Page:Black's Law Dictionary (Second Edition).djvu/464

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EXCAMB

of exhibiting sherliIs' accounts) the ll.leviabie hues and desperate debts were transcribed, and which was minually read to the sheriiI upon his accounting. to see what might he gotten. Cowell.

EXCAMZB. In Scotch law. To exchange. 6 Bdl. App. Cas. 19, 22.

EXCAMBIATOR. An exchanger of lands; a broker. Obsolete.

EXCAMBION. Ln Scotch law. Ex- change. 1 Forb. Inst. pt. 2, p. 173.

EXCAMEIUM. An exchange; a place

where merchants meet to transact their busi- ness: also .in eqliihilcut in recoinpense; a recompense in lieu of doiver ad osiium eccleslay.

EXCELLENCY. In English law. The title of a Viceroy. gorei-i.ior general, ambussador, or commander in chief.

In America. The title is sometimes given to the chief executive of a state oi- of the nation.

EXCEPTANT. One who excepts; one who makes or files exceptions; one who ob- jects to a ruling. instruction, or anything proposed or ordered.

EXCEPTIO. In Roman law. An ex- ception. In a general sense, a judicial alle gation opposed by a defendant to the plaintiffs action. Calvin.

A stop or stay to an action opposed by the deienduiit. Cowell.

Answering to the ‘‘defense or “piea" of the common law. An allegation and defense of a defendant by which the plaintiff's claim or complaint is defeated, either according to strict law or upon grouiids of equity.

In a stricter sense, the exclusion of an action that lay in strict law, on grounds of equity, (uclirmis jure sirloin canipeienzis ob (l.l1llllI1l.'€fll ewclusio.) I-leinecc. A kind of limitation of an 21L[1Di.i, by which it was shown that the action, though otherwise just, did not lie in the piirtlculiir case. Calvin. A species of defense allowed in cases where, though the action as brought by the plalutiii was in itself just. yet it was unjust as against the particular party sued lust. 4, 13, pr.

In modern civil law. A plea by which the defendant iiilmits the cause of action, but alleges new facts which, provided they be true, tot.iily or partlally answer the allegations put foi ward on the other side; thus distinguished from a mere traverse of the plaintiff's averments. Tomklus & J. Mod. Rom. Law. 90. In this use, the term corresponds to the common-law plea in confession and avoidance.

—Exeeptio dilator-in. A dilatory exception; called also ‘ti iiip9raIi'a," (temper.-iry:) oiieuhich defeated the action for a time, (quiz ad lempiu

4-56 EXCEP T10

naoet.) and created delay, (et tampon": dilationem tribi:/it;) such as an agreement not to sue within a certain time, as live yeais. Inst. 4, 13. 10. See Dig. 4-}, 1, .'-.’i.—Exceptio doli mali. An exception or plea of fraud. 4, ll. 1, 9; Biact. fol. 100b.—Exceptio dum- miuii. A claim of ownership set up in an action for the recovery of property not in the ' Mai keld. Rom. lniw,

po siuii of the plaintiff. § i9.—Exceptio dotis cnutm non numeratna. A defense to an action for the resti-,>ition

of a dowry that it was never paid, thuixzh promised. available upon the dissolution of the marriage viithin a limited time. Mat-kcld. Rom. Law, § 45‘5.—Exeep1:io in faetiun. An ex- ci-ptiou on the fact. An exception or plea founded on the peculiar circiirostaiicos of the use. Inst. 4, 13. 1.—Exceptiu in personazn. A plea or def:-iisc nf a poison-ii nature, which may be alleged only by the person hirisclf to whom it is granted by the law. Maclield. liom. Law, § 2l'i'.—Exceptio in rem. A plea or defense not of a personal nature, but connected with the legal circumstances on which ti-r suit is founded, and which may therefore he ail:-,.~-d by any party in interest, including the heirs and sureties of the proper or ori,inal debtor. lilackeltl. Rom. Law, § 2l7.—Exeeptio jiu'il- j '. An exception of until; an exception or plea that ti matter had been sworn to. Inst. 4, 13. 4. This irind of exception was iii- lowed where a debtor. at the instance of his creditor, (creditare do]’erz:11te,\ had sworn that nothing was due the latter, and bad notwithe standing been sued by hirn.—Exceptio nietus. An exception or plea of fear or compulsion. Inst 4, 13, 1, 9; Bmct. fol. 10012. Answering to the modern plea of duress.—Exceptio non adimpleti cnntractus. An e.\'rt-ptiou in an uction founded on I1 contract iuiulving mntuai duties or obligations, to the effect that the plaintlif is not entitled to sue because he has not perfoi-nied his own part of the agreement. Muckeld. Rom. Law, § 394—Exeeptio non solutae pecunia. A plea that the debt in suit was not discharged by payment (as alleged by the adverse party) notwithstanding an ac- quittanee or receipt given by the person to whom the payment is stated to have been made. Miickeld. ltom. Law, § 534.—Exceptio paeti conventi. An exception of couipatt: an ex- ception or plea that the plaintiff had agreed not to sue. inst 4. 13, 3i—E.x-zeptio peeuniis non nnmeratze. An exception or plea of money not paid; a defense which might be set up by a party who was sued on a promise to repay money which he had never received. Inst. 4, 13. ‘3.—Exceptio pereinptox-in. A peremptory exception: called also ";iai-petiia," (perpetual;) one which forever destroyed the sub- ject-mntter or ground of the action, (quiz rempc-r rem de qua agitiur poriin-it,-) such as the oz-ccptio dali mali, the emoeptio nieiiis, etc Inst. 4, 13. 9. See Dig. 44, 1, 3.—Exceptio rel.

Jndieatze. Au exccption or plea of matter iidjud,-:ed; a plea that the subject-matter of

the action had been determined in a [)'i‘EVlIJ‘l‘l iii.-tion. Inst. 4. 13, 5. This term is adopted hy Brat.-ton, and is constantly used in modern law to denote a defense founded upon a previous fl.lij|i(ii("lfiDl] of the same matter. Bract. fols. 1002), 177; 2 Kent, Comm. 120. A pi-a of I], former recovery or judgment.—Exceptin rel venditie et traditie. An exception or plea of the sale and delivery of the thing. This cxccption presumes that there was a valid sale and a proper tradition; but though, in conse- quence of the rule that no one can transfer to another a greater right he himsei; has. no property was transferred. yet bei.iu-.- of some particular circum.-it-inmz the real owner iv estuppcd from contesting ii;. Muckeld. Rom. Law, § 2fI.').—!-Jxeeptio senatnsconsulti Mae- edoniani. A defense to an action for the recovery of money loaned. on the ground that the

loan was made to a minor or person under the