Imágenes de páginas
PDF
EPUB

TO THE HONORABLE

JOSEPH STORY, LL. D.,

ONE OF THE JUDGES OF THE SUPREME COURT OF THE UNITED STATES,

his Mork

IS,

WITH HIS PERMISSION,

MOST RESPECTFULLY DEDICATED,

AS A TOKEN OF THE

GREAT REGARD ENTERTAINED FOR HIS TALENTS, LEARNING, AND CHARACTER,

BY

THE AUTHOR.

A

LAW DICTIONARY.

FOR A TABLE OF ABBREVIATIONS, SEE TITLE ABBREVIATIONS.

A. The first letter of the alphabet.

A.

It is used to distinguish the first page of a folio, the second being marked "b," thus: Coke, Litt. 114 a, 114 b. It is also used as an abbreviation for many words of which it is the initial letter. See ABBREVIATIONS.

In Latin phrases it is a preposition, denoting from, by, in, on, of, at, and is of common use as a part of a title.

In French phrases it is also a preposition, denoting of, at, to, for, in, with.

Among the Romans this letter was used in criminal trials. The judges were furnished with small tables covered with wax, and each one inscribed on it the initial letter of his vote: A (absolvo) when he voted to acquit the accused; C (condemno) when he was for condemnation; and NL (non liquet), when the matter did not appear clearly, and he desired a new argument.

The letter A (i. e. antiquo, “for the old law") was inscribed upon Roman ballots under the Lex Tabellaria, to indicate a negative vote; Tayl. Civ. Law, 191, 192.

A CONSILIIS (Lat. consilium, advice). A counsellor. The term is used in the civil law by some writers instead of a responsis. Spelm. Gloss. Apocrisarius.

A LATERE (Lat. latus, side). Collateral. Used in this sense in speaking of the - succession to property. Bract. 20 b, 62 b. Without right. Bract. 42 b.

Apostolic; having full powers to represent the Pope as if he were present. Du Cange, Legati a latere; 4 Bla. Com. 306.

A ME (Lat. ego, I). A term denoting direct tenure of the superior lord. 2 Bell, H. L. Sc. 133.

Unjustly detaining from me. He is said to withhold a me (from me) who has obtained possession of my property unjustly. Calvinus, Lex.

To pay a me, is to pay from my money. A MENSA ET THORO (Lat. from table and bed, but more commonly translated, from bed and board). A kind of divorce, which is rather a separation of the parties by law, VOL. I.-2

than a dissolution of the marriage. This species of divorce is practically abolished in Massachusetts, by statute 1870, c. 404. See 2 Bish. M. & D. § 743 a; 1 id. §§ 29, 39, 705. See DIVORCE.

A PRENDRE (Fr. to take, to seize). Rightfully taken from the soil; 5 Ad. & É. 764; 1 N. & P. 172; 4 Pick. 145.

fers from a right of way or other easement which Used in the phrase profit à prendre, which difconfers no interest in the land itself; 5 B. & C. 221; 2 Washb. R. P. 25.

A QUO (Lat.). From which.

has been removed.
A court a quo is a court from which a cause
The judge a quo is the
judge in such court; 6 Mart. La. 520. Its
correlative is ad quem.

Which are to be paid or yielded. Profits à
A RENDRE (Fr. to render, to yield).
rendre comprehend rents and services; Ham-
mond, Nisi P. 192.

A RETRO (Lat.). In arrear.

A RUBRO AD NIGRUM (Lat. from red to black). From the (red) title or rubric to the (black) body of the statute. It was anciently the custom to print statutes in this manner; Erskine, Inst. 1, 1, 49.

A VINCULO MATRIMONII (Lat. from the bond of matrimony). A kind of divorce which effects a complete destruction of the marriage contract. See DIVORCE.

AB ACTIS (Lat. actus, an act). A notary; one who takes down words as they are spoken. Du Cange, Acta; Spelm. Gloss. Cancellarius.

A reporter who took down the decisions or acta of the court as they were given.

AB ANTE (Lat. ante, before). In ad

[blocks in formation]

AB EXTRA

AB EXTRA (Lat. extra, beyond, without). From without. 14 Mass. 151.

AB INCONVENIENTI (Lat. inconveniens). From hardship; from what is incon venient. An argument ab inconvenienti is an argument drawn from the hardship of the

case.

AB INITIO (Lat. initium, beginning). From the beginning; entirely; as to all the acts done; in the inception.

An estate may be said to be good, an agreement to be void, an act to be unlawful, a trespass to have existed, ab initio; Plowd. 6 a; 11 East, 395; 10 Johns. 253, 369; 1 Bla. Com. 440. See Adams, Eq. 186. See TRESPASS; TRESPASSER. Before. Contrasted in this sense with ex post facto, 2 Bla. Com. 308, or with postea, Calvinus, Lex., Initium.

AB INTESTAT. Intestate. 2 Low. Can. 219. Merlin, Repert.

AB INTESTATO (Lat. testatus, having made a will). From an intestate. Used both in the common and civil law to denote an inheritance derived from an ancestor who died without making a will; 2 Bla. Com. 490; Story, Confl. L. 480.

AB INVITO (Lat. invitum). Unwillingly.

See INVITUM.

AB IRATO (Lat. iratus, an angry man). By one who is angry. A devise or gift made by a man adversely to the interest of his heirs, on account of anger or hatred against them, is said to be made ab irato. A suit to set aside such a will is called an action ab irato; Merlin, Repert. Ab irato.

ABACTOR (Lat. ab and agere, to lead away). One who stole cattle in numbers. Jacob, Law Dict. One who stole one horse, two mares, two oxen, two she-goats, or five

rams.

Abigeus was the term more commonly

used to denote such an offender.

ABADENGO. Spanish Law. Lands, town, and villages belonging to an abbot and under his jurisdiction. All lands belonging to ecclesiastical corporations, and as such exempt from taxation; Escriche, Dicc. Raz.

Lands of this kind were usually held in mortmain, and hence a law was enacted declaring that no land liable to taxation could be given to ecclesiastical institutions ("ningun Realengo non pase a abadengo"), which is repeatedly insisted

on.

ABALIENATIO (Lat. alienatio). The most complete method used among the Romans of transferring lands. It could take place only between Roman citizens. Calvinus, Lex., Abalienatio; Burr. Law Dic.

[blocks in formation]

owner of a ship surrenders the ship and freight to a creditor who has become such by contracts made by the master.

The effect of such abandonment is to re

lease the owner from any further responsibility. The privilege in case of contracts is limited to those of a maritime nature; Po

thier, Chart. Part. sec. 2, art. 2, § 51; Code de Commerce, lib. 2, tit. 2, art. 216. Similar provisions exist in England and the United States to some extent; 1 Parsons, Mar. Law, 395-405; 5 Sto. 465; 16 Bost. Law Rep. 686; 5 Mich. 368. See ABANDONMENT FOR TORTS.

By Husband or Wife. The act of a husband or wife who leaves his or her consort perpetual separation. See DESERTION. wilfully, and with an intention of causing

In Insurance. The transfer by an assured to his underwriters of his interest in the insured subject, or the proceeds of it, or claims arising from it, so far as the subject is insured by the policy.

The term is used only in reference to risks in navigation; but the principle is applicable in fire insurance, where there are remnants, and sometimes also under stipulations in life policies in favor of creditors; 2 Phillips, Ins. SS 1490, 1514, 1515; 3 Kent, 265; 16 Ohio St. 200.

The object of abandonment being to recover the whole value of the subject of the insurance, it can occur only where the subject itself, or remains of it, or claims on account of it, survive the peril which is the occasion

may

of the loss. 2 Phillips, Ins. §§ 1507, 1516; 36 Eng. L. & Eq. 198; 3 Kent, 321; 3 Bing. N. C. 266. In such case the assured must elect, immediately on receiving intelligence of a loss, whether to abandon, and not delay for the purpose of speculating on the state of the markets; 2 Phillips, Ins. § 1667. He have a reasonable time to inspect the cargo, but for no other purpose; 3 Kent, 320. He must give notice promptly to the insurer of his intention; five days held too late; 5 M. & S. 47; see L. R. 5 C. P. 341. In America, it appears that the right of abandonment is to be judged by the facts of each particular case as they existed at the time of abandonment; 3 Mas. 27; 2 Phillips, Ins. In England, the aban$1536; 12 Pet. 378. donment may be affected by subsequent occurrences, and the facts at the time of action brought determine the right to recover; 4 M. & S. 394; 2 Burr. 1198. But this rule has been doubted in England; 2 Dow, 474; 3 Kent, 324.

By the doctrine of constructive total loss, ABAMITA (Lat.). The sister of a great-a loss of over one-half of the property insured, great-grandfather; Calvinus, Lex. or damage to the extent of over one-half its value, by a peril insured against, may be

ABANDONMENT. The relinquishment or surrender of rights or property by one per-turned into a total loss by abandonment; 2 son to another.

Pars. Mar. Ins. 126; 20 Wend. 287; 3 Johns. Cas. 182; 1 Gray, 154; 3 Mass. 27. This does not appear to be the English rule; 9 C. B. 94; 1 H. of L. 513. See 4 Am. L. In Maritime Law. The act by which the | Reg. 481; 1 Gray, 371.

In Civil Law. The act by which a debtor surrenders his property for the benefit of his creditors; Merlin, Repert.

ABANDONMENT

The right is waived by commencing repairs;
2 Pars. Mar. Ins. 140; 3 Mas. 429; 3 Wend.
658; 5 Cow. 63; but not by temporary re-
pairs; 2 Phillips, Ins. §§ 1540, 1541; but is
not lost by reason of the enhancement of the
loss through the mere negligence or mistakes
of the master or crew. It is too late to
abandon after the arrival in specie at the port
of destination; 2 Parsons, Mar. Ins. 128; 4
H. of L. 24; 15 Wend. 453. See 3 S. & R. 25.
An inexpedient or unnecessary sale of the
subject by the master does not strengthen the
right; 2 Phillips, Ins. §§ 1547, 1555, 1570,
1571. See SALVAGE; TOTAL Loss.

Abandonment may be made upon informa-
tion entitled to credit, but if made specula-
tively upon conjecture, it is null.

In the absence of any stipulation on the
subject, no particular form of abandonment
is required; it may be in writing or oral, in
express terms or by obvious implication (but
see 1 Campb. 541); but it must be absolute
and unconditional, and the ground for it must
be stated; 2 Phillips, Ins. §§ 1678, 1679 et
seq.; 1 Curt. C. C. 148; 4 Dall. 272; 18
Pick. 83; see 9 Metc. 354; 9 Mo. 406. Ac-
ceptance may cure a defect in abandonment,
but is not necessary to its validity; 2 Phillips,
Ins. § 1689. Nor is the underwriter obliged
to accept or decline. He may, however, waive
it; 2 Phillips, Ins. § 1698. But it is not sub-
ject to be defeated by subsequent events; 2
Phillips, Ins. § 1704; 3 Mas. 27, 61, 429;
Cranch, 29; 9 Johns. 21. See supra. And
the subject must be transferred free of incum-
brance except expense for salvage; 1 Gray,
154; 5 Cow. 63. See TOTAL LOSS.

Of Rights. The relinquishment of a right.
It implies some act of relinquishment done by
the owner without regard to any future pos-
session by himself, or by any other person,
but with an intention to abandon; 14 M. &
W. 789; 9 Metc. 395. Mere non-user does
not necessarily or usually constitute an aban-
donment; 10 Pick. 310; 23 id. 141; 3 Strobh.
224; 5 Rich. 405; 16 Barb. 150; 24 id. 44 ;
see Tudor, Lead. Cas. 130; 2 Washb. R. P.
83-85.

Abandonment is properly confined to in-
corporeal hereditaments, as legal rights once
vested must be divested according to law,
though equitable rights may be abandoned;
2 Wash. C. C. 106; 25 Penn. St. 259; 32
id. 401; 15 N. H. 412; see 1 Hen. & M.
429; and an abandonment combined with
sufficiently long possession by another party
destroys the right of the original owner; 10
Watts, 192; 2 Metc. Mass. 32; 6 id. 337;
31 Me. 381; see also 8 Wend. 480; 16 id.
545; 3 Ohio, 107; 3 Penn. St. 141; 2 Washb.
R. P. 453-458.

There may be an abandonment of an ease-
ment; 5 Gray, 409; 9 Metc. 395; 6 Conn.
289; 10 Humphr. 165; 16 Wend. 531; 16
Barb. 184; 3 B. & C. 332; of a mill site; 17
Mass. 297, 23 Pick. 216; 34 Me. 394; 4
M'Cord, 96; 7 Bingh. 682; an application
for land; 2 S. & R. 378; 5 id. 215; of an

[blocks in formation]

improvement; 1 Yeates, 515; 2 id. 476; 3
S. & R. 319; of a trust fund; 3 Yerg. Tenn.
258; of an invention or discovery; 1 Stor. C.
C. 280; 4 Mas. 111; property sunk in a
steamboat and unclaimed; 12 La. An. 745;
a mining claim; 6 Cal. 510; a right under a
land warrant; 23 Penn. St. 271.

The question of abandonment is one of fact
for the jury; 2 Washb. R. P. 82.

The effect of abandonment when acted upon
by another party is to divest all the owner's
rights; 6 Cal. 510; 11 Ill. 588. Consult 2
Washb. R. P. 56, 82-85, 253–258.

ABANDONMENT FOR TORTS. In
Civil Law. The relinquishment of a slave
or animal who had committed a trespass to
the person injured, in discharge of the owner's
liability for such trespass or injury. If this
were done, the owner could not be held to any
further responsibility. Just. Inst. 4, 8, 9.

A similar right exists in Louisiana; 11 La.
An. 396.

disclose to a magistrate any secret crime.
ABARNARE (Lat.). To discover and
Leges Canuti, cap. 10.

ABATAMENTUM (Lat abatare). An
entry by interposition. Coke, Litt. 277. An

abatement. Yelv. 151.

ABATARE. To abate. Yelv. 151.
ABATE. See ABATEMENT.

ABATEMENT (Fr. abattre, L. Fr.
abater), to throw down, to beat down, destroy,
quash; 3 Bla. Com. 168.

In Chancery Practice. A suspension of
all proceedings in a suit, from the want of
proper parties capable of proceeding therein.

It differs from an abatement at law in this:
cannot be revived; but in the former the right
that in the latter the action is entirely dead and
to proceed is merely suspended, and may be re-
vived by a supplemental bill in the nature of a
bill of revivor; 3 Bla. Com. 301; 21 N. H. 246;
Story, Eq. Pl. § 20 n. § 354; Adams, Eq. 403;
Mitford, Eq. Pl., by Jeremy, 57; Edwards, Re-

ceiv. 19.

Generally speaking, if any property or right
in litigation is transmitted to another, he is
entitled to continue the suit, or at least have
the benefit of it, if he be plaintiff; Edwards,
Receiv. 19; 9 Paige, Ch. 410; or it may be
continued against him, or at least perfected,
if he be defendant; Story, Eq. Pl. §§ 332,
442; 7 Paige, Ch. 290. See PARTIES.

Death of a trustee does not abate a suit,
but it must be suspended till a new one is ap
pointed; 5 Gray, 162.

There are some cases, however, in which
a court of equity will entertain applications,
notwithstanding the suit is suspended: thus,
proceedings may be had to preserve property
in dispute; 2 Paige, Ch. 368; to pay money
out of court where the right is clear; 6 Ves.
250; or upon consent of parties; 2 Ves. 399;
to punish a party for breach of an injunction;
4 Paige, Ch. 163; to enroll a decree; 2 Dick.
612; or to make an order for the delivery of
deeds and writings; 1 Ves. 185.

« AnteriorContinuar »