BRANDY. A spirituous liquor made of wine by distillation.
See stat. 22 Car. H. c. 4.
BREACH, contract, torts. The violation of an obligation, engagement or
duty; as a breach of covenant is the non-performance or violation of a covenant;
the breach of a promise is non-performance of a promise; the breach of a duty,
is the refusal or neglect to execute an office or public trust, according to
2. Breaches of a contract are single or continuing breaches. The former are
those which are committed at one single time. Skin. 367; Carth. 289. A
continuing breach is one committed at different times, as, if a covenant to
repair be broken at one time, and the same covenant be again broken, it is a
continuing breach. Moore, 242; 1 Leon. 62; 1 Salk. 141; Holt, 178; Lord Raym.
1125. When a covenant running with the land is assigned after a single breach,
the right of action for such breach does not pass to the assignee but if it be
assigned after the commencement of a continuing breach, the right of action then
vests in such assignee. Cro. Eliz. 863; 8 Taunt. 227;, 2 Moore, 164; 1 Leon.
3. In general the remedy for breaches of contracts, or quasi contracts, is by
a civil action.
BREACH OF THE PEACE. A violation of public order; the offence of
disturbing the public peace. One guilty of this offence may be held to bail for
his good behaviour. An act of public indecorum is also a breach of the peace.
The remedy for this offence is by indictment. Vide Pace,
BREACH OF PRISON. An unlawful escape out of prison. This is of itself
a misdemeanor. 1 Russ. Cr. 378; 4 Bl. Com. 129 2 Hawk. P. C. c. 18, s. 1 7 Conn.
752. The remedy for this offence is by indictment. See Escape.
BREACH OF TRUST. The wilful misappropriation, by a trustee, of a thing
which had been lawfully delivered to him in confidence.
2. The distinction between larceny and a breach of trust is to be found
chiefly in the terms or way in which the thing was taken originally into the
party's possession; and the rule seems to be, that whenever the article is
obtained upon a fair contract, not for a mere temporary purpose, or by one who
is in the. employment of the deliverer, then the subsequent misappropriation is
to be considered as an act of breach of trust. This rule is, however, subject to
many nice distinctions. 15 S. & R. 93, 97. It has been adjudged that when
the owner of goods parts with the possession for a particular purpose, and the
person who receives them avowedly for that purpose, has at the time a fraudulent
intention to make use of the possession as the weans of converting the goods to
his own use, and does so convert them, it is larceny; but if the owner partwith
the property, although fraudulent means have been used to obtain it, the, act of
conversion is not larceny. Id. Alis. Princ. c. 12, p. 354.
3. In the Year Book, 21 H. VII. 14, the distinction is thus stated: Pigot. If
I deliver a jewel or money to my servant to keep, and he flees or goes from me
with the jewel, is it felony ? Cutler said, Yes : for so long as he is with me
or in my house, that which I have delivered to him is adjudged to be in my
possession; as my butler, who has my plate in keeping, if he flees with it, it
is felony. Same law; if he who keeps my horse goes away with, him: The reason
is, they are always in my possession. But if I deliver a horse to my servant to
ride to market or the fair and he flee with him, it is no felony; for e comes
lawfully to the possession of the horse by delivery. And so it is, if I give him
a jewel to carry to London, or to pay one, or to buy a thing, and he flee with
it, it is not felony : for it is out of my possession, and he comes lawfully to
it. Pigot. It can well be: for the master in these cases has an action against
him, viz., Detinue, or Account. See this point fully discussed in Stamf. P. C.
lib. 1; Larceny, c. 15, p. 25. Also, 13 Ed. IV. fo. 9; 52 H. III. 7; 21 H. VII.
BREACH. pleading. That part of the declaration in which the violation
of the defendant's contract is stated.
2. It is usual in assumpsit to introduce the statement of the particular
breach, with the allegation that the defendant, contriving and fraudulently
intending craftily and subtilely to deceive and defraud the plaintiff, neglected
and refused to perform, or performed the particular act contrary to the previous
3. In debt, the breach or cause of action. complained of must proceed only
for the non-payment of money previously alleged to be payable; and such breach
is nearly similar, whether the action be in debt on simple contract, specially,
record or statute, and is usually of the following form: " Yet the said
defendant, although often requested so to, do, hath not as yet paid the said sum
of ____ dollars, above demanded, nor any part thereof, to the said plaintiff,
but bath hitherto wholly neglected and refused so to do, to the damage of the
said plaintiff _________ dollars, and therefore he brings suit," &c.
4. The breach must obviously be governed by the nature of the stipulation; it
ought to be assigned in the words of the contract, either negatively or
affirmatively, or in words which are co-extensive with its import and effect.
Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127; and see 5
John. R. 168; 8 John. R. 111; 7 John. R. 376; 4 Dall. 436; 2 Hen. & Munf.
5. When the contract is in the disjunctive, as, on a promise to deliver a
horse by a particular day, or pay a sum of money, the breach ought to be
assigned that the defendant did not do the one act nor the other. 1 Sid. 440;
Hardr. 320; Com. Dig. Pleader, C.
BREAKING. Parting or dividing by force and violence a solid substance,
or piercing, penetrating, or bursting through the same.
2. In cases of burglary and house-breaking, the removal, of any part of the
house, or of the fastenings provided to secure it, with violence and a felonious
intent, is called a breaking.
3. The breaking is actual, as in the above case; or constructive, as when the
burglar or house-breaker gains an entry by fraud, conspiracy or threats. 2 Russ.
on Cr. 2; 2 Chit. Cr. Law, 1092; 1 Hale, P. C. 553; Alis. Prin. 282, 291. In
England it has been decided that if the sash of a window be partly open, but not
sufficiently so to admit a person, the raising of it so as to admit a person is
not a breaking of the house. 1 Moody, Cr. Cas. 178. No reasons are assigned. It
is difficult to conceive, if this case be law, what further opening will amount
to a breaking. But see 1 Moody, Cr. Cas. 327, 377; and Burglary.
BREAKING DOORS. The act of forcibly removing the fastenings of a
house, so that a person may enter.
2. It is a maxim that every man's house is his castle, and it is protected
from every unlawful invasion. An officer having a lawful process, of a criminal
nature, authorizing him to do so, may break an outer door, if upon making a
demand of admittance it is refused. The house may also be broken open for the
purpose of executing a writ of habere facias possessionem. 5 Co. 93; Bac. Ab.
Sheriff, N 3.
3. The house protects the owner from the service of all civil process in the
first instance, but not, if once lawfully arrested, he takes refuge in his own
house; in that case the officer may pursue him, and break open any door for the
Purpose. Foster, 320; 1 Rolle's R. 138 Cro. Jac. 555. Vide Door; House.
BREATH, med. juris. The air expelled from the chest at each
2. Breathing, though a usual sign of life, is not conclusive that a child was
wholly born alive, as breathing may take place before the whole delivery of the
mother is complete. 5 Carr. & Payn, 329; S. C. 24 E. C. L. R. 344. Vide
Birth; Life; Infanticide.
BREPHOTROPHI, civil law. Persons appointed to take care of houses
destined to receive foundlings. Clef des Lois Rom. mot Administrateurs.
BREVE, practice. A writ in which the cause of action is briefly
stated, hence its name. Fleta, lib. 2, c. 13, §25; Co. Lit. 73 b.
2. Writs are distributed into several classes. Some are called brevia
formata, others brevia de cursu, brevia judicialia, or brevia magistralia. There
is a further distinction with respect to real actions into brevia nominata and
innominata. The former, says Bacon, contain the time, place and demand very
particularly; and therefore by such writ several lands by several titles cannot
be demanded by the same writ. The latter contain only a general complaint,
without expressing time, damages, &c., as in trespass quare clausum fregit,
&o., and therefore several lands coming to the demandant by several titles
may be demanded in such writ. F. N. B. 209; 8 Co. 87; Kielw. 105; Dy. 145; 2
Brownl. 274; Bac. Ab. Actions in General, C. See Innominate contracts.
BREVE DE RECTO. A writ of right. (q. v.)
BREVE TESTATUM, feudal law. A declaration by a superior lord to his
vassal, made in the presence of the pares curias, by which he gave his consent
to the grant of land, was so called. Ersk. Inst. B. 2, tit. 3, s. 17. This was
made in writing, and had the operation of a deed. Dalr. Feud. Pr. 239.
BREVET. In France, a brevet is a warrant granted by the government to
authorize an individual to do something for his own benefit, as a brevet
d'invention, is a patent to secure a man a right as inventor.
2. In our army, it signifies a commission conferring on an officer a degree
of rank immediately above the one which he holds in his particular regiment,
without, however conveying a right to receive a corresponding pay.
BREVIA, writs. They were called brevia, because of the brevity in
which the cause of action was stated in them.
BREVIA ANTICIPANTIA. This name is given to a number of writs, which
are also called writs of prevention. See Quia Ti. met.
BREVIA FORMATA, Eng law. The collection of writs found in the
Registrum Brevium was so called. The author of Fleta says, these writs were
formed upon their cases. They were different from the writs de cursu, which were
approved by the council of the whole realm, and could not be changed without the
will of the same. Fleta, lib. 2, c. 13, §2. See 17 S. & R. 194-5, and
authorities there cited.
BREVIA JUDICIALIA. Subsidiary process issued pending a suit, or
process issued in execution of the judgment. They varied, says the author of
Fleta, according to the variety of the pleadings of the parties and of their
responses. Lib. 2. c. 13, §3; Co. Lit. 73 b, 54 b. Many of them, however, long
since became fixed in their forms, beyond the power of the courts to alter them,
unless authorized to do so by the legislature. See 1 Rawle, Rep. 52; Act of
Pennsylvania, June. 16, 1836, §§3, 4, 5.
BREVIA MAGISTRALIA. These were writs formed by the masters in
chancery, pursuant to the stat. West. 2, c. 24. They vary according to the
diversity of cases and complaints, of which, says the author of Fleta, some are
personal, some real, some mixed, according as actions are diverse or various,
because so many will be the forms of writs as there are kinds of actions. Fleta,
lib. 2, c. 13, §4; Co. Lit. 73 b, 54 b.
BREVIARIUM. The name of a code of laws of Alaric II., king of the
BREVIBUS ET ROTULIS LIBERANDIS, Eng. law. A writ or mandate directed
to a sheriff, commanding him to deliver to his successor the county and the
appurtenances, with all the briefs, rolls, remembrances, and all other things
belonging to his office.
BRIBE, crim. law. The gift or promise, which is accepted, of some
advantage, as the inducement for some illegal act or omission; or of some
illegal emolument, as a consideration, for preferring one person to another, in
the performance of a legal act.
BRIBERY, crim. law. The receiving or offering any undue reward by or
to any person whomsoever, whose ordinary profession or business relates to the
administration of public justice, in order to influence his behaviour in office,
and to incline him to act contrary to his duty and the known rules of honesty
and integrity. 3 Inst. 149; 1 Hawk. P. C. 67, s. 2 4 Bl. Com. 139; 1 Russ. Cr.
2. The term bribery extends now further, and includes the offence of giving a
bribe to many other officers. The offence of the giver and of the receiver of
the bribe has the same name. For the sake of distinction, that of the former,
viz : the briber, might be properly denominated active. bribery; while that of
the latter, viz : the person bribed, might be called passive bribery.
3. Bribery at elections for members of parliament, has always been a crime at
common law, and punishable by indictment or information. It still remains so in
England notwithstanding the stat. 24 Geo. H. c. 14 3 Burr. 1340, 1589. To
constitute the offence, it is not necessary that the person bribed should, in
fact, vote as solicited to do 3 Burr. 1236; or even that he should have a right
to vote at all both are entirely immaterial. 3 Bur. 1590-1.
4. An attempt to bribe, though unsuccessful, has been holden to be criminal,
and the offender may be indicted. 2 Dall. 384; 4 Burr. 2500 3 Inst. 147; 2
Campb. R. 229; 2 Wash. 88; 1 Virg. Cas. 138; 2 Virg. Cas. 460.
BRIBOUR. One that pilfers other men's goods; a thief. See 28 E. II.,
BRIDGE. A building constructed over a river, creek, or other stream,
or ditch or other place, in order to facilitate the passage over the same. 3
2. Bridges are of several kinds, public and private. Public bridges may be
divided into, 1st. Those which belong to the public; as state, county, or
township bridges, over which all the people have a right to pass, with or
without paying toll these are built by public authority at the public expense,
either of the state itself, or a district or part of the state.
3. - 2d. Those which have been built by companies, or at the expense of
private individuals, and over Which all the people have a right to pass, on the
payment of a toll fixed by law. 3d. Those which have been built by private
individuals and which have been dedicated to public uscs. 2 East, R. 356; 5
Burr. R. 2594; 2 Bl. R. 685 1 Camp. R. 262, n.; 2 M. & S. 262.
4. A private bridge is one erected for the use of one or more private
persons; such a bridge will not be considered a public bridge, although it may
be occasionally used by the public. 12 East, R. 203-4. Vide 7 Pick. R. 844; 11
Pet. R. 539; 7 N. H. Rcp. 59; 1 Pick. R. 432; 4 John. Ch. R. 150.
BRIEF, eccl. law. The name of a kind of papal rescript. Briefs are
writings sealed with wax, and differ in this respect from bulls, (q. v.) which
are scaled with lead. They are so called, because they usually are short
compendious writings. Ayl. Parerg. 132. See Breve.
BRIEF, practice. An abridged statement of a party's case.
2. It should contain : 1st. A statement of the names of the parties, and of
their residence and occupation, the character in which they sue and are sued,
and wherefore they prosecute or resist the action. 2d. An abridgment of all the
pleadings. 3d. A regular, chronological, and methodical statement of the facts
in plain common language. 4th. A summary of the points or questions in issue,
and of the proof which is to support such issues, mentioning specially the names
of the witnesses by which the facts are to be proved, or if there be written
evidence, an abstract of such evidence. 5th. The personal character of the
witnesses should be mentioned; whether the moral character is good or bad,
whether they are naturally timid or over-zealous, whether firm or wavering. 6th.
If known, the evidence of the opposite party, and such facts as are adapted to
oppose, confute, or repel it. Perspicuity and conciseness are the most desirable
qualities of a brief, but when the facts are material they cannot be too
numerous when the argument is pertinent and weighty, it cannot be too
3. Brief is also used in the sense of breve. (q. v.)
BRIEF OP TITLE, practice, conveyancing. An abridgment of all the
patents, deeds, indentures, agreements, records, and papers relating to certain
2. In making a brief of title, the practitioner should be careful to place
every deed and other paper in chronological order. The date of each deed; the
names of the parties; the consideration; the description of the property; should
be particularly, noticed, and all covenants should also be particularly
3. A vendor of an interest in realty ought to have his title investigated,
abstracted, and evidence in proof of it ready to be produced and established
before he sells; for if he sell with a confused title, or without being ready to
produce deeds and vouchers, he must be at the expense of clearing it. 1 Chit.
Pr. 304, 463.
BRINGING MONEY INTO COURT. The act of depositing money in the hands of
the proper officer of the court, for the purpose of satisfying a debt or duty,
or of an interpleader.
2. Whenever a tender of money is pleaded, and the debt is not discharged by
the tender and refusal, money may be brought into court, without asking leave of
the court; indeed, in such cases the money must be brought into court inorder to
have the benefit of the tender. In other cases, leave must be had, before the
money can be brought into court.
3. In general, if the money brought into court is sufficient to satisfy the
plaintiff 's claim, he shall not recover costs. See Bac. Ab. Tender, &c.
BROCAGE, contracts. The wages or commissions of a broker his
occupation is also sometimes called brocage. This word is also spelled
BROKERAGE, contracts. The trade or occupation of a broker; the
commissions paid to a broker for his services.
BROKERS, commerce. Those who are engaged for others, in the
negotiation of contracts, relative to property, with the custody of which they
have no concern. Paley on Agency, 13; see Com. Dig. Merchant, C.
2. A broker is, for some purposes, treated as the agent of both parties; but
in the first place, he is deemed the agent only of the person by whom he is
originally employed; and does not become the agent of the other until the
bargain or contract has been definitely settled, as to the terms, between the
principals. Paley on Ag. by Lloyd, 171, note p; 1 Y. &, J. 387.
3. There are several kinds of brokers, as, Exchange Brokers, such as
negotiate in all matters of exchange with foreign countries.
4. Ship Brokers. Those who transact business between the owners of vessels,
and the merchants who send cargoes.
5. Insurance Brokers. Those who manage the concerns both of the insurer and
6. Pawn Brokers. Those who lend money, upon goods, to necessitous people, at
7. Stock Brokers. Those employed to buy and sell shares of stocks in
corporations and companies. Vide Story on Ag. §28 to 32; T. L. h. t.; Maly. Lex
Mer. 143; 2 H. Bl. 555; 4 Burr, R. 2103; 4 Kent, Com. 622, note d, 3d ed.; Liv.
on Ag. Index, h. t.; Chit. Com. L. Index, h. t.; and articles Agency; dgent;
Bought note; Factor; Sold note.
BROTHELS, crim. law. Bawdy-houses, the common habitations of
prostitutes; such places have always been deemed common nuisances in the United
States, and the keepers of them may be fined and imprisoned.
2. Till the time of Henry VIII, they were licensed in England, when that
lascivious prince suppressed them. Vide 2 Inst. 205, 6; for the history of these
pernicious places, see Merl. Rep. mot Bordel Parent Duchatellet, De la
Prostitution dans la ville de Paris, c. 5, §1; Histoire de la Legislation sur
les femmes publiques, & c., par M. Sabatier.
BROTHER, domest. relat. He who is born from the same father and mother
with another, or from one of them only.
2. Brothers are of the whole blood, when they are born of the same father and
mother, and of the half blood, when they are the issue of one of them only.
3. In the civil law, when they are the children of the same father and
mother, they are called brothers germain; when they descend from the same
father, but not the same mother, they are consanguine brothers; when they are
the issue of the same mother, but not the same father, they are uterine
brothers. A half brother, is one who is born of the same father or mother, but
not of both. One born of the same parents before they were married, a left-sided
brother; and a bastard born of the same father or mother, is called a natural
brother. Vide Blood; Half-blood; Line; and Merl. Repert. mot Frere; Dict. de
Jurisp. mot Frere; Code, 3, 28, 27 Nov. 84, praef; Dane's Ab. Index, h. t.
BROTHER-IN-LAW, domestic relat. The brother of a wife, or the hushand
of a sister. There is no relationship, in the former case, between the hushand
and the brother-in-law, nor in the latter, between the brother and the hushand
of the sister; there is only affinity between them. See Vaughan's Rep. 302,
BRUISE, med. jurisp. An injury done with violence to the person,
without breaking the skin; it is nearly synonymous with contusion. (q . v.) 1.
Ch. Pr. 38; vide 4 Car. & P. 381, 487, 558, 565; Eng. C. L. Rep. 430, 526,
529. Vide Wound.
BUBBLE ACT, Eng. law. The name given to the statute 6 Geo. I., c. 18,
which was passed in 1719, and was intended " for restraining several extravagant
and unwarrantable practices therein mentioned." See 2 P. Wms. 219.
BUGGERY, crim. law. The detestable crime of having commerce contrary
to the order of nature, by mankind with mankind, or with brute beasts, or by
womankind with brute beasts. 3 Inst. 58; 12 Co. 36; Dane's Ab. Index, h. t.;
Merl. Repert. mot Bestialie. This is a highly penal offence.
BUILDING, estates. An edifice erected by art, and fixed upon or over
the soil, composed of stone, brick, marble, wood, or other proper substance,
'Connected together, and designed for use in the position in which it is so
fixed. Every building is an accessory to the soil, and is, therefore, real
estate: it belongs to the owner of the soil. Cruise, tit. 1, S. 46. Vide 1 Chit.
Pr. 148, 171; Salk. 459; Hob. 131; 1 Mete. 258; Broom's Max. 172.
BULK, contracts. Said to be merchandise which is neither counted)
weighed, nor measured.
2. A sale by bulk, is a sale of a quantity of goods,, such as they are,
without measuring, counting, or weighing. Civ. Code of Louis. a. 3522, n. 6.
BULL, eccles. law. A letter from the pope of Rome, written on
parchment, to which is attached a leaden seal, impressed with the images of
Saint Peter and Saint Paul.
2. There are three kinds of apostolical rescripts, the brief, the signature,
and the bull, which last is most commonly used in legal matters. Bulls may be
compared to the edicts and letters-patent of secular princes: when the bull
grants a favor, the seal is attached by means of silken strings; and when to
direct execution to be performed, with flax cords. Bulls are written in Latin,
in a round and Gothic hand. Ayl. Par. 132; Ayl. Pand. 21; Mer. Rep. h. t.
BULLETIN. An official account of public transactions on matters of
importance. In France, it is the registry of the laws.
BULLION. In its usual acceptation, is uncoined gold or silver, in
bars, plates, or other masses. 1 East, P. C. 188.
2. In the acts of Congress, the term is also applied to copper properly
manufactured for the purpose of being coined into money. For the acts of
Congress, authorizing the coinage of bullion for private individuals, see Act of
April 2, 1792, s. 14, 1 Story, 230; Act of May 19, 1828, 4 Sharsw. cont. of
Story's Laws U. S. 2120; Act of June 28, 1834, Id. 2376; Act of January 18,
1837, Id. 2522 to 2529. See, for the English law on the subject of crimes
against bullion, 1 Hawk. P. C. 32 to 41.
BUOY. A piece of wood, or an empty barrel, floating on the water, to
show the place where it is shallow, to indicate the danger there is to
navigation. The act of Congress, approved the 28th September, 1850, enacts, "
that all buoys along the coast, in bays, harbors, sounds, or channels, shall be
colored and numbered, so that passing up the coast or sound, or entering the
bay, harbor or channel, red buoys with even numbers, shall be passed on the
starboard hand, black buoys, with uneven numbers, on the port hand, and buoys
with red and black stripes on either hand. Buoys in channel ways to be colored
with alternate white and black perpendicular stripes."
BURDEN OF PROOF. This phrase is employed to signify the duty of
proving the facts in dispute on an issue raised between the parties in a
2. The burden of proof always lies on the party who takes the affirmative in
pleading. 1 Mass. 71, 335; 4 Mass. 593; 9 Pick. 39.
3. In criminal cases, as every man is presumed to be innocent until the
contrary is proved, the burden of proof rests on the prosecutor, unless a
different provision is expressly made by statute. 12 Wheat. See Onus
BUREAU. A French word, which literally means a large writing table. It
is used figuratively for the place where business is transacted: it has been
borrowed by us, and used in nearly the same sense; as, the bureau of the
secretary of state. Vide Merl. Repert. h. t.
BUREAUCRACY. The abuse of official influence in the affairs of
government; corruption. This word has lately been adopted to signify that those
persons who are employed in bureaus abuse their authority by intrigue to promote
their own benefit, or that of friends, rather than the public good. The word is
derived from the French.
BURGAGE, English law. A species of tenure in socage; it is where the
king or other person is lord of an ancient borough, in which the tenements are
held by a rent certain. 2 B1. Com. 82.
BURGESS. A magistrate of a borough; generally, the chief officer of
the corporation, who performs, within the borough, the same kind of duties which
a mayor does in a city. In England, the word is sometimes applied to all the
inhabitants of a borough, who are called burgesses sometimes it signifies the
representatives of a borough in parliament.
BURGH. A borough; (q. v.) a castle or town.
BURGLA. One who commits a burglary. (q. v.)
BURGLARIOUSL, pleadings. This is a technical word, which must be
introduced into an indictment for burglary; no other word will answer the same
purpose, nor will any circumlocution be sufficient. 4 Co. 39; 5 Co. 121; Cro.
Eliz. 920; Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Chit. Cr. Law,
BURGLARY, crim. law. The breaking and entering the house of another in
the night time, with. intent to commit a felony therein, whether the felony be
actually committed or not. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s. 1; 4 Bl.
Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2; Roscoe, Cr. Ev.
252; Coxe, R. 441; 7 Mass. Rep. 247.
2. The circumstances to be considered are, 1. in what place the offence can
be committed; 2. at what time 3. by what means; 4. with what intention.
3.- 1. In what place a burglary can be committed. It must, in general, be
committed in a mansion house, actually occupied as a dwelling; but if it be left
by the owner animo revertendi, though no person resides in it in his absence, it
is still his mansion. Fost. 77; 3 Rawle, 207. The principal question, at the
present day, is what is to be deemed a dwelling-house. 1 Leach, 185; 2 Leach,
771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558; Hawk. c. 38, s. 18; 1 Russ.
on Cr. 16; 3 Berg. & Rawle, 199 4 John. R. 424 1 Nott & M'Cord, 583; 1
Hayw. 102, 242; Com. Dig. Justices, P 5; 2 East, P. C. 504.
4. - 2. At what time it must be committed. The offence must be committed in
the night, for in the day time there can be no burglary. 4 Bl. Com. 224. For
this purpose, it is deemed night when by the light of the sun a person cannot
clearly discern the face or countenance of another 1 Hale, 550; 3 nst. 63. This
rule, it is evident, does not apply to moonlight. 4 Bl. Com. 224; 2 Russ. on Cr.
32. The breaking and entering need not be done the same night 1 Russ. & Ry.
417; but it is necessary the breaking and entering should be in the night time,
for if the breaking be in daylight and the entry in the night, or vice versa, it
will not be burglary. 1 Hale, 551; 2 Russ. on Cr. 32. Vide Com. Dig. Justices, P
2; 2 Chit. Cr. Law, 1092.
5.-3. The means used. There must be both a breaking and an entry. First, of
the breaking, which may be actual or constructive. An actual breaking tal-,es
place when the burglar breaks or removes ally part of, the house, or the
fastenings provided for it, with violence. Breaking a window, taking a pane of
glass out, by breaking or bending the nails, or other fastenings, raising a
latch where the door is not otherwise fastened; picking open a lock with a false
key; putting back the lock of a door or the fastening of a window, with an
instrument; turning the key when the door is locked in the inside, or
unloosening any other fastening which the owner has provided, are several
instances of actual breaking. According to the Scotch law, entering a house by
means of the true key, while in the door, or when it had been stolen, is a
breaking. Alis. Pr. Cr. Law, 284. Constructive breakings occur when the burglar
gams an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 22 Chit. Cr. Law,
1093. The breaking of an inner door of the house will be sufficient to
constitute a burglary. 1 Hale, 553. Any, the least, entry, with the whole or any
part of the body , hand, or foot, or with any instrument or weapon, introduced
for the purpose of committing a felony, will be sufficient to constitute the
offence. 3 Inst. 64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com. Dig. Justices, P
4. But the introduction of an instrument, in the act of breaking the house, will
not be a sufficient entry, unless it be introduced for the purpose of committing
6. - 4. The intention. The intent of the breaking and entry must be
felonious; if a felony however be committed, the act will be prima facie
evidence of an intent to commit it. If the breaking and entry be with an
intention to commit a bare trespass, and nothing further is done, the offence
will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2 Russ. on Cr.
BURGOMASTER. In Germany this is, the title by which an officer who
performs the duties of a mayor is, called.
BURIAL. The act of interring the dead.
2. No burial is lawful unless made in conformity with the local regulations;
an when a dead body has been found, it cannot be lawfully buried until the
coroner has holden an inquest over it. In England. it is the practice for
coroners to issue warrants to bury, after a view. 2 Umf. Lex. Coron. 497,
BURNING. Vide Accident; Arson; Fire, accidental.
BURYING-GROUND. A place appropriated for depositing the dead; a
cemetery. In Massachusetts, burying-grounds cannot, be appropriated to roads
without the consent of the owners. Massachusetts Revised St. 239.
BUSHEL, measure. The Winchester bushel, established by the 13 W. III.
c. 5, A. D. 1701, was made the standard of grain; a cylindrical vessel, eighteen
and a half inches in diameter, and eight inches deep inside, contains a bushel;
the capacity is 2145.42 cubic inches. By law or usage it is established in most
of the United States. The exceptions, as far as known, are Connecticut, where
the bushel holds 2198 cubic inches Kentucky, 2150 2/3; Indiana, Ohio,
Mississippi and Missouri, where it contains 2150.4 cubic inches. Dane's Ab. c.
211, a. 12, s. 4. See the whole subject discussed in report of the Secretary of
State of the United States to the Senate, Feb. 22, 1821.
BUSINESS HOURS. The time of the day during which business is
transacted. In respect to the time of presentment and demand of bills and notes,
business hours generally range through the whole day down to the hours of rest
in the evening, except when the paper is payable it a bank or by a banker. 2
Hill, N. Y. R. 835. See 3 Shepl. 67; 5 Shepl. 230.
BUTT. A measure of capacity, equal to one hundred and eight gallons.
BUTTS AND BOUNDS. This phrase is used to express the ends and
boundaries of an estate. The word butt, being evidently derived from the, French
bout, the end; and bounds, from boundary.
TO BUY. To purchase. Vide Sale.
BUYER, contracts. A purchaser; (q. v.) a vendee.
BUYING OF TITLES. The purchase of the rights of a person to a piece of
land when the seller is disseised.
2. When a deed is made by one who, though having a legal right to land, is at
the time of the conveyance disseised, as a general rule of the common law, the
sale is void; the law will not permit any person to sell a quarrel, or, as it is
commonly termed, a pretended title. Such a conveyance is an offence at common
law, and by a statute of Hen. VIII. This rule has been generally adopted in the
United States, and is affirmed by express statute. In some of the states, it has
been modified or abolished. It has been recognized in Massachusetts and Indiana.
1 Ind. R. 127. In Massacbusetts, there is no statute on the subject, but the act
has always been unlawful. 5 Pick. R. 356. In Connecticut the seller and the
buyer forfeit, each one half the value of the land. 4 Conn. 575. In New York, a
person disseised cannot convey, except by way of mortgage. But the statute does
not apply to judicial sales. 6 Wend. 224; see 4 Wend. 474; 2 John. Cas. 58; 3
Cow. 89; 5 Wend. 532; 5 Cow. 74; 13 John. 466; 8 Wend. 629; 7 Wend. 53, 152 11
Wend. 442; 13 John. 289. In North Carolina and South Carolina, a conveyance by a
disseisee is illegal; the seller forfeits the land, andthe buyer its value. In
Kentucky such sale is void. 1 Dana, R. 566. But when the deeds were made since
the passage of the statute of 1798, the grantee might, under that act, sue for
land conveyed to him, which was adversely possessed by another, as the grantor
might have done before. The statute rendered transfers valid to pass the title.
2 Litt. 393; 1 Wheat. 292; 2 Litt. 225; 3 Dana, 309. The statute of 1824, " to
revive and amend the champerty and maintenance law," forbids the buying ot
titles where there is an adverse possession. See 3 J. J. Marsh. 549; 2 Dana,
374; 6 J. J. Marsh. 490, 584. In Ohio, the purchase of land from one against
whom a suit is pending for it, is void, except against himself, if he prevails.
Walk. Intr. 297, 351, 352. In Pennsylvania. 2 Watts, R. 272 Illinois, 111. Rev.
L. 130; Missouri, Misso. St. 119, a deed is valid, though there be an adverse
possession. 2 Hill, Ab. c. 33, §42 to 52.
3. The Roman law forbade the sale of a right or thing in litigation. Code, 8.
BY ESTIMATION, contracts. In sales of land it not unfrequently occurs
that the property is said to contain a certain number of acres, by estimation,
or so many acres, more or less. When these expressions are used, if the land
fall short by a small quantity, the purchaser will receive no relief. In one
case of this kind, the land fell short two-fifths, and the purchaser received no
relief. 2 Freem. 106. Vide 1 Finch, 109 1 Call, R. 301; 6 Binn. Rep. 106 1 Serg.
& Pawle, R. 166; 1 Yeates, R. 322 2 John. R. 37 5 John. R. 508; 15 John. R.
471; 1 Caines, R. 493; 3 Mass. Rep. 380; 5 Mass. R. 355; 1 Root: R. 528; 4 Hen.
& Munf. 184. The meaning of these words has never been precisely ascertained
by judicial decision. See Sugd. Vend. 231 to 236; Wolff, Inst. §658 and the
cases cited under the articles Constitution; More or less; Subdivision.
BY-LAWS. Rules and ordinances made by a corporation for its own
2. The power to make by-laws is usually conferred by express terms of the
charter creating the corporation, though, when not expressly granted, it is
given by implication, and it is incident to the very existence of a corporation.
When there is an express grant, limited to certain cases and for certain
purposes, the corporate power of legislation is confined to the objects
specified, all others being excluded by implication. 2 Kyd on Corp. 102; 2 P.
Wms. 207; Ang. on Corp. 177. The power of making by-laws, is to be exercised by
those persons in whom it is vested by the charter; but if that intrument is
silent on that subject, it resides in the members of the corporation at large.
Harris & Gill's R. 324; 4 Burr. 2515, 2521; 6 Bro. P. C. 519.
3. The constitution of the United States, and acts of congress made in
conformity to it the constitution of the state in which a corporation is
located, and acts of the legislature, constitutionally made, together with the
common-law as there accepted, are of superior force to any by-law; and such
by-law, when contrary to either of them, is therefore void, whether the charter
authorizes the making of such by-law or not; because no legislature can grant
power larger than they themselves possess. 7 Cowen's R. 585; Id. 604 5 Cowen's
R. 538. Vide, generally, Aug. on Corp. ch. 9; Willc. on Corp. ch. 2, s. 3; Bac.
Ab. h. t.; 4 Vin. Ab. 301 Dane's Ab. Index, h. t., Com. Dig. h. t.; and Id. vol.
viii. h. t.
BY THE BYE, Eng. law. A declaration may be filed without a new process
or writ, when the defendant is in court in another case, by the plaintiff in
that case having filed common bail for him; the declaration thus filed is called
a declaration by the bye. 1 Crompt. 96; Lee's Diet. of Pr. Declaration IV.