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the United States generally is fine and imprisonment. In England it is left to the feeble hands of the ecclesiastical courts to punish this offence. Adultery in one of the married persons is good cause for obtaining a divorce by the innocent partner. See 1 Pick. 136; 8 Pick. 433; 9 Mass. 492; 14 Pick. 518; 7 Greenl. 57; 8 Greenl. 75; 7 Conn. 267; 10 Conn. 372; 6 Verm. 311; 2 Fairf. 391 ; 4 S. & R. 449; 5 Rand. 634; 6 Rand. 627; 8 S. & R. 159; 2 Ycates, 278, 466; 4 N. H. Rep. 501; 5 Day, 149; 2 N.& M. 167.
ADVANCEMENT, is that which is given by a father to his child or presumptive heir, by anticipation of what he might inherit. 17 Mass. R. 358; 16 Mass. R. 200; 4 S. & R. 333; 11 John. R. 91 ; Wright, R. 339. The advancement which will exclude a child must be made by the father, and not by any other, not even the mother. 2 P. Wms. 356. There is, generally, in the statute laws of the several states, provisions relative to real and personal estates, similar to that which exists in the English statute of distribution, concerning an advancement to a child. If any child of the intestate has been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of such child which would be due from the real and personal estate, if no such advancement had been made, then such child and his descendants, are excluded from any share in the real or personal estate of the intestate. But if the advancement be not equal, then such child, and in case of his death, his descendants, are entitled to receive, from the real and personal estate, sufficient to make up the deficiency, and no more. The advancement is either express or implied. As to what is an implied advancement see 2 Fonb. Eq. 121; 1 Supp. to
Ves. Jr. 84; 2 lb. 57; 1 Vern. by Raithby, 88, 108,216; 5 Ves. 421; Bac. Ab. h. t.; 4 Kent, Com. 173.
A debt due by a child to his father differs from an advancement. In case of a debt, the money due may be recovered by action for the use of the estate, whether any other property be left by the deceased or not, whereas, an advancement merely bars the child's right to receive any part of his father's estate, unless he brings into hotch pot the property advanced. 17 Mass. R. 93, 359. See, generally, 17 Mass. R. 81, 356; 4 Pick. R. 21; 4 Mass. R. 680; 8 Mass. R. 143; 10 Mass. R. 437; 5 Pick. R. 527; 7 Conn. R. 1; 6 Conn. R. 355; 5 Paige's R. 318; 6 Watts's R. 86, 254, 309; 2 Yerg. R. 135} 3 Yerg. R. 95; Bac. Ab. Trusts, D; Math, on Pres. 59; 5 Hayw. 137; 11 John. 91; 1 Swanst. 13; 1 Ch. Cas. 28; 3 Conn. 31; 15 Ves. 43, 50; U. S. Dig. h. t.
ADVANCES, contracts, are said to take place when a factor or agent pays to his principal a sum of money on the credit of goods belonging to the principal, which are placed, or are to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale. In such case the factor or agent has a lien to the amount of his claim. Cowp. R. 201; 2 Burr. R. 931; Liverm. on Ag. 38; Journ. of Law, 146. The agent or factor has a right not only to advances made to the owner of goods, but also for expenses and disbursements, made in the course of his agency, out of his own moneys, on account of, or for the benefit of his principal; such as incidental charges for warehouseroom, duties, freight, general average, salvage, repairs, journeys, and all other acts done to preserve the property of the principal and to enable the agent to accomplish the objects of the principal, are to be paid fully by the latter. Story on Bailm. § 1»6, 197; Story on Ag. § 335. The advances, expenses and disbursements of the agent must, however, have been made in good faith, without any default on his part. Liv. on Ag. 14 -16; Smith on Merc. L. 56; Paley on Ag. by Lloyd, 109; 6 East, R. 392. When the advances and disbursements have been properly made, the agent is entitled not only to the return of the money so advanced, but to interest upon such advances and disbursements, whenever from the nature of the business, or the usage of trade, or the particular agreement of the parties, it may be fairly presumed to be stipulated for, or due to the agent. 7 Wend. R. 315; 3 Binn. R. 295; 3 Caincs, R. 226; 1 H. Bl. 303; 3 Camp. R. 467; 15 East, R. 223. This just rule coincides with the civil law on this subject. Dig. 17,1,12, 9; Poth. Pand. lib. 17, t. 1, n. 74.
ADVENTITIOUS, adventitius, from advenio: what comes incidentally; as adventitia bona, goods that fall to a man otherwise than by inheritance; or adventitia dos, a dowry or portion given by some other friend beside the parent.
ADVENTURE, bill of, a writing signed by a merchant, to testify that the goods shipped on board a certain vessel are at the venture of another person, he himself being answerable only for the produce. Techn. Diet.
ADVERSE POSSESSION, title to lands, is the enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued, under an assertion of right on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67: 2 Serg. & Rawle, 527; 10 Watts, R. 289; when the possession has been adverse for twenty years, of which the jury are to judge from the circumstances, the law raises
the presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this presumption arises only when the user or occupation would otherwise have been unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; 8 Cowen, R. 589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.
ADVICE, comm. law, a letter containing information of any circumstances unknown to the person to whom it is written: when goods are forwarded by sea or land, the letter transmitted to inform the consignee of the fact, is termed advice of goods, or letter of advice. When one merchant draws upon another, he generally advises him of the fact. These letters are intended to give notice of the facts they contain.
ADVICE, practice, is the opinion given by counsel to their clients; this should never be done but upon mature deliberation to the best of the counsel's ability; and without regard to the fact that it will affect the client favourably or unfavourably.
ADVOCATE, in the civil 'and ecclesiastical law. 1. An officer who maintains or defends the rights of his client in the same manner as the counsellor does in the common law.—Lord Advocate, an officer of state in Scotland, appointed by the king, to advise about the making and executing the law, to prosecute capital crimes, &c.—College or faculty of advocates, a college consisting of 180 persons appointed to plead in all actions before the lords of sessions. —Church or ecclesiastical advocates, pleaders appointed by the church to maintain its rights.—2. A patron who has the advowson or presentation to a church. Techn. Diet.; Ayl. Per. 53; Dane Ab. ch. 31, $ 20.
ADVOCATION, in the Scotch law. A writing drawn up in the form of a petition, called a bill of advocation, by which a party in an action applies to the supreme court to advocate its cause and to call the action out of an inferior court to itself. Letters of advocation, are the decree or warrant of the supreme court or court of sessions, discharging the inferior tribunal from all further proceedings in the matter, and advocating the action to itself. This proceeding is similar to a certiorari (q. v.) issuing out of the supreme court for the removal of a cause from an inferior tribunal.
ADVOWSON, in ecclesiastical law, from advow, or advocare, a right of presentation to a church or benefice. He who possesses this right is called the patron or advocate; (q.v.) when there is no patron or he neglects to exercise his right within six months, it is called a lapse, i. e. a title given to the ordinary to collate to a church; when a presentation is made by one who has no right it is called a user- pation. Advowsons are of different kinds, as—Advowson appendant, when it depends upon a manor, &c. —Advowson in gross, when it belongs to a person and not to a manor. —Advowson presentative, where the patron presents to the bishop.—Advowson donative, where the king or patron puts the clerk into possession without presentation.—Advowson of the moiety of the church, where there are two several patrons and two incumbents in the same church.—A moiety of advowson, where two must join the presentation of one incumbent.—Advowson of religious houses, that which is vested in any person who founded such a house. Techn. Diet; 2B1. Com. 21. Mirehouseon Advowsons; Com. Dig. Advowson, Quare Impedit; Bac. Ab. Simony; Burn's Eccl. Law, h. t.; Cruise's Dig. Index, h. t.
AFFECTION, in contracts, the making over, pawning, or mortgaging a thing to assure the payment of
a sum of money, or the discharge of some other duty or service. Techn. Diet.
AFFEERERS, in the English law; those who upon oath settle and moderate fines in courts leet. Hawk. 1.2,ch. 112.
TO AFFERE, in the English law, signifies either " to affere an amercement,'* i. e. to mitigate the rigour of a fine; or "to afiere an account," that is to confirm it on oath in the exchequer.
AFFIANCE, in contracts, from ajfidarc or dare fidem, to give a pledge; a plighting of troth between a man and woman. Litt. s. 39; Pothier, Traite du Mariage, n. 24, defines it to be an agreement by which a man and a woman promise each other that they will marry together. This word is used by some authors as synonymous with marriage. Co. Litt. 34, a, note 2. See Dig. 23, 1, 1; Code, 5, 1, 4; Extrav. 4,1.
AFFIDARE. To plight one'a faith, or give fealty, i. e. fidelity by making oath, &c. Cunn. Diet. h. t.
AFFIDATIO DOMINORUM, Eng. law. An oath taken by a lord in parliament.
AFFIDAVIT, in practice: an oath or affirmation reduced to writing, Sworn or affirmed to before some officer who has authority to administer it. It differs from a deposition in this, that in the latter the opposite party has had an opportunity to crossexamine the witness, whereas an affidavit is always taken ex parte. Gresl. Eq. Ev. 413. Vide Harr. Dig. h. t. Affidavit to hold to bail, is in many cases required before the defendant can be arrested; such affidavit must be made by a person who is acquainted with the fact, whether he be plaintiff or not, and must state, 1st, an indebtedness from the defendant to the plaintiff; 2dly, show a distinct cause of action; 3dly, the whole must be clearly and certainly expressed. Sell. Pr. 104; 1 Chit. R. 165; S. C. 18 Com. Law R. 59, note; Id. 99.—An affidavit of defence, is made by a defendant or a person knowing the facts, in which must be stated a positive ground of defence on the merits. 1 Ashm. R.
4, 19, n. It has been decided that when a writ of summons has been served upon three defendants, and only one appears, a judgment for want of an affidavit of defence may be rendered against all. 8 Watts, R. 367. Vide Bac. Ab. h. t.
AFFINITY, is a connexion formed by marriage which places the husband in the same degree of nominal propinquity to the relations of the wife, as that in which she herself stands towards them, and gives to the wife the same reciprocal connexion with the relations of the husband. It is used in contradistinction to consanguinity, (q. v.) It is no real kindred. A person cannot, by legal succession, receive an inheritance from a relation by affinity; neither does it extend to the nearest relations of husband and wife, so as to create a mutual relation between them. The degrees of affinity are computed in the same way as those of consanguinity. See Pothier, Traite du Mariage, part 3, ch. 3, art. 2; and see 5 M. R. 296; Inst. 1, 10, 6; Dig. 38, 10, 4, 3; 1 Phillim. R. 210;
5. C. 1 Eng. Eccl. R. 72; article Marriage.
TO AFFIRM, practice. 1. To ratify or confirm a former law or judgment; as the supreme court affirmed the judgment of the court of common pleas. 2. To make an affirmation, or to testify under an affirmation.
AFFIRMANCE-DAY, GENERAL, in the English Court of Exchequer, is a day appointed by the judges of the common pleas, and barons of the exchequer, to be held a
few days after the beginning of every term for the general affirmance or reversal of judgments. 2 Tidd, 1091.
AFFIRMANT, practice, one who makes affirmation instead of making oath that the evidence which he is about to give shall be the truth, as if he had been, sworn. He is liable to all the pains and penalty of perjury if he shall be guilty of wilfully and maliciously violating his affirmation.
AFFIRMATION, practice, a solemn declaration and asseveration, which a witness makes before an officer competent to administer an oath in a like case, to tell the truth as if he had been sworn. In the United States, generally, all witnesses who declare themselves conscientiously scrupulous against taking a corporal oath, are permitted to make a solemn affirmation, and this in all cases, as well criminal as civil. For the violation of the truth in such case, the witness is subject to the punishment of perjury as if he bad been sworn.
AFFIRMATIVE. Averring a fact to be true; that which is opposed to negative, (q. v.) It is a general rule of evidence that the affirmative of the issue must be proved. Bull. N. P. 298; Peake, Ev. 2. But when the law requires a person to do an act, and the neglect of it will render him guilty and punishable, the negative must be proved, because every man is presumed to do his duty, and in that case they who affirm he did not, must prove it. B. N. P. 298; 1 Roll, R. 83; Comb. 57; 3 B. & P. 307; 1 Mass. R. 56.
AFFIRMATIVE PREGNANT, pleading. An affirmative allegation, implying some negative, in favour of the adverse party: for example, if to an action of assumpsit, which is barred by the act of limitations in six years, the defendant pleads that he did not undertake, &c. within ten years, a replication that he did undcrtake, &c, within ten years, would be an affirmative pregnant; since it would impliedly admit that the defendant had not promised within six years. As no proper issue could be tendered upon such plea, the plaintiff should, for that reason, demur to it. Gould, Pl. c. 6, § 29, 37; fiteph. PI. 381; Lawes, Civ. PI. 113; Bac. Ab. Pleas, N 6.
AFFRAY, criminal law, is the fighting of two or more persons in some public place to the terror of the people. To constitute this offence there must be, 1st, a fighting; 2d, the fighting must be between two or more persons; M, it must be in some public place; 4th, it must be to the terror of the people. It differs from a riot in not being premeditated; for if any persons meet together upon any lawful or innocent occasion, and happen on a sudden to engage in fighting, they are not guilty of a riot but an affray only; and in that case none are guilty except those actually engaged in it. Hawk. b. 1, c. 65, s. 3; 4 Bl. Com. 146; 1 Russell, 271.
AFORETHOUGHT, crim. law, premeditated, prepense; the length of time during which the accused has entertained the thought of committing the offence is not very material, provided in fact he has entertained such ht; he is thereby rendered criin a greater degree than if he had committed the offence without premeditation. Vide Malice Aforethought; 2 Chit. Cr. 785; 4 Bl. Com. 199; Fost. 132,291,292; Cro. Car. 131; Palm. 545; W. Jones, 198; 4 Dall. R. 146; 1 P. A. Bro. App. xviii.; Addis. R. 148; 1 Ashm. R. 289.
AGAINST THE FORM OF THE STATUTE.—See Contra formam stntuti.
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.
AGE, the time when the law allows persons to do acts, which, for want of years, they were prohibited from doing before. 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; and twenty-one years is full age for all private purposes, and they 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 till 45 inclusive, unless exempted for some particular reason.—As to females, at 12 they arrive at years of discretion and may consent to marriage; at 14 may choose a guardian; and 21, as in males, is full age, when they may exercise all the rights which are inherent to their sex. This is the law of England as far as applicable. There no one can be chosen member of parliament till he has attained 21 years; ordained a priest till he is 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. By the laws of France many provisions are made in respect to age, among which 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 premiere 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