BODY. A person.
2. In practice, when the sheriff returns cepi corpus to a capias, the
plaintiff may obtain a rule, before special bail has been entered, to bring in
the body and this must be done either by committing the defendant or entering
special bail. See Dead Body.
BODY POLITIC, government, corporations. When applied to the government
this phrase signifies the state.
2. As to the persons who compose the body politic, they take collectively the
name, of people, or nation; and individually they are citizens, when considered
in relation to their political rights, and subjects as being submitted to the
laws of the state.
3. When it refers to corporations, the term body politic means that the
members of such corporations shall be considered as an artificial person.
BOILARY. A term used to denote the water which arises from a salt
well, belonging to one who has no right to the soil. Ejectment may be maintained
for it. 2 Hill, Ab. c. 14, §5; Co. Litt. 4 b.
BONA, goods and chattels. In the Roman law, it signifies every kind of
property, real, personal, and mixed, but chiefly it was applied to real estates;
chattels being chiefly distinguished by the words, effects, movables, &c.
Bona were, however, divided into bona mobilia, and bona immobilia. It is taken
in the civil law in nearly the sense of biens (q. v.) in the French law.
BONA FIDE. In or with good faith.
2. The law requires all persons in their transactions to act with good faith
and a contract where the parties have not acted bonafide is void at the pleasure
of the innocent party. 8 John. R. 446; 12 John. R. 320; 2 John. Ch. R. 35. If a
contract be made with good faith, subsequent fraudulent acts will not vitiate
it; although such acts may raise a presumption of antecedent fraud, and thus
become a means of proving the want of good faith in making the contract. 2
Miles' Rep. 229; and see also, Rob. Fraud. Conv. 33, 34; Inst. 2, 6 Dig. 41, 3,
10 and 44; Id. 41, 1, 48; Code, 7, 31; 9 Co. 11; Wingate's Maxims, max. 37;
Lane, 47; Plowd. 473; 9 Pick. R. 265; 12 Pick. R. 545; 8 Conn. R. 336; 10 Conn.
R. 30; 3 Watts, R. 25; 5 Wend. R. 20, 566. In the civil law these actions are
called (actiones) bonae fidei, in which the judge has a. more unrestrained power
(liberior potestas) of estamating how much one person ought to give to or do,
for another; whereas, those actions are said to be stricti juris, in which the
power of the judge is confined to the agreement of the parties. Examples of the
foraier are the actions empti-venditi, locati-conducti, negitiorum gestorum,
&c.; of the latter, the actions ex mutus, ex chirographo, ex stipilatu, ex
indebito, actions proescriptis verbis, &c.
BONA GESTURA. Good behaviour.
BONA MOBILIA. Movable goods, personal property.
BONA NOTABILIA Engl. ecclesiastical law. Notable goods. When a person
dies having at the time of his death, goods in any other diocese, beside's the
goods in the diocese where he dies, amounting to the value of five pounds in the
whole, he is said to have bona notabilia; in which case proof of his will, or
granting letters of administration, belongs to the archbishop of the province. 1
Roll. Ab. 908; Toll. Ex. 51 Williams on Ex. Index, h. t.
BONA PERITURA. Perishable goods.
2. An executor, administrator, or trustee, is bound to use due diligence in
disposing of perishable goods, such as fattened cattle, grain, fruit, or any
other article which may be worse for keeping. Bac. Ab. Executors, &c.;D; 11
Vin. Ab. 102; 1 Roll. Ab. 910; 5 Cro. Eliz.518; Godb.104; 3 Munf. R. 288; 1
Beat. R. 5,14; Dane's Ab. Index, h. t.
3. In Pennsylvania, when goods are attached, they may be sold by order of
court, when they are of a perishable nature. Vide Wesk. on Ins. 390; Serg. on
BONA VACANTIA. Goods to which no one claims a property, as,
shipwrecks, treasure trove, &c.; vacant goods.
BONA WAVIATA. Goods waived or thrown away by a thief, in his flight,
for fear of being apprehended.
BOND, contract. An obligation or bond is a deed whereby the obligor,
obliges himself, his heirs, executors and administrators, to pay a certain sum
of money to another at a day appointed. But see 2 Shepl. 185. If this be all,
the bond is called a single one, simplex obligatio; but there is generally a
condition added, that if the obligor pays a smaller sum, or does, or omits to do
some particular act, the obligation shall be void. 2 Bl. Com. 840. The word bond
ex vi termini imports a sealed instrument. 2 S. & R. 502; 1 Bald. R. 129; 2
Porter, R. 19; 1 Blackf. R. 241; Harp. R. 434; 6 Verm. R. 40. See Condition;
Interest of money; Penalty. It is proposed to consider: 1. The form of a bond,
namely, the words by which it may be made, and the ceremonies required. 2. The
condition. 3. The performance or discharge.
2.-I. 1. There must be parties to a bond, an obligor and obligee : for where
a bond was made with condition that the obligor should pay twenty pounds to such
person or persons; as E. H. should, by her last will and testament in writing,
name and appoint the same to be paid, and E. H. did not appoint any person to,
whom the same should be paid, it was held that the money was not payable to the
executors of E. H. Hob. 9. No particular form of words are essential to create
an obligation, but any words which declare the intention of the parties, and
denote that one is bound to the other, will be sufficient, provided the
ceremonies mentioned below have been observed. Shep. Touch. 367-8; Bac. Abr.
Obligations, B; Com. Dig. Obligations, B 1.
3. - 2. It must be in writing, on paper or parchment, and if it be made on
other materials it is void. Bac. Abr. Obligations, A.
4. - 3. It must be sealed, though it is not necessary that it should be
mentioned in the writing that it is sealed. As to what is a sufficient sealing,
see the above case, and the word Seal.
5. - 4. It must be delivered by the party whose bond it is, to the other.
Bac. Abr. Obligations, C. But the delivery and acceptance may be by attorney.
The date is not considered of the substance of a deed, and therefore a bond
which either has no date or an impossible one is still good, provided the real
day of its being dated or given, that is, delivered, can be proved. 2 Bl. Com.
304; Com. Dig. Fait, B 3; 3 Call, 309. See Date.
6. - II. The condition is either for the payment of money, or for the
performance of something else. In the latter case, if the condition be against
some rule of law merely, positively impossible at the time of making it,
uncertain or insensible, the condition alone is void, and the bond shall stand
single and unconditional; for it is the folly of the obligor to enter into such
an obligation, from which he can never be released. If it be to do a thing malum
in se, the obligation itself is void, the whole contract being unlawful. 2 Bl.
Com. 340; Bac. Abr. Conditions, K, L; Com. Dig. Conditions, D 1, D 2, D 3, D 7,
7. - III. 1. When, by the condition of an obligation, the act to be done to
the obligee is of its own nature transitory, as payment of money, delivery of
charters, or the like, and no time is limited, it ought to be performed in
convenient time. 6 Co. 31 Co. Lit. 208; Roll. Abr. 436.
8. - 2. A payment before the day is good; Co. Lit. 212, a; or before action
brought. 10 Mass. 419; 11 Mass. 217.
9.-3. If the condition be to do a thing within a certain time, it may be
performed the last da of the time appointed. Bac. Abr. Conditions, P 3.
10. - 4. If the condition be to do an act, without limiting any time, he who
has the benefit may do it at what time he pleases. Com. Dig. Conditions, G
11. - 5. When the place where the act to be performed is agreed upon, the
party who is to perform it, is not obliged to seek the opposite party elsewhere;
nor is he to whom it is to be performed bound to accept of the performance in
another place. Roll. 445, 446 Com. Dig. Conditions, G 9 Bac. Abr. Conditions, P
4. See Performance.
12. - 6. For what amounts to a breach of a condition in a bond see Bac. Abr.
Conditions, 0; Com. Dig. Conditions, M; and this Dict. tit. Breach.
BOND TENANT, Eng. law. Copyholders and customary tenants are sometimes
so called. Calth. on Copyh. 51, 54.
BONIS NON AMOVENDIS. The name of a writ addressed to the sheriff, when
a writ of error has been brought, commanding that the person against whom
judgment has been obtained, be not suffered to remove his goods till the error
be tried and determined. Reg. Orig. 131.
BONO ET MALO. The name of a special writ of jail delivery, which
formerly issued of course for each particular prisoner. 4 Bl. Com. 270.
BONUS, contrads. A premium paid to a grantor or vendor; as, e. g. the
bank paid a bonus to the state for its charter. A consideration given for what
BOOK. A general name given to every literary composition which is
printed; but appropriately to a printed composition bound in a volume.
2. The copyright, (q. v.) or exclusive right to print and publish a book, may
be secured to the author and his assigns for the term of twenty-eight years;
and, if the author be living, and a citizen of the United States, or resident
therein, the same right shall be continued to him for the further term of
fourteen years, by complying with the conditions of the act of Congress; one of
which is, that he shall, within three months after publication, deliver, or
cause to be delivered, a copy of the same to the clerk of the said district. Act
of February 3, 1831. 4 Sharsw. cont. of Story's L. U. S. 2223.
BOOK-LAND, English law. Land, also called charter-land, which was held
by deed under certain rents and fee services, and differed in nothing from free
socage land. 2 Bl. Com. 90. See 2 Spelman's English Works, 233, tit. Of Ancient
Deeds and Charters.
BOOKS, commerce, accounts. Merchants, traders, and other persons, who
are desirous of understanding their affairs, and of explaining them when
necessary, keep, 1. a day book; 2. a journal; 3. a ledger; 4. a letter book; 5.
an invoice book; 6. a cash book; 7. a bill book; 8. a bank book; and 9. a cheek
book. The reader is referred to these several articles. Commercial books are
kept by single or by double entry.
BOOTY, war. The capture of personal property by a public enemy on
land, in contradistinction to prize, which is a capture of such property by such
an enemy, on the sea.
2. After booty has been in complete possession of the enemy for twenty-four
hours, it becomes absolutely his, without any right of postliminy in favor of
the original owner, particularly when it has passed, bona fide, into the hands
of a neutral. 1 Kent, Com. 110.
3. The right to the booty, Pothier says, belongs to the sovereign but
sometimes the right of the sovereign, or the public, is transferred to the
soldiers, to encourage them. Tr. du Droit de Propriete, part 1, c. 2, art. 1,
§2; Burl. Nat. and Pol. Law, vol. ii. part 4, o. 7, n. 12.
BOROUGH. An incorporated town; so called in the charter. It is less
than a city. 1 Mann. & Gran. 1; 39 E. C. L. R. 323.
BOROUGH ENGLISH, English law. This, as the name imports, relates
exclusively to the English law.
2. It is a custom, in many ancient boroughs, by which the youngest son
succeeds to the burgage tenement on the death of the father. 2 Bl. Com. 83.
3. In some parts of France, there was a custom by which the youngest son was
entitled to an advantage over the other children in the estate of their father.
iller. Rep. mot Mainete.
BORROWER, contracts. He to whom a thing is lent at his request.
2. The contract of loan confers rights, and imposes duties on the borrower'
1. In general, he has the right to use the thing borrowed, during the time and
for the purpose intended between the parties; the right of using the thing
bailed, is strictly confined to the use, expressed or implied, in the particular
transaction, and by any excess, the borrower will make himself responsible.
Jones' Bailment, 58 6 Mass. R. 104; Cro. Jac. 244; 2 Ld. Raym. 909; Ayl. Pand.
B. 4, t. 16, p. 517; Domat, B. 1, t. 5, §2, n. 10, 11, 12; Dio. 13, 6, 18 Poth.
Pret a Usage, c. 2, §1, n. 22; 2 Bulst. 306; Ersk. Pr. Laws of ScotI. B. 3, t.
1, §9; 1 Const. Rep. So. Car. 121 Bracton, Lib. 3, c. 2, §l, p. 99. The loan is
considered strietly personal, unless, from other circumstances, a different
intention may be presumed. 1 Mod. Rep. 210; S. C. 3 Salk. 271.
3. - 2. The borrower is bound to take extraordinary care of the thing
borrowed; to use it according to the intention of the lender, to restore it in
proper time; to restore it in a proper condition. Of these, in their order.
4. - 1. The loan being gratuitous, the borrower is bound to extraordinary
diligence, and is responsible for slight neglect in relation to the thing
loaned. 2 Ld. Raym. 909, 916 Jones on Bailm. 65; 1 Dane's Abr. c. 17, art. 12;
Dig. 44, 73 1, 4; Poth. Pret. a Usage, c. 2, §2, art. 21, n. 48.
5. - 2. The use is to be according to the condition of the loan; if there is
an excess in the nature, time, manner, or quantity of the use, beyond what may
be inferred to be within the intention of the parties, the borrower will be
responsible, not only for any damages occasioned by the excess, but even for
losses by accidents, which could not be foreseen or guarded against. 2 Ld. Raym.
909; Jones on Bailm. 68, 69.
6. - 3. The borrower is bound to make a return of the thing loaned, at the
time, in the place, and in the manner contemplated by the contract.. Domat, Liv.
1, t. 5, §1, n. 11; Dig. 13, 6, 5, 17. If tho borrower does not return the thing
at the proper time, he is deemed to be in default, and is geneally responsible
for all injuries, even for accidents. Jones on Bailm. 70; Pothier, Pret a Usage
, ch. 2, §3, art. 2, n. 60; Civil Code Of Louis. art. 2870; Code Civil, art.
1881; Ersk. Inst. B. 3, t. 1, §22 Ersk. Pr. Laws of Scotl. B. 3, t. 1, §9.
7. - 4. As to the condition in which the thing is to be restored.
The borrower not being liable for any loss or deterioration of the
thing, unless caused by his own neglect of duty, it follows, that
it is sufficient if he returns it in the proper manner, and at the
proper time, however much it may be deteriorated from accidental
or other causes, not connected with any such neglect. Story on Bailm.
eh. 4, §268. See, generally, Story on Bailm. oh. 4; Poth. Pret A
Usage; 2 Kent, Com. 446-449; Vin. Abr. Bailment, B 6; Bac. Abr.
Bailment; Civil Code of Louis. art. 2869-2876; 1 Bouv. Inst. n.
1078-1090. Vide Lender.
BOSCAGE, Eng. law. That food which wood and trees yield
BOTE, contracts A recompense, satisfaction, amends, profit
or advantage : hence came the word man-bote, denoting a compensation
for a man slain; house-bote, cart-bote, plough-bote, signify that
a tenant is privileged to cut wood for these uses. 2 Bl. Com. 35;
Woodf. L. & T. 232.
BOTELESS, or bootless. Without recompense, reward or satisfaction
made unprofitable or without success.
BOTTOMRY, maritime law. A contract, in nature of a mortgage
of a ship, on which the owner borrows money to enable him to fit
out the ship, or to purchase a cargo, for a voyage proposed: and
he pledges the keel or bottom of the ship, pars pro toto, as a security
for the repayment; and it is stipulated that if the ship should
be lost in the course of the voyage, by any of the perils enumerated
in the contract, the lender also shall lose his money but if the
ship should arrive in safety, then he shall receive back his principal,
and also the interest agreed upon, which is generally called marine
interest, however this may exceed the legal rate of interest. Not
only the ship and tackle, if they arrive safe, but also the person
of the borrower, is liable for the money lent and the marine interest.
See 2 Bl. Com. 458; Marsh. Ins. B. 21 c. 1; Ord. Louis XIV. B. 3,
tit. 5; Laws of Wishuy, art. 45 Code de Com. B. 2, tit. 9.
2. The contract of bottomry should specify the principal lent,
and the rate of marine interest agreed upon; the subject on which
the loan is effected the names of the vessel and of the master those
of the lender and borrower whether the loan be for an entire voyage;
for what voyage and for what space of time; and the period of re-payment.
Code de Com. art. 311 Marsh. Ins. B. 2.
3. Bottomry differs materially from a simple loan. In a loan, the
money is at the risk of the borrower, and must be paid at all events.
But in bottomry, the money is at the risk of the lender during the
voyage. Upon a loan, only legal interest can be received; but upon
bottomry, any interest may be legally reserved which the parties
agree upon. See, generally, Metc. & Perk. Dig. h. t.; Marsh.
lnst. B. 2; Bac. Abr. Merchant, K; Com. Dig. Merchant. E 4; 3 Mass.
443; 8 Mass. 340; 4 Binn. 244; 4 Cranch, 328; 3 John. R. 352 2 Johns.
Cas. 250; 1 Binn. 405; 8 Cranch, 41 8; 1 Wheat. 96; 2 Dall. 194.
See also this Dict. tit. Respondentia; Vin. Abr. Bottomry Bonds
1 Bouv. Inst. n. 1246-57.
BOUGHT NOTE, contracts. An instrument in writing, given
by a broker to the seller of merchandise, in which it is stated
that the goods therein mentioned have been sold for him. There appears,
however, some confusion in the books, on the subject of these notes
sometimes they are called sold notes. 2 B. & Ald. 144 Blackb.
on Sales, 89.
2. This note is signed in the broker's name, as agent of the buyer
and seller; and, if he has not exceeded his authority, the parties
are thereby respectively bound. 1 Bell's Com. (5th ed.) 435; Holt's
C. 170; Story on Agency, §28; 9 B. & Cr. 78; 17 E. C. L. R.
335; 5 B. & Ad. 521; 1 N. R. 252; 1 Moo. & R. 368; Moo.
& M. 43; 22 E. C. L. R. 243; 2 M. & W. 440; Moo. & M.
43; 6 A. & E. 486; 33 E. C. L. R. 122; 16 East, 62 Gow, R. 74;
1 Camp. R. 385; 4 Taunt. 209; 7 Ves. 265. Vide Sold Note.
BOUND BAILIFFS. Sheriff's officers, who serve writs and
make arrests; they are so called because they are bound to the sheriff
for the due execution of their office. 1 Bl. Com. 345.
BOUNDARY, estates. By this term is understood in general,
every separation, natural or artificial, which marks the confines
or line of division of two contiguous estates. 3 Toull. n. 171.
2. Boundary also signifies stones or other materials inserted in
the earth on the confines of two estates.
3. Boundaries are either natural or artificial. A river or other
stream is a natural boundary, and in that case the centre of the
stream is the line. 20 John. R. 91; 12 John. R. 252; 1 Rand. R.
417; 1 Halst. R. 1; 2 N. H. Rep. 369; 6 Cowen, R. 579; 4 Pick. 268;
3 Randolph's R. 33 4 Mason's R. 349-397.
4. An artificial boundary is one made by man.
5. The description of land, in a deed, by specific boundaries,
is conclusive as to the quantity; and if the quantity be expressed
as a part of the description, it will be inoperative, and it is
immaterial whether the quantity contained within the specific boundaries,
be greater or less than that expressed; 5 Mass. 357; 1 Caines' R.
493; 2 John. R. 27; 15 John. 471; 17 John. R. 146; Id. 29; 6 Cranch,
237; 4 Hen. & Munf. 125; 2 Bay, R. 515; and the same rule is
applicable, although neither the courses and distances, nor the
estimated contents, correspond with such specific boundaries; 6
Mass. 131; 11 Mass. 193; 2 Mass. 380; 5 Mass. 497; but these rules
do not apply in cases where adherence to them would be plainly absurd.
17 Mass. 207. Vide 17 S. & R. 104; 2 Mer. R. 507; 1 Swanst.
9; 4 Ves. 180; 1 Stark. Ev. 169; 1 Phil. Ev. Index, h. t.; Chit.
Pr. Index, h. t.; 1 Supp. to Ves. jr. 276; 2 Hill. Ab. c. 24, §209,
and Index, h. t.
6. When a boundary, fixed and by mutual consent, has been permitted
to stand for twenty-one years, it cannot afterwards be disturbed.
In accordance with this rule, it has been decided, that where town
lots have been occupied up to a line fence between them, for more
than twenty-one years, each party gained an incontrovertible right
to the line thus established, and this whether either party knew
of the adverse claim or not; and whether either party has more or
less ground than was originally in the lot he owns. 9 Watts, R.
565. See Hov. Fr. c. 8, p. 239 to 243; 3 Sum. R 170 Poth. Contr.
de Societe, prem. app. n. 231.
7. Boundaries are frequently marked by partition fences, ditches,
hedges, trees, &c. When such a fence is built by one of the
owners of the land, on his own premises, it belongs to him exclusively;
when built by both at joint expense, each is the owner of that part
on his own land. 5 Taunt. 20. When the boundary is a hedge and a
single ditch, it is presumed to belong to him on whose side the
hedge is, because he who dug the ditch is presumed to have thrown
the earth upon his own land, which was alone lawful to do, and that
the hedge was planted, as is usual, on the top of the bank thus
raised. 3 Taunt. 138. But if there is a ditch on each side of the
hedge, or no ditch at all, the hedge is presumed to be the common
property of both proprietors. Arch. N. P. 328; 2 Greenl. Ev. §617.
A tree growing in the boundary line is the joint property of both
owners of the land. 12 N. H. Rep. 454.
8. Disputes arising from a confusion of boundaries may be generally
settled by an action at law. But courts of equity will entertain
a bill for the settlement of boundaries, when the rights of one
of the parties may be established upon equitable grounds. 4 Bouv.
Inst. n. 3923.
BOUNTY. A sum of money or other thing, given, generally
by' the government, to certain persons, for some service they have
done or are about to do to the public. As bounty upon the culture
of silk; the bounty given to an enlisted soldier; and the like.
It cliffers from a reward, which is generally applied to particular
cases; and from a payment, as there is no contract on the part of
the receiver of the bounty.
BOVATA TERRAE. As much land as one ox can plough.
BRANCH. This is a metaphorical expression, which designates,
in the genealogy of a numerous family, a portion of that family
which has sprang from the same root or stock; these latter expressions,
like the first, are also metaphorical.
2. The whole of a genealogy is often called the genealogical tree;
and sometimes it is made to take the form of a tree, which is in
the first place divided into as many branches as there are children,
afterwards into as many branches as there are grand-children, then
of great grandchildren, &c. If, for example, it be desired to
have a genealogical tree of Peter's family, Peter will be made the
trunk of the tree; if he has had two children, John and James, their
names will be written on the first two branches; which will themelves
shoot out as many smaller branches as John and James have children;
from these other's proceed, till the whole family is represented
on the tree; thus the origin, the application, and the use of the
word branch in genealogy will be at once perceived.
BRANCHES. Those solid parts of trees which grow above the
2. In general the owner of a tree is the owner of the branches;
but when they grow beyond his line, and extend over the adjoining
estate, the proprietor of the latter may cut them off as far as
they grow over his land. Rolle's R. 394.; 3 Bulst. 198. But as this
nuisance is one of omission, and, as in the case of such nuisances,
it is requisite to give notice before abating them, it would be
more prudent, and perhaps necessary, to give notice to the owner
of the tree to remove such nuisance. 1 Chit. Pr. 649, 650, 652.
See Root; Tree.
TO BRAND. An ancient mode of punishment, which was to inflict
a mark on an offender with a hot iron. This barbarous punishment
has been generally disused.