ADVOCATI

2, 6. A palmarium, or conditional fee in addition to the lawful charge and depending upon his gaining the cause, was also prohibited; 5 Glück, Pand. 120 et seq. But an agreement to pay a palmarium might be enforced when it was not entered into till after the conclusion of the suit; 1. 1, § 12, D. 50, 13. The compensation of the advocate might also be in the way of an annual salary; 5 Glück, Pand. 122.

Remedy. The advocate had the right to retain papers and instruments of his client until payment of his fee; 1. 26, Dig. 3, 2. Should this fail, he could apply for redress to the court where the cause was tried by petition, a formal action being unnecessary; 5 Glück, Pand. 122.

ADVOCATI (Lat.) In Roman Law. Patrons; pleaders; speakers.

Anciently, any one who lent his aid to a friend, and who was supposed to be able in any way to influence a judge, was called advocatus.

Causidicus denoted a speaker or pleader merely; advocatus resembled more nearly a counsellor; or, still more exactly, causidicus might be rendered barrister, and advocatus attorney; though the duties of an advocatus were much more extended than those of a modern attorney; Du Cange;

Calvinus, Lex.

A witness.

ADVOCATI FISCI. In Civil Law. Those chosen by the emperor to argue his cause whenever a question arose affecting his revenues; Calvinus, Lex.; 3 Bla. Com. 27.

ADVOCATIA. In Civil Law. The functions, duty, or privilege of an advocate; Du Cange, Advocatia.

ADVOCATION. In Scotch Law. The

removal of a cause from an inferior to a superior court by virtue of a writ or warrant issuing from the superior court. See BILL OF ADVOCATION; LETTER OF ADVOCATION. ADVOCATUS. A pleader; a narrator; Bracton, 412 a, 372 b.

ADVOWSON. A right of presentation

to a church or benefice.

He who possesses this right is called the patron or advocate. When there is no patron, or he neglects to exercise his right within six months, it is called a lapse, and 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.

where the bishop himself is a patron; advowson of the moiety of the church, where there are two several patrons and two incumbents in the same church; a moiety of advowson, where two must join the presentation of one incumbent; advowson of religious houses, that which is vested in the person who founded such a house; 2 Bla. Com. 21; Mirehouse, Advowsons; Comyns, Dig. Advowson, Quare Impedit; Bacon, Abr. Simony; Burns, Eccl. Law.

ADVOWTRY. In English Law. The crime committed by a woman who, having committed adultery, continued to live with the adulterer; Cowel; Termes de la Ley.

ADES (Lat.). In Civil Law. A dwelling; a house; a temple.

In the country every thing upon the surface of the soil passed under the term ædes; Du Cange; Calvinus, Lex.

In

ÆDILITIUM EDICTUM (Lat.). Roman Law. That provision by which the buyer of a diseased or imperfect slave, horse, or other animal was relieved at the expense of the vendor who had sold him as sound knowing him to be imperfect; Calvinus, Lex.

AEL (Norman). A grandfather. Spelled also aieul, ayle; Kelham.

ÆS ALIENUM (Lat.). In Civil Law. A debt.

Literally translated, the money of another; the civil law considering borrowed money as the property of another, as distinguished from as suum, one's own.

ÆSTIMATIO CAPITIS (Lat. the value of a head). The price to be paid for taking the life of a human being.

King Athelstan declared, in an assembly held at Exeter, that mulets were to be paid per æstimationem capitis. For a king's head (or life), 30,000 thuringæ ; for an archbishop's or prince's, 15,000; for a priest's or thane's, 2000; Leg. Hen. I.

ÆTAS INFANTILI PROXIMA (Lat.). The age next to infancy. Often written atas infantiæ proxima.

See AGE. 4 Bla. Com. 22.

AFFECTION. The making over, pawning, or mortgaging a thing to assure the payment of a sum of money, or the discharge of some other duty or service; Techn. Dict.

AFFECTUS (Lat.). Movement of the mind; disposition; intention.

One of the causes for a challenge of a juror is propter affectum, on account of a suspicion of bias or favor; 3 Bla. Com. 363; Coke, Litt. 156.

AFFEERORS

To affeer an amercement.-To establish the amount which one amerced in a court-leet should pay.

To affeer an account.-To confirm it on oath in the exchequer; Cowel; Blount; Spelman.

AFFEERORS. In Old English Law. Those appointed by a court-leet to mulet those punishable, not by a fixed fine, but by an arbitrary sum called amercement. Termes de la Ley; 4 Bla. Com. 373.

AFFIANCE (Lat. affidare, ad, fidem, dare, to pledge to).

A plighting of troth between man and woman; Littleton, § 39.

An agreement by which a man and woman promise each other that they will marry together; Pothier, Traité du Mar. n. 24. Marriage; Coke, Litt. 34 a. See Dig. 23, 1. 1; Code, 5. 1. 4.

AFFIANT. A deponent.

AFFIDARE (Lat. ad fidem dare). To pledge one's faith or do fealty by making oath; Cowel.

Used of the mutual relation arising between landlord and tenant; 1 Washb. R. P. 19; 1 Bla. Com. 387; Termes de la Ley, Fealty. Affidavit is of kindred meaning.

must be signed by the officer with the addition of his official title. In the case of some officers the statutes conferring authority to take affidavits require also his seal to be affixed.

In general, an affidavit must describe the deponent sufficiently to show that he is entitled to offer it; for example, that he is a party, or agent or attorney of a party, to the proceeding; 7 Hill, 177; 4 Denio, 71, 258; and this matter must be stated, not by way of recital or as mere description, but as an allegation in the affidavit; 3 N. Y. 41; 8 id. 158. AFFIDAVIT OF DEFENCE. In

Practice. A statement made in proper form that the defendant has a good ground of defence to the plaintiff's action upon the merits.

The statements required in such an affidavit vary considerably in the different states where

they are required. In some, it must state a ground of defence; 1 Ashm. 4; Troub. & H. Pr. § 399; in others, a simple statement of belief that it exists is sufficient. Called also an affida

vit of merits, as in Massachusetts. See as to its

salutary effect, 20 Penn. 387; 1 Grant, 190.

It must be made by the defendant, or some person in his behalf who possesses a knowledge of the facts; 1 Ashm. 4.

AFFIDAVIT (Lat.). In Practice. A statement or declaration reduced to writing, and sworn or affirmed to before some officer who has authority to administer an oath or

An affidavit includes the oath, and may show what facts the affiant swore to, and thus be available as an oath, although unavailable as an affidavit; 28 Wis. 460.

By general practice, affidavits are allowable to present evidence upon the hearing of a motion, although the motion may involve the very merits of the action; but they are not allowable to present evidence on the trial of an issue raised by the pleadings. Here the witnesses must be produced before the adverse party. They are generally required on all motions to open defaults or to grant delay in the proceedings and other applications by the defendant addressed to the favor of the court. Formal parts.-An affidavit must intelligibly refer to the cause in which it is made. The strict rule of the common law is that it must contain the exact title of the cause. This, however, is not absolutely essential; 80 Ill. 307. The place where the affidavit is taken must be stated, to show that it was taken within the officer's jurisdiction; 1 Barb. Ch. Pr. 601. The deponent must sign the affidavit at the end; 11 Paige, Ch. 173. The jurat

AFFIDAVIT TO HOLD TO BAIL.

In Practice. An affidavit which is required in many cases before a person can be arrested.

Such an affidavit must contain a statement, clearly and certainly expressed, by some one acquainted with the fact, of an indebtedness from the defendant to the plaintiff, and must show a distinct cause of action; Selwyn, Pr. 104; 1 Chitty, Plead. 165. See BAIL.

AFFILARE. To put on record; to file; 8 Coke, 319; 2 M. & S. 202.

AFFILIATION. In French Law. A

species of adoption which exists by custom in some parts of France.

The person affiliated succeeded equally with other heirs to the property acquired by the deceased to whom he had been affiliated, but not to that which he inherited.

In Ecclesiastical Law. A condition which prevented the superior from removing the person affiliated to another convent; Guyot, Répert.

AFFINES (Lat. finis). In Civil Law. Connections by marriage, whether of the persons or their relatives; Calvinus, Lex.

From this word we have affinity, denoting relationship by marriage; 1 Bla. Com. 434.

related significations-a boundary; Du Cange; The singular, affinis, is used in a variety of a partaker or sharer, affinis culpa (an aider or one who has knowledge of a crime); Calvinus, Lex.

AFFINITAS. In Civil Law. Affinity.

AFFINITAS AFFINITATIS

AFFINITAS AFFINITATIS. That connection between parties arising from marriage which is neither consanguinity nor affinity.

This term intends the connection between the kinsmen of the two persons married, as, for example, the husband's brother and the wife's sister; Erskine, Inst. 1. 6. 8.

AFFINITY. The connection existing, in consequence of marriage, between each of the married persons and the kindred of the other. It is distinguished from consanguinity, which denotes relationship 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, sisters, etc., 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.

A person cannot, by legal succession, receive an inheritance from a relation by affinity; neither does it extend to the nearest relations of husband 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 1 Bla. Com. 435; Pothier, Traité du Mar. pt. 3, c. 3, art. 2; Inst. 1, 10, 6; Dig. 38, 10, 4. 3; 1 Phill. Eccl. 210; 5 Mart. La. 296.

AFFIRM (Lat. affirmare, to make firm; to establish).

To ratify or confirm a former law or judgment; Cowel.

Especially used of confirmations of the judg ments of an inferior by an appellate tribunal. To ratify or confirm a voidable act of the party.

To make a solemn religious asseveration in the nature of an oath. See AFFIRMATION. AFFIRMANCE. The confirmation of a voidable act by the party acting, who is to be bound thereby.

The term is in accuracy to be distinguished from ratification, which is a recognition of the validity or binding force as against the party ratifying, of some act performed by another person; and from confirmation, which would seem to apply more properly to cases where a doubtful authority has been exercised by another in behalf of the person ratifying; but these distinctions are not generally observed with much care; 1 Parsons, Contr. 243.

Express affirmance takes place where the party declares his determination of fulfilling the contract; Dudl. Ga. 203.

A mere acknowledgment that the debt existed, or that the contract was made, is not an affirm

ance; 10 N. H. 561; 2 Esp. 628; 1 Bail. 28; 9 Conn. 330; 2 Hawks, 535; 1 Pick. 203; Dudl. Ga. 203; but it must be a direct and express confirmation, and substantially (though it need not be in form) a promise to pay the debt or fulfil the contract; 3 Wend. 479; 4 Day, 57; 12 Conn. 550; 8 N. H. 374; 2 Hill, 120; 19 Wend. 301; 1 Pars. Contr. 243; Bingham, Inf., 1st Am. ed. 69.

Implied affirmance arises from the acts of the party without any express declaration; 15 Mass. 220. See 10 N. H. 194; 11 S. & R. 305; 1 Pars. Contr. 243; 1 Bla. Com. 466, n. 10.

AFFRAY

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, Pract. 1091.

AFFIRMANT. In 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. See PERJURY. AFFIRMATION. In Practice. A sol

emn religious asseveration in the nature of an oath; 1 Greenl. Ev. § 371.

Quakers, as a class, and other persons who have conscientious scruples against taking an oath, are allowed to make aflirmation in any mode which they may declare to be binding upon their consciences, in confirmation of the truth of testimony which they are about to give; 1 Atk. 21, 46; Cowp. 340, 389; 1 Leach, Cr. Cas. 64; 1 Ry. & M. 77; 6 Mass. 262; 16 Pick. 153; Buller, Nisi P. 292; 1 Greenl. Ev. § 371.

AFFIRMATIVE. That which estab

lishes; that which asserts a thing to be true.

It is a general rule of evidence that the affirmative of the issue must be proved; Buller, Nisi P. 298; Peake, Ev. 2. 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; Buller, Nisi P. 298; 1 Rolle, 83; Comb. 57; 3 Bos. & P. 307.

AFFIRMATIVE PREGNANT.

In

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 in six years, the defendant pleads that he did not undertake, etc., within ten years, a replication that he did undertake, etc., within ten years would be an affirmative pregnant; since it would impliedly admit that the defendant had not promised within six years. Such a plea should be demurred to; Gould, Pl. c. 6, S$ 29, 37; Stephen, Pl. 381; Lawes, Civ. Pl. 113; Bacon, Abr. Pleas (n. 6).

AFFORCE THE ASSIZE. To compel unanimity among the jurors who disagree.

It was done either by confining them without meat and drink, or, more anciently, by adding other jurors to the panel, to a limited extent, securing the concurrence of twelve in a verdict. See Bracton, 185 b, 292 a; Fleta, book 4, c. 9, § 2.

The practice is now discontinued.
AFFRANCHISE. To make free.
AFFRAY. In Criminal Law.

The

fighting of two or more persons in some public place to the terror of the people.

It differs from a riot in not being premedi

AGE-PRAYER

seven to fourteen, was divided into two periods; the first, extending from seven to ten and a half, was called the period nearest childhood (tas infantice proxima); the other, from ten and a half to fourteen, the period nearest puberty (atas pubertati proxima); puberty (pubertas) extended from fourteen to eighteen: full puberty extended from eighteen to twenty-five: at twenty-five, the person was major. See Taylor, Civ. Law, 254; Leçon El. du Droit Civ. 22.

AGE-PRAYER. A statement made in a real action to which an infant is a party, of the fact of infancy and a request that the proceedings may be stayed until the infant becomes of age.

It is now abolished; stat. 11 Geo. IV.; 1 Will. IV. c. 37, § 10; 1 Lilly, Reg. 54;

3 Bla. Com. 300.

AGENCY. A relation between two or more persons, by which one party, usually called the agent or attorney, is authorized to do certain acts for, or in relation to the rights or property of, the other, who is denominated the principal, constituent, or employer; Prof. Joel Parker, MS. Lect. 1851.

A contract by which one person, with greater or less discretionary power, undertakes to represent another in certain business relations; Whart. Agency, 1.

The right on the part of the agent to act, is termed his authority or power. In some instances the authority or power must be exercised in the name of the principal, and the act done is for his benefit alone. In others, it may be executed in the name of the agent, and, if the power is coupled with an interest on the part of the agent, it may be executed for his own benefit; Prof. Joel Parker, Harvard Law School Lect. 1851.

The creation of the agency, when express, may be either by deed, in writing not by deed, or by a verbal delegation of authority; 2 Kent, 612; 3 Chitty, Com. Law, 104; 9 Ves. 250; 11 Mass. 27, 97, 288; 1 Binn. 450; 4 Johns. Ch. 667.

When the agency is not express, it may be inferred from the relation of the parties and the nature of the employment, without proof of any express appointment; 2 Kent, 613; 15 East, 400; 1 Wash. Va. 19; 5 Day,

556.

In most of the ordinary transactions of business, the agency is either conferred verbally, or is implied from circumstances. But where the act is required to be done in the name of the principal by deed, the authority to the agent must also be by deed, unless the principal be present and verbally or impliedly authorize the agent to fix his name to the deed; 1 Liverm. Ag. 35; Paley, Ag. 157; Story, Ag. §§ 49, 51; 5 Binn. 613; Wend. 424; 9 id. 54, 68; 12 id. 525; 14 S. & R.

331.

The authority may be general, when it extends to all acts connected with a particular business or employment; or special, when it is confined to a single act; Story, Ag. § 17; 21 Wend. 279; 9 N. H. 263; 3 Black f. 436.

AGENCY

If the powers are special, they form the limits of the authority; if general, they will be more liberally construed, according to the neces sities of the occasion and the course of the transaction.

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; 2 Kent, 614. If, with full knowledge of what the agent has done, the principal ratify the act, the ratification will be equivalent to an original authority,-according to the maxim, omnis ratihabitio retrotrahitur et mandato æquiparatur; Paley, Ag. 172; 4 Ex. 798. The ratification relates back to the original making of the contract; 31 L. J. Ex. 163; except as to intermediate vested rights; 4 Ct. Cl. It must be ratified in its entirety; 31 N. Y. 511; 49 Ill. 59; 43 Mo. 113; 12 Minn. 255. 611; 1 Oreg. 115; 45 Ga. 153; 27 Mo. 163; 31 Iowa, 547; and subject to the charges imposed by the agent; 9 H. L. C. 391. An intention to ratify may be presumed from the silence of the principal who has received a has been done on his account; 12 Wall. 358; letter from the agent informing him of what 69 id. 426; 21 Mich. 374; 37 Ill. 442; 26 2 Biss. 255; 105 Mass. 551; 49 Penn. 457; Iowa, 38; 27 Tex. 120; or from any acts inconsistent with a contrary presumption; 26 Me. 84; 69 Penn. 426; 59 Ill. 23; 12 Kan. 135; or from a suit by the principal; 56 Me. 564; 21 Ark. 539; 28 III. 135; 9 B. & C. 59; 12 Wall. 681; 12 Johns. 300; 3 Cow. N. Y. 281; 4 Wash. C. C. 549; 14 S. & R. 30. Ratification can only take place where the agent professed to act for the person ratifying; 5 B. & C. 909; Leake, Contracts, 470. Thus a forged signature to a note cannot be ratified; L. R. 6 Ex. 89; contra, 46 Me. 176; 32 Ill. 387; 33 Conn. 95; 42 Penn. 143; Whart. Ag. § 71.

The business of the agency may concern either the property of the principal, of a third person, of the principal and a third person, or of the principal and the agent, but must not relate solely to the business of the agent. A contract in relation to an illegal or immoral transaction cannot be the foundation of a legal agency; 1 Liverm. Ag. 6, 14.

The termination of the agency may be by a countermand of authority on the part of the principal, at the mere will of the principal; and this countermand may, in general, be effected at any time before the contract is completed; 3 Chitty, Com. & Manuf. 223; Story, Ag. §§ 463, 465; 53 Penn. 256; 46 id. 426; Whart. Ag. § 94; even though in terms irrevocable, provided there is no valid consideration, and the agent has not an interest in the execution of the authority entrusted to him; Story, Ag. §§ 476, 477. But when the 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