A New Law Dictionary and Institute of the Whole Law

ADMIRALTY, COURT OF-continued. and 26 Vict. c. 24; and jurisdiction in Admiralty causes was conferred upon the County Court by the stat. 31 & 32 Vict. c. 71. The Court of Admiralty was thrown open to practitioners by the stat. 22 & 23 Vict. c. 6; but the modes of practice, together with the effects of a judgment in that Court, are of a peculiar nature, partaking largely of the rules of the civil law; thus an objection to the jurisdiction of the Court may be taken at any stage of the proceedings (The Mary Ann, 34 L. J. (Adm.) 73), and the party is not prejudiced in taking that objection by appearing, (The Eleanor, 32 L. J. (Adm.) 19). The judgments of the Court are chiefly in rem, and bind all the world as well as the parties to the action.

See titles COLLISION; SEAMEN; SAL-
VAGE; PRIZE; SHIPPING.

ADMISSIBILITY OF EVIDENCE. This phrase denotes the quality of matters adduced in evidence, according to which they are or not receivable, i.e., admissible as evidence,-a question for the judge or Court to determine. It is commonly opposed to the weight of the evidence once it has been admitted, the weight being for the jury or for the judge sitting as a jury.

See title EVIDENCE.

ADMISSION. This word denotes the ordinary's signification of his approval of the clerk presentee of a living; it sometimes includes both approval and institution. Co. Litt. 344 a.

See also title ATTORNEY.

ADMISSION OF DOCUMENTS. Under the C. L. P. Act, 1852, s. 117, either party may call on the other by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the costs of proving the document are visited on the party refusing (without just reason), no matter what shall be the result of the action.

See also title NOTICE TO ADMIT. ADMISSIONS. In the law of evidence these are either by word of mouth (Neale v. Jakle, 2 C. & K. 709), or by conduct (Pickard v. Sears, 6 A. & E. 469), or by the assumption of a particular office or character (Peacock v. Harris, 10 East, 104), or by writing under hand, unless stated to be "without prejudice" (Paddock v. Forester, 3 Scott, 734), or by deed; as to all which see title ESTOPPEL.

But the word "admissions" is more commonly used to denote the mutual concessions which the parties to an action or suit make in the course of their pleadings, and the effect of which is to narrow the area

ADMITTANCE: See title COPYHOLD.

ADOPTION. In French law, is permitted to persons of either sex, aged fifty years, and being at the least fifteen years older than the persons, whom they adopt; which latter persons being of full age, must be either, (1), persons to whom the adoptive parent has rendered assistance during minority and for six years at least without interruption; or, (2), persons to whom the adoptive parent is indebted for his rescue from fire, shipwreck, or battle. This adoption leaves intact the rights of the child in respect of his natural parents, being in fact the adoption of Roman law, in time of Justinian.

AD QUOD DAMNUM. A writ so called, which ought to have been issued before the King granted certain liberties, as a fair, market &c., which might happen to be prejudicial to others. The writ directs the sheriff to inquire what damage it might do for the King to grant such fair or market. It was also formerly in use for obtaining a right to alter or divert the course of an old road, or to make a new one (F. N. B. 221, et seq.; Les Termes de la Ley); but it is the opinion of the editor of Williams' Saunders' Rep. vol. ii. ed. of 1871, p. 484, n. (d), that this latter use of the writ has been virtually done away with.

AD TERMINUM QUI PRÆTERIIT. A writ of entry that lay for the lessor and his heirs when a lease had been made of lands or tenements for the term of life or years, and after the term was expired the lands were withheld from the lessor by the tenant or other person possessing the same. Cunningham, F. N. B. 201. This writ was abolished by the Act 3 & 4 Will. 4, c. 27, s. 36.

ADULTERATION. This phrase is commonly applied to the offence of mixing up with food or drink intended to be sold, other matters of an inferior quality, and generally of a more or less deleterious character. The principal statute upon the subject is the 35 & 36 Vict. c. 74, which incorporates the 23 & 24 Vict. c. 84, and also (The Pharmacy Act, 1868) 31 & 32 Vict. c. 121.

ADULTERY OR ADVOWTRY (Adulterium). The sin of incontinence by married persons. The crime of adultery is sometimes distinguished into single and double adultery. Single adultery is the crime of illicit intercourse between two persons one only of whom is married. Double adultery is the crime of illicit intercourse between two persons both of whom are married (Cowel). This offence is of a tortious and not of a criminal nature (Mordaunt v. Moncreiff, 1874). For adultery on the part of a wife, or for adultery combined with desertion or cruelty on the part of a husband the Court of Divorce will grant a dissolution of the marriage under the stat. 20 & 21 Vict. c. 87.

ADVANCEMENT. This is a well-known term, both in conveyancing and in equity law. In marriage settlements, a power of advancement is commonly given to the trustees, that is to say, a power in them to raise some portion (not as a rule to exceed one half part) of the capital moneys to which each child of the marriage is either actually or contingently entitled under the settlement for his or her advancement in the world; that is to say, for his or her apprenticeship in a profession or trade, or for his or her bringing out in society, or (if intended for the church) for his educacation at one of the universities of Oxford or Cambridge.

In Equity, the term has a similar meaning, but a somewhat different application. Thus, it being a rule of Courts of Equity, that where a person purchases an estate or stock, and takes the conveyance or assignment thereof in the name of a third person, such third person is intended to be, and is construed as being, a trustee only for the purchaser,-An exception to that rule is admitted in the case of such third person being a person for whom the purchaser was under an obligation to provide, and for whom he has not as yet made a provision, and the conveyance or assignment which is made in this latter case is taken to be for the benefit of the grantee or assignee in discharge of the obligation of the purchaser. The presumption of advancement is raised in favour of the following persons:

(1.) A legitimate child (Sidmouth v. Sidmouth, 2 Beav. 447); (2.) An illegitimate child (Beckford v. Beckford, Lofft. 290); (3.) A grandchild (father being dead) (Ebrand v. Dancer, Ch. Ca. 26); (4.) A wife (Drew v. Martin, 2 H. & M. 130);

(5.) A wife's nephew (Currant v. Jago, 1 Coll. Ch. Ca. 261); But the presumption has not hitherto been extended to the following cases :—

AD VENTREM INSPICIENDUM. writ which lies for the heir presumptive to an estate, to examine the woman who says she is with child, and who is suspected to feign being so, with the view of producing a supposititious heir to the estate. Cowel; Reg. Orig. 237.

ADVERSE CLAIM. Where the sheriff in levying an execution upon the goods of a debtor, finds that some third person claims the goods as his own, he may have an interpleader summons requiring the execution creditor and such third person to settle the right to the goods between them; so also, where the seller of goods attempts to stop them in transitu, and the buyer insists upon having the goods delivered to him, the wharfinger or other person in custody of the goods may have an interpleader summons requiring the two parties to litigate between themselves their adverse claims.

See title INTERPLEADER.

ADVERSE POSSESSION. The possession of the tenant for life under a settlement is consistent with the right of the remainderman; and such tenant may not alter the quality of his possession so as to make the same adverse to the remainderman (Nemo potest mutare causam possessionis suæ). On the other hand, the possession of a mortgagee is adverse to the title of the mortgagor; and precisely because it is such, it will mature after twenty years' duration and non-acknowledgment into an absolute and independent legal right.

See title LIMITATIONS, STATUTE OF.

ADVERSE WITNESS. This is defined to be a witness whose mind discloses a bias hostile to the party examining him; it is not a witness whose evidence being honestly given, is adverse to the case of the examinant.

See titles EVIDENCE; WITNESSES. ADVERTISEMENTS. Under the stat. 24 & 25 Vict. c. 96, s. 102, whosoever shall publicly advertise a reward for the return of any property whatsoever which shall have been lost or stolen, suggesting that no questions will be asked, or offering to repay to any pawnbroker or other the amount advanced on the security of the

continued.

ADVERTISEMENTS property, forfeits the sum of £50 for every such offence, to be recovered by any informant thereof. And the printer and publisher are also liable, but in their case the action is to be commenced within six months, and only after obtaining the sanction of the Attorney-General or SolicitorGeneral to the institution of the prosecution.

ADVOCATES. In the Roman law, and also in those English Courts which have largely moulded themselves upon that law, the persons who undertake and have the liberty to plead the causes of others are called advocates. Their duties are analogous to those of barristers, and since the recent Acts, which have thrown open to all practitioners the practice in all the various Courts, the term "advocate" is used interchangeably with, although less frequently than, that of barrister. In ecclesiastical law, those persons whom we now call patrons of churches, and who reserved to themselves and their heirs a liberty to present to the living on any avoidance, were also called advocati ecclesiæ, i.e., defenders of the church (Spelman's Advo catus). So that the original meaning of advowson was that of a fortress or defence of the church. Patrons of churches were also sometimes called advowees or avowees, and the sovereign was advowee paramount.

ADVOWEE: See title ADVOCATE.

ADVOWSON (advocatio). The right of presentation to a church or benefice; and he who has the right to present is called the patron or patronus, sometimes also advocatus, and sometimes defensor. Advowsons are of two kinds: (1) Appendant, and (2) In gross. An advowson appendant means an advowson which is, and which from the first has been and ever since continued to be, appended or annexed to a manor, so that, if the manor were granted to any one, the advowson would go with it as incident to the estate. An advowson in gross signifies an advowson that belongs to a person, but is not annexed to a manor; so that an advowson appendant may be made an advowson in gross by severing it by deed of grant from the manor to which it was appendant. Advowsons are also either (1) presentative, (2) collative, or (3) donative. An advowson is termed presentative when the patron has the right of presentation to the bishop or ordinary, and also to require of him to institute his clerk, if he finds him qualified. An adTowson is termed collative when the bishop and patron happen to be one and the same person, so that the bishop, not being able to present to himself, performs by one act (which is termed collation) all that is

ADVOWSON-continued.

usually done by the separate acts of presentation and institution. An advowson is termed donative when the king or a subject founds a church or chapel, and does by a single donation in writing place the clerk in possession, without presentation, institution, or induction (Cowel; Co. Litt. 17 b. & 119 b.) Again, advowsons are either advowsons of rectories or advowsons of vicarages; the former having been created in very early times, almost contemporaneously with the creation of the manor itself; the latter having grown up more gradually, and as a consequence of the monasteries appropriating to themselves the tithes of the churches, and delegating to a locum tenens (vicar) the duties of the rector. The stipend of the vicar, which was at first precarious and inadequate, was settled at an adequate amount, and also secured to him, by the Acts 15 Ric. 2, c. 6, and 4 Hen. 4, c. 12; whence at the present day a vicarage is in general as valuable a living as a rectory is.

An advowson, being the right of presentation in perpetuum, as often as a vacancy arises, is considered real estate, while a right of presenting once only, or a single presentation, is considered personal property only.

ESTIMATIO CAPITIS. This phrase denotes the value or price set upon an individual. In Anglo-Saxon times, when money penalties were the universal punishments of offences, King Athelstan, in a parliament held at Exeter, fixed a tariff of mulcts to be paid pro æstimatione capitis, i.e., according to the rank of the party wounded or slain. A like tariff existed in Roman law, "nam secundum gradum dignitatis vitæque honestatem crescit aut minuitur æstimatio injuriæ." Just. Inst. iv. 4, 7.

ÆTATE PROBANDA. A writ that used formerly to be directed to the sheriff of a county, commanding him to summon twelve men, as well knights as other honest and lawful men, to be before certain commissioners previously appointed to inquire whether or not the king's tenant, holding in chief by chivalry, was of full age to receive his lands into his own hands. The commission by which the above commissioners were appointed was thence called "The commission pro ætate probanda." Cowel; 4 Co. Dig. 139.

AFFIANCE. To agree to marry, and generally to pledge one's troth or trust.

AFFIDATIO. A swearing of the oath of fidelity or of fealty to one's lord, under whose protection the quasi-vassal has voluntarily come.

AFFIDAVIT. A written or printed statement made voluntarily, and verified by oath, for the purpose of being used in a Court of Justice as evidence of facts. In Courts of Law, affidavits are chiefly used upon summary applications only; but in Courts of Equity they are used upon all sorts of applications, whether formal or summary.

An affidavit consists of three essential parts: (1) the title, (2) the statement of facts, and (3) the jurat. The affidavit should be entitled in the Court in which it is to be used, and in the cause or matter, or both (as the case may be), in which it is made. The statement of facts should be plain and unequivocal; the best evidence should, as a rule be adduced, but matters of hearsay, belief, or information are not excluded. The affidavit may be sworn either in Court or at chambers, or at the office of the Record and Writ Clerks, or before one of the commissioners appointed for that purpose; and if made in a foreign country, then they may be sworn before the mayor or other magistrate, attested and certified by a notary public. If the affidavit is in a foreign language, it must be accompanied with a verified translation.

See title EVIDENCE.

AFFILIATION: See title BASTARDY.

AFFINITY. The relationship which marriage occasions between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband. Thus, there is an affinity between the wife and her husband's brother, but there is no affinity between the wife's sister and the husband's brother, or between the husband's sister and the wife's brother.

AFFIRMATION. This has been substituted for an oath in the case of certain religionists who object, on grounds of conscience, to take an oath-e. g. in the case of Quakers, Separatists, and others; and, in short, any person objecting to be sworn may make a solemn affirmation instead (33 & 34 Vict. c. 49).

See title EVIDENCE.

AFFOREST (afforestare.) To turn ground into a forest (Cowel). When forest ground is turned from forest to other uses, it is said to become disafforested. Tomlins.

See title FOREST.

AFFRAY (from the Fr. effrayer, to affright). The fighting of two or more persons in some public place to the terror of others; and there must be a stroke given or offered, otherwise it is no affray, howsoever quarrelsome or threatening the words may be; and the fighting must also be in public; for if it be in private, it is no affray, but an assault. The punishment for an affray is fine or imprisonment, or both.

AGE. Signifies in the law those periods in the lives of persons of both sexes, which enable them to do certain acts which, before they had arrived at those periods, they were prohibited from doing. As for example: a male at the age of twelve years may take the oath of allegiance; at fourteen, which is his age of discretion, he may consent to marriage or choose his guardian; and at twenty-one he may alien his lands, goods, and chattels. A female at nine years of age is dowable; at twelve may consent to marriage; at fourteen is at years of discretion, and may choose a guardian; and at twenty-one may alien her lands, &c. But the full age of either male or female is twenty-one, until which time they are considered as infants (Co. Litt. 78; Cowel). The age of twenty-one years is complete on the first moment of the last day next before the twenty-first anniversary of the birth.

See title DAY.

AGENT: See title PRINCIPAL AND AGENT.

AGENT AND PATIENT. The same person who is the doer of a thing and the party to whom it is done; as when a woman endows herself of part of her husband's possessions, this being the act of herself to herself, makes her agent and patient. Co. Litt. 8, 138; Cowel.

AGGRAVATION (MATTER OF). In the language of pleadings signifies matter which only tends to increase the amount of damage, but which does not concern the right of action itself. Thus, in an action of trespass for chasing sheep, by which the sheep died, the dying of the sheep is matter of aggravation only, and need not be alleged by the plaintiff in his declaration. Steph. on Pl. 270, 4th ed.

AGIST. To take in and feed the cattle of strangers for reward; whence agistment is the taking in and feeding of such cattle.

AGNATI. Sometimes called Adgnati, were those relations of a person, not being of course sui hæredes, who connected themselves with him by a male relationship all through. They ranked next after the sui hæredes, and next before the cognati. Justinian, after numerous approximations, eventually entirely abolished all distinctions between agnati and cognati, so that agnati and cognati indifferently were the next of kin of a person, or, more properly speaking, his nearest relations. See title NEXT OF KIN.

AGREEMENT: See title CONTRACT.

AGRICULTURAL CONTRACTS: See title

LEASES.

AGRICULTURAL FIXTURES: See title

FIXTURES.

AIDER. This word is commonly used in two senses, 1st, by itself, when it signi

fies an abettor: See title AIDERS AND ABETTORS. 2ndly, in conjunction with the word verdict. AIDER BY VERDICT means curing by verdict. The phrase is used in reference to faults or omissions in pleading. Some faults, errors, or omissions in pleading are aided or cured by the adverse party taking no notice of them, or pleading over, as it is termed, instead of demurring. Others, however, are of so serious a character that even after the party has obtained the verdict of a jury in his favour, the Court, on being applied to, will stay or arrest the judgment, upon the ground that the error is of so important a nature as to vitiate the proceedings. Thus, where a plaintiff brought an action on the case as being entitled to the reversion of a certain yard or wall to which the plaintiff alleged in his declaration a certain injury to have been committed, but omitted to allege that the reversion was prejudiced, or to shew any grievance which, in its nature, would necessarily prejudice the reversion, the Court arrested the judgment after a verdict had been given in favour of the plaintiff; for in this case the gist of the action was the injury to the reversion, and the plaintiff in his declaration had in fact not shewn any such injury to exist. When, however, it may be reasonably presumed, that is, presumed consistently with the general tenor of the pleadings, that the defect was supplied or taken into consideration by the jury previously to giving their verdict, in such cases the error, defect, or omission cannot be made a ground of objection, and is thence said to be cured by the verdict. The principle of aider by verdict is thus stated by Mr. Serjeant Williams: "Where there is any defect, imperfection, or omission in any pleadings, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is cured by the verdict." See Stennel v. Hogg, 1 Wms. Saund. (ed. 1871), p. 260; Rushton v. Aspinall, Doug. 679; 1 Sm. L. C. 614.

AIDERS AND ABETTORS-continued. are principals in the second degree. The aider and abettor of high treason is a principal in the first degree, propter odium delicti (3 Inst. 138); the aider and abettor of a misdemeanour is also a principal in the first degree, but for a very different reason, namely, the maxim de minimis non curat lex. Consequently, aiders and abettors that are principals in the second degree are only found in the case of felonies, whether at common law or under any statute. The aider and abettor must participate in the felony, in the sense of acting in concert with those committing it; for although he be present, yet if he do not participate, but remains merely passive, he is not an abettor (1 Hale, 439). Moreover, the participation must be with a felonious intent, and not in ignorance of the nature of the act. 1 Hale, 446.

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