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U.
UBERRIMA FIDES. Perfect good faith; abundant good faith.
2. This phrase is used to express that a contract must be made in
perfect good faith, concealing nothing; as in the case of insurance, the
insured must observe the most perfect good faith towards the insurer. 1
Story, Eq. Jur. Sec. 317; 3 Kent, Com. 283, 4th ed.
UKAAS, or UKASE. The name of a law or ordinance emanating from the czar of
Russia.
ULLAGE, com. law. When a cask is gauged, what it wants of being full is
called ullage.
ULTIMATUM. The last proposition made in making a contract, a treaty, and the
like; as, the government of the United States has given its ultimatum, has
made the last proposition it will make to complete the proposed treaty. The
word also means the result of a negotiation, and it comprises the final
determination of the parties concerned in the object in dispute.
ULTIMUM SUPPLICIUM. The last or extreme punishment; the penalty of death.
ULTIMUS HAERES. The last or remote heir; the lord. So called in
contradistinction to the haeredes proximus, (q.v.) and the haeredes
remotiores. (q.v.) Dalr Feud. Pr. 110.
UMPIRAGE. The decision of an umpire. This word is used for the judgment of
an umpire, as the word award is employed to designate that of arbitrators.
UMPIRE. A person selected by two or more arbitrators. When they are
authorize to do so by the submission of the parties, and they cannot agree
as to the subject-matter referred to them, whose duty it is to decide the
matter in dispute. Sometimes the term is applied to a single arbitrator,
selected by the parties themselves. Kyd on Awards, 6, 75, 77 Caldw. on Arb.
38; Dane's Ab. Index, h.t.; 3 Vin. Ab. 93; Com. Dig. Arbitrament, F; 4 Dall.
271, 432; 4 Sco. N. S. 378; Bouv. Inst. Index, h.t.
UNA VOCE. With one voice unanimously.
UNALIENABLE. The state of a thing or right which cannot be sold.
2. Things which are not in commerce, as public roads, are in their
nature unalienable. Some things are unalienable, in consequence of
particular provisions in the law forbidding their sale or transfer, as
pensions granted by the government. The natural rights of life and liberty
are unalienable.
UNANIMITY. The agreement of all the persons concerned in a thing in design
and opinion.
2. Generally a simple majority (q.v.) of any number of persons is
sufficient to do such acts as the whole number can do; for example, a
majority of the legislature can pass a law: but there are some cases in
which unanimity is required; for example, a traverse jury, composed of
twelve individuals, cannot decide an issue submitted to them, unless they
are unanimous.
UNCERTAINTY. That which is unknown or vague. Vide Certainty.
UNCONDITIONAL. That which is without condition; that which must be performed
without regard to what has happened or may happen.
UNCONDITIONAL CONTRACT, contracts. One which does not depend upon any
condition whatever. 1 Bouv. Inst. n. 730.
UNCONSCIONABLE BARGAIN, contracts. A contract which no man in his senses,
not under delusion, would make, on the one hand, and which no fair and
honest man would accept, on the other. 4 Bouv. Inst. n. 3848.
UNCONSTITUTIONAL. That which is contrary to the constitution.
2. When an act of the legislature is repugnant or contrary to the
constitution, it is, ipso facto, void. 2 Pet. R. 522; 12 Wheat. 270; 3 Dall.
286; 4 Dall. 18.
3. The courts have the power, and it is their duty, when an act is
unconstitutional, to declare it to be so; but this will not be done except
in a clear case and, as an additional guard against error, the supreme court
of the United States refuses to take up a case involving constitutional
questions, when the court is not full. 9 Pet. 85. Vide 6 Cranch, 128; 1
Binn. 419; 5 Binn. 355; 2 Penna 184; 3 S. & R. 169; 7 Pick. 466; 13 Pick.
60; 2 Yeates, 493; 1 Virg. Cas. 20; 1 Blackf. 206 6 Rand. 245 1 Murph. 58;
Harper, 385 1 Breese, 209 Pr. Dee. 64, 89; 1 Rep. Cons. Ct. 267 1 Car. Law
Repos. 246 4 Munr. 43; 5 Hayw. 271; 1 Cowen, 550; 1 South. 192; 2 South.
466; 7 N H. Rep. 65, 66; 1 Chip, 237, 257; 10 Conn. 522; 7 Gill & John. 7; 2
Litt. 90; 3 Desaus. 476.
UNCORE PRIT, pleading. This barbarous phrase of old French, which is the
same with encore pret, yet ready, is used in a plea in bar to an action of
debt on a bond due at a day past; when the defendant pleads a tender on the
day it became due, and adds that he is uncore prit, still ready to pay the
same. 3 Bl. Com. 303; Doct. Pl. 526 Dane's Ab. Index, h.t. Vide tout temps
prist.
UNDE NIHIL HABET. Of which she has nothing. When no dower had been assigned
to the widow during the time prescribed by law, she could, at common law,
sue out a writ of dower unde nihil habet. 3 Bl. Com. 183.
UNDERLEASE, contracts. An alienation by a tenant of a part of his lease,
reserving to himself a reversion; it differs from an assignment, which is a
transfer of all the tenant's interest in the lease. 3 Wils. 234; S. C. Bl.
Rep. 766. And even a conveyance of the whole estate by the lessee, reserving
to himself the rent, with a power of re-entry for non-payment, was held to
be, not an assignment, but an underlease. Str. 405. In Ohio it has been
decided that the transfer of only a part of the lands, though for the whole
term, is an underlease; 2 Ohio, R. 216; in Kentucky, such a transfer, on the
contrary, is considered as an assignment. 4 Bibb. R. 538.
2. In leases there is frequently introduced a covenant on the part of
the lessee, that he will not underlet the premises, nor assign the lease.
This refers to the voluntary act of the tenant, and the covenant is not
broken when the lease is transferred without any act on his part; as, if it
be sold by the sheriff on execution, or by assignees in bankruptcy, or by an
executor. 8 T. R. 57; 3 M. & S. 353; 1 Ves. 295.
3. The underlessor has a right to distrain for the rent due to him,
which, the assignor of a lease has not. The under-lessee is not liable
personally to the original lessor, nor is his property subject to his claim
for rent longer than while it is on the leased premises, when it may be
distrained upon. The assignee of the lessee stands in a different situation.
He is liable to an action by the landlord or his assignee for the rent, upon
the ground of privity of estate. 1 Hill. Ab. 125, 6; 4 Kent, Com. 95; 9
Pick. R. 52; 14 Mass. 487; 5 Watts, R. 134. Vide 2 Bl. R. 766; 3 Wils. 234;
4 Campb. 73; Bouv. Inst. Index, tit. Underletting. Vide Estate for years;
Lease; Lessee; Notice to quit; Tenant for years.
UNDER-SHERIFF. A deputy of a sheriff. The principal is called high-sheriff,
and the deputy the under-sheriff. Vide 1 Phil. Ev. Index, h.t.
UNDER-TENANT. One who holds by virtue of an underlease. (q.v.) See
Subtenant.
UNDERTAKING, contracts. An engagement by one of the parties to a contract to
the other, and not the mutual engagement of the parties to each other; a
promise. 5 East, R. 17; 2 Leon. 224, 5; 4 B, & A. 595.
UNDERTOOK. Assumed; promised.
2. This is a technical word which ought to be inserted in every
declaration of assumpsit, charging that the defendant undertook to perform
the promise which is the foundation of the suit; and this though the promise
be founded on a legal liability, or would be implied in evidence. Bac. Ab
Assumpsit, F; 1 Chit. Pl. 88, note p.
UNDER-TUTOR, law of Louisiana. In every tutorship, there shall be an
undertutor, whom it shall be the duty of the judge to appoint at the time
letters of tutorship are certified for the tutor.
2. It is the duty of the under-tutor to act for the minor, whenever the
interest of the minor is in opposition to the interest of the tutor. Civil
Code, art. 300, 301; 1 N. S. 462; 9 M. R. 643; 11 L. R. 189; Poth. Des
Personnes, partie prem. tit. 6, s. 5, art. 2. Vide Procurator; Protutor.
UNDERWRITER, insurances. One who signs a policy of insurance, by which he
becomes an insurer.
2. By this act he places himself as to his responsibility, in the place
of the insured. He may cause a re-insurance (q.v.) to be made for his
benefit; and it is his duty to act with good faith, and, without quibbling,
to pay all just demands against him for losses. Marsh. Ins. 45,
UNDIVIDED. That which is held by the same title by two or more persons,
whether their rights are equal, as to value or quantity, or unequal.
2. Tenants in common, joint-tenants, and partners, hold an undivided
right in their respective properties, until partition has been made. The
rights of each owner of an undivided thing extends over the whole and every
part of it, totum in toto, et totum in qualibet parte. Vide Partition; Per
my et per tout.
UNICA TAXATIO, practice. The ancient language of a special award of venire,
where of several defendants, one pleads, and one lets judgment go by
default, whereby the jury, who are to try and assess damages on the issue,
are also to assess damages against the defendant suffering judgment by
default. Lee's Dict. h.t.
UNILATERAL CONTRACT, civil law. When the party to whom an engagement is
made, makes no express agreement on his part, the contract is called
unilateral, even in cases where the law attaches certain obligations to his
acceptance. Civ. Code of Lo. art. 1758. Code Nap. 1103. A loan of money, and
a loan for use, are of this kind. Poth. Obl. part 1, c. 1, s. 1, art. 2;
Lee. Elemen. Sec. 781.
UNINTELLIGIBLE. That which cannot be understood.
2. When a law, a contract, or will, is unintelligible, it has no effect
whatever. Vide Construction, and the authorities there referred to.
UNIO PROLIUM. A species of adoption used among the Germans; it signifies
union of descent. It takes place when a widower, having children, marries a
widow, who also has children. These parents then agree that the children of
both marriages shall have the rights to their succession, as those which may
be the fruits of their marriage. Lec. Elem. Sec. 187.
UNION. By this word is understood the United States of America; as, all good
citizens will support the Union.
UNITED STATES OF AMERICA. The name of this country. The United States, now
thirty-one in number, are Alabama, Arkansas, Connecticut, Delaware, Florida,
Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey,
New York North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Vermont, Virginia, Wisconsin, and California.
2. The territory of which these states are composed was at one time
dependent generally on the crown of Great Britain, though governed by the
local legislatures of the country. It is not within the plan of this work to
give a history of the colonies; on this subject the reader is referred to
Kent's Com. sect. 10; Story on the Constitution, Book 1; 8 Wheat. Rep. 543;
Marshall, Hist. Colon.
3. The neglect of the British government to redress grievances which
had been felt by the people, induced the colonies to form a closer connexion
than their former isolated state, in the hopes that by a union they might
procure what they had separately endeavored in vain, to obtain. In 1774,
Massachusetts recommended that a congress of the colonies should be
assembled to deliberate upon the state of public affairs; and on the fourth
of September of the following year, the delegates to such a congress
assembled in Philadelphia. Connecticut, Delaware, Maryland, Massachusetts,
New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode
Island, South Carolina, and Virginia, were represented by their delegates;
Georgia alone was not represented. This congress, thus organized, exercised
de facto and de jure, a sovereign authority, not as the delegated agents of
the governments de facto of the colonies, but in virtue of the original
powers derived from the people. This, which was called the revolutionary
government, terminated only when superseded by the confederated government
under the articles of confederation, ratified in 1781. Serg. on the Const.
Intr. 7, 8.
4. The state of alarm and danger in which the colonies then stood
induced the formation of a second congress. The delegates, representing all
the states, met in May, 1775. This congress put the country in a state of
defence, and made provisions for carrying on the war with the mother
country; and for the internal regulations of which they were then in need;
and on the fourth day of July, 1776, adopted and issued the Declaration of
Independence. (q.v.) The articles of confederation, (q.v.) adopted on the
first day of March, 1781, 1 Story on the Const. Sec. 225; 1 Kent's Comm.
211, continued in force until the first Wednesday in March, 1789, when the
present constitution was adopted. 5 Wheat. 420.
5. The United States of America are a corporation endowed with the
capacity to sue and be sued, to convey and receive property. 1 Marsh. Dec.
177, 181. But it is proper to observe that no suit can be brought against
the United States without authority of law.
6. The states, individually, retain all the powers which they possessed
at the formation of the constitution, and which have not been given to
congress. (q.v.)
7. Besides the states which are above enumerated, there are various
territories, (q.v.) which are a species of dependencies of the United
States. New states may be admitted by congress into this union; but no new
state shall be formed or erected within the jurisdiction of any other state,
nor any state be formed by the junction of two or more states, or parts of
states, without the consent of the legislatures of the states concerned, as
well as of congress. Const. art. 4, s. 3. And the United States shall
guaranty to every state in this union, a republican form of government. Id.
art. 4, s. 4. See the names of the several states; and Constitution of the
United States.
UNITY, estates. An agreement or coincidence of certain qualities in the
title of a joint estate or an estate in common.
2. In a joint estate there must exist four unities; that of interest,
for a joint-tenant cannot be entitled to one period of duration or quantity
of interest in lands, and the other to a different; one cannot be tenant for
life, and the other for years: that of title, and therefore their estate
must be created by one and, the same act; that of time, for their estates
must be vested at one and the same period, as well as by one and the same
title; and lastly, the unity of possession: hence joint-tenants are seised
per my et per tout, or by the half or moiety and by all: that is, each of
them has an entire possession, as well of every parcel as of the whole. 2
Bl. Com. 179-182; Co. Litt. 188.
3. Coparceners must have the unities of interest, title, and
possession.
4. In tenancies in common, the unity of possession is alone required. 2
Bl. Com. 192; 2 Bouv. Inst. n. 1861-83. Vide Estate in Common; Estate in
Joint-tenancy; Joint-tenants; Tenant in Common; Tenants, Joint.
UNITY OF POSSESSION. This term is used to designate the possession by one
person of several estates or rights. For example, a right to an estate to
which an easement is attached, or the dominant estate, and to an estate
which an easement encumbers, or the servient estate, in such case the
easement is extinguished. 3 Mason, Rep. 172; Poph. 166; Latch, 153; and vide
Cro. Jac. 121. But a distinction has been made between a thing that has
being by prescription, and one that has its being ex jure naturae; in the
former case unity of possession will extinguish the easement; in the latter,
for example, the case of a water course, the unity will not extinguish it.
Poth. 166.
2. By the civil code of Louisiana, art. 801, every servitude is
extinguished, when the estate to which it is due, and the estate owing it,
are united in the same hands. But it is necessary that the whole of the two
estates should belong to the same proprietor; for if the owner of one estate
only acquires the other in part or in common with another person, confusion
does not take effect. Vide Merger.
UNIVERSAL LEGACY. A term used among civilians. An universal legacy is a
testamentary disposition, by which the testator gives to one or several
persons the whole of the property which he leaves at his decease. Civil Code
of Lo. art. 1599; Code Civ. art. 1003; Poth. Donations testamentaires, c. 2,
sect. 1, Sec. 2.
UNIVERSAL PARTNERSHIP. The name of a specie's of partnership by which all
the partners agree to put in common all their property, universorum bonorum,
not only what they then have, but also what they shall acquire. Poth. Du
Contr. de Societe, n. 29.
2. In Louisiana, universal partnerships are allowed, but properly which
may accrue to one of the parties, after entering into the partnership, by
donation, succession, or legacy, does not become common stock, and any
stipulation to that effect, previous to the obtaining the property
aforesaid, is void. Civ. Code, art. 2800.
UNIVERSITY. The name given to certain societies or corporations which are
seminaries of learning where youth are sent to finish their education. Among
the civilians by this term is understood a corporation.
UNJUST. That which is done against the perfect rights of another; that which
is against the established law; that which is opposed to a law which is the
test of right and wrong. 1 Toull. tit. prel. n. 5; Aust. Jur. 276, n.; Hein.
Lec. El. Sec. 1080.
UNKNOWN. When goods have been stolen from some person unknown, they may be
so described in the indictment; but if the owner be really known, an
indictment alleging the property to belong to some person unknown is
improper. 2 East's P. C. 651 1 Hale, P. C. 512; Holt's N. P. C. 596 S. C. 3
Eng. Common Law Rep. 191; 8 C. & P. 773. Vide Indictment; Quidam.
UNLAWFUL. That which is contrary to law.
2. There are two kinds of contracts which are unlawful; those which are
void, and those which are not. When the law expressly prohibits the
transaction in respect of which the agreement is entered into and declares
it to be void, it is absolutely so. 3 Binn. R. 533. But when it is merely
prohibited, without being made void, although unlawful, it is not void. 12
Serg. & Rawle, 237; Chitty, Contr. 230; 23 Amer. Jur. 1 to 23; 1 Mod. 35; 8
East, R. 236, 237; 3 Taunt. R. 244; Hob. 14. Vide Condition; Void.
UNLAWFUL ASSEMBLY, crim. law. A disturbance of the public peace by three or
more persons who meet together with an intent mutually to assist each other
in the execution of some unlawful enterprise of a private nature, with force
and violence; if they move forward towards its execution, it is then a rout
(q.v.) and if they actually execute their design, it amounts to a riot.
(q.v.) 4 Bl. Com. 140; 1 Russ. on Cr. 254; Hawk. c. 65, s. 9; Com. Dig.
Forcible Entry, D 10; Vin. Abr. Riots, &c., A.
UNLAWFULLY, pleadings. This word is frequently used in indictments in the
description of the offence; it is necessary when the crime did not exist at
common law, and when a statute, in describing an offence which it creates,
uses the word, 1 Moody, Cr. Cas. 339; but it is unnecessary whenever the
crime existed at common law, and is manifestly illegal. 1 Chitty, Crim. Law,
*241; Hawk. B. 2, c. 95, s. 96; 2 Roll. Ab. 82; Bac. Abr. Indictment, G 1
Cro. C. C. 38, 43.
UNLIQUIDATED DAMAGES. Such damages, as are unascertained. In general such
damages cannot be set-off. No interest will be allowed on unliquidated
damages. 1 Bouv. Inst. n. 1108. See Liquidated, Liquidated Damages.
UNQUES, law French. Yet. This barbarous word is frequently used in pleas as,
Ne unques executor, Ne unquas guardian, Ne unques accouple; and the like.
UNSOUND MIND; UNSOUND MEMORY. These words have been adopted in several
statutes, and sometimes indiscriminately used to signify, not only lunacy,
which is periodical madness, but also a permanent adventitious insanity as
distinguished from idiocy. 1 Ridg. Parl. Cases, 518; 3 Atk. 171.
2. The term unsound mind seems to have been used in those statutes in
the same sense as insane; but they have been said to import that the party
was in some such state as was contradistinguished from idiocy and from
lunacy, and yet such is made him a proper subject of a commission to inquire
of idiocy and lunacy. Shelf. on Lun. 5; Ray, Med. Jur. Prel. Sec. 8; Hals.
Med. Jur. 336; 8 Ves. 66; 19 Ves. 286; 1 Beck's Med. Jur. 573; Coop. Ch.
Cas. 108; 12 Ves. 447; 2 Mad. Ch. Pr. 731, 732.
UNSOUNDNESS. Vide Crib-biting; Roaring; Soundness.
UNWHOLESOME FOOD. Food not fit to be eaten; food which, if eaten, would be
injurious.
2. Although the law does not in general consider a sale to be a
warranty or goodness of the quality of a personal chattel, yet it is
otherwise with regard to food and liquor when sold for consumption. 1 Roll.
Ab. 90, pl. 1 and 2.
UPLIFTED HAND. When a man accused of a crime is arraigned, he is required to
raise his hand, probably in order to identify the person who pleads. Perhaps
for the same reason when a witness adopts a particular mode of taking an
oath, as when he does not swear upon the gospel, but upon Almighty God, he
is requested to hold up his hand.
URBAN. Relating to a city; but in a more general sense it signifies relating
to houses.
2. It is used in this latter sense in the civil code of Louisiana,
articles 706 and 707. All servitudes are established either for the use of
houses or for the use of lands. Those of the first kind are called urban
servitudes, whether the buildings to which they are due be situated in the
city or in the country. Those of the second kind are called rural
servitudes.
3. The principal kinds of urban servitudes are the following: the right
of support; that of drip; that of drain, or of preventing the drain, that of
view or of lights, or of preventing the view or lights from being
obstructed: that of raising buildings or walls, or of preventing them from
being raised that of passage and that of drawing water. Vide 3 Toull. p.
441; Poth. Introd. au tit. 13 de la Coutume d'Orleans, n. 2; Introd. Id. n.
2.
USAGE. Long and uniform practice. In its most extensive meaning this term
includes custom and prescription, though it differs from them in a narrower
sense, it is applied to the habits, modes, and course of dealing which are
observed in trade generally, as to all mercantile transactions, or to some
particular branches of trade.
2. Usage of trade does not require to be immemorial to establish it; if
it be known, certain, uniform, reasonable, and not contrary to law, it is
sufficient. But evidence of a few instances that such a thing has been done
does not establish a usage. 3 Watts, 178; 3 Wash. C. C. R. 150; 1 Gallis.
443; 5 Binn. 287; 9 Pick. 426; 4 B. & Ald. 210; 7 Pet. 1; 2 Wash. C. C. R.
7.
3. The usages of trade afford ground upon which a proper construction
may be given to contracts. By their aid the indeterminate intention of
parties and the nature and extent of their contracts arising from mere
implications or presumptions, and act of an equivocal character may be
ascertained; and the meaning of words and doubtful expressions may become
known. 2 Mete. 65; 2 Sumn. 569; 2 G. & J. 136; 13 Pick. 182; Story on Ag.
Sec. 77; 2 Kent, Com. 662, 3d ed.; 5 Wheat. 326; 2 Car. & P. 525; 3 B. &
Ald. 728; Park. on Ins. 30; 1 Marsh. Ins. 186, n. 20; 1 Caines, 45 Gilp.
356, 486; 1 Edw. Ch. R. 146; 1 N. & M. 519; 15 Mass. 433; 1 Rill, R. 270;
Wright, R. 573; Pet. C. C. R. 230; 5 Hamm. 436 6 Pet. 715; 2 Pet. 148; 6
Porter, 123 1 Hall, 612; 9 Mass. 155; 9 Wheat. 582 11 Wheat. 430; 1 Pet. 25,
89.
4. Courts will not readily adopt these usages, because they are not
unfrequently founded in mistake. 2 Sumn. 377. See 3 Chitt. Pr. 55; Story,
Confl. of Laws, Sec. 270; 1 Dall. 178; Vaugh. 169, 383; Bouv. Inst. Index,
h.t.
USANCE, commercial law. The term usance comes from usage, and signifies the
time which by usage or custom is allowed in certain countries, for the
payment of a bill of exchange. Poth. Contr. du Change, n. 15.
2. The time of one, two or three mouths after the date of the bill,
according to the custom of the places between which the exchanges run.
3. Double or treble is double or treble the usual time, and half usance
is half the time. Where it is necessary to divide a month upon a half
usance, which is the case when the usance is for one month or three, the
division, notwithstanding the difference in the length of the months,
contains fifteen days.
USE, estates. A confidence reposed in another, who was made tenant of the
land or terre tenant, that he should dispose of the land according to the
intention of the cestui que use, or him to whose use it was granted, and
suffer him to take the profits. Plowd. 352; Gilb. on Uses, 1; Bac. Tr. 150,
306; Cornish on Uses, 1 3; 1 Fonb. Eq. 363; 2 Id. 7; Sanders on Uses, 2; Co.
Litt. 272, b; 1 Co. 121; 2 Bl. Com. 328; 2 Bouv. Inst. n. 1885, et seq.
2. In order to create a use, there must always be a good Consideration;
though, when once raised, it may be passed by grant to a stranger, without
consideration. Doct. & Stu., Dial. ch. 22, 23; Rob. Fr. Conv. 87, n.
3. Uses were borrowed from the fidei commissum (q.v.) of the civil law;
it was the duty of a Roman magistrate, the praetor fidei commissarius, whom
Bacon terms the particular chancellor for uses, to enforce the observance of
this confidence. Inst. 2, 23, 2.
4. Uses were introduced into England by the ecclesiastics in the reign
of Edward Ill or Richard II, for the purpose of avoiding the statutes of
mortmain; and the clerical chancellors of those times held them to be fidei
commissa, and binding in conscience. To obviate many inconveniencies and
difficulties, which had arisen out of the doctrine and introduction of uses,
the statute of 274 Henry VIII, c. 10, commonly called the statute of uses,
or in conveyances and pleadings, the statute for transferring uses into
possession, was passed. It enacts, that "when any person shall be seised of
lands, &c., to the use, confidence or trust of any other person or body
politic, the person or corporation entitled to the use in fee simple, fee
tail, for life, or years, or otherwise, shall from thenceforth stand and be
seised or possessed of the land, &c., of and in the like estate as they have
in the use, trust or confidence; and that the estates of the persons so
seised to the uses, shall be deemed to be in him or them that have the use,
in such quality, manner, form and condition, as they had before in the use."
The statute thus executes the use; that is, it conveys the possession to the
use, and transfers the use to the possession; and, in this manner, making
the cestui que use complete owner of the lands and tenements, as well at law
as in equity. 2 Bl. Com. 333; 1 Saund. 254, note 6.
5. A modern use has been defined to be an estate of right, which is
acquired through the operation of the statute of 27 Hen. VIII., c. 10; and
which, when it may take effect according to the rules of the common law, is
called the legal estate; and when it may not, is denominated a use, with a
term descriptive of its modification. Cornish on Uses, 35.
6. The common law judges decided, in the construction of this statute,
that a use could not be raised upon a use; Dyer, 155 A; and that on a
feoffment to A and his heirs, to the use of B and his heirs, in trust for C
and his heirs, the statute executed only the first use, and that the second
was a mere nullity. The judges also held that, as the statute mentioned only
such persons as were seised to the use of others, it did not extend to a
term of years, or other chattel interests, of which a termor is not seised
but only possessed. Bac. Tr. 336; Poph. 76; Dyer, 369; 2 Bl. Com. 336; The
rigid literal construction of the statute by the courts of law again opened
the doors of the chancery courts. 1 Madd. Ch. 448, 450.
USE, civil law. A right of receiving so much of the natural profits of a
thing as is necessary to daily sustenance; it differs from usufruct, which
is a right not only to use but to enjoy. 1 Browne's Civ. Law, 184; Lecons
Elem. du Dr. Civ. Rom. Sec. 414, 416.
USE AND OCCUPATION. When a contract has been made, either by express or
implied agreement, for the use of a house or other real estate, where there
was no amount of rent fixed and ascertained, the landlord can recover a
reasonable rent in an action of assumpsit for use and occupation. 1 Munf. R.
407; 2 Aik. R. 252; 7 J. J. Marsh. 6; 4 Day, R. 228; 13 John. R. 240; 13
John. R. 297; 4 H. & M. 161; 15 Mass. R. 270; 2 Whart. R. 42; 10 S. & R.
251.
2. The action for use and occupation is founded not on a privity of
estate, but on a privity of contract; 3 S. & R. 500; C. & N. 19; therefore
it will not lie where the possession is tortious. 2 N. & M. 156; 3 S. & R.
500; 6 N. H. Rep. 298; 6 Ham. R. 371; 14 Mass. R. 95. See Arch. L. & T. 148.
USEFUL. That which may be put into beneficial practice.
2. The patent act of congress of July 4, 1836, sect. 6, in describing
the subjects of patents, mentions "new and useful art," and "new and useful
improvement." To entitle the inventor to a patent, his invention must, to a
certain extent, be beneficial to the community, and not be for an unlawful
object, or frivolous, or insignificant. 1 Mason, 182; 1 Pet. C. C. R. 322; 1
Bald. 303; 14 Pick. 217; Paine, 203.
USHER. This word is said to be derived from a huissier, and is the name of
an inferior officer in some English courts of law Archb. Pr. 25.
USUCAPTION, civil law. The manner of acquiring property in things by the
lapse of time required by law.
2. It differs from prescription, which has the same sense, and means,
in addition, the manner of acquiring and losing, by the effect of time
regulated by law, all sorts of rights and actions. Merl. Repert. mot
Prescription, tom. xii. page 671; Ayl. Pand. 320; Wood's Inst. Civ. Law,
165; Lecons Elem. du Dr. Rom. Sec. 437; 1 Browne's Civ. Law, 264, n.;
vattel, ii. 2, c. 2, Sec. 140.
USUFRUCT, civil law. The right of enjoying a thing, the property of which is
vested in another, and to draw from the same all the profit, utility and
advantage which it may produce, provided it be without altering the
substance of the thing.
2. The obligation of not altering the substance of the thing, however,
takes place only in the case of a complete usufruct.
3. Usufructs are of two kinds; perfect and imperfect. Perfect usufruct,
which is of things which the usufructuary can enjoy without altering their
substance, though their substance may be diminished or deteriorated
naturally by time or by the use to which they are applied; as a house, a
piece of land, animals, furniture and other movable effects. Imperfect or
quasi usufruct, which is of things which would be useless to the
usufructuary if be did not consume and expend them, or change the substance
of them, as money, grain, liquors. Civ. Code of Louis. art. 525, et seq.; 1
Browne's Civ. Law, 184; Poth. Tr. du Douaire, n. 194; Ayl. Pand. 319; Poth.
Pand. tom. 6, p. 91; Lecons El. du Dr. Civ. Rom. 414 Inst. lib. 2, t. 4;
Dig. lib. 7, t. 1, 1. 1 Code, lib. 3, t. 33; 1 Bouv. Inst. Theolo. pg. 1, c.
1, art. 2, p. 76.
USUFRUCTUARY, civil law. One who has the right and enjoyment of an usufruct.
2. Domat, with his usual clearness, points out the duties of the
usufructuary, which are, 1. To make an inventory of the things subject to
the usufruct, in the presence of those having an interest in them. 2. To
give security for their restitution; when the usufruct shall be at an end.
3. To take good care of the things subject to the usufruct. 4. To pay all
taxes, and claims which arise while the thing is in his possession, as a
ground-rent. 5. To keep the thing in repair at his own expense. Lois Civ.
liv. 1, t. 11, s. 4. See Estate for life.
USURPATION, torts. The unlawful assumption of the use of property which
belongs to another; an interruption or the disturbing a man in his right and
possession. Toml. Law Dict. h.t.
2. According to Lord Coke, there are two kinds of usurpation. 1. When a
stranger, without right, presents to a church, and his clerk is admitted;
and, 2. When a subject uses a franchise of the king without lawful
authority. Co. Litt. 277 b.
USURPATION, government. The tyrannical assumption of the government by force
contrary to and in violation of the constitution of the country.
USURPED POWER, insurance. By an article of the printed proposals which are
considered as making a part of the contract of insurance it is provided,
that "No loss of damage by fire, happening by any invasion, foreign enemy,
or any military or usurped power whatsoever will be made good by this
company." Lord Chief J. Wilmot, Mr. Justice Clive, and Mr. Justice Bathurst,
against the opinion of Mr. Justice Gould, determined that the true import of
the words usurped power in the proviso, was an invasion, from abroad, or an
internal rebellion, where armies are drawn up against each other, when the
laws are silent, and when the firing of towns becomes unavoidable; but that
those words could not mean the power of a common mob. 2 Marsh. Ins. 390.
USURPER, government. One who assumes the right of government by force,
contrary to and in violation of the constitution of the country. Toull. Dr.
Civ. n. 32. Vide Tyranny,
USURY, contracts. The illegal profit which is required and received by the
lender of a sum of money from the borrower for its use. In a more extended
and improper sense, it is the receipt of any profit whatever for the use of
money: it is only in the first of these senses that usury will be here
considered.
2. To constitute a usurious contract the following are the requisites:
1. A loan express or implied. 2. An agreement that the money lent shall be
returned at all events. 3. Not only that the money lent shall be returned,
but that for such loan a greater interest than that fixed by law shall be
paid.
3.-1. There must be a loan in contemplation of the parties; 7 Pet. S.
C. Rep. 109, 1 Clarke R. 252; and if there be a loan, however disguised, the
contract will be usurious, if it be so in other respects. Where a loan was
made of depreciated bank notes to be repaid in sound funds, to enable the
borrower to pay a debt he owed dollar for dollar, it was considered as not
being usurious. 1 Meigs, R. 585. The bona fide sale of a note, bond or other
security at a greater discount than would amount to legal interest, is not
per se, a loan, although the note may be endorsed by the seller, and he
remains responsible. 9 Pet. S. C. Rep. 103; 1 Clarke, R. 30. But, if a note,
bond; or other security be made with a view to evade the laws of usury, and
afterwards sold for a less amount than the interest, the transaction will be
considered a loan; 2 Johns. Cas. 60; 3 Johns. Cas. 66; 15 Johns. R. 44 2
Dall. 92; 12 Serg. & Rawle, 46 and a sale of a man's own note, endorsed by
himself, will, be considered a loan. lt is a general rule that a contract,
which, in its inception, is unaffected by usury, can never be invalidated by
any subsequent usurious transaction. 7 Pet. S. C. Rep. 109. On the contrary,
when the contract was originally usurious, and there is a substitution by a
new contract, the latter will generally be considered usurious. 15 Mass. R.
96.
4.-2. There must be a contract for the return of the money at all
events; for if the return of the principal with interest, or of the
principal only, depend upon a contingency, there can be no usury; but if the
contingency extend only to interest, and the principal be beyond the reach
of hazard, the lender will be guilty of usury, if he received interest
beyond the amount allowed by law. As the principal is put to hazard in
insurances, annuities and bottomry, the parties may charge and receive
greater interest than is allowed by law in common cases, and the transaction
will not be usurious.
5.-3. To constitute usury the borrower must not only be obliged to
return the principal at all events, but more than lawful interest: this part
of the agreement must be made with full consent and knowledge of the
contracting parties. 3 Bos. & Pull, 154. When the contract is made in a
foreign country the rate of interest allowed by the laws of that country may
be charged, and it will not be usurious, although greater than the amount
fixed by law in this. Story, Confl. of Laws, Sec. 292. Vide, generally, Com.
Dig. h.t.; Bac. Ab. h.t.; 8 Com. Dig. h.t.; Lilly's Reg. h.t.; Dane's Ab.
h.t.; Petersdorff's Ab. h.t.; Vin. Ab. h.t.; 2 Bl. Com. 454; Comyn on Usury,
passim; 1 Pt. S. C Rep. Index, h.t.; 1 Supp. to Yes. jr. 307, 337; Yelv. 47;
1 Ves. jr. 527; 1 Saund 295, note 1; Poth. h.t.; and the article Anatocism;
Interest.
UTERINE BROTHER, domestic relations. A brother by the mother's side.
UTI POSSIDETIS. This phrase, which means as you possess, is used in
international law to signify that the parties to a treaty are to retain
possession of what they have acquired by force during the war.
TO UTTER, crim. law. To offer, to publish.
2. To utter and publish a counterfeit note is to assert and declare,
directly or indirectly, by words or actions, that the note offered is good.
It is not necessary that it should be passed in order to complete the
offence of uttering. 2. Binn. R. 338, 9. It seems that reading out a
document, although the party refuses to show it, is a sufficient uttering.
Jebb's Ir. Cr. Cas. 282. Vide East, P. C. 179; Leach, 251; 2 Stark. Ev. 378
1 Moody, C. C. 166; 2 East, P. C. 974 Russ. & Ry. 113; 1 Phil. Ev. Index,
h.t.; Roscoe's Cr. Ev. 301. The merely showing a false instrument with
intent to gain a credit when there was no intention or attempt made to pass
it, it seems would not amount to an uttering. Russ. & Ry. 200. Vide Ringing
the charge.
UTTER BARRISTER, English law, Those barristers who plead without the bar,
and are distinguished from benchers, or those who have been readers and who
are allowed to plead within the bar, as the king's counsel are. The same as
ouster barrister. See Barrister.
UXOR, civil law. A woman lawfully married.
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