covered with wax, and each one inscribed on it the initial letter of his vote; A, when he voted to absolve the party on trial; C, when he was for condemnation; and N L, (non liquet) when the matter did not appear clearly, and be desired a new argument.
A MENSA ET THORO, from bed and board. A divorce a mensa et thoro, is rather a separation of the parties by act of law, than a dissolution of the marriage. It may be granted for the causes of extreme cruelty or desertion of the wife by the hushand. 2 Eccl. Rep. 208. This kind of divorce does not affect the legitimacy of children, nor authorize a second marriage. V. A vinculo matrimonii; Cruelty Divorce.
A PRENDRE, French, to take, to seize, in contracts, as profits a prendre. Ham. N. P. 184; or a right to take something out of the soil. 5 Ad. & Ell. 764; 1 N. & P. 172 it differs from a right of way, which is simply an easement or interest which confers no interest in the land. 5 B. & C. 221.
A QUO, A Latin phrases which signifies from which; example, in the computation of time, the day a quo is not to be counted, but the day ad quem is always included. 13 Toull. n. 52 ; 2 Duv. n. 22. A court a quo, the court from which an appeal has been taken; a judge a quo is a judge of a court below. 6 Mart. Lo. R. 520; 1 Har. Cond. L. R. 501. See Ad quem.
A RENDRE, French, to render, to yield, contracts. Profits a rendre; under this term are comprehended rents and services. Ham N. P. 192.
A VINCULO MATRIMONII, from the bond of marriage. A marriage may be dissolved a vinculo, in many states, as in Pennsylvania, on the ground of canonical disabilities before marriage, as that one of the parties was legally married to a person who was then living; impotence, (q. v.,) and the like adultery cruelty and malicious desertion for two years or more. In New York
AB INITIO, from the beginning.
2. When a man enters upon lands or into the house of another by authority of law, and afterwards abuses that authority, he becomes a trespasser ab initio. Bac. Ab. Trespass, B.; 8 Coke, 146 2 Bl. Rep. 1218 Clayt. 44. And if an officer neglect to remove goods attached within a reasonable time and continue in possession, his entry becomes a trespass ab initio. 2 Bl. Rep. 1218. See also as to other cases, 2 Stra. 717 1 H. Bl. 13 11 East, 395 2 Camp. 115 2 Johns. 191; 10 Johns. 253; ibid. 369.
3. But in case of an authority in fact, to enter, an abuse of such authority will not, in general, subject the party to an action of trespass, Lane, 90 ; Bae. Ab. Trespass, B ; 2 T. It. 166. See generally 1 Chit. PI. 146. 169. 180.
AB INTESTAT. An heir, ab intestat, is one on whom the law casts the inheritance or estate of a person who dies intestate.
AB IRATO, civil law. A Latin phrase, which signifies by a man in anger. It is applied to bequests or gifts, which a man makes adverse to the interest of his heir, in consequence of anger or hatred against him. Thus a devise made under these circumstances is called a testament ab irato. And the suit which the heirs institute to annul this will is called an action ab irato. Merlin, Repert. mots Ab irato.
ABATUDA, obsolete. Any thing diminished; as, moneta abatuda, which is money clipped or diminished in value. Cowell, h. t.
ABAVUS, civil law, is the great grandfather, or fourth male ascendant. Abavia, is the great grandmother, or fourth female ascendant.
ABBEY, abbatia, is a society of religious persons, having an abbot or abbess to preside over them. Formerly some of the most considerable abbots and priors in England St. John's of Jerusalem , was styied the first baron of England
ABBREVIATION, practice. – The omission of some words or letters in writing; as when fieri facias is written fi. fa.
2. In writing contracts it is the better practice to make no abbreviations; but in recognizances, and many other contracts, they are used; as John Doe tent to prosecute, &c. Richard Roe tent to appear, &c. when the recognizances are used, they are drawn out in extenso. See 4 Ca. & P. 61; S.C.19E.C.L.R.268; 9 Co.48.
ABBREVIATORS, eccl. law. Officers whose duty it is to assist in drawing up the Pope's briefs, and reducing petitions into proper form, to be converted into Papal Bulls. Vide Bulls.
ABBROCHMENT, obsolete. The forestalling of a market or fair.
ABDICATION, government. 1. A simple renunciation of an office, generally understood of a supreme office. James II. of England; Charles V. of Germany; and Christiana, Queen of Sweden, are said to have abdicated. When James III of England left the kingdom, the Commons voted that he had abdicated the government, and that thereby the throne had become vacant. The House of Lords preferred the word deserted, but the Commons thought it not comprehensive enough, for then, the king might have the liberty of returning. 2. When inferior magistrates decline or surrender their offices, they are said to make a resignation. (q.v.)
ABDUCTION, crim. law. The carrying away of any person by force or fraud. This is a misdemeanor punishable by indictment. 1 East, P.C. 458; 1 Russell, 569. The civil remedies are recaption, (q.v.) 3 Inst. 134; Hal. Anal. 46; 3 Bl. Com 4; by writ of habeas corpus; and an action of trespass, Fitz. N. B. 89; 3 Bl. Com 139, n. 27; Roscoe, Cr. Ev. 193.
ABEARANCE. Behaviour; as, a recognizance to be of good abearance, signifies to be of good behaviour. 4 Bl. Com.,251, 256.
ABEREMURDER, obsolete. An apparent, plain, or downright murder. It was used to distinguish a wilful murder, from a chance-medley, or manslaughter. Spelman; Cowell; Blount.
TO ABET, crim. law. To encourage or set another on to commit a crime. This word is always taken in a bad sense. To abet another to commit a murder, is to command, procure, or counsel him to commit it. Old Nat. Brev 21; Col Litt. 475.
ABETTOR, crim. law. One who encourages or incites, persuades or sets another on to commit a crime . Such a person is either a principal or, an accessory to the crime. When present, aiding, where a felony is committed, he is guilty as principal in the second degree ; when absent, "he is merelyan accessory. 1. Russell, 21; 1 Leach 66; Foster 428.
ABEYANCE, estates, from the French aboyer, which in figurative sense means to expect, to look for, to desire. When there is no person in esse in whom the freehold is vested, it is said to be in abeyance, that is, in expectation, remembrance and contemplation.
– 2. The law requires, however, that the freehold should never, if possible, be in abeyance. Where there is a tenant of the freehold, the remainder or reversion in fee may exist for a time without any particular owner, in which case it is said to be in abeyance. 9 Serg. & R.. 367; 8 Plowd. 29 a. b 35 a.
– 3. Thus, if sn estate be limited to A for life, remainder to the right heirs of B, the fee simple is in abeyance during the life of B, because it is a maxim of law, that nemo est hoeres viventis. 2 Bl. Com. 107; 1 Cruise, 67-70; 1 Inst. 842, Merlin, Repertoire, mot Abeyance; 1 Com. Dig. 176; 1 Vin. Abr. 101.
– 4. Another example may be given in the case of a corporation. When a charter is given, and the charter grants franchises or property to a corporation which is to be brought into existence by some future acts of the corporators, such franchises or property are in abeyance until such acts shall be done, and when the corporation is thereby brought into life, the franchises instantaneously attach. 4 Wheat. 691. See, generally, 2 Mass. 500; 7 Mass. 445; 10 Mass. 93; 15 Mass. 464; 9 Cranch, 47. 293; 5 Mass. 555.
ABIDING BY PLEA. English law. A defendant who pleads a frivolous plea, or a plea merely for the purpose of delaying the suit; or who for the same purpose, shall file a similar demurrer, may be compelled by rule in term time, or by a Judge's order in vacation, either to abide by that plea, or by that demurrer, or to plead peremptorily on the morrow; or if near the end of the term, and in order to afford time for notice of trial, the motion may be made in court for rule to abide or plead instanter; that is, within twenty-four hours after rule served, Imp. B.R. 340, provided that the regular time for pleading be expired. If the defendant when ruled, do not abide, he can only plead the general issue; 1 T.R. 693; but he may add notice of set-off. Ib. 694, n. See 1 Chit. Rep. 565, n.
ABIGEAT, civ. law, A particular kind of larceny, which is committed not by taking and carrying away the property from one place to another, but by driving a living thing away with an intention of feloniously appropriating the same. Vide Taking.
ABIGEI, civil law. Stealers of cattle, who were punished with more severity than other thieves. Dig. 47, 14; 4 Bl. Com. 239.
ABJURATION – A renunciation of allegiance to a country by oath.
2. – 1. The act of Congress of the 14th of April, 1802, 2 Story's Laws, U.S. 850, requires that when an alien shall apply to be admitted a citizen of the United States, he shall declare on oath or affirmation before the court where the application shall be made, inter alia, that he doth absolutely and entirely renounce and abjure all allegiance and fidelity which he owes to any foreign prince, &c., and particularly, by name, the prince, &c., whereof he was before a citizen or subject. Rawle on the Const. 98.
3. – 2. In England t he oath of abjuration is an oath by which an Englishman binds himself not to acknowledge any right in the Pretender to the throne of England.
4. – 3 it signifies also, according to 25 Car. H., an oath abjuring to certain doctrines of the church of Rome.
5. – 4. In the ancient English law it was a renunciation of one's country and taking an oath of perpetual banishment. A man who had committed a felony, and for safety flee to a sanctuary might within forty days' confess the fact, and take the oath of abjuration and perpetual banishment; he was then transported. This was abolished by Stat. 1 Jac. 1, c. 25. Ayl. Parerg. 14.
ABLEGATI, diplomacy. Papal ambassadors of the second rank, who are sent with a less extensive commission to a court where there are no nuncios. This title is equivalent to envoy (q. v.).
ABNEPOS, civil law. The grandson of a grandson or grand-daughter, or fourth descendant. Abneptis, is the grand-daughter of a grandson or grand-daughter. These terms are used in making genealogical tables.
ABOLITION. An act by which a thing is extinguished, abrogated or annihilated. Merl. Repert, h. t., as, the abolition of slavery is the destruction of slavery.
2 . In the civil and French law abolition is used nearly synonymously with pardon, remission, grace. Dig. 39, 4, 3, 3. There is, however, this difference; grace is the generic term; pardon, according to those laws, is the clemency which the prince extends to a man who has participated in a crime, without being a principal or accomplice; remission is made in cases of involuntary homicides, and self-defence. Abolition is different: it is used when the crime cannot be remitted. The prince then may by letters of abolition remit the punishment, but the infamy remains, unless letters of abolition have been obtained before sentence. Encycl. de d'Alembert, h. t.
3. The term abolition is used in the German law in the same sense as in the French law. Encycl. Amer. h. t. The term abolition is derived from the civil law, in which it is sometimes used synonymously with absolution. Dig. 39, 4, 3, 3.
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TO ABRIDGE, practice. To make shorter in words, so as to retain the sense or substance. In law it signifies particularly the making of a declaration or count shorter, by taking or severing away some of the substance from it. Brook, tit. Abridgment ment; Com. Dig. Abridgment; 1 Vin. Ab. 109.
2. Abridgment of the Plaint is allowed even after verdict and before judgment (Booth on R. A.) in an cases of real actions where the writ is de lib. ten. generally, as in assize, dower; &c.; because, after the abridgment the writ is still true, it being liberum tenementum still. But it is not allowed in a proecipe quod reddat, demanding a certain number of acres; for this would falsify the writ. See 2 Saund. 44, (n.) 4 ; Bro. Abr. Tit. Abr.; 12 Levin's Ent. 76; 2 Saund. 330; Gilb. C. P. 249-253; Thel. Dig. 76, c. 28, pl. 15, lib. 8.
AN ABRIDGMENT. An epitome or compendium of another and larger work, wherein the principal ideas of the larger work are summarily contained. When fairly made, it may justly be deemed, within the meaning of the law, a new work, the publication of which will not infringe the copyright of the work abridged. An injunction, however, will be granted against a mere colorable abridgment. 2 Atk. 143; 1 Bro. C. C. 451; 5 Ves. 709; Lofft's R. 775; Ambl. 403; 5 Ves. 709.; 1 Story, R. 11. See Quotation.
2. Abridgments of the Law or Digests of Adjudged Cases, serve the very useful purpose of an index to the cases abridged, 5 Co. Rep. 25. Lord Coke says they are most profitable to those who make them. Co. Lit. in preface to the table – at the end of the work. With few exceptions, they are not entitled to be considered authoritative. 2 Wils. R. 1, 2; 1 Burr. Rep. 364; 1 Bl. Rep. 101; 3 T. R. 64, 241. See North American Review, July, 1826, pp. 8, 13, for an account of the principal abridgments.
ABSCOND. To go in a clandestine manner out of the jurisdiction of the courts, or to lie concealed in order to avoid their process.
ABSENTEE. One who is away from his domicil, or usual place of residence.
2. After an absence of seven years without being heard from, the presumption of death arises. 2 Campb. R. 113; Hardin's R. 479; 18 Johns. R. 141 15 Mass. R. 805; Peake's Ev. c. 14, s. 1; 2 Stark. Ev. 457 8; 4 Barn. & A. 422; 1 Stark. C. 121 Park on Ins. 433; 1 Bl. R. 404; Burr v. Simm, 4 Wh. 150; Bradley v. Bradley, 4 Wh. 173.
3. In Louisiana, when a person possessed of either movable or immovable property within the state, leaves it, without having appointed somebody to take care of his estate; or when the person thus appointed dies, or is either unable or unwilling to continue to administer that estate, then and in that case, the judge of the place where the estate is situated, shall appoint a curator to administer the same. Civ. Code of Lo. art. 50.. In the appointment of this curator the judge shall prefer the wife of the absentee to his presumptive heirs, the presumptive heirs to other relations; the relations to strangers, and creditors to those who are not otherwise interested, provided, however, that such persons be possessed of the necessary qualifications. Ib. art. 51. For the French law on this subject, vide Biret, de l'Absende; Code Civil, liv. l tit.. 4. Fouss. lib. 13 tit. 4, n. 379-487; Merl. Rep. h. t.; and see also Ayl. Pand. 269; Dig. 50, 16, 198; Ib. 50, 16, 173; Ib. 3, 3,,6; Code, 7 32 12.
ABSOLUTE. Without any condition or encumbrance, as an "absolute bond," simplex obligatio, in distinction from a conditional bond; an absolute estate, one that is free from all manner of condition or incumbrance. A rule is said to be absolute, when, on the hearing, it is confirmed. As to the effect of an absolute conveyance, see 1 Pow. Mortg. 125; in relation to absolute rights, 1 Chitty, PI. 364; 1 Chitty, Pr. 32.
ABSOLUTION. A definite sentence whereby a man accused of any crime is acquitted.
ABSQUE HOC, pleading. When the pleadings were in Latin these words were employed in a traverse. Without this, that, (q. v.) are now used for the same purpose.
ABSQUE IMPETITIONE VASTI. Without impeachment of waste. (q. v.) Without any right to prevent waste.
ABSQUE TALI CAUSA. This phrase is used in a traverse de injuria, by which the plaintiff affirms that without the cause in his plea alleged he did commit the said trespasses, &c. Gould on PI. c. 7, part 2, 9.
ABSTENTION, French law. This is the tacit renunciation by an heir of a succession Merl. Rep. h.t.
ABSTRACT OF TITLE. A brief account of all the deeds upon which the title to an estate rests. See Brief of Title.
ABUSE. Every thing which is contrary to good order established by usage. Merl. Rep. h. t. Among the civilians, abuse has another signification; which is the destruction of the substance of a thing in using it. For example, the borrower of wine or grain, abuses the article lent by using it, because he cannot enjoy it without consuming it. Leg ; El. Dr. Rom. 414. 416.
ABUTTALS. The buttings and boundings of land, showing on what other lands, rivers, highways, or other places it does abut. More properly, it is said, the sides of land, are adjoining and the ends abutting to the thing contiguous. Vide Boundaries, and Cro. Jac. 184.
AC ETIAM, Eng. law. In order to give jurisdiction to a court, a cause of action over which the court has jurisdiction is alleged, and also,, (ac etiam) another cause of action over which, without being joined with the first, the court would have no jurisdiction; for example, to the usual complaint of breaking the plaintiff's close, over which the court has jurisdiction, a clause is added containing the real cause of action. This juridical contrivance grew out of the Statute 13 Charles H. Stat. 2, c. 2. The clause was added by Lord North, Ch. J. of the C. P. to the clausum fregit writs of that court upon which writs of capias might issue. He balanced awhile whether he should not use the words nec non instead of ac etiam. The matter is fully explained in Burgess on Insolvency, 149. 155. 156. 157.
ACCEDAS AD CURIAM, Eng. law. That you go to court. An original writ, issuing out of chancery, now of coarse, returnable in K. B. or C. P. for the removaI of a replevin sued by plaint in court of any lord, other than the county before the sheriff See F. N. B. 18; Dyer, 169.
ACCEDAS AD VICECOMITEM, Eng. law. The name of a writ directed to the coroner, commanding him to deliver a writ to the sheriff, who having a pone delivered to him, suppresses it.
ACCEPTILATION, contracts. In the civil law, is a release made by a creditor to his debtor of his debt, without receiving any consideration. Ayl. Pand. tit. 26, p. 570. It is a species of donation, but not subject to the forms of the latter, and is valid, unless in fraud of creditors. Merlin, Repert. de Jurisp. h. t. Acceptilation may be defined verborum conceptio qua creditor debitori, quod debet, acceptum fert; or, a certain arrangement of words by which on the question of the debtor, the creditor, wishing to dissolve the obligation, answers that he admits as received, what in fact, he has not received. The acceptilation is an imaginary payment. Dig. 46, 4, 1 and 19; Dig. 2, 14, 27, 9; Inst. 3, 30, 1.
ACCEPTOR, contracts. The person who agrees to pay a bill of exchange drawn upon him. There cannot be two separate acceptors of a bill of exchange, e. g. an acceptance by the drawee, and another for the honor of some party to the bill. Jackson v. Hudson, 2 Campb. N. P. C. 447.
2. The acceptor of a bill is the principal debtor, and the drawer the surety. He is bound, though he accepted without consideration, and for the sole accommodation of the drawer. By his acceptance he admits the drawer's handwriting, for, before acceptance it was incumbent upon him to inquire into the genuineness of the drawer's handwriting. 3 Burr. 1354; 1 Bla. Rep. 390, S. C.; 4 Dall. 234; 1 Binn. 27, S. C. When once made, the obligation of the acceptor is irrevocable. As to what amounts to an acceptance, see ante, Acceptance; Chitty on Bills, 242, et. seq.; 3 Kent, Com. 55, 6; Pothier, Traite du Contrat de Change, premiere part. n. 44.
3. The liability of the acceptor cannot in general be released or discharged, otherwise than by payment, or by express release or waiver, or by the act of limitations. Dougl. R. 247. What amounts to a waiver and discharge of the acceptor's liability, must depend on the circumstances of each particular case. Dougl. 236, 248; Bayl. on Bills, 90; Chitty on Bills, 249.
ACCEPTOR SUPRA PROTEST, in contracts, is a third person, who, after protest for non-acceptance by the drawee, accepts the bill for the honor of the drawer, or of the particular endorser.
2. By this acceptance he subjects himself to the same obligations as if the bill had been directed to him. An acceptor supra protest has his remedy against the person for whose honor he accepted, and against all persons who stand prior to that person. If he takes up the bill for the honor of the endorser, he stands in the light of an endorsee paying full value for the bill, and has the same remedies to which an endorsee would be entitled against all prior parties, and he can, of course, sue the drawer and endorser., 1 Ld. Raym. 574; 1 Esp. N. P. Rep. 112; Bayly on Bills, 209; 3 Kent. Com. 57; Chitty on Bills, 312. The acceptor supra protest is required to give thesame notice, in order to charge a party, which is necessary to be given by other holders. 8 Pick. 1. 79; 1 Pet. R. 262. Such acceptor is not liable, unless demand of payment is made on the drawee, and notice of his refusal given. 3 Wend. 491.
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ACCIDENT, practice. This term in chancery jurisprudence, signifies such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party. Francis' Max. M. 120, p. 87; 1 Story on Eq. 78. Jeremy defines it as used in courts of equity, to be " an occurrence in relation to a contract, which was not anticipated by the parties, when the same was entered into, and which gives an undue advantage to one of them over the other in a court of law." Jer. on Eq. 358. This definition is objected to, because as accident may arise in relation to other things besides contracts, it is inaccurate in confining accidents to contracts; besides, it does not exclude cases of unanticipated occurrences, resulting from the negligence or misconduct of the party seeking relief. 1 Story on Eq. 78, note 1.
2. In general, courts of equity will relieve a party who cannot obtain justice in consequence of an accident, which will justify the interposition of a court of equity. The jurisdiction being concurrent, will be maintained only, first, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious title to relief.
3. Many accidents are redressed in a court of law; as loss of deeds, mistakes in receipts and accounts, wrong payments, death, which makes it impossible to perform a condition literally, and a multitude of other contingencies; and many cannot be redressed even in a court of equity; is if by accident a recovery is ill suffered, a contingent remainder destroyed, or a power of leasing omitted in a family settlement. 3 Bl. Comm. 431. Vide, generally, Com. Dig. Chancery, 3 F 8; 1 Fonb. Eq. B. 1, c. 3, s. 7; Coop. Eq. PI. 129; 1 Chit. Pr. 408; Harr. Ch. Index, h. t.; Dane's Ab. h. t.; Wheat. Dig. 48; Mitf. Pl. Index, h. t.; 1 Madd. Ch. Pr. 23; 10 Mod. R. 1, 3; 3 Chit. Bl. Com. 426, n.
ACCOMENDA, mar. law. In Italy, is a contract which takes place when an individual entrusts personal property with the master of a vessel, to be sold for their joint account. In such case, two contracts take place; first, the contract called mandatum, by which the owner of the property gives the master power to dispose of it, and the contract of partnership, in virtue of which, the profits are to be divided between them. One party runs the risk of losing his capital, the other his labor. If the sale produces no more than first cost, the owner takes all the proceeds; it is only the profits which are to be divided. Emer. on Mar. Loans, B. 5.
ACCOMODATION, com. law. That which is done by one merchant or other person for the convenience of some other, by accepting or endorsing his paper, or by lending him his notes or bills.
2. In general the parties who have drawn, endorsed or accepted bills or other commercial paper for the accommodation, of others, are, while in the hands of a holder who received them before they became due, other than the person for whom the accomodation was given, responsible as if they had received full value. Chit. Bills, 90; 91. See 4 Cranch, 141; 1 Ham. 413; 7 John. 361; 15 John. 355, 17 John. 176; 9 Wend. 170; 2 Whart. 344; 5 Wend. 566; 8 Wend. 437; 2 Hill, S. C. 362; 10 Conn. 308; 6 Munfd. 381.
ACCOMMODATION, contracts. An amicable agreement or composition between two contending parties. It differs from accord and satisfaction, which may take place without any difference having existed between the parties.
ACCOMPLICE, crim. law. This term includes in its meaning, all persons who have been concerned in the commission of a crime, all particepes crimitis, whether they are considered in strict legal propriety, as principals iu the first or second degree, or merely as accessaries before or after the fact. Foster, 341; 1 Russell, 21; 4 Bl. Com. 331; 1 Phil. Ev. 28; Merlin, Repertoire, mot Complice. U. S. Dig. h. t.
2. But in another sense, by the word accomplice is meant, one who not being a principal, is yet in some way concerned in the commission of a crime. It has been questioned, whether one who was an accomplice to a suicide can be punishhed as such. A case occurred in Prussia where a soldier, at the request of his comrade, had cut the latter in pieces; for this he was tried capitally. In the year 1817, a young woman named Leruth received a recompense for aiding a man to kill himself. He put the point of a bistouri on his naked breast, and used the hand of the young woman to plunge it with greater force into his bosom; hearing some noise he ordered her away. The man receiving effectual aid was soon cured of the wound which had been inflicted; and she was tried and convicted of having inflicted the wound, and punished by ten years' imprisonment. Lepage, Science du Driot,c h. 2 art. 3, 5. The case of Saul, the king of Israel, and his armor bearer, (1 Sam. xxxi. 4,) and of David and the Amelekite, (2 Sam. i. 2-16,) will doubtless occur to the reader.
ACCORD, in contracts. A satisfaction agreed upon between the party injuring and the party injured, which when performed is a bar to all actions upon this account. 3 Bl. Com. 15; Bac. Abr, Accord.
2. In order to make a good accord it is essential: 1. That the accord be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault and imprisonment, is void. 5 East, 294. See 2 Wils. 341 Cro. Eliz. 541.
3. – 2. It must be advantageous to the contracting party; hence restoring to the plaintiff his chattels, or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for those injuries. Bac. Abr. Accord, &c. A; Perk. s. 749; Dyer, 75; 5 East, R. 230; 1 Str. R. 426; 2 T. R. 24; 11 East, R. 390; 3 Hawks, R. 580; 2 Litt. R. 49; 1 Stew. R. 476; 5 Day, R. 360; 1 Root, R. 426; 3 Wend. R. 66; 1 Wend, R. 164; 14 Wend. R. 116; 3 J. J. Marsh. R. 497.
4. – 3. It must be certain; hence an agreement that the defendant shall relinquish the possession of a house in satisfaction, &c., is not valid, unless it is also agreed at what time it shall be relinquished. Yelv. 125. See 4 Mod. 88; 2 Johns. 342; 3 Lev. 189.
5. – 4. The defendant must be privy to the contract. If therefore the consideration for the promise not to sue proceeds from another, the defendant is a stranger to the agreement, and the circumstance that the promise has been made to him will be of no avail. Str. 592; 6, John. R. 37; 3 Monr. R. 302 but in such case equity will grant relief by injunction. 3 Monr. R. 302; 5 East, R. 294; 1 Smith's R. 615; Cro. Eliz. 641; 9 Co. 79, b; 3 Taunt. R. 117; 5 Co. 117, b.
6. – 5. The accord must be executed. 5 Johns. R. 386; 3 Johns. Cas. 243; 16 Johns. R. 86; 2 Wash. C. C. R. 180; 6 Wend. R. 390; 5 N. H. Rep. 136; Com. Dig. Accord, B 4.
7. Accord with satisfaction when completed has two effects; it is a payment of the debt; and it is a species of sale of the thing given by the debtor to the creditor, in satisfaction; but it differs from it in this, that it is not valid until the delivery of the article, and there is no warranty of the thing thus sold, except perhaps the title; for in regard to this, it cannot be doubted, that if the debtor gave on an accord and satisfaction the goods of another, there would be no satisfaction. See Dation, en paiement.
See in general Com. Dig. h. t.; Bac. Ab. h. t.; Com. Dig. Pleader, 2 V 8; 5 East, R. 230; 4 Mod. 88 ; 1 Taunt. R. 428; 7 East, R. 150; 1 J. B. Moore, 358, 460; 2 Wils. R. 86; 6 Co. 43, b; 3 Chit. Com. Law, 687 to 698; Harr. Dig. h. t.; 1 W. Bl. 388; 2 T. R. 24; 2 Taunt. 141; 3 Taunt. 117; 5 B.& A. 886; 2 Chit. R. 303 324; 11 East, 890; 7 Price, 604; 2 Greenl. Ev. 28; 1 Bouv. Inst. n. 805; 3 Bouv. Inst. n. 2478-79-80-81. Vide Discharge of Obligations.
ACCOUCHEMENT. The act of giving birth to a child. It is frequently important to prove the filiation of an individual; this may be done in several ways. The fact of the accouchement may be proved by the direct testimony of one who was present, as a physician, a midwife, or other person. 1 Bouv. Inst. u. 314.
ACCOUPLE. To accouple is to marry. See Ne unquas accouple.
TO ACCREDIT, international law. The act by which a diplomatic agent is acknowledged by the government near which he is sent. This at once makes his public character known, and becomes his protection.
ACCRETION. The increase of land by the washing of the seas or rivers. Hale, De Jure Maris, 14. Vide Alluvion; Avulsion.
TO ACCRUE. Literally to grow to; as the interest accrues on the principal. Accruing costs are those which become due and are created after judgment of an execution.
2. – To accrue means also to arise, to happen, to come to pass; as the statute of limitations does not commence running until the cause of action has accrued. 1 Bouv. Inst. n. 861; 2 Rawle, 277; 10 Watts, 363; Bac. Abr. Limitation of Actions, D 3.
ACCUMULATIVE JUDGMENT. A second or additional judgment given against one, who has been convicted, the execution or effect of which is to commence after the first has expired; as, where a man is sentenced to an imprisonment for six months on conviction of larceny, and, afterwards he is convicted of burglary, he may be sentenced to undergo an imprisonment for the latter crime, to commence after the expiration of the first imprisonment; this is called an accumulative jufgment.
ACCUSED. One who is charged with a crime or misdemeanor.
ACCUSATION, crim. law. A charge made to a competent officer against one who has committed a crime or misdemeanor, so that he may be brought to justice and punishment.
2. A neglect to accuse may in some cases be consicleied a misdemeanor, or misprision. (q. v.) 1 Bro. Civ. Law, 247; 2 Id. 389; Inst. lib. 4, tit. 18.
3. It is a rule that no man is bound to accuse himself, or to testify against himself in a criminal case. Accusare nemo se debet nisi coram Deo. Vide Evidence; Interest; Witness.
ACCUSER. One who makes an accusation.
ACHAT. This French word signifies a purchase. It is used in some of our law books, as well as achetor, a purchaser, which in some ancient statutes means purveyor. Stat. 36 Edw. III.
ACHERSET, obsolete. An ancient English measure of grain, supposed to be the same with their quarter or eight bushels.
ACQUETS, estates in the civil law. Property which has been acquired by purchase, gift or otherwise than by succession. Merlin Rep. h. t., confines acquets to immovable property.
2. In Louisiana they embrace the profits of all the effects, of which the hushand has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both hushand and wife, and of the estates which they may acquire during the marriage, either by donations, made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two, and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. Civ. Code, art. 2371.
3. This applies to all marriages contracted in that state, or out of it, when the parties afterward go there to live, as to acquets afterward made there.Ib. art. 2370.
4. The acquets are divided into two equal portions between the hushand and wife, or between their heirs at the dissolution of their marriage. Ib. art. 2375.
5. "The Parties may, however, lawfully stipulate there shall be no community of profits or gains. Ib. art. 2369.
6. But the parties have no right to agree that they shall be governed by the laws of another country.' 3 Martin's Rep. 581. Vide 17 Martin's Rep. 571 2 Kent's Com. 153, note.
ACQUIESCENCE, contracts. The consent which is impliedly given by one or both parties, to a proposition, a clause, a condition, a judgment, or to any act whatever.
2. When a party is bound to elect between a paramount right and a testamentary disposition, his acquiescence in a state of things which indicates an election, when he was aware of his rights will be prima facie evidence of such election. Vide 2 Ves. Jr. 371; 12 Ves. 136 1 Ves. Jr. 335; 3 P. Wms. 315. 2 Rop. Leg. 439.
3. The acts of acquiescence which constitute an implied election, must be decided rather by the circumstances of each case than by any general principle. 1 Swanst. R. 382, note, and the numerous cases there cited.
4. Acquiescence in the acts of an agent, or one who has assumed that character, will, be equivalent to an express authority. 2 Bouv. Inst. n. 1309; Kent, Com. 478; Story on Eq. 255; 4 W. C. C. R. 559; 6 Miss. R. 193; 1 John. Cas. 110; 2 John. Cas. 424 Liv. on Ag. 45; Paley on, Ag. by Lloyd, 41 Pet. R. 69, 81; 12 John. R. 300; 3 Cowen's R. 281; 3 Pick. R. 495, 505; 4 Mason's R. 296. Acquiescence differs from assent. (q. v.)
ACQUIETANDIS PLEGIIS, obsolete. A writ of justices, lying, for the surety against a creditor, who refuses to acquit him after the debt has been satisfied. Reg. of Writs, 158; Cowell; Blount.
TO ACQUIRE, descents, contracts. To make property one's own.
2. Title to property is acquired in two ways, by descent, (q. v.) and by purchase, (q. v.) Acquisition by purchase, is either by, 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation, which is either by deed or by matter of record. Things which cannot be sold, cannot be acquired.
ACQUISITION, property, contracts, descent. The act by which the person procures the property of a thing.
2. An acquisition, may be temporary or Perpetual, and be procured either for a valuable consideration, for example, by buying the same; or without consideration, as by gift or descent.
3. Acquisition may be divided into original and derivative. Original acquisition is procured by occupancy, 1 Bouv. Inst. n. 490; 2 Kent. Com. 289; Menstr. Leg. du Dr. Civ. Rom. 344 ; by accession, 1 Bouv. Inst. n. 499; 2 Kent., Com. 293; by intellectual labor, namely, for inventions, which are secured by patent rights and for the authorship of books, maps, and charts, which is protected by copyrights. 1. Bouv. Inst. n. 508.
4. Derivative acquisitions are those which are procured. from others, either by act of law, or by act of the parties. Goods and chattels may change owners by act of law in the cases of forfeiture, succession, marriage, judgment, insolvency, and intestacy. And by act of the parties, by gift or sale. Property may be acquired by a man himself, or by those who are in his power, for him; as by his children while minors; 1 N. Hamps. R. 28; 1 United States Law Journ. 513 ; by his apprentices or his slaves. Vide Ruth. Inst. ch. 6 & 7; Dig. 41, 1, 53; Inst. 2,9; Ib. 2,9,3.
ACQUITTAL, contracts. A release or discharge from an obligation or eng agement. According to Lord Coke there are three kinds of acquittal, namely; 1, By deed, when the party releases the obligation; 2, By prescription; 3, By tenure.Co. Lit. 100, a.
ACQUITTAL, crim. law practice. The absolution of a party charged with a crime or misdemeanor.
2. Technically speaking, acquittal is – the absolution of a party accused on a trial before a traverse jury. 1 N. & M. 36; 3 M'Cord, 461.
3. Acquittals are of two kinds, in fact and in law. The former takes place when the jury upon trial finds a verdict of not guilty; the latter when a man is charged merely as an accessary, and the principal has been acquitted. 2 Inst. 384. An acquittal is a bar to any future prosecution for the offence alleged in the first indictment.
ACQUITTANCE, contracts. An agreement in writing to discharge a party from an engagement to pay a sum of money. it is evidence of payment. It differs from a release in this, that the latter must be under seal, while an acquittance need not be under seal. Poth. Oblig. n. 781. In Pennsylvania, a receipt, (q. v.) though not under seal, has nearly the same effect as a release. 1 Rawle, R. 391. Vide 3 Salk. 298, pl. 2; Off. of Ex. 217 ; Co. Litt. 212 a, 273 a.
ACRE, measures. A quantity of land containing in length forty perches, and four in breadth, or one hundred and sixty square perches, of whatever shape may be the land. Serg. Land Laws of Penn., 185. See Cro. Eliz. 476, 665; 6 Co. 67; Poph. 55; Co. Litt. 5, b, and note 22.
ACREDULITARE, obsolete. To purge one's self of an offence by oath. It frequently happens that when a person has been arrested for a contempt, he comes into court and purges himself, on oath, of having intended any contempt. Blount, Leges. Inac. c. 36.
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ACTUAL. Real; actual.
2. Actual notice. One which has been expressly given by which knowledge of a fact hos been brought home to a party directly ; it is opposed to constructive notice.
3. Actual admissions. Those which are expressly made; they are plenary or partial. 4 Bouv. Inst. n. 4405.
4. An actual escape takes place when a prisoner in fact gets out of prison, and unlawfull regains his liberty. Vide Escape.
ACTUARIUS. An ancient name or appellation of a notary.
ACTUARY. A clerk in some corporations vested with various powers. In the ecclesiastical law he is a clerk who registers the acts and constitutions of the convocation.
ACTUS. A foot way and horse way. Vide Way.
AD DAMNUM, pleading. To the damage. In all personal and mixed actions, with the exception of actions of debt qui tam, where the plaintiff has sustained no damages, the declaration concludes ad damnum. Archb. Civ. Pl. 169.
AD DIEM. At the day, as a plea of payment ad diem, on the day when the money became due. See Solvit ad diem, and Com. Dig. Pleader, 2 W. 29.
AD INQUIRENDUM, practice. A judicial writ, commanding inquiry to be made of any thing relating to a cause depending in court.
AD INTERIM. In the mean time. An officer is sometimes appointed ad interim, when the principal officer is absent, or for some cause incapable of acting for the time. AD LARGUM. At large; as, title at large, assize at large. See Dane's Abr. ch. 144,
AD QUEM. A Latin expression which signifies to which, in the computation of time or distance, as the day ad quem. The last day of the term, is always computed. See A quo.
QUOD DAMNUM, Eng. law. The name of a writ issuing out of and returnable into chancery, directed to the sheriff, commanding him to inquire by a jury 'What damage it will be to the king, or any other, to grant a liberty, fair, market, highway, or the like.
AD SECTAM. At the suit of, commonly abbreviated ads. It isusual in filing pleas, and other papers, for a defendant, instead of putting the name of the plaintiff first, as Peter v. Paul to put his own first, and instead of v. to put ads., as Paul ads. Peter.
AD TERMINUM QUI PRETERIIT. The name of a writof entry which lay for the lessor or his heirs, when a lease had been made of lands or tenements, for term of life or years, and, after the term had expired, the lands were withheld from the lessor by the tenant, or other person possessing the same. F. N. B. 201. The remedy now applied for holdiug over (q, v.) is by ejectment, or under local regulations, by summary prooceedings.
AD TUNC ET IBIDEM. That part of an indictment, where it is stated that the object-matter of the crime or offence " then and there being found," is technically so called. N. C. Term R. 93; Bac. Ab. Indictment, G 4.
AD VITAM AUT CULPAM. An office to be so held as to determine only by the death or delinquency of the possessor; in other words it is held quam diu se benegesserit.
AD VALOREM. According to the value. This Latin term is used in commerce in reference to certain duties, called ad valorem duties, which are levied on commodities at certain rates per centum on their value. See Duties; Imposts; Act of Cong. of March 2, 1799, s. 61 of March 1, 1823 s. 5.
ADDITION. Whatever is added to a man's name by way of title, as additions of estate, mystery, or place. 10 Went. Plead. 871; Salk. 6; 2 Lord Ray. 988; :1 WUS. 244, 5.
2. Additions of an estate or quality are esquire, gentleman, and the like; these titles can however be claimed by none, and may be assumed by any one. In Nash v. Battershy (2 Lord Ray. 986 6 Mod. 80,) the plaintiff declared with the addition of gentleman. The defendant pleaded in abatement that the plaintiff was no gentleman. The plaintiff demurred, and it was held ill; for, said the court, it amounts to a confession that the plaintiff is no gentleman, and then not the person named in the count. He should have replied that he is a gentleman.
3. Additions of mystery are such as scrivener, painter, printer, manufacturer, &c.
4. Additions of places are descriptions by the place of residence, as A. B. of Philadelpliia and thelike. See Bac. Ab. b. t.; Doct. PI. 71; 2 Vin. Abr. 77; 1 Lilly's Reg. 39; 1 Metc. R. 151.
5. At common law there was no need of addition in any case, 2 Lord Ray. 988; it was, required only by Stat. 1 H. 5. c. 5, in cases where process of outlawry lies. In all other cases it is only a description of the person, and common reputation is sufficient. 2 Lord Ray. 849. No addition is necessary in a Homine Replegiando. 2 Lord Ray. 987; Salk. 5; 1 Wils. 244, 6; 6 Rep. 67.
ADDITIONALES, in contracts. Additional terms or propositions to be added to a former agreement.
ADDRESS, chan. plead. That part of a bill which contains the appropriate and technical description of the court where the plaintiff seeks his remedy. Coop. Eq. PI. 8; Bart. Suit in Eq. 20Story, Eq. PI. 26 Van Hey. Eq. Draft. 2.
ADDRESS, legislation. In Pennsylvania it is a resolution of both, branches of the legislature, two-thirds of each house concurring, requesting the governor to remove a judge from office. The constitution of that state, art. 5, s. 2, directs that " for any reasonable cause, which shall not be, ground for impeachment, the governor may remove any of them [the judges], on the address of two-third's of each branch of the legislature." The mode of removal by address is unknown to the constitution of the, United States, but it is recognized in several of the states. In some of the state constitutions the language is imperative; the governor when thus addressed shall remove; in others it is left to his discretion, he may remove. The relative proportion of each house that must join in the address, varies also in different states. In some a bare majority is sufficient; in others, two-thirds are requisite; and in others three-fourths. 1 Journ. of Law, 154.
ADEMPTION, wills. A taking away or revocation of a legacy, by the testator.
2. It is either express or implied. It is the former when revoked in express terms by a codicil or later will; it is implied when by the acts of the testator it is manifestly his intention to revoke it; for example, when a specific legacy of, a chattel is made, and afterwards the testator sells it; or if a father makes provision for a child by his will and afterwards gives to such child, if a daughter, a portion in marriage; or, if a son, a sum of money to establish him in life, provided such portion or sum of money be equal to or greater than the legacy. 2 Fonbl. 368 et, seq. Toll. Ex. 320; 1 Vern. R. by Raithby, 85 n. and the cases there cited. 1 Roper, Leg. 237, 256, for, the distinction between specific and general legacies.
ADHERING. Cleaving to, or joining; as, adhering to the enemies of the United States.
2. The constitution of the United States, art. 3, s 3, defines treason against the United States, to consist only in levying war against them or in adhering to their enemies, giving them aid and comfort.
3. The fact that a citizen is cruising in an enemy's ship, with a design to capture or destroy American ships, would be an adhering to the enemies of the United States. 4 State Tr. 328 ; Salk. 634; 2 Gilb. Ev. by Lofft, 798.
4. If war be actually levied, that is, a body of men be actually assembled for the purpose of effecting by force a treasonable enterprise, all those who perform any part, however minute, or however remote from the scene of action, and who are leagued in the general conspiracy are to be considered as traitors. 4 Cranch. 126.
ADJOURNMENT. The dismissal by some court, legislative assembly, or properly authorized officer, of the business before them, either finally, which is called an adjournment sine die, without day; or, to meet again at another time appointed, which is called a temporary adjournment. 2. The constitution of the United States, art. 1, s. 5, 4, directs that "neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place, that that in which the two houses shall be sitting,." Vide Com. Dig. h. t.; Vin. Ab. h. t.; Dict. de Jur. h. t.
ADJOURNMENT-DAY. In English practice, is a day so called from its being a further day appointed by the judges at the regular sittings, to try causes at nisi prius.
ADJOURNMENT-DAY IN ERROR. In the English courts, is a day appointed some days before the end of the term, at which matters left undone on the affirmance day are finished. 2 Tidd, 1224.
ADJUDICATION, in practice. The giving or pronouncing a judgment in a cause; a judgment.
ADJUDICATIONS, Scotch law. Certain proceedings against debtors, by way of actions, before the court of sessions and are of two kinds, special and general.
2. – 1. By statute 1672, c. 19, such part only of the debtor's lands is to be adjudged to the principal sum and interest of the debt, with the compositions due to the superior, and the expenses of infeoffment, and a fifth part more, in respect the creditor is obliged to take landsfor his money but without penalties or sheriff fees. The debtor must deliver to the creditor a valid right to the lands to be adjudged, or transumpts thereof, renounce the possession in his favor, and ratify the decree of adjudication: and the law considers the rent of the lands as precisely commensurate to the interest of the debt. In this, which is called a special adjudication, the time allowed the debtor to redeem the lands adjudged, (called the legal reversion or the legal,) is declared to be five years.
3. – 2. Where the debtor does not produce a sufficient right to the lands, or is not willing to renounce the possession and ratify the decree, the statute makes it lawful for the creditor to adjudge all right belonging to the debtor, in the same manner, and under the same reversion of ten years. In this kind, which is called a general adjudication, the creditor must limit his claim to the principal sum, interest and penalty, without demanding a fifth part more. See Act 1 Feb. 1684; Ersk. Pr. L. Scot,. (????) s. 15, 16. See Diligences.
ADJUNCTION. in civil law. Takes place when the thing belonging to one person is attached or united to that which belongs to another, whether this unionis caused by inclusion, as if one man's diamond be encased in another's ring; by soldering, as if one's guard be soldered on another's sword; by sewing, as by employing the silk of one to make the coat of another; by construction; as by building on another's land; by writing, as when one writes on another's parchment; or by painting, when one paints a picture on another's canvas.
2. In these cases, as a general rule, the accessory follows the principal; hence these things which are attached to the things of another become the property of the latter. The only exception which the civilians made was in the case of a picture, which although an accession, drew to itself the canvas, on account of the importance which was attached to it. Inst. lib. 2, t. 1, 34; Dig. lib. 41, t. 1, 1. 9, 2. See Accession, and 2 Bl. Comm. 404; Bro. Ab. Propertie; Com. Dig. Pleader, M. 28; Bac. Abr. Trespass, E 2. 1 Bouv. Inst. n. 499.
ADJUNCTS, English law. Additional judges appointed to determine causes in the High Court of Delegates, when the former judges cannot decide in consequence of disagreement, or because one of the law judges of the court was not one of the majority. Shelf. on Lun. 310.
ADJURATION. The act by which one person solemnly charges another to tell or swear to the truth. Wolff. Inst. 374.
ADJUSTMENT, maritime law. The adjustment of a loss is the settlling and ascertaining the amount of the indemnity which the insured after all proper allowances and deductions have been made, is entitled to receive, and the proportion of this, which each underwriter is liable to pay, under the policy Marsh. Ins. B. 1, c. 14, p. 617 or it is a written admission of the amounts of the loss as settled between the parties to a policy of insurance. 3 Stark. Ev. 1167, 8.
2. In adjusting a loss, the first thing to be considered is, how the quantity of damages for which the underwriters are liable, shall be ascertained. When a loss is a total loss, and the iusured decides to abandon, he must give notice of this to the underwriters iii a reasonable time, otherwise he will waive his right to abandon, and must be content to claim only for a partial loss. Marsh. Ins. B. 1, .c. 3, s. 2; 15 East, 559; 1 T. R. 608; 9 East, 283; 13 East 304; 6 Taunt. 383. When the loss is admitted to be total, and the policy is a valued one, the insured is entitled to receive the whole sum insured, subject to such deductions as may have been agreed by the policy to be made in case of loss.
3. The quantity of damages being known, the next point to be settled, is, by what rule this shall be estimated. The price of a thing does not afford a just criterion to ascertain its true value. It may have been bought very dear or very cheap. The circumstances of time and place cause a continual variation in the price of things. For this reason, in cases of general average, the things saved contribute not according to prune cost, but according to the price for which they may be sold at the time of settling the average. Marsh. Ins. B. 1, c. 14, s. 2, p. 621; Laws of Wishuy, art. 20 Laws of Oleron, art. 8 this Dict. tit. Price. And see 4 Dall. 430; 1 Caines' R. 80; 2 S. & R. 229 2 S.& R. 257, 258.
4. An adjustment being endorsed on the policy, and signed by the underwriters, with the promise to pay in a given time, is prima facie evidence against them, and amouuts to an admission of all the facts necessary to be proved by the insured to entitle him to recover in an action on the policy. It is like a note of hand, and being proved, the insured has no occasion to go into proof of any other circumstances. Marsh. Ins. B. 1, c. 14, s. 3, p. 632; 3 Stark. Ev. 1167, 8 Park. ch. 4; Wesk. Ins, 8; Beaw. Lex. Mer. 310; Com. Dig. Merchant, E 9; Abbott on Shipp. 346 to 348. See Damages.
ADJUTANT. A military officer, attached to every battalion of a regiment. It is his duty to superintend, under his superiors, all matters relating to the ordinary routine of discipline in the regiment.
ADJUTANT-GENERAL. A staff officer; one of those next in rank to the Commander-in-chief.
ADJUNCTUM ACCESSORIUM, civil law. Something which is an accessory and appurtenant to another thing. 1 Chit. Pr. 154.
ADMEASUREMENT OF DOWER, remedies. This remedy is now nearly obsolete, even in England; the following account of it is given by Chief Baron Gilbert. "The writ of admeasurement of dower lieth where the heir when he is within age, and endoweth the wife of more than she ought to have dower of; or if the guardian in chivalry, [for the guardian in socage cannot assign dower,] endoweth the wife of more than one-third part of the land of which she ought to have dower, then the heir, at full age, may sue out this writ against the wife, and thereby shall be admeasured, and the surplusage she hath in dower shall be restored to the heir; but in such case there shall not be assigned anew any lands to hold to dower, but to take from her so much of the lands as surpasseth the third part whereof she ought to be endowed; and he need not set forth of whose assignments she holds." Gilb. on Uses, 379; and see F. N. B. 148; Bac. Ab. Dower, K; F. N. B. 148; Co. Litt. 39 a; 2 Inst. 367 Dower; Estate in Dower.
ADMEASUREMENT OF PASTURE, Eng. law. The name of a writ which lies where any tenants have common appendant in another ground and one overcharges the common with beasts. The other commoners, to obtain their just rights, may sue out this writ against him.
ADMINICLE1. A term, in the Scotch and French law, for any writing or deed referred to by a party, in an action at law, for proving his allegations.
2. An ancient term for aid or support.
3. A term in the civil, law for imperfect proof. Tech. Dict. h. t.; Merl. Repert. mot Adminicule.
ADMINICULAR EVIDENCE, eccl. law. This term is used in the eclesiastical law to signify evidence, which is brought to explain or complete other evidence. 2 Lee, Ecel.R. 595.
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ADMIRAL, officer. In some countries is the commander in chief of the naval forces. This office does not exist in the United States.
ADMIRALTY. The name of a jurisdiction which takes cognizance of suits or actions which arise in consequence of acts done upon or relating to the sea; or, in other words, of all transactions and proceedings relative to commerce and navigation, and to damages or injuries upon the sea. 2 Gall. R. 468. In the great maritime nations of Europe, the term " admiralty jurisdiction," is, uniformly applied to courts exercising jurisdiction over maritime contracts and concerns. It is as familiarly known among the jurists of Scotland, France, Holland and Spain, as of England, and applied to their own courts, possessing substantially the same jurisdiction as the English Admiralty had in the reign of Edward III. Ibid., and the authorities there cited; and see, also, Bac. Ab. Court of Admiralty; Merl. Repert. h. t. Encyclopedie, h. t.; 1 Dall. 323.
2. The Constitution of the United States has delegated to the courts of the national government cognizance "of all cases of admiralty and maritime jurisdiction;" and the act of September 24, 1789, ch. 20 s. 9, has given the district court " cognizance of all civil causes of admiralty and maritime jurisdiction," including all seizures under laws of imposts, navigation or trade of the United States, where the seizures are made on waters navigable from the sea, by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas.
3. It is not within the plan of this work to enlarge upon this subject. The reader is referred to the article Courts of the United States, where he will find all which has been thought necessary to say upon it as been the subject. Vide, generally, Dunlap's Adm. Practice; Bett's Adm. Practice; 1 Kent's Com. 353 to 380; Serg. Const. Law, Index, h. t.; 2 Gall. R. 398. to 476; 2 Chit. P. 508; Bac. Ab. Courts of Admiralty; 6 Vin. Ab. 505; Dane's Ab. Index b. t; 12 Bro. Civ. and Adm. Law; Wheat. Dig. 1; 1 Story L. U. S. 56, 60; 2 Id. 905, 3 Id. 1564, 1696; 4 Sharsw. cont. of Story's L. U. S. 2262; Clerke's Praxis; Collectanea Maritima; 1 U. S. Dig. tit. Admiralty Courts, XIII.
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ADMITTANCE, Eng. law. The act of giving possession of a copyhold estate, as livery of seisin is of a freehold; it is of three kinds, namely uponavoluntary grant by the lord) upon a surrender by the former tenant and upon descent.
ADMIITENDO IN SOCIUM. Eng. law. A writ associating certain persons to justices of assize.
ADMONITION. A reprimamd from a judge to a person accused, on being discharged, warning him of the consequences of his conduct, and intimating to him, that should he be guilty of the same fault for which he has been admonished, he will be punished with greater severity. Merlin, Repert. h. t.
2. The admonition was authorized by the civil law, as a species of punishment for slight misdemeanors. Vide Reprimand
ADNEPOS. A term employed by the Romans to designate male descendants in the fifth degree, in a direct line. This term is used in making genealogical tables.
ADOLESCENCE, persons. That age which follows puberty and precedes the age of majority; it commences for males at fourteen, and for females at twelve years completed, and continues till twenty-one years complete.
ADOPTION, civil law. The act by which a person chooses another from a strange family, to have all the rights of his own child. Merl. Repert. h. t.; Dig. 1, 7, 15, 1; and see Arrogation. By art. 232, of the civil code of Louisiana, it is abolished in that state. It never was in use in any other of the United States.
ADROGATION, civil law. The adoption of one who was impubes, that is, if a male, under fourteen years of age; if a female, under twelve. Dig. 1, 7, 17, 1.
ADULT, in the civil law. An infant who, if a boy, has attained his full age of fourteen years, and if a girl, her full age of twelve. Domat, Liv. Prel. t. 2, s. 2, n. 8. In the common law an adult is considered one of full age. 1 Swanst. R. 553.
ADULTERATION. This term denotes the act of mixing something impure with something pure, as, to mix an inferior liquor with wino; au inferior article with coffee, tea,.and the like.
ADULTERINE. A term used in the civil law to denote the issue of an adulterous intercourse. See Nicholas on Adulterine Bastardy.
ADULTERIUM. In the old records this word does not signify the offence of adultery, but the fine imposed for its commission. Barr. on the Stat. 62, note.
ADULTERY, criminal law. From ad and alter, another person; a criminal conversation, between a man married to another woman, and a woman married to another man, or a married and unmarriod person. The married person is guilty of adultery, the unmarried of fornicatiou. (q. v.) 1 Yeates, 6; 2 Dall. 124; but see 2 Blackf. 318.
2. The elements of this crime are, 1st, that there shall be an unlawful carnal connexion; 2dly, that the guilty party shall at the time be married; 3dly, that he or she shall willingly commit the offence; for a woman who has been ravished against her will is not guilty of adultery. Domat, Supp. du Droit Public, liv. 3, t. 10, n. 13.
3. The punishment of adultery, in the United States, generally, is fine and imprisonment.
4. In England it is left to the feeble hands of the ecclesiastical courts to punish this offence.
5. Adultery in one of the married persons is good cause for obtaining a divorce by the innocent partner. See 1 Pick. 136; 8 Pick. 433; 9 Mass. 492: 14 Pick. 518; 7 Greenl. 57; 8 Greenl. 75; 7 Conn. 267 10 Conn. 372; 6 Verm. 311; 2 Fairf. 391 4 S. & R. 449; 5 Rand. 634; 6 Rand. 627; 8 S. & R. 159; 2 Yeates, 278, 466; 4 N. H. Rep. 501; 5 Day, 149; 2 N. & M. 167.
6. As to proof of adultery, see 2 Greenl. 40, Marriage.
ADVANCEMENT. That which is given by a father to his child or presumptive heir, by anticipation of whathe might inherit. 6 Watts, R. 87; 17 Mass. R. 358; 16 Mass. R. 200; 4 S. & R. 333; 11 John. R. 91; Wright, R. 339. See also Coop Just. 515, 575; 1 Tho. Co. Lit. 835, 6; 3 Do. 345, 348; Toll. 301; 5 Vez. 721; 2 Rob. on Wills, 128; Wash. C. C. Rep. 225; 4 S. & R. 333; 1 S. & R. 312; 3 Conn. Rep. 31; and post Collatio bonorum.
2. To constitute an advancement by the law of England, the gift must be made by the father and not by another, not even by the mother. 2 P. Wms. 856. In Pennsylvania a gift of real or personal estate by the father or mother may be an advancement. 1 S. & R. 427; Act 19 April 1794, 9; Act 8 April, 1833, 16. There are in the statute laws of the several states provisions relative to real and personal estates, similar in most respects to those which exist in the English statute of distribution, concerning an advancement to a child. If any child of the intestate has been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of such child which would be due from the real and personal estate, if no such advancementhad been made, then such child and his descendants, are excluded from any share in the real or personal estate of the intestate.
3. But if the advancement be not equal, then such child, and in case of his death, his descendants, are entitled to receive, from the real and personal estate, sufficient to make up the deficiency, and no more.
4. The advancement, is either express or implied. As to what is an implied advancement, see 2 Fonb. Eq. 121; 1 Supp. to Ves. Jr. 84; 2 lb. 57; 1 Vern. by Raithby, 88, 108, 216; 5 Ves. 421; Bac. Ab. h. t.; 4 Kent, Com. 173.
5. A debt due by a child to his father differs from an advancement. In case of a debt, the money due may be recovered by action for the use of the estate, whether any other property be left by the deceased or not; whereas, an advancement merely bars the child's right to receive any part of his father's estate, unless he brings into hotch pot the property advanced. 17 Mass. R. 93, 359. See, generally, 17 Mass. R. 81, 356; 4 Pick. R. 21; 4 Mass. R. 680; 8 Mass. R. 143; 10. Mass. R. 437; 5 Pick. R. 527; 7 Conn. R. 1; 6 Conn. R. 355; 5 Paige's R. 318; 6 Watts' R. 86, 254, 309; 2 Yerg. R. 135; 3 Yerg. R. 95; Bac. Ab. Trusts, D; Math. on Pres. 59; 5 Hayw. 137; 11 John. 91; l Swanst. 13; 1 Ch. Cas. 58; 3 Conn. 31; 15 Ves. 43, 50; U. S. Dig. h. t.; 6 Whart. 370; 4 S. & R. 333; 4 Whart. 130, 540; 5 Watts, 9; 1 Watts & Serg. 390; 10 Watts, R. 158; 5 Rawle, 213; 5 Watts, 9, 80; 6 Watts & Serg. 203. The law of France in respect to advancements is stated at length in Morl. Rep. de Jurisp. Rapport a succession.
ADVANCES, contracts. Said to take place when, a factor or agent pays to his principal , a sum of, money on the credit of goods belonging to the principal, which are placed, or are to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale. In such case the factor or agent has a lien to the amount of his claim. Cowp. R. 251; 2 Burr. R. 931; Liverm. on Ag. 38; Journ. of Law, 146.
2. The agent or factor has a right not only to advances made to the owner of goods, but also for expenses and dishursements made in the course of his agency, out of his own moneys, on account of, or for the benefit of his principal; such as incidental charges forwarehouse-room, duties, freight, general average, salvage, repairs, journeys, and all other acts done to preserve the property of the principal, and to enable the agent to accomplish the objects of the principal, are to be paid fully by the latter. Story on Bailm. 197; Story on Ag. 335.
3. The advances, expenses and dishursements of the agent must, however, have been made in good faith, without any default on his part Liv. on Ag. 14-16; Smith on Merc. 56 Paley on Ag. by Lloyd, 109; 6 East, R. 392; 2 Bouv. list. n. 1340.
4. When the advances and dishursements have been properly made, the agent is entitled not only to the return of the money so advanced, but to interest upon such advances and dishursements, whenever from the nature of the business, or the usage of trade, or the particular agreement of the parties, it may be fairly presumed to be stipulated for, or due to the agent. 7 Wend. R. 315; 3 Binn. R. 295; 3 Caines' R. 226; 1 H. Bl. 303; 3 Camp. R. 467 15 East, R. 223; 2 Bouv. Inst. n. 1341. This just rule coincides with the civil law on this subject. Dig. 17, 1, 12, 9; Poth. Pand. lib. 17, t. 1, n. 74.
ADVENTITIOUS, adventitius. From advenio; what comes incidentally; us adventitia bona, goods that, fall to a man otherwise than by inheritance; or adventitia dos, a dowry or portion given by some other friend beside the parent.
ADVENTURE, bill of. A writing signed by a merchant, to testify that the goods shipped on board a certain vessel are at the venture of another person, he himself being answerable only for the produce. Techn. Dict.
ADVENTURE, crim. law. See Misadventure.
ADVENTURE, mer. law. Goods sent abroad under the care of a supercargo, to be disposed of to the best advantage for the benefit of his employers, is called an adventure.
ADVERSARY. One who is a party in a writ or action opposed to the other party.
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ADVERTISEMENT. A 'notice' published either in handbills or in a newspaper.
2. The law in many instances requires parties to advertise in order to give notice of acts which are to be done; in these cases, the advertisement is in general equivalent to notice.
3. When an advertisement contains the terms of sale, or description of the property to be sold, it will bind the seller; and if there be a material misrepresentation, it may avoid the contract, or at least entitle the purchaser to a compensation and reduction from the agreed, price. Kapp's R. 344; 1 Chit. Pr. 295.
ADVICE, com. law. A letter containing information of any circumstances unknown to the person to whom it is written; when goods are forwarded by sea or land, the letter transmited to inform the consignee of the fact, is termed advice of goods, or letter of advice. When one merchant draws upon another, he generally advises him of the fact. These letters are intended to give notice of the facts they contain.
ADVICE, practice. The opinion given by counsel to their clients; this should never be done but upon mature deliberation to the best of the counsel's ability; and without regard to the consideration whether it will affect the client favorably or unfavorably.
ADVISEMENT. Consideration, deliberation, consultation; as the court holds the case under advisement.
ADVOCATE, civil and ecclesiastical law. 1. An officer who maintains or de fends the rights of his client in the same manner as the counsellor does in the common law.
2. Lord Advocate. An, officer of state in Scotland, appointed by the king, to advise about the making and executing the law, to prosecute capital crimes, &c.
3. College or faculty of advocates. A college consisting of 180 persons, appointed to plead in. all actions before the lords of sessions.
4. Church or ecclesiastical advocates. Pleaders appointed by the church to maintain its rights.
5. – 2. A patron who has the advowson or presentation to a church. Tech. Dict.; Ayl. Per. 53; Dane Ab. c.,31, 20. See Counsellor at law; Honorarium.
ADVOCATIA, civil law. This sometimes signifies the quality, or functions, and at other times the privilege, or the territorial jurisdiction of an advocate, See Du Cange, voce Advocatia, Advocatio.
ADVOCATION, Scotch law. A writing drawn up in the form of a petition, called a bill of advocation, by which a party in an action applies to the supreme court to advocate its cause, and to call the action out of an inferior court to itself. Letters of advocation, are the decree or warrant of the supreme court or court of sessions, discharging the inferior tribunal from all further proceedings in the matter, and advocating the action to itself. This proceeding is similar to a certiorari (q. v.) issuing out of a superior court for the removal of a cause from an inferior.
ADVOCATUS. A pleader, a narrator. Bract. 412 a, 372 b.
ADVOWSON, ecclesiastical law. From advow or advocare, a right of presentation to a church or benefice. He who possesses this right is called the patron or advocate, (q. v.) when there is no patron, or he neglects to exercise his right within six months, it is called a lapse, i. e. a title is given to the ordinary to collate to a church; when a presentation is made by one who has no right it is called a usurpation.
2. Advowsons are of different kinds, as Advowson appendant, when it depends upon a manor, &c. – Advowson in gross, when it belongs to a person and not to a manor. – Advowson presentative, where the patron presents to the bishop. – Advowson donative, where the king or patron puts the clerk into possession without presentation. – Advowson of the moiety of the church, where there are two several patrons and two incumbents in the same churcb. – A moiety of advowson, where two must join the presentation, of one incumbent. – Advowson of religious houses, that whicb is vested in the person who founded such a house. Techn. Dict.; 2 Bl. Com. 21; Mirehouse on Advowsons; Com. Dig. Advowson, Quare Impedit; Bac. Ab. Simony; Burn's Eccl. Law, h. t.; Cruise's Dig. Index, h. t.
AFFECTION, contracts. The making over, pawning, or mortgaging a thing to assurp the payment of a sum of money, or the discharge of some other duty or service. Techn. Diet.
AFFEERERS, English law. Those who upon oath settle and moderate fines in courts leet. Hawk. 1. 2, c. 112.
TO AFFERE, English law. Signifies either "to affere an amercement," i. e. to mitigate the rigor of a fine; or "to affere an account," that is, to confirm it on oath in the exchequer.
AFFIANCE, contracts. From affidare or dare fidem, to give a pledge. A plighting of troth between a man and woman. Litt. s. 39. Pothier, Traite du Mariage, n. 24, defines it to be a an agreement by which a man and a woman promise each other that they will marry together. This word is used by some authors as synonymous with marriage. Co. Litt. 34, a, note 2. See Dig. 23, 1 Code 5, 1, 4; Extrav. 4, 1.
AFFIDARE. To plight one's faith, or give fealty, i. e. fidelity by making oath, &c. Cunn. Dict. h. t.
AFFIDATIO DOMINORUM, Eng. law. An oath taken by a lord in parliament.
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AFFINITAS AFFINITATIS. That connexion between two persons which has neither consanguinity nor affinity; as, the connexion between the hushand's brother and the wife's sister. This connexion is formed not between the parties themselves, nor between one of spouses and the kinsmen of the other, but between the kinsmen of both. Ersk. Inst. B, 1, tit. 6, s. 8.
AFFINITY. A connexion formed by marriage, which places the hushand in the same degree of nominal propinquity to the relations of the wife, as that in which she herself stands towards them, and gives to the wife the same reciprocal connexion with the relations of the hushand. It is used in contradistinction to consanguinity. (q. v.) It is no real kindred.
2. Affinity or alliance is very different from kindred. Kindred are relations. by blood; affinity is the tie which exists between one of the spouses with the kindred of the other; thus, the relations, of my wife, her brothers, her sisters, her uncles, are allied to me by affinity, and my brothers, sistors, &c., are allied in the same way to my wife. But my brother and the sister of my wife are not allied by the ties of affinity: This will appear by the following paradigms
My wife's father ---| | | | | -----------------| | | | |-- are all allied to me. Ego ----- My Wife 0 My wife's sister ---| | | 0 My wife's niece ---| My wife's father, ---| My Father | |My brother | | |and my wife's | | |sister are |---------------| |----------| |not allied | | | | |to each other My brother Ego ---- My wife, My wife's sister, |
3. A person cannot, by legal succession, receive an inheritance from a relation by affinity; neither does it extend to the nearest relations of hushand and wife, so as to create a mutual relation between them. The degrees of affinity are computed in the same way as those of consanguinity. See Pothier, Traite du Mariage, part 3, ch. 3, art. 2, and see 5 M. R. 296; Inst. 1, 10, 6; Dig. 38, 10, 4, 3; 1 Phillim. R. 210; S. C. 1 Eng. Eccl. R. 72; article Marriage.
TO AFFIRM, practice. 1. To ratify or confirm a former law or judgment, as when the supreme court affirms the judgment of the court of common pleas. 2. To make an affirmation, or to testify under an affirmation.
AFFIRMANCE. The confirmation of a voidable act; as, for example, when an infant enters into a contract, which is not binding upon him, if, after attaining his full age, he gives his affirmance to it, he will thereafter be bound, as if it had been made when of full age. 10 N. H. Rep. 194.
2. To be binding upon the infant, the affirmance must be made after arriving of age, with a full knowledge that it would be void without such confirmation. 11 S. & R. 305.
3. An affirmance may be express, that is, where the party declares his determination of fulfilling the contract; but a more acknowledgment is not sufficient. Dudl. R, 203. Or it may be implied, as, for example, where an infant mortgaged his land and, at full age, conveyed it, subject to the mortgage. 15 Mass. 220. See 10 N. H. Rep. 561.
AFFIRMANCE-DAY, GENERAL. In the English Court of Exchequer, is a day appointed by the judges of the common pleas, and barons of the exchequer, to be held a few days after the beginning of every term for the general affirmance or reversal of judgments. 2 Tidd. 1091.
AFFIRMANT, practice. One who makes affirmation instead of making oath that the evidence which he is about to give shall be the truth, as if he had been sworn. He is liable to all the pains and penalty of perjury, if he shall be guilty of wilfully and maliciously violating his affirmation.
AFFIRMATION, practice. A solemn declaration and asseveration, which a witness makes before an officer, competent to administer an oath in a like case, to tell the truth, as if be had been sworn.
2. In the United States, generally, all witnesses who declare themselves conscientiously scrupulous against taking a corporal oath, are permitted to make a solemn affirmation, and this in all cases, as well criminal as civil.
3. In England, laws have been enacted which partially relieve persons who, have conscientious scruples against taking an oath, and authorize them to make affirmation. In France, the laws which allow freedom of religious opinion, have received the liberal construction that all persons are to be sworn or affirmed according to the dictates of their consciences; and a quaker's affirmation has been received and held of the same effect as an oath. Merl. Quest. de Droit, mot Serment, 1.
4. The form is to this effect: "You, A B, do solemnly, sincerely, and truly declare and affirm," &c. For the violation of the truth in such case, the witness is subject to the punishment of perjury " as if he had been sworn.
5. Affirmation also means confirming; as, an affirmative statute.
AFFIRMATIVE. Averring a fact to be true; that which is opposed to negative. (q. v.)
2. It is a general rule of evidence that the affirmative of the issue must be proved. Bull. N. P. 298 ; Peake, Ev. 2.
3. But when the law requires a person to do an act, and the neglect of it, will render him guilty and punishable, the negative must be proved, because every man is presumed to do his duty and in that case they who affirm he did not, must prove it. B. N. P. 298; 1 Roll. R. 83; Comb. 57; 3 B.& P. 307; 1 Mass. R. 56.
AFFIRMATIVE PREGNANT, Pleading. An affirmative allegation, implying some negative, in favor of the adverse party, for example, if to an action of assumpsit, which is barred by the act of limitations of six years, the defendant pleads that be did not undertake &c. within ten years; a replication that he did undertake, &c. within ten years, would be an affirmative pregnant; since it would impliedly admit that the defendant had not promised within six years. As no proper issue could be tendered upon such plea the plaintiff should, for that reason, demur to it. Gould, PI. c. 6 29, 37; Steph. PI. 381; Lawes, Civ. PI. 113; Bac. Ab. Pleas, N 6.
AFFORCE, AFFORCEMENT OF THE ASSIZE, Old English law, practice. An ancient practice in trials by jury, which is explained by Bracton, (fo. 185, b. 292 a) and by the author of Fleta, lib. 4, cap. 9, 2. It consisted in adding other jurors to the panel of jurors, after the cause had been committed to them, in case they could not agree in a verdict. The author of Fleta (ubi sup) thus describes it. The oath having been administered to the jury, the (prenotarius) prothonotary, addressed them thus: "You will say upon the oath you have taken, whether such a one unjustly and without judgment disseized such a one of his freehold in such a ville within three years or not." The justices also repeat for the instruction of, the jurors the plaint of the plaintiff, &c. The jurors then retire and confer together, &c.;If the jurors differ among themselves and cannot agree in one (sententiam) finding, it will be in the discretion of the judges, &c; to afforce the assize by others, provided there remain of the jurors summoned many as the major party of the dissenting jurors; or they may compel the same jurors to unanimity, viz. by directing the sheriff to keep them safely without, meat or drink until they agree. The object of adding to the panel a number equal to the major party of the dissenting jurors, was to ensure a verdict by twelve of them, if the jurors thus added to the panel should concur with the minor party of the dissenting jurors. This practice of afforcing the assize, was in reality a second trial of the cause, and was abandoned, because the courts found it would save delay and trouble by insisting upon unanimity. The practice of confining jurors without meat and drink in order to enforce unanimity, has in more modern times also been abandoned and the more rational practice adopted of discharging the jury and summoning a new one for the trial of the cause, in cases where they cannot agree. This expedient for enforcing unanimity was probably introduced from the canon law, as we find it was resorted to on the continent, in other cases where the unanimity of a consultative or deliberative body was deemed indispensable. See Barring. on Stats. 19, 20; 1, Fournel, Hist. des Avocats, 28, note.
TO AFFRANCHISE. To make free.
AFFRAY, criminal law. The fighting of two or more persons, in some public place, to the terror of the people.
2. To constitute this offence there must be, 1st, a fighting; 2d, the fighting must be between two or more persons; 3d, it must be in some public place ; 4th, it must be to the terror of the people.
3. It differs from a riot, it not being premeditated; for if any persons meet together upon any lawful or innocent occasion, and happen on a sudden to engage in fighting, they are not guilty of a riot but an affray only; and in that case none are guilty except those actually engaged in it. Hawk. b. 1, c. 65, s. 3 ; 4 Bl. Com. 146; 1 Russell, 271.
AFFREIGHTMEET, Com. law. The contract by which a vessel or the use of it, is let out to hire. See Freight; General ship.
AFORESAID. Before mentioned; already spoken of. This is used for the purpose of identifying a person or thing; as where Peter, of the city of Philadelphia, has been mentioned; when it is necessary to speak of him, it is only requisite to say Peter aforesaid, and if the city of Philadelphia, it may be done as the city of Philadelphia, aforesaid.
AFORETHOUGHT, crim. law. Premeditated, prepense; the length of time during which the accused has entertained the thought of committing the offence is not very material, provided he has in fact entertained such thought; he is thereby rendered criminal in a greater degree than if he had committed the offence without. premeditation. Vide Malice; aforethought; Premeditation 2 Chit. Cr. 785; 4 Bl. Com. 199; Fost. 132, 291, 292; Cro. Car. 131; Palm. 545; W. Jones, 198; 4 Dall. R. 146; 1 P. A. Bro. App. xviii.; Addis. R. 148; 1 Ashm. R. 289.
AFTERMATH. A right to have the last crop of grass or pasturage. 1 Chit. Pr. 181.
AGAINST THE FORM OF THE STATUTE. When a statute prohibits a thing to be done, and an action is brought for the breach of the statute, the declaration or indictment must conclude against the form of the statute. See Contra formam statuti.
AGAINST THE WILL, pleadings. In indictments for robbery from the person, the words "feloniously and against the will," must be introduced; no other words or phrase will sufficiently charge the offence. 1 Chit. Cr. 244.
AGARD. An old word which signifies award. It is used in pleading, as nul agard, no award;
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AGGRAVATION, crimes, torts. That which increases the enormity of a crime or the injury of a wrong. The opposite of extenuation.
2. – When a crime or trespass has been committed under aggravating circumstances, it is punished with more severity; and, the damages given to vindicate the wrong are greater.
AGGRAVATION, in pleading. The introduction of matter into the declaration which tends to increase the amount of damages, but does not affect the right of action itself. Steph. Pl. 257; 12 Mod. 597. See 3 An. Jur. 287, 313. An example of this is found in the case where a plaintiff declares in trespass for entering his house, and breaking his close, and tossing his goods about; the entry of the house is the principal ground and foundation of the action, and the rest is only stated by way of agravation; 3 Wils. R. 294; and this matter need not be proved by the plintiff or answered by the defendant.
AGGREGATE. A collection of particular persons or items, formed into one body; as a corporation aggregate, which is one formed of a number of natural persons; the union of individual charges make an aggregate charge.
AGGRESSOR, crim. law. He who begins, a quarrel or dispute, either by threatening or striking another. No man may strike another because he has threatened, or in consequence of the use of any words.
AGIO, aggio. This term is used to denote the difference of price beteen the value of bank notes and nominal money, and the coin of the country. – Encyc.
AGIST, in contrads. The taking of other men's cattle on one's own ground at a certain rate. 2 Inst. 643; 4 Inst. 293.
AGISTER. One who takes horses or other animals to agist.
2. The agister is not, like an innkeeper, bound to take all horses offered to him, nor is he liable for any injury done to such animals in his care, unless he has been guilty of negligence, or from his ignorance, negligence may be inferred. Holt's R. 457.
AGISTMENT, contracts. The taking of another person's cattle into one's own ground to be fed, for a consideration to be paid by the owner. The person who receives the cattle is called an agister.
2. An agister is bound to ordinary diligence, and of course is responsible for loses by ordinary negligence; but he does not insure the safety of the cattle agisted. Jones, Bailm. 91; I Bell's Com. 458; Holt's N. P. Rep. 547; Story, Bail. 443; Bac. Ab. Tythes, C l.
AGNATES. In the sense of the Roman law were those whose propinquity was connected by males only; in the relation of cognates, one or more females were interposed.
2. By the Scotch lanv, agnates are all those who ar related by the father, even though females intervene; cognates are those who are related by the mother. Ersk. L. Scot. B. 1, t. 7, s. 4.
AGNATI, in descents. Relations on the father's side: they are different from the cognati, they being relations on the mother's side, affines, who are allied by marriage, and the propinqui, or relations in general. 2 Bl. Com. 235; Toull. Dr. Civ. Fr. tome 1, p. 139; Poth. Pand. Tom. 22, p. 27. Calvini Lex.
AGNATION, in descents. The relation by blood which exists between such males as are descended from the same father; in distinction from cognation or consanguinity, which includes the descendants from females. This term is principally used in the civil law.
AGRARIAN LAW. Among the Romans, this name was given to a law, which had for its object, the division among the people of all the lands which had been conquered, and which belonged to the domain of the state.
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AGRI. Arable land in the common fields. Cunn. Dict. h. t.
AGRICULTURE. The art of cultivating the earth in order to obtain from it the divers things it can produce; and particularly what is useful to man, as grain, fruit's, cotton, flax, and other things. Domat, Dr. Pub. liv. tit. 14, s. 1, n. 1.
AID AND COMFORT. The constitution of the United States, art. 8, s. 3, declares, that adhering to the enemies of the United States, giving them aid and comfort, shall be treason. These words, as they are to be understood in the constitution, have not received a full judicial construction. They import, however, help, support, assistance, countenance, encouragement. The word aid, which oocurs in the Stat. West. 1, c. 14, is explained by Lord Coke (2 just. 182) as comprehending all persons counselling, abetting, plotting, assenting, consenting, and encouraging to do the act, (and he adds, what is not applicable to the Crime to treason,) who are not present when the act is done, See, also, 1 Burn's Justice, 5, 6; 4 Bl. Com. 37, 38.
AID PRAYER, English law. A petition to the court calling in help from another person who has an interest in the matter in dispute. For example, a tenant for life, by the courtesy or for years, being impleaded, may pray aid of him in reversion; that is, desire the court that he may be called by writ, to allege what he thinks proper for the maintenance of the right of the person calling him, and of his own. F. N. B. 60; Cowel.
AIDERS, crim. law. Those who assist, aid, or abet the principal, and who are principals in the second degree. 1. Russell, 21.
AIDS, Engl. law. Formerly they were certain sums of money granted by the tenant to his lord in times of difficulty and distress, but, as usual in such cases, what was received as a gratuity by the rich and powerful from the weak and poor, was soon claimed as a matter of right; and aids became a species of tax to be paid by the tenant to his lord, in these cases: 1. To ransom the lord's person, when taken priisoner; 2. To make the lord's eldest son a knight; – 3. To marry the lord's eldest daughter, by giving her a suitable portion. The first of these remained uncertain; the other two were fixed by act of parliament at twenty shillings each being the supposed twentieth part of a knight's fee, 2 Bl. Com. 64.
AILE or AYLE, domestic relations. This is a corruption of the French word aieul, grandfather, avus. 3.Bl. Com. 186.
AIR. That fluid transparent substance which surrounds our globe.
2. No property can be had in the air it belongs equally to all men, being indispensable to their existence. To poison or materially to change the air, to the annoyance of the public, is a nuisance. Cro. Cr. 610; 2 Ld. Raym 1163; I Burr. 333; 1 Str. 686 Hawk. B. 1, c. 75, s. 10; Dane's Ab. Index h. t. But this must be understood with this qualification, that no one has a right to use the air over another man's land, in such a manner as to be injurious to him. See 4 Campb. 219; Bowy. Mod. Civ. Law, 62; 4 Bouv. Inst. n. 36 1; Grot. Droit de la Guerre et de la Paix, liv. 2, c. 2, 3, note, 3 et 4.
3. It is the right of the proprietor of an estate to enjoy the light and air that will come to him, and, in general, no one has a right to deprive him of them; but sometimes in building, a man opens windows over his neighbor's ground, and the latter, desirous of building on his own ground, necessarily stops the windows already built, and deprives the first builder of light and air; this he has the right to do, unless the windows are ancient lights, (q. v.) or the proprietor has acquired a right by grant or prescription to have such windows open. See Crabb on R. P. 444 to 479 and Plan. Vide Nuisance.
AJUTAGE. A conical tube, used in drawing water through an aperture, by the use of which the quantity of water drawn is much increased. When a privilege to draw water from a canal through the forebay or tunnel by means of in aperture has been granted, it is not lawful to add an adjutage, unless such was the intention of the parties. 2 Whart. R. 477.
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ALBA FIRMA. Eng. law. When quit rents were reserved payable in silver or white money, they wero called white rents, or blanch farms reditus albi. When they were reserved payable in work, grain, or the like, they were called reditus nigri or black mail. 2 Inst. 19.
ALCADE, Span. law. The name of a judicial officer in Spain, and in those countries which have received the body of their laws from those of Spain.
ALDERMAN. An officer, generally appointed or elected in towns corporate, or cities, possessing various powers in different places.
2. The aldermen of the cities of Pennsylvania, possess all the powers and jurisdictions civil and criminal of justices of the peace. They are besides, in conjunction with the respective mayors or recorders, judges of ibe mayor's courts.
3. Among the Saxons there was an officer called the ealderman. ealdorman, or aldernwn, which appellation signified literally elderman. Like the Roman senator, he was so called, not on account of his age, but because of his wisdom and dignity, non propter oetatem sed propter sapientism et dignitatem. He presided with the bisbop at the scyregemote, and was, ex officio, a member of the witenagemote. At one time he was a military officer, but afterwards his office was purely judical.
4. There were several kinds of aldermen, as king's aldermen, aldermen of all England, aldermen of the county, aldermen of the hundred, &c., to denote difference of rank and jurisdiction.
ALEA; civil law. The chance of gain or loss in a contract. This chance results either from the uncertainty of the thing sold, as the effects of a succession; or from the uncertainty of the price, as when a thing is sold for an annuity, which is to be greater or less on the happening of a future event; or it sometimes arises in consequence of the uncertainty of both. 2 Duv. Dr. Civ. Fr. n. 74.
ALEATORY CONTRACTS, civil law. A mutual agreement, of which the effects, with respect both to the advantages and losses, whether to all the parties, or to some of them, depend on an uncertain event. Civ. Code of Louis. art. 2951.
2. – These contracts are of two kinds; namely, 1. When one of the parties exposes himself to lose something which will be a profit to the other, in consideration of a sum of money which the latter pays for the risk. Such is the contract of insurance; the insurer takes all the risk of the sea, and the assured pays a premium to the former for the risk which he runs.
3. – 2. In the second kind, each runs a risk which is the consideration of the engagement of the other; for example, when a person buys an annuity, he runs the risk of losing the consideration, in case of his death soon after, but he may live so as to receive three times the amount of the price he paid for it. Merlin, Rep. mot Aleatoire.
ALER SANS JOUR, or aller sans jour, in practice. A French phrase which means go without day; and is used to signify that the case has been finally dismissed the court, because there is no further day assigned for appearance. Kitch. 146.
ALFET, obsolete. A vessel in which hot water was put, for the purpose of dipping a criminal's arm in it up to the elbow.
ALIA ENORMIA, pleading. And other wrongs. In trespass, the declaration ought to conclude "and other wrongs to the said plaintiff then and there did, against the peace," &c.
2. Under this allegation of alia enormia, some matters may be given in evidence in aggravatiou of damages, though not specified in other parts of the declaration. Bull. N. P. 89; Holt, R. 699, 700. For example, a trespass for breaking and entering a house, the plaintiff may, in aggravation of damages, give in evidence the debauching of his daughter, or the beating of his servants, under the general allegation alia enormia, &c.;6 Mod. 127.
3. But under the alia nomia no evidence of the loss of service, or any other matter which would of itself sustain an action; for if it would, it should be stated specially. In trespass quare clausum fregit, therefore, the plaintiff would not, under the above general allegation, be permitted to give evidence of the defendant's taking away a horse, &c. Bull. N. P. 89; Holt, R. 700; 1 Sid. 225; 2 Salk. 643; 1 Str. 61; 1 Chit. Pl. 388; 2 Greenl. Ev. 278.
ALIAS, practice. This word is prefixed to the name of a second writ of the same kind issued in the same cause; as, when a summons has been issued and it is returned by the sheriff, nil, and another is issued, this is called an alias summons. The term is used to all kinds of writs, as alias fi. fa., alias vend. exp. and the like. Alias dictus, otherwise called; a description of the defendant by an addition to his real name of that by wbich he is bound in the writing; or when a man is indicted and his name is uncertain, he may be indicted as A B, alias dictus C D. See 4 John. 1118; 1 John. Cas. 243; 2 Caines, R. 362; 3 Caines, R. 219.
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