AGGRAVATION, crimes, torts. That which increases the enormity of a
crime or the injury of a wrong. The opposite of extenuation.
2. – When a crime or trespass has been committed under aggravating
circumstances, it is punished with more severity; and, the damages given to
vindicate the wrong are greater.
AGGRAVATION, in pleading. The introduction of matter into the
declaration which tends to increase the amount of damages, but does not affect
the right of action itself. Steph. Pl. 257; 12 Mod. 597. See 3 An. Jur. 287,
313. An example of this is found in the case where a plaintiff declares in
trespass for entering his house, and breaking his close, and tossing his goods
about; the entry of the house is the principal ground and foundation of the
action, and the rest is only stated by way of agravation; 3 Wils. R. 294; and
this matter need not be proved by the plintiff or answered by the defendant.
AGGREGATE. A collection of particular persons or items, formed into
one body; as a corporation aggregate, which is one formed of a number of natural
persons; the union of individual charges make an aggregate charge.
AGGRESSOR, crim. law. He who begins, a quarrel or dispute, either by
threatening or striking another. No man may strike another because he has
threatened, or in consequence of the use of any words.
AGIO, aggio. This term is used to denote the difference of price
beteen the value of bank notes and nominal money, and the coin of the country. –
AGIST, in contrads. The taking of other men's cattle on one's own
ground at a certain rate. 2 Inst. 643; 4 Inst. 293.
AGISTER. One who takes horses or other animals to agist.
2. The agister is not, like an innkeeper, bound to take all horses offered to
him, nor is he liable for any injury done to such animals in his care, unless he
has been guilty of negligence, or from his ignorance, negligence may be
inferred. Holt's R. 457.
AGISTMENT, contracts. The taking of another person's cattle into one's
own ground to be fed, for a consideration to be paid by the owner. The person
who receives the cattle is called an agister.
2. An agister is bound to ordinary diligence, and of course is responsible
for loses by ordinary negligence; but he does not insure the safety of the
cattle agisted. Jones, Bailm. 91; I Bell's Com. 458; Holt's N. P. Rep. 547;
Story, Bail. 443; Bac. Ab. Tythes, C l.
AGNATES. In the sense of the Roman law were those whose propinquity
was connected by males only; in the relation of cognates, one or more females
2. By the Scotch lanv, agnates are all those who ar related by the father,
even though females intervene; cognates are those who are related by the mother.
Ersk. L. Scot. B. 1, t. 7, s. 4.
AGNATI, in descents. Relations on the father's side: they are
different from the cognati, they being relations on the mother's side, affines,
who are allied by marriage, and the propinqui, or relations in general. 2 Bl.
Com. 235; Toull. Dr. Civ. Fr. tome 1, p. 139; Poth. Pand. Tom. 22, p. 27.
AGNATION, in descents. The relation by blood which exists between such
males as are descended from the same father; in distinction from cognation or
consanguinity, which includes the descendants from females. This term is
principally used in the civil law.
AGRARIAN LAW. Among the Romans, this name was given to a law, which
had for its object, the division among the people of all the lands which had
been conquered, and which belonged to the domain of the state.
AGREEMENT, contract. The consent of two or more persons concurring,
respecting the transmissiou of some property, right or benefit, with a view of
contracting an obligation. Bac. Ab. h.t.; Com. Dig. h.t.; Vin. Ab. h.t.; Plowd.
17; 1 Com. Contr. 2; 5 East's R. 16. It will be proper to consider, 1, the
requisites of an agreement; 2, the kinds of agreements; 3, how they are
2. – 1. To render an agreement complete six things must concur; there must
be, 1, a person able to contract; 2, a person able to be contracted with; 3, a
thing to be contracted for; 4, a lawful consideration, or quid pro quo; 5, words
to express the agreement; 6, the assent of the contracting parties. Plowd. 161;
Co. Litt. 35, b.
3. – 2. As to their form, agreements are of two kinds; 1, by parol, or, in
writing, as contradistinguished from specialties; 2, by specialty, or under
seal. In relation to their performance, agreements are executed or executory. An
agreement is said to be executed when two or more persons make over their
respective rights in a thing to one another, and thereby change the property
therein, either presently and at once, or at a future time, upon some event that
shall give it full effect, without either party trusting to the other; as where
things are bought, paid for and delivered. Executory agreements, in the ordinary
acceptation of the term, are such contracts as rest on articles, memorandums,
parol promises, or undertakings, and the like, to be performed in future, or
which are entered into preparatory to more solemn and formal alienations of
prtperty. Powel on Cont. Agreements are also conditional and unconditional. They
are conditional when some condition must be fulfilled before they can have full
effect; they are unconditional when there is no condition attached;
4. – 3. Agreements are annulled or rendered of no effect, first, by the acts
of the parties, as, by payment; release – accord and satisfction; rescission,
which is express or implied; 1 Watts & Serg. 442; defeasance; by novation:
secondly, by the acts of the law, as, confusion; merger; lapse of time; death,
as when a man who has bound himself to teach an apprentice, dies; extinction of
the thing which is the subject of the contract, as, when the agreement is to
deliver a certain horse and before the time of delivery he dies. See Discharge
of a Contract.
5. The writing or instrument containing an agreement is also called an
agreement, and sometimes articles of agreement.(q. V.)
6. It is proper, to remark that there is much dfference between an agreement
and articles of agreement which are only evidence of it. From the moment that
the parties have given their consent, the agreement or contraet is formed, and,
whether it can be proved or not, it has not less the quality to bind both
contracting parties. A want of proof does not make it null, because that proof
may be supplied aliunde, and the moment it is obtained, the contract may be
7. Again, the agreement may be mull, as when it was obtained by fraud,
duress, and the like; and the articles of agreement may be good, as far as the
form is concerned. Vide Contract. Deed; Guaranty; Parties to Contracts.
AGRI. Arable land in the common fields. Cunn. Dict. h. t.
AGRICULTURE. The art of cultivating the earth in order to obtain from
it the divers things it can produce; and particularly what is useful to man, as
grain, fruit's, cotton, flax, and other things. Domat, Dr. Pub. liv. tit. 14, s.
1, n. 1.
AID AND COMFORT. The constitution of the United States, art. 8, s. 3,
declares, that adhering to the enemies of the United States, giving them aid and
comfort, shall be treason. These words, as they are to be understood in the
constitution, have not received a full judicial construction. They import,
however, help, support, assistance, countenance, encouragement. The word aid,
which oocurs in the Stat. West. 1, c. 14, is explained by Lord Coke (2 just.
182) as comprehending all persons counselling, abetting, plotting, assenting,
consenting, and encouraging to do the act, (and he adds, what is not applicable
to the Crime to treason,) who are not present when the act is done, See, also, 1
Burn's Justice, 5, 6; 4 Bl. Com. 37, 38.
AID PRAYER, English law. A petition to the court calling in help from
another person who has an interest in the matter in dispute. For example, a
tenant for life, by the courtesy or for years, being impleaded, may pray aid of
him in reversion; that is, desire the court that he may be called by writ, to
allege what he thinks proper for the maintenance of the right of the person
calling him, and of his own. F. N. B. 60; Cowel.
AIDERS, crim. law. Those who assist, aid, or abet the principal, and
who are principals in the second degree. 1. Russell, 21.
AIDS, Engl. law. Formerly they were certain sums of money granted by
the tenant to his lord in times of difficulty and distress, but, as usual in
such cases, what was received as a gratuity by the rich and powerful from the
weak and poor, was soon claimed as a matter of right; and aids became a species
of tax to be paid by the tenant to his lord, in these cases: 1. To ransom the
lord's person, when taken priisoner; 2. To make the lord's eldest son a knight;
– 3. To marry the lord's eldest daughter, by giving her a suitable portion. The
first of these remained uncertain; the other two were fixed by act of parliament
at twenty shillings each being the supposed twentieth part of a knight's fee, 2
Bl. Com. 64.
AILE or AYLE, domestic relations. This is a corruption of the French
word aieul, grandfather, avus. 3.Bl. Com. 186.
AIR. That fluid transparent substance which surrounds our globe.
2. No property can be had in the air it belongs equally to all men, being
indispensable to their existence. To poison or materially to change the air, to
the annoyance of the public, is a nuisance. Cro. Cr. 610; 2 Ld. Raym 1163; I
Burr. 333; 1 Str. 686 Hawk. B. 1, c. 75, s. 10; Dane's Ab. Index h. t. But this
must be understood with this qualification, that no one has a right to use the
air over another man's land, in such a manner as to be injurious to him. See 4
Campb. 219; Bowy. Mod. Civ. Law, 62; 4 Bouv. Inst. n. 36 1; Grot. Droit de la
Guerre et de la Paix, liv. 2, c. 2, 3, note, 3 et 4.
3. It is the right of the proprietor of an estate to enjoy the light and air
that will come to him, and, in general, no one has a right to deprive him of
them; but sometimes in building, a man opens windows over his neighbor's ground,
and the latter, desirous of building on his own ground, necessarily stops the
windows already built, and deprives the first builder of light and air; this he
has the right to do, unless the windows are ancient lights, (q. v.) or the
proprietor has acquired a right by grant or prescription to have such windows
open. See Crabb on R. P. 444 to 479 and Plan. Vide Nuisance.
AJUTAGE. A conical tube, used in drawing water through an aperture, by
the use of which the quantity of water drawn is much increased. When a privilege
to draw water from a canal through the forebay or tunnel by means of in aperture
has been granted, it is not lawful to add an adjutage, unless such was the
intention of the parties. 2 Whart. R. 477.
ALABAMA. The name of one of the new states of the United States of
America. This state was admitted into the Union by the resolution of congress,
approved December 14th, 1819, 3 Sto. L. U. S. 1804, by which it is resolved that
the state of Alabama shall be one, and is hereby declared to be one of the
United States of America, and admitted into the Union on an equal footing with
the original states, in all respects whatever. The convention which framed the
constitution in this state, assembled at the town of Huntsville on Monday the
fifth day of July, 1819, and continued in session by adjournment, until the
second day of August, 1819, when the constitution was adopted.
2. The powers of the government are divided by the constitution into three
distinct, departments; and each of them confided to a separate body of
magistracy, to wit: those which are legislative, to one; those which are
executive, to another; and those which are judicial, to a third. Art. 2,
3. – 1. The legislative power of the state is vested in two distinct
branches; the one styled the senate, the other the house of representatives, and
both together, the general assembly of the state of Alabama. 1. The senate is
never to be less than one-fourth nor more than one-third of the whole number of
representatives. Senators are chosen by the qualified electors for the term of
three years, at the same time, in the same manner, and at the same place, where
they vote for members of the house of representatives; one-third of the whole
number of senators are elected every year. Art. 3, s. 12. 2. The house of
representatives is to consist of not less than forty-four, nor more than sixty
members, until the number of white inhabitant's shall be one hundred thousand;
and after that event, the whole number of representatives shall never be less
than sixty, nor more than one hundred. Art. 3, B. 9. The members of the house of
representatives are chosen by the qualified electors for the term of one year,
from the commencement of the general election, and no longer.
4. – 2. The supreme executive power is vested in a chief magistrate, styled
the governor of the state of Alabama. He is elected by the qualified electors,
at the time and places when they respectively vote for representatives; he holds
his office for the term of two years from the time of his installation, and
until a successor is duly qualified; and is not eligible more than four years in
any term of six years. t. 4. He is invested, among other things, with the veto
power. Ib. s. 16. In cases of vacancies, the president of the senate acts as
governor. Art. 4, s. 18.
5. – 3. The judicial power is vested in one supreme court, circuit courts to
be held in each county in the state, and such inferior courts of law and,
equity, to consist of not more than five members, as the general assembly may,
from time to time direct, ordain, and establish. Art. 6, S. 1.
ALBA FIRMA. Eng. law. When quit rents were reserved payable in silver
or white money, they wero called white rents, or blanch farms reditus albi. When
they were reserved payable in work, grain, or the like, they were called reditus
nigri or black mail. 2 Inst. 19.
ALCADE, Span. law. The name of a judicial officer in Spain, and in
those countries which have received the body of their laws from those of
ALDERMAN. An officer, generally appointed or elected in towns
corporate, or cities, possessing various powers in different places.
2. The aldermen of the cities of Pennsylvania, possess all the powers and
jurisdictions civil and criminal of justices of the peace. They are besides, in
conjunction with the respective mayors or recorders, judges of ibe mayor's
3. Among the Saxons there was an officer called the ealderman. ealdorman, or
aldernwn, which appellation signified literally elderman. Like the Roman
senator, he was so called, not on account of his age, but because of his wisdom
and dignity, non propter oetatem sed propter sapientism et dignitatem. He
presided with the bisbop at the scyregemote, and was, ex officio, a member of
the witenagemote. At one time he was a military officer, but afterwards his
office was purely judical.
4. There were several kinds of aldermen, as king's aldermen, aldermen of all
England, aldermen of the county, aldermen of the hundred, &c., to denote
difference of rank and jurisdiction.
ALEA; civil law. The chance of gain or loss in a contract. This chance
results either from the uncertainty of the thing sold, as the effects of a
succession; or from the uncertainty of the price, as when a thing is sold for an
annuity, which is to be greater or less on the happening of a future event; or
it sometimes arises in consequence of the uncertainty of both. 2 Duv. Dr. Civ.
Fr. n. 74.
ALEATORY CONTRACTS, civil law. A mutual agreement, of which the
effects, with respect both to the advantages and losses, whether to all the
parties, or to some of them, depend on an uncertain event. Civ. Code of Louis.
2. – These contracts are of two kinds; namely, 1. When one of the parties
exposes himself to lose something which will be a profit to the other, in
consideration of a sum of money which the latter pays for the risk. Such is the
contract of insurance; the insurer takes all the risk of the sea, and the
assured pays a premium to the former for the risk which he runs.
3. – 2. In the second kind, each runs a risk which is the consideration of
the engagement of the other; for example, when a person buys an annuity, he runs
the risk of losing the consideration, in case of his death soon after, but he
may live so as to receive three times the amount of the price he paid for it.
Merlin, Rep. mot Aleatoire.
ALER SANS JOUR, or aller sans jour, in practice. A French phrase which
means go without day; and is used to signify that the case has been finally
dismissed the court, because there is no further day assigned for appearance.
ALFET, obsolete. A vessel in which hot water was put, for the purpose
of dipping a criminal's arm in it up to the elbow.
ALIA ENORMIA, pleading. And other wrongs. In trespass, the declaration
ought to conclude "and other wrongs to the said plaintiff then and there did,
against the peace," &c.
2. Under this allegation of alia enormia, some matters may be given in
evidence in aggravatiou of damages, though not specified in other parts of the
declaration. Bull. N. P. 89; Holt, R. 699, 700. For example, a trespass for
breaking and entering a house, the plaintiff may, in aggravation of damages,
give in evidence the debauching of his daughter, or the beating of his servants,
under the general allegation alia enormia, &c.;6 Mod. 127.
3. But under the alia nomia no evidence of the loss of service, or any other
matter which would of itself sustain an action; for if it would, it should be
stated specially. In trespass quare clausum fregit, therefore, the plaintiff
would not, under the above general allegation, be permitted to give evidence of
the defendant's taking away a horse, &c. Bull. N. P. 89; Holt, R. 700; 1
Sid. 225; 2 Salk. 643; 1 Str. 61; 1 Chit. Pl. 388; 2 Greenl. Ev. 278.
ALIAS, practice. This word is prefixed to the name of a second writ of
the same kind issued in the same cause; as, when a summons has been issued and
it is returned by the sheriff, nil, and another is issued, this is called an
alias summons. The term is used to all kinds of writs, as alias fi. fa., alias
vend. exp. and the like. Alias dictus, otherwise called; a description of the
defendant by an addition to his real name of that by wbich he is bound in the
writing; or when a man is indicted and his name is uncertain, he may be indicted
as A B, alias dictus C D. See 4 John. 1118; 1 John. Cas. 243; 2 Caines, R. 362;
3 Caines, R. 219.
ALIBI, in evidence. This is a Latin word which signifies,
2. When a person, charged with a crime, proves (se eadem die fuisse alibi,)
that he was, at the time alleged, in a different place from that in which it was
committed, he is said to prove an alibi, the effect of which is to lay a
founation for the necessary inference, that he could not have committed it. See
Bract. fo. 140, lib. 3, cap. 20, De Corona.
3. This proof is usually made out by the testimony of witnesses, but it is
presumed it might be made out by writings; as if the party could prove by a
record properly authenticated, that on the day or at the time in question, he
was in another place.
4. It must be admitted that mere alibi evidence lies under a great and
general prejudice, and ought to be heard with un-common caution; but if it
appear, to be founded in truth, it is the best negative evidence that can be
offered; it is really positive evidence, which in the nature of things
necessarily implies a negative; and in many cases it is the only evidence which
an innocent man can offer.
ALIEN, persons. One born out of the jurisdiction of the United States,
who has not since been naturalized under their constitution and laws. To this
there are some exceptions, as this children of the ministers of the United
States in foreign courts. See Citizen, Inhabitant.
2. Aliens are subject to disabilities, have rights, and are bound to perform
duties, which will be briefly considered. 1. Disabilities. An alien cannot in
general acquire title to real estate by the descent, or by other mere operation
of law; and if he purchase land, he may be divested of the fee, upon an inquest
of office found. To this general rule there are statutory exceptions in some of
the states; in Pennsylvania, Ohio, Louisiana, New Jersey, Rev. Laws, 604, and
Michigan, Rev. St. 266, s. 26, the disability has been removed; in North
Carolina, (but see Mart. R. 48; 3 Dev. R. 138; 2 Hayw. 104, 108; 3 Murph. 194; 4
Dev. 247; Vermont and Virginia, by constitutional provision; and in Alabama, 3
Stew R. 60; Connecticut, act of 1824, Stat. tit. Foreigners, 251; Indiana, Rev.
Code, a. 3, act of January 25, 1842; Illinois, Kentucky, 1 Litt. 399; 6 Mont.
266 Maine, Rev. St,. tit. 7, c. 93, s. 5 Maryland, act of 1825, ch. 66; 2 Wheat.
259; and Missouri, Rev. Code, 1825, p. 66, by statutory provision it is partly
3. An alien, even after being naturalized, is ineligible to the office of
president of the United States; and in some states, as in New York, to that of
govenor; he cannot be a member of congress, till the expiration of seven years
after his naturalization. An alien can exercise no political rights whatever; he
cannot therefore vote at any political election, fill any office, or serve as a
juror. 6 John. R. 332.
4. – 2. An alien has a right to acquire personal estate, make and enforce
contracts in relation to the same – he is protected from injuries, and wrongs,
to his person and property, his relative rights and character; he may sue and be
5. – 3. He owes a temporary local allegiance, and his property is liable to
taxation. Aliens are either alien friends or alien enemies. It is only alien
friends who have the rights above enumerated; alien enemies are incapable,
during the existence of war to sue, and may be ordered out of the country. See
generally, 2 Kent. Com. 43 to 63; 1 Vin. Ab. 157; 13 Vin. ab. 414; Bac. Ab.
h.t.; 1 Saund. 8, n.2; Wheat. Dig. h.t.; Bouv. Inst. Index, h.t.
ALIENAGE. The condition or state of alien.
ALIENATE, aliene, alien. This is a generic term applicable to the
various methods of transfering property from one person to another. Lord Coke,
says, (1 Inst. 118 b,) alien cometh of the verb alienate, that is, alienum
facere vel ex nostro dominio in alienum trawferre sive rem aliquam in dominium
alterius transferre. These methods vary, according to the nature of the property
to be conveyed and the particular objects the conveyance is designed to
accomplish. It has been held, that under a prohibition to alienate, long leases
are comprehended. 2 Dow's Rep. 210.
ALIENATION, estates. Alienation is an act whereby one man transfers
the property and possession of lands, tenements, or other things, to another. It
is commonly applied to lands or tenements, as to alien (that is, to convey) land
in fee, in mortmain. Termes de la ley. See Co. Litt. 118 b; Cruise Dig. tit. 32,
c. 1, 1-8.
2. Alienations may be made by deed; by matter of record; and by devise.
3. Alienations by deed may be made by original or primary conveyances, which
are those by means of which the benefit or estate is created or first arises; by
derivative or secondary conveyances, by which the benefit or esta te originally
created, is enlarged, restrained, transferred, or extinguished. These are
conveyances by the common law. To these may be added some conveyances which
derive their force and operation from the statute of uses. The original
conveyances are the following: 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 6.
Exchange; 6. Partition. The derivative are, 7. Release; 8. Confirmation; 9.
Surrender; 10. Assignment; 11. Defeasance. Those deriving their force from the
statute of uses, are, 12. Covenants to stand seised to uses; 13. Bargains and
sales; 14. Lease and release; 15. Deeds to lend or declare the uses of other
more direct conveyances; 16. Deeds of revocation of uses. 2 Bl. Com. ch. 20.
Vide Conveyance; Deed. Alienations by matter of record may be, 1. By private
acts of the legislature; 2. By grants, as by patents of lands; 3. By fines; 4.
By common recovery. Alienations may also be made by devise (q.v.)
ALIENATION, med. jur. The term alienation or mental alienation is a
generic expression to express the different kinds of aberrations of the human
understandiug. Dict. des Science Med. h. t.; 1 Beck's Med. Jur. 535.
ALIENATION OFFICE, Engligh law. An office to which all writs of
covenants and entries are carried for the recovery of fines levied thereon. See
TO ALIENE, contracts. See Alienate.
ALIENEE. One to whom an alienation is made.
ALIEXI JURIS. Words applied to persons who are subject to the
authority of another. An infant who is under the authority of his father or
guardian, and a wife under the power of her husband, are said to be alieni
juris. Vide sui juris.
ALIENOR. He who makes a grant or alienation.
ALIMENTS. In the Roman and French law this word signifies the food and
other things necessary to the support of life, as clothing and the like. The
same name is given to the money allowed for aliments. Dig. 50, 16, 43.
2. By the common law, parents and children reciprocally owe each other
aliments or maintenance. (q. v.) Vide 1 Bl. Com. 447; Merl. Rep. h. t.; Dig. 25,
3, 5. In the common law, the word alimony (q.v.) is used. Vide Allowance to a
ALIMONY. The maintenance or support which a husband is bound to give
to his wife upon separation from her; or the support which either father or
mother is bound to give to his or her children, though this is more usually
2. The causes for granting alimony to the wife are, 1, desertion, (q. v.) or
cruelty of the husband; (q. v.) 4 Desaus. R. 79,; 1 M'Cord's Ch. R. 205; 4 Rand.
R. 662; 2 J. J; Marsh. R. 324.; 1 Edw. R. 62; and 2, divorce. 4 Litt. R. 252; 1
Edw. R. 382; 2 Paige, R. 62; 2 Binn. R. 202; 3 Yeates, R. 50; S.& R. 248; 9
S.& R. 191; 3 John. Ch. R. 519; 6 John. Ch. 91.
3. In Louisiana by alimony is meant the nourishment, lodging and support of
the person who claims it. It includes education when the person to whom alimoiay
is due is a minor. Civil Code of L. 246.
4. Alimony is granted in proporion to the wants of the person requiring it,
and the circumstances of those who are to pay it. By the common law, parents and
children owe each other alimony. 1 Bl. Com. 447; 2 Com. Dig. 498;. 3 Ves. 358; 4
Vin. Ab. 175; Ayl. Parerg. 58; Dane's Ab. Index. h.t.; Dig. 34, 1. 6.
5. Alimony is allowed to the wife, pendente lite, almost as a matter of
course whether she be plaintiff or defendant, for the obvious reason that she
has generally no other means of living. 1 Clarke's R. 151. But there are special
cases where it will not be allowed, as when the wife, pending the progress of
the suit, went to her father's, who agreed with the husband to support her for
services. 1 Clarke's R. 460. See Shelf. on Mar. and Div. 586; 2 Toull. n.
ALITER, otherwise. This term is frequently used to point out a
difference between two decisions; as, a point of law has been decided in a
particular way, in such a case, aliter in another case.
ALIUNDE. From another place; evidence given aliunde, as, when a will
contains an ambiguity, in some cases, in order to ascertain the meaning of the
testator, evidence aliunde will be received.
ALL FOURS. This is a metaphorical expression, to signify that a case
agrees in all its circumstances with another case; it goes as it were upon its
four legs, as an animal does.
ALLEGATA. A word which the emperors formerly signed at the bottom of
their rescripts and constitutions; under other instrumets they usually wrote
nata or testate. Ency. Lond.
ALLEGATA AND PROBATA. The allegations made by a party to a suit, and
the proof adduced in their support. It is a general rule of evidence that the
allegata and probata must correspond; that is, the proof must at least be
sufficiently extensive to cover all the allegations of the party. Greenl. Ev.
51; 3 R. s. 636.
ALLEGATION, English ecclesiastical law. According to the practice of
the prerogative court, the facts intended to be relied on in support of the
contested suit are set forth in the plea, which is termed an allegation; this is
submitted to the inspection of the counsel of the adverse party, and, if it
appear to them objectionable in form or substance, they oppose the admission of
it. If the opposition goes to the substance of the allegation, and is held to be
well founded, the court rejects it; by which mode of proceeding the suit is
terminated without, going into any proof of the facts. 1 Phil. 1, n.; 1 Eccl.
Rep. ll, n. S. C. See 1 Brown's Civ. Law, 472, 3, n.
ALLEGATION, common law. The assertion, declaration or statement of a
party of what he can prove.
ALLEGATI6N, civil law. The citation or reference to a voucher to
support a proposition. Dict. de jurisp.; Encyclopedie, mot Allegation; 1 Brown's
Civ. Law, 473, n.
ALLEGATION OF FACULTIES When a suit is instituted in the English
ecclesiastical courts, in order to obtain alimony, before it is allowed, an
alIegation must be made on the part of the wife, stating the property of the
husband. This allegation is called an allegation of faculties. Shelf. on Mar.
and Div. 587.
ALLEGIANCE. The tie which binds the citizen to the government, in
return for the protection which the government affords him.
2. It is natural, acquired, or local. Natural allegiance is such as is due
from all men born within the United States; acquired allegiance is that which is
due by a naturalized citizen. It has never been decided whether a citizen can,
by expatriation, divest himself absolutely of that character. 2 Cranch, 64; 1
Peters' C. C. Rep. 159; 7 Wheat. R. 283; 9 Mass. R. 461. Infants cannot assume
allegiance, (4 Bin. 49) although they enlist in the army of the United States. 5
3. It seems, however, that he cannot renounce his allegiance to the United
States without the permission of the government, to be declared by law. But for
commercial purposes he may acquire the rights of a citizen of another country,
and the place of his domicil determines the character of a party as to trade. 1
Kent, Com. 71; Com. Rep. 677; 2 Kent, Com. 42.
4. Local allegiance is that which is due from an alien, while resident in the
United States, for the protection which the government affords him. 1 Bl. Com.
366, 372; Com. Dig. h.t; Dane's Ab. Index, h. t.; 1 East, P.C. 49 to 57.
ALLIANCE, relationship. The union or connexion of two persons or
families by marraiage, which is also called affinity. This is derived from the
Latin preposition ad and ligare, to bind. Vide Inst 1, 10, 6; Dig 38, 10, 4, 3;
ALLIANCE, international law. A contract, treaty, or league between two
sovereigns or states, made to insure their safety and common defence.
2. Alliances made for warlike purposes are divided in general into defensive
and offensive; in the former the nation only engages to defend her ally in case
he be attacked; in the latter she unites with him for the purpose of making an
attack, or jointly waging the war against another nation. Some alliances are
both offensive and defensive; and there seldom is an offensive alliance which is
not also defensive. Vattel, B. 3, c. 6, 79; 2 Dall. 15.
ALLISION, maritime law. The running of one vessel against another. It
is distiguished from collision in this, that the latter means the running of two
vessels against each other; this latter term is frequently used for
ALLOCATION, Eng. law. An allowance upon account in the Exchequer; or
rather, placing or adding to a thing. Eucy. Lond.
ALLOCATIONE FACIENDA. Eng. law. A writ commanding that an allowance be
made to an accountant, for such moneys as he has lawfully expended in his
office. It is directed to the lord treasurer and barons of the exchequer.
ALLOCATUR, practice. The allowance of a writ; e. g. when a writ of
habeas corpus is prayed for, the judge directs it to be done, by writing the
word allowed and signing his name; this is called the allocator. In the English
courts this word is used to indicate the master or prothonotary's allowance of a
sum referred for his consideration, whether touching costs, damages, or matter
of account. Lee's Dict. h, t.
ALLODIUM estates. Signifies an absolute estate of inheritance, in
coutradistinction to a feud.
2. In this country the title to land is essentially allodial, and every
tenant in fee simple has an absolute and perfect title, yet in technical
language his estate is called an estate in fee simple, and the tenure free and
common socage. 3 Kent, Com. 390; Cruise, Prel. Dis. c. 1, 13; 2 Bl. Com. 45. For
the etymology of this word, vide 3 Kent Com. 398 note; 2 Bouv. Inst. n.
ALLONGE, French law. When a bill of exchange, or other paper, is too
small to receive the endorsements which are to be made on it, another piece of
paper is added to it, and bears the name of allonge. Pard. n. 343; Story on P.
N. 121, 151; Story on Bills, 204. See Rider.
ALLOTMENT. Distribution by lot; partition. Merl. Rep. h. t.
TO ALLOW, practice. To approve; to grant; as to allow a writ of error,
is to approve of it, to grant it. Vide Allocatur. To allow an amount is to admit
or approve of it.
ALLOWANCE TO A PRISONER. By the laws of, it is believed, all the
states, when a poor debtor is in arrest in a civil suit, the plaintiff is
compelled to pay an allowance regulated by law, for his maintenance and support,
and in default of such payment at the time required, the prisoner is discharged.
Notice must be given to the plaintiff before the defendant can be
ALLOY, or ALLAY. An inferior metal, used with gold. and silver in
making coin or public money. Originally, it was one of the allowances known by
the name of remedy for errors, in the weight and purity of coins. The practice
of making such allowances continued in all European mints after the reasns, upon
which they were originally founded, had, in a great measure, ceased. In the
imperfection of the art of coining, the mixture of the metals used, and the
striking of the coins, could not be effected with, perfect accuracy. There would
be some variety in the mixture of metals made at different times, although
intended to be in the same proportions, and in different pieces of coin,
although struck by the same process and from the same die. But the art of
coining metals has now so nearly attained perfection, that such allowances have
become, if not altogether, in a great measure at least, unnecessary. The laws of
the United States make no allowance for deficiencies of weight. See Report of
the Secretary of State of the United States, to the Senate of the U. S., Feb.
22, 1821, pp. 63, 64.
2. The act of Congress of 2d of April, 1792, sect. 12, directs that the
standard for all gold coins of the United States, shall be eleven parts fine to
one part of alloy; and sect. 13, that the standard for all silver coins of the
United States, shall be one thousand four hundred and eighty-five parts fine, to
one hundred and seventy-nine parts alloy. 1 Story's L. U. S. 20. By the act of
Congress, 18th Feb. 1831, 8, it is provided, that the standard for both gold and
silver coin of the United States, shall be such, that of one thousand parts by
weight, nine hundred shall be of pure metal, and one hundred of alloy; and the
alloy of the silver coins shall be of copper, and the alloy of gold coins shall
be of copper and silver, provided, that the silver do not exceed one-half of the
whole alloy. See also, Smith's Wealth of Nations, vol. i., pp. 49, 50.
ALLUVION. The insensible increase of the earth on a shore or bank of a
river by the force of the water, as by a current or by waves. It is a part of
the definition that the addition, should be so gradual that no one can judge how
much is added at each moment of time. Just. Inst. lib. 2, tit. 1, 20; 3 Barn.
& Cress. 91; Code Civil Annote No. 556. The proprietor of the bank increased
by alluvion is entitled to the addition. Alluvion differs from avulsion in this:
that the latter is sudden and perceptible. See avulsion. See 3 Mass. 352; Coop.
Justin. 458; Lord Raym. 77; 2 Bl. Com. 262, and note by Chitty; 1 Swift's Dig.
111; Coop. Just. lib. 2, t. 1; Angell on Water Courses, 219; 3 Mass. R. 352; 1
Gill & Johns. R. 249; Schultes on Aq. Rights, 116; 2 Amer. Law Journ. 282,
293; Angell on Tide Waters, 213; Inst. 2, 1, 20; Dig. 41, 1, 7; Dig. 39, 2, 9;
Dig. 6, 1, 23; Dig. 1, 41, 1, 5; 1 Bouv. Inst. pars 1, c. 1 art. 1, 4, s. 4, p.
ALLY, international law. A power which has entered into an alliance
with another power. A citizen or subject of one of the powers in alliance, is
sometimes called an ally; for example, the rule which renders it unlawful for a
citizen of the United States to trade or carry on commerce with an enemy, also
precludes an ally from similar intercourse. 4 Rob. Rep. 251; 6 Rob. Rep. 406;
Dane's Ab, Index, h. t.; 2 Dall. 15.
ALMANAC. A table or calendar, in which are set down the revolutions of
the seasons, the rising and setting of the sun, the phases of the moon, the most
remarkable conjunctions, positions and phenomena of the heavenly bodies, the
months of the year, the days of the month and week, and a variety of other
2. The courts will take judicial notice of the almanac; for example, whether
a certain day of the month was on a Sunday or not. Vin. Ab. h. t.; 6 Mod. 41;
Cro. Eliz. 227, pl. 12; 12 Vin. Ab. Evidence (A, b, 4.) In dating instrments,
some sects, the Quakers, for example, instead of writing January, February,
March, &c., use the terms, First month, Second month, Third month, &c.,
and these are equally valid in such writings. Vide 1 Smith's Laws of
ALLODARII, Eng. law, Book of Domesday. Such tenants, who have as large
an estate as a subject can have. 1 Inst. 1; Bac. Ab Tenure, A.
ALMS. In its most extensive sense, this comprehends every species of
relief bestowed upon the poor, and, therefore, including all charities. In a
more, limited sense, it signifies what is given by public authority for the
relief of the poor. Shelford on Mortmain, 802, note (x); 1 Dougl. Election Cas.
370; 2 Id. 107; Heywood on Elections, 263.
ALTA PRODITIO, Eng. law. High treason.
ALTARAGE, eccl. law. Offerings made on the altar; all profits which
accrue to the priest by means of the altar. Ayl. Par. 61; 2 Cro. 516.
TO ALTER. To change. Alterations are made either in the contract
itself, or in the instrument which is evidence of it. The contract may at any
time be altered with the consent of the parties, and the alteration may be
either in writing or not in writing.
2. It is a general rule that the terms of a contract under seal, cannot be
changed by a parol agreement. Cooke, 500; 3 Blackf. R. 353; 4 Bibb. 1. But it
has been decided that an alteration of a contract by specialty, made by parol,
makes it all parol. 2 Watts, 451; 1 Wash. R. 170; 4 Cowen, 564; 3 Harr. &
John. 438; 9 Pick. 298; 1 East, R. 619; but see 3 S.& R. 579.
3. When the contract is, in writing, but not under seal, it may be varied by
parol, and the whole will make but one agreement. 9 Cowen, 115; 5.N. H. Rep. 99;
6 Harr. & John, 38; 18 John. 420; 1 John. Cas. 22; 5 Cowen, 606; Pet. C. C.
R. 221; 1 Fairf. 414.
4. When the contract is evidenced by a specialty, and it is altered by parol,
the whole will be considered as a parol agreement. 2 Watt 451; 9 Pick. 298. For
alteration of instruments see Erasure; Interlineation. See, generally, 7 Greenl.
76, 121, 394; 15 John. 200; 2 Penna. R. 454.