and to do such a thing ought to be by patent of the king. Noy 105. If there be an ancient trench or ditch coming from the sea, by which boats and vessels used to pass to the town, if the same be stopped in any part, by outrageousness of the sea, and a man will sue to the king to make a new trench, and to stop the ancient trench, &c. they ought first to sue a writ of ad quod damnum, to enquire what damage it will be to the king or others. F. N. B. 265. E. And if the king will grant to any city the assise of bread and beer, and the keeping of weights and measures, an ad quod damnum shall be first awarded, and when the same is certified, &c. then to make the grant. F. N. B.225. E. ADRECTARE, addressare, i. e. ad rectum ire, recto stare, to do right, satisfy or make amends. Gerv. Dorobern. anno 1170. Cowel, Blouut. AD TERMINUM QUI PRETERIIT, a writ of entry, that lies for the lessor and his heirs, where a lease has been made of lands or tenements, for term of life, or years; and after the term is expired, the lands are withheld from the lessor by the tenant, or other person that possesseth the same: andit likewise lies for the heir of the lessor. F. N. B. 201. But the modern and most easy way of recovering possession, is by ejectment: after judgment in which, the annual value of the premises, during the wrongful holding, may be recovered, in an action of trespass, for the mesne profits, in which may also be recovered, the costs of ejectment. And now by statute 4 Geo. 2. c. 28, a tenant wilfully holding over, after demand and notice in writing for delivering possession, shall pay double the yearly value. ADVENT, (adventus) a time containing about a month preceding the feast of the nativity of Christ. It begins from the Sunday that falls either upon St. Andrew's day, being the 30th of November, or next to it, and continues to the feast of Christ's nativity, commonly called Christmas. Blount. AD VENTREM INSPICIENDUM. This is a writ at common law, which lies for the heir presumptive, to examine, whether the widow, who is suspected to feign herself with child in order to produce a supposititious heir to the estate, be with child or not; and if she be, to keep her under proper restraint till delivered. ADULTERY, (adulterium, quasi ad alterius thorum, anno 1 Hen. 7. cap. 7.) and in divers old authors termed advowtry, is the sin of incontinence between two married persons; and if but one of the persons be married, it is nevertheless adultery: but in this last case it is called single adultery: to distinguish it from the other, which is double. The Julian law, among the old Romans, made it de ith. And by a law of William the Conqueror, whɔever forced a woman was to lose his genita's, the offending parts. But in most countries at this time the punishment is by fine, and sometimes banishment: in England it is punished. in the ecclesiastical courts by fine, penance, divorce a mensa et thoro, &c. and in the common law courts, by a compensation in damages to be assessed by a jury, on the trial of an action for crim. con. See Cowel. Bracton. Blount. ADVENTURE, a thing sent to sea, the adventure whereof the person, sending it, stands to out and home. Lex Mercat. Vide. Adventure. ADVERTISEMENTS, see Stamps, Stolen Goods, Theft, Bote, and other titles. AD VITAM AUT CULPAM, (according to the statute 28 Geo. 2. c. 7. on Scotch Juris dictions. is the same as quamdiu se bene gesserit in England) and imports that the office granted to be so held, can only be determined by the death or delinquency of the possessor. If a wife elope from her husband, and live with the adulterer, (without being reconciled to the husband) she shall forfeit her dower. Co. Lit. 36. 2 Inst. 435. And even though with her husband's consent, she live in adultery, yet she shall lose her dower. 2 Inst. 435. So also in the case of elopement, and living with an adulterer, the ecclesiastical court does not allow alimony. 1 Black. 441, 442. ADVOCATE, is the same by the civil and ecclesiastical laws as a counsellor by the common law; and who assists his client with advice and pleads for him. Cowel. Blount. ADVOCATI, were those which we now call patrons of churches, and reserved to them, and their heirs, a liberty to present a person on any avoidance. Blount. ADVOCATIONE DECIMARUM, a writ that lies for tithes, demanding the fourth part, or upwards, that belong to any church. Cowel. Blount. Reg. Orig. 29. ADVOW, (advocare, to avow) that is, to justify or maintain an act formerly done. For example: one takes a distress for rent, and he that is distrained sues the replevin: now the distrainer, justifying or maintaining the act is said to advow or avow and hence comes avowment and avowry. Old Nat. Br. 43. ADVOWEE, or avowee, (advocatus) is used for him that hath right to present to a benefice: and by 25 Ed. 3. stat. 5. we find advowee paramount is taken for the king, the highest patron.-Advocatus est ad quem pertinet jus advocationis alicujus ecclesiæ, ut ad ecclesiam, nomine proprio non alieno, possit præsentare. Fleta, lib. 5. c. 14. ADVOWSON, (advocatio) signifies the right of presentation to a church or benefice: and he who hath this right to present, is stiled patron: because they that originally obtained the right of presentation to any church, were maintainers of, or benefactors to, the same church. When the christian religion was first established in England, kings began to build cathedral churches, and to make bishops; and afterwards in imitation of them, several lords of manors founded particular cherches on some part of their own lands, and andowed them with glebe, reserving to themSeives and their heirs a right to present a fit person to the bishop, when the same should become void: and this is called an advowson, and be that hath this right of presentation is termed the patron, it being presumed that he who founded the church, will avow and take it into his protection, and be a patron to defend it in its just rights. Cowel. Blount. 1 Neis. Abr. 184. 2 Bluck. Com. 21-3. And advowsons are of two kinds, namely, pendant and in gross. Adeson appendant] Is a right of presentation dependant upon a manor, lands, or the like, and passes in a grant of the manor as incident to the same; and when manors were first created, and lands set apart to build a church on some part thereof, the ad. Towson or right to present to that church be. came appendant to the manor. 1 Comyn's Dig. tit. Ad. Advosson in gross] Is a right subsisting by itself, belonging to a person, and not to a manor, lands, or the like. So that when an adowson appendant is severed by deed or grant from the corporeal fnheritance to which it was appendant, then it becomes an advowson in gross. Co. Lit. 121, 122. 2 Black. 22, 23. And the law in this case, of a common person, is thus set down by Rolle, out of the antient books: if a man seised of a manor to which an advowson is appendant, aliens that manor, without saying with the appurtenances (and much more without naming the advowson) yet the advowson shall pass; for it is parcel of the manor. 2 Ral. Abr. 60. But with respect to the king, by the statute de prærogativa regis, 17 Ed. 2. c. 15, When the king giveth or granteth land or a manor with appurtenances; without he make express mention in his deed or writing, of advowson of churches when they fall, belonging to such manor or land, at this day the king reserveth to himself such advowsons, albeit that among other persons it bath been observed otherwise. Advowsons are also either presentative, collative, or donative. Advowson presentative] Is, where the patron hath a right to present or offer his clerk to the bishop or ordinary of the diocese, and moreover to demand of him to institute his clerk, if he finds him canonically qualified, and this is the most usual advowson. Lit. 120. 2 Black. 22. Co. Advowson collative] Is that advowson which is lodged in the bishop; for collation is the giving of a benefice by a bishop, when he is the original patron thereof, or he gains a right by lapse: in which case the bishop cannot present to himself, but he does by an act of collation, or conferring the bene fice the whole that is done in common cases by both presentation and institution. 2 Black. 22. For institution is given by the bishop upon a presentation of a patron; but collation is an immediate institution, because the bishop is both patron and ordinary. Institution and collation are in effect (for the most part) the same, and are terms made use of to distinguish the persons, who have the power to bestow the benefice. Cowel, 157. Advowson donative] Is, when the king or other patron (in whom the advowson of the church is lodged) does, by a single donation in writing, put the clerk into possession, without presentation, institution, or induction. Donatives are either of churches parochial, chapels, prebends, &c. and may be exempt from all ordinary jurisdictions, so that the ordinary cannot visit them, and consequently cannot demand procurations. If the true patron of a church or chapel donative doth once present to the ordinary, and his clerk is admitted and instituted, it be comes a church presentative, and shall never have the privilege of a donative afterwards. Yet if a stranger presents to such a donative, and institution is given, all is void, Id. 158. The right of donation descends to the heir (the ancestor dying seised, where the church became void in his life-time) and not to the executor, which it would had it been a presentative benefice. 2 Wilson Rep. 150, 1. There is not any case in the books to exclude the heir of a donative from his turn in this case. And a patron of a donative can never be put out of possession by an usurpation. Ibid. ADVOWSON OF THE MOIETY OF THE CHURCH, (advocatin medietatis ecclesia) Is where there are two several patrons and two several incumbents in one and the same church. the one of the one moiety, and the other of the other moiety thereof. Co. Lit. 17b. Medictas advocationis, a moiety of the advowson, is where two must join in the presentation, and there is but one incumbent; as where there are two parceners: and though they agree to present by turns, yet each of them hath but the moiety of the church. Co. Lit. 17 b. But by 7 Ann. c. 18. where coparceners, joint-tenants, or the like, are seised of an advowson, and a partition is made to pre-ent by turns, each of them shall be sei-ed of his separate estate. ADVOWSON OF RELIGIOUS HOUSES. where any persons founded any house of religion, they had thereby the advowson or patronage thereof. ike unto those who built and endowed parish churches. Kennet's Faroch. Antiq 147, 163. AERIE, (aerie accipitrum) airy of goshawks, is the proper term for hawks, for that which of other birds we call a nest Stat. 9 H. 3. c. 12. and is said by Spelman to come from the French word aere, a hawk's nest. Cowel. Blount. ESTIMATIO CAPITIS, (pretium hominis) king Athelstane ordained that fines should be paid for offences committed against several persons according to their degrees and quality, by estimation of their heads. Cress, Ch. Hist. 834. Leg. Hen. 1. Cowel. Blount. ÆTATE PROBANDA, a writ that lay to inquire, whether the king's tenant holding in chief by chivalry, was of full age to receive his lands into his own hands. It was directed to the escheator of the county; but is now disused, since wards and liveries are taken away by the statute. Reg. Orig. 294. Cowel. Blunt. AFFEERERS, (aferatores) from the Fr. affier, to affirm. They are those that in courtsleet, upon oath, settle and moderate the fines and amercements, imposed on such persons as have committ d faults, arbitrarily punishable, viz. that have no express penalty appointed by statute: and they are also appointed for modera ing amercements, in cour's baron. The persons nominated to this office affirm upon their oaths what penaly they think in conscience ought to be inflicted on the offenders. This word is used stat. 25 Ed 3. c. 7. Where mention is made, that the justices before their rising in every sessions shall cause the amerciaments to be affeered. And this seems to be agreeable to magna charta, by which it is ordained, that persons are to be amerced after the manner of the fault; and the amerciaments shall be assessed by the oath of honest and lawful men of the vicinage. 9 Hen. 3. cap. 14. Com. Dig. 4. tit. Leet, (0. 2.) Cowel. Blount. 4 Black. 390. AFFIANCE, the plighting of troth between a man and a woman, upon agreement of marriage: it is derived from the Latin word affidare, and signifies as much as fidem ad alium dare. Lit. sect. 39. AFFIDARE, to plight one's faith, or give or swear fealty. Blount. AFFIDATIO DOMINORUM, an oath taken by the lords in parliament, anno 3 Hen. 6. Rot. Parl. Blount. AFFIDATUS, signifies a tenant by fealty, also a retainer. Blount. AFFIDARI, seu affidari ad arma, to be mustered and inrolled for soldiers upon an oath of fidelity. Dom de Farendon MS. 55. AFFIDAVIT, (the perfect tense of the verb affido) signifies in law an oath in writing; and to make affidavit of a thing, is to testify it upon oath. An affidavit generally speaking, is an oath in writing, sworn before some judge, or officer of a court, or other person who hath authority to administer such oath, to evince the truth of certain facts therein contained; and the true place of habitation, and true addition of every person who shall make an affidavit, is to be inserted in his affidavit. 1 Lill. Abr. 44. 46. 3 Black. 304. And an affidavit must set forth the matter positively, and all material circumstances attending it, that the court may judge whether the deponent's conclusion be just or not. As, for instance, on motion to put off a trial for want of a material witness, it must appear that endeavours were made use of to have him at the time appointed, and that he cannot possibly be present, though he may on further time given. Farres. 121. Comb. 421, 422. 1 Bac. Abr. tit. Aff. Affidavits are usually for holding persons to bail, certifying the service of process, or other matters touching the proceedings in a cause; or in support of, or against motions, in cases, where the court has to determine matters in a summary way. Affidavit annexed to a Bill of Interpleader.] In bills of interpleader, the party who prefers it must make affidavit that he does not collude with either of the other parties. Mitford 49. To a lil to perpetuate the testimony of witnesses.] To avoid objection to a bill framed on the ground, that before the facts can be investigated in a court of law, the evidence of a material witness is likely to be lost by his death or departure from the realm, it seems proper to annex to it an affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost. 1 Peere Wms. 117. 3 Peere Wms. 77. 1 Atk. 450. Mitford 51. And unless such an affidavit be annexed to the bill a demurrer will hold. Mitford 131. The principle on which it is required in these cases to annex to the bill an affidavit of the circumstances, which render the examination of witnesses proper in a court of equity, though the matter is capable of being made immediately the subject of a suit at law, seems to be this; namely, that the bill tends to alter the ordinary course of the administration of justice which ought not to be permitted, upon the bare allegation of a plaintiff in his bill. Mitford 132. to a Bill for a discovery of a Deed and Relief.] If a person exhibits a bill in equity for the discovery of a deed, and prays relief thereupon, he must annex an affidavit to his bill, that he has not such deed in his possession or power, and that he knows not where they are unless in the hands of the defendant; for otherwise he takes away the jurisdiction of the common law courts, without shewing any probable cause why he should sue in equity. 1 Chan. Ca. 11, 231. 1 Vern. 59, 180, 247. Mitford 52. But if he seeks discovery of the deed only, or that it may be produced at a trial at law, he need not annex such affidavit to his bill; for it is not to be presumed that in either of these cases, he would do so absurd a thing, as exhibit a bill, if he had the deed in his possesson 1 Vern. 180, 147. Mitford 53. It is also unnecessary in the case of a bill for the discovery of a cancelled instrument, and to have another deed executed, for if the plaint if had the cancelled instrument in his hands, he could make no use of it at law, and indeed the relief prayed is such as a court of equity only can give. Mitford 113. -To obtain leave to file a bill of reviz.] If the object of a bill of review be to reverse a decree signed and inrolled upon ducovery of some new matter, the leave of the ecurt must be first obtained, and this will be not granted, but upon allegation upon oath, that the new matter could not be produced or used by the party claiming the benent of it, at the time when the decree was made. Mitford 78 79. And as the office of a supplemental bill, in eature of a bill of review, is to supply the defect which occasioned the decree on the former bill; it is also necessary to obtain the leave of the court to bring a supplemental bill of this nature, and the same affidavit is required for this purpose, as is necessary to obtain leave to bring a bill of review on discovery of new mat' er. Mitford 82. AFFINAGE, (Fr. affinage) refining of metal, purgatio metalli; inde, fine and refine. Blount. AFFIRM, (affirmare) signifies to ratify or onfrm a former law or judgment. Cowel. Blunt. AFFIRMATION, The people called quakers, are in cases, where an oath is required from others, allowed to make a solemn AFFIRMATION that what they say is true; and if they make a false affirmation, they are subject to the penalties of perjury: but this relates only to oaths to the government, and in civil matters; for quakers may not give testimony en affirmation, in any criminal cause. 7 & 8 W. 3. c 34. and 22 G. 2. c. 46. AFFORARE, to set a value or price on a thing. Charta anno 1316. apud. Thorn. Du Cange. Blount. AFFORATUS, appraised or valued, as things vendible in a fair or market. Cartular Glaston. MS. f. 58. Cowel. Blount. AFFORCIAMENT, (afforciamentum) a fortress, strong hold, or other fortification. Pryn Animad, on Coke, fol. 58. Cowel. Blount. AFFORCIARE, to add, increase, or make stronger. Bract. lib. 4. c. 19. vis. Let the witnesses be increased. Blount. AFFOREST, (afforestare) to turn ground into a forest. Chart. de Forest. c. 1. AFFRAY, is derived from the French word effrayer, to affright, and it formerly meant no more; as where persons appeared with armour or weapons not usually worn, to the terror of others. Stat. 2 Ed. 3. c. 3. But now it signifies a fighting between two or more in some public place, to the terror of his From this it is said, that no quarrelsome or threatening words whatso ver shall amount to an affray. But yet it seems certain, that in some cases, there may be an affay, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner, as will naturally cause a terror to the people; which is said to have ben always an offence at the common law, and is strictly prohibited by statute 2 Ed. 3. c. 3. 1 Hawk. P. C. 135. A constable may require affrayers to depart, and if they resist, he may call others to his assistance; who, if they refuse to assist him, may be fined and imprisoned: and a private person, or stander-by, may put a stop to an affray, and seize the offenders, where persons are assembled in a tumultuous manner to break the peace. 3 Inst. 158. H. P. C. 135. And in case a person be dangerously wounded, any man may apprehend the offender, and carry him before a justice, in the same manner as a constable. Dalt. 35. In a very dangerous affray, a constable can justify commitment, till the offenders find sureties for the peace. Lamb. 139. He may likewise put the affrayers in the stocks till he can procure proper assistance to convey them to gaol. Dalt. 38. If an affray be in an house, the constable may break open the doors to preserve the peace; and if affrayers fly to an house, and he follow with fresh suit, he may break open the door to take them. 1 Hawk. 137. But in cases of affray, the constable must apprehend the persons offending before the affray is over, or else he may not do it without a warrant from a justice, except it be in an extraordinary case; as where a person is wounded dangerously Dult. 36. In the case of a sudden affray, through passion or excess of drinking, the constable may put the persons in prison, if there be one in the vill, until the heat of their passion and intemperance is over, though he deliver them afterwards; or till he can bring them before a justice of peace, and that to avoid the present danger. 2 Hale's Hist. P. C. 90, 95. If a constable is hurt in an affray, he may have his remedy by action of trespass, and have damages; but the affrayers, if they are hurt, shall have no remedy. Lamb, 141. And where any other persons receive harm from the affrayers, they may have remedy by action against them. Dali. 55. A justice of peace may commit affrayers, until they find sureties for the peace he cannot without à warrant authorize the But arrest of any person for an affray out of his own view; yet he may make his warrant to bring the offender before him, to compel him to find sureties for the peace. 1 Hawk. 137. It is inquirable in the court-leet; and punishable by justices of peace in their sessions, by fine and imprisonment. And it differs from assu, in that, it is a wrong to the publi; whereas assault is of a private nature. Lamb. lib. 2. yet indictment lies, as being a brea h of the public peace. And the measure of pnishment for affrays must be regulated by the circumstances of each case: for where there is any material aggravation, the punishment proport.ona ly encreases: as where two persons coolly and deliberately engage in a duel, this being attended with an apparent intention and danger of murder, and being a high contempt of the justice of the nation, is a strong aggravation of the affray, though no mischief has ensued.-So also another aggravation is, when thereby the officers of justice are disturbed in the due execution of their office or where a respect to the particular place ought to restrain and regulate men's behaviour, as in the king's courts, palaces, and the like, or a church or churchyard. 4 Black. 145. AFFREIGHTMENT, (affretamentum) the freight of a sh p, from the French fret, which signifies the saine. Cowel. Blount. See Charter-Party. AFFRI, vel aftra, bullocks, or horses or beasts of the plough. Spel. Gloss. Cowel. Blount. AFRICAN TRADE. See Slave Trade. AGALMA, the impression or image of any thing on a scal. Corcel. Blount. AGE, (as, French age,) generally signifies from his birth to any certain time, or the day of his death: it also hath relation to that are or period of time wherein men live. But in the law it is particularly used for those special times which enable persons of both sexes to do certain acts, which before through want of years and judgment they are prohibited to do. Co. Lit. 78. And the ages of male and female are different for different purpose, 1 black. 463. As for example; a man at twelve years of age ought to take the oath of allegiance to the king: at fourteen, which is his age of discretion, he may consent to marriage, and choose his guardian.- -And if his discretion be actually proved, may make his testament of his per sona estate; at seventeen he may be an executor; and at twenty-one he may alien his lands, goods, and chattels Co. Lit. 78. A Black, 463 A woman at seven years of age may be betrothed or given in marriage; at nine is dowable: at twelve she may consent or dis- man or woman; which enables them to The full ape in males and females being twenty-one years, that age is considered to be completed on the day preceding the anniversary of a person's birth, who till that time is an infant, and so stiled in law. Black. 403. 1 January, he is of age to do any legal act on Thus if the party be born on the first of the morning of the last day of December, though he may not have lived twenty-one years by nearly forty-eight hours: the reason assigned is, that in law there is no fraction of a day: and if the birth were on the first second of one day, and the act on the last second of the other, then twenty-one years would be complete and in the law it is the same, whether a thing is done upon one moment of the day or another. 1 Black. Com. 463. 4 Mod. Cas. 260. : The law of England does in some cases privilege an infant, under the age of twentyone, as to common misdemeanors; so as to escape fine, imprisonment, and the like: and particularly in cases of omission; as not repairing a bridge, or a highway, and other similar offences: for not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. Hale's P. C. 20, 21, 22. But where there is any notorious breach of the peace, as a riot, battery, or the like, (which infants when full grown are at least as liable as others to commit) for these an infant above the age of fourteen is equally liable to suffer, as a person of the full age of twenty-one. 4 Black. 22. Persons under the age of fourteen are not generally punishable for capital crimes. Co. Li. 247 2 Roll. Abr. 547. But this general rule, however, as to capital crimes, hath its exceptions founded on the nature of he case, and the judgment of the infant. For, although under the age of fourteen, if he display a discretion to discern between good and evil, the maxim of the law as it now stands, and has stood ever since the reign of Ed. 3. is that malitia supplet ætatem: and it would be absurd to measure the |