SABBATH. The same as Sunday. (q. v.)
SABINIANS. A sect of lawyers, whose first chief was Atteius Capito,
and the second, Caelius Sabiaus, from whom they derived their name. Clef des
Lois Rom. h. t.
SACRAMENTUM. An oath; as, qui dicunt supra sacramentum suum.
SACQUIER, maritime law. The same of an ancient officer, whose business
"was to load and unload vessels laden with salt, corn, or fish, to prevent the
ship's crew defrauding the merchant by false tale, or cheating him of his
merchandise otherwise." Laws of Oleron, art. 11, published in an English
translation in an Appendix to 1 Pet. Adm. R. XXV. See Arrameur; Stevedore.
SACRILEGE. The act of stealing from the temples or churches dedicated
to the worship of God, articles consecrated to divine uses. Pen. Code of China,
B. 1, s. 2, §6; Ayl. Par. 476.
SAEVETIA. Cruelty. (q. v.) It is required in order to constitute
saevetia that there should exist such a degree of cruelty as to endanger the
party's suffering bodily hurt. 1 Hagg. Cons. R. 85; 2 Mass. 150; 3 Mass. 821; 4
SAFE-CONDUCT, comm. law, war. A passport or permission from a neutral
state to persons who are thus authorized to go and return in safety, and,
sometimes, to carry away certain things, in safety. According to common usage,
the term passport is employed on ordinary occasions, for the permission given to
persons when there is no reason why they should not go where they please: and
safe-conduct is the name given to the instrument which authorizes certain
persons, as enemies, to go into places where they could not go without danger,
unless thus authorized by the government.
2. A safe-conduct is also the name of an instrument given to the captain or
master of a ship to proceed on a particular voyage: it usually contains his name
and residence, the name, description and destination of the ship, with such
other matters as the practice of the place requires. This document is
indispensably necessary for the safety of every neutral ship.
3. The act of congress of April 30th, 1790, s. 27, punishes the violation of
any safe-conduct or passport granted under the authority of the United States,
on conviction, with imprisonment, not exceeding three years, and a fine at the
discretion of the court. Vide Conduct; Passport; and 18 Vin. Ab. 272.
SAFE PLEDGE, salvus-plegius. A surety given that a man shall appear
upon a certain day. Bract. lib. 4, c. 1.
SAID. Before mentioned.
2. In contracts and pleadings it is usual and proper when it is desired to
speak of a person or thing before mentioned, to designate them by the term said
or aforesaid, or by some similar term, otherwise the latter description will be
ill for want of certainty. 2 Lev. 207: Com. Dig. Pleader, C IS; Gould on Pl: c.
SAILING INSTRUCTIONS, mar. law. Written or printed directions,
delivered by the commanding officer of a convoy to the several masters of the
ships under his care, by which they are enabled to understand and answer his
signals, to know the place of rendezvous appointed for the fleet, in case of
dispersion by storm, by an enemy, or by any other accident.
2. Without sailing instructions no vessel can have the full protection and
benefit of convoy. Marsh. Ins. 368.
SAILORS. Seamen, mariners. Vide Mariners; Seamen; Shipping Articles.
SAISIE-EXECUTION, French law. This term is used in Louisiana. It is a
writ of execution by which the creditor places under the custody of the law, the
movables, which are liable to seizure, of his debtor, in order that out of them
he may obtain payment of the debt due by him Code of Practice, art. 641 , Dall.
Diet. h. t.. It is a writ very similar to the fieri facias.
SAISIE-FORAINE. A term used in Louisiana and in the French law; this
is a permission given by the proper judicial officer, to authorize a creditor to
seize the property of his debtor in the district which he inhabits. Dall. Dict.
h. t. It has the effect of an attachment of property, which is applied to the
payment of the debt due.
SAISIE-GAGERIE, French law. A conservatory act of execution, by which
the owner, or principal lessor of a house or farm, causes the furniture of the
house or farm leased, and on which he has a lien, to be seized, in order to
obtain the rent due to him. It is similar to the distress of the common law.
Dall. Dict. h. t.
SAISIE-IMMOBILIERE. A writ by which the creditor puts in the custody
of the law the immovables of his debtor, that out of the proceeds of their sale,
he may be paid his demand. The term is French, and is used in Louisiana.
SALARY. A reward or recompense for services performed.
2. It is usually applied to the reward paid to a public officer for the
performance of his official duties.
3. The salary of the president of the United States is twenty-five thousand
dollars per annum; Act of l8th Feb. 1793; and the constitution, art. 2, s. 1,
provides that the compensation of the president shall not be increased or
diminished, during the time for which he shall have been elected.
4. Salary is also applied to the reward paid for the performance of other
services; but if it be not fixed for each year, it is called honorarium. Poth.
Pand. h. t. According to M. Duvergier, the distinction between honorarium and
salary is this. By the former is understood the reward given to the most
ele-vated professions for services performed; and by the latter the price of
hir-ing of domestic servants and workmen. 19 Toull. n. 268, p. 292, note.
5. There is this difference between salary and price; the former is the
re-ward paid for services, or for the hire of things; the latter is the
consideration paid for a thing sold. Lec. Elem. §907, 908.
SALE, contracts. An agreement by which one of the contracting parties,
called the seller, gives a thing and passes the title to it, in exchange for a
certain price in current money, to the other party, who is called the buyer or
purchaser, who, on his part, agrees to pay such price. Pard. Dr. Com. n. 6;
Noy's Max. ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth. Vente, n. 1; 1
Duverg. Dr. Civ. Fr. n. 7.
2. This contract differs from a barter or exchange in this, that in the
latter the price or consideration, instead of being paid in money, is paid in
goods or merchandise, susceptible of a valuation. It differs from accord and
satisfaction, because in that contract, the thing is given for the purpose of
quieting a claim, and not for a price. An onerous gift, when the burden it
imposes is the payment of a sum of money, is, when accepted, in the nature of a
sale. When partition is made between two or more joint owners of a chattel, it
would seem, the contract is in the nature of a barter. See 11 Pick. 311.
3. To constitute a valid sale there must be, 1. Proper parties. 2. A thing
which is the object of the contract. 3. A price agreed upon; and, 4. The consent
of the contracting parties, and the performance of certain acts required to
complete the contract. These will be separately considered.
4. - 1. As a general rule all persons sui juris may be either buyers or
sellers. But to this rule there are several exceptions. 1. There is a class of
persons who are incapable of purchasing except sub modo, as infants, and married
women; and, 2. Another class, who, in consequence of their peculiar relation
with regard to the owner of the thing sold, are totally incapable of becoming
purchasers, while that relation exists; these are trustees, guardians, assignees
of insolvents, and generally all persons who, by their connexion with the owner,
or by being employed concerning his affairs, have acquired, a knowledge of his
property, as attorneys, conveyancers, and the like. See Purchaser.
5. - 2. There must be a thing which is the object of the sale, for if the
thing sold at the time of the sale had ceased to exist it is clear there can be
no sale; if, for example, Paul sell his horse to Peter, and, at the time of the
sale the horse be dead, though the fact was unknown to both parties: or, if you
and I being in Philadelphia, I sell you my house in Cincinnati, and, at the time
of the sale it be burned down, it is manifest there was no sale, as there was
not a thing to be sold. It is evident, too, that no sale can be made of things
not in commerce, as the air, the water of the sea, and the like. When there has
been a mistake made as to the article sold, there is no sale; as, for example,
where a broker, who is the agent of both parties, sells an article and delivers
to the seller a sold note describing the article sold as "St. Petershurg clean
hemp," and bought note to, the buyer, as "Riga Rhine hemp," there is no sale. 5
Taunt. 786, 788; 5 B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N.
S. 747 9 M. &, W. 805. Holt. N. P. Cas. 173; 1 M. & P. 778.
6. There must be an agreement as to the specific goods which form the basis
of the contract of sale; in other words, to make a perfect sale, the parties
must have agreed the one to part with the title to a specific article, and the
other to acquire such title; an agreement to sell one hundred bushels of wheat,
to be measured out of a heap, does not change the property, until the wheat has
been measured. 3 John. 179; Blackb. on Sales, 122 , 5 Taunt. 176; 7 Ham. (part
2d) 127; 3 N. Ramp. R.282; 6 Pick. 280; 15 John. 349; 6 Cowen, 250 7 Cowen, 85;
6 Watts, 29.
7. - 3. To constitute a sale there must be a price agreed upon; but upon the
maxim id certum est quod reddi certum potest, a sale may be valid although it is
agreed that the rice for the thing sold shall be determined by a third person. 4
Pick. 179. The price must have the three following qualities, to wit: 1. It must
be an actual or serious price. 2. It must be certain or capable of being
rendered certain. 3. It must consist of a sum of money.
8. - 1. The price must be an actual or serious price, with an intention on
the part of the seller, to require its payment; if, therefore, one should sell a
thing to another, and, by the same agreement, he should release the buyer from
the payment, this would not be a sale but a gift, because in that case the buyer
never agreed to pay any price, the same agreement by which the title to the
thing is passed to him discharging him from all obligations to pay for it. As to
the quantum of the price that is altogether immaterial, unless there has been
fraud in the transaction. 2. The price must be certain or determined, but it is
sufficiently certain, if, as before observed, it be left to the deterimination
of a third person. 4 Pick. 179; Poth. Vente, n. 24. And an agreement to pay for
goods what they are worth, is sufficiently certain. Coxe, 261; Poth. Vente, n.
26. 3. The price must consist in a sum of money which the buyer agrees to pay to
the seller, for if paid for in any other way, the contract would be an exchange
or barter, and not a sale, as before observed.
9. - 4. The consent of the contracting parties, which is of the essence of a
sale, consists in the agreement of the will of the seller to sell a certain
thing to the buyer, for a certain price, and in the will of the buyer, to
purchase the same thing for the same, price. Care must be taken to distinguish
between an agreement to enter into a future contract, and a present actual
agreement to make a sale. This consent may be shown, 1. By an express agreement.
2. By all implied agreement.
10. - 1. The consent is certain when the parties expressly declare it. This,
in some cases, it is requisite should be in writing. By the 17tth section of the
English statute, 29 Car. II. c. 3, commonly called the Statute of Frauds, it is
enacted, "that no contract for the sale of any goods, wares, or merchan-dise,
for the price of ú10 or upwards, shall be allowed to be good, except the buyer
shall accept part of the goods so sold, and actually receive the same, or give
something in earnest to bind the bargain, or in part payment, or some note or
memorandum in writing of the said bargain be made and signed by the parties to
be charged by such contract or their agents thereunto lawfully authorized." This
statute has been renacted in most of the states of the Union, with amendments
11. It not unfrequently happens that the consent of the parties to a contract
of sale is given in the course of a correspondence. To make such contract valid,
both parties must concur in it at the same time. See Letter, com. law, crim.
law, §2; 4 Wheat. 225; 6 Wend. 103; 1 Pick. 278 10 Pick. 326.
12. An express consent to a sale may be given verbally, when it is not
required by the statute of frauds to be in writing.
13. - 2. When a party, by his acts, approves of what has been done, as if he
knowingly uses goods which have been left at his house by another who intended
to sell them, he will, by that act, confirm the sale.
14. The consent must relate, 1. To the thing which is the object of the
contract; 2. To the price; and, 3. To the sale itself. 1st. Both parties must
agree upon the same object of the sale; if therefore one give consent to buy one
thing, and the other to sell another, there is no sale; nor is there a sale if
one sells me a bag full of oats, which I understand is full of wheat; because
there is no consent as to the thing which is the object of the sale. But the
sale would be valid, although I might be mistaken as to the quality of the
tiling sold. 20 John. 196 3 Rawle, 23, 168. 2d. Both parties must agree as to
the same price, for if the seller intends to sell for a greater sum than the
buyer intends to give, there is no mutual consent; but if the case were
reversed, and the seller intended to sell for a less price than the buyer
intended to give, the sale would be good for the lesser sum. Poth. Vente, n. 36.
3d. The consent must be on the sale itself, that is, one intends to sell, and
the other to buy. If, therefore, Peter intended to lease his house for three
hundred dollars a year for ten years, and Paul intended to buy it for three
thousand dollars, there would not be a contract of sale nor a lease. Poth.
Vente, n. 37.
15. In order to pass the property by a sale, there must be an express or
implied agreement that the title shall pass. An agreement for the sale of goods
is prima facie a bargain and sale of those goods; but this arises merely from
the presumed intention of the parties, and if it appear that the parties have
agreed, not that there shall be a mutual credit by which the property is to pass
from the seller to the buyer, and the buyer is bound to pay the price to the
seller, but that the exchange of the money for the goods shall be made on the.
spot, no property is transferred, for it is not the intention of the parties to
transfer any. 4 Wash. C. C. R. 79. But, on the contrary, when the making of part
payment, or naming a day for payment, clearly shows an intention in the parties
that they should have some time to complete the sale by payment and delivery,
and that they should in the meantime be trustees for each other, the one of the
property in the chattel, and the other in the price. As a general rule, when a
bargain is made for the purchase of goods, and nothing is said about payment
and. delivery, the property passes immediately, so as to cast upon the purchaser
all future risk, if nothing remains to be done to the goods, although he cannot
take them away without paying the price. 5 B. & C. 862.
16. Sales are absolute or conditional. An absolute sale is one made and
completed without any condition whatever. A conditional sale is one which
depends for its validity upon the fulfilment of some condition. See 4 Wash. C.
C. R. 588; 4 Mass. 405; 17 Mass. 606; 10 Pick. 522; 13 John. 219; 18 John. 141;
8 Verm. 154; 2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2 A.K. Marsh.
17. Sales are also voluntary or forced, public or private.
18. - 1. A voluntary sale is one made without constraint freely by the owner
of the thing sold; to such the usual rules relating to sales apply. 2. A forced
sale is one made without the consent of the owner of the property by some
officer appointed by law, as by a marshal or a sheriff in obedience to the
mandate of a competent tribunal. This sale has the effect to transfer all the
rights the owner had in the property, but it does not, like a voluntary sale of
personal property, guaranty a title to the thing sold it merely transfers the
rights of the person as whose property it has been seized. This kind of a sale
is sometimes called a judicial sale. 3. A public sale is one made at auction to
the highest bidder. Auction sales sometimes are voluntary, as when the owner
chooses to sell his goods in this way, and then as between the seller and the
buyer the usual rules relating to sales apply; or they are involuntary or foreed
when the same rules do not apply. 4. Private sales are those made voluntarily
and not at auction.
19. The above rules apply to sales of personal property. The sale of real
estate is governed by other rules. When a contract has been entered into for the
sale of lands, the legal estate in such lands still remains vested in the
vendor, and it does not become vested in the vendee until he shall have
re-ceived a lawful deed of conveyance from the vendor to him; and the only
remedy of the purchaser at Iaw, is to bring an action on the contract, and
recover pecuniary damages for a breach of the contract. In equity, however,
after a contract for the sale, the lands are considered as belonging to the
purchaser, and the court will enforce his rights by a decree for a specific
performance; and the seller will be entitled to the purchase money. Will. on
Real Prop. 127. See Specific performance.
20. In general, the seller of real estate does not guaranty the title; and if
it be desired that he should, this must be done by inserting a warranty to that
effect. See, generally, Brown on Sales; Blackb. on Sales; Long on Sales; Story
on Sales, Sugd. on Vendors; Pothier, Vente; Duvergier, Vente; Civil Code of
Louisiana, tit. 7; Bouv. Inst. Index, h. t.; and Contracts; Delivery; Purchaser;
Seller; Stoppage in transitu.
SALE NOTE. A memorandum given by a broker to a seller or buyer of
goods, stating the fact that certain goods have been sold by him on account of a
person called the seller to another person called the buyer. Sale notes are also
called bought notes, (q. v.) and sold notes. (q. v.)
SALE AND RETURN. When goods are sent from a manufacturer or wholesale
dealer to a retail trader, in the hope that he may purchase them, with the
understanding that what he may choose to take he shall have as on a contract of
sale, and what he does not take he will retain as a consignee for the owner, the
goods are said to have been sent on sale and return.
2. The goods taken by the receiver as on a sale, will be considered as sold,
and the title to them is vested in the receiver of them; the goods he does not
buy are considered as a deposit in the hands of the receiver of them, and the
title is in the person who sent them. 1 Bell's Com., 268, 5th ed.
SALIQUE LAW. The name of a code of laws so called from the Salians, a
people of Germany, who settled in Gaul under their king Phararaond.
2. The most remarkable law of this code is that which regards succession. De
terra vero salica nulla portio haereditatis transit in mulierem, sed hoc
vir-iles sextus acquirit, hoc est filii in ipsa haereditate succedunt; no part
of the salique land passes to females, but the males alone are capable of
taking, that is, the sons succeed to the inheritance. This rule has ever
excluded females from the throne of France.