« PreviousContinue »
from which their works were formed, than a want of judgment in the authors themselves. Their reputation is too well established to require the aid of panegyric, and the author hopes that no expression of his will be tortured into a meaning that he wishes to detract from it.
Convinced of the necessity of such a publication, at this time, and flattered by the assurances of many of the author's friends, that he was not wholly unqualified for the task, he was prevailed on to undertake the present work. How far he has succeeded must be submitted to the impartial judgment of his fellow citizeng.
The materials of which this book is composed, have long been collecting, and would have assumed the form of a volume before now, had not the prospects of a republication of our laws (for which the legislature made provision in the year 1789) made it necessary to wait the completion of that event. No time has been lost in hastening this publication, since the revised code of laws, has been so far advanced, as to enable the author to avail himself of the use of it.
With respect to the books of authority, he has made use of all such as are deemed sufficiently authentic, and has generally adopted their own words, with a proper reference to the several parts of the book, where the doctrine may be found. In some instances, indeed, he has taken the liberty of varying the expression so as to make it more agreeable to the ears of our republican citizens : Thus, instead of the words king and subject, he uses the expressions executive or commonwealth, and citizen. This he hopes will render the work more generally useful, without affecting the sense of the author.
He has, as far as possible, avoided the insertion of any Latin words in the body of the work: Conscious that to be useful, not to appear learned, has been his principal object; and sensible that this book will fall into the hands of many who are strangers to that language. Some technical words, indeed, or terms of art, are retained, because having been in comnion use they are generally known and have become a part of our language. But, for the use of those who have not been conversant in legal proceedings, he has prefixed " An Explanation" of such law terms as have occurred in the course of the present work.
It may be an objection with some that the great number of Indictments introduced into this work, has unnecessarily increased the size of the book, in exclusion of other matter; but the author could not otherwise discharge his obligations to the gentlemen of the bar, who have so generally promoted this publication ; nor will they be found wholly unuseful to the Magistrates themselves, as
by observing the mode of expression in the description of the offence in the indictment, they may draw their Mittimus less liable to exception than has usually been done.
The Appendix, so far as it relates to the duties of a Justice of the Peace arisng under the laws of the United States, has become a necessary appendage to the work from many of the objects of a magistrates jurisdiction under the state governments, having been transferred to the Congress of the United States. The other part of it containing forms of conveyancing speaks its own utility.
To conclude: The author flatters himself, that on perusing this work, it will be found that nothing material relating to the office of a Justice of the Peace, out of court, has been omitted. That many important points of legal knowledge respecting the practical part of his duty, in court, are conveyed....that private gentlemen, as well as the several officers of court, will find in it much useful information, and that in every instance, he has far exceeded his engagements with the public.
EXPLANATION OF LAW TERMS.
A. ABATEMENT. 1. In lands ; is when a man dies seized of an inheritance, and before the heir or devisee enters ; a stranger, who has no right, makes entry, and gets possession of the freehold (3 BI. Com. 167. T. L. 4. Cow. Int.) 2. Of a writ, count, or suit; as, in the two former cases, by misnaming the defendant, which is called a misnosmer, giving him a wrong addition, a variance between the writ and declaration, or between the writ and specialty, or record, or un. certainty in the writ or declaration (or sueing some only of joint partners, 3 Bl. Com, 302 Christ. note 3) or that the plaintiff is an ali enemy, that a woman plaintiff is married before, or pending the suit, that another action is depending for the same cause, that the writ is. dated before the action accrued, that the defendant ought to be sued in another court, &c. In these and like cases, the defendant may pray that the writ or plaint may cease for that time, and that the plaintiff may begin his suit again if he pleaseth. But if the defendant plead in bar, to annul the action for ever, he cannot afterwards plead in abatement (T. L. 2. 3.) or the death of the plaintiff or defendant, will at once abate the suit (3 Bl. Com. 302. T.L.2.) 3. Of nuisances; which is the removal, by the act of the party, of whatever unlawfully annoys, or does damage to another, as the erection of a wall so near a man's house, as to obstruct his ancient lights, or a gate across a public highway, &c. But it must be done without any riot (3 Bl. Com. 5.) 4. Of an indictment, as for a misnosmer, or a false addition to the pri.
4. Bl. Com. 334. NOTE....No plea in abatement, or of non est factum can be received, by the laws of Virginia, unless they be verified by oath or affirmation, (1 Rev. Code. 80); and, as to pleas in abatement, the same rule obtains in England. See 3 Bl. Com. 302. Christ. note (3). For more of abatements by plea and the death of the parties, see Indexes to first and second vols. of Rev, Code.
Abearance. Good abearance means good behaviour (4 Bl. Com. 256.) In this sense it is used in a law of Virginia, of March 1659-60. See 1 Stat, at Large, 535.
Abeyance, is where the fee-simple is in expectation, remembrance, or contemplation of law; (2 Bl. Com. 106) as, in a grant or devise to A. for life, and afterwards to the riglit heirs of J. S. who is living: the vesting of this remainder depending upon the death of J. S. in the life time of A. and leaving an heir, the free-hold is said to be in abeyance ; as the logicians say, in posse; and in common parlance, in nu. bibus, or in the clouds (1. L. 6. 2 Bl. Com. 107.) But Mr. Fearne very elaborately, and, as it is supposed, successfully combats this idea, and contends that the inheritance remains in the grantor or devisor and his heirs, until the contingency happens. See Fearne's Cont. Rom. 441. 5th edit. and 513. 4th edit. Also, 2 Bl. Com. 107. Christ, note (2) Ab initio, "from the beginning."
Abjuration, is used in three senses, in the English law. 1. The oath anciently taken by a person to forsake the realm for ever, who had committed a felony and taken sanctuary in a church, or other privileged place; the ceremonies attending which may be seen in Termes de la Ley. 8. 2. To secure the established religion ; by requiring that persons convicted of certain kinds of recusancy should abjure the realm (Harg. note (2) to Co. Lit. 92. b. 3. To secure the succession to the crown, by abjuring the pretender; which last oath must be taken by all persons in any office, trust or employment. 1 Bl. Com. 368. Harg. Co. Lit. ubi supra.
Absque hoc, “ without this,” are the technical words used in pleading a traverse. So, et non, “and also," are sufficient words of traverse. I Saund. 22. 1 Lev. 192. S. C. 1 Ld. Raym. 356.
Ac etiam, “and also."
Ad quod damnum, is a writ which issues to ascertain what injury will accrue to the commonwealth, or to individuals, by granting any privilege ; as a fair, or market, leave to establish or alter a road or highway, to erect a mill, &c. T. L, 28.
Affeer ment, is the assessing of a fine according to the degree of the offence, and the circumstances of the party, in cases where the law prescribes no particular penalty. This is performed by affeero 8, who are sworn to affcere; that is, to tax the general fine according to the particular circumstances. T. L.30 4 Bl. Com. 379.
Ademption, is particularly applied to the taking away of a legacy; as if the testator, in his life time, appropriated to his own use the subject which he had bequeathed to another. Ca. temp. Talb. 227.
Affidavit (the perfect tense of the verb affido) is a voluntary oath taken before some person who has authority to administer it. Affidavits differ from depositions in this: that they are generally voluntary ; do not require a commission to authorise the taking of them; and are generally used on motions; as to dissolve injunctions, and the like.
Agistment (from gister, Fr. i. c. stabulari, a word proper to deer) is the taking in of horses or other cattle to graze and depasture on a nean's lands. 2 Bl. Com. 452 T. L. 34. Cow. Int. Spielm. Gloss.
id prayer, where tenant for life, in dower, by curtesy, &c. is sued, they mly pray the aid of him that hath the inheritance in remainder