Prescription, tom. xii. page 671; Ayl. Pand. 320; Wood's Inst. Civ. Law, 165; Leçons Elem. du Dr. Rom. § 437; 1 Browne's Civ. Law, 264, n.; Vattel, B. 2, c. 2, § 140.

USUFRUCT, civil law. The right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing.

2. The obligation of not altering the substance of the thing, however, takes place only in the case of a complete usufruct.

3. Usufructs are of two kinds; perfect and imperfect. Perfect usufruct, which is of things which the usufructuary can enjoy without altering their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied; as a house, a piece of land, animals, furniture and other movable effects. Imperfect or quasi usufruct, which is of things which would be useless to the usufructuary if he did not consume and expend them, or change the substance of them, as money, grain, liquors. Civ. Code of Louis. art. 525, et seq.; 1 Browne's Civ. Law, 184; Poth. Tr. du Douaire, n. 194; Ayl. Pand. 319; Poth. Pand. tom. 6, p. 91; Leçons El. du Dr. Civ. Rom. § 414; Inst. lib. 2, t. 4; Dig. lib. 7, t. 1, 1. 1; Code, lib. 3, t. 33; 1 Bouv. Inst. Theolo. ps. 1, c. 1, art. 2, p. 76. USUFRUCTUARY, civil law. One who has the right and enjoyment of an usufruct.

2. Domat, with his usual clearness, points out the duties of the usufructuary, which are, 1. To make an inventory of the things subject to the usufruct, in the presence of those having an interest in them. 2. To give security for their restitution; when the usufruct shall be at an end. 3. To take good care of the things subject to the usufruct. 4. To pay all taxes, and claims which arise while the thing is in his possession, as a ground-rent. 5. To keep the thing in repair at his own expense. Lois Civ. liv. 1, t. 11, s. 4. See Estate for life.

USURPATION, torts. The unlawful assumption of the use of property which belongs to another; an interruption or the disturbing a man in his right and possession. Toml. Law Dict. h. t.

2. According to Lord Coke, there are

two kinds of usurpation. 1. When a stranger, without right, presents to a church, and his clerk is admitted; and, 2. When a subject uses a franchise of the king without lawful authority. Co. Litt. 277 b. USURPATION, government. The tyrannical assumption of the government by force, contrary to and in violation of the constitution of the country.

USURPED POWER, insurance. By an article of the printed proposals which are considered as making a part of the contract of insurance it is provided, that "No loss of damage by fire, happening by any invasion, foreign enemy, or any military or usurped power whatsoever will be made good by this company." Lord Chief J. Wilmot, Mr. Justice Clive, and Mr. Justice Bathurst, against the opinion of Mr. Justice Gould, determined that the true import of the words usurped power in the proviso, was an invasion from abroad, or an internal rebellion, where armies are drawn up against each other, when the laws are silent, and when the firing of towns becomes unavoidable; but that those words could not mean the power of a common mob. 2 Marsh. Ins. 390.

USURPER, government. One who assumes the right of government by force, contrary to and in violation of the constitution of the country. Toull. Dr. Civ. n. 32. Vide Tyranny.

USURY, contracts. The illegal profit which is required and received by the lender of a sum of money from the borrower, for its use. In a more extended and improper sense, it is the receipt of any profit whatever for the use of money: it is only in the first of these senses that usury will be here considered.

2. To constitute a usurious contract the following are the requisites: 1. A loan express or implied. 2. An agreement that the money lent shall be returned at all events. 3. Not only that the money lent shall be returned, but that for such loan a greater interest than that fixed by law shall be paid.

3.-1. There must be a loan in contemplation of the parties; 7 Pet. S. C. Rep. 109, 1 Clarke, R. 252; and, if there be a loan, however disguised, the contract will be usurious, if it be so in other respects. Where a loan was made of depreciated bank notes to be repaid in sound funds, to enable the borrower to pay a debt he owed dollar for dollar, it was considered as not being usu

rious. 1 Meigs, R. 585. The bona fide sale of a note, bond or other security at a greater discount than would amount to legal interest, is not, per se, a loan, although the note may be endorsed by the seller, and he remains responsible. 9 Pet. S. C. Rep. 103; 1 Clarke, R. 30. But if a note, bond or other security be made with a view to evade the laws of usury, and afterwards sold for a less amount than the interest, the transaction will be considered a loan; 2 Johns. Cas. 60; 3 Johns. Cas. 66; 15 Johns. R. 44; 2 Dall. 92; 12 Serg. & Rawle, 46; and a sale of a man's own note, endorsed by himself, will be considered a loan. It is a general rule that a contract, which, in its inception, is unaffected by usury, can never be invalidated by any subsequent usurious transaction. 7 Pet. S. C. Rep. 109. On the contrary, when the contract was originally usurious, and there is a substitution by a new contract, the latter will generally be considered usurious. 15 Mass. R. 96.

4.-2. There must be a contract for the return of the money at all events; for if the return of the principal with interest, or of the principal only, depend upon a contingency, there can be no usury; but if the contingency extend only to interest, and the principal be beyond the reach of hazard, the lender will be guilty of usury, if he received interest beyond the amount allowed by law. As the principal is put to hazard in insurances, annuities and bottomry, the parties may charge and receive greater interest than is allowed by law in common cases, and the transaction will not be usurious.

5.-3. To constitute usury the borrower must not only be obliged to return the principal at all events, but more than lawful interest this part of the agreement must be made with full consent and knowledge of the contracting parties. 3 Bos. & Pull. 154. When the contract is made in a foreign country the rate of interest allowed by the laws of that country may be charged, and it will not be usurious, although greater

than the amount fixed by law in this. Story, Confl. of Laws, § 292.

Vide, generally, Com. Dig. h. t.; Bac. Ab. h. t. ; 8 Com. Dig. h. t.; Lilly's Reg. h. t.; Dane's Ab. h. t.; Petersdorff's Ab. h. t.; Vin. Ab. h. t.; 2 Bl. Com. 454; Comyn on Usury, passim; 1 Pet. S. C. Rep. Index, h. t.; 1 Supp. to Ves. jr. 307, 337; Yelv. 47; 1 Ves. jr. 527; 1 Saund 295, note 1; Poth. h. t.; and the article Anatocism; Interest.

UTERINE BROTHER, domestic relations. A brother by the mother's side.

UTI POSSIDETIS. This phrase, which means as you possess, is used in international law, to signify that the parties to a treaty are to retain possession of what they have acquired by force during the war.

TO UTTER, crim. law. To offer; to publish.

2. To utter and publish a counterfeit note is to assert and declare, directly or indirectly, by words or actions, that the note offered is good. It is not necessary that it should be passed in order to complete the offence of uttering. 2. Binn. R. 338, 9. It seems that reading out a document, although the party refuses to show it, is a sufficient uttering. Jebb's Ir. Cr. Cas. 282. Vide East, P. C. 179; Leach, 251; 2 Stark. Ev. 378; 1 Moody, C. C. 166; 2 East, P. C. 974; Russ. & Ry. 113; 1 Phil. Ev. Index, h. t.; Roscoe's Cr. Ev. 301. The merely showing a false instrument with intent to gain a credit, when there was no intention or attempt made to pass it, it seems would not amount to an uttering. Russ. & Ry. 200. Vide Ringing the change.

UTTER BARRISTER, English law. Those barristers who plead without the bar, and are distinguished from benchers, or those who have been readers and who are allowed to plead within the bar, as the king's counsel are. The same as ouster barrister. See Barrister.

UXOR, civil law. A woman lawfully

married.

VACANCY. A place which is empty. The term is principally applied to cases where an office is not filled.

2. By the constitution of the United States, the president has the power to fill up vacancies that may happen during the recess of the senate. Whether the president can create an office and fill it during the recess of the senate, seems to have been much questioned. Story, Const. § 1553. See Serg. Const. Law, ch. 31; 1 Breese, R. 70.

VACANT POSSESSION, estates. An estate which has been abandoned by the tenant; the abandonment must be complete in order to make the possession vacant, and therefore if the tenant have goods on the premises, it will not be so considered. 2 Chit. Rep. 177; 2 Str. 1064; Bull. N. P. 97; Comyn on Landl. & Ten. 507, 517.

VACANT SUCCESSION. An inheritance for which the heirs are unknown.

VACANTIA BONA, civil law. Goods without an owner. Such goods escheat.

TO VACATE. To annul, to render an act void; as to vacate an entry which has been made on a record when the court has been imposed upon by fraud, or taken by surprise.

VACATION. That period of time between the end of one term and beginning of another. During vacation, rules and orders are made in such cases as are urgent, by a judge at his chambers.

VACCARIA, old Engl. law. A word which is derived from vacca, a cow, and signifies a dairy-house. Co. Litt. 5 b.

VADIUM, contracts. A pledge or

surety.

VADIUM MORTUUM, contracts. A mortgage or dead pledge; it is a security given by the borrower of a sum of money, by which he grants to the lender an estate in fee, on condition that if the money be not repaid at the time appointed, the estate so put in pledge shall continue to the lender as dead or gone from the mortgagor. 2 Bl. Com. 257; 1 Pow. Mortg. 4.

VADIUM VIVUM, contracts. A species of security by which the borrower of a sum of money, made over his estate to the lender,

until he had received that sum out of the issues and profits of the land; it was so called because neither the money nor the lands were lost, and were not left in dead pledge, but this was a living pledge, for the profits of the land were constantly paying off the debt. Litt. sect. 206; 1 Pow. on Mort. 3; Termes de la Ley, h. t.

VAGABOND. One who wanders about idly, who has no certain dwelling. The ordonnances of the French define a vagabond almost in the same terms. Dalloz, Dict. Vagabondage. See Vattel, liv. 1, § 219, n.

VAGRANT. Generally by the word vagrant is understood a person who lives idly, without any settled home; but this definition is much enlarged by some statutes, and it includes those who refuse to work, or go about begging. See 1 Wils. R. 331; 5 East, R. 339; 8 T. R. 26.

VAGUENESS. Uncertainty.

2. Certainty is required in contracts, wills, pleadings, judgments, and indeed in all the acts on which courts have to give a judgment, and if they be vague, so as not to be understood, they are in general invalid. 5 B. & C. 583; 1 Russ. & M. 116; 1 Ch. Pract. 123. A charge of "frequent intemperance" and "habitual indolence" are vague and too general. 2 Mart. Lo. Rep. N. S. 530. See Certainty; Nonsense; Uncertainty.

VALID. An act, deed, will, and the like, which has received all the formalities required by law, is said to be valid or good in law.

VALUABLE CONSIDERATION, contracts. An equivalent for a thing purchased. Vide Vin. Ab. Consideration, B; 2 Bl. Com. 297; Consideration.

VALUATION. The act of ascertaining the worth of a thing; or it is the estimated worth of a thing.

2. It differs from price, which does not always afford a true criterion of value, for a thing may be bought very dear or very cheap. In some contracts, as in the case of bailments or insurances, the thing bailed or insured is sometimes valued at the time of making the contract, so that if lost, no dispute may arise as to the amount of the

loss. 2 Marsh. Ins. 620; 1 Caines, 80; 2 Caines, 30; Story, Bailm. § 253, 4; Park. Ins. 98; Wesk. Ins. h. t.; Stev. on Av. part 2; Ben. on Ins. ch. 4.

VALUE, common law. This term has two different meanings. It sometimes expresses the utility of an object, and sometimes the power of purchasing other goods with it. The first may be called value in use, the latter value in exchange.

2. Value differs from price. The latter is applied to live cattle and animals; in a declaration, therefore, for taking cattle, they ought to be said to be of such a price; and in a declaration for taking dead chattels or those which never had life, it ought to lay them to be of such a value. 2 Lilly's Ab. 629. VALUE RECEIVED. This phrase is usually employed in a bill of exchange or promissory note, to denote that a consideration has been given for it.

2. The expression value received, when put in a bill of exchange, will bear two interpretations: the drawer of the bill may be presumed to acknowledge the fact that he has received value of the payee; 3 M. & S. 351; or when the bill has been made payable to the order of the drawer, it implies that value has been received by the acceptor. 5 M. & S. 65. In a promissory note, the expression imports value received from the payee. 5 B. & C. 360.

VALUED POLICY. A valued policy is one where the value has been set on the ship or goods insured, and this value has been inserted in the policy in the nature of liquidated damages, to save the necessity of proving it in case of loss. 1 Bouv. Inst. n. 1230.

VARIANCE, pleading, evidence. A disagreement or difference between two parts of the same legal proceeding, which ought to agree together. Variances are between the writ and the declaration, and between the declaration and the evidence.

2.-1. When the variance is a matter of substance, as if the writ sounds in contract, and the other in tort, and è converso, or if the writ demands one thing or subject, and the declaration another, advantage may be taken of it, even in arrest of judgment; for it is the writ which gives authority to the court to proceed in any given suit, and, therefore, the court can have no authority to hear and determine a cause substantially different from that in the writ. Hob. 279; Cro. Eliz. 722. But if the variance is in

when that circumstance is immaterial, advantage can only be taken of it by plea in abatement. Yelv. 120; Latch. 173; Bac. Ab. Abatement, I; Gould, Pl. c. 5, § 98; 1 Chit. Pl. 438.

3.-2. A variance by disagreement in some particular point or points only between the allegation and the evidence, when upon a material point, is as fatal to the party on whom the proof lies, as a total failure of evidence. For example; the plaintiff declared in covenant for not repairing, pursuant to the covenant in a lease, and stated the covenant, as a covenant to "repair when and as need should require ;" and issue was joined on a traverse of the deed alleged. The plaintiff at the trial produced the deed in proof, and it appeared that the covenant was to "repair when and as need should require, and at farthest after notice;" the latter words having been omitted in the declaration. This was held to be a variance, because the additional words were material, and qualified the effect of the contract. 7 Taunt. 385. But a variance in mere form or in matter quite immaterial, will not be regarded. Str. 690. Vide 1 Vin. Ab. 41; 12 Vin. Ab. 63; 21 Vin. Ab. 538; Com. Dig. Abatement, G 8, H 7; Id. Amendment, D 7, 8, V 3: Bail, R 7; Obligation, B 4; Pleader, C 14, 15, L 24, 30; Record, C, D, F; Phil. Ev. Index, h. t.; Stark. Ev. Index, h. t., Roscoe's Ev. Index, h. t.; 18 E. C. L. R. 139, 149, 153; 1 Dougl. 194; 2 Salk. 659; Harr. Dig. h. t. ; Chit. Pl. Index, h. t.; United States Dig. Pleading II, d and e; Bouv. Inst. Index, h. t.

VASSAL, feudal law. This was the name given to the holder of a fief, bound to perform feudal service; this word was then always correlative to that of lord, entitled to such service.

2. The vassal himself might be lord of some other vassal.

3. In aftertimes, this word was used to signify a species of slave who owed servitude, and was in a state of dependency on a superior lord. 2 Bl. Com. 53; Merl. Répert. h. t.

VECTIGALIA.

Among the Romans this word signified duties which were paid. to the prince for the importation and expor tation of certain merchandise. They differed from tribute, which was a tax paid by each individual. Code, 4, 61, 5 and 13.

VENAL. Something that is bought. The term is generally applied in a bad sense; as, a venal office, is an office which has been purchased.

VENDEE, contr. A purchaser; (q. v.) a buyer.

VENDITION. A sale; the act of selling. VENDITIONI EXPONAS, practice. That you expose to sale. The name of a writ of execution, directed to the sheriff, commanding him to sell goods or chattels," and in some states, lands, which he has taken in execution by virtue of a fieri facias, and which remain unsold.

2. Under this writ the sheriff is bound to sell the property in his hands, and he cannot return a second time, that he can get no buyers. Cowp. 406; and see 2 Saund. 47, 1.; 2 Chit. Rep. 390; Com. Dig. Execution, C 8; Grah. Pr. 359; 3 Bouv. Inst. n. 3395.

VENDOR, contracts. A seller. (q. v.) One who disposes of a thing in consideration of money. Vide Purchaser; Seller.

VENIRE FACIAS, practice, crim. law. According to the English law, the proper process to be issued on an indictment for any petit misdemeanor, on a penal statute, is a writ called venire facias.

2. It is in the nature of a summons to cause the party to appear. 4 Bl. Com. 18; 1 Chit. Cr. Law, 351.

VENIRE, or VENIRE FACIAS JURATORES, practice. The name of a writ directed to the sheriff, commanding him to cause to come from the body of the county, before the court from which it issued, on some day certain and therein specified, a certain number of qualified citizens who are to act as jurors in the said court. Steph. Pl. 104; 2 Graydon's Forms, 314; and see 6 Serg. & Rawle, 414; 21 Vin. Ab. 291; Com. Dig. Enquest, C 1, &c.; Id. Pleader, 2 S 12, 3 O 20; Id. Process, D 8; 3 Chit. Pr. 797.

reserving a right to the seller to repurchase the property sold by returning the price paid for it.

2. The time during which a repurchase may be made cannot exceed ten years, and, if by the agreement it so exceed, it shall be reduced to ten years. The time fixed for redemption must be strictly adhered to, and cannot be enlarged by the judge, nor exercised afterwards. Code 1545-1549.

3. The following is an instance, of a vente à réméré. A sells to B, for the purpose of securing B against endorsements, with a clause that "whenever A should relieve B from such endorsements, without B's having recourse on the land, then B would reconvey the same to A, for A's own use." This is a vente à réméré, and until A releases B from his endorsements, the property is B's, and forms no part of A's estate. 7 N. S. 278. See 1 N. S. 528; 3 L. R. 153; 4 L. R. 142; Troplong, Vente, ch. 6; 6 Toull. p. 257.

VENTER or VENTRE. Signifies literally the belly. In law it is used figuratively for the wife for example, a man has three children by the first, and one by the second venter.

2. A child is said to be in ventre sa mere before it is born; while it is a fœtus.

VENTER INSPICIENDO, Eng. law. A writ directed to the sheriff, commanding him that, in the presence of twelve men, and as many women, he cause examination to be made, whether a woman therein named is with child or not; and if with child, then about what time it will be born; and that he certify the same. It is granted in a case when a widow, whose husband had lands in fee simple, marries again soon after her husband's death, and declares herself pregnant by her first husband, and, under that pretext, withholds the lands from the next heir. Cro. Eliz. 506; Fleta, lib. 1, c. 15.

VENTE A REMERE. A term used in Louisiana, which signifies a sale made

2. As it is a general rule, that the place of every traversable fact stated in the pleadings must be distinctly alleged, or at least that some certain place must be alleged for every such fact, it follows that a venue must be stated in every declaration.

3. In local actions, in which the subject or thing to be recovered is local, the true venue must be laid; that is, the action must be brought in that county where the cause