MOTION, practice. An application to a court by one of the parties in a
cause, or his counsel, in order to obtain some rule or order of court, which he
thinks becomes necessary in the progress of the cause, or to get relieved in a
summary manner, from some matter which would work injustice.
2. When the motion. is made on some matter of fact, it must be supported by
an affidavit that such facts are true; and for this purpose, the party's
affidavit will be received, though, it cannot be read on the hearing. 1 Binn. R.
145; S. P. 2 Yeates' R. 546. Vide 3 Bl. Com. 304; 2 Sell. Pr. 356; 15 Vin. Ab.
495; Grah. Pr. 542; Smith's Ch. Pr. Index, h. t.
MOTIVE. The inducement, cause or reason why a thing is done.
2. When there is such a mistake in the motive, that had the truth been known,
the contract would pot have been made, it is generally void., For example, if a
man should, after the death of Titius, of which he was ignorant, insure his
life, the error of the motive would avoid the contract. Toull. Dr. Civ. Fr. liv.
3, c. 2, art. 1. Or, if Titius should sell to Livius his horse, which both
parties supposed to be living at some distance from the place where the contract
was made, when in fact, the horse was then dead, the contract would be void.
Poth. Vente, n. 4; 2 Kent, Com. 367. When the contract is entered into under
circumstances of clear mistake or surprise, it will not be enforced. See the
following authorities on this subject. 1 Russ. & M. 527; 1 Ves. jr. 221; 4
Price, 135; 1 Ves. jr. 210; Atkinson on Titl. 144. Vide Cause;
3. The motive of prosecutions is frequently an object of inquiry,
particularly when the prosecutor is a witness, and in his case, as that of any
other witness, when the motion is ascertained to be bad, as a desire of revenge
for a real or supposed injury, the credibility of the witness will be much
weakened, though this will not alone render him incompetent. See Evidence;
MOURNING. This word has several significations. 1. It is the apparel
worn at funerals, and for a time afterwards, in order to manifest grief for the
death of some one, and to honor his memory. 2. The expenses paid for such
2. It has been held in England, that a demand for mourning furnished to the
widow and family of the testator, is not a funeral expense. 2 Carr. & P.
207. Vide 14 Ves. 346; 1 Ves. & Bea. 364. See 2 Bell's Comm. 156.
MOVABLES, estates. Such subjects of property as attend a man's person
wherever he goes, in contradistinction to things immovable. (q. v.)
2. Things movable by their nature are such as may be carried from one place
to another, whether they move themselves, as cattle, or cannot be removed
without an extraneous power, as inanimate things. Movables are further
distinguished into such as are in possession, or which are in the power of the
owner, as, a horse in actual use, a piece of furniture in a man's own house; or
such as are in the possession of another, and can only be recovered by action,
which are therefore said to be in action, as a debt. Vide art. Personal
Property, and Fonbl. Eq. Index, h. t.; Pow. Mortg. Index, h. t.; 2 Bl. Com. 884;
Civ. Code of Lo. art. 464 to 472; 1 Bouv. Inst. n. 462.
MULATTO. A person born of one white and one black parent. 7 Mass. R.
88; 2 Bailey, 558.
MULCT, punishment. A fine imposed on the conviction of an offence.
MULCT, commerce. An imposition laid on ships or goods by a company of
trade, for the maintenance of consuls and the like. Obsolete.
MULIER. A woman, a wife; sometimes it is used to designate a
marriageable virgin, and in other cases the word mulier is employed in
opposition to virgo. Poth. Pand. tom. 22, h. t. In its most proper
signification, it means a wife.
2. A son or a daughter, born of a lawful wife, is called filius mulieratus or
filia mulierata, a son mulier, or a daughter mulier. The term is used always in
contradistinction to a bastard; mulier being always legitimate. Co. Litt.
3. When a man has a bastard son, and afterwards marries the mother, and has
by her another son, the latter is called the mulier puisne. 2 Bl. Com. 248.
MULTIFARIOUSNESS, equity pleading. By multifariousness in a bill, is
understood the improperly joining in one bill distinct matters, and thereby
confounding them; as, for example, the uniting in one bill, several matters,
perfectly distinct and unconnected, against one defendant; or the demand of
several matters of distinct natures, against several defendants in the same
bill. Coop. Eq. Pl. 182; Mitf. by Jeremy, 181; 2 Mason's R. 201; 18 Ves. 80;
Hardr. R. 337; 4 Cowen's R. 682; 4 Bouv. Inst. n. 4165.
2. In order to prevent confusion in its pleadings and decrees, a court of
equity will anxiously discountenance this multifariousness. The following case
will illustrate this doctrine; suppose an estate should be sold in lots to
different persons, the purchasers could not join in exhibiting one bill against
the vendor for a specific performance; for each party's case would be distinct,
and would depend upon its own peculiar circumstances, and therefore there should
be a distinct bill upon each contract; on the other hand, the vendor in the like
case, would not be allowed to file one bill for a specific performance against
all the purchasers of the estate, for the same reason. Coop. Eq. Pl. 182; 2
Dick. Rep. 677; 1 Madd. Rep. 88; Story's Eq . PI. 271 to 286. It is extremely
difficult to say what constitutes multifariousness as an abstract proposition.
Story, Eq. Pl. 530, 539; 4 Blackf. 249; 2 How. S. C. Rep. 619, 642; 4 Bouv.
Inst. n. 4243.
MULTITUDE. The meaning of this word is not very certain. By some it is
said that to make a multitude there must be ten persons at least, while others
contend that the law has not fixed any number. Co. Litt. 257.
MULTURE, Scotch law. The quantity of grain or meal payable to the
proprietor of the mill, or to the multurer, his tacksman, for manufacturing the
corns. Ersk. Prin. Laws of Scotl. B. 2 t. 9, n. 19.
MUNERA. The name given to grants made in the early feudal ages, which
were mere tenancies at will, or during the pleasure of the grantor. Dalr. Feud.
198, 199; Wright on Ten. 19.
MUNICIPAL. Strictly, this word applies only to what belongs to a city.
Among the Romans, cities were called municipia; these cities voluntarily joined
the Roman republic in relation to their sovereignty only, retaining, their laws,
their liberties, and their magistrates, who were thence called municipal
magistrates. With us this word has a more extensive meaning; for example, we
call municipal law, not the law of a city only, but the law of the state. 1 Bl.
Com. Municipal is used in contradistinction to international; thus we say an
offence against the law of nations is an international offence, but one
committed against a particular state or separate community, is a municipal
MUNICIPALITY. The body of officers, taken collectively, belonging to a
city, who are appointed to manage its affairs and defend its interests.
MUNIMENTS. The instruments of writing and written evidences which the
owner of lands, possessions, or inheritances has, by which he is enabled to
defend the title of his estate. Termes de la Ley, h. t.; 3 Inst. 170.
MURAGE. A toll formerly levied in England for repairing or building
MURAL MONUMENTS. Monuments made in walls.
2. Owing to the difficulty or impossibility of removing them, secondary
evidence may be given of inscriptions on walls, fixed tables, gravestones, and
the like. 2 Stark. Rep. 274.
MURDER, crim. law. This, one of the most important crimes that can be
committed against individuals, has been variously defined. Hawkins defines it to
be the wilful killing of any subject whatever, with malice aforethought, whether
the person slain shall be an Englishman or a foreigner. B. 1, c. 13, s. 3.
Russell says, murder is the killing of any person under the king's peace, with
malice prepense or aforethought, either express or implied by law. 1 Rus. Cr.
421. And Sir Edward Coke, 3 Inst. 47, defines or rather describes this offence
to be, " when a person of sound mind and discretion, unlawfully killeth any
reasonable creature in being, and under the king's peace, with malice
aforethought either express or implied."
2. This defnition, which has been adopted by Blackstone, 4 Com. 195; Chitty,
2 Cr. Law, 724; and others, has been severely and perhaps justly criticised.
What, it has been asked, are sound memory and understanding? What has soundness
of memory to do with the act; be it ever so imperfect, how does it affect the
guilt? If discretion is necessary, can the crime ever be committed, for, is it
not the highest indiscretion in a man to take the life of another, and thereby
expose his own? If the person killed be an idiot or a new born infant, is he a
reasonable creature? Who is in the king's peace? What is malice aforethought?
Can there be any malice afterthought? Livingst. Syst. of Pen. Law; 186.
3. According to Coke's definition there must be, lst. Sound mind and memory
in the agent. By this is understood there must be a will, (q. v.) and legal
discretion. (q. v.) 2. An actual killing, but it is not necessary that it should
be caused by direct violence; it is sufficient if the acts done apparently
endanger. life, and eventually fatal. Hawk. b. 1, c. 31, s. 4; 1 Hale, P. C.
431; 1 Ashm. R. 289; 9 Car. & Payne, 356; S. C. 38 E. C. L. R. 152; 2 Palm.
545. 3. The party killed must have been a reasonable being, alive and in the
king's peace. To constitute a birth, so as to make the killing of a child
murder, the whole body must be detached from that of the mother; but if it has
come wholly forth, but is still connected by the umbilical chord, such killing
will be murder. 2 Bouv. Inst. n. 1722, note. Foeticide (q. v.) would not be such
a killing; he must have been in rerum natura. 4. Malice, either express or
implied. It is this circumstance which distiuguishes murder from every
description of homicide. Vide art. Malice.
4. In some of the states, by legislative enactments, murder has been divided
into degrees. In Pennsylvania, the act of April 22, 1794, 3 Smith's Laws, 186,
makes "all murder which shall be perpetrated by means of poison, or by lying in
wait, or by any other kind of wilful, deliberate, and premeditated killing, or
which shall be committed in the perpetration or attempt to perpetrate, any
arson, rape, robbery, or burglary, shall be deemed murder of the first degree;
and all other kinds of murder shall be deemed murder of the second degree; and
the jury before whom any person indicted for murder shall be tried, shall, if
they find the person guilty thereof, ascertain in their verdict, whether it be
murder of the first or second degree; but if such person shall be convicted by
confession, the court shall proceed by examination of witnesses, to determine
the degree of the crime, and give sentence accordingly. Many decisions have been
made under this act to which the reader is referred: see Whart. Dig. Criminal
Law, h. t.
5. The legislature of Tennessee has adopted the same distinction in the very
words of the act of Pennsylvania just cited. Act of 1829, 1 Term. Laws, Dig.
244. Vide 3 Yerg. R. 283; 5 Yerg. R. 340.
6. Virginia has adopted the same distinction. 6 Rand. R. 721. Vide,
generally, Bac. Ab. h. t.; 15 Vin. Ab. 500; Com. Dig. Justices, M 1, 2; Dane's
Ab. Index, h. t.; Hawk. Index, h. t.; 1 Russ. Cr. b. 3, c. 1; Rosc. Cr. Ev. h.
t. Hale, P. C. Index, h. t.; 4 Bl. Com. 195; 2 Swift's Syst. Index, h. t.; 2
Swift's Dig. Index, h. t.; American Digests, h. t.; Wheeler's C. C. Index, h.
t.; Stark. Ev. Index, h. t.; Chit. Cr. Law, Index, h. t.; New York Rev. Stat.
part 4, c. 1, t. 1 and 2.
MURDER, pleadings. In an indictment for murder, it must be charged
that the prisoner "did kill and murder" the deceased, and unless the word murder
be introduced into the charge, the indictment will be taken to charge
manslaughter only. Foster, 424; Yelv. 205; 1 Chit. Cr. Law, *243, and the
authorities and cases there cited.
MURDRUM, old Engl. law. During the times of the Danes, and afterwards
till the reign of Edward III, murdrum was the killing of a man in a secret
manner, and in that it differed from simple homicide.
2. When a man was thus killed, and he was unknown, by the laws of Canute he
was presumed to be a Dane, and the vill was compelled to pay forty marks for his
death. After tlie conquest, a similar law was made in favor of Frenchmen, which
was abolished by 3 Edw. III.
3. By murdrum was also understood the fine formerly imposed in England upon a
person who had committed homicide perinfortunium or se defendendo. Prin. Pen.
219, note r.
MUSICAL COMPOSITION. The act of congress of February 3, 1831,
authorizes the granting of a copyright for a musical composition. A question was
formerly agitated whether a composition published on a single sheet of paper,
was to be considered a book, and it was decided in the affirmative. 2 Campb. 28,
n.; 11 East, 244. See Copyright.
TO MUSTER, mar. law. By this term is understood to collect together
and exhibit soldiers and their arms; it also signifies to employ recruits and
put their names down in a book to enrol them.
MUSTER-ROLL, maritime law; A written document containing the name's,
ages, quality, place of residence, and, above all, place of birth, of every
person of the ship's company. It is of great use in ascertaining the ship's;
neutrality. Marsh. Ins. B. 1, c. 9, s. 6, p. 407; Jacobs. Sea Laws, 161; 2 Wash.
C. C. R. 201.
MUSTIRO. This name is given to the issue of an Indian and a negro.
Dudl. S. Car. R. 174.
MUTATION, French law. This term is synonymous with change, and is
particularly applied to designate the change which takes place in the property
of a thing in its transmission from one person to another; permutation therefore
happens when, the owner of the thing sells, exchanges or gives it. It is nearly
synonymous with transfer. (q. v.) Merl. Repert. h. t.
MUTATION OF LIBEL, practice. An amendment allowed to a libel, by which
there is an alteration of the substance of the libel, as by propounding a new
cause of action, or asking one thing instead of another. Dunl. Adm. Pr. 213;
Law's Eccl. Law, 165-167; 1 Paine's R. 435; 1 Gall. R. 123; 1 Wheat. R. 26l.
MUTATIS MUTANDIS. The necessary changes. This is a phrase of frequent
practical occurrence, meaning that matters or things are generally the same, but
to be altered, when necessary, as to names, offices, and the like.
MUTE, persons. One who is dumb. Vide Deaf and Dumb.
MUTE, STANDING MUTE, practice, crim. law. When a prisoner upon his
arraignment totally refuses to answer, insists upon mere frivolous pretences, or
refuses to put himself upon the country, after pleading not guilty, he is said
to stand mute. 2. In the case of the United States v. Hare, et al., Circuit
Court, Maryland Dist. May sess. 1818, the prisoner standing mute was considered
as if he had pleaded not guilty.
3. The act of congress of March 3, 1825, 3 Story's L . U. S. 2002, has since
provided as follows; 14, That if any person, upon his or her arraignment upon
any indictment before any court of the United States for any offence, not
capital, shall stand mute, or will not answer or plead to such indictment, the
court shall, notwithstanding, proceed to the trial of the person, so standing
mute, or refusing to answer or pleas, as if he or she had pleaded not guilty;
and upon a verdict being returned by the jury, may proceed to render judgment
accordingly. A similar provision is to be found in the laws of Pennsylvania.
4. The barbarous punishment of peine forte et dure which till lately
disgraced the criminal code of England, was never known in the United States.
Vide Dumb; 15 Vin. Ab. 527.
5. When a prisoner stands mute, the laws of England arrive at the forced
conclusion that he is guilty, and punish him accordingly. 1 Chit. Cr. Law,
6. By the old French law, when a person accused was mute, or stood mute, it
was the duty of the judge to appoint him a curator, whose duty it was to defend
him, in the best manner he could; and for this purpose, he was allowed to
communicate with him privately. Poth. Proced. Crim. s. 4, art. 2, 1.
MUTILATION, crim. law. The depriving a man of the use of any of those
limbs, which may be useful to him in fight, the loss of which amounts to mayhem.
1 Bl. Com. 130.
MUTINY, crimes. The unlawful resistance of a superior officer, or the
raising of commotions and disturbances on board of a ship against the authority
of its commander, or in the army in opposition to the authority of the officers;
a sedition; (q. v.) a revolt. (q. v.)
2. By the act for establishing rules and articles for the government of the
armies of the United States, it is enacted as follows: Article 7. Any officer or
soldier, who shall begin, excite, or cause, or join in, any mutiny or sedition
in any troop or company in the service of the United States, or in any party,
post, detachment or guard, shall suffer death, or such other punishment as by a
court martial shall be inflicted. Article 8. Any officer, non-commissioned
officer, or soldier, who being present at any mutiny or sedition, does not use
his utmost endeavors to suppress the same, or coming to the knowledge of any
intended mutiny, does not without delay give information thereof to his
commanding officer, shall be punished by the sentence of a court martial, with
death, or otherwise, according to the nature of his offence.
3. And by the act for the better government of the navy of the United States,
it is enacted as follows,: Article 13. If any person in the navy shall make or
attempt to make any mutinous assembly, he shall, on conviction thereof by, a
court martial, suffer death; and if any person as aforesaid, shall utter any
seditious or mutinous words, or shall conceal or connive at any mutinous or
seditious practices, or shall treat with contempt his superior, being in the
execution of his office, or being witness to any mutiny or sedition, shall not
do his utmost to suppress it, he shall be punished at the discretion of a court
martial. Vide 2 Stra. R. 1264.
2. In contracts there must always be a consideration in order to make them
valid. This is sometimes mutual, as when one man promises to pay a sum of money
to another in consideration that he shall deliver him a horse, and the latter
promises to deliver him the horse in consideration of being paid the price
agreed upon. When a man and a woman promise to marry each other, the promise is
mutual. It is one of the qualities of an award, that it be mutual; but this
doctrine is not as strict now as formerly. 3 Rand. 94; see 3 Caines 254; 4 Day,
422; 1 Dall. 364, 365; 6 Greenl. 247; 8 Greenl. 315; 6 Pick. 148.
3. To entitle a contracting party to a specific performance of an agreement,
it must be mutual, for otherwise it will not be compelled. 1 Sch. & Lef. 18;
Bunb. 111; Newl. Contr. 152. See Rose. Civ. Ev. 261.
4. A distinction has been made between mutual debts and mutual credits. The
former term is more limited in its signification than the latter. In bankrupt
cases where a person was indebted to the bankrupt in a sum payable at a future
day, and the bankrupt owed him a smaller sum which was then due; this, though in
strictness, not a mutual debt, was holden to be a mutual credit. 1 Atk. 228,
230; 7 T. R. 378; Burge on Sur. 455, 457.
MUTUARY, contracts. A person who borrows personal chattels to be
consumed by him, and returned to the lender in kind; the person who receives the
benefit arising from the contract of mutuum. Story, Bailm. 47.
MUTUUM, or loan for consumption, contracts. A loan of personal
chattels to be consumed by the borrower, and to be returned to the lender in
kind and quantity; as a loan of corn, wine, or money, which are to be used or
consumed, and are to be replaced by other corn, wine, or money. Story on Bailm.
228; Louis. Code, tit. 12, c. 2; Ayliffe's Pand. 481; Poth. Pand. tom. 22, h.
t.; Dane's Ab. Index, h. t.; 1 Bouv. Inst. logo.
2. It is of the essence of this contract, 1st. That there be either a certain
sum of money, or a certain quantity of other things, which is to be consumed by
use which is to be the subject-matter of the contract, and which is loaned to be
consumed. 2d. That the thing be delivered to the borrower. 3d. That the property
in the thing be transferred to him. 4th. That he obligates himself to return as
much. 5th. That the parties agree on all these points. Poth. Prāt. de
Consomption, n. 1; 1 Bouv. Inst. n. 1091-6.
MYSTERY or MISTERY. This word is said to be derived from the French
mestier now written mātier, a trade. In law it signifies a trade, art, or
occupation. 2 Inst. 668.
2. Masters frequently bind themselves in the indentures with their
apprentices to teach them their art, trade, and mystery. Vide 2 Hawk. c. 23, s.
MYSTIC. In a secret manner; concealed; as mystic testament, for a
secret testament. Vide 2 Bouv. Inst. n. 3138; Testament Mystic.