Gambar halaman
PDF
ePub

ambassadors of the second rank, who are sent with a less extensive commission, to a court where there are no nuncios. This title is equivalent to envoy, (at v.)

ABNEPOS, in the civil law, is the grandson of the grandson or granddaughter, or fourth descendant.— Abneptis, is the grand-daughter of the grandson or grand-daughter.

ABOLITION, is the act by which a thing is extinguished, abrogated or annihilated. Merl. Repert. h. t., as the abolition of slavery is the destruction of slavery. In the civil and French law abolition is used nearly synonymously with pardon, remission, grace. Dig. 39, 4, 3, 3. There is, however, this difference; grace is the generic term; pardon, according to those laws, is the clemency which the prince extends to a man who has participated in a crime, without being the principal or accomplice; remission is made in cases of involuntary homicides, and self-defence. Abolition is different; it is applied when the crime exists which cannot be remitted. The prince then may by letters of abolition remit the punishment, but the infamy remains, unless letters of abolition have been obtained before sentence. Encycl. de d'Alembert, h. t. The term abolition is used in the German law in the sense it is used in the French law. Encycl. Amer. h. t. The term abolition is derived from the civil law, where it is sometimes used synonymously with absolution. Dig. 39, 4, 3, 3.

ABORTION, med. jur. and criminal law. The expulsion of the fetus before the seventh month of utero-gestation, or before it is viable, (q. v.) The causes of this accident are referable either to the mother, and 'particularly to the uterus; or to the fetus and its dependencies. The causes in the mother may be: extreme nervous susceptibility, great

debility, plethora, faulty conformation, and the like; and it is frequently induced immediately by intense mental emotion, violent exercise, &c. The causes seated in the fetus are its death, rupture of the membranes, &c. It most frequently occurs between the 8th and 12th weeks of gestation. When abortion is produced with a malicious design, it becomes a misdemeanor, at common law, 1 Russell, 553; and the party causing it may be indicted and punished. The criminal means resorted to for the purpose of destroying the fetus, may be divided into general and local. To the first belong venesection, emetics, cathartics, diuretics, emmenagogues, &c. The second embraces all kinds of violence directly applied. When, in consequence of the means used to produce abortion, the death of the woman ensues, the crime is murder. By statute a distinction is made between a woman quick with child, (q. v.) and one who, though pregnant, is not so, 1 Bl. Com. 129. Physiologists, perhaps with reason, think that the child is a living being from the moment of conception. 1 Beck, Med. Jur. 291.— General references. 1 Beck, 288 to 331; and 429 to 435; where will be found an abstract of the laws of different countries, and of some of the states, punishing criminal abortion; Roscoe, Cr. Ev. 190; 1 Russ. 553; Vilanova y Manes, Materia Criminal Forense, Obs. 11, c. 7, n. 15—18. See also 1 Briand, Med Leg. lere partie, c. 4, where is considered the question, how far is abortion justifiable, and it can be considered neither a crime nor a misdemeanor? See Alis. Cr. L. of Scot. 628.

ABOVE. Uppermost. This word is applied in law to designate the superior court, or one which may revise proceedings of an inferior court on error, from such inferior jurisdiction. The court of error is called the court above; the court whose proceedings are to be examined is called the court below. By bail above is understood bail to the action entered with the prothonotary or clerk, which is an appearance. See Bail above. The bail given to the sheriff, in civil cases, when the defendant is arrested on bailable process, is called bail below; q. v. vide Below.

TO ABRIDGE, practice, is to make shorter in words, so as to retain the sense or substance. In law it signifies particularly the making a declaration or count shorter, by taking or severing away some of the substance from it. Brook, tit. Abridgment; Com. Dig. Abridgment; 1 Vin. Ab. 109.

ABROGATION, in the civil law, legislation, is the destruction or annulling of a former law, by an act of the legislative power, or by usage. A law may be abrogated or only derogated from; it is abrogated when it is totally annulled; it is derogated from when only a part is abrogated: derogatur legi,cum pars detrahitur; ebrogaXur legi, cum prorsiis tollitur. Dig. lib. 50, t. 17, 1. 102. Abrogation is express or implied; it is express when it is literally pronounced by the new law, either in general terms, as when a final clause abrogates all laws contrary to the provisions of the new one, or in particular terms, as when it abrogates such and such preceding laws which are named. Abrogation is implied when the new law contains provisions which are positively contrary to the ancient laws, without expressly abrogating such laws: for it is a maxim, posteriora derngant prioribiis. 3 N. S. 190; 10 M. R. 172, 560. It is also implied when the order of things for which the law had been made no longer exists, and hence the motives which had caused its enactment have ceased to operate: rationt leges omnino cessante cessat lex. Toullier,

Droit Civil Francais, tit. prel. ill, n. 151. Merlin, mot Abrogation.

ABSENTEE. One who is away from his domicile or usual place of residence. After an absence of seven years without being heard from, the presumption of death arises. 2 Campb. R. 113; Hardin's R. 479; 18 Johns. R. 141; 15 Mass. R. 305; Peake's Ev. c. 14, s. 1; 2 Stark. Ev. 457, 8; 4 Barn. & A. 433; 1 Stark. C. 121: Park on Ins. 433; 1 Bl. R. 404. In Louisiana when a person possessed of either moveable or immoveable property within the state, leaves it, without having appointed somebody to take care of his estate; or when the person thus appointed dies, or is either unable or unwilling to continue to administer that estate, then and in that case, the judge of the place where the estate is situated, shall appoint a curator to administer the same. Civ. Code of Lo. art. 50. In the appointment of this curator the judge shall prefer the wife of the absentee to his presumptive heirs, the presumptive heirs to other relations, the relations to strangers, and creditors to those who are not otherwise interested; provided, however, that such persons be possessed of the necessary qualifications. Ib. art. 51. For the French law on this subject, vide Birct, de l'Absence; Code Civil, liv. 1, tit. 4; Fouss. lib. 1, tit. 4, n. 379-487; Merl. Rep. h. t.; and see also Ayl. Pand. 269; Dig. 50, 16, 198; Ib. 50, 16, 173; Ib. 3, 3, 5; Code, 7, 33, 12.

ABSOLUTE, signifies without any condition or encumbrance, as an "absolute bond," simplex obligatio, in distinction from a conditional bond; an absolute estate, one that is free from all manner of condition or encumbrance. A rule is said to be absolute, when, on the hearing, it is confirmed. As to the effect of an absolute conveyance, see 1 Pow. Mortg. 125; in relation to absolute rights, 1 Chitty, Pl. 364; 1 Chitty, Pr. 82.

ABSOLUTION, a definite sentence whereby a man accused of any crime is acquitted.

ABSQUE HOC, pleading, when the pleadings were in Latin, these words were employed in a traverse. Without this, that (q. v.) are now used for the same purpose.

ABSTENTION, French law. It is the tacit renunciation by an heir of a succession. Merl. Rep. h. t.

ABUSE, every thing which is contrary to good order established by usage. Merl. Rep. h. t. Among the civilians, abuse has another signification; which is the destruction of the substance of a thing in using it. For example, the borrower of wine or grain abuses the article lent by using it, because he cannot enjoy it without consuming it. Lec. El. Dr. Rom. § 414, 416.

ABUTTALS. The buttings and boundings of land, on the north or south, east or west, showing on what other lands, rivers, highways, or other places it does abut. More properly, it is said, the sides of land are adjoining, and the ends abutting to the thing contiguous. Vide Boundaries, and Cro. Jac. 184.

AC ETIAM, Eng. law. In order to give jurisdiction to a court, a cause of action over which the court has jurisdiction is alleged, and also (ac etiam) another cause of action over which, without being joined with the first, the court would have no jurisdiction; for example, to the usual complaint of breaking the plaintiff's close, over which the court has jurisdiction, a clause is added containing the real cause of action.

ACCEDAS AD CURIAM, that you go to court, in practice in the English law, is an original writ, issuing out of chancery, now of course, returnable in K. B. or C. P. for the removal of a replevin sued by

plaint in court of any lord, other than the county before the sheriff. See F: N. B. 18; Dyer, 169.

ACCEDAS AD VICECOMITEM, Engl. law. The name of a writ directed to the coroner, commanding him to deliver a writ to the sheriff, who having a pone delivered to him, suppresses it.

ACCEPTANCE of a hill of exchange, is the act by which the drawee or other person evinces his consent and intention to comply with, and be bound by, the request contained in a bill of exchange to pay the same; or in other words, it is an engagement to pay the bill when due; 4 East, 72; this engagement is made by the drawee of the bill, or by some other person, supra protest, to the drawer or some of the other parties, either before the bill is drawn or afterwards, and it may be verbal or in writing; and is either absolute, partial or conditional, and when made after the drawing of the bill, is according to or varying from its tenor.

The acceptance ought to be made by the drawee himself, but it may be made by an agent, Chit. Bills, 30; Beawes, pl. 87, page 462; 1 Esp. Rep. 116; lb. 269. On presentment of a foreign or inland bill for acceptance, the holder has a right to insist upon such an acceptance by the drawee as will subject him at all events to the payment of the bill according to the tenor of it; and consequently such drawee must have capacity to contract, and to bind himself to pay the amount of the bill, or it may be treated as dishonoured. Marius, 22.

The drawee must accept the bill within twenty-four hours after presentment, or it should be treated as dishonoured. Chit. Bills, 212, 213, in notes. On the refusal to accept, even within the twenty-four hours, the bill should be protested. Ib. By the laws of the state of New York every person upon whom a bill of exchange is drawn, to whom the same is delivered for acceptance, who shall destroy such bill, or refuse within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted, shall be deemed to have accepted the same. An acceptance of a bill may be made before a bill is drawn, 3 Mass. 1; but in that case, it must be in writing. See 1 Gall. R. 630; 10 Johns. R. 207; 11 Mass. R. 54; 5 Mass. R. 11; 2 Gall. R. 233; 2 Wheat. R. 66; 15 Johns. R. 6; 1 Hall's Law Journ. 486; 1 East, 105; 4 Campb. R. 393; 1 Holt's C. N. P. 181; Burr. 1633; Cowp. 573; 2 W. C. C. R. 133; or, it may be made after the bill is drawn, and before it becomes due; or after the time appointed by the bill for payment, 1 H. Bl. 313; 2 Green. R. 339, and even after refusal to accept, so as to bind the acceptor.

As to the form of the acceptance, it is clearly established that it may be in writing on the bill itself, or on another paper, 4 East, 91 ; or it may be verbal, 4 East, 67; 10 Johns. R. 207; 3 Mass. R. 1.

An acceptance, in regard to its extent or effect, may be either absolute, conditional, or partial. An absolute acceptance is an engagement to pay the bill according to its tenor, and is usually made by writing on the bill "accepted," and subscribing the drawee's name; or by writing "accepted" only; or by merely writing the name either at the bottom or across the bill. Comb. 401; Vin. Abr. Bills of Exchange, L 4; Bayl. 77; Chit. Bills, 226 to 228. An acceptance which will subject the drawer to the payment of the money only on a contingency, is a conditional acceptance. Bayl. 83, 4, 5; Chit. Bills, 234. The holder is not bound to receive such an acceptance,

Vol. I.—5.

but if he do receive it, he must observe its terms. 4 M. ceSelw. 466;

1 Campb. 425; 2 Wash. C. C. R. 485. A partial acceptance varies from the tenor of the bill; as where it is made to pay part of the sum for which the bill is drawn, 1 Str. 214;

2 Wash. C. C. R. 485; or to pay at a different time, Molloy, B. 2, c. 10, s. 20; or place, 4 Ma. & Selw. 462.

ACCEPTANCE, contract* an agreement to receive something which • has been offered. To complete the contract, the acceptance must be absolute and past recall, 10 Pick. 326; 1 Pick. 278; and communicated to the party making the offer at the time and place appointed. 4 Wheat. R. 225; 6 Wend. 103. In many cases acceptance of a thing waives the right which the party receiving before had; as, for example, the acceptance of rent after notice to quit, in general waives the notice. See Co. Litt. 211, b; Id. 215, a; and Notice to quit. This subject is further considered under the articles Assent and Offer, (q. v.)

ACCEPTANCE, EXPRESS,— contracts. An agreement in direct and express terms to pay a bill of exchange by the party on whom it is drawn, or some other person, for the honour of some of the parties. It is usually in the words accepted or accepts, but other express words showing an engagement to pay the bill will be equally binding.

ACCEPTANCE, IMPLIED, contracts. An agreement to pay a bill, not by direct and express terms, but by such acts of the parties from which an express agreement may be inferred; for example, if the drawee write "seen," "presented," or any other thing upon it, (as the day on which it becomes due,) this, unless explained by other circumstances, will constitute an acceptance.

ACCEPTANCE, PARTIAL, contracts. An agreement to pay a bill of exchange, according to the tenor of the acceptance; and this may vary from the bill with respect to sum, time and place: it may also vary from the tenor in which the acceptor undertakes to pay.

ACCEPTANCE, VERBAL, contracts. A verbal_agreement by the drawee to pay a bill of exchange. This is equally binding with a written acceptance. Holt, 297; Burr. 1669.

ACCEPTANCE SUPRA PROTEST, is the acceptance of the bill, after protest for non-acceptance by the drawee, for the honour of the drawer, or of a particular endorser. When a bill has been accepted supra protest for the honour of one party to the bill, it may be accepted supra protest by another individual, for the honour of another. Beawes, tit. Bills of Exchange, pl. 42; 5 Campb. R. 447.

ACCEPTILATION, contracts. In the civil law, is a release made by a creditor to his debtor of his debt, without receiving any consideration. Ayl. Pand. tit. 26, p. 570; it is a species of donation, but not subject to the forms of the latter, and is valid, unless in fraud of creditors. Merlin, Repert de Jurisp. h. t. Acceptation may be denned verborum conceplio qua creditor debitori, quod debet, acctptum fert; or, a certain arrangement of words by which on the question of the debtor, the creditor, wishing to dissolve the obligation, answers that he admits as received, what in fact he has not received. The acceptation is an imaginary payment. Dig. 46, 4, 1 and 19; Dig. 2, 14, 27, 9; Inst. 3, 30, 1.

ACCEPTOR, contracts. The person who agrees to pay a bill of exchange drawn upon him. The acceptor of a bill is the principal debtor, and the drawer the surety. He is bound, though he accepted without consideration, and for the sole accom

modation of the drawer. By his acceptance he admits the drawer's handwriting, for before acceptance it was incumbent upon him to inquire into the genuineness of the drawer's handwriting. 3 Burr. 1354; 1 Bla, Rep. 390, S. C; 4 Dall. 234; 1 Binn. 27, S. C. When once made, the obligation of the acceptor is irrevocable. As to what amounts to an acceptance, see ante Acceptance; Cjmbv on Bills, 242, et seq.; 3 Kent, Com. 55, 6; Pothier, Traite du Contrat de Change, premiere part. n. 44.

The liability of the acceptor cannot in general be released or discharged, otherwise than by payment, or by express release or waiver, or by the act of limitations. Dougl. R. 247. What amounts to a waiver and discharge of the acceptor's liability, must depend on the circumstancesofeachparticularcase. Dougl. 236,248; Bayl. on Bills, 90; Chitty on Bills, 249.

ACCEPTOR SUPRA PROTEST, in contracts, is a third person who, after protest for non-acceptance by the drawee, accepts the bill for the honour of the drawer, or of the particular endorser. By this acceptance he subjects himself to the same obligations as if the bill had been directed to him. An acceptor supra protest has his remedy against the person for whose honour he accepted, and against all persons who stand prior to that person. If he takes up the bill for the honour of the endorser, he stands in the light of an endorsee paying full value for the bill, and has the same remedies to which an endorsee would be entitled against all prior parties, and he can, of course, sue the drawer and endorser. 1 Ld. Raym. 574; 1 Esp. N. P. Rep. 112; Baylev on Bills, 209; 3 Kent. Com. 57; Chitty on Bills, 312. The acceptor supra protest is required to give the same notice, in order to charge it party,

« SebelumnyaLanjutkan »