ABOVE, higher in place; the superior court. ABOVE-CITED or MENTIONED, quoted before. A figurative expression taken from the ancient manner of writing books on scrolls, where, whatever is cited or mentioned before in the same roll must be above.-Encyc. Lond. ABRENUNCIATION, absolute denial.-Sel

dom used.

ABREVICUM, Berwick-upon-Tweed.

ABORTION (fr. ab, which in composition | tion of the whole subject see Wharton & Stille's signifies defect, according to Martinius, and Med. Jurisp., and Wharton's Cr. Law, h. t.] orior, Lat., to arise), a miscarriage, or the pre- ABORTION, the fruit of an abortion inmature expulsion of the contents of the gravid capable of life. uterus, before the term of gestation is completed. Our law does not recognize the distinction adopted by medical commentators on the subject, who consider miscarriages during the first six months as abortions, and those during the last three, as premature labors; but applies the term abortion to the throwing off of the foetus at any period of the pregnancy. Medical science divides the causes which induce women to abort, into (1,) natural or habitual, and (2,) violent or artificial. Natural or habitual, it subdivides into predisposing and occasional or exciting; and violent or artificial into accidental, and premeditated or intentional. The law deals only with premeditated or intentional abortion, which is now more appropriately denominated fœticide. To kill an infant in its mother's womb is not murder in legal contemplation; because to constitute this crime, the individual slain must be a reasonable creature, in being, and under the queen's peace, at its perpetration. A child en ventre sa mere, and not actually born, does not fall within this predicament.

The 7 Wm. IV. and 1 Vict. c. 85, s. 6, enacts, that "whosoever, with intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever, with the like intent, shall be guilty of felony, and being convicted thereof, shall be liable at the discretion of the court to penal servitude for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." It seems to be quite immaterial whether the woman be pregnant or not; the intent, as indicated by the act, being the gist of the offence.

The offender may be found guilty of an attempt to commit the crime, where the evidence does not prove the completion of the offence charged, and be liable to the same consequences as if charged with the attempt only.-14 & 15 Vict. c. 100, s. 9.

It is no excuse that the woman consented to, or even solicited, the perpetration of the offence; for this would be to set the law at naught, inasmuch as the crime is never attempted but with the woman's approval.

It is considered doubtful whether a woman could be tried under this act for abortion attempted or committed on herself; but it is submitted that she could at all events be put upon her trial for the misdemeanor at common law.

It should never be forgotten by those engaged in judicial investigations of this offence, that abortion from natural, habitual, and non-criminal causes are of frequent occurrence: so frequent, that medical experience indicates that one in three of all conceptions in London, terminate in abortion.

Connected with this subject is this very serious question, Is it, under any circumstances, morally and legally proper for a medical man to induce premature delivery? See Guy's For. Med. 117, and Taylor's Med. Jurisp. 518. [For an exposi

ABRIDGE (fr. abréger, Fr.), to make shorter in words, but still retaining the sense and substance. Also the making a declaration or count shorter by subtracting or severing some of the substance therefrom, e. g. 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 plead non-tenure, joint-tenancy, or the like, 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.-Brook. tit. Abridgment.

ABRIDGMENT (fr. abbreviamentum, Lat.), a large work contracted into a narrow compass; a summary, epitome, or compendium.

ABROGATION, to disannul or take away anything; to abrogate a law is to lay aside or repeal it.-Cowel. The maxim is Leges posteriores priores contrarias abrogant. 11 Co. 626. (Subsequent laws repeal prior contrary laws.)

ABROGATION, stands opposed to rogation; it is distinguished from derogation, which implies the taking away only some part of a law; from subrogation, which denotes the adding a clause to it; from obrogation, which implies the limiting or restraining it; from dispensation, which only sets it aside in a particular instance, and from antiquation, which is the refusing to pass a law.-Encyc. Lond.

ABSCOND, to go out of the jurisdiction of the courts, or to lie concealed in order to avoid any of their processes.

ABSCONDING DEBTOR'S ARREST ACT, 1851. 14 & 15 Vict. c. 42.

AR

ABSCONDING SHAREHOLDER,
REST OF. See 20 & 21 Vict. c. 14, ss. 11, 12.

ABSENCE, want of appearance. A decree is said to be in absence where the defender does not appear; every Scotchman 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 he do not appear. Even a foreigner, though not within the kingdom, provided he possess an estate in it. or goods, which have been attached for the purpose of founding jurisdiction, may be exposed to a decree in absence.-Scotch Law.

ABSENCE, generally, is of a fivefold kind or species: (1.) A necessary absence, as in banished or transported persons; this is entirely necessary. (2.) Necessary and voluntary, as upon the account of the commonwealth, or in the service of the church. (3.) A probable absence, according to the civilians, as that of students on the score of study. (4.) Entirely voluntary, on account

of trade, merchandise, and the like. (5.) Absence | quently made to a tenant for life, that no man cum dolo et culpâ, as not appearing to a writ, shall impetere or sue him for waste committed. subpana, citation, &c., or to delay or defeat cre- This reservation only excuses from permissive ditors, or avoiding arrest either on civil or crimi- waste, but is never extended to allow malicious nal process.-Ayliffe. waste to the very destruction of the estate itself.

ABSENTEE, a person who is away from his—2 Ch. C. 32. usual place of residence.

ABSENTEES, or des absentees. A Parliament so called was held at Dublin, 10th May, 8 Hen. VIII. and mentioned in letters-patent dated 29 Hen. VIII.

Absentia ejus qui reipublicæ causâ abest, neque ei, neque alii damnosa esse debet. (The absence of any person who is abroad in the service of the government ought to be detrimental neither to him nor to another.)

ABSOLVE, to acquit of a crime, to pardon or set free from excommunication. See ASSOILE. Absoluta sententia expositore non indiget. 2 Inst. 533. (A positive decree is not in need of any interpreter.)

ABSOLUTE, complete, unconditional, not relative, as a rule absolute, which can be forthwith enforced in contradistinction to a rule nisi, which is incomplete until cause be shown, or the opposite party make default in appearing.

ABSOLUTE LAW, the true and proper law of nature, for it is immutable in the abstract or in principle; in theory, but not in application. For very often the object, the season, situation, and other circumstances, may vary its exercise and obligation.

Thus, neminem lædere is always a reasonable and natural duty in itself, universally true, the voice of nature, and founded upon the fairest principles. But a person can suppose himself in such a situation, where the voice of nature would direct the quite contrary; that is, if he be unjustly attacked; for there it would prescribe self-defence, which possibly may not be procured sine læsione alterius. Here the rule holds good in thesi, but not in hypothesi. The subject-matter becoming differently circumstanced, there is occasion for another rule of nature to come into the consideration. This is an exception, which confirms the general precept, not a contradiction, which defeats it. And it may be concluded that the everlasting principle de neminem lædendo still maintains its absolute verity; but in this particular case it must be interpreted or limited, quoad hoc, by a more important law of the same nature. Whence comes a rule of law-quotiescunque duo præcepta juris concurrunt, et utrumque servari non potest, toties standum fortiori.- Taylor's Civ. L. 143.

ABSOLUTE WARRANDICE, a warrant against all mankind.-Scotch Phrase.

ABSOLUTION, a dispensation; declaring a remission of sins; an acquittal by sentence of law.-Ayliffe.

ABSONIARE, to shun or avoid, used by the English-Saxons in the oath of fealty.-Somner. ABSQUE HOC (without this). The technical words of exception made use of in a traverse; as the defendant pleads that such a thing was done at B., &c., without this (absque hoc), that it was done at, &c.-1 Saund. 22. [See Stephen on Pleading, and Gould on Pleading.] ABSQUE IMPETITIONE VASTI. (Without impeachment of waste.) A reservation fre

ABSQUE TALI CAUSA (Lat.) (without such cause).

ABSTENTION, keeping an heir from possession; also, the tacit renunciation of a succession by an heir.-French Law.

ABSTINENCE, a forbearing from the unlawful taking of another's goods.

ABSTRACT, an abridgment or epitome; also a purloining.

ABSTRACT OF TITLE, an epitome of the evidences of ownership.

Such an abstract should show the soundness of a person's right to a given estate, together with any charges or circumstances in anywise affecting it. A perfect abstract discloses that the owner has both the legal and equitable estates at his own disposal perfectly unincumbered.

Upon a sale or mortgage, the solicitor of the owner usually prepares the abstract at his client's expense (except on sales to a railway company, when it must be borne by the company unless it be stipulated otherwise, 7 & 8 Vict. c. 18 s. 22), and delivers it to the solicitor of the proposed purchaser or mortgagee, who compares it with the original title-deeds, and makes requisitions (when necessary) in order to ascertain any important but undisclosed facts, to remedy any defects, or to dissipate any doubts or ambiguities. He then should lay all the papers before counsel, for his opinion as to the safety of the title, and the propriety of his client's embarking his capital in the transaction.

Should the abstract be long and voluminous, a list of the dates and nature of the deeds and muniments, chronologically arranged, with references to the pages of the abstract in which they are to be found, facilitates perusal.

The object of every abstract is to enable the purchaser or mortgagee, or his counsel, to judge of the evidence deducing, and of the incumbrances affecting, the title.

Every title involves the question of legal and equitable ownership; for as it is in vain that there is a good title at law, if that title be bad or defective in equity, so it is not sufficient that there is a good title to the legal estate or to the equitable estate if it be incumbered with judg ments, legacies, debts to the crown, or other charges, because in proportion to the extent of such incumbrances there must be a reduction in the actual value of the vendor's interest.

Every abstract then should describe whatever will tend to enable a purchaser or mortgagee, or Ihis counsel, to form an opinion of the precise state of the title at law and in equity, together with all chances of eviction or even of adverse claims.

All these points should therefore be kept in mind in preparing the abstract of title, and also in comparing the same with the original documents or muniments of the title.

An abstract showing a clear and good root of title for sixty years to a freehold estate is sufficient, although the owner have title-deeds re

ABUSE, a thing established by usage, though contrary to good order.

ABUSING CHILDREN. See RAVISHMENT. ABUT (fr. aboutir, Fr., to touch at the end), to border upon or approach.-Encyc. Lond. ABUTTALS. See ABBUTTALS.

ACCAPITARE, to pay relief to lords of manors. Capitali domino accapitare, i. e. to pay a relief, homage, or obedience to the chief lord on becoming his vassal.-Fleta, 1, 2, c. 50. ACCAPITUM, money paid by a vassal upon his admission to a feud; the relief due to the chief lord.--Encyc. Lond.

ACCEDAS AD CURIAM (Lat.). (That you go to the court.) An original writ to the sheriff, issued out of Chancery, where a man has received false judgment in a Hundred Court or Court Baron, or justice has been delayed. If a plaint in replevin be therein levied, it is removed by this writ, which is in every respect the same as the recordari facias loquelam, excepting that it directs the sheriff to go to the Lord's Court, and there cause the plaint to be recorded, and so to return it to the court above, being one of the Superior Courts of Common Law at Westminster.-F. N. B. 71 D.

ACCEDAS AD VICECOMITEM. (That ECOMIT you go to the sheriff) Where the sheriff has a writ called pone delivered to him, but suppresses it, this writ is sent to the coroner, commanding him to deliver a writ to the sheriff.-Reg. Orig. 83.

be accepted until the ship with the wheat arrives," or, Cannot accept till stores are paid for;" these are undertakings to accept when the ship with the wheat arrives, or the stores are paid for. Acceptance supra protest for honor (called in France, acceptation par intervention), is sometimes resorted to in the case of foreign bills of exchange, where the person upon whom the bill is drawn cannot be found or refuses to accept, some friend after the bill has been protested for non-acceptance accepts thus, "Accepted, supra protest, for the honor of Messrs. A. B." The bill must still be presented to the person on whom it was originally drawn, and after refusal and protest for non-payment, resort must be had to the person accepting for honor.— 6 & 7 Wm. IV. c. 58. Consult Story, Chitty, Byles or Bayley on Bills of Exchange. See Au BESOIN.

ACCEPTILATIO, the verbal extinction of a verbal contract, with a declaration that the debt has been paid when it has not, or the acceptance of something merely imaginary in satisfaction of a verbal contract.-Scotch Law; Smith's Dict. of Antiq.; Sand. Just. 493. See STIPULATION.

ACCEPTOR, or ACCEPTER, a person upon whom a bill of exchange is drawn; he is called a drawee before, and acceptor after, acceptance; he is the first and principal party liable to pay the amount of the bill, for hardly anything but payment or a release will discharge him.-2 Starkie, 228; 1 Camp. 35. [See Kent's Com. h. t.] ACCESS, approach, or the means of approach

ACCELERATION, the shortening of the time for the vesting in possession of an expecting, ant interest.

ACCEPTANCE, the taking and receiving of anything in good part, and as it were a tacit agreement to a preceding act, which might have been defeated or avoided if such acceptance had not been made.-Blount.

Acceptance, in commercial language, an engagement to pay a bill of exchange according to the tenor of such acceptance, which may be either absolute or conditional. In the case of English and Irish bills of exchange, the acceptance might have been in writing on the bill, but Scotch and foreign bills of exchange might have been accepted verbally, or by letter or other collateral memorandum, 1 & 2 Geo. IV. c. 78. But by 19 & 20 Vict. c. 97. s. 6, no acceptance of any bill of exchange, whether inland or foreign, made after the 31st day of December, 1856, shall be sufficient to bind or charge any person, unless the same be in writing on such bill, or, if there be more than one part of such bill, on one of the said parts, and signed by the acceptor, or some person duly authorized by him. An absolute acceptance is either general or qualified, and is usually written across the face of the bill of exchange thus: "Accepted, payable at Messrs. — Bankers, London;" if it is to be qualified, the words "and not otherwise or elsewhere" are added, and then follows the signature of the person accepting. If the acceptance be qualified, non-presentation of the bill of exchange at the specified place, and in proper time, would exonerate the person who accepted it, and all the other parties, but the person who accepted it would not be exonerated if the acceptance were general. It may be conditional, as, "It will not

ACCESSARY, or ACCESSORY (particeps criminis quasi accedens ad culpam, Lat., as though assenting to the offence). He who is not a chief actor in a felony, nor present at its perpetration, but yet is in some way concerned therein, either before or after the fact committed. An accessary before the fact is one who, being absent at the time of the commission of the felony, yet procures, counsels, or commands another to commit a crime. Absence is necessary to make him an accessary, for if he be present, he becomes a principal. An accessary after the fact may be, where a person knowing a felony to have been committed, receives, relieves, comforts or assists the felon. To make an accessary ex post facto, it is in the first place requisite that he knows of the felony having been committed; in the next place, he must receive, relieve, comfort, or assist the felon, and generally, any assistance whatever given to hinder the apprehension, trial, or punishment of the felon, makes the assister an accessary. In treason and misdemeanors, there are no accessaries, either before or after the offence, every person implicated being principals. In manslaughter there cannot be an accessary before the fact. As to the trial and punishment of accessaries, see 11 & 12 Vict. c. 46, and 14 & 15 Vict. c. 100, s. 15. [See Wharton's Cr. Law, h. t.]

ACCESSION (fr. accedo, Lat.), addition, arriving at, the commencement of a sovereign's reign. Also the absolute or conditional acceptance by a nation of a treaty already concluded between other countries.

ACCESSION, property by. The doctrine of property arising from accession is grounded on

the right of occupancy, and derived from the Ro- | covered in Equity, which now would be without man law; thus if any given corporeal substance difficulty recovered at Law. I cannot hold that receive an accession, either by natural or artifi- the jurisdiction is gone merely because the Courts cial means, as by the growth of vegetables, the of Law have exercised an equitable jurisdiction, pregnancy of animals, the embroidering of cloth, more especially in the action for money had and or the conversion of wood or metal into utensils, received." The inquiry then to be made as to the original owner of the thing was entitled by the adequacy of the legal remedy is whether the his right of possession to the property of it under Common Law would have granted suitable relief its improved state; but if the thing itself, by originally, for it may have acquired subsequently such operation, was changed into a different spe- a concurrent, but certainly not an exclusive, recies, as by making wine, oil, or bread out of medial authority. another's grapes, olives, or wheat, it belonged to the new operator, who only made a satisfaction to the former proprietor for the materials so converted. The brood of tame and domestic animals belongs to the owner of the dam or mother, the English law agreeing with the civil, that partus sequitur ventrem (the offspring follows the mother); and in accordance with the Roman law principle, si equam meam equus tuus prægnantem fecerit non est tuum sed meum quod natum est (if your horse get my mare with foal, the foal is not your property but mine). But this maxim is for the most part disallowed in the human species.-Bracton, 1. 2, c. 2, s. 3; Puff. De Jur. Nat. et G. 1. 4, c. 7. The rule of the Roman law was expressed thus: Accessio cedit princi-judge to order that the loss of such instrument pali. Commentators have used the word accessio not only for increase itself but also for the mode in which the increase becomes one's property.-Sand. Just. 185; Dig. 34, l. 2, c. 19, s.

13.

Accessorium non ducit, sed sequitur suum principale. Co. Litt. 152. (That which is accessary does not lead but follows its principal.) Accessorius sequitur naturam sui principalis. 3 Inst. 139. (An accessary follows the nature of its principal.)

ACCESSARY CONTRACT, an agreement to assure the performance of a prior agreement, either by the same parties or by others.

ACCIDENT, an extraordinary incident; something not expected; also a head of Equitable jurisdiction, concurrent with that of the Courts of Law.

To illustrate this position, take the case of a lost bond or a negotiable security. Equity still retains, upon an affidavit of the loss, the jurisdiction of enforcing a compulsive discovery and payment, besides decreeing an indemnity, protecting the defendant from being liable to any after-demand in respect of such lost instrument, although profert of a bond or other deed has been abolished at Common Law (15 & 16 Vict. c. 76, s. 55), which will now give adequate relief if a proper bond of indemnity be offered; and although the Common Law Procedure Act, 1854 (s. 87) enacts that in case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a

shall not be set up, provided that an indemnity is not given to the satisfaction of the court or a judge, or a Master, against the claims of any other person upon such negotiable instrument.

Where title-deeds are lost, the defect occasioned by such an accident will be supplied: thus a mortgage-deed being stolen, the mortga gor or purchaser of the property will be compelled to pay the loan or consideration-money upon the mortgagee's reconveyance, and indemnity against such loss. Where, after a contract for sale of an estate, before the title is accepted, the title deeds be destroyed by fire, Equity will compel the specific performance of the contract, provided indeed the vendor can furnish the purchaser with the means of showing what were the contents of the destroyed deeds, and of proving that such deeds were duly executed and delivered.

The meaning to be attached to the word "accident," in relation to equitable relief, is any un- A purchaser being deemed the equitable foreseen and undesigned event, productive of dis-owner of the purchased estate from the signing advantage. Against such an accident, Equity of the contract for sale, he will be compelled to will relieve, should the Common Law remedy be complete the purchase, although the property be inadequate, and the suitor be entitled to redress. destroyed during the negotiation; but a bidder It is material to remark, that Courts of Law at a sale under the authority of the Court of now entertain cases of accident, which in times Chancery not being deemed the purchaser until past they would not have recognized; and that the certificate that he is the highest bidder has new statutes are constantly conferring upon them been confirmed, he is not liable to any loss by remedial equitable powers. Now it is a funda- fire or otherwise which may happen to the promental rule, that if originally the jurisdiction perty in the mean time, he would however have have property attached to Equity, on account of to pay the purchase-money if the estate were the defective remedy at Law, such jurisdiction merely a life-interest, the cestui que vie dying is not ousted by reason of the Courts of Law immediately after the acceptance of his bid. affording relief, which they formerly withheld, since that would be to place the powers of the Court of Chancery at the caprice of the Common Law tribunals. 66 Upon what principle," observed Lord Eldon (Kemp v. Pryor, 7 Ves. 249, 1802), can it be said the ancient jurisdiction of this court is destroyed because Courts of Law now, very properly, perhaps, exercise that jurisdiction which they did not exercise forty years ago? Demands have been frequently re

It is upon the principle of relieving against the prejudicial consequences of accident by loss of deeds, that grants are often supplied or presumed: thus the payment of rent for twenty years presumes a grant; the inclosure of a common for thirty years presumes it to be properly done; and when a person has been in possession of property for a great length of time without interruption, Equity will not allow such possession to be disturbed.