A

LAW DICTIONARY.

paramour.

A, The first letter of the English | tence, (q. v.), and the like; adulteand most other alphabets, is fre- ry; cruelty; and malicious desertion quently used as an abbreviation, (q. for two years or more. In New v.) and also in the marks of schedules York a sentence of imprisonment or papers, as schedule A, B, C, &c. for life is also a ground for a divorce A MENSA ET THORO, from a vinculo. When the marriage is bed and board. A divorce a mensa dissolved a vinculo, the parties may et thoro, is rather a separation of marry again, but when the cause the parties by act of law, than a is adultery, the guilty party cannot dissolution of the marriage. It may marry his or her 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.

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 Bĺ Rep. 1218. See also as to other cases, 2 Stra. 717; 1 H. Bl. 13; 11 East, 395; 2 Camp. 115; 2 A VINCULO MATRIMONII, Johns. 191; 10 Johns. 253; Ibid. from the bonds of marriage. A mar- 369.-2. But in case of an authority riage may be dissolved a vinculo, in in fact, to enter, an abuse of such many states, as in Pennsylvania, on authority will not, in general, subject the ground of canonical disabilities the party to an action of trespass. before marriage, as that one of the Lane, 90; Bac. Ab. Trespass, B.; parties was legally married to a 2 T. R. 166. See generally 1 Chit. person who was then living; impo- Pl. 140, 169, 180.

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

N. P. 192.

VOL. I.-2.

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, Répert, 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. Rép. 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. Chartes-part. s. 2, art. 3, § 51; Ord. de la Mar. des proprietaires, art. 2; Code de Com. I. 2, t. 3, art. 216.

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 offence 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 | Who may abate a nuisance; 2, The shall have been rendered; provided manner of abating it. 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. Ib. art. 2301.

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.

§1. Who may abate a nuisance. 1. Any person may abate a public nuisance. 2 Salk. 458; 9 Co. 454.— 2. The injured party may abate a private nuisance, which is created by an act of commission, without notice to the person who has committed it ; but there is no case which sanctions the abatement by an individual of nuisances from omission, except that of cutting branches of trees which overhang a public road, or the pri vate property of the person who cuts them.

§2. The manner of abating it. 1. A public nuisance may be abated without notice, 2 Salk. 458; and so may a private nuisance which arises by an act of commission. And, when the security of lives or property may require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it, an individual would be justified in abating a nuisance from omission without ABATEMENT OF LEGA- notice. 2 Barn. & Cres. 311; 3 CIES, is the reduction of legacies for the purpose of paying the testator's debts. When the estate is short of paying the debts and legacies, and there are general legacies and specific legacies, the rule is that the general legatees must abate proportionably in order to pay the debts; a specific legacy is not abated unless the general legacies cannot pay all the debts; in that case what remains to be paid must be paid by the specific legatees, who must, where there are several, abate their legacies pro-sances, it has been held, that if a portionably. 2 Bl. Com. 513; 2 Ves. Sen. 561 to 564; 1 P. Wms. 680; 2 P. Wms. 383. See 2 Bro. C. C. 19; Bac. Abr. Legacies, H; Rop. on Leg. 253, 284.

Dowl. & R. 556.-2. In the abatement of a public nuisance, the abator need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate illegally fastened, might have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule that the abatement must be limited by its necessity, and no wanton or unneces sary injury must be committed. 2 Salk. 458. 3. As to private nui.

man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet, and so diminishing the water used by the latter for his cattle, the party injured may ABATEMENT OF NUISAN- enter on the soil of the other, and CES is the prostration or removal abate the nuisance and justify the of a nuisance. 3 Bl. Com. 5. 1. trespass; and this right of abate

ment is not confined merely to a house, mill or land. 2 Smith's Rep. 9; 2 Roll. Abr. 565; 2 Leon. 202; Com. Dig. Pleader, 3 M. 42; 3 Lev. 92; 1 Brownl. 212.-4. The abator of a private nuisance cannot remove the materials further than necessary, nor convert them to his own use. Dalt. c. 50. And so much only of the thing as causes the nuisance should be removed; as if a house be built too high, so much only as is too high should be pulled down. 9 Co. 53; God. 221; 2 Str. 686.-5. If the nuisance can be removed without destruction and delivered to a magistrate, it is advisable to do so; as in the case of a libellous print or paper affecting an individual, but still it may be destroyed. 5 Co. 125, b. ; 2 Campb. 511. See, as to cutting down trees, Roll. Rep. 394; 3 Buls. 198; Vin. Abr. tit. Trees, E, and Nuisance, W.

ment, E 16; 1 Chit. Pl. 435; Arch. Civ. Pl. 304.-2. The defendant may plead that the plaintiff is a feme covert. Co. Lit. 132, b; or that she is his own wife. 1 Brown. Ent. 63; and see 3 T. R. 631; 6 T. R. 265; Com. Dig. Abatement, E 6; 1 Chit. Pl. 437; Arch. Civ. Pl. 302. Coverture occurring after suit brought is a plea in abatement which cannot be pleaded after a plea in bar, unless the matter arose after the plea in bar, but in that case the defendant must not suffer a continuance to intervene between the happening of this new matter, or its coming to his knowledge and pleading it. 4 S. & R. 238; Bac. Abr. Abatement, G. -3. That the plaintiff, (unless he sue with others as executor) is an infant and has declared by attorney. 1 Chit. Pl. 436; Arch. Civ. Pl. 301 ; Arch. Pr. B. R. 143 ; 2 Saund. 212, a, n. 5; 1 Wentw. 58, 62.-4. A ABATEMENT, pleading, is the suit brought by a lunatic, under guaroverthrow of an action in consequence dianship, shall abate. Brayt. 18.of some error committed in bringing 5. Death of plaintiff before the puror conducting it, when the plaintiff is chase of the original writ, may be not forever barred from bringing ano- pleaded in abatement. 1 Arch. Civ. ther action. 1 Chit. Pl. 434; Pleas Pl. 304, 5; Com. Dig. Abatement, in abatement will be considered as re- E 17. Death of plaintiff pending lating, 1, to the jurisdiction of the the writ might have been pleaded court; 2, to the person of the plain- since the last continuance, Com. Dig. tiff; 3, to that of the defendant; 4, Abatement, H 32; 4 Hen. & Munf. to the writ; 5, to the qualities of 410; 3 Mass. 296; Cam. & Nor. such pleas; 6, to the form of such 72. But in some states, as in Pennpleas; 7, to the affidavit of the truth sylvania, the death of the plaintiff of pleas in abatement. does not abate the writ; in such case the executor or administrator is substituted. 6. Alienage, or that the plaintiff is an alien enemy. 1 Bac. Abr. 4; 6 Binn. 241; 10 Johns. 183; 9 Mass. 363; Id. 377; 11

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

§2. Relating to the person of the plaintiff. 1. The defendant may Mass. 119; 12 Mass. 8; 3 M. & S. plead to the person of the plaintiff 533; 2 John. Ch. R. 508; 15 East, that there never was any such person 260; Com. Dig. Abatement, E 4; in rerum natura. Bro. Brief, 25; Id. Alien, c. 5; 1 S. & R. 310; 1 19 Johns. 308; Com. Dig. Abate- Ch. Pl. 435; Arch. Civ. Pl. 3. 301. ment, E 16; And if one of several-7. Misnomer of plaintiff may also plaintiffs be a fictitious person, it be pleaded in abatement. Arch. Civ. abates the writ. Com. Dig. Abate. Pl. 305; 1 Chit. Pl. Index, tit. Mis

nomer. Com. Dig. Abatement, E Carth. 307; Comb. 188; 1 Lutw. 19, E 20, E 21, E 22; 1 Mass. 10; 5 T. R. 487.-5. When one 76; 1 Bac. Abr. 9.-8. If one of several joint tenants, sue in action ex contractu, Co. Lit. 180, b; Bac. Abr. Joint-tenants, K; 1 B. & P. 73; one of several joint contractors, Arch. Civ. Pl. 48-51, 53; one of several partners, Gow on Part. 150; one of several joint executors who have proved the will, or even if they have not proved the will, 1 Chit. Pl. 12, 13; one of several joint administrators, Ibid. 13; the defendant may plead the non-joinder in abatement. Arch. Civ. Pl. 304; see Com. Dig. Abatement, E 9, E 12, E 13, E 14.-9. If persons join as plaintiffs in an action who should not, the defendant may plead the misjoinder in abatement. Arch. Civ. Pl. 304; Com. Dig. Abatement, E 15.

joint tenant, Com. Dig. Abatement, F 5; or one tenant in common in cases where they ought to be joined, Ibid. F. 6, is sued alone, he may plead in abatement. And in actions upon contracts if the plaintiff do not sue all the contractors, the defendant may plead the non-joinder in abatement. Ibid. F. 8, a; 1 Wash. 9; 18 Johns. 459; 2 Johns. Cas. 382; 3 Caine's Rep. 99; Arch. Civ. Pl. 309; 1 Chit. Pl. 441. When husband and wife should be sued jointly, and one is sued alone, the non-joinder may be pleaded in abatement. Arch. Civ. Pl. 309. The non-joinder of all the executors, who have proved the will; and the non-joinder of all the administrators of the deceased, may be pleaded in abatement. Com. Dig. Abatement, F 10.-6. In a real action if brought against several persons, they may plead several tenancy, that is that they hold in severalty and not jointly, Com. Dig. Abatement, F 12; or one of them may take the entire tenancy on himself, and pray judgment of the writ. Id. F 13. But mis-joinder of defendant in a personal action is not the subject of a plea in abatement. Arch. Civ. Pl. 68, 310.—7. In cases where the defendant may plead non-tenure, see Arch. Civ. Pl. 310; Cro. El. 559.--8. Where he may plead a disclaimer, see Arch. Civ. Pl. 311; Com. Dig. Abatement, F 15.-9. A defendant may plead his privilege of not being sued in abatement. Bac. Ab. Abridgment C; see this Dict. tit. Privilege.

§ 3. Relating to the person of the defendant. 1. In an action against two or more, one may plead in abatement that there never was such a person in rerum natura as A, who is named as defendant with him. Arch. Civ. Pl. 312.-2. If the defendant be a married woman, she may in general plead her coverture in abatement, 8 T. R. 545; Com. Dig. A batement, F 2. The exceptions to this rule arise when the coverture is suspended. Com. Dig. Abatement, F 2, § 3; Co. Lit. 132, b; 2 Bl. R. 1197; Co. B. L. 43.-3. The death of the defendant abates the writ at common law, and in some cases it does still abate the action, see Com. Dig. Abatement, H 34; 1 Hayw. 500; 2 Binn. 1; 1 Gilm. 145.-4. The misnomer of the defendant may be pleaded in abatement, but one § 4. Plea in abatement to the writ. defendant cannot plead the misnomer 1. Pleas in abatement to the writ or of another. Com. Dig. Abatement, bill are so termed rather from their F 18; Lutw. 36; 1 Chit. Pl. 440; effect, than from their being strictly Arch. Civ. Pl. 312. See form of a such pleas, for as oyer of the writ plea in abatement for a misnomer of can no longer be craved, no objection the defendant in 3 Saund. 209, b. can be taken to matter which is and see further, 1 Show. 394; merely contained in the writ, 3 B. &