英文法律词典 B-16

BENEFIT OF DISCUSSION, civil law. The right which a surety has to cause the property of the principal debtor¹ to be applied² in satisfaction of the obligation in the first instance. See Civil Code of Lo. art. 3014 to 3020, and Discussion.

BENEFIT OF DIVISION. In the civil law, which, in this respect, has been adopted in Louisiana, although, when there are several sureties, each one is bound for the whole debt, yet when one of them is sued alone, he has a right to have the debt apportioned³ among all the solvent⁴ sureties on the same obligation, so that he shall be compelled to pay his own share only. This is called the benefit of division. Civil Code of Lo. art. 3014 to 3020. See 2 Bouv. Inst. n. 1414.

BENEFIT OF INVENTORY⁵, civil law. The benefit of inventory is the privilege which the heir obtains of being liable for the charges and debts of the succession, only to the value of the effects of the succession, in causing an inventory of these effects within the time and manner proscribed⁶ by law. Civil Code of Louis. art. 1025. Vide Poth. Traits des Successions, c. 3, s. 3, a. 2.

BENEVOLENCE⁷, duty. The doing a kind action to another, from mere⁸ good will, without any legal obligation. It is a moral duty only, and it cannot be enforeed by law. A good wan⁹ is benevolent¹⁰ to the poor, but no law can compel him to be so.

BENEVOLENCE, English law. An aid given by the subjects to the king under a pretended gratuity¹¹, but in realty it was an extortion and imposition.

TO BEQUEATH. To give personal property by will to another.

BEQUEST¹². A gift by last will or testament¹³; a legacy¹⁴. (q. v.) This word is sometimes, though improperly¹⁵ used, as synonymous with devise. There is, however, a distinction between them. A bequest is applied, more properly, to a gift by will of a legacy, that is, of personal property; devise is properly a gift by testament of real property. Vide Devise.

BESAILE or BESAYLE, domestic relations. The grea-grandfather, proavus. 1 Bl. Com. 186. Vide dile.

BEST EVIDENCE. Means the best evideince of which the nature of the case admits, not the highest or strongest evidence which the nature of the thing to be proved admits of: e. g. a copy of a deed is not the best evidence; the deed itself is better. Gilb. Ev. 15; 3 Campb.. 236; 2 Starkey, 473 2 Campb. 605; 1 Esp. 127.

2. The rule requiring the best evidence to be produced, is to be understood of the best legal evidence. 2 Serg. & R. 34; 3 Bl. Com. 368, note 10, by Christian¹⁶. It is relaxed in some cases, as, e. g. where the words or the act of the opposite party avow¹⁷ the fact to be proved. A tavern¹⁸ keeper's sign avows¹⁹ his occupation; taking of tithes²⁰ avows the clerical character; so, addressing one as The Reverend T. S." 2 Serg. & R. 440 1 Saund. on Plead. & Evid. 49.

BETROTHMENT. A contract between a man and a woman, by which they agree that at a future, time they will marry together.

2. The requisites²¹ of this contract are 1. That it be reciprocal. 2. That the parties be able to contract.

3. The contract must be mutual²²; the Promise of the one must be the consideration for the promise of the other. It must be obligatory²³ on both parties at the same instant, so that each may have an action upon it, or it will bind²⁴ neither. 1 Salk. 24, Carth. 467; 5 Mod. 411; 1 Freem. 95; 3 Keb. 148; Co. Lit. 79 a, b.

4. The parties must be able to contract. if either be married at the time of betrothment, the contract is void; but the married party cannot take advantage of his own wrong, and set up a marriage or previous engageinent, as an answer to the action for the breach²⁵ of the contract, because this disability proceeds from the defendant's own act. Raym. 387 3 Just. 89; I Sid. 112 1 Bl. Com. 438.

5. The performance of this engagement or completion of the marriage, must be performed within a reasonable time. Either party may, therefore, call upon the other to fulfil the engagement, and in case of refusal or neglect to do so, within a reasonable time after request made, may treat the betrothment as at an end, and bring action for the breach of the contract. 2 C. & P. 631.

6. For a breach of the betrothment, without a just cause, an action on the case may be maintained for the recovery of damages. See Affiance; Promise of Marriage.