RESTITUTION1, maritime2 law. The placing back or restoring articles which have been lost by jettison3; this is done when the remainder of the cargo4 has been saved at the general charge of the owners of the cargo; but when the remainder of the goods are afterwards lost, there is not any restitution. Stev. on Av. 1, c. 1, s. 1, art. 1, ii., 8. Vide Recompense.
RESTITUTION, practice. The return of something to the owner of it, or to the person entitled to it.
2. After property has been taken into execution, and the judgment5 has been reversed or set aside, the party against whom the execution was sued out shall have restitution, and this is enforced by a writ6 of restitution. Cro. Jac. 698; 4 Mod. 161. When the thing levied7 upon under an execution has not been sold, the thing itself shall be restored; when it has been sold, the price for which it is sold is to be restored. Roll. Ab. 778; Bac. Ab. Execution, Q; 1 Al. & S. 425.
3. The phrase restitution of conjugal8 rights frequently occurs in the ecclesiastical courts. A suit may there be brought for this purpose whenever either the hushand or wife is guilty of the injury of subtraction9, or lives separate from the other without sufficient reason; by which the party injured may compel the other to return to cohabitation. 1 Bl. Com. 94; 1 Addams, R. 305; 3 Hagg. Eccl. R. 619.
TO RESTORE. To return what has been unjustly taken; to place the owner of a thing in the state in which he formerly10 was. By restitution is understood not only the return of the thing itself, but all its accessories. It is to return the thing and its fruits. Dig. 60, 16, 35, 75 et 246, §1.
RESTRAINING. Narrowing down, making less extensive; as, a restraining statute11, by which the common law is narrowed down or made less extensive in its operation.
RESTRAINING POWERS. A term used in equity12. When the donor13 of a power, who is the owner of the estate, imposes certain restrictions14 by the terms of the powers, these restrictions are called restraining powers.
RESTRAINT. Something which prevents us from doing what we would desire to do.
2. Restraint is lawful15 and unlawful. It is lawful when its object is to prevent the violation16 of the law, or the rights of others. It is unlawful when it is used to prevent others from doing a lawful act; for example, when one binds17 himself not to trade generally; but an agreement not to trade in a particular place is lawful. A legacy18 given in restraint of marriage, or on condition that the legatee shall not marry, is good, and the condition alone is void. The Roman civil law agrees with ours in this respect; a legacy given on condition that the legatee shall not marry is void. Clef des Lois Rom. mot Passion. See Condition; Limitation.
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