TERM, construction. Word; expression speech.
2. Terms or words are characters by which we announce our sentiments, and
make known to others things with which we are acquainted. These must be properly
construed or interpreted in order to understand the parties using them. Vide
Construction; Interpretation; Word.
TERM, contracts. This word is used in the civil, law to denote the
space of time granted to the debtor for discharging his obligation; there are
express terms resulting from the positive stipulations of the agreement; as,
where one undertakes to pay a certain sum on a certain day and also terms which
tacitly result from the nature of the things which are the object of the
engagement, or from the place where the act is agreed to be done. For instance,
if a builder engage to construct a house for me, I must allow a reasonable time
for fulfilling his engagement.
2. A term is either of right or of grace; when it makes part of the agreement
and is expressly or tacitly included in it, it is of right when it is not part
of the agreement, it is of grace; as if it is not afterwards granted by the
judge at the requisition of the debtor. Poth. on Oblig. P. 2, c. 3, art. 3; 1
Bouv. Inst. n. 719 et seq.
TERM, estates. The limitation of an estate, as a term for years, for
life, and the like. The word term does not merely signify the time specified in
the lease, but the estate also and interest that passes by that lease; and
therefore the term may expire during the continuance of the time, as by
surrender, forfeiture and the like. 2 Bl. Com. 145; 8 Pick. R. 339.
TERM, practice. The space of time during which a court holds a
session; sometimes the term is a monthly, at others it is a quarterly period,
according to the constitution of the court.
2. The whole term is considered as but one day so that the judges may at any
time during the term, revise their judgments. In the computation of the term all
adjournments are to be included. 9 Watts, R. 200. Courts are presumed to know
judicially when their terms are required to be held by public law. 4 Dev. R.
427. See, 1 generally, Peck, R. 82; 6 Yerg. R. 395; 7 Yerg. R. 365; 6 Rand. R.
704; 2 Cowen, R. 445; 1 Cowen, R. 58; 5 Binn. R. 389; 4 S. & R. 507 5 Mass.
R. 195, 435.
TERM ATTENDANT ON THE INHERITANCE. This phrase is used in the English
courts of equity, to signify that when a term has been created for a particular
purpose, which is satisfied, and the instrument by which it is created does not
provide for a cesser of the term, on the happening of the event, the benefit in
it becomes subject to the rules of equity, and must be moulded and disposed of
according to the equitable interests of all persons having claims upon the
inheritance; and, when the purposes of the trust fire satisfied, the ownership
of the term belongs in equity, to the owner of the inheritance, whether
de-clared by the original conveyance to attend it or not.
2. Terms attendant on the inherit ance are but little known in the United
States. 1 Hill. Ab. 243.
TERM PROBATORY. A probatory term is the time during which evidence may
be taken in a cause. Vide Probatory term.
TERM FOR YEARS. An estate for years, (q. v.) and the time during which
such estate is to be beld, are each called a term; hence the term may expire
before the time, as by a surrender. Co. Litt. 45. If, for example, a conveyance
be made to Peter for three years, and after the expiration of the said term to
Paul for six, and Peter surrenders or forfeits his term after one year, Paul's
estate takes effect immediately; if, on the contrary, the language had been
after the expiration of the said time, or of the said three years, the result
would have been different, and Paul's estate would not have taken effect till
the end of such time, notwithstanding the forfeiture or surrender.
2. Whatever be its duration, a term for years is less than an estate for
life. If, therefore, the same person have a term for years and an estate for
life immediately succeeding it, the term is merged; but if the order of the
estates be reversed, that is, if the greater precede the less, there is no
merger. Co. Litt. 54 b; Vin. Ab. Merger, F 4 and G 13; Godb. 51; Biss. on Est.
c. 8, s. 1, n. 3, p. 186. Vide Estate for years; Leases.
TERMINUM. In the civil law, says Spelman, this word signifies a day
set to the defendant, and, in that sense, Bracton, Glanville and some others
sometimes use it. Reliquiae Spelmanianae, p. 71; Beames' Gl. 27 n.
TERMINUS A QUO. The starting point of a private way is so called.
Hamm. N. P. 196.
TERMINUS AD QUEM. The point of termination of a private way is so
TERMOR. One who holds lands and tenements for a term of years or,
life. Litt. sect. 100; 4 Tyr. 561.
TERRE-TENANT, or improperly terre-tenant. One who has the actual
possession of land; but in a more technical sense, he who is seised of the land;
and, in the latter sense the owner of the land, or the person seised, is the
terre-tenant, and not the lessee. 4 W. & S. 256; Bac. Ab. Uses and Trusts,
in pr. It has been holden that mere occupiers of the land are not terre-tenants.
Bee 16 S. & R, 432; 3 Penna. 229; 2 Saund. 7, n. 4; 2 Bl. Com. 91, 328.
TERRIER, Engl. Iaw. A roll, catalogue or survey of lands, belonging
either to a single person or a town, in which are stated the quantity of, acres,
the names of the tenants, and the like.
2. By the ecclesiastical law an inquiry is directed to be made from time to
time, of the temporal rights of the clergyman of every parish, and to be
returned into the registry of the bishop: this return is denominated a terrier.
1 Phil. & Am. Ev. 602, 603.
TERRITORIAL COURTS. The courts established in the territories of the
United States. Vide Courts of the United States.
TERRITORY. Apart of a country, separated from the rest, and subject to
a particular jurisdiction. The word is derived from terreo, and is so called
because the magistrate within his jurisdiction has the power of inspiring a
salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus
habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical
jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to
have territory, nor the power of arrest or removal, and are not unlike the Roman
magistrates of whom Gellius says vocationem habebant non prehen-sionem. De
Sacris Eccles. Minist. lib. 1, cap. 4. In the sense it is used in the
constitution of the United States, it signifies a portion of the country subject
to and belonging to the United States, which is not within the boundary of any
2. The constitution of the United States, art. 4, s. 3, provides, that "the
congress shall have power to dispose of, and make all needful rules and
regu-lations respecting the territory or other property of the United States;
and nothing in this constitution shall be construed, so as to preclude the
claims of the United States or of any state."
3. Congress possesses the power to erect territorial governments within the
territory of the United States; the power of congress over such territory is
exclusive and universal, and their legislation is subject to no control, unless
in the case of ceded territory, as far as it may be affected by stipulations in
the cessions, or by the ordinance of 1787, 3 Story's L. U. S. 2073, under which
any part of it has been settled. Story on the Const. §1322; Rawle on the Const:
237; 1 Kent's Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are Oregon, Minnesota,
New Mexico and Utah. Vide Courts of the United States.
TERROR. That state of the mind which arises from the event or
phenomenon that may serve as a prognostic of some catastrophe affright from
2. One of the constituents of the offence of riot is that the acts of the
persons engaged in it should be to the terror of the people, as a show of arms,
threatening speeches, or turbulent gestures; but it is not requisite, in order
to constitute this crime, that personal violence should be committed. 3 Camp. R.
369; 1 Hawk. P. C. c. 65, s. 5; 4 C. & P. 373. S. C. 19 E. C. L. R. 425 4 C.
& P. 538; S. C. 19 E. C. L. R. 616. Vide Rolle's R. 109; Dalt. Just. c. 186;
19 Vin. Ab. Riots, A 8.
3. To constitute a forcible entry, 1 Russ. Cr. 287, the act must be
accom-panied with circumstances of violence or terror; and in order to make the
crime of robbery, there must be violence or putting in fear, but both these
circumstances need not concur. 4 Binn. R. 379. Vide Riot; Robbery; Putting in
TERTIUS INTERVENIENS, civil law. One, who claiming an interest in the
subject or thing in dispute in action between other parties, asserts his right
to act with the plaintiff, to be joined with him, and to recover the matter in
dispute because he has an interest in it or to join the defendant, and with him,
oppose the interest of the plaintiff, which it is his interest to defeat. He
differs from the intervener or he who interpleads in equity. 4 Bouv. Inst. n.
TEST. Something by which to ascertain the truth respecting another
thing. 7 Penn. St. Rep. 428; 6 Whart. 284. Vide Religious Test.
TESTACY. The state or condition of dying after making a will, which
was valid at the time of testator's death.
TESTAMENT, civil law. The appointment of an executor or testamentary
heir, according to the formalities prescribed by law. Domat, Liv. 1, tit. 1, s.
2. At first there were only two sorts of testaments among the Romans that
called calatis comitiis, and another called in procinctu. (See below.) In the
course of time these two sorts of testament having become obsolete, a third form
was introduced, called per aes et libram, which was a fictitious sale of the
inheritance to the heir apparent. The inconveniences which were experienced from
these fictitious sales again changed the form of testaments; and the praetor
introduced another which required the seal of seven witnesses. The emperors
having increased the solemnity of those testaments, they were called written or
solemn testaments, to distinguish them from nuncupative testaments which could
be made without writing. Afterwards military testaments were introduced, in
favor of soldiers actually engaged in military service.
3. Among the civilians there are various kinds of testaments, the principal
of which are mentioned below.
4. A civil testament is one made according to all the forms prescribed by
law, in contradistinction to a military testament, in making which some of the
forms may be dispensed with. Civil testaments are more ancient than military
ones; the former were in use during the time of Romulus, the latter were
introduced during the time of Coriolanus. See Hist. de la Jurisp. Rom. de M.
Terrason, p. 119.
5. A common testament is one which is made jointly by several persons. Such
testaments are forbidden in Louisiana, Civ. Code of Lo. art. 1565, and by the
laws of France, Code Civ. 968, in the same words, namely, "A testament cannot be
made by the same act, by two or more persons, either for the benefit of a third
person, or under the title of a reciprocal or mutual disposition."
6. A testament calatis comitiis, or made in the comitia, that is, the
assembly of the Roman people, was an ancient manner of making wills used in
times of peace amonn the Romans. The comitia met twice a year for this purpose.
Those who wished to make such testaments caused to be convoked the assembly of
the people by these words, calatis comitiis. None could make such will's that
were not entitled to be at the assemblies of the people. This form of testament
was repealed by the law of the Twelve Tables.
7. Testament ab irato, a term used in the civil law. A testament ab irato, is
one made in a gust of passion or hatred against the presumptive heir rather than
from a desire to benefit the devisee. When the facts of unreasonable anger are
proved, the will is annulled as unjust, and as not having been freely made. Vide
8. A mystic testament is also called a solemn testament, because it requires
more formality than a nuncupative testament; it is a form of making a will,
which consists principally in enclosing it in an envelope and sealing it in the
presence of witnesses.
9. This kind of testament is used in Louisiana. The following are the
provisions of the civil code of that state on the subject, namely: the mystic or
secret testament, otherwise called the close testament, is made in the following
manner: the testator must, sign his dispositions, whether he has written. them
himself, or has caused them to be written by another person. The paper
containing, those dispositions, or the paper serving as their envelope, must be
closed and sealed. The testator shall present it thus closed and sealed to the
notary and to witnesses, or he shall cause it to be and sealed in their
presence; then he shall declare to the notary, in the presence of the witnesses,
that that paper contains his testament written by himself, or by another by his
direction, and signed by him, the testator. The notary shall then draw up the
act of superscription, which shall be written on that paper, or on the sheet
that serves as its envelope, and that act shall be signed by the testator, and
by the notary and the witnesses. Art. 1577, 5 M. R. 1 82. All that is above
prescribed shall be done without interruption or turning aside to other acts;
and in case the testator, by reason of any hindrance that has happened since the
signing of the testament, cannot sign the act of superscription, mention shall
be made of the declaration made by him thereof; without its being necessary, in
that case, to increase the number of witnesses. Art. 1578. Those who know not
how, or are not able to write, and those who know not how, or are not able to
sign their names, cannot make dispositions in the form of the mystic will. Art.
1579. If any one of the witnesses to the act of superscription knows not how to
sign, express mention shall be made thereof. In all cases the act must be signed
by at least two witnesses. Art. 1580.
10. Nuncupative, testament, a term used in the civil law. A numcupative
testament was one made verbally, in the presence of seven witnesses; it was not
necessary that it should have been, in writing; the proof of it was by parol
11. In Louisiana, testaments, whether nuncupative or mystic, must be drawn up
in writing, either by the testator himself, or by some other person under his
dictation. Civil Code of Lo. art. 1568. The custom of making verbal statements,
that is to say, resulting from the mere deposition of witnesses, who were
pregent when the testator made known to them his will, without his having
committed it, or caused it to be committed to writing, is abrogated. Id. art.
1569. Nuncupative testaments may be made by public act, or by act under private
signature. Id. art. 1570. See Will, nuncupative.
12. Olographic testament, a term used in the civil law. The olographic
tes-tament is that which is written wholly by the testator himself. In order to
be valid, it must be entirely written, dated, and signed by the hand of the
tes-tator. It is subject to no other form. See Civil Code of Lo. art.
TESTAMENTARY. Belonging to a testament; as a testamentary gift; a
testamen-tary guardian, or one appointed by will or testament; letters
testamentary, or a writing under seal given by an officer lawfully authorized,
granting power to one named as executor to execute a last will or testament.
TESTATE. One who dies having made a testament; a testator. This word
is used in this sense, in the act of the legislature of Pennsylvania, entitled
"An act relative to dower and for other purposes." Sect. 2, 5 Sm. Laws, 257.
TESTATOR. One who has made a testament or will.
2. In general, all persons may be testators. But to this rule there are
various exceptions. First, persons who are deprived of understanding cannot make
wills; idiots, lunatics and infants, are among this class. Secondly, persons who
have understanding, but being under the power of others, cannot freely exercise
their will; and this the law presumes to be the case with a married woman, and,
therefore, she cannot make a will without the express consent of her hushand to
the particular will. When a woman makes a will under some general agreement on
the part of the hushand that she shall make a will, the instrument is not
properly a will, but a writing in the nature of a will or testament. Thirdly,
persons who are deprived of their free will cannot make a testament; as, a
person in duress. 2 Bl. Com. 497; 2 Bouv. Inst. n. 2102, et seq. See Devisor;
Duress; Feme covert;, Idiot; Influence; Parties to Contracts; Testament; Wife;
TESTATRIX. A woman who makes a will or testament, is so called.
TESTATUM, practice. The name of a writ which is issued by the court of
one county, to the sheriff of another county, in the same state, when the
defen-dant cannot be found in the county where the court is located; for
example, after a judgment has been obtained, and a ca. sa. has been issued,
which has been returned non est inventus, a testatum ca. sa. may be issued to
the sheriff of the county where the defendant is. Vide 20 Vin. Ab. 259; 7 Com.
TESTATUM, conveyancing. That part of a deed which commences with the
words "this indenture witnesseth."
TESTE, practice. The teste of a writ is the concluding clause,
commencing with the word witness, &c.
2. The act of congress of May 8, 1792, 1 Story's Laws U. S. 257, directs that
all writs and process issuing from the supreme or a circuit court, shall bear
teste of the chief justice of the supreme court, or if that office be vacant, of
the associate justice next in precedence; and that all writs or process issuing
from a district court, shall hear teste of the judge of such court, or, if the
said office be vacant, of the clerk thereof. Vide Serg. Const. Law, Index, h.
t.; 20 Vin. Ab. 262; Steph. Plead. 25.
TO TESTIFY. To give evidence according to law; the examination of a
witness who declares his knowledge of facts.
TESTIMONIAL PROOF, civ. law. This word is used in the same sense as we
use parol evidence, and, in contradistinction to literal proof, which is written
TESTIMONY, evidence. The statement made by a witness under oath or
affirmation. Vide Bill to perpetuate testimony.
TESTMOIGNE. This is an old and barbarous French word, signifying in
the old books, evidence. Com. Dig. h. t.