BELIEF. The conviction of the mind, arising from evidence received, or
from information derived, not from actual perception by our senses, but from.
the relation or information of others who have had the means of acquiring actual
knowledge of the facts and in whose qualifications for acquiring that knowledge,
and retaining it, and afterwards in communicating it, we can place confidence. "
Without recurring to the books of metaphysicians' "says Chief Justice Tilghman,
4 Serg. & Rawle, 137, "let any man of plain common sense, examine the
operations of, his own mind, he will assuredly find that on different subjects
his belief is different. I have a firm belief that, the moon revolves round the
earth. I may believe, too, that there are mountains and valleys in the moon; but
this belief is not so strong, because the evidence is weaker." Vide 1 Stark. Ev.
41; 2 Pow. Mortg. 555; 1 Ves. 95; 12 Ves. 80; 1 P. A. Browne's R 258; 1 Stark.
Ev. 127; Dyer, 53; 2 Hawk. c. 46, s. 167; 3 Wil. 1, s. 427; 2 Bl. R. 881; Leach,
270; 8 Watts, R. 406; 1 Greenl. Ev. §7-13, a.
BELOW. Lower in place, beneath, not so high as some other thing spoken
of, of tacitly referred to.
2. The court below is an inferior court, whose, proceedings may be examined
on error by a superior court, which is called the court above.
3. Bail below is that given to the sheriff in bailable actions, which is so
called to distinguish it from bail to t-he action, which is called bail above.
See Above; Bail above; Bail below.
BENCH. Latin Bancus, used for tribunal. In England there are two
courts to which this word is applied. Bancus Regius, King's Bench Bancus
Communis, Com- mon Bench or Pleas. The jus banci, says Spelman, properly belongs
to the king's judges, who administer justice in the last resort. The judges of
the inferior courts, as of the barons, are deemed to, judge plano pede, and are
such as are called in the civil law pedanei judices, or by the Greeks
Xauaidixastai, that is, humi judicantes. The Greeks called the seats of their
higher judges Bumata, and of their inferior judges Bathra. The Romans used the
word sellae and tribunalia, to designate the seats of their higher judges, and
subsellia, to designate those of the lower. See Spelman's Gloss. (ad verb.)
Bancus; also, 1 Reeves Hist. Eng. Law, 40, 4to ed., and postea Curia Regis.
BENCH WARRANT, crim. law. The name of a process sometimes given to an
attachment issued by order of a criminal court, against an individual for some
contempt, or for the purpose of arresting a person accused; the latter is seldom
granted unless when a true bill has been found.
BENCHER, English law. A bencher is a senior in the inns of court,
entrusted with their government and direction.
BENEFICE, eccles. law. In its most extended sense, any ecclesiastical
preferment or dignity; but in its more limited sense, it is applied only to
rectories and vicarages.
BENEFICIA. In the early feudal times, grants were made to continue
only during the pleasure of the grantor, which were called munera, (q. v.) but
soon afterwards these grants were made for life, and then they assumed the name
of beneficia. Dalr. Feud. Pr. 199. Pomponius Laetus, as cited by Hotoman, De
Feudis, ca. 2, says, " That it was an ancient custom, revived by the emperor
Constantine, to give lands and villas to those generals, prefects, and tribunes,
who had grown old in enlarging the empire, to supply their necessities as long
as they lived, which they called. parochial parishes, &c. But, between
(feuda) fiefs or feuds, and (parochias) parishes, there was this difference,
that the latter were given to old men, veterans, &c., who, as they had
deserved well of the republic, sustained the rest of their life (publico
beneficio) by the public benefaction; or, if any war afterwards arose, they were
called out, not so much as soldiers, as leaders, (majistri militum.) Feuds,
(feuda,) on the other hand, were usually given to robust young men who could
sustain the labors of war. In later times, the word parochia was appropriated
exclusively to ecclesiastical persons, while the word beneficium (militare)
continued to be used in reference to military fiefs or fees.
BENEFICIAL. Of advantage, profit or interest; as the wife has a
beneficial interest in property held by a trustee for her. Vide Cestui que
BENEFICIAL INTEREST. That right which a person has in a contract made
with another; as if A makes a contract with B that he will pay C a certain sum
of money, B has the legal interest in the contract, and C the beneficial
interest. Hamm. on Part. 6, 7, 25 2 Bulst. 70.
BENEFICIARY. This term is frequently used as synonymous with the
technical phrase cestui que trust. (q. v.)
BENEFICIO PRIMO ECCLESIASTICO HABENDO, Eng. eccl. law. A writ directed
from the king to the chancellor, commanding him to bestow the benefice which
shall first fall in the king's gift, above or under a certain value, upon a
particular and certain person.
BENEFICIUM COMPETENTIAE. The right which an insolvent debtor had,
among the Romans, on making session of his property for the benefit of his
creditors, to retain what was required for him to live honestly according to his
condition. 7 Toull. n. 258.
BENEFIT. This word is used in the same sense as gain (q. v.) and
profits. (q. v.) 20 Toull. n. 199.
BENEFIT OF CESSION, Civil law. The release of a debtor from future
imprisonment for his debts, which the law operates in his favor upon the
surrender of his property for the benefit of his, creditors, Poth. Proced. Civ.
5eme part., c. 2, §1. This was something like a discharge under the insolvent
laws, which releases the person of the debtor, but not the goods he may acquire
afterwards. See Bankrupt; Cessio Bo. Insolvent.
BENEFIT OF CLERGY, English law. An exemption of the punishment of
death which the laws impose on the commission of certain crimes, on the culprit
demanding it. By modern statute's, benefit of clergy was rather a substitution
of a more mild punishment for the punishment of death.
2. It was lately granted, not only to the clergy, as was formerly the case,
but to all persons. The benefit of clergy seems never to have been extended to
the crime of high treason, nor to have embraced misdemeanors inferior to felony.
Vide 1 Chit. Cr. Law, 667 to 668 4 Bl. Com. ch. 28. But this privilege
improperly given to the clergy, because they had more learning than others) is
now abolished by stat. 7 Geo. IV. c. 28, s. 6.
3. By the Act of Congress of April 30, 1790, it is provided, §30, that the
benefit of clergy shall not be used or allowed, upon conviction of any crime,
for which, by any statute of the United States, the punishment is, or shall be
declared to be, death.
BENEFIT OF DISCUSSION, civil law. The right which a surety has to
cause the property of the principal debtor to be applied in satisfaction of the
obligation in the first instance. See Civil Code of Lo. art. 3014 to 3020, and
BENEFIT OF DIVISION. In the civil law, which, in this respect, has
been adopted in Louisiana, although, when there are several sureties, each one
is bound for the whole debt, yet when one of them is sued alone, he has a right
to have the debt apportioned among all the solvent sureties on the same
obligation, so that he shall be compelled to pay his own share only. This is
called the benefit of division. Civil Code of Lo. art. 3014 to 3020. See 2 Bouv.
Inst. n. 1414.
BENEFIT OF INVENTORY, civil law. The benefit of inventory is the
privilege which the heir obtains of being liable for the charges and debts of
the succession, only to the value of the effects of the succession, in causing
an inventory of these effects within the time and manner proscribed by law.
Civil Code of Louis. art. 1025. Vide Poth. Traits des Successions, c. 3, s. 3,
BENEVOLENCE, duty. The doing a kind action to another, from mere good
will, without any legal obligation. It is a moral duty only, and it cannot be
enforeed by law. A good wan is benevolent to the poor, but no law can compel him
to be so.
BENEVOLENCE, English law. An aid given by the subjects to the king
under a pretended gratuity, but in realty it was an extortion and
TO BEQUEATH. To give personal property by will to another.
BEQUEST. A gift by last will or testament; a legacy. (q. v.) This word
is sometimes, though improperly used, as synonymous with devise. There is,
however, a distinction between them. A bequest is applied, more properly, to a
gift by will of a legacy, that is, of personal property; devise is properly a
gift by testament of real property. Vide Devise.
BESAILE or BESAYLE, domestic relations. The grea-grandfather, proavus.
1 Bl. Com. 186. Vide dile.
BEST EVIDENCE. Means the best evideince of which the nature of the
case admits, not the highest or strongest evidence which the nature of the thing
to be proved admits of: e. g. a copy of a deed is not the best evidence; the
deed itself is better. Gilb. Ev. 15; 3 Campb.. 236; 2 Starkey, 473 2 Campb. 605;
1 Esp. 127.
2. The rule requiring the best evidence to be produced, is to be understood
of the best legal evidence. 2 Serg. & R. 34; 3 Bl. Com. 368, note 10, by
Christian. It is relaxed in some cases, as, e. g. where the words or the act of
the opposite party avow the fact to be proved. A tavern keeper's sign avows his
occupation; taking of tithes avows the clerical character; so, addressing one as
The Reverend T. S." 2 Serg. & R. 440 1 Saund. on Plead. & Evid. 49.
BETROTHMENT. A contract between a man and a woman, by which they agree
that at a future, time they will marry together.
2. The requisites of this contract are 1. That it be reciprocal. 2. That the
parties be able to contract.
3. The contract must be mutual; the Promise of the one must be the
consideration for the promise of the other. It must be obligatory on both
parties at the same instant, so that each may have an action upon it, or it will
bind neither. 1 Salk. 24, Carth. 467; 5 Mod. 411; 1 Freem. 95; 3 Keb. 148; Co.
Lit. 79 a, b.
4. The parties must be able to contract. if either be married at the time of
betrothment, the contract is void; but the married party cannot take advantage
of his own wrong, and set up a marriage or previous engageinent, as an answer to
the action for the breach of the contract, because this disability proceeds from
the defendant's own act. Raym. 387 3 Just. 89; I Sid. 112 1 Bl. Com. 438.
5. The performance of this engagement or completion of the marriage, must be
performed within a reasonable time. Either party may, therefore, call upon the
other to fulfil the engagement, and in case of refusal or neglect to do so,
within a reasonable time after request made, may treat the betrothment as at an
end, and bring action for the breach of the contract. 2 C. & P. 631.
6. For a breach of the betrothment, without a just cause, an action on the
case may be maintained for the recovery of damages. See Affiance; Promise of
BETTER EQUITY. In England this term has lately been adopted. In the
case of Foster v. Blackston, the master of the rolls said, be could no where
find in the authorities what in terms was a better equity, but on a reference to
all the cases, he considered it might be thus defined: If a prior incumbrancer
did not take a security which effectually protected him against any subsequent
dealing to his prejudice, by the party who had the legal estate, a second
incumbrancer, taking a security which in its nature afforded him that
protection, had what might properly be called a better equity. 1 Ch. Pr. 470,
note. Vide 4 Rawle, R. 144 3 Bouv. Inst. n. 2462.
BETTERMENTS. Improvement's made to an estate. It signifies such
improvements as have been made to the estate which render it better than mere
repairs. See 2 Fairf. 482; 9 Shepl. 110; 10 Shepl. 192; 13 Ohio, R. 308; 10
Yerg. Verm. 533; 17 Verm. 109.
BEYOND SEA. This phrase is used in the acts of limitations of several
of the states, in imitation of the phraseology of the English statute of
limitations. In Pennsylvania, the term has been construed to signify out of the
United States. 9 S. & R. 288; 2 Dall. R. 217; 1 Yeates, R. 329. In Georgia,
it is equivalent to without the limits of the state; 3 Wheat. R. 541; and the
same construction prevails in Maryland; 1 Har. & John. 350; 1 Harr. &
M'H. 89; in South Carolina; 2 McCord, Rep. 331; and in Massachusetts. 3 Mass. R.
271; 1 Pick. R. 263. Vide Kirby, R. 299; 3 Bibb. R. 510; 3 Litt. R. 48; 1 John.
Cas. 76. Within the four seas, infra quatuor maria, and beyond the four seas,
extra quatuor maria, in English law books signify within and without the kingdom
of England, or the jurisdiction of the king of England. Co. Lit. 244 a; 1 Bl.
BIAS. A particular influential power which sways the judgment; the
inclination or propensity of the mind towards a particular object.
2. Justice requires that the judge should have no bias for or against any
individual; and that his mind should be perfectly free to act as the law
3. There is, however, one kind of bias which the courts suffer to influence
them in their judgments it is a bias favorable to a class of cases, or persons,
as distinguished from an individual case or person. A few examples will explain
this. A bias is felt on account of convenience. 1 Ves. sen. 13, 14; 3 Atk. 524.
It is also felt in favor of the heir at law, as when there is an heir on one
side and a mere volunteer on the other. Willes, R. 570 1 W. Bl. 256; Amb. R.
645; 1 Ball & B. 309 1 Wils. R. 310 3 Atk. 747 Id. 222. On the other hand,
the court leans against double portions for children; M'Clell. R. 356; 13 Price,
R. 599 against double provisions, and double satisfactions; 3 Atk. R. 421 and
against forfeitures. 3 T. R. 172. Vide, generally, 1 Burr. 419 1 Bos. &
Pull. 614; 3 Bos. & Pull. 456 Ves. jr. 648 Jacob, Rep. 115; 1 Turn. & R.
BID, contracts. A bid is an offer to pay a specified price for an
article about to be sold at auction. The bidder has a right to withdraw his bid
at any time before it is accepted, which acceptance is generally manifested by
knocking down the hammer. 3 T. R. 148; Hardin's Rep. 181; Sugd. Vend. 29;
Babington on Auct. 30, 42; or the bid may be withdrawn by implication. 6 Penn.
St. R. 486; 8, Id. 408. Vide 0ffer.
BIDDER, contracts. One who makes an offer to pay a certain price for
an article which is for sale.
2. The term is applied more particularly to a person who offers a price for
goods or other property, while up for sale at an auction. The bidder is required
to act in good faith, and any combination between him and others, to prevent a
fair competition, would avoid the sale made to himself.
3. But there is nothing illegal in two or more persons agreeing together to
purchase a property at sheriff's sale, fixing a certain price which they are.
willing to give, and appointing one of their number to be the bidder. 6 Watts
& Serg. 122.
4. Till the bid is accepted, the bidder may retract it. Vide articles,
Auction and Bid; 3 John. Cas. 29 6 John. R. 194; 8 John. R. 444 1 Fonbl. Eq. b.
1, c. 4, §4, note (x).
BIENS. A French word, which signifies property. In law, it means
property of every description, except estates of freehold and inheritance.
Dane's Ab. c. 133, a, 3 Com. Dig. h. t.; Co. Litt. 118, b; Sugd. Vend. 495.
2. In the French law, this term includes all kinds of property, real and
personal. Biens are divided into biens meubles, movable or personal property;
and biens immeubles, immovable property or real estate. This distinction between
movable and immovable property, is, however, recognized by them, and gives rise
in the civil, as well as in the common law, to many important distinctions as to
rights and remedies. Story, Confl. of Laws, §13, note 1.
BIGAMUS, Canon law, Latin. One guilty of bigamy.
BIGAMY, crim. law, domestic relations. The wilful contracting of a
second marriage when the contracting party knows that the first is still
subsisting; or it is the state of a man who has two wives, or of a woman who has
two hushands living at the same time. When the man has more than two wives, or
the woman more than two hushands living at the same time, then the party is said
to have committed polygamy, but the name of bigamy is more frequently given to
this offence in legal proceedings. 1 Russ. on Cr. 187.
2. In England this crime is punishable by the stat. 1 Jac. 1, c. 11, which
makes the offence felony but it exempts from punishment the party whose hushand
or wife shall continue to remain absent for seven years before the second
marriage, without being heard from, and persons who shall have been legally
divorced. The statutory provisions in the U. S. against bigamy or polygamy, are
in general similar to, and copied from the statute of 1 Jac. 1, c. 11, excepting
as to the punishment. The several exceptions to this statute are also nearly the
same in the American statutes, but the punishment of the offence is different in
many of the states. 2 Kent, Com. 69; vide Bac. Ab. h. t.; Com. Dig. Justices,
§5; Merlin, Repert. mot Bigamie; Code, lib. 9, tit. 9, 1. 18; and lib. 5, tit.
5, 1. 2.
3. According to the canonists, bigamy is three-fold, viz.: (vera,
interpretative, et similitudinaria,) real, interpretative and similitudinary.
The first consisted in marrying two wives successively, (virgins they may be,)
or in once marrying a widow; the second consisted, not in a repeated marriage,
but in marrying (v. g. meretricem vel ab alio corruptam) a harlot; the third
arose from two marriages indeed, but the one metaphorical or spiritual, the
other carnal. This last was confined to persons initiated in sacred orders, or
under the vow Of continence. Deferriere's Tract, Juris Canon. tit. xxi. See also
Bac. Abr. h. t.; 6 Decret, 1. 12. Also Marriage.
BILAN. A book in which bankers, merchants and traders write a
statement of all they owe and all that is due to them. This term is used in the
French law, and in the state of Louisiana. 5 N. S; 158. A balance sheet. See 3
N. S. 446, 504.
BILATERAL CONTRACT, civil law. A contract in which both the
contracting parties are bound to fulfil obligations reciprocally towards each
other; Lec. Elem. §781; as a contract of sale, where one becomes bound to
deliver the, thing sold, and the other to pay the price of it. Vide Contract;
BILINGUIS, English law. One who uses two tongues or languages. Formerly
a jury, part Englishmen and part foreigners, to give a verdict between
an Englishman and a foreigner. Vide Medietas Linguae, Plowd. 2.
It is abolished in Pennsylvania. Act April 14, 1834, §149.