words superadded to extend its
meaning, would pass no more than the barn itself, and as much land as would be
necessary for its complete enjoyment. 4 Serg. & Rawle, 342.
BARON. This word has but one signification in American law, namely,
hushand: we use baron and feme, for hushand and wife. And in this sense it is
going out of use.
2. In England, and perhaps some other countries, baron is a title of honor;
it is the first degree of nobility below a viscount. Vide Com. Dig. Baron and
Feme; Bac. Ab. Baron and Feme; and the articles. Hushand; Marriage; Wife.
3. In the laws of the middle ages, baron or bers, (baro) signifes a great
vassal; lord of a fief and tenant immediately from the king: and the words
baronage, barnage and berner, signify collectively the vassals composing the
court of the king; as Le roi et son barnage, The king and his court. See
Spelman's Glossary, verb. Baro.
BARONS OF EXCHEQUER, Eng. law. The name given to the five judges of
the Exchequer formerly these were baros of the realm, but now they are chosen
from persons learned in the law.
BARRACK. By this term, as used in Pennsylvania, is understood an
erection of upright posts supporting a sliding roof, usually of thatch. 5 Whart.
BARRATOR, crimes. One who has been guilty of the offence of
BARRATRY, crimes. In old law French barat, baraterie, signifying
robbery, deceit, fraud. In modern usage it may be defined as the habitual
moving, exciting, and maintaining suits and quarrels, either at law or
otherwise. 1 Inst. 368; 1 Hawk. 243.
2. A man cannot be indicted as a common barrator in respect of any number of
false and groundless actions brought in his own right, nor for a single act in
right of another; for that would not make him a common barrator.
3. Barratry, in this sense, is different from maintenance (q. v.) and
champerty. (q. v.)
4. An attorney cannot be indicted for this crime, merely for maintaining
another in a groundless action. Vide 15 Mass. R. 229 1 Bailey's R. 379; 11 Pick.
R. 432; 13 Pick. R. 362; 9 Cowen, R. 587; Bac. Ab. h. t.; Hawk. P. C. B. 1, c.
21; Roll. Ab. 335; Co. Litt. 368; 3 Inst. 175.
BARRATRY, maritime law, crimes. A fraudulent act of the master or
mariners, committed contrary to their duty as such, to the prejudice of the
owners of the ship. Emer. tom. 1, p. 366; Merlin, Repert. h. t.; Roccus, h. t.;
2 Marsh. Insur. 515; 8 East, R. 138, 139. As to what will amount to barratry,
see Abbott on Shipp. 167, n. 1; 2 Wash. C. C. R. 61; 9 East, R. 126; 1 Str. 581;
2 Ld. Raym. 1349; 1 Term R. 127; 6 Id. 379; 8 Id. 320; 2 Cain. R. 67, 222; 3
Cain. R. 1; 1 John. R. 229; 8 John. R. 209, n. 2d edit.; 5 Day. R. 1; 11 John.
R. 40; 13 John. R, 451; 2 Binn. R. 274; 2 Dall. R. 137; 8 Cran. R. 39; 3 Wheat.
R. 168; 4 Dall. R. 294; 1 Yeates, 114.
2. The act of Congress of April, 30, 1790, s. 8, 1 Story's Laws U. S. 84,
punishes with death as piracy, "any captain or mariner of any ship or other
vessel who shall piratically and feloniously run away with such ship or vessel,
or any goods or merchandize to the value of fifty dollars; or yield up such ship
or vessel to any pirate or if any such seamen shall lay violent hands upon his
commander, thereby to binder or prevent his fighting in defence of his ship, or
goods, committed to his trust, or shall make a revolt in the said ship."
BARREL. A measure of capacity, equal to tliirty-six gallons.
BARREN MONEY, civil law. This term is used to denote money which bears
BARRENNESS. The incapacity to produce a child. This, when arising from
impotence, is a cause for dissolving a marriage. 1 Fodere, Med. Leg. §254.
BARRISTER, English law. A counsellor admitted to plead at the bar.
2. Ouster barrister, is one who pleads ouster or without the bar.
3. Inner barrister, a serjeant or king's counsel who pleads within the
4. Vacation barrister, a counsellor newly called to the bar, who is to attend
for several long vacations the exercise of the house.
5. Barristers are called apprentices, apprentitii ad legem, being looked upon
as learners, and not qualified until they obtain the degree of serjeant. Edmund
Plowden, the author of the Commentaries, a volume of elaborate reports in the
reigns of Edward VI., Mary, Philip and Mary, and Elizabeth, describes himself as
an apprentice of the common law.
BARTER. A contract by which the parties exchange goods for goods. To
complete the contract the goods must be delivered, for without a delivery, the
right of property is not changed.
2. This contract differs from a sale in this, that barter is always of goods
for goods, whereas a sale is an exchange of goods for money. In the former there
never is a price fixed, in the latter a price is indispensable. All the
differences which may be pointed out betwen these two contracts, are comprised
in this; it is its necessary consequence. When the contract is an exchange of
goods on one side, and on the other side the consideration is partly goods and
partly money, the contract is not a barter, but a sale. See Price; Sale.
3. If an insurance be made upon returns from a country where trade is carried
on by barter, the valuation of the goods in return shall be made on the cost of
those given in barter, adding all charges. Wesk. on Ins. 42. See 3 Camp. 351
Cowp. 818; 1 Dougl. 24, n.; 1 N. R. 151 Tropl. de l'Echange.
BARTON, old English law. The demesne land of a manor; a farm distinct
from the mansion.
BASE. Something low; inferior. This word is frequently used in
composition; as base court, base estate, base fee, &c.
BASE COURT. An inferior court, one not of record. Not used.
BASE ESTATE, English law. The estate which base tenants had in their
lands. Base tenants were a degree above villeins, the latter being compelled to
perform all the commands of their lords; the former did not hold their lands by
the performance of such commands. See Kitch. 41.
BASE FEE, English law. A tenure in fee at the will of the lord. This
was distinguished from socage free tenure. See Co. Litt. 1, 18.
BASILICA, civil law. This is derived from a Greek word, which signifies
imperial constitutions. The emperor Basilius, finding the Corpus
Juris Civilis of Justinian too long and obscure, resolved to abridge
it, and under his auspices the work proceeded to the fortieth book,
which, at his death, remained unfinished. His son and successor,
Leo, the philosopher, continued the work, and published it in sixty
books, about the year 880. Constantine Porphyro-genitus, younger
brother of Leo, revised the work, re-arranged it, and republished
it, Anno Domini, 910. From that time the laws of Justinian ceased
to have any force in the eastern empire, and the Basilica were the
foundation of the law observed there till Constantine XIII, the
last of the Greek emperors, under whom, in 1453, Constantinople
was taken by Mahomet the Turk, who put an end to the empire and
its laws. Histoire de la Jurisprudence Etienne, Intr. a 1'etude
du Droit Romain, §LIII. The Basilica were written in Greek. They
were translated into Latin by J. Cujas (Cujacius) Professor of Law
in the University of Bourges, and published at Lyons, 22d of January,
1566, in one vol. fo.