A New Law Dictionary and Institute of the Whole Law

AFFIDAVIT. A written or printed statement made voluntarily, and verified by oath, for the purpose of being used in a Court of Justice as evidence of facts. In Courts of Law, affidavits are chiefly used upon summary applications only; but in Courts of Equity they are used upon all sorts of applications, whether formal or summary.

An affidavit consists of three essential parts: (1) the title, (2) the statement of facts, and (3) the jurat. The affidavit should be entitled in the Court in which it is to be used, and in the cause or matter, or both (as the case may be), in which it is made. The statement of facts should be plain and unequivocal; the best evidence should, as a rule be adduced, but matters of hearsay, belief, or information are not excluded. The affidavit may be sworn either in Court or at chambers, or at the office of the Record and Writ Clerks, or before one of the commissioners appointed for that purpose; and if made in a foreign country, then they may be sworn before the mayor or other magistrate, attested and certified by a notary public. If the affidavit is in a foreign language, it must be accompanied with a verified translation.

See title EVIDENCE.

AFFILIATION: See title BASTARDY.

AFFINITY. The relationship which marriage occasions between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband. Thus, there is an affinity between the wife and her husband's brother, but there is no affinity between the wife's sister and the husband's brother, or between the husband's sister and the wife's brother.

AFFIRMATION. This has been substituted for an oath in the case of certain religionists who object, on grounds of conscience, to take an oath-e. g. in the case of Quakers, Separatists, and others; and, in short, any person objecting to be sworn may make a solemn affirmation instead (33 & 34 Vict. c. 49).

See title EvIDENCE.

AFFOREST (afforestare.) To turn ground into a forest Cowel). When forest ground is turned from forest to other uses, it is said to become disafforested. Tomlins.

See title FOREST.

AFFRAY (from the Fr. effrayer, to affright). The fighting of two or more persons in some public place to the terror of others; and there must be a stroke given or offered, otherwise it is no affray, howsoever quarrelsome or threatening the words may be; and the fighting must also be in public; for if it be in private, it is no affray, but an assault. The punishment for an affray is fine or imprisonment, or both.

AGE. Signifies in the law those periods in the lives of persons of both sexes, which enable them to do certain acts which, before they had arrived at those periods, they were prohibited from doing. As for example: a male at the age of twelve years may take the oath of allegiance; at fourteen, which is his age of discretion, he may consent to marriage or choose his guardian; and at twenty-one he may alien his lands, goods, and chattels. A female at nine years of age is dowable; at twelve may consent to marriage; at fourteen is at years of discretion, and may choose a guardian; and at twenty-one may alien her lands, &c. But the full age of either male or female is twenty-one, until which time they are considered as infants (Co. Litt. 78; Cowel). The age of twenty-one years is complete on the first moment of the last day next before the twenty-first anniversary of the birth.

See title DAY.

AGENT: See title PRINCIPAL AND AGENT.

AGENT AND PATIENT. The same person who is the doer of a thing and the party to whom it is done; as when a woman endows herself of part of her husband's possessions, this being the act of herself to herself, makes her agent and patient. Co. Litt. 8, 138; Cowel.

AGGRAVATION (MATTER OF). In the language of pleadings signifies matter which only tends to increase the amount of damage, but which does not concern the right of action itself. Thus, in an action of trespass for chasing sheep, by which the sheep died, the dying of the sheep is matter of aggravation only, and need not be alleged by the plaintiff in his declaration. Steph. on Pl. 270, 4th ed.

AGIST. To take in and feed the cattle of strangers for reward; whence agistment is the taking in and feeding of such cattle.

AGNATI. Sometimes called Adgnati, were those relations of a person, not being of course sui hæredes, who connected themselves with him by a male relationship all through. They ranked next after the sui hæredes, and next before the cognati. Justinian, after numerous approximations, eventually entirely abolished all distinctions between agnati and cognati, so that agnati and cognati indifferently were the next of kin of a person, or, more properly speaking, his nearest relations. See title NEXT OF KIN.

AGREEMENT: See title CONTRACT.

AGRICULTURAL CONTRACTS: See title

LEASES.

AGRICULTURAL FIXTURES: See title

FIXTURES.

AIDER. This word is commonly used in two senses, 1st, by itself, when it signifies an abettor: See title AIDERS AND ABETTORS. 2ndly, in conjunction with the word verdict. AIDER BY VERDICT means curing by verdict. The phrase is used in reference to faults or omissions in pleading. Some faults, errors, or omissions in pleading are aided or cured by the adverse party taking no notice of them, or pleading over, as it is termed, instead of demurring. Others, however, are of so serious a character that even after the party has obtained the verdict of a jury in his favour, the Court, on being applied to, will stay or arrest the judgment, upon the ground that the error is of so important a nature as to vitiate the proceedings. Thus, where a plaintiff brought an action on the case as being entitled to the reversion of a certain yard or wall to which the plaintiff alleged in his declaration a certain injury to have been committed, but omitted to allege that the reversion was prejudiced, or to shew any grievance which, in its nature, would necessarily prejudice the reversion, the Court arrested the judgment after a verdict had been given in favour of the plaintiff'; for in this case the gist of the action was the injury to the reversion, and the plaintiff in his declaration had in fact not shewn any such injury to exist. When, however, it may be reasonably presumed, that is, presumed consistently with the general tenor of the pleadings, that the defect was supplied or taken into consideration by the jury previously to giving their verdict, in such cases the error, defect, or omission cannot be made a ground of objection, and is thence said to be cured by the verdict. The principle of aider by verdict is thus stated by Mr. Serjeant Williams: "Where there is any defect, imperfection, or omission in any pleadings, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is cured by the verdict." See Stennel v. Hogg, 1 Wms. Saund. (ed. 1871), p. 260; Rushton v. Aspinall, Doug. 679; Î Sm. L. C. 614.

AIDERS AND ABETTORS. These are persons who either actually or constructively are present at the commission of an offence, aiding and abetting or counselling and procuring the same to be done; they

AIDERS AND ABETTORS-continued. are principals in the second degree. The aider and abettor of high treason is a principal in the first degree, propter odium delicti (3 Inst. 138); the aider and abettor of a misdemeanour is also a principal in the first degree, but for a very different reason, namely, the maxim de minimis non curat lex. Consequently, aiders and abettors that are principals in the second degree are only found in the case of felonies, whether at common law or under any statute. The aider and abettor must participate in the felony, in the sense of acting in concert with those committing it; for although he be present, yet if he do not participate, but remains merely passive, he is not an abettor (1 Hale, 439). Moreover, the participation must be with a felonious intent, and not in ignorance of the nature of the act. 1 Hale, 446.

See also title ACCESSARY.

AIDS. Grants of money to the sovereign in support, i.e., aid, of his person and government. They were of two kinds, either (1) feudal, of which there were three sub-varieties, or (2) parliamentary, being tenths, fifteenths, &c.

See title TAXATION.

AIR: See title EASEMENTS.

ALDERMAN. This word was of very frequent occurrence among the AngloSaxons. According to Spelman, all princes and rulers of provinces, all earls and barons, were designated aldermen in a general sense; but the word was applied more particularly to certain chief officers, e.g., "the alderman of all England," whoever that officer was. In modern times, and for many ages past, the word is used to denote certain officers in municipal corporations who are a kind of assessors to the chief magistrate.

See title MUNICIPAL CORPORATIONS.

ALE AND BEER HOUSES. Every inn is not an ale-house, nor is every ale-house an inn; but if an inn uses common selling of ale, it is then also an alehouse; and if an ale-house lodges and entertains travellers, it is then also an inn. Numerous statutes have been passed from time to time for the licensing and regulation of ale-houses, the latest of which are the Licensing Act, 1872 (35 & 36 Vict. c. 94), and the Act of 1874, amending same.

ALIA ENORMIA—continued. guage of pleading, the allegation of alia enormia. 1 Ch. on Pl. 397; Sowden v. Goodrich; Peake, 46, per Kenyon.

ALIAS WRIT. This was a second writ issued after a former one had proved ineffectual. If the alias also failed, a third writ might have been sued out, which was called a pluries. These writs derived their respective names from the words occurring in their respective forms, viz., "Sicut alias præcipimus," "Sicut pluries præcipimus." Both forms of writ were abolished by the C. L. P. Act, 1852, s. 10, and the same statute in its 9th section has enacted that the plaintiff in any action may, at any time during six months from the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal containing the word "concurrent," and the date of issuing the concurrent writ. The concurrent writ or writs are to be in force only during the period during which the original writ is in force; but by renewing the latter from six months to six months, under s. 11, the concurrent writ or writs may, it seems, be also kept alive. Day's Pr. 36.

ALIBI (elsewhere). This word signifies that mode of defence in a criminal prosecution which the accused party resorts to in order to prove that he could not have committed the crime with which he is charged, because he was in a different place at the time of the alleged commission. As a true alibi is conclusive proof of innocence, guilty parties frequently set up false ones in answer to criminal charges; consequently the defence must be strictly proved. A false alibi is easily proved if the witnesses are cross-examined out of the hearing of each other.

ALIEN: See titles NATURALIZATION; ALLEGIANCE.

ALIEN PRIORIES.

These were cells of religious persons in England belonging to foreign monasteries. Most of them were dissolved by Act of Parliament in the reign of Henry IV., and some were converted into domestic priories.

ALIENATION. This is the power of the owner or tenant to dispose of his interest in real or personal property. With reference to personal property, the power appears to have always existed, subject only to certain difficulties in the mode of the alienation; but with reference to real property, the power was only slowly and gradually acquired. For,

I. As to Voluntary Alienation,Originally no estate of freehold was

ALIENATION-continued.

alienable by the tenant without the consent of the lord of whom he held; and in fact all estates in land were at first only life estates. (See title LIFE ESTATE.) By the time of Henry II., however, the power of alienation was permitted to the tenant over lands acquired by purchase, to the extent of defeating his heirs of their succession (1 Reeve's Hist. E. L. 223), or of part thereof (l. c. 105). Gifts in frankmarriage and in frankalmoign (see these titles) were the earliest of these partial modes of alienation. Subinfeudation was the other mode of alienation, which was most common (see that title); and as the heir of the subinfeudor became entitled to the rent or services in lieu of the land, that equivalent (being most probably a substantial equivalent) may have hastened the development of the ancestor's power over the expectant interests of his heir. For, at any rate, as early as the reign of Henry III. the power of the ancestor to destroy the expectation of his heirs, whether collateral or lineal, was become absolute.

The process of subinfeudation infringed also on the rights of the land, rendering it more precarious and also more difficult to levy the services to which he was entitled as landlord in chief; and accordingly it was attempted by statute (Magna Charta, ch. 32) to check the practice of subinfeudation. But the practice was not effectually checked by that enactment; and a new mode of grant also about that time came into use, being to a man and his heirs, or to whomsoever he might assign the land,-words which expressly conferred upon the tenant a power of alienation (Mad. Form. Angl. Prel. Diss. p. 5). In consequence of this last-mentioned mode of grant, and the power of alienation which it carried with it, the lord was still more prejudiced in his interests, and in particular in his reversion, or right to resume the lands upon the determination of the issue of his grantee. This change to the disadvantage of the land is commonly assigned to the feebleness and distractions of the reign of Henry III., and it is said to have also been fostered by the crusading spirit of the age.

At length, it was enacted by the statute Quia Emptores (Statute of Westminster the Third) c. 1, that every freeman might without his lord's consent sell his entire lands, or any portion thereof, the purchaser to hold the lands of the same chief lord that his vendor previously held. In this manner alienation by deed inter vivos became complete.

The power of alienation by will grew up later. Putting to one side certain

ALIENATION-continued.

limited customary powers of devise, lands could not originally be devised by will at all, excepting in an indirect and circuitous manner. The method resorted to was to convey the lands by deed inter viros to some third person to hold the same to such uses as the person conveying should mention in his will. This process was checked for the future by the statute 27 Hen. 8, c. 10 (Statute of Uses); but the process having been long in use, the power of testamentary disposition over lands could not be withheld altogether, and accordingly it was partially restored by the stat. 32 Hen. 8, c. 1, which enabled a tenant to dispose of the entirety of his socage tenures and two-third parts of his knight service tenures; and the Act 12 Car. 2, c. 24, having converted all knight service into socage tenures, the power of alienation by will was, by a side wind, made absolute.

II. As to Involuntary AlienationOriginally lands were not liable to be taken in payment of debts, but subsequently to the reign of Henry III., when estates of inheritance first became general, the liability has been gradually imposed by statute. For, (A.). During the life of the debtor.-By statute 13 Edw. 1, c. 18, one moiety of his legal fee simple lands became liable upon judgment debts by means of the writ of elegit, and by the Statute of Frauds (29 Car. 2, c. 3, s. 10), his equitable fee simple lands became also liable in like manner. Then by statute 1 & 2 Vict. c. 110, the entirety of the fee simple lands, whether legal or equitable, of the debtor were rendered liable upon judgment. (See title JUDGMENT DEBTS.) And (B.), After the decease of the debtor.By the Statute of Frauds (29 Car. 2, c. 3), s. 10, his equitable fee simple lands were made liable to be administered in Equity, and by 3 & 4 Will. 4, c. 104, all his lands (whether legal or equitable or of whatever tenure) were rendered liable in like

manner.

An estate tail, although of inheritance, is not liable for debts after the decease of the debtor; but it is liable during his life in case of his bankruptcy, and also upon a judgment duly executed against him, in either case to the same extent that he (the debtor) himself could, without the assistance of any other person, alienate the same. See Bankruptcy Act, 1869, s. 25, and 1 & 2 Vict. c. 110, ss. 13, 18.

ALIMONY (alimonia). That allowance which is made to a woman for her support out of her husband's estate when she is under the necessity of living apart from him. This provision is allowed the wife during the pendency of a suit between her

ALIMONY-continued.

and her husband, as well to provide the wife with the means to obtain justice as for her ordinary subsistence. When there has been a sentence of divorce, on the ground of the adultery and cruelty of the husband, the allowance for alimony becomes a permanent allowance, and is continued during the period of their separation. Upon an application for alimony, the Court requires on the part of the husband a statement both of his casual and of his certain income to be set forth. See Hakewill v. Hakewill, 30 L. J. (M. & P.) 254; Margetson v. Margetson, 36 L. J. (M. & P.) 80.

ALLEGIANCE. Otherwise called ligeance, is the obligation or tie existing between the sovereign and the subjects of any given state, and may be described as the lawful and faithful obedience and duty which the subjects of every state owe to the head of that state in return for the protection which the state affords to them. The learning on this subject will be found in Calvin's Case (Calvin v. Smith, 7 Rep. 1), 6 Jac. 1, and in the notes to that case in Broom's Const. Law. It is there said that allegiance is of four kinds, namely:(1.) Natural allegiance that which

arises by nature and birth;

(2.) Acquired allegiance-that arising through some circumstance or act other than birth, e.g., by denization or naturalization; (3.) Local allegiance-that arising from residence simply within the country, for however short a time; and (4.) Legal allegiance-that arising from oath taken usually at the tourn or leet; for by the Common Law the oath of allegiance might be tendered to every one upon attaining the age of twelve years. In Calvin's Case the point decided was, that Calvin, although born in Scotland after the union of the Crowns of Scotland and England in the person of James I. in 1603, was nevertheless a subject of the king of England, and as such capable of holding or of acquiring by descent lands in England, this decision involving the further more general principle that allegiance to a sovereign is personal and not territorial, and that the maxim, quando duo jura (imo duo regna) concurrunt in und persona, æquum est ac si essent in diversis was inapplicable. That maxim does, however, apply in determining to what laws a person is to be subject.

Until 1870 it was a rule of the English law that no one could lay aside an allegiance which he had once acquired (nemo potest exuere patriam suam) whence arose the difficulty of a "double allegiance" as

ALLEGIANCE-continued.

it was called, with conflicting duties; but by the Naturalization Act, 1870, this rule has been abandoned.

Under the stat. 11 Hen. 7, c. 1, allegiance to the king de facto, i.e., for the time being in actual possession of the Crown, whether or not he be de jure also, is an effectual protection to the subject against all forfeitures on the ground of disloyalty or treason.

According to the law of England, and also that of America, locality of birth determines the primary allegiance,-a principle which is still adhered to in the Naturalization Act, 1870; but according to the laws of most continental countries, the parentage of the parties determines their primary allegiance. However, by a series of statutes special provision has been made for the following classes of persons born abroad, all of whom are to be esteemed natural-born subjects, namely

(1.) Children inheritors of British par

ents, not merely for the purposes of inheritance (25 Edw. 3, st. 2), but for all other purposes also (Doe d. Duroure v. Jones, 4 T. R. 308; 7 Anne, c. 5; and 10 Anne, c. 5); (2.) Children of British fathers (4 Geo. 2, c. 21);

(3.) Grandchildren, being the children of such latter children (13 Geo. 3, c. 21); and

(4.) Children of British mothers (7 & 8 Vict. c. 66), but apparently only as to the estates in England (real or personal) of such mothers. Aliens becoming permanently subjects of another country may become so either by denization in virtue of the king's letters patent, or by naturalization in virtue of a particular Act of the Legislature, or in virtue of proceedings taken in pursuance of the general Act or Acts.

See titles NATURALIZATION; DENIZEN.

ALLOCATUR (it is allowed). After an attorney's bill has been examined or taxed by one of the masters, and the items which he disallows have been deducted, the remaining sum, certified by the master to be the proper amount to be allowed, is termed the allocatur. The allocatur is conclusive as to the amount of costs. 6 & 7 Vict. c. 73, s. 43; 23 & 24 Vict. c. 127.

ALLODIAL LAND. Land not held of any lord or superior, in which, therefore, the terant has an absolute property and not an estate merely. The lands of the Anglo-Saxons were allod, but under the oath taken at Salisbury in 1087, all the lands in England became feudal, i.e., held

ALLODIAL LAND-continued.

of some superior lord, and for an estate only. See title FEUDAL TENURES.

ALLOTMENT: See title COMMON, INCLO

SURE OF.

ALLOTMENT, LETTERS OF: See title COMPANY LAW.

ALLUVIO. This is defined to be a latent increase (latens incrementum), whereby something goes on adding itself, but it is impossible to say how much at any one moment is added. It is one of the natural modes of acquisition whereby property accrueth to one who is already the owner of the principal thing to which the accrual belongs.

See title ACCESSIO. ALMANACK.

The almanack annexed to the Book of Common Prayer, subject to the alterations made in the calendar by the 24 Geo. 2, c. 23, is taken judicial notice of by the Courts of Justice (Brough v. Perkins, 6 Mod. 81). And the Court will generally, to refresh its memory, refer to any almanack of received credit. Page v. Faucet, Cro. Eliz. 227.

ALNAGE DUTIES. These were duties payable on woollen cloths at so much per ell (Fr. aulne); and the officer whose business it was to examine into the assize of woollen cloths was called the almager. All such duties were abolished by 11 & 12 Will. 3, c. 20, s. 2.

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