ADJUSTMENT-continued. lading, in which case the invoice price of the goods is taken. But in either case the goods sacrificed as well as the goods saved are liable to contribute towards making good the loss, it being obvious that the owners of the goods sacrificed are not to be on a better footing than the owners of the goods saved. Sm. M. Law, 295. The remedy for enforcing contribution towards a general average is by action at law or suit in equity, but not (as a rule) in the Court of Admiralty. When the amount of the indemnity for damage sustained in the course of a voyage is ascertained, and the proportions thereof which each underwriter of the policy is liable to pay is settled, it is usual for the underwriter to indorse on the policy, “adjusted this loss at so much per cent.," or some words to the same effect, and this is called an adjustment (1 Park on Ins. 192). The adjustment when so made is prima facie evidence both of the underwriter's liability on the policy, and also of the amount due; and the onus of proof is therefore thrown on the underwriter if he alleges that the adjustment was obtained through fraud, or was made under a mistake of fact, or even (it seems) of law. It is the common practice after an adjustment for the broker of the underwriter to give to the assured his (the broker's) own note, called a credit note, for the amount of the loss payable in a month; but the underwriter still in such a case remains liable, as a surety for the broker, in case the latter should become insolvent during the month. See title GENERAL AVERAGE. ADMEASUREMENT. A writ which lay against those who usurped more than their share. It used to lie in two cases, first, for admeasurement of dower, and secondly, for admeasurement of pasture. In the former case, it was brought by the heir against the widow of a deceased, who withheld from such heir, or his guardian, more land in respect of her dower than she was justly entitled to, in which case the heir was to be restored to the overplus. In the second case, it lay between those who had common of pasture appendant to their freehold, or common by vicinage, when any one or more surcharged the common with more cattle than he or they ought to have thereon (F. N. B. 125, 148; Les Termes de la Ley). Nevertheless, the writ for admeasurement of dower did not lie where the excess in the assignment of dower was attributable to the act of the heir himself, who made the assignment being at the time of full age; unless, indeed, the excess had arisen from the discovery of mines which had ADMEASUREMENT-continuel. been overlooked at the time of the assignment. At the present day, this writ of admeasurement is practically extinct as a form of process in both of the two cases in which it was formerly used; and now an action on the case is the common mode of proceeding by one commoner against another for a surcharging of the common, and a suit in Equity is the course to be adopted by the heirs against the widow for the purpose of correcting an excess in the assignment of dower (Hoby v. Hoby, 1 Vern. 218). There is no question, however, but that the writ of admeasurement, never having been expressly abolished, is still available for either of the two purposes before-mentioned, although the wholesale abolition of real and mixed actions which was effected by the Acts 3 & 4 Will. 4, c. 27, s. 36, and 23 & 24 Vict. c. 126, s. 26, may be thought by some to have extended to the writ of admeasurement also. ADMINICULUM. An aid or support to something else, whether a right or the evidence of one. It is principally used to designate evidence adduced in aid or support of other evidence, which without it is imperfect. ADMINISTRATION. The discharging of some duty or office, usually that of getting in and distributing the assets of a deceased person. See titles ADMINISTRATION OF ASSETS; ADMINISTRATION, GRANT OF. The administration of the personal estate of a deceased intestate belonged anciently to the sovereign as parens patriæ, or to certain lords of manors under a general grant from him, and afterwards to the ordinary who by the Statute of Westminster 2 (13 Edw. 1.) c. 19, was required to pay the debts of the deceased, and who, at a still later period by the stat. 31 Edw. 3, st. 1, c. 11, was required to depute the administration to the next of kin of the intestate. Thus stood administration until the Court of Probate Act (1857), 20 & 21 Vict. c. 77, whereby the power of granting administration was transferred to that Court from the ecclesiastics. In the grant of letters of administration, there are certain relations of the deceased who are considered to have a preferable right. Thus, the husband has an absolute right to administer to his wife, and the widow has a moral right (which the Court generally recognises) to adminster to her husband. When there is no husband or widow, the right to administer belongs to the next of kin according to ADMINISTRATION, GRANT OF-con tinued. their proximity in relationship, the right to the beneficial interest under the Statute of Distributions generally regulating the right to the grant of administration; and in the case of there being several next of kin in equal proximity, he whom the majority shall elect in general administers. A creditor may also administer; and the Court may even appoint to the administration a person entirely without interest, in which latter case the grant is merely ad colligendum. There are various species of administration, namely: (1.) A general administration,—when the deceased is wholly intestate; (2.) Administration de bonis non,-as upon the death of a sole executor after probate intestate, or upon the death of a sole administrator; (3.) Administration durante minoritate, -as where the executor appointed by the will being a sole executor is a minor; (4.) Administration pendente lite,-as where any suit touching the validity of the will is pending, and generally whereever the Court of Chancery would appoint a receiver of the estate; (5.) Administration durante absentia,as where a sole executor is out of the kingdom, and either (a) by the Common Law, before probate, or (b) by stat. 38 Geo. 3, c. 87, after probate; and (6.) Administration cum testamento annexo,--as where either a sole executor dies without having proved the will, or a sole or surviving executor dies intestate. There are also various other administrations of a limited or temporary kind, e.g. until the will can be proved, or until the executor attains a certain age other than majority, and so forth. Under the stat. 20 & 21 Vict. c. 77, s. 46, the district registrars of the Court of Probate may grant probate; and under 21 & 22 Vict. c. 95, s. 10, the County Court may make the grant. The duty on administrations is regulated by the stats. 55 Geo. 3, c. 184, 23 Vict. c. 15, and 27 & 28 Vict. c. 56; and the stamp which is payable upon the bond commonly given by an administrator is now regulated by the Stamp Act, 1870 (33 & 34 Vict. c. 97). arrears of rent-service; (6.) Voluntary bonds in hands of volunteers; Previously to the stat. 32 & 33 Vict. c. 46, specialty contract debts and arrears of rent-service were entitled to priority over simple contract debts and unregistered judgments in the distribution of what were termed legal assets, but were never so entitled in the distribution of equitable assets; and the effect of the stat. 32 & 33 Vict. c. 46, appears to be to abolish altogether the distinction between legal and equitable assets in administrations. See titles LEGAL ASSETS; EQUITABLE ASSETS; and MARSHALLING OF Assets. ADMIRALTY, COURT OF. For the origin of this Court, see title COURTS OF JUSTICE. The general jurisdiction of the supreme Court is regulated at the present day by the stats. 24 & 25 Vict. c. 10, ADMIRALTY, COURT OF-continued. and 26 Vict. c. 24; and jurisdiction in Admiralty causes was conferred upon the County Court by the stat. 31 & 32 Vict. c. 71. The Court of Admiralty was thrown open to practitioners by the stat. 22 & 23 Vict. c. 6; but the modes of practice, together with the effects of a judgment in that Court, are of a peculiar nature, partaking largely of the rules of the civil law; thus an objection to the jurisdiction of the Court may be taken at any stage of the proceedings (The Mary Ann, 34 L. J. (Adm.) 73), and the party is not prejudiced in taking that objection by appearing, (The Eleanor, 32 L. J. (Adm.) 19). The judgments of the Court are chiefly in rem, and bind all the world as well as the parties to the action. See titles COLLISION; SEAMEN; SAL- ADMISSIBILITY OF EVIDENCE. This phrase denotes the quality of matters adduced in evidence, according to which they are or not receivable, i.e., admissible as evidence, a question for the judge or Court to determine. It is commonly opposed to the weight of the evidence once it has been admitted, the weight being for the jury or for the judge sitting as a jury. See title EVIDENCE. ADMISSION. This word denotes the ordinary's signification of his approval of the clerk presentee of a living; it sometimes includes both approval and institution. Co. Litt. 344 a. Under See also title ATTORNEY. ADMISSION OF DOCUMENTS. the C. L. P. Act, 1852, s. 117, either party may call on the other by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the costs of proving the document are visited on the party refusing (without just reason), no matter what shall be the result of the action. See also title NOTICE TO ADMIT, ADMISSIONS. In the law of evidence these are either by word of mouth (Neale v. Jakle, 2 C. & K. 709), or by conduct (Pickard v. Sears, 6 A. & E. 469), or by the assumption of a particular office or character (Peacock v. Harris, 10 East, 104), or by writing under hand, unless stated to be "without prejudice" (Paddock v. Forester, 3 Scott, 734), or by deed; as to all which see title ESTOPPEL. But the word "admissions" is more commonly used to denote the mutual concessions which the parties to an action or suit make in the course of their pleadings, and the effect of which is to narrow the area ADMITTANCE: See title COPYHOLD. ADOPTION. In French law, is permitted to persons of either sex, aged fifty years, and being at the least fifteen years older than the persons, whom they adopt; which latter persons being of full age, must be either, (1), persons to whom the adoptive parent has rendered assistance during minority and for six years at least without interruption; or, (2), persons to whom the adoptive parent is indebted for his rescue from fire, shipwreck, or battle. This adoption leaves intact the rights of the child in respect of his natural parents, being in fact the adoption of Roman law, in time of Justinian. AD QUOD DAMNUM. A writ so called, which ought to have been issued before the King granted certain liberties, as a fair, market &c., which might happen to be prejudicial to others. The writ directs the sheriff to inquire what damage it might do for the King to grant such fair or market. It was also formerly in use for obtaining a right to alter or divert the course of an old road, or to make a new one (F. N. B. 221, et seq.; Les Termes de la Ley); but it is the opinion of the editor of Williams' Saunders' Rep. vol. ii. ed, of 1871, p. 484, n. (d), that this latter use of the writ has been virtually done away with. AD TERMINUM QUI PRÆTERIIT. A writ of entry that lay for the lessor and his heirs when a lease had been made of lands or tenements for the term of life or years, and after the term was expired the lands were withheld from the lessor by the tenant or other person possessing the same. Cunningham, F. N. B. 201. This writ was abolished by the Act 3 & 4 Will. 4, c. 27, s. 36. ADULTERATION. This phrase is commonly applied to the offence of mixing up with food or drink intended to be sold, other matters of an inferior quality, and generally of a more or less deleterious character. The principal statute upon the subject is the 35 & 36 Vict. c. 74, which incorporates the 23 & 24 Vict. c. 84, and also (The Pharmacy Act, 1868) 31 & 32 Vict. c. 121. ADULTERY OR ADVOWTRY (Adulterium). The sin of incontinence by married persons. The crime of adultery is sometimes distinguished into single and double adultery. Single adultery is the crime of illicit intercourse between two persons one only of whom is married. Double adultery is the crime of illicit intercourse between two persons both of whom are married (Cowel). This offence is of a tortious and not of a criminal nature (Mordaunt v. Moncreiff, 1874). For adultery on the part of a wife, or for adultery combined with desertion or cruelty on the part of a husband the Court of Divorce will grant a dissolution of the marriage under the stat. 20 & 21 Vict. c. 87. ADVANCEMENT. This is a well-known term, both in conveyancing and in equity law. In marriage settlements, a power of advancement is commonly given to the trustees, that is to say, a power in them to raise some portion (not as a rule to exceed one half part) of the capital moneys to which each child of the marriage is either actually or contingently entitled under the settlement for his or her advancement in the world; that is to say, for his or her apprenticeship in a profession or trade, or for his or her bringing out in society, or (if intended for the church) for his educacation at one of the universities of Oxford or Cambridge. In Equity, the term has a similar meaning, but a somewhat different application. Thus, it being a rule of Courts of Equity, that where a person purchases an estate or stock, and takes the conveyance or assignment thereof in the name of a third person, such third person is intended to be, and is construed as being, a trustee only for the purchaser,-An exception to that rule is admitted in the case of such third person being a person for whom the purchaser was under an obligation to provide, and for whom he has not as yet made a provision, and the conveyance or assignment which is made in this latter case is taken to be for the benefit of the grantee or assignee in discharge of the obligation of the purchaser. The presumption of advancement is raised in favour of the following persons :— (1.) A legitimate child (Sidmouth v. Sid- (5.) A wife's nephew (Currant v. Jago, 1 Coll. Ch. Ca. 261); But the presumption has not hitherto been extended to the following cases :— ADVANCEMENT -continued. (1) An illegitimate grandchild (Tucker v. Burrow, 2 H. & M. 515); (2.) A kept woman. Rider v. Kidder, 10 Ves. 360. In all these cases the presumption of advancement arises or not from a regard purely to the relationship of the parties; the presumption may be rebutted or corroborated by extrinsic or parol evidence. A AD VENTREM INSPICIENDUM. writ which lies for the heir presumptive to an estate, to examine the woman who says she is with child, and who is suspected to feign being so, with the view of producing a supposititious heir to the estate. Cowel; Reg. Orig. 237. ADVERSE CLAIM. Where the sheriff in levying an execution upon the goods of a debtor, finds that some third person claims the goods as his own, he may have an interpleader summons requiring the execution creditor and such third person to settle the right to the goods between them; so also, where the seller of goods attempts to stop them in transitu, and the buyer insists upon having the goods delivered to him, the wharfinger or other person in custody of the goods may have an interplealer summons requiring the two parties to litigate between themselves their adverse claims. See title INTERPLEADER. ADVERSE POSSESSION. The possession of the tenant for life under a settlement is consistent with the right of the remainderman; and such tenant may not alter the quality of his possession so as to make the same adverse to the remainderman (Nemo potest mutare causam possessionis sua). On the other hand, the possession of a mortgagee is adverse to the title of the mortgagor; and precisely because it is such, it will mature after twenty years' duration and non-acknowledgment into an absolute and independent legal right. See title LIMITATIONS, STATUTE OF. ADVERSE WITNESS. This is defined to be a witness whose mind discloses a bias hostile to the party examining him; it is not a witness whose evidence being honestly given, is adverse to the case of the examinant. See titles EVIDENCE; WITNESSES. ADVERTISEMENTS. Under the stat. 24 & 25 Vict. c. 96, s. 102, whosoever shall publicly advertise a reward for the return of any property whatsoever which shall have been lost or stolen, suggesting that no questions will be asked, or offering to repay to any pawnbroker or other the amount advanced on the security of the ADVERTISEMENTS-continued. property, forfeits the sum of £50 for every such offence, to be recovered by any informant thereof. And the printer and publisher are also liable, but in their case the action is to be commenced within six months, and only after obtaining the sanction of the Attorney-General or SolicitorGeneral to the institution of the prosecution. ADVOCATES. In the Roman law, and also in those English Courts which have largely moulded themselves upon that law, the persons who undertake and have the liberty to plead the causes of others are called advocates. Their duties are analogous to those of barristers, and since the recent Acts, which have thrown open to all practitioners the practice in all the various Courts, the term "advocate" is used interchangeably with, although less frequently than, that of barrister. In ecclesiastical law, those persons whom we now call patrons of churches, and who reserved to themselves and their heirs a liberty to present to the living on any avoidance, were also called advocati ecclesiæ, i.e., defenders of the church (Spelman's Advo catus). So that the original meaning of advowson was that of a fortress or defence of the church. Patrons of churches were also sometimes called advowees or avowees, and the sovereign was advowee paramount. ADVOWEE: See title ADVOCATE. ADVOWSON (advocatio). The right of presentation to a church or benefice; and he who has the right to present is called the patron or patronus, sometimes also advocatus, and sometimes defensor. Advowsons are of two kinds: (1) Appendant, and (2) In gross. An advowson appendant means an advowson which is, and which from the first has been and ever since continued to be, appended or annexed to a manor, so that, if the manor were granted to any one, the advowson would go with it as incident to the estate. An advowson in gross signifies an advowson that belongs to a person, but is not annexed to a manor; so that an advowson appendant may be made an advowson in gross by severing it by deed of grant from the manor to which it was appendant. Advowsons are also either (1) presentative, (2) collative, or (3) donative. An advowson is termed presentative when the patron has the right of presentation to the bishop or ordinary, and also to require of him to institute his clerk, if he finds him qualified. An advowson is termed collative when the bishop and patron happen to be one and the same person, so that the bishop, not being able to present to himself, performs by one act (which is termed collation) all that is ADVOWSON-continued. usually done by the separate acts of presentation and institution. An advowson is termed donative when the king or a subject founds a church or chapel, and does by a single donation in writing place the clerk in possession, without presentation, institution, or induction (Cowel; Co. Litt. 17 b. & 119 b.) Again, advowsons are either advowsons of rectories or advowsons of vicarages; the former having been created in very early times, almost contemporaneously with the creation of the manor itself; the latter having grown up more gradually, and as a consequence of the monasteries appropriating to themselves the tithes of the churches, and delegating to a locum tenens (vicar) the duties of the rector. The stipend of the vicar, which was at first precarious and inadequate, was settled at an adequate amount, and also secured to him, by the Acts 15 Ric. 2, c. 6, and 4 Hen. 4, c. 12; whence at the present day a vicarage is in general as valuable a living as a rectory is. An advowson, being the right of presentation in perpetuum, as often as a vacancy arises, is considered real estate, while a right of presenting once only, or a single presentation, is considered personal property only. ESTIMATIO CAPITIS. This phrase denotes the value or price set upon an individual. In Anglo-Saxon times, when money penalties were the universal punishments of offences, King Athelstan, in a parliament held at Exeter, fixed a tariff of mulets to be paid pro æstimatione capitis, i.e., according to the rank of the party wounded or slain. A like tariff existed in Roman law, "nam secundum gradum dignitatis vitæque honestatem crescit aut minuitur æstimatio injuriæ." Just. Inst. iv. 4, 7. ÆTATE PROBANDA. A writ that used formerly to be directed to the sheriff of a county, commanding him to summon twelve men, as well knights as other honest and lawful men, to be before certain commissioners previously appointed to inquire whether or not the king's tenant, holding in chief by chivalry, was of full age to receive his lands into his own hands. The commission by which the above commissioners were appointed was thence called "The commission pro ætate probanda." Cowel; 4 Co. Dig. 139. AFFIANCE. To agree to marry, and generally to pledge one's troth or trust. AFFIDATIO. A swearing of the oath of fidelity or of fealty to one's lord, under whose protection the quasi-vassal has voluntarily come. C |