Bouvier's law dictionary and concise encyclopedia, 3rd rev John Bouvier,Francis Rawle. Bouvier's Law dictionary and concise encyclopedia John Bouvier. Bouvier's Law, Dictionary Anonim. But no action lies for commencing a civil action, though without sufficient cause.
The action lies against the prosecutor and even against a mere informer, when the proceedings are malicious. But grand jurors are not liable to an action for a malicious prosecution, for information given by them to their fellow jurors, on which a prosecution is founded. Hardin, Such action lies against a plaintiff in a civil action who ma- liciously sues out the writ and prosecutes it; 16 Pick.
See 6 Pick. There must be malice and want of probable cause. Browne, Appx. See Malice; Probable cause. The Proceedings under which the original prosecution or action was held, must have been regular, in the ordinary course of justice, and before a tribunal having power to ascertain the truth or falsity of the charge, and to punish the supposed offender, the now plaintiff.
When the proceedings are irregular, the prosecutor is a trespasser. See Regular and irregular process. The malicious prosecution or action must be ended, and the plain-tiff must show it was groundless, either by his acquittal or by obtaining a final judgment in his favor in a civil action. The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained. See Case; Regular and irregular process. See, generally, Bull. Actions on the case, H; Bouv.
Index, h. An offence malum in se is one which is naturally evil, as murder, theft, and the like; offences at common law are generally mala in sese. An offence malum prohibitum, on the contrary, is not naturally an evil, but becomes so in consequence of its being forbidden; as playing at games, which being innocent before, have become unlawful in consequence of being forbidden. Vide Bac. Assumpsit, A, note; 2 Rolle's Ab.
Ill -will. In some ancient records this word signifies malicious practices, or crimes and misdemeaners. This word is applied to all punishable faults committed in the exercise of an office, such as corruptions, exactions, extortions and larceny. A human being. This definition includes not only the adult male sex of the human species, but women and children; examples: "of offences against man, some are more immediately against the king, other's more immediately against the subject.
Offences against the life of man come under the general name of homicide, which in our law signifies the killing of a man by a man. In a more confined sense, man means a person of the male sex; and sometimes it signifies a male of the human species above the age of puberty.
Vide Rape. It was considered in the civil or Roman law, that although man and person are synonymous in grammar, they had a different acceptation in law; all persons were men, but all men, for example, slaves, were not persons, but things.
Vide Barr. A person, appointed or elected to manage the affairs of another, but the term is more usually applied to those officers of a corporation who are authorized to manage its affairs.
In banking corporations these officers are commonly called directors, and the power to conduct the affairs of the company, is vested in a board of directors.
In other private corporations, such as railroad companies, canal, coal companies, and the like, these officers are called managers. Being agents, when their authority is limited, they have no power to bind their principal beyond such authority. The persons appointed on the part of the house of representatives to prosecute impeachments before the senate, are called managers.
In a barbarous age, when impunity could be purchased with money, the compensation which was paid for homicide was called manbote. The act of transferring things called res mancipi. This is effected in the presence of not less than five witnesses, who must be Roman citizens and of the age of puberty, and also in the presence of another person of the same condition, who holds a pair of brazen scales, and hence is called Libripens.
The purchaser qui mancipio accipit taking hold of the thing, says I affirm that this slave homo is mine, ex jure quiritium, and he is purchased by me with this piece of money sas and brazen scales. He then strikes the scales with the piece of money and gives it to the seller as a symbol of the price quasi pretii loco. The purchaser or person to whom the mancipatio was made did not acquire the possession of the mancipatio; for the acquisition of possession was a separate act.
Both mancipatio and in jure cessio existed before the twelve tables. Mancipation no longer existed in the code of Justinian, who took away all distinction between res mancipi and nec mancipi. Smith's Dict. Mancipium; Coop. The name of a writ, the principal word of which when the proceedings were in Latin, was mandamus, we command.
It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice.
Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. This writ was introduced io prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.
Mandamus will not lie where the law has given another specific remedy. The 13th section of the act of congress of September, 24, , gives the supreme court power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States.
The issuing of a mandamus to courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in the supreme court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend a mandamus.
The latter clause of the above section, authorizing this writ to be issued by the supreme court, to persons holding office under the authority of the United States, is, therefore, not warranted by the constitution, and void. The circuit courts of the United States may also issue writs of mandamus, but their power in this particular, is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction.
Vide, generally, 3 Bl. One who is entrusted with and undertakes to perform a mandate. This word is used by the civilians in the same sense that we use mandatary. One who undertakes to perform a mandate. Jones' Bailm. Halifax calls him mandatee. Law, 70, 16, It is the duty of a mere mandatory, it is said, to take ordinary care of the property entrusted to him.
Vide Negligence. But it has been held that he is liable only for gross negligence. A judicial command or precept issued by a court or magi- trate, directing the proper officer to enforce a judgment, sentence or decree. Mandatum or commission, contracts. Sir William Jones defines a mandate to be a bailment of goods without reward, to be carried from place to place, or to have some act performed about them. This seems more properly an enumeration of the various sorts of mandates than a definition of the contract.
According to Mr. Justice Story, it is a bailment of personal property, in regard to which the bailee engages to do some act without reward. And Mr. Chancellor Kent defines it to be when one undertakes, without recompense, to do some act for the other in respect to the thing bailed.
See, for other definitions, Story on Bailm. Law, B. Law, 70,; Code of Louis. From the very term of the definition, three things are necessary to create a mandate. First, that there should exist something which should be the matter of the contract; secondly, that it should be done gratuitously; and thirdly, that the parties. There is no particular form or manner of entering into the contract of mandate, prescribed either by the common law, or by the civil law, in order to give it validity.
It may be verbal or in writing; it may be express or implied it may be in solemn form or in any other manner. Story on Bailm. The contract may be varied at the pleasure of the parties. It may be absolute or conditional, general or special, temporary or permanent. Wood's Civ. Law, ; 1 Domat, B. As to the degree of diligence which the mandatory is bound to exercise, see Mandatory; Negligence; Pothier, Mandat, h.
Code, tit. As to the duties and obligations of the mandator, see Story on Bailm. The contract of mandate may be dissolved in various ways: 1. It may be dissolved by the mandatary at any time before he has entered upon its execution; but in this case, as indeed in all others, where the contract is dissolved before the act is done which the parties intended, the property bailed is to be restored to the mandator.
It may be dissolved by the death of the mandatory; for, being founded in personal confidence, it is not presumed to pass to his representatives, unless there is some special stipulation to that effect. But this principally applies to cases where the mandate remains wholly unexecuted; for if it be in part executed, there may in some cases, arise a personal obligation on the part of the representatives to complete it.
Whenever the trust is of a nature which requires united, advice, confidence and skill of all, and is deemed a joint personal trust to all, the death of one joint mandatary dissolves the contract as to all. See Story on Bailm. Attorney, C 8; Bac. Authority, C; 2 Kent's Com. The death of the mandator, in like manner, puts an end to the contract. See 2 Mason's R. But although an unexecuted mandate ceases with the death of the mandator, yet, if it be executed in part at that time, it is binding to that extent, and his representatives must indemnify the mandatory.
The contract of mandate may be dissolved by a change in the state of the parties; as if either party becomes insane, or, being a woman, marries before the execution of the mandate.
Baron and Feme, E; 2 Kent's Com. It may be dissolved by a revocation of the authority, either by operation of law, or by the act of the mandator. It ceases by operation of law when the power of the mandator ceases over the subject-matter; as, if he be a guardian, it ceases, as to his ward's property, by the termination of the guardianship. Pothier, Contract de Mandat, c. So, if the mandator sells the property, it ceases upon the sale, if it be made known to the mandatory.
By the civil law the contract of mandate ceases by the revocation of the authority. At common law, the party giving an authority is generally entitled to revoke it. See 5 T. But, if it be given as a part of a security, as if a letter of attorney be given to collect a debt, as a security for money advanced, it is irrevocable by the party, although revoked by death. Mandates were the instructions which the emperor addressed to public functionaries, which were to serve as rules for their conduct.
These mandates resembled those of the pro-consuls, the mandata jurisdictio, and were ordinarily binding on the legates or lieutenants of the emperor of the imperial provinces, and, there they had the authority of the principal edicts.
The person employing another to perform a mandate. Law, ; Halif. Law, The return made by a sheriff, when he has committed the execution of a writ to a bailiff of a liberty, who has the right to execute the writ. The ceremony of doing homage by the vassal to his lord was de- nominated homagium or manhood, by the feudists.
The formula used was devenio vester homo, I become you Com. See Homage. MANIA , med. This subject will be considered by examining it, first, in a medical point of view; and, secondly, as to its legal consequences. Intellectual mania is that state of mind which is characterised by certain hallucinations, in which the patient is impressed with the reality of facts or events which have never occurred, and acts in accordance with such belief; or, having some notion not altogether unfounded, carries it to an ex- travagant and absurd length.
It may be considered as involving all or most of the operations of the understanding, when it is said to be general; or as be-ing confined to a particular idea, or train of ideas, when it is called partial. These will be separately examined. General intellectual mania is a disease which presents the most chaotic confusion into which the human mind, can be involved, and is attended by greater disturbance of the functions of the body than any other.
According to Pinel, Traite d'Alienation Mentale, p. Some insane persons display wild excesses of merriment, with immoderate bursts of laughter. Sometimes also, as if nature delighted in contrasts, gloom and taciturnity prevail, with involuntary showers of tears, or the anguish of deep sorrow, with all the external signs of acute mental suffering.
In certain cases a sudden reddening of the eyes and excessive loquacity give presage of a speedy explosion of violent madness and the urgent necessity of a strict confinement. One lunatic, after long intervals of calmness, spoke at first with volubility, uttered frequent shouts of laughter, and then shed a torrent of tears; experience had taught the necessity of shutting him up immediately, for his paroxysms were at such times of the greatest violence.
The derangement in this form of mania is not confined to the intellectual facul-ties, but not unfrequently extends to the moral powers of the mind. Partial intellectual mania is generally known by the name of monomania.
In its most usual and simplest form, the patient has conceived some single notion contrary to common sense and to common experience, generally dependent on errors of sensation; as, for example, when a person believes that he is made of glass, that animals or men have taken their abode in his stomach or bowels.
In these cases the understanding is frequently found to be sound on all subjects, except those connected with the hallucination. Sometimes, instead of being limited to a single point, this disease takes a wider range, and there is a class of cases, where it involves a train of morbid ideas. Moral mania or moral insanity, q.
These will be briefly and separately examined. It is certain that many individuals are living at large who are affected, in a degree at least, by general moral mania. They are generally of singular habits, wayward temper, and eccentric character; and circumstances are frequently attending them which induce a belief that they are not altogether sane.
Frequently there is a hereditary tendency to madness in the family; and, not seldom, the individual himself has at a previous period of life sustained an attack of a decided character: his temper has undergone a change, he has become an altered man, probably from the time of the occurrence of something which deeply affected him, or which deeply affected his bodily constitution. Sometimes these alterations are imperceptible, at others, they are sudden and immediate.
Individuals afflicted with this disease not unfrequently "perform most of the common duties of life with propriety, and some of them, indeed, with scrupulous exactness, who exhibit no strongly marked features of either temperament, no traits of superior or defective mental endowment, but yet take violent an- tipathies, harbor unjust suspicions, indulge strong propensities, affect singularity in dress, gait, and phraseology; are proud, conceited, and ostentatious; easily excited and with difficulty appeased; dead to sensi- bility, delicacy, and refinement; obstinately riveted to the most absurd opinions; prone to controversy, and yet incapable of reasoning; always the hero of their own tale, using hyperbolic, high flown language to express the most simple ideas, accompanied by unnatural gesticulation, inordinate ac- tion, and frequently by the most alarming expression of countenance.
On some occasions they suspect sinister intentions on the most trivial grounds; on others are a prey to fear and dread from the most ridiculous and imaginary sources; now embracing every opportunity of exbibiting romantic courage and feats and hardihood, then indulging themselves in all manner of excesses.
Persons of this description, to the casual observer, might appear actuated by a bad heart, but the experienced physician knows it is the head which is defective. They seem as if constantly affected by a greater or less degree of stimulation from intoxicating liquors, while the expression of countenance furnishes an infallible proof of mental disease. If subjected to moral re- straint, or a medical regimen, they yield with reluctance to the means proposed, and generally refuse and resist, on the ground that such means are unnecessary where no disease exists; and when, by the system adopted, they are so far recovered, as to be enabled to suppress the exhibition of their former peculiarities, and are again fit to be restored to society, the physician, and those friends who put them under the physician's care, are generally ever after objects of enmity, and frequently of revenge.
Partial moral mania consists in the derangement of one or a few of the affective faculties, the moral and intellectual constitution in other respects remaining in a sound state. With a mind apparently in full possession of his reason, the patient commits a crime, without any extraordinary temptation, and with every inducement to refrain from it, he appears to act without a motive, or in opposition to one, with the most perfect consciousness of the impropriety, of his conduct, and yet he pursues perseveringly his mad course.
This disease of the mind manifests itself in a variety of ways, among which may be mentioned the following: 1. An irresistible propensity to steal. An inordinate propensity to lying. A morbid activity of the sexual propensity. Vide Erotic Mania. A morbid propensity to commit arson. A morbid activity of the propensity to destroy. Ray, Med. In general, persons laboring under mania are not responsible nor bound for their acts like other persons, either in their contracts or for their crimes, and their wills or testaments are voidable.
Vide Insanity; Moral Insanity. Cons: R. Insanity arising from the use of spirituous liquors. Vide Delirium Tremens. A written instrument containing a true account of the cargo of a ship or commercial vessel. The Act of March 2, , s. And if any merchandise be imported, destined for different districts, or ports, the quantities and packages thereof shall be inserted in successive order in the manifest; aud all spirits, wines aud teas, constituting the whole or any part of the cargo of any vessel, shall be inserted in successive order, distinguishing the ports to which they may be destined, and the kinds, qualities and quantities thereof; and if merchandise be imported by citizens or inhabitants of the United States, in vessels other than of the United States, the manifests shall be of the form and shall contain the particulars aforesaid, except that the vessel shall be specially described as provided by a form in the act.
That which is clear and requires no proof; that which is noto- rious. See Notoriety. A solemn declaration, by the constituted authorities of a nation, which contains the reasons for its public acts towards another.
On the declaration of war, a manifesto is usually issued in which the nation declaring the war, states the reasons for so doing. Vattel, liv. See Anti-Manifesto. Persons of the male sex; but in a more general sense, it includes persons of both sexes; for example, the statute of 25 Hen. Females as well as males axe included under the term mankind.
See Gender. After traversing any allegation in pleading, it is usual to say "in manner and form as he has in his declaration in that behalf alleged," which is as much as to include in the traverse, not only the mere fact opposed to it, but that in the manner and form in which it is stated by the other party. These words, however, only put in issue the substantial statement of the manner of tho fact traversed, and do not extend to the time, place, or other circumstances attending it, if they were not originally material and necessary to be proved as laid.
See Modo et forma. An ancient word which signifies goods taken in the hands of an ap- prehended thief. MANOR, estates.
This word is derived from the French manoir, and signifies, a house, residence, or habitation. At present its meaning is more enlarged, and includes not only a dwelling-house, but also lands. Vide Co. Ultimately, plenary review, with oral arguments by attorneys, is granted in about cases per term. Formal written opinions are delivered It is compiled by a group of 1, leading Italian jurists, and is constantly updated.
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Published: Cheltenham ; Northhampton, Mass. Copyright: and Dictionary Dictionary in Law Libraries The follow definition of Dictionary is of use in law library research: A book which defines the terms of a language, profession, discipline, or specialized area of knowledge. The terms are arranged in alphabetical order. Usually, a language dictionary will give the [ Seeral editions. New York: Oxford University Press. Author: Bryan A. Profits a rendre; under this term are comprehended rents and services.
Ham N. 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; impotence, q.
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. When a man enters upon lands or into the house of another by authority of law, and afterwards abuses that authority, he becomes a trespasser ab initio. Trespass, B. And if an officer neglect to remove goods attached within a reasonable time and continue in possession, his entry becomes a trespass ab initio.
See also as to other cases, 2 Stra. 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 ; Bae. Trespass, B ; 2 T. See generally 1 Chit. An heir, ab intestat, is one on whom the law casts the inheritance or estate of a person who dies intestate. 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. In the French law, the act by which a debtor surrenders his property for the benefit of his creditors.
In insurances the act by which the insured relinquishes to the assurer all the property to the thing insured. 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.
Boulay Paty, Dr. Maritime, tit. 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 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. Chartes part. The relinquishment of a right; the giving up of something to which we are entitled.
See 1 H. 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.
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, 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.
The act of a hushand or wife, who leaves his or her consort wilfully, and with an intention of causing perpetual separation. Vide 1 Hoff. 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. 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, , s.
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. Abatement is by plea. There can be no demurrer in abatement. Willes' Rep. 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. As to pleas relating to the jurisdiction of the court, see article Jurisdiction, and Arch.
There is only one case in which the jurisdiction of the court may be inquired of under the general issue, and that is where no court of the country has jurisdiction of the cause, for in that case no action can be maintained by the law of the land.
Rea v. Hayden, 1 Dougl. Law Journal 64, Meredith v. Relating to the person of the plaintiff. The defendant may plead to the person of the plaintiff that there never was any such person in rerum natura.
Brief, 25 ; 19 Johns. Abatement, E And if one of several plaintiffs be a fictitious person, it abates the writ. Abatement, E 16; 1 Chit. But a nominal plaintiff in ejectment may sustain an action. As to the rule in Pennsylvania, see 5 Watts, The defendant.
Abatement, E 6; 1 Chit. 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. Abatement, G; 4 Mass. See 10 S. That the plaintiff unless he sue with others as executor is an infant and has declared by attorney.
Death of plaintiff before the purchase of the original writ, may be pleaded in abatement. Death of plaintiff pending the writ might have been pleaded since the last continuance, Com. Abatement, H 32; 4 Hen. But in some states, as in Pennsylvania, the, death of the plaintiff does not abate the writ; in such case the executor or administrator is substituted. The rule of the common law is, that whenever the death of any party happens, pending the writ, and yet the plea is in the same condition, as if such party were living, then such death makes no alteration; and on this rule all the diversities turn.
Pleas Alienage, or that the plaintiff is an alien enemy. Abatement, E 4; Id. Alien, C 5; 1 S. Misnomer of plaintiff may also be pleaded in abatement. If one of several joint tenants, sue in action ex contractu, Co. Joint-tenants, K; 1 B.
Abatement, E 9, E 12, E 13, E If persons join as plaintiffs in an action who should not, the defendant may plead the misjoinder in abatement. When the plaintiff is an alleged corporation, and it is intended to contest its existence, the defendant must plead in abatement.
Wright, 12; 3 Pick. To a suit brought in the name of the "judges of the county court," after such court has been abolished, the defendant may plead in abatement that there are no such judges. Phillips; 2 Bay, Relating to the person of the defendant. 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.
If the defendant be a married woman, she may in general plead her coverture in abateraent, 8 T. Abatement, F 2. The exceptions to this rule arise when the coverture is suspended. Abatement, F 2, 3; Co. The death of the defendant abates the writ at common law, and in some cases it does still abate the action, see Com.
Abatement, H 34; 1 Hayw. Vide Actio Personalis moritur cum persona. The misnomer of the defendant may be pleaded in abatement, but one defendant cannot plead the misnomer of another. Abatement, F 18 ; Lutw. See form of a plea in abatement for a misnomer of the defendant in 3 Saund. When one joint tenant, Com. Abatement, F 5, or one tenant in common, in cases, where they ought to be joined, Ibid. And in actions upon contracts if the plaintiff do not sue all the contractors, the defendant may plead the non-joinder in abatement.
F 8, a; 1 Wash. When hushand and wife should be sued jointly, and one is sued alone, the non-joinder may be pleaded in abatement. 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.
Abatement, F 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. Abatement, F 12; or one of them may take the entire tenancy on himself, and pray judgment of the writ. But mis-joinder of defendant in a personal action is not the subject of a plea in abatement. In cases where the defendant may plead non-tenure, see Arch. Where he may plead a disclaimer, see Arch. A defendant may plead his privilege of not being sued, in abatement.
Abridgment C ; see this Dict. Plea in, abatement of the writ. Pleas in abatement of the writ or a bill are so termed rather from their effect, than from their being strictly such pleas, for as oyer of the writ can no longer be craved, no objection can be taken to matter which is merely contained in the writ, 3 B.
Pleas in abatement. Abatement, H. Those of the first description were formerly either matter apparent on the face of the ;Writ, Com. Abatement, H l, or matters dehors. Formerly very trifling errors were pleadable in abatement, 1 Lutw.
But as oyer of the writ can no longer be had, an omission in the defendant's declaration of the defendant's addition, which is not necessary to be stated in a declaration, can in no case be pleaded in abatement. Pleas in abatement to the form of the writ, are therefore now principally for matters dehors, Com. Abatement,H 17; Glib. Pleas in abatement to the action of the writ, and that the action is misconceived, as that it is in case where it ought to have, been in trespass, Com.
Abatement, G 5 ; or that it was prematurely brought, Ibid. Abatement, G 6, and tit. Action E ; but as these matters are grounds of demurrer or nonsuit, it is now very unusual to plead them in abatement. It may also be pleaded that there ii another action pending. See tit. Autre action pendant. Abatement, M; 1 Chitty's Pi. Qualities of pleas in abatement. A writ is divisible, and may be abated in part, and remain good for the residue; and the defendant may plead in abatement to part, and demur or plead in bar to the residue of the declaration.
The general rule is, that whatever proves the writ false at the time of suing it out, shall abate the writ entirely Gilb. As these pleas delay the trial of the merits of the action, the greatest accuracy and precision are required in framing them; they should be certain to every intent, and be pleaded without any repugnancy. This is the true criterion to distinguish a plea in abatement from a plea in bar. Abatement, J 1, 2; 1 Day, 28; 3 Mass.
Great accuracy is also necessary in the form of the plea as to the commencement and conclusion, which is said to make the plea. Form of pleas in abatement. Abatement, 1 19; 2 Saund. Of the affidavit of truth. All pleas in abatement must be sworn to be true, 4 Ann. The affidavit may be made by the defendant or a third person, Barnes, , and must be positive as to the truth of every fact contained in the plea, and should leave nothing to be collected by inference; Sayer's Rep.
See further on the subject of abatement of actions, Vin. Abatement; Bac. Abatement; Nelson's Abr. Abatement; American Dig. Abatement; Story's Pl. Pleading, F. Index, h. Death; Parties to actions; Plaintiff; Puis darrein continuance. The entry of a stranger after the death of the ancestor, and before the heir or devisee takes possession, by which the rightful possession of the heir or devisee is defeated. By the ancient laws of Normandy, this term was used to signify the act of one who, having an apparent right of possession to an estate, took possession of it immediately after the death of the actual possessor, before the heir entered.
Howard, Anciennes Lois des Frangais, tome 1, p. 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, proportionably.
See 2 Bro. Legacies, H; Rop. Who may abate a nuisance; 2, the manner of abating it. Who may abate a nuisance. Any person may abate a public nuisance. 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 private property of the person who cuts them.
The manner of abating it. A public nuisance may be abated without notice, 2 Salk. 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 notice. 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 unnecessary injury must be committed. As to private nuisances, it has been held, that if a 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 enter on the soil of the other, and abate the nuisance and justify the trespass; and this right of abatement is not confined merely to a house, mill, or land.
Pleader, 3 M. Nuisance; 12 Mass. The abator of a private nuisance cannot remove the materials further than is necessary, nor convert them to his own use. And so much only of the thing as causes the nuisance should be removed; as if a house be built too high, so much. 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.
See as to cutting down trees, Roll. Trees, E, and Nuisance W. ABATOR is, 1st, he who abates or prostrates a nuisance; 2, he who having no right of entry, gets possession of the freehold to the prejudiae of an heir or devisee, after the time when the ancestor died, and before the heir or devisee enters.
See article Abatement. As to the consequences of an abator dying in possession, See Adams' Eject. Any thing diminished; as, moneta abatuda, which is money clipped or diminished in value. Cowell, h. Abavia, is the great grandmother, or fourth female ascendant. ABBEY , abbatia, is a society of religious persons, having an abbot or abbess to preside over them.
Formerly some of the most considerable abbots and priors in England had seats and votes in the house of lords. The prior of St. John's of Jerusalem, was styied the first baron of England, in respect to the lay barons, but he was the last of the spiritual barons. See 4 Ca. The following list, though necessarily incomplete, may be useful to some readers.
A, a, the first letter of the alphabet, is sometimes used in the ancient law books to denote that the paging is the first of that number in the book. As an abbreviation, A is used for anonymous. Officers whose duty it is to assist in drawing up the Pope's briefs, and reducing petitions into proper form, to be converted into Papal Bulls. Vide Bulls. A simple renunciation of an office, generally understood of a supreme office.
James II. When James III of England left the kingdom, the Commons voted that he had abdicated the government, and that thereby the throne had become vacant. The House of Lords preferred the word deserted, but the Commons thought it not comprehensive enough, for then, the king might have the liberty of returning.
When inferior magistrates decline or surrender their offices, they are said to make a resignation. The carrying away of any person by force or fraud. This is a misdemeanor punishable by indictment.
The civil remedies are recaption, q. Com 4; by writ of habeas corpus; and an action of trespass, Fitz. Com , n. Behaviour; as, a recognizance to be of good abearance, signifies to be of good behaviour. An apparent, plain, or downright murder. It was used to distinguish a wilful murder, from a chance-medley, or manslaughter. Spelman; Cowell; Blount.
To encourage or set another on to commit a crime. This word is always taken in a bad sense. To abet another to commit a murder, is to command, procure, or counsel him to commit it. Old Nat. Brev 21; Col Litt. One who encourages or incites, persuades or sets another on to commit a crime. Such a person is either a principal or, an accessory to the crime. When present, aiding, where a felony is committed, he is guilty as principal in the second degree ; when absent, "he is merelyan accessory.
Russell, 21; 1 Leach 66; Foster When there is no person in esse in whom the freehold is vested, it is said to be in abeyance, that is, in expectation, remembrance and contemplation. The law requires, however, that the freehold should never, if possible, be in abeyance. Where there is a tenant of the freehold, the remainder or reversion in fee may exist for a time without any particular owner, in which case it is said to be in abeyance.
Thus, if sn estate be limited to A for life, remainder to the right heirs of B, the fee simple is in abeyance during the life of B, because it is a maxim of law, that nemo est hoeres viventis. Another example may be given in the case of a corporation. When a charter is given, and the charter grants franchises or property to a corporation which is to be brought into existence by some future acts of the corporators, such franchises or property are in abeyance until such acts shall be done, and when the corporation is thereby brought into life, the franchises instantaneously attach.
See, generally, 2 Mass. English law. A defendant who pleads a frivolous plea, or a plea merely for the purpose of delaying the suit; or who for the same purpose, shall file a similar demurrer, may be compelled by rule in term time, or by a Judge's order in vacation, either to abide by that plea, or by that demurrer, or to plead peremptorily on the morrow; or if near the end of the term, and in order to afford time for notice of trial, the motion may be made in court for rule to abide or plead instanter; that is, within twenty-four hours after rule served, Imp.
If the defendant when ruled, do not abide, he can only plead the general issue; 1 T. See 1 Chit. Vide Taking. Stealers of cattle, who were punished with more severity than other thieves. Rawle on the Const.
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