A2:
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
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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.
AGENCY, contracts. An agreement, express , or implied, by which
one of the parties, called the principal, confides to the other,
denominated the agent, the management of some business; to be
transacted in his name, or on his account, and by which the agent
assumes to do the business and to render an account of it. As a
general rule, whatever a man do by himself, except in virtue of a
delegated authority, he may do by an agent. Combee's Case, 9 Co.
75. Hence the maxim qui facit per alium facit per se.
2. When the agency express, it is created either by deed, or in
writing not by deed, or verbally without writing. 3 Chit. Com.
Law 104; 9 Ves. 250; 11 Mass. Rep. 27; Ib. 97, 288; 1 Binn.
R. 450. When the agency is not express, it may be inferred from
the relation of the parties and the nature of the employment,
without any proof of any express appointment. 1 Wash. R. 19; 16
East, R. 400; 5 Day's R. 556.
3. The agency must be antecedently given, or subsequently
adopted; and in the latter case there must be an act of
recognition, or an acquiescence in the act of the agent, from
which a recognition may be fairly implied. 9 Cranch, 153, 161;
26 Wend. 193, 226; 6 Man. & Gr. 236, 242; 1 Hare & Wall. Sel.
Dec. 420; 2 Kent, Com. 478; Paley on Agency; Livermore on
Agency.
4. An agency may be dissolved in two ways - 1, by the act of
the principal or the agent; 2, by operation of law.
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5. - 1. The agency may be dissolved by the aet of one of the
parties. 1st. As a general rule, it may be laid down that the
principal has a right to revoke the powers which he has given;
but this is subject to some exception, of which the following are
examples. When the principal has expressly stipulated that the
authority shall be irrevocable, and the agent has an interest in
its execution; it is to be observed, however, that although
there may be an express agreement not to revoke, yet if the agent
has no interest in its execution, and there is no consideration
for the agreement, it will be considered a nude pact, and the
authority may be revoked. But when an authority or power is
coupled with an interest, or when it is given for a valuable
consideration, or when it is a part of a security, then, unless
there is an express stipulation that it shall be revocable, it
cannot be revoked, whether it be expressed on the face of the
instrument giving the authority, that it be so, or not. Story on
Ag. 477; Smith on Merc. L. 71; 2 Liv. on Ag. 308; Paley on Ag.
by Lloyd, 184; 3 Chit. Com. f. 223; 2 Mason's R. 244; Id. 342;
8 Wheat. R. 170; 1 Pet. R. 1; 2 Kent, Com. 643, 3d edit.;
Story on Bailm. §209; 2 Esp. R. 665; 3 Barnw. & Cressw. 842;
10 Barnw. & Cressw. 731; 2 Story, Eq. Jur. §1041, 1042, 1043
6. - 2. The ageacy may be determined by the renunciation of the
agent. If the renunciation be made after it has been partly
executed, the agent by renouncing it, becomes liable for the
damages which may thereby be sustained by his principal. Story on
Ag. § 478; Story on Bailm. §436; Jones on Bailm. 101; 4 John
r. 84.
7. - 2 The agency is revoked by operation of law in the
following cases: 1st. When the agency terminates by the
expiration of the period, during which it was to exist, and to
have effect; as, if an agency be created to endure a year, or
till the happening of a contingency, it becomes extinct at the
end or on the happening of the contingency.
8. - 2. When a change of condition, or of state, produces an
incapacity in either party; as, if the principal, being a woman,
marry, this would be a revocation, because the power of creating
an agent is founded on the right of the principal to do the
business himself, and a married woman has no such power. For the
same reason, when the principal becomes insane, the agency is
ipso facto revoked. 8 Wheat. R. 174, 201 to @04; Story on Ag.
§481; Story on Bailm. §206. 2 Liv. on Ag. 307. The incapacity of
the agent also amounts to a revocation in law, as in case of
insanity, and the like, which renders an agent altogether
incompetent, but the rule does not reciprocally apply in its full
extent. For instance, an infant or a married woman may in some
cases be agents, althouah they cannot act for themselves. Co.
Litt. 52a.
9. - 3. The death of either principal or agent revokes the
agency, unless in cases where the agent has an interest in the
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thing actually vested in the agent. 8 Wheat. R. 174; Story on
Ag. §486 to 499; 2 Greenl. R. 14, 18; but see 4 W. & S. 282; 1
Hare & Wall. Sel. Dec. 415.
10. - 4. The agency is revoked in law, by the extinction of the
subject-matter of the agency, or of the principal's power over
it, or by the complete execution of the trust. Story on Bailm.
§207, Vide generally, 1 Hare & Wall. Sel. Dec. 384, 422; Pal. on
Ag.; Story on Ag.; Liv. on Ag.; 2 Bouv. Inst. n. 1269-1382.
AGENT, practice. An agent is an attorney who transacts the
business of another attorney.
2. The agent owes to his principal the unremitted exertions of
his skil and ability, and that all his transactions in that
character, shall be distinguished by punctuality, honor and
integrity. Lee's Dict. of Practice.
AGENT, international law. One who is employed by a prince to
manage his private affairs, or, those of his subjects in his
name, near a foreign, government. Wolff, Inst. Nat. §1237.
AGENT, contracts. One who undertakes to manage some affair to
be transacted for another, by his authority on account of the
latter, who is called the principal, and to render an account of
it.
2. There are various descriptiona of agents, to whom different
appellations are given according to the nature of their
employments; as brokers, factors, supercargoes, attorneys, and
the like; they are all included in this general term. The
authority is created either by deed, by simple writing, by parol,
or by mere employment, according to the capacity of the parties,
or the nature of the act to be done. It is, therefore, express or
implied. Vide Authority.
3. It is said to be general or special with reference to its
object, i.e., according as it is confined to a single act or is
extended to all acts connected with a particular emplowment.
4. With reference to the manner of its execution, it is either
limited or unlimited, i. e. the agent is bound by precise
instructions, (q. v.) or left to pursue his own discretion. It is
the duty of an agent, 1, To perform what he has undertaken in
relation to his agency. 2, To use all necessary care. 3, To
render an account. Pothier, Tr. du Contrat de Mandat, passim;
Paley, Agency, 1 and 2; 1 Livrm. Agency, 2; 1 Suppl. to Ves.
Jr. 67, 97, 409; 2 Id. 153, 165, 240; Bac. Abr. Master and
Servant, 1; 1 Ves. Jr. R. 317. Vide Smith on Merc. Law, ch. 3,
p. 43,. et seq. and the articles Agency, Authority, and
Principal.
5. Agents are either joint or several. It is a general rule of
ther common law, that when an authority is given to two or more
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persons to do an act, and there is no several authority given,
all the ageuts must concur in doing it, in order to bind the
principal. 3 Pick. R. 232; 2 Pick. R. 346; 12 Mass. R. 185;
Co. Litt. 49 b, 112 b, 113, and Harg. n. 2; Id. 181 b. 6 Pick.
R. 198 6 John. R. 39; 5 Barn. & Ald. 628.
6. This rule has been so contrued that when the authority is
given jointly and severally to three person, two cannot properly
execute it; it must be done by all or by one only. Co. Litt. 181
b; Com. Dig. Attorney, C 11; but if the authority is so worded
that it is apparent, the principal intended to give power to
either of them, an execution by two will be valid. Co. Litt. 49
b; Dy. R. 62; 5 Barn. & Ald. 628. This rule aplies to private
agencies: for, in public agencies an authority executed by a
major would be sufficient. 1 Co. Litt. 181b; Com. Dig. Attorney,
C 15; Bac. Ab. Authority, C; 1 T. R. 592.
7. The rule in commercial transactions however, is very
different; and generally when there are several agents each
possesses the whole power. For example, on a consignment of goods
for sale to two factors, (whether they are partners or not,) each
of them is understood to possess the whole power over the goods
for the purposes of the consigment. 3 Wils. R. 94, 114; Story on
Ag. §43.
8. As to the persons who are capable of becoming agents, it
may be observed, that but few persons are excluded from acting as
agents, or from exercising authority delegated to them by others.
It is not, therefore, requisite that a person be sui juris, or
capable of acting in his own right, in order to be qualified to
act for others. Infants, femes covert, persons attainted or
outlawed, aliens and other persons incompetent for many purposes,
may act as agents for others. Co. Litt. 62; Bac. Ab. Authority,
B; Com. Dig. Attorney, C 4; Id. Baron and Feme, P 3; 1 Hill,
S. Car. R. 271; 4 Wend. 465; 3 Miss. R. 465; 10 John. R. 114;
3 Watts, 39; 2 S. & R. 197; 1 Pet. R. 170.
9. But in the case of a married woman, it is to be observed,
that she cannot be an agent for another when her husband
expressly dissents, particularly when he may be rendered liable
for her acts. Persons who have clearly no understanding, as
idiots and lunatics cannot be agents for others. Story on Ag. §7.
10. There is another class who, though possessing
understanding, are incapable of acting as agents for others;
these are persons whose duties and characters are incompatible
with their obligations to the principal. For example, a person
cannot act as agent in buying for another, goods belonging to
himself. Paley on Ag. by Lloyd, 33 to 38; 2 Ves. Jr. 317. 11. An
agent has rights which he can enforce, and is, liable to
obligations which he must perform. These will be briefly
considered:
1. The rights to which agents are entitled, arise from
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obligations due to them by their principals, or by third persons.
12 - 1. Their rights against their principals are, 1., to
receive a just compensation for their services, when faithfully
performed, in execution of a lawful agency, unless such services,
are entirely gratuitous, or the agreement between the parties
repels such a claim; this compensation, usually called a
commission, is regulated either by particulaar agreement, or by
the usage of trade, or the presumed intention of the parties. 8
Bing. 65; 1 Caines, 349; 2 Caines, 357.
2. To be reimbursed all their just advances, expenses and
disbursemnts made in the course of their agency, on account of,
or for the benefit of their principal; 2 Liverm. on Ag. 11-23;
Story on Ag. §335; Story on Bailm. §196; Smith on Mer. Law, 56;
6 East, 392; and also to be paid interest upon such advances,
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 have been stipulated for, or due to the agent. 7
Wend. 315; 3 Binn. 295; 3 Caines, 226; 3 Camp. 467; 15 East,
223.
13. Besides the personal remedies which an agent has to enfored
his claims against his principal for his commissions and,
advancements, he has a lien upon the property of the principal in
his hand. See Lien, and Story on Ag. §351 to 390.
14. - 2. The rights of agents against third penons arise,
either on contracts made between such third persons and them, or
in consequence of torts committed by the latter. 1. The rights of
agents against third persons on contracts, are, 1st, when the
contract is in writing and made expressly with the agent, and
imports to be a contract personally with him, although he may be
known to act as an agent; as, for example, when a promissory
note is given to the agent as such, for the benefit of his
principal, and the promise is to pay the money to the agent, oe
nomine. Story on Ag. 393, 394; 8 Mass. 103; see 6 S.& R. 420;
1 Lev. 235; 3 Camp. 320; 5 B.& A. 27. 2d. When the agent is the
only known or ostensible pincipal, and therefore, is in
contemplation of law, the real contracting party. Story on Ag.
§226, 270, 399. As, if an agent sell goods of his principal in
his own name, as if he were the owner, he is entitled to sue the
buyer in his own name; although his prncipal may also sue. 12
Wend. 413; 5 M.& S. 833. And on the other hand, if he so buy, he
may enforce the contract by action. 3d. When, by the usage of
trade, the agent is authorized to act as owner, or as a principal
contracting party, although his character as agent is known, he
may enforce his contract by action. For example, an auctioner,
who sells the goods of another may maintain an action for the
price, because he has a possession coupled with an interest in
the goods, and it is a general rule, that whenever an agent,
though known as such, has a special property in the
subject-matter of the contract, and not a bare -custody, or when
he has acquired an interest, or has a lien upon it, he may sue
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upon the contract. 2 Esp. R. 493; 1 H. Bl. 81, 84; 6 Wheat.
665; 3 Chit. Com. Law, 10; 3 B. & A. 276. But this right to
bring an action by agents is subordinate to the rights of the
principal, who may, unless in particular cases, where the agent
has a lien, or some other vested right, bring a suit himself, and
suspend or extinguish the right of the agent. 7 Taunt. 237, 243;
2 Wash. C. C. R. 283. 2. Agents are entitled to actions against
third persons for torts committed against them in the course of
their agency. 1st. They may maintain actions, of trespass or
trover against third persons for any torts or injuries affecting
their possession of the goods which they hold as agents. Story on
Ag. §414; 13 East, 135; 9 B. & Cressw. 208; 1 Hen. Bl. 81. 2d.
When an agent has been induced by the fraud of a third person to
sell or buy goods for his principal, and he has sustained loss,
he may maintain an action against such third person for such
wrongful act, deceit, or fraud. Story on Ag. §415.
15 - §2. Agents are liable for their acts, 1, to their
principals; and 2, to third person.
16. - 1. The liabilities of agents to their principals arise
from a violation of their duties and obligations to the
principal, by exceeding their authority, by misconduct, or by any
negligence or omission, or act by which the principal sustains a
loss. 3 B. & Adol. 415; 12 Pick. 328. Agents may become liable
for damages and loss under a special contract, contrary to the
general usages of trade. They may also become responsible when
charging a del credere commission. Story on Ag. §234.
17. - 2. Agents become liable to third persons; 1st, on their
contract; 1, when the agent, undertakes to do an act for
another, and does not possess a sufficient authority from the
principal, and that is unknown to the other party, he will be
considered as having acted for himself as a principal. 3 B. 9
Adol. 114. 2. When the agent does not disclose his agency, he
will be considered as a principal; 2 Ep. R. 667; 15 East, 62;
12 Ves. 352; 16 Martin's R. 530; and, in the case of agents or
factors, acting for merchants in a foreign country, they will be
considered liable whether they disclose their principal or not,
this being the usage of the trade; Paley on Ag. by Lloyd, 248,
373; 1 B.& P. 368; but this presumption may be rebutted by
proof of a contrary agreement. 3. The agent will be liable when
he expressly, or by implication, incurs a personal
responsibility. Story on Ag. §156-159. 4. When the agent makes a
contract as such, and there is no other responsible as principal,
to whom resort can be had; as, if a man sign a note as "guardian
of AB," an infant; in that case neither the infant nor his
property will be liable, and the agent alone will be responsible.
5 Mass. 299; 6 Mass., 58. 2d. Agents become liable to third
persons in regard to torts or wrongs done by them in the course
of their agency. A distinction has been made, in relation to
third persons, between acts of misfeasance and non-feasance: an
agent is, liable for the former, under certain circumstances, but
not for the latter; he being responsible for his non-feasance
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only to his principal. Story on Ag. §309, 310. An agent is liable
for misfeasance as to third persons, when, intentionally or
ignorantly, he commits a wrong, although authorized by his
principal, because no one can lawfully authorize another to
commit a wrong upon the rights or property of another. 1 Wils. R.
328; 1 B. & P. 410. 3d. An agent is liable to refund money,
when payment to him is void ab initio, so that, the money was
never received for the use of his principal, and he is
consequently not accountable to the latter for it, if he has not
actually paid it over at the time he receives notice of the take.
2 Cowp. 565; 10 Mod. 233; M.& S. 344. But unless "caught with
the money in his possession," the agent is not responsible. 2
Moore, 5; 8 Taunt. 136; 9 Bing. 878; 7 B.& C. 111; 1 Cowp.
69; 4 Taunt. 198. This last rule is, however, subject to this
qualification, that the money shall have been lawfully received
by the agent; for if, in receiving it, the agent was a
wrongdoer, he will not be exempted from liability by payment to
his principal. 1 Campb. 396; 8 Bing. 424; 1 T. R. 62; 2 Campb.
122; 1 Selw. N. P. 90, n.; 12 M. & W. 688; 6 A.& Ell. N. S.
280; 1 Taunt. 359; 3 Esp. 153.
See Diplomatic dgent.
AGENT AND PATIENT. This phrase is used to indicate the state of
a person who is required to do a thing, and is at the same time
the person to wbom it is done; as, when a man is indebted to
another, and he appoints him his executor, the latter is required
to pay the debt in his capacity of executor, and entitled to
receive it in his own right, he is then agent and patient. Termes
de la ley.
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.
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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 con-
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quered, 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
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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.
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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
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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.
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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,
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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.
ALIBI, in evidence. This is a Latin word which signifies,
elsewhere.
2. When a person, charged with a crime, proves (se eadem die
fuisse alibi,) that he was, at the time alleged, in a different
place from that in which it was committed, he is said to prove an
alibi, the effect of which is to lay a founation for the
necessary inference, that he could not have committed it. See
Bract. fo. 140, lib. 3, cap. 20, De Corona.
3. This proof is usually made out by the testimony of
witnesses, but it is presumed it might be made out by writings;
as if the party could prove by a record properly authenticated,
that on the day or at the time in question, he was in another
place.
4. It must be admitted that mere alibi evidence lies under a
great and general prejudice, and ought to be heard with un-common
caution; but if it appear, to be founded in truth, it is the
best negative evidence that can be offered; it is really
positive evidence, which in the nature of things necessarily
implies a negative; and in many cases it is the only evidence
which an innocent man can offer.
ALIEN, persons. One born out of the jurisdiction of the United
States, who has not since been naturalized uuder their
constitution and laws. To this there are some exceptions, as this
children of the ministers of the United States in foreign courts.
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See Citizen, Inhabitant.
2. Aliens are subject to disabilities, have rights, and are
bound to perform duties, which will be briefly considered. 1.
Disabilities. An alien cannot in general acquire title to real
estate by the descent, or by other mere operation of law; and if
he purchase land, he may be divested of the fee, upon an inquest
of office found. To this general rule there are statutory
exceptions in some of the states; in Pennsylvania, Ohio,
Louisiana, New Jersey, Rev. Laws, 604, and Michigan, Rev. St.
266, s. 26, the disability has been removed; in North Carolina,
(but see Mart. R. 48; 3 Dev. R. 138; 2 Hayw. 104, 108; 3
Murph. 194; 4 Dev. 247; Vermont and Virginia, by constitutional
provision; and in Alabama, 3 Stew R. 60; Connecticut, act of
1824, Stat. tit. Foreigners, 251; Indiana, Rev. Code, a. 3, act
of January 25, 1842; Illinois, Kentucky, 1 Litt. 399; 6 Mont.
266 Maine, Rev. St,. tit. 7, c. 93, s. 5 Maryland, act of 1825,
ch. 66; 2 Wheat. 259; and Missouri, Rev. Code, 1825, p. 66, by
statutory provision it is partly so.
3. An alien, even after being naturalized, is ineligible to the
office of president of the United States; and in some states, as
in New York, to that of govenor; he cannot be a member of
congress, till the expiration of seven years after his
naturalization. An alien can exercise no political rights
whatever; he cannot therefore vote at any political election,
fill any office, or serve as a juror. 6 John. R. 332.
4. - 2. An alien has a right to acquire personal estate, make
and enforce contracts in relation to the same - he is protected
from injuries, and wrongs, to his person and property, his
relative rights and character; he may sue and be sued.
5. - 3. He owes a temporary local allegiance, and his property
is liable to taxation. Aliens are either alien friends or alien
enemies. It is only alien friends wbo have the rights above
enumerated; alien enemies are incapable, during the existence of
war to sue, and may be ordered out of the covntry. See generally,
2 Kent. Com. 43 to 63; 1 Vin. Ab. 157; 13 Vin. ab. 414; Bac.
Ab. h.t.; 1 Saund. 8, n.2; Wheat. Dig. h.t.; Bouv. Inst.
Index, h.t.
ALIENAGE. The condition or state of alien.
ALIENATE, aliene, alien. This is a generic term applicable to
the various methods of transfering property from one person to
another. Lord Coke, says, (1 Inst. 118 b,) alien cometh of the
verb alienate, that is, alienum facere vel ex nostro dominio in
alienum trawferre sive rem aliquam in dominium alterius
transferre. These methods vary, according to the nature of the
property to be conveyed and the particular objects the conveyance
is designed to accomplish. It has been held, that under a
prohibition to alienate, long leases are comprehended. 2 Dow's
Rep. 210.
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ALIENATION, estates. Alienation is an act whereby one man
transfers the property and possession of lands, tenements, or
other things, to another. It is commonly applied to lands or
tenements, as to alien (that is, to convey) land in fee, in
mortmain. Termes de la ley. See Co. Litt. 118 b; Cruise Dig.
tit. 32, c. 1, §1-8.
2. Alienations may be made by deed; by matter of record; and
by devise.
3. Alienations by deed may be made by original or primary
conveyances, which are those by means of which the benefit or
estate is created or first arises; by derivative or secondary
conveyances, by which the benefit or estate originally created,
is enlarged, restrained, transferred, or extinguished. These are
conveyances by the common law. To these may be added some
conveyances which derive their force and operation from the
statute of uses. The original conveyances are the following: 1.
Feoffment; 2. Gift; 3. Grant; 4. Lease; 6. Exchange; 6.
Partition. The derivative are, 7. Release; 8. Confirmation; 9.
Surrender; 10. Assignment; 11. Defeasance. Those deriving their
force from the statute of uses, are, 12. Covenants to stand
seised to uses; 13. Bargains and sales; 14. Lease and release;
15. Deeds to lend or declare the uses of other more direct
conveyances; 16. Deeds of revocation of uses. 2 Bl. Com. ch. 20.
Vide Conveyance; Deed. Alienations by matter of record may be,
1. By private acts of the legislature; 2. By grants, as by
patents of lands; 3. By fines; 4. By common recovery.
Alienations may also be made by devise (q.v.)
ALIENATION, med. jur. The term alienation or mental alienation
is a generic expression to express the different kinds of
aberrations of the human understandiug. Dict. des Science Med. h.
t.; 1 Beck's Med. Jur. 535.
ALIENATION OFFICE, Engligh law. An office to which all writs of
covenants and entries are carried for the recovery of fines
levied thereon. See Alienate.
TO ALIENE, contracts. See Alienate.
ALIENEE. One to whom an alienation is made.
ALIEXI JURIS. Words applied to persons who are subject to the
authority of another. An infant who is under the authority of
his father or guardian, and a wife under the power of her
husband, are said to be alieni juris. Vide sui juris.
ALIENOR. He who makes a grant or alienation.
ALIMENTS. In the Roman and French law this word signifies the
food and other things necessary to the support of life, as
clothing and the like. The same name is given to the money
allowed for aliments. Dig. 50, 16, 43.
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2. By the common law, parents and children reciprocally owe
each other aliments or maintenance. (q. v.) Vide 1 Bl. Com. 447;
Merl. Rep. h. t.; Dig. 25, 3, 5. In the common law, the word
alimony (q.v.) is used. Vide Allowance to a Prisoner.
ALIMONY. The maintenance or support which a husband is bound to
give to his wife upon separation from her; or the support which
either father or mother is bound to give to his or her children,
though this is more usually called maintenance.
2. The causes for granting alimony to the wife are, 1,
desertion, (q. v.) or cruelty of the husband; (q. v.) 4 Desaus.
R. 79,; 1 M'Cord's Ch. R. 205; 4 Rand. R. 662; 2 J. J; Marsh.
R. 324.; 1 Edw. R. 62; and 2, divorce. 4 Litt. R. 252; 1 Edw.
R. 382; 2 Paige, R. 62; 2 Binn. R. 202; 3 Yeates, R. 50; S.&
R. 248; 9 S.& R. 191; 3 John. Ch. R. 519; 6 John. Ch. 91.
3. In Louisiana by alimony is meant the nourishment, lodging
and support of the person who claims it. It includes education
when the person to whom alimoiay is due is a minor. Civil Code of
L. 246.
4. Alimony is granted in proporion to the wants of the person
requiring it, and the circumstances of those who are to pay it.
By the common law, parents and children owe each other alimony. 1
Bl. Com. 447; 2 Com. Dig. 498;. 3 Ves. 358; 4 Vin. Ab. 175;
Ayl. Parerg. 58; Dane's Ab. Index. h.t.; Dig. 34, 1. 6.
5. Alimony is allowed to the wife, pendente lite, almost as a
matter of course whether she be plaintiff or defendant, for the
obvious reason that she has generally no other means of living. 1
Clarke's R. 151. But there are special cases where it will not be
allowed, as when the wife, pending the progress of the suit, went
to her father's, who agreed with the husband to support her for
services. 1 Clarke's R. 460. See Shelf. on Mar. and Div. 586; 2
Toull. n. 612.
ALITER, otherwise. This term is frequently used to point out a
difference between two decisions; as, a point of law has been
decided in a particular way, in such a case, aliter in another
case.
ALIUNDE. From another place; evidence given aliunde, as, when
a will contains an ambiguity, in some cases, in order to
ascertain the meaning of the testator, evidence aliunde will be
received.
ALL FOURS. This is a metaphorical expression, to signify that a
case agrees in all its circumstances with another case; it goes
as it were upon its four legs, as an animal does.
ALLEGATA. A word which the emperors formerly signed at the
bottom of their rescripts and constitutions; under other
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instrumets they usually wrote nata or testate. Ency. Lond.
ALLEGATA AND PROBATA. The allegations made by a party to a
suit, and the proof adduced in their support. It is a general
rule of evidence that the allegata and probata must correspond;
that is, the proof must at least be sufficiently extensive to
cover all the allegations of the party. Greenl. Ev. §51; 3 R. s.
636.
ALLEGATION, English ecclesiastical law. According to the
practice of the prerogative court, the facts intended to be
relied on in support of the contested suit are set forth in the
plea, which is termed an allegation; this is submitted to the
inspection of the counsel of the adverse party, and, if it appear
to them objectionable in form or substance, they oppose the
admission of it. If the opposition goes to the substance of the
allegation, and is held to be well founded, the court rejects it;
by which mode of proceeding the suit is terminated without, going
into any proof of the facts. 1 Phil. 1, n.; 1 Eccl. Rep. ll, n.
S. C. See 1 Brown's Civ. Law, 472, 3, n.
ALLEGATION, common law. The assertion, declaration or statement
of a party of what he can prove.
ALLEGATI6N, civil law. The citation or reference to a voucher
to support a proposition. Dict. de jurisp.; Encyclopedie, mot
Allegation; 1 Brown's Civ. Law, 473, n.
ALLEGATION OF FACULTIES When a suit is instituted in the
English ecclesiastical courts, in order to obtain alimony, before
it is allowed, an alIegation must be made on the part of the
wife, stating the property of the husband. This allegation is
called an allegation of faculties. Shelf. on Mar. and Div. 587.
ALLEGIANCE. The tie which binds the citizen to the government,
in return for the protection which the government affords him.
2. It is natural, acquired, or local. Natural allegiance is
such as is due from all men born within the United States;
acquired allegiance is that which is due by a naturalized
citizen. It has never been decided whether a citizen can, by
expatriation, divest himself absolutely of that character. 2
Cranch, 64; 1 Peters' C. C. Rep. 159; 7 Wheat. R. 283; 9 Mass.
R. 461. Infants cannot assume allegiance, (4 Bin. 49) although
they enlist in the army of the United States. 5 Bin. 429.
3. It seems, however, that he cannot renounce his allegiance to
the United States without the permission of the government, to be
declared by law. But for commercial purposes he may acquire the
rights of a citizen of another country, and the place of his
domicil determines the character of a party as to trade. 1 Kent,
Com. 71; Com. Rep. 677; 2 Kent, Com. 42.
4. Local allegiance is that which is due from an alien, while
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resident in the United States, for the protection which the
government affords him. 1 Bl. Com. 366, 372; Com. Dig. h.t;
Dane's Ab. Index, h. t.; 1 East, P.C. 49 to 57.
ALLIANCE, relationship. The union or connexion of two persons
or families by marraiage, which is also called affinity. This is
derived from the Latin preposition ad and ligare, to bind. Vide
Inst 1, 10, 6; Dig 38, 10, 4, 3; and Affinity.
ALLIANCE, international law. A contract, treaty, or league
between two sovereigns or states, made to insure their safety and
common defence.
2. Alliances made for warlike purposes are divided in general
into defensive and offensive; in the former the nation only
engages to defend her ally in case he be attacked; in the latter
she unites with him for the purpose of making an attack, or
jointly waging the war against another nation. Some alliances are
both offensive and defensive; and there seldom is an offensive
alliance which is not also defensive. Vattel, B. 3, c. 6, §79; 2
Dall. 15.
ALLISION, maritime law. The running of one vessel against
another. It is distiguished from collision in this, that the
latter means the running of two vessels against each other; this
latter term is frequently used for allision.
ALLOCATION, Eng. law. An allowance upon account in the
Exchequer; or rather, placing or adding to a thing. Eucy. Lond.
ALLOCATIONE FACIENDA. Eng. law. A writ commanding that an
allowance be made to an accountant, for such moneys as he has
lawfully expended in his office. It is directed to the lord
treasurer and barons of the exchequer.
ALLOCATUR, practice. The allowance of a writ; e. g. when a
writ of habeeas corpus is prayed for, the judge directs it to be
done, by writing the word allowed and signing his name; this is
called the allocator. In the English courts this word is used to
indicate the master or prothonotary's allowance of a sum referred
for his consideration, whether touching costs, damages, or matter
of account. Lee's Dict. h, t.
ALLODIUM estates. Signifies an absolute estate of inheritance,
in coutradistinction to a feud.
2. In this country the title to land is essentially allodial,
and every tenant in fee simple has an absolute and perfect title,
yet in technical language his estate is called an estate in fee
simple, and the tenure free and common socage. 3 Kent, Com. 390;
Cruise, Prel. Dis. c. 1, §13; 2 Bl. Com. 45.
For the etymology of this word, vide 3 Kent Com. 398 note; 2
Bouv. Inst. n. 1692.
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ALLONGE, French law. When a bill of exchange, or other paper,
is too small to receive the endorsements which are to be made on
it, another piece of paper is added to it, and bears the name of
allonge. Pard. n. 343; Story on P. N. §121, 151; Story on
Bills, 204. See Rider.
ALLOTMENT. Distribution by lot; partition. Merl. Rep. h. t.
TO ALLOW, practice. To approve; to grant; as to allow a writ
of error, is to approve of it, to grant it. Vide Allocatur. To
allow an amount is to admit or approve of it.
ALLOWANCE TO A PRISONER. By the laws of, it is believed, all
the states, when a poor debtor is in arrest in a civil suit, the
plaintiff is compelled to pay an allowance regulated by law, for
his maintenance and support, and in default of such payment at
the time required, the prisoner is discharged. Notice must be
given to the plaintiff before the defendant can be discharged.
ALLOY, or ALLAY. An inferior metal, used with gold. and silver
in making coin or public money. Originally, it was one of the
allowances known by the name of remedy for errors, in the weight
and purity of coins. The practice of making such allowances
continued in all European mints after the reasns, upon which they
were originally founded, had, in a great measure, ceased. In the
imperfection of the art of coining, the mixture of the metals
used, and the striking of the coins, could not be effected with,
perfect accuracy. There would be some variety in the mixture of
metals made at different times, although intended to be in the
same proportions, and in different pieces of coin, although
struck by the same process and from the same die. But the art of
coining metals has now so nearly attained perfection, that such
allowances have become, if not altogether, in a great measure at
least, unnecessary. The laws of the United States make no
allowance for deficiencies of weight. See Report of the Secretary
of State of the United States, to the Senate of the U. S., Feb.
22, 1821, pp. 63, 64.
2. The act of Congress of 2d of April, 1792, sect. 12, directs
that the standard for all gold coins of the United States, shall
be eleven parts fine to one part of alloy; and sect. 13, that
the standard for all silver coins of the United States, shall be
one thousand four hundred and eighty-five parts fine, to one
hundred and seventy-nine parts alloy. 1 Story's L. U. S. 20. By
the act of Congress, 18th Feb. 1831, §8, it is provided, that the
stadard for both gold and silver coim of the United States, shall
be such, that of one thousand parts by weight, nine hundred shall
be of pure metal, and one hundred of alloy; and the alloy of the
silver coins shall be of copper, and the alloy of gold coins
shall be of copper and silver, provided, that the silver do not
exceed one-half of the whole alloy. See also, Smith's Wealth of
Nations, vol. i., pp. 49, 50.
ALLUVION. The insensible increase of the earth on a shore or
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bank of a river by the force of the, water, as by a current or by
waves. It is a part of the definition that the addition, should
be so gradual that no one can judge how much is added at each
moment of time. Just. Inst. lib. 2, tit. 1, §20; 3 Barn. &
Cress. 91; Code Civil Annote No. 556. The proprietor of the bank
increased by alluvion is entitled to the addition. Alluvion
differs from avulsion in this: that the latter is sudden and
perceptible. See avulsion. See 3 Mass. 352; Coop. Justin. 458;
Lord Raym. 77; 2 Bl. Com. 262, and note by Chitty; 1 Swift's
Dig. 111; Coop. Just. lib. 2, t. 1; Angell on Water Courses,
219; 3 Mass. R. 352; 1 Gill & Johns. R. 249; Schultes on Aq.
Rights, 116; 2 Amer. Law Journ. 282, 293; Angell on Tide
Waters, 213; Inst. 2, 1, 20; Dig. 41, 1, 7; Dig. 39, 2, 9;
Dig. 6, 1, 23; Dig. 1, 41, 1, 5; 1 Bouv. Inst. pars 1, c. 1
art. 1, §4, s. 4, p. 74.
ALLY, international law. A power which has entered into an
alliance with another power. A citizen or subject of one of the
powers in alliance, is sometimes called an ally; for example,
the rule which renders it unlawful for a citizen of the United
States to trade or carry on commerce with an enemy, also
precludes an ally from similar intercourse. 4 Rob. Rep. 251; 6
Rob. Rep. 406; Dane's Ab, Index, h. t.; 2 Dall. 15.
ALMANAC. A table or calendar, in which are set down the
revolutions of the seasons, the rising and setting of the sun,
the phases of the moon, the most remarkable conjunctions,
positions and phenomena of the heavenly bodies, the months of the
year, the days of the month and week, and a variety of other
matter.
2. The courts will take judicial notice of the almanac; for
example, whether a certain day of the month was on a Sunday or
not. Vin. Ab. h. t.; 6 Mod. 41; Cro. Eliz. 227, pl. 12; 12
Vin. Ab. Evidence (A, b, 4.) In dating instrments, some sects,
the Quakers, for example, instead of writing January, February,
March, &c., use the terms, First month, Second month, Third
month, &c., and these are equally valid in such writings. Vide 1
Smith's Laws of Pennsylvania, 217.
ALLODARII, Eng. law, Book of Domesday. Such tenants, wbo have
as large an estate as a subject can have. 1 Inst. 1; Bac. Ab
Tenure, A.
ALMS. In its most extensive sense, this comprehends every
species of relief bestowed upon the poor, and, therefore,
including all charities. In a more, limited sense, it signifies
what is given by public authority for the relief of the poor.
Shelford on Mortmain, 802, note (x); 1 Dougl. Election Cas. 370;
2 Id. 107; Heywood on Elections, 263.
ALTA PRODITIO, Eng. law. High treason.
ALTARAGE, eccl. law. Offerings made on the altar; all profits
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which accrue to the priest by means of the altar. Ayl. Par. 61;
2 Cro. 516.
TO ALTER. To change. Alterations are made either in the
contract itself, or in the instrument which is evidence of it.
The contract may at any time be altered with the consent of the
parties, and the alteration may be either in writing or not in
writing.
2. It is a general rule that the terms of a contract under
seal, cannot be changed by a parol agreement. Cooke, 500; 3
Blackf. R. 353; 4 Bibb. 1. But it has been decided that an
alteration of a contract by specialty, made by parol, makes it
all parol. 2 Watts, 451; 1 Wash. R. 170; 4 Cowen, 564; 3 Harr.
& John. 438; 9 Pick. 298; 1 East, R. 619; but see 3 S.& R.
579.
3. When the contract is, in writing, but not under seal, it may
be varied by parol, and the whole will make but one agreement. 9
Cowen, 115; 5.N. H. Rep. 99; 6 Harr. & John, 38; 18 John. 420;
1 John. Cas. 22; 5 Cowen, 606; Pet. C. C. R. 221; 1 Fairf.
414.
4. When the contract is evidenced by a specialty, and it is
altered by parol, the whole will be considered as a parol
agreement. 2 Watt 451; 9 Pick. 298. For alteration of
instruments see Erasure; Interlineation. See, generally, 7
Greenl. 76, 121, 394; 15 John. 200; 2 Penna. R. 454.
ALTERATION. An act done upon an instrument in writing by a
party entitled under it, without the consent of the other party,
by which its meaning or language is changed; it imports some
fraud or design on the part of him who made it. This differs from
spoliation, which is the mutilation of the instrument by the act
of a stranger.
2. When an alteration has a tendency to mislead, by so changing
the character of the instrument, it renders it void; but if the
change has not such tendency, it will not be considered an
alteration. 1 Greenl. Ev. 566.
3. A spoliation, on the contrary, will not affect the legal
character of the instrument, so long as the original writing
remains legible; and, if it be a deed, any trace of the seal
remains. 1 Greenl. Ev. § 566. See Spoliation.
ALTERNAT. The name of a usage among diplomatists by which the
ranl and places of different powers, who have the same rights and
pretensions to precedence, are changed from time to time, either
in a certain regular order, or one determined by lot. In drawing
up treaties and conventions, for example, it is the usage of
certain powers to alternate, both in the preamble and the
signatures, so that each power occupies, in the copy intended to
be delivered to it, the first place. Wheat. Intern. Law, pt. 2,
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c. 3, § 4..
ALTERNATIVE. The one or the other of two things. In contracts a
party has frequently the choice to perform one of several things,
as, if he is bound to pay one hundred dollars, or to deliver a
horse, he has the alternative. Vide Election; Obligation;
Alternative.
ALTIUS NON TOLLENDI, civil law. The name of a servitude due by
the owner of a house, by which he is restrained from building
beyond a certain height. Dig. 8, 2, 4, and 1, 12, 17, 25.
ALTIUS TOLLENDI, civil law. The name of a servitude which
consists in the right, to him who is entitled to it, to build his
house as high as he may think proper. In general, however, every
one enjoys this privilege, unless he, is restrained by home
contrary title.
ALTO ET BASSO. High and low. This phrase is applied to an
agreement made between two contending parties to submit all
matters in dispute, alto et basso, to arbitration. Cowel.
ALTUM MARE. The high sea. (q. v.)
ALUMNUS, civil law. A child which one has nursed; a foster
child. Dig. 40, 2, 14.
AMALPHITAN CODE. The name given to a collection of sea-laws,
complied about the end of the eleventh century, by the people of
Amalphi. It consists of the laws on maritime subjects which were,
or had been, in force in counries bordering on the Mediterranean;
and, on account of its being collected into one regular system,
it was for a long time received as authority in those countries.
1 Azun. Mar. Law, 376.
AMANUENSIS. Oe who write another dictates. About the beginning
of the sixth century,, the tabellions (q.v.) were known by this
name. 1 Sav. Dr. Rom. Moy. Age, n. 16.
AMBASSADOR, interaational law. A public minister sent abroad by
some sovereign state or prince, with a legal commission and
authority to transact business on behalf of his country with the
government to which he is sent. He is a minister of the highest
rank, and represents the person of his sovereign.
2. The United States have always been represented by ministers
plenipotentiary, never having sent a person of the rald of an,
ambassador in the diplomatic sense. 1 Kent's Com. 39, n.
3. Ambassadors, when acknowledged as such, are exempted,
absolutely from all allegiance, and from all responsibility to
the laws. If, however, they should be so regardless of their
duty, and of the object of their privilege, as to insult or
openly to attack the laws of the government, their functions may
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be suspended by a refusal to treat with them, or application can
be made to their own sovereign for their recall, or they may be
dismissed, and required to depart within a reasonable time. By
fiction of law, an ambassador is considered as if he were out of
the territory of the foreign power; and it is an implied
agreement among nations, that the ambassador, while he resides in
the foreign state, shall be considered as a member of his own
country, and the government he represents has exclusive
cognizance of his conduct, and control of his person. The
attendants of the ambassador are attached to his person, and the
effects in his use are under his protection and privilege, and,
generally, equally exempt from foreign jurisdiction.
4. Ambassadors are ordinary or extraordinary. The former
designation is exclusively applied to those sent on permanent
missions; the latter, to those employed on particular or
extraordinary occasions, or residing at a foreign court for an
indeterminate period. Vattel, Droit des Gens, 1. 4, c. 6,
§§70-79.
5. The act of dtigress of April 30th, 1790, s. 25, makes void
any writ or process sued forth or prosecuted against any
ambassador authorized and received by the president of the United
States, or any domestic servant of such ambassador; and the 25th
section of the same act, punishes any person who shall sue forth
or proseeute such writ or process, and all attorneys - and
soliciters prosecuting or soliciting in such case, and all
officers executing such writ or process, with an imprisonment not
exceeding three years, and a fine at the discretion of the court.
The act provides that citizens or inhabitants of the United
States who were indebted when they went into the service of an
ambassador, shall not be protected as to such debt; and it
requires also that the names of such servants shall be registered
in the office of the secretary of state. The 16th section imposes
the like punishment on any person offering violence to the person
of an ambassador or other minister. P Vide 1 Kent, Com. 14, 38,
182; Rutherf. Inst. b. 2, c. 9; Vatt. b. 4, c. 8, s. 113; 2
Wash. C. C. R. 435; Ayl. Pand. 245; 1 Bl. Com. 253; Bac. Ab.
h. t.; 2 Vin. Ab. 286; Grot. lib. 2, c. 8, 1, 3; 1 Whart. Dig.
382; 2 Id. 314; Dig. l. 50, t. 7; Code I. 10, t. 63, l. 4;
Bouv. Inst. Index, h. t.
6. The British statute 7 Ann, cap. 12; is similar in its
provisions; it extends to the family and servants of an
ambassador, as well when they are the natives of the country in
which the ambassador resides, as when they are foreigners whom he
brings with him. (3 Burr. 1776-7) To constitute a domestic
servant within the meaning of the statute, it is not necessary
that the servant should lodge, at night in the house of the
ambassador, but it is necessary to show the nature of the service
he renders and the actual performance of it. 3 Burr. 1731; Cases
Temp. Hardw. 5. He must, in fact, prove that he is bona fide the
ambassador's servant. A land waiter at the custom house is not
such, nor entitled to the privilege of the statute. 1 Burr. 401.
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A trader is not entitled to the protection of the statute. 3
Burr. 1731; Cases Temp. Hardw. 5. A person in debt cannot be
taken into an ambassador's service in order to protect him. 3
Burr. 1677.
AMBIDEXTER. It is intended by this Latin word, to designate one
who plays on both sides; in a legal sense it is taken for a
juror or embraceor who takes money from the parties for giving
his verdict. This is seldom or never done in the United States.
AMBIGUITY, contracts, construction. When au expression has been
used in an instrument of writing which may be understood in more
than one sense, it is said there is an ambiguity,
2. There are two sorts of amiguities of words, ambiguitas
latens and ambiguitas patens.
3. The first occurs when the deed or instrument is sufficiently
certain and free from ambiguity, but the ambiguity is produced by
something extrinsic, or some collateral matter out of the
instrument; for example, if a man devise property to his cousin
A B, and he has two cousins of that name, in such case parol
evidence will be received to explain the ambiguity.
4. The second or patent ambiguity occurs when a clause in a
deed, will, or other instrument, is so defectively expressed,
that a court of law, which has to put a construction on the
instrument, is unable to collect the intention of the party. In
such case, evidence of the declaration of the party cannot be
submitted to explain his intention, and the clause will be void
for its uncertainty. In Pennsylvania, this rule is somewhat
qualified. 3 Binn. 587; 4 Binn. 482. Vide generally, Bac. Max.
Reg. 23; 1 Phu. Ev. 410 to 420; 3 Stark. Ev. 1021 ; I Com.
Dig. 575; Sudg. Vend. 113. The civil law on this subject will be
found in Dig. lib. 50, t. 17, 1. 67; lib. 45, t. 1, 1. 8; and
lib. 22, t. 1, 1. 4.
AMBULATORIA VOLUNTAS. A phrase used to designate that a man has
the power to alter his will or testament as long as he lives.
This form of phrase frequently occurs in writers on the civil
law; as ambulatoria res, ambulatoria actio, potestas, conditio,
&c. Calvini Lexic.
AMENABLE. Responsible; subject to answer in a court of justice
liable to punishment.
AMENDE HONORABLE, EngIish law. A penalty imposed upon a person
by way of disgrace or infamy, as a punishment for any offence, or
for the purpose of making reparation for any injury done to
another, as the walking into church in a white sheet, with a rope
about the neck, and a torch in the hand, and begging the pardon
of God, or the king, or any private individual, for some
delinquency.
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2. A punishment somewhat similar to this, and which bore the
same name, was common in France; it was abolished by the law of
the 25th of September, 1791. Merlin Rep. de Jur. h.'t.
3. For the form of a sentence of amende horrorable, see
D'Agaesseau, Oeuvres, 43 Plaidoyer, tom. 4, p. 246.
AMENDMENT, legislation. An alteration or change of something
proposed in a bill.
2. Either house of the legislature has a rigt to make
amendments; but, when so made, they must be sanctioned by the
other house before they can become a law. The senate has no power
to originate any money bills, (q. v,) but may propose and make
amendments to such as have passed the House of representatives.
Vide Congress; Senate.
3. The constitution of the United States, art. 5, and the
constitutions of some of the states, provide for their amendment.
The provisions contained in tho constitution of the United
States, are as follows: "Congress, whenever two-thirds of both
houses shall deem it necessary, shall propose amendments to this
constitution, or, on the application of the legislatures of
two-thirds of the several states, shall call a convention for
proposing amendments, which, in either case, shall be valid, to
all intents and purposes, as part of this constitution, when
ratified by the legislatures of three-fourths of the several
states, or by conventions in three-fourths thereof, as the one or
the other mode of ratification may be proposed by Congress:
Provided, that no amendment which may be made prior to the year
one thousand eight hundred and eight, shall, in any manner,
affect the first and fourth clauses in the ninth section of the
first article; and that no state, without its consent, shall be
deprived of its equal suffrage in the Senate."
AMMENDMENT, practice. The correction, by allowance of the
court, of an error committed in the progress of a cause.
2. Amendments at common law, independently of any statutory
provision on the subject, are in all cases in the discretion of
the court, for the furtherance of justice they may be made while
the proceedings are in paper, that is, until judgment is signed,
and during the term in which it is signed; for until the end of
the term the proceedings are considered in fieri, and
consequently subject to the control of the court; 2 Burr. 756;
3 Bl. Com. 407; 1 Salk. 47; 2 Salk. 666 ; 8 Salk. 31; Co.
Litt. 260; and even after judgment is signed, and up to the
latest period of the action, amendment is, in most cases,
allowable at the discretion of the court under certain statutes
passed for allowing amendments of the record; and in later times
the judges have been much more liberal than formerly, in the
exercise of this discretion. 3 McLean, 379; 1 Branch, 437; 9
Ala. 647. They may, however, be made after the term, although
formerly the rule was otherwise; Co. Litt. 260, a; 3 Bl. Com.
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407; and even after error brought, where there has been a
verdict in a civil or criminal case. 2 Serg. & R. 432, 3. A
remittitur damna may be allowed after error; 2 Dall. 184; 1
Yeates, 186; Addis, 115, 116; and this, although error be
brought on the ground of the excess of damages remitted. 2 Serg.
& R. 221. But the application must be made for the remittitur in
the court below, as the court of error must take the record as
they find it. 1 Serg. & R. 49. So, the death of the defendant may
be suggested after errer coram nobis. 1 Bin. 486; I Johns.
Cases, 29; Caines' Cases, 61. So by agreement of attormeys, the
record may be amended after error. 1 Bin. 75; 2 Binn. 169.
3. Amendments are, however, always Iimited by due consideration
of the rights of the opposite party; and, when by the amendment
he would be prejudiced or exposed to unreasonable delay, it is
not allowed. Vide Bac. Ab Com. Dig. h. t.; Viner's. Ab. h. t.;
2 Arch. Pr. 200; Grah. Pt. 524; Steph. Pl. 97; 2 Sell. Pr.
453; 3 Bl. Com. 406; Bouv. Inst. Index, h. t.
AMENDS. A satisfaction, given by a wrong doer to the party
injured for a wrong committed. 1 Lilly's Reg. 81.
2. By statute 24 Geo. II. c. 44, in England, and by similar
statutes in some of the United States, justices of the peace,
upon being notified of an intended suit against them, may tender
amends fore the wrong alleged or done by them in their official
character, and if found sufficient, the tender debars the action.
See Act of Penn. 21 March, 1772, §§1 and.2; Willes' Rep. 671, 2;
6 Bin. 83; 5 Serg. & R. 517, 299; 3 Id. 295; 4 Bin. 20.
AMERCEMENT, practice. A pecuniary penalty imposed upon a person
who is in misericordia; as, for example, when the defendant se
retaxit, or recessit in contemptum curioe. 8 Co. 58; Bar. Ab.
Fines and Amercements. By the common law, none can be amerced in
his absence, except for his default. Non licet aliquem in sua
absentia amerciare nisi per ejus defaltas. Fleta, lib. 2, cap.
65, §15.
2. Formerly, if the sheriff failed in obeying the writs, rules,
or orders of the court, he might be amerced; that is, a penalty
might be imposed upon bim; but this practice has been superseded
by attachment. In New Jersey and Ohio, the sheriff may, by
statutory provision, be amerced for making a return contrary to
the provision of the statute. Coxe, 136, 169; 6 Halst. 334; 3
Halst. 270, 271; 5 Halst. 319; 1 Green, 159, 341; 2 Green,
350; 2 South. 433; 1 Ham. 275; 2 Ham. 603; 6 Ham. 452;
Wright, 720.
AMERCIAMENT, AMERCEMENT, English law. A pecuniary punishment
arbitrarily imposed by some lord or count, in distinction from a
fine which is expressed according to the statute. Kitch. 78.
Amerciament royal, when the amerciament is made by the sheriff,
or any other officer of the king. 4 Bl. Com. 372.
AMI. A friend; or, as it is written in old works, amy. Vide
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Prochein amy.
AMICABLE ACTION, Pennsylvania practice. An action entered by
agreement of parties on the dockets of the courts; when entered,
such action is considered as if it, had been adversely commenced,
and the defendant had been regularly summoned. An amicable action
may be entered by attorney, independently of the provisions of
the act of 1866. 8 Er & R. 567.
AMICUS CURIAE, practice. A friend of the court. One, who as a
stander by, when a judge is doubtful or mistaken in a matter of
law, may inform the court. 2 Inst. 178; 2 Vin. Abr. 475; and
any one, as amicus curia, may make an application to the court in
favor of an infant, though he be no relation. 1 Ves. Sen. 313.
AMITA. A paternal aunt; the sister of one's father. Inst. 3,
6, 3.
AMNESTY, government. An act of oblivion of past offences,
granted by the government to those who have been guilty of any
neglect or crime, usually upon condition that they return to
their duty within a certain period.
2. An amnesty is either express or implied; it is express,
when so declared in direct terms; and it is implied, when a
treaty of peace is made between contending parties. Vide Vattel,
liv. 4, c. 2, §20, 21, 22; Encycl. Amer. h.t.
3. Amnesty and pardon, are very different. The former is an act
of the sove reign power, the object of which is to efface and to
cause to be forgotten, a crime or misdemeanor; the latter, is an
act of the same authority, which exempts the individual on whom
it is bestowed from the punishment the law inflicts for the crime
he has committed. 7 Pet. 160. Amnesty is the abolition and
forgetfulness of the offence; pardon is forgiveness. A pardon is
given to one who is certainly guilty, or has been convicted;
amnesty, to those who may have been so.
4. Their effects are also different. That of pardon, is the
remission of the whole or a part of the punishment awarded by the
law; the conviction remaining unaffected when only a partial
pardon is granted: an amnesty on the concrary, has the effect of
destroying the criminal act, so that it is as if it had not been
committed, as far as the public interests are concerned.
5. Their application also differs. Pardon is always given to
individuals, and properly only after judgment or conviction:
amnesty may be granted either before judgment or afterwards, and
it is in general given to whole classes of criminals or supposed
criminals, for the purpose of restoring tranquillity in the
state. But sometimes amnesties are limited, and certain classes
are excluded from their operation.
AMORTIZATION, contracts, English law. An alienation of lands or
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tenements in mortraain. 2 Stat. Ed. I.
2. The reduction of the property of lands or tenements to
mortmain.
AMORTISE, contracts. To alien lands in mortmain.
AMOTION. In corporations and companies, is the act of removing
an officer from his office; it differs from disfranchisement,
which is applicable to members, as such. Wille. on Corp. n. 708.
The power of amotion is incident to a corporation. 2 Str. 819; 1
Burr. 639.
2. In Rex v. Richardson, Lord Mansfield specified three sorts
of offences for which an officer might be discharged; first,
such as have no immediate relation to the office, but are in
themselves of so infamous a nature, as to render the offender
unfit to execute any public franchise; secondly, such as are
only against his oath, and the duty of his office as a
corporator, and amount to breaches of the tacit condition annexed
to his office; thirdly, the third offence is of a mixed nature;
as being an offence not only against the duty of his officer but
also a matter indictable at common law. 2 Binn. R. 448. And Lord
Mansfield considered the law as settled, that though a
corporation has express power of amotion, yet for the first sort
of offences there must be a previous indictment and conviction;
and that there was no authority since Bagg's Case, 11 Rep. 99,
which says; that the power of trial as well as of amotion, for
the second offense, is not incident to every corporation. He also
observed: "We think that from the reason of the thing, from the
nature of the corporation, and for the sake of order and good
government, this power is incident as much as the power of making
by-laws." Doug. 149.
See generally, Wilcock on Mun. Corp. 268; 6 Conn. Rep. 632; 6
Mass. R. 462; Ang. & Am. on Corpor. 236.
AMOTION, tort. An amotion of possession from an estate, is an
ouster which happens by a species of disseisin or turning out of
the legal propritor before his estate is determined. 3 Bl. Com.
198, 199. Amotion is also applied to personal chattels when they
are taken unlawfully out of the possession of the owner, or of
one who has a special property in them.
AMPLIATION, civil law. A deferring of judgment until the cause
is further examined. In this case, the judges pronounced the word
amplius, or by writing the letters N.L. for non liquet,
signifying that the cause was not clear. In practice, it is usual
in the courts when time is taken to form a judgment, to enter a
curia advisare vult; cur. adv. vult. (q. v.)
AMPLIATION, French law. Signifies the giving a duplicate of an
acquittance or other instrument, in order that it may be produced
in different places. The copies which notaries make out of acts
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passed before them, and which are delivered to the parties, are
also called ampliations. Dict. de Jur. h. t.
AMY or ami, a French word, signifying, friend. Prochein amy,
(q. v.) the next friend. Alien amy, a foreigner, the citizen or
subject of some friendly power or prince.
AN, JOUR, ET WASTE. See Year, day, and waste.
ANALOGY, comtruction. The similitude of relations which exist
between things compared.
2. To reason analogically, is to draw conclusions based on this
similitude of relations, on the resemblance, or the connexion
which is perceived between the objects compared. "It is this
guide," says Toollier, which leads the law lawgiver, like other
men, without his observing it. It is analogy which induces us,
with reason, to suppose that, following the example of the
Creator of the universe, the lawgiver has established general and
uniform laws, which it is unnecessary to repeat in all analogous
cases." Dr. Civ. Fr. liv. 3, t. 1, c. 1. Vide Ang. on Adv.
Enjoym. 30, 31; Hale's Com. Law, 141.
3. Analogy has been declared to be an argument or guide in
forming legal judgments, and is very commonly a ground of such
judgments. 7 Barn. & Cres. 168; 3 Bing. R. 265; 8 Bing R. 557,
563; 3 Atk. 313; 1 Eden's R. 212; 1 W. Bl. 151; 6 Ves. jr.
675, 676; 3 Swanst. R. 561; 1 Turn. & R. 103, 338; 1 R. & M.
352, 475, 477; 4 Burr. R. 1962; 2022, 2068; 4 T. R. 591; 4
Barn. & Cr. 855; 7 Dowl. & Ry. 251; Cas. t. Talb. 140; 3 P.
Wms. 391; 3 Bro. C. C. 639, n.
ANARCHY. The absence of all political government; by
extension, it signifies confusion in government.
ANATHEMA, eccl. law. A punishment by which a person is separate
from, the body of the church, and forbidden all intercourse with
the faithful: it differs from excommunication, which simply
forbids the person excommunicated, from going into the church and
communicating with the faithful. Gal. 1. 8, 9.
ANATOCISM, civil law. Usury, which consists in taking interest
on interest, or receiving compound interest. This is forbidden.
Code, lib. 4, t. 32, 1, 30; 1 Postlethwaite's Dict.
2. Courts of equity have considered contracts for compounding
interest illegal, and within the statute of usury. Cas. t.
Talbot, 40; et vide Com. Rep. 349; Mass. 247; 1 Ch. Cas. 129;
2 Ch. Cas. 35. And contra, 1 Vern. 190. But when the interest has
once accrued, and a balance has been settled between the parties,
they may lawfully agree to turn such interest into principal, so
as to carry interest in futuro. Com. on Usury, ch. 2, s. 14, p.
146 et eq.
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ANCESTOR, descents. One who has preceded another in a direct
line of descent; an ascendant. In the common law, the word is
understood as well of the immediate parents, as, of these that
are higher; as may appear by the statute 25 Ed. III. De natis
ultra mare, and so in the statute of 6 R. III. cap. 6, and by
many others. But the civilians relations in the ascending line,
up to the great grandfather's parents, and those above them, they
term, majores, which common lawyers aptly expound antecessors or
ancestors, for in the descendants of like degree they are called
posteriores. Cary's Litt.45. The term ancestor is applied to
natural persons. The words predecessors and successors, are used
in respect to the persons composing a body corporate. See 2 Bl.
Com. 209; Bac. Abr. h. t.; Ayl. Pand. 58.
ANCESTRAL. What relates to or has, been done by one's
ancestors; as homage ancestral, and the like.
ANCHOR. A measure containing ten gallons. Lex, Mereatoria.
ANCHORAGE, merc. law. A toll paid for every anchor cast from a
ship into a river, and sometimes a toll bearing this name is
paid, although there be no anchor cast. This toll is said to be
incident to almost every port. 1 Wm. Bl. 413; 2 Chit. Com. Law,
16.
ANCIENT. Something old, which by age alone has acquired some
force; as ancient lights, ancient writings.
ANCIENT DEMESNE, Eng. law. Those lands which either were
reserved to the crown at the original distribution of landed
property, or such as came to it afterwards, by forfeiture or
other means. 1. Sal. 57; hob. 88; 4 Inst. 264; 1 Bl. Com. 286;
Bac. Ab. h. t.; F. N. B. 14.
ANCIENT LIGHTS, estates. Windows which have been opened for
twenty years or more, and enjoyed without molestation by the
owner of the house. 5 Har. & John. 477; 12 Mass. R. 157,.220.
2. It is proposed to consider, 1. How the right of ancient
light is gained. 2, What amounts to interruption of an ancient
light. 3, The remedy for obstructing an ancient light.
3. - §1. How the right of opening or keeping a window open is
gained. 1. By grant. 2. By lapse of time. Formerly it was holden
that a party could not maintain an action for a nuisance to an
ancient light, unless he had gained a right to the window by
prescription. 1 Leon. 188; Cro. Eliz. 118. But the modern
doctrine is, that upon proof of an adverse enjoyment of light;
for twenty yers or upwards, unexplained, a jury may be directed
to presume a right by grant, or otherwise. 2 Saund. 176, a; 12
Mass. 159; 1 Esp. R. 148. See also 1 Bos. & Pull. 400.; 3 East,
299; Phil. Ev. 126; 11 East, 372; Esp. Dig. 636. But if the
window was opened during the seisin of a mere tenant for life, or
a tenaucy for years, and the owner in fee did not acquiesce in,
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or know of, the use of the light, he would not be bound. 11 East,
372; 3 Camp. 444; 4 Camp. 616. If the owner of a close builds a
house upon one half of it, with a window lighted from the other
half, he cannot obstruct lights on the premises granted by him;
and in such case no lapse of time necessary to confirm the
grantee's right to enjoy them. 1 Vent. 237, 289; 1 Lev. 122; 1
Keb. 553; Sid. 167, 227; L. Raym. 87; 6 Mod. 116; 1 Price,
27; 12 Mass. 159, Rep. 24; 2 Saund. 114, n. 4; Hamm. N. P.
202; Selw. N. P. 1090; Com. Dig. Action on the Case for a
Nuisance, A. Where a building has been used twenty years to one
purpose, (as a malt house,) and it is converted to another, (as a
dwelling-house,) it is entitled in its new state only to the same
degree of light which was necessary in its former state. 1 Campb.
322; and see 3 Campb. 80. It has been justly remarked, that the
English doctrine as to ancient lights can hardly be regarded as
applicable to narrow lots in the new and growing cities of this
country; for the effect of the rule would be greatly to impair
the value of vacant lots, or those having low buildings upon
them, in the neighborhood of other buildings more than twenty
years old. 3 Kent, Com. 446, n.
4. - §2. What amounts to an interruption of an ancient light.
Where a window has been completely blocked up for twenty years,
it loses its privilege. 3 Camp. 514. An abandonment of the right
by express agreement, or by acts from which an abandonment may be
inferred, will deprive the party having such ancient light of his
right to it. The building of a blank wall where the lights
formerly existed, would have that effect. 3 B. & Cr. 332. See Ad.
& Ell. 325.
5. - §3. Of the remedy for interrupting an ancient light. 1. An
action on the case will lie against a person who obstructs an
ancient light. 9 Co. 58; 2 Rolle's Abr. 140, 1. Nusans, G 10.
And see Bac. Ab. Actions on the Case, D; Carth. 454; Comb. 481;
6 Mod. 116.
6.- Total deprivation of light is not necesary to sustain this
action, and if the party cannot enjoy the light in so free and
ample a manner as he did before, he may sustain the action; but
there should be some sensible diminution of the light and air. 4.
Esp. R. 69. The building a wall which merely obstructs the right,
is not actionable. 9 Ca. 58, b; 1 Mod. 55.
7. - 3. Nor is the opening windows and destroying, the privacy
of the adjoining property; but such new window may be
immediately obstructed to prevent a right to it being acquired by
twenty years use. 3 Campb. 82.
8. - 5. When the right is clearly established, courts of equity
will grant an injunction to restrain a party from building so
near the plaintiff's house as to darken his windows. 2 Vern. 646;
2 Bro. C. C. 65; 16 Ves. 338; Eden on Inj. 268, 9; 1 Story on
Eq §926; 1 Smith's Chan. Pr. 593.; 4 Simm. 559; 2 Russ. R.
121. See Injunction; Plan.
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See generally on this subject, 1 Nels. Abr. 56, 7; 16 Vin.
Abr. 26; 1 Leigh's N. P. C. 6, s. 8, p. 558; 12 E. C. L. R.
218; 24 Id. 401; 21 Id. 373; 1 id. 161; 10 Id. 99; 28 Id.
143; 23 Am. Jur. 46 to 64; 3 Kent, Com. 446, 2d ed. 7 Wheat. R.
106; 19 Wend. R. 309; Math on Pres. 318 to 323; 2 Watts, 331;
9 Bing. 305; 1 Chit. Pr. 206, 208; 2 Bouv. Inst. n. 1619-23.
ANCIENT WRITINGS, evidence. Deeds, wills, and other writings
more than thirty years old, are considered ancient writings. They
may in general be read in evidence, without any other proof of
their execution than that they have been in the possession of
those claiming rights under them. Tr. per Pais, 370; 7 East, R.
279; 4 Esp. R. 1; 9 Ves. Jr. 5; 3 John. R. 292; 1 Esp. R.
275; 5 T. R. 259; 2 T. R. 466; 2 Day's R. 280. But in the case
of deeds, possession must have accompanied them. Plowd. 6, 7. See
Blath. Pres. 271, n. (2.)
ANCIENTLY, English law. A term for eldership or seniority used
in the statute of Ireland, 14 Hen. Vni.
ANCIENTS, English law. A term for gentlemen in the Inns of
Courts who are of a certain standing. In the Middle Temple, all
who have passed their readings are termed ancients. In Gray's
Inn, the ancients are the oldest barristers; besides which the
society consists of benchers, barristers and students. In the
Inas of Chancery, it conts of ancients, and students or clerks.
ANCILLARY. That which is subordinate on, or is. subordinate to,
some other decision. Encyc. Lond. 1
ANDROLEPSY. The taking by one nation of the citizens or
subjects of another, in order to compel the latter to do justice
to the former. Wolff. §1164; Molloy, de Jure lar. 26.
ANGEL. An ancient English coin of the value of ten shillings
sterling. Jac. L. D. h. t.
ANIENS. In some of our law books signifies void, of no force.
F. N. B. 214.
ANIMAL, property. A name given to every animated being endowed
with the power of voluntary motion. In law, it signifies all
animals ecept those of the him, in species.
2. Animals are distinguished into such as are domitae, and such
as are ferae naturae.
3. It is laid down, that in tame or domestic animals, such as
horse, kine, sheep, poultry, and the like, a man may have an
absolute property, because they coutiaue perpetually in his
possession and occupation, and will not stray from his house and
person unless by accident or fraudulent enticement, in either of
which cases the owner does not lose his property. 2 Bl. Com. 390;
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2 Mod. 319. 1.
4. But in animals ferae naturae, a man can have no absolute
property; they belong to him only while they continue in his
keeping or actual possession; for if at any they regain their
natural liberty, his property instantly ceases, unless they have
animum revertendi, which is only to be known by their usual habit
of returning. 2 Bl. Com. 396; 3 Binn. 546; Bro. Ab. Propertie,
37; Com. Dig. Biens, F; 7 Co. 17 b; 1 Ch. Pr. 87; Inst. 2, 1,
15. See also 3 Caines' Rep. 175; Coop. Justin. 457, 458; 7
Johns. Rep. 16; Bro. Ab. Detinue, 44.
5. The owner of a mischievous animal, known to him to be so, is
responsible, when he permits him to go at large, for the damages
he may do. 2 Esp. Cas. 482; 4 Campb. 198; 1 Starkie's Cas. 285;
1 Holt, 617; 2 Str.1264; Lord Raym. 110; B. N. P. 77; 1 B. &
A. 620; 2 C. M.& R. 496; 5 C.& P. 1; S. C. 24 E. C. L. R. 187.
This principle agrees with the civil law. Domat, Lois Civ. liv.
2, t. 8, s. 2. And any person may justify the killing of such
ferocious animals. 9 Johns. 233; 10. Johns. 365; 13 Johns. 312.
The owner, of such an animal may be indicted for a common
nuisance. 1 Russ. Ch. Cr. Law, 643; Burn's Just., Nuisance, 1.
6. In Louisiana, the owner of an animal is answerable for the
damage he may cause; but if the animal be lost, or has strayed
more than a day, he may discharge himself from this
responsibility, by abandoning him to the person who has sustained
the injury; except where the master turns loose a dangerous or
noxious animal; for then he must pay all the harm done, without
being allowed to make the abndonment. Civ. Code, art. 2301. See
Bouv. Inst. Index, h. t.
ANIMANLS OF A BASE NATURE. Those which, though they may be
reclaimed, are not Such that at common law a larceny may be
committed of them, by reason of the baseness of their nature.
Some animals, which are now usually tamed, come within this
class; as dogs and cats; and others which, though wild by
nature, and oftener reclaimed by art and industry, clearly fall
within the same rule; as, bears, foxes, apes, monkeys, ferrets,
and the like. 3 Inst. 109,; 1 Hale, P. C. 511, 512; 1 Hawk. P.
C. 33, s. 36; 4 Bl. Com. 236; 2 East, P. C. 614. See 1 Saund.
Rep. 84, note 2.
ANIMUS. The intent; the mind with which a thing is done, as
animus. cancellandi, the intention of cancelling; animus
farandi, the intention of stealing; animus maiaendi; the
intention of remaining; auimus morandi, the intention or purpose
of delaying.
2. Whether the act of a man, when in appearance criminal, be so
or not, depends upon the intention with which it was done. Vide
Intention.
ANIMUS CANCELLANDI. An intention to destroy or cancel. The
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least tearing of a will by a testator, animus cancellandi,
renders it invalid. See Cancellation.
ANIMUS FURANDI, crim. law. The intention to steal. In order to
comstitute larceny, (q. v.) the thief must take the property
anino furandi; but this, is expressed in the definition of
larceny by the word felonious. 3 Inst. 107; Hale, 503; 4. Bl.
Com. 229. Vide 2 Russ. on Cr. 96; 2 Tyler's R. 272. When the
taking of property is lawful, although it may afterwards be
converted animo furandi to the taker's use, it is not larceny. 3
Inst. 108; Bac. Ab. Felony, C; 14 Johns. R. 294; Ry. & Mood.
C. C. 160; Id. 137; Prin. of Pen. Law, c. 22, §3, p. 279, 281.
ANIMUS MANENDI. The intention of remaining. To acquire a
domicil, the party must have his abode in one place, with the
intention of remaining there; for without such intention no new
domicil can be gained, and the old will not be lost. See
Domicile.
ANIMUS RECIPIENDI. The intention of receiving. A man will
acquire no title to a thing unless he possesses it with an
intention of receiving it for himself; as, if a thing be bailed
to a man, he acquires no title.
ANIMUS REVERTENDI. The intention of returning. A man retains
his domicil, if he leaves it animo revertendi. 3 Rawle, R. 312;
1 Ashm. R. 126; Fost. 97; 4 Bl. Com. 225; 2 Russ. on Cr. 18;
Pop. 42,. 62; 4 Co. 40.
ANIMUS TESTANDI. An intention to make a testament or will. This
is required to make a valid will; for whatever form may have
been adopted, if there was no animus testandi, there can be no
will. An idiot for example, can make no will, because he has no
intention.
ANN, Scotch law. Half a year's stipend over and above what is
owing for the incumbency due to a minister's relict, or child, or
next of kin, after his decease. Wishaw. Also, an abbreviation of
annus, year; also of annates. In the old law French writers, ann
or rather an, signifies a year. Co. Dig h. v.
ANNATES, ecc. law. First fruits paid out of spiritual benefices
to the pope, being, the value of one year's profit.
ANNEXATION, property. The union of one thing to another.
2. In the law relating to fixtures, (q. v.) annexation is
actual or constructive. By actual annexation is understood every
movement by which a chattel can be joined or united to the
freehold. By constructive annexation is understood the union of
such things as have been holden parcel of the realty, but which
are not actually annexed, fixed, or fastened to the freehold;
for example, deeds, or chattels, which relate to the title of the
inheritance. Shep. Touch. 469. Vide Anios & Fer. on Fixtures, 2.
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3. This term has been applied to the union of one country, to
another; as Texas was annexed to the United States by the joint
reolution of Congress of larch 1, 1845., See Texas.
ANNI NUBILES. The age at which a girl becomes by law fit for
marriage, which is twelve years.
ANNIENTED. From the French aneantir; abrogated or made null.
Litt. sect. 741.
ANNO DOMINI, in the year of our Lord, abbreviated, A. D. The
computation of time from the incarnation of our Saviour which is
used as the date of all public deeds in the United tites and
Christian countries, on which account it is called the "vulgar
vera."
ANNONAE CIVILES, civil law. A species of rent issuing out of
certain lands, which were paid to Rome monasteries.
ANNOTATION, civil law. The designation of a place of
deportation. Dig. 32, 1, 3 or the summoning of an, absentee. Dig.
lib. 5.
2. In another sense, annotations were the answers of the prince
to questions put to him by private persons respecting some
doubtful point of law. See Rescript.
ANNUAL PENSION, Scotch law. Annual rent. A yearly profit due to
a creditor by way of interest for a given sum of money. Right of
annual rent, the original right of burdening land with payment
yearly for the payment of money.
ANNUITY, contracts. An anuity is a, yearly sum of money granted
by one party to another in fee for life or years, charging the
person of the grantor only. Co. Litt. 144; 1 Lilly's Reg. 89; 2
Bl. Com. 40; 5 M. R. 312; Lumley on Annuities. 1; 2 Inst. 293;
Davies' Rep. 14, 15.
2. In a less technical sense, however, when the money is
chargeable on land and on the person, it is generally called an
annuity. Doet. and Stud Dial. 2, 230; Roll. Ab. 226. See 10
Watts, 127.
3. An anuuity is different from a rent charge, with which it is
frequently confounded, in this; a rent charge is a burden
imposed upon and issuing out of lands, whereas an annuity is
chargeable only upon the person of the grantee. Bac. Abr.
Annuity, A. See, for many, regulations in England relating to
annuities, the Stat,. 17 Geo. III. c. 26.
3. An annuity may be created by contract, or by will. To
enforce the payment of an annuity, the common law gives a writ of
annuity which may be brought by the grantee or his heirs, or
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their grantees, against the grantor and his heirs. The action of
debt cannot be maintained at the common law, or by the Stat. of 8
Anne, c. 14, for the arrears of an annuity devised to A, payable
out of lands during the life of B, to whom the lands are devised
for life, B paying the annuity out of it, so long as the freehold
estates continues. 4 M. & S. 113; 3 Brod. & Bing. 30; 6 Moore,
336. It has been ruled also, that if an action of annuity be
brought, and the annuity determines pending the suit, the writ
faileth forever because no such action is maintainable for
arrearages only, but for the annuity and the arrearages. Co.
Litt. 285, a.
4. The first payment of an annuity is to be made at the time
appointed in the instrument creating it. In cases where testator
directs the annuity to be paid at the end of the first quarter,
or other period before the expiration of the first year after his
death, it is then due; but in fact it is not payable by the
executor till the end of the year. 3 Mad. Ch. R. 167. When the
time is not appointed, as frequently happens in will, the
following distinction is presumed to exist. If the bequest be
merely in the form of an annuity as a gift to a man of "an
annuity of one hnndred dollars for life" the first payment will
be due at the end of the year after the testator's death. But if
the disposition be of a sum of money, and the interest to be
given as an annuity to the same man for life, the first payment
will not accrue before the expiration of the second year after
ihe testator's death. This distinction, though stated from the
bench, does not appear to have been sanctioned by express
decision. 7 Ves. 96, 97.
5. The Civil Code of Louisiana makes the following provisions
in relation to annuities, namely: The contract of annuity is that
by which one party delivers to another a sum of money, and agrees
not to reclaim it, so long as the receiver pays the rent agreed
upon. Art. 2764.
6. This annuity mav be perpetual or for life. Art. 2765.
7. The amount of the annuity for life can in no case exceed the
double of the conventional interest. The amount of the perpetual
annuity cannot exceed the double of the conventional interest.
Art. 2766.
8. Constituted annuity is essentially redeemable. Art. 2767.
9. The debtor of a constituted annuity may be compelled to
redeem the same: 1, If he ceases fulfilling his obligations
during three years: 2, If he does not give the lender the
securities promised by the contract. Art. 2768.
10. If the debtor should fail, or be in a state of insolvency,
the capital of the constituted annuity becomes exigible, but only
up to the amount at wich it is rated, according to the order of
contribution amongst the creditors. Art. 2769.
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11. A similar rule to that contained in the last article has
been adopted in England. See stat. 6 Geo. IV., c. 16, s. 54 and
108; note to Ex parte James, 5 Ves. 708; l Sup. to Ves. Jr.
431; note to Franks v. Cooper, 4 Ves. 763; 1 Supp. to Ves. Jr.
308. The debtor, continues the Code, may be compelled by his
security to redeem the annuity within the time which has been
fixed in the contract, if any time has been fixed, or after ten
years, if no mention be made of the time in the act. Art. 2770.
12. The interest of the sums lent, and the arrears of
constituted and life annuity, cannot bear interest but from the
day a judicial demand of the same has been made by the creditor,
and when the interest is due for at least one whole year. The
parties may only agree, that the same shall not be redeemed prior
to a time which cannot exceed ten years, or without having warned
the creditor a time before, which they shall limit. Art. 2771.
See generally, Vin. Abr. Annuity; Bac. Abr. Annuity and Rent;
Com. Dig. Annuity; 8 Com. Dig. 909; Doct. Plac. 84; 1 Rop. on
Leg. 588; Diet. de Jurisp. aux mots Rentes viageres, Tontine. 1
Harr. Dig. h. t.
ANNUM DIEM ET VASTUM, English law. The title which the king
acquires in land, when a party, who held not of the king, is
attainted of felony. He acquires the power not only to take the
profits for a full year, but to waste and demolish houses, and to
extirpate woods and trees.
2. This is but a chattel interest.
ANONYMOUS. Without name. This word is applied to such.books,
letters or papers, which are published without the author's name.
No man is bound to publish his name in connexion with a book or
paper he has publisbed; but if the publication is libellous, he
is equally responsible as if his name were published.
ANSWER, pleading in equity. A defence in writing made by a
defendant, to the charges contained in a bill or information,
filed by the plaintiff against him in a court of equity. The word
answer involves a double sense; it is one thing when it simply
replies to a question, another when it meets a charge; the
answer in equity includes both senses, and may be divided into an
examination and a defence. In that part which consists of an
examination, a direct and full answer, or reply, must in general
be given to every question asked. In that part which consists of
a defence, the defendant must state his, case distinctly; but is
not required to give information respecting the proofs that are
to maintain it. Gresl . Eq. Ev. 19.
2. As a defendant is called by a bill or information to make a
discovery of the several cbarges it contains, he must do so,
unless he is protected either by a demurrer a plea or disclaimer.
It may be laid down as an invariable rule, that whatever part of
a bill or information is not covered by one of these, must be
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defended by answer. Redesd. Tr. Ch. PI. 244.
3. In form, it usually begins, 1st, with its title, specifying
which of the defendants it is the answer of, and the names of the
plaintiffs in the cause in which it is filed as answer; 2d, it
reserves to the defendant all the advantages which might be taken
by exception to the bill; 3d, the substance of the answer,
according to the defendant's knowledge, remembrance, information
and belief, then follows, in which the matter of the bill, with
the interrogatories founded thereon, are answered, one after the
other, together with such additional matter as the defendant
thinks necessary to bring forward in his, defence, either for the
purpose of qualifying, or ad-ding to, the case made by the bill,
or to state a new case on his own behalf; 4th, this is followed
by a general traverse or denial of all unlawful combinations
charged in the bill, and of all other matters therein contained
5th, the answer is always upon oath or affirmation, except in the
case of a corporation, in which case it is under the corporate
seal.
4. In substance, the answer ought to contain, 1st, a statement
of facts and not arguments 2d, a confession and avoidance, or
traverse and denial of the material parts of the bill 3d, its
language ought to be direct and without evasion. Vide generally
as to answers, Redes. Tr. Ch. PI. 244 to 254; Coop. Pl. Eq. 312
to 327; Beames PI. Eq. 34 et seq.; Bouv. Inst. Index, h. t. For
an historical account of this instrument, see 2 Bro. Civ. Law,
371, n. and Barton's Hist. Treatise of a Suit in Equity.
ANSWER, practice. The declaration of a fact by a witness after
a question has been put asking for it.
2. If a witness unexpectedly state facts against the interest
of the party calling him, other witnesses may be called by the
same party, to disprove those facts. But the party calling a
witness cannot discredit him, by calling witnesses to prove his
bad character for truth and veracity, or by proving that he has
made statements out of court contrary to what he has sworn on the
trial; B. N. P.; for the production of the witness is virtually
an assertion by the party producing him, that he is credible.
ANTECEDENT. Something that goes before. In the construction of
laws, agreements, and the like, reference is always to be made to
the last antecedent; ad proximun antecedens fiat relatio. But
not only the antecedents but the subsequent clauses of the
instrument must be considered: Ex antecedentibus et
consequentibus fit optima interpretatio.
ANTE LITEM MOTAM. Before suit brought, before controversy
moved.
ANTEDATE. To, put a date to an instrument of a time before the
time it was written. Vide Date.
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ANTENATI. Born before. This term is applied to those who were
born or resided within the United States before or at the time of
the declaration of independence. These had all the rights of
citizens. 2 Kent, Com. 51, et seq.
ANTE-NUPTIAL. What takes place before marriage; as, an
ante-nuptial agreement, which is an agreement made between a man
and a woman in contemplation of marriage. Vide Settlement.
ANTHETARIUS, obsolete See Anti-thetarius.
ANTI-MANlFESTO. The declaration of the reasons which one of the
belligerents publishes, to show that the war as to him is
defensive. Wolff, §1187. See Manifesto.
ANTlCIPATION. The act of doing or taking a thing before its
proper time.
2. In deeds of trust there is frequently a provision that the
income of the estate shall be paid by the trustee as it shall
accrue, and not by way of anticipation. A payment made contrary
to such provision would not be considered as a discharge of the
trustee.
ANTICHRESIS, contracts. A word used in the civil law to denote
the contract by which a creditor acquires the right of reaping
the fruit or other revenues of the immovables given to him in
pledge, on condition of deducting, annually, their proceeds from
the interest, if any is due to him, and afterwards from the
principal of his debt. Louis. Code, art. 3143 Dict. de Juris.
Antichrese, Mortgage; Code Civ. 2085. Dig. 13, 7, 7 ; 4, 24, 1
Code, 8, 28, 1.
ANTINOMY. A term used in the civil law to signify the real or
apparent contradiction between two laws or two decisions. Merl.
Repert. h. t. Vide Conflict of Laws.
ANTIQUA CUSTOMA, Eng. law. A duty or imposition which was
collected on wool, wool-felts, and leather, was so called. This
custom was called nova customa until the 22 Edw. I., when the
king, without parliament, set a new imposition of 40s. a sack,
and then, for the first time, the nova customa went by the name
of antiqua customa. Bac. Ab. Smuggling &c. B.
ANTIQUA STATUTA. In England the statutes are divided into new
and ancient statutes; since the time of memory; those from the
time 1 R. I. to E. III., are called antiqua statuta - those made
since, nova statuta.
ANTITHETARIUS, old English law. The name given to a man who
endeavors to discharge himself of the crime of which he is
accused, by retorting the charge on the accuser. He differs from
an approver (q, v.) in this, that the latter does not charge the
accuser, but others. Jacob's Law Dict.
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APARTMENTS. A part of a house occupied by a person, while the
rest is occupied by another, or others. 7 Mann. & Gr. 95 ; 6
Mod. 214 ; Woodf. L. & T. 178. See House.
APOSTACY, Eng. law. A total renunciation of the Christian
religion, and differs from heresy. (q. v.) This offence is
punished by the statute of 9 and 10 W. III. c. 32. Vide
Christianity.
APOSTLES. In the British courts of admiralty, when a party
appeals from a decision made against him, he prays apostles from
the judge, which are brief letters of dismission, stating the
case, and declaring that the record will be transmitted. 2
Brown's Civ. and Adm. Law, 438; Dig. 49. 6.
2. This term was used in the civil law. It is derived from
apostolos, a Greek word, which signifies one sent, because the
judge from whose sentence an appeal was made, sent to the
superior judge these letters of dismission, or apostles. Merl.
Rep. mot Apotres.
APPARATOR or APPARITOR, eccles. law. An officer or messenger
employed to serve the process of the spiritual courts in England.
APPARENT. That which is manifest what is proved. It is required
that all things upon which a court must pass, should be made to
appear, if matter in pays, under oath if matter of record, by the
record. It is a rule that those things which do not appear, are
to be considered as not existing de non apparentibus et non
existentibus eadem est ratio. Broom's Maxims, 20, What does not
appear, does not exist; quod non apparet, non est.
APPARLEMENT. Resemblance. It is said to be derived from
pareillement, French, in like manner. Cunn. Dict. h. t.
APPEAL, English crim. law. The accusation of a person, in a
legal form, for a crime committed by him; or, it is the lawful
declaration of another man's crime, before a competent judge, by
one who sets his name to the declaration, and undertakes to prove
it, upon the penalty which may ensue thereon. Vide Co. Litt. 123
b, 287 b; 6 Burr. R. 2643, 2793; 2 W. Bl. R. 713; 1 B. & A.
405. Appeals of murder, as well as of treason, felony, or other
offences, together with wager of battle, are abolished by stat.
59 Geo. M. c. 46.
APPEAL, practice. The act by which a party submits to the
decision of a superior court, a cause which has been tried in an
inferior tribunal. 1 S. & R. 78 Bin. 219; 3 Bin. 48.
2. The appeal generally annuls the judgment of the inferior
court, so far that no action can be taken upon it until after the
final decision of the cause. Its object is to review the whole
case, and to secure a just judgment upon the merits.
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3. An appeal differs from proceedings in error, under which the
errors committed in the proceedings are examined, and if any have
been committed the first judgment is reversed; because in the
appeal the whole case is exainined and tried as if it had not
been tried before. Vide Dane's Ab. h. t.; Serg. Const. Law
Index, h. t. and article Courts of the United States.
APPEARANCE, practice. Signifies the filing common or special
bail to the action.
2. The appearance, with all other subsequent pleadings supposed
to take placein court, should (in accordance with the ancient
practice) purport to be in term time. It is to be observed,
however, that though the proceedings are expressed as if
occurring in term time, yet, in fact, much of the business is now
done, in periods of vacation.
3. The appearance of the parties is no longer (as formerly) by
the actual presence in court, either by themselves or their
attorneys; but, it must be remembered, an appearance of this
kind is still supposed, and exists in contemplation of law. The
appearance is effected on the part of the defendant (when be is
not arrested) by making certain formal entries in the proper
office of the court, expressing his appearance; 5 Watts & Serg.
215; 1 Scam. R. 250; 2 Seam. R. 462; 6 Port. R. 352; 9 Port.
R. 272; 6 Miss. R. 50; 7 Miss. R. 411; 17 Verm. 531; 2 Pike,
R. 26; 6 Ala. R. 784; 3 Watts & Serg. 501; 8 Port. R. 442;
or, in case of arrest, it may be considered as effected by giving
bail to the action. On the part of the plaintiff no formality
expressive of appearance is observed.
4. In general, the appearance of either party may be in person
or by attorney, and, when by attorney, there is always supposed
to be a warrant of attorney executed to the attorney by his
client, authorizing such appearance.
5. But to this general rule there are various exceptions;
persons devoid of understanding, as idiots, and persons having
understanding, if they are by law deprived of a capacity to
appoint an attorney, as married women, must appear in person. The
appearance of such persons must purport, and is so entered on the
record, to be in person, whether in fact an attorney be employed
or not. See Tidd's Pr. 68, 75; 1 Arch. Pract. 22; 2 John. 192;
8 John. 418; 14 John. 417; 5 Pick. 413; Bouv. Inst. Index, h.
t.
6. There must be an appearance in person in the following
cases: 1st. An idiot can appear only in person, and as, a
plaintiff he may sue in person or by his next friend 2d. A
married woman, when sued without her hushand, should defend in
person 3 Wms. Saund. 209, b and when the cause of action accrued
before her marriage, and she is afterwards sued alone, she must
plead her coverture in person, and not by attorney. Co. Litt.
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125. 3d. When the party pleads to the jurisdiction, be must plead
in person. Summ.on Pl. 51; Merrif. Law of Att. 58. 4th. A plea
of misnomer must always be in person, unless it be by special
warrant of attorney. 1 Chit. PI. 398; Summ. on PI. 50; 3 Wms.
Saund. 209 b.
7. An infant cannot appoint an attorney; he must therefore
prosecute or appear by guardian, or prochein ami.
8. A lunatic, if of full age, may appear by. attorney; if,
under age, by guardian. 2 Wms. Saund. 335; Id. 332 (a) n. (4.)
9. When an appearance is lawfully entered by the defendant,
both parties are considered as being in court. lmp. Pr. 215. And
if the defendant pleads to issue, defects of process are cured
but not, if he demurs to the process, (I Lord Raym. 21,) or,
according to the practice of some courts, appears de bene esse,
or otherwise conditionally.
10. In criminal cases, the personal presence of the accused is
often necessary. It has been held, that if the record of a
conviction of a misdemeaner be removed by certiorari, the
personal presence of the defendant is necessary, in order to move
in arrest. of judgment: but, after a special verdict, it is not
necessary that the defendant should be personally present at the
argument of it. 2 Burr. 931 1 Bl. Rep. 209, S. C. So, the
defendant must appear personally
in court, when an order of bastardy is quashed and the reason is,
he must enter into a recognizance to abide the order of sessions
below. 1 Bl. Rep. 198.
So, in a case, when two justices of the peace, having confessed
an information for mishehaviour in the execution of their office,
and a motion was made to dispense with their personal appearance,
on their clerks undertaking in court to answer for their flues,
the court declared the rule to be, that although such a motion
was subject to the discretion of the court either to grant or
refuse it, in cases where it is clear that the punishment would
not be corporal, yet it ought to be denied in every case where it
is either probable or possible that the punishment would be
corporal; and therefore the motion was overruled in that case.
And Wilmot and Ashton, Justices, thought, that even where the
punishment would most probably be pecuniary only, yet in offences
of a very gross and public nature, the persons convicted should
appear in person, for the sake of example and prevention of the
like offences being committed by other persons; as the notoriety
of being called up to answer criminally for such offences, would
very much conduce to deter others from venturing to commit the
like. 3 Burr. 1786, 7.
APPEARANCE DAY. The day on which the parties are bound to
appear in court. This is regulated in the different states by
particular provisions.
APPELLANT, practice. He who makes an appeal from one
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jurisdiction to another.
APPELLATE JURISDICTION. The jurisdiction which a superior court
has to bear appeals of causes which have been tried in inferior
courts. It differs from original jurisdiction, which is the power
to entertain suits instituted in the first in stance. Vide
Jurisdiction; Original jurisdiction.
APPELLEE, practice. The party in a cause against whom an appeal
has been taken.
APPELLOR. A criminal who accuses his accomplices; one who
eballenges a jury.
APPENDANT. An incorporeal inheritance belonging to another
inheritance.
2. By the word appendant in a deed, nothing can be conveyed
which is itself