


                                     W. 

WADSET, Scotch law. A right, by which lands, or other heritable subjects, 
are impignorated by the proprietor to his creditor in security of his debt; 
and, like other heritable rights, is perfected by seisin. 
     2. Wadsets, by the present practice, are commonly made out in the form 
of mutual contracts, in which one party sells the land, and the other 
grants, the right of reversion. Ersk. Pr. L. Scot., B. 2, t. 8, s. 1, 2. 
     3. Wadsets are proper or improper. Proper, where the use of the land 
shall go for the use of the money. Improper, where the reverser agrees to 
make up the deficiency; and where it amounts to more, the surplus profit of 
the land is applied to the extinction of the principal. Id. B. 2, t. 8, s. 
12, 13. 

WADSETTER, Scotch law. A creditor to whom a wadset is made. 

TO WAGE, contracts. To give a pledge or security for the performance of 
anything; as to wage or gage deliverance; to wage law, &c. Co. Litt. 294. 
This word is but little used. 

WAGER OF BATTEL. A superstitious mode of trial which till lately disgraced 
the English law. 
     2. The last case of this kind was commenced in the year 1817, but not 
proceeded in to judgment; and at the next session of the British parliament 
an act was passed to abolish appeals of murder, treason, felony or other 
offences, and wager of battel, or joining issue or trial by battel in writs 
of right. 59 Geo. III. c. 46. For the history of this species of trial the 
reader is referred to 4 Bl. Com. 347; 3 Bl. Com. 337; Encyclopedie, Gage de 
Bataille; Steph. Pl. 122, and App. note 35. 

WAGER OF LAW, Eng. law. When an action of debt is brought against a man upon 
a simple contract, and the defendant pleads nil debit, and concludes his 
plea with this formula, "And this he is ready to defend against him the said 
A B and his suit, as the court of our lord the king here shall consider," 
&c., he is said to wage his law. He is then required to swear he owes the 
plaintiff nothing, and bring eleven compurgators who will swear they believe 
him. This mode of trial, is trial by wager of law. 
     2. The wager of law could only be had in actions of debt on simple 
contract, and actions of detinue; in consequence of this right of the 
defendant, now actions on simple contracts are brought in assumpsit, and 
instead of bridging detinue, trover has been substituted. 
     3. If ever wager of law had any existence in the United States, it is 
now completely abolished. 8 Wheat. 642. Vide Steph. on Plead. 124, 250, and 
notes, xxxix.; Co. Entr. 119; Mod. Entr. 179; Lilly's Entr. 467; 3 Ch it. 
Pl. 497; 13 Vin. Ab. 58; Bac. Ab. h.t.; Dane's Ab. Index, h.t. For the 
origin of this form of trial, vide Steph. on Pl. notes xxxix; Co. Litt. 294, 
5 3 Bl. Com. 341. 

WAGER POLICY, contracts. One made when the insured has no insurable 
interest. 
     2. It has nothing in common with insurance but the name and form. It is 
usually in such terms as to preclude the necessity of inquiring into the 
interest of the insured; as, "interest or no interest," or, "without further 
proof of interest than the policy." 
     3. Such contracts being against the policy of the law are void. 1 
Marsh. Ins. 121 Park on Ins. Ind. h.t.; Wesk. Ins. h.t.; See 1 Sumn. 451; 2 
Mass. 1 3 Caines, 141. 

WAGERS. A wager is a bet a contract by which two parties or more agree that 
a certain sum of money, or other thing, shall be paid or delivered to one of 
them, on the happening or not happening of an uncertain event. 
     2. The law does not prohibit all wagers. 1 Browne's Rep. 171 Poth. du 
Jeu, n. 4. 
     3. To restrain wagers within the bounds of justice the following 
conditions must be observed: 1. Each of the parties must have the right to 
dispose of the thing which is the object of the wager. 2. Each must give a 
perfect and full consent to the contract, 3. There must he equality between 
the parties. 4. There must be good faith between them. 5. The wager must not 
be forbidden by law. Poth. du 
     4. In general, it seems that a wager is legal and maybe enforced in a 
court of law 3 T. R. 693, if it be not, 1st, Contrary to public policy, or 
immoral; or if it do not in some other respect tend to the detriment of the 
public. 2d. If it do not affect the interest, feelings, or character of a 
third person. 
     5.-1. Wagers on the event of an election laid before the poll is open; 
1 T. R. 56. 4 Johns. 426; 4 Harr. & McH. 284; or after it is closed; 8 
Johns. 454, 147; 2 Browne's Rep. 182; are unlawful. And wagers are against 
public policy if they are in restraint of marriage; 10 East, R. 22; made as 
to the mode of playing an illegal game; 2 H. Bl. 43; 1 Nott & McCord, 180; 7 
Taunt. 246; or on an abstract speculative question of law or judicial 
practice, not arising out of circumstances in which the parties have a real 
interest. 12 East, R. 247, and Day's notes, sed vide Cowp. 37. 
     6.-2. Wagers as to the sex of an individual Cowp. 729; or whether an 
unmarried woman had borne or would have a child; 4 Campb. 152, are illegal; 
as unnecessarily leading to painful and indecent considerations. The supreme 
court of Pennsylvania have laid it down as a rule, that every bet about the 
age, or height, or weight, or wealth, or circumstances, or situation of any 
person, is illegal; and this whether the subject of the bet be man, woman, 
or child, married or single, native or foreigner, in this country or abroad. 
1 Rawle, 42. And it seems that a wager between two coach-proprietors, 
whether or not a particular person would go by one of their coaches is 
illegal, as exposing that person to inconvenience. 1 B. & A. 683. 
     7. In the case even of a legal wager, the authority of a stakeholder, 
like that of an arbitrator, may be rescinded by either party before the 
event happens. And if after his authority has been countermanded, and the 
stake has been demanded, he refuse to deliver it, trover or assumpsit for 
money had and received is maintainable. 1 B. & A. 683. And where the wager 
is in its nature illegal, the stake may be recovered, even after the event, 
on demand made before it has been paid over. 4 Taunt. 474; 5 T. R. 405; sed 
vide 12 Johns. 1. See further on this subject, 7 Johns. 434; 11 Johns. 23; 
10 Johns. 406,468; 12 Johns. 376; 17 Johns. 192; 15 Johns. 5; 13 Johns. 88; 
Mann. Dig. Gaming; Harr. Dig. Gaining; Stakeholder. 

WAGES, contract. A compensation given to a hired person for his or her 
services. As to servants wages, see Chitty, Contr. 171 as to sailors' wages, 
Abbott on Ship. 473; generally, see 22. Vin. Abr. 406; Bac. Abr. Master, 
&c., H; Marsh. Ins. 89; 2 Lill. Abr. 677; Peters' Dig. Admiralty, pl. 231, 
et seq. 

WAIFS. Stolen goods waived or scattered by a thief in his flight in order to 
effect his escape. 
     2. Such goods by the English common law belong to the king. 1 Bl. Com. 
296; 5 Co. 109; Cro. Eliz. 694. This prerogative has never been adopted here 
against the true owner, and never put in practice against the finder, though 
against him there would be better reason for adopting it. 2 Kent, Com. 292. 
Vide Com. Dig. h.t.; 1 Bro. Civ. Law, 239, n. 

WAIVE. A term applied to a woman as outlaw is applied to a man. A man is an 
outlaw, a woman is a waive. T. L., Crabb's Tech. Dict. h.t. 

To WAIVE. To abandon or forsake a right. 
     2. To waive signifies also to abandon without right; as "if the felon 
waives, that is, leaves any goods in his flight from those who either pursue 
him, or are apprehended by him so to do, he forfeits them, whether they be 
his own goods, or goods stolen by him." Bac. Ab. Forfeiture, B. 

WAIVER., The relinquishment or refusal to accept of a right. 
     2. In practice it is required of every one to take advantage of his 
rights at a proper time and, neglecting to do so, will be considered as a 
waiver. If, for example, a defendant who has been misnamed in the writ and 
declaration, pleads over, he cannot afterwards take advantage of the error 
by pleading in abatement, for his plea amounts to a waiver. 
     3. In seeking for a remedy the party injured may, in some instances, 
waive a part of his right, and sue for another; for example, when the 
defendant has committed a trespass on the property of the plaintiff, by 
taking it away, and afterwards he sells it, the injured party may waive the 
trespass, and bring an action of assumpsit for the recovery of the money 
thus received by the defendant. 1 Chit. Pl. 90. 
     4. In contracts, if, after knowledge of a supposed fraud, surprise or 
mistake, a party performs the agreement in part, he will be considered as 
having waived the objection. 1 Bro. Parl. Cas. 289. 
     5. It is a rule of the civil law, consonant with reason, that any one 
may renounce or waive that which has been established in his favor: Regula 
est juris antique omnes licentiam habere his quae pro se introducta sunt, 
renunciare. Code 2, 3, 29. As to what will amount to a waiver of a 
forfeiture, see 1 Conn. R. 79; 7 Conn. R. 45; 1 Jo Cas. 125; 8 Pick. 292; 2 
N. H, Rep. 120 163; 14 Wend. 419; 1 Ham. R. 21. Vide Verdict. 

WAKENING, Scotch law. The revival of an action. 
     2. An action is said to sleep, when it lies over, not insisted on for a 
year in which case it is suspended. 4, t. 1, n. 33. With us a revival is by 
scire facias. (q.v.) 

WALL. A building or erection so well known as to need no definition. In 
general a man may build a wall on any part of his estate, to any height he 
may deem proper, and in such form as may best accommodate him; but he must 
take care not to erect a wall contrary to the local regulations, nor in such 
a manner as to be injurious to his neighbors. See Dig. 50, 16, 157. Vide 
Party Wall. 

WANTONNESS, crim. law. A licentious act by one man towards the person of 
another without regard to his rights; as, for example, if a man should 
attempt to pull off another's hat against his will in order to expose him to 
ridicule, the offence would be an assault, and if he touched him it would 
amount to a battery. (q.v.) 
     2. In such case there would be no malice, but the wantonness of the act 
would render the offending party liable to punishment. 

WAPENTAKE. An ancient word used in England as synonymous with hundred. 
(q.v.) Fortesc. De Laud. ch. 24. 

WAR. A contention by force; or the art of paralysing the forces of an enemy. 
     2. It is either public or private. It is not intended here to speak of 
the latter. 
     3. Public war is either civil or national. Civil war is that which is 
waged between two parties, citizens or members of the same state or nation. 
National war is a contest between two or more independent nations) carried 
on by authority of their respective governments. 
     4. War is not only an act, but a state or condition, for nations are 
said to be at war not only when their armies are engaged, so as to be in the 
very act of contention, but also when, they have any matter of controversy 
or dispute subsisting between them which they are determined to decide by 
the use of force, and have declared publicly, or by their acts, their 
determination so to decide it. 
     5. National wars are said to be offensive or defensive. War is 
offensive on the part of that government which commits the first act of 
violence; it is defensive on the part of that government which receives such 
act; but it is very difficult to say what is the first act of violence. If a 
nation sees itself menaced with an attack, its first act of violence to 
prevent such attack, will be considered as defensive. 
     6. To legalize a war it must be declared by that branch of the 
government entrusted by the constitution with this power. Bro. tit., 
Denizen, pl. 20. And it seems it need not be declared by both the 
belligerent powers. Rob. Rep. 232. By the constitution of the United States, 
art. 1, s. 7, congress are invested with power "to declare war, grant 
letters of marque and reprisal, and make rules concerning captures on land 
and water; and they have also the power to raise and support armies, and to 
provide and maintain a navy." See 8 Cranch, R. 110, 154; 1 Mason, R. 79, 81; 
4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf. Inst. B. 1, 
c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1; Lee on Capt. c. 1; Chit. 
Law of Nat. 28; Marten's Law of Nat. B. 8, c. 2; Phil. Ev. Index, h., t. 
Dane's Ab. Index, h. i.; Com. Dig. h.t. Bac. Ab. Prerogative, D 4; Merl. 
Repert. mot Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, Sec. 1; Mann. Com. B. 
3, c. 1. 

WARD, domestic relations. An infant placed by authority of law under the 
care of a guardian. 
     2. While under the care of a guardian a ward can make no contract 
whatever binding upon him, except for necessaries. When the relation of 
guardian and ward ceases, the latter is entitled to have an account of the 
administration of his estate from the former. During the existence of this 
relation, the ward is under the subjection of his guardian, who stands in 
loco parentis. 

WARD, a district. Most cities are divided for various purposes into 
districts, each of which is called a ward. 

WARD, police. To watch in the day time, for the purpose of preventing 
violations of the law. 
     2. It is the duty of all police officers and constables to keep ward in 
their respective districts. 

WARD IN CHANCERY. An infant who is under the superintendence of the 
chancellor. 

WARDEN. A guardian; a keeper. This is the name given to various officers: 
as, the warden of the prison; the wardens of the port of Philadelphia; 
church wardens. 

WARDSHIP, Eng. law. Wardship was the right of the lord over the person and 
estate of the tenant, when the latter was under a certain age. When a tenant 
by knight's service died, and his heir was under age, the lord was entitled 
to the custody of the person and the lands of the heir, without any account, 
until the ward, if a male, should arrive at the age of twenty-one years, 
and, if a female, at eighteen. Wardship was also incident to a tenure in 
socage, but in this case, not the lord, but the nearest relation to whom the 
inheritance could not descend, was entitled to the custody of the person and 
estate of the heir till he attained the age of fourteen years; at which 
period the wardship ceased and the guardian was bound, to account. Wardship 
in copyhold estates partook of that in chivalry and that guardian like the 
latter, he was required lib. 7, c. 9; Grand Cout. c. 33; Reg. Maj. c. 42. 

WAREHOUSE. A place adapted to the reception and storage of goods and 
merchandise. 9 Shepl. 47. 
     2. The act of congress of February 25, 1799, 1 Story's Laws U. S. 565, 
authorizes the purchase of suitable warehouses, where goods may be unladen 
and deposited from any vessel which shall be subject to quarantine or other 
restraint, pursuant to the health laws of any state, at such convenient 
place or places as the safety of the revenue and the observance of such 
health laws may require. 
     3. And the act of 2d March, 1799, s. 62, 1 Story's Laws U. S. 627, 
authorizes an importer of goods, instead of, securing the duties to be paid 
to the United States, to deposit so much of such goods as the collector may 
in his judgment deem sufficient security for the duties and the charges of 
safe keeping, for which the importer shall give his own bond; which goods 
shall be kept by the collector with due care, at the expense and risk of the 
party on whose account they have been deposited, until the sum specified, in 
such bond becomes due; when, if such sum shall not be paid, so much of such 
deposited goods shall be sold at public sale, and the proceeds, charges of 
safe keeping and sale being deducted, shall be applied to the payment of 
such sum, rendering the overplus, and the residue of the goods so deposited, 
if there be any, to the depositor or his representatives. 

WAREHOUSEMAN. A warehouseman is a person who receives goods and merchandise 
to be stored in his warehouse for hire. 
     2. He is bound to use ordinary care in preserving such goods and 
merchandise, and his neglect to do so will render him liable to the owner. 
Peake, R. 114; 1 Esp. R. 315; Story, Bailm. Sec. 444; Jones' Bailm. 49, 96, 
97; 7 Cowen's R. 497; 12 John. Rep. 232; 2 Wend. R. 593; 9 Wend. R. 268; 1 
Stew. Rep. 284. The warehouseman's liability commences as soon as the goods 
arrive, and the crane of the warehouse is applied to raise them into the 
warehouse. 4 Esp. R. 262. 

WARRANDICE, Scotch law. A clause in a charter of heritable rights by which 
the grantor obliges himself, that the right conveyed shall be effectual to 
the receiver. It is either personal or real. A warranty. Ersk. Pr. B. 2, t. 
3, n. 11. 

WARRANT, crim. law, Practice. A writ issued by a justice of the peace or 
other authorized officer, directed to a constable or other proper person, 
requiring him to arrest a person therein named, charged with committing some 
offence, and to bring him before that or some other justice of the peace. 
     2. It should regularly be made under the hand and seal of the justice 
and dated. No warrant ought to be issued except upon the oath or affirmation 
of a witness charging the defendant with, the offence. 3 Binn. Rep. 88. 
     3. The reprehensible practice of issuing blank warrants which once 
prevailed in England, was never adopted here. 2 Russ. on Cr. 512; Ld. Raym. 
546; 1 Salk. 175; 1 H. Bl. R. 13; Doct. Pl. 529; Wood's Inst. 84; Com. Dig. 
Forcible Entry, D 18, 19; Id. Imprisonment, H 6,; Id. Pleader, 3 K 26; Id. 
Pleader, 3 M 23. Vide Search warrant. 
     4. A bench warrant is a process granted by a court authorizing a proper 
officer to apprehend and bring before it some on charged with some contempt, 
crime or misdemeanor. See Bench warrant. 
     5. A search warrant is a process issued by a competent court or officer 
authorizing an officer therein named or described, to examine a house or 
other place for the purpose of finding goods which it is alleged have been 
stolen. See Search warrant. 

WARRANT OF ATTORNEY, practice. An instrument in writing, addressed to one or 
more attorneys therein named, authorizing them generally to appear in any 
court, or in some specified court, on behalf of the person giving it, and to 
confess judgment in favor of some particular person therein named, in an 
action of debt, and usually containing a stipulation not to bring any writ 
of error, or file a bill in equity, so as to delay him. 
     2. This general authority is usually qualified by reciting a bond which 
commonly accompanies it, together with the condition annexed to it, or by a 
written defeasance stating the terms upon which it was given, and 
restraining the creditor from making immediate use of it. 31. In form it is 
generally by deed; but it seems, it need not necessarily be so. 5 Taunt. 
264. 
     4. This instrument is given to the creditor as a security. Possessing 
it, he may sign judgment and issue an execution, without its being necessary 
to wait the termination. of an action. Vide 14 East, R. 576; 2 T. R. 100; 1 
H. Bl. 75; 1 Str 20; 2 Bl. Rep. 1133; 2 Wils. 3; 1 Chit. Rep. 707. 
     5. A warrant of attorney given to confess a judgment is not revocable, 
and, notwithstanding a revocation, judgment may be entered upon it. 2 Ld. 
Raym. 766, 850; 1 Salk. 87; 7 Mod. 93; 2 Esp, Rep. 563. The death of the 
debtor is, however, generally speaking, a revocation. Co. Litt. 62 b; 1 
Vent. 310. Vide Hall's Pr. 14, n. 
     6. The virtue of a warrant of attorney is spent by the entry of one 
judgment, and a second judgment entered on the same warrant is irregular. 1 
Penna. R. 245; 6 S. & R. 296: 14 S. & R. 170; Addis. R. 267; 2 Browne's R. 
321, 3 Wash. C. C. R. 558. Vide, generally, 18 Eng. Com. Law Rep. 94, 96, 
179, 209; 1 Salk. 402; 3 Vin. Ab. 291; 1 Sell. Pr. 374; Com. Dig. Abatement, 
E 1, 2; Id. Attorney, B 7, 8; 2 Archbold's Pr. 12; Bing. on Judgments, 38; 
Grah. Pr. 618; l Crompt. Pr. 316; 1 Troub. & Haly's Pr. 96. 
     7. A warrant of attorney differs from a cognovit, actionem. (q.v.) See 
Metc. & Perk. Dig. Bond, IV. 

WARRANTEE. One to whom a warranty is made. Touchst. 181. 

WARRANTIA CHARTAE. An ancient and now obsolete writ, which was issued when a 
man was enfeoffed of land with warranty, and then he was sued or impleaded 
in assize or other action, in which he could not vouch or call to warranty. 
     2. It was brought by the feoffor pending the first suit against him, 
and had this valuable incident, that when the warrantor was vouched, and 
judgment passed against the tenant, the latter obtained judgment 
simultaneously against the warrantor, to recover other lands of equal value. 
Termes de la Ley, h.t.; F. N. B. 134; Dane's Ab. Index, h.t.; Rand. 141, 
148, 156; 4 Leigh's R. 132; 11 S. & R. 115 Vin. Ab. h.t. Co. Litt. 100; Hob. 
22, 217. 

WARRANTOR. One who makes a warranty. Touchst, 181. 

WARRANTY, contracts. This word has several significations, as it is applied 
to the conveyance and sale of lands, to the sale of goods, and to the 
contract of insurance. 
     2.-1. The ancient law relating to warranties of land was full of 
subtleties and intricacies; it occupied the attention of the most eminent 
writers on the English law, and it was declared by Lord Coke, that the 
learning of warranties was one of the most curious and cunning learnings of 
the law; but it is now of little use even in England. The warranty was a 
covenant real, whereby the grantor of an estate of freehold, and his heirs, 
were bound to warrant the title; and either upon voucher, or judgment in, a 
writ of warrantia chartae, to yield other lands to the value of those from 
which there had been an eviction by paramount title Co. Litt. 365; Touchst.; 
181 Bac. Ab. h.t.; the heir of the warrantor was bound only on condition 
that he had, as assets, other lands of equal value by descent. 
     3. Warranties were lineal and collateral. 
     4. Lineal, when the heir derived title to the land warranted, either 
from or through the ancestor who made the warranty. 
     5. Collateral warranty was when the heir's title was not derived from 
the warranting ancestor, and yet it barred the heir from claiming the land 
by any collateral title, upon the presumption that he might thereafter have 
assets by descent from or through the ancestor; and it imposed upon him the 
obligation of giving the warrantee other lands, in case of eviction, 
provided he had assets. 2 Bl. Com. 301, 302. 
     6. The statute of 4 Anne, c. 16, annulled these collateral warrantees, 
which bid become a great grievance. Warranty in its original form, it is 
presumed, has never been known in the United States. The more plain and 
pliable form of a covenant has been adopted in its place and this covenant, 
like all other covenants, has always been held to sound in damages which 
after judgment may be recovered out of the personal or real estate, as in 
other cases. Vide 4 Kent, Com. 457; 3 Rawle's R. 67, n.; 2 Wheat. R. 45; 9 
Serg. & Rawle, 268; 11 Serg. & Rawle, 109; 4 Dall. Rep. 442; 2 Saund. 38, n. 
5. 
     7.-2. Warranties in relation, to the sale of personal chattels are of 
two kinds, express or implied. 
     8. An express warranty is one by which the warrantor covenants or 
undertakes to insure that the thing which is the subject of the. contract, 
is or is not as there mentioned; as, that a horse is sound; that he is not 
five years old. 
     9. An implied warranty is one which, not being expressly made, the law 
implies by the fact of the sale; for example, the seller is, understood to 
warrant the title of goods be sells, when they are in his possession at the 
time of the sale; Ld. Raym. 593; 1 Salk.. 210; but if they are not then in 
his possession, the rule of caveat emptor applies, and the buyer purchases 
at his risk. Cro. Jac. 197. 
     10. In general there is no implied warranty of the quality of the goods 
sold. 2 Kent, Com. 374; Co. Litt. 102, a; 2 Black Comm. 452; Bac. Abr. 
Action on the case E; 2 Com. Contr. 263; Dougl. 20; 2 East, 31 4; Id. 448, 
n.; Ross on Vend. c. 6; 1 Johns. R. 274; 4 Conn. R. 428; 1 Dall. Rep. 91; 10 
Mass. R. 197; 20 Johns. Rep., 196; 3 Yeates, R. 262; 1 Pet. Rep. 317; 12 
Serg. & Rawle, 181; 1 Hard. Kent. Rep. 531; 1 Murphy, Rep. 138; 2 Id. 245; 4 
Haywood's Term. R. 227; 2 Caines' Rep. 48. The rule of the civil law was, 
that a fair price implied a warranty of title; Dig. 21, 2, 1; this rule, has 
been adopted in Louisiana; Code, art. 247 7; and in South Carolina. 1 Bay, 
R. 324; 2 Bay, R. 380 1 Const. R. 182; 2 Const. R. 353. Vide Harr. Dig. 
Sale, II. 8; 12 East, R. 452. 
     11.-3. In the contract of insurance, there are certain warranties which 
are inducements to the insurer to enter into it. A warranty of this kind is 
a stipulation or agreement on the part of the insured, in the nature of a 
condition precedent. It may be affirmative; as where the insured undertakes 
for the truth of some positive allegation: as, that the thing insured is 
neutral property: or, it may be promissory; as, that the ship shall sail on 
or before a given day. 6 N. S. 53. 
     12. Warranties are also express or implied. An express warranty is a 
particular stipulation introduced into the written contract, by the 
agreement of the parties; an implied warranty is an agreement which 
necessarily results from the nature of the contract: as, that the ship shall 
be seaworthy when she sails on the voyage insured. 
     13. The warranty being in the nature of a condition precedent, it is to 
be performed by the insured, before he can demand the performance of the 
contract on the part of the insurer. Marsh. Inst. B. 1, c. 9. See, 
generally, Bouv. Inst. Index, h.t. 

WARRANTY, VOUCHER TO, practice. A warranty is a contract real, annexed to 
lands and tenements, whereby a man is bound to defend such lands and 
tenements from another person; and in case of eviction by title paramount, 
to give him lands of equal value. 
     2. Voucher to warranty is the calling of such warrantor into court by 
the party warranted, (when tenant in a real action brought for recovery of 
such lands,) to defend the suit for him; Co. Litt. 101, b; Com. Dig. 
Voucher, A 1; Booth, 43 2 Saund. 32, n. 1; and the time of such voucher is 
after the demandant has counted. It lies in most real and mixed actions, but 
not in personal. Where the voucher has been made and allowed by the court, 
the vouchee either voluntarily appears, or there issues a judicial writ 
(called a summons ad warrantizandum,) commanding the sheriff to summon him. 
Where he, either voluntarily or in obedience to this writ, appears and 
offers to warrant the land to the tenant, it is called entering into the 
warranty; after which he is considered as tenant in the action, in the place 
of the original tenant. The demandant then counts against him de novo, the 
vouchee pleads to the new count, and the cause proceeds to issue. 2 Inst. 
241 a; 2 Saund. 32, n. 1; Booth, 46. 
     3. Voucher of warranty is, in the present rarity of real actions, 
unknown in practice. Steph. Plead. 85. 

WASTE. A spoil or destruction houses, gardens, trees, or other corporeal 
hereditaments, to the disherison of him that hath the remainder or reversion 
in fee simple or fee tail 2 Bl. Comm. 281. 
     2. The doctrine of waste is somewhat different in this country from 
what it is in England. It is adapted to our circumstances. 3 Yeates, R. 261; 
4 Kent, Com. 76; Walk. Intr. 278; 7 John. Rep. 227; 2 Hayw. R. 339; 2 Hayw. 
R. 110; 6 Munf. R. 134; 1 Rand. Rep. 258; 6 Yerg. Rep. 334. Waste is either 
voluntary or permissive. 
     3.-Sec. 1. Voluntary waste. A voluntary waste is an act of commission, 
as tearing down a house. This kind of waste is committed in houses, in 
timber, and in land. It is committed in houses by removing wainscots, 
floors, benches, furnaces, window-glass, windows, doors, shelves, and other 
things once fixed to the freehold, although they may have been erected by 
the lessee himself, unless they were erected for the purposes of trade. See 
Fixtures; Bac. Ab. Waste, C 6. And this kind of waste may take place not 
only in pulling down houses, or parts of them, but also in changing their 
forms; as, if the tenant pull down a house and erect a new one in the place, 
whether it be larger or smaller than the first; 2 Roll. Ab. 815, 1. 33; or 
convert a parlor into a stable; or a grist-mill into a fulling-mill; 2 Roll. 
Abr. 814, 815; or turn two rooms into one. 2 Roll. Ab. 815, 1. 37. The 
building of a house where there was none before is said to be a waste; Co. 
Litt. 53, a; and taking it down after it is built, is a waste. Com. Dig. 
Waste, D 2. It is a general rule that when a lessee has annexed anything to 
the freehold during the term, and afterwards takes it away, it is waste. 3 
East, 51. This principle is established in the French law. Lois des Bit. 
part. 2, 
     3, art. 1; 18 Toull. n. 457. 
     4. But at a very early period several exceptions were attempted to be 
made to this rule, which were at last effectually engrafted upon it in favor 
of trade, and of those vessels and utensils, which are immediately 
subservient to the purposes of trade. Ibid. 
     5. This relaxation of the old rule has taken place between two 
descriptions of persons; that is, between the landlord and tenant, and 
between the tenant for life or tenant in tail and the remainder-man or 
reversioner. 
     6. As between the landlord and tenant it is now the law, that if the 
lessee annex any chattel to the house for the purpose of his trade, he may 
disunite it during the continuance of his interest, 1 H. B. 258. But this 
relation extends only to erections for the purposes of trade. 
     7. It has been decided that a tenant for years may remove cider-mills, 
ornamental marble chimney pieces, wainscots fixed only by screws, and such 
like. 2 Bl. Com. 281, note by Chitty. A tenant of a farm cannot remove 
buildings which he has erected for the purposes of husbandry, and the better 
enjoyment of the profits of the land, though he thereby leaves the premises 
the same as when he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep. 5; 7 
Mass. Rep. 433. 
     8. Voluntary waste may be committed on timber, and in the country from 
which we have borrowed our laws, the law is very strict. In Pennsylvania, 
however, and many of the other states, the law has applied itself to our 
situation, and those acts which in England would amount to waste, are not so 
accounted here. Stark. Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild 
and uncultivated land, wholly covered with wood and timber, is leased, the 
lessee may fell a part of the wood and timber, so as to fit the land for 
cultivation, without being liable to waste, but he cannot cut down the whole 
so as permanently to injure the inheritance. And to what extent the wood and 
timber on such land may be cut down without waste, is a question of fact for 
the jury under the direction of the court. 7 Johns. R. 227. The tenant may 
cut down trees for the reparation of the houses, fences, hedges, stiles, 
gates, and the like; Co. Litt. 53, b; and for mixing and repairing all 
instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c. 
Wood's Inst. 344. The tenant may, when he is unrestrained by the terms of 
his lease, out down timber, if there  be not enough dead timber. Com. Dig 
Waste, D 5; F. N. B. 59 M. Where the tenant, by the conditions of his lease, 
is entitled to cut down timber, he is restrained nevertheless from cutting 
down ornamental trees, or those planted for shelter; 6 Ves. 419; or to 
exclude objects from sight. 16 Ves. 375. 
     9. Windfalls are the property of the landlord, for whatever is severed 
by inevitable necessity, as by a tempest, or by a trespasser, and by wrong, 
belongs to him who has the inheritance. 3 P. Wms. 268; 11 Rep. 81, Bac. Abr. 
Waste, D 2. 
     10. Waste is frequently committed on cultivated fields, orchards, 
gardens, meadows, and the like. It is proper here to remark that there is an 
implied covenant or agreement on the part of the lessee to use a farm in a 
husbandman-like manner, and not to exhaust the soil by neglectful or 
improper tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to 
convert arable to woodland and the contrary, or meadow to arable; or meadow 
to orchard. Co. Lit. 53, b. Cutting down fruit trees; 2 Roll. Abr. 817, l. 
30; although planted by the tenant himself, is waste; and it was held to be 
waste for an outgoing tenant of garden ground to plough up strawberry beds 
which be had bought of a former tenant when he entered. i Camp. 227. 
     11. It is a general rule that when lands are leased on which there are 
open mines of metal or coal or pits of gravel, lime, clay, brick, earth, 
stone, and the like, the tenant may dig out of such mines, or pits. Com. 
Dig. Waste, D 4. But he cannot open any new mines or pits without being 
guilty of waste Co. Lit. 53 b; and carrying away the soil, is waste. Com. 
Dig. Waste, D 4. 
     12.-Sec. 2. Permissive waste. Permissive waste in houses is punishable 
where the tenant is expressly bound to repair, or where he is so bound on an 
implied covenant. See 2 Esp. R. 590; 1 Esp. Rep. 277; Bac. Abr. Covenant, F. 
It is waste if the tenant suffer a house leased to him to remain uncovered 
so long that the rafters or other timbers of the house become rotten, unless 
the house was uncovered when the tenant took possession. Com. Dig. Waste, D 
2. 
     13.-Sec. 3. Of remedies for waste. The ancient writ of waste has been 
superseded. It is usual to bring case in the nature of waste instead of the 
action of waste, as well for permissive as voluntary waste. 
     14. Some decisions have made it doubtful whether an action on the case 
for permissive waste can be maintained against any tenant for years. See 1 
New Rep. 290; 4 Taunt. 764; 7 Taunt. 392; S. C. 1 Moore, 100; 1 Saund. 323, 
a, n. i. Even where the lessee covenants not to do waste, the lessor has his 
election to bring either an action on the case, or of, covenant, against the 
lessee for waste done by him during the term. 2 Bl. Rep. 1111; 2 Saund. 252, 
c. n. In an action on the case in the nature of waste, the plaintiff 
recovers only damages for the waste. 
     15. The latter action has this advantage over an action of waste, that 
it may be brought by him in reversion or remainder for life or years, as 
well as in fee or in tail; and the plaintiff is entitled to costs in this 
action, which he cannot have in an action of waste., 2 Saund. 252, n. See, 
on the subject in general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr. 
Waste; Vin. Abr. Waste; Com. Dig. Waste; Supp. to Ves. jr. 50, 325, 441; 1 
Vern. R. 23, n.; 2 Saund. 252, a, n. 7, 259, n. 11; Arch. Civ. Pl. 495; 2 
Sell. Pr. 234; 3 Bl. Com. 180, note by Chitty; Amer. Dig. Waste; Whart. Dig. 
Waste; Bouv. Inst. Index, h.t. 
     As to remedies against waste by injunction, see 1 Vern. R. 23, n.; 5 P. 
Wms. 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107, 419; 8 Ves. 70; 16 Ves. 
375; 2 Swanst. 251; 3 Madd. 498; Jacob's R. 70; Drew. on Inj. part 2, c. 1, 
p. 134. As between tenants in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132; 
3 Bro. C. C. 622; 2 Dick. 667; Bouv. Inst. Index, h.t.; and the article 
Injunction. As to remedy by writ of estrepement to prevent waste, see 
Estrepement; Woodf Landl. & T. 447; 2 Yeates, 281; 4 Smith's Laws of Penn. 
89; 3 Bl. Com. 226.  As to remedies in cases of fraud in committing waste, 
see Hov. Fr. ch. 7, p. 226 to 238. 

WASTE BOOK, com. law. A book used among merchants. All the dealings of the 
merchant are recorded in this book in chronological order as they occur. 

WATCH, police. To watch is, properly speaking, to stand sentry and attend 
guard during the night time: certain officers called watchmen are appointed 
in most of the United States, whose duty it is to arrest all persons who are 
violating the law, or breaking the peace. (q.v.) Vide 1 Bl. Com. 356; 1 
Chit. Cr. Law, 14, 20. 

WATCH AND WARD. A phrase used in the English law, to denote the 
superintendence and care of certain officers, whose duties are to protect 
the public from harm. 

WATCHMAN. An officer in many cities and towns, whose duty it is to watch 
during the night and take care of the property of the inhabitants. 
     2. He possesses generally the common law authority of a constable 
(q.v.) to make arrests, where there is reasonable ground to suspect a 
felony, though there is no proof of a felony having been committed. 1 Chit. 
Cr. L. 24; 2 Hale, 96; Hawk. B. 2, c. 13, s. 1, &c.; 1 East, P. C. 303; 2 
Inst. 52; Com. Dig. Imprisonment, H 4; Dane's Ab. Index, h.t.; 3 Taunt. R. 
14; 1 B. & A. 227; Peake, R. 89; 1 Moody's Cr. Cas. 334; 1 Esp. R. 294; and 
vide Peace. 
     3. By an act of congress, approved Sept. 30, 1850, the compensation of 
watchmen in the various departments of government, shall be five hundred 
dollars per annum. 

WATER. That liquid substance of which the sea, the rivers, and creeks are 
composed. 
     2. A pool of water, or a stream or water course, is considered as part 
of the land, hence a pool of twenty acres, would pass by the grant of twenty 
acres of land, without mentioning the water. 2 Bl. Com. 18; 2 N. H. Rep. 
255; 1, Wend. R. 255; 5 Paige, R. 141; 2 N. H. Rep. 371; 2 Brownl. 142; 5 
Cowen, R. 216; 5 Conn. R. 497; 1 Wend. R. 237. A mere grant of water passes 
only a fishery. Co. Lit. 4 b. 
     3. Like land, water is distinguishable into different parts, as the 
sea, (q.v.) rivers, (q.v.) docks, (q.v.) canals, (q.v.) ponds, q v.) and 
sewers, (q.v.) and to these may be added at water course. (q.v.) Vide 4 
Mason, R. 397 River; Water course. 

WATER BAILIFF, English law. An officer appointed to search ships in ports. 
10 H. vii., 30. 

WATER COURSE. This term is applied to the flow or movement of the water in 
rivers, creeks, and other streams. 
     2. In a legal sense, property In a water course is comprehended under 
the general name of land; so that a grant of land conveys to the grantee not 
only fields, meadows, and the like, but also all the rivers and streams, 
which naturally pass over the surface of the land. 1 Co. Lit. 4; 2 Brownl. 
142; 2 N. Hamp. Rep. 255; 5 Wend. Rep. 128. 
     3. Those who own land bounding upon a water course, are denominated by 
the civilians riparian proprietors, and this convenient term has been 
adopted by judges and writers on the common law. Ang. on Water Courses, 3; 3 
Kent, Com. 354; 4 Mason's R. 397. 
     4. Every proprietor of lands on the banks of a river has naturally an 
equal right to the use of the water which flows in the stream adjacent to 
his lands, as it was wont to run (currere solebat) without diminution or 
alteration. 
     5. No proprietor has a right to use the water to the prejudice of other 
proprietors, above or below him, unless he has a prior right to divert it, 
or a title to some exclusive enjoyment. He has no property in the water 
itself, but a simple usufruct as it passes along. Agua currit et debet 
currere, is the language of the law. 3 Rawle, Rep. 84; 9 Co. 57, b. 
     6. Though he may use the water while it runs over his lands, he cannot 
unreasonably detain it or give it another direction, and he must return it 
to its ordinary channel when it leaves his estate. Without the consent of 
the adjoining proprietors, he cannot divert or diminish the quantity of the 
water, which would otherwise descend to the proprietor below, nor throw the 
water back upon the proprietor above, without a grant, or an uninterrupted 
enjoyment of twenty years, which is evidence of it. 3 Kent, Com. 353; 1 
Wils. R. 178; 6 East, 203; 1 Simon & Stuart, 190; 2 John. Ch R. 162, 463; 4 
Mass. R. 401 17 John. R. 321; 5 Ohio R. 822; 3 Fairf. R. 407; 8 Greenl. R. 
268; 16 Pick. Rep. 247; 1 Coxes Rep, 460; Dig. 39, 3, 4, and 10; Pothier, 
Traite du Contrat de Societe, 2e app. n. 236, 237; Bell's Law of Scotland, 
691; Ang. on' Water Courses, 12; 2 Conn. R. 584. 
     7. When there are two opposite riparian proprietors, each owns that 
portion of the bed of the river which is adjoining his land usque ad filum 
aquae; or, in other words, to the thread or central line of the stream; 
Harg. Tracts, 5; Holt's Rep. 499; and if hydraulic works be erected on both 
banks, each is entitled to an equal share of the water. 1 Paige's Chanc. 
Rep. 448. 
     8. The water can only be used by each as an entire stream, in its 
natural channel; for of the property in the water there can be no severance. 
13 John. R. 212. 
     9. But it seems that when an island is on the side of a river, so as to 
give the riparian owner on that side one-fourth of the water, the other is 
entitled to the whole of the three-fourths of the river. 10 Wend. Rep. 260. 
See, also, 13 Mass. Rep. 507; 2 Caines' Cas. 87; 9 Pick. R. 528; 3 Kent, 
Com. 344, 345; 3 Rawle's R. 84; 2 Watts, R. 327; 8 Greenl. R. 138, 253; 9 
Pick. Rep. 59; 10 Pick. R. 348; 10 Wend. R. 167; Com. Dig. Action for 
Nuisance, A; 4 D. & R. 583; S. C. 2 B. & C. 910; 1 Campb. R. 463; 6 East, R. 
208; 1 Wils. Rep. 174;; 1 B. & A. 258; 5 Taunt. R. 454; 2 Esp. R. 679; 2 
Hill. Abr. c. 14, 16, 17; Ham. N. P. 199; 1 Vin. Ab. 557 22 Vin. Abr. 525; 2 
Chit. Bl. 403, n. 7;  3 Roll. 140, l. 40; Lois des Bat. part 1, c. 3, sed. 
1, art. 3; Crabb on R. P. Sec. 398 to 443. Vide River. 

WATER ORDEAL. An ancient form of trial, now abolished, by which the accused, 
tied band and foot, were cast into cold water, and if they did not sink they 
were deemed innocent or they were compelled to plunge their limbs into hot 
water, and if they came out unhurt they were considered innocent. Vide 
Ordeal. 

WAVESON. This name is given to such goods as after shipwreck appear upon the 
waves. Jacob, Law Dict. h.t. 

WAY, estates. A passage, street or road. A right of way is a privilege which 
an individual or a particular description of persons, such as the 
inhabitants of a particular place, or the owners or occupiers of such place 
may have, of going over another person's ground. 
     2. It is an incorporeal hereditament of a real nature, a mere easement, 
entirely different from public or private roads. 
     3. A right of way may arise, 1. By prescription and immemorial usage. 2 
McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br. Chem. 2; 1 Roll. Ab. 
936. 2. By grant. 3 Lev. 305; 1 Ld. Raym. 75; 17 Mass. 416; Crabb on R. P. 
Sec. 366. 3. By reservation 4. By custom. 5. By acts of the legislature. 6. 
From necessity, when a man's ground is enclosed and completely blocked up, 
so that he cannot, without passing over his neighbor's land, reach the 
public road. For example, should A grant a piece of land to B, surrounded by 
land belonging to A; a right of way over A's land passes of necessity to B, 
otherwise he could not derive any benefit from the acquisition. Vide 3 
Rawle, 495; 2 Fairf. R. 1,56; 2 Mass. 203; 2 McCord, 448; 3 McCord, 139; 2 
Pick. 577; 14 Mass. 56; 2 Hill, S. C. R. 641; and Necessity. The way is to 
be taken where it will be least injurious to the owner. 4 Kent, Com. 338. 4. 
Lord Coke, adopting the civil law, says there are three kinds of ways. 1. A 
foot-way, called iter. 2. A foot-way and horse-way, called adus. 3. A cart-
way, which contains the other two, called via. Co. Lit. 56, a; Pothier, 
Pandectae, lib. 8, t. 3, Sec. 1; Dig. 8, 3; 1 Bro. Civ. Law, 177. Vide Yelv. 
142, n; Id. 164; Woodf. Landl. & Ten. 544; 4 Kent, Com. 337; Ayl. Pand. 307; 
Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M. 151; 1 Bail. R. 58; 2 Hill. 
Abr. c. 6; Crabb on Real Prop. Sec. 360 to 397; Bouv. Inst. Index, h.t.; 
Easement; Servitude. 

WAY BILL, contracts. A writing in which is set down the names of passengers, 
who are carried in a public conveyance, or the description of goods sent 
with a common carrier by land; when the goods are carried by water, the 
instrument is called a bill of lading. (q.v.) 

WAY GOING CROP. In Pennsylvania, by the custom of the, country, a tenant for 
a term certain is entitled after the expiration of his lease, to enter and 
take away the crop of grain which he had put into the ground the preceding 
fall. This is called the way going crop. 5 Binn. R. 289; 2 S. & R. 14; 1 P. 
R. 224. 

WAYS AND MEANS. In legislative assemblies there is usually appointed a 
committee whose duties are to inquire into, and propose to the house, the 
ways and means to be adopted to raise funds for the use of the government. 
This body is called the committee of ways and means. 

WEAR. A great dam made across a river, accommodated for the taking of fish, 
or to convey a stream to a mill. Jacob's Law Dict. h.t. Vide Dam. 

WED. A covenant or agreement; whence a wedded husband. 

WEEK. Seven days of time. 
     2. The week commences immediately after twelve o'clock, on the night 
between Saturday and Sunday, and ends at twelve o'clock, seven days of 
twenty-four hours each thereafter. 
     3. The first day of the week is called Sunday; (q.v.) the second, 
Monday; the third, Tuesday; the, fourth, Wednesday; the fifth, Thursday; the 
sixth, Friday; and the seventh, Saturday. Vide 4 Pet. S. C. Rep. 361. 

WEIGHAGE, mer. law. In the English law it is a duty or toll paid for 
weighing merchandise; it is called tronage, (q.v.) for weighing wool at the 
king's beam, or pesage, for weighing other avoirdupois goods. 2 Chit. Com: 
Law, 16. 

WEIGHT. A quality in natural bodies, by which they tend towards the centre 
of the earth. 
     2. Under the article Measure, (q.v.) it is said that by the 
constitution congress possesses the power "to fix the standard of weights 
and measures," and that this power has not been exercised. 
     3. The weights now generally used in the United States, are the same as 
those of England; they are of two kinds: 

                 1. AVOIRDUPOIS WEIGHT. 
  1st. Used in almost all commercial transactions, and in the common 
dealings of life. 
 27 1/3 1/2 grains  =    1 dram 
 16 drams           =    1 ounce 
 16 ounces          =    1 pound, (lb.) 
 28 pounds          =    1 quarter, (qr.) 
 4 quarters         =    1 hundred weight, (cwt.) 
 20 hundred weight  =    1 ton. 

 2d. Used for meat and fish. 
 8 pounds           =    1 stone 

 3d. Used in the wool trade. 
                                     Cwt. qr.  lb. 
 7 pounds           =    1 clove 14 pounds           =    1 stone  =   0    
0   14 
 2 stones           =    1 tod    =   0    1    0 
 6 1/2 tods         =    1 wey    =   1    2   14 
 2 weys             =    1 sack   =   3    1    0 12 sacks            =    1 
last   =  39    0    0 

 4th. Used for butter and cheese. 
 8 pounds           =    1 clove 
 56 pounds          =    1 firkin. 

                     2. TROY WEIGHT. 
 24 grams           =    1 pennyweight 
 20 pennyweights    =    1 ounce 
 12 ounces          =    1 pound. 

     4. These are the denominations of troy weight, when used for weighing 
gold, silver and precious stones, except diamonds. Troy weight is also used 
by apothecaries in compounding medicines; and by them the ounce is divided 
into eight drams, and the drain into three scruples, so that the latter is 
equal to twenty grains. For scientific purposes, the grain only is used, and 
sets of weights are constructed in decimal progression, from 10,000 grains 
downward to one-hundredth of a grain. The caret, used for weighing diamonds, 
is three and one-sixth grains. 
     5. A short account of the French weights and measures is given under 
the article Measure. 

WEIGHT OF EVIDENCE. This phrase is used to signify that the proof on one 
side, of a cause is greater than on the other. 
     2. When a verdict has been rendered against the weight of the evidence, 
the court may, on this ground, grant a new trial, but the court will 
exercise this power not merely with a cautious, but a strict and sure 
judgment, before they send the case to a second jury. 
     3. The general rule under such circumstances is, that the verdict once 
found shall stand: the setting aside is the exception, and ought to be an 
exception, of rare and almost singular occurrence. A new trial will be 
granted on this ground for either party; the evidence, however, is not to be 
weighed in golden scales. 2 Hodg. R. 125; S. C. 3 Bing. N. C. 109; Gilp. 
356; 4 Yeates, 437; 3 Greenl. 276; 8 Pick. 122; 5 Wend. 595; 7 Wend. 380; 2 
Vir. Cas. 235. 

WELCH MORTGAGE, Eng. law, contracts. A species of security which partakes of 
the nature of a mortgage, as there is a debt due, and an estate is given as 
a security for the repayment, but differs from it in the circumstances that 
the rents and profits are to be received without account till the principal 
money is paid off, and there is no remedy to enforce payment, while the 
mortgagor has a perpetual power of redemption. 
     2. It is a species of vivum vadium. Strictly, however, there is this 
distinction between a Welch mortgage and a vivum vadium. In the latter the 
rents and profits of the estate are applied to the discharge of the 
principal, after paying the interest; while in the former the rents and 
profits are received in satisfaction of his interest only. 1 Pow. Mortg. 
373, a. 

WELL. A hole dug in the earth in order to obtain water. 
     2. The owner of the estate has a right to dig in his own ground, at 
such a distance as is permitted by law, from his neighbor's land; he is not 
restricted as to the size or depth, and is not liable to any action for 
rendering the well of his neighbor useless by so doing. Lois des Bat. part. 
1, c. 3, sect. 2, art. 2, Sec. 2. 

WELL KNOWING. These words are used in a declaration when the plaintiff sues 
for an injury which is not immediate and with force, and the act or 
nonfeasance complained of was not prima facie actionable, not only the 
injury, but the circumstances under which it was committed, ought to be 
stated, as where the injury was done by an animal. In such case, the 
plaintiff after stating the injury, continues, the defendant well knowing 
the mischievous propensity of his dog, permitted him to go at large. Vide 
Scienter. 

WERE. The name of a fine among the Saxons imposed upon a murderer. 
     2. The life of every man, not excepting that of the king himself, was 
estimated at a certain price, which was called the were, or vestimatio 
capitis. The amount varied according to the dignity of the person murdered. 
The price of wounds was also varied according to the nature of the wound, or 
the member injured. 

WERGILD, or WEREGILD, old Eng. law. The price which in a barbarous age, a 
person guilty of homicide or other enormous offence was required to pay, 
instead of receiving other punishment. 4 Bl. Com. 188. See, for the 
etymology of this word, and a tariff which was paid for the murder of the 
different classes of men, Guizot, Essais sur l'Histoire de France, Essai 
4eme, c. 2, Sec. 2. 

WETHER. A castrated ram, at least one year old in ark indictment it may be 
called a sheep. 4 Car. & Payne, 216; 19 Eng. Com. Law Rep. 351. 

WHALER, mar. law. A vessel employed in the whale fishery. 
     2. It is usual for the owner of the vessel, the captain and crew, to 
divide the profits in just proportions, under an agreement similar to the 
contract Di Colonna. (q.v.) 

WHARF. A space of ground artificially prepared for the reception of 
merchandise from a ship or vessel, so as to promote the convenient loading 
and discharge of such vessel. 

WHARFAGE. The money paid for landing goods upon, or loading them from a 
wharf. Dane's Ab. Index, h.t. 

WHARFINGER. One who owns or keeps a wharf, for the purpose of receiving and 
shipping merchandise to or from it, for hire. 
     2. Like a warehouseman, (q.v.) a wharfinger is responsible for ordinary 
neglect, and is therefore required to take ordinary, care of goods entrusted 
to him as such. The responsibility of a wharfinger begins when he acquires, 
and ends when he ceases to have the custody of the goods in that capacity. 
     3. When he begins and ceases to have such custody depends generally 
upon the usages of trade and of the business. When goods are delivered at a 
wharf, and the wharfinger has agreed, expressly or by implication, to take 
the custody of them, his responsibility commences; but a mere delivery at 
the wharf, without such assent, does not make him liable. 3 Campb. R. 414; 4 
Campb. R. 72; 6 Cowen, R. 757. When goods are in the wharfinger's possession 
to be sent on board of a vessel for a voyage, as soon as he delivers the 
possession and the care of them to the proper officers of the vessel, 
although they are not actually removed, he is, by the usages of trade, 
deemed exonerated from any further responsibility. 5 Esp. R. 41; Story, 
Bailm. Sec. 453 Abbott on Ship. 226; Molloy, B. 2. 2, s. 2; Roccus, Not. 88; 
Dig. 9, 4, 3. 

WHEEL. The punishment of the wheel was formerly to put a criminal on a 
wheel, and then to break his bones until he expired. This barbarous 
punishment was never used in the United States, and it has been abolished in 
almost every civilized country. 

WHELPS. The young of certain animals of a base nature, or ferae naturae. 
     2. It is a rule that when no larceny can be committed of any creatures 
of a base nature, which are ferae naturae, though tame and reclaimed, it 
cannot be committed of the young of such creatures in the nest, kennel, or 
den. 3 Inst. 109; 1 Russ. on Cr. 153. 
     3. The owner of the land is, however, considered to have a qualified 
property in such animals, ratione impotentia. 2 Bl. Com. 394. 

WHEN. At which time, in wills, standing by itself unqualified and 
unexplained, this is a word of condition denoting the time at which the gift 
is to continence. 6 Ves. 243; 2 Meriv. 286. 
     2. The context of a will may show that the word when is to be applied 
to the possession only, not to the vesting of a legacy; but to justify this 
construction, there must be circumstances, or other expressions in the will, 
showing such to have been the testator's intent. 7 Ves. 422; 9 Ves. 230 
Coop. 145; 11 Ves. 489; 3; Bro. C. C. 471. For the effect of the word when 
in contracts and in wills in the French law, see 6 Toull. n. 520. 

WHEN AND WHERE. These words are used in a plea when full defence is made the 
form is, "when and were it shall behoove him." This acknowledges the 
jurisdiction of the court. 1 Chit. Pl. *414. 

WHEREAS. This word implies a recital, and in general cannot be used in the 
direct and positive averment of a fact in a declaration or plea. Those facts 
which are directly denied by the terms of the general issue, or which may, 
by the established usage of pleading, be specially traversed, must be 
averred in positive and direct terms; but facts, however material, which are 
not directly denied by the terms of the general issue, though liable to be 
contested under it, and which, according to the usage of pleading, cannot be 
specially traversed, may be alleged in the declaration by way of recital, 
under a whereas. Gould, Pl. c. 43, Sec. 42; Bac. Ab. Pleas, &c., B. 5, 4; 2 
Chit. Pl. 151, 178, 191; Gould, Pl. c. 3, Sec. 47. 

WHIPPING, punishment. The infliction of stripes. 
     2. This mode of punishment, which is still practiced in some of the 
states, is a relict of barbarism; it has yielded in most of the middle and 
northern states to the penitentiary system. 
     3. The punishment of whipping, so far as the same was provided by the 
laws of the United States, was abolished by the act of congress of February 
28, 1839, s. 5. Vide 1 Chit. Cr. Law, 796; Dane's Ab. Index, h.t. 

WHITE PERSONS. The acts of congress which authorize the naturalization of 
aliens, confine the description of such aliens to free white persons. 
     2. This of course excludes the African race when pure, but it is not 
easy to say what shade of color or mixture of blood will make a white 
person. 
     3. The constitution of Pennsylvania, as amended, confines the right of 
citizenship to free white persons; and these words, white persons, or 
similar words, are used in most of the constitutions of the southern states, 
in describing the electors. 

WHITE RENT, English law. Rents paid in silver, and called white rents or 
redditus albi, to distinguish them from other rents which were not paid in 
money. 12 Inst. 19. Vide Alba firma. 

WHOLE BLOOD. Being related by both the father and mother's side; this phrase 
is used in contradistinction to half, blood, (q.v.) which is relation only 
on one side. See Blood. 

WHOLESALE. To sell by wholesale, is to sell by large parcels, generally in 
original packages, and not by retail. (q.v.) 

WIDOW. An unmarried woman whose husband is dead. 
     2. In legal writings, widow is an addition given to a woman who is 
unmarried and whose husband is dead. The addition of spinster is given to a 
woman who never was married. Lovel. on Wills, 269. See Addition. As to the 
rights of a widow, seq Dower. 

WIDOW'S CHAMBER, Eng. law. In London the apparel of a widow and the 
furniture of her chamber, left by her deceased husband, is so called, and 
the widow is entitled to it. 2 Bl. Com. 518. 

WIDOWHOOD. The state of a man whose wife is dead or of a woman whose husband 
is dead. In general there is no law to regulate the time during which a man 
must remain a widower, or a woman a widow, before they marry a second time. 
The term widowhood is mostly applied to the state or condition of a widow. 

WIDOWER. A man whose wife is dead. A widower has a right to administer to 
his wife's separate estate, and as her administrator to collect debts due to 
her, generally for his own use. 

WIFE, domestic relations. A woman who has a husband. 
     2. A wife, as such, possesses rights and is liable to obligations. 
These will be considered. 1st. She may make contracts for the purchase of 
real estate for her own benefit, unless her husband expressly dissents. 6 
Binn. R. 427. And she is entitled to a legacy directly given to her for her 
separate use. 6 Serg. & Rawle, R. 467. In some places, by statutory 
provision, she may act as a feme sole trader, and as such acquire personal 
property. 2 Serg. & Rawle, R. 289. 
     3. 2d. She may in Pennsylvania, and in most other states, convey her 
interest in her own or her husband's lands by deed acknowledged in a form 
prescribed by law. 8 Dowl. R. 630. 
     4.-3d. She is under obligation to love, honor and obey her husband and 
is bound to follow him wherever he may desire to establish himself: 5 N. S. 
60; (it is presumed not out of the boundaries of the United States,) unless 
the husband, by acts of injustice and such as are contrary to his marital 
duties, renders her life or happiness insecure. 
     5.-4th. She is not liable for any obligations she enters into to pay 
money on any contract she makes, while she lives with her husband; she is 
presumed in such case to act as the agent of her husband. Chitty, Contr. 43 
     6.-5th. The incapacities of femes covert, apply to their civil rights, 
and are intended for their protection and interest. Their political rights 
stand upon different grounds, they can, therefore, acquire and lose a 
national character. These rights stand upon the general principles of the 
law of nations. Harp. Eq. R. 5 3 Pet. R. 242. 
     7.-6th. A wife, like all other persons, when she acts with freedom, may 
be punished for her criminal acts. But the law presumes, when she commits in 
his presence a crime, not malum in se, as murder or treason, that she acts 
by the command and coercion of her husband, and, upon this ground, she is 
exempted from punishment. Rose. on Cr. Ev. 785. But this is only a 
presumption of law, and if it appears, upon the evidence, that she did not 
in fact commit the act under compulsion, but was herself a principal actor 
and inciter in it, she may be punished. 1 Hale, P. C. 516; 1 Russ. on Cr. 
16, 20. Vide Contract; Divorce; Husband; Incapacity; Marriage; Necessaries; 
Parties to actions; Parties to contracts; Women and, generally, Bouv. Inst. 
Index, 

WIFE'S EQUITY. By this phrase is understood the equitable right of a wife to 
have settled upon her and her children a suitable provision out of her 
estate whenever the husband cannot obtain it, without the aid of a court of 
equity. Shelf. on M. and D., 605. 
     2. By the marriage the husband acquires an interest in the property of 
his wife in consideration of the obligation which he contracts by the 
marriage, of maintaining her and their children. The common law enforces 
this duty thus voluntarily assumed by him, and he can alien the property to 
which he is thus entitled jure mariti, or in case of his bankruptcy or 
insolvency it would vest in his assignee for the benefit of his creditors, 
and the wife would be left with her children, entirely destitute, 
notwithstanding her fortune may have been great. To remedy this evil, courts 
of equity, in certain cases, give a provision to the wife, which is called 
the wife's equity. 
     3. The principle upon which courts of equity act is, that he who seeks 
the aid of equity must do equity, and that will be withheld until an 
adequate settlement has been made. 1 P. Wms. 459, 460. See 5 My. & Cr. 105; 
11 Sim. 569; 4 Hare, 6. 
     4. It will be proper to consider, 1. Out of what property the wife has 
a right to claim her equity to a settlement. 2. Against whom she may make 
such a claim. 3. Her rights. 4. The rights of her children. 5. When her 
rights to a settlement will be barred. 
     5.-1. Where the property is equitable and not recoverable at law, it 
cannot be obtained without making a settlement upon a wife and children, if 
one be required by her 2 P. Wins. 639; and where, though the property be 
legal in its nature, it becomes, from collateral circumstances, the subject 
of a suit in equity, the wife's right to a settlement will attach. 5 My. & 
Cr. 97. See 2 Ves. jun., 607, 680; 4 Bro. C. C, 338; 3 Ves. 166, 421; 9 Ves. 
87; 5 Madd. R. 149; 5 Ves. 517; 13 Maine, 124 10 Ala. R. 401; 9 Watts, 90; 5 
John. Ch. R. 464; 3 Cowen, 591; 6 Paige, 366; 2 Bland. 545; 2 Paige, 303. 
     6.-2. The wife's equity to a settlement is binding not only upon the 
husband, but upon his assignee under the bankrupt or insolvent laws. 2 Atk. 
420; 3 Ves. 607; 4 Bro. C. C. 138; 6 John. Ch. R. 25; 1 Paige, 620; 4 Metc. 
486; 4 Gill & John. 283; 5 Monr. 338; 10 Ala. R. 401 1 Kelly, 637. And even 
where the husband assigned the wife's equitable right for a valuable 
consideration, the assignee was considered liable. 4 Ves. 19. 
     7.-3. As to the amount of the rights of the wife, the general rule is 
that one half of the wife's property shall be settled upon her. 2 Atk. 423; 
3 Ves. 166. But it is in the discretion of the court to give her, an 
adequate settlement for herself and children. 5 John. Ch. R. 464; 6 John. 
Ch. R. 25; 3 Cowen, 591; 1 Desaus. 263: 2 Bland. 545; 1 Cox, R. 153; 5 B. 
Monr. 31; 3 Kelly, 193; 1 D, & W. 407; 9 Sim, 597; 1 S. & S. 250. 
     8.-4. Whenever the wife insists upon her equity, the right will be 
extended to her children, but the right is strictly personal to the wife, 
and her children cannot insist upon it after her death. 2 Eden, 337; 1 J. & 
W. 472; 1 Madd. R. 467; 11 Bligh, N. S. 104; 2 John. Ch. R. 206; 3 Cowen, 
591; 10 Ala. R. 401; 1 Sanf. 129. 
     9.-5. The wife's equity will be barred, first, by an adequate 
settlement having been made upon her; 2 Ves. 675; when she lives in adultery 
apart from her husband 4 Ves. 146; but a female ward of court, married 
without its consent, will not be barred, although she should be living in 
adultery. 1 V. & B. 302. 

WILD ANIMALS. Animals in a state of nature; animals ferae naturae. Vide 
Animals; Ferae naturae. 

WILFULLY, intentionally. 
     2. In charging certain offences it is required that they should be 
stated to be wilfully done. Arch. Cr. Pl. 51, 58; Leach's Cr. L. 556. 
     3. In Pennsylvania it has been decided that the word maliciously was an 
equivalent for the word wilfully, in an indictment for arson. 5 Whart. R. 
427. 

WILL, criminal law. The power of the mind which directs the actions of a 
man. 
     2. In criminal law it is necessary that there should be an act of the 
will to commit a crime, for unless the act is wilful it is no offence. 
     3. It is the consent of the will which renders human actions 
commendable or culpable, and where there is no win there can be no 
transgression. 
     4. The defect or want of will may be classed as follows: 1. Natural, as 
that of infancy. 2. Accidental; namely, 1st. Dementia. 2d. Casualty or 
chance. 3d. Ignorance. (q.v.) 3. Civil; namely, 1st. Civil subjection. 2d. 
Compulsion. 3d. Necessity. 4th. Well-grounded fear. Hale's P. C. c. 2 Hawk. 
P. C. book 1, c. 1. 

WILL or TESTAMENT. The legal declaration of a man's intentions of what he 
wills to be performed after his death. Co. Litt. 111; Swinb. Pt. 1, s. II. 
1; Shep. Touch. 398; Bac. Abr. Wills, A. 
     2. The terms will and testament are synonymous, and they are used 
indifferently by common lawyers, or one for the other. Swinb. p. 1, s. 1. 5; 
Bac. Ab. Wills. A. Civilians use the term testament only. See Testament. 
     3. There are five essential requisites to make a good will. 
     4.-1. The testator must be legally capable of making a will. Generally 
all persons who may make valid contracts can dispose of their property by 
will. See Parties to contracts. This act requires a power of the mind freely 
to dispose of property. Infants, because of their tender age, and married 
women, on account of the supposed influence and control of their husbands, 
have no capacity to make a will, with these exceptions, that infants at 
common law may dispose of their personal estate, the males when over 
fourteen years of age, and the females when over twelve; this rule in 
relation to infants is not uniform in the United States. Swinb. p. 2, s. 2; 
Bac. Ab. Wills, B. Persons devoid of understanding, as idiots and lunatics, 
cannot make a will. 
     5.-2. The testator at the time of making his will must have animum 
testandi, or a serious intention to make such will. If a man therefore 
jestingly or boastingly and not seriously, writes or says that such a person 
shall have his goods or be his executor, this is no will. Bac. Ab. Wills, C; 
Com. Dig. Estates by Devise, D 1. See 4 Serg. & Rawle, 545; 2 Yeates, 324; 5 
Binn. 490; 1 Des. R. 543. 
     6.-3. The mind of the testator in making his will must be free, and not 
moved by fear, fraud or flattery. In such cases the will is void or at least 
voidable. Bac. Ab. Wills, C; see 3 Serg. & Rawle, 269. Vide influence. 
     7.-4. There must be a person to take, capable of taking; for to render 
a devise or bequest valid there must be a donee in esse, or in rerum natura, 
and one that shall have capacity to take the thing given, when it is to 
vest, or the gift shall be void. Plowd. 345. See Legatee. 
     8.-5. The will must be put in proper form., Wills are either written or 
nuncupative. 
     9.-1. A will in writing must be, 1. Written on paper or parchment; it 
may be in any language, and in any character, provided it can be read or 
understood. 2. It must be signed by the testator or some person authorized 
by him; but a sealing has been held to be a sufficient signing. 2 Str. 764. 
But see 3 Lev. R. 1; 1 Const. R. 343; 18 Ves. R. 183; 2 Ball & B. 104 5 
Mood. R. 484, and article To sign. And it ought to be signed by the 
attesting witnesses. In some states three witnesses are required, who should 
sign the will as such at the request and in the presence of the testator and 
of each other. This formality should generally be pursued, as the testator 
may have lands in such states which would not pass without it. See, as to 
the attestation of wills, Bac. Ab. Wills, D; Rob. on Wills, c. 1, part 15. 
3. It must be published, that is, the testator must do some act from which 
it can be concluded that he intended the instrument to operate as his will. 
6 Cruise, 79; 4 Burn's Eccl. Law, 119. As to the republication of wills, see 
Bac. Abr. Wills, D 3; and article Publication. 4. To make a good will of 
goods and chattels there must be an executor named in it, otherwise it will 
be a codocil only, and the party is said to die intestate; in such a case 
administration must be granted. Bac. Abr. Wills, D 2. 
     10.-2. A nuncupative will or testament, is a verbal declaration by a 
testator of his will before a competent number of legal witnesses. 
     11. Before the statute of frauds they were very common, but by that 
statute, 29 C. H. c. 3, which has been substantially adopted in a number of 
the states, these wills were laid under many restrictions. Vide Dane's Ab. 
chap. 127, a. 2; 3 Harr. & John. 208; 6 Munf. R. 123; 1 Munf. R. 456; 4 Hen. 
& Munf. 91-100. 
     12. In New York nuncupative wills have been abolished, except made by a 
soldier while in actual military service, or by a mariner while at sea. 2 
New York Revised Statutes, 60, sec. 22. As to nuncupative wills in 
Louisiana, see Testament nuncupative; and Civil Code of Louisiana, article 
1574. 
     13. It is a rule that the last will revokes all former wills. It 
follows then that a man cannot by any testamentary act impose upon himself 
the inability of making another inconsistent with and revoking the first 
will. Bac. Ab. Wills, E; Swinb. pt. 7, s. 14. 
     14. A will voluntarily and intentionally made by a competent testator, 
according to the form required by law, may be avoided, 1st. By revocation, 
see Revocation; Bac. Abr. Wills, G 1; Vin. Abr. Devise, P; 1 Rolle, Ab. 615; 
Com. Dig. Estates by Dev. F; and, 2d. By fraud. 
     15. Among the civilians they have two other kinds of wills, namely: the 
mystic, which is a will enveloped in a paper and sealed, and the witnesses 
attest that fact, the other is the olographic; which is wholly written by 
the testator himself. See Testament. As to wills and testaments, see 
Swinburne on Wills; Roberts on Wills; Lovelass on Wills; Roper on Legacies; 
Lowndes on Legacies; Will. on Ex. pt. 1; Vin. Abr. Devise; Rolle's Abr. 
Devise; Bac. Abr. Wills and Testaments; Com. Dig. Estates by Devise; Nels. 
Abr. h.t.; Amer. Dig. Wills; Whart. Dig. Wills; Toll. on Executors; Off. 
Ex.; Orph. Legacy; Touchst, ch. 23 Civil Code of Louisiana, B. 3, tit. 2; 
Bouv. Inst. Index, h.t.; and the articles Devise; Legacy; Testament. 

WINCHESTER MEASURE. The standard measure originally kept at Winchester, in 
England. 

WINDOW. An opening made in the wall of a house to admit light and air, and 
to enable those who are in to look out. 
     2. The owner has a right to make as many windows in his house when not 
built on the line of his property as he may deem proper, although by so 
doing be may destroy the privacy of his neighbors. Bac. Ab. Actions in 
general, B. 
     3. In cities and towns it is evident that the owner of a house cannot 
open windows in the partition wall without the consent of the owner of the 
adjoining property, unless he possesses the right of having ancient lights. 
(q.v.) The opening of such windows and destroying the privacy of the 
adjoining property, is not, however, actionable; the remedy against such 
encroachment is by obstructing them, without encroaching upon the rights of 
the party who opened them, so as to prevent a right from being acquired by 
twenty years use. 3 Camp. 82. 

WISCONSIN. The name of one of the new states of the United States, of 
America. 
     2. The constitution of Wisconsin was adopted by a convention, at 
Madison, on the first day of February, 1848. 
     3. The right of suffrage is vested by the third article of the 
constitution, as follows: Sect. 1. Every male person of the age of twenty-
one years or upwards, belonging to either of the following classes, who 
shall have resided in this state for one year next preceding any election, 
shall be deemed a qualified elector at such election. 1st. White citizens of 
the United States. 2d. White persons of foreign birth who shall have 
declared their intention to become citizens, conformably to the laws of the 
United States on the subject of naturalization. 3d. Persons of Indian blood 
who have once been declared by law of congress to be citizens of the United 
States, any subsequent act of congress to the contrary notwithstanding. 
     4th. Civilized persons of Indian descent, not members of any tribe; 
Provided, that the legislature may at any time extend by law the right of 
suffrage to persons not herein enumerated, but no such law shall be in force 
until the same shall have been submitted to a vote of the people at a 
general election, and approved by a majority of all the votes cast at such 
election. 
     Sect. 2. No person under guardianship, non compos mentis, or insane 
shall be qualified to vote at any election; nor shall any person, convicted 
of treason or felony, be qualified to vote at any election, unless restored 
to civil rights. 
     Sect. 3. All votes shall be given by ballot, except for such township 
officers as may by law be directed or allowed to be otherwise chosen. 
     Sect. 4. No person shall be deemed to have lost his residence in this 
state by reason of absence on business of the United States or of this 
state. 
     Sect. 5. No soldier, seaman or marine, in the army or navy of the 
United States, shall be deemed a resident in this state, in consequence of 
being stationed within the same. 
     Sect. 6. Laws may be passed excluding from the right of suffrage all 
persons who have been, or may be convicted of bribery, or larceny, or any 
infamous crime, and depriving every person who shall make or become directly 
or indirectly interested in any bet or wager depending upon the result of 
any election, of the right to vote at such election. 4, The fourth article 
vests the legislative power in a senate and assembly. These will be 
separately considered, by taking a view, 1. Of the senate. 2. Of the 
assembly. 
     5.-Sec. 1. The senate. It will be proper to examine, first, the 
qualification of the senators; secondly, the time of their election; third, 
the duration of their office fourth, the number of senators. 
     6.-1. The senators must have resided one year within the state, and be 
qualified electors in the district which they may be chosen to represent. 
Sect. 6. 
     7.-2. Senators are elected on the Tuesday following the first Monday of 
November by the qualified electors of the several districts. One half every 
year. 
     8.-3. They hold their office for two years. 
     9.-4. The senate shall consist of a number of members not more than 
one-third, nor less than one-fourth of the number of the members of the 
assembly. Sect. 2. 
     10.-Sec. 2. The assembly will be, considered in the same order. 
     11.-1. Members of the assembly must have resided one year in the state, 
and be qualified electors for the district for which they may be chosen. 
     12.-2. Members of the assembly are elected at the same time senators 
are elected. 
     13.-3. They are elected annually. 
     14.-4. The number of members of the assembly shall never be less than 
fifty-four nor more than one hundred. 
     15. The two houses are invested severally with the following powers: 
     Sect. 7. Each house shall be the judge of the elections, returns and 
qualifications of its own members; and a majority of each shall constitute a 
quorum to do business, but a smaller number may adjourn from day to day, and 
may compel the attendance of absent members, in such manner and under such 
penalties as each house may provide. 
      Sect. 8. Each house may determine the rules of its own proceedings, 
punish for contempts and disorderly behaviour; and, with the concurrence of 
two-thirds of all the members elected, expel a member; but no member shall 
be expelled a second time for the same cause. 
     Sect. 9. Each house shall choose its own officers, and the senate shall 
choose a temporary president when the lieutenant-governor shall not attend 
as president, or shall act as governor. 
     Sect. 10. Each house shall keep a journal of its proceedings and 
publish the same, except such parts as require secrecy. The doors of each 
house shall be kept open, except when the public welfare shall require 
secrecy. Neither house shall, without the consent of the other, adjourn for 
more than three days. 
     16. By the fifth article, the executive power is vested in a governor. 
     17.-Sect. 1. The executive power shall be vested in a governor, who 
shall hold his office for two years; a lieutenant governor shall be elected 
at the same time, and for the same term. 
     18.-Sect. 2. No person, except a citizen of the United States, and a 
qualified elector of the state, shall be eligible to the office of governor 
or lieutenant governor. 
     19.-Sect. 3. The governor and lieutenant governor shall be elected by 
the qualified electors of the state, at the times and places of choosing 
members of the legislature. The persons respectively having the highest, 
number of votes for governor and lieutenant-governor shall be elected, but 
in case two or more shall have an equal and the highest number of votes for 
governor or lieutenant-governor, the two houses of the legislature, at its 
next annual session, shall forthwith, by joint ballot, choose one of the 
persons so having an equal and the highest number of votes, for governor or 
lieutenant governor. The returns of election for governor or lieutenant 
governor shall be made in such manner as shall be provided by law. 
     20.-Sect. 4. The governor shall be commander-in-chief of the military. 
and naval forces of the state. He shall have power to convene the 
legislature on extraordinary occasions; and in case of invasion, or danger 
from the prevalence of contagious disease at the seat of government, he may 
convene them at any other suitable place within the state. He shall 
communicate to the legislature at every session, the condition of the state; 
and recommend such matters to them for their consideration as he may deem 
expedient. He shall transact all necessary business with the officers of the 
government, civil and military. He shall expedite all such measures as may 
be resolved upon by the legislature, and shall take care that the laws be 
faithfully executed. 
     21.-Sect. 5. The governor shall receive during his continuance in 
office an annual compensation of one thousand two hundred and fifty dollars. 
     22.-Sect. 6. The governor shall have the power to grant reprieves, 
commutations and pardons after conviction for all offences, except treason, 
and cases of impeachment, upon such conditions and with such restrictions 
and limitations as he may think proper, subject to such regulations as may 
be provided by law relative to the manner of applying for pardons. Upon 
conviction for treason he shall have the power to suspend the execution of 
the sentence, until the case shall be reported to the legislature at its 
next meeting, when the legislature shall either pardon, or commute the 
sentence, direct the execution of the sentence, or grant a further reprieve. 
He shall annually communicate to the legislature each case of reprieve, 
commutation or pardon granted, stating the name of the convict, the crime of 
which he was convicted, the sentence and its date, and the date of the 
commutation, pardon or reprieve, with his reasons for granting the same. 
     23.-Sect. 7. In case of the impeachment of the governor, or his removal 
from office, death, inability from mental or physical disease, resignation 
or absence from the state, the powers and the duties of the office shall 
devolve upon the lieutenant-governor for the residue of the term, until the 
governor, absent or impeached, shall have returned, or the disability shall 
cease. But when the governor shall, with the consent of the legislature, be 
out of the state in time of war, at the head of the military force thereof, 
he shall continue commander-in-chief of the military force of the state. 
     24.-Sect. 8. The lieutenant-governor shall be president of the senate, 
but shall have only a casting vote therein. If during a vacancy in the 
office of governor, the lieutenant governor shall be impeached, displaced, 
resign, die, or from mental or physical disease, become incapable of 
performing the duties of his office, or be absent from the state the 
secretary of state shall act as governor until the vacancy shall be filled, 
or the disability shall cease. 
     25.-Sect. 9. The lieutenant governor shall receive double the per them 
allowance of members of the senate, for every day's attendance as president 
of the senate, and the same mileage as shall be allowed to members of the 
legislature. 
     26.-Sect. 10. Every bill which shall have passed the legislature, 
shall, before it becomes a law, be presented to the governor; if he approve, 
he shall sign it, but if not, he shall return it with his objections to that 
house in which it shall have originated, who shall enter the objections It 
large upon the journal, and proceed to reconsider it. If after such 
reconsideration, two-thirds. of the members present shall agree to pass the 
bill, it shall be sent, together with the objections, to the other house, by 
which it shall likewise be reconsidered, and if approved by two-thirds of 
the members present, it shall become a law. But in all such cases, the votes 
of both houses shall be determined by, yeas and nays, and the names of the 
members, voting for or against the bill, shall be entered on the journal of 
each house respectively. If any bill shall not be returned by the governor 
within three days (Sundays excepted) after it shall have been presented to 
him, the same shall be a law, unless the legislature shall by their 
adjournment prevent its return, in which case it shall not be a law. 
     27. The seventh article establishes the judiciary as follows: 
     Sect. 1. The court for the trial of impeachments shall be composed of 
the senate. The house of representatives shall have the power of impeaching 
all civil officers of this state, for corrupt conduct in office, or for 
crimes and misdemeanors; but a majority of all the members elected shall 
concur in an impeachment. On the trial of an impeachment against the 
governor, the lieutenant governor shall not act as a member of the court. No 
judicial officer shall exercise his office after he shall have been 
impeached until his acquittal. Before the trial of an impeachment, the 
members, of the court shall take an oath or affirmation truly and 
impartially to try the impeachment according to the evidence; and no person 
shall be convicted without a concurrence of two-thirds of the members 
present. Judgment in case of impeachment shall not extend further than to 
removal from office, or removal from office and disqualification to hold any 
office of honor, profit or trust under the state; but the party impeached 
shall be liable to indictment, trial and punishment according to law. 
     28.-Sect. 2. The judicial power of this state, both as to matters of 
law and equity, shall be vested in a supreme court, circuit courts, courts 
of probate, and in justices of the peace. The legislature may also vest such 
jurisdiction as shall be deemed necessary in municipal courts and shall have 
power to establish inferior courts in the several counties with limited 
civil and criminal jurisdiction: Provided, that the jurisdiction which may 
be vested in municipal courts shall not exceed, in their respective 
municipalities, that of circuit courts, in their respective circuits, as 
prescribed in this constitution: And that the legislature shall provide as 
well for the election of judges of the municipal courts, as of the judges of 
inferior courts, by the qualified electors of the respective jurisdictions. 
The term of office of the judges of the said municipal and inferior courts 
shall not be longer than that of the judges of the circuit court. 
     29.-Sect, 3. The supreme court, except in cases otherwise provided in 
this constitution, shall have appellate jurisdiction only, which shall be 
coextensive with the state; but in no case removed to the supreme court 
shall a trial by jury be allowed. The supreme court shall have a general 
superintending control over all inferior courts; it shall have power to 
issue writs of habeas corpus, mandamus, injunction, quo warranto certiorari, 
and other original and remedial writs, and to hear and determine the same. 
     30.-Sect. 4. For the term of five years and thereafter until the 
legislature shall otherwise provide, the judges of the several courts shall 
be judges of the supreme court, four of whom shall constitute a quorum, and 
the concurrence of a majority of the judges present shall be necessary to a 
decision. The legislature shall have power, if they should think it 
expedient and necessary to provide by law for the organization of a separate 
supreme court, with the jurisdiction and powers prescribed in this 
constitution, to consist of one chief justice and two associate justices, to 
be elected by the qualified electors of the state, at such time and in such 
manner as the legislature may provide. The separate supreme court, when so 
organized, shall not be changed or discontinued by the legislature; the 
judges thereof shall be so classified that but one of them shall go out of 
office at the same time, and the term of office shall be the same as 
provided for the judges of the circuit court. And whenever the legislature 
may consider it necessary to establish a separate supreme court, they shall 
have power to reduce the number of circuit court judges to four, and 
subdivide the judicial circuits, but no such subdivision or reduction shall 
take effect till after the expiration of the term of some one of the said 
judges, or till a vacancy occur by some other means. 
     31. Circuits are established, and they may be changed by the 
legislature. 
     Sec. 7. For each circuit there shall be a judge chosen by the qualified 
electors therein, who shall hold his office as is provided in this 
constitution until his successor shall be chosen and qualified, and after he 
shall have been elected, he shall reside in the circuit for which he was 
elected. One of said judges shall be designated as chief justice, in such 
manner as the legislature shall provide. And the legislature shall, at its 
first session, provide by law as well for the election of, as for 
classifying, the judges of the circuit court to be elected under this 
constitution, in such manner, that one of the said judges shall go out of 
office in two years, one in three years, one in four years, one in five 
years and one in six years, and thereafter the judge elected to fill the 
office, shall bold the same for six years. 
     32.-8. The circuit courts shall have original jurisdiction in all 
matters civil and criminal within this state, not excepted in this 
constitution, and not hereafter prohibited by law, and appellate 
jurisdiction from all inferior courts and tribunals, and a supervisory 
control over the same. They shall also have the power to issue writs of 
habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other 
writs necessary to carry into effect their orders, judgments and decrees, 
and give them a general control over inferior courts and jurisdictions. 
     33.-Sect. 9. When a vacancy shall happen in the office of a judge of 
the supreme or circuit court, such vacancy shall be filled by an appointment 
of the governor, which shall continue until a successor is elected and 
qualified; and when elected, such successor shall hold his office the 
residue of the unexpired term. There shall be no election for a judge or 
judges at any general election for state or county officers, nor within 
thirty days either before or after such election. 
     34.-Sect. 10. Each of the judges of the supreme and circuit courts 
shall receive a salary, payable quarterly, of not less than one thousand 
five hundred dollars annually; they shall receive no fees of office or other 
compensation than their salaries; they shall hold no office of public trust, 
except a judicial office, during the term for which they are respectively 
elected, and all votes for either of them for any office except a judicial 
office, given by the legislature or the people, shall be void. No person 
shall be eligible to the office of judge who shall not at the time of his 
election be a citizen of the United States, and have attained the age of 
twenty-five years, and be a qualified elector within the jurisdiction for 
which he may be chosen. 
     35.-Sect. 11. The supreme court shall hold at least one term annually 
at the seat of government of the state at such times as shall be provided by 
law, and the legislature may provide for holding other terms, and at other 
places when they may deem it necessary. A circuit court shall be held at 
least twice a year, in each county of this state, organized for judicial 
purposes. The judges of the circuit court may hold courts for each other, 
and shall do so when required by law. 

WISTA. Among the Saxons, this was a measure of land; it contained a half 
hide, or sixty acres. 

TO WIT. To know, that is to say, namely. See Scilicet. 

WITH STRONG HAND, pleading. This is a technical phrase indispensable in 
describing a forcible entry in an indictment. No other word or 
circumlocution will answer the same purpose. 8 T. R. 357. 

WITHDRAWING A JUROR, practice. An agreement made between the parties in a 
suit to require one of the twelve juror's impanelled to try a cause to leave 
the jury box; the act of leaving the box by such a juror is also called the 
withdrawing a juror. 
     2. This arrangement usually takes place at the recommendation of the 
judge, when it is obviously improper the case should proceed any further. 
     3. The effect of withdrawing a juror puts an end to that particular 
trial, and each party must pay his own costs. 3 T. R. 657; 2 Dowl. R. 721; 
S. C. 1 Crom. M. & R. 64. 
     4. But the plaintiff may bring a new suit for the same cause of an 
action. R. & M. 402; S. C. 21 E. C. L. R. 472; 3 Barn. & Adolph. 349; S. C. 
23 E. C. L. R. 91. See 3 Chit. Pr. 916. 

WITHERNAM, practice. The name of a writ which issues on the return of 
elongata to an alias or pluries writ of replevin, by which the sheriff is 
commanded to take the defendant's own goods which may be found in his 
bailiwick, and keep them safely, not to deliver them to the plaintiff until 
such time as the defendant chooses to submit himself, and allow the 
distress, and the whole of it, to be reprieved, and he is thereby further 
commanded that he do return to the court in what manner he shall have 
executed the writ. Hamm. N. P. 453; 2 Inst. 140; F. N. B. 68, 69; 19 Vin. 
Ab. 7; 7 Com. Dig. 674; Grotius, 3, 2, 4, n. 1. 

WITHOUT, pleading. This word is adopted in formal traverses, and is a 
negative signifying "and not for;" accordingly the language of the elder 
entries sometimes is, It et nemy pur tiel cause," &c. Hamm. N. P. 120. 

WITHOUT DAY. This signifies that the cause or thing to which it relates is 
indefinitely adjourned; as when a case is adjourned without day, it is not 
again to be inquired into; when the legislature adjourn without day they are 
not to meet again. This is usually expressed in Latin, sine die. 

WITHOUT IMPEACHMENT OF WASTE. When a tenant for life holds the land without 
impeachment of waste, he is of course dispunishable for waste whether wilful 
or otherwise. But still this right must not be wantonly abused so as to 
destroy the estate, and he will be enjoined from committing malicious waste. 
Dane's Ab. c. 78, a. 14, Sec. 7; Bac. Ab. Waste, N; 2 Eq. Cas. Ab. tit. 
Waste, A. pl, 8; 2 Bouv. Inst. n. 2402. See Impeachment of Waste and Waste. 

WITHOUT RECOURSE. Vide Sans Recours and Indorsement; Chit. on Bills, 179; 14 
S. & R. 325; 3 Cranch, 193; 7 Cranch, 159; 1 Cowen, 538; 12 Mass. 172; 6 
Shipl. R. 354. 

WITHOUT RESERVE, contracts. These words are frequently used in conditions of 
sale at public auction, that the property offered, or to be offered for 
sale, will be sold without reserve. 
     2. When a property is advertised to be sold without reserve, if a 
puffer be employed to bid, and actually bid at the sale, the courts will not 
enforce a contract against a purchaser, into which he may have been drawn by 
the vendor's want of faith. 5 Madd. R. 34. Vide Puffer. 

WITHOUT THIS, THAT, pleading. These are technical words used in a traverse, 
(q.v.) for the purpose of denying a material fact in the preceding 
pleadings, whether declaration, plea, replication, &c. In Latin it is called 
absque hoc. (q.v.) Lawes on Pl. in Civ. Act. 119; Com. Dig. Pleader, G 1; 
Summary of Pleading, 75; 1 Saund. 103, n.; Ld. Raym. 641; 1 Burr. 320; 1 
Chit. Pl. 576, note a. 

WITNESS. One who, being sworn or affirmed, according to law, deposes as to 
his knowledge of facts in issue between the parties in a cause. 
     2. In another sense by witness is understood one who is called upon to 
be present at a transaction, as a wedding, or the making of a will. When a 
person signs his name to an instrument, as a deed, a bond, and the like, to 
signify that the same was executed in his presence, he is called an 
attesting witness. 
     3. The testimony of witnesses can never have the effect of a 
demonstration, because it is not impossible, indeed it frequently happens, 
that they are mistaken, or wish themselves to deceive. There can, therefore, 
result no other certainty from their testimony than what arises from 
analogy. When in the calm of the passions, we listen only to the voice of 
reason and the impulse of nature we feel in ourselves a great repugnance to 
betray the truth, to the prejudice of another, and we have observes that 
honest, intelligent and disinterested persons never combine to deceive 
others by a falsehood. We conclude then, by analogy, with a sort of moral 
certainty, that a fact attested by several witnesses, worthy of credit, is 
true. This proof derives its whole force from a double presumption. We 
presume, in the first place, on the good sense of the witnesses that they 
have not been mistaken; and, secondly, we presume on their probity that they 
wish not to deceive. To be certain that they have not been deceived, and 
that they do not wish to mislead, we must ascertain, as far as possible, the 
nature and the quality of the facts proved; the quality and the person of 
the witness; and the testimony itself, by comparing it with the deposition 
of other witnesses, or with known facts. Vide Circumstances. 
     4. It is proper to consider, 1st. The character of the witness. 2d. The 
quality of the witness. 3d. The number of witnesses required by law. 
     5.-1. When we are called upon to rely on the testimony of another in 
order to form a judgment as to certain facts, we must be certain, 1st. That 
he knows the facts in question, and that he is not mistaken; and, 2d. That 
he is disposed to tell the truth, and has no desire to impose on those who 
are to form a judgment on his testimony. The confidence therefore, which we 
give to the witness must be considered, in the first place, by his capacity 
or his organization, and in the next, by the interest or motive which he has 
to tell or not to tell the truth. When the facts to which the witness 
testifies agree with the circumstances which are known to exist, he becomes 
much more credible than when there is a contradiction in this respect. It is 
true that until impeached one witness is as good as another; but when a 
witness is impeached, although he remains competent, he is not as credible 
as before. Vide Circumstances; Competency; Credibility. 
     6.-11. As to the quality of the witnesses, it is a general rule that 
all persons way be witnesses. To this there are various exceptions. A 
witness may be incompetent, 1. For want of understanding. 2. On account of 
interest. 3. Because his admission is contrary to public policy. 4. For want 
of religious principles; and, 5. On account of infamy. 
     7.-Sec. 1. Persons who want understanding, it is clear, cannot be 
witnesses, because they are to depose to facts which they know; and if they 
have no understanding, they cannot know the facts. There are two classes of 
persons of this kind. 
     8.-1. Infants. A child of any age capable of distinguishing between 
good and evil may be examined as a witness; and in all cases, the 
examination must be under oath or affirmation. 1 Phil. Ev. 19; 1 Const. R. 
354. This appears to be the rule in England; though formerly it was held by 
some judges that it was a presumption of law that the child was incompetent 
when he was under seven years of age. Gilb. Ev. 144; 1 East, R. 422; 1 East, 
P. C. 443; 1 Leach, 199. When the child is under fourteen, he is presumed 
incapable until capacity is shown; 2 Tenn. Rep. 80; 19 Mass. R. 225; and see 
18 John. R. 105; when he is over fourteen he may be sworn without a previous 
examination. 2 South. R. 589. 
     9.-2. Idiots and lunatics. An idiot cannot be examined as a witness, 
but a lunatic, (q.v.) during a lucid interval, (q.v.) may be examined. A 
person in a state of intoxication cannot be admitted as a witness. 15 Serg. 
& Rawle, 235. See Ray, Med. Jur. c. 22, Sec. 300 to 311. 
     10.-Sec. 2. Interest in the event of the suit excludes the witness from 
examination, unless under certain circumstances. See article Interest. The 
exceptions are the cases of informers, (q.v.) when the statute makes them 
witnesses, although they may be entitled to a penalty; 1 Phil. Ev. 96; 
persons entitled to a reward, (q.v.) are sometimes competent; agents are 
also admitted in order to prove a contract made by them on the part of the 
principal, 1 Phil. Ev. 99; and see 1 John. Cas. 408; 2 John. Cas. 60; 2 
John. R. 189; 13 Mass. R. 380; 11 Mass. R. 60; 2 Marsh. In 706 b; 1 Dall. R. 
7; 1 Caines' R. 167. A mere trustee may be examined by either party. 1 
Clarke, R. 281. An interested witness competency may be restored by a 
release. 1 Phil. Ev. 101. Vide, generally, 1 Day's R. 266, 269; 1 Caines' R. 
276; 8 John. R. 518; 4 Mass. R. 488; 3 John. Cas. 82, 269; 1 Hayw. 2; 5 
Halst. R. 297; 6 Binn. R. 319; 4 Binn. 83; 1 Dana's R. 181; 1 Taylor's R. 
55; Bac. Ab. Evidence B; Bouv. Inst. Index, h.t. 
     11.-Sec. 3. There are some persons who cannot be examined as witnesses, 
because it is inconsistent with public policy that they should testify 
against certain persons; these are, 
     12.-1. Husband and wife. The reason for excluding them from giving 
evidence, either for or against each other, is founded partly on their 
identity of interest, partly on a principle of public policy which deems it 
necessary to guard the security and confidence of private life, even at the 
risk of an occasional failure of justice. They cannot be witnesses for each 
other because their interests are absolutely the same; they are not 
witnesses against each other, because it is against the policy of marriage. 
Co. Litt. 6, b; 2 T. R. 265, 269; 6 Binn. 488. This is the rule when either 
is a party to a civil suit or action. 
     13. But where one of them, not being a party, is interested in the 
result, there is a distinction between the giving evidence for and against 
the other. It is an invariable rule that neither of them is a witness for 
the other who is interested in the result, and that where the husband is 
disqualified by his interest, the wife is also incompetent. 1 Ld. Raym. 744; 
2 Str. 1095; 1 P. Wms. 610. 
     14. On the other hand, where the interest of the husband, consisting in 
a civil liability, would not have protected him from examination, it seems 
that the wife must also answer, although the effect may be to subject her 
husband to an action. This case differs very materially from those where the 
husband himself could not have been examined, either because he was a party 
or because he would criminate himself. The party to whom the testimony of 
the wife is essential, has a legal interest in her evidence; and as he might 
insist on examining the husband, it would, it seems, be straining the rule 
of policy too far to deprive him of the benefit of the wife's testimony. In 
an action for goods sold and delivered, it has been held that the wife of a 
third person is competent to prove that the credit was given to her husband. 
1 Str. 504; B. N. P. 287. See 1 H. & M. 154; 11 Mass. 286; 1 Har. & J. 478; 
1 Tayl. 9; 6 Binn. 488; 1 Yeates; 390, 534. 
     15. When neither of them is either a party to the suit, nor interested 
in the general result, the husband or wife is, it seems, competent to prove 
any fact, provided the evidence does not directly criminate, or tend to 
criminate, the other. 2 T. R. 263. 
     16. It has been held in Pennsylvania that the deposition of a wife on 
her deathbed, charging her husband with murdering her, was good evidence 
against him, on his trial for murder. Addis. 332. On an indictment for a 
conspiracy in inveigling a young girl from her mother's house, and she being 
intoxicated, procuring the marriage ceremony to be recited between her and 
one of the defendants, the girl is a competent witness to prove the facts. 2 
Yeates, 114. 
     17. See, as to the competency of a wife de facto, but not de jure, 
Stark. Ev, pt. 4, p. 711. And on an indictment for forcible entry, the wife 
of the prosecutor was examined as a witness to prove the force, but only the 
force. 1 Dall. 68. 
     18. 2. Attorneys. They cannot be examined as witnesses as to 
confidential communications which they have received from their clients, 
made while the relation of attorney and client subsisted. 3 Johns. Cas. 198. 
See 3 Yeates, 4. Communications thus protected must have been made to him as 
instructions necessary for conducting the cause, and not any extraneous or 
impertinent matter; 3 Johns. Cas. 198; they must have been made to him in 
the character of a counsel and not as a friend merely; 1 Caines' R. 15 7; 
they must have been made while the relation of counsel and client existed, 
and not after. 13 John. Rep. 492. An attorney may be examined as to the 
existence of a paper entrusted to him by his client, and as to the fact that 
it is in his possession, but he cannot be compelled to produce it, or 
disclose its date or contents. 17 Johns. R. 335. See 18 Johns. R. 330. He 
may also be called to prove a collateral fact not entrusted to him by his 
client; as to prove. his client's handwriting. 19 Johns. R. 134: 3 Yeates, 
4. He is a competent witness for his client, although his judgment fee 
depends upon his success; 1 Dall. 241; or he expects to receive a larger fee 
from his client if the latter succeeds. 4 S. & R. 82. In Louisiana, the 
reverse has been decided. It is there held that an attorney cannot become a 
witness for his client in a cause in which he was employed, by renouncing 
his fee, and having his name struck off from the record, in that case. 3 N. 
S. 88. Vide Confidential Communications. 
     19.-3. Confessors. In New York it has been held that a confessor could 
not be compelled to disclose secrets which he had received in auricular 
confession. City Hall Rec. 80 n. Vide Confessor; Confidential 
Communications. 
     20.-4. Jurors. A juror is not competent to prove his own or the conduct 
of his fellow jurors to impeach a verdict they have rendered. 5 Conn. R. 
348. See Coxe, R. 166, and article Grand Jury. And a judge in a cause which 
is on trial before him cannot be a witness, as he cannot decide on his own 
competency, nor on the weight of his own testimony, compared with that of 
another; 2 Mart. R. N. S. 312; 1 Greenl. Ev. Sec. 364. 
     21.-5. Slaves. It is said that a slave could not be a witness at common 
law because of the unbounded influence his master had over him. 4 Dall. R. 
145, note 1; but see 1 St. Tr. 113 Macnally's Ev. 156. By statutory 
provisions in the slave states, a slave is generally held incompetent in 
actions between white persons. See 7 Monr. R. 91; 4 Ham. R. 353; 5 Litt. R. 
171; 3 Harr. & John. 97; 1 McCord, R. 430. In New York a free black man is 
competent to prove facts happening while he was a slave. 1 John. R. 508; see 
10 John. R. 132. 
     22.-6. A party to a negotiable instrument, is not allowed to give 
evidence to invalidate it. 1 T. R. 300. But the rule is confined to 
negotiable instruments. 1 Bl. R. 365. This rule does not appear to be very 
firmly established in England. In the state courts of some of the United 
States it has been adopted, and may now be considered to be law. 2 Dall. R. 
194; ld. 196; 2 Binn. R. 154; 2 Dall. R. 242; 1 Cain. R. 258, 267; 2 Johns. 
R. 165; Id. 258; 1 John. R. 572; 3 Mass R. 559; Id. 565; Id. 27; Id. 31; 1 
Day, R. 17; 6 Pet. 51; 8 Pet. 12; 5 Greenl. 374; 1 Bailey, 479; 2 Dall. 194. 
But flee 16 John. 70; 8 Wend. 90; 20 John. 285. The witness may however 
testify to subsequent facts, not tending to show that the instrument was 
originally invalid. Peake's N. P. C. 6. See 2 Wash. 63; 1 Hen. & Munf. 165, 
166, 175; 1 Cranch, R. 194. 
     23.-Sec. 4. When the witness has no religious principles to bind his 
conscience, the law rejects his testimony; but there is not such defect of 
religious principles, when the witness believes in the existence of a God, 
who will reward or punish in this world or that which is to come. Willes' R. 
550. Vide the article Infidel where the subject is more fully examined and 
Atheist; Future state. 
     24.-Sec. 5. Infamy (q.v.) is a disqualification while it remains. 
     25.-III. As to the number of witnesses, it is a general rule that one 
witness is sufficient to establish a fact, but to this there are exceptions, 
both in civil and criminal cases. 
     26.-1. In civil cases. The laws of perhaps all the states of the Union 
require two witnesses and some require even more, to prove the execution of 
a last will and testament devising lands. 
     27.-2. In criminal cages, there are several instances where two 
witnesses at least are required. The constitution of the United States, art. 
3, s. 3, provides that no person shall be convicted of treason, unless on 
the testimony of two witnesses to the same overt act, or on confession in 
open court. In cases of perjury there must evidently be two witnesses, or 
one witness, and such circumstances as have the effect of one witness; for 
if there be but one witness, then there is oath against oath, and therefore 
uncertainty. 
     28. A witness may be compelled to attend court. In the first place a 
subpoena requiring his attendance must be served upon him personally, and on 
his neglect to attend, an attachment for contempt will be issued. See, 
generally, Bouv. Inst. Index, h.t. 

WITNESS, AGED. It has been laid down as a rule that to be considered an aged 
witness, a person must be at least seventy years old. See Aged Witness. 

WITNESS, GOING. A going witness is one who is about to leave the 
jurisdiction of the court in which a cause is depending. See Going Witness. 

WITNESS INSTRUMENTARY, Scotch law. He who has attested a deed or other 
writing. 
     2. When witnesses attest a deed without knowing the grantor, and seeing 
him subscribe, or bearing him own his subscription, and the deed happens to 
be forged, the witnesses are declared accessory to forgery. Ersk. Pr. L. 
Scot, 4, 4, 37; 6 Hill, N. Y. Rep. 303. 

WOMEN, persons. In its most enlarged sense, this word signifies all the 
females of the human species; but in a more restricted sense, it means all 
such females who have arrived at the age of puberty. Mulieris appellatione 
etiam virgo viri potens continetur. Dig. 50, 16, 13. 
     2. Women are either single or married. 1. Single or unmarried women 
have all the civil rights of men; they may therefore enter into contracts or 
engagements; sue and be sued; be trustees or guardians, they may be 
witnesses, and may for that purpose attest all papers; but they are 
generally, not possessed of any political power; hence they cannot be 
elected representatives of the people, nor be appointed to the offices of 
judge, attorney at law, sheriff, constable, or any other office, unless 
expressly authorized by law; instances occur of their being appointed 
postmistresses nor can they vote at any election. Woodes. Lect. 31; 4 Inst. 
5; but see Callis, Sew. 252; 2 Inst 34; 4 Inst. 311, marg. 
     3.-2. The existence of a married woman being merged, by a fiction of 
law, in the being of her husband, she is rendered incapable, during the 
coverture, of entering into any contract, or of suing or being sued, except 
she be joined with her husband; and she labors under all the incapacities 
above mentioned, to which single women are subject. Vide Abortion; Contract; 
Divorce; Feminine; Foetus; Gender; Incapacity; Man; Marriage; Masculine; 
Mother; Necessaries; Parties to Actions Parties to Contracts; Pregnancy; 
Wife. 

WOODGELD, old Eng. law. To be free from the payment of money for taking of 
wood in any forest. Co. Litt. 233 a. The same as Pudzeld. (q.v.) 

WOODS, A piece of land on which forest trees in great number naturally grow. 
According to Lord Coke, a grant to another of omnes boscos suos, all his 
woods, will pass not only all his trees, but the land on which they grow. 
Co. Litt. 4 b. 

WORD, construction. One or more syllables which when united convey an idea a 
single part of speech. 
     2. Words are to be understood in a proper or figurative sense, and they 
are used both ways in law. They are also used in a technical sense. It is a 
general rule that contracts and wills shall be construed as the parties 
understood them; every person, however, is presumed to understand the force 
of the words be uses, and therefore technical words must be taken according 
to their legal import, even in wills, unless the testator manifests a clear 
intention to the contrary. 1 Bro. C. C. 33; 3 Bro. C. C. 234; 5 Ves. 401 8 
Ves. 306. 
     3. Every one is required to use words in the sense they are generally 
understood, for, as speech has been given to man to be a sign of his 
thoughts, for the purpose of communicating them to others, he is bound in 
treating with them, to use such words or signs in the sense sanctioned by 
usage, that is, in the sense in which they themselves understand them, or 
else he deceives them. Heinnec. Praelect. in Puffendorff, lib. 1, cap. 17, 
Sec. 2 Heinnec. de Jure Nat. lib. 1, Sec. 197; Wolff, lust. Jur. Nat. Sec. 
7981. 
     4. Formerly, indeed, in cases of slander, the defamatory words received 
the mildest interpretation of which they were susceptible, and some 
ludicrous decisions were the consequence. It was gravely decided, that to 
say of a merchant, "he is a base broken rascal, has broken twice, and I will 
make him break a third time," that no action could be maintained, because it 
might be intended that he had a hernia: ne poet dar porter action, car poet 
estre intend de burstness de belly. Latch, 104. But now they are understood 
in their usual signification. Comb. 37; Ham. N. P. 282. Vide Bouv. Inst. 
Index, h.t.; Construction; Interpretation. 

WORK AND LABOR. In actions of assumpsit, it is usual to put in a count, 
commonly called a common count, for work and labor done, and materials 
furnished by the plaintiff for the defendant; and when the work was not done 
under a special contract, the plaintiff will be entitled to recover on the 
common count for work, labor, and materials. 4 Tyr. R. 43; 2 C. & M. 214. 
Vide Assumpsit; Quantum meruit. 

WORKHOUSE. A prison where prisoners are kept in employment; a penitentiary. 
A house provided where the poor are taken care of, and kept in employment. 

WORKING DAYS. In settling laydays, (q.v.) or days of demurrage, (q.v.) 
sometimes the contract specifies working days in the computation, Sundays 
and custom-house holidays are excluded. 1 Bell's Com. 577, 5th ed. 

WORKMAN. One who labors, one who is employed to do business for another. 
     2. The obligations of a workman are to perform the work he has 
undertaken to do; to do it in proper time; to do it well to employ the 
things furnished him according to his contract. 
     3. His rights, are to be paid what his work is worth, or what it 
deserves; to have all the facilities which the employer can give him for 
doing his work. 1 Bouv. Just. n. 1000 to 1006. 

WORSHIP. The honor and homage rendered to the Creator. 
     2. In the United States, this is free, every one being at liberty to 
worship God according to the dictates of his conscience. Vide Christianity; 
Religious test. 

WORSHIP, Eng. law. A title or addition given to certain persons. 2 Inst. 
666; Bac. Ab. Misnomer, A 2. 

WORTHIEST OF BLOOD. All expression to designate that, in descent, the sons 
are to be preferred to daughters, which is the law of England. See some 
singular reasons given for this, in Plowd. 305. 

WOUND, med. jur. This term, in legal medicine, comprehends all lesions of 
the body, and in this it differs from the meaning of the word when used in 
surgery. The latter only refers to a solution of continuity, while the 
former comprises not only these, but also every other kind of accident, such 
as bruises, contusions, fractures, dislocations, and the like. Cooper's 
Surgical Dict. h.t.; Dunglison's Med. Dict. h.t.; vide Dictionnaire des 
Sciences Medicales, mot Blessures 3 Fodere, Med. Leg. Sec. 687-811. 
     2. Under the statute 9 Geo. IV. c. 21, sect. 12, it has been held in 
England, that to make a wound, in criminal cases, there must be "an injury 
to the person by which the skin is broken." 6 C. & P. 684; S. C. 19 Eng. C. 
L. Rep. 526. Vide Beck's Med. Jur. c. 15; Ryan's Med. Jur. Index, h.t.; 
Roscoe's Cr. Ev. 652; 19 Eng. Com. L. Rep. 425, 430, 526, 529; Dane's Ab. 
Index, h.t.; 1 Moody's Cr. Cas. 278; 4 C. & P. 381; S. C. 19 E. C. L. R. 
430; 4 C. & P. 446; S. C. 19 E. C. L. R. 466; 1 Moody's Cr. C. 318; 4 C. & 
P. 558; S. C. 19 E. C. L. R. 526; Carr. Cr. L. 239; Guy, Med. Jur. ch. 9, p. 
446; Merl. Repert. mot Blessure. 
     3. When a person is found dead from wounds, it is proper to inquire 
whether they are the result of suicide, accident, or homicide. In making the 
examination, the greatest attention should be bestowed on all the 
circumstances. On this subject some general directions have been given under 
the article Death. The reader is referred to 2 Beck's Med. Jur. 68 to 93. As 
to, wounds on the living body, see Id. 188. 

WRECK, mar. law. A wreck (called in law Latin, wreccum maris, and in law 
French, wrec de mer,) signifies such goods, as after a shipwreck, are cast 
upon land by the sea, and left there within some county, so as not to belong 
to the jurisdiction of the admiralty, but to the common law. 2 Inst. 167; 
Bract. 1. 3, c. 3; Mirror, c. 1, s. 13, and c. 3. 
     2. The term `wreck of the sea' includes, 1. Goods found at low water, 
between high and low water mark; and 2. Goods between the same limits, 
partly resting on the ground, but still moved by the water. 3 Hagg. Adm. R. 
257. 
     3. When goods have touched the ground, and have again been floated by 
the tide, and are within low water mark; whether they are to be considered 
wreck will depend upon the circumstances whether they were, seized by a 
person wading, or swimming, or in a boat. 3 Hagg. Adm. R. 294. But if a 
human being, or even an animal, as a dog, cat, hawk, &c. escape alive from 
the ship, or if there be any marks upon the goods by which they may be known 
again, they are not, at common law, considered as wrecked. 5 Burr. 2738-9; 2 
Chit. Com. Law, c. 6, p. 102; 2 Kent, Com. 292; 22 Vin. Ab. 535; 1 Bro. Civ. 
Law, 238; Park, Ins. Index, h.t.; Molloy, Jur. Mar. Index, h.t. 
     4. The act of congress of March 1, 1823, provides, Sec. 21, That, 
before any goods, wares or merchandise, which may be taken from any wreck, 
shall be admitted to an entry, the same shall be appraised in the manner 
prescribed in the sixteenth section of this act and the same proceedings 
shall be ordered and executed in all cases where a reduction of duties shall 
be claimed on account of damage which any goods, wares, or merchandise, 
shall have sustained in the course of the voyage and in all cases where the 
owner, importer, consignee, or agent, shall be dissatisfied with such 
appraisement, he shall be entitled to the privileges provided in the 
eighteenth section of this act. Vide Naufrage. 

WRIT, practice. A mandatory precept issued by the authority, and in the name 
of the sovereign or the state, for the purpose of compelling the defendant 
to do something therein mentioned. 
     2. It is issued by a court or other competent jurisdiction, and is 
returnable to the same. It is to be under seal and tested by the proper 
officer, and is directed to the sheriff, or other officer lawfully 
authorized to execute the same. Writs are divided into, 1. Original. 2. Of 
mesne process. 3. Of execution. Vide 3 Bl. Com. 273; 1 Tidd, Pr. 93; Gould 
on Pl. c. 2, s. 1. There are several kinds of writs, some of which are 
mentioned below. 

WRIT DE BONO ET MALO. An ancient writ which was issued in the case of each 
prisoner, instead of a general commission of general jail delivery for all 
the prisoners. This writ has not been used for a very long time, and is 
obsolete. 4 Bl. Com. 210. 

WRIT OF CONSPIRACY. The name of an ancient writ, now superseded by the more 
convenient remedy of an action on the case, which might have been sued 
against parties guilty of a conspiracy. F. N. B. 260. See Conspiracy. 

WRIT OF DECEIT. The name of a writ which lies where one man has done 
anything in the name of another, by which the latter is damnified and 
deceived. F. N. B. 217. 
     2. The modern practice is to sue a writ of trespass on the case to 
remedy the injury. See Deceit. 

WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment, and 3 Bl. 
Com. 199. 

WRIT DE HAERETICO COMBURENDO, Eng. law. The name of a writ formerly issued 
by the secular courts, when a man was turned over to them by the 
ecclesiastical tribunals, after having been condemned for heresy. 
     2. It was founded on the statute 2 Hen. IV. c. 15; it was first used, 
A. D. 1401, and as late as the year 1611. By virtue of this writ, the 
unhappy man against whom it was issued, was burned to death. See 12 Co. R. 
92. 

WRIT DE HOMINE RELEGIANDO, practice. A writ which lies to replevy a man out 
of prison, or out of the custody of any private person, in the same manner 
in which cattle taken in distress may be replevied, upon giving security to 
the sheriff that the man shall be forthcoming to answer to any charge 
against him. 
     2. This writ is almost entirely superseded by the more effectual writ 
of habeas corpus. 3 Bl. Com. 129; Com. Dig. Imprisonment, L 4; Lord Raym. 
613; F. N. B. 66; 1 Atk. 633; 14 Vin. Ab. 305; Dane's Ab. h.t.; 7 Com. Dig. 
271; 5 Binn. R. 304; 1 John. R. 23; 14 John. R. 263 2 Cain. C. Err. 322. 

WRIT DE ODIO ET ATIA, Eng. law. This writ is probably obsolete, and 
superseded by the writ of habeas corpus. It was anciently directed to the 
sheriff, commanding him to inquire whether a prisoner charged with murder 
was committed upon just cause or suspicion, or merely propter odium et 
atiam, for hatred and ill-will; and, if upon the inquisition due cause of 
suspicion did not appear, then there issued another writ for the sheriff to 
admit him to bail, 3 Bl. Com. 128; Com. Dig. Imprisonment, L 3. 

WRIT OF COVENANTS, practice. A writ which lies where a party claims damage 
for breach of covenant, i. e. of a promise under seal. 

WRIT OF DEBT, practice. A writ which lies where the party claims the 
recovery of a debt, i. e. a liquidated or certain sum of money alleged to be 
due to him. This is debt in the debet, which is the principal and only 
common form. There is another species mentioned in the books, called the 
debt in the detinet, which lies for the specific recovery of goods, under a 
contract to deliver them. 1 Chit. Pl. 101. 

WRIT OF DETINUE, practice. A writ which lies where a party claims the 
specific recovery of goods and chattels, or deeds and writings detained from 
him. This is seldom used: trover is the more frequent remedy, in cases where 
it may be brought. 

WRIT OF DOWER, practice. A writ which lies for a widow claiming the specific 
recovery of her dower, no part having been yet assigned to her. It is 
usually called a writ of dower unde nihil habet. 3 Chit. Pl. 393; Booth, 
166. 
     2. There is another species, called a writ of right of dower, which 
applies to the particular case where the widow has received a part of her 
dower from the tenant himself, and of land lying in the same town in which 
she claims the residue. Booth, 166; Glanv. lib. 6, c. 4, 5. This latter writ 
is seldom used in practice. 

WRIT OF EJECTMENT, practice. The name of a process issued by a party 
claiming land or other real estate, against one who is alleged to be 
unlawfully in possession. Vide Ejectment. 

WRIT OF ENTRY, practice. A writ requiring the sheriff to command the tenant 
of land that he render to the demandant the premises in question, or to 
appear in court on such a day to show cause why he hath not done so. Co. 
Litt. 238. See 2 Pick. 473; 10 Pick. 359; 14 Mass. 20; 15 Mass. 305; 5 N. 
Hamp. R. 450; 6 N. Hamp. R. 555; 7 Pick. 36. 

WRIT OF ERROR, practice. A writ issued out of a court of competent 
jurisdiction, directed to the judge of a court of record in which final 
judgment has been given, and commanding them, in some cases, themselves to 
examine the record; in others to send it to another court of appellate 
jurisdiction, therein named, to be examined in order that some alleged error 
in the proceeding may be corrected. Steph. Pl. 138; 2 Saund. 100, n. 1; Bac. 
Ab. Error, in pr. 
     2. The first is called a writ of error coram nobis or vobis. When an 
issue in fact has been decided, there is not in general any appeal except by 
motion for a new trial; and although a matter. of fact should exist which 
was not brought into the issue, as for example, if the defendant neglected 
to Plead a release, which he might have pleaded, this is no error in the 
proceedings, though a mistake of the defendant. Steph. Pl. 139. But there 
are some facts which affect the validity and regularity of the proceeding 
itself, and to remedy these errors the party in interest may sue out the 
writ of error coram vobis. The death of one of the parties at the 
commencement of the suit; the appearance of an infant in a personal action, 
by an attorney, and not by guardian; the coverture of either party, at the 
commencement of the suit, when her husband is not joined with her, are 
instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212; 2 Tidd's Pr. 1033; 
Steph. Pl. 140 1 Browne's Rep. 75. 
     3. The second species is called, generally, writ of error, and is the 
more common. Its object is to review and correct an error of the law 
committed in the proceedings, which is not amendable, or cured at common 
law, or by some of the statutes of amendment or jeofail. Vide, generally, 
Tidd's Pr. ob. 43; Graham's Pr. B. 4, o. 1; Bac. Ab. Error; 1 Vern. 169; 
Yelv. 76; 1 Salk. 322; 2 Saund. 46, n. 6, and 101, n. 1; 3 Bl. Com. 405; 
Serg. Const. Law, ch. 5. 
     4. In the French law the demande en cassation is somewhat similar to 
our proceeding in error; according to some of the best writers on French 
law, it is considered as a new suit, and it is less an action between the 
original parties, than a question between the judgment and the law. It is 
not the action which is to be judged, but the judgment; "la demande en 
cassation est un nouveau proces, bien moins entre les parties qui figuraient 
dans le premier, qu'entre l'arret et la loi." Henrion de Pansey, de 
l'Autorite judiciare dans les gouvernemens monarchiques, p. 270, edit. in 8 
vols.; 6 Toull. n. 193. Ce n'est point le' proces qu'il s'agit de juger, 
mais le jugement. Ib. 
     5. A writ of error is in the nature of a suit or action, when it is to 
restore the party who obtains it to the possession of any thing which is 
withheld from him, not when its operation is entirely defensive. 3 Story. 
Const. Sec. 1721. And it is considered generally as a new action. 6 Port 9. 

WRIT OF EXECUTION, practice. A writ to put in force the sentence that the 
law has given: it is addressed to the Sheriff (and in the courts of the 
United States, to the marshal) commanding him, according to the nature of 
the case, either to give the plaintiff possession of lands; or to enforce 
the delivery of a chattel which was the subject of the action; or to levy 
for the plaintiff, the debt, or damager, and costs recovered; or to levy for 
the defendant his costs; and that, either upon the body of the opposite 
party, his lands, or goods, or in some cases, upon his body, land, and 
goods; the extent and manner of the execution directed, always depending 
upon the nature of the judgment. 3 Bl. Com. 413. 
     2. Writs of execution are supposed to be actually awarded by the judges 
in court; but no such award is in general, actually made. The attorney, 
after signing final judgment, sues out of the proper office a writ of 
execution, in the form to which he conceives he would be entitled upon such 
judgment as he. has entered, if such entry has been actually made; and, if 
not made, then upon such as he thinks he is entitled to enter; and he does 
this, of course, upon peril that, if he takes a wrong execution, the 
proceeding is legal and void, and the opposite party entitled to redress. 
Steph. Pl, 137, 8. See Ca. Sa.; Execution; Fi. Fa.; Haberefa. possessionem; 
Vend. Exp. 

WRIT OF EXIGI FACIAS. The name of a process issued in the course of 
proceedings in outlawry, and which immediately precedes the writ of capias 
agatum. See Exigent, or Exigi Facias. 

WRIT OF FORMEDON, practice. This writ lies where a party claims the specific 
recovery of lands and tenements, as issue in tail; or as remainder-man or 
reversioner, upon the determination of an estate in tail. Co. Litt. 236 b; 
Booth, 139, 151, 154. 

WRIT OF INQUIRY, practice. When in an action sounding in damages, (q.v.) as 
covenant, trespass, and the like, an interlocutory judgment is rendered, 
which is, that the plaintiff ought to recover his damages, without 
specifying the amount, it not yet being ascertained, the court does not in 
general undertake the office of assessing the damages, but issues a writ of 
inquiry, which is a writ directed to the sheriff of the county where the 
facts are alleged by the pleadings to have occurred, commanding him to 
inquire into the amount of damages sustained "by the oath or affirmation of 
twelve good or lawful men of his county;" and to return such inquisition, 
when made, to the court. 
     2. The finding of the sheriff and jury under such a proceeding is 
called an inquisition. (q.v.) 
     3. The court will, on application, order that a writ of inquiry shall 
be executed before a judge, where it appears that important questions of law 
will arise. 2 John. R. 107. 
     4. When executed before the sheriff, he acts ministerially, and not 
judicially, and therefore, it may be executed before a deputy of the 
sheriff. 2 John R. 63. Vide Steph. Pl. 126; Grah. Pr. 639; 2 Archb. Pr. 19; 
Tidd's Pr. 513; Yelv. 152, n.; 18 Eng. Com. Law Rep. 181, n., 189, n.; 1 
Marsh. R. 129; l Sell. Pr. 346; Watson on Sher. 221; 2 Saund. 107, n. 2. 

WRITS, JUDICIAL, practice. In England those writs which issue from the 
common law courts during the progress of a suit, are described as judicial 
writs, by way of distinction from the original one obtained from chancery. 3 
Bl. Com. 282. 

WRIT OF MAINPRIZE, English law. A writ directed to the sheriff (either 
generally, when any man is imprisoned for a bailable offence, and bail has 
been refused; or specially, when the offence or cause of commitment is not 
properly bailable below) commanding him to take sureties for the prisoner's 
appearance, commonly called mainpernors, and to set him at large. 3 B]. Com. 
128. Vide Mainprize. 

WRIT OF MESNE, Breve' de medio, old English law. A writ which was so called, 
by reason of the words used in the writ, namely, Unde idem A qui medius est 
inter C et praefatum B; that is, A, who is mesne between C, the lord 
paramount, and B, the tenant paravail. Co. Litt. 100, a. 

WRIT, ORIGINAL, practice, English law. An original writ is a mandatory 
letter issuing out of the court of chancery under the great seal and in a 
king's name, directed to the sheriff of the county where the injury is 
alleged to have been committed, containing a summary statement of the cause 
of complaint, and requiring him in most cases, to command the defendant to 
satisfy the claim; and, on his failure to comply, then to summon him to 
appear in one of the superior courts of common law, there to account for his 
non-compliance. In some cases, however, it omits the former alternative, and 
requires the sheriff simply to enforce the appearance. Steph. Pl. 5. 

WRIT OF REPLEVIN, practice. The name of a process issued for the recovery of 
goods and chattels. Vide Replevin. 

WRIT OF PRAECIPE. This writ is also called a writ of covenant, and is sued 
out by the party to whom lands are to be conveyed by fine; the foundation of 
which is a supposed agreement or covenant that the one shall convey the land 
to the other. 2 Bl. Com. 349, 350. 

WRIT OF PREVENTION. This name is given to certain writs which may be issued 
in anticipation of suits which may arise. Co. Litt. 100. See Quia Timet. 

WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out by a widow when 
the executors of her deceased husband refused to let her have a third part 
of her late husband's goods after the debts were paid. F. N. B. 284. 

WRIT OF RESTITUTION. A writ which is issued on the reversal of a judgment, 
commanding the sheriff to restore to the defendant below, the thing levied 
upon, if it has not been sold, and if it has been sold, the proceeds. Bac. 
Ab. Execution, Q. Vide Restitution. 

WRIT PRO RETORNO HABENDO, remedies, practice. The name of a writ which 
recites that the defendant was summoned to appear to answer the plaintiff in 
a plea whereof he took the cattle of the said plaintiff, specifying them, 
and that the said plaintiff afterwards made default, wherefore it was then 
considered that the said plaintiff and his pledges of prosecuting should be 
in mercy and that the said defendant should go without day, and that he 
should have return of the cattle aforesaid. It then commands the sheriff, 
that he should cause to be returned the cattle aforesaid, to the said 
defendant without delay, &c. 2 Sell. Pr. 168. Vide Judgment in replevin. 

WRIT OF PROCESS, Eng. law, practice. If the defendant does not appear, in 
obedience to the original writ, there issue, when the time for appearance is 
past, other writs, returnable on some general return day in the term, called 
writs of process, enforcing the appearance of the defendant, either by 
attachment, or distress of his property, or arrest of his person, according 
to the nature of the case. 
     2. These differ from the original writ in the following particulars; 
they issue not out of chancery, but out of the court of common law, into 
which the original writ is returnable; and, accordingly, are not under the 
great seal, but the private seal of the court; and they bear teste in the 
named of the chief justice of that court, and not in the name of the king 
himself. It may also be observed, that in common with all other writs 
issuing from the court of common law, during the progress of the suit, they 
are described as judicial writs, by way of distinction from the original one 
obtained from the chancery. 4 Bl. Com. 282. See further, as to the nature of 
those writs, 1 Tidd's Pr. 106-193, 4th edit.; 1 Sellon's Pr. 64-102. 

WRIT OF PROCLAMATION, Eng. practice. A writ which issues, at the same time 
with the exigi facias, by virtue of Stat. 31 Eliz. c. 3, s. 1, by which the 
sheriff is commanded to make proclamations in the statute prescribed. 
     2. When it is not directed to the same sheriff as the writ of exigi 
facias is, it is called a foreign writ of proclamation. Lee's Dict. of Pr.; 
4 Reev. Inst. 261. 

WRIT OF QUARE IMPEDIT, English law. The remedy by which, where the right of 
a party to benefice is obstructed, he recovers the presentation; and is the 
form of action now constantly adopted to try a disputed title to an 
advowson. Booth, 223 1 Arch. Civ. Pl. 434. 

WRIT OF RECAPTION, practice. This writ lies where, pending an action of 
replevin, the same distrainor takes, for the same supposed cause, the cattle 
or goods of the same distrainee. See F. N. B. 169. 
     2. This writ is nearly obsolete, as trespass, which is found to be a 
preferable remedy, lies for the second taking; and, as the defendant cannot 
justify, the plaintiff must necessarily recover damages proportioned to the 
injury. 

WRIT OF RIGHT, practice. The remedy appropriate to the case where a party 
claims the specific recovery of corporeal hereditaments in fee simple; 
founding his title on the right of property, or mere right, arising either 
from his own seisin, or the seisin of his ancestor or predecessor. F. N. B. 
1 B 3 Bl. Com. 391. 
     2. At common law, a writ of right lies only against the tenant of the 
freehold demanded. 8 Cranch, 239. 
     3. This writ brings into controversy only the rights of the parties in 
the suit, and a defence that a third person has better title will not avail. 
Id.; 7 Wheat. 27; 3 Pet. 133. See 2 Wheat. 306; 4 Bing. N. S. 711; 3 Bing. 
N. S. 434; 4 Scott, R. 209; 6 Scott, R. 435; Id. 738; 1 Bing. N. S. 597; 5 
Bing. N. S. 161; 6 Ad. & Ell. 103; 1 H. Bl. 1; 5 Taunt. R. 326; 1 Marsh. R. 
68; 2 Bos. & P. 570; 1 N. R. 64; 4 Taunt. R. 572; 3 Bing. R. 167; 2 W. Bl. 
Rep. 1261; 1 B. & B. 17; 2 Car. & P. 187; Id. 271 Holt, R. 657; 8 Cranch, 
229; 3 Fairf. 312; 7 Wend. 250; 3 Bibb, 57; 3 Rand. 568 2 J. J. Marsh. 104; 
2 A. K. Marsh. 396; 1 Dana, 410; 2 Leigh, R. 1 4 Mass. 64; 17 Mass. 74. 

WRIT OF TRESPASS, practice. This writ lies where a party claims damages for 
a trespass committed against his person, or tangible and corporeal property. 
See Trespass. 

WRIT OF TRESPASS ON THE CASE, practice. A writ which lies where a party sues 
for damages for any wrong or cause of complaint to which covenant or 
trespass will not apply. See 3 Woodes. 167; Steph. Pl. 15. 
     2. This action originates in the power given by the statute of Westm. 
2, to the clerks of chancery to frame new writs in consimili casu with writs 
already known. Under this power they constructed many writs for different 
injuries, which were considered as in consimili casu, with, that is, to bear 
a certain analogy to a trespass. The new writs invented for the cases 
supposed to bear such analogy, have received, accordingly, the appellation 
of writs of trespass on the case, as being founded on the particular 
circumstances of the case thus requiring a remedy, and, to distinguish them 
from the old writ of trespass; 3 Reeves, 89, 243, 391; and the injuries 
themselves, which are the subjects of such writs, are not called trespasses, 
but have the general name of torts, wrong or grievances. 
     3. The writs of trespass on the case, though invented thus, pro re 
nata, in various forms, according to the nature of the different wrongs 
which respectively called them forth began nevertheless, to be viewed as 
constituting collectively a new individual form of action; and this new 
genus took its place, by the name of Trespass on the case, among the more 
ancient actions of debt, covenant, trespass, &c. Such being the nature of 
this action, it comprises, of course, many different species. There are two, 
however, of more frequent use than any other species of trespass on the 
case, or, perhaps, than any other firm of action whatever. These are 
assumpsit and trover. Steph. Pl. 15, 16. 

WRIT OF TOLT, Eng. law. The name of a writ to remove proceedings on a writ 
of right patent from the court baron into the county court. 3 Bl. 
Commentaries, App. No. 1, Sec. 2. 

WRIT OF WASTE. The name of a writ to be issued against a tenant who has 
committed waste of the premises. There are several forms of this writ, that 
against a tenant in dower differs from the others. F. N. B. 125. 

WRITING. The act of forming by the hand letters or characters of a 
particular kind on paper or other suitable substance, and artfully putting 
them together so as to convey ideas. It differs from printing, which is the 
formation of words on paper or other proper substance by means of a stamp. 
Sometimes by writing in understood printing, and sometimes printing and 
writing mixed. 
     2. Many contracts are required to be in writing; all deeds for real 
estate must be in writing, for it cannot be conveyed by a contract not in 
writing, yet it is the constant practice to make deeds partly in printing, 
and partly in writing. Wills, except nuncupative wills, must begin writing, 
and signed by the testator; and nuncupative wills must be reduced to writing 
by the witnesses within a limited time after the testator's death. 
     3. Records, bonds, bills of exchange and many other engagements, must, 
from their nature, be made in writing, See Frauds, statute of; Language. 

WRITING OBLIGATORY. A bond; an agreement reduced to writing, by which the 
party becomes bound to perform something, or suffer it to be done. 

WRONG. An injury; (q.v.) a tort (q.v.) a violation of right. In its most 
usual sense, wrong signifies an injury committed to the person or property 
of another, or to his relative rights, unconnected with contract; and these 
wrongs are committed with or without force. But in a more extended 
signification, wrong includes the violation of a contract; a failure by a 
man to perform his undertaking or promise is a wrong or injury to him to 
whom it was made. 3 Bl. Com. 158. 
     2. Wrongs are divided into public and private. 1. A public wrong is an 
act which is injurious to the public generally, commonly known by the name 
of crime, misdemeanor, or offence, and it is punishable in various ways, 
such as indictments, summary proceedings, and upon conviction by death, 
imprisonment, fine, &c. 2. Private wrongs, which are injuries to 
individuals, unaffecting the public: these are redressed by actions for 
damages, &c. 

WRONG-DOER. One who commits an injury, a tort-feasor. (q.v.) Vide Dane's 
Abridgment, Index, h.t. 

WRONGFULLY INTENDING. These words are used in a declaration when in an 
action for an injury, the motive of the defendant in committing it can be 
proved, for then his malicious intent ought to be averred. This is 
sufficiently done if it be substantially alleged, in general terms, as 
wrongfully intending. 3 Bouv. Inst. n. 2871. 
