ADMITTANCE, Eng. law. The act of giving possession of a copyhold
estate, as livery of seisin is of a freehold; it is of three kinds, namely
uponavoluntary grant by the lord) upon a surrender by the former tenant and upon
ADMIITENDO IN SOCIUM. Eng. law. A writ associating certain persons to
justices of assize.
ADMONITION. A reprimamd from a judge to a person accused, on being
discharged, warning him of the consequences of his conduct, and intimating to
him, that should he be guilty of the same fault for which he has been
admonished, he will be punished with greater severity. Merlin, Repert. h. t.
2. The admonition was authorized by the civil law, as a species of punishment
for slight misdemeanors. Vide Reprimand
ADNEPOS. A term employed by the Romans to designate male descendants
in the fifth degree, in a direct line. This term is used in making genealogical
ADOLESCENCE, persons. That age which follows puberty and precedes the
age of majority; it commences for males at fourteen, and for females at twelve
years completed, and continues till twenty-one years complete.
ADOPTION, civil law. The act by which a person chooses another from a
strange family, to have all the rights of his own child. Merl. Repert. h. t.;
Dig. 1, 7, 15, 1; and see Arrogation. By art. 232, of the civil code of
Louisiana, it is abolished in that state. It never was in use in any other of
the United States.
ADROGATION, civil law. The adoption of one who was impubes, that is,
if a male, under fourteen years of age; if a female, under twelve. Dig. 1, 7,
ADULT, in the civil law. An infant who, if a boy, has attained his
full age of fourteen years, and if a girl, her full age of twelve. Domat, Liv.
Prel. t. 2, s. 2, n. 8. In the common law an adult is considered one of full
age. 1 Swanst. R. 553.
ADULTERATION. This term denotes the act of mixing something impure
with something pure, as, to mix an inferior liquor with wino; au inferior
article with coffee, tea,.and the like.
ADULTERINE. A term used in the civil law to denote the issue of an
adulterous intercourse. See Nicholas on Adulterine Bastardy.
ADULTERIUM. In the old records this word does not signify the offence
of adultery, but the fine imposed for its commission. Barr. on the Stat. 62,
ADULTERY, criminal law. From ad and alter, another person; a criminal
conversation, between a man married to another woman, and a woman married to
another man, or a married and unmarriod person. The married person is guilty of
adultery, the unmarried of fornicatiou. (q. v.) 1 Yeates, 6; 2 Dall. 124; but
see 2 Blackf. 318.
2. The elements of this crime are, 1st, that there shall be an unlawful
carnal connexion; 2dly, that the guilty party shall at the time be married;
3dly, that he or she shall willingly commit the offence; for a woman who has
been ravished against her will is not guilty of adultery. Domat, Supp. du Droit
Public, liv. 3, t. 10, n. 13.
3. The punishment of adultery, in the United States, generally, is fine and
4. In England it is left to the feeble hands of the ecclesiastical courts to
punish this offence.
5. Adultery in one of the married persons is good cause for obtaining a
divorce by the innocent partner. See 1 Pick. 136; 8 Pick. 433; 9 Mass. 492: 14
Pick. 518; 7 Greenl. 57; 8 Greenl. 75; 7 Conn. 267 10 Conn. 372; 6 Verm. 311; 2
Fairf. 391 4 S. & R. 449; 5 Rand. 634; 6 Rand. 627; 8 S. & R. 159; 2
Yeates, 278, 466; 4 N. H. Rep. 501; 5 Day, 149; 2 N. & M. 167.
6. As to proof of adultery, see 2 Greenl. 40, Marriage.
ADVANCEMENT. That which is given by a father to his child or
presumptive heir, by anticipation of whathe might inherit. 6 Watts, R. 87; 17
Mass. R. 358; 16 Mass. R. 200; 4 S. & R. 333; 11 John. R. 91; Wright, R.
339. See also Coop Just. 515, 575; 1 Tho. Co. Lit. 835, 6; 3 Do. 345, 348; Toll.
301; 5 Vez. 721; 2 Rob. on Wills, 128; Wash. C. C. Rep. 225; 4 S. & R. 333;
1 S. & R. 312; 3 Conn. Rep. 31; and post Collatio bonorum.
2. To constitute an advancement by the law of England, the gift must be made
by the father and not by another, not even by the mother. 2 P. Wms. 856. In
Pennsylvania a gift of real or personal estate by the father or mother may be an
advancement. 1 S. & R. 427; Act 19 April 1794, 9; Act 8 April, 1833, 16.
There are in the statute laws of the several states provisions relative to real
and personal estates, similar in most respects to those which exist in the
English statute of distribution, concerning an advancement to a child. If any
child of the intestate has been advanced by him by settlement, either out of the
real or personal estate, or both, equal or superior to the amount in value of
the share of such child which would be due from the real and personal estate, if
no such advancementhad been made, then such child and his descendants, are
excluded from any share in the real or personal estate of the intestate.
3. But if the advancement be not equal, then such child, and in case of his
death, his descendants, are entitled to receive, from the real and personal
estate, sufficient to make up the deficiency, and no more.
4. The advancement, is either express or implied. As to what is an implied
advancement, see 2 Fonb. Eq. 121; 1 Supp. to Ves. Jr. 84; 2 lb. 57; 1 Vern. by
Raithby, 88, 108, 216; 5 Ves. 421; Bac. Ab. h. t.; 4 Kent, Com. 173.
5. A debt due by a child to his father differs from an advancement. In case
of a debt, the money due may be recovered by action for the use of the estate,
whether any other property be left by the deceased or not; whereas, an
advancement merely bars the child's right to receive any part of his father's
estate, unless he brings into hotch pot the property advanced. 17 Mass. R. 93,
359. See, generally, 17 Mass. R. 81, 356; 4 Pick. R. 21; 4 Mass. R. 680; 8 Mass.
R. 143; 10. Mass. R. 437; 5 Pick. R. 527; 7 Conn. R. 1; 6 Conn. R. 355; 5
Paige's R. 318; 6 Watts' R. 86, 254, 309; 2 Yerg. R. 135; 3 Yerg. R. 95; Bac.
Ab. Trusts, D; Math. on Pres. 59; 5 Hayw. 137; 11 John. 91; l Swanst. 13; 1 Ch.
Cas. 58; 3 Conn. 31; 15 Ves. 43, 50; U. S. Dig. h. t.; 6 Whart. 370; 4 S. &
R. 333; 4 Whart. 130, 540; 5 Watts, 9; 1 Watts & Serg. 390; 10 Watts, R.
158; 5 Rawle, 213; 5 Watts, 9, 80; 6 Watts & Serg. 203. The law of France in
respect to advancements is stated at length in Morl. Rep. de Jurisp. Rapport a
ADVANCES, contracts. Said to take place when, a factor or agent pays
to his principal , a sum of, money on the credit of goods belonging to the
principal, which are placed, or are to be placed, in the possession of the
factor or agent, in order to reimburse himself out of the proceeds of the sale.
In such case the factor or agent has a lien to the amount of his claim. Cowp. R.
251; 2 Burr. R. 931; Liverm. on Ag. 38; Journ. of Law, 146.
2. The agent or factor has a right not only to advances made to the owner of
goods, but also for expenses and dishursements made in the course of his agency,
out of his own moneys, on account of, or for the benefit of his principal; such
as incidental charges forwarehouse-room, duties, freight, general average,
salvage, repairs, journeys, and all other acts done to preserve the property of
the principal, and to enable the agent to accomplish the objects of the
principal, are to be paid fully by the latter. Story on Bailm. 197; Story on Ag.
3. The advances, expenses and dishursements of the agent must, however, have
been made in good faith, without any default on his part Liv. on Ag. 14-16;
Smith on Merc. 56 Paley on Ag. by Lloyd, 109; 6 East, R. 392; 2 Bouv. list. n.
4. When the advances and dishursements have been properly made, the agent is
entitled not only to the return of the money so advanced, but to interest upon
such advances and dishursements, whenever from the nature of the business, or
the usage of trade, or the particular agreement of the parties, it may be fairly
presumed to be stipulated for, or due to the agent. 7 Wend. R. 315; 3 Binn. R.
295; 3 Caines' R. 226; 1 H. Bl. 303; 3 Camp. R. 467 15 East, R. 223; 2 Bouv.
Inst. n. 1341. This just rule coincides with the civil law on this subject. Dig.
17, 1, 12, 9; Poth. Pand. lib. 17, t. 1, n. 74.
ADVENTITIOUS, adventitius. From advenio; what comes incidentally; us
adventitia bona, goods that, fall to a man otherwise than by inheritance; or
adventitia dos, a dowry or portion given by some other friend beside the
ADVENTURE, bill of. A writing signed by a merchant, to testify that
the goods shipped on board a certain vessel are at the venture of another
person, he himself being answerable only for the produce. Techn. Dict.
ADVENTURE, crim. law. See Misadventure.
ADVENTURE, mer. law. Goods sent abroad under the care of a supercargo,
to be disposed of to the best advantage for the benefit of his employers, is
called an adventure.
ADVERSARY. One who is a party in a writ or action opposed to the other
ADVERSE POSSESSION, title to lands. The enjoyment of land, or such
estate as lies in grant, under such circumstances as indicate that such
enjoyment has been commenced and contiuued, under an assertion or color of right
on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2
Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364;
2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550. Actual
possession is a pedis possessio which can be only of ground enclosed, and only
such possession can a wrongdoer have. He can have no constructive possession. 7
Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.
2. When the possession or enjoyment has been adverse for twenty years, of
which the jury are to judge from the circumstances the law raises the
presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this presumption
arises only when the use or occupation would otherwise have been unlawful. 3
Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R. 589; 4 S. &
R. 456. See 2 Smith's Lead. Cas. 307-416.
3. There are four general rules by which it may be ascertained that
possession is not adverse; these will be separately considered.
4. – 1. When both parties claim under the same title; as, if a man seised of
certain land in fee, have issue two sons and die seised, and one of the sons
enter by abatement into the land, the statute, of limitations will not operate
against the other son; for when the abator entered into the land of his father,
before entry made by his brother, the law intends that he entered claiming as
heir to his father, by which title the other son also claims. Co. Litt s.
5. – 2. When the possession of the one party is consistent with the title of
the other; as, where, the rents of a trust state were received by a cestui que
trust for more than twenty years after the creation of the trust, without any
interference, of the trustee, such ppssession being consistent with and secured
to the cestui qwe trust by the terms of the deed, the receipt was held not to be
adverse to the title of the trustee. 8 East. 248.
6. – 3. When, in contemplation of law, the claimant has never been out of
possession; as, where Paul devised lands to John and his heirs, and died, and
John died, and afterwards the heirs of John and a stranger entered, and took the
profits for twenty years; upon ejectment brought by the devisee of the heir of
John against the stranger, it was held that the perception of the rents and
profits by the stranger was not adverse to the devisee's title; for when two men
are in possession, the law adjudges it to be the possession of him who has the
right. Lord Raym. 329.
7. – 4. When the occupier has acknowledged the claimant's titles; as, if a
lease be granted for a term, and, after paying the rent for the land during such
term, the tenant hold for twenty years without paying rent, his possession will
not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv. Inst. n.
ADVERTISEMENT. A 'notice' published either in handbills or in a
2. The law in many instances requires parties to advertise in order to give
notice of acts which are to be done; in these cases, the advertisement is in
general equivalent to notice.
3. When an advertisement contains the terms of sale, or description of the
property to be sold, it will bind the seller; and if there be a material
misrepresentation, it may avoid the contract, or at least entitle the purchaser
to a compensation and reduction from the agreed, price. Kapp's R. 344; 1 Chit.
ADVICE, com. law. A letter containing information of any circumstances
unknown to the person to whom it is written; when goods are forwarded by sea or
land, the letter transmited to inform the consignee of the fact, is termed
advice of goods, or letter of advice. When one merchant draws upon another, he
generally advises him of the fact. These letters are intended to give notice of
the facts they contain.
ADVICE, practice. The opinion given by counsel to their clients; this
should never be done but upon mature deliberation to the best of the counsel's
ability; and without regard to the consideration whether it will affect the
client favorably or unfavorably.
ADVISEMENT. Consideration, deliberation, consultation; as the court
holds the case under advisement.
ADVOCATE, civil and ecclesiastical law. 1. An officer who maintains or
de fends the rights of his client in the same manner as the counsellor does in
the common law.
2. Lord Advocate. An, officer of state in Scotland, appointed by the king, to
advise about the making and executing the law, to prosecute capital crimes,
3. College or faculty of advocates. A college consisting of 180 persons,
appointed to plead in. all actions before the lords of sessions.
4. Church or ecclesiastical advocates. Pleaders appointed by the church to
maintain its rights.
5. – 2. A patron who has the advowson or presentation to a church. Tech.
Dict.; Ayl. Per. 53; Dane Ab. c.,31, 20. See Counsellor at law; Honorarium.
ADVOCATIA, civil law. This sometimes signifies the quality, or
functions, and at other times the privilege, or the territorial jurisdiction of
an advocate, See Du Cange, voce Advocatia, Advocatio.
ADVOCATION, Scotch law. A writing drawn up in the form of a petition,
called a bill of advocation, by which a party in an action applies to the
supreme court to advocate its cause, and to call the action out of an inferior
court to itself. Letters of advocation, are the decree or warrant of the supreme
court or court of sessions, discharging the inferior tribunal from all further
proceedings in the matter, and advocating the action to itself. This proceeding
is similar to a certiorari (q. v.) issuing out of a superior court for the
removal of a cause from an inferior.
ADVOCATUS. A pleader, a narrator. Bract. 412 a, 372 b.
ADVOWSON, ecclesiastical law. From advow or advocare, a right of
presentation to a church or benefice. He who possesses this right is called the
patron or advocate, (q. v.) when there is no patron, or he neglects to exercise
his right within six months, it is called a lapse, i. e. a title is given to the
ordinary to collate to a church; when a presentation is made by one who has no
right it is called a usurpation.
2. Advowsons are of different kinds, as Advowson appendant, when it depends
upon a manor, &c. – Advowson in gross, when it belongs to a person and not
to a manor. – Advowson presentative, where the patron presents to the bishop. –
Advowson donative, where the king or patron puts the clerk into possession
without presentation. – Advowson of the moiety of the church, where there are
two several patrons and two incumbents in the same churcb. – A moiety of
advowson, where two must join the presentation, of one incumbent. – Advowson of
religious houses, that whicb is vested in the person who founded such a house.
Techn. Dict.; 2 Bl. Com. 21; Mirehouse on Advowsons; Com. Dig. Advowson, Quare
Impedit; Bac. Ab. Simony; Burn's Eccl. Law, h. t.; Cruise's Dig. Index, h.
AFFECTION, contracts. The making over, pawning, or mortgaging a thing
to assurp the payment of a sum of money, or the discharge of some other duty or
service. Techn. Diet.
AFFEERERS, English law. Those who upon oath settle and moderate fines
in courts leet. Hawk. 1. 2, c. 112.
TO AFFERE, English law. Signifies either "to affere an amercement," i.
e. to mitigate the rigor of a fine; or "to affere an account," that is, to
confirm it on oath in the exchequer.
AFFIANCE, contracts. From affidare or dare fidem, to give a pledge. A
plighting of troth between a man and woman. Litt. s. 39. Pothier, Traite du
Mariage, n. 24, defines it to be a an agreement by which a man and a woman
promise each other that they will marry together. This word is used by some
authors as synonymous with marriage. Co. Litt. 34, a, note 2. See Dig. 23, 1
Code 5, 1, 4; Extrav. 4, 1.
AFFIDARE. To plight one's faith, or give fealty, i. e. fidelity by
making oath, &c. Cunn. Dict. h. t.
AFFIDATIO DOMINORUM, Eng. law. An oath taken by a lord in
AFFIDAVIT, practice. An oath or affirmation reduced to writing, sworn
or affirmed to before some officer who has authority to administer it. It
differs from a deposition in this, that in the latter the opposite party has had
an opportunity to cross-examine the witness, whereas an affidavit is always
taken ex parte. Gresl. Eq. Ev. 413. Vide Harr. Dig. h. t.
2. Affidavit to hold to bail, is in many cases required before the defendant
can be arrested; such affidavit must be made by a person who is acquainted with
the fact, and must state, 1st, an indebtedness from the defendant to the
plaintiff; 2dly, show a distinct cause of action; 3dly, the whole must be
clearly and certainly, expressed. Sell. Pr. 104; 1 Chit. R. 165; S. C. 18 Com.
Law, R. 59 note; Id. 99.
3. An affidavit of defence, is made by a defendant or a person knowing the
facts, in which must be stated a positive ground of defence on the merits. 1
Ashm. R. 4, 19, n. It has been decided that when a writ of summons has been
served upon three defendants, and only one appears, a judgment for want of an
affidavit of defence may be rendered against au. 8 Watts, R. 367. Vide Bac. Ab.
AFFINITAS AFFINITATIS. That connexion between two persons which has
neither consanguinity nor affinity; as, the connexion between the hushand's
brother and the wife's sister. This connexion is formed not between the parties
themselves, nor between one of spouses and the kinsmen of the other, but between
the kinsmen of both. Ersk. Inst. B, 1, tit. 6, s. 8.
AFFINITY. A connexion formed by marriage, which places the hushand in
the same degree of nominal propinquity to the relations of the wife, as that in
which she herself stands towards them, and gives to the wife the same reciprocal
connexion with the relations of the hushand. It is used in contradistinction to
consanguinity. (q. v.) It is no real kindred.
2. Affinity or alliance is very different from kindred. Kindred are
relations. by blood; affinity is the tie which exists between one of the spouses
with the kindred of the other; thus, the relations, of my wife, her brothers,
her sisters, her uncles, are allied to me by affinity, and my brothers, sistors,
&c., are allied in the same way to my wife. But my brother and the sister of
my wife are not allied by the ties of affinity: This will appear by the
My wife's father ---| | | | | -----------------| | | | |-- are all allied to
me. Ego ----- My Wife 0 My wife's sister ---| | | 0 My wife's niece ---| My
wife's father, ---| My Father | |My brother | | |and my wife's | | |sister are
|---------------| |----------| |not allied | | | | |to each other My brother Ego
---- My wife, My wife's sister, |
3. A person cannot, by legal succession, receive an inheritance from a
relation by affinity; neither does it extend to the nearest relations of hushand
and wife, so as to create a mutual relation between them. The degrees of
affinity are computed in the same way as those of consanguinity. See Pothier,
Traite du Mariage, part 3, ch. 3, art. 2, and see 5 M. R. 296; Inst. 1, 10, 6;
Dig. 38, 10, 4, 3; 1 Phillim. R. 210; S. C. 1 Eng. Eccl. R. 72; article
TO AFFIRM, practice. 1. To ratify or confirm a former law or judgment,
as when the supreme court affirms the judgment of the court of common pleas. 2.
To make an affirmation, or to testify under an affirmation.
AFFIRMANCE. The confirmation of a voidable act; as, for example, when
an infant enters into a contract, which is not binding upon him, if, after
attaining his full age, he gives his affirmance to it, he will thereafter be
bound, as if it had been made when of full age. 10 N. H. Rep. 194.
2. To be binding upon the infant, the affirmance must be made after arriving
of age, with a full knowledge that it would be void without such confirmation.
11 S. & R. 305.
3. An affirmance may be express, that is, where the party declares his
determination of fulfilling the contract; but a more acknowledgment is not
sufficient. Dudl. R, 203. Or it may be implied, as, for example, where an infant
mortgaged his land and, at full age, conveyed it, subject to the mortgage. 15
Mass. 220. See 10 N. H. Rep. 561.
AFFIRMANCE-DAY, GENERAL. In the English Court of Exchequer, is a day
appointed by the judges of the common pleas, and barons of the exchequer, to be
held a few days after the beginning of every term for the general affirmance or
reversal of judgments. 2 Tidd. 1091.
AFFIRMANT, practice. One who makes affirmation instead of making oath
that the evidence which he is about to give shall be the truth, as if he had
been sworn. He is liable to all the pains and penalty of perjury, if he shall be
guilty of wilfully and maliciously violating his affirmation.
AFFIRMATION, practice. A solemn declaration and asseveration, which a
witness makes before an officer, competent to administer an oath in a like case,
to tell the truth, as if be had been sworn.
2. In the United States, generally, all witnesses who declare themselves
conscientiously scrupulous against taking a corporal oath, are permitted to make
a solemn affirmation, and this in all cases, as well criminal as civil.
3. In England, laws have been enacted which partially relieve persons who,
have conscientious scruples against taking an oath, and authorize them to make
affirmation. In France, the laws which allow freedom of religious opinion, have
received the liberal construction that all persons are to be sworn or affirmed
according to the dictates of their consciences; and a quaker's affirmation has
been received and held of the same effect as an oath. Merl. Quest. de Droit, mot
4. The form is to this effect: "You, A B, do solemnly, sincerely, and truly
declare and affirm," &c. For the violation of the truth in such case, the
witness is subject to the punishment of perjury " as if he had been sworn.
5. Affirmation also means confirming; as, an affirmative statute.
AFFIRMATiVE. Averring a fact to be true; that which is opposed to
negative. (q. v.)
2. It is a general rule of evidence that the affirmative of the issue must be
proved. Bull. N. P. 298 ; Peake, Ev. 2.
3. But when the law requires a person to do an act, and the neglect of it,
will render him guilty and punishable, the negative must be proved, because
every man is presumed to do his duty and in that case they who affirm he did
not, must prove it. B. N. P. 298; 1 Roll. R. 83; Comb. 57; 3 B.& P. 307; 1
Mass. R. 56.
AFFIRMATIVE PREGNANT, Pleading. An affirmative allegation, implying
some negative, in favor of the adverse party, for example, if to an action of
assumpsit, which is barred by the act of limitations of six years, the defendant
pleads that be did not undertake &c. within ten years; a replication that he
did undertake, &c. within ten years, would be an affirmative pregnant; since
it would impliedly admit that the defendant had not promised within six years.
As no proper issue could be tendered upon such plea the plaintiff should, for
that reason, demur to it. Gould, PI. c. 6 29, 37; Steph. PI. 381; Lawes, Civ.
PI. 113; Bac. Ab. Pleas, N 6.
AFFORCE, AFFORCEMENT OF THE ASSIZE, Old English law, practice. An
ancient practice in trials by jury, which is explained by Bracton, (fo. 185, b.
292 a) and by the author of Fleta, lib. 4, cap. 9, 2. It consisted in adding
other jurors to the panel of jurors, after the cause had been committed to them,
in case they could not agree in a verdict. The author of Fleta (ubi sup) thus
describes it. The oath having been administered to the jury, the (prenotarius)
prothonotary, addressed them thus: "You will say upon the oath you have taken,
whether such a one unjustly and without judgment disseized such a one of his
freehold in such a ville within three years or not." The justices also repeat
for the instruction of, the jurors the plaint of the plaintiff, &c. The
jurors then retire and confer together, &c.;If the jurors differ among
themselves and cannot agree in one (sententiam) finding, it will be in the
discretion of the judges, &c; to afforce the assize by others, provided
there remain of the jurors summoned many as the major party of the dissenting
jurors; or they may compel the same jurors to unanimity, viz. by directing the
sheriff to keep them safely without, meat or drink until they agree. The object
of adding to the panel a number equal to the major party of the dissenting
jurors, was to ensure a verdict by twelve of them, if the jurors thus added to
the panel should concur with the minor party of the dissenting jurors. This
practice of afforcing the assize, was in reality a second trial of the cause,
and was abandoned, because the courts found it would save delay and trouble by
insisting upon unanimity. The practice of confining jurors without meat and
drink in order to enforce unanimity, has in more modern times also been
abandoned and the more rational practice adopted of discharging the jury and
summoning a new one for the trial of the cause, in cases where they cannot
agree. This expedient for enforcing unanimity was probably introduced from the
canon law, as we find it was resorted to on the continent, in other cases where
the unanimity of a consultative or deliberative body was deemed indispensable.
See Barring. on Stats. 19, 20; 1, Fournel, Hist. des Avocats, 28, note.
TO AFFRANCHISE. To make free.
AFFRAY, criminal law. The fighting of two or more persons, in some
public place, to the terror of the people.
2. To constitute this offence there must be, 1st, a fighting; 2d, the
fighting must be between two or more persons; 3d, it must be in some public
place ; 4th, it must be to the terror of the people.
3. It differs from a riot, it not being premeditated; for if any persons meet
together upon any lawful or innocent occasion, and happen on a sudden to engage
in fighting, they are not guilty of a riot but an affray only; and in that case
none are guilty except those actually engaged in it. Hawk. b. 1, c. 65, s. 3 ; 4
Bl. Com. 146; 1 Russell, 271.
AFFREIGHTMEET, Com. law. The contract by which a vessel or the use of
it, is let out to hire. See Freight; General ship.
AFORESAID. Before mentioned; already spoken of. This is used for the
purpose of identifying a person or thing; as where Peter, of the city of
Philadelphia, has been mentioned; when it is necessary to speak of him, it is
only requisite to say Peter aforesaid, and if the city of Philadelphia, it may
be done as the city of Philadelphia, aforesaid.
AFORETHOUGHT, crim. law. Premeditated, prepense; the length of time
during which the accused has entertained the thought of committing the offence
is not very material, provided he has in fact entertained such thought; he is
thereby rendered criminal in a greater degree than if he had committed the
offence without. premeditation. Vide Malice; aforethought; Premeditation 2 Chit.
Cr. 785; 4 Bl. Com. 199; Fost. 132, 291, 292; Cro. Car. 131; Palm. 545; W.
Jones, 198; 4 Dall. R. 146; 1 P. A. Bro. App. xviii.; Addis. R. 148; 1 Ashm. R.
AFTERMATH. A right to have the last crop of grass or pasturage. 1
Chit. Pr. 181.
AGAINST THE FORM OF THE STATUTE. When a statute prohibits a thing to
be done, and an action is brought for the breach of the statute, the declaration
or indictment must conclude against the form of the statute. See Contra formam
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
5. By the laws of France many provisions are made in respect to age, among
wbich are the following. To be a member of the legislative body, the person must
have attained 40 years; 25, to be a judge of a tribunal de remiere instance; 27,
to be its president, or to be judge or clerk of a cour royale ; 30, to be its
president or procureur general; 25, to be a justice of the peace; 30, to be
judge of a tribunal of commerce, and 35, to be its president; 25, to be a notary
public; 21, to be a testamentary witness; 30, to be a juror. At 16, a minor may
devise one half of his, property as if he were a major. A male cannot contract
marriage till after the 18th year, nor a female before full 15 years. At 21,
both males and females are capable to perform all the act's of civil life.. –
Toull. Dr. Civ. Fr. Liv. 1, Intr. n. 188.
6. In the civil law, the age of a man was divided as follows: namely, the
infancy of males extended to the full accomplishment of the 14th year; at 14, he
entered the age of puberty, and was said to have acquired full puberty at 18
years accomplished, and was major on completing his 25th year. A female was an
infant – til 7 years; at 12, she entered puberty, and accquired full puberty at
14; she became of fall age on completing her 25th year. Lecons Elem. du Dr. Civ.
Rom. 22.See Com. Dig. Baron and Feme, B 5, Dower, A, 3, Enfant, C 9, 10, 11, D
3, Pleader, 2 G 3, 2 W 22, 2 Y 8; Bac. Ab. Infancy and Age; 2 Vin. Ab. 131;
Constitution of the United States; Domat. Lois Civ.tome 1, p. 10; Merlin,
Repert. de Jurisp. mot Age; Ayl. Pand. 62; 1 Coke Inst. 78; 1 Bl. Com. 463. See
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.
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.
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 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
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 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.
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.
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 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
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
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 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
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
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 agent.
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.