Gambar halaman
PDF
ePub

The English law dictionaries would be very unsatisfactory guides, even in pointing out where the laws relating to the acquisition and transfer of real estate, or the laws of descent in the United States, are to be found. And the student who seeks to find in the Dictionaries of Cowell, Manley, Jacobs, Tomlins, Cunningham, Burn, Montefiore, Pott, Whishaw, Williams, the Termes de Ley, or any similar compilation, any satisfactory account in relation to international law, to trade and commerce, to maritime law, to medical jurisprudence, or to natural law, will probably not be fully gratified. He cannot, of course, expect to find in them any thing in relation to our government, our constitutions, or our political or civil institutions.

It occurred to the author that a law dictionary, written entirely anew, and calculated to remedy those defects, would be useful to the profession. Probably overrating his strength, he resolved to undertake the task, and if he should not fully succeed, he will have the consolation to know, that his effort may induce some more gifted individual, and better qualified by his learning, to undertake such a task, and to render the American bar an important service. Upon an examination of the constitution and laws of the United States, and of the several states of the American Union, he perceived many technical expressions and much valuable information which he would be able to incorporate in his work. Many of these laws, although local in their nature, will be found useful to every lawyer, particularly those engaged in mercantile practice. As instances of such laws the reader is referred to the articles, Acknowledgment, Descent, Divorce, Letters of administration, and Limitation. It is within the plan of this work to explain such technical expressions as relate to the legislative, executive, or judicial departments of the government; the political and the civil rights and duties of the citizens; the rights and duties of persons, particularly such as are peculiar to our institutions, as, the rights of descent and administration; of the mode of acquiring and transferring property; to the criminal law, and its administration. It has also been an object with the author to embody in his work such decisions of the courts as appeared to him to be important, either because they differed from former judgments, or because they related to some point which was before either obscure or unsettled. He does not profess to have examined or even referred to all the American cases; it is a part of the plan, however, to refer to authorities generally, which will lead the student to nearly all the cases.

The author was induced to believe, that an occasional comparison of the civil, canon, and other systems of foreign law, with our own, would be useful to the profession, and illustrate many articles which, without such aid, would not appear very clear; and also to introduce many terms from foreign laws, which may supply a deficiency in ours. The articles Condonation, Extradition and Novation, are of this sort. He was induced to adopt this course because the civil law has been considered, perhaps not without justice, the best system of written reason, and as all laws are or ought to be founded in reason, it seemed peculiarly proper to have recourse to this fountain of wisdom: but another motive influenced this decision; one of the states of the Union derives most of its civil regulations from the civil law; and there seemed a peculiar propriety, therefore, in introducing it into an American law dictionary. He also had the example of a Story, a Kent, Mr. Angell, and others, who have ornamented their works from the same source. And he here takes the opportunity to acknowledge the benefits which he has derived from the learned labours of these gentlemen, and of those of Judge Sergeant, Judge Swift, Judge Gould, Mr. Rawle, and other writers on American law and jurisprudence.

In the execution of his plan, the author has, in the first place, defined and explained the various words and phrases, by giving their most enlarged meaning, and then all the shades of signification of which they are susceptible; secondly, he has divided the subject in the manner which to Jim appeared the most natural, and laid down such principles and rules as belong to it; in these cases he has generally been careful to give an illustration, by citing a case whenever the subject seemed to require it, and referring to others supporting the same point; thirdly, whenever the article admitted of it, he has compared it with the laws of other countries within his reach, and pointed out their concord or disagreement; and, fourthly, he has referred to the authorities, the abridgments, digests, and the ancient and modern treatises, where the subject is to be found, in order to facilitate the researches of the student. He desires not to be understood as professing to cite cases always exactly in point; on the contrary, in many instances the authorities will probably be found to be but distantly connected with the subject under examination, but still connected with it, and they have been added in order to lead the student to matter of which he may possibly be in pursuit.

At the suggestion of a judicious friend, in order to make this work as complete as possible, and useful to the inquiring practitioner, as well as to the student, an appendix has been added, containing Kelham's Norman Law Dictionary.

To those who are aware of the difficulties of the task, the author deems it unnecessary to make any apology for the imperfections which may be found in the work. His object has been to be useful; if that has been accomplished in any degree, he will be amply rewarded for his labour; and he relies upon the generous liberality of the members of the profession to overlook the errors which may have been committed in his endeavours to serve them.

Philadelphia, September, 1839.

A

LAW DICTIONARY.

A, The first letter of the English and most other alphabets, is frequently used as an abbreviation, (q. v.) and also in the marks of schedules or papers, as schedule A, B, C, &c.

A MENSA ET THORO, from bed and board. A divorce a mensa et thoro, is rather a separation of the parties by act of law, than a dissolution of the marriage. It may be granted for causes of extreme cruelty or desertion of the wife by the husband. 2 Eccl. Rep. 208. This kind of divorce does not affect the legitimacy of children, nor authorize a second marriage. V. A vinculo matrimonii, Cruelty, Divorce.

A PRENDRE, French, to take, to sieze, in contracts, as profits a prendre. Ham. N. P. 184.

A RENDRE, French, to render, to yield, in contracts. Profits a rendre; under this term are comprehended rents and services. Ham. N. P. 192.

A VINCULO MATRIMONII, from the bonds of marriage. A marriage may be dissolved a vinculo, in many states, as in Pennsylvania, on the ground of canonical disabilities before marriage, as that one of the parties was legally married to a person who was then living; impoVol. i.—2.

tence, (q. v.), and the like; adultery; cruelty; and malicious desertion for two years or more. In New York a sentence of imprisonment for life is also a ground for a divorce a vinculo. When the marriage is dissolved a vinculo, the parties may marry again; but when the cause is adultery, the guilty party cannot marry his or her paramour.

AB INITIO, from the beginning. 1. Where a man makes a lawful entry, and subsequently abuses an authority in law to enter, as to distrain or the like, he becomes a trespasser ab initio. Bac. Ab. Trespass, B.; 8 Coke, 146; 2 Bl. Rep. 1218; Clayt. 44. And if an officer neglect to remove goods attached within a reasonable time and continue in possession, his entry becomes a trespass ab initio. 2 Bl. Rep. 1218. See also as to other cases, 2 Stra. 717; 1 H. Bl. 13; 11 East, 395; 2 Camp. 115; 2 Johns. 191; 10 Johns. 253; Ibid. 369.—2. But in case of an authority in fact, to enter, an abuse of such authority will not, in general, subject the party to an action of trespass, Lane, 90; Bac. Ab. Trespass, B.; 2 T. R. 166. See generally 1 Chit. PL 146, 169, 180.

AB IRATO, civil law. A latin phrase which signifies by a man in anger. It is applied to bequests or gifts, which a man makes adverse to the interest of his heir, in consequence of anger or hatred against him. Thus a devise made under these circumstances is called a testament ab irato. And the suit which the heirs institute to annul this will is called an action ab irato. Merlin, Repert, mots, Ab irato.

ABANDONMENT, contracts. In the French law the act by which a debtor surrenders his property for the benefit of his creditors. Merl. Rep. mot Abandonment.

ABANDONMENT, contracts.— In insurances the act by which the insured relinquishes to the assurer all the property to the thing insured. No particular form is required for an abandonment, nor need it be in writing; but it must be explicit and absolute, and must set forth the reasons upon which it is founded. It must also be made in reasonable time after the loss. It is not in every case of loss that the insured can abandon. In the following cases an abandonment may be made; when there is a total loss; when the voyage is lost or not worth pursuing, by reason of a peril insured against; or if the cargo be so damaged as to be of little or no value; or where the salvage is very high, and further expense be necessary, and the insurer will not engage to bear it; or if what is saved is of less value than the freight; or where the damage exceeds one-half of the value of the goods insured; or where the property is captured, or even detained by an indefinite embargo; and in cases of a like nature. The abandonment, when legally made, transfers from the insured to the insurer the property in the thing insured, and obliges him to pay to the insured what he promised him by the

contract of insurance. 3 Kent, Com. 265; 2 Marsh. Ins. 559; Pard. Dr. Com. n. 836 et seq. Boulay Paty, Dr. Com. Maritime, tit. 11, tom. 4, p. 215.

ABANDONMENT. In maritime contracts in the civil law, principals are generally held indefinitely responsible for the obligations which their agents have contracted relative to the concern of their commission; but with regard to ship owners there is a remarkable peculiarity; they are bound by the contract of the master only to the amount of their interest in the ship, and can be discharged from their responsibility by abandoning the ship and freight. Poth. Chartcspart. s. 2, art. 3, §51; Ord. de la Mar. des proprietaires, art. 2; Code de Com. 1. 2, t. 3, art. 216.

ABANDONMENT, rights. The relinquishment of a right; the giving up of something to which we are entitled. Legal rights when once vested must be divested according to law, but equitable rights may be abandoned. 2 Wash. R. 106. See 1 H. & M. 429; a mill site, once occupied, may be abandoned. 17 Mass. 297; an application for land, which is an inception of title, 5 S. & R. 215; 2 S. & R. 378; 1 Yeates, 193, 289; 2 Yeates, 81, 88, 318; an improvement, 1 Yeates, 515; 2 Yeates, 476; 5 Binn. 73; 3 S. & R. 319; and a trust fund, 3 Yerg. 258, may be abandoned.

ABANDONMENT for torts, a term used in civil law. By the Roman law, when the master was sued for the tort of his slave, or the owner for a trespass committed by his animal, he might abandon them to the person injured, and thereby save himself from further responsibility. Similar provisions have been adopted in Louisiana. It is enacted by the civil code that the master shall be answerable for all the damages occasioned by an offence or quasi ofience committed by his slave. He may, however, discharge himself from such responsibility by abandoning the slave to the person injured; in which case such person shall sell such slave at public auction in the usual form, to obtain payment of the damages and costs; and the balance, if any, shall be returned to the master of the slave, who shall be completely discharged, although the price of the slave should not be sufficient to pay the whole amount of the damages and costs; provided that the master shall make abandonment within three days after the judgment awarding such damages shall have been rendered; provided also that it shall not be proved that the crime or offence was committed by his order; for in such cases the master shall be answerable for all damages resulting therefrom, whatever be the amount, without being admitted to the benefit of abandonment. Art. 180, 181.

The owner of an animal is answerable for the damages he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury, except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm he has done, without being allowed to make the abandonment. lb. art. 2301.

ABANDONMENT, malicious.— The act of a husband or wife, who leaves his or her consort wilfully, and with an intention of causing a perpetual separation. Such abandonment, when it has continued a sufficient length of time, is sufficient cause for a divorce. Vide 1 Hoff. R. 47; Divorce.

ABATEMENT, chancery practice, is a suspension of all proceed

ings in a suit, from the want of proper parties capable of proceeding therein. It differs from an abatement at law in this, that in the latter the action is in general entirely dead, and cannot be revived, 3 Bl. Com. 168; but in the former, the right to proceed is merely suspended, and may be revived by a bill of revivor. Mitf. Eq. PI. by Jeremy, 57; Story, Eq. PI. § 354.

ABATEMENT, contracts, is a reduction made by the creditor, for the prompt payment of a debt due by the payor or debtor. Wesk. on Ins. 7.

ABATEMENT, mere. law. By this term is understood the deduction sometimes made at the custom-house from the duties chargeable upon goods when they are damaged. See Act of Congress, March 2, 1799, s. 52, 1 Story L. U. S. 617.

ABATEMENT, pleading, is the overthrow of an action in consequence of some error committed in bringing or conducting it, when the plaintiff is not forever barred from bringing another action. 1 Chit. PI. 434; Pleas in abatement will be considered as relating, 1 to the jurisdiction of the court; 2, to the person of the plaintiff; 3, to that of the defendant; 4, to the writ; 5, to the qualities of such pleas; 6, to the form of such pleas; 7, to the affidavit of the truth of pleas in abatement.

[2] § 1. As to pleas relating to the jurisdiction of the court, see article Jurisdiction, and Arch. Civ. PI. 290; 1 Chit. PI. Index, tit. Jurisdiction.

[3] § 2. Relating to the person of the plaintiff. 1. The defendant may plead to the person of the plaintiff that there never was any such person in rerum natura. Bro. Brief, 25; 19 Johns. 308; Com. Dig. Abatement, E. 16. And if one of several plaintiffs be a fictitious person, it abates the writ. Com, Dig. Abatement, E. 16; 1 Chit. PI. 435;

« SebelumnyaLanjutkan »