ADVANCES

tion of a child, or the gift of money without a view to a portion or settlement in life, is not deemed an advancement; 5 Rich, Eq. 15; 23 Conn. 516. If security is taken for repayment, it is a debt and not an advancement; 21 Penn. 283; 29 id. 298; 23 Ga. 531; 2 Patt. & H. 1; 22 Pick. 508; and see 17 Mass. 93, 359; 2 Harr. & G. 114.

ADVERSE POSSESSION

Adventitia bona are goods which fall to a man otherwise than by inheritance. Adventitia dos is a dowry or portion given by some friend other than the parent.

ADVENTURE. Sending goods abroad under charge of a supercargo or other agent, which are to be disposed of to the best advantage for the benefit of the owners. The goods themselves so sent.

ADVERSE ENJOYMENT. The pos

The effect of an advancement is to reduce the distributive share of the child by the amount so received, estimating its value at the time of receipt; 1 S. & R. 422; 21 Mo. 347; 3 Yerg. 112; 5 Harr. & J. 459; 1 Wash. Va. 224; 3 Pick. 450; 3 Rand. 117; 2 Hayw. 266; but adding interest in some cases; 2 Watts, 314; 12 Gratt. 33; yet in some states the child has his option to retain the advancement and abandon his distributive share; 9 Dana, 193; 4 Ala. N. s. 121; to abandon his advancement and receive his equal share of the estate; 12 Gratt. 33; 15 Ala. N. s. 85; 26 Miss. 592; 28 id. 674; 18 Ill. 167; but this privilege exists only in case of intestacy; 1 Hill, Ch. 10; 3 Yerg. 95; 3 Sandf. Ch. 520; 5 Paige, Ch. 450; 14 Ves. Ch. 323. See ADEMPTION.

ADVANCES. Payments made to the owner of goods by a factor or agent, who has or is to have possession of the goods for the purpose of selling them.

An agent is entitled to reimburse himself from the proceeds of the goods, and has a lien on them for the amount paid; Livermore, Ag. 38; and an action over for the balance, against his principal, if the sales are insufficient to cover the advances; 22 Pick. 40; 3 N. Y. 62; 12 N. H. 239; 2 Pars. Contr. 466; 2 Bouvier, Inst. n. 1340.

ADVENA (Lat. venire). In Roman Law. One of foreign birth, who has left his own country and settled elsewhere, and who has not acquired citizenship in his new locality often called albanus; Du Cange.

ADVENT. The period commencing on Sunday falling on St. Andrew's day (30th of November), or the nearest Sunday to it, and continuing till Christmas; Blount.

It took its name from the fact that it immediately preceded the day set apart to commemorate the birth or coming (advent) of Christ; Cowel; Termes de la Ley.

Formerly, during this period, "all contentions at law were omitted." But, by statute 13 Edw. I. (Westm. 2) c. 48, certain actions

were allowed.

ADVENTITIOUS (Lat. adventitius). That which comes incidentally, or out of the regular course.

ADVENTITIUS (Lat.). Foreign; coming from an unusual source.

under a claim of right against the owner of the land out of which the casement is derived;

2 Washb. R. P. 42.

Such an enjoyment, if open, 4 M. & W. 500; 4 Ad. & E. 369, and continued uninterruptedly, 9 Pick. 251; 8 Gray, 441; 17 Wend. 564; 26 Me. 440; 20 Penn. 331; 2 N. H. 255; 9 id. 454; 2 Rich, 136; 11 Ad. & E. 788, for the term of twenty years, raises a conclusive presumption of a grant, provided that there was, during the time, some one in existence, in possession and occupation, who was not under disability to resist the use; 2 Washb. R. P. 48.

ADVERSE POSSESSION. The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor; 3 East, 394; 1 Pick. 466; 2 S. & R. 527; 3 Penn. 132; 8 Conn. 440; 2 Aik. Vt. 364; 9 Johns. 174; 18 id. 40, 355; 5 Pet. 402; 4 Bibb, 550; 43 Ala. 643.

When such possession has been actual, 3 S. & R. 517; 7 id. 192; 2 Wash. C. C. 478, and has been adverse for twenty years, of which the jury are to judge from the circumstances, the law raises the presumption of a grant; Angell, Wat. Cour. 85, et seq. But this presumption arises only when the use or occupation would otherwise have been unlawful; 3 Me. 120; 6 Cowen, 617, 677; 8 id. 589; 4 S. & R. 456.

The adverse possession must be "actual, continued, visible, notorious, distinct, and hostile;" 6 S. & R. 21. See numerous cases in note to Nepean v. Doe, 2 Sm. Lead. Cas. 597.

In 55 Miss. 671 it is said that there must be a claim of ownership; but see 41 N. J. L. 527. Possession is not adverse:

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 opeabator entered into the land of his father, rate against the other son; for when the 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; Coke, Litt. s. 396;

When the possession of the one party is consistent with the title of the other; as, where the rents of a trust estate 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 possession being consistent with and secured to the cestui que trust by the terms of the deed, the receipt was held not to be adverse to the title of the trustee; 8 East, 248; see 69 Mo. 117; 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; 1 Ld. Raym. 329;

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 1 B. & P. 542; 8 B. & C. 717; 2 Bouvier, Inst. n. 2193, 2194, 2351. ADVERTISEMENT (Lat. advertere, to

turn to).

Information or knowledge communicated to individuals or the public in a manner designed to attract general attention.

A notice published either in handbills or in

a newspaper.

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. But there are cases in which such notice is not

sufficient, unless brought home to the actual knowledge of the party. Thus, notice of the dissolution of partnership by advertisement in a newspaper printed in the city or county where the business is carried on, although it is of itself notice to all persons who have had no previous dealings with the firm, yet it is not notice to those who have had such previous dealings; it must be shown that persons of the latter class have received actual notice; 4 Whart. 484. See 17 Wend. 526; 22 id. 183; 9 Dan. Ky. 166; 2 Ala. N. s. 502; 8 Humphr. 418; 3 Bingh. 2. It has been held that the printed conditions of a line of public coaches are sufficiently made known to passengers by being posted up at the place where they book their names. W. & S. 373; 3 id.

520.

An advertisement by a railroad corporation in a newspaper in the English language of a limitation of its liability for baggage is not notice to a passenger who does not understand English; 16 Penn. 68.

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.

Advertisements published bona fide for the apprehension of a person suspected of crime, or for the prevention of fraud, are privileged. Thus, an advertisement of the loss of certain bills of exchange, supposed to have been embezzled, made in the belief that it was necessary either for the purposes of justice with a view to the discovery and conviction of the offender, or for the protection of the defendant himself against the liability to which he might be exposed on the bills, is privileged, if these were the defendant's only inducements; Heard, Lib. & Sland. § 131.

A sign-board, at a person's place of business, giving notice of lottery-tickets being for sale there, is an "advertisement;" and, if erected before the passage of a statute making the advertising of lottery-tickets penal, a continuance of it is within the statute; 5 Pick. 42.

ADVICE. Information given by letter by one merchant or banker to another in regard to some business transaction which concerns him; Chitty, Bills, 185.

ADVISARE, ADVISARI (Lat.). To advise; to consider; to be advised; to consult.

Occurring often in the phrase curia advisari vult (usually abbreviated cur, adv. vult or C. A. v.), the court wishes to consider of the matter. When a point of law requiring deliberation arose, the court, instead of giving an immediate decision, ordered a cur, adv. vult to be entered, and then, after consideration, gave a decision. Thus, from amongst numerous examples, in Clement vs. Chivis, 2 B. & C. 172, after the account of the argument we find cur. adv. vult; then, "on a subsequent day judgment was delivered," etc.

ADVISEMENT. Consideration; deliberation; consultation.

ADVOCATE. An assistant; adviser; a pleader of causes.

Derived from advocare, to summon to one's

assistance; advocatus originally signified an assistant or helper of any kind, even an accomplice in the commission of a crime; Cicero, Pro Cœcina, c. 8; Livy, lib. ii. 55; iii. 47; Tertullian, De Idolatr. cap. xxiii.; Petron. Satyric. cap. xv. Secondarily, it was applied to one called in to assist a party in the conduct of a suit; Inst. 1, 11, D, 50, 13. de extr. cogn. Hence, a pleader, which is its present signification.

In Civil and Ecclesiastical Law. An officer of the court, learned in the law, who is engaged by a suitor to maintain or defend his cause. Advocates, like counsellors, have the exclusive privilege of addressing the court either orally or in written pleadings; and, in general, in regard to duties, liabilities, and privileges, the same rules apply mutatis mutandis to advocates as to counsellors. See COUNSELLOR.

Lord Advocate.-An officer in Scotland appointed by the crown, during pleasure, to take care of the king's interest before the courts of session, justiciary, and exchequer. All actions that concern the king's interest, civil or criminal, must be carried on with concourse of the lord advocate. He also discharges the duties of public prosecutor, either in person or by one of his four deputies, who

ADVOCATE

ADVOCATE

Inferior courts have a procurator fiscal, who supplies before them the place of the lord advocate in criminal cases; see 2 Bankt. Inst. 492.

College or Faculty of Advocates.-A corporate body in Scotland, consisting of the members of the bar in Edinburgh. A large portion of its members are not active practitioners, however; 2 Bankt. Inst. 486.

Church or Ecclesiastical Advocates. Pleaders appointed by the church to maintain its rights.

In Ecclesiastical Law. A patron of a living; one who has the advowson, advocatio; Tech. Dict.; Ayliffe, Par. 53; Dane, Abr. c. 31, § 20; Erskine, Inst. 79, 9.

Originally the management of suits at law was undertaken by the patronus for his cliens as a matter of duty arising out of their reciprocal relation. Afterwards it became a professsion, and the relation, though a peculiarly confidential one while it lasted, was but temporary, ending with the suit. The profession was governed by very stringent rules: a limited number only were enrolled and allowed to practise in the higher courts-one hundred and fifty before the præfectus prætorio; Dig. 8, 11; Code, 2, 7; fifty before the præf. aug. and dux Egypticus at Alexandria; Dig. 8, 13; etc. etc. The enrolled advocates were called advocati ordinarii. Those not enrolled were called adv. supernumerarii or extraordinarii, and were allowed to practise in the inferior courts; Dig. 8, 13. From their ranks vacancies in the list of ordinarii were filled; Ibid. The ordinarii were either fiscales, who were appointed by the crown for the management of suits in which the imperial treasury was concerned, and who received a salary from the state; or privati, whose business was confined to private causes. The advocati ordinarii were bound to lend their aid to every one applying to them, un'less a just ground existed for a refusal; and they could be compelled to undertake the cause of a needy party; 1. 7, C. 2, 6. The supernumerarii were not thus obliged, but, having once undertaken a cause, were bound to prosecute or defend it with diligence and fidelity.

The client must be defended against every person, even the emperor, though the advocati fiscales could not undertake a cause against the fiscus without a special permission; ll. 1 et 2, C. 2, 9; unless such cause was their own, or that of their parents, children, or ward; 1. 10, pr. C. 11, D. 3, 1.

An advocate must have been at least seventeen years of age; l. 1, § 3, D. 3, 1; he must not be blind or deaf; 1. 1, § 3 et 5, D. 3, 1; VOL. I.-9

He was bound to bestow the utmost care and attention upon the cause, nihil studii reliquentes, quod sibi possibile est; 1. 14, § 1, C. 3, 1. He was liable to his client for damages caused in any way by his fault; 5 Glück, Pand. 110. If he had signed the concepit, he was responsible that it contained no matter punishable or improper; Boehmer, Cons. et Decis. t. ii. p. 1, resp. cviii. no. 5. He must clearly and correctly explain the law to his clients, and honestly warn them against transgression or neglect thereof. He must frankly inform

them of the lawfulness or unlawfulness of their cause of action, and must be especially careful not to undertake a cause clearly unjust, or to let himself be used as an instrument of chicanery, malice, or other unlawful action; 1. 6, §§ 3, 4, C. 2, 6; l. 13, § 9; l. 14, § 1, C. 3, 1. In pleading, he must abstain from invectives against the judge, the opposite party or his advocate; 1. 6, § 1, C. 2, 6. Should it become necessary or advantageous to mention unpleasant truths, this must be done with the utmost forbearance and in the most moderate language; 5 Glück, Pand. 111. Conscientious honesty forbade his betraying secrets confided to him by his client or making any improper use of them; he should observe inviolable secrecy in respect to them; ibid.; he could not, therefore, be compelled to testify in regard to such secrets; 1. ult. D. 22, 5.

If he violated the above duties, he was liable, in addition to compensation for the damage thereby caused, to fine, or imprisonment, or suspension, or entire removal from practice, or to still severer punishment, particularly where he had been guilty of a provaricatio, or betrayal of his trust for the benefit of the opposite party; 5 Glück, Pand. 111.

In

Compensation. By the lex Cincia, A. U. C. 549, advocates were prohibited from receiving any reward for their services. course of time this became obsolete. Claudius allowed it, and fixed ten thousand sesterces as the maximum fee. Trajan prohibited this fee, called honorarium, from being paid before the termination of the action. This, too, was disregarded, and prepayment had become lawful in the time of Justinian; 5 Glück, Pand. 117. The fee was regulated by law, unless the advocate had made a special agreement with his client, when the agreement fixed the amount. But a pactum de quota litis, i. e., an agreement to pay a contingent fee, was prohibited, under penalty of the advocate's forfeiting his privilege of practising; 1. 5, C.

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.

The

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

EDES (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.

ÆDILE (Lat.). In Roman Law. An officer who attended to the repairs of the temples and other public buildings; the repairs and cleanliness of the streets; the care of the weights and measures; the providing for funerals and games; and regulating the prices of provisions; Ainsworth, Lex.; Smith, Lex.; Du Cange.

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 æs 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 astimationem 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 infantia 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.

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. 367; 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 offcers 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.

A

AFFIDAVIT (Lat.). In Practice. statement or declaration reduced to writing, and sworn or affirmed to before some officer

who has authority to administer an oath or

affirmation.

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.