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ADVERSE POSSESSION 7568 AFFIRMATIVE WARRANTY

[Appendix.) is made through the post office, the time as being a conveyance, and there bas been a within which such adverse party is required continuous occupation, the premises shall be to do an act is double the time specified. deemed to have been held adversely, the esBucklin v. Buffalo, A. & A. R. Co., 85 N. Y. sential requirement seems to be that the Supp. 114, 115, 41 Misc. Rep. 557.

party shall enter under a claim of title exclusive of any other right, founding such claim

upon a written instrument. A tax deed unADVERSE POSSESSION.

der which possession is taken is sufficient See, also, "Substantial Inclosure."

color of title, though invalid. Murphy V.

Dafoe (S. D.) 99 N. W. 86, 88. "An adverse possession ought to be such Good faith is no element of adverse posas to challenge the right of all the world; session. Dawson v. Falls City Boat Club but when an occupant evacuates the place, | (Mich.) 99 N. W. 17, 18. and suffers it to go to wreck, he hauls down his colors, and the challenge is withdrawn.”

Prescription distinguished. Adverse possession “is to be made out by acts which are open, visible, notorious, and

"Prescription" is the term usually applied

to incorporeal hereditaments; "adverse poscontinuous, and does not depend upon the secret purpose and intention of the intruder Elevated R. Co., 85 N. Y. Supp. 561, 564, 42

session" to lands. Hindley v. Metropolitan that he will return at his convenience, sooner or later, and reoccupy the land.” Continu

Misc. Rep. 56. ous possession for five years, and after an abandonment for several years a possession ADVISE. for six months, followed by occupancy of a storehouse for several years, but less than

The word "advise," as used in a statute seven, did not make out that continuous ad- | authorizing city councils of certain cities to verse possession sufficient to create title by appoint a city attorney whose duty it shall be prescription under color. Clark v. White, 48 to advise the board as to all legal matters, S. E. 357, 358, 120 Ga. 957 (quoting and etc., means that such city attorney shall be adopting definitions in Stephens v. Leach, the legal adviser of the council in all matters 19 Pa. 262; Denham v. Holeman, 26 Ga. 183, of litigation and legal proceedings; and in 71 Am. Dec. 198).

defining the duties which are required of him

in his department the council may properly Before possession lawfully taken by a include attention to litigation as to which it co-tenant can become adverse to the parties is his duty to advise it. City of Ludlow v. jointly interested in the property, so as to set Richie (Ky.) 78 S. W. 199, 200. in motion the statute of limitations, there must be an actual ouster, and notice or knowledge of the hostile intention in pursu

AFFAIR. ance of which the exclusive possession has

See “Municipal Affair." been held. Beers v. Sharpe, 75 Pac. 717, 719, 44 Or. 386.

AFFIDAVIT. The use of the word "adverse,” in an instruction that plaintiff or his vendors must See "Appear by Afidavit"; "False Affilhave held land in controversy in actual ad

davit”; “Fraudulent Afidavit." verse possession, to a well-defined boundary line, continuously, for 15 years prior to an An affidavit is defined by Bouvier as a alleged trespass, requires a finding that the statement or declaration reduced to writing, land was held in hostile opposition by plain- and sworn or affirmed to before some officer tiffs to the claim of defendants and all oth- who has authority to administer an oath.

Vincent v. Willis (Ky.) 82 S. W. 583, The signature of the affiant is not necessary, 584.

in the absence of a rule of court or statute

requiring it. In re Shannahan-Wrightson The possession of the vendee under an Hardware Co. (Del.) 58 Atl. 1023. executory contract for the purchase of land is not adverse to the vendor so long as the purchase money is not paid, or at least not AFFIRMATIVE WARRANTY. before the vendee is entitled to demand a deed. Johnson v. Peterson, 97 N. W. 384,

“Warranties in insurance law are of 383, 90 Minn. 503 (citing Hannibal & St. J.) two kinds—affirmative and promissory. AfR. Co. v. Miller, 115 Mo. 158, 21 S. W. 915).

firmative warranties consist of a representa

tion in the policy of a fact. Promissory war To constitute the adverse possession de ranties are those that require that something scribed in Code Civ. Proc. $ 47, providing shall be done or not done after the policy that when it shall appear that an occupant takes effect." Rosenthal Clothing & Dry entered into possession under claim of title, Goods Co. v. Scottisb Union & National Ins. founding such claim on a written instrument Co. (W. Va.) 46 S. E. 1021.

ers.

AFFRAY

7569

AGGRIEVED PARTY

(Appendix.) AFFRAY.

paid by a commission on the amount of sales,

is an agent or servant of the company, which An instruction that an affray is a mutual is liable for acts of negligence in the conduct combat voluntarily engaged in by two or of the business on the part of the agent or more persons in a public place, while tech-others employed by him. Riggs v. Standard nically accurate, might be construed as one oil Co. (U. S.) 130 Fed. 199, 201. in which both willingly took part, and was

The word "agent," as used in a statute therefore misleading. Reynolds v. Commonwealth (Ky.) 82 s. W. 978, 979. See, also, and telephone companies, is not intended to

providing for service of process on telegraph Reynolds v. Commonwealth (Ky.) 82 8. W. 233,

be understood in any unusual, limited, or restricted sense, or otherwise than was jus

tified in its ordinary signification. Southern AFORETHOUGHT.

Bell Telephone & Telegraph Co. V. Parker,

47 S. E. 194, 197, 119 Ga. 721. See “Malice Aforethought."

While a bookkeeper may be, and often

is, the agent of his employer, the word does AFTERTHOUGHT.

not ex vi termini import that relation, and, Afterthought means a predetermination

in the absence of averment that it exists, to do the act, however sudden or recently the courts cannot by intendment enlarge the formed in the mind the resolution to do it has ordinary signification of the word so as to been made. Hathaway V. Commonwealth bring it within a class to which it may or (Ky.) 82 S. W. 400, 402.

may not belong. Code 1887, § 3286 (Va. Code 1904, p. 1730), provides that when, in as

sumpsit, an affidavit is filed with a declaraAGAINST HER WILL.

tion that the amount claimed is justly due, As used in a statute defining rape to be a plea in bar shall not be received unless the carnal knowledge of a female forcibly shall be for plaintiff. An affidavit by plain

verified, in the absence of which judgment and against her will, the words "against her titr's bookkeeper, filed with the declaration, will" are synonymous with the words "with

is insufficient to authorize judgment in favor out her consent.” Gore v. State, 46 S. E. of plaintiff, though the statute permits the 671, 672, 119 Ga. 418, 10 Am. St. Rep. 182.

filing of the affidavit by plaintiff or his agent.

Merriman Co. v. Thomas & Co. (Va.) 48 S. AGAINST LAW.

E. 490, 492. See “Decision against Law."

AGGRAVATE. AGENT.

Increase synonymous, see “Increase." See "Duly Authorized Agent"; "Local Agent."

AGGRIEVED. As owner, see "Owner."

As determining right to appeal, see "Ag. The word "agent," as used in the stat

grieved Party." ute of Missouri providing that foreign corporations doing business in the state shall file Where it appears that a corporation bas their articles of incorporation, establish an no personalty subject to taxes, it suficiently office or agency, and subject themselves in appears that it was aggrieved, so as to enprescribed respects to the laws of the state, title it to a cancellation of a tax. People v. but exempting corporations entirely non- Feitner, 87 N. Y. Supp. 304, 307, 92 App. Div. resident, soliciting business through drum- 518. mers or traveling salesmen, and further providing that service shall be authorized to nied must necessarily be the “aggrieved par

The passenger to whom a transfer is debe made, in an action against a corporation having no office or agency, by serving an ty,” in the language of Railroad Law, $ 104 agent of the company, wherever found, does /(Laws 1890, p. 1082, c. 565, as amended by not include one merely soliciting orders for Laws 1892, p. 1406, c. 676), providing that, goods which are sent to the nonresident prin- for every refusal to comply with the act, the cipal, a corporation, to be Alled, the solicitor corporation so refusing shall forfeit $50 to receiving a commission on such orders, and the aggrieved party. Fox v. Interurban St. having no other relation to the corporation, R. Co., 86 N. Y. Supp. 64, 65, 42 Misc. Rep.

538. and having no relation to the matter out of which an action against the corporation arose. Strain V. Chicago Portrait Co. (U. S.) 126 AGGRIEVED PARTY, Fed. 831, 832.

A defendant is truly "aggrieved" only One employed by a refining company to when by appropriate pleadings, or pleadings sell and distribute oil to customers, being and proofs, he has become an active party

AGGRIEVED PARTY

7570 ALCOHOLIC COMPOUNDS

[Appendix.) to an issue or a controversy which is adjudg-, taxation of costs by the clerk may have the ed against him. New Jersey Building, Loan same retaxed, and section 4749, providing & Investment Co. v. Lord (N. J.) 58 Atl. 185, that the party commencing the action shall 187.

be known as the “plaintiff" and the opposite In legal acceptation a party is "aggriev. party as the “defendant,” the witnesses in

a criminal case have no right to appeal from ed” by a judgment or decree when it operates on his rights of property, or bears di- an order disallowing their fees for attend

ance and mileage as certified by the clerk, rectly upon bis interest. Ruff v. Montgom- they not being parties to the proceeding. ery, 36 South. 67, 68, 83 Miss. 185 (citing 2 State v. Fair, 76 Pac. 731, 734, 35 Wash. 127. Cyc. p. 633).

Upon principle, as to any judgment or AGREE TO LET. order of a court adverse to one in a suit or proceeding, who is the proper representative The words "agree to let” and similar therein, of the interests of others prejudiced phrases have been held to confer a leasehold, by the result, that one is a “party aggrieved," though a further writing or memorandum within the meaning of such term as used in

was called for in the document wherein those appeal statutes. McKenney v. Minahan, 97 words were used. Ver Steeg v. Becker-Moore N. W. 489, 490, 119 Wis. 651.

Paint Co. (Mo.) 80 S. W. 346, 351. Where the probate of a will is denied, the executor therein named is a “party ag- AGREEMENT TO MARRY. grieved," and consequently possesses sufficient interest to enable him to appeal under "The agreement to marry partakes of Code Civ. Proc. $8 1294, 2568, authorizing the nature of a civil contract, as upon its appeals by any person aggrieved by the or- violation the injured party may recover damder appealed from. In re Rayner's Will, 87 ages; but the contract or agreement to marry N. Y. Supp. 23, 93 App. Div. 114.

and the marriage relation itself are by no

means one and the same. When the agreeIf the court entered a judgment which ment to marry has been executed in a legal deprived complainant of any of its property marriage, the relation thus formed becomes rights, then it must be a “party aggrieved," much more than a mere civil contract. The within Rev. St. 1887, § 4802, providing that rights and duties incident to this relation are any party aggrieved may appeal. It is not from a source much higher than a contract of necessary for a person or corporation to be which the parties are capable, and can never named as plaintiff or defendant or inter- be restricted nor enlarged nor in any way vener in the title to an action, or in the title controlled by any contract which the parties to a judgment entered therein, in order to

can make.” Eikenbury V. Burns (Ind.) 70 become a party to the action. Washington N. E. 837, 838. County Abstract Co. v. Stewart (Idaho) 74 Pac. 955, 936, 957.

AID. One not an heir, but merely a legatee under an alleged will of decedent antedating Any other aid, see "Any Other." another alleged will of decedent, which was admitted to probate in the county court with. AIM. out first having procured the allowance of the will under which he claims in the county The word “aim," as used in Burns' Ann. court, which has sole jurisdiction of the pro- St. 1901, 8 2073, which provides that it shall bate of wills, is a “party aggrieved,” within | be unlawful for any person over the age of Rev. St. 1898, 8 3788, authorizing appeals 10 years, with or without malice, purposely from the county court on the probate of to point or aim any pistol or other firearm, wills only by persons aggrieved. In re either empty or loaded, towards any other Hunt's Will (Wis.) 100 N. W. 874, 875.

person, is used in the disjunctive, and under Where the wife of a minor under guard-lated by doing either or both of the forbid

such circumstances the statute may be vioianship had obtained a divorce, with a decree den acts. The accused may be charged (1) for alimony, prior to the settlement of the with having purposely pointed the pistol at guardian's account on the husband's becom

and towards another, (2) with having pur. ing of age, but she had neither brought suit

posely aimed the weapon at and towards an. against the guardian, attached the ward's estate, nor levied an execution, she was not and aimed the weapon at and towards an.

other, and (3) with having purposely pointed a party aggrieved, so as to be entitled to other. Eaton v. State, 70 N. E. 814, 162 Ind appeal from a probate decree settling the

554, guardian's accounts, though she be regarded as a creditor of the ward. Leyland v. Leyland, 71 N. E. 794, 795, 186 Mass. 420. ALCOHOLIC COMPOUNDS.

Under Ballinger's Ann. Codes & St. $ 185, Fresh leaves of aconite and belladonna providing that any party aggrieved by the and fresh roots of bryonia, immersed in their

ALIAS

7571

ALIMONY

(Appendix.) natural condition in alcohol for preservation, , him on the return trip, and thereupon put are not "alcoholic compounds," as the term him at work, but without placing him on the is used in paragraph 2, Tarife Act July 24, crew list. On arriving at San Francisco an 1897, c. 11, § 1, Schedule A, 30 Stat. 151 [U. immigration officer notified defendant not S. Comp. St. 1901, p. 1627]. Boericke & Run- to land the Mexican without permission, but yon Co. v. United States (U. S.) 126 Fed. 1018. the latter stated he did not wish to land, but

wanted to be taken back home, and he was

not confined. Just before the vessel sailed, ALIAS.

however, he left it without the consent or Sometimes a man is known by several knowledge of defendant or any of his offidifferent names, and it was formerly the cus- cers, and had not returned when she left the tom, in drawing indictments, to charge him port. Held, that such facts were not suffiunder all the names by which he was known;

cient to warrant defendants conviction for connecting them with the words "alias dic' neglecting to detain an alien not entitled to tus,” or with simply "alias.” These words land, as such Mexican was not an alien immean "otherwise called" or "otherwise.”

migrant who left a foreign shore to come to State v. Howard (Mont.) 77 Pac. 50, 51.

the United States for the purpose of becoming a permanent resident here; all the acts

and agreements affirmatively appearing to ALIEN.

have been made in the utmost good faith,

and not for the purpose of evading any law. Proceeding to expel or exclude alien as Moffitt v. United States (U. S.) 128 Fed. 375,

criminal proceeding, see "Oriminal 379, 63 C. O. A. 117.

Proceeding.”

Persons born out of the limits and ju- ALIENATION. risdiction of the United States, the father at the time of their respective births not being

Alienation is the voluntary and complete a citizen of the United States, are born transfer from one person to another, and if aliens. The status, as aliens, of children it be concerning the transfer of property it born in a foreign country of alien parents, is involves the complete and absolute exclunot changed by the naturalization of their sion, out of him who alienates, of any refather as a citizen of the United States by maining interest, or particle of interest, in taking out his second papers while the cbil. the thing transmitted. It involves the comdren are detained in custody as immigrants plete transfer of the property and possession at Ellis Island, and they remain subject to of lands, tenements, or other things to anexclusion under the immigration laws for a

other. Orrell v. Bay Mfg. Co., 36 South. 561, dangerous contagious disease contracted be- 563, 83 Miss. 800 (citing Stark v. Duvall, 7 fore their embarkation; such children not Okl. 217, 54 Pac. 454). being affected by Rev. St. $ 2172 (U. S. Comp. The word "alienation" means the transSt. 1901, p. 1334), which provides that the fer of the property and possession of land, minor children of persons duly naturalized, tenements, or other things from one person if dwelling in the United States, shall be con- to another, and is particularly applied to absidered as citizens thereof. United States v. solute conveyances of real property. Where William (U. S.) 132 Fed. 894, 895.

a testator directs that his trustees have and

exercise all requisite power, including that ALIEN IMMIGRANT.

of alienation, necessary or convenient for

the management of the estate and the diviA native of Porto Rico, who was an in-sion and distribution thereof, the use of the habitant of that island at the time of its word “alienation" clearly imports an intencession to the United States by a treaty of tion on the part of the testator to confer on April 11, 1899, 30 Stat. 1754, with Spain, is not, the trustees the power to alienate or transfer upon her arrival at the port of New York, the real estate if it should be necessary for an "alien immigrant,” within the meaning of the proper management of the estate or for the act of Congress of March 3, 1891, c. 551, the division and distribution thereof in the 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294), manner contemplated by the will. Dickson providing for the detention and deportation v. New York Biscuit Co., 71 N. E. 1058, 1063, of alien immigrants likely to become public 211 Ill. 468. charges. Gonzales v. Williams, 24 Sup. Ct. 177, 192 U. 9. 1, 48 L. Ed. 317.

ALIMONY. When defendant's ship was anchored off shore at a Mexican port, a number of na 'Alimony' is a technical word, theotive peddlers came on board to sell their retically restricted to personalty, and pracwares. When one of them came on deck to tically to money. It is payable out of the go ashore, he found that the vessel had start- husband's estate, real as well as personal. ed, and proceeded some distance. Defendant But the word never covers the estate itself.” refused his request that he be taken back, This is the meaning of the word "alimony," and landed, but promised to stop and leave as used in Comp. St. 1901, c. 25, $ 22, provid

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nance,

ALIMONY

7572

ALL

(Appendix.) ing that in case of a divorce the court may clearly appears to have been contemplated decree to the wife such part of the personal by the Legislature; and, for ascertainment estate of the husband, and such alimony out of the legislative intent, attention is not to of his estate, as it shall deem just and rea- be confined to the words employed, but the sonable. Hence the district court, in a suit familiar rule must be applied, “that a thing for divorce, has no jurisdiction to award real may be within the letter of the statute, and estate of the husband to tbe wife in fee as yet not within the statute, because not with alimony. Cizek v. Cizek (Neb.) 99 N. W. 28, in its spirit, nor within the intention of its 30.

makers." Rothschild v. Adler-Weinberger

S. S. Co. (U. S.) 130 Fed. 866, 867. The word “alimony,” in Pub. Acts 1899, p. 360, No. 330, amending Comp. Laws, $

All costs herein expended. 10,891, by inserting a provision allowing imprisonment for nonpayment of alimony, in

The phrase "all costs herein expended," cludes allowance for the support and educa- as used in a judgment reciting, “It is there tion of children. Brown v. Brown (Mich.) 97 fore considered and adjudged by the court N. W. 396, 397.

that this cause be dismissed, and that de

fendant recover from the plaintiff all costs Alimony is "purely Incidental to divorce herein expended," meant "only such costs as proceedings, and is an allowance out of the were authorized by law, and could be propdivorced husband's estate, made to the di- erly taxed in favor of the defendant below.” vorced wife for her support and mainte-Casto v. Eigeman, 70 N. E. 807, 162 Ind. 506

In this state is has no existence as (citing Wilson v. Jenkins, 147 Ind. 533, 46 a separate and independent right. It must N. E. 889; Mott v. State, 145 Ind. 353, 44 N. be adjudged, if at all, in the divorce proceed- E. 548). ings, and cannot be the subject-matter of an independent suit" Rariden v. Rariden (Ind.) All damages. 70 N. E. 398.

The phrase "all damages," as used in a bond given to a sheriff to indemnify him

against all damages sustained by a levy on ALL

personal property, is broad language, and The word "all," as an adjective of num

must be construed to include every element ber, means the whole number of; every one

of damages which may fairly be said to have of. Encyclopædic Dictionary. In consider

been contemplated by the parties, and coring whether the statute of Merton, in which

ers attorney's fees which the sheriff was the words “omnes viduæ” were used, applied compelled to pay in defending an action for to each of the five kinds of dower, Lord Coke conversion of the property levied on, after observed, “Qui omne dicit nihil excludit"-— notice to the obligors to defend and their

Cousins v. Paxton & Gallawho says all does exclude nothing. 2 Inst. refusal to do so. 81. We would not be understood, however, gher Co., 98 N. W. 277, 278, 122 Iowa, 465. as asserting that the word, as used in legislation, is always to be understood as an all

All expenses. inclusive one. As so used, it is a general

Any and all necessary expenses, see term, which is to be understood as compre

"Any." hending whatever is within the outmost circle of the meaning of the word, unless, after

The term "all expenses," as used in an subjecting the statute to interpretation and agreement by a real estate agent to take

charge of certain property and pay all exconstruction, there is sufficient reason for holding that the term was not used in so

penses, must be deemed to include the anbroad a sense. Pittsburgh, C., O. & St. L. nual taxes, and such other expenses or payRy. Co. v. Lightheiser (Ind.) 71 N. E. 218, of such a character for a term of years would

ments as an agent in full charge of property

reasonably be required to pay out of the inAll contracts of insuranco.

come in the process of a good management.

Seymour v. Warren, 71 N. E. 260, 261, 179 N. The words “all contracts of Insurance," Y. 1. as used in Act Pa. May 1, 1876 (P. L. p. 66) § 48, declaring that the agent of any insur

All of which one may die possessed. ance company of any other state or government which does not comply with the laws

A gift of “all of which one may die posof Pennsylvania shall be personally liable on

sessed" carries only the net amount of the all contracts of insurance made by or through estate. Blakeslee v. Pardee, 56 AU, 503, 503, him, directly or indirectly, for or on behalf 76 Conn. 263. of the company, applies only to contracts of insurance on property in Pennsylvania.

All levies. Though the language is inclusive of all con The words "all levies," as used in Bankr. tracts, yet, as the liability it imposes is an Act July 1, 1898, c. 541, § 671, 30 Stat. 565 extraordinary and penal one, it should not [U. S. Comp. St. 1901, p. 3450], making void be held to embrace anything beyond what “all levies, judgments, attachments, or other

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