EX MORA. From the delay; from the default. All persons are bound to make amends1 for damages which arise from their own default.
EX NECESSITATE2 LEGIS. From the necessity of law.
EX NECESSITATE REI. From the necessity of the thing. Many acts may be done ex necessitate ret, which would not be justifiable3 without it; and sometimes property is protected, ex necessitate rei, which, under, other circumstances, would not be so. For example, property put upon the land of another from necessity, cannot be distrained for rent. See Distress4; Necessity.
EX OFFICIO. By virtue5 of his office. 2. Many powers are granted and exercised by public officers which are not expressly delegated. A judge, for example, may, ex officio, be a conservator of the peace, and a justice of the peace.
EX PARTE. Of the one part. Many things may be done ex parte, when the opposite party has had notice; an affidavit6 or deposition7 is said to be taken ex parte when only one of the parties attends to taking the same. Ex parte paterna, on the side of the father, or property descended8 to a person from his father; ex parte materna, on the part of the mother.
EX POST FACTO, contracts, crim. law. This is a technical expression, which signifies, that something has been done after another thing, in relation to the latter.
2. An estate granted, may be made good or avoided by matter ex post facto, when an election is given to the party to accept or not to accept. 1 Co . 146.
3. The Constitution of the United States, art. 1, sec. 10, forbids the states to pass any ex post facto law; which has been defined to be one which renders the act punishable in a manner in which it was not punishable when it was committed. 6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index, h. t.
4. This prohibition9 in the constitution against passing ex post facto law's, applies exclusively to criminal or penal10 cases, and not to civil cases. Serg. Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, R. 350; 5 Monr. 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1 J. J. Marsh11, 563; 2 Pet. R. 681; and the article Retrospective.
EX VI TERMINI. By force of the term; as a bond ex vi termini imports a sealed instrument.
EX VISITATIONE DEI. By or from the visitation of God. This phrase is frequently employed in inquisitions by the coroner, where it signifies that the death of the deceased is a natural one.
EX TEMPORE. From the time without premeditation.
EXACTION12, torts. A willful wrong done by an officer, or by one who, under color of his office, takes more fee or pay for his services than what the law allows. Between extortion and exaction there is this difference; that in the former case the officer extorts13 more than his due, when something is due to him; in the latter, he exacts what is not his due, when there is nothing due to him. Wishard; Co. Litt. 368.
EXAMINATION, crim. law. By the common law no one is bound to accuse himself. Nemo tenetur prodere seipsum. In England, by the statutes15 of Philip and Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10,) the principles of which have been adopted in several of the United States, the justices before whom any person shall be brought, charged with any of the crimes therein mentioned, shall take the examination of the prisoner, as well is that of the witnesses, in writing, which the magistrates17 shall subscribe18, and deliver to the officer of the court where the trial is to be had. The signature of the prisoner, when not specially19 required by statute14, is not indispensable, though it is proper to obtain it, when it can be obtained. 1 Chit. Cr. Law, 87; 2 Leach20, Cr. Cas. 625.
2. It will be proper to consider, 1. The requisites21 of such examination. 2. How it is to be proved. 3. Its effects.
3. - 1. It is required that it should, 1st. Be voluntarily made, without any compulsion of any kind; and, 2d. It must be reduced to writing. 1st. The law is particularly solicitous22 to let the prisoner be free in making declarations in his examination; and if the prisoner has not been left entirely23 free, or did not consider himself to be so, or if he did not feel at liberty wholly to decline any explanation or declaration whatever, the examination is not considered voluntary, and the writing cannot be read in evidence against him, nor can parol evidence be received of what the prisoner said on the occasion. 5 C. & P. 812; 7 C. & P. 177; 1 Stark24. R. 242; 6 Penn. Law Journ. 120. The prisoner, of course, cannot be sworn, and make his statement under oath. Bull. N. P. 242; 4 Hawk25. P. C. book 2, c. 46, §37; 4 C. & P. 564. 2a. The statute requires that the examination shall be reduced to writing, or so much as may be material, and the law presumes the magistrate16 did his duty and took down all that was material. Joy on Conf. 89-92; 1 Greenl. Ev. §227. The prisoner need not sign the examination so reduced to writing, to give it validity; but, if being asked to sign it, he absolutely refuse, it will be considered incomplete. 2 Stark. R. 483; 2 Leach, Cr. Cas. 627, n.
4. - 2. The certificate of the magistrate is conclusive26 evidence of the manner in which the examination was conducted. 7 C. & P. 177; 9 C. & P. 124; 1 Stark. R. 242. Before it can be given in evidence, its identity must be proved, as well as the identity of the prisoner. When the prisoner has signed the examination, proof of his handwriting is sufficient evidence that he has read it; but if he has merely made his mark, or not signed it at all, the magistrate or clerk must identify the prisoner, and prove that the writing was duly read to him, and that he assented27 to it. l Greenl. Ev. §520; 1 M. & Rob. 395.
5. - 3. The effect of such an examination, when properly taken and proved, is sufficient to found a conviction. 1 Greenl. Ev. §216.
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