Waiver

is the relinquishment or refusal to accept of a right. In practice it is required of every one to take advantage of his rights at a proper time, and, neglecting to do so, will be considered as a waiver. If, for example, a defendant who has been misnamed m the writ and declaration, pleads over, he cannot afterwards take advantage of the error by pleading in abatement, for his plea amounts to a waiver. In secking for a remedy the party injured may, io some instances, waive a part of his right, and sue for another; for example, when the defendant has committed a trespass on the property of the plaintiff, by taking it away, and afterwards he sells it, the injured party may waive the trespass, and bring an action of assumpsit for the recovery of the money thus received by the defendant.

1 Chit. Pl. 90.

In contracts if after knowledge of a supposed fraud, surprise or mistake, a party performs the agreement in part, he will be considered as having waived the objection.

1 Bro. Parl. Cas. 289.

It is a rule of the civil law, consonant with reason, that any one may renounce or waive that which has been established in his favour: Regula est juris antiqut omnes licentiam habere his que pro se tntroducta sunt, renunctare.

Code 2, 3,29.

Vide Verdict. the person of another, without regard to his rights, as, for example, if a man should attempt to pull another’s hat against his will, in order to expose him to ridicule, the offence would be an assault, and if he touched him it would amount to a battery, (q- v-) In such case there would be no malice, but the wantonness of the act would render the offending party liable to punishment.