Gambar halaman

in drawing water through an aperture, by the use of which the quantity of water drawn is much increased. When a privilege to draw water from a canal, through the forebay or tunnel, by means of an aperture has been granted, it is not lawful to add an ajutage, unless such was the intention of the parties. 2 Whart. R. 477.

ALABAMA. The name of one of the new states of the United States of America. This state was admitted into the Union by the resolution of congress, approved December 14th, 1819, 3 Sto. L. U. S. 1804, by which it is resolved that the state of Alabama shall be one, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever. The convention which framed the constitution in this state, assembled at the town of Huntsville, on Monday the fifth day of July, 1819, and continued in session by adjournment, until the second day of August, 1819, when the constitution was adopted. The powers of the government are divided by the constitution into three distinct departments; and each of them confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. Art.

2, s. 1 1st. The legislative power

of the state is vested in two distinct branches; the one styled the senate, the other the house of representatives, and both together, the general assembly of the state of Alabama. 1. The senate is never to be less than one-fourth, nor more than onethird of the number, of the whole number of representatives. Senators are chosen by the qualified electors for the term of three years, at the same time, in the same manner, and at the same place, where they vote for members of the house

of representatives; one-third of the whole number of senators are elected every year. Art. 3, s.« 12.—2. The house of representatives is to consist of not less than forty-four, nor more than sixty members, until the number of white inhabitants shall be one hundred thousand; and after that event, the whole number of representatives shall never be less than sixty, nor more than one hundred. Art. 3, s. 9. The members of the house of representatives are chosen by the qualified electors for the term of one year, from the commencement of the general election, and no longer. 2. The supreme executive power is vested in a chief magistrate, styled the governor of the state of Alabama. He is elected by the qualified electors, at the time and places when they respectively vote for representatives; he holds his office for the term of two years from the time of his installation, and until a successor is duly qualified; and is not eligible more than four years in any term of six years. Art. 4. He is invested, among other things, with the veto power. Ib. s. 16. Incases of vacancies, the president of the senate acts as governor, Art. 4, s. 18.—3d. The judicial power is vested in one supreme court, circuit courts to be held in each county in the state, and such inferior courts of law and equity, to consist of not more than five members, as the general assembly may, from time to time direct, ordain and establish. Art. 5, s. 1.

ALBA FIRMA, Eng. law. When quit rents were reserved payable in silver or white money, they were called white rents, or blanch farms, reditus albi. When they were reserved payable in work, grain, or the like, they were called reditus nigri, or black mail. 2 Inst. 19.

ALBJNATUS JUS. In the ancient French law, the right of the crown to all the personal property of which an alien died possessed in France was so called, droit d'aubaine. This unjust law was swept away with multitudes of others of a similar character, during the French revolution.

ALCADE, Span, law, the name of a judicial officer in Spain, and in those countries which have received the body of their laws from those of Spain.

ALDERMAN, is an officer, generally appointed or elected in towns corporate or cities, possessing various powers in different places. The aldermen of the cities of Pennsylvania, possess all the powers and jurisdictions, civil and criminal, of justices of the peace. They are besides, in conjunction with the respective mayors or recorders, judges of the mayor's courts. Among the Saxons there was an officer called the ealderman, ealdorman, or alderman, which appellation signified literally elderman. Like the Roman senator he was so called, not on account of his age, but because of his wisdom and dignity, non propter atatumsed propter sapient iam et dignitatem. He presided with the bishop at the scyregemote, and was, ex officio, a member of the witenagemote. At one time he was a military officer, but afterwards his office was purely judicial. There were several kinds of aldermen, as king's alderman, alderman of all England, alderman of the county, alderman of the hundred, &c., to denote difference of rank and jurisdiction.

ALEATORY CONTRACTS, civil law. A mutual agreement of which the effects, with respect both to the advantages and losses, whether to all the parties, or to some of them, depend on an uncertain event. Civ. Code of Louis. art. 2951. These contracts are of two kinds; namely, 1. When one of the parties exposes

Vol. I.—9.

himself to lose something which will be a profit to the other, in consideration of a sum of money which the latter pays for the risk. Such is the contract of insurance; the insurer takes all the risk of the sea, and the assured pays a premium to the former for the risk which he runs.—2. In the second kind, each runs a risk which is the consideration of the engagement of the other; for example, when a person buys an annuity, he runs the risk of losing the consideration, in case of his death soon after, but he may live so as to receive three times the amount of the price he paid for it. Merlin Repert. mot Aleatoire.

ALER SANS JOUR or allersant jour, in practice. A French phrase which means go without day; and is used to signify that the case has been finally dismissed the court, because there is no further day assigned for appearance. Kitch. 146.

ALFET, obsolete. A vessel in which hot water was put for the purpose of dipping a criminal's arms in it up to the elbow.

ALIA ENORMIA, pleading. And other wrongs. In trespass the declaration ought to conclude " and other wrongs to the said plaintiff then and there did, against the peace," &c. Under this allegation of alia enormia, some matters may be given in evidence in aggravation of damages, though not specified in other parts of the declaration. Bull. N. P. 89; Holt, R. 699, 700. For example, a trespass for breaking and entering a house, the plaintiff may in aggravation of damages give in evidence the debauching of his daugher, or the beating of his servants under the general allegation alia enormia, &c, 6 Mod. 127. But under the alia enormia no evidence of the loss of service, pr any other matter which would of itself bear an action; for if it would, it should be stated specially. In trespass quart clausum fregit, therefore, the plaintiff would not, under the above general allegation be permitted to give evidence of the defendant's taking away a horse, &c. Bull. N. P. 89; Holt, R. 700; 1 Sid. 225; 2 Salk. 643; 1 Str. 61; 1 Chit. PI. 388.

ALIAS, practice. This word is prefixed to the name of a second writ of the same kind issued in the same cause; as, when a summons has been issued and it is returned by the sheriff, nihil, and another is issued, this is called an alias summons. The term is used to all kinds of writs, as alias fi. H., alias vend, exp. and the like. Alias dictus, otherwise called, a description of the defendant by an addition to his real name of that by which he is bound in the writing; or when a man is indicted and his name is uncertain he may be indicted as A B, alias dictus CD. See 4 John. 118.

ALIBI, in evidence. This is a Latin word which signifies elsewhere. It is that proof which a party who is accused of having committed a crime or other offence, or done any act at a particular place, produces to show that when the crime or offence was committed or act done, he was at another place. This proof is usually made out by the testimony of witnesses, but it is presumed it might be made out in writing, as if the party could prove by a record, properly authenticated, that on the day or at the time in question, he was in another place. If the proof is made out, it is clear he did not commit the crime or offence or do the act. It must be admitted that mere alibi evidence lies under a great and general prejudice, and ought to be heard with uncommon caution; but if it appears to be founded in truth, it is the best negative evidence that can be offered; it is really positive evidence, which in the nature of things necessarily

implies a negative; and in many cases, it is the only evidence which an innocent man can offer.

ALIEN, persons, is one born out of the jurisdiction of the United States, who has not since been- naturalized under their constitution and laws. To this there are some exceptions, as the children of the ministers of the United States at foreign courts. Aliens are subject to disabilities, have rights, and are bound to perform duties, which will be briefly considered. 1 Disabilities. An alien cannot in general acquire title to real estate by the descent or by other mere operation of law; and if he purchase land, he may be divested of the fee, upon an inquest of office found. To this general rule there are statutory exceptions in some of the states; in Pennsylvania, Ohio, Louisiana, New Jersey, Rev. Laws, 604, and Michigan, Rev. St. 266, s. 26, the disability has been removed; in North Carolina, (but see Mart. R. 48; 3 Dev. R. 138; 2 Hayw. 104, 108; 3 Murph. 194; 4 Dev. 247,) Vermont and Virginia, by constitutional provision; and in Alabama, 3 Stew. R. 60; Connecticut, act of 1824, Stat. tit. Foreigners, MI ; Indiana, Rev. Code, c. 3; act of January 25, 1842; Illinois, Kentucky, 1 Litt. 399; 6 Monr. 266; Maine, Rev. St. tit. 7, c. 93, s. 5; Maryland, act of 1825, ch. 66; 2 Wheat. 259; and Missouri, Rev. Code, 1825, p. 66, by statutory provision, it is partly so. An alien even after being naturalized cannot at any time be president of the United States, or in some states, as in New York, governor; he cannot be a member of congress, till the expiration of seven years after that event. An alien can exercise no political rights whatever; he cannot therefore vote at any political election, fill any office, or serve as a juror, 6 John. R. 332. 2. An alien has a right to acquire personal estate, make and enforce contracts in relation to the same, he is protected from injuries and wrongs, to his person and property, his relative rights and character; he may sue and be sued. 3. He owes a temporary local allegiance, and his property is liable to taxation. Aliens are either alien friends or alien enemies. It is only alien friends who have the rights above enumerated, alien enemies are incapable during the existence of war to sue, and may be ordered out of the country. See generally 2 Kent, Com. 43 to 63; 1 Vin. Ab. 157; 13 Vin. Ab. 414; Bac. Ab. h. t.; 1 Saund. 8 n. 2; Wheat. Dig. h. t.

TO ALIENATE, estates, titles. This is a generic term applicable to all those modes of parting with property of which the direct object is to deprive the heirs of the substantial interest in the estate; modes, which it is impossible to enumerate, and which must vary and multiply with the ingenuity of practitioners, and the progress of society. It was, therefore, held, that under a prohibition to alienate, long leases were comprehended. 2 Dow's Rep. 210.

ALIENATION, in contract*, is the act whereby an estate is voluntarily resigned by one person, and accepted by another. Co. Litt. 118 b; Cruise Real Prop. tit. 32, c. 1, s. 1. Alienations may be made by deed; by matter of record; and by devise. Alienations by deed may be made by original or primary conveyances, which are those by means of which the benefit or estate is created or first arises; by derivative or secondary conveyance, by which the benefit or estate originally created, is enlarged, restrained, transferred, or extinguished. These are conveyances by the common law. To these may be added some conveyances which derive their force and operation from the statute of uses. The original conveyances

are the following: 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: the derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeasance: those deriving their force from the statute of uses, are, 12. Covenants to stand seised to uses; 13. Bargains and sale; 14. Lease and release; 15. Deeds to lead or declare the uses of other more direct conveyances; 16. Deeds of revocation of uses. 2 Bl. Com. ch. 20. Vide Conveyance; Deed. Alienations by matter of record may be,

1. By private acts of the legislature;

2. By grants, as by patents of lands;

3. By fines; 4. By common recovery. Alienations may also be made by devise, (q. v.)

ALIENATION OFFICE, in the English law, is an office to which all writs of covenants and entries are carried for the recovery of fines levied thereon.

TO ALIENE, in contracts. To convey the property of a thing to another. To aliene in fee, is to convey the fee simple. To aliene in mortmain, is to make over lands or tenements to a religious house or body politic.

ALIMENTS. In the Roman and French law, this word signifies the food, and other things necessary to the support of life, as it dwelling, clothing, and the like. The same name is given to the money allowed for aliments. Dig. 50, 16, 43. By the common law parents and children reciprocally owe each other aliments or maintenance, (g. v.) Vide 1 Bl. Com. 447; Merl. Rep. h. t.; Dig. 25, 3, 5. In the common law the word alimony (q. v.) is used. Vide Allowance to a Prisoner.

ALIMONY, is the maintenance or support which a husband is bound to give to his wife upon a separation from her; or the support which either father or mother is bound to give to his or her children, through this is more usually called maintenance. The causes for granting alimony to the wife are, 1, desertion, (q. v.) 2, cruelty, (q. v.) 4 Desaus. R. 79; 1 M'Cord's Ch. R. 205; 4 Rand. R. 662; 2 J. J. Marsh. R. 324; 1 Edw. R. 62; and 3, divorce, 4 Litt. R. 252; 1 Edw. R. 382; 2 Paige, R. 62; 2 Binn. R. 202; 3 Yeates, R. 56; 3 S. & R. 248; 9

5. & R. 191; 3 John. Ch. R. 519; 6 John. Ch. R. 91. In Louisiana by alimony is meant the nourishment, lodging and support of the person who claims it. It includes education when the person to whom alimony is due is a minor. Civil Code of L. 246. Alimony is granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it. By the common law parents and children owe each other alimony. 1 Black. Comm. 447 ; 2 Com. Dig. 498; 3 Ves. 358; 4 Vin. Ab. 175; Ayl. Parcrg. 58; Dane's Ab. Index, h. t.; Dig. 34, 1,

6. Alimony is allowed to the wife, pendente lite, almost as a matter of course, whether she be plaintiff or defendant, for the obvious reason that she has generally no other means of living. 1 Clarke's R. 151; but there are special cases where it will not be allowed, as when the wife, pending the progress of the suit, went to her father's who agreed with the husband to support her for services. 1 Clarke's R. 460. See Shelf, on Mar. & Div. 586.

ALLEGATION, in the English ecclesiastical law; according to the practice of the prerogative court, the facts intended to be relied on in support of the contested suit are set forth in the plea, which is termed an allegation; this is submitted to the inspection of the counsel of the adverse party, and, if it appear to them objectionable in form or substance, they oppose the admission of

it. If the opposition goes to the substance of the allegation, and is held to be well founded, the court rejects it; by which mode of proceeding the suit is terminated without going into any proof of the facts. 1 Phill. 1, n.; 1 Eccl. Rep. 11, n. S. C. See 1 Brown's Civ. Law, 472, 3, n.

ALLEGATION, in the common law, is the declaration or statement of a party of what he can prove.

ALLEGATION, in the civil law, is the citation or reference to a voucher to support a proposition. Diet. de. Jurisp.; Encyclopedie, mot, Allegation; 1 Brown's Civ. Law, 473, n.

ALLEGATION OF FACULTIES. When a suit is instituted in the English ecclesiastical courts, in order to obtain alimony, before it is allowed an allegation must be made on the part of the wife, stating the property of the husband. This allegation is called an allegation of faculties. Shelf, on Mar. & Div. 587.

ALLEGIANCE, is the tie or ligament which binds, the citizen to the government, in return for the protection which the government affords him. It is natural, acquired, or local. Natural allegiance is such as is due from all men born within the United States; acquired allegiance is that which is due by a naturalized citizen: it has never been decided whether a citizen can, by expatriation, divest himself absolutely of that character, 2 Cranch, 64; 1 Peters's C. C. Rep. 159; 7 Wheat. R. 283; 9 Mass. R. 461. It seems, however, that he cannot renounce his allegiance to the United States without the permission of the government to be declared by law. But for commercial purposes he may acquire the rights of a citizen of another country, and the place of his domicil determines the character of a party as to trade. 1 Kent, Com. 71; Com. Rep. 677; 2 Kent, Com. 42. Local allegiance is that which

« SebelumnyaLanjutkan »