ANSWER, practice. The declaration of a fact by a witness
after a question has been put asking for it.
2. If a witness unexpectedly state facts against the interest of the party
calling him, other witnesses may be called by the same party, to disprove those
facts. But the party calling a witness cannot discredit him, by calling
witnesses to prove his bad character for truth and veracity, or by proving that
he has made statements out of court contrary to what he has sworn on the trial;
B. N. P.; for the production of the witness is virtually an assertion by the
party producing him, that he is credible.
ANTECEDENT. Something that goes before. In the construction of laws,
agreements, and the like, reference is always to be made to the last antecedent;
ad proximun antecedens fiat relatio. But not only the antecedents but the
subsequent clauses of the instrument must be considered: Ex antecedentibus et
consequentibus fit optima interpretatio.
/B>. Before suit brought, before controversy moved.
ANTEDATE. To, put a date to an instrument of a time before the time it
was written. Vide Date.
ANTENATI. Born before. This term is applied to those who were born or
resided within the United States before or at the time of the declaration of
independence. These had all the rights of citizens. 2 Kent, Com. 51, et seq.
ANTE-NUPTIAL. What takes place before marriage; as, an ante-nuptial
agreement, which is an agreement made between a man and a woman in contemplation
of marriage. Vide Settlement.
ANTHETARIUS, obsolete See Anti-thetarius.
ANTI-MANlFESTO. The declaration of the reasons which one of the
belligerents publishes, to show that the war as to him is defensive. Wolff,
1187. See Manifesto.
ANTlCIPATION. The act of doing or taking a thing before its proper
2. In deeds of trust there is frequently a provision that the income of the
estate shall be paid by the trustee as it shall accrue, and not by way of
anticipation. A payment made contrary to such provision would not be considered
as a discharge of the trustee.
ANTICHRESIS, contracts. A word used in the civil law to denote the
contract by which a creditor acquires the right of reaping the fruit or other
revenues of the immovables given to him in pledge, on condition of deducting,
annually, their proceeds from the interest, if any is due to him, and afterwards
from the principal of his debt. Louis. Code, art. 3143 Dict. de Juris.
Antichrese, Mortgage; Code Civ. 2085. Dig. 13, 7, 7 ; 4, 24, 1 Code, 8, 28,
ANTINOMY. A term used in the civil law to signify the real or apparent
contradiction between two laws or two decisions. Merl. Repert. h. t. Vide
Conflict of Laws.
ANTIQUA CUSTOMA, Eng. law. A duty or imposition which was collected on
wool, wool-felts, and leather, was so called. This custom was called nova
customa until the 22 Edw. I., when the king, without parliament, set a new
imposition of 40s. a sack, and then, for the first time, the nova customa went
by the name of antiqua customa. Bac. Ab. Smuggling &c. B.
ANTIQUA STATUTA. In England the statutes are divided into new and
ancient statutes; since the time of memory; those from the time 1 R. I. to E.
III., are called antiqua statuta – those made since, nova statuta.
ANTITHETARIUS, old English law. The name given to a man who endeavors
to discharge himself of the crime of which he is accused, by retorting the
charge on the accuser. He differs from an approver (q, v.) in this, that the
latter does not charge the accuser, but others. Jacob's Law Dict.
APARTMENTS. A part of a house occupied by a person, while the rest is
occupied by another, or others. 7 Mann. & Gr. 95 ; 6 Mod. 214 ; Woodf. L.
& T. 178. See House.
APOSTACY, Eng. law. A total renunciation of the Christian religion,
and differs from heresy. (q. v.) This offence is punished by the statute of 9
and 10 W. III. c. 32. Vide Christianity.
APOSTLES. In the British courts of admiralty, when a party appeals
from a decision made against him, he prays apostles from the judge, which are
brief letters of dismission, stating the case, and declaring that the record
will be transmitted. 2 Brown's Civ. and Adm. Law, 438; Dig. 49. 6.
2. This term was used in the civil law. It is derived from apostolos, a Greek
word, which signifies one sent, because the judge from whose sentence an appeal
was made, sent to the superior judge these letters of dismission, or apostles.
Merl. Rep. mot Apotres.
APPARATOR or APPARITOR, eccles. law. An officer or messenger employed
to serve the process of the spiritual courts in England.
APPARENT. That which is manifest what is proved. It is required that
all things upon which a court must pass, should be made to appear, if matter in
pays, under oath if matter of record, by the record. It is a rule that those
things which do not appear, are to be considered as not existing de non
apparentibus et non existentibus eadem est ratio. Broom's Maxims, 20, What does
not appear, does not exist; quod non apparet, non est.
APPARLEMENT. Resemblance. It is said to be derived from pareillement,
French, in like manner. Cunn. Dict. h. t.
APPEAL, English crim. law. The accusation of a person, in a legal
form, for a crime committed by him; or, it is the lawful declaration of another
man's crime, before a competent judge, by one who sets his name to the
declaration, and undertakes to prove it, upon the penalty which may ensue
thereon. Vide Co. Litt. 123 b, 287 b; 6 Burr. R. 2643, 2793; 2 W. Bl. R. 713; 1
B. & A. 405. Appeals of murder, as well as of treason, felony, or other
offences, together with wager of battle, are abolished by stat. 59 Geo. M. c.
APPEAL, practice. The act by which a party submits to the decision of
a superior court, a cause which has been tried in an inferior tribunal. 1 S.
& R. 78 Bin. 219; 3 Bin. 48.
2. The appeal generally annuls the judgment of the inferior court, so far
that no action can be taken upon it until after the final decision of the cause.
Its object is to review the whole case, and to secure a just judgment upon the
3. An appeal differs from proceedings in error, under which the errors
committed in the proceedings are examined, and if any have been committed the
first judgment is reversed; because in the appeal the whole case is exainined
and tried as if it had not been tried before. Vide Dane's Ab. h. t.; Serg.
Const. Law Index, h. t. and article Courts of the United States.
APPEARANCE, practice. Signifies the filing common or special bail to
2. The appearance, with all other subsequent pleadings supposed to take
placein court, should (in accordance with the ancient practice) purport to be in
term time. It is to be observed, however, that though the proceedings are
expressed as if occurring in term time, yet, in fact, much of the business is
now done, in periods of vacation.
3. The appearance of the parties is no longer (as formerly) by the actual
presence in court, either by themselves or their attorneys; but, it must be
remembered, an appearance of this kind is still supposed, and exists in
contemplation of law. The appearance is effected on the part of the defendant
(when be is not arrested) by making certain formal entries in the proper office
of the court, expressing his appearance; 5 Watts & Serg. 215; 1 Scam. R.
250; 2 Seam. R. 462; 6 Port. R. 352; 9 Port. R. 272; 6 Miss. R. 50; 7 Miss. R.
411; 17 Verm. 531; 2 Pike, R. 26; 6 Ala. R. 784; 3 Watts & Serg. 501; 8
Port. R. 442; or, in case of arrest, it may be considered as effected by giving
bail to the action. On the part of the plaintiff no formality expressive of
appearance is observed.
4. In general, the appearance of either party may be in person or by
attorney, and, when by attorney, there is always supposed to be a warrant of
attorney executed to the attorney by his client, authorizing such
5. But to this general rule there are various exceptions; persons devoid of
understanding, as idiots, and persons having understanding, if they are by law
deprived of a capacity to appoint an attorney, as married women, must appear in
person. The appearance of such persons must purport, and is so entered on the
record, to be in person, whether in fact an attorney be employed or not. See
Tidd's Pr. 68, 75; 1 Arch. Pract. 22; 2 John. 192; 8 John. 418; 14 John. 417; 5
Pick. 413; Bouv. Inst. Index, h. t.
6. There must be an appearance in person in the following cases: 1st. An
idiot can appear only in person, and as, a plaintiff he may sue in person or by
his next friend 2d. A married woman, when sued without her hushand, should
defend in person 3 Wms. Saund. 209, b and when the cause of action accrued
before her marriage, and she is afterwards sued alone, she must plead her
coverture in person, and not by attorney. Co. Litt. 125. 3d. When the party
pleads to the jurisdiction, be must plead in person. Summ.on Pl. 51; Merrif. Law
of Att. 58. 4th. A plea of misnomer must always be in person, unless it be by
special warrant of attorney. 1 Chit. PI. 398; Summ. on PI. 50; 3 Wms. Saund. 209
7. An infant cannot appoint an attorney; he must therefore prosecute or
appear by guardian, or prochein ami.
8. A lunatic, if of full age, may appear by. attorney; if, under age, by
guardian. 2 Wms. Saund. 335; Id. 332 (a) n. (4.)
9. When an appearance is lawfully entered by the defendant, both parties are
considered as being in court. lmp. Pr. 215. And if the defendant pleads to
issue, defects of process are cured but not, if he demurs to the process, (I
Lord Raym. 21,) or, according to the practice of some courts, appears de bene
esse, or otherwise conditionally.
10. In criminal cases, the personal presence of the accused is often
necessary. It has been held, that if the record of a conviction of a misdemeaner
be removed by certiorari, the personal presence of the defendant is necessary,
in order to move in arrest. of judgment: but, after a special verdict, it is not
necessary that the defendant should be personally present at the argument of it.
2 Burr. 931 1 Bl. Rep. 209, S. C. So, the defendant must appear personally in
court, when an order of bastardy is quashed and the reason is, he must enter
into a recognizance to abide the order of sessions below. 1 Bl. Rep. 198. So, in
a case, when two justices of the peace, having confessed an information for
mishehaviour in the execution of their office, and a motion was made to dispense
with their personal appearance, on their clerks undertaking in court to answer
for their flues, the court declared the rule to be, that although such a motion
was subject to the discretion of the court either to grant or refuse it, in
cases where it is clear that the punishment would not be corporal, yet it ought
to be denied in every case where it is either probable or possible that the
punishment would be corporal; and therefore the motion was overruled in that
case. And Wilmot and Ashton, Justices, thought, that even where the punishment
would most probably be pecuniary only, yet in offences of a very gross and
public nature, the persons convicted should appear in person, for the sake of
example and prevention of the like offences being committed by other persons; as
the notoriety of being called up to answer criminally for such offences, would
very much conduce to deter others from venturing to commit the like. 3 Burr.
APPEARANCE DAY. The day on which the parties are bound to appear in
court. This is regulated in the different states by particular provisions.
APPELLANT, practice. He who makes an appeal from one jurisdiction to
APPELLATE JURISDICTION. The jurisdiction which a superior court has to
bear appeals of causes which have been tried in inferior courts. It differs from
original jurisdiction, which is the power to entertain suits instituted in the
first in stance. Vide Jurisdiction; Original jurisdiction.
APPELLEE, practice. The party in a cause against whom an appeal has
APPELLOR. A criminal who accuses his accomplices; one who challenges a
APPENDANT. An incorporeal inheritance belonging to another
2. By the word appendant in a deed, nothing can be conveyed which is itself
substantial corporeal real property, and capable of passing by feoffment and
livery of seisin: for one kind of corporeal real property cannot be appendant to
another description of the like real property, it being a maxim that land cannot
be appendant to land. Co. Litt. 121; 4 Coke, 86; 8 Barn. & Cr. 150; 6 Bing.
150. Only, such things can be appendant as can consistently be so, as a right of
way, and the like. This distinction is of importance, as will be seen by the
following case. If a wharf with the appurtenances be demised, and the water
adjoining the wharf were in tended to pass, yet no distress for rent on the
demised premises could be made on a barge on the water, because it is not a
place which could pass as a part of the thing demised. 6 Bing. 150.
3. Appendant differs from appurtenant in this, that the former always arises
from prescription, whereas an appurtenance may be created at any time. 1 Tho.
Co. Litt. 206; Wood's Inst. 121; Dane's Abr. h. t.; 2 Vin. Ab. 594; Bac. Ab.
Common, A 1. And things appendant must have belonged by prescription to another
principal substantial thing, which is considered in law as more worthy. The
principal thing and the appendant must be appropriate to each other in nature
and quality, or such as may be properly used together. 1 Chit. Pr. 154.
APPENDITIA. From appendo, to hang at or on; the appendages or pertinances
of an estate the appurtenauces to a dwelling, &c.; thus pent-houses,
are the appenditia domus, &c.