first letter of the English and most other alphabets, is frequently
used as an abbreviation, (q. v.) and also in the marks of schedules
or papers, as schedule A, B, C, &c. Among the Romans this letter
was used in criminal trials. The judges were furnished with small
tables covered with wax, and each one inscribed on it the initial
letter of his vote; A, when he voted to absolve the party on trial;
C, when he was for condemnation; and N L, (non liquet) when the
matter did not appear clearly, and be desired a new argument.
A MENSA ET
THORO, from bed and board. A divorce a mensa et thoro, is rather
a separation of the parties by act of law, than a dissolution of
the marriage. It may be granted for the causes of extreme cruelty
or desertion of the wife by the hushand. 2 Eccl. Rep. 208. This
kind of divorce does not affect the legitimacy of children, nor
authorize a second marriage. V. A vinculo matrimonii; Cruelty Divorce.
French, to take, to seize, in contracts, as profits a prendre. Ham.
N. P. 184; or a right to take something out of the soil. 5 Ad. &
Ell. 764; 1 N. & P. 172 it differs from a right of way, which
is simply an easement or interest which confers no interest in the
land. 5 B. & C. 221.
A Latin phrases which signifies from which; example, in the computation
of time, the day a quo is not to be counted, but the day ad quem
is always included. 13 Toull. n. 52 ; 2 Duv. n. 22. A court a quo,
the court from which an appeal has been taken; a judge a quo is
a judge of a court below. 6 Mart. Lo. R. 520; 1 Har. Cond. L. R.
501. See Ad quem.
French, to render, to yield, contracts. Profits a rendre; under
this term are comprehended rents and services. Ham N. P. 192.
MATRIMONII, from the bond of marriage. A marriage may be dissolved
a vinculo, in many states, as in Pennsylvania, on the ground of
canonical disabilities before marriage, as that one of the parties
was legally married to a person who was then living; impotence,
(q. v.,) and the like adultery cruelty and malicious desertion for
two years or more. In New York a sentence of imprisonment for life
is also a ground for a divorce a vinculo. When the marriage is dissolved
a vinculo, the parties may marry again but when the cause is adultery,
the guilty party cannot marry his or her paramour.
from the beginning.
2. When a man
enters upon lands or into the house of another by authority of law,
and afterwards abuses that authority, he becomes a trespasser ab
initio. Bac. Ab. Trespass, B.; 8 Coke, 146 2 Bl. Rep. 1218 Clayt.
44. And if an officer neglect to remove goods attached within a
reasonable time and continue in possession, his entry becomes a
trespass ab initio. 2 Bl. Rep. 1218. See also as to other cases,
2 Stra. 717 1 H. Bl. 13 11 East, 395 2 Camp. 115 2 Johns. 191; 10
Johns. 253; ibid. 369.
3. But in case
of an authority in fact, to enter, an abuse of such authority will
not, in general, subject the party to an action of trespass, Lane,
90 ; Bae. Ab. Trespass, B ; 2 T. It. 166. See generally 1 Chit.
PI. 146. 169. 180.
An heir, ab intestat, is one on whom the law casts the inheritance
or estate of a person who dies intestate.
civil law. A Latin phrase, which signifies by a man in anger. It
is applied to bequests or gifts, which a man makes adverse to the
interest of his heir, in consequence of anger or hatred against
him. Thus a devise made under these circumstances is called a testament
ab irato. And the suit which the heirs institute to annul this will
is called an action ab irato. Merlin, Repert. mots Ab irato.
contracts. In the French law, the act by which a debtor surrenders
his property for the benefit of his creditors. Merl. Rep. mot Abandonment.
contracts. In insurances the act by which the insured relinquishes
to the assurer all the property to the thing insured.
2. – No particular
form is required for an abandonment, nor need it be in writing;
but it must be explicit and absolute, and must set forth the reasons
upon which it is founded.
3. – It must
also be made in reasonable time after the loss.
4. – It is not
in every case of loss that the insured can abandon. In the following
cases an abandonment may be made: when there is a total loss; when
the voyage is lost or not worth pursuing, by reason of a peril insured
against or if the cargo be so damaged as to be of little or no value;
or where the salvage is very high, and further expense be necessary,
and the insurer will not engage to bear it or if what is saved is
of less value than the freight; or where the damage exceeds one
half of the value of the goods insured or where the property is
captured, or even detained by an indefinite embargo ; and in cases
of a like nature.
5. – The abandonment,
when legally made transfers from the insured to the insurer the
property in the thing insured, and obliges him to pay to the insured
what he promised him by the contract of insurance. 3 Kent, Com.
265; 2 Marsh. Ins. 559 Pard. Dr. Coin. n. 836 et seq. Boulay Paty,
Dr. Com. Maritime, tit. 11, tom. 4, p. 215.
In maritime contracts in the civil law, principals are generally
held indefinitely responsible for the obligations which their agents
have contracted relative to the concern of their commission but
with regard to ship owners there is remarkable peculiarity; they
are bound by the contract of the master only to the amount of their
interest in the ship, and can be discharged from their responsibility
by abandoning the ship and freight. Poth. Chartes part. s. 2, art.
3, 51; Ord. de la Mar. des proprietaires, art. 2; Code de Com. 1.
2, t. 2, art. 216.
lights. The relinquishment of a right; the giving up of something
to which we are entitled.
2. – Legal rights,
when once vested, must be divested according to law, but equitable
rights may be abandoned. 2 Wash. R. 106. See 1 H. & M. 429;
a mill site, once occupied, may be abandoned. 17 Mass. 297; an application
for land, which is an inception of title, 5 S. & R. 215; 2 S.
& R. 378; 1 Yeates, 193, 289; 2 Yeates, 81, 88, 318; an improvement,
1 Yeates, 515 ; 2 Yeates, 476; 5 Binn. 73; 3 S. & R. 319; Jones'
Syllabus of Land Office Titles in Pennsylvania, chap. xx; and a
trust fund, 3 Yerg. 258 may be abandoned.
3. – The abandonment
must be made by the owner without being pressed by any duty, necessity
or utility to himself, but simply because he wishes no longer to
possess the thing; and further it must be made without any desire
that any other person shall acquire the same; for if it were made
for a consideration, it would be a sale or barter, and if without
consideration, but with an intention that some other person should
become the possessor, it would be a gift: and it would still be
a gift though the owner might be indifferent as to whom the right
should be transferred; for example, he threw money among a crowd
with intent that some one should acquire the title to it.
for torts, a term used in the civil law. By the Roman law, when
the master was sued for the tort of his slave, or the owner for
a trespass committed by his animal, he might abandon them to the
person injured, and thereby save himself from further responsibility.
2. – Similar
provisions have been adopted in Louisiana. It is enacted by the
civil code that the master shall be answerable for all the damages
occasioned by an offence or quasi offence committed by his slave.
He may, however, discharge himself from such responsibility by abandoning
the slave to the person injured; in which case such person shall
sell such slave at public auction in the usual form; to obtain payment
of the damages and costs; and the balance, if any, shall be returned
to the master of the slave, who shall be completely discharged,
although the price of the slave should not be sufficient to pay
the whole amount of the damages and costs; provided that the master
shall make abandonment within three days after the judgment awarding
such damages, shall have been rendered; provided also that it shall
not be proved that the crime or offence was committed by his order,
for in such cases the master shall be answerable for all damages
resulting therefrom, whatever be the amount, without being admitted
to the benefit of abandonment. Art. 180, 181.
3. – The owner
of an animal is answerable for the damages he has caused; but if
the animal had been lost, or had 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
has turned loose a dangerous or noxious animal, for then he must
pay for all the harm he has done, without being allowed, to make
the abandonment. Ib. art. 2301.
malicious. The act of a hushand or wife, who leaves his or her consort
wilfully, and with an intention of causing perpetual separation.
2. – Such abandonment,
when it has continued the length of time required by the local statutes,
is sufficient cause for a divorce. Vide 1 Hoff. R. 47; Divorce.
chancery practice, is a suspension of all proceedings in a suit,
from the want of proper parties capable of proceeding therein. It
differs from an abatement at law in this, that in the latter the
action is in general entirely dead, and cannot be revived, 3 Bl.
Com. 168 but in the former, the right to proceed is merely suspended,
and may be revived by a bill of revivor. Mitf. Eq. Pl. by Jeremy,
57; Story, Eq. PI. 354.
contracts, is a reduction made by the creditor, for the prompt payment
of a debt due by the payor or debtor. Wesk. on Ins. 7.
merc. law. By this term is understood the deduction sometimes made
at the custom-house from the duties chargeable upon goods when they
are damaged See Act of Congress, March 2, 1799, s. 52, 1 Story L.
U. S. 617.
pleading, is the overthrow of an action in consequence of some error
committed in bringing or conducting it when the plaintiff is not
forever barred from bringing another action. 1 Chit. Pl. 434. Abatement
is by plea. There can be no demurrer in abatement. Willes' Rep.
479; Salk. 220.
2. Pleas in
abatement will be considered as relating, 1, to the jurisdiction
of the court; 2, to the person of the plaintiff; 3, to that of the
defendant; 4, to the writ; 5, to the qualities. of such pleas ;
6, to the form of such pleas; 7, to the affidavit of the truth of
pleas in abatement.
3. – 1. As to
pleas relating to the jurisdiction of the court, see article Jurisdiction,
and Arch. Civ. Pl. 290; 1 Chit. PI. Index. tit, Jurisdiction. There
is only one case in which the jurisdiction of the court may be inquired
of under the general issue, and that is where no court of the country
has jurisdiction of the cause, for in that case no action can be
maintained by the law of the land. 3 Mass. Rep. Rea v. Hayden, 1
Dougl. 450; 3 Johns. Rep. 113; 2 Penn. Law Journal 64, Meredith
4. – 2. Relating
to the person of the plaintiff. 1. The defendant may plead to the
person of the plaintiff that there never was any such person in
rerum natura. Bro. Brief, 25 ; 19 Johns. 308 Com. Dig. Abatement,
E 16. And if one of several plaintiffs be a fictitious person, it
abates the writ. Com. Dig. Abatement, E 16; 1 Chit. Pl. 435; Arch.
Civ. Pl. 304. But a nominal plaintiff in ejectment may sustain an
action. 5 Verm. 93; 19 John. 308. As to the rule in Pennsylvania,
see 5 Watts, 423.
5. – 2. The
defendant. may plead that the plaintiff is a feme covert. Co. Lit.
132, b.; or that she is his own wife. 1 Brown. Ent. 63; and see
3 T. R. 631; 6 T. R. 265; Com. Dig. Abatement, E 6; 1 Chit. Pl.
437; Arch. Civ. Pl. 302. Coverture occurring after suit brought
is a plea in abatement which cannot be pleaded after a plea in bar,
unless the matter arose after the plea in bar; but in that case
the defendant must not suffer a continuance to intervene between
the happening of this new matter, or its coming to his knowledge,
and pleading it. 4 S & R. 238; Bac. Abr. Abatement, G; 4 Mass.
659; 4 S. & R. 238; 1 Bailey, 369; 4 Vern. 545; 2 Wheat. 111;
14 Mass. 295 ; 1 Blackf. 288 ; 2 Bailey, 349. See 10 S. & R.
208; 7 Verm. 508; 1 Yeates, 185; 2 Dall. 184; 3 Bibb, 246.
6. – 3. That
the plaintiff (unless he sue with others as executor) is an infant
and has declared by attorney. 1 Chit. Pl. 436; Arch. Civ. Pi. 301;
Arch. Pr. B. R. 142 ; 2 Saund. 212, a, n. 5; 1 Went. 58, 62; 7 John.
R. 373; 3 N. H. Rep. 345; 8 Pick. 552; and see 7 Mass. 241; 4 Halst.
381 2 N. H. Rep. 487.
7. – 4. A suit
brought by a lunatic under guardianship, shall abate. Brayt. 18.
8. – 5. Death
of plaintiff before the purchase of the original writ, may be pleaded
in abatement. 1 Arch. Civ. PI. 304, 5; Com. Dig. Abatement, E 17.
Death of plaintiff pending the writ might have been pleaded since
the last continuance, Com. Dig. Abatement, H 32; 4 Hen. & Munf.
410; 3 Mass. 296 ; Cam. & Nor. 72; 4 Hawks, 433; 2 Root, 57;
9 Mass. 422; 4 H. & M. 410; Gilmer, 145; 2 Rand. 454; 2 Greenl.
127. But in some states, as in Pennsylvania, the, death of the plaintiff
does not abate the writ; in such case the executor or administrator
is substituted. The rule of the common law is, that whenever the
death of any party happens, pending the writ, and yet the plea is
in the same condition, as if such party were living, then such death
makes no alteration; and on this rule all the diversities turn.
Gilb. Com. Pleas 242.
9. – 6. Alienage,
or that the plaintiff is an alien enemy. Bac. Abr. h.t.; 6 Binn.
241 ; 10 Johns. 183; 9 Mass. 363 ; Id. 377 ; 11 Mass. 119 ; 12 Mass.
8 ; 3 31. & S. 533; 2 John. Ch. R. 508; 15 East, 260; Com. Dig.
Abatement, E 4; Id. Alien, C 5; 1 S. & R. 310; 1 Ch. PI. 435;
Arch. Civ. PI. 3, 301.
10. – 7. Misnomer
of plaintiff may also be pleaded in abatement. Arch. Civ. Pi. 305;
1 Chitty's Pleading, Index, tit. Misnomer. Com. Dig. Abatement,
E 19, E 20, E 21, E 22; l Mass. 75; Bac. Abr. h. t.
11. – 8. If
one of several joint tenants, sue in action ex contractu, Co. Lit.
180, b; Bac. Abr. Joint-tenants, K; 1 B. & P. 73; one of several
joint contractors, Arch. Civ. PI. 48-51, 53 ; one of several partners,
Gow on Part. 150; one of. several joint executors who have proved
the will, or even if they have not proved the will, 1 Chit. PI.
12, 13; one of several joint administrators, Ibid. 13; the defendant
may plead the non-joinder in abatement. Arch. Civ. Pl. 304; see
Com. Dig. Abatement, E 9, E 12, E 13, E 14.
12. – 9. If
persons join as plaintiffs in an action who should not, the defendant
may plead the misjoinder in abatement. Arch. Civ. PI. 304; Com.
Dig. Abatement, E 15.
13. – 10. When
the plaintiff is an alleged corporation, and it is intended to contest
its existence, the defendant must plead in abatement. Wright, 12;
3 Pick. 236; 1 Mass 485; 1 Pet. 450; 4 Pet. 501; 5 Pet. 231. To
a suit brought in the name of the "judges of the county court,"
after such court has been abolished, the defendant may plead in
abatement that there are no such judges. Judges, &c. v. Phillips;
2 Bay, 519.
14. – 3. Relating
to the person of the defendant. 1. In an action against two or more,
one may plead in abatement that there never was such a person in
rerum natura as A, who is named as defendant with him. Arch. Civ.
15. – 2. If
the defendant be a married woman, she may in general plead her coverture
in abateraent, 8 T. R. 545 ; Com. Dig. Abatement, F 2. The exceptions
to this rule arise when the coverture is suspended. Com. Dig. Abatement,
F 2, 3; Co. Lit. 132, b; 2 Bl. R. 1197; Co. B. L. 43.
16. – 3. The
death of the defendant abates the writ at common law, and in some
cases it does still abate the action, see Com. Dig. Abatement, H
34; 1 Hayw. 500; 2 Binn. l.; 1 Gilm. 145; 1 Const. Rep. 83; 4 McCord,
160; 7 Wheat. 530; 1 Watts, 229; 4 Mass. 480; 8 Greenl. 128; In
general where the cause of action dies with the person, the suit
abates by the death of the defendant before judgment. Vide Actio
Personalis moritur cum persona.
17. – 4. The
misnomer of the defendant may be pleaded in abatement, but one defendant
cannot plead the misnomer of another. Com. Dig. Abatement, F 18
; Lutw. 36; 1 Chit. PI. 440; Arch. Civ. PI. 312. See form of a plea
in abatement for a misnomer of the defendant in 3 Saund. 209, b.,
and see further, 1 Show. 394; Carth. 307 ; Comb. 188 ; 1 Lutw. 10
; 5 T. R. 487.
18. – 5. When
one joint tenant, Com. Dig. Abatement, F 5, or one tenant in common,
in cases, where they ought to be joined, Ibid. F 6, is sued alone
– he may plead in abatement. And in actions upon contracts if the
plaintiff do not sue all the contractors, the defendant may plead
the non-joinder in abatement. Ibid. F 8, a; 1 Wash. 9; 18 Johns.
459; 2 Johns. Cas. 382 ; 3 Caines's Rep. 99 ; Arch.. Civ. PI. 309;
1 Chit. PI. 441. When hushand and wife should be sued jointly, and
one is sued alone, the non-joinder may be pleaded in abatement.
Arch. Civ. PI. 309. The non-joinder of all the executors, who have
proved the will; and the non-joinder of all the administrators of
the deceased, may be pleaded in abatement. Com. Dig. Abatement,
19. – 6. In
a real action if brought against several persons, they may plead
several tenancy, that is, that they hold in severalty and not jointly,
Com. Dig. Abatement, F 12; or one of them may take the entire tenancy
on himself, and pray judgment of the writ. Id. F 13. But mis-joinder
of defendant in a personal action is not the subject of a plea in
abatement. Arch. Civ. PI. 68, 310.
20. – 7. In
cases where the defendant may plead non-tenure, see Arch. Civ. PI.
310; Cro. El. 559.
21. – 8. Where
he may plead a disclaimer, see Arch. Civ. PI. 311; Com. Dig. Abatement,
22. – 9. A defendant
may plead his privilege of not being sued, in abatement. Bac. Ab.
Abridgment C ; see this Dict. tit. Privilege.
23. – 4. Plea
in, abatement of the writ. 1. Pleas in abatement of the writ or
a bill are so termed rather from their effect, than from their being
strictly such pleas, for as oyer of the writ can no longer be craved,
no objection can be taken to matter which is merely contained in
the writ, 3 B. & P. 399; 1 B. & P. 645-648; but if a mistake
in the writ be carried into the declaration, or rather if the declaration,
which is resumed to correspond with the writ or till, be incorrect
in respect of some extrinsic matter, it is then open to the defendant
to plead in abatement to the writ or bill, 1 B. & P. 648; 10
Mod. 210; and there is no plea to the declaration alone but in bar;
10 Mod. 210 ; 2 Saund. 209, d.
24. – 2. Pleas
in abatement. of the writ or bill and to the form or to the action.
Com. Dig. Abatement, H.1, 17.
25. – 3. Those
of the first description were formerly either matter apparent on
the face of the ;Writ, Com. Dig. Abatement, H l, or matters dehors.
Id. H 17.
26. – 4. Formerly
very trifling errors were pleadable in abatement, 1 Lutw. 25; Lilly's
Ent. 6 ; 2 Rich. C. P. 5, 8 ; 1 Stra. 556; Ld. Raym. 1541 ; 2 Inst.
668; 2 B. & P. 395.. But as oyer of the writ can no longer be
had, an omission in the defendant's declaration of the defendant's
addition, which is not necessary to be stated in a declaration,
can in no case be pleaded in abatement. 1 Saund. 318, n. 3; 3 B.
& B. 395; 7 East, 882.
27. – 5. Pleas
in abatement to the form of the writ, are therefore now principally
for matters dehors, Com. Dig. Abatement,H 17; Glib. C. P., 51 ,
existing at the time of suing out the writ, or arising afterwards,
such as misnomer of the plaintiff or defendant in Christian or surname.
28. – 6. Pleas
in abatement to the action of the writ, and that the action is misconceived,
as that it is in case where it ought to have, been in trespass,
Com. Dig. Abatement, G 5 ; or that it was prematurely brought, Ibid.
Abatement, G 6, and tit. Action E ; but as these matters are grounds
of demurrer or nonsuit, it is now very unusual to plead them in
abatement. It may also be pleaded that there ii another action pending.
See tit. Autre action pendant. Com. Dig. Abatement, H. 24; Bac.
Ab. Abatement, M; 1 Chitty's Pi. 443.
29. – 6. Qualities
of pleas in abatement. 1. A writ is divisible, and may be abated
in part, and remain good for the residue; and the defendant may
plead in abatement to part, and demur or plead in bar to the residue
of the declaration. 1 Chit. PI. 444; 2 Saund. 210, n. The general
rule is, that whatever proves the writ false at the time of suing
it out, shall abate the writ entirely Gilb. C. P. 247 1 Saund. Rep.
286, (n) 7; 2 do. 72, (i) sub fin.
30. – 2. As
these pleas delay the trial of the merits of the action, the greatest
accuracy and precision are required in framing them; they should
be certain to every intent, and be pleaded without any repugnancy.
3 T. R. 186; Willes, 42 ; 2 Bl. R. 1096 2 Saund. 298, b, n. 1 ;
Com. Dig. 1, 11 Co. Lit. 392; Cro. Jac. 82; and must in general
give the plaintiff a better writ. This is the true criterion to
distinguish a plea in abatement from a plea in bar. 8 T. IR. 615;
Bromal. 139; 1 Saund. 274, n. 4 ; 284 n. 4; 2 B. & P. 125 ;
4 T. R. 227 ; 6 East) 600 ; Com. Dig. Abatement, J 1, 2; 1 Day,
28; 3 Mass. 24; 2 Mass. 362; 1 Hayw. 501; 2 Ld. Raym. 1178; 1 East,
634. Great accuracy is also necessary in the form of the plea as
to the commencement and conclusion, which is said to make the plea.
Latch. 178 ; 2 Saund. 209, c. d; 3 T. R. 186.
31. – 6. Form
of pleas in abatement .1 As to the form of pleas in abatement, see
1 Chit. PI. 447; Com. Dig. Abatement, 1 19; 2 Saund. 1, n. 2.
32. – 7. Of
the affidavit of truth. 1. All pleas in abatement must be sworn
to be true, 4 Ann. c. 16, s. 11. The affidavit may be made by the
defendant or a third person, Barnes, 344, and must be positive as
to the truth of every fact contained in the plea, and should leave
nothing to be collected by inference; Sayer's Rep. 293; it should
be stated that the plea is true in substance and fact, and not merely
that the plea is a true plea. 3 Str. 705, Litt. Ent. 1; 2 Chitt.
Pl. 412, 417; 1 Browne's Rep. 77 ; see. 2 Dall. 184; 1 Yeates, 185.
on the subject of abatement of actions, Vin. Ab. tit. Abatement;
Bac. Abr. tit. Abatement; Nelson's Abr. tit. Abatement; American
Dig. tit. Abatement; Story's Pl. 1 to 70; 1 Chit. Pl. 425 to 458;
Whart. Dig. tit. Pleading, F. (b.) Penna. Pract. Index, h. t.; Tidd's
Pr. Index, h. t.; Arch. Civ. Pl. Index, h. t.; Arch. Pract. Index,
h. t. Death; Parties to actions; Plaintiff; Puis darrein continuance.
OF A FREEHOLD. The entry of a stranger after the death of the
ancestor, and before the heir or devisee takes possession, by which
the rightful possession of the heir or devisee is defeated. 3 Bl.
1 Com. 167; Co. Lit. 277, a; Finch's Law, 1 195; Arch. Civ. Pl.
2. By the ancient
laws of Normandy, this term was used to signify the act of one who,
having an apparent right of possession to an estate, took possession
of it immediately after the death of the actual possessor, before
the heir entered. Howard, Anciennes Lois des Frangais, tome 1, p.
OF LEGACIES, is the reduction of legacies for the purpose of
paying the testator's debts.
2. When the
estate is short of paying the debts and legacies, and there are
general legacies and specific legacies, the rule is that the general
legatees must abate proportionably in order to pay the debts; a
specific legacy is not abated unless the general legacies cannot
pay all the debts; in that case what remains to be paid must be
paid by the specific legatees, who must, where there are several,
abate their legacies, proportionably. 2 Bl. Com. 513; 2 Vessen.
561 to 564; 1 P. Wms. 680; 2 P. Wms. 283. See 2 Bro. C. C. 19; Bac.
Abr. Legacies, H; Rop. on Leg. 253, 284.
OF NUISANCES is the prostration or removal of a nuisance. 3
2. – 1. Who
may abate a nuisance; 2, the manner of abating it. 1. Who may abate
a nuisance. 1. Any person may abate a public nuisance. 2 Salk. 458;
9 Co. 454.
3. – 2. The
injured party may abate a private nuisance, which is created by
an act of commission, without notice to the person who has committed
it; but there is no case which sanctions the abatement by an individual
of nuisances from omission, except that of cutting branches of trees
which overhang a public road, or the private property of the person
who cuts them.
4. – 2. The
manner of abating it. 1. A public nuisance may be abated without
notice, 2 Salk. 458; and so may a private nuisance which arises
by an act of commission. And, when the security of lives or property
may require so speedy a remedy as not to allow time to call on the
person on whose property the mischief has arisen to remedy it, an
individual would be justified in abating a nuisance from omission
without notice. 2 Barn. & Cres. 311; 3 Dowl. & R. 556.
5. – 2. In the
abatement of a public nuisance, the abator need not observe particular
care in abating it, so as to prevent injury to the materials. And
though a gate illegally fastened, might have been opened without
cutting it down, yet the cutting would be lawful. However, it is
a general rule that the abatement must be limited by its necessity,
and no wanton or unnecessary injury must be committed. 2 Salk. 458.
6. – 3. As to
private nuisances, it has been held, that if a man in his own soil
erect a thing which is a nuisance to another, as by stopping a rivulet,
and so diminishing the water used by the latter for his cattle,
the party injured may enter on the soil of the other, and abate
the nuisance and justify the trespass; and this right of abatement
is not confined merely to a house, mill, or land. 2 Smith's Rep.
9; 2 Roll. Abr. 565; 2 Leon. 202; Com. Dig. Pleader, 3 M. 42; 3
Lev. 92; 1 Brownl. 212; Vin. Ab. Nuisance; 12 Mass. 420; 9 Mass.
316; 4 Conn. 418; 5 Conn. 210; 1 Esp. 679; 3 Taunt. 99; 6 Bing.
7. – 4. The
abator of a private nuisance cannot remove the materials further
than is necessary, nor convert them to his own use. Dalt. o. 50.
And so much only of the thing as causes the nuisance should be removed;
as if a house be built too high, so much. only as is too high should
be pulled down. 9 Co. 53; God. 221; Str. 686.
8. – 5. If the
nuisance can be removed without destruction and delivered to a magistrate,
it is advisable to do so; as in the case of a libellous print or
paper affecting an individual, but still it may be destroyed 5 Co.
125, b.; 2 Campb. 511. See as to cutting down trees, Roll. Rep.
394; 3 Buls 198; Vin. Ab. tit. Trees, E, and Nuisance W.
is, 1st, he who abates or prostrates a nuisance; 2, he who having
no right of entry, gets possession of the freehold to the prejudiae
of an heir or devisee, after the time when the ancestor died, and
before the heir or devisee enters. See article Abatement. Litt.
897; Perk. 383; 1 Inst. 271; 2 Prest. Abst. 296. 300. As to the
consequences of an abator dying in possession, See Adams' Eject.
obsolete. Any thing diminished; as, moneta abatuda, which is money
clipped or diminished in value. Cowell, h. t.
civil law, is the great grandfather, or fourth male ascendant. Abavia,
is the great grandmother, or fourth female ascendant.
abbatia, is a society of religious persons, having an abbot or abbess
to preside over them. Formerly some of the most considerable abbots
and priors in England had seats and votes in the house of lords.
The prior of St. John's of Jerusalem, was styied the first baron
of England, in respect to the lay barons, but he was the last of
the spiritual barons.
practice. – The omission of some words or letters in writing; as
when fieri facias is written fi. fa.
2. In writing
contracts it is the better practice to make no abbreviations; but
in recognizances, and many other contracts, they are used; as John
Doe tent to prosecute, &c. Richard Roe tent to appear, &c.
when the recognizances are used, they are drawn out in extenso.
See 4 Ca. & P. 61; S.C.19E.C.L.R.268; 9 Co.48.