III. If issue be taken upon a plea to the writ, judgment against the defendant is peremptory; but if there be a demurrer, the judgment is then, only that the plaintiff answer over. Yelv. 12: Allen, 66: 2 Will. Saund. 2.

Whatever matters are pleaded in abatement of an appeal or indictment of felony, and found against the defendant, yet he may afterwards plead over to the felony. 2 Hawk. P. Č. 277. But in criminal cases, not capital, on demurrer in abatement adjudged against the party, the court will give final judgment, and not respondeas ouster. Ibid. 471: see 3 Barn. & C. 502: 5 Dow. & Ry. 422.

In appeals of mayhem and all civil actions (except assizes of mort d'ancestor, novel disseisin, nuisance, and juris utrum), if a plea in abatement, triable by the county, be found against the defendant, he shall not be suffered afterwards to plead any new matter, but final judgment shall be given against him. 2 Hawk. P. C. 277; and see the authorities there cited. Upon a judgment in waste for the damages recovered, the defendant demurs partly in abatement, and partly in bar, the court shall give judgment in chief. Show. 255. In debt, if the defendant pleads in abatement to the writ, to which the plaintiff imparls, and at the day given the defendant makes default, judgment is final upon the default, though the plea was only in abatement. 10 E. 4. 7: Mod. Cases, 5. The judgment for the defendant, on a plea in abatement, is quod breve, or narratio cassetur. See Maule & S. 453. If issue be joined on a plea in abatement, and it be found for the plaintiff, it shall be peremptory against the defendant, and the judgment shall be quod recuperet, because the defendant choosing to put the whole weight of his cause upon this issue, when he might have a plea in chief, is an admittance that he had no other defence. Yelv. 112: 2 Show. 42: Str. 532. And in this case the jury who try that issue shall assess the damages. See 2 Will. Saund. 5. (3.)

If there be two defendants, and they plead two several pleas in abatement, and there be issue to one and demurrer to the other, if the issue be found for the defendant the court will not proceed on the demurrer; and sic vice versá; for either way the writ is abated, and the other plea becomes useless. Hob. 250: Bac. Ab. tit. Abatement.

It seems that where the defendant's plea goes to bar the action, if the plaintiff demurs to it, and the demurrer is determined in favour of the plea, judgment of nil capiat shall be entered, notwithstanding there may be also one or more issues in fact; because, upon the whole, it appears that the plaintiff had no cause of action. So where several pleas are pleaded since the stat. of 4 & 5 Ann. c. 16. all of them going to destroy the action, and one or more issues are joined on some of the pleas, and there are one or more demurrers to the rest, if the court determine the demurrers in favour of the defendant be

fore the issues are tried, they shall not be tried; and if after the trial, it will make no difference, for in each case judgment of nil capiat shall be given against the plaintiff. Thus, where in an action for criminal conversation the defendant pleaded, 1, not guilty, and 2, not guilty, within six years, and there was an issue on the first plea, and a demurrer to the other, although the issue was tried before the demurrer was disposed of, and a verdict was given for the plaintiff, yet the court having afterwards determined the demurrer in favour of the defendant, judgment of nil capiat was given. Burr. 749. Cooke v. Sayer. See 1 William's Saunders, 109 (1.): 2 Will. Saund. 300. (3.)

To a plea in abatement of misnomer of plaintiff, replication that plaintiff was known as well by the one name as the other, upon demurrer overruled, there will be judgment of respondeas ouster, and not quod recuperet. 1 East's Rep. 542.

In abatement the court will give no other than the proper judgment prayed for by the party. 10 East's Rep. 83; and see 2 Bos. & Pull. 422: 1 Chit. on Plead. 494. (5th ed.) ABATOR. See Abate.

ABATUDA. Any thing diminished.-Moneta abatuda, is money clipped or diminished in value. Cowel. Du Fresne. ABBACY, abbatia.] The government of a religious house, and the revenues thereof, subject to an abbot, as bishoprick from bishop. ABBANDUNUM, ABBENDOMA, ABBENDONIA. Abington in Berkshire, formerly Sewsham.

ABBAS, æstuarium.] Humber in Yorkshire.

ABBAT, or Abbot; abbas, Lat.-abbé, Fr.-abbud, Sax. by some derived from the Syriac abba, pater.] A spiritual lord or governor, having the rule of a religious house. Of these abbots here in England some were elective, some presentative; and some were mitred, and some were not; such as were mitred had episcopal authority within their limits, being exempted from the jurisdiction of the diocesan; but the other sort of abbots were subject to the diocesan in all spiritual government. The mitred abbots were lords of parliament, and called abbots sovereign, and abbots general, to distinguish them from the other abbots. And as there were abbols, so there were also lords priors, who had exempt jurisdiction, and were likewise lords of parliament. Some reckon twenty-six of these lords abbots and priors that sat in parliament. Sir Edw. Coke says, there were twenty-seven parliamentary abbots and two priors. 1 Inst. 97. In the parliament 20 R. 2. there were but twenty-five; but anno 4 E. 3. in the summons to the parliament at Winton, more are named. And in Monasticon Anglicanum there is also mention of more, the names of which were as follow: abbots of St. Austin, Canterbury, Ramsey, Peterborough, Croyland, Evesham, St. Bennet de Hielmo, Thornby, Colchester, Leicester, Winchcomb, Westminster, Cirencester, St. Alban's, St. Mary York, Shrewsbury, Selby, St. Peter's Gloucester, Malmsbury, Waltham, Thorney, St. Edmund's Beaulieu, Abingdon, Hide, Reading, Glastonbury, and Osney.-And priors of Spalding, St. John's of Jerusalem, and Lewes.-To which were afterwards added the abbots of St. Austin's Bristol, and of Bardeny, and the priory de Sempringham. See also Spelman's Glossary. These abbeys and priories were founded by our ancient kings and great men, from the year 602 to 1133. An abbot, with the monks of the same house, were called the convent, and made a corporation. Terms de Ley, 4. By stat. 27 H. 8. c. 28. all abbeys, monasteries, priories, &c. not above the value of 2001. per ann. were given to the king, who sold the lands at low rates to the gentry. Anno 29 H. 8. the rest of the abbots, &c. made voluntary surrenders of their houses to obtain favour of the king; and anno 31 H. 8. a bill was brought into the house to confirm those surrenders; which passing, completed the dissolution, except the hospitals and colleges, which were not dissolved, the first till the 33d, and the last till the 37th of H. 8; when commissioners were appointed to enter and seize the said lands, &c.

ABBREVIATE of ADJUDICATION. This term (in the Scotch law) is applied to an abstract of the adjudication.Adjudication is that diligence of the law by which the heritage of a debtor is adjudged to belong to his creditor in payment of debt; and the abbreviate of the adjudication is an abridgment of the record, containing the names of the creditor, of the debtor, and of the lands, with the amount of the debt; it is signed by the judge who pronounced the decree in the process of adjudication, and must be recorded in the register of abbreviates. Scotch Dict.

ABBROCHMENT, abbrocamentum.] The forestalling of a market or fair. MS. Antiq.

ABBUTTALS. See Abuttals.
ABBY. See Abbot.

To ABDICATE, abdicare.] thing. Terms de Ley, 5.

To renounce or refuse any

ABDICATION, abdicatio.] In general, is where a magistrate, or person in office, renounces and gives up the same before the term of service is expired. And this word is frequently confounded with resignation, but differs from it, in that abdication is done purely and simply; whereas resignation is in favour of some other person. Chamb. Dict. 'Tis said to be a renunciation, quitting and relinquishing, so as to have nothing farther to do with a thing; or the doing of such actions as are inconsistent with the holding of it. On king James II's leaving the kingdom, and abdicating the government, the Lords would have had the word desertion made use of; but the Commons thought it was not comprehensive enough, for that the king might then have liberty of returning. The Scots called it a forefalture (forfeiture) of the crown, from the verb forisfacio.-This word was fully canvassed in the Parliamentary Debates at that time.

ABDITORIUM. An abditory or hiding place, to hide and preserve goods, plate, or money; and is used for a chest in which reliques are kept, as mentioned in the inventory of the church of York. Mon. Ang. p. 173.

ABDUCTION of WOMEN. The forcible or fraudulent abduction of women or girls, on account of their fortune, is punished in England by 9 G. 4. 31. and in Ireland by 10 G. 4. c. 34. § 22-24. By these acts, where any woman shall have any interest, legal or equitable, present or future, in any estate, real or personal; or being heiress presumptive, or next of kin to any one having such interest, any person who, from motives of lucre, shall take or detain her against her will, for the purpose of her being married (or defiled), and all counsellors, aiders, and abettors, in such offences, are declared guilty of felony, and punishable by transportation for life, or not less than seven years, or imprisonment, with or without hard labour, not exceeding four years. The taking of any unmarried girl, under sixteen, out of the possession of a parent or guardian is declared a misdemeanor, punishable by fine and imprisonment. See titles Heiress, Women, and the remarkable case of the King v. Edward Gibbon Wakefield, published by Murray.

ABEREMURDER, aberemurdum.] Plain or downright murder; as distinguished from the less heinous crimes of manslaughter or chance-medley. It is derived from the Saxon abere, apparent, notorious, and morth, murder; and was declared a capital offence, without fine or commutation, by the laws of Canute, cap. 93. and of Hen. 1. cap. 13. Spelm.

To ABET, abettare, from the Saxon a (ad vel usque) and bedan or beteren, to stir up or incite. In our law signifies to encourage or set on; the substantive abetment is used for an encouraging or instigation. Staundf. Pl. Cr. 105. An abettor (abettator) is an instigator or setter on; one that promotes Old Nat. Br. 21. or procures a crime.

AIDERS and ABETTORS are named in numerous statutes creating and punishing offences, and in the stat. 7 and 8 G. 4. c. 29. §61; aiders and abettors in misdemeanor are punish

commission of, a felony makes the party (if he is not the actual perpetrator of the offence) a principal in the second degree as in rape, if one ravish a woman, and others assist by holding the woman or otherwise, the actual ravisher is called the principal in the first degree; if an aider and abettor be absent at the time of the commission of the offence he then becomes an accessory. See title Accessory.

ABEYANCE, or abbayance, [from the Fr. beer, or bayer, to expect] is what is in expectation, remembrance, and intendment of law. By a principle of law, in every land there is a fee-simple in somebody, or it is in abeyance; that is, though for the present it be in no man, yet it is in expectancy, belonging to him that is next to enjoy the land. 1 Inst. 342. The word abeyance hath been compared to what the civilians call hæreditatem jacentem; for as the civilians say lands and goods jacent, so the common lawyers say that things in like estate are in abeyance; as the logicians term it in posse, or in understanding; and as we say in nubibus, that is, in consideration of law. See Plowd. Rep. 547.

If a man be a patron of a church, and presents one thereto, the fee of the lands and tenements pertaining to the rectory is in the parson; but if the parson die, and the church become void, then the fee is in abeyance, until there be a new parson presented, admitted, and inducted; for the patron hath not the fee, but only the right to present, the fee being in the incumbent that is presented. Terms de Ley, 6.

If a man makes a lease for life, the remainder to the right heirs of J. S., the fee-simple is in abeyance until J. S. dies. 1 Inst. 342. If lands be leased to A. B. for life, the remainder to another person for years, the remainder for years is in abeyance, until the death of the lessee for life; and then it shall vest in him in remainder as a purchaser, and as a chattel shall go to his executors. 3 Leon. 23. Where tenant for term of another's life dieth, the freehold of the land is in abeyance till the entry of the occupant. 1 Inst. 342. b.

Fee-simple in abeyance cannot be charged until it comes in esse, so as to be certainly charged or aliened; though by possibility it may fall every hour. 1 Inst. 378.

The necessity there was in the old law, that there should always be some person to do the feudal duties, to fill the possession, and to answer the actions which might be brought for the fief, introduced the maxim that the freehold could never be in abeyance. See 2 Wils. 165. But it was admitted there were some cases in which the inheritance, when separated from the freehold, might be so. But this abeyance or suspension of the inheritance could not but be considered with a very jealous eye, and it was agreed that it should be discountenanced and discouraged as much as possible, and allowed upon none but the most urgent occasions. The chief reasons of this may be found in Blackstone's argument in the case of Perryn and Blake; and Mr. Hargrave's observations on the rule in Shelly's case. To these reasons the modern law has added her marked and unremitted odium of every restraint upon alienation; it being clear that no restraint could be more effectual than the admission of a suspension of the inheritance. The same principles have in some degree given rise to the well known rule of law, that a preceding estate of freehold is indispensably necessary for the support of a contingent remainder; and they influence in some degree the doctrines respecting the destruction of contingent remainders. See 1 Inst. 216. a. and 342. b. and the notes there.

"In a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est hæres viventis; it remains, therefore, in waiting or abeyance during the life of Richard. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life, and the inheritance remains in abeyance. And not only the fee but the freehold also may be in abeyance; as, when a parson dies, the freehold of his

glebe is in abeyance until a successor is named, and then it vests in the successor." 2 Comm. c. 7. p. 107.

This opinion, which may now be considered as exploded, was founded on a notion, generally speaking true enough, that the operation of livery was immediate and entire, and therefore that the livery to John, in the case put, carried the remainder over with it at the same time out of the grantor; and if the remainder passed from the grantor, as it clearly passed for the present to nobody, this doctrine of abeyance was a necessary consequence. This conclusion, though couched in imposing terms, as abeyance in gremio legis, and in nubibus, was by no means satisfactory; these terms, of what might be called legal geography, did not explain to any man's mind where the estate was in the interval. At the same time certain opinions were held, seemingly inconsistent with it: for instance, it was laid down, that if John died in the lifetime of Richard, as the heirs of Richard could never take, the grantor should have the land again, the same grantor in whom, by the hypothesis, no estate remained. Mr. Ferne met the doctrine in the only way in which it could be met, by denying the premises, and reasoned, that if the remainder passed to nobody, it passed from nobody, but that there was a "suspension of the complete or absolute operation of such feoffment or conveyance, in regard to the inheritance, till the intended channel for the reception of such inheritance came into existence." This principle will be found to explain all the cases in the text: whatever portion of the inheritance cannot take effect in præsenti remains in the grantor or his heirs; and if the inheritance can never pass, as in the case of the church, it always remains there. See Fearne on Con. Rem. 359. 364. (6th ed.)

With respect to the case of a freehold in abeyance, that seems, upon other grounds, as objectionable as the former; feudal principles always requiring an immediate tenant of the freehold for the performance of the services, and to answer to the action of a stranger. The case put of the glebe during a vacancy of the church is not perhaps easy of solution; that which Mr. Christian proposes in a note on this passage is not entirely satisfactory. He would place the freehold in the future successor, who is to be brought into view and notice by institution and induction. But if it is in him, it is not there usefully for either of the purposes for which alone the law requires it to be in any one, the services are not performed, and there is no one to answer the præcipe of a stranger. The same objection indeed applies if we place it in the heir of the founder or the ordinary. Perhaps it may be thought not unreasonable to admit this to be an exception to the general rule; an estate altogether is the creature of legal reasoning, to be moulded, raised, or extinguished accordingly; and it may be fairly argued that as the freehold can exist in no one to any useful legal purpose, during the vacancy of the church, it may not exist at all. This is a conjecture hazarded with great diffidence, but which may be allowed in a question of more curiosity than practical importance. Coleridge's Note, 2 Black.

Comm. 107. n. 2.

As to the abeyance of titles of honour, and their being revived by the royal nomination, seel Inst. 165. a; where Lord Coke says, that if an earl of Chester die, leaving more daughters than one, the eldest shall not of right be a countess, but the king may, for the uncertainty, confer the dignity on which daughter he pleases. And this doctrine, says Mr. Hargrave, in his note, is undoubtedly law, though our books furnish little matter on the subject; and there are many instances of an exertion of this prerogative. One of the most remarkable took place in the person of the late Mr. Norborn Berkley, who, in 1764, was called to the House of Peers in right of the old barony of Botetourt, after an abeyance of several centuries, and was allowed to sit according to the antiquity of that barony. See Cas. in Dom. Proc. 1764. Another instance was in the case of Sir Francis Dashwood, late Lord de Spencer; for in 1763 he was called to the ancient barony of that name in right of his deceased mother, who was eldest sister and one

VOL. I.

of the co-heirs of an earl of Westmoreland, on whose death that barony had become in abeyance, and being so summoned he took his seat as premier baron, in place of Lord Abergavenny, who before possessed that distinction. See various other cases in Cruise on Dignities, chap. 5.

ABGETORIA, abgetiorum.] The alphabet, Matt. Westm. -The Irish still call the alphabet abghitten.

ABIDING-BY. This term is used (in the Scotch law) where a deed is challenged as forged; the party founding on the deed must appear in court and abide by it; this is done by his signing a declaration that he abides by the deed quarrelled sub periculo falsi, which has the effect of pledging him to stand to the consequences of founding on a forged deed. It will most commonly happen, however, that the abiding-by is qualified; as, for instance, in the case of a bill, the holder will state that it came fairly into his hands in the course of business, and he will abide by it, under that protestation and qualification, and as in no shape accessory to the forgery if there be one. Scotch Dict.

ABIGEVUS, for abigens. The same as Abactor, which see, and Bract. Tract. 1. 1. 1. 3. c. 6. 105. a.

ABILITY to inherit. See title Alien.

ABISHERING or ABISHERSING, is understood to be quit of amercements. It originally signified a forfeiture or amercement, and is more properly mishering, mishersing, or miskering, according to Spelman. It hath since been termed a liberty or freedom; because, wherever this word is used in a grant or charter, the persons to whom made, have the forfeitures and amercements of all others, and are themselves free from the control of any within their fee. Rastal's Abr. Terms de Ley, 7.

ABJURATION, abjuratio.] A forswearing orrenouncing by oath: in the old law it signified a sworn banishment, or an oath taken to forsake the realm for ever. Staundf. Pl. C. l. 2.

c. 40.

C

And in the common law it signifies particularly the making a declaration or count shorter, by severing some of the substance from it: a man is said to abridge his plaint in assize, and a woman her demand in action of dower, where any land is put into the plaint or demand which is not in the tenure of the defendant; for if the defendant pleads non-tenure, joint-tenancy, &c. in abatement of the writ, as to part of the lands, the plaintiff may leave out those lands, and pray that the tenant may answer to the rest. See Brook, tit. Abridgment; vide 21 H. 8.

c. 3.

ABRIDGMENT.

The epitome of a larger work contracted into a narrow compass. (Hooker.) See tit. Books, Literary Property.

The principal Abridgments of the Law are that of Sir Anthony Fitzherbert, a judge temp. Hen. 8. first printed in 1516, and containing cases down to 21 Hen. 7; a work of authority, containing many cases not in the year books, some before the judges in their Itinera. The "Grand Abregement" of Sir Robert Brooke, Chief Justice of the Common Pleas, temp. Philip and Mary, first printed in the year 1568. This work is principally founded on Fitzherbert's, adding many readings not now extant, and many fresh cases. Statham's abridgment, which was the first attempt at digesting the law, and contains the cases down to the time of Hen. 6. It was printed in French (quarto), without title, date, or name. Sir John Comyns's (Chief Baron of the Exchequer) "Digest of the Laws of England," a learned, accurate, and excellently arranged work, first published in 5 vols. folio, in 1762, and following years; the last edition was published in 1822. Mr. Hargrave observes, that the whole work is remarkable for its great variety of matter, its compendious and accurate expression, and the excellence of its methodical distribution; but that Pleader seems to be the author's favourite title. Bacon's Abridgment of the Law, a luminously digested and learned work, of high authority, originally composed principally from the manuscripts of Chief Baron Gilbert, by Matthew Bacon, Esq., and first published in 1736, 1740, and 1751. It has passed through seven editions, the last, in 8 vols. being enlarged by the addition of 1500 pages of matter, and much altered and improved; three volumes being edited by Sir Henry Gwillim, and five volumes by Charles Edward Dodd, Esq. 1832. Viner's "General and Complete Abridgment of Law and Equity," in 24 vols., an immense body of law and equity, first published in 1741-1751, a highly useful compilation, notwithstanding some defects and inaccuracies; there is a supplement, in 6 vols. published 1799-1806.

ABROGATE, abrogare.] To disannul or take away any thing to abrogate a law is to lay aside or repeal it. Stat. 5 and 6 E. 6. c. 3. Leges posteriores priores contrarias abrogant.

ABSENCE. A decree (in the Scotch law) is said to be in absence, where no appearance is made for the defender. Every Scotchman who is within the kingdom is liable to be called in an action before the court of session; in which action decree may be given against the defender, although no appearance be made for him. Even a foreigner, though not within the kingdom, provided he be possessed of a land estate in it, or of goods which have been attached for the purpose of founding jurisdiction, may be exposed to a decree in absence. Scotch Dict.

ABSENTEES, or des absentees. A parliament so called, was held at Dublin, 10th May, 8 H. 8; and mentioned in letters patent, dated 29 H. 8. 4 Inst. 354.

ABSOLVE. See Assoile.

ABUTTALS, from the French abutter or abouter, to limit or bound.] The buttings and boundings of lands, East, West, North, or South, with respect to the places by which they are limited and bounded. Camden tells us that limits were distinguished by hillocks raised in the lands called Botentines, The sides on the breadth of lands are properly adjacentes. lying or bordering: and the ends in length abbuttantes, abutting or bounding. The boundaries and abuttals of corporation and church lands, and of parishes, are preserved by an annual procession. Boundaries are of several sorts; such as inclosures of hedges, ditches, and stones in common fields, brooks, rivers, and highways, &c. of manors and lordships. ACCAPITARE, accapitum.] To pay relief to lords of manors. Capitali domino accapitare. Fleta, l. 2. c. 50. ACCEDAS AD CURIAM, a writ to the sheriff, where a man hath received false judgment in a hundred court, or court baron. It issues out of the Chancery, but is returnable into B. R. or C. B; and is in the nature of the writ de falso judicio, which lies for him that had received false judgment in the county court. In the Register of Writs, it is said to be a writ that lies as well for justice delayed, as for false judg ment; and that it is a species of the writ recordare, the sheriff being to make record of the suit in the inferior court, and certify it into the king's court. Reg. Orig. 9. 56: F. N. B. 18: Dyer, 169.

ACCEDAS AD VICECOMITEM. Where a sheriff hath a writ called Pone delivered to him, but suppresseth it, this writ is directed to the coroner, commanding him to deliver a writ to the sheriff. Reg. Orig. 83.

ACCEPTANCE, acceptatio.] The taking and accepting of any thing in good part, and as it were a tacit agreement to a preceding act, which might have been defeated and avoided were it not for such acceptance had.

As to the effect of acceptance of Rent, see tit. Rent, Lease. How far the acceptance of one Estate shall destroy another, see tit. Estate.

Where the acceptance of money shall discharge a Bond, see tit. Bond V.

As to acceptance of Bills, see Bills of Exchange.

How far the acceptance of one thing shall be a good bar to the demand of another.

When the condition of a bond is to pay money, acceptance of another thing is good. But if the condition is not for money, but a collateral thing, it is otherwise. Dyer, 56: 9 Rep. 79. The acceptance of uncertain things, as customs, &c. made over, may not be pleaded in satisfaction of a certain sum due on bond. Cro. Car. 193. If a woman hath title to an estate of inheritance, as dower, &c. she shall not be barred by any collateral satisfaction or recompense: and no collateral acceptance can bar any right of inheritance or freehold, without some release, &c. 4 Rep. 1. When a man is entitled to a thing in gross, he is not bound to accept it by parcels; and if a lessor distrain for rent, he is not obliged to accept part of it; nor in action of detinue, part of the goods, &c. 3 Salk. 2.

Debt upon bond, conditioned for the obliger to make an assurance of such lands to such uses as in the condition mentioned; the defendant pleaded that he had made a feoffment of the same lands to other uses than in the condition expressed, which the obligee had accepted; upon demurrer it was adjudged an ill plea; for the obligor ought not to vary from the uses set forth in the condition. 1 Brownl. 60. Acceptance of a less sum may be in satisfaction of a greater

ABSOLUTIONS, from Rome. See tit. Papists. ABSONIARE, a word used by the English Saxons in the oath of fealty, and signifying to shun or avoid-As in the form of the oath among the Saxons recorded by Somner. ABSQUE HOC. See tit. Traverse.

3 Bulst. 301. See tit. Payment.

ACCEPTILATION (in Scotch law), the extinction of a debt, with a declaration that the debt has been paid when it has not; or the acceptance of something merely imaginary in satisfaction of the debt. Scotch Dict.

ACCESSARY or ACCESSORY. Accessorius, Particeps