Page images

or reversion, to be joined in the action and defend the suit. 3 Bl. Com. 300. T. L. 37. See 2 Saund. 45. C.

Alias. A second or further writ, after a former hath been sued out without effect. “ We command you as we have formerly commanded you,” sicut alias præcipimus. 3 Bl. Com. 283.

Alien (alienare, Lat. aliener, Fr.) is to transfer the property of any thing to another person. Alien (alienus, Lat.) is a person born in a strange country. Cow. Int.

Alibi, in another place." A species of evidence often resorted to in criminal prosecutions, but which should be heard with great caution. Fost. 368.

Allodial property, is that which is holden of no superior. 2 Bl. Com, 47. 60.

Alluvion, is the gaining of land from the sea ; either by dereliction, as where the sea recedes below the usual water mark, or by the washing up of sand and earth, so as in time to make terra firma. If this gain be by small and almost imperceptible degrees, it shall go to the owner of the land adjoining (2 Bl. Com. 262. Harg. Law Tracts, 28.) So, sea-weed cast on the shore shall go to the owner of the soil adjoining, and not to the first occupant (2 Johns. N. Y. Rep. 313.). So, it has been held, that whatever addition is made to the shores of rivers, &c. by alluvion, from natural causes, or from an union of natural and artificial causes, shall belong to the owners of the shores. 3 Mass. T.R. 352.

Ambidexter, is he who, when a suit is depending, takes money of the one side and of the other, either to labour the suit, or the like ; or if he be of the jury, to give his verdict. T. L. 43.

Amercement, or amerciament, is properly a pecuniary penalty assessed by the peers or equals of the party amerced (in misericordia) for an offence done. And the difference between amerciaments and fines is, that the former are arbitrarily imposed by the affeerors, the latter are certain and expressly grown out of some statute. (T. L. 44. Cow. Int.) Another difference is, that fines are always imposed and assessed by the court, but an amercement is assessed by the country. 8 Co. 39. a.

Amicus Curiæ, "a friend of the court." If a judge be doubtful or mistaken in a point of law, a stranger, may speak to the subject, and offer his sentiments as an amicus curie. So if there be errors apparent in the writ, count, avowry, inquest or indictment, or if the action be abated by death. Sec 2 Vin Ab 46. Ilardr. 86. Comb. 13. 33. 170.

Anno Domini, " in the year of our !" The computation of time, from the incarnation of our Saviour.

Apportionment, is the dividing of a rent into parts, accordingly as the land out of which it issues is divided among one or more proprietors; as if a person having a rent-service issuing out of land, purchase part, or a stranger recovers part, &c. the rent shall be apportioned. See T.L. 51, Gilb. Rents. 147. 151.

Array, is the panel of the jury returned by the sheriff. And when the whole jury is challenged, as on account of partiality or some default in the sheriff, it is called a challenge to the array. 3 Bl. Com. 359,

Assumpsit, according to its legal import, signifies a voluntary promise made either verbally, or in writing, without seal, upon a good consideration, whereby a man assumes and takes upon himself to perform or pay any thing to anotner (2 Comyn. on Cont. 549.) Technically an action of assumpsit, is merely a species of the action of trespass on the case (ibid.) And is either a general indebitatus assumpsit, or a special assumpsit (ibid.) An assumpsit is either express or implied, (3 BI. Com. 158, 159) and the action is confined to agreements by parol; the action of covenant or debt, being the proper remedy for the non-performance of agreements by specialty ; (Selw. N. P. 39 ) and if agreements are merely written, and not specialties, they are parol agreements. (ibid.)

Attornment, is the tenant's acknowledgment of a new landlord. (2 Bl. Com 288-9.)

Audita querela, is where a defendant, against whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of discharge, which has happened since the judgment : as if the plaintiff hath given him a general release, &c. And an audita querela is in the nature of a bill in equity. 3 Bl. Com. 405-6.

Averment, in pleading, is the positive assertion of some fact ; as, in special pleas, which always advance some new fact not mentioned in the declaration, they must be averred to be true in the common form ; u and this he is ready to verify," " et hoc est paratus verificare." 3131 Cim. 309.

Avowry, is where a person takes a distress for rent in his own right, or the right of his wife, he avows and sets forth in his plea the reason of it: if he justifies in another's right, as bailiff. &c. he makes cognisance ; that is, acknowledges the taking, but insists it was legal. 3 BI. Com, 150.

Auter Droil, in right of another.2 Bl. Com. 177.
Auterfoite acquit, a former acquittal." 4 Bl. Com. 335.
Auterfoits convict, “a former conviction.4 Bl. Com, 336.
Autrrfoits attaint, a former attainder.4 Bl. Com. 336.
Auter vie, the life of another." 2 Bl. Com. 120.

B. Bailiff (Ballivus, Lat. Bailif, Fr.) is an officer deputed by the sheriff, in England, to execute process, &c. (1 Bl. Com. 345.) From this word came the term bailiwick (balliva) which signifies the county or extent of the sheriff's jurisdiction ; and both words were introduced by the princes of the Norman line, in imitation of the French, whose territory was divided into bailiwicks, as that of England into counties. Cow. Int.

Banns (Bannus, Lat.) among the feudists, signified a proclamation, or public notice ; but in statutes, it is used for the publication of matrimonial contracts in the church before marriage. T. L. 86. Cow. Int. Bar, in a legal sense, is a plea or peremptory exception of a de. fendant, sufficient to destroy the plaintiff's action for ever. See 3 BI. Com, 306. T. L. 87.

Baron and Feme, in old law books, lised for “ Ilusband and Wife." Bona fide, " with good faith," honestly, without fraud, &c.

Bona Notabilia, are the goods which a decedent has out of the jurisdiction of the court in which he dies. Perk. sec. 489. Godolph. part 1. ch. 22. 2 Bl. Com, 509.

Bote, is an old word signifying help, succour, aid, or advantage, and is commonly joined with another word, whose signification it aug. ments; as, bridge-bote, fire-bote, hedge-bote, plow-bote, &c. T. L. 101. See 2 Bl. Com. 35.

Brief, Breve (Brevis, Lat. Brcif, Fr.) A writ or process issuing from a court; so called, because it briefly comprehends the cause of action (T. L. 101.) Briefs are also leliers patent granted for collecting charitable benevolence to poor sufferers by fire, or other casualties. (Bailey's Dict.) In this last sense the word is used in a law of Virginia of 1653. See 1 Stat, at Large, 381.


Calling the plaintiff. A ceremony used when the plaintiff suffers a non-suit. 3 BI. Com. 376.

Capias (from one of the initial words, while the proceedings were in Latin) is of two sorts, either a writ in a personal action, which issues before judgment, or an execution which issues afterwards. T. L. 109.

Capias ad audiendum judicium. If the defendant be found guilty of a misdemeanor (the trial of which may, and does usually, happen in his absence, after he has once appeared) a capias is awarded and issued, to bring him in to receive judgment ; and, if he absconds, he may be prosecuted even to outlawry. 4 BI. Com. 375.

Capias ad respondendum, is a writ commanding the sheriff to take the body of the defendant, if he may be found in his bailiwick or county, and him safely keep, so that he may have him in court on the day of the return, to answer the demand of the plaintiff (3 Bl. Com. 289.) In England, this is called a judicial writ, and is grounded on the return of an original, in the same cause (ibid.) But, in Virginia, the capias issues, as an original, in the first instance.

Capias ad satisfaciendum, is an execution against the body of the defendant, by which the sheriff is directed to take him, and have him in court, on a day therein named, to make the planuff satisfaction of his demand. 3 Bl. Com. 414.

Capias pro fine, is a process which issues against a person who is fined (generally for some offence against a statute) commanding the sheriff to take him, and commit him to prison until he pays the fine. 3 Bl. Com. 398.

Capias utlagatum, is a writ by which the body of the defendant is arrested, after outlawry, and committed till the outlawry be reversed. 3 BI, Com. 284,

[ocr errors]
[ocr errors]

Capriatur. If the judgment be against the defendant, in all cases of force, of falsehood in denying his own deed, or unjustly claiming property in replevin, or of contempt in disobeying the command of the commonwealth's process, or the express prohibition of any statute, it is also considered that the defendant capiutur, or тау

be taken," 3 BI. Com, 398.

Cafiita. Distribution or succession per capita, is where the estate goes to every person in an equal share, claiming in their own rights, and not in right of representation. 2 BI. Com. 517. 218.

Casus omissus, is wliere any particular thing is omitted out of, or not provided for, by a statute, &c.

Caveat (as used in ecclesiastical law) is a caution entered in the spi. ritual court, to stop probates, administrations, licences, dispensations, faculties, institutions, and such like, from being granted, without the knowledge of the party that enters it. 1 Burn's E. L. 264.

Cepi Corfus, is a return macle by the sheriff, on a writ, that he hath taken the body of the party. T.L.116.

Cestui que trust, is he for whose benefit the trust of an estate is committed to another; the person to whom it is committed, is called the trustee. Sand U. & T. 61, 62. 1 Cruise Dig. 4.92. Suz. L. Vend. 401.

Cestui que use, is he for whose use an estate is conveyed to another; the person to whom it is conveyed, is called the feoffee, Sand U. & T. 27. i Cruise Dig 429. 2 Bl. Com. 328.

Cestui que vie, is he on whose life any lands are held. 2 BI. Com. 123.

Charters (Charte, Lat. Chartres, Fr.) in law, signify writings, deeds, instruments, &c. cliefly relating to lands. T L. 131. Cow. Int.

Chimin (Chiminus, law Lat. Chemin, Fr.) A way or road; either a highway, or private way. T: L. 135. Cow. Int. Comy. Dig. Tit. 66 Chimin."

Chose (Res, Lat. Chose. Fr.) a thing. Thus, a chose en action, is a thing in action. T. L. 141. Cow, Int. 2 BI, Com. 397.

Clausum fregit. From the words of the writ in an action of tres. pass, for an unlawful entry on the land of another; the defendant being commanded to shew cause, quare clausum querentis fregit, wherefore he broke the plaintiff''s close.3 Bl. Com. 209.

Clerk (Clericus) has two significations ; the one is the title of a person belonging to the ministry of the church, as minister, clergyman, &c.; the other denotes those who by their functions use their pen in any court or otherwise. T. L. 143. Cow, Int.

Cocket (Cokettum, law. Lat.) in the old statutes, means a seal belonging to the custom house ; also, a scroll of parchment sealed and delivered by the officers of the custom-house ; to inerchants, as a warrant that their goods are customed T. L. 150. Cow. Int.

Codicil (Codicillus) is a supplement to a will; or an addition made by the testator, and annexed to, and to be taken as a part of, a testament: being for its explanation, or alteration, or to make some ada dition to, or else some subtraction from, the former dispositions of the testator. 3 Bl. Com. 500.

Cognizance, or Conusance (Cognitio, Cognisance, Fr.) is variously used; sometimes as the acknowledgment of a fine, or confession of a thing done ; sometimes the acknowledgment of making a distress; and sometimes the hearing of a matter judicially, as to take cognizance of a suit, &c. Cow. Ing.

Cognovit actionem, is the defendant's confessing the plaintiff's action, or a part thereof. See 2 Bl. Com. 304. 397.

Colloquium, a talking together. Thus, for 'words spoken, it must be laid in the declaration that the defendant speaking of and concerning the plaintiff, &c So, in actions on the case it is said, a certain discours: was had and moved, &c. See Carth. 90. Lill, Ent. 17, 18, 19, 22. Cowp. 672.

Color of action, is a term in pleading, which, from late adjudications, has become more a matter of curiosity thản real use. See 3 B1, Com. 309. Tidd. Prac. 599. I East. 215.

Color of office, is always taken in the worst part, and signifies an act wrongfully done by the countenance of an office. But, by reason of the office, and by virtue of the office is always taken in the best part. T. L. 156.

Congeable (Conge, Fr.) lawful, or lawfully done; as “entry congeable" Lil, sec. 410. T. L. 181.

Continuando. In trespass, it is called laying the action with a continuando, when the plaintiff alleges the trespass to have been committed by continuation from one given day to another. This is done to prevent the necessity of bringing separate actions for each day's separate offence. 3 Bl. Com. 212.

Coram non judice, is where a cause is brought and determined in a court, of which cause the judges have no jurisdiction.

Curia advisare vult, is the entry made when the court take time to deliberate upon any point of difficulty, before they give judgment in

a cause.


As by

Damage feasant, doing damage." As distraining cattle damage feasant.' 3 BI. Com. 6.

Damnum absque injuria, is a damage which a man may sustain withqut receiving an injury, for which there is any redress at law, the establisliment of a school in the same neighbourhood with another, &c. 3 Salk, 10.

De bene esse, signifies that the thing done may be good for the present; but not if the party has it in his power to proceed by the ordinary method. 3 Bl. Com. 383. Tidd. Prac. 222.

Debet et detinet (" he owes and detains) is the technical designation of the action of debt. If it be brought against the contracting party himself, or the heir, where the heir is expressly bound by the ancestor, it must be in the debet and detinet ; (l’Es. N. P. 216.) so, debt may be brought against an executor suggesting a devastavit, in the debet and detinet; (ibid, 217.) but if it be brought in the detinet only, it is good at least after verdict; but the judgment must be de bonis testa

« PreviousContinue »