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Kingdom ; 4 Dow.f- Ry. 592; and it hath been expressly resolved, fore the issues are tried, they shall not be tried ; a that where the plea is in abatement, and it is of necessity that the the trial, it will make no difference, for in each case defendant must disclose matter of bar, he shall have his elec- of nil capiat shall be given against the plaintiff. T tion to take it either by way of bar or abatement. 2 Roll. in an action for criminal conversation the defenda Rep. 64: Salkill v. Shilton. In short, whatever destroys the 1, not guilty, and 2, not guilty, within six years, and plaintiff's action, and disables him for ever from recovering, an issue on the first plea, and a demurrer to the may be pleaded in bar. But the defendant is not always though the issue was tried before the demurrer wi obliged to plead in bar, but may plead in abatement; as in re- of, and a verdict was given for the plaintiff, yet the plevin for goods, the defendant may plead property in himself, ing afterwards determined the demurrer in favour or in a stranger, either in bar or in abatement, for if the plain- fendant, judgment of nil capiat was given. Burr. 7 tiff cannot prove property in himself, he fails of his action for v. Sayer. See i William's Saunders, 109 (1.): ever; and it is of no avail to him who has the property if he Saund. 300. (3.) has it not. 1 Vent. 249 : 2 Lev. 92; 1 Salk. 5.94 ; Carth. 243. To a plea in abatement of misnomer of plaintiff,

Where matter of bar may be pleaded in abatement, vide that plaintiff was known as well by the one name as 2 Ld. Raym. 1207, 1208.

upon demurrer overruled, there will be judgment of If a defendant, together with a plea in abatement, plead ouster, and not quod recuperet. i East's Rep. 542. also a plea in bar, or the general issue, he thereby waives the In abatement the court will give no other than ti plea in abatement: and the plea in bar or general issue only judgment prayed for by the party. 10 East's Rep. 83 shall be tried. 2 Hawk. P. C. 277. and the authorities there | 2 Bos. & Puli. 422: 1 Chit. on Plead. 494. (5th ed.) cited.

ABATOR. See Abate.

ABATUDA. Any thing diminished.-Moneta at III. If issue be taken upon a plea to the writ, judgment money clipped or diminished in value. Cowel. Du against the defendant is peremplory ; but if there be a demur. ABBACY, abbatia.] The government of a religio rer, the judgment is then, only that the plaintiff answer over. and the revenues thereof, subject to an abbot, as b. Yelv. 12: Allen, 66: 2 Will. Saund. 2.

from bishop. Whatever matters are pleaded in abatement of an appeal or ABBANDUNUM, ABBENDOMA, ABBENI

, indictment of felony, and found against the defendant, yet he Abington in Berkshire, formerly Sewsham. may afterwards plead over to the felony. 2 Hawk. P. Č. 277. ABBAS, æstuarium.] Humber in Yorkshire. But in criminal cases, not capital, on demurrer in abatement ABBAT, or Abbot ; abbas, Lat.-abbé, Fr.-abbi adjudged against the party, the court will give final judgment, by some derived from the Syriac abba, pater.] A and not respondeas ouster. Ibid. 471: see 3 Barn. & C. 502: lord or governor, having the rule of a religious hou 5 Dow. 8. Ry. 422.

these abbots here in England some were elective, so In appeals of mayhem and all civil actions (except assizes of sentative; and some were mitred, and some were no mort d'ancestor, novel disseisin, nuisance, and juris ulrum), if as were mitred had episcopal authority within their a plea in abatement, triable by the county, be found against being exempted from the jurisdiction of the diocesan; the defendant, he shall not be suffered afterwards to plead any other sort of abbots were subject to the diocesan in a new matter, but final judgment shall be given against him. tual government. The mitred abbots were lords of 2 Hawk. P. C. 277; and see the authorities there cited. ment, and called abbots sovereign, and abbots general,

Upon a judgment in waste for the damages recovered, the tinguish them from the other abbots. And as there w defendant demurs partly in abatement, and partly in bar, the bols, so there were also lords priors, who had exempt j court shall give judgment in chief. Show. 255. In debt, if | tion, and were likewise lords of parliament. Some the defendant pleads in abatement to the writ, to which the twenty-six of these lords abbots and priors that sat in plaintiff imparls, and at the day given the defendant makes ment. Sir Edw. Coke says, there were twenty-seven default

, judgment is final upon the default, though the plea mentary abbots and two priors. 1 Inst. 97. In the par was only in abatement. 10 E. 4.7: Mod. Cases, 5. The judg- 20 R. 2. there were but twenty-five; but anno 4 ]. 3. ment for the defendant, on a plea in abatement, is quod breve, summons to the parliament at Winton, more are named or narratio cassetur. See Mäule f. S. 453. If issue be joined in Monasticon Anglicanum there is also mention of mo on a plea in abatement, and it be found for the plaintiff, it shall names of which were as follow : abbots of St. Austin, be peremptory against the defendant, and the judgment shall bury, Ramsey, Peterborough, Croyland, Evesham, St. be quod recuperet, because the defendant choosing to put the de Hielmo, Thornby, Colchester, Leicester, Winc whole weight of his cause upon this issue, when he might have Westminster, Cirencester, St. Alban's, St. Mary York, s a plea in chief, is an admittance that he had no other defence. bury, Selby, St. Peter's Gloucester, Malmsbury, W: Yelv

. 112: 2 Show. 42: Str. 532. And in this case the jury Thorney, St. Edmund's Beaulieu, Abingdon, Hide, R who try that issue shall assess the damages. See 2 Will. Glastonbury, and Osney.-And priors of Spalding, St.

of Jerusalem, and Lewes.—To which were afterwards ade If there be two defendants, and they plead two several pleas abbots of St. Austin's Bristol, and of Bardeny, and the in abatement, and there be issue to one and demurrer to the de Sempringham. See also Spelman's Glossary. The other, if the issue be found for the defendant the court will not beys and priories were founded by our ancient king proceed on the demurrer; and sic vice versa; for either way great men, from the year 602 to 1133. An abbot, w the writ is abated, and the other plea becomes useless. Hob. monks of the same house, were called the convent, and 250: Bac. Ab. tit. Abatement.

corporation. Terms de Ley, 4. By stat. 27 H. 8. c. It seems that where the defendant's plea goes to bar the abbeys, monasteries, priories, &c. not above the value o action, if the plaintiff demurs to it, and the demurrer is deter- per ann. were given to the king, who sold the lands mined in favour of the plea, judgment of nil capiat shall be rates to the gentry.

Anno 29 Ħ. 8. the rest of the abbo entered, notwithstanding there may be also one or more issues made voluntary surrenders of their houses to obtain fav in fact; because, upon the whole, it appears that the plaintiff the king; and anno 31 H. 8. a bill was brought into the had no cause of action. So where several pleas are pleaded to confirm those surrenders; which passing, completed t since the stat. of 4 & 5 Ann. c. 16. all of them going to destroy solution, except the hospitals and colleges, which we the action, and one or more issues are joined on some of the dissolved, the first till the 33d, and the last till the 3 pleas, and there are one or more demurrers to the rest, if the H. 8; when commissioners were appointed to enter and court determine the demurrers in favour of the defendant be the said lands, &c.

Saund. 5. (3.)

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ABBATIS. An avener or steward of the stables; an ostler, , able as principals. To be present at, and aid and abet the

commission of, a felony makes the party (if he is not the
ABBREVIATE of ADJUDICATION. This term (in actual perpetrator of the offence) a principal in the second
the Scotch law) is applied to an abstract of the adjudication. degree : as in rape, if one ravish a woman, and others assist by
Adjudication is that diligence of the law by which the heritage of holding the woman or otherwise, the actual ravisher is called
a debtor is adjudged to belong to his creditor in payment of debt; the principal in the first degree ; if an aider and abettor be
and the abbreviate of the adjudication is an abridgment of the absent at the time of the commission of the offence he then
record, containing the names of the creditor, of the debtor, becomes an accessory. See title Accessory.
and of the lands, with the amount of the debt; it is signed by ABEYANCE, or abbayance, [from the Fr. beer, or bayer,
the judge who pronounced the decree in the process of adjudi- to expect] is what is in expectation, remembrance, and in-
cation, and must be recorded in the register of abbreviates. tendment of law. By a principle of law, in every land there is
Scotch Dict.

a fee-simple in somebody, or it is in abeyance; that is, though ABBROCHMENT, abbrocamentum.] The forestalling of for the present it be in no man, yet it is in expectancy, belonga market or fair. MS. Antiq.

ing to him that is next to enjoy the land. 1 Inst. 342. The ABBUTTALS. See Abutials.

word abeyance hath been compared to what the civilians call ABBY. See Abbot.

hæreditatem jacentem ; for as the civilians say lands and goods To ABDICATE, abdicare.] To renounce or refuse any jacent, so the common lawyers say that things in like estate are thing. Terms de Ley, 5.

in abeyance; as the logicians term it in posse, or in understandABDICATION, abdicatio.] In general, is where a magis- ing; and as we say in nubibus, that is, in consideration of law. trate, or person in office, renounces and gives up the same See Plowd. Rep. 547. before the term of service is expired. And this word is fre- If a man be a patron of a church, and presents one thereto, quently confounded with resignation, but differs from it, in the fee of the lands and tenements pertaining to the rectory is that abdication is done purely and simply; whereas resignation in the parson; but if the parson die, and the church become is in favour of some other person. Chamb. Dict. 'Tis said to void, then the fee is in abeyance, until there be a new parson be a renunciation, quitting and relinquishing, so as to have presented, admitted, and inducted; for the patron hath not the nothing farther to do with a thing; or the doing of such fee, but only the right to present, the fee being in the incumactions as are inconsistent with the holding of it. On king bent that is presented. Terms de Ley, 6. James II's leaving the kingdom, and abdicating the govern- If a man makes a lease for life, the remainder to the right ment, the Lords would have had the word desertion made use heirs of J. S., the fee-simple is in abeyance until J. S. dies. of; but the Commons thought it was not comprehensive 1 Inst. 342. If lands be leased to A. B. for life, the remainder enough, for that the king might then have liberty of returning to another person for years, the remainder for years is in abeyThe Scots called it a forefalture (forfeiture) of the crown, ance, until the death of the lessee for life; and then it shall from the verb forisfacio. —This word was fully canvassed in vest in him in remainder as a purchaser, and as a chattel shall the Parliamentary Debates at that time.

go to his executors. 3 Leon. 23. Where tenant for term of ABDITORIUM. An abditory or hiding place, to hide and another's life dieth, the freehold of the land is in abeyance till preserve goods, plate, or money; and is used for a chest in the entry of the occupant. 1 Inst. 342. b. which reliques are kept, as mentioned in the inventory of the Fee-simple in abeyance cannot be charged until it comes in church of York. Mon. Ang. p. 173.

esse, so as to be certainly charged or aliened; though by possiABDUCTION of WOMEN. The forcible or fraudulent bility it may fall every hour. i Inst. 378. abduction of women or girls, on account of their fortune, is The necessity there was in the old law, that there should punished in England by_9 G. 4. 31. and in Ireland by 10 always be some person to do the feudal duties, to fill the posG. 4. c. 34. § 22—24. By these acts, where any woman shall session, and to answer the actions which might be brought for have

any interest, legal or equitable, present or future, in any the fief, introduced the maxim that the freehold could never be estate, real or personal ; or being heiress presumptive, or next of in abeyance. See 2 Wils. 165. But it was admitted there kin to any one having such interest, any person who, from were some cases in which the inheritance, when separated from motives of lucre, shall take or detain her against her will, for the freehold, might be so. But this abeyance or suspension of the purpose of her being married (or defiled), and all counsel- the inheritance could not but be considered with a very jealous lors, aiders, and a bettors, in such offences, are declared guilty of eye, and it was agreed that it should be discountenanced and felony, and punishable by transportation for life, or not less than discouraged as much as possible, and allowed upon none but seven years, or imprisonment, with or without hard labour, not the most urgent occasions. The chief reasons of this may

be exceeding four years. The taking of any unmarried girl, found in Blackstone's argument in the case of Perryn and under sixteen, out of the possession of a parent or guardian is Blake ; and Mr. Hargrave's observations on the rule in declared a misdemeanor, punishable by fine and imprison- Shelly's case. To these reasons the modern law has added her ment. See titles Heiress, Women, and the remarkable case marked and unremitted odium of every restraint upon alienaof the King v. Edward Gibbon Wakefield, published by tion; it being clear that no restraint could be more effectual Murray.

than the admission of a suspension of the inheritance. The ABÉREMURDER, aberemurdum.] Plain or downright same principles have in some degree given rise to the well murder; as distinguished from the less heinous crimes of man- known rule of law, that a preceding estate of freehold is indisslaughter or chance-medley. It is derived from the Saxon pensably necessary for the support of a contingent remainder ; æbere, apparent, notorious, and morth, murder; and was de- and they influence in some degree the doctrines respecting the clared a capital offence, without fine or commutation, by the destruction of contingent remainders. See 1 Inst. 216. a. and laws of Canute, cap. 93. and of Hen. 1. cap. 13. Spelm. 342. b. and the notes there.

To ABET, abettare, from the Saxon a (ad vel usque) and “In a grant to John for life, and afterwards to the heirs of bedan or beteren, to stir up or incite. In our law signifies to Richard, the inheritance is plainly neither granted to John nor encourage or set on; the substantive abetment is used for an Richard, nor can it vest in the heirs of Richard till his death, encouraging or instigation. Staundf. Pl. Cr. 105. An abet- nam nemo est hæres viventis ; it remains, therefore, in waiting tor (abeitator) is an instigator or setter on ; one that promotes or abeyance during the life of Richard. This is likewise or procures a crime. Old Nat. Br. 21.

always the case of a parson of a church, who hath only an AIDERS and ABETTORS are named in numerous sta- estate therein for the term of his life, and the inheritance retutes creating and punishing offences, and in the stat. 7 and 8 mains in abeyance. And not only the fee but the freehold also G. 4.c. 29. $ 61 ; aiders and abettors in misdemeanor are punish- I may be in abeyance; as, when a parson dies, the freehold of his

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C. 40.

comes in

glebe is in abeyance until a successor is named, and then it of the co-heirs of an earl of Westmoreland, on vests in the successor.” 2 Comm. c. 7. p. 107.

that barony had become in abeyance, and being so This opinion, which may now be considered as exploded, was he took his seat as premier baron, in place of Lor founded on a notion, generally speaking true enough, that the venny, who before possessed that distinction. See va operation of livery was immediate and entire, and therefore that cases in Cruise on Dignities, chap. 5. the livery to John, in the case put, carried the remainder over ABGETORIA, abgetiorum.] The alphabet, Ma with it at the same time out of the grantor; and if the re- - The Irish still call the alphabet abghitten. mainder passed from the grantor, as it clearly passed for the ABIDING-BY. This term is used (in the Scotch 1 present to nobody, this doctrine of abeyance was a necessary a deed is challenged as forged; the party foundin consequence. This conclusion, though couched in imposing deed must appear in court and abide by it; this is terms, as abeyance in gremio legis, and in nubibus, was by no his signing a declaration that he abides by the deed means satisfactory; these terms, of what might be called legal sub periculo falsi, which has the effect of pledgin geography, did not explain to any man's mind where the estate stand to the consequences of founding on a forged was in the interval. At the same time certain opinions were will most commonly happen, however, that the abid held, seemingly inconsistent with it: for instance, it was laid qualified; as, for instance, in the case of a bill, th down, that if John died in the lifetime of Richard, as the heirs will state that it came fairly into his bands in the of Richard could never take, the grantor should have the land business, and he will abide by it, under that protesta again, the same grantor in whom, by the hypothesis, no estate qualification, and as in no shape accessory to the fi remained. Mr. Ferne met the doctrine in the only way in there be one. Scotch Dict. which it could be met, by denying the premises, and reasoned, ABIGEVUS, for abigens. The same as Abacto that if the remainder passed to nobody, it passed from nobody, see, and Bract. Tract. 1. 1. 1. 3. c. 6. 105. a. but that there was a “suspension of the complete or absolute ABILITY to inherit. See title Alien. operation of such feoffment or conveyance, in regard to the in- ABISHERING or ABISHERSING, is understo heritance, till the intended channel for the reception of such quit of amercements. It originally signified a forfe inheritance came into existence.” This principle will be found amercement, and is more properly mishering, misher to explain all the cases in the text: whatever portion of the in- miskering, according to Spelman. It hath since been heritance cannot take effect in præsenti remains in the grantor a liberty or freedom ; because, wherever this word is u or his heirs; and if the inheritance can never pass, as in the case grant or charter, the persons to whom made, have the of the church, it always remains there. See Fearne on Con. tures and amercements of all others, and are themsel

from the control of any within their fee. Rastal's Abr.
with Prespect to the case of a freehold in abeyance, that de Aguj URATION, abjuratio.] A forswearing orreno
seems, upon other grounds, as objectionable as the former ;
feudal principles always requiring an immediate tenant of the by oath: in the old law it signified a sworn banishment
freehold for the performance of the services, and to answer to oath taken to forsake the realm for ever. Staundf. Pl.
the action of a stranger. The case put of the glebe during a
vacancy of the church is not perhaps easy of solution ; that Formerly, in King Edward the Confessor's time, and
which Mr. Christian proposes in a note on this passage is not reigns down to the 22 H. 8. (in imitation of the cleme
entirely satisfactory. He would place the freehold in the future the Roman emperors towards such as fled to the church
successor, who is to be brought into view and notice by insti- man had committed felony here, and he could fly to a
tution and induction. But if it is in him, it is not there use- or church-yard before his apprehension, he might not be
fully for either of the purposes for which alone the law re- from thence to be tried for his crime ; but on confession t
quires it to be in any one,-the services are not performed, and before the justice, or before the coroner, he was admi
there is no one to answer the præcipe of a stranger. The his oath, to abjure or forsake the realm; which privile
same objection indeed applies if we place it in the heir of the was to have forty days, during which time any person
founder or the ordinary. Perhaps it may be thought not un- give him meat and drink for his sustenance, but not aft
reasonable to admit this to be an exception to the general rule ; pain of being guilty of felony. See Porn's Mirror,
an estate altogether is the creature of legal reasoning, to be But, at last, this punishment being but a perpetual confin
moulded, raised, or extinguished accordingly; and it may be of the offender to some sanctuary, wherein (upon abju
fairly argued that as the freehold can exist in no one to any of his liberty and free habitation) he would choose to
useful legal purpose, during the vacancy of the church, it may his life (as appears by the stat. anno 22 H. 8. c. 14.), th:
not exist at all. This is a conjecture hazarded with great dif- vilege was abolished by stat. 21 Jac. 1. c. 28; and this
tidence, but which may be allowed in a question of more cu- of abjuration ceased. 2 Inst. 629.
riosity than practical importance. Coleridge's Note, 2 Black. Aš to the effect of abjuration on the marriage tie, s
Comm. 107. n. 2.

Baron and Feme.
As to the abeyance of titles of honour, and their being re- In its modern and now more usual signification, it ex
vived by the royal nomination, seel I nst. 165. a; where Lord to the person as well as place; as for a man to abjure the

says, that if an earl of Chester die, leaving more daugh- tender by oath, is to bind himself not to own any regal a
ters than one, the eldest shall not of right be a countess, but rity in the person called the Pretender, nor ever to pay hir
the king may, for the uncertainty, confer the dignity on which obedience, &c. See, on this subject, tit. Nonconformists, (
daughter he pleases. And this doctrine, says Mr. Hargrave, Papist, Recusants, fc.
in his note, is undoubtedly law, though our books furnish little ABLATO-BULGIO. Bulness or Bolness, in Cumber
matter on the subject ; and there are many instances of an ABOLITION. A destroying or effacing, or putting
exertion of this prerogative. One of the most remarkable memory; it also signifies the leave given by the king, or ju
took place in the person of the late Mr. Norborn Berkley, to 3 criminal accuser to desist from further prosecution.
who, in 1764, was called to the House of Peers in right of the 25 H. 8. c. 21.
old barony of Botetourt, after an abeyance of several centuries, ABONE, Abonis.] Avington or Aventon, in Glouce
and was allowed to sit according to the antiquity of that ba- shire.
rony. See Cas. in Dom. Proc. 1764. Another instance was ABORTION. See Homicide.
in the case of Sir Francis Dashwood, late Lord de Spencer; ABREVICUM. Berwick on Tweed.
for in 1763 he was called to the ancient barony of that name To ABRIDGE, abbreviare, from the Fr. abbreger.]
in right of his deceased mother, who was eldest sister and one make shorter in words, so as to retain the sense and substa


by possi


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And in the common law it signifies particularly the making a ABUTTALS, from the French abutter or abouter, to limit declaration or count shorter, by severing some of the substance or bound.] The buttings and boundings of lands, East, West, from it: a man is said to abridge his plaint in assize, and a North, or South, with respect to the places by which they are woman her demand in action of dower, where any land is put limited and bounded. Camden tells us that limits were disinto the plaint or demand which is not in the tenure of the de- tinguished by hillocks raised in the lands called Botentines, fendant; for if the defendant pleads non-tenure, joint-tenancy, The sides on the breadth of lands are properly adjacentes. &c. in abatement of the writ, as to part of the lands, the plain- lying or bordering: and the ends in length abbullantes, abuttiff may leave out those lands, and pray that the tenant may ting or bounding. The boundaries and abuttals of corporaanswer to the rest. See Brook, tit. Abridgment; vide 21 H. 8. tion and church lands, and of parishes, are preserved by an C. 3.

annual procession. Boundaries are of several sorts; such as ABRIDGMENT. The epitome of a larger work con- inclosures of hedges, ditches, and stones in common tields, tracted into a narrow compass. (Hooker.) See tit. Books, Lite- brooks, rivers, and highways, &c. of manors and lordships. rary Property

ACCAPITARE,accapitum.] To pay relief to lords of manors. The principal Abridgments of the Law are that of Sir - Capitali domino accapitare. Fleta, l. 2. c. 50. Anthony Fitzherbert, a judge temp. Hen. 8. first printed in ACCEDAS AD CÙRIAM, a writ to the sheriff, where 1516, and containing cases down to 21 Hen. 7; a work of a man hath received false judgment in a hundred court, or authority, containing many cases not in the year books, some court baron. It issues out of the Chancery, but is returnable before the judges in their Itinera. The “Grand Abregement” into B. R. or C. B; and is in the nature of the writ de falso of Sir Robert Brooke, Chief Justice of the Common Pleas, judicio, which lies for him that had received false judgment in temp. Philip and Mary, first printed in the year 1568. This the county court. In the Register of Writs, it is said to be a work is principally founded on Fitzherbert's, adding many writ that lies as well for justice delayed, as for false judgreadings not now extant, and many fresh cases. Statham's ment; and that it is a species of the writ recordare, the sheriff abridgment, which was the first attempt at digesting the law, being to make record of the suit in the inferior court, and cerand contains the cases down to the time of Hen. 6. It was tify it into the king's court. Reg. Orig. 9. 56: F. N. B. 18: printed in French (quarto), without title, date, or name. Sir Dyer, 169. John Comyns's (Chief Baron of the Exchequer) “ Digest of ACCEDAS AD VICECOMITEM. Where a sheriff hath the Laws of England,” a learned, accurate, and excellently ar- a writ called Pone delivered to him, but suppresseth it, this ranged work, first published in 5 vols. folio, in 1762, and fol writ is directed to the coroner, commanding him to deliver a lowing years; the last edition was published in 1822. Mr. writ to the sheriff. Reg. Orig. 83. Hargrave observes, that the whole work is remarkable for its ACCEPTANCE, acceptatio.] The taking and accepling of great variety of matter, its compendious and accurate expres- any thing in good part, and as it were a tacit agreement to a sion, and the excellence of its methodical distribution; but preceding act, which might have been defeated and avoided that Pleader seems to be the author's favourite title. Bacon's were it not for such acceptance had. Abridgment of the Law, a luminously digested and learned work, of high authority, originally composed principally from As to the effect of acceptance of Rent, see tit. Rent, Lease. the manuscripts of Chief Baron Gilbert, by Matthew Bacon, How far the acceptance of one Estate shall destroy another, Esq., and first published in 1736, 1740, and 1751. It has see tit. Estale. passed through seven editions, the last, in 8 vols. being en- Where the acceptance of money shall discharge a Bond, see larged by the addition of 1500 pages of matter, and much tit. Bond V. altered and improved ; three volumes being edited by Sir As to acceptance of Bills, see Bills of Exchange. Henry Gwillim, and five volumes by Charles Edward Dodd, Esq. 1832. Viner's “General and Complete Abridgment of How far the acceptance of one thing shall be a good bar to Law and Equity,” in 24 vols., an immense body of law and the demand of another. equity, first published in 1741–1751, a highly useful compila- When the condition of a bond is to pay money, acceptance tion, notwithstanding some defects and inaccuracies; there is a of another thing is good. But if the condition is not for money, supplement, in 6 vols, published 1799-1806.

but a collateral thing, it is otherwise. Dyer, 56 : 9 Rep. 79. ABROGATE, abrogare.] To disannul or take away any The acceptance of uncertain things, as customs, &c. made over, thing: to abrogate a law is to lay aside or repeal it. Stat. 5 may not be pleaded in satisfaction of a certain sum due on bond. and 6 E. 6. c. 3. Leges posteriores priores contrarias abro-Cro. Car. 193. If a woman hath title to an estate of inheritgant.

ance, as dower, &c. she shall not be barred by any collateral ABSENCE. A decree (in the Scotch law) is said to be satisfaction or recompense: and no collateral acceptance can in absence, where no appearance is made for the defender. bar any right of inheritance or freehold, without some release, Every Scotchman who is within the kingdom is liable to be &c. 4 Rep. 1. When a man is entitled to a thing in gross, called in an action before the court of session; in which action he is not bound to accept it by parcels ; and if a lessor distrain decree may be given against the defender, although no ap- for rent, he is not obliged to accept part of it; nor in action of pearance be made for him.

Even a foreigner, though not detinue, part of the goods, &c. § Salk. 2. within the kingdom, provided he be possessed of a land estate Debt upon bond, conditioned for the obliger to make an asin it, or of goods which have been attached for the purpose of surance of such lands to such uses as in the condition menfounding jurisdiction, may be exposed to a decree in absence. tioned; the defendant pleaded that he had made a feoffment of Scolch Dict.

the same lands to other uses than in the condition expressed, ABSENTEES, or des absentees. A parliament so called, which the obligee had accepted ; upon demurrer it was adwas held at Dublin, 10th May, 8 H. 8; and mentioned in judged an ill plea; for the obligor ought not to vary from the letters patent, dated 29 H. 8. 4 Inst. 354.

uses set forth in the condition. 1 Bronnl. 60. ABSOLVE. See Assoile.

Acceptance of a less sum may be in satisfaction of a greater ABSOLUTE WARRANDICE, is a warrant against all sum, if it be before the day on which the money becomes due. mortals. Scotch Dict.

3 Bulst. 301. See tit. Payment. ABSOLUTIONS, from Rome. See tit. Papists.

ACCEPTILATION (in Scotch law), the extinction of a ABSONIARE, a word used by the English Saxons in the debt, with a declaration that the debt has been paid when it oath of fealty, and signifying to shun or avoid --As in the has not ; or the acceptance of something merely imaginary in form of the oath among the Saxons recorded by Somner. satisfaction of the debt. Scotch Dict. ABSQUE HOC. See tit. Traverse.

ACCESSARY or ACCESSORY. Accessorius, Particeps

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ACCESSORY, I, II. 1, 2. criminis.] One guilty of a felonious offence, not principally, making him a principal in high treason, upon acco but by participation; as by command, advice, or concealment, heinousness of the crime. 3 Inst. 138: i Hale's &c.

Besides, it is to be considered, that the bare intent Abellors and Accomplices also come in some measure under treason is many times actual treason; as imagining the name, though the former not strictly under the legal defi- of the king, or conspiring to take away his crown. nition of Accessories. An Abettor is one who stirs up, in- one can advise and abet such a crime without an in cites, instigates, or encourages, or who commands, counsels, or have it done, there can be no accessories before the procures another to commit felony (and this is now extended the very advice and abetment amounts to principa to minor offences; see post); and in many, indeed in almost But this will not hold in the inferior species of hig all cases, is now considered as much a principal as the actual which do not amount to the legal idea of compassing felon, in some cases more, as in the case of murder. See of the king, queen, or prince. For in these, no advic Leach's Hawk. P. C. 1. 2. c. 29. § 7, 8. and c. 33. $ 98—103. mit them, unless the thing be actually performed, wi An Accomplice is one of many equally concerned in a felony; man a principal traitor. Foster, 342. In petit treas and the word is generally applied to those who are admitted to der, and felonies, with or without benefit of clergy, t give evidence against their fellow criminals, for the further- be accessories; except only in those offences, which, ance of justice, which might otherwise be eluded; and this is ment of law, are sudden and unpremeditated, as man done on the ancient principle of law relative to Approvers. See and the like, which, therefore, cannot have any a Leach's Hawk. P. C. l. 2. c. 37. $ 3.7. and notes; 4 Comm. before the fact. i Hale's P. C. 615. So too in peti 329.

and in all crimes under the degree of felony, the The following extracts from Blackstone's Commentaries accessories either before or after the fact : but all per (4 Comm. 34–40. and 423.) give a methodized general idea cerned therein, if guilty at all, are principals ; 1 Ha of the principles governing this subject.-Consult also Hale's 613; the same rule holding with regard to the hig Hist. P. C. and Ilawk. P. C. for fuller information.

lowest offences; though upon different reasons In to

are principals, propter odium delicti ; in trespass all a 1. Of Principals.—A man may be principal in an offence pals, because the law, quæ de minimis non curat, does in two degrees. A principal in the first degree, is he that is scend to distinguish the different shades of guilt in p the actor, or absolute perpetrator of the crime; and in the demeanors. It is a maxim that accessorius sequitur second degree, he who is present, aiding and abetting the fact sui principalis ; 3 Inst. 139; and ther ore an access to be done. i Hale's P. C. 615.-Which presence need not not be guilty of a higher crime than his principal, be always be an actual immediate standing by, within sight or punished as a partaker of his guilt. So that if a serv: hearing of the fact; but there may be also a constructive pre- gates a stranger to kill his master, this being murde sence, as when one commits a robbery or murder, and another stranger as principal, of course the servant is accessor keeps watch or guard at some convenient distance. Foster, the crime of murder, though, had he been present an 350. And this rule hath also other exceptions ; for, in case of ing, he would have been guilty, as principal, of petty murder by poisoning, a man may be a principal felon by pre- and the stranger of murder.2 Hawk. P. C. 441, 2. paring and laying the poison, or persuading another to drink Though generally an act of parliament, creating a it (Keb. 52.) who is ignorant of the poisonous quality (Foster, renders (consequentially) accessories before and after 349.), or giving it to him for that purpose ; and yet not admi- the same penalty, yet the special penning of the act o nister it himself, nor be present when the very deed of poison- ment in such cases sometimes varies the case. Thus ing is committed. 3 Inst. 138. And the same reason will tute of 3 H. 7. c. 2. against taking away maidens, & hold with regard to other murders committed in the absence of the offence, and the procuring and abetting, yea, and the murderer, by means which he had prepared before hand, receiving also, to be all equally principal felonies, and and which probably could not fail of their mischievous effect. of clergy. i Hale's P. C. 614. As by laying a trap, or pitfall, for another, whereby he is 2. Sir Matthew Hale (5 Hale's P. C. 615, 616.) d. killed ; letting out a wild beast, with an intent to mischief ; accessory before the fact to be one, who being absen or exciting a madman to commit murder, so that death there- time the crime was committed, doth yet procure, co upon ensues ; in every of these cases the party offending is command another to commit a crime. Herein absen guilty of murder as a principal in the first degree. For he cessary to make him accessory; for if such procurer cannot be called an accessory, that necessarily presupposing a like, be present, he is guilty of the

crime as principal principal; and the poison, the pitfall, the beast, or the mad- then advise B. to kill another, and B. does, in the al man, cannot be held principals, being only the instruments of A., now B. is principal, and A. is accessory in the death. As therefore he must be certainly guilty either as And this holds though the party killed be not in rerun principal or accessory, and cannot be so as accessory, it follows at the time of the advice given. As if A. the

reputed that he must be guilty as principal; and if principal, then in advises B. the mother of a bastard child, unborn, to sti the first degree, for there is no other criminal, much less a su- when born, and she does so, A. is accessory to the perior in the guilt, whom he could aid, abet, or assist. Dyer, 186. And it is also settled (Foster, 125.) that 1 Hale's P. C. 617: 2 Hawk. P. C. 441, 2.

procureth a felony to be comunitted, though it be by ti

vention of a third person, is an accessory before the f II. Of Accessories.-An Accessory is he who is not the is likewise a rule, that he who in anywise commands chief actor in the offence, nor present at its performance, but sels another to commit an unlawful act is accessory to is some way concerned therein, either before or after the fact ensues upon that unlawful act, but is not accessory to committed ; in considering the nature of which degree of distinct from the other: as if A. commands B. to bent guilt, we will examine, 1. What offences admit of accesso- B. beats him so that he dies, B. is guilty of murder as pi ries

, and what not; 2. Who may be an accessory before the and A. as accessory; but if A. commands B. to burn C. fact ; 3. Who may be an accessory after it ; 4. How accesso- and he in so doing commits a robbery, now A., thoug] ries, considered merely as such, and distinct from principals, sory to the burning, is not accessory to the robbery, foi are to be treated ; 5. Of accessories or accomplices accusing a thing of a distinct and unconsequential nature. 1 principals.

P. C. 617. But if the felony committed be the same 1. In high treason there are no accessories, but all are prin- stance with that which is commanded, and only var cipals : the same acts that make a man accessory in felony, some circumstantial matters ; as if, upon a command te


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