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ALIMENTS. In the Roman and French law this word signifies the food and other things necessary to the support of life, as clothing and the like. The same name is given to the money allowed for aliments. Dig. 50, 16, 43.
ALIMENTS. In the Roman and French law this word signifies the food and other things necessary to the support of life, as clothing and the like. The same name is given to the money allowed for aliments. Dig. 50, 16, 43.
2. By the common law, parents and children reciprocally owe each other aliments or maintenance. (q. v.) Vide 1 Bl. Com. 447; Merl. Rep. h. t.; Dig. 25, 3, 5. In the common law, the word alimony (q.v.) is used. Vide Allowance to a Prisoner.
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ALITER, otherwise. This term is frequently used to point out a difference between two decisions; as, a point of law has been decided in a particular way, in such a case, aliter in another case.
ALIUNDE. From another place; evidence given aliunde, as, when a will contains an ambiguity, in some cases, in order to ascertain the meaning of the testator, evidence aliunde will be received.
ALL FOURS. This is a metaphorical expression, to signify that a case agrees in all its circumstances with another case; it goes as it were upon its four legs, as an animal does.
ALLEGATA. A word which the emperors formerly signed at the bottom of their rescripts and constitutions; under other instrumets they usually wrote nata or testate. Ency. Lond.
ALLEGATA AND PROBATA. The allegations made by a party to a suit, and the proof adduced in their support. It is a general rule of evidence that the allegata and probata must correspond; that is, the proof must at least be sufficiently extensive to cover all the allegations of the party. Greenl. Ev. 51; 3 R. s. 636.
ALLEGATION, English ecclesiastical law. According to the practice of the prerogative court, the facts intended to be relied on in support of the contested suit are set forth in the plea, which is termed an allegation; this is submitted to the inspection of the counsel of the adverse party, and, if it appear to them objectionable in form or substance, they oppose the admission of it. If the opposition goes to the substance of the allegation, and is held to be well founded, the court rejects it; by which mode of proceeding the suit is terminated without, going into any proof of the facts. 1 Phil. 1, n.; 1 Eccl. Rep. ll, n. S. C. See 1 Brown's Civ. Law, 472, 3, n.
ALLEGATION, common law. The assertion, declaration or statement of a party of what he can prove.
ALLEGATI6N, civil law. The citation or reference to a voucher to support a proposition. Dict. de jurisp.; Encyclopedie, mot Allegation; 1 Brown's Civ. Law, 473, n.
ALLEGATION OF FACULTIES When a suit is instituted in the English ecclesiastical courts, in order to obtain alimony, before it is allowed, an alIegation must be made on the part of the wife, stating the property of the husband. This allegation is called an allegation of faculties. Shelf. on Mar. and Div. 587.
ALLIANCE, relationship. The union or connexion of two persons or families by marraiage, which is also called affinity. This is derived from the Latin preposition ad and ligare, to bind. Vide Inst 1, 10, 6; Dig 38, 10, 4, 3; and Affinity.
ALLIANCE, international law. A contract, treaty, or league between two sovereigns or states, made to insure their safety and common defence.
2. Alliances made for warlike purposes are divided in general into defensive and offensive; in the former the nation only engages to defend her ally in case he be attacked; in the latter she unites with him for the purpose of making an attack, or jointly waging the war against another nation. Some alliances are both offensive and defensive; and there seldom is an offensive alliance which is not also defensive. Vattel, B. 3, c. 6, 79; 2 Dall. 15.
ALLISION, maritime law. The running of one vessel against another. It is distiguished from collision in this, that the latter means the running of two vessels against each other; this latter term is frequently used for allision.
ALLOCATION, Eng. law. An allowance upon account in the Exchequer; or rather, placing or adding to a thing. Eucy. Lond.
ALLOCATIONE FACIENDA. Eng. law. A writ commanding that an allowance be made to an accountant, for such moneys as he has lawfully expended in his office. It is directed to the lord treasurer and barons of the exchequer.
ALLOCATUR, practice. The allowance of a writ; e. g. when a writ of habeas corpus is prayed for, the judge directs it to be done, by writing the word allowed and signing his name; this is called the allocator. In the English courts this word is used to indicate the master or prothonotary's allowance of a sum referred for his consideration, whether touching costs, damages, or matter of account. Lee's Dict. h, t.
ALLODIUM estates. Signifies an absolute estate of inheritance, in coutradistinction to a feud.
2. In this country the title to land is essentially allodial, and every tenant in fee simple has an absolute and perfect title, yet in technical language his estate is called an estate in fee simple, and the tenure free and common socage. 3 Kent, Com. 390; Cruise, Prel. Dis. c. 1, 13; 2 Bl. Com. 45. For the etymology of this word, vide 3 Kent Com. 398 note; 2 Bouv. Inst. n. 1692.
ALLONGE, French law. When a bill of exchange, or other paper, is too small to receive the endorsements which are to be made on it, another piece of paper is added to it, and bears the name of allonge. Pard. n. 343; Story on P. N. 121, 151; Story on Bills, 204. See Rider.
ALLOTMENT. Distribution by lot; partition. Merl. Rep. h. t.
TO ALLOW, practice. To approve; to grant; as to allow a writ of error, is to approve of it, to grant it. Vide Allocatur. To allow an amount is to admit or approve of it.
ALLOWANCE TO A PRISONER. By the laws of, it is believed, all the states, when a poor debtor is in arrest in a civil suit, the plaintiff is compelled to pay an allowance regulated by law, for his maintenance and support, and in default of such payment at the time required, the prisoner is discharged. Notice must be given to the plaintiff before the defendant can be discharged.
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ALLUVION. The insensible increase of the earth on a shore or bank of a river by the force of the water, as by a current or by waves. It is a part of the definition that the addition, should be so gradual that no one can judge how much is added at each moment of time. Just. Inst. lib. 2, tit. 1, 20; 3 Barn. & Cress. 91; Code Civil Annote No. 556. The proprietor of the bank increased by alluvion is entitled to the addition. Alluvion differs from avulsion in this: that the latter is sudden and perceptible. See avulsion. See 3 Mass. 352; Coop. Justin. 458; Lord Raym. 77; 2 Bl. Com. 262, and note by Chitty; 1 Swift's Dig. 111; Coop. Just. lib. 2, t. 1; Angell on Water Courses, 219; 3 Mass. R. 352; 1 Gill & Johns. R. 249; Schultes on Aq. Rights, 116; 2 Amer. Law Journ. 282, 293; Angell on Tide Waters, 213; Inst. 2, 1, 20; Dig. 41, 1, 7; Dig. 39, 2, 9; Dig. 6, 1, 23; Dig. 1, 41, 1, 5; 1 Bouv. Inst. pars 1, c. 1 art. 1, 4, s. 4, p. 74.
ALLY, international law. A power which has entered into an alliance with another power. A citizen or subject of one of the powers in alliance, is sometimes called an ally; for example, the rule which renders it unlawful for a citizen of the United States to trade or carry on commerce with an enemy, also precludes an ally from similar intercourse. 4 Rob. Rep. 251; 6 Rob. Rep. 406; Dane's Ab, Index, h. t.; 2 Dall. 15.
ALMANAC. A table or calendar, in which are set down the revolutions of the seasons, the rising and setting of the sun, the phases of the moon, the most remarkable conjunctions, positions and phenomena of the heavenly bodies, the months of the year, the days of the month and week, and a variety of other matter.
2. The courts will take judicial notice of the almanac; for example, whether a certain day of the month was on a Sunday or not. Vin. Ab. h. t.; 6 Mod. 41; Cro. Eliz. 227, pl. 12; 12 Vin. Ab. Evidence (A, b, 4.) In dating instrments, some sects, the Quakers, for example, instead of writing January, February, March, &c., use the terms, First month, Second month, Third month, &c., and these are equally valid in such writings. Vide 1 Smith's Laws of Pennsylvania, 217.
ALLODARII, Eng. law, Book of Domesday. Such tenants, who have as large an estate as a subject can have. 1 Inst. 1; Bac. Ab Tenure, A.
ALMS. In its most extensive sense, this comprehends every species of relief bestowed upon the poor, and, therefore, including all charities. In a more, limited sense, it signifies what is given by public authority for the relief of the poor. Shelford on Mortmain, 802, note (x); 1 Dougl. Election Cas. 370; 2 Id. 107; Heywood on Elections, 263.
ALTA PRODITIO, Eng. law. High treason.
ALTARAGE, eccl. law. Offerings made on the altar; all profits which accrue to the priest by means of the altar. Ayl. Par. 61; 2 Cro. 516.
TO ALTER. To change. Alterations are made either in the contract itself, or in the instrument which is evidence of it. The contract may at any time be altered with the consent of the parties, and the alteration may be either in writing or not in writing.
2. It is a general rule that the terms of a contract under seal, cannot be changed by a parol agreement. Cooke, 500; 3 Blackf. R. 353; 4 Bibb. 1. But it has been decided that an alteration of a contract by specialty, made by parol, makes it all parol. 2 Watts, 451; 1 Wash. R. 170; 4 Cowen, 564; 3 Harr. & John. 438; 9 Pick. 298; 1 East, R. 619; but see 3 S.& R. 579.
3. When the contract is, in writing, but not under seal, it may be varied by parol, and the whole will make but one agreement. 9 Cowen, 115; 5.N. H. Rep. 99; 6 Harr. & John, 38; 18 John. 420; 1 John. Cas. 22; 5 Cowen, 606; Pet. C. C. R. 221; 1 Fairf. 414.
4. When the contract is evidenced by a specialty, and it is altered by parol, the whole will be considered as a parol agreement. 2 Watt 451; 9 Pick. 298. For alteration of instruments see Erasure; Interlineation. See, generally, 7 Greenl. 76, 121, 394; 15 John. 200; 2 Penna. R. 454.
ALTERATION. An act done upon an instrument in writing by a party entitled under it, without the consent of the other party, by which its meaning or language is changed; it imports some fraud or design on the part of him who made it. This differs from spoliation, which is the mutilation of the instrument by the act of a stranger.
2. When an alteration has a tendency to mislead, by so changing the character of the instrument, it renders it void; but if the change has not such tendency, it will not be considered an alteration. 1 Greenl. Ev. 566.
3. A spoliation, on the contrary, will not affect the legal character of the instrument, so long as the original writing remains legible; and, if it be a deed, any trace of the seal remains. 1 Greenl. Ev. 566. See Spoliation.
ALTERNAT. The name of a usage among diplomatists by which the rank and places of different powers, who have the same rights and pretensions to precedence, are changed from time to time, either in a certain regular order, or one determined by lot. In drawing up treaties and conventions, for example, it is the usage of certain powers to alternate, both in the preamble and the signatures, so that each power occupies, in the copy intended to be delivered to it, the first place. Wheat. Intern. Law, pt. 2, c. 3, 4..
ALTERNATIVE. The one or the other of two things. In contracts a party has frequently the choice to perform one of several things, as, if he is bound to pay one hundred dollars, or to deliver a horse, he has the alternative. Vide Election; Obligation; Alternative.
ALTIUS NON TOLLENDI, civil law. The name of a servitude due by the owner of a house, by which he is restrained from building beyond a certain height. Dig. 8, 2, 4, and 1, 12, 17, 25.
ALTIUS TOLLENDI, civil law. The name of a servitude which consists in the right, to him who is entitled to it, to build his house as high as he may think proper. In general, however, every one enjoys this privilege, unless he, is restrained by home contrary title.
ALTO ET BASSO. High and low. This phrase is applied to an agreement made between two contending parties to submit all matters in dispute, alto et basso, to arbitration. Cowel.
ALTUM MARE. The high sea. (q. v.)
ALUMNUS, civil law. A child which one has nursed; a foster child. Dig. 40, 2, 14.
AMALPHITAN CODE. The name given to a collection of sea-laws, complied about the end of the eleventh century, by the people of Amalphi. It consists of the laws on maritime subjects which were, or had been, in force in counries bordering on the Mediterranean; and, on account of its being collected into one regular system, it was for a long time received as authority in those countries. 1 Azun. Mar. Law, 376.
AMANUENSIS. Oe who write another dictates. About the beginning of the sixth century,, the tabellions (q.v.) were known by this name. 1 Sav. Dr. Rom. Moy. Age, n. 16.
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AMBIDEXTER. It is intended by this Latin word, to designate one who plays on both sides; in a legal sense it is taken for a juror or embraceor who takes money from the parties for giving his verdict. This is seldom or never done in the United States.
AMBULATORIA VOLUNTAS. A phrase used to designate that a man has the power to alter his will or testament as long as he lives. This form of phrase frequently occurs in writers on the civil law; as ambulatoria res, ambulatoria actio, potestas, conditio, &c.;Calvini Lexic.
AMENABLE. Responsible; subject to answer in a court of justice liable to punishment.
AMENDE HONORABLE, EngIish law. A penalty imposed upon a person by way of disgrace or infamy, as a punishment for any offence, or for the purpose of making reparation for any injury done to another, as the walking into church in a white sheet, with a rope about hte neck, and a ortch in the hand, and begging the pardon of God, or the king, or any private individual, for some delinquency.
2. A punishment somewhat similar to this, and which bore the same name, was common in France; it was abolished by the law of the 25th of September, 1791. Merlin Rep. de Jur. h.'t.
3. For the form of a sentence of amende horrorable, see D'Agaesseau, Oeuvres, 43 Plaidoyer, tom. 4, p. 246.
AMENDS. A satisfaction, given by a wrong doer to the party injured for a wrong committed. 1 Lilly's Reg. 81.
2. By statute 24 Geo. II. c. 44, in England, and by similar statutes in some of the United States, justices of the peace, upon being notified of an intended suit against them, may tender amends fore the wrong alleged or done by them in their official character, and if found sufficient, the tender debars the action. See Act of Penn. 21 March, 1772, 1 and.2; Willes' Rep. 671, 2; 6 Bin. 83; 5 Serg. & R. 517, 299; 3 Id. 295; 4 Bin. 20.
AMERCEMENT, practice. A pecuniary penalty imposed upon a person who is in misericordia; as, for example, when the defendant se retaxit, or recessit in contemptum curioe. 8 Co. 58; Bar. Ab. Fines and Amercements. By the common law, none can be amerced in his absence, except for his default. Non licet aliquem in sua absentia amerciare nisi per ejus defaltas. Fleta, lib. 2, cap. 65, 15.
2. Formerly, if the sheriff failed in obeying the writs, rules, or orders of the court, he might be amerced; that is, a penalty might be imposed upon bim; but this practice has been superseded by attachment. In New Jersey and Ohio, the sheriff may, by statutory provision, be amerced for making a return contrary to the provision of the statute. Coxe, 136, 169; 6 Halst. 334; 3 Halst. 270, 271; 5 Halst. 319; 1 Green, 159, 341; 2 Green, 350; 2 South. 433; 1 Ham. 275; 2 Ham. 603; 6 Ham. 452; Wright, 720.
AMERCIAMENT, AMERCEMENT, English law. A pecuniary punishment arbitrarily imposed by some lord or count, in distinction from a fine which is expressed according to the statute. Kitch. 78. Amerciament royal, when the amerciament is made by the sheriff, or any other officer of the king. 4 Bl. Com. 372.
AMI. A friend; or, as it is written in old works, amy. Vide Prochein amy.
AMICABLE ACTION, Pennsylvania practice. An action entered by agreement of parties on the dockets of the courts; when entered, such action is considered as if it, had been adversely commenced, and the defendant had been regularly summoned. An amicable action may be entered by attorney, independently of the provisions of the act of 1866. 8 Er & R. 567.
AMICUS CURIAE, practice. A friend of the court. One, who as a stander by, when a judge is doubtful or mistaken in a matter of law, may inform the court. 2 Inst. 178; 2 Vin. Abr. 475; and any one, as amicus curia, may make an application to the court in favor of an infant, though he be no relation. 1 Ves. Sen. 313. AMITA. A paternal aunt; the sister of one's father. Inst. 3, 6, 3.
AMNESTY, government. An act of oblivion of past offences, granted by the government to those who have been guilty of any neglect or crime, usually upon condition that they return to their duty within a certain period.
2. An amnesty is either express or implied; it is express, when so declared in direct terms; and it is implied, when a treaty of peace is made between contending parties. Vide Vattel, liv. 4, c. 2, 20, 21, 22; Encycl. Amer. h.t.
3. Amnesty and pardon, are very different. The former is an act of the sove reign power, the object of which is to efface and to cause to be forgotten, a crime or misdemeanor; the latter, is an act of the same authority, which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed. 7 Pet. 160. Amnesty is the abolition and forgetfulness of the offence; pardon is forgiveness. A pardon is given to one who is certainly guilty, or has been convicted; amnesty, to those who may have been so.
4. Their effects are also different. That of pardon, is the remission of the whole or a part of the punishment awarded by the law; the conviction remaining unaffected when only a partial pardon is granted: an amnesty on the concrary, has the effect of destroying the criminal act, so that it is as if it had not been committed, as far as the public interests are concerned.
5. Their application also differs. Pardon is always given to individuals, and properly only after judgment or conviction: amnesty may be granted either before judgment or afterwards, and it is in general given to whole classes of criminals or supposed criminals, for the purpose of restoring tranquillity in the state. But sometimes amnesties are limited, and certain classes are excluded from their operation.
AMORTIZATION, contracts, English law. An alienation of lands or tenements in mortraain. 2 Stat. Ed. I.
2. The reduction of the property of lands or tenements to mortmain.
AMORTISE, contracts. To alien lands in mortmain.
AMOTION. In corporations and companies, is the act of removing an officer from his office; it differs from disfranchisement, which is applicable to members, as such. Wille. on Corp. n. 708. The power of amotion is incident to a corporation. 2 Str. 819; 1 Burr. 639.
AMOTION. In corporations and companies, is the act of removing an officer from his office; it differs from disfranchisement, which is applicable to members, as such. Wille. on Corp. n. 708. The power of amotion is incident to a corporation. 2 Str. 819; 1 Burr. 639.
2. In Rex v. Richardson, Lord Mansfield specified three sorts of offences for which an officer might be discharged; first, such as have no immediate relation to the office, but are in themselves of so infamous a nature, as to render the offender unfit to execute any public franchise; secondly, such as are only against his oath, and the duty of his office as a corporator, and amount to breaches of the tacit condition annexed to his office; thirdly, the third offence is of a mixed nature; as being an offence not only against the duty of his officer but also a matter indictable at common law. 2 Binn. R. 448. And Lord Mansfield considered the law as settled, that though a corporation has express power of amotion, yet for the first sort of offences there must be a previous indictment and conviction; and that there was no authority since Bagg's Case, 11 Rep. 99, which says; that the power of trial as well as of amotion, for the second offense, is not incident to every corporation. He also observed: "We think that from the reason of the thing, from the nature of the corporation, and for the sake of order and good government, this power is incident as much as the power of making by-laws." Doug. 149. See generally, Wilcock on Mun. Corp. 268; 6 Conn. Rep. 632; 6 Mass. R. 462; Ang. & Am. on Corpor. 236.
AMOTION, tort. An amotion of possession from an estate, is an ouster which happens by a species of disseisin or turning out of the legal propritor before his estate is determined. 3 Bl. Com. 198, 199. Amotion is also applied to personal chattels when they are taken unlawfully out of the possession of the owner, or of one who has a special property in them.
AMPLIATION, civil law. A deferring of judgment until the cause is further examined. In this case, the judges pronounced the word amplius, or by writing the letters N.L. for non liquet, signifying that the cause was not clear. In practice, it is usual in the courts when time is taken to form a judgment, to enter a curia advisare vult; cur. adv. vult. (q. v.)
AMPLIATION, French law. Signifies the giving a duplicate of an acquittance or other instrument, in order that it may be produced in different places. The copies which notaries make out of acts passed before them, and which are delivered to the parties, are also called ampliations. Dict. de Jur. h. t.
AMY or ami, a French word, signifying, friend. Prochein amy, (q. v.) the next friend. Alien amy, a foreigner, the citizen or subject of some friendly power or prince.
AN, JOUR, ET WASTE. See Year, day, and waste.
ANALOGY, comtruction. The similitude of relations which exist between things compared.
2. To reason analogically, is to draw conclusions based on this similitude of relations, on the resemblance, or the connexion which is perceived between the objects compared. "It is this guide," says Toollier, which leads the law lawgiver, like other men, without his observing it. It is analogy which induces us, with reason, to suppose that, following the example of the Creator of the universe, the lawgiver has established general and uniform laws, which it is unnecessary to repeat in all analogous cases." Dr. Civ. Fr. liv. 3, t. 1, c. 1. Vide Ang. on Adv. Enjoym. 30, 31; Hale's Com. Law, 141.
3. Analogy has been declared to be an argument or guide in forming legal judgments, and is very commonly a ground of such judgments. 7 Barn. & Cres. 168; 3 Bing. R. 265; 8 Bing R. 557, 563; 3 Atk. 313; 1 Eden's R. 212; 1 W. Bl. 151; 6 Ves. jr. 675, 676; 3 Swanst. R. 561; 1 Turn. & R. 103, 338; 1 R. & M. 352, 475, 477; 4 Burr. R. 1962; 2022, 2068; 4 T. R. 591; 4 Barn. & Cr. 855; 7 Dowl. & Ry. 251; Cas. t. Talb. 140; 3 P. Wms. 391; 3 Bro. C. C. 639, n.
ANARCHY. The absence of all political government; by extension, it signifies confusion in government.
ANATHEMA, eccl. law. A punishment by which a person is separate from, the body of the church, and forbidden all intercourse with the faithful: it differs from excommunication, which simply forbids the person excommunicated, from going into the church and communicating with the faithful. Gal. 1. 8, 9.
ANATOCISM, civil law. Usury, which consists in taking interest on interest, or receiving compound interest. This is forbidden. Code, lib. 4, t. 32, 1, 30; 1 Postlethwaite's Dict.
2. Courts of equity have considered contracts for compounding interest illegal, and within the statute of usury. Cas. t. Talbot, 40; et vide Com. Rep. 349; Mass. 247; 1 Ch. Cas. 129; 2 Ch. Cas. 35. And contra, 1 Vern. 190. But when the interest has once accrued, and a balance has been settled between the parties, they may lawfully agree to turn such interest into principal, so as to carry interest in futuro. Com. on Usury, ch. 2, s. 14, p. 146 et eq.
ANCESTOR, descents. One who has preceded another in a direct line of descent; an ascendant. In the common law, the word is understood as well of the immediate parents, as, of these that are higher; as may appear by the statute 25 Ed. III. De natis ultra mare, and so in the statute of 6 R. III. cap. 6, and by many others. But the civilians relations in the ascending line, up to the great grandfather's parents, and those above them, they term, majores, which common lawyers aptly expound antecessors or ancestors, for in the descendants of like degree they are called posteriores. Cary's Litt.45. The term ancestor is applied to natural persons. The words predecessors and successors, are used in respect to the persons composing a body corporate. See 2 Bl. Com. 209; Bac. Abr. h. t.; Ayl. Pand. 58.
ANCESTRAL. What relates to or has, been done by one's ancestors; as homage ancestral, and the like.
ANCHOR. A measure containing ten gallons. Lex, Mereatoria.
ANCHORAGE, merc. law. A toll paid for every anchor cast from a ship into a river, and sometimes a toll bearing this name is paid, although there be no anchor cast. This toll is said to be incident to almost every port. 1 Wm. Bl. 413; 2 Chit. Com. Law, 16.
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ANCILLARY. That which is subordinate on, or is. subordinate to, some other decision. Encyc. Lond. 1
ANDROLEPSY. The taking by one nation of the citizens or subjects of another, in order to compel the latter to do justice to the former. Wolff. 1164; Molloy, de Jure lar. 26.
ANGEL. An ancient English coin of the value of ten shillings sterling. Jac. L. D. h. t.
ANIENS. In some of our law books signifies void, of no force. F. N. B. 214.
ANIMUS. The intent; the mind with which a thing is done, as animus. cancellandi, the intention of cancelling; animus farandi, the intention of stealing; animus maiaendi; the intention of remaining; auimus morandi, the intention or purpose of delaying.
2. Whether the act of a man, when in appearance criminal, be so or not, depends upon the intention with which it was done. Vide Intention.
ANIMUS CANCELLANDI. An intention to destroy or cancel. The least tearing of a will by a testator, animus cancellandi, renders it invalid. See Cancellation.
ANIMUS FURANDI, crim. law. The intention to steal. In order to comstitute larceny, (q. v.) the thief must take the property anino furandi; but this, is expressed in the definition of larceny by the word felonious. 3 Inst. 107; Hale, 503; 4. Bl. Com. 229. Vide 2 Russ. on Cr. 96; 2 Tyler's R. 272. When the taking of property is lawful, although it may afterwards be converted animo furandi to the taker's use, it is not larceny. 3 Inst. 108; Bac. Ab. Felony, C; 14 Johns. R. 294; Ry. & Mood. C. C. 160; Id. 137; Prin. of Pen. Law, c. 22, 3, p. 279, 281.
ANIMUS MANENDI. The intention of remaining. To acquire a domicil, the party must have his abode in one place, with the intention of remaining there; for without such intention no new domicil can be gained, and the old will not be lost. See Domicile.
ANIMUS RECIPIENDI. The intention of receiving. A man will acquire no title to a thing unless he possesses it with an intention of receiving it for himself; as, if a thing be bailed to a man, he acquires no title.
ANIMUS REVERTENDI. The intention of returning. A man retains his domicil, if he leaves it animo revertendi. 3 Rawle, R. 312; 1 Ashm. R. 126; Fost. 97; 4 Bl. Com. 225; 2 Russ. on Cr. 18; Pop. 42,. 62; 4 Co. 40.
ANIMUS TESTANDI. An intention to make a testament or will. This is required to make a valid will; for whatever form may have been adopted, if there was no animus testandi, there can be no will. An idiot for example, can make no will, because he has no intention.
ANN, Scotch law. Half a year's stipend over and above what is owing for the incumbency due to a minister's relict, or child, or next of kin, after his decease. Wishaw. Also, an abbreviation of annus, year; also of annates. In the old law French writers, ann or rathe r an, signifies a year. Co. Dig h. v.
ANNATES, ecc. law. First fruits paid out of spiritual benefices to the pope, being, the value of one year's profit.
ANNEXATION, property. The union of one thing to another.
2. In the law relating to fixtures, (q. v.) annexation is actual or constructive. By actual annexation is understood every movement by which a chattel can be joined or united to the freehold. By constructive annexation is understood the union of such things as have been holden parcel of the realty, but which are not actually annexed, fixed, or fastened to the freehold; for example, deeds, or chattels, which relate to the title of the inheritance. Shep. Touch. 469. Vide Anios & Fer. on Fixtures, 2.
3. This term has been applied to the union of one country, to another; as Texas was annexed to the United States by the joint reolution of Congress of larch 1, 1845., See Texas.
ANNI NUBILES. The age at which a girl becomes by law fit for marriage, which is twelve years.
ANNIENTED. From the French aneantir; abrogated or made null. Litt. sect. 741.
ANNO DOMINI, in the year of our Lord, abbreviated, A. D. The computation of time from the incarnation of our Saviour which is used as the date of all public deeds in the United tites and Christian countries, on which account it is called the "vulgar vera."
ANNONAE CIVILES, civil law. A species of rent issuing out of certain lands, which were paid to Rome monasteries.
ANNOTATION, civil law. The designation of a place of deportation. Dig. 32, 1, 3 or the summoning of an, absentee. Dig. lib. 5.
2. In another sense, annotations were the answers of the prince to questions put to him by private persons respecting some doubtful point of law. See Rescript.
ANNUAL PENSION, Scotch law. Annual rent. A yearly profit due to a creditor by way of interest for a given sum of money. Right of annual rent, the original right of burdening land with payment yearly for the payment of money.
ANNUM DIEM ET VASTUM, English law. The title which the king acquires in land, when a party, who held not of the king, is attainted of felony. He acquires the power not only to take the profits for a full year, but to waste and demolish houses, and to extirpate woods and trees.
2. This is but a chattel interest.
ANTECEDENT. Something that goes before. In the construction of laws, agreements, and the like, reference is always to be made to the last antecedent; ad proximun antecedens fiat relatio. But not only the antecedents but the subsequent clauses of the instrument must be considered: Ex antecedentibus et consequentibus fit optima interpretatio.
/B>. Before suit brought, before controversy moved.
ANTEDATE. To, put a date to an instrument of a time before the time it was written. Vide Date.
ANTENATI. Born before. This term is applied to those who were born or resided within the United States before or at the time of the declaration of independence. These had all the rights of citizens. 2 Kent, Com. 51, et seq.
ANTE-NUPTIAL. What takes place before marriage; as, an ante-nuptial agreement, which is an agreement made between a man and a woman in contemplation of marriage. Vide Settlement.
ANTHETARIUS, obsolete See Anti-thetarius.
ANTI-MANlFESTO. The declaration of the reasons which one of the belligerents publishes, to show that the war as to him is defensive. Wolff, 1187. See Manifesto.
ANTlCIPATION. The act of doing or taking a thing before its proper time.
2. In deeds of trust there is frequently a provision that the income of the estate shall be paid by the trustee as it shall accrue, and not by way of anticipation. A payment made contrary to such provision would not be considered as a discharge of the trustee.
ANTICHRESIS, contracts. A word used in the civil law to denote the contract by which a creditor acquires the right of reaping the fruit or other revenues of the immovables given to him in pledge, on condition of deducting, annually, their proceeds from the interest, if any is due to him, and afterwards from the principal of his debt. Louis. Code, art. 3143 Dict. de Juris. Antichrese, Mortgage; Code Civ. 2085. Dig. 13, 7, 7 ; 4, 24, 1 Code, 8, 28, 1.
ANTINOMY. A term used in the civil law to signify the real or apparent contradiction between two laws or two decisions. Merl. Repert. h. t. Vide Conflict of Laws.
ANTIQUA CUSTOMA, Eng. law. A duty or imposition which was collected on wool, wool-felts, and leather, was so called. This custom was called nova customa until the 22 Edw. I., when the king, without parliament, set a new imposition of 40s. a sack, and then, for the first time, the nova customa went by the name of antiqua customa. Bac. Ab. Smuggling &c. B.
ANTIQUA STATUTA. In England the statutes are divided into new and ancient statutes; since the time of memory; those from the time 1 R. I. to E. III., are called antiqua statuta – those made since, nova statuta.
ANTITHETARIUS, old English law. The name given to a man who endeavors to discharge himself of the crime of which he is accused, by retorting the charge on the accuser. He differs from an approver (q, v.) in this, that the latter does not charge the accuser, but others. Jacob's Law Dict.
APARTMENTS. A part of a house occupied by a person, while the rest is occupied by another, or others. 7 Mann. & Gr. 95 ; 6 Mod. 214 ; Woodf. L. & T. 178. See House.
APOSTACY, Eng. law. A total renunciation of the Christian religion, and differs from heresy. (q. v.) This offence is punished by the statute of 9 and 10 W. III. c. 32. Vide Christianity.
APOSTLES. In the British courts of admiralty, when a party appeals from a decision made against him, he prays apostles from the judge, which are brief letters of dismission, stating the case, and declaring that the record will be transmitted. 2 Brown's Civ. and Adm. Law, 438; Dig. 49. 6.
2. This term was used in the civil law. It is derived from apostolos, a Greek word, which signifies one sent, because the judge from whose sentence an appeal was made, sent to the superior judge these letters of dismission, or apostles. Merl. Rep. mot Apotres.
APPARATOR or APPARITOR, eccles. law. An officer or messenger employed to serve the process of the spiritual courts in England.
APPARENT. That which is manifest what is proved. It is required that all things upon which a court must pass, should be made to appear, if matter in pays, under oath if matter of record, by the record. It is a rule that those things which do not appear, are to be considered as not existing de non apparentibus et non existentibus eadem est ratio. Broom's Maxims, 20, What does not appear, does not exist; quod non apparet, non est.
APPARLEMENT. Resemblance. It is said to be derived from pareillement, French, in like manner. Cunn. Dict. h. t.
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APPENDANT. An incorporeal inheritance belonging to another inheritance.
2. By the word appendant in a deed, nothing can be conveyed which is itself substantial corporeal real property, and capable of passing by feoffment and livery of seisin: for one kind of corporeal real property cannot be appendant to another description of the like real property, it being a maxim that land cannot be appendant to land. Co. Litt. 121; 4 Coke, 86; 8 Barn. & Cr. 150; 6 Bing. 150. Only, such things can be appendant as can consistently be so, as a right of way, and the like. This distinction is of importance, as will be seen by the following case. If a wharf with the appurtenances be demised, and the water adjoining the wharf were in tended to pass, yet no distress for rent on the demised premises could be made on a barge on the water, because it is not a place which could pass as a part of the thing demised. 6 Bing. 150.
3. Appendant differs from appurtenant in this, that the former always arises from prescription, whereas an appurtenance may be created at any time. 1 Tho. Co. Litt. 206; Wood's Inst. 121; Dane's Abr. h. t.; 2 Vin. Ab. 594; Bac. Ab. Common, A 1. And things appendant must have belonged by prescription to another principal substantial thing, which is considered in law as more worthy. The principal thing and the appendant must be appropriate to each other in nature and quality, or such as may be properly used together. 1 Chit. Pr. 154.
APPENDITIA. From appendo, to hang at or on; the appendages or pertinances of an estate the appurtenauces to a dwelling, &c.; thus pent-houses, are the appenditia domus, &c.
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APPOINTEE. A person who is appointed or selected for a particular purpose; as the appointee under a power, is the person who is to receive the benefit of the trust or power.
One authorized by the donor under the statute of uses, to execute a power. 2 Bouv. Ins. n. 1923.
One authorized by the donor under the statute of uses, to execute a power. 2 Bouv. Ins. n. 1923.
APPOINTMENT, chancery practice. The act of a person authorized by a will or other instrument to direct how trust property shall be disposed of, directing such disposition agreeably to the general directions of the trust.
2. The appointment must be made in such a manner as to come within the spirit of the power. And although at law the rule only requires that some allotment, however small, shall be given to each person, when the power is to appoint to and among several persons; the rule in equity differs, and requires a real and substantial portion to each, and a mere nominal allotment to one is deemed illusory and fraudulent. When the distribution is left to discretion, without any prescribed rule, Is to such of the children as the trustee shall think proper, he may appoint to one only; 5 Ves. 857; but if the words be, 'amongst' the children as he should think proper, each must have a share, and the doctrine of illusory appointment applies. 4 Ves. 771 Prec. Ch. 256; 2 Vern. 513. Vide, generally, 1 Supp. to Ves. Jr. 40, 95, 201, 235, 237; 2 Id. 1 27; 1 Vern.67, n.; 1 Ves. Jr. 31 0, n.; 4 Kent, Com. 337; Sugd. on Pow. Index, h. t.; 2 Hill. Ab. Index, h. t.; 2 Bouv. Inst. n. 1921, et seq.
APPOINTMENT, government, wills. The act by which a person is selected and invested with an office; as the appointment of a judge, of which the making out of his commission is conclusive evidence. 1 Cranch, 137, 155; 10 Pet. 343. The appointment of an executor, which is done by nominating him as such in a will or testament.
2. By appointment is also understood a public employment, nearly synonymous with office. The distinction is this, that the term appointment is of a more extensive signification than office; for example, the act of authorizing a man to print the laws of the United States by authority, and the right conveyed by such an act, is an appointment, but the right thus conveyed is not an office. 17 S. & R. 219, 233. See 3 S. & R. 157; Coop. Just. 599, 604.
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APPOSAL OF SHERIFFS, English law. The charging them with money received upon account of the Exchequer. 22 Car. II.
APPOSER, Eng. law. An officer of the Court of Exchequer, called the foreign apposer.
APPOSTILLE, French law. Postil. In general this means an addition or annotation made in the margin of an act, [contract in writing,] or of some writing. Mer. Rep.
APPRAISEMENT. A just valuation of property.
2. Appraisements are required to be made of the property of persons dying intestate, of insolvents and others; an inventory (q. v.) of the goods ought to be made, and a just valuation put upon them. When property real or personal is taken for public use, an appraisement of it is made, that the owner may be paid it's value.
APPRAISER, practice. A person appointed by competent authority to appraise or value goods; as in case of the death of a person, an appraisement and inventory must be made of the goods of which he died possessed, or was entitled to. Appraisers are sometimes appointed to assess the damage done to property, by some public work, or to estimate its value when taken for public use.
APPREHENSION, practice. The capture or arrest of a person. The term apprehension is applied to criminal cases, and arrest to civil cases; as, one having authority may arrest on civil process, and apprehend on a criminal warrant.
APPRENTICE, person, contracts. A person bound in due form of law to a master, to learn from him his art, trade or business, and to serve him during the time of his apprenticeship. (q. v.) 1 Bl. Com. 426; 2 Kent, Com. 211; 3 Rawle, Rep. 307; Chit. on Ap. 4 T. R. 735; Bouv. Inst. Index, h. t.
2. Formerly the name of apprentice en la ley was given indiscriminately to all students of law. In the reign of Edward IV. they were sometimes called apprentice ad barras. And in some of the ancient law writers, the term apprentice and barrister are synonymous. 2 Inst. 214; Eunom. Dial, 2, 53, p. 155.
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APPRIZING. A name for an action in the Scotch law, by which a creditor formerly carried off the estates of his debtor in payment of debts due to him in lieu of which, adjudications are now resorted to.
APPROBATE AND REPROBATE. In Scotland this term is used to signify to approve and reject. It is a maxim quod approbo non reprobo. For example, if a testator give his property to A, and give A's property to B, A shall not be at liberty to approve of the will so far as the legacy is given to him, and reject it as to the bequest of his property to B in other words, he cannot approve and reject the will. 1 Bligh. 21; 1 Bell's Com. 146.
TO APPROVE, approbare. To increase the profits upon a thing; as to approve land by increasing the rent. 2 Inst. 784.
APPROVEMENT, English crim. law. The act by which a person indicted of treason or felony, and arraigned for the same, confesses the same before any plea pleaded, and accuses others, his accomplices, of the same crime, in order to obtain his pardon. 2 This practice is disused. 4 Bl. Com. 330 1 Phil. Ev. 37. In modern practice, an accomplice is permitted to give evidence against his associates. 9 Cowen, R. 707; 2 Virg. Cas. 490; 4 Mass. R. 156; 12 Mass. R. 20; 4 Wash. C. C. R. 428; 1 Dev. R. 363; 1 City Hall Rec. 8. In Vermont, on a trial for adultery, it was held that a particeps criminis was not a competent witness, because no person can be allowed to testify his own guilt or turpitude to convict another. N. Chap. R. 9.
APPROVEMENT, English law. 1. The inclosing of common land within the lord's waste, so as to leave egress and regress to a tenant who is a commoner. 2. The augmentation of the profits of land. Stat. of Merton, 20 Hen. VIII.; F. N. B. 72 Crompt. Jus. 250; 1 Lilly's Reg. 110.
APPROVER, Bngl. crim. law. One confessing himself guilty of felony, and approving others of the same crime to save himself. Crompt. Inst. 250 3 Inst. 129.
APPURTENANCES. In common parlance and legal acceptation, is used to signify something belonging to another thing as principal, and which passes as incident to the principal thing. 10 Peters, R. 25; Angell, Wat. C. 43; 1 Serg. & Rawle, 169; 5 S. & R. 110; 5 S. & R. 107; Cro. Jac. 121 3 Saund. 401, n. 2; Wood's Inst. 121 Rawle, R. 342; 1 P. Wms. 603; Cro. Jac. 526; 2 Co. 32; Co. Litt. 5 b, 56 a, b; 1 Plowd. 171; 2 Saund. 401, n. 2; 1 Lev. 131; 1 Sid. 211; 1 Bos. & P. 371 1 Cr. & M. 439; 4 Ad., & Ell. 761; 2 Nev. & M. 517; 5 Toull. n. 531. 2. The word appurtenances, at least in a deed, will not pass any corporeal real property, but only incorporeal easements, or rights and privileges. Co. Lit. 121; 8 B. & C. 150; 6 Bing. 150; 1 Chit. Pr. 153, 4. Vide Appendant.
APPURTENANT. Belonging to; pertaining to of right.
AQUA. Water. This word is used in composition, as aquae ductus, &c. 2. It is a rule that water belongs to the land which it covers, when it is stationary: aqua cedit solo. But the owner of running water, or of a water course, cannot stop it the inferior inheritance having a right to the flow: aqua currit et debet currere, ut currere solebat.
AQUAE DUCTUS, civil law. The name of a servitude which consists in the right to carry water by means of pipes or conduits over or through the estate of another. Dig. 8, 3, 1; Inst. 2, 3; Lalaure, Des Serv. c. 5, p. 23.
AQUAE HAUSTUS, civil law. The name of a servitude which consists in the right to draw water from the fountain, pool, or spring of another. Inst. 2, 3, 2; Dig. 8, 3, 1, 1.
AQUAE IMMITTENDAE, Civil law. The name of a servitude, which frequently occurs among neighbors. It is the right which the owner of a house, built in such a manner as to be surrounded with other buildings, so that it has no outlet for its waters, has, to cast water out of his windows on his neighbor's roof court or soil. Lalaure, Des. Serv. 23.
AQUAGIUM, i. e. aquae agium. 1. A water course. 2. A toll for water.
AQUATIC RIGHTS. This is the name of those rights which individuals have in water, whether it be running, or otherwise.
ARBITER. One who, decides without any control. A judge with the most extensive arbitrary powers; an arbitrator.
ARBITRAMENT. A term nearly synonymous with arbitration. (q. v.)
ARBITRAMENT AND AWARD. The name of a plea to an action brought for the same cause which had been submitted to arbitration, and on which an award had been made. Wats. on Arb. 256.
ARBITRARY. What depends on the will of the judge, not regulated or established by law. Bacon (Aphor. 8) says, Optima lex quae minimum relinquit arbitrio judicis et (Aph. 46) optimus judex, qui mi nimum sibi
2. In all well adjusted systems of law every thing is regulated, and nothing arbitrary can be allowed; but there is a discretion which is sometimes allowed by law which leaves the judge free to act as he pleases to a certain extent. See Discretion
ARBITRARY PUNISHMENTS, practice. Those punishments which are left to the decision of the judge, in distinctiou from those which are defined by statute.
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ARBOR CONSANGUINITATIS. A table, formed in the shape of a tree, in order to show the genealogy of a family. The progenitor is placed beneath, as if for the root or stem the persons descended from him are represented by the branches, one for each descendant. For example : if it be desired to form the genealogical tree of Peter's family, Peter will be made the trunk of the tree; if he has two sons, John and James, their names will be written on the first two branches, which will themselves shoot as many twigs as John and James have children; these will produce others, till the whole family shall be represented on the tree.
ARCHAIONOMIA. The name of a collection of Saxon laws, published during the reign of the English Queen Elizabeth, in the Saxon language, with a Latin version, by Mr. Lambard. Dr. Wilkins enlarged this. collection in his work, entitled Leges Anglo Saxonicae, containing all the Saxon laws extant, together with those ascribed to Edward the Confessor, in Latin; those of William the Conqueror, in Norman and Latin; and of Henry I., Stephen, and Henry II., in Latin.
ARCHBISHOP, eccl. law. The chief of the clergy of a whole province. He has the, inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause. The archbishop has also his own diocese, in which he exercises, episcopal jurisdiction, as in his province he exercises archiepiscopal authority. 1 Bl. Com. 380; L. Raym. 541; Code, 1, 2.
ARCHES COURT. The name of one of the English ecclesiastical courts. Vide Court of Arches.
ARCHIVES. Ancient cbarters or titles, which concern a nation, state, or community, in their rights or privileges. The place where the archives are kept bears the same name. Jacob, L. D. h. t.; Merl. Rep. h. t.
ARCHIVIST. One to whose care the archives have been confided.
ARE. A French measure of surface. This is a square, the sides of which are of the length of ten metres. The are is equal to 1076.441 square feet. Vide Measure.
AREA. An enclosed yard or opening in a house; an open place adjoining to a house. 1 Chit. Pr. 176.
AREOPAGITE. A senator, or a judge of the Areopagus. Solon first established the Areopagites; although some say, they were established in the time of Cecrops, (Anno Mundi, 2553,) the year that Aaron, the brother of Moses, died; that Draco abolished the order, and Solon reestablished it. Demosthenes, in his harangue against Aristocrates, before the Areopagus, speaks of the founders of that tribunal as unknown. See Acts of the Apostles, xviii. 34.
AREOPAGUS. A tribunal established in ancient Athens, bore this name. It is variously represented; some considered as having been a model of justice and perfection, while others look upon it as an aristocratic court, which had a very extended jurisdiction over all crimes and offences, and which exercised an absolute power. See Acts 17, 19 and 22.
ARGENTUM ALBUM. White money; silver coin. See Alba Firma,
ARGUMENT, practice. Cicero defines it ii probable reason proposed in order to induce belief. Ratio probabilis et idonea ad faciendam fidem. The logicians define it more scientifically to be a means, which by its connexion between two extremes) establishes a relation between them. This subject belongs rather to rhetoric and logio than to law.
ARGUMENT LIST. A list of cases put down for the argument of some point of law.
ARGUMENTATIVENESS. What is used by way of reasoning in pleading is so called.
2. It is a rule that pleadings must not be argumentative. For example, when a defendant is sued for taking away the goods of the plaintiff, he must not plead that "the plaintiff never had any goods," because although this may be an infallible argument it is not a good plea. The plea should be not guilty. Com. Dig. Pleader R 3; Dougl. 60; Co. Litt. 126 a.
ARGUMENTUM AB INCONVENIENTI. An argument arising from the inconvenience which the construction of the law would create, is to have effect only in a case where the law is doubtful where the law is certain, such an argument is of no force. Bac. Ab. Baron and Feme, H.
ARISTOCRACY. That form of government in which the sovereign power is exercised by a small number of persons to the exclusion of the remainder of the people.
ARISTODEMOCRACY. A form of government where the power is divided between the great men of the nation and the people.
ARM OF THE SEA. Lord Coke defines an arm of the sea to be where the sea or tide flows or reflows. Constable's Case, 5 Co. 107. This term includes bays, roads, creeks, coves, ports, and rivers where the water flows and reflows, whether it be salt or fresh. Ang. Tide Wat. 61. Vide Creek; Haven; Navigable; Port; Reliction; River; Road.
ARMISTICE. A cessation of hostilities between belligerent nations for a considerable time. It is either partial and local, or general. It differs from a mere suspension of arms which takes place to enable the two armies to bury their dead, their chiefs to hold conferences or pourparlers, and the like. Vattel, Droit des Gens, liv. 3, c. 16, 233. The terms truce, (q. v.) and armistice, are sometimes used in the same sense. Vide Truce.
ARMS. Any thing that a man wears for his defence, or takes in his hands, or uses in his anger, to cast at, or strike at another. Co. Litt. 161 b, 162 a; Crompt. Just. P. 65; Cunn. Dict. h. t.
2. The Constitution of the United States, Amendm. art. 2, declares, "that a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." In Kentucky, a statute " to prevent persons from wearing concealed arms," has been declared to be unconstitutional; 2 Litt. R. 90; while in Indiana a similar statute has been holden valid and constitutional. 3 Blackf. R. 229. Vide Story, Const. – 1889, 1890 Amer. Citizen, 176; 1 Tuck. Black. App. 300 Rawle on Const. 125.
ARMS, heraldry. Signs of arms, or drawings painted on shields, banners, and the like. The arms of the United States are described in the Resolution of Congress, of June 20, 1782. Vide Seal of the United States.
ARPENT. A quantity of land containing a French acre. 4 Hall's Law Journal, 518.
ARPENTATOR, from arpent. A measurer or surveyor of land.
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ARRAMEUR, maritime law. The name of an ancient officer of a port, whose business was to load and unload vessels.
2. In the Laws of Oleron, art 11, (published in English in the App. to 1 Pet. Adm. R. xxv.) some account of arrameurs will be found in these words: " There were formerly, in several ports of Guyenne, certain officers called arrameurs, or stowers, who were master-carpenters by profession, and were paid by the merchants, who loaded the ship. Their business was to dispose right, ana Stow closely, all goods in casks, bales, boxes, bundles or otherwise to balance both sides, to fill up the vacant spaces, and manage every thing to the best advantage. It was riot but that the greatest part of the ship's crew understood this as well as these stowers but they would not meddle with it, nor undertake it, to avoid falling under the merchant's displeasure, or being accountable for any ill accident that might.happen by that means. There were also sacquiers, who were very ancient officers, as may be seen in the 14th book of the Theodosian code, Unica de Saccariis Portus Romae, lib. 14. Their business was to load and unload vessels loaded with salt, corn, or fish, to prevent the ship's crew defrauding the merchant by false tale, or cheating him of his merchandize otherwise." See Sacquier; Stevedore.
ARRAS, Span. law. The property contributed by the hushand, ad sustinenda onera matrimonii, is called arras. The hushand is under no obligation to give arras, but it is a donation purely voluntary. He is not permitted to give in arras more than a tenth of his property. The arras is the exclusive property of the wife, subject to the hushand's usufruct during his life. Burge on the Confl. of Laws, 417.
2. By arras is also understood the donation which the hushand makes to his wife, by reason or on account of marriage, and in consideration of the dote, or portion, which be receives from her. Aso & Man. Inst. h. t. 7, c. 3.
ARRAY, practice. The whole body of jurors summoned to attend a court, as they are arrayed or arranged on the panel. Vide Challenges, and Dane's Ab. Index, h. t.; 1 Chit. Cr. Law, 536; Com. Dig. Challenge, B.
ARREARAGE. Money remaining unpaid after it becomes due as rent unpaid interest remaining due Pow. Mortgages, Index, h. t.; a sum of money remaining in the hands of an accountant. Merl. Rep. h. t.; Dane's Ab. Index, h. t.
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ARRET, French law. An arret is a judgment, sentence, or decree of, a court of competent jurisdiction. Saisie-arret is an attachment of property in the hands of a third person. Code of Pract. of Lo. art. 209.
ARRETTED, arrectatus, i. e. ad rectum vocatus. Convened before a judge and charged with a crime. Ad rectum malefactorem, is, according to Bracton, to have a malefactor forthcoming to be put on his trial. Sometimes it is used for imputed or laid to his charge; as, no folly may be arretted to any one under age. Bract. 1. 3, tr. 2, c. 10; Cunn. Dict. h. t.
ARRHAE, contracts, in the civil law. Money or other valuable things given by the buyer to the seller, for the purpose of evidencing the contract earnest.
2. There are two kinds of arrhae; one kind given when a contract has only been proposed; the other when a sale has actually taken place. Those which are given when a bargain has been merely proposed, before it has been concluded, form the matter of the contract, by which he who gives the arrhae consents and agrees to lose them, and to transfer the title to them in the opposite party, in case he should refuse to complete the proposed bargain; and the receiver of arrhae is obliged on his part to return double the amount to the giver of them in case be should fail to complete his part of the contract. Poth. Contr. de Vente, n. 498. After the contract of sale has been completed, the purchaser usually gives arrbae as evidence that the contract has been perfected. Arrbae are therefore defined quod ante pretium datur, et fidem fecit contractus, facti totiusque pecuniae solvendae. Id. n. 506; Code, 4, 45, 2.
TO ARRIVE. To come to a particular place; to reach a particular or certain place as, the ship United States arrived in New York. See 1 Marsh. Dec. 411.
ARROGATION, civil law. Signifies nearly the same as adoption; the only difference between them is this, that adoption was of a person under full age but as arrogation required the person arrogated, sui juris, no one could be arrogated till he was of full age. Dig. 1, 7, 5; Inst. 1, 11, 3 1 Brown's Civ. Law, 119.
ARSER IN LE MAIN. Burning in the hand. This punishment was inflicted on those who received the benefit of clergy. Terms de la Ley.
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ARSURA. The trial of money by fire after it was coined. This word is obsolete.
ART. The power of doing. something not taught by nature or instinct. Johnson. Eunomus defines art to be a collection of certain rules for doing anything in a set form. Dial. 2, p. 74. The Dictionaire des Sciences Medicales, h. v., defines it in nearly the same terms.
2. The arts are divided into mechanical and liberal arts. The mechanical arts are those which require more bodily than mental labor; they are usually called trades, and those who pursue them are called artisans or mecbanics. The liberal are those which have for the sole or principal object, works of the mind, and those who are engaged in them are called artists. Pard. Dr. Com. n. 35.
3. The act of Congress of July 4, 1836, s. 6, in describing the subjects of patents, uses the term art. The sense of this word in its usual acceptation is perhaps too comprehensive. The thing to be patented is not a mere elementary, principle, or intellectual discovery, but a principle put in practice, and applied to some art, machine, manufacture, or composition of matter. 4 Mason, 1.
4. Copper-plate printing on the back of a bank note, is an art for which a patent may be granted. 4 Wash. C. C. R. 9.
ART AND PART, Scotch law. Where one is accessory to a crime committed by another; a person may be guilty, art and part, either by giving advice or counsel to commit the crime; or, 2, by giving warrant or mandate to commit it; or, 3, by actually assisting the criminal in the execution.
2. In the more atrocious crimes, it seems agreed, that the adviser is equally punishable with the criminal and that in the slighter offences, the circumstances arising from the adviser's lesser age, the jocular or careless manner of giving the advice, &c., may be received as pleas for softening the punishment.
3. One who gives a mandate to commit a crime, as he is the first spring of the action, seems more guilty than the person20employed as the instrument in executing it.
4. Assistance may be given to the committer of a crime, not only in the actual execution, but previous to it, by furnishing him, with a criminal intent, with poison, arms, or other means of perpetrating it. That sort of assistance which is not given till after the criminal act, and which is commonly called abetting, though it be itself criminal, does not infer art and part of the principal crime. Ersk. Pr. L; Scot. 4, 4, 4 ; Mack. Cr. Treat. tit. Art and Part.
ARTICULATE ADJUDICATION. A term used in Scotch, law in cases where there is more than the debt due to the adjudging creditor, when it is usual to accumulate each debt by itself, so that any error that may arise in ascertaining one of the debts need not reach to all the rest.
ARTIFICERS. Persons whose employment or business consists chiefly of bodily labor. Those who are masters of their arts. Cunn. Dict. h. t. Vide drt.
ARTIFICIAL. What is the result of, or relates to, the arts; opposed to natural; thus we say a corporation is an artificial person, in opposition to a natural person. Artificial accession is the uniting one property to another by art, opposed to a simple natural union. 1 Bouv. Inst. n. 503.
ARTIFICIAL PERSON. In a figurative sense, a body of men or company are sometimes called an artificial person, because the law associates them as one, and gives them various powers possessed by natural persons. Corporations are such artificial persons. 1 Bouv. Inst. n. 177.
AS. A word purely Latin. It has two significations. First, it signifies weight, and in this sense, the Roman as, is the same thing as the Roman pound, which was composed of twelve ounces. It was divided also into many other parts (as may be seen in the law, Servum de hoeredibus, Inst. Lib. xiii. Pandect,) viz. uncia, 1 ounce; sextans, 2 ounces; quodrans, 3 ounces; triens, 4 ounces quincunx, 5 ounces; semis, 6 ounces; septunx, 7 ounces; bes, 8 ounces, dodrans, 9 ounces; dextans, 10 ounces; deunx, 11 ounces.
2. From this primitive and proper sense of the word another was derived: that namely of the totality of a thing, Solidum quid. Thus as signified the whole of an inheritance, so that an heir ex asse, was an heir of the whole inheritance. An heir ex triente, ex semisse, ex besse, or ex deunce, was an heir of one-third, one-half, two-thirds, or eleven-twelfths.
ASCENDANTS. Those from whom a person is descended, or from whom he derives his birth, however remote they may be.
2. Every one has two ascendants at the first degree, his father and mother; four at the second degree, his paternal grandfather and grandmother, and his maternal grandfather and grandmother; eight at the third. Thus in going up we ascend by various lines which fork at every generation. By this progress sixteen ascendants are found at the fourth degree; thirty-two, at the fifth sixty-four, at the sixth; one hundred and twenty-eight at the seventh, and so on; by this progressive increase, a person has at the twenty-fifth generation, thirty-three millions five hundred and fifty-four thousand, four hundred and thirty-two ascendant's. But as many of the ascendants of a person have descended from the same ancestor, the lines which were forked, reunite to the first comnmon ancestor, from whom the other descends; and this multiplication thus frequently interrupted by the common ancestors, may be reduced to a few persons. Vide Line.
ASCRIPTITIUS, civil law. Among the Romans, ascriptitii were foreigners, who had been naturalized, and who had in general the same rights as natives. Nov. 22, ch. . 17 Code 11, 47.
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ASPORTATION. The act of carrying a thing away; the removing a thing from one place to another. Vide Carrying away; Taking.
ASSASSIN, crim, law. An assassin is one who attacks another either traitorously, or with the advantage of arms or place) or of a number of persons who support him, and kills his victim. This being done with malice, aforethought, is murder. The term assassin is but little used in the common law, it is borrowed from the civil law.
ASSASSINATION, crim. law. A murder committed by an assassin. By assassination is understood a murder committed for hire in money, without any provocation or cause of resentment given by the person against whom the crime is directed. Ersk. Inst. B. 4, t. 4, n. 45.
ASSAULT, crim. law. An assault is any unlawful attempt or offer with force or violence to do a corporal hurt to another, whether from malice or wantonness; for example, by striking at him or even holding up the fist at him in a threatening or insulting manner, or with other circumstances as denote at the time. an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it. 6 Rogers Rec: 9. When the injury is actually inflicted, it amounts to a battery. (q. v.)
2. Assaults are either simple or aggravated. 1. A simple assault is one Where there is no intention to do any other injury. This is punished at common law by fine and imprisonment. 2. An aggravated assault is one that has in addition to the bare intention to commit it, another object which is also criminal; for example, if a man should fire a pistol at another and miss him, the former would be guilty of an assault with intent to murder; so an assault with intent to rob a man, or with intent to spoil his clothes, and the like, are aggravated assaults, and they are more severely punished than simple assaults. General references, 1 East, P. C. 406; Bull. N. P. 15; Hawk. P. B. b. 1, c. 62, s. 12; 1 Russ. Cr. 604; 2 Camp. Rep. 650 1 Wheeler's Cr. C. 364; 6 Rogers' Rec. 9; 1 Serg. & Rawle, 347 Bac. Ab. h. t.; Roscoe. Cr. Ev. 210.
ASSAY. A chemical examination of metals, by which the quantity of valuable or precious metal contained in any mineral or metallic mixture is ascertained. 2. By the acts of Congress of March 3, 1823, 3 Story's L. U. S. 1924; of June 25, 1834, 4 Shars. cont. Story's L. U. S. 2373; and of June 28, 1834, Id. 2377, it is made the duty of the secretary of the treasury to cause assays to be made at the mint of the United States, of certain coins made current by the said acts, and to make report of the result thereof to congress.
ASSEMBLY. The union of a number of persons in the same place. There are several kinds of assemblies.
2. Political assemblies, or those authorized by the constitution and laws; for example, the general assembly, which includes the senate and house of representatives; the meeting of the electors of the president and vice-president of the United States, may also be called an assembly.
3. Popular assemblies are those where the people meet to deliberate upon their rights; these are guaranteed by the constitution. Const. U. S. Amend. art. 1 Const. of Penn. art. 9, s. 20.
4. Unlawful assemblies. An unlawful assembly is the meeting of three or more persons to do an unlawful act, although they may not carry their purpose into execution. It differs from a riot or rout, (q. v.) because in each of the latter-cases there is some act done besides the simple meeting.
ASSENT, contracts. An agreement to something that has been done before.
2. It is either express, where it is openly declared; or implied, where it is presumed by law. For instance, when a conveyance is made to a man, his assent to it is presumed, for the following reasons; cause there is a strong intendment of law, that it is for a person's benefit to take, and no man can be supposed to be unwilling to do that which is for his advantage. 2. Because it would seem incongruous and absurd, that when a conveyance is completely executed on the part of the grantor, the estate should continue in him. 3. Because it is contrary to the policy of law to permit the freehold to remain in suspense and uncertainty. 2 Ventr. 201; 3 Mod. 296A 3 Lev. 284; Show. P. C. 150; 3 Barn. & Alders. 31; 1 Binn. R. 502; 2 Hayw. 234; 12 Mass IR. 461 4 Day, 395; 5 S. & R. 523 20 John. R. 184; 14 S. & R. 296 15 Wend. R. 656; 4 Halst. R. 161; 6 Verm. R. 411.
3. When a devise draws after it no charge or risk of loss, and is, therefore, a mere bounty, the assent of the devisee to, take it will be presumed. 17 Mass. 73, 4. A dissent properly expressed would prevent the title from passing from the grantor unto the grantee. 1 2 Mass. R. 46 1. See 3 Munf. R. 345; 4 Munf. R. 332, pl. 9 5 Serg. & Rawle, 523; 8 Watts, R. 9, 11 20 Johns. R. 184. The rule requiring an express dissent, does not apply, however, when the grantee is bound to pay a consideration for the thing granted. 1 Wash. C. C. Rep. 70.
4. When an offer to do a thing has been made, it is not binding on the party making it, until the assent of the other paity has been given and such assent must be to the same subject-matter, in the same sense. 1 Summ. 218. When such assent is given, before the offer is withdrawn, the contract is complete. 6 Wend. 103. See 5 Wend. 523; 5 Greenl. R. 419; 3 Mass. 1; 8 S. R. 243; 12 John. 190; 19 John. 205; 4 Call, R. 379 1 Fairf. 185; and Offer.
5. In general, when an assignment is made to one for the benefit of creditors the assent of the assignees will be presumed. 1 Binn. 502, 518; 6 W. & S. 339; 8 Leigh, R. 272, 281. But see 24 Wend. 280.
ASSERTORY COVENANT. One by which the covenantor affirms that a certain fact is in a particular way, as that the grantor of land is lawfully seised; that it is clear of encumbrances, and the like. If the assertion is false, these covenants are broken the moment that the instrument is signed. See 11 S. & R. 109, 112.
TO ASSESS.
1. To rate or to fix the proportion which every person has to pay of any particular tax.
2. To assess damages is to ascertain what damages are due to the plaintiff; in actions founded on writings, in many cases after interlocutory judgment, the prothonotary is directed to assess the damages; in cases sounding in tort the damages are frequently assessed on a writ of inquiry by the sheriff and a jury.
2. In actions for damages, the jury are required to fix the amount or to assess the damages. In the exercise of this power or duty, the jury must be guided by sound discretion, and, when the circumstances will warrant it, may give high damages. Const. Rep. 500. The jury must, in the assessment of damages be guided by their own judgment, nd not by a blind chance. They cannot lawfully, therefore, in making up their verdict, each one put down a sum, add the sums together, divide the aggregate by the number of jurors, and adopt the quotient for their verdict. 1 Cowen, 238.
ASSESSMENT. The making out a list of property, and fixing its valuation or appraisement; it is also applied to making out a list of persons, and appraising their several occupations, chiefly with a view of taxing the said persons and their property.
ASSESSMENT OF DAMAGES. After an interlocutory judgment has been obtained, the damages must be, ascertained; the act of thus fixing the amount of damages is called the assessment of damages.
2. In cases sounding in damages, (q. v.) that is, when the object of the action is to recover damages only, and not brought for the specific recovery of lands, goods, or sums of money, the usual course is to issue a writ of inquiry, (q. v.) and, by virtue of such writ, the sheriff, aided by twelve lawful men, ascertains the amount of damages, and makes return to the court of the inquisition, which, unless set aside, fixes the damages, and a final judgment follows.
3. When, on the contrary, the action is founded on a promissory note, bond, or other contract in writing, by which the amount of money due may be easily computed, it is the practice, in some courts, to refer to the clerk or prothonotary the assessment of damages,. and in such case no writ of inquiry is issued. 3 Bouv. Inst. n. 8300.
ASSESSORS, civil law. So called from the word adsidere, which Signifies to be seated with the judge. They were lawyers who were appointed to assist, by their advice, the Roman magistrates, who were generally ignorant of law. being mere military men. Dig. lib. 1, t. 22; Code, lib. 1, t. 51.
2. In our law an assessor is one who has been legally appointed to value and appraise property, generally. with a view of laying a tax on it.
ASSEVERATION. The proof which a man gives of the truth of what be says, by appealing to his conscience as a witness. It differs from an oath in this, that by the latter he appeals to God as a witness of the truth of what he says, and invokes him as the avenger of falsehood and perfidy, to punish him if he speak not the truth. Vide Affirmation; Oath; and Merl. Quest. de Droit, mot Serment.
TO ASSIGN, contracts; practice. 1. To make a right over to another; as to assign an estate, an annuity, a bond, &c., over to another. 5 John. Rep: 391. 2. To appoint; as, to appoint a deputy,, &c. Justices are also said to be assigned to keep the peace. 3. To set forth or point out; as, to " assign errors," to show where the error is committed; or to assign false judgment, to show wherein it was unjust. F. N. B. 19.
ASSIGNATION, Scotch law. The ceding or yielding a thing to another of which intimation must be made. ASSIGNEE. One to whom an assignment has been made.
2. Assignees are either assignees in fact or assignees in law. An assignee in fact is one to whom an assignment has been made in fact by the party having the right. An assignee in law is one in whom the law vest's the right, as an executor or administrator. Co. Litt. 210 a, note 1; Hob. 9. Vide Assigns, and 1 Vern. 425; 1 Salk. 81 7 East, 337; Bac. Ab. Covenant, E; a Saund. 182, note 1; Arch. Civ. PI. 50, 58, 70 Supp, to Ves. Jr, 72 2 Phil. Ev. Index, h. t.
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ASSISES OF JERUSALEM. The name of a code of feudal law, made at a general assembly of lords, after the conquest of Jerusalem. It was compiled principally from the laws and customs of France. They were reduced to form about the year 1290, by Jean d'Iblin, comte de Japhe et d'Ascalon. Fournel (Hist. des Avocats, vol. i. p. 49,) calls them the most precious monument of our (French) ancient law. He defines the word assises to signify the assemblies of the great, men of the realm. See also, 2 Profession d'Avocat, par Dupin, 674 to 680; Steph. on Plead. App. p. xi.
ASSISORS, Scotch law. This term corresponds nearly to that of jurors.
ASSIZE, Eng. law. This was the name of an ancient court; it derived its name from assideo, to sit together. Litt. s. 234; Co. Litt. 153 b., 159 b. It was a kind of jury before which no evidence was adduced, their verdict being regarded as a statement of facts, which they knew of their own knowledge. Bract. iv. 1, 6.
2. The name of assize was also given to a remedy for the restitution of a freehold, of which the complainant had been disseised. Bac. Ab. h. t. Assizes were of four kinds: Mort d'ancestor Novel Disseisin Darrien Presentment; and Utrum. Neale's F. & F. 84. This reimedy has given way to others less perplexed and more expeditious. Bac. Ab. h. t.; Co. Litt. 153-155.
3. The final judgment for the plaintiff in an assize of Novel Disseisin, is, that he recover per visum recognitorum, and it is sufficiently certain. if the recognitors can put the demandant in possession. Dyer, 84 b; 10 Wentw. PI. 221, note. In this action, the plaintiff cannot be compelled to be nonsuited. Plowd. 11 b. See 17 Serg. & R. 187; 1 Rawle, Rep. 48, 9.
4. There is, however, in this class of actions, an interlocutory judgment, or award in the nature of a judgment, and which to divers intents and purposes, is a judgment; 11 Co. Rep. 40 b; like the judgment of quod computet, in account render; or quod partitio flat, in partition; quod mensuratio fiat; ouster of aid; award of a writ of inquiry, in waste.; of damages in trespass; upon these and the like judgments, a writ of error does not lie. 11 Co. Rep. 40 a; Metcalf's Case, 2 Inst. 344 a: 24 Ed. III, 29 B 19.
ASSIZE OF MORT D' ANCESTOR. The name, of an ancient writ, now obsolete. It might have been sued out by one whose father, mother, brother, &c., died seised of lands, and tonements, which they held in fee , and which, after their death, a stranger abated. Reg. Orig. 223. See Mort d' Ancestor.
ASSOCIATE. This term is applied to a judge who is not the president of a court; as associate judge.
ASSOCIATION. The act of a number of persons uniting together for some purpose; the persons so joined are also called an association. See Company.
ASSUMPSIT, contracts. An undertaking either express or implied, to perform a parol agreement. 1 Lilly's Reg. 132.
2. An express assumpsit is where one undertakes verbally or in writing, not under seal, or by matter of record, to perform an act, or to pay a sum of money to another.
3. An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent to what is useful to him. See Assent
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ASSURANCE, com. law. Insurance. (q. v.)
ASSURANCE, conveyancing. This is called a common assurance. But the term assurances includes, in an enlarged sense, all instruments which dispose of property, whether they be the grants of private persons, or not; such are fines and recoveries, and private acts of the legislature. Eunom. Dial. 2, s. 5.
ASSURED. A person who has been insured by some insurance company, or underwriter, against losses or perils mentioned in the policy of insurance. Vide Insured.
ASSURER. One who insures another against certain perils and dangers. The same as underwriter. (q. v.) Vide Insurer.
ASSYTHMENT, Scotch law. An indemnification which a criminal is bound to make to the party injured or his executors, though the crime itself should be extinguished by pardon. Ersk. Pr. L. Scot. 4, 3, 13.
ASYLUM. A place, of refuge where debtors and criminals fled for safety.
2. At one time, in Europe, churches and other consecrated places served as asylums, to the disgrace of the law. These never protected criminals in the United States. It may be questioned whether the house of an ambassador (q. v.) would not afford protection temporarily, to a person who should take refuge there.
AT LAW. This phrase is used to point out that a thing is to be done according to the course of the common law; it is distinguished from a proceeding in equity.
2. In many cases when there is no remedy at law, one will be afforded in equity. See 3 Bouv. Inst. n. 2411.
ATAVUS. The male ascendant in the fifth degree, was so called among the Romans, and in tables of genealogy the term is still employed.
ATHEIST. One who denies the existence of God.
2. As atheists have not any religion that can bind their consciences to speak the truth, they are excluded from being witnesses. Bull. N. P. 292; 1 Atk. 40; Gilb. Ev. 129; 1 Phil. Ev. 19. See also, Co. Litt. 6 b.; 2 Inst. 606; 3 Inst. 165; Willes, R. 451 Hawk. B. 2, c. 46, s. 148; 2 Hale's P. C. 279.
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ATTAINDER, English criminal law. Attinctura, the stain or corruption of blood which arises from being condemned for any crime.
2. Attainder by confession, is either by pleading guilty at the bar before the judges, and not putting one's self on one's trial by a jury; or before the coroner in sanctuary, when in ancient times, the offender was obliged to abjure the realm.
3. Attainder by verdict, is when the prisoner at the bar pleads not guilty to the indictment, and is pronounced guilty by the verdict of the jury.
4. Attainder by process or outlawry, is when the party flies, and is subsequently outlawed. Co. Lit. 391.
5. Bill of attainder, is a bill brought into parliament for attainting persons condemned for high treason. By the constitution of the United States, art. 1, sect. 9, 3, it is provided that no bill of attainder or ex post facto law shall be passed.
ATTAINT, English law. 1. Atinctus, attainted, stained, or blackened. 2. A writ which lies to inquire whether a jury of twelve men gave a false verdict. Bract. lib. 4, tr. 1, c. 134; Fleta, lib. 5, c. 22, 8.
2. It was a trial by jury of twenty-four men empanelled to try the goodness, of a former verdict. 3 Bl. Com. 351; 3 Gilb. Ev. by Lofft, 1146. See Assize.
ATTENDANT. One who owes a duty or service to another, or in some sort depends upon him. Termes de la Ley, h. t. As to attendant terms, see Powell on Morts. Index, tit. Attendant term; Park on Dower, c. 1 7.
ATTENTAT, In the language of the civil and canon laws, is anything whatsoever in the suit by the judge a quo, pending an appeal. 1 Addams, R. 22, n.; Ayl. Par. 100.
ATTERMINING. The granting a time or term for the payment of a debt. This word is not used. See Delay.
ATTESTING WITNESS. One who, upon being required by the parties to an instrument, signs his name to it to prove it, and for the purpose of identification.
2. The witness must be desired by the parties to attest it, for unless this be done, he will not be an attesting witness, although he may have seen the parties execute it. 3 Campb. 232. See Competent witness; Credible witness; Disinterested witness; Respectable witness; Subscribing witness; and Witness; Witness instrumentary; 5 Watts, 399; 3 Bin. 194.
ATTORNMENT, estates. Was the agreement of the tenant to the grant of the seignory, or of a rent, or the agreement of the donee in tail, or tenant for life, or years, to a grant of a reversion or of a remainder made to another. Co. Litt. 309; Touchs. 253. Attornments are rendered unnecessary, even in England, by virtue of sundry statutes, and they are abolished in the United States. 4 Kent, Com. 479; 1 Hill. Ab. 128, 9. Vide 3 Vin. Ab. 317; 1 Vern. 330, n.; Saund. 234, n. 4; Roll. Ab. h. t.; Nelson's Ab. h. t.; Com. Dig. h. t.
AU BESOIN. This is a French phrase, used in commercial law. When the drawer of a foreign bill of exchange wishes as a matter of precaution, and to-save expenses, he puts in the corner of the bill, " Au besoin chez Messieurs or, in other words, " In case of need, apply to Messrs. at __________ " ___________." 1 Bouv. Inst. n. 1133 Pardess Droit Com. 208.
AUBAINE, French law. When a foreigner died in France, the crown by virtue of a right called droit d'aubaine, formerly claimed all the personal property such foreigner had in France at the time of his death. This barbarous law was swept away by the French revolution of 1789. Vide Albinatus Jus. 1 Malleville's Analyse de la Discussion du Code Civil, pp. 26, 28 1 Toullier, 236, n. 265.
AUCTIONEER, contracts, commerce. A person authorized by law to sell the goods of others at public sale.
2. He is the agent of both parties, the seller and the buyer. 2 Taunt. 38, 209 4 Greenl. R. 1; Chit. Contr. 208.
3. His rights are, 1. to charge a commission for his services; 2. be has an interest in the goods sold coupled with the possession; 3. he has a lien for his commissions; 4. he may sue the buyer for the purchase-money.
4. He is liable, 1. to the owner for a faithful discharge of his duties in the sale, and if he gives credit without authority, for the value of the goods; 2. he is responsible for the duties due to the government; 3. he is answerable to the purchaser when he does not disclose the name of the principal; 4. be may be sued when he sells the goods of a third person, after notice not to sell them. Peake's Rep. 120; 2 Kent, Com. 423, 4; 4 John. Ch. R. 659; 3 Burr. R. 1921;.2 Taunt. R. 38; 1, Jac. & Walk. R. 350; 3 V. & B. 57; 13 Ves. R. 472; 1 Y. & J. R. 389; 5 Barn, & Ald. 333; 1 H. Bl. 81; 7 East, R. 558; 4 B. & Adolpb. R. 443; 7 Taunt. 209; 3 Chit. Com. L. 210; Story on Ag. 27 2 Liv. Ag. 335 Cowp. 395; 6 T. R. 642; 6 John. 194; Bouv. Inst. Index, h. t.
AUCTOR. Among the Romans the seller was called auctor; and public, sales were made by fixing a spear in the forum, and a person who acted as crier stood by the spear the catalogue of the goods to be sold was made in tables called auctionariae.
AUDIENCE. A hearing. It is usual for the executive of a country to whom a minister has been sent, to give such minister an audience. And after a minister has been recalled, au audience of leave usually takes place.
AUDIENCE COURT, Eng. eccl. law. A court belonging to the archbishop of Canterbury, having the same authority with the court of arches. 4 Inst. 337.
AUDIENDO ET TERMINANDO, oyer and terminer, English crim. law. A writ, or rather a commission, directed to certain persons for the trial and punishment of such persons as have been concerned in a riotous assembly, insurrection or other heinous misdemeanor.
AUDITA QUERELA. A writ applicable to the case of a defendant against whom a judgment has been recovered, (and who is therefore in danger of execution or perhaps actually in execution,) grounded on some matter of discharge which happened after the judgment, and not upon any matter which might have been pleaded as a defence to the action. 13 Mass. 453; 12 Mass. 270; 6 Verm. 243; Bac. Ab. h. t.; 2 Saund. 148, n. 1; 2 Sell. Pr. 252.
2. It is a remedial process, which bears solely on the wrongful acts of the opposite party, and not upon the erroneous judgments or acts of the court. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363. It will therefore, where the cause of complaint is a proper subject for a writ of error. 1 Verm. 433, 491; Brayt. 27.
3. An audita querela is in the nature of an equitable suit, in which the equitable rights of the parties will be considered. 10 Mass. 101; 14 Mass. 448 2 John. Cas. 227.
4. An audita querela is a regular suit, in which the parties may plead, take issue, &c. 17 John. 484. But the writ must be allowed in open court, and is not, of itself, a supersedeas, which may or may not be granted, in the discretion of the court, according to circumstances. 2 John. 227.
5. In modern practice, it is usual to grant the same relief, on motion, which might be obtained by audita querela: 4 John. 191 11 S. & R. 274 and in Virginia, 5 Rand. 639, and South Carolina, 2 Hill, 298; the summary remedy, by motion, has superseded this ancient remedy. In Pennsylvania this writ. It seems, may still be maintained, though relief is more generally obtained on motion. 11 S. & R. 274. Vide, generally, Pet. C. C. R. 269; Brayt. 2 or, 28; Walker, 66 1 Chipm. 387; 3 Conn. 260; 10 Pick. 439 1 Aik. 107; 1 Overt. 425 2 John. Cas. 227 1 Root; 151; 2 Root, 178; 9 John. 221 Bouv. Inst. Index, h. t.
AUDITOR. An officer whose duty is to examine the accounts of officers who have received and dishursed public moneys by lawful authority. See Acts of Congress, April 3, 1817; 3 Story's Laws U. S. 1630; and the Act of February 24, 1819, 3 Story's L. U. S. 1722.
AUDITORS, practice. Persons lawfully appointed to examine and digest accounts referred to them, take down the evidence in writing, which may be lawfully offered in relation to such accounts, and prepare materials on which a decree or judgment may be made; and to report the whole, together with their opinion, to the, court in which such accounts originated. 6 Cranch, 8; 1 Aik. 145; 12 Mass. 412.
2. Their report is not, per se, binding and conclusive, but will become so, unless excepted to. 5 Rawle, R. 323. It may be set aside, either with or without exceptions to it being filed. In the first case, when errors are apparent on its face, it may be set aside or corrected. 2 Cranch, 124; 5 Cranch, 313. In the second case, it may be set aside for any fraud, corruption, gross misconduct, or error. 6 Cranch, 8; 4 Cranch, 308; 1 Aik. 145. The auditors ought to be sworn, but this will be presumed. 8 Verm. 396.
3. Auditors are also persons appointed to examine the accounts subsisting between the parties in an action of account render, after a judgment quod computet. Bac. Ab. Accompt, F.
4. The auditors are required to state a special account, 4 Yeates, 514, and the whole is to be brought down to the time when they make an end of their account. 2 Burr. 1086. And auditors are to make proper charges and credits without regard to time, or the verdict. 2 S. & R. 317. When the facts or matters of law are disputed before them, they are to report them to the court, when the former will be decided by a jury, and the latter by the court, and the result sent to the auditors for their guidance. 5 Binn. 433.
AUGMENTATION, old English law. The name of a court erected by Henry VIII., which was invested with the power of determining suits and controversies relating to monasteries and abbey lands.
AULA REGIS. The name of an English court, so called because it was held in the great hall of the king's palace. Vide Curia Regis.
AUNT, domestic relations. The sister of one's father or mother; she is a relation in the third degree. Vide 2 Com. Dig. 474 Dane's Ab. c. 126, a. 3. 4.
AUTER. Another. This word is frequently used in composition, us auter droit, auter vie, auter action, &c. .
AUTER DROIT, or more properly, Autre Droit, another's right. A man may sue Or be sued in another's right; this is the case with executors and administrators.
AUTHENTIC. This term signifies an original of whichthere is no doubt.
AUTHENTIC ACT, civil law, contracts, evidence. The authentic act is that which has been executed before a notary or other public officer authorized to execute such functions, or which is testified by a public seal, or has been rendered public by the authority of a competent magistrate, or which is certified as being a copy of a public register. Nov. 73, c. 2; Code, 7, 52; 6; Id. 4, 21; Dig. 22, 4.
2. In Louisiana, the authentic act, as it relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, free, male, and aged at least fourteen years, or of three witnesses, if the party be blind. If the party does not know how to sign, the notary must cause him to affix his mark to the instrument. Civil Code of Lo., art. 2231.
3. The authentic act is full proof of the agreement contained in it, against the contracting parties and their. heirs or assigns, unless it be declared and proved to be a forgery. Id. art. 2233. Vide Merl. Rep. h. t.
AUTHENTICS, civ. law. This is the name given to a collection of the Novels of Justinian, made by an anonymous author. It is called authentic on account of its authority.
2. There is also another collection which bears the name of authentics. It is composed of extracts made from the Novels, by a lawyer named Irnier, and which he inserted in the code at such places as they refer; these extracts have the reputation of not being correct. Merlin, Repertoire, mot Authentique.
...AUTOCRACY. The name of a government where the monarch is unlimited by law. Such is the power of the emperor of Russia, who, following the example of his predecessors, calls himself the autocrat of all the Russias.
AUTRE VIE. Another's life. Vide, Pur autre vie.
AVAIL. Profits of land; hence tenant paravail is one in actual possession, who makes avail or profits of the land. Ham. N. P. 393.
AVALUM. By this word is understood the written engagement of a third person to guaranty and to become security that a bill of exchange shall be paid when due.
AVERIA. Cattle. This word, in its most enlarged signification is used to include horses of the plough, oxen and cattle. Cunn. Dict. h. t.
AVERIIS CAPTIS IN WlTHERNAM, Eng. law. The name of a writ which lies in favor of a man whose cattle have been unlawfully taken by another, and driven out of the county where they were taken, so that they cannot be replevied.
2. This writ issues against the wrong doer to take his cattle to the plaintiff's use. Reg. of Writs, 82.
AVOIDANCE, eccl. law. It is when a benefice becomes vacant for want of an incumbent; and, in this sense, it is opposed to plenarty. Avoidances are in fact, as by the death of the incumbent or in law.
AVOIDANCE, pleading. The introductiou of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions. Gould on PI. c. 1 24, 42.
AVOIR DU POIS, comm. law. The name of a peculiar weight. This kind of weight is so named in distinction from the Troy weight. One pound avoir du pois contains 7000 grains Troy; that is, fourteen ounces, eleven pennyweights and sixteen grains Troy a pound avoir du pois contains sixteen ounces; and an ounce sixteen drachms. Thirty-two cubic feet of pure spring-water, at the temperature of fifty-six degrees of Fahrenheit's thermometer, make a ton of 2000 pounds avoir du pois, or two thousand two hundred and forty pounds net weight. Dane's Abr. c. 211, art. 12, 6. The avoir du pois ounce is less than the Troy ounce in the proportion of 72 to 79; though the pound is, greater. Eneye. Amer. art. Avoir du pois., For the derivation of this phrase, see Barr. on the Stat. 206. See the Report of Secretary of State of the United States to the Senate, February 22d, 1821, pp. 44, 72, 76, 79, 81, 87, for a learned exposition of the whole subject.
AVOUCIIER. The call which the tenant makes on another who is bound to him by warranty to come into court, either to defend the right against the demandant, or to yield him other land in value. 2 Tho. Co. Lit. 304.
AVOW or ADVOW, practice. Signifies to justify or maintain an act formerly done. For example, when replevin is brought for a thing distrained, and the distrainer justifies the taking, he is said to avow. Termes de la Ley. This word also signifies to bring forth anything. Formerly when a stolen thing was found in the possession of any one" he was bound advocare, i. e. to produce the seller from whom he alleged he had bought it, to justify the sale, and so on till they found the thief. Afterwards the word was taken to mean anything which a man admitted to be his own or done by him, and in this sense it is mentioned in Fleta, lib. 1, c. 5, par 4. Cunn., Dict. h. t.
AVOWANT, practice, pleading. One who makes an avowry.
AVOWEE, eccl. law. An advocate of a church benefice.
AVOWRY, pleading. An avowry is where the defendant in an action of replevin, avows the taking of the distress in his own right, or in right of his wife, and sets forth the cause of it, as for arrears of rent, damage done, or the like. Lawes on PI. 35 Hamm. N. P. 464; 4 Bouv. Inst. n. 3571.
2. An avowry is sometimes said to be in the nature of an action or of. a declaration, and privity of estate is necessary. Co. Lit. 320 a; 1 Serg. & R. 170-1. There is no general issue upon an avowry and it cannot be traversed cumulatively. 5 Serg. & R. 377. Alienation cannot be replied to it without notice; for the tenure is deemed to exist for the purposes of an avowry till notice be given of the alienation. Ham. Parties, 131-2; Ham. N. P. 398, 426.
AVOWTERER, Eng. law. An adulterer with whom a married woman continues in adultery. T. L.
AVOWTRY, Eng. law. The crime of adultery.
AVULSION. Where, by the immediate and manifest power of a river or stream, the soil is taken suddenly from one man's estate and carried to another. In such case the property belongs to the first owner. An acquiescence on his part, however, will in time entitle the owner of the land to which it is attached to claim it as his own. Bract. 221; Harg. Tracts, De jure maris, &c. Toull. Dr. Civ. Fr. tom. 3, p. 106; 2. Bl. Com. 262; Schultes on Aq. Rights, 115 to 138. Avulsion differs from alluvion (q. v.) in this, that in the latter case the change of the soil is gradual and imperceptible.
AVUS. Grandfather. This term is used in making genealogical tables.
AWAIT, crim. law. Seems to signify what is now understood by lying in wait, or way-laying.
AWM, or AUME. An ancient measure, used in measuring Rhenish wines it contained forty gallons. AYANT CAUSE. French law. This term, which is used in Louisiana
AYUNTAMIENTO, Spanish law. A congress of persons the municipal council of a city or town. 1 White's Coll. 416; 12 Pet. 442, notes.
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