ACTOR, practice. 1. A plaintiff or complainant. 2. He on whom the
burden of proof lies. In actions of replevin both parties are said to be actors.
The proctor or advocate in the courts of the civil law, was called actor.
ACTS OF COURT. In courts of admiralty, by this phrase is understood
legal memoranda of the nature of pleas. For example, the English court of
admiralty disregards all tenders, except those formally made by acts of court.
Abbott on Ship. pi. 3, c. 10, 2, p. 403; 4 Rob. R. 103; 1 Hagg. R. 157; Dunl.
Adm. Pr. 104, 6.
ACTS OF SEDERUNT. In the laws of Scotland, are ordinances for
regulating the forms of proceeding, before the court of session, in the
administration of justice, made by the judges, who have a delegated power from
the legislature for that purpose. Ersk. Pr. L. Scot. B. 1, t. 1, s. 14.
ACTUAL. Real; actual.
2. Actual notice. One which has been expressly given by which knowledge of a
fact hos been brought home to a party directly ; it is opposed to constructive
3. Actual admissions. Those which are expressly made; they are plenary or
partial. 4 Bouv. Inst. n. 4405.
4. An actual escape takes place when a prisoner in fact gets out of prison,
and unlawfull regains his liberty. Vide Escape.
ACTUARIUS. An ancient name or appellation of a notary.
ACTUARY. A clerk in some corporations vested with various powers. In
the ecclesiastical law he is a clerk who registers the acts and constitutions of
ACTUS. A foot way and horse way. Vide Way.
AD DAMNUM, pleading. To the damage. In all personal and mixed actions,
with the exception of actions of debt qui tam, where the plaintiff has sustained
no damages, the declaration concludes ad damnum. Archb. Civ. Pl. 169.
AD DIEM. At the day, as a plea of payment ad diem, on the day when the
money became due. See Solvit ad diem, and Com. Dig. Pleader, 2 W. 29.
AD INQUIRENDUM, practice. A judicial writ, commanding inquiry to be
made of any thing relating to a cause depending in court.
AD INTERIM. In the mean time. An officer is sometimes appointed ad
interim, when the principal officer is absent, or for some cause incapable of
acting for the time. AD LARGUM. At large; as, title at large, assize at large.
See Dane's Abr. ch. 144,
AD QUEM. A Latin expression which signifies to which, in the
computation of time or distance, as the day ad quem. The last day of the term,
is always computed. See A quo.
QUOD DAMNUM, Eng. law. The name of a writ issuing out of and
returnable into chancery, directed to the sheriff, commanding him to inquire by
a jury 'What damage it will be to the king, or any other, to grant a liberty,
fair, market, highway, or the like.
AD SECTAM. At the suit of, commonly abbreviated ads. It isusual in
filing pleas, and other papers, for a defendant, instead of putting the name of
the plaintiff first, as Peter v. Paul to put his own first, and instead of v. to
put ads., as Paul ads. Peter.
AD TERMINUM QUI PRETERIIT. The name of a writof entry which lay for
the lessor or his heirs, when a lease had been made of lands or tenements, for
term of life or years, and, after the term had expired, the lands were withheld
from the lessor by the tenant, or other person possessing the same. F. N. B.
201. The remedy now applied for holdiug over (q, v.) is by ejectment, or under
local regulations, by summary prooceedings.
AD TUNC ET IBIDEM. That part of an indictment, where it is stated that
the object-matter of the crime or offence " then and there being found," is
technically so called. N. C. Term R. 93; Bac. Ab. Indictment, G 4.
AD VITAM AUT CULPAM. An office to be so held as to determine only by
the death or delinquency of the possessor; in other words it is held quam diu se
AD VALOREM. According to the value. This Latin term is used in
commerce in reference to certain duties, called ad valorem duties, which are
levied on commodities at certain rates per centum on their value. See Duties;
Imposts; Act of Cong. of March 2, 1799, s. 61 of March 1, 1823 s. 5.
ADDITION. Whatever is added to a man's name by way of title, as
additions of estate, mystery, or place. 10 Went. Plead. 871; Salk. 6; 2 Lord
Ray. 988; :1 WUS. 244, 5.
2. Additions of an estate or quality are esquire, gentleman, and the like;
these titles can however be claimed by none, and may be assumed by any one. In
Nash v. Battershy (2 Lord Ray. 986 6 Mod. 80,) the plaintiff declared with the
addition of gentleman. The defendant pleaded in abatement that the plaintiff was
no gentleman. The plaintiff demurred, and it was held ill; for, said the court,
it amounts to a confession that the plaintiff is no gentleman, and then not the
person named in the count. He should have replied that he is a gentleman.
3. Additions of mystery are such as scrivener, painter, printer,
4. Additions of places are descriptions by the place of residence, as A. B.
of Philadelpliia and thelike. See Bac. Ab. b. t.; Doct. PI. 71; 2 Vin. Abr. 77;
1 Lilly's Reg. 39; 1 Metc. R. 151.
5. At common law there was no need of addition in any case, 2 Lord Ray. 988;
it was, required only by Stat. 1 H. 5. c. 5, in cases where process of outlawry
lies. In all other cases it is only a description of the person, and common
reputation is sufficient. 2 Lord Ray. 849. No addition is necessary in a Homine
Replegiando. 2 Lord Ray. 987; Salk. 5; 1 Wils. 244, 6; 6 Rep. 67.
ADDITIONALES, in contracts. Additional terms or propositions to be
added to a former agreement.
ADDRESS, chan. plead. That part of a bill which contains the
appropriate and technical description of the court where the plaintiff seeks his
remedy. Coop. Eq. PI. 8; Bart. Suit in Eq. 20Story, Eq. PI. 26 Van Hey. Eq.
ADDRESS, legislation. In Pennsylvania it is a resolution of both,
branches of the legislature, two-thirds of each house concurring, requesting the
governor to remove a judge from office. The constitution of that state, art. 5,
s. 2, directs that " for any reasonable cause, which shall not be, ground for
impeachment, the governor may remove any of them [the judges], on the address of
two-third's of each branch of the legislature." The mode of removal by address
is unknown to the constitution of the, United States, but it is recognized in
several of the states. In some of the state constitutions the language is
imperative; the governor when thus addressed shall remove; in others it is left
to his discretion, he may remove. The relative proportion of each house that
must join in the address, varies also in different states. In some a bare
majority is sufficient; in others, two-thirds are requisite; and in others
three-fourths. 1 Journ. of Law, 154.
ADEMPTION, wills. A taking away or revocation of a legacy, by the
2. It is either express or implied. It is the former when revoked in express
terms by a codicil or later will; it is implied when by the acts of the testator
it is manifestly his intention to revoke it; for example, when a specific legacy
of, a chattel is made, and afterwards the testator sells it; or if a father
makes provision for a child by his will and afterwards gives to such child, if a
daughter, a portion in marriage; or, if a son, a sum of money to establish him
in life, provided such portion or sum of money be equal to or greater than the
legacy. 2 Fonbl. 368 et, seq. Toll. Ex. 320; 1 Vern. R. by Raithby, 85 n. and
the cases there cited. 1 Roper, Leg. 237, 256, for, the distinction between
specific and general legacies.
ADHERING. Cleaving to, or joining; as, adhering to the enemies of the
2. The constitution of the United States, art. 3, s 3, defines treason
against the United States, to consist only in levying war against them or in
adhering to their enemies, giving them aid and comfort.
3. The fact that a citizen is cruising in an enemy's ship, with a design to
capture or destroy American ships, would be an adhering to the enemies of the
United States. 4 State Tr. 328 ; Salk. 634; 2 Gilb. Ev. by Lofft, 798.
4. If war be actually levied, that is, a body of men be actually assembled
for the purpose of effecting by force a treasonable enterprise, all those who
perform any part, however minute, or however remote from the scene of action,
and who are leagued in the general conspiracy are to be considered as traitors.
4 Cranch. 126.
ADJOURNMENT. The dismissal by some court, legislative assembly, or
properly authorized officer, of the business before them, either finally, which
is called an adjournment sine die, without day; or, to meet again at another
time appointed, which is called a temporary adjournment. 2. The constitution of
the United States, art. 1, s. 5, 4, directs that "neither house, during the
session of congress, shall, without the consent of the other, adjourn for more
than three days, nor to any other place, that that in which the two houses shall
be sitting,." Vide Com. Dig. h. t.; Vin. Ab. h. t.; Dict. de Jur. h. t.
ADJOURNMENT-DAY. In English practice, is a day so called from its
being a further day appointed by the judges at the regular sittings, to try
causes at nisi prius.
ADJOURNMENT-DAY IN ERROR. In the English courts, is a day appointed
some days before the end of the term, at which matters left undone on the
affirmance day are finished. 2 Tidd, 1224.
ADJUDICATION, in practice. The giving or pronouncing a judgment in a
cause; a judgment.
ADJUDICATIONS, Scotch law. Certain proceedings against debtors, by way
of actions, before the court of sessions and are of two kinds, special and
2. – 1. By statute 1672, c. 19, such part only of the debtor's lands is to be
adjudged to the principal sum and interest of the debt, with the compositions
due to the superior, and the expenses of infeoffment, and a fifth part more, in
respect the creditor is obliged to take landsfor his money but without penalties
or sheriff fees. The debtor must deliver to the creditor a valid right to the
lands to be adjudged, or transumpts thereof, renounce the possession in his
favor, and ratify the decree of adjudication: and the law considers the rent of
the lands as precisely commensurate to the interest of the debt. In this, which
is called a special adjudication, the time allowed the debtor to redeem the
lands adjudged, (called the legal reversion or the legal,) is declared to be
3. – 2. Where the debtor does not produce a sufficient right to the lands, or
is not willing to renounce the possession and ratify the decree, the statute
makes it lawful for the creditor to adjudge all right belonging to the debtor,
in the same manner, and under the same reversion of ten years. In this kind,
which is called a general adjudication, the creditor must limit his claim to the
principal sum, interest and penalty, without demanding a fifth part more. See
Act 1 Feb. 1684; Ersk. Pr. L. Scot,. (????) s. 15, 16. See Diligences.
ADJUNCTION. in civil law. Takes place when the thing belonging to one
person is attached or united to that which belongs to another, whether this
unionis caused by inclusion, as if one man's diamond be encased in another's
ring; by soldering, as if one's guard be soldered on another's sword; by sewing,
as by employing the silk of one to make the coat of another; by construction; as
by building on another's land; by writing, as when one writes on another's
parchment; or by painting, when one paints a picture on another's canvas.
2. In these cases, as a general rule, the accessory follows the principal;
hence these things which are attached to the things of another become the
property of the latter. The only exception which the civilians made was in the
case of a picture, which although an accession, drew to itself the canvas, on
account of the importance which was attached to it. Inst. lib. 2, t. 1, 34; Dig.
lib. 41, t. 1, 1. 9, 2. See Accession, and 2 Bl. Comm. 404; Bro. Ab. Propertie;
Com. Dig. Pleader, M. 28; Bac. Abr. Trespass, E 2. 1 Bouv. Inst. n. 499.
ADJUNCTS, English law. Additional judges appointed to determine causes
in the High Court of Delegates, when the former judges cannot decide in
consequence of disagreement, or because one of the law judges of the court was
not one of the majority. Shelf. on Lun. 310.
ADJURATION. The act by which one person solemnly charges another to
tell or swear to the truth. Wolff. Inst. 374.
ADJUSTMENT, maritime law. The adjustment of a loss is the settlling
and ascertaining the amount of the indemnity which the insured after all proper
allowances and deductions have been made, is entitled to receive, and the
proportion of this, which each underwriter is liable to pay, under the policy
Marsh. Ins. B. 1, c. 14, p. 617 or it is a written admission of the amounts of
the loss as settled between the parties to a policy of insurance. 3 Stark. Ev.
2. In adjusting a loss, the first thing to be considered is, how the quantity
of damages for which the underwriters are liable, shall be ascertained. When a
loss is a total loss, and the iusured decides to abandon, he must give notice of
this to the underwriters iii a reasonable time, otherwise he will waive his
right to abandon, and must be content to claim only for a partial loss. Marsh.
Ins. B. 1, .c. 3, s. 2; 15 East, 559; 1 T. R. 608; 9 East, 283; 13 East 304; 6
Taunt. 383. When the loss is admitted to be total, and the policy is a valued
one, the insured is entitled to receive the whole sum insured, subject to such
deductions as may have been agreed by the policy to be made in case of loss.
3. The quantity of damages being known, the next point to be settled, is, by
what rule this shall be estimated. The price of a thing does not afford a just
criterion to ascertain its true value. It may have been bought very dear or very
cheap. The circumstances of time and place cause a continual variation in the
price of things. For this reason, in cases of general average, the things saved
contribute not according to prune cost, but according to the price for which
they may be sold at the time of settling the average. Marsh. Ins. B. 1, c. 14,
s. 2, p. 621; Laws of Wishuy, art. 20 Laws of Oleron, art. 8 this Dict. tit.
Price. And see 4 Dall. 430; 1 Caines' R. 80; 2 S. & R. 229 2 S.& R. 257,
4. An adjustment being endorsed on the policy, and signed by the
underwriters, with the promise to pay in a given time, is prima facie evidence
against them, and amouuts to an admission of all the facts necessary to be
proved by the insured to entitle him to recover in an action on the policy. It
is like a note of hand, and being proved, the insured has no occasion to go into
proof of any other circumstances. Marsh. Ins. B. 1, c. 14, s. 3, p. 632; 3
Stark. Ev. 1167, 8 Park. ch. 4; Wesk. Ins, 8; Beaw. Lex. Mer. 310; Com. Dig.
Merchant, E 9; Abbott on Shipp. 346 to 348. See Damages.
ADJUTANT. A military officer, attached to every battalion of a
regiment. It is his duty to superintend, under his superiors, all matters
relating to the ordinary routine of discipline in the regiment.
ADJUTANT-GENERAL. A staff officer; one of those next in rank to the
ADJUNCTUM ACCESSORIUM, civil law. Something which is an accessory and
appurtenant to another thing. 1 Chit. Pr. 154.
ADMEASUREMENT OF DOWER, remedies. This remedy is now nearly obsolete,
even in England; the following account of it is given by Chief Baron Gilbert.
"The writ of admeasurement of dower lieth where the heir when he is within age,
and endoweth the wife of more than she ought to have dower of; or if the
guardian in chivalry, [for the guardian in socage cannot assign dower,] endoweth
the wife of more than one-third part of the land of which she ought to have
dower, then the heir, at full age, may sue out this writ against the wife, and
thereby shall be admeasured, and the surplusage she hath in dower shall be
restored to the heir; but in such case there shall not be assigned anew any
lands to hold to dower, but to take from her so much of the lands as surpasseth
the third part whereof she ought to be endowed; and he need not set forth of
whose assignments she holds." Gilb. on Uses, 379; and see F. N. B. 148; Bac. Ab.
Dower, K; F. N. B. 148; Co. Litt. 39 a; 2 Inst. 367 Dower; Estate in Dower.
ADMEASUREMENT OF PASTURE, Eng. law. The name of a writ which lies
where any tenants have common appendant in another ground and one overcharges
the common with beasts. The other commoners, to obtain their just rights, may
sue out this writ against him.
ADMINICLE1. A term, in the Scotch and French law, for any writing or
deed referred to by a party, in an action at law, for proving his
2. An ancient term for aid or support.
3. A term in the civil, law for imperfect proof. Tech. Dict. h. t.; Merl.
Repert. mot Adminicule.
ADMINICULAR EVIDENCE, eccl. law. This term is used in the
eclesiastical law to signify evidence, which is brought to explain or complete
other evidence. 2 Lee, Ecel.R. 595.
TO ADMINISTER, ADMINISTERING. The stat. 9 G. IV. c. 31, S. 11, enacts
"that if any person unlawfully and maliciously shall administer, or attempt to
administer to any person, or shall cause to be taken by any person any poison or
other destructive things," &c. every such offender, &c. In a case which
arose under this statute, it was decided that to constitute the act of
administering the poison, it was not absolutely necessary there should have been
a delivery to the party poisoned, but that if she took it from a place where it
had been put for her by the defendant, and any part of it went into her stomach,
it was an administering. 4 Carr. & Payne, 369; S. C. 19 E. C. L. R. 423; 1
Moody's C. C. 114; Carr. Crim. L. 23. Vide Attempt to Persuade.
TO ADMINISTER, trusts. To do some act in relation to an estate, such
as none but the owner, or some one authorized by him or by the law, in caseof
his decease, could legally do. 1 Harr. Cond. Lo. R. 666.
ADMINISTRATION, trusts. The management of the estate of an intestate,
a minor, a lunatic, an habitual drunkard, or other person who is incapable of
managing his own affairs, entrusted to an administrator or other trustee by
authority of law. In a more confinedsense, and in which it will be used in this
article, administration is the management of an intestate's estate, or of the
estate of a testator who, at the time administration was granted, had no
2. Administration is granted by a public officer duly authorized to delegate
the trust; he is sometimes called surrogate, judge of probate, register of wills
and for granting letters of administration. It is to be granted to such persons
as the statutory provisions of the several states direct. In general the right
of administration belongs to him who" has the right to the vendue of the
personalty: as if A make his will, and appoint B his executor, who dies
intestate, and C is the legatee of the residue of A's estate, C has the right of
administration cum testamento annexo. 2 Strange, 956; 12 Mod. 437, 306; 1 Jones,
225; 1 Croke. 201; 2 Leo. 55; 1 Vent. 217.
3. There are several kinds of administrations, besides the usual kind which
gives to the administrator the management of all the personal estate of the
deceased for an unlimited time. Administration durante minore oetate,
administration durante absentia, administration pendente lite, administration de
bonis non, administration cum testamento annexo.
ADMINISTRATION, government. The management of the affairs of the
government; this word is also applied to the persons entrusted with the
management of the publio affairs.
ADMIINISTRATOR, trusts. An administrator is a person lawfully
appointed, with his assent, by an officer having jurisdiction, to manage and
settle the estate of a deceased person who has left no executor, or one who is
for. the time incompetent or unable to act.
2. It will be proper to consider, first, his rights; secondly, his duties.;
thirdly, the number of administrators, and their joint and several powers;
fourthly, the several kinds of administrators.
3. – 1. By the grant of the letters, of administration, the administrator is
vested with full and ample power, unless restrained to some special
administration, to take possession of all the personal estate of the deceased
and to sell it; to collect the debts due to him; and to represent him in all
matters which relate to his chattels real or personal. He is authorized to pay
the debts of the, intestate in the order dire ted by law; and, in the United
States, he is generally entitled to a just compensation, which is allowed him as
commmisions on the amount whichpasses through his hands.
4. – 2. He is bound to use due diligence in the management of the estate; and
he is generally on his appointment required to give security that he will do so;
he is responsible for any waste which. may happen for his default. See
5. Administrators are authorized to bring and defend actions. They sue and
are sued in their own names; as, A B, administrator of C D, v. E F; or E F v. A
B, administrator of C D.
6. – 3. As to the number of administrators. There may be one or more. When
there are several they must, in general, act together in bringing suits, and
they must all be sued ; but, like executors, the acts of each, which relate to
the delivery, gift, sale, payment, possession. or release of the intestate's
goods, are considered as of equal validity as the acts of all, for they have a
joint power and authority over the whole. Bac. Ab. Executor, C 4; 11 Vin. Ab.
358; Com. Dig. Administration, B 12; 1 Dane's Ab. 383; 2 Litt. R. 315. On the
death of one of several joint administrators, the whole authority is vested in
7. – 4. Administrators are general, or those who have right to administer the
whole estate of the intestate; or special, that is, those who administer it in
part, or for a Iimited time.
8 – 1. General administrators are of two kinds, namely: first, when the grant
of administration is unlimited, and the administrator is required to administer
the whole estate. under the intestate laws. secondly, when the grant is made
with the annexation of the will, which is the guide to the administrator to
administer and distribute the estate. This latter administration is granted when
the deceased has made a will, and either he has not appointed an executor, or
having appointed one he refuses to serve, or dies, or is incompetent to act;
this last kind is called an administrator cum testamento annexo. 1 Will. on
9. – 2. Special administrators are of two kinds; first, when the
administration is limited to part of the estate, as for example, when the former
administrator has died, leaving a part of the estate unadministered, an
administrator is appointed to administer the remainder, and he is called an
administrator de bonis non. He has all the powers of a common administrator.
Bac. Ab. Executors, B 1; Sw. 396; Roll. Ab. 907; 6 Sm. & Marsh. 323. When an
executor dies leaving a part of the estate unadministered, the administrator
appointed to complete the execution of the win is called an administrator de
bonis non, cum testamento annexo. Com. Dig. Administrator, B 1. Secondly, When
the authority of the administrator is limited as to time. Administrators of this
kind are, 1. An administrator durante minore oetate. This administrator is
appointed to act as such during the minority of an infant executor, until the
latter shall, attain his lawful age to act. Godolph. 102; 5 Co. 29. His powers
extend to administer the estate so far as to collect the same, sell a
sufficiency of the personal property to pay the debts, sell bona peritura, and
perform such other acts as require immediate attention. He may sue and be sued.
Bac. Ab. Executor, B 1 ; Roll. Ab. 110; Cro. Eliz. 718. The powers of such an
administrator cease, as soon as the infant executor attains the age at which the
law authorizes him to act for himself, which, at common law, is seventeen years,
but by statutory provision in several states twenty-one years.
10. – 2. An administrator durante absentid, is one who is appointed to
administer the estate during the absence of the executor, before he has proved
the will. The powers of this administrator continue until the return of the
executor, and. then his powers cease upon the probate of the will by the
executor. 4 Hagg. 860. In England it has been holden, that the death of the
executor abroad does not determine the authority of the administrator durante
absentia. 3 Bos. & Pull. 26.
11. – 3. An administrator pendente lite. Administration pendente lite may be
granted pending the controversy respecting an alleged will and it has been
granted pending a contest as to, the right to administration. 2 P. Wms. 589; 2
Atk. 286; 2 Cas. temp. Lee, 258. The administrator pendente lite is merely an
officer of the court, and holds the property only till the suit terminates. 1
Hagg. 313. He may maintain suits, 1 Ves. sen. 325; 2 Ves. & B. 97; 1 Ball
& B. 192; though his power does not extend to the distribution of the
assets. 1 Ball & B. 192.
ADMINISTRATRIX. This term is applied to a woman to whom letters of
administration have been granted. See Administrator.
ADMIRAL, officer. In some countries is the commander in chief of the
naval forces. This office does not exist in the United States.
ADMIRALTY. The name of a jurisdiction which takes cognizance of suits
or actions which arise in consequence of acts done upon or relating to the sea;
or, in other words, of all transactions and proceedings relative to commerce and
navigation, and to damages or injuries upon the sea. 2 Gall. R. 468. In the
great maritime nations of Europe, the term " admiralty jurisdiction," is,
uniformly applied to courts exercising jurisdiction over maritime contracts and
concerns. It is as familiarly known among the jurists of Scotland, France,
Holland and Spain, as of England, and applied to their own courts, possessing
substantially the same jurisdiction as the English Admiralty had in the reign of
Edward III. Ibid., and the authorities there cited; and see, also, Bac. Ab.
Court of Admiralty; Merl. Repert. h. t. Encyclopedie, h. t.; 1 Dall. 323.
2. The Constitution of the United States has delegated to the courts of the
national government cognizance "of all cases of admiralty and maritime
jurisdiction;" and the act of September 24, 1789, ch. 20 s. 9, has given the
district court " cognizance of all civil causes of admiralty and maritime
jurisdiction," including all seizures under laws of imposts, navigation or trade
of the United States, where the seizures are made on waters navigable from the
sea, by vessels of ten or more tons burden, within their respective districts,
as well as upon the high seas.
3. It is not within the plan of this work to enlarge upon this subject. The
reader is referred to the article Courts of the United States, where he will
find all which has been thought necessary to say upon it as been the subject.
Vide, generally, Dunlap's Adm. Practice; Bett's Adm. Practice; 1 Kent's Com. 353
to 380; Serg. Const. Law, Index, h. t.; 2 Gall. R. 398. to 476; 2 Chit. P. 508;
Bac. Ab. Courts of Admiralty; 6 Vin. Ab. 505; Dane's Ab. Index b. t; 12 Bro.
Civ. and Adm. Law; Wheat. Dig. 1; 1 Story L. U. S. 56, 60; 2 Id. 905, 3 Id.
1564, 1696; 4 Sharsw. cont. of Story's L. U. S. 2262; Clerke's Praxis;
Collectanea Maritima; 1 U. S. Dig. tit. Admiralty Courts, XIII.
ADMISSION, in corporations or companies. The act of the corporation or
company by which an individual acquires the rights of a member of such
corporation or company.
2. In trading and joint stock corporations no vote of admission is requisite;
for any person who owns stock therein, either by original subscription or by
conveyance, is in general entitled to, and cannot be refused, the rights and
privileges of a member. 3 Mass. R. 364; Doug. 524; 1 Man. & Ry. 529.
3. All that can be required of the person demanding a transfer on the books,
is to prove to the corporation his right to the property. See 8 Pick. 90.
4. In a Mutual Insurance Company, it has been held, that a person may become
a member by insuring his property, paying the premium and deposit-money, and
rendering himself liable to be assessed according to the rules of the
corporation. 2 Mass. R. 315.
ADMISSIONS, in evidence. Concessions by a party of the existence of
certain facts. The term admission is usually applied to civil transactions, and
to matters of fact in criminal cases, where there is no criminal intent the term
confession, (q. v.) is generally considered as an admission of guilt.
2. An admission is the testimony which the party admitting bears to the truth
of a fact against himself. It is a voluntary act,which he acknowledges as true
the fact in dispute. [An admission and consent are, in fact, one and the same
thing, unless indeed for more exactness we say, that consent is given to a
present fact or agreement, and admission has reference to au agreement or a fact
anterior for properly speaking, it is not the admission which forms a contract,
obligation or engagement, against the party admitting. The admission is, by its
nature, only the proof of a pre-existing obligation, resulting from the
agreement or the fact, the truth of which is acknowledged. There is still
another remarkable difference between admission and consent: the first is always
free in its origin, the latter, always morally forced. I may refuse to consent
to a proposition made to me, abstain from a fact or an action which would
subject me to an obligation ; but once my consent is given, or the action
committed, I am no longer at liberty to deny or refuse either; I am constrained
to admit, under the penalty of dishonor and infamy. But notwithstanding all
these differences, admission is identified with consent, and they are both the
manifestation of the will. These admissions are generally evidence of those
facts, when the admissions themselves are proved.]
3. The admissibility and effect of evidence of this description will be
considered generally, with respect to the nature and manner, of the admission
itself and, secondly, with respect to the parties to be affected by it.
4. In the first place, as to the nature and manner of the admission; it is
either made with a view to evidence; or, with a view to induce others to act
upon the representation; or, it is an unconnected or casual representation.
5. – 1. As an instance of admission made with a view to evidence may be
mentioned the case where a party has solemnly admitted a fact under his hand and
seal, in which case he is, estopped, not only from disputing the deed itself,
but every fact which it recites. B. N. P. 298; 1 Salk. 186; Com. Dig. Estoppel,
B 5; Stark. Ev. pt. 4, p. 3 1.
6. – 2. Instances of thing second class of admissions which have induced
others to act upon them are those where a man has cohabited with a woman, and
treated her in the front of the world as his wife, 2 Esp. 637; or where he. has
held himself out to the world in a particular character; Ib. 1 Camp. 245; he
cannot in the one case deny her to be his Wife when sued by a creditor who has
supplied her with goods as such, nor in the other can he divest himself of the
character be has assumed.
7. – 3. Where the admission or declaration is not direct to the question
pending, although admissible, it is not in general conclusive evidence; and
though a party may by falsifying his former declaration, show that he has acted
illegally andimmorally, yet if he is not guilty of any breach of good faith in
the existing transaction, and has not induced others, to act upon his admission
or declaration, nor derived any benefit from it against his adversary, be is not
bound by it. The evidence in such cases is merely presumptive, and liable to be
8. Secondly, with respect to the parties to be affected by it. 1. By a party
to a suit, 1 Phil. Ev. 74; 7 T. R. 563; 1 Dall. 65. The admissions of the party
really interested, although he is no party to the suit, are evidence. 1 Wils.
9. – 2. The admissions of a partner during the existence of a partnership,
are evidence against both. 1 Taunt. 104; Peake's C. 203 1 Stark. C. 81. See 10
Johns. R. 66 Ib. 216; 1 M. & Selw. 249. As to admissions made after the
dissolution. of the partnership, see 3 Johns. R. 536; 15 Johns. R. 424 1 Marsh.
(Kentucky) R. 189. According to the English decisions, it seems, the admissions
of one partner, after the dissolution, have been holden to bind the other
partner; this rule has been partially changed by act of parliament. Colly. on
Part. 282; Stat. 9 Geo. IV. c. 14, (May 9, 1828.) In the Supreme Court of the
United States, a rule, the reverse of the English, has been adopted, mainly on
the ground, that the admission is a new contract or promise, springing out of,
ana supported by the original consideration. 1 Pet. R. 351; 2 M'Lean, 87. The
state courts have varied in their decisions some have adopted the English rule;
and, in others it has been overruled. 2 Bouv. Inst. ii. 1517; Story, Partn. 324;
3 Kent, Com. Lect. 43, p. 49, 4th ed.; 17 S. & R. 126; 15 Johns. R. 409; 9
Cowen, R. 422; 4 Paige, R. 17; 11 Pick. R. 400; 7 Yerg. R. 534.
10. – 3. By one of several persons who have a community of interest. Stark,
Ev. pt. 4, p. 47; 3 Serg. & R. 9.
11. – 4. By an agent, 1 Phil. Ev. 77-82 3 Paley Ag. 203-207.
12. – 5. By an attorney, 4 Camp. 133; by wife, Paley, Ag. 139, n. 2 Whart.
Dig. tit. Evidence, 0 7 T. R. 112 ; Nott & M'C. 374.
13. Admissions are express or implied. An express admission is one made in
direct terms. An admission may be implied from the silence of the party, and may
be presumed. As for instance, when the existence of the debt, or of the
particular right, has been asserted in his presence, and he has not contradicted
it. And an aquiescence and endurance, when acts are done by another, which if
wrongfully done, are encroachments, and call for resistance and opposition, are
evidence, as a tacit admission that such acts could not be legally resisted. See
2 Stark. C. 471. See, generally, Stark. Ev. part 4, tit. Admissions; 1 Phil. Ev.
part 1, c. 5, s . 4; 1 Greenl. Ev. 169-212; 2 Evans' Pothier, 319; 8 East, 549,
ii. 1; Com. Dig. Testemoigne, Addenda, vol. 7, p. 434; Vin. Abr. Evidence, A, b.
2, A, b. 23 Ib. Confessions; this Dict. tit. Confessions, Examination; Bac. Abr.
Evidence L.; Toullier, Droit, Civil Francais, tome 10, p. 375, 450; 3 Bouv.
Inst. n. 3073.
ADMISSIONS, of attorneys and counsellors. To entitle counsellors and
attorneys to practice in court, they must be admitted by the court to practice
there. Different statutes and rules have been made to regulate their admission;
they generally require a previous qualification by study under the direction of
some practicing counsellor or attorney. See 1 Troub. & Haly's Pr. 18; 1
Arch. Pr. 16; Blake's Pr. 30.
ADMISSIONS. in pleading. Where one party means to take advantage of,
or rely upon some matter alleged by his adversary, and to make it part of his
case, he ought to admit such matter in his own pleadings; as if either party
states the title under which his adversary claims, in which instances it ,is
directly opposite in its nature to a protestation. See Prote stando. But where
the party wishes to prevent the application of his pleading to some matter
contained in the pleading of his adversary, and therefore makes an express
admission of such matter (which is sometimes the case,) in order to exclude it
from the issue taken or the like, it is somewhat similar in operation and
effect, to a protestation.
2. The usual mode of making an express admission in pleading, is, after
saying that the plaintiff ought not to have or maintain his action, &c., to
proceed thus, " Because he says that although it be true that" &c.;repeating
such of the allegations of the adverse party as are meant to be admitted.
Express admissions are only matters of fact alleged in the pleadings; it never
being necessary expressly to admit their legal sufficiency, which is always
taken for granted, unless some objection be made to them. Lawes' Civ. Pl. 143,
144. See 1 Chit PI. 600; Arcbb. Civ. PI. 215.
3. In chancery pleadings, admissions are said to be plenary and partial. They
are plenary by force of terms not only when the answer runs in this form, "the
defendant admits it to be true," but also when he simply asserts, and generally
speaking, when be says, that "he has been informed, and believes it to be true,"
without adding a qualification such as, "that he does not know it of his own
knowledge to be so, and therefore does not admit the same." Partial admissions
are those which are delivered in terms of uncertainty, mixed up as they
frequently are, with explanatory or qualifying circumstances.
ADMISSIONS, in practice, It, frequently occurs in practice, that in
order to save expenses as to mere formal proofs, the attorneys on each side
consent to admit, reciprocally, certain facts in the cause without calling for
proof of them.
2. These are usually reduced to writing, and the, attorneys shortly, add to
this effect, namely, " We agree that the above facts shall on the trial of this
cause be admitted, and taken as proved on each side;" and signing two copies now
called, "admissions " in the cause, each attorney takes one. Gresl. Eq. Ev. c.
2, p. 38.