TOKEN, contracts, crimes. A document or sign of the existence of a
2. Tokens are either public or general, or privy tokens. They are true or
false. When a token is false and indicates a general intent to defraud, and it
is used for that purpose, it will render the offender guilty of the crime of
cheating; 12 John. 292; but if it is a mere privy token, as counterfeiting a
letter in another man's name, in order to cheat but. one individual, it would
not be indictable. 9 Wend. Rep. 182; 1 Dall. R. 47; 2 Rep. Const. Cr. 139; 2
Virg. Cas. 65; 4 Hawks, R. 348; 6 Mass. IR. 72; 1 Virg. Cas. 150; 12 John. 293;
2 Dev. 199; 1 Rich. R. 244.
TOKEN, commercial law. In England, this name is given to pieces of
metal, made in the shape of money, passing among private persons by consent at a
certain value. 2 Adolpb. P. S. 175; 2 Chit. Com. Law, 182.
TOLERAT10N. In some. countries, where religion is established by 1aw,
cer-tain sects who do not agree with the established religion are nevertheless
permitted to exist, and this permission is called toleration. Those are
per-mitted and allowed to remain rather as a matter of favor than a matter of
2. In the United States, there is no such a thing as toleration, all men have
an equal right to worship God according to the dictates of their own
consciences. See Christianity; Conscience; Religious test.
TOLL, contracts. A sum of money for the use of something, generally
applied to the consideration which is paid for the use of a road, bridge, or the
like, of a public nature. Toll is also the compensation paid to a miller for
grinding another person's grain.
2. The rate of taking toll for grinding is regulated by statute in most of
the states. See 2 Hill. Ab. oh. 17; 6 Ad. & Ell. N. S. 31,; 6 Q. B. 3 1.
TO TOLL, estates, rights. To bar, defeat, or take away; as to toll an
entry into lands, is to deny. or take away the right of entry.
TOLLS. In a general sense, tolls signify any manner of customs,
subsidy, prestation, imposition, or sum of money demanded for exporting or
importing of any wares or merchandise, to be taken of the buyer. 2 Inst. 58.
TON. Twenty hundred weight, each hundred weight being one hundred and
twelve pounds avoirdupois. See act of congress of Aug. 30, 1842, c. 270, s.
TONNAGE, mar. law. The capacity of a ship or vessel.
2. The act of congress of March 2, 1799, s. 64, 1 Story's L. U. S. 630,
directs that to ascertain the tonnage of any ship or vessel, the surveyor,
&c. shall, if the said ship or vessel be double decked, take the length
thereof from the forepart of the main stem, to the afterpart of the stern post,
above the upper deck, the breadth thereof, at the broadest part above the
mainwales, half of which breadth shall be accounted the depth of such vessel,
and then deduct from the length three-fifths of the breadth, multiply the
remainder by the breadth and the product of the depth, and shall divide this
last product by ninety-five, the quotients whereof shall be deemed the true
contents or tonnage of such ship or vessel. And if such ship or vessel shall be
single decked, the said, surveyor shall take the length and breadth as above
directed, in respect to a double deck ship or vessel, and shall deduct from the
length three-fifths of the breadth, and taking the depth from the under-side of
the deck plank to the ceiling of the hold, shall multiply and divide as
aforesaid, and the quotient shall be deemed the tonnage of such ship or
3. The duties paid on the tonnage of a ship or vessel are also called
4. These duties are altogether abolished in relation. to American vessels by
the act of May 31, 1830, s. 1, 4 Story's Laws U. S. 2216. And by the second
section of the same act, all tonnage duties on foreign vessels are abolished,
provided the president of the, United States shall be satisfied that the
discriminating or countervailing duties of such foreign nation, so far as they
operate to the disadvantage. of the United States, have been abolished.
5. The constitution of the United States provides, art. 1, s. 10, n. 2, that
no state shall, without the consent of congress, lay any duty on tonnage.
TONTINE, French law. The name of a partnership composed of creditors
or, re-cipients of perpetual or life-rents or annuities, formed on the condition
that the rents of those who may die, shall accrue to the survivors, either in
whole or in part.
2. This kind of partnership took its name from Tonti, an Italian, who first
conceived the idea and put it in practice. Merl. Repert. h. t. Dall. Dict. h.
t.; 5 Watts, 851.
TOOK AND CARRIED AWAY, pleadings. In an indictment for simple larceny,
the words "feloniously took and carried away" the goods stolen, are
indispensable. Bac. Abr. Indictment, GI; Com. Dig. Indictment, G 6; Cro. C. C.
37; 1 Chit. Cr. Law, 0244. Vide Taking.
TOOLS. The Massachusetts act of assembly of 1805, c. 100, which
provided that "the tools of any debtor necessary for his trade and occupation,
should be exempted from execution," was held to designate those implements which
are commonly used by the hand of one man, in some manual labor necessary for his
subsistence. The apparatus of a printing office, such as types, presses, &c.
are not therefore included under the term tools. 13 Mass. Rep. 82; 10 Pick. 423;
3 Verm. 133; and see 2 Pick. 80; 5 Mass. 313.
2. By the forty-sixth section of the act of March 2, 1789, 1 Story's Laws U.
S. 612, the tools or implements of a mechanical trade of persons who arrive in
the United States, are free and exempted from duty.
TORT. An injury; a wrong; (q. v.) hence the expression an executor de
son tort, of his own wrong. Co. Lit. 158.
2. Torts may be committed with force, as trespasses, which may be an injury
to the person, such as assault, battery, imprisonment; to the property in
possession; or they may be committed without force. Torts of this nature are to
the absolute or relative rights of persons, or to personal property in
possession or reversion, or to real property, corporeal or encorporeal, in
possession or reversion: these injuries may be either by nonfeasance,
malfeasance, or misfeasance. 1 Chit. Pl. 133-4. Vide 1 Fonb. Eq. 4; Bouv. Inst.
Index, h. t.; and the article Injury.
TORTFEASOR. A wrong-doer, one who does wrong; one who commits a
trespass or is guilty of a tort.
TORTURE, punishments. A punishment inflicted in some countries on
supposed criminals to induce them to confess their crimes, and to reveal their
2. This absurd and tyrannical practice never was in use in the United States;
for no man is bound to accuse himself. An attempt to torture a person accused of
crime, in order to extort a confession, is an indictable offence. 2 Tyler, 380.
TOTAL. Complete; containing the whole; as the total amount of an
account is all the items of such account added together; total incapacity, is an
absolute and complete incapacity to do a thing. A married woman is totally
incapable to make a contract, because, although having intelligence, she has not
legal capacity and an idiot is totally incapable to enter into a contract,
because he has no will.
TOTAL LOSS. A technical expression, importing an utter loss of the
property for the voyage, and no more. 1 T. R. 187. Vide Loss, and 2 Phil. Ev.
54, n.; 16 East, R. 214 Park's Ins. Index, h. t.; Marsh. Ins. 486.
TOTALITY. The whole sum or quantity.
2. In making a tender, it is requisite that the totality of the sum due
should be offered, together with the interest and costs. Vide Tender.
TOTIDEM VERBIS. In so many words.
TOTIES QUOTIES. As often as the thing shall happen.
TOUCH AND STAY. These words are frequently introduced in policies of
insurance, giving the party insured the right to stop and stay at certain
designated points in the course of the voyage. A vessel which has the power to
touch and stay at a place in the course of the voyage, must confine herself
strictly to the terms of the liberty so given; for any attempt to trade at such
a port during such a stay, as by shipping or landing goods, will amount to a
species of deviation which will discharge the underwriters, unless the ship have
also liberty to trade, as well as to touch and stay at such a place. 1 Marsh.
Ins. 275; 1 Esp. R. 610; 5 Esp. R. 96.
TOUJOURS ET UNCORE PRIST. Always, and still ready. This is the name of
a plea of tender, as where a man is indebted to another, and he tenders the
amount due, and after wards the creditor brings a suit, the defendant may plead
the tender, and add that he has always been and is still ready to pay what he
owes, which may be done by the formula toujours et uncore prist. He must then
pay the money into court, and if the issue be found for him, the defendant will
be exonerated from costs, and the plaintiff made justly liable for them. 3 Bouv.
Inst. n. 2923 Vide Tout temps prist.
TOUR D'ECHELLE, French law. Tour d'echelle is a right which the owner
of an estate has of placing ladders on his neighbor's property to facilitate the
reparation of a party wall, or of buildings which are supported by that wall. It
is a species of servitude. Lois des Bat. part 1, c. 3, sect. 2, art. 9, §1.
2. In another sense by this term, or echellage, is understood the space of
ground left unoccupied around a building for the purpose of enabling the owner
to repair it with convenience; this is not a servitude, but an actual corporeal
property. Td. part 1, c. 3, sect. 2, art. 9, §2.
TOUT TEMPS PRIST, pleading. These old French words signify always
ready. The name of a plea to an action where the defendant alleges that he has
always been ready to perform what is demanded of him; and he adds that he is
still ready, uncore prist. (q. v.) 3 Bl. Com. 303; 20 Vin. Ab. 306; Com. Dig.
Pleader, 2 Y 5.
TOWAGE, contracts. That which is given for towing ships in rivers.
Guidon de la Mer, ch. 16; Poth. Des Avaries, n. 147; 2 Chit. Com. Law, 16.
TOWN. This word is used differently in different parts of the United
States. In Pennsylvania and some other of the middle states, it signifies a
village or a city. In some of the northeastern states it denotes a subdivision
of a county, called in other places a township.
TRADE. In its most extensive signification this word includes all
sorts of dealings by way of Bale or exchange. In a more limited sense it
signifies the dealings in a particular business, as the India trade; by trade is
also understood the business of a particular mechanic, hence boys are said to be
put apprentices to learn a trade, as the trade of a carpenter, shoemaker, and
the like. Bac. Ab. Master and Servant, D 1. Trade differs from art. (q. v.)
2. It is the policy of the law to encourage trade, and therefore all
contracts which restrain the exercise of a man's talents in trade are
detrimental to the commonwealth, and therefore void; though he may bind himself
not to exercise a trade in a particular place, for, in this last case, as he may
pursue it in another place, the commonwealth has the benefit of it. 8 Mass. 223;
9 Mass. 522. Vide Ware R. 257, 260 Com. Dig. h. t.; Vin. Ab. h. t.
TRADE MARKS. Signs, writings or tickets put upon manufactured goods,
to distinguish them from others.
2. It seems at one time to have been thought that no man acquired a right in
a particular mark or stamp. 2 Atk. 484. But it was afterwards considered that
for one man to use as his own another's name or mark, would be a fraud for which
an action would lie. 3 Dougl. 293; 3 B. & C. 541; 4 B. & Ad. 410. 1
court of equity will restrain a party from, using the marks of another. Eden,
Inj. 314l; 2 Keene, 213; 3 Mylne & C. 339.
3. The Monthly Law Magazine for December 1840, in an article copied into the
American Jurist, vol. 25, p. 279, says, "The principle to be extracted, after an
examination of these cases, appear to be the following: First, that the first
producer or vendor of any article gains no right of property in that article so
as to prevent others from manufacturing, producing or vending it.
4. Secondly, that although any other person may manufacture, produce, and
sell any such article, yet he must not, in manner, either by using the same or
similar marks, wrappers, labels, or devices, or colorable imitations thereof, or
otherwise, hold out to the public that he is manufacturing, producing, or
selling the identical article, prepared, manufactured, produced, or sold by the
other; that is to say, he may not make use of the name or reputation of the
other in order to sell his own preparation.
5. Thirdly, the right to use or restrain others from using any mark or name
of a firm, is in the nature of goodwill, and therefore goes to the surviving or
continuing partner in such firm, and the personal representative of a deceased
partner has an interest in it.
6. Fourthly, that courts of equity in these cases only act as auxiliary to
the legal right, and to prevent injury, and give a relief by account, when
damages at law would be inadequate to the injury received; and they will not
interfere by injunction in the first instance, unless a good legal title is
shown, and even then they never preclude the parties from trying the right at
law, if desired.
7. Fifthly, if the legal title be so doubtful as not to induce the court to
grant the injunction, yet it will put the parties in a position to try the legal
right at law, notwithstanding the suit.
8. Sixthly, that before the party is entitled to relief in equity, he must
truly represent his title, and the mode in which he became possessed of the
article for the vending of which he claims protection; it being a clear rule of
courts of equity not to extend their protection to persons whose case is not
founded on truth."
9. In France the law regulates the rights of merchants and manu facturers as
to their trade marks with great minuteness. Dall. Dict. mot Propriete
Industrielle. See, generally, 4 Mann. & Gr. 357; B. & C. 541; 5 D. &
R. 292; 2 Keen, 213; and Deceit.