The American and English Encyclopedia of Law

ENJOIN. To command; to require; as private individuals are not only permitted, but enjoined, by law, to arrest an offender when present at the time a felony is committed or a dangerous wound given, on pain of fine and imprisonment if the wrongdoer escape through their negligence; . . . to command or order a defendant in equity to do or not to do a particular thing by writ of injunction.1 (See INJUNCTION.)

ENJOYMENT.-The exercise of a right. It is to a right what possession is to a corporeal thing, and is therefore divisible, like possession, into simple, rightful, permissive, adverse, etc. Adverse enjoyment is more commonly known in the English books as "enjoyment as of right," and occurs where a person exercises a right which does not belong to him in the same manner as if he were entitled to it, and without the permission of the owner. Enjoyment which is open, peaceable, continuous, and of right, resembles adverse possession in being a mode of acquiring by

in estimating the value of a widow's dower, she ought to have the benefit of the increase in value between the date of such alienation and the death of the husband, not arising from improvements made or placed on the land. Said the court, "It may be admitted that the word 'enhanced,' taken in an unqualified sense, is equivalent to 'increased,' and comprehends any increase in value however caused or arising; but under the circumstances it ought to be construed to include only the value caused by the improvements put upon the land by the tenant, or those under whom he claims, and not that which arises fortuitously, or from what may be called natural causes. Thornburn v. Doscher, 32 Fed. Rep. 810.

1. Bouv. Law Dict.

The Use of the Word "Enjoin" in a Will does not necessarily create a Precatory Trust. A bequest was as follows: "I give to my brother, in trust for my sisters, M., C., and H., 4,000l., on condition that they will support M. M.; at the demise of either or any of the above, the survivors or survivor to receive the increased income produced thereby. They are hereby enjoined to take care of my nephew, J., as may seem best in the future." It was held that the sisters took absolutely as joint tenants, and that there was no precatory or other trust in favor of the nephew. Said the court, "Is the word "enjoin" sufficient to create a precatory trust? It is obvious on the face of the will that the testator drew a distinction between the quasi obligation which he wished to commend to his sisters to take care of the nephew, and the positive obligation which he made a condition in the case of M. M. The nephew was not placed on the same footing as M. M. Coupling that in

dication of his meaning with the vague words 'as may seem best in the future,' I do not think that a precatory trust has been sufficiently imposed upon these legatees to enable the nephew to bring an action to have it carried into effect." Moore v. Roche, L. J. R. 55, Ch. Div. 418.

A testator, after having made his daughter, S. C., his residuary devisee and legatee, continued as follows: "I commit my granddaughter, A. L., to the charge and guardianship of my daughter, S. C. . I enjoin upon her to make such provision for said grandchild out of my residuary estate now in her hands, in such manner, at such times, and in such amounts, as she may judge to be expedient and conducive to the welfare of my said grandchild, and her own sense of justice and Christian duty shall dictate." It was held that the daughter, S. C., took an absolute title to the residuary estate, and that it was wholly discretionary with her as to what provision should be made for the_granddaughter. Lawrence v. Cooke, 10 East. Rep. 429; s. c., 7 Cent. Rep. 101.

2. The phrases "enjoyed by any person claiming right," and "enjoyment as of right," applied to easements in the statute 2 & 3 W. IV. c. 71, in sections 2 and 5 respectively, mean 'an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion, or on many; but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use without danger of being treated as a trespasser, as a matter of right, whether the right so claimed shall be strictly legal, as by prescription and adverse user, or by deed, or shall have been merely lawful so far as to excuse a tres

lapse of time the right so enjoyed.1 (See also ADVERSE POSSESSION; EASEMENTS.)

ENLARGE.2

pass.” Tickle v. Brown, 4 Ad. & El. persons should be as effectual as if such 369.

1. Rap. & Law. L. D.

The State constitution of Florida provides that a homestead of a certain size shall be exempt from forced sale under any process of law, with certain specified exceptions; and that "this exemption shall accrue to the heirs of the party having enjoyed or taken the benefit of such exemption." Under this clause it was held that "any one who has owned and occupied with his family the limited amount of land and improvements mentioned, has enjoyed' it as exempt from forced sale, whether he has or has not been threatened with executions or other process, because the enjoyment of a homestead consists in the use and occupation of it with his family according to the clear intent and purpose of the provision." Baker v. State, 17 Fla. 408.

The Beneficial Enjoyment mentioned in section 21 of the succession duty act of 16 & 17 Vict. c. 51, means no more than the enjoyment of the possessor in his own right, and for his own benefit, not as trustee for another. Atty.-Gen. v. Sefton, 11 H. L. Cas. 256.

To be enjoyed with and to go with the Title. A testatrix bequeathed a leasehold house to the sixth Earl of Essex "and to his successors, to be enjoyed with and to go with the title." It was held that the earl was absolutely entitled to the leasehold house, the words "to be enjoyed with and to go with the title" not being sufficient to create an executed or executory trust, or to cut down his interest therein to a life estate. In re Johnson, L. J. 53 Ch. 645.

persons had qualified under the previous acts. It was, however, further provided that the act should not extend to restore or entitle any person to any office, etc., . . already legally filled up and enjoyed by any other person." Under these acts it was held that the office of a common councilman of the town of H. W. was not "legally filled up and enjoyed" by a candidate who had received the greatest number of legal though not of actual votes, but who had not been sworn in. Said L. Ellenborough, C. J., "There can be no legal enjoyment of an office, unless there be an enjoyment of it de facto." King . Parry, 14 East, 549.

2. To enlarge an Estate is to increase the tenant's interest; as where the tenant in remainder conveys to the tenant of the first estate, thus increasing his estate to a fee. Abb. L. D.; 2 Bl. Com. 324.

To enlarge a Prisoner is to set him at large or at liberty. Abb. L. D.

To enlarge a Rule or Order of Court, as used in the old books, is to extend the time within which it is returnable. Rap. & Law. L. D.; Reid v. Fryatt, 1 Man. & Sel. I.

An Enlarging Statute is one that enlarges or extends the common law as opposed to a restraining statute. For example, "clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law; therefore it was thought expedient by statute 5 Eliz. c. 11, to make it high treason, which it was not at the common law, so that this was an enlarging statute. At common law also, spiritual corporations might lease out their estates for any term of years, till prevented Enjoyment of an Office. By the corpora- by the statute 13 Eliz.: this was, tion act, 13 Car. II. st. 2, c. 1, s. 12, one who therefore, a restraining statute." I Bl. had not taken the sacrament according to Com. 87. "This statute against clipping the rites of the Church of England within the coin hardly corresponds with the gena year before his election, in fact, to a cor- eral notion, either of a remedial or an enporate office, was disqualified from being larging statute. . . . An enlarging or an elected; and, if the electors had been noti- enabling statute is one which increases, fied of such disqualification at the time of not restrains, the power of action; as the the election, votes afterwards given to such 32 Hen. VIII. c. 28, which gave bishops person were then thrown away; and any and all other sole ecclesiastical corporacandidate having the most legal votes, tions, except parsons and vicars, a power though in fact inferior in number to those of making leases, which they did not posof the disqualified candidate, was duly sess before, is always called an enabling elected, and entitled to be sworn in. By statute. The 13 Eliz. c. 10, which afterthe annual indemnity act, 50 G. III. c. 4, it wards limited that power, is, on the conwas provided that disqualified persons might trary, styled a restraining or disabling qualify themselves within a certain time, statute.' Christian's Note; I Bl. Com. and that the said qualification of such 87.

ENLIST. To make a contract 1 to serve the government in a subordinate capacity, either in the army or navy.3

ENLISTMENT. See MILITARY LAW.

ENTER, ENTRY. (See BURGLARY; ENTRY, WRIT OF; JUDGment; Re-entrY.) — 1. To go upon. Entry is the taking possession of lands by the legal owner. It is a remedy for the wrongful

1. Under the act of Congress of 1855, c. 136, s. II, punishing the enticing of any seaman "who may have enlisted into the naval service of the United States" to desert therefrom, a seaman who has passed the examination at the naval rendezvous merely, but who has not been examined and passed on the receiving-ship, in accord. ance with the regulations of the navy, is not enlisted. "Enlistment," said the court, "must be deemed to be a contract between the party and the government. . . . Now, if the seaman, on signing the papers, and passing the rendezvous, was not entitled to any thing, then the contract for service on the one hand, and pay on the other, had not been completed; the seaman had not enlisted, and so was not a deserter." United States v. Thompson, 2 Sprague (U. S.), 103. See also Barker v. Chesterfield, 102 Mass. 130. In Tyler v. Pomeroy, 8 Allen (Mass.), 485, it was said, "The words enlist and enlistment in the law, as in common usage, may signify either the complete fact of entering into the military service, or the first step taken by the recruit towards that end."

Does an enlistment resemble a contract in being necessarily a voluntary act? In Babbitt v. U. S., 16 C. of Cl. 213, Davis, J., said in a dictum, "Enlistment is a technical word, derived from Great Britain, with a technical meaning. In the English Cyclopedia it is defined to be a voluntary engagement to serve as a private soldier for a certain number of years.' Chambers defines it as 'the mode by which the English army is supplied with troops as distinguished from the conscription prevailing in many other countries.' Littré, the best French authority, defines conscription as an 'appel au service militaire, par voie du tirage au sort;' and he defines enrole, which is the equivalent of an 'enlisted man,' as an enrolé voluntaire.' True to this distinction between a voluntary engagement as distinguished from a conscription or draft, the statutes of the United States allow only persons who are able to contract to enter the army by enlistment (Rev. Stat. §§ 1116, 1117, 1118), and require the contract to be made for a term of years." But it has been held in Massachusetts, that a statute giving to men that had "been duly enlisted, and mustered into the military or naval service of the United States, as part of

the quota of any city or town in this Commonwealth," during the civil war, under certain circumstances, a settlement in such city or town, applied to drafted men, as well as to volunteers. "By the primary meaning of the word," said the court, "a person is 'enlisted' whose name is duly entered upon the military rolls; and it applies to those who are drafted, as well as to those who volunteer." Sheffield v. Ohio, 107 Mass. 282.

2. Neither in military nor in popular usage is the term "enlist,” or “enlistment," ever used to signify the engagement of a commissioned officer in the military service. It is always limited to the rank and file. Hilliard v. Stewartstown, 48 N. H. 280.

A West Point cadet is not an enlisted man within the statutes of the United States. "The statutes employ the term 'enlist' only with reference to contracts with persons who enter the army as privates, and to certain other classes of men, —like Indian scouts and hospital stewards, who rank like soldiers, and voluntarily put themselves under military law." Rev. Stat. §§ 1099, 1100, 1101, 1102, 1103, 1104, 1107, 1108, 111, 112, 1115, 1155, 1162, 1180). Babbitt v. U. S., 16 Ct. of Cl. 214.

3. Bouv. Law Dict., approved in Erickson v. Beach, 40 Conn. 286.

Officers and Enlisted Men in the Navy.It seems to be generally understood the words officers and enlisted men include the whole personnel of the navy, regarding as enlisted men all those who sign articles of agreement called "shipping articles;" and as officers, all others who take the oath of office prescribed by the Revised Statutes, § 1757, to be taken by all persons elected or appointed to any office of honor or trust under the Government of the United States. Monat v. U. S., 22 Ct. of Cl. 298.

4. Under an act prescribing a penalty for entering upon the lands of another for purposes of hunting, a man does not incur the penalty who enters with the owner's consent which is subsequently withdrawn. "The unlawful entry upon the land, which calls down the penalty of the law, is the first crossing of the owner's line. This is one entire and single act. It cannot be divided or multiplied, and it constitutes a complete offence." Kellogg v. Robinson, 32 Conn. 335.

5. Bouv. Law Dict.; Guion v. Anderson, 8 Humph. (Tenn.) 306.

dispossession of lands.1 Entry also "means that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country, by filing his claim in the office of an officer known in the legislation of several States by the epithet of an entry-taker, and corresponding very much in his functions with the registers of land-offices, under the acts of the United States."

2. To set down in writing.

3. For other meanings of the word, see note 4.

1. 3 Bl. Com. 174.

2. Chotard v. Pope, 12 Wheat. (U. S.) 588.

3. Bissell v. Beckwith, 32 Conn. 517. To enter is to make a record of, and not merely to announce. When spoken of a judgment, the word is never synonymous with render. Under a statute authorizing * a change without a rehearing of a judgment erroneously entered, the inquiry is confined to whether the judgment as rendered was actually entered, and must not extend to whether the judgment rendered was a correct judgment. Blatchford v. Newberry, 100 fll. 484. And see McLaughlin v. Doherty, 54 Cal. 519. To enter on a docket, is to write upon or in the docket. Where a statute required an undertaking of replevin bail to be entered on the docket in order to be valid, it is not entered and is void if written upon a separate piece of paper and pinned to the docket. Lockwood v. Dills, 74 Ind. 59.

An action is entered within a statutory provision that a rule for reference to arbitration may be taken at any time after entry, from the time it is placed on the prothonotary's docket. Hertzog v. Ellis, 3 Binn. (Pa.) 209.

counts, but never to carry out the proceeds in the column to their credit until actually collected; and this was called a 'short entry,' or 'entering short.' And such bills always continued the property of the customer, unless the contrary was to be inferred from some course of dealing, whereas country bankers in England generally credited to their customers at once all bills considered good, and generally allowed drafts upon the proceeds." Blaine v. Bourne, 11 R. I. 119.

4. In construing the word as used in an act of Congress, providing for a forfeiture where an importer makes or attempts to make an entry by a false or fraudulent paper or practice, Hoffman, J., said, “The term entry in the acts of Congress is used in two senses. In many of the acts it refers to the bill of entry, the paper or declaration which the merchant or importer in the first instance hands to the entry clerk. In other statutes it is used to denote, not a document, but a transaction; a series of acts which are necessary to the end to be accomplished; viz., the entering of the goods. In the latter sense it is used in this statute. . . . The acts which accomplish this result, and which taken together constitute an entry, must have a beginning and an end. There is a moment when the entry is attempted to be made or begun: there is a moment when it is accomplished. The entry may be said to be commenced or attempted when the merchant presents his declaration or bill of entry. When the bill of entry has gone to the requisite clerk's desk, when accompanied by the certificate of the consul, the invoice and the oath, it is delivered to the collector, and accepted by him, then the goods may in a just sense be said to be admitted to entry, and the entry to be accomplished." United States v. Cargo of Sugar, 3 Sawy. (C. C.) 46. "The word 'entry,' said Blatchford, J., in interpreting the same act, "means the entire transaction by which the importer obtains the entrance of his goods into the body of the merchandise of the United States," including the liquidation and payment of duties. Until the entire transaction between him and the government is closed, the entry of the goods is

Where, in a condition in a policy of insurance that it should be void if the title to the insured property were changed, it was provided that "the entry of a foreclosure of mortgage" should be deemed an alienation; the meaning of this clause is that something short of an actual and complete foreclosure should be considered as a transfer or change of title, and that an entry for foreclosure, or an act which of itself and without any further formality or process on the part of the mortgagee, will deprive the assured of all right and title in the property, unless they pay the debt, shall be deemed sufficient to terminate the risk. McIntire v. Norwich, F. Ins. Co. 102 Mass. 230.

Entering short, or Short Entry. "It would seem that in London it was a custom (Giles et al. v. Perkins et als., 9 East, 12, and counsel arguendo in Ex parte Thompson, 1 Mont. & Mac. 102, 110) for bankers to receive bills for collection, and to enter them immediately in their customers' ac

ENTERTAINMENT. (See BALLET; BOARD; DRAMATIC; INN; STAGE.) The reception and accommodation of guests.1 Amusement.2

ENTICE, 3

ENTICING AWAY.-See KIDNAPPING.

not to be regarded as completed. United States v. Baker, 5 Ben. (C. C.) 25.

or without reward,' and also, 'reception, admission.' Other definitions are given with respect to another sense of the word, namely, when it is applied to amusement; but I do not think that it is used in that sense in the present statute" (Gröve, J.). "It seems to me that 'entertainment' qualifies 'refreshment,' and that the two words taken together mean in the statute the receiving of a customer, and the providing him with drink and food of an agreeable nature. When a guest is received into the house of a friend, and drink and food of an agreeable nature are placed before him, he is entertained; and in my opinion a man is not the less entertained because he is not asked to sit down whilst he takes refreshment" (Mellish, L. J.).

An ante-room to a dance-hall where beer was sold, and for admission to which a charge was made, is not open for public entertainment under this act. Taylor v. Oram, 1 H. & C. 370.

Where the phrase "tavern or house of entertainment was used in a license act, the terms were held to be synonymous, and to mean common inns. Bonner v. Welborn, 7 Ga. 296.

Under an act forbidding British vessels to enter, or attempt to enter, any port of the United States under pain of forfeiture, a libel must not depart from the words of the statute. An allegation that such a vessel came and arrived, is insufficient. "The words 'arrive' and 'enter' are not always synonymous, and there certainly may be an arrival without an actual entry, or attempt to enter. Though, perhaps, an arrival within a port cannot be without an entry into the port." United States v. An Open Boat & Lading, 5 Mason (C.C.), 120. Under an order directing an arbitrator to make an award within a fixed time after he has entered on the reference, he was held to have entered on the reference, not at the time he gave notice of his intention to proceed, but when he began the real business of the reference. Baker v. Stephens, L. R. 2 Q. B. 523; s. c., 8 B. & S. 445. 1 A café where men and women were supplied with cigars, coffee, and gingerbeer, which they there consumed, is within the meaning of an act providing that "all houses, rooms, shops, or buildings, kept open for public refreshment, resort, and entertainment," during certain hours of the night, are to be deemed refreshment-houses, and require licenses. Muir v. Keay, L. R. 10 Q. B. 595. So is a shop for the sale of lemonade and ginger-beer, consisting of only one room, open in front, and without seats. Howes v. B'rd of Inland Rev., L. R. I Ex. D. 385. In the former case, Lusk, 7., said, “The main objection is, that there was no public entertainment, for that means a musical or other public performance. I think that is wrong. I think entertainment is something connected with the enjoyment of refreshment-rooms, tables, and the like. It is something beyond refreshment: it is the accommodation provided, whether that includes a musical or other amusement or not." "It does not," said Blackburn, J., "apply to the mere giving of refreshment, nor to the mere fact of persons coming in: it means public reception." In Howes v. B'rd of Inland Rev., it was said, "I do not think that we can decide this case merely upon the interpretation of that word as found in dictionaries; but it may be useful to notice that in Webster's its meaning, amongst others, is said to be, ‘the receiving 3. The inducement to travel westward and accommodating of guests, either with and find new homes, held out by a Chil

Entertainment was held to be synony mous with board in Scattergood v. Waterman, 2 Miles (Pa.), 323.

2. Meetings of Recreative Religionists held on Sunday evenings, the proceedings at which consisted of sacred music and the delivery of an address, and admission to which was free, a charge being made, however, for reserved seats, are not public entertainments within the meaning of an act making places open for public entertainment or amusement, or for publicly debating on any subject on Sunday, to which persons shall be admitted by the payment of money, disorderly places. Baxter v. Langley, L. R. 4 C. P. 21.

"A place of dramatic entertainment," as used in a copyright law, means a place where a dramatic entertainment is exhibited or performed, even though used but once for that purpose. Russell z. Smith, 12 Q. B. 217; Lee v. Simpson, 871.

Tumbling is not an entertainment of the stage within the meaning of an act forbid ding the performance of such without authority. The King v. Handy, 6 T. R. 286.

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The American and English Encyclopedia of Law, Volume 6