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Dictionary, legal meaning of, A MENSA ET THORO... ALIAS

    22.2.12  

A, the first letter of the English and most other alphabets, is frequently used as an abbreviation, (q. v.) and also in the marks of schedules or papers, as schedule A, B, C, &c. Among the Romans this letter was used in criminal trials. The judges were furnished with small tables
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 a sentence of imprisonment for life is also a ground for a divorce a vinculo. When the marriage is dissolved a vinculo, the parties may marry again but when the cause is adultery, the guilty party cannot marry his or her paramour.
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 had seats and votes in the house of lords. The prior of St. John's of Jerusalem, was styied the first baron of England, in respect to the lay barons, but he was the last of the spiritual barons.
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.
ABORTION, med jur. and criminal law. The expulsion of the foetus before the seventh mouth of utero-gestation, or before it is viable. q. v.
2. The causes of this accident are referable either to the mother, or to the foetus and its dependencies. The causes in the mother may be: extreme nervous susceptibility, great debility, plethora, faulty conformation, and the like; and it is frequently induced immediately by intense mental emotion. The causes seated in the foetus are its death, rupture of the membranes, &c.
3. It most frequently occurs between the 8th and 12th weeks of gestation. When abortion is produced with a malicious design, it becomes a misdemeanor, at common law, 1 Russell, 553; and the party causing it may be indicted and punished.
4. The crimjnal means resorted to for the purpose of destroying the foetus, may be divided into general and local. To the first belong venesection, emetics, cathartics diuretics, emmenagogues &c. The second embraces all kinds of violence directly applied.
5. When, in consequence of the means used to produce abortion, the death of the woman ensues, the crime is murder.
6. By statute a distinction is made between a woman quick with child, (q. v.) and one who, though pregnant, is not so, 1 Bl. Com. 129. Physiologists, perhaps with reason, think that the child is a living being from the moment of conception. 1 Beck. Med. Jur. 291. General References. 1 Beck, 288 to 331; and 429 to 435; where will be found an abstract of the laws of different countries, and some of the states punishing criminal abortion; Roscoe, Cr. Ev. 190; 1 Russ. 553; vilanova y Manes, Materia Criminal Forense, Obs. 11, c. 7 n. 15-18. See also 1 Briand, Med. Leg. 1 ere partie, c. 4, where the question is considered, how far abortion is justifiable, and is neither a crime nor a misdemeanor. See Alis. Cr. L. of Scot. 628.
ABORTUS. The fruit of an abortion; the child born before its time, incapable of life. See Abortion; Birth; Breath; Dead bord; Gestation; Life. ABOVE. Literally higher in place: But in law this word is sometimes used to designate the superior court, or one which may revise proceedings of an inferior court error, from such inferior jurisdiction. The court of error is called the court above; the court whose proceedings are to be examined is called the court below.
2. By bail above, is understood bail to the action entered with the prothonotary or clerk, which is an appearance. See Bail above. The bail given to the Sheriff, in civil cases, when the defendant is arrested on bailable process, is called bail below; (q.v.) vide Below.
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.
ACCESS, persons. Approach, or the means or power of approaching. Sometimes by access is understood sexual intercourse; at other times the opportunity of communicating together so that sexual intercourse may have taken place, is also called access. 1 Turn. & R. 141.
2. In this sense a man who can readily be in company with his wife, is said to have access to her; and in that case, her issue are presumed to be his issue. But this presumption may be rebutted by positive evidence that no sexual intercourse took place. lb.
3. Parents are not allowed to prove non-access, for the purpose of bastardizing the issue of the wife; nor will their declarations be received after their deaths, to prove the want of access, with a like intent. 1 P. A. Bro. R. App. xlviii.; Rep. tem. Hard. 79; Bull. N. P. 113; Cowp. R. 592; 8 East, R. 203; 11 East, R. 133. 2 Munf. R. 242; 3 Munf. R. 599; 7 N. S. 553; 4 Hayw R. 221, 3 Hawks, R 623 1 Ashm. R. 269; 6 Binn. R. 283; 3 Paige's R. 129; 7 N. S. 548. See Shelf. on Mar. & Div. 711; and Paternity.
ACCESSARY, criminal law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.
2. An accessary before the fact, is one who being absent at the time of, the crime committed, yet procures, counsels, or commands another to commit it. 1 Hale, P. C. 615. It is, proper to observe that when the act is committed through the agency of a person who has no legal discretion nor a will, as in the case of a child or an insane person, the incitor, though absent when the crime was committed, will be considered, not an accessary, for none can be accessary to the acts of a madman, but a principal in the first degree. Fost. 340; 1 P. C. 118.
3. An accessary after the fact, is one who knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. 4 Bl. Com. 37.
4. No one who is a principal (q. v.) can be an accessary.
5. In certain crimes, there can be no accessaries; all who are concerned are principals, whether they were present or absent at the time of their commission. These are treason, and all offences below the degree of felony. 1 Russ. 21, et seq.; 4 Bl. Com. 35 to 40; 1 Hale, P. C. 615; 1 Vin. Abr. 113; Hawk. P. C. b. 2, c. 29, s. 16; such is the English Law. But whether it is law in the United States appears not to be determined as regards the cases of persons assisting traitors. Serg. Const. Law, 382; 4 Cranch, R. 472, 501; United States v. Fries, Parnphl. 199.
6. It is evident there can be no accessary when there is no principal; if a principal in a transaction be not liable under our laws, no one can be charged as a more accessary to him. 1 W.& M. 221.
7. By the rules of the common law, accessaries cannot be tried without their consent, before the principals. Foster, 360. The evils resulting from this rule, are stated at length in the 8th vol. of Todd's Spencer, pp. 329, 330.
ACCESSION, property. The ownership of a thing, whether it be real or personal, movable or immovable, carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or artificially; this is called the right of accession.
2. – 1. The doctrine of property arising from accession, is grounded on the right of occupancy.
3. – 2. The original owner of any thing which receives an accession by natural or artificial means, as by the growth of vegetables, the pregnancy of animals; Louis. Code, art. 491; the embroidering of cloth, or the conversion of wood or metal into vessels or utensils, is entitled to his right of possession to the property of it, under such its state of improvement; 5 H. 7, 15; 12 H. 8, 10; Bro. Ab. Propertie, 23; Moor, 20; Poph. 88. But the owner must be able to prove the identity of the original materials; for if wine, oil, or bread, be made out of another man's grapes, olives, or wheat, they belong to the new operator, who is bound to make satisfaction to the former proprietor for the materials which he has so converted. 2 Bl. Com. 404; 5 Johns. Rep. 348; Betts v. Lee, 6 Johns. Rep. 169; Curtiss v. Groat, 10 Johns. 288; Babcock v. Gill, 9 Johns. Rep. 363; Chandler v. Edson, 5 H. 7, 15; 12 H. 8, 10; Fits. Abr. Bar. 144; Bro. Abr. Property, 23; Doddridge Eng. Lawyer, 125, 126, 132, 134. See Adjunction; Confusion of Goods. See Generally, Louis. Code, tit. 2, c. 2 and 3.
ACCESSION, international law, is the absolute or conditional acceptance by one or several states, of a treaty already concluded between one or several states, of a traty already concluded between other sovereignties. Merl. Rep. mot Accession.
ACCESSORY, property. Everything which is joined to another thing, as an ornament, or to render it more perfect, is an accessory, and belongs to the principal thing. For example, the halter of a horse, the frame of a picture, the keys of a house, and the like; but a bequest of a house would not carry the furniture in it, as accessory to it. Domat, Lois Civ. Part. 2, liv. 4, tit. 2, s. 4, n. 1. Accesiorium non ducit, sed sequitur principale. Co. Litt. 152, a. Co. Litt. 121, b. note (6). Vide Accession; Adjunction; Appendant; Appurtenances; Appurtenant; Incident.
ACCESSORY CONTRACT. one made for assuring the performance of a prior contract, either by the same parties, or by others; such as suretyship, mortgages, and pledges.
2. It is a general rule, that payment of the debt due, or the performance of a thing required to be performed by the first or principal contract, is a full discharge of such accessory obligation. Poth. Ob. part. 1, c. 1, s. 1, art. 2, n. 14. Id. n. 182, 186. See 8 Mass. 551; 15 Mass. 233; 17 Mass. 419; 4 Pick. 11; 8 Pick. 522.
3. An accessory agreement to guaranty an original contract, which is void, has no binding effect. 6 Humph. 261. ACCIDENT. The happening of an event without the concurrence of the will of the person by whose agency it was caused or the happening of an event without any human agency; the burning of a house in consequence of a fire being made for the ordinary purpose of cooking or warming the house, which is an accident of the first kind; the burning of the same house by lightning would have been an accident of the second kind. 1 Fonb. Eq. 374, 5, note.
2. It frequently happens that a lessee covenants to repair, in which case he is bound to do so, although the premises be burned down without his fault. 1 Hill. Ab. c. 15, s. 76. But if a penalty be annexed to the covenant, inevitable accident will excuse the former, though not the latter. 1 Dyer, 33, a. Neither the landlord nor the tenant is bound to rebuild a house burned down, unless it has been so expressly agreed. Amb. 619; 1 T. R. 708; 4 – Paige, R. 355; 6 Mass. R. 67; 4 M'Cord, R. 431; 3 Kent, Com. 373.
3. In New Jersey, by statute, no action lies against any person on the ground that a fire began in a house or room occupied by him, if accidental. But this does not affect any covenant. 1 N. J. Rev. C. 216.
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.
ACT, civil law, contracts. A writing which states in a legal form that a thing has been said, done, or agreed. In Latin, Instrumentum. Merl. Rep.
ACT. In the legal sense, this word may be used to signify the result of a public deliberation, the decision of a prince, of a legislative body, of a council, court of justice, or a magistrate. Also, a decree, edict, law, judgment, resolve, award, determination. Also, an instrument in writing to verify facts, as act of assembly, act of congress, act of parliament, act and deed. See Webster's Dict. Acts are civil or criminal, lawful or unlawful, public or private.
2. Public acts, usually denominated authentic, are those which have a public authority, and which have been made before public officers, are authorized by a public seal, have been made public by the authority of a magistrate, or which have been extracted and been properly authenticated from public records.
3. Acts under private signature are those which have been made by private individuals, under their hands. An act of this kind does not acquire the force of an authentic act, by being registered in the office of a notary. 5 N. S. 693; 8 N. S. 568 ; 3 L. R. 419 ; 8 N. S. 396 ; 11 M. R. 243; unless it hasheen properly acknowledged before the officer, bythe parties to it. 5 N. S. 196.
4. Private acts are those made by private persons, as registers in relation to their receipts and expenditures, schedules, acquittances, and the like. Nov. 73, c. 2 ; Code, lib. 7, tit. 32, 1. 6; lib. 4, t. 21; Dig. lib. 22, tit.. 4; Civ. Code of Louis. art. 2231 to 2254; Toull. Dr. Civ. Francais, tom. 8, p. 94.
ACT, evidence. The act of one of several conspirators, performed in pursuance of the common design, is evidence against all of them. An overt act of treason must be proved by two witnesses. See Overt.
2. The terra. acts, includes written correspondence, and other papers relative to the design of the parties, but whether it includes unpublished writings upon abstract questions, though of a kindred nature, has been doubted, Foster's Rep. 198 ; 2 Stark. R. 116, 141.
3. In cases of partnership it is a rule that the act or declaration of either partner, in furtherance of the common object of the association, is the act of all. 1 Pet. R. 371 5 B. & Ald. 267.
4. And the acts. of an agent, in pursuance of his authority, will be binding on his principal. Greenl. Ev. 113. ACT, legislation. A statute or law made by a legislative body; as an act of congress is a law by the congress of the United States; an act of assembly is a law made by a legislative assembly. If an act of assembly expire or be repealed while a proceeding under it is in fieri or pending, the proceeding becomes abortive; as a prosecution for an offence, 7 Wheat. 552; or a proceeding under insolvent laws. 1 Bl. R. 451; Burr. 1456 ; 6 Cranch, 208 ; 9 Serg. & Rawle, 283.
2. Acts are general or special; public or private. A general or public act is a universal rule which binds the whole community; of which the courts are bound to take notice ex officio.
3. Explanatory acts should not be enlarged by equity Blood's case, Comb. 410; although such acts may be allowed to have a retrospective operation. Dupin, Notions de Droit, 145. 9.
4. Private or special acts are rather exceptions, than rules; being those which operate only upon particular persons and private concerns; of these the courts are not bound to take notice, unless they are pleaded. Com. 85, 6; 1 Bouv. Inst. n. 105.
ACT IN PAIS. An act performed out of court, and not a matter of record. Pais, in law French, signifies country. A deed or an assurance transacted between two or more private persons in the country is matter in pais. 2 Bl. Com. 294.
ACT OF BANKRUPTCY. An act which subjects a person to be proceeded against as a bankrupt. The acts of bankruptcy enumerated in the late act of congress, of 19th Aug. 1841, s. 1, are the following: 1. Departure from the state, district, or territory of which a person, subject to the operation of the bankrupt laws, is an inhabitant, with intent to defraud his creditors. See, as to what will be considered a departure, 1 Campb. R. 279; Dea. & Chit. 4511 Rose, R. 387 9 Moore, R. 217 2 V. & B. 177; 5 T. R. 512; 1 C. & P. 77; 2 Bini,. R. 99; 2 Taunt. 176; Holt, R. 175.
2. Concealment to avoid being arrested. 1 M. & S. 676 ; 2 Rose, R. 137; 15 Ves. 4476 Taunt. R. 540; 14 Ves. 86 Taunt. 176;1 Rose, R. 362; 5 T. R. 512; 1 Esp. 334.
3. Willingly or fraudulently procuring himself to be arrested, or his goods and chattels, lands, or tenements to be attached, distrained, sequestered, or taken in execution.
4. Removal of his goods, chattels and effects, or concealment of them to prevent their being levied upon, or taken in execution, or by other process.
5. Making any fraudulent conveyance, assignment, sale, gift, or other transfer of his lands, tenements, goods, or chattels, credits, or evidences of debt. 15 Wend. R. 588; 5 Cowen, R. 67; 1 Burr. 467, 471, 481; 4 C. & P. 315; 18 Wend. R. 375; 19 Wend. R. 414; 1 Dougl. 295; 7 East, 137 16 Ves. 149; 17 – Ves. 193; 1 Smith R. 33; Rose, R. 213.
ACT OF GOD, in contracts. This phrase denotes those accidents which arise from physical causes, and which cannot be prevented.
2. Where the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the act of God; but where the party, byhis own contract, engages to do an act, it is deemed to be his own fault and folly that he did not thereby provide against contingencies, and exempt himself from responsibilities in certain events and in such case, (that is, in the instance of an absolute general contract the performance is not excused by an inevitable accident, or other contingency, although not foreseen by, nor within the control of the party. Chitty on Contr. 272, 8; Aleyn, 27, cited by Lawrence; J. in 8 T. R. 267; Com. Dig. Action upon the Case upon Assumpsit, G; 6 T. R. 650 ; 8 T. R. 259; 3 M. & S. 267 ; 7 Mass. 325; 13 Mass. 94; Co. Litt. 206; Com. Dig. Condition, D 1, L 13; 2 Bl. Com. 340; 1 T. R. 33; Jones on Bailm 104, 5 ; 1 Bouv. Inst. n. 1024.
3. Special bail are discharged when the defendant dies, Tidd, 243 ; actus Dei nemini facit injuriam being a maxim of law, applicable in such case; but if the defendant die after the return of the case and before it is filed, the bail are fixed. 6 T. R. 284; 6 Binn. 332, 338. It is, however, no ground for an exoneratur, that the defendant has become deranged since the suit was brought, and is confined in a hospital. 2 Wash. C. C. R. 464, 6 T. It. 133 Bos. & Pull. 362 Tidd, 184. Vide 8 Mass. Rep. 264; 3 Yeates, 37; 2 Dall. 317; 16 Mass. Rep. 218; Stra. 128; 1 Leigh's N, P. 508; 11 Pick. R. 41; 2 Verm. R. 92; 2 Watt's Rep. 443. See generally, Fortuitous Event; Perils of the Sea.
ACT OF GRACE, Scotch law. The name by which the statute which provides for the aliment of prisoners confined for civil debts, is usually known.
2. This statute provides that where a prisoner for debt declares upon oath, before the magis trate of the jurisdiction, that he has not wherewith to maintain himself, the magistrate may set him it liberty, if the creditor, in consequence of whose diligence he was imprisoned, does not aliment him within ten days after intimation for that purpose. 1695, c. 32; Ersk. Pr. L. Scot. 4, 3, 14. This is somewhat similar to a provision in the insolvent act of Pennsylvania.
ACT 0F LAW. An event which occurs in consequence of some principle of law. If, for example, land out of which a rent charge has been granted, be recovered by an elder title, and thereby the rent charge becomes avoided; yet the grantee, shall have a writ of annuity, because the rent charge is made void by due course or act of law, it, being a actus legis nemini est damnosus. 2 Inst. 287.
ACT OF MAN. Every man of sound mind and discretion is bound by his own acts, and the law does not permit him to do any thing against it; and all acts are construed most strongly against him who does them. Plowd. 140.
2. A man is not only bound by his own acts, but by those of others who act or are presumed to act by his authority, and is responsible civilly in all such cases; and, in some cases, even when there is but a presumption of authority, he may be made responsible criminally; for example, a bookseller may be indicted for publishing a libel which has been sold in his store, by his regular salesmen, although he may possibly have had no knowledge of it.
ACTIO BONAE FIDEI, civil law. An action of good faith.
ACTIO COMMODATI CONTRARIA. The name of an action in the civil law, by the borrower against the lender, to compel the execution of the contract. Poth. Pret Usage, n. 75.
ACTIO COMMODATI DIRECTA. In the civil law, is the name of an action, by a lender against a borrower, the principal object of which is to obtain restitution of the thing lent. Poth. Pret. 5, Usage, n. 65, 68.
ACTIO CONDICTIO INDEBITI. The name of an action in the civil law, by which the plaintiff recovers the amount of a sum of money or other thing be paid by mistake. Poth. Promutuum, n. 140. See Assumpsit.
ACTIO EXCONDUCTIO, civil law. The name of an action which the bailor of a thing for hiremay bring against the bailee, in order to compel him to redeliver the thing hired. Poth. du Contr. de Louage, n. 59.
ACTIO DEPOSITI CONTRARIA. The name, of an action in the civil law which the depositary has against the depositor to compel him to fulfil his engagement towards him. Poth. Du Depot, la. 69.
ACTIO DEPOSITI DIRECTA. the civil law, this is the name of an action which is brought by the depositor against the depositary, in order to get back the, thing deposited. Poth. Du Depot, n. 60.
ACTIO JUDICATI, civil law. Was an action instituted, after four months had elapsed after the rendition of judgment, in which the judge issued his warrant to seize, first, the movables, which were sold within eight days afterwards; and then the immovables, which were delivered in pledge to the creditors, or put under the care of a curator, and, if at the end of two mouths, the debt was not paid, the land was sold. Dig. 42, t. 1. – Code, 8, 34.
ACTIO NON, pleading. After stating the appearance and defence, special pleas begin with this allegation, "that the said plaintiff ought not to have or maintain his aforesaid action thereof against him," actio non habere debet. This is technically termed the actio non. 1 Ch. Plead. 531 2 Ch. Plead. 421 ; Steph. Plead. 394.
ACTIO NON ACCREVIT INFRA SEX ANNOS. The name of a plea to the statute of limitations when the defendant insists that the plaintiff's action has not accrued within six years. It differs from non assumpsit in this: non assumpsit is the proper plea to an action on a simple contract, when the action accrues on the promise but when it does not accrue on the promise but subsequently to it, the proper plea is actio non accrevit, &c. Lawes, Pl. in Ass. 733; 5 Binn. 200, 203; 2 Salk. 422; 1 Saund. Rep. 83 n. 2; 2 Saund, 63, b; 1 Sell. N.P. 121.
ACTIO PERSONALIS MIORITUR CUM PERSONA. That a personal action dies with the person, is an ancient and uncontested maxim. But the term personal action, requires explanation. In a large sense all actions except those for the recovery of real property may be called personal. This definition would include contracts for the payment of money, which never were supposed to die with the person. See 1 Saund. Rep. 217, note 1.
2. The maxim must therefore be taken in a more restricted meaning. It extends to all wrongs attended with actual force, whether the affect the person or property and to all injuries to the person only, though without actual force. Thus stood originally the common law, in which an alteration was made by the statute 4 Ed. III. c. 7, which gave an action to an executor for an injury done to the personal property of his testator in his lifetime, which was extended to the executor of an executor, by statute of 25 Ed. III. c. 5. And by statute 31 Ed. III. c. 11, administrators have the same remedy as executors.
3. These statutes received a liberal construction from the judges, but they do not extend to injuries to the person of the deceased, nor to his freehold. So that no action lies by an executor or administrator for an assault and battery of the deceased, or trespass, vi et armis on his land, or for slander, because it is merely a personal injury. Neither do they extend to actions against executors or administrators for wrongs committed by the deceased. 13 S. 184; Cowp. 376; 1 Saund. 216, 217, n. 1; Com. Dig 241, B 13; 1 Salk. 252; 6 S. & R. 272; W. Jones, 215.
4. Assumpsit may be maintained by executors or administrators, in those cases where an injury has been done to the personal, property of the deceased, and he might in his lifetime have waived the tort and sued in assumpsit. 1 Bay's R. 61; Cowp. 374; 3 Mass. 321; 4 Mass. 480; 13 Mass. 272; 1 Root, 2165. An action for a breach of a promise of marriage cannot be maintained by an executor, 2 M. & S. 408; nor against 13 S. & R. 183; 1 Picker. 71; unless, perhaps, where the plaintiff's testator sustained special damages. 13 S. & R. 185. See further 12.S. & R. 76; 1 Day's Cas. 180; Bac. Abr. Ejectment, H11 Vin. Abr. 123; 1 Salk. 314; 2 Ld. Raym. 971 1 Salk. 12 Id. 295; Cro. Eliz. 377, 8 1 Str. 60 Went. Ex. 65; 1 Vent. 176 id. so; 7 Serg. & R. 183; 7 East, 134-6 1 Saund. 216, a, n. 1; 6 Mass. 394; 2 Johns. 227; 1 Bos. & Pull. 330, n. a.; 1 Chit. Pi. 86; 3 Bouv. Inst. n. 2750; this Dictionary, tit. actions; Death; Parties to actions; Survivor.
ACTIO PRO SOCIO. In the civil law, is the name of an action by which either partner could compel his co-partners to perform their social contract. Poth. Contr. de Societe, n. 134.
ACTION. Conduct, behaviour, something done. Nomen actionis latissime patere vulgo notum est ac comprehenders omnem omnino viventis operationem quae passioni opponitur. Vinnius, Com. lib. 4, tit. 6. De actionibus.
2. Human actions have been divided into necessary actions, or those over which man has no control; and into free actions, or such as he can control at his pleasure. As man is responsible only when he exerts his will, it is clear lie can be punished only for the Iatter.
3. Actions are also divided into positives and negative the former is called an act of commision the latter is the omission of something which ought to be done, and is called an act of omission. A man may be responsible as well for acts of omission, as for acts of commission.
4. Actions are voluntary and involuntary. The former are performed freely and without constraint – the latter are performed not by choice, against one's will or in a manner independent of the will. In general a man is not responsible for his involuntary actions. Yet it has been ruled that if a lunatic hurt a man, he shall be answerable in trespass, although, if he kill a man, it is not felony. See Hob. Rep. 134; Popham, 162; Pam. N. P. 68. See also Duress; Will.
ACTION, French com. law. Stock in a coompany, shares in a corporation.
ACTION, in practice. Actio nihil aliud est, quam jus persequendi in judicio quod sibi debetur. Just. Inst. Lib. 4, tit. 6; Vinnius, Com. Actions are divided into criminal and civil. Bac. Abr. Actions, A. 2. – 1. A criminal action is a prosecution in a court of justice in the name of the government, against one or more individuals accused of a crime. See 1 Chitly's Cr. Law.
1. – 2. A civil action is a legal demand of one's right, or it is the form given by law for the recovery of that which is due. Co. Litt. 285; 3 Bl. Com. 116; 9 Bouv. Inst. n. 2639; Domat. Supp. des Lois Civiles, liv. 4, tit. 1, No. 1; Poth. Introd. generale aux Coutumes, 109; 1 Sell. Pr. Introd. s. 4, p. 73. Ersk. Princ. of Scot. Law, B. 41 t. 1. 1. Till judgment the writ is properly called an action, but not after, and therefore, a release of all actions is regularly no bar of all execution. Co. Litt. 289 a; Roll. Ab. 291. They are real, personal and mixed. An action is real or personal, according as realty or personalty is recovered; not according to the nature of the defence. Willes' Rep. 134.
4. – 1. Real actions are those brought for the specific recovery of lands, tenements, or hereditaments. Steph. PI. 3. They are either droitural, when the demandant seeks to recover the property; or possessory when he endeavors to obtain the possession. Finch's Law, 257, 8. See Bac. Abr. Actions, A, contra. Real Actions are, 1st. Writs of right; 2dly, Writs of entry, which lie in the per, the per et cui, or the post, upon disseisin, intrusion. or alienation. 3dly. Writs ancestral possessory, as Mort d' ancester, aid, besaiel, cosinage, or Nuper obiit. Com. Dig. Actions, D 2. By these actions formerly all disputes concerning real estate, were decided; but now they are pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process; a much more expeditious, method of trying titles being since introduced by other actions, personal and mixed. 3 Bl. Com. 118. See Booth on Real Actions.
5. – 2. Personal actions are those brought for the specific recovery of goods and chattels; or for damages or other redress for breach of contract, or other injuries, of whatever description; the specific recovery of lands, tenements, and hereditaments only excepted. Steph. PI. 3; Com. Dig. Actions, D 3; 3 Bouv. Inst. n. 2641. Personal actions arise either upon contracts, or for wrongs independently of contracts. The former are account, assumpsit, covenant, debt, and detinue; see these words. In Connecticut and Vermont there is, an action used which is peculiar to those states, called the action of book debt. 2 Swift's Syst. Ch. 15. The actions for wrongs, injuries, or torts, are trespass on the case, replevin, trespass, trover. See these words, and see Actio personalis moritur cum persona.
6. – 3. Mixed actions are such as appertain, in some degree, to both the former classes, and, therefore, are properly reducible to neither of them, being brought for the specific recovery of lands, tenements, or hereditaments, and for damages for injury sustained in respect of such property. Steph. Pl. 3; Co. Litt. 284, b; Com. Dig. Actions, D 4. Every mixed action, properly so called, is also a real action. The action of ejectment is a personal action, and formerly, a count for an assault and battery might be joined with a count for the recovery of a term of Years in land.
7. Actions are also divided into those which are local and such as are transitory.
1. A local action is one in which the venue must still be laid in the county, in which the cause of action actually arose. The locality of actions is founded in some cases, on common law principles, in others on the statute law.
8. Of those which continue local, by the common law, are, lst, all actions in which the subject or thing to be recovered is in its nature local. Of this class are real actions, actions of waste, when brought on the statute of Gloucester, (6 Edw. I.) to recover with the damages, the locus in quo or place wasted; and actions of ejectment. Bac. Abr. Actions Local, &c. A, a; Com. Dig. Actions, N 1; 7 Co. 2 b; 2 Bl. Rep. 1070. All these are local, because they are brought to recover the seisin or possession of lands or tenements, which are local subjects.
9. – 2dly. Various actions which do not seek the direct recovery of lands or tenements, are also local, by the common law; because they arise out of some local subject, or the violation of some local right or interest. For example, the action of quare impedit is local, inasmuch as the benefice, in the right of presentationto which the plaintiff complains of being obstructed, is so. 7 Co. 3 a; 1 Chit. PI. 271; Com. Dig. Actions, N 4. Within this class of cases are also many actions in which only pecuniary damages are recoverable. Such are the common law action of waste, and trespass quare clausum fregit; as likewise trespass on the case for injuries affecting things real, as for nuisances to houses or lands; disturbance of rights of way or of common; obstruction or diversion of ancient water courses, &c. 1 Chit. Pl. 271; Gould on Pl. ch. 3, 105, 106, 107. The action of replevin, also, though it lies for damages only, and does not arise out of the violation of any local right, is nevertheless local. 1 Saund. 347, n. 1. The reason of its locality appears to be the necessity of giving a local description of the taking complained of. Gould on PI. ch. 3, 111. A scire facias upon a record, (which is an action, 2 Term Rep. 46,) although to some intents, a continuation of the original suit, 1 Term Rep. 388, is also local.
10. – 2. Personal actions which seek nothing more than the recovery of money or personal chattels of any kind, are in most cases transitory, whether they sound in tort or in contract; Com. Dig. Actions, N 12; 1 Chit. PI. 273; because actions of this class are, in most instances, founded on the violation of rights which, in contemplation of law, have no locality. 1 Saund. 241, b, note 6. And it will be found true, as a general position, that actions ex delicto, in which a mere personalty is recoverable, are, by the common law, transitory;except when founded upon, or arising out of some local subject. Gould on Pl. ch. 3, 112. The venue in a transitory action may be laid in any county which the plaintiff may prefer. Bac. Abr. Actions Local, &c. A. (a.)
11. In the civil law actions are divided into real, personal, and mixed. A real action, according to the civil law, is that which he who is the owner of a thing, or, has a right in it, has against him who is in possession of it, to compel him to give up the plaintiff, or to permit him to enjoy the right he has in it. It is a right which a person has in a thing, follows the thing, and may be instituted against him who possesses it; and this whether the thing be movable or immovable and, in the sense of the common law, whether the thing be real or personal. See Domat, Supp. des Lois Civiles, Liv. 4, tit. 1, n. 5; Pothier, Introd. Generales aux Coutumes 110; Ersk. Pr. Scot. Law, B. 4, t. 1, 2.
12. A personal action is that which a creditor has against his debtor, to compel him to fulfil his engagement. Pothier, lb. Personal actions are divided into civil actions and criminal actions. The former are those which are instituted to compel the payment or to do some other thing purely civil the latter are those by which the plaintiff asks the reparation of a tort or injury which he or those who belong to him have sustained. Sometimes these two kinds of actions are united when they assume the name of mixed personal actions. Domat, Supp. des Lois Civiles, Liv. 4, tit. 1, n. 4; 1 Brown's Civ. Law, 440.
13. Mixed actions participate both of personal and real actions. Such are the actions of partition, and to compel the parties to put down landmarks or boundaries. Domat, ubi supra.
ACTION AD EXHIBENDUM, civil law. This was an action instituted for the purpose of compelling the defendant to exhibit a thing or title, in his power. It was preparatory to another action, which was always a real action in the sense of the Roman law, that is, for the recovery of a thing, whether it was movable or immovable. Merl. Quest. de Dr. tome i. 84. This is not unlike a bill of discovery. (q. v.)
ACTION OF ADHERENCE, Scotch law. An action competent to a hushand or Wife to compel either party to adhere in case of desertion.
ACTION OF BOOK DEBT. The name of an action in Connecticutand Vermont, resorted to for the purpose of recovering payment for articles usually charged on book. 1 Day, 105; 4 Day, 105; 2 Verm, 66. See 1 Root, 59; 1 Conn. 75; Kirby, 89; 2 Robt, 130; 11 Conn. 205.
ACTION. REDHIBITORY, civil law. An action instituted to avoid a sale on account of some Vice or defect in the thing sold which readers it either absolutely useless, or its use so inconvenient and, imperfect, that it must be, supposed the buyer would not have purchased it, had he known of the vice. Civ. Code of Louis. art. 2496.
ACTION OF A WRIT. This phrase is used when one pleads some matter by which he shows that the plaintiff had no cause to have the writ which he brought, and yet he may have a writ or action for the same matter. Such a plea is called: a plea to the action of the writ, whereas if it should appear by the plea that the plaintiff has no cause to have action for the thing demanded, then it is called a plea to the action. Termes de la ley.
ACTIONS ORDINARY. Scotch law. By this term is understood all actions not recissory. Ersk. Pr. L. Scot. 4, 1, 5.
ACTIONS RESCISSORY, Scotch law. Are divided into, 1, Actions of proper improbation; 2, Actions of reduction-improbation; 3, Actions of simple reduction. Ersk. Pr. L. Scot. 4 1, 5,
2. – 1. Proper improbation is an action brought for declaring writing false or forged.
3. – 2. Reduction-improbation is an action whereby a person who may be hurt, or affected by a writing, insists for producing or exhibiting it in court, in order to have it set aside or its effects ascertained, under the certification, that the writing if not produced, shall be declared false and forged.
4. – 3. In an action of simple reduction, the certification is only temporary, declaring the writings called for, null, until they be produced; so that they recover their full force after their production. Ib. 4, 1, 8.
ACTIONARY. A commercial term used among foreigners, to signify stockholders.
ACTIONES NOMINATAE. Formerly the English courts of chancery would make no writs when there was no precedent, and the cases for which there were precedents were called actiones nominatoe. The statute of Westm. 2, c. 24, gave chancery authority to form new writs in consimili casu. Hence arose the action on the case. Bac. Ab. Court of Chancery, A; 17, Serg. R. 195.
ACTIVE. The opposite, of passive. We say active debts, or debts due to us; passive debts are those we owe.
ACTON BURNELL. Statute of Vide de Mercatoribus. Cruise, Dig. tit. 14, s. 6.
ACTOR, practice. 1. A plaintiff or complainant. 2. He on whom the burden of proof lies. In actions of replevin both parties are said to be actors. The proctor or advocate in the courts of the civil law, was called actor.
ACTS OF COURT. In courts of admiralty, by this phrase is understood legal memoranda of the nature of pleas. For example, the English court of admiralty disregards all tenders, except those formally made by acts of court. Abbott on Ship. pi. 3, c. 10, 2, p. 403; 4 Rob. R. 103; 1 Hagg. R. 157; Dunl. Adm. Pr. 104, 6.
ACTS OF SEDERUNT. In the laws of Scotland, are ordinances for regulating the forms of proceeding, before the court of session, in the administration of justice, made by the judges, who have a delegated power from the legislature for that purpose. Ersk. Pr. L. Scot. B. 1, t. 1, s. 14.
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.
TO ADMINISTER, ADMINISTERING. The stat. 9 G. IV. c. 31, S. 11, enacts "that if any person unlawfully and maliciously shall administer, or attempt to administer to any person, or shall cause to be taken by any person any poison or other destructive things," &c. every such offender, &c. In a case which arose under this statute, it was decided that to constitute the act of administering the poison, it was not absolutely necessary there should have been a delivery to the party poisoned, but that if she took it from a place where it had been put for her by the defendant, and any part of it went into her stomach, it was an administering. 4 Carr. & Payne, 369; S. C. 19 E. C. L. R. 423; 1 Moody's C. C. 114; Carr. Crim. L. 23. Vide Attempt to Persuade.
TO ADMINISTER, trusts. To do some act in relation to an estate, such as none but the owner, or some one authorized by him or by the law, in caseof his decease, could legally do. 1 Harr. Cond. Lo. R. 666.
ADMINISTRATION, trusts. The management of the estate of an intestate, a minor, a lunatic, an habitual drunkard, or other person who is incapable of managing his own affairs, entrusted to an administrator or other trustee by authority of law. In a more confinedsense, and in which it will be used in this article, administration is the management of an intestate's estate, or of the estate of a testator who, at the time administration was granted, had no executor.
2. Administration is granted by a public officer duly authorized to delegate the trust; he is sometimes called surrogate, judge of probate, register of wills and for granting letters of administration. It is to be granted to such persons as the statutory provisions of the several states direct. In general the right of administration belongs to him who" has the right to the vendue of the personalty: as if A make his will, and appoint B his executor, who dies intestate, and C is the legatee of the residue of A's estate, C has the right of administration cum testamento annexo. 2 Strange, 956; 12 Mod. 437, 306; 1 Jones, 225; 1 Croke. 201; 2 Leo. 55; 1 Vent. 217.
3. There are several kinds of administrations, besides the usual kind which gives to the administrator the management of all the personal estate of the deceased for an unlimited time. Administration durante minore oetate, administration durante absentia, administration pendente lite, administration de bonis non, administration cum testamento annexo.
ADMINISTRATION, government. The management of the affairs of the government; this word is also applied to the persons entrusted with the management of the publio affairs.
ADMIINISTRATOR, trusts. An administrator is a person lawfully appointed, with his assent, by an officer having jurisdiction, to manage and settle the estate of a deceased person who has left no executor, or one who is for. the time incompetent or unable to act.
2. It will be proper to consider, first, his rights; secondly, his duties.; thirdly, the number of administrators, and their joint and several powers; fourthly, the several kinds of administrators.
3. – 1. By the grant of the letters, of administration, the administrator is vested with full and ample power, unless restrained to some special administration, to take possession of all the personal estate of the deceased and to sell it; to collect the debts due to him; and to represent him in all matters which relate to his chattels real or personal. He is authorized to pay the debts of the, intestate in the order dire ted by law; and, in the United States, he is generally entitled to a just compensation, which is allowed him as commmisions on the amount whichpasses through his hands.
4. – 2. He is bound to use due diligence in the management of the estate; and he is generally on his appointment required to give security that he will do so; he is responsible for any waste which. may happen for his default. See Devastavit.
5. Administrators are authorized to bring and defend actions. They sue and are sued in their own names; as, A B, administrator of C D, v. E F; or E F v. A B, administrator of C D.
6. – 3. As to the number of administrators. There may be one or more. When there are several they must, in general, act together in bringing suits, and they must all be sued ; but, like executors, the acts of each, which relate to the delivery, gift, sale, payment, possession. or release of the intestate's goods, are considered as of equal validity as the acts of all, for they have a joint power and authority over the whole. Bac. Ab. Executor, C 4; 11 Vin. Ab. 358; Com. Dig. Administration, B 12; 1 Dane's Ab. 383; 2 Litt. R. 315. On the death of one of several joint administrators, the whole authority is vested in the survivors.
7. – 4. Administrators are general, or those who have right to administer the whole estate of the intestate; or special, that is, those who administer it in part, or for a Iimited time.
8 – 1. General administrators are of two kinds, namely: first, when the grant of administration is unlimited, and the administrator is required to administer the whole estate. under the intestate laws. secondly, when the grant is made with the annexation of the will, which is the guide to the administrator to administer and distribute the estate. This latter administration is granted when the deceased has made a will, and either he has not appointed an executor, or having appointed one he refuses to serve, or dies, or is incompetent to act; this last kind is called an administrator cum testamento annexo. 1 Will. on Wills, 309.
9. – 2. Special administrators are of two kinds; first, when the administration is limited to part of the estate, as for example, when the former administrator has died, leaving a part of the estate unadministered, an administrator is appointed to administer the remainder, and he is called an administrator de bonis non. He has all the powers of a common administrator. Bac. Ab. Executors, B 1; Sw. 396; Roll. Ab. 907; 6 Sm. & Marsh. 323. When an executor dies leaving a part of the estate unadministered, the administrator appointed to complete the execution of the win is called an administrator de bonis non, cum testamento annexo. Com. Dig. Administrator, B 1. Secondly, When the authority of the administrator is limited as to time. Administrators of this kind are, 1. An administrator durante minore oetate. This administrator is appointed to act as such during the minority of an infant executor, until the latter shall, attain his lawful age to act. Godolph. 102; 5 Co. 29. His powers extend to administer the estate so far as to collect the same, sell a sufficiency of the personal property to pay the debts, sell bona peritura, and perform such other acts as require immediate attention. He may sue and be sued. Bac. Ab. Executor, B 1 ; Roll. Ab. 110; Cro. Eliz. 718. The powers of such an administrator cease, as soon as the infant executor attains the age at which the law authorizes him to act for himself, which, at common law, is seventeen years, but by statutory provision in several states twenty-one years.
10. – 2. An administrator durante absentid, is one who is appointed to administer the estate during the absence of the executor, before he has proved the will. The powers of this administrator continue until the return of the executor, and. then his powers cease upon the probate of the will by the executor. 4 Hagg. 860. In England it has been holden, that the death of the executor abroad does not determine the authority of the administrator durante absentia. 3 Bos. & Pull. 26.
11. – 3. An administrator pendente lite. Administration pendente lite may be granted pending the controversy respecting an alleged will and it has been granted pending a contest as to, the right to administration. 2 P. Wms. 589; 2 Atk. 286; 2 Cas. temp. Lee, 258. The administrator pendente lite is merely an officer of the court, and holds the property only till the suit terminates. 1 Hagg. 313. He may maintain suits, 1 Ves. sen. 325; 2 Ves. & B. 97; 1 Ball & B. 192; though his power does not extend to the distribution of the assets. 1 Ball & B. 192.
ADMINISTRATRIX. This term is applied to a woman to whom letters of administration have been granted. See Administrator.
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.
ADMISSION, in corporations or companies. The act of the corporation or company by which an individual acquires the rights of a member of such corporation or company.
2. In trading and joint stock corporations no vote of admission is requisite; for any person who owns stock therein, either by original subscription or by conveyance, is in general entitled to, and cannot be refused, the rights and privileges of a member. 3 Mass. R. 364; Doug. 524; 1 Man. & Ry. 529.
3. All that can be required of the person demanding a transfer on the books, is to prove to the corporation his right to the property. See 8 Pick. 90.
4. In a Mutual Insurance Company, it has been held, that a person may become a member by insuring his property, paying the premium and deposit-money, and rendering himself liable to be assessed according to the rules of the corporation. 2 Mass. R. 315.
ADMISSIONS, in evidence. Concessions by a party of the existence of certain facts. The term admission is usually applied to civil transactions, and to matters of fact in criminal cases, where there is no criminal intent the term confession, (q. v.) is generally considered as an admission of guilt.
2. An admission is the testimony which the party admitting bears to the truth of a fact against himself. It is a voluntary act,which he acknowledges as true the fact in dispute. [An admission and consent are, in fact, one and the same thing, unless indeed for more exactness we say, that consent is given to a present fact or agreement, and admission has reference to au agreement or a fact anterior for properly speaking, it is not the admission which forms a contract, obligation or engagement, against the party admitting. The admission is, by its nature, only the proof of a pre-existing obligation, resulting from the agreement or the fact, the truth of which is acknowledged. There is still another remarkable difference between admission and consent: the first is always free in its origin, the latter, always morally forced. I may refuse to consent to a proposition made to me, abstain from a fact or an action which would subject me to an obligation ; but once my consent is given, or the action committed, I am no longer at liberty to deny or refuse either; I am constrained to admit, under the penalty of dishonor and infamy. But notwithstanding all these differences, admission is identified with consent, and they are both the manifestation of the will. These admissions are generally evidence of those facts, when the admissions themselves are proved.]
3. The admissibility and effect of evidence of this description will be considered generally, with respect to the nature and manner, of the admission itself and, secondly, with respect to the parties to be affected by it.
4. In the first place, as to the nature and manner of the admission; it is either made with a view to evidence; or, with a view to induce others to act upon the representation; or, it is an unconnected or casual representation.
5. – 1. As an instance of admission made with a view to evidence may be mentioned the case where a party has solemnly admitted a fact under his hand and seal, in which case he is, estopped, not only from disputing the deed itself, but every fact which it recites. B. N. P. 298; 1 Salk. 186; Com. Dig. Estoppel, B 5; Stark. Ev. pt. 4, p. 3 1.
6. – 2. Instances of thing second class of admissions which have induced others to act upon them are those where a man has cohabited with a woman, and treated her in the front of the world as his wife, 2 Esp. 637; or where he. has held himself out to the world in a particular character; Ib. 1 Camp. 245; he cannot in the one case deny her to be his Wife when sued by a creditor who has supplied her with goods as such, nor in the other can he divest himself of the character be has assumed.
7. – 3. Where the admission or declaration is not direct to the question pending, although admissible, it is not in general conclusive evidence; and though a party may by falsifying his former declaration, show that he has acted illegally andimmorally, yet if he is not guilty of any breach of good faith in the existing transaction, and has not induced others, to act upon his admission or declaration, nor derived any benefit from it against his adversary, be is not bound by it. The evidence in such cases is merely presumptive, and liable to be rebutted.
8. Secondly, with respect to the parties to be affected by it. 1. By a party to a suit, 1 Phil. Ev. 74; 7 T. R. 563; 1 Dall. 65. The admissions of the party really interested, although he is no party to the suit, are evidence. 1 Wils. 257.
9. – 2. The admissions of a partner during the existence of a partnership, are evidence against both. 1 Taunt. 104; Peake's C. 203 1 Stark. C. 81. See 10 Johns. R. 66 Ib. 216; 1 M. & Selw. 249. As to admissions made after the dissolution. of the partnership, see 3 Johns. R. 536; 15 Johns. R. 424 1 Marsh. (Kentucky) R. 189. According to the English decisions, it seems, the admissions of one partner, after the dissolution, have been holden to bind the other partner; this rule has been partially changed by act of parliament. Colly. on Part. 282; Stat. 9 Geo. IV. c. 14, (May 9, 1828.) In the Supreme Court of the United States, a rule, the reverse of the English, has been adopted, mainly on the ground, that the admission is a new contract or promise, springing out of, ana supported by the original consideration. 1 Pet. R. 351; 2 M'Lean, 87. The state courts have varied in their decisions some have adopted the English rule; and, in others it has been overruled. 2 Bouv. Inst. ii. 1517; Story, Partn. 324; 3 Kent, Com. Lect. 43, p. 49, 4th ed.; 17 S. & R. 126; 15 Johns. R. 409; 9 Cowen, R. 422; 4 Paige, R. 17; 11 Pick. R. 400; 7 Yerg. R. 534.
10. – 3. By one of several persons who have a community of interest. Stark, Ev. pt. 4, p. 47; 3 Serg. & R. 9.
11. – 4. By an agent, 1 Phil. Ev. 77-82 3 Paley Ag. 203-207.
12. – 5. By an attorney, 4 Camp. 133; by wife, Paley, Ag. 139, n. 2 Whart. Dig. tit. Evidence, 0 7 T. R. 112 ; Nott & M'C. 374.
13. Admissions are express or implied. An express admission is one made in direct terms. An admission may be implied from the silence of the party, and may be presumed. As for instance, when the existence of the debt, or of the particular right, has been asserted in his presence, and he has not contradicted it. And an aquiescence and endurance, when acts are done by another, which if wrongfully done, are encroachments, and call for resistance and opposition, are evidence, as a tacit admission that such acts could not be legally resisted. See 2 Stark. C. 471. See, generally, Stark. Ev. part 4, tit. Admissions; 1 Phil. Ev. part 1, c. 5, s . 4; 1 Greenl. Ev. 169-212; 2 Evans' Pothier, 319; 8 East, 549, ii. 1; Com. Dig. Testemoigne, Addenda, vol. 7, p. 434; Vin. Abr. Evidence, A, b. 2, A, b. 23 Ib. Confessions; this Dict. tit. Confessions, Examination; Bac. Abr. Evidence L.; Toullier, Droit, Civil Francais, tome 10, p. 375, 450; 3 Bouv. Inst. n. 3073.
ADMISSIONS, of attorneys and counsellors. To entitle counsellors and attorneys to practice in court, they must be admitted by the court to practice there. Different statutes and rules have been made to regulate their admission; they generally require a previous qualification by study under the direction of some practicing counsellor or attorney. See 1 Troub. & Haly's Pr. 18; 1 Arch. Pr. 16; Blake's Pr. 30.
ADMISSIONS. in pleading. Where one party means to take advantage of, or rely upon some matter alleged by his adversary, and to make it part of his case, he ought to admit such matter in his own pleadings; as if either party states the title under which his adversary claims, in which instances it ,is directly opposite in its nature to a protestation. See Prote stando. But where the party wishes to prevent the application of his pleading to some matter contained in the pleading of his adversary, and therefore makes an express admission of such matter (which is sometimes the case,) in order to exclude it from the issue taken or the like, it is somewhat similar in operation and effect, to a protestation.
2. The usual mode of making an express admission in pleading, is, after saying that the plaintiff ought not to have or maintain his action, &c., to proceed thus, " Because he says that although it be true that" &c.;repeating such of the allegations of the adverse party as are meant to be admitted. Express admissions are only matters of fact alleged in the pleadings; it never being necessary expressly to admit their legal sufficiency, which is always taken for granted, unless some objection be made to them. Lawes' Civ. Pl. 143, 144. See 1 Chit PI. 600; Arcbb. Civ. PI. 215.
3. In chancery pleadings, admissions are said to be plenary and partial. They are plenary by force of terms not only when the answer runs in this form, "the defendant admits it to be true," but also when he simply asserts, and generally speaking, when be says, that "he has been informed, and believes it to be true," without adding a qualification such as, "that he does not know it of his own knowledge to be so, and therefore does not admit the same." Partial admissions are those which are delivered in terms of uncertainty, mixed up as they frequently are, with explanatory or qualifying circumstances.
ADMISSIONS, in practice, It, frequently occurs in practice, that in order to save expenses as to mere formal proofs, the attorneys on each side consent to admit, reciprocally, certain facts in the cause without calling for proof of them.
2. These are usually reduced to writing, and the, attorneys shortly, add to this effect, namely, " We agree that the above facts shall on the trial of this cause be admitted, and taken as proved on each side;" and signing two copies now called, "admissions " in the cause, each attorney takes one. Gresl. Eq. Ev. c. 2, p. 38.
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.
ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and contiuued, under an assertion or color of right on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2 Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364; 2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550. Actual possession is a pedis possessio which can be only of ground enclosed, and only such possession can a wrongdoer have. He can have no constructive possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.
2. When the possession or enjoyment has been adverse for twenty years, of which the jury are to judge from the circumstances the law raises the presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this presumption arises only when the use or occupation would otherwise have been unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R. 589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.
3. There are four general rules by which it may be ascertained that possession is not adverse; these will be separately considered.
4. – 1. When both parties claim under the same title; as, if a man seised of certain land in fee, have issue two sons and die seised, and one of the sons enter by abatement into the land, the statute, of limitations will not operate against the other son; for when the abator entered into the land of his father, before entry made by his brother, the law intends that he entered claiming as heir to his father, by which title the other son also claims. Co. Litt s. 396.
5. – 2. When the possession of the one party is consistent with the title of the other; as, where, the rents of a trust state were received by a cestui que trust for more than twenty years after the creation of the trust, without any interference, of the trustee, such ppssession being consistent with and secured to the cestui qwe trust by the terms of the deed, the receipt was held not to be adverse to the title of the trustee. 8 East. 248.
6. – 3. When, in contemplation of law, the claimant has never been out of possession; as, where Paul devised lands to John and his heirs, and died, and John died, and afterwards the heirs of John and a stranger entered, and took the profits for twenty years; upon ejectment brought by the devisee of the heir of John against the stranger, it was held that the perception of the rents and profits by the stranger was not adverse to the devisee's title; for when two men are in possession, the law adjudges it to be the possession of him who has the right. Lord Raym. 329.
7. – 4. When the occupier has acknowledged the claimant's titles; as, if a lease be granted for a term, and, after paying the rent for the land during such term, the tenant hold for twenty years without paying rent, his possession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv. Inst. n. 2193-94, 2351.
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.
AFFIDAVIT, practice. An oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it. It differs from a deposition in this, that in the latter the opposite party has had an opportunity to cross-examine the witness, whereas an affidavit is always taken ex parte. Gresl. Eq. Ev. 413. Vide Harr. Dig. h. t.
2. Affidavit to hold to bail, is in many cases required before the defendant can be arrested; such affidavit must be made by a person who is acquainted with the fact, and must state, 1st, an indebtedness from the defendant to the plaintiff; 2dly, show a distinct cause of action; 3dly, the whole must be clearly and certainly, expressed. Sell. Pr. 104; 1 Chit. R. 165; S. C. 18 Com. Law, R. 59 note; Id. 99.
3. An affidavit of defence, is made by a defendant or a person knowing the facts, in which must be stated a positive ground of defence on the merits. 1 Ashm. R. 4, 19, n. It has been decided that when a writ of summons has been served upon three defendants, and only one appears, a judgment for want of an affidavit of defence may be rendered against au. 8 Watts, R. 367. Vide Bac. Ab. h. t.
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;
AGE. The time when the law allows persons to do acts which, for want of years, they were prohibited from doing before. See Coop. Justin. 446.
2. For males, before they arrive at fourteen years they are said not to be of discretion; at that age they may consent to marriage and choose a guardian. Twenty-one years is full age for all private purposes, and the may then exercise their rights as citizens by voting for public officers; and are eligible to all offices, unless otherwise provided for in the constitution. At 25, a man may be elected a representative in Congress; at 30, a senator; and at 35, he may be chosen president of the United States. He is liable to serve in the militia from 18 to 45. inclusive, unless exempted for some particular reason.
3. As to females, at 12, they arrive at years of discretion and may consent to marriage; at 14, they may choose a guardian; and 21, as in males, is fun Age, when they may exercise all the rights which belong to their sex.
4. In England no one can be chosen member of parliament till he has attained 21 years; nor be ordained a priest under the age of 24; nor made a bishop till he has completed his 30th year. The age of serving in the militia is from 16 to 45 years.
5. By the laws of France many provisions are made in respect to age, among wbich are the following. To be a member of the legislative body, the person must have attained 40 years; 25, to be a judge of a tribunal de remiere instance; 27, to be its president, or to be judge or clerk of a cour royale ; 30, to be its president or procureur general; 25, to be a justice of the peace; 30, to be judge of a tribunal of commerce, and 35, to be its president; 25, to be a notary public; 21, to be a testamentary witness; 30, to be a juror. At 16, a minor may devise one half of his, property as if he were a major. A male cannot contract marriage till after the 18th year, nor a female before full 15 years. At 21, both males and females are capable to perform all the act's of civil life.. – Toull. Dr. Civ. Fr. Liv. 1, Intr. n. 188.
6. In the civil law, the age of a man was divided as follows: namely, the infancy of males extended to the full accomplishment of the 14th year; at 14, he entered the age of puberty, and was said to have acquired full puberty at 18 years accomplished, and was major on completing his 25th year. A female was an infant – til 7 years; at 12, she entered puberty, and accquired full puberty at 14; she became of fall age on completing her 25th year. Lecons Elem. du Dr. Civ. Rom. 22.See Com. Dig. Baron and Feme, B 5, Dower, A, 3, Enfant, C 9, 10, 11, D 3, Pleader, 2 G 3, 2 W 22, 2 Y 8; Bac. Ab. Infancy and Age; 2 Vin. Ab. 131; Constitution of the United States; Domat. Lois Civ.tome 1, p. 10; Merlin, Repert. de Jurisp. mot Age; Ayl. Pand. 62; 1 Coke Inst. 78; 1 Bl. Com. 463. See Witness.
AGE-PRAYER, AGE-PRIER, oetatis precatio. English law, practise. Wnen an action is brought against an infant for lands which he hath by descent, he may show this to the court, and pray quod loquela remaneat until he shall become of age; which is called his age-prayer. Upon this being ascertained, the proceedings are stayed accordingly. When the lands did not descend, he is not allowed this privilege. 1 Lilly's Reg. 54.
AGED WITNESS. When a deposition is wanted to be taken on account of the age of a witness, he must be at least seventy years old to be considered an aged witness. Coop. Eq. PI. 57; Amb. R. 65; 13 Ves. 56, 261.

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.
AGREEMENT, contract. The consent of two or more persons concurring, respecting the transmissiou of some property, right or benefit, with a view of contracting an obligation. Bac. Ab. h.t.; Com. Dig. h.t.; Vin. Ab. h.t.; Plowd. 17; 1 Com. Contr. 2; 5 East's R. 16. It will be proper to consider, 1, the requisites of an agreement; 2, the kinds of agreements; 3, how they are annulled.
2. – 1. To render an agreement complete six things must concur; there must be, 1, a person able to contract; 2, a person able to be contracted with; 3, a thing to be contracted for; 4, a lawful consideration, or quid pro quo; 5, words to express the agreement; 6, the assent of the contracting parties. Plowd. 161; Co. Litt. 35, b.
3. – 2. As to their form, agreements are of two kinds; 1, by parol, or, in writing, as contradistinguished from specialties; 2, by specialty, or under seal. In relation to their performance, agreements are executed or executory. An agreement is said to be executed when two or more persons make over their respective rights in a thing to one another, and thereby change the property therein, either presently and at once, or at a future time, upon some event that shall give it full effect, without either party trusting to the other; as where things are bought, paid for and delivered. Executory agreements, in the ordinary acceptation of the term, are such contracts as rest on articles, memorandums, parol promises, or undertakings, and the like, to be performed in future, or which are entered into preparatory to more solemn and formal alienations of prtperty. Powel on Cont. Agreements are also conditional and unconditional. They are conditional when some condition must be fulfilled before they can have full effect; they are unconditional when there is no condition attached;
4. – 3. Agreements are annulled or rendered of no effect, first, by the acts of the parties, as, by payment; release – accord and satisfction; rescission, which is express or implied; 1 Watts & Serg. 442; defeasance; by novation: secondly, by the acts of the law, as, confusion; merger; lapse of time; death, as when a man who has bound himself to teach an apprentice, dies; extinction of the thing which is the subject of the contract, as, when the agreement is to deliver a certain horse and before the time of delivery he dies. See Discharge of a Contract.
5. The writing or instrument containing an agreement is also called an agreement, and sometimes articles of agreement.(q. V.)
6. It is proper, to remark that there is much dfference between an agreement and articles of agreement which are only evidence of it. From the moment that the parties have given their consent, the agreement or contraet is formed, and, whether it can be proved or not, it has not less the quality to bind both contracting parties. A want of proof does not make it null, because that proof may be supplied aliunde, and the moment it is obtained, the contract may be enforced.
7. Again, the agreement may be mull, as when it was obtained by fraud, duress, and the like; and the articles of agreement may be good, as far as the form is concerned. Vide Contract. Deed; Guaranty; Parties to Contracts.
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.
ALABAMA. The name of one of the new states of the United States of America. This state was admitted into the Union by the resolution of congress, approved December 14th, 1819, 3 Sto. L. U. S. 1804, by which it is resolved that the state of Alabama shall be one, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever. The convention which framed the constitution in this state, assembled at the town of Huntsville on Monday the fifth day of July, 1819, and continued in session by adjournment, until the second day of August, 1819, when the constitution was adopted.
2. The powers of the government are divided by the constitution into three distinct, departments; and each of them confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judicial, to a third. Art. 2,
3. – 1. The legislative power of the state is vested in two distinct branches; the one styled the senate, the other the house of representatives, and both together, the general assembly of the state of Alabama. 1. The senate is never to be less than one-fourth nor more than one-third of the whole number of representatives. Senators are chosen by the qualified electors for the term of three years, at the same time, in the same manner, and at the same place, where they vote for members of the house of representatives; one-third of the whole number of senators are elected every year. Art. 3, s. 12. 2. The house of representatives is to consist of not less than forty-four, nor more than sixty members, until the number of white inhabitant's shall be one hundred thousand; and after that event, the whole number of representatives shall never be less than sixty, nor more than one hundred. Art. 3, B. 9. The members of the house of representatives are chosen by the qualified electors for the term of one year, from the commencement of the general election, and no longer.
4. – 2. The supreme executive power is vested in a chief magistrate, styled the governor of the state of Alabama. He is elected by the qualified electors, at the time and places when they respectively vote for representatives; he holds his office for the term of two years from the time of his installation, and until a successor is duly qualified; and is not eligible more than four years in any term of six years. t. 4. He is invested, among other things, with the veto power. Ib. s. 16. In cases of vacancies, the president of the senate acts as governor. Art. 4, s. 18.
5. – 3. The judicial power is vested in one supreme court, circuit courts to be held in each county in the state, and such inferior courts of law and, equity, to consist of not more than five members, as the general assembly may, from time to time direct, ordain, and establish. Art. 6, S. 1.
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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