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REQUEST, contracts. A notice of a desire on the part of the person making it, that the other party shall do something in relation to a contract.

2. In general when a debt exists payable immediately, the law does not impose on the creditor to make a request of payment. But when by the express terms of a contract, a request is necessary, it must be made. And in some cases where there is no express agreement a request is also requisite; as where A sells a horse to B to be paid for on delivery, a demand or request to deliver must be made before B can sustain an action; 5 T. R. 409; 1 East, 209; or, it must be shown that A has incapacitated himself to deliver the horse because he has sold the horse to another person. 10 East. 359; 5 B. & A. 712. On a general promise to marry, a request must be made before action, unless the proposed defendant has married another. 2 Dow. & Ry. 55. Vide Demand.

3. A request, like a notice, ought to be in writing and state distinctly what is required to be done without any ambiguous terms. 1 Chit. Pr. 497, 498.

REQUEST, pleading. The statement in the plaintiff's declaration that a demand or request has been made by the plaintiff from the defendant, to do some act which he was bound to perform, and for which the action is brought.

2. A request is general or special. The former is called the licet saepius requisitus, (q. v.) or "although often requested so to do;" though generally inserted in the common breach to the money counts, it is of no avail in pleading, and the omission of it will not vitiate the declaration. 2 Hen. Bl. 131; 1 Bos. & Pull. 59, 60; and see 1 John. Cas. 100. Whenever it is essential to the cause of action, that the plaintiff should have requested the defendant to perform his contract, such request must be stated in the declaration and proved. The special request must state by whom, and the time and place when it was made, in order that the court may judge of its sufficiency. 1 Str. 89. , Vide Com. Dig. Pleader, C 69, 70; 1 Saund. 33; 2 Ventr. 75; 3 Bos. & Pull. 438; 3 John. R. 207; 1 John. Cas. 319; 10 Mass. R. 230; 3 Day's R. 327; and the articles Demand; Licet saepius requisitus.

REQUEST NOTES, Engl. law. Certain notes or requests from persons amenable to the excise laws, to obtain a permit for removing any excisable goods or articles from one place to another.

REQUISITION. The act of demanding a thing to be done by virtue of some right. 2. The constitution of the United States, art. 4, s. 2, provides that fugitives from justice shall be delivered up to the authorities of the state from which they are fugitives, on the demand of the executive from such state. The demand made by the governor of one state on the governor of another for a fugitive is called a requisition.

RES, property. Things. The terms "Res," "Bona," "Biens," used by jurists who have written in the Latin and French languages, are intended to include movable or personal, as well as immovable or real property. 1 Burge, Confl. of Laws, 19. See Biens; Bona; Things.

RES GESTA, evidence. The subject matter; thing done.

2. When it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it, is admissible evidence, as part of the res gesta, for the purpose of showing its true character. On an indictment for a rape, for example, what the girl said so recently after the fact as to exclude the possibility of practising on her, has been held to be admissible evidence, as a part of the transaction. East, P. C. 414; 2 Stark. Cas. 241; 1 Stark. Ev. 47; 1 Phil. Ev. 218: Bouv. Inst. Index, h. t.

RES INTEGRA. An entire thing; an entirely new or untouched matter. This term is applied to those points of law which have not been decided, which are "untouched by dictum or decision." 3 Meriv. R. 269; 1 Burge on the Confl. of Laws, 241.

RES INTER ALIOS ACTA, evidence. This is a technical phrase which signifies acts of others, or transactions between others.

2. Neither the declarations nor any other acts of those who are mere stran-gers, or, as it is usually termed, any res inter alios ada, are admissible in evidence against any one when the party against whom such acts are offered in evidence, was privy to the act, the objection ceases; it is no longer res inter alios. 1 Stark Ev. 52; 3 Id 1300.

RES TUDIC ATA, practice. The decision of a legal or equitable issue, by a court of competent jurisdiction.

2. It is a general principle that such decision is binding and conclusive upon all other courts of concurrent power. This principle pervades not only our own, but all other systems of jurisprudence, and has become a rule of universal law, founded on the soundest policy. If, therefore, Paul sue Peter to recover the amount due to him upon a bond and on the trial the plaintiff fails to prove the due execution of the bond by Peter, in consequence of which a verdict is rendered for the defendant, and judgment is entered thereupon, this judgment, till reversed on error, is conclusive upon the parties, and Paul cannot recover in a subsequent suit, although he may then be able to prove the due execution of the bond by Peter, and that the money is due to him, for, to use the language of the civilians, res judicata facit ex albo nigrum, ex nigro album, ex curvo redum, ex recto curvum.

3. The constitution of the United States and the amendments to it declare, that no fact, once tried by a jury, shall be otherwise reexaminable in any court of the United States than according to the rules of the common law. 3 Pet. 433; Dig. 44, 2; and Voet, Ibid; Kaime's Equity, vol. 2, p. 367; 1 Johns. Ch. R. 95; 2 M. R. 142; 3 M. R. 623; 4 M. R. 313, 456, 481; 5 M. R. 282, 465; 9 M. R. 38; 11 M. R. 607; 6 N. S. 292; 5 N. S. 664; 1 L. R. 318; 8 L. R. 187; 11 L. R. 517. Toullier, Droit Civil Francais, vol. 10, No. 65 to 259.

4. But in order to make a matter res judicata there must be a concurrence of the four conditions following, namely: 1. Identity in the thing sued for. 2. Identity of the cause of action; if, for example, I have claimed a right of way over Blackacre, and a final judgment has been rendered against me, and afterwards I purchase Blackacre, this first decision shall not be a bar to my recovery, when I sue as owner of the land, and not for an easement over it, which I claimed as a right appurtenant to My land Whiteacre. 3. Identity of persons and of parties to the action; this rule is a necessary consequence of the rule of natural justice: ne inauditus condemnetur. 4. Identity of the quality in the persons for or against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administrator of Paul, to recover the same horse. Vide, Things adjudged.

RES MANCIPI, Rom. civ. law. Those things which might be sold and alienated, or the property of them transferred from one person to another. The division of things in to res mancipi and res nec mancipi, was one of ancient origin, and it continued to a late period in the empire. Res mancipi (Ulph. Frag. xix.) are praedia in italico solo, both rustic and urban also, jura rusticorum praediorum or servitutes, as via, iter, aquaeductus; also slaves, and four-footed animals, as oxen, horses, &c., qum collo dorsove domantur. Smith, Diet. Gr. and Rom. Antiq. To this list, may be added children of Roman parents, who were, according to the old law, res mancipi. The distinction between res mancipi and nec mancipi was abolished by Justinian in his code. Id.; Coop. Ins. 442.

RES NOVA. Something new; something not before decided.

RES NULLIUS. A thing which has no owner. A thing which has been abandoned by its owner is as much res nullius as if it had never belonged to any one.

2. The first possessor of such a thing becomes the owner, res nullius fit primi occupantis. Bowy. Com. 97.

RES PERIT DOMINO The thing is lost to the owner. This phrase is used to express that when a thing is lost or destroyed, it is lost to the person who was the owner of it at the time. For example, an article is sold; if the seller have perfected the title of the buyer so that it is his, and it be destroyed, it is the buyer's loss; but if, on the contrary, something remains to be done before the title becomes vested in the buyer, then the loss falls on the seller. See Risk.

RES UNIVERSATIS. Those things which belong to cities or municipal corporations are so called; they belong so far to the public that they cannot be appropriated to private use; such as public squares, market houses, streets, and the like. 1 Bouv. Inst. n. 446.

RESALE. A second sale made of an article; as, for example, if A sell a horse to B, and the latter not having paid, for him, refuse to take him away, when by his contract he was bound to do so, and then A sells the horse to C.

2. The effect of a resale, is not always to annul the first sale, because, as in this case, B would be liable to A for the difference of the price between the sale and resale. 4 Bing. 722; Blackb. on Sales, 336; 4 M. & G. 898.

RESCEIT. The act of receiving or admitting a third person to plead his right in a cause commenced by two; as when an action is brought against a tenant for life or term of years, the reversioner is allowed to defend. Cowell.

RESCEIT or RECEIT. The admission or receiving of a third person to plead his right in a cause formerly commenced between two other persons; as, when an action is brought against a tenant for life or years, or any other particular tenant, and he makes default, in such case the reversioner may move that he may be received to defend his right, and to plead with the demandant. Jacob, L. D. h. t. Resceit is also applied to the admittance of a plea, when the controversy is betweeen the same two persons. Co. Litt. 192; 3 Nels. Ab. 146.

RESCISSION OF A CONTRACT. The destruction or annulling of a contract.

2. The right to rescind a contract seems to suppose not that the contract has existed only in appearance; but that it has never had a real existence on account of the defects which accompanied it; or which prevented its actual execution. 7 Toul. n. 551 17 Id. n. 114.

3. A contract cannot, in general, be rescinded by one party unless both parties can be placed in the same situation, and can stand upon the same terms as existed when the contract was made. 5 East, 449; 15 Mass. 819; 5 Binn. 355; 3 Yeates, 6. The most obvious instance of this rule is, where one party by taking possession, &c., has received a partial benefit from the contract. Hunt v. Silk. 5 East, 449.

4. A contract cannot be rescinded in part. It would be unjust to destroy a contract in toto, when one of the parties has derived a partial benefit, by a performance of the agreement. In such case it seems to have been the practice formerly to allow the vendor to recover the stipulated price, and the vendee to recover, by a cross-action, damages for the breach of the contract. 7 East, 480, in the note. But according to the later and more convenient practice, the vendee, in such case, is allowed in an action for the price, to give evidence of the inferiority of the goods in reduction of damages, and the plaintiff who has broken his contract is not entitled to recover more than the value of the benefit the defendant has actually derived from the goods or labor; and when the latter has derived no benefit, the plaintiff cannot recover at all. Stark. on Evidence, part 4, tit. Goods sold and delivered; Chitty on Contr. 276.

5. A sale of land, by making a deed for the same, and receiving security for the purchase money, may be rescinded before the deed has been recorded, by the purchaser surrendering the property and, the deed to the buyer, and receiving from him the securities he had given; in Pennsylvania, these acts revest the title in the original owner. 4 Watts, 196, 199. But this appears contrary to the current of decisions in other states and in England. 4 Wend. 474; 2 John. 86; 5 Conn. 262; 4 Conn. 350; 4 N. H. Rep. 191; 9 Pick. 105; 2 H. Bl. 263, 264; Pre. in- Chan. 235; 6 East, 86; 4 B. & A. 672. See 7 East, 484; 1 Mass. R. 101 14 Mass. 282; Whart on's Dig. 119, 120 10 East, 564; 1 Campb. 78, 190; 3 Campb. 451; 3 Starkie, 32; 1 Stark. R. 108; 2 Taunt. 2; 2 New Rep. 136; 6 Moore, 114; 3 Chit. Com. L. 153; 1 Saund. 320, b. note; l Mason, 437; 1 Chip. R. 159; 2 Stark. Ev. 97, 280 8 lb. 1614, 1645 3 New Hamp. R. 455; 2 South, R. 780 Day's note to Templer v. McLachlan, 2 N. R. 141; 1 Mason, 93; 20 Johns. 196; 5 Com. Dig. 631, 636; and Com. Dig. Action upon the case upon Assumpsit, A 1, note x, .p. 829, for a very full note; Com. Dig. Biens, D 3, n. s.

6. As to the cases where a contract will be rescinded in equity on the ground of mistake, see Newl. Cont. 432; or where heirs are dealing with, their expectancies, lbid. 435; sailors with their prize money, Ibid. 443; children dealing with their parents, Ibid. 445; guardians with their wards, Ibid. 448; attorney with his client, Ibid. 453; cestui que trust, with trustee, Ibid. 459; where contracts are rescinded on account of the turpitude of their consideration, Ibid. 469; in fraud of marital rights, Ibid. 424 in fraud of marriage agreement, Ibid. 417 on account of imposition, Ibid. 351; in fraud of creditors, lb. 369; in fraud of purchasers, Ib. 391; in fraud of a deed of composition by creditors, lb. 409.

RESCOUS, crim. law, torts. This word is used synonymously with rescue, (q. v.) and denotes the illegal taking away and setting at liberty a distress taken, or a person arrested by due process of law. Co. Litt. 160.

2. In civil cases when a defendant is rescued the officer will or will not be liable, as the process under which the arrest is made, is or is not final. When the sheriff executes a fi. fa. or ca. sa. he may take the posse comitatus; Show. 180; and, neglecting to do so, he is responsible; but on mesne or original process, if the defendant rescue himself, vi et armis, the sheriff is not answerable. 1 Holt's R. 537; 3 Engl. Com. Law Rep. 179, S. C. Vide Com. Dig. h. t.; Yelv. 51; 2 T. R. 156; Woodf. T. 521 Bac. Ab. Rescue, D; Doct. Pl. 433.

RESCRIPT, conv. A counterpart.

2. In the canon law, by rescripts are understood apostolical letters, which emanate from the pope, under whatever form they may be. The answers of the pope in writing are so called. Diet. Dr. Can. h. v. Vide Chirograph; Counterpart; Part.

RESCRIPTION, French law. A rescription is a letter by which the maker requests some one to pay a certain sum of money, or to account for him to a third person for it. Poth. Du Contr. de Change, n. 225.

2. According to this definition, bills of exchange are a species of rescription. The difference appears to be this, that a bill of exchange is given when there has been a contract of exchange between the drawer and the payee; whereas the rescription is sometimes given in payment of debt, and at other times it is lent to the payee. Id.

RESCRIPTS, civ. law. The answers of the prince at the request of the parties respecting some matter in dispute between them, or to magistrates in relation to some doubtful matter submitted to him.

2. The rescript was differently denominated, according to the character of those who sought it. They were called annotations or subnotations, when the answer was given at the request of private citizens; letters or epistles, when he answered the consultation of magistrates; pragmatic sanctions, when he answered a corporation, the citizens of a province, or a municipality. Lecons El. du Dr. Rom. 53; Code, 1, 14, 3.

RESCUE, crim. law. A forcible setting at liberty against law of a person duly arrested. Co. Litt. 160; 1 Chitty's Cr, Law, *62; 1 Russ. on Cr. 383. The person who rescues the prisoner is called the rescuer.

2. If the rescued prisoner were arrested for felony, then the rescuer is a felon; if for treason, a traitor; and if for a trespass, he is liable to a fine as if he had committed the original offence. Hawk. B. 5, c. 21. If the principal be acquitted, the rescuer may nevertheless be fined for the misdemeanor in the obstruction and contempt of public justice. 1 Hale, 598.

3. In order to render the rescuer criminal, it is necessary he should have knowledge that the person whom he sets at liberty has been apprehended for a criminal offence, if he is in the custody of a private person; but if he be under the care of a public officer, then he is to take notice of it at his peril. 1 Hale, 606.

4. In another sense, rescue is the taking away and setting at liberty, against law, a distress taken for rent, or services, or damage feasant. Bac. Ab. Rescue, A.

5. For the law of the United States on this subject, vide Ing. Dig. 150. Vide, generally, 19 Vin. Ab. 94.

RESCUE, mar. war. The retaking by a party captured of a prize made by the enemy. There is still another kind of rescue which partake's of the nature of a recapture; it occurs when the weaker party before he is overpowered, obtains relief from the arrival of fresh succors, and is thus preserved from the force of the enemy. 1 Rob. Rep. 224; 1 Rob. Rep. 271.

2. Rescue differs from recapture. (q. v.) The rescuers do not by the rescue become owners of the property, as if it had been a new prize - but the property is restored to the original owners by the right of postliminium. (q. v.)

RESCUSSOR. The party making a rescue, is sometimes so called, but more properly he is a rescuer.

RESERVATION, contracts. That part of a deed or other instrument which reserves a thing not in esse at the time of the grant, but newly created. 2 Hill. Ab. 359; 3 Pick. R. 272; It differs from an exception. (q. v.) See 4 Verm. 622; Brayt. R. 230; 9 John. R. 73; 20 John, R. 87; 3 Ridg. P. C. 402; Co. Litt. 43 a; 2 Tho Co. Litt. 412

RESET OF THEFT, Scotch law. The receiving and keeping of stolen goods knowing them to be stolen, with a design of feloniously retaining them from the real owner. Alis. Pr. Cr. 328.

RESETTER, Scotch law. A receiver of stolen goods, knowing them to have been stolen.

RESIANCE. A man's residence or permanent abode. Such a man is called a resiant. Kitch. 33.

 
 
 
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