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aneantir; abrogated or made null. Litt. sect. 741.
ANNO DOMINI, in the year of our Lord, abbreviated A. D.; the computation of time from the incarnation of our Saviour, which is used as the date of all public deeds in the United States and Christian countries, on which account it is called the " Vulgar aera."
Annonie CIVILES, civil law. A species of rent issuing out of certain lands, which were paid to some monastaries.
ANNUAL PENSION. Annual rent, in the Scotch law, a yearly profit due to a creditor by way of interest for a given sum of money. Right of annual rent, the original right of burdening land with yearly payment for the payment of money.
ANNUITY, in contracts. An annuity is a yearly sum of money granted by one party to another in fee for life or years, charging the person of the grantor only. Co. Litt. 144; 1 Lilly's Reg. 89; 2 Bl. Com. 40; 5 M. R. 312. An annuity is an incorporeal hereditament. It is different from a rent charge, with which it is frequently confounded, in this; a rent charge is a burden imposed upon and issuing out of lands, whereas an annuity is charge-1 able only upon the person, of the grantee. Bac. Abr. Annuity, A. See for many regulations in England relating to annuities, the stat. 17 Geo. 3, c. 26.
An annuity may be created by contract, or by will.
The first payment of an annuity is to be made at the time appointed in the instrument creating it. In cases where a testator directs the annuity to be paid at the end of the first quarter, or other period before the expiration of the first year after his death, it is then due; but in fact it is not payable by the executor till the end of the year; 3 Mad. Ch.
R. 167. When the time is not appointed, as frequently happens in wills, the following distinction is presumed to exist. If the bequest be merely in the form of an annuity, as a gift to a man of "an annuity of one hundred dollars for life," the first payment will be due at the end of the year after the testator's death. But if the disposition be of a sum of money, and the interest to be given as an annuity to the same man for life, the first payment will not accrue before the expiration of the second year after the testator's death. This distinction, though stated from the bench, does not appear to have been sanctioned by express decision. 7 Ves- 96, 97.
The Civil Code of Louisiana makes the following provisions in relation to annuities; namely. The contract of annuity is that by which one party delivers to another a sum of money, and agrees not to reclaim it, so long as the receiver pays the rent agreed upon, art. 2764. This annuity may be perpetual or for life, art. 2765. The amount of the annuity for life can in no case exceed the double of the conventional interest. The amount of the perpetual annuity cannot exceed the double of the conventional interest, art. 2766. Constituted annuity is essentially redeemable, art. 2767. The debtor of a constituted annuity may be compelled to redeem the same: 1, If he ceases fulfilling his obligation during three years: 2, If he does not give the lender the securities promised by the contract, art. 2768. If the debtor should fail, or be in a state of insolvency, the capital of the constituted annuity becomes exigible, but only up to the amount at which it is rated, 'according to the order of contribution amongst the creditors, art. 2769. A similar rule to that contained in the last article has been adopted in England. See stat. 6 Geo. 4, c. 16, s. 54 and 108; note to Ex parte James, 5 Ves. 708, 1 Sup. to Ves. Jr. 431; note to Franks v. Cooper, 4 Ves. 763; 1 Supp. to Ves. Jr. 308. The debtor, continues the code, may be compelled by his security to redeem the annuity within the time which has been fixed in the contract, if any time has been fixed, or after ten years if no mention be made of the time in the act, art. 2770. The interest of the sums lent, and the arrears of constituted and life annuity, cannot bear interest but from the day a judicial demand of the same has been made by the creditor, and when the interest is due for at least one whole year. The parties may only agree that the same shall not be redeemed prior to a time which cannot exceed ten years, or without having warned the creditor a time before, which they shall limit. Art. 2771.
See generally, Vin. Abr. Annuity; Bac. Abr. Annuity and Rent; Com. Dig. Annuity; 8 Com. Dig. 909; Doct. Plac. 84; 1 Rop. on Leg. 538; Diet. de Jurisp. aux mots Rentes viageres, Tontine. 1 Harr. Dig. h. t.
ANONYMOUS. Without name. This word is applied to such books, letters or papers, which are published without the author's name. No man is bound to publish his name in connexion with a book or paper he has published; but if the publication is libellous, he is equally responsible as if his name were published.
ANSWER, pleading in equity, is a defence in writing made by a defendant, to the charges contained in a bill or information, filed in a court of equity by the plaintiff against him. The word answer involves an ambiguity; it is one thing when it simply replies to a question, another when it meets a charge; the answer in equity includes both senses, and may be
divided into an examination and a defence. In that part which consists of an examination, a direct and full answer, or reply, must in general be given to every question asked. In that part which consists of a defence, the defendant must state his case distinctly; but is not required to give information respecting the proofs that are to maintain it. Grcsl. Eq. Ev. 16. As a defendant is called by a bill or information to make a discovery of the several charges it contains, he must do so, unless he is protected either by a demurrer, a plea or disclaimer. It may be laid down as an invariable rule, that whatever part of a bill or information is not covered by one of these must be defended by answer. Redesd. Tr. Ch. PI. 244. In form it usually begins, 1st, with its title, specifying which of the defendants it is the answer of, and the names of the plaintiffs in the cause in which it is filed as answer; 2d, it reserves to the defendant all advantages which might be taken by exception to the bill; 3d, the substance of the answer, according to the defendant's knowledge, remembrance, information and belief, then follows, in which the matter of the bill, with the interrogatories founded thereon, are answered, one after the other, together with such additional matter as the defendant thinks necessary to bring forward in his defence, either for the purpose of qualifying, or adding to, the case made by the bill, or to state a new case on his own behalf; 4th, this is followed by a general traverse or denial of all unlawful combinations charged in the bill, and of all other matters therein contained; 5th, the answer is always upon oath or affirmation, except in the case of a corporation, in which case it is under the corporate seal. In substance the answer ought to contain, 1st, a statement of facts and not arguments; 2d, a confession and avoidance, or traverse and denial of the material parts of the bill; 3d, its language ought to be direct and without evasion. Vide generally as to answers, Redes. Tr. Ch. PL 244 to 254; Coop. PL Eq. 312 to 327; Beames PL Eq. 34 et seq. For an historical account of this instrument, see 2 Bro. Civ. Law, 371, n.
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.
ANTHETARIUS, obsolete..-- When a man was accused of an offence, and he endeavoured to discharge himself of the fact by recriminating and charging the accused with the same fact, he was called anthetarius. Jacob, h. t.
ANTICHRESIS, in 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; Diet. de Juris. Antichrese, Mortgage; Code Civ. 2085. Dig. 13, 7, 7; 4, 24, 1 ; Code, 8, 28, 1.
ANTINOxMY. 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.
ANTITHETARIUS, old English law. The name given to a man who endeavours 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.
APOSTACY, Eng. law, is a total renunciation of the Christian religion, and differs from heresy, (q. v.) This offence is punished by the statute of 9 & 10 W. 3, 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.
APPARATOR or APPARITOR, eccles. law. An officer or messenger employed to serve the process of the spiritual courts in England.
APPARLEMENT. Resemblance. It is said to be derived from pareillement, French, in like manner. Cunn. Diet. h. t.
APPEAL, Eng. crim. law. Is the accusation, in a legal form, of a person for a crime by him committed; or, it is the lawful declaration of another man's crime, before a compe. tent 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; 5 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. 3, c. 46.
APPEAL, practice, is the act by which a party submits to the decision of a superior court, a cause which has been tried in an inferior tribunal. The appeal generally annuls the judg. ment 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 merits. An appeal differs from proceedings in error, under which the errors committed in the proceedings arc examined, and if any have been committed the first judgment is reversed; because in the appeal the whole case is examined 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, in practice, signifies the filing common or special bail to an action. The appearance of the parties is no longer (as formerly) by the actual presence in court, either of themselves or their attorneys. It is to be observed, however, that an appearance of this kind is still supposed; and exists in fiction or contemplation of law. But in fact the appearance is effected on the part of the defendant (where he is not arrested) by making certain formal entries in the proper office of the court, expressing his appearance, 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, but upon the appearance of the defendant, effected in the manner above described, both parties are considered as in court. Impey's Pr. 215. The appearance of either party may in general purport to be either in his own person or by attorney, but when he appears by attorney, there ought regularly, and there is always supposed to be, a warrant in writing executed by him for that purpose. There are certain persons, namely, infants, married women (when sued without their husbands,) and idiots, who are incapable of appointing an attorney, to appear for them in court. The appearance and pleadings of such persons must consequently not purport to be by attorney, nor be so entered on record, whether an attorney in fact be employed or not. See 1 Tidd, Pr. 68, 75; 1 Arch. Pr. 22; 2 John. 192;
8 John. 418; 14 John. 417; 5 Pick. 413. The appearance, in common with all other subsequent proceedings supposed to take place in 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 much business is now, in fact, done during the periods of vacation.
In most suits and prosecutions the proceedings are managed by attorneys, and parties in general may prosecute or appear and defend either by person or by attorney, yet there are many cases in which it must purport otherwise on the pleadings. For example, infants cannot appoint an attorney, they must therefore prosecute or appear by guardian or prochein amy. An idiot can appear only in person; as plaintiff he may sue in person or by next friend; but a lunatic may, if of full age, appear by attorney, if under age, by guardian. 2 Wms. Saund. 335; lb. 332 (a) n. (4). A feme covert, when sued alone, should defend in person. 3 Wms. Saund. 209 b; and when the cause of action accrued, and she afterwards marries, and she is sued as a feme sole, she must plead her coverture in person, and not by attorney. Co. Litt. 125. When the party pleads to the jurisdiction, he must plead in person. Summary on Pleading, 51; Merrif. Law of Att. 58. A plea of misnomer must always be in person unless it be by special warrant of attorney. 1 Chit. on Pl. 398; Summary on Pleading, 50; 3 Wms. Saund. 209 b.
APPELLANT, practice, he who makes an appeal from one jurisdiction to another.
APPELLEE, practice. The party in a cause on which an appeal has been made, who is not the appellant.
APPENDANT, is an inheritance belonging to another inheritance. Land cannot be appendant to land; Co. Litt. 121; 4 Co. 86; an incorporeal hereditament may be appendant to land as a right of way. Appendant differs from appurtenance in this, that the former always arise from prescription, whereas an appurtenance may be created at any time. 1 Tho. Co. Litt. 206; Wood's Inst. 121 ; Dane's Ab. Index, h. t; 2 Vin. Ab. 594; Com. h. t.
APPENDITIA, from appendo, to hang at or on; the appendages or pertinencies of an estate; the appurtenances to a dwelling, &c; thus pent-houses are the appenditia domus, <Sie.
APPOINTMENT, in chancery practice, is the act of a person authorised by a will or other instrument to direct how trust property shall be disposed of, directing such disposition agreeably to the general directions of the trust. The appointment must be made in such a manner as to come within the spirit of the power. And although at law the rule only requires that some allotment, however small, shall be given to each person, when the power is to appoint to and among several persons; the rule in equity differs, and requires a real and substantial portion to each, and a mere nominal allotment to one is deemed illusory and fraudulent. When the distribution is left to discretion, without any prescribed rule, as to such of the children as the trustee shall think proper, he may appoint to one only, 5 Ves. 857; but if the words be, amongst the children as he should think proper, each must have a share, and the doctrine of illusory appointment applies, 4 Ves. 771; Prec. Ch. 256; 2 Vern. 513. Vide, generally, 1 Supp. to Ves. Jr. 40,95,201, 235, 237; 2 Id. 127; 1 Vern. 67, n.; 1 Ves. Jr. 310, n.; 4 Kent, Com. 337; Sugd. on Pow. Index, h. t.; 2 Hill. Ab. Index, h. t.
APPOINTMENT, government, wills. The act by which a person is selected and invested with an office; as the appointment of a judge, of which the making out of his commission is conclusive evidence, 1 Cranch, 137,155; 10 Pet. 343. The appointment of an executor, which is done by nominating him as such in a will or testament. By appointment is also understood a public employment, nearly synonymous with office. The distinction is this, that the term appointment is of a more extensive signification, than office; for example, the act of authorizing a man to print the laws of the United States by authority, and the right conveyed by such act, is an appointment, but the right thus conveyed is not an office. 17 S. & R. 219, 233.
APPORTIONMENT, contracts. Lord Coke defines it to be a division or partition of a rent, common, or the like, or the making it into parts. Co. Litt. 147. This definition seems incomplete. Apportionment frequently denotes, not division but distribution; and in its ordinary technical sense, the distribution of one subject in proportion to another previously distributed. 1 Swanst. C. 338, n. Apportionment may be considered in two points of view; 1, when it can take place in relation to the subjectmatter of the contract; 2, when there are two or more persons claiming the performance of the contract, and each of whom is entitled to a proportion; and, 3, when rents can be apportioned as to time.
1. When there is a special contract between the parties, generally speaking according to the rules of the common law, no compensation can be recovered, unless the contract has been entirely fulfilled; 4 Greenl. R. 454; 2 Pick. R. 267; 10 Pick. R. 209; 4 Pick. R. 103 ; 4 McCord, R. 26, 246; 6 Verm. R. 35; the subject of the contract being a com