RESIDENCE. The place of one's domicil. (q. v.) There is a difference
between a man's residence and his domicil. He may have his domicil in
Philadelphia, and still he may have a residence in New York; for although a man
can have but one domicil, he may have several residences. A residence is
generally tran-sient in its nature, it becomes a domicil when it is taken up
animo manendi. Roberts; Ecc. R. 75.
2. Residence is prima facie evidence of national character, but this may at
all times be explained. When it is for a special purpose and transient in its
nature, it does not destroy the national character.
3. In some cases the law requires that the residence of an officer shall be
in the district in which he is required to exercise his functions. Fixing his
residence elsewhere without an intention of returning, would violate such law.
Vide the cases cited under the article Domicil; Place of residence.
RESIDENT, international law. A minister, according to diplomatic
language, of a third order, less in dignity than an ambassador, or an envoy.
This term formerly related only to the continuance of the minister's stay, but
now it is confined to ministers of this class.
2. The resident does not represent the prince's person in his dignity, but
only his affairs. His representation is in reality of the same nature as that of
the envoy; hence he is often termed, as well as the envoy, a minister of the
second order, thus distinguishing only two classes of public ministers, the
former consisting of ambassadors who are invested with the representative
character in preeminence, the latter comprising all other ministers, who do not
possess that exalted character. This is the most necessary distinction, and
indeed the only essential one. Vattel liv. 4, c. 6, 73.
RESIDENT, persons. A person coming into a place with intention to
establish his domicil or permanent residence, and who in consequence actually
remains there. Time is not so essential as the intent, executed by making or
beginning an actual establishment, though it be abandoned in a longer, or
shorter period. See 6 Hall's Law Journ. 68; 3 Hagg. Eccl. R. 373; 20 John. 211 2
Pet. Ad. R. 450; 2 Scamm. R. 377.
RESIDUARY LEGATEE. He to whom the residuum of the estate is devised or
bequeathed by will. Roper on Leg. Index, h. t.; Powell Mortg. Index, h. t.; 8
Com. Dig. 444.
RESIDUE. That which remains of something after taking away a part of
it; as, the residue of an estate, which is what has not been particularly
devised by will.
2. A will bequeathing the general residue of personal property, passes to the
residuary legatee everything not otherwise effectually disposed of and it makes
no difference whether a legacy falls into the estate by lapse, or as void at
law, the next of kin is equally excluded. 15 Ves. 416; 2 Mer. 392. Vide 7 Ves.
391; 4 Bro. C. C. 55; 1 Bro. C. C. 589; Rop. on Leg. Index, h. t.; Worth. on
RESIGNATION. The act of an officer by which he declines his office,
and renounces the further right to use it. It differs from abdication. (q.
2. As offices are held at the will of both parties, if the resignation of a
officer be not accepted, he remains in office. 4 Dev. R. 1.
RESIGNEE. One in favor of whom a resignation is made. 1 Bell's Com.
RESISTANCE. The opposition of force to force.
2. Resistance is either lawful or unlawful. 1. It is lawful to resist one who
is in the act of committing a felony or other crime, or who maliciously
endeavors to commit such felony or crime. See self defence. And a man may oppose
force to force against one who endeavors to make an arrest, or to enter his
house without lawful authority for the purpose; or, if in certain cases he abuse
such authority, and do more than he was authorized to do; or if it turn out in
the result he has no right to enter, then the party about to be imprisoned, or
whose house is about to be illegally entered, may resist the illegal
imprisonment or entry by self-defence, not using any dangerous weapons, and may
escape, be rescued, or even break prison, and others may assist him in so doing.
5 Taunt. 765; 1 B. & Adol, 166; 1 East, P. C. 295; 5 East, 304; 1 Chit. Pr.
634. See Regular and Irregular Process.
3. - 2. Resistance is unlawful when the persons having a lawful authority to
arrest, apprehend, or imprison, or otherwise to advance or execute the public
justice of the country, either civil or criminal, and using the proper means for
that purpose, are resisted in so doing; and if the party guilty of such
resistance, or others assisting him, be killed in the struggle, such homicide is
justifiable; while on the other hand, if the officer be killed, it will, at
common law, be murder in those who resist. Fost. 270; 1 Hale, 457; 1 East, P. C.
RESOLUTION. A solemn judgment or decision of a court. This word is
frequently used in this sense, in Coke and some of the more ancient reporters.
It also signifies an agreement to a law or other thing adopted by a legislature
or popular assembly. Vide Dict. de Jurisp. h. t.
RESOLUTION, Civil law. The act by which a contract which existed and
was good, is rendered null.
2. Resolution differs essentially from rescission. The former presupposes the
contract to have been valid, and it is owing to a cause posterior to the
agreement that the resolution takes place; while rescission, on the contrary,
supposes that some vice or defect annulled the contract from the beginning.
Resolution may be by consent of the parties or by the decision of a competent
tribunal; rescission must always be by the judgment of a court. 7 Troplong, de
la Vente, n. 689; 7 Toull. 551; Dall. Dict. h. t.
RESOLUTORY CONDITION. On which has for its object, when accomplished,
the revocation of the principal obligation; for example, I will sell you my crop
of cotton, if my ship America does not arrive in the United States, within six
months. My ship arrives in one month, my contract with you is revoked. 1 Bouv.
Inst. n. 764.
RESORT. The authority or jurisdiction of a court. The supreme court of
the United States is a court of the last resort.
RESPECTABLE WITNESS. One who is competent to testify in a court of
justice. To pass lands in Alabama, a will must be attested by three or more
respectable witnesses. See Attesting witness; Competent witness; Credible
witness and Witness.
RESPIRATION, Med. jur. Breathing, which consists of the drawing into,
inhaling, or more technically, inspiring, atmospheric air into the lungs, and
then: forcing out, expelling, or technically expiring, from the lungs the air
therein. Chit. Med. Jur. 92 and 416, note n.
RESPITE, contracts, civil law. An act by which a debtor who is unable
to satisfy his debts at the moment, transacts (i. e. compromises) with his
creditors, and obtains from them time or delay for the payment of the sums which
he owes to them. Louis. Code, 3051.
2. The respite is either voluntary or forced; it is voluntary when all the
creditors consent to the proposal, which the debtor makes to pay in a limited
time the whole or a part of his debt; it is forced when a part of the credi-tors
refuse to accept the debtor's proposal, and when the latter is obliged to compel
them by judicial authority, to consent to what the others have deter-mined in
the cases directed by law. Id. 3052; Poth. Proced. Civ. 5eme partie, ch. 3.
3. In Pennsylvania, there is a provision in the insolvent act of June 16,
1836, s. 41, somewhat similar to involuntary respite. It is enacted, that
whenever a majority in number and value of the creditors of any insolvent, as
aforesaid, residing within the United States, or having a known attorney
therein, shall consent in writing thereto, it shall be lawful for the court by
whom such insolvent shall have been discharged, upon the application of such
debtor, and notice given thereof, in the manner hereinbefore provided for giving
notice of his original petition, to make an order that the estate and effects
which such insolvent may afterwards acquire, shall be exempted for the term of
seven years thereafter from execution, for any debt contracted, or cause of
action existing previously to such discharge, and if after such order and
consent, any execution shall be issued for such debt or cause of action, it
sliall be the duty, of any judge of the court from which such execution issued,
to set aside the same with costs.
4. Respite also signifies a delay, forbearance or continuation of time.
RESPITE, crim. law. A suspension of a sentence, which is to be
executed at a future time. It differs from a pardon, which is in abolition of
the crime. See Abolition; Pardon.
RESPONDEAT OUSTER. The name of a judgment when an issue in law,
arising on a dilatory plea, has been decided for the plaintiff, that the
defendant answer over. See 1 Meigs, 122; 1 Ala. R. 442; 3 Ala. R. 278; 3 Pike,
339; 4 Pike, 445; 4 Misso. R. 366; 5 Blackf. 167; 5 Metc. 88; 1 Gilm. R. 395 16
Conn. 436; 24 Pick. 49. Vide Judgment of Respondeat Ouster.
RESPONDENT, practice. The party who makes an answer to a bill or other
proceeding in chancery. In the civil law, this term signifies one who answers or
is security for another; a fidejussor. Dig. 2, 8, 6.
RESPONDENTIA, maritime law. A loan of money on maritime interest, on
goods laden on board of a ship, which, in the course of the voyage must, from
their nature, be sold or exchanged, upon this condition, that if the goods
should be lost in the course of the voyage, by any of the perils enumerated in
the contract, the lender shall lose his money; if not, that the borrower shall
pay him the sum borrowed, with the interest agreed upon,
2. The contract is called respondentia, because the money is lent on the
personal responsibility of the borrower. It differs principally from bottomry,
in the following circumstances: bottomry is a loan on the ship; respondentia is
a loan upon the goods. The money is to be repaid to the lender, with mari-time
interest, upon the arrival of the ship, in the one case and of the goods, in the
other. In all other respects the contracts are nearly the same, and are governed
by the same principles. In the former, the ship and tackle, being hypothecated,
are liable, as well as the person of the borrower; in the latter, the lender
has, in general, only the personal security of the borrower. Marsh. Ins. B. 2,
c. 1, p. 734. See Lex Mer. Amer. 354; Com. Dig. Merchant, E 4; 1 Fonb. Eq. 247,
n. I.; Id. 252, n. o.; 2 Bl. Com. 457; Park. Ins. ch. 21; Wesk. Ins. 44; Beawes'
Lex. Mex. 143; 3 Chitty's Com. Law, 445 to 536; Bac. Abr. Merchant and
Merchandise, K; Bottomry.
RESPONDERE NON DEBET. The prayer of a plea where the defendant insists
that he ought not to answer, as when he claims a privilege; for example, as
being a member of congress, or a foreign amhassador. 1 Chit. Pl. *433.
RESPONSA PRUDENTUM, civil law. Opinions given by Roman lawyers. Before
the time of Augustus, every lawyer was authorized de jure, to answer questions
put to him, and all such answers, response prudentum had equal authority, which
had not the force of law, but the opinion of a lawyer. Augustus was the first
prince who gave to certain distinguished jurisconsults the particular privi-lege
of answering in his name; and from that period their answers required greater
authority. Adrian determined in a more precise manner the degree of authority
which these answers should have, by enacting that the opinions of such
authorized jurisconsults, when unanimously given, should have the force of law
(legis vicenz,) and should be followed by the judges; and that when they were
divided, the judge was allowed to adopt that which to him appeared the most
2. The opinions of other lawyers held the same place they had before, they
were considered merely as the opinions of learned men. Mackel. Man. Intro. §43;
Mackel. Hist. du Dr. Rom. SSSS 40, 49; Hugo, Hist. du Dr. Rom. §313; Inst. 1, 2,
8,; Institutes Expliquees, n. 39.
RESPONSALIS, old Eng. law., One who appeared for another in court.
Fleta, lib. 6, c., 21. In the ecclesiastical law, this name is sometimes given
to a proctor.
RESPONSIBILITY. The obligation to answer for an act done, and to
repair any injury it may have caused.
2. This obligation arises without any contract, either on the part of the
party bound to repair the injury, or of the party injured. The law gives to the
person who has suffered loss, a compensation in damages.
3. it is a general rule that no one is answerable for the acts of another
unless he has, by some act of his own, concurred in them. But when he has
sanctioned those acts, either explicitly or by implication, he is responsible.
An innkeeper in general, civilly liable for the acts of his servants towards his
guests, for anything done in their capacity of servants. The owner of a carriage
is also, civilly responsible to a passenger for any injury done by the driver as
such. See Driver.
4. There are cases where persons are made civilly responsible for the acts of
others by particular laws and statutory provisions, when they have not done
anything by which they might be considered as participating in such acts. The
responsibility which the hundred (q. v.) in England formerly incurred to make
good any robbery committed within its precincts, may be mentioned as an
instance. A somewhat similar liability is incurred now in some places in this
country by a county, when property has been destroyed by a mob.
5. Penal responsibility is always personal, and no one can be punished for
the commission of a crime but the person who has committed it or his accomplice.
Vide Damages; Injury; Loss.
RESTITUTION, maritime law. The placing back or restoring articles
which have been lost by jettison; this is done when the remainder of the cargo
has been saved at the general charge of the owners of the cargo; but when the
remainder of the goods are afterwards lost, there is not any restitution. Stev.
on Av. 1, c. 1, s. 1, art. 1, ii., 8. Vide Recompense.
RESTITUTION, practice. The return of something to the owner of it, or
to the person entitled to it.
2. After property has been taken into execution, and the judgment has been
reversed or set aside, the party against whom the execution was sued out shall
have restitution, and this is enforced by a writ of restitution. Cro. Jac. 698;
4 Mod. 161. When the thing levied upon under an execution has not been sold, the
thing itself shall be restored; when it has been sold, the price for which it is
sold is to be restored. Roll. Ab. 778; Bac. Ab. Execution, Q; 1 Al. & S.
3. The phrase restitution of conjugal rights frequently occurs in the
ecclesiastical courts. A suit may there be brought for this purpose whenever
either the hushand or wife is guilty of the injury of subtraction, or lives
separate from the other without sufficient reason; by which the party injured
may compel the other to return to cohabitation. 1 Bl. Com. 94; 1 Addams, R. 305;
3 Hagg. Eccl. R. 619.
TO RESTORE. To return what has been unjustly taken; to place the owner
of a thing in the state in which he formerly was. By restitution is understood
not only the return of the thing itself, but all its accessories. It is to
return the thing and its fruits. Dig. 60, 16, 35, 75 et 246, §1.
RESTRAINING. Narrowing down, making less extensive; as, a restraining
statute, by which the common law is narrowed down or made less extensive in its
RESTRAINING POWERS. A term used in equity. When the donor of a power,
who is the owner of the estate, imposes certain restrictions by the terms of the
powers, these restrictions are called restraining powers.
RESTRAINT. Something which prevents us from doing what we would desire
2. Restraint is lawful and unlawful. It is lawful when its object is to
prevent the violation of the law, or the rights of others. It is unlawful when
it is used to prevent others from doing a lawful act; for example, when one
binds himself not to trade generally; but an agreement not to trade in a
particular place is lawful. A legacy given in restraint of marriage, or on
condition that the legatee shall not marry, is good, and the condition alone is
void. The Roman civil law agrees with ours in this respect; a legacy given on
condition that the legatee shall not marry is void. Clef des Lois Rom. mot
Passion. See Condition; Limitation.
RESTRICTIVE INDORSEMENT, contracts. One which confines the
negotiability of a promissory note or bill of exchange, by using express words
to that effect, as by indorsing it "payable to A,B only." 1 Wash. C. C. 512; 2
Murph. 138; 1 Bouv. Inst. n. 1138.
RESULTING TRUSTS, estates. Resulting, implied or constructive trusts,
are those which arise in cases where it would be contrary to the principles of
equity that be in whom the property becomes vested, should hold it otherwise
than as a trustee. 2 Atk. 150.
2. As an illustration of this description of a resulting trust, may be
mentioned the case of a contract made for the purchase of a real estate; on the
completion of the contract, a trust immediately results to the purchaser, and
the vendor becomes a trustee for him till the conveyance of the legal estate is
made. Again, when an estate is purchased in the name of one person, and the
purchase money is paid by another, there is a resulting trust in favor of the
person who gave or paid the consideration. Willis on Tr. 55; 1 Cruise, Dig. tit.
12, s. 40, 41; Ch. Ca. 39; 9 Mod. 78; 7 Ves. 725; 3 Hen. & Munf. 367; 1
Supp. to Ves. jr. 11; Pow. Mortg. Index, h. t.; 2 John. Ch. R. 409, 450; 3 Bibb,
R. 15, 506; 4 Munf. R. 222; 1 John. Ch. Rep. 450, 582; Sugd. on Vend. ch. 15, s.
2 Cox, Ch. Rep. 93; Bac. Ab. Trusts, C; Bouv. last. Index, h. t. Vide Trusts;
RESULTING USE, estates. One which having been limited by deed, expires
or cannot vest; it then returns back to him who raised it, after such
expiration, or during such impossibility.
2. When the legal seisin and possession of land is transferred by any common
law conveyance, and no use is expressly declared, nor any consideration nor
evidence of intent to direct the use, such use shall result back to the original
owner of the estate; for in such case, it cannot be supposed that it was
intended to give away the estate. 2 Bl. Com. 335; Cruise, Dig. t. 11, c. 4, s.
20, et seq.; Bac. Tracts, Read. on Stat. of Use's, 351; Co. Litt. 23, a.; Id.
271, a; 2 Binn. R. 387; 3 John. R. 396.
RESUMPTION. To reassume; to promise again; as, the resumption of
payment of specie by the banks is general. It also signifies to take things
back; as the government has resumed the possession of all the lands which have
not been paid for according to the requisitions of the law, and the contract of
the purchasers. Cow. Int. h. t.
RETAIL. To sell by retail, is to sell by small parcels, and not in the
gross. 5 N. S. 279.