AFFECTION, contracts. The making over, pawning, or mortgaging a thing to assurp the payment of a sum of money, or the discharge of some other duty or service. Techn. Diet.
AFFEERERS, English law. Those who upon oath settle and moderate fines in courts leet. Hawk. 1. 2, c. 112.
TO AFFERE, English law. Signifies either "to affere an amercement," i. e. to mitigate the rigor of a fine; or "to affere an account," that is, to confirm it on oath in the exchequer.
AFFIANCE, contracts. From affidare or dare fidem, to give a pledge. A plighting of troth between a man and woman. Litt. s. 39. Pothier, Traite du Mariage, n. 24, defines it to be a an agreement by which a man and a woman promise each other that they will marry together. This word is used by some authors as synonymous with marriage. Co. Litt. 34, a, note 2. See Dig. 23, 1 Code 5, 1, 4; Extrav. 4, 1.
AFFIDARE. To plight one's faith, or give fealty, i. e. fidelity by making oath, &c. Cunn. Dict. h. t.
AFFIDATIO DOMINORUM, Eng. law. An oath taken by a lord in parliament.
AFFIDAVIT, practice. An oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it. It differs from a deposition in this, that in the latter the opposite party has had an opportunity to cross-examine the witness, whereas an affidavit is always taken ex parte. Gresl. Eq. Ev. 413. Vide Harr. Dig. h. t.
2. Affidavit to hold to bail, is in many cases required before the defendant can be arrested; such affidavit must be made by a person who is acquainted with the fact, and must state, 1st, an indebtedness from the defendant to the plaintiff; 2dly, show a distinct cause of action; 3dly, the whole must be clearly and certainly, expressed. Sell. Pr. 104; 1 Chit. R. 165; S. C. 18 Com. Law, R. 59 note; Id. 99.
3. An affidavit of defence, is made by a defendant or a person knowing the facts, in which must be stated a positive ground of defence on the merits. 1 Ashm. R. 4, 19, n. It has been decided that when a writ of summons has been served upon three defendants, and only one appears, a judgment for want of an affidavit of defence may be rendered against au. 8 Watts, R. 367. Vide Bac. Ab. h. t.
AFFINITAS AFFINITATIS. That connexion between two persons which has neither consanguinity nor affinity; as, the connexion between the hushand's brother and the wife's sister. This connexion is formed not between the parties themselves, nor between one of spouses and the kinsmen of the other, but between the kinsmen of both. Ersk. Inst. B, 1, tit. 6, s. 8.
AFFINITY. A connexion formed by marriage, which places the hushand in the same degree of nominal propinquity to the relations of the wife, as that in which she herself stands towards them, and gives to the wife the same reciprocal connexion with the relations of the hushand. It is used in contradistinction to consanguinity. (q. v.) It is no real kindred.
2. Affinity or alliance is very different from kindred. Kindred are relations. by blood; affinity is the tie which exists between one of the spouses with the kindred of the other; thus, the relations, of my wife, her brothers, her sisters, her uncles, are allied to me by affinity, and my brothers, sistors, &c., are allied in the same way to my wife. But my brother and the sister of my wife are not allied by the ties of affinity: This will appear by the following paradigms
My wife's father ---|
| |
| |
-----------------| |
| | |-- are
all allied to me.
Ego ----- My Wife 0 My wife's sister ---|
| |
0 My wife's niece ---|
My wife's father, ---|
My Father |
|My brother
| | |and my wife's
| | |sister are
|---------------|
|----------| |not allied
| | | |
|to each other
My brother Ego ---- My wife, My wife's sister,
3. A person cannot, by legal succession, receive an inheritance from a relation by affinity; neither does it extend to the nearest relations of hushand and wife, so as to create a mutual relation between them. The degrees of affinity are computed in the same way as those of consanguinity. See Pothier, Traite du Mariage, part 3, ch. 3, art. 2, and see 5 M. R. 296; Inst. 1, 10, 6; Dig. 38, 10, 4, 3; 1 Phillim. R. 210; S. C. 1 Eng. Eccl. R. 72; article Marriage.
TO AFFIRM, practice. 1. To ratify or confirm a former law or judgment, as when the supreme court affirms the judgment of the court of common pleas. 2. To make an affirmation, or to testify under an affirmation.
AFFIRMANCE. The confirmation of a voidable act; as, for example, when an infant enters into a contract, which is not binding upon him, if, after attaining his full age, he gives his affirmance to it, he will thereafter be bound, as if it had been made when of full age. 10 N. H. Rep. 194.
2. To be binding upon the infant, the affirmance must be made after arriving of age, with a full knowledge that it would be void without such confirmation. 11 S. & R. 305.
3. An affirmance may be express, that is, where the party declares his determination of fulfilling the contract; but a more acknowledgment is not sufficient. Dudl. R, 203. Or it may be implied, as, for example, where an infant mortgaged his land and, at full age, conveyed it, subject to the mortgage. 15 Mass. 220. See 10 N. H. Rep. 561.
AFFIRMANCE-DAY, GENERAL. In the English Court of Exchequer, is a day appointed by the judges of the common pleas, and barons of the exchequer, to be held a few days after the beginning of every term for the general affirmance or reversal of judgments. 2 Tidd. 1091.
AFFIRMANT, practice. One who makes affirmation instead of making oath that the evidence which he is about to give shall be the truth, as if he had been sworn. He is liable to all the pains and penalty of perjury, if he shall be guilty of wilfully and maliciously violating his affirmation.
AFFIRMATION, practice. A solemn declaration and asseveration, which a witness makes before an officer, competent to administer an oath in a like case, to tell the truth, as if be had been sworn.
2. In the United States, generally, all witnesses who declare themselves conscientiously scrupulous against taking a corporal oath, are permitted to make a solemn affirmation, and this in all cases, as well criminal as civil.
3. In England, laws have been enacted which partially relieve persons who, have conscientious scruples against taking an oath, and authorize them to make affirmation. In France, the laws which allow freedom of religious opinion, have received the liberal construction that all persons are to be sworn or affirmed according to the dictates of their consciences; and a quaker's affirmation has been received and held of the same effect as an oath. Merl. Quest. de Droit, mot Serment, 1.
4. The form is to this effect: "You, A B, do solemnly, sincerely, and truly declare and affirm," &c. For the violation of the truth in such case, the witness is subject to the punishment of perjury " as if he had been sworn.
5. Affirmation also means confirming; as, an affirmative statute.
AFFIRMATiVE. Averring a fact to be true; that which is opposed to negative. (q. v.)
2. It is a general rule of evidence that the affirmative of the issue must be proved. Bull. N. P. 298 ; Peake, Ev. 2.
3. But when the law requires a person to do an act, and the neglect of it, will render him guilty and punishable, the negative must be proved, because every man is presumed to do his duty and in that case they who affirm he did not, must prove it. B. N. P. 298; 1 Roll. R. 83; Comb. 57; 3 B.& P. 307; 1 Mass. R. 56.
AFFIRMATIVE PREGNANT, Pleading. An affirmative allegation, implying some negative, in favor of the adverse party, for example, if to an action of assumpsit, which is barred by the act of limitations of six years, the defendant pleads that be did not undertake &c. within ten years; a replication that he did undertake, &c. within ten years, would be an affirmative pregnant; since it would impliedly admit that the defendant had not promised within six years. As no proper issue could be tendered upon such plea the plaintiff should, for that reason, demur to it. Gould, PI. c. 6 29, 37; Steph. PI. 381; Lawes, Civ. PI. 113; Bac. Ab. Pleas, N 6.
AFFORCE, AFFORCEMENT OF THE ASSIZE, Old English law, practice. An ancient practice in trials by jury, which is explained by Bracton, (fo. 185, b. 292 a) and by the author of Fleta, lib. 4, cap. 9, 2. It consisted in adding other jurors to the panel of jurors, after the cause had been committed to them, in case they could not agree in a verdict. The author of Fleta (ubi sup) thus describes it. The oath having been administered to the jury, the (prenotarius) prothonotary, addressed them thus: "You will say upon the oath you have taken, whether such a one unjustly and without judgment disseized such a one of his freehold in such a ville within three years or not." The justices also repeat for the instruction of, the jurors the plaint of the plaintiff, &c. The jurors then retire and confer together, &c. If the jurors differ among themselves and cannot agree in one (sententiam) finding, it will be in the discretion of the judges, &c; to afforce the assize by others, provided there remain of the jurors summoned many as the major party of the dissenting jurors; or they may compel the same jurors to unanimity, viz. by directing the sheriff to keep them safely without, meat or drink until they agree. The object of adding to the panel a number equal to the major party of the dissenting jurors, was to ensure a verdict by twelve of them, if the jurors thus added to the panel should concur with the minor party of the dissenting jurors. This practice of afforcing the assize, was in reality a second trial of the cause, and was abandoned, because the courts found it would save delay and trouble by insisting upon unanimity. The practice of confining jurors without meat and drink in order to enforce unanimity, has in more modern times also been abandoned and the more rational practice adopted of discharging the jury and summoning a new one for the trial of the cause, in cases where they cannot agree. This expedient for enforcing unanimity was probably introduced from the canon law, as we find it was resorted to on the continent, in other cases where the unanimity of a consultative or deliberative body was deemed indispensable. See Barring. on Stats. 19, 20; 1, Fournel, Hist. des Avocats, 28, note.
TO AFFRANCHISE. To make free.
AFFRAY, criminal law. The fighting of two or more persons, in some public place, to the terror of the people.
2. To constitute this offence there must be, 1st, a fighting; 2d, the fighting must be between two or more persons; 3d, it must be in some public place ; 4th, it must be to the terror of the people.
3. It differs from a riot, it not being premeditated; for if any persons meet together upon any lawful or innocent occasion, and happen on a sudden to engage in fighting, they are not guilty of a riot but an affray only; and in that case none are guilty except those actually engaged in it. Hawk. b. 1, c. 65, s. 3 ; 4 Bl. Com. 146; 1 Russell, 271.
AFFREIGHTMEET, Com. law. The contract by which a vessel or the use of it, is let out to hire. See Freight; General ship.
AFORESAID. Before mentioned; already spoken of. This is used for the purpose of identifying a person or thing; as where Peter, of the city of Philadelphia, has been mentioned; when it is necessary to speak of him, it is only requisite to say Peter aforesaid, and if the city of Philadelphia, it may be done as the city of Philadelphia, aforesaid.
AFORETHOUGHT, crim. law. Premeditated, prepense; the length of time during which the accused has entertained the thought of committing the offence is not very material, provided he has in fact entertained such thought; he is thereby rendered criminal in a greater degree than if he had committed the offence without. premeditation. Vide Malice; aforethought; Premeditation 2 Chit. Cr. 785; 4 Bl. Com. 199; Fost. 132, 291, 292; Cro. Car. 131; Palm. 545; W. Jones, 198; 4 Dall. R. 146; 1 P. A. Bro. App. xviii.; Addis. R. 148; 1 Ashm. R. 289.
AFTERMATH. A right to have the last crop of grass or pasturage. 1 Chit. Pr. 181.