A2:
AGAINST THE WILL, pleadings. In indictments for robbery from
the person, the words "feloniously and against the will," must be
introduced; no other words or phrase will sufficiently charge
the offence. 1 Chit. Cr. 244.
AGARD. An old word which signifies award. It is used in
pleading, as nul agard, no award;
AGE. The time when the law allows persons to do acts which, for
want of years, they were prohibited from doing before. See Coop.
Justin. 446.
2. For males, before they arrive at fourteen years they are
said not to be of discretion; at that age they may consent to
marriage and choose a guardian. Twenty-one years is full age for
all private purposes, and the may then exercise their rights as
citizens by voting for public officers; and are eligible to all
offices, unless otherwise provided for in the constitution. At
25, a man may be elected a representative in Congress; at 30, a
senator; and at 35, he may be chosen president of the United
States. He is liable to serve in the militia from 18 to 45.
inclusive, unless exempted for some particular reason.
3. As to females, at 12, they arrive at years of discretion and
may consent to marriage; at 14, they may choose a guardian; and
21, as in males, is fun Age, when they may exercise all the
rights which belong to their sex.
4. In England no one can be chosen member of parliament till he
has attained 21 years; nor be ordained a priest under the age of
24; nor made a bishop till he has completed his 30th year. The
age of serving in the militia is from 16 to 45 years.
5. By the laws of France many provisions are made in respect to
age, among wbich are the following. To be a member of the
legislative body, the person must have attained 40 years; 25, to
be a judge of a tribunal de remiere instance; 27, to be its
president, or to be judge or clerk of a cour royale ; 30, to be
its president or procureur general; 25, to be a justice of the
peace; 30, to be judge of a tribunal of commerce, and 35, to be
its president; 25, to be a notary public; 21, to be a
testamentary witness; 30, to be a juror. At 16, a minor may
devise one half of his, property as if he were a major. A male
cannot contract marriage till after the 18th year, nor a female
before full 15 years. At 21, both males and females are capable
to perform all the act's of civil life.. - Toull. Dr. Civ. Fr.
Liv. 1, Intr. n. 188.
6. In the civil law, the age of a man was divided as follows:
namely, the infancy of males extended to the full accomplishment
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of the 14th year; at 14, he entered the age of puberty, and was
said to have acquired full puberty at 18 years accomplished, and
was major on completing his 25th year. A female was an infant -
til 7 years; at 12, she entered puberty, and accquired full
puberty at 14; she became of fall age on completing her 25th
year. Lecons Elem. du Dr. Civ. Rom. 22.
See Com. Dig. Baron and Feme, B 5, Dower, A, 3, Enfant, C 9,
10, 11, D 3, Pleader, 2 G 3, 2 W 22, 2 Y 8; Bac. Ab. Infancy
and Age; 2 Vin. Ab. 131; Constitution of the United States;
Domat. Lois Civ. tome 1, p. 10; Merlin, Repert. de Jurisp. mot
Age; Ayl. Pand. 62; 1 Coke Inst. 78; 1 Bl. Com. 463. See
Witness.
AGE-PRAYER, AGE-PRIER, oetatis precatio. English law, practise.
Wnen an action is brought against an infant for lands which he
hath by descent, he may show this to the court, and pray quod
loquela remaneat until he shall become of age; which is called
his age-prayer. Upon this being ascertained, the proceedings are
stayed accordingly. When the lands did not descend, he is not
allowed this privilege. 1 Lilly's Reg. 54.
AGED WITNESS. When a deposition is wanted to be taken on
account of the age of a witness, he must be at least seventy
years old to be considered an aged witness. Coop. Eq. PI. 57;
Amb. R. 65; 13 Ves. 56, 261.
AGENCY, contracts. An agreement, express , or implied, by which
one of the parties, called the principal, confides to the other,
denominated the agent, the management of some business; to be
transacted in his name, or on his account, and by which the agent
assumes to do the business and to render an account of it. As a
general rule, whatever a man do by himself, except in virtue of a
delegated authority, he may do by an agent. Combee's Case, 9 Co.
75. Hence the maxim qui facit per alium facit per se.
2. When the agency express, it is created either by deed, or in
writing not by deed, or verbally without writing. 3 Chit. Com.
Law 104; 9 Ves. 250; 11 Mass. Rep. 27; Ib. 97, 288; 1 Binn.
R. 450. When the agency is not express, it may be inferred from
the relation of the parties and the nature of the employment,
without any proof of any express appointment. 1 Wash. R. 19; 16
East, R. 400; 5 Day's R. 556.
3. The agency must be antecedently given, or subsequently
adopted; and in the latter case there must be an act of
recognition, or an acquiescence in the act of the agent, from
which a recognition may be fairly implied. 9 Cranch, 153, 161;
26 Wend. 193, 226; 6 Man. & Gr. 236, 242; 1 Hare & Wall. Sel.
Dec. 420; 2 Kent, Com. 478; Paley on Agency; Livermore on
Agency.
4. An agency may be dissolved in two ways - 1, by the act of
the principal or the agent; 2, by operation of law.
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5. - 1. The agency may be dissolved by the aet of one of the
parties. 1st. As a general rule, it may be laid down that the
principal has a right to revoke the powers which he has given;
but this is subject to some exception, of which the following are
examples. When the principal has expressly stipulated that the
authority shall be irrevocable, and the agent has an interest in
its execution; it is to be observed, however, that although
there may be an express agreement not to revoke, yet if the agent
has no interest in its execution, and there is no consideration
for the agreement, it will be considered a nude pact, and the
authority may be revoked. But when an authority or power is
coupled with an interest, or when it is given for a valuable
consideration, or when it is a part of a security, then, unless
there is an express stipulation that it shall be revocable, it
cannot be revoked, whether it be expressed on the face of the
instrument giving the authority, that it be so, or not. Story on
Ag. 477; Smith on Merc. L. 71; 2 Liv. on Ag. 308; Paley on Ag.
by Lloyd, 184; 3 Chit. Com. f. 223; 2 Mason's R. 244; Id. 342;
8 Wheat. R. 170; 1 Pet. R. 1; 2 Kent, Com. 643, 3d edit.;
Story on Bailm. §209; 2 Esp. R. 665; 3 Barnw. & Cressw. 842;
10 Barnw. & Cressw. 731; 2 Story, Eq. Jur. §1041, 1042, 1043
6. - 2. The ageacy may be determined by the renunciation of the
agent. If the renunciation be made after it has been partly
executed, the agent by renouncing it, becomes liable for the
damages which may thereby be sustained by his principal. Story on
Ag. § 478; Story on Bailm. §436; Jones on Bailm. 101; 4 John
r. 84.
7. - 2 The agency is revoked by operation of law in the
following cases: 1st. When the agency terminates by the
expiration of the period, during which it was to exist, and to
have effect; as, if an agency be created to endure a year, or
till the happening of a contingency, it becomes extinct at the
end or on the happening of the contingency.
8. - 2. When a change of condition, or of state, produces an
incapacity in either party; as, if the principal, being a woman,
marry, this would be a revocation, because the power of creating
an agent is founded on the right of the principal to do the
business himself, and a married woman has no such power. For the
same reason, when the principal becomes insane, the agency is
ipso facto revoked. 8 Wheat. R. 174, 201 to @04; Story on Ag.
§481; Story on Bailm. §206. 2 Liv. on Ag. 307. The incapacity of
the agent also amounts to a revocation in law, as in case of
insanity, and the like, which renders an agent altogether
incompetent, but the rule does not reciprocally apply in its full
extent. For instance, an infant or a married woman may in some
cases be agents, althouah they cannot act for themselves. Co.
Litt. 52a.
9. - 3. The death of either principal or agent revokes the
agency, unless in cases where the agent has an interest in the
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thing actually vested in the agent. 8 Wheat. R. 174; Story on
Ag. §486 to 499; 2 Greenl. R. 14, 18; but see 4 W. & S. 282; 1
Hare & Wall. Sel. Dec. 415.
10. - 4. The agency is revoked in law, by the extinction of the
subject-matter of the agency, or of the principal's power over
it, or by the complete execution of the trust. Story on Bailm.
§207, Vide generally, 1 Hare & Wall. Sel. Dec. 384, 422; Pal. on
Ag.; Story on Ag.; Liv. on Ag.; 2 Bouv. Inst. n. 1269-1382.
AGENT, practice. An agent is an attorney who transacts the
business of another attorney.
2. The agent owes to his principal the unremitted exertions of
his skil and ability, and that all his transactions in that
character, shall be distinguished by punctuality, honor and
integrity. Lee's Dict. of Practice.
AGENT, international law. One who is employed by a prince to
manage his private affairs, or, those of his subjects in his
name, near a foreign, government. Wolff, Inst. Nat. §1237.
AGENT, contracts. One who undertakes to manage some affair to
be transacted for another, by his authority on account of the
latter, who is called the principal, and to render an account of
it.
2. There are various descriptiona of agents, to whom different
appellations are given according to the nature of their
employments; as brokers, factors, supercargoes, attorneys, and
the like; they are all included in this general term. The
authority is created either by deed, by simple writing, by parol,
or by mere employment, according to the capacity of the parties,
or the nature of the act to be done. It is, therefore, express or
implied. Vide Authority.
3. It is said to be general or special with reference to its
object, i.e., according as it is confined to a single act or is
extended to all acts connected with a particular emplowment.
4. With reference to the manner of its execution, it is either
limited or unlimited, i. e. the agent is bound by precise
instructions, (q. v.) or left to pursue his own discretion. It is
the duty of an agent, 1, To perform what he has undertaken in
relation to his agency. 2, To use all necessary care. 3, To
render an account. Pothier, Tr. du Contrat de Mandat, passim;
Paley, Agency, 1 and 2; 1 Livrm. Agency, 2; 1 Suppl. to Ves.
Jr. 67, 97, 409; 2 Id. 153, 165, 240; Bac. Abr. Master and
Servant, 1; 1 Ves. Jr. R. 317. Vide Smith on Merc. Law, ch. 3,
p. 43,. et seq. and the articles Agency, Authority, and
Principal.
5. Agents are either joint or several. It is a general rule of
ther common law, that when an authority is given to two or more
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persons to do an act, and there is no several authority given,
all the ageuts must concur in doing it, in order to bind the
principal. 3 Pick. R. 232; 2 Pick. R. 346; 12 Mass. R. 185;
Co. Litt. 49 b, 112 b, 113, and Harg. n. 2; Id. 181 b. 6 Pick.
R. 198 6 John. R. 39; 5 Barn. & Ald. 628.
6. This rule has been so contrued that when the authority is
given jointly and severally to three person, two cannot properly
execute it; it must be done by all or by one only. Co. Litt. 181
b; Com. Dig. Attorney, C 11; but if the authority is so worded
that it is apparent, the principal intended to give power to
either of them, an execution by two will be valid. Co. Litt. 49
b; Dy. R. 62; 5 Barn. & Ald. 628. This rule aplies to private
agencies: for, in public agencies an authority executed by a
major would be sufficient. 1 Co. Litt. 181b; Com. Dig. Attorney,
C 15; Bac. Ab. Authority, C; 1 T. R. 592.
7. The rule in commercial transactions however, is very
different; and generally when there are several agents each
possesses the whole power. For example, on a consignment of goods
for sale to two factors, (whether they are partners or not,) each
of them is understood to possess the whole power over the goods
for the purposes of the consigment. 3 Wils. R. 94, 114; Story on
Ag. §43.
8. As to the persons who are capable of becoming agents, it
may be observed, that but few persons are excluded from acting as
agents, or from exercising authority delegated to them by others.
It is not, therefore, requisite that a person be sui juris, or
capable of acting in his own right, in order to be qualified to
act for others. Infants, femes covert, persons attainted or
outlawed, aliens and other persons incompetent for many purposes,
may act as agents for others. Co. Litt. 62; Bac. Ab. Authority,
B; Com. Dig. Attorney, C 4; Id. Baron and Feme, P 3; 1 Hill,
S. Car. R. 271; 4 Wend. 465; 3 Miss. R. 465; 10 John. R. 114;
3 Watts, 39; 2 S. & R. 197; 1 Pet. R. 170.
9. But in the case of a married woman, it is to be observed,
that she cannot be an agent for another when her husband
expressly dissents, particularly when he may be rendered liable
for her acts. Persons who have clearly no understanding, as
idiots and lunatics cannot be agents for others. Story on Ag. §7.
10. There is another class who, though possessing
understanding, are incapable of acting as agents for others;
these are persons whose duties and characters are incompatible
with their obligations to the principal. For example, a person
cannot act as agent in buying for another, goods belonging to
himself. Paley on Ag. by Lloyd, 33 to 38; 2 Ves. Jr. 317. 11. An
agent has rights which he can enforce, and is, liable to
obligations which he must perform. These will be briefly
considered:
1. The rights to which agents are entitled, arise from
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obligations due to them by their principals, or by third persons.
12 - 1. Their rights against their principals are, 1., to
receive a just compensation for their services, when faithfully
performed, in execution of a lawful agency, unless such services,
are entirely gratuitous, or the agreement between the parties
repels such a claim; this compensation, usually called a
commission, is regulated either by particulaar agreement, or by
the usage of trade, or the presumed intention of the parties. 8
Bing. 65; 1 Caines, 349; 2 Caines, 357.
2. To be reimbursed all their just advances, expenses and
disbursemnts made in the course of their agency, on account of,
or for the benefit of their principal; 2 Liverm. on Ag. 11-23;
Story on Ag. §335; Story on Bailm. §196; Smith on Mer. Law, 56;
6 East, 392; and also to be paid interest upon such advances,
whenever from the nature of the business, or the usage of trade,
or the particular agreement of the parties, it may be fairly
presumed to have been stipulated for, or due to the agent. 7
Wend. 315; 3 Binn. 295; 3 Caines, 226; 3 Camp. 467; 15 East,
223.
13. Besides the personal remedies which an agent has to enfored
his claims against his principal for his commissions and,
advancements, he has a lien upon the property of the principal in
his hand. See Lien, and Story on Ag. §351 to 390.
14. - 2. The rights of agents against third penons arise,
either on contracts made between such third persons and them, or
in consequence of torts committed by the latter. 1. The rights of
agents against third persons on contracts, are, 1st, when the
contract is in writing and made expressly with the agent, and
imports to be a contract personally with him, although he may be
known to act as an agent; as, for example, when a promissory
note is given to the agent as such, for the benefit of his
principal, and the promise is to pay the money to the agent, oe
nomine. Story on Ag. 393, 394; 8 Mass. 103; see 6 S.& R. 420;
1 Lev. 235; 3 Camp. 320; 5 B.& A. 27. 2d. When the agent is the
only known or ostensible pincipal, and therefore, is in
contemplation of law, the real contracting party. Story on Ag.
§226, 270, 399. As, if an agent sell goods of his principal in
his own name, as if he were the owner, he is entitled to sue the
buyer in his own name; although his prncipal may also sue. 12
Wend. 413; 5 M.& S. 833. And on the other hand, if he so buy, he
may enforce the contract by action. 3d. When, by the usage of
trade, the agent is authorized to act as owner, or as a principal
contracting party, although his character as agent is known, he
may enforce his contract by action. For example, an auctioner,
who sells the goods of another may maintain an action for the
price, because he has a possession coupled with an interest in
the goods, and it is a general rule, that whenever an agent,
though known as such, has a special property in the
subject-matter of the contract, and not a bare -custody, or when
he has acquired an interest, or has a lien upon it, he may sue
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upon the contract. 2 Esp. R. 493; 1 H. Bl. 81, 84; 6 Wheat.
665; 3 Chit. Com. Law, 10; 3 B. & A. 276. But this right to
bring an action by agents is subordinate to the rights of the
principal, who may, unless in particular cases, where the agent
has a lien, or some other vested right, bring a suit himself, and
suspend or extinguish the right of the agent. 7 Taunt. 237, 243;
2 Wash. C. C. R. 283. 2. Agents are entitled to actions against
third persons for torts committed against them in the course of
their agency. 1st. They may maintain actions, of trespass or
trover against third persons for any torts or injuries affecting
their possession of the goods which they hold as agents. Story on
Ag. §414; 13 East, 135; 9 B. & Cressw. 208; 1 Hen. Bl. 81. 2d.
When an agent has been induced by the fraud of a third person to
sell or buy goods for his principal, and he has sustained loss,
he may maintain an action against such third person for such
wrongful act, deceit, or fraud. Story on Ag. §415.
15 - §2. Agents are liable for their acts, 1, to their
principals; and 2, to third person.
16. - 1. The liabilities of agents to their principals arise
from a violation of their duties and obligations to the
principal, by exceeding their authority, by misconduct, or by any
negligence or omission, or act by which the principal sustains a
loss. 3 B. & Adol. 415; 12 Pick. 328. Agents may become liable
for damages and loss under a special contract, contrary to the
general usages of trade. They may also become responsible when
charging a del credere commission. Story on Ag. §234.
17. - 2. Agents become liable to third persons; 1st, on their
contract; 1, when the agent, undertakes to do an act for
another, and does not possess a sufficient authority from the
principal, and that is unknown to the other party, he will be
considered as having acted for himself as a principal. 3 B. 9
Adol. 114. 2. When the agent does not disclose his agency, he
will be considered as a principal; 2 Ep. R. 667; 15 East, 62;
12 Ves. 352; 16 Martin's R. 530; and, in the case of agents or
factors, acting for merchants in a foreign country, they will be
considered liable whether they disclose their principal or not,
this being the usage of the trade; Paley on Ag. by Lloyd, 248,
373; 1 B.& P. 368; but this presumption may be rebutted by
proof of a contrary agreement. 3. The agent will be liable when
he expressly, or by implication, incurs a personal
responsibility. Story on Ag. §156-159. 4. When the agent makes a
contract as such, and there is no other responsible as principal,
to whom resort can be had; as, if a man sign a note as "guardian
of AB," an infant; in that case neither the infant nor his
property will be liable, and the agent alone will be responsible.
5 Mass. 299; 6 Mass., 58. 2d. Agents become liable to third
persons in regard to torts or wrongs done by them in the course
of their agency. A distinction has been made, in relation to
third persons, between acts of misfeasance and non-feasance: an
agent is, liable for the former, under certain circumstances, but
not for the latter; he being responsible for his non-feasance
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only to his principal. Story on Ag. §309, 310. An agent is liable
for misfeasance as to third persons, when, intentionally or
ignorantly, he commits a wrong, although authorized by his
principal, because no one can lawfully authorize another to
commit a wrong upon the rights or property of another. 1 Wils. R.
328; 1 B. & P. 410. 3d. An agent is liable to refund money,
when payment to him is void ab initio, so that, the money was
never received for the use of his principal, and he is
consequently not accountable to the latter for it, if he has not
actually paid it over at the time he receives notice of the take.
2 Cowp. 565; 10 Mod. 233; M.& S. 344. But unless "caught with
the money in his possession," the agent is not responsible. 2
Moore, 5; 8 Taunt. 136; 9 Bing. 878; 7 B.& C. 111; 1 Cowp.
69; 4 Taunt. 198. This last rule is, however, subject to this
qualification, that the money shall have been lawfully received
by the agent; for if, in receiving it, the agent was a
wrongdoer, he will not be exempted from liability by payment to
his principal. 1 Campb. 396; 8 Bing. 424; 1 T. R. 62; 2 Campb.
122; 1 Selw. N. P. 90, n.; 12 M. & W. 688; 6 A.& Ell. N. S.
280; 1 Taunt. 359; 3 Esp. 153.
See Diplomatic dgent.
AGENT AND PATIENT. This phrase is used to indicate the state of
a person who is required to do a thing, and is at the same time
the person to wbom it is done; as, when a man is indebted to
another, and he appoints him his executor, the latter is required
to pay the debt in his capacity of executor, and entitled to
receive it in his own right, he is then agent and patient. Termes
de la ley.
AGGRAVATION, crimes, torts. That which increases the enormity
of a crime or the injury of a wrong. The opposite of extenuation.
2. - When a crime or trespass has been committed under
aggravating circumstances, it is punished with more severity;
and, the damages given to vindicate the wrong are greater.
AGGRAVATION, in pleading. The introduction of matter into the
declaration which tends to increase the amount of damages, but
does not affect the right of action itself. Steph. Pl. 257; 12
Mod. 597. See 3 An. Jur. 287, 313. An example of this is found in
the case where a plaintiff declares in trespass for entering his
house, and breaking his close, and tossing his goods about; the
entry of the house is the principal ground and foundation of the
action, and the rest is only stated by way of agravation; 3
Wils. R. 294; and this matter need not be proved by the plintiff
or answered by the defendant.
AGGREGATE. A collection of particular persons or items, formed
into one body; as a corporation aggregate, which is one formed
of a number of natural persons; the union of individual charges
make an aggregate charge.
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AGGRESSOR, crim. law. He who begins, a quarrel or dispute,
either by threatening or striking another. No man may strike
another because he has threatened, or in consequence of the use
of any words.
AGIO, aggio. This term is used to denote the difference of
price beteen the value of bank notes and nominal money, and the
coin of the country. - Encyc.
AGIST, in contrads. The taking of other men's cattle on one's
own ground at a certain rate. 2 Inst. 643; 4 Inst. 293.
AGISTER. One who takes horses or other animals to agist.
2. The agister is not, like an innkeeper, bound to take all
horses offered to him, nor is he liable for any injury done to
such animals in his care, unless he has been guilty of
negligence, or from his ignorance, negligence may be inferred.
Holt's R. 457.
AGISTMENT, contracts. The taking of another person's cattle
into one's own ground to be fed, for a consideration to be paid
by the owner. The person who receives the cattle is called an
agister.
2. An agister is bound to ordinary diligence, and of course is
responsible for loses by ordinary negligence; but he does not
insure the safety of the cattle agisted. Jones, Bailm. 91; I
Bell's Com. 458; Holt's N. P. Rep. 547; Story, Bail. §443;
Bac. Ab. Tythes, C l.
AGNATES. In the sense of the Roman law were those whose
propinquity was connected by males only; in the relation of
cognates, one or more females were interposed.
2. By the Scotch lanv, agnates are all those who ar related by
the father, even though females intervene; cognates are those
who are related by the mother. Ersk. L. Scot. B. 1, t. 7, s. 4.
AGNATI, in descents. Relations on the father's side: they are
different from the cognati, they being relations on the mother's
side, affines, who are allied by marriage, and the propinqui, or
relations in general. 2 Bl. Com. 235; Toull. Dr. Civ. Fr. tome
1, p. 139; Poth. Pand. Tom. 22, p. 27. Calvini Lex.
AGNATION, in descents. The relation by blood which exists
between such males as are descended from the same father; in
distinction from cognation or consanguinity, which includes the
descendants from females. This term is principally used in the
civil law.
AGRARIAN LAW. Among the Romans, this name was given to a law,
which had for its object, the division among the people of all
the lands which had been con-
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quered, and which belonged to the domain of the state.
AGREEMENT, contract. The consent of two or more persons
concurring, respecting the transmissiou of some property, right
or benefit, with a view of contracting an obligation. Bac. Ab.
h.t.; Com. Dig. h.t.; Vin. Ab. h.t.; Plowd. 17; 1 Com. Contr.
2; 5 East's R. 16. It will be proper to consider, 1, the
requisites of an agreement; 2, the kinds of agreements; 3, how
they are annulled.
2. - 1. To render an agreement complete six things must concur;
there must be, 1, a person able to contract; 2, a person able to
be contracted with; 3, a thing to be contracted for; 4, a
lawful consideration, or quid pro quo; 5, words to express the
agreement; 6, the assent of the contracting parties. Plowd. 161;
Co. Litt. 35, b.
3. - 2. As to their form, agreements are of two kinds; 1, by
parol, or, in writing, as contradistinguished from specialties;
2, by specialty, or under seal. In relation to their performance,
agreements are executed or executory. An agreement is said to be
executed when two or more persons make over their respective
rights in a thing to one another, and thereby change the property
therein, either presently and at once, or at a future time, upon
some event that shall give it full effect, without either party
trusting to the other; as where things are bought, paid for and
delivered. Executory agreements, in the ordinary acceptation of
the term, are such contracts as rest on articles, memorandums,
parol promises, or undertakings, and the like, to be performed
in future, or which are entered into preparatory to more solemn
and formal alienations of prtperty. Powel on Cont. Agreements are
also conditional and unconditional. They are conditional when
some condition must be fulfilled before they can have full
effect; they are unconditional when there is no condition
attached;
4. - 3. Agreements are annulled or rendered of no effect,
first, by the acts of the parties, as, by payment; release -
accord and satisfction; rescission, which is express or implied;
1 Watts & Serg. 442; defeasance; by novation: secondly, by the
acts of the law, as, confusion; merger; lapse of time; death,
as when a man who has bound himself to teach an apprentice, dies;
extinction of the thing which is the subject of the contract, as,
when the agreement is to deliver a certain horse and before the
time of delivery he dies. See Discharge of a Contract.
5. The writing or instrument containing an agreement is also
called an agreement, and sometimes articles of agreement.(q. V.)
6. It is proper, to remark that there is much dfference between
an agreement and articles of agreement which are only evidence of
it. From the moment that the parties have given their consent,
the agreement or contraet is formed, and, whether it can be
proved or not, it has not less the quality to bind both
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contracting parties. A want of proof does not make it null,
because that proof may be supplied aliunde, and the moment it is
obtained, the contract may be-enforced.
7. Again, the agreement may be mull, as when it was obtained by
fraud, duress, and the like; and the articles of agreement may
be good, as far as the form is concerned. Vide Contract. Deed;
Guaranty; Parties to Contracts.
AGRI. Arable land in the common fields. Cunn. Dict. h. t.
AGRICULTURE. The art of cultivating the earth in order to
obtain from it the divers things it can produce; and
particularly what is useful to man, as grain, fruit's, cotton,
flax, and other things. Domat, Dr. Pub. liv. tit. 14, s. 1, n. 1.
AID AND COMFORT. The constitution of the United States, art. 8,
s. 3, declares, that adhering to the enemies of the United
States, giving them aid and comfort, shall be treason. These
words, as they are to be understood in the constitution, have not
received a full judicial construction. They import, however,
help, support, assistance, countenance, encouragement. The word
aid, which oocurs in the Stat. West. 1, c. 14, is explained by
Lord Coke (2 just. 182) as comprehending all persons counselling,
abetting, plotting, assenting, consenting, and encouraging to do
the act, (and he adds, what is not applicable to the Crime to
treason,) who are not present when the act is done, See, also, 1
Burn's Justice, 5, 6; 4 Bl. Com. 37, 38.
AID PRAYER, English law. A petition to the court calling in
help from another person who has an interest in the matter in
dispute. For example, a tenant for life, by the courtesy or for
years, being impleaded, may pray aid of him in reversion; that
is, desire the court that he may be called by writ, to allege
what he thinks proper for the maintenance of the right of the
person calling him, and of his own. F. N. B. 60; Cowel.
AIDERS, crim. law. Those who assist, aid, or abet the
principal, and who are principals in the second degree. 1.
Russell, 21.
AIDS, Engl. law. Formerly they were certain sums of money
granted by the tenant to his lord in times of difficulty and
distress, but, as usual in such cases, what was received as a
gratuity by the rich and powerful from the weak and poor, was
soon claimed as a matter of right; and aids became a species of
tax to be paid by the tenant to his lord, in these cases: 1. To
ransom the lord's person, when taken priisoner; 2. To make the
lord's eldest son a knight; - 3. To marry the lord's eldest
daughter, by giving her a suitable portion. The first of these
remained uncertain; the other two were fixed by act of
parliament at twenty shillings each being the supposed twentieth
part of a knight's fee, 2 Bl. Com. 64.
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AILE or AYLE, domestic relations. This is a corruption of the
French word aieul, grandfather, avus. 3.Bl. Com. 186.
AIR. That fluid transparent substance which surrounds our
globe.
2. No property can be had in the air it belongs equally to all
men, being indispensable to their existence. To poison or
materially to change the air, to the annoyance of the public, is
a nuisance. Cro. Cr. 610; 2 Ld. Raym 1163; I Burr. 333; 1 Str.
686 Hawk. B. 1, c. 75, s. 10; Dane's Ab. Index h. t. But this
must be understood with this qualification, that no one has a
right to use the air over another man's land, in such a manner as
to be injurious to him. See 4 Campb. 219; Bowy. Mod. Civ. Law,
62; 4 Bouv. Inst. n. 36 1; Grot. Droit de la Guerre et de la
Paix, liv. 2, c. 2, §3, note, 3 et 4.
3. It is the right of the proprietor of an estate to enjoy the
light and air that will come to him, and, in general, no one has
a right to deprive him of them; but sometimes in building, a man
opens windows over his neighbor's ground, and the latter,
desirous of building on his own ground, necessarily stops the
windows already built, and deprives the first builder of light
and air; this he has the right to do, unless the windows are
ancient lights, (q. v.) or the proprietor has acquired a right by
grant or prescription to have such windows open. See Crabb on R.
P. §444 to 479 and Plan. Vide Nuisance.
AJUTAGE. A conical tube, used in drawing water through an
aperture, by the use of which the quantity of water drawn is much
increased. When a privilege to draw water from a canal through
the forebay or tunnel by means of in aperture has been granted,
it is not lawful to add an adjutage, unless such was the
intention of the parties. 2 Whart. R. 477.
ALABAMA. The name of one of the new states of the United States
of America. This state was admitted into the Union by the
resolution of congress, approved December 14th, 1819, 3 Sto. L.
U. S. 1804, by which it is resolved that the state of Alabama
shall be one, and is hereby declared to be one of the United
States of America, and admitted into the Union on an equal
footing with the original states, in all respects whatever. The
convention which framed the constitution in this state, assembled
at the town of Huntsville on Monday the fifth day of July, 1819,
and continued in session by adjournment, until the second day of
August, 1819, when the constitution was adopted.
2. The powers of the government are divided by the constitution
into three distinct, departments; and each of them confided to a
separate body of magistracy, to wit: those which are legislative,
to one; those which are executive, to another; and those which
are judicial, to a third. Art. 2,
3. - 1. The legislative power of the state is vested in two
distinct branches; the one styled the senate, the other the
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house of representatives, and both together, the general assembly
of the state of Alabama. 1. The senate is never to be less than
one-fourth nor more than one-third of the whole number of
representatives. Senators are chosen by the qualified electors
for the term of three years, at the same time, in the same
manner, and at the same place, where they vote for members of the
house of representatives; one-third of the whole number of
senators are elected every year. Art. 3, s. 12. 2. The house of
representatives is to consist of not less than forty-four, nor
more than sixty members, until the number of white inhabitant's
shall be one hundred thousand; and after that event, the whole
number of representatives shall never be less than sixty, nor
more than one hundred. Art. 3, B. 9. The members of the house of
representatives are chosen by the qualified electors for the term
of one year, from the commencement of the general election, and
no longer.
4. - 2. The supreme executive power is vested in a chief
magistrate, styled the governor of the state of Alabama. He is
elected by the qualified electors, at the time and places when
they respectively vote for representatives; he holds his office
for the term of two years from the time of his installation, and
until a successor is duly qualified; and is not eligible more
than four years in any term of six years. t. 4. He is invested,
among other things, with the veto power. Ib. s. 16. In cases of
vacancies, the president of the senate acts as governor. Art. 4,
s. 18.
5. - 3. The judicial power is vested in one supreme court,
circuit courts to be held in each county in the state, and such
inferior courts of law and, equity, to consist of not more than
five members, as the general assembly may, from time to time
direct, ordain, and establish. Art. 6, S. 1.
ALBA FIRMA. Eng. law. When quit rents were reserved payable in
silver or white money, they wero called white rents, or blanch
farms reditus albi. When they were reserved payable in work,
grain, or the like, they were called reditus nigri or black mail.
2 Inst. 19.
ALCADE, Span. law. The name of a judicial officer in Spain, and
in those countries which have received the body of their laws
from those of Spain.
ALDERMAN. An officer, generally appointed or elected in towns
corporate, or cities, possessing various powers in different
places.
2. The aldermen of the cities of Pennsylvania, possess all the
powers and jurisdictions civil and criminal of justices of the
peace. They are besides, in conjunction with the respective
mayors or recorders, judges of ibe mayor's courts.
3. Among the Saxons there was an officer called the ealderman.
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ealdorman, or aldernwn, which appellation signified literally
elderman. Like the Roman senator, he was so called, not on
account of his age, but because of his wisdom and dignity, non
propter oetatem sed propter sapientism et dignitatem. He presided
with the bisbop at the scyregemote, and was, ex officio, a member
of the witenagemote. At one time he was a military officer, but
afterwards his office was purely judical.
4. There were several kinds of aldermen, as king's aldermen,
aldermen of all England, aldermen of the county, aldermen of the
hundred, &c., to denote difference of rank and jurisdiction.
ALEA; civil law. The chance of gain or loss in a contract.
This chance results either from the uncertainty of the thing
sold, as the effects of a succession; or from the uncertainty of
the price, as when a thing is sold for an annuity, which is to be
greater or less on the happening of a future event; or it
sometimes arises in consequence of the uncertainty of both. 2
Duv. Dr. Civ. Fr. n. 74.
ALEATORY CONTRACTS, civil law. A mutual agreement, of which the
effects, with respect both to the advantages and losses, whether
to all the parties, or to some of them, depend on an uncertain
event. Civ. Code of Louis. art. 2951.
2. - These contracts are of two kinds; namely, 1. When one of
the parties exposes himself to lose something which will be a
profit to the other, in consideration of a sum of money which the
latter pays for the risk. Such is the contract of insurance; the
insurer takes all the risk of the sea, and the assured pays a
premium to the former for the risk which he runs.
3. - 2. In the second kind, each runs a risk which is the
consideration of the engagement of the other; for example, when
a person buys an annuity, he runs the risk of losing the
consideration, in case of his death soon after, but he may live
so as to receive three times the amount of the price he paid for
it. Merlin, Rep. mot Aleatoire.
ALER SANS JOUR, or aller sans jour, in practice. A French
phrase which means go without day; and is used to signify that
the case has been finally dismissed the court, because there is
no further day assigned for appearance. Kitch. 146.
ALFET, obsolete. A vessel in which hot water was put, for the
purpose of dipping a criminal's arm in it up to the elbow.
ALIA ENORMIA, pleading. And other wrongs. In trespass, the
declaration ought to conclude "and other wrongs to the said
plaintiff then and there did, against the peace," &c.
2. Under this allegation of alia enormia, some matters may be
given in evidence in aggravatiou of damages, though not specified
in other parts of the declaration. Bull. N. P. 89; Holt, R. 699,
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700. For example, a trespass for breaking and entering a house,
the plaintiff may, in aggravation of damages, give in evidence
the debauching of his daughter, or the beating of his servants,
under the general allegation alia enormia, &c. 6 Mod. 127.
3. But under the alia nomia no evidence of the loss of service,
or any other matter which would of itself sustain an action; for
if it would, it should be stated specially. In trespass quare
clausum fregit, therefore, the plaintiff would not, under the
above general allegation, be permitted to give evidence of the
defendant's taking away a horse, &c. Bull. N. P. 89; Holt, R.
700; 1 Sid. 225; 2 Salk. 643; 1 Str. 61; 1 Chit. Pl. 388; 2
Greenl. Ev. §278.
ALIAS, practice. This word is prefixed to the name of a second
writ of the same kind issued in the same cause; as, when a
summons has been issued and it is returned by the sheriff, nil,
and another is issued, this is called an alias summons. The term
is used to all kinds of writs, as alias fi. fa., alias vend.
exp. and the like. Alias dictus, otherwise called; a description
of the defendant by an addition to his real name of that by wbich
he is bound in the writing; or when a man is indicted and his
name is uncertain, he may be indicted as A B, alias dictus C D.
See 4 John. 1118; 1 John. Cas. 243; 2 Caines, R. 362; 3
Caines, R. 219.
ALIBI, in evidence. This is a Latin word which signifies,
elsewhere.
2. When a person, charged with a crime, proves (se eadem die
fuisse alibi,) that he was, at the time alleged, in a different
place from that in which it was committed, he is said to prove an
alibi, the effect of which is to lay a founation for the
necessary inference, that he could not have committed it. See
Bract. fo. 140, lib. 3, cap. 20, De Corona.
3. This proof is usually made out by the testimony of
witnesses, but it is presumed it might be made out by writings;
as if the party could prove by a record properly authenticated,
that on the day or at the time in question, he was in another
place.
4. It must be admitted that mere alibi evidence lies under a
great and general prejudice, and ought to be heard with un-common
caution; but if it appear, to be founded in truth, it is the
best negative evidence that can be offered; it is really
positive evidence, which in the nature of things necessarily
implies a negative; and in many cases it is the only evidence
which an innocent man can offer.
ALIEN, persons. One born out of the jurisdiction of the United
States, who has not since been naturalized uuder their
constitution and laws. To this there are some exceptions, as this
children of the ministers of the United States in foreign courts.
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See Citizen, Inhabitant.
2. Aliens are subject to disabilities, have rights, and are
bound to perform duties, which will be briefly considered. 1.
Disabilities. An alien cannot in general acquire title to real
estate by the descent, or by other mere operation of law; and if
he purchase land, he may be divested of the fee, upon an inquest
of office found. To this general rule there are statutory
exceptions in some of the states; in Pennsylvania, Ohio,
Louisiana, New Jersey, Rev. Laws, 604, and Michigan, Rev. St.
266, s. 26, the disability has been removed; in North Carolina,
(but see Mart. R. 48; 3 Dev. R. 138; 2 Hayw. 104, 108; 3
Murph. 194; 4 Dev. 247; Vermont and Virginia, by constitutional
provision; and in Alabama, 3 Stew R. 60; Connecticut, act of
1824, Stat. tit. Foreigners, 251; Indiana, Rev. Code, a. 3, act
of January 25, 1842; Illinois, Kentucky, 1 Litt. 399; 6 Mont.
266 Maine, Rev. St,. tit. 7, c. 93, s. 5 Maryland, act of 1825,
ch. 66; 2 Wheat. 259; and Missouri, Rev. Code, 1825, p. 66, by
statutory provision it is partly so.
3. An alien, even after being naturalized, is ineligible to the
office of president of the United States; and in some states, as
in New York, to that of govenor; he cannot be a member of
congress, till the expiration of seven years after his
naturalization. An alien can exercise no political rights
whatever; he cannot therefore vote at any political election,
fill any office, or serve as a juror. 6 John. R. 332.
4. - 2. An alien has a right to acquire personal estate, make
and enforce contracts in relation to the same - he is protected
from injuries, and wrongs, to his person and property, his
relative rights and character; he may sue and be sued.
5. - 3. He owes a temporary local allegiance, and his property
is liable to taxation. Aliens are either alien friends or alien
enemies. It is only alien friends wbo have the rights above
enumerated; alien enemies are incapable, during the existence of
war to sue, and may be ordered out of the covntry. See generally,
2 Kent. Com. 43 to 63; 1 Vin. Ab. 157; 13 Vin. ab. 414; Bac.
Ab. h.t.; 1 Saund. 8, n.2; Wheat. Dig. h.t.; Bouv. Inst.
Index, h.t.
ALIENAGE. The condition or state of alien.
ALIENATE, aliene, alien. This is a generic term applicable to
the various methods of transfering property from one person to
another. Lord Coke, says, (1 Inst. 118 b,) alien cometh of the
verb alienate, that is, alienum facere vel ex nostro dominio in
alienum trawferre sive rem aliquam in dominium alterius
transferre. These methods vary, according to the nature of the
property to be conveyed and the particular objects the conveyance
is designed to accomplish. It has been held, that under a
prohibition to alienate, long leases are comprehended. 2 Dow's
Rep. 210.
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ALIENATION, estates. Alienation is an act whereby one man
transfers the property and possession of lands, tenements, or
other things, to another. It is commonly applied to lands or
tenements, as to alien (that is, to convey) land in fee, in
mortmain. Termes de la ley. See Co. Litt. 118 b; Cruise Dig.
tit. 32, c. 1, §1-8.
2. Alienations may be made by deed; by matter of record; and
by devise.
3. Alienations by deed may be made by original or primary
conveyances, which are those by means of which the benefit or
estate is created or first arises; by derivative or secondary
conveyances, by which the benefit or estate originally created,
is enlarged, restrained, transferred, or extinguished. These are
conveyances by the common law. To these may be added some
conveyances which derive their force and operation from the
statute of uses. The original conveyances are the following: 1.
Feoffment; 2. Gift; 3. Grant; 4. Lease; 6. Exchange; 6.
Partition. The derivative are, 7. Release; 8. Confirmation; 9.
Surrender; 10. Assignment; 11. Defeasance. Those deriving their
force from the statute of uses, are, 12. Covenants to stand
seised to uses; 13. Bargains and sales; 14. Lease and release;
15. Deeds to lend or declare the uses of other more direct
conveyances; 16. Deeds of revocation of uses. 2 Bl. Com. ch. 20.
Vide Conveyance; Deed. Alienations by matter of record may be,
1. By private acts of the legislature; 2. By grants, as by
patents of lands; 3. By fines; 4. By common recovery.
Alienations may also be made by devise (q.v.)
ALIENATION, med. jur. The term alienation or mental alienation
is a generic expression to express the different kinds of
aberrations of the human understandiug. Dict. des Science Med. h.
t.; 1 Beck's Med. Jur. 535.
ALIENATION OFFICE, Engligh law. An office to which all writs of
covenants and entries are carried for the recovery of fines
levied thereon. See Alienate.
TO ALIENE, contracts. See Alienate.
ALIENEE. One to whom an alienation is made.
ALIEXI JURIS. Words applied to persons who are subject to the
authority of another. An infant who is under the authority of
his father or guardian, and a wife under the power of her
husband, are said to be alieni juris. Vide sui juris.
ALIENOR. He who makes a grant or alienation.
ALIMENTS. In the Roman and French law this word signifies the
food and other things necessary to the support of life, as
clothing and the like. The same name is given to the money
allowed for aliments. Dig. 50, 16, 43.
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2. By the common law, parents and children reciprocally owe
each other aliments or maintenance. (q. v.) Vide 1 Bl. Com. 447;
Merl. Rep. h. t.; Dig. 25, 3, 5. In the common law, the word
alimony (q.v.) is used. Vide Allowance to a Prisoner.
ALIMONY. The maintenance or support which a husband is bound to
give to his wife upon separation from her; or the support which
either father or mother is bound to give to his or her children,
though this is more usually called maintenance.
2. The causes for granting alimony to the wife are, 1,
desertion, (q. v.) or cruelty of the husband; (q. v.) 4 Desaus.
R. 79,; 1 M'Cord's Ch. R. 205; 4 Rand. R. 662; 2 J. J; Marsh.
R. 324.; 1 Edw. R. 62; and 2, divorce. 4 Litt. R. 252; 1 Edw.
R. 382; 2 Paige, R. 62; 2 Binn. R. 202; 3 Yeates, R. 50; S.&
R. 248; 9 S.& R. 191; 3 John. Ch. R. 519; 6 John. Ch. 91.
3. In Louisiana by alimony is meant the nourishment, lodging
and support of the person who claims it. It includes education
when the person to whom alimoiay is due is a minor. Civil Code of
L. 246.
4. Alimony is granted in proporion to the wants of the person
requiring it, and the circumstances of those who are to pay it.
By the common law, parents and children owe each other alimony. 1
Bl. Com. 447; 2 Com. Dig. 498;. 3 Ves. 358; 4 Vin. Ab. 175;
Ayl. Parerg. 58; Dane's Ab. Index. h.t.; Dig. 34, 1. 6.
5. Alimony is allowed to the wife, pendente lite, almost as a
matter of course whether she be plaintiff or defendant, for the
obvious reason that she has generally no other means of living. 1
Clarke's R. 151. But there are special cases where it will not be
allowed, as when the wife, pending the progress of the suit, went
to her father's, who agreed with the husband to support her for
services. 1 Clarke's R. 460. See Shelf. on Mar. and Div. 586; 2
Toull. n. 612.
ALITER, otherwise. This term is frequently used to point out a
difference between two decisions; as, a point of law has been
decided in a particular way, in such a case, aliter in another
case.
ALIUNDE. From another place; evidence given aliunde, as, when
a will contains an ambiguity, in some cases, in order to
ascertain the meaning of the testator, evidence aliunde will be
received.
ALL FOURS. This is a metaphorical expression, to signify that a
case agrees in all its circumstances with another case; it goes
as it were upon its four legs, as an animal does.
ALLEGATA. A word which the emperors formerly signed at the
bottom of their rescripts and constitutions; under other
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instrumets they usually wrote nata or testate. Ency. Lond.
ALLEGATA AND PROBATA. The allegations made by a party to a
suit, and the proof adduced in their support. It is a general
rule of evidence that the allegata and probata must correspond;
that is, the proof must at least be sufficiently extensive to
cover all the allegations of the party. Greenl. Ev. §51; 3 R. s.
636.
ALLEGATION, English ecclesiastical law. According to the
practice of the prerogative court, the facts intended to be
relied on in support of the contested suit are set forth in the
plea, which is termed an allegation; this is submitted to the
inspection of the counsel of the adverse party, and, if it appear
to them objectionable in form or substance, they oppose the
admission of it. If the opposition goes to the substance of the
allegation, and is held to be well founded, the court rejects it;
by which mode of proceeding the suit is terminated without, going
into any proof of the facts. 1 Phil. 1, n.; 1 Eccl. Rep. ll, n.
S. C. See 1 Brown's Civ. Law, 472, 3, n.
ALLEGATION, common law. The assertion, declaration or statement
of a party of what he can prove.
ALLEGATI6N, civil law. The citation or reference to a voucher
to support a proposition. Dict. de jurisp.; Encyclopedie, mot
Allegation; 1 Brown's Civ. Law, 473, n.
ALLEGATION OF FACULTIES When a suit is instituted in the
English ecclesiastical courts, in order to obtain alimony, before
it is allowed, an alIegation must be made on the part of the
wife, stating the property of the husband. This allegation is
called an allegation of faculties. Shelf. on Mar. and Div. 587.
ALLEGIANCE. The tie which binds the citizen to the government,
in return for the protection which the government affords him.
2. It is natural, acquired, or local. Natural allegiance is
such as is due from all men born within the United States;
acquired allegiance is that which is due by a naturalized
citizen. It has never been decided whether a citizen can, by
expatriation, divest himself absolutely of that character. 2
Cranch, 64; 1 Peters' C. C. Rep. 159; 7 Wheat. R. 283; 9 Mass.
R. 461. Infants cannot assume allegiance, (4 Bin. 49) although
they enlist in the army of the United States. 5 Bin. 429.
3. It seems, however, that he cannot renounce his allegiance to
the United States without the permission of the government, to be
declared by law. But for commercial purposes he may acquire the
rights of a citizen of another country, and the place of his
domicil determines the character of a party as to trade. 1 Kent,
Com. 71; Com. Rep. 677; 2 Kent, Com. 42.
4. Local allegiance is that which is due from an alien, while
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resident in the United States, for the protection which the
government affords him. 1 Bl. Com. 366, 372; Com. Dig. h.t;
Dane's Ab. Index, h. t.; 1 East, P.C. 49 to 57.
ALLIANCE, relationship. The union or connexion of two persons
or families by marraiage, which is also called affinity. This is
derived from the Latin preposition ad and ligare, to bind. Vide
Inst 1, 10, 6; Dig 38, 10, 4, 3; and Affinity.
ALLIANCE, international law. A contract, treaty, or league
between two sovereigns or states, made to insure their safety and
common defence.
2. Alliances made for warlike purposes are divided in general
into defensive and offensive; in the former the nation only
engages to defend her ally in case he be attacked; in the latter
she unites with him for the purpose of making an attack, or
jointly waging the war against another nation. Some alliances are
both offensive and defensive; and there seldom is an offensive
alliance which is not also defensive. Vattel, B. 3, c. 6, §79; 2
Dall. 15.
ALLISION, maritime law. The running of one vessel against
another. It is distiguished from collision in this, that the
latter means the running of two vessels against each other; this
latter term is frequently used for allision.
ALLOCATION, Eng. law. An allowance upon account in the
Exchequer; or rather, placing or adding to a thing. Eucy. Lond.
ALLOCATIONE FACIENDA. Eng. law. A writ commanding that an
allowance be made to an accountant, for such moneys as he has
lawfully expended in his office. It is directed to the lord
treasurer and barons of the exchequer.
ALLOCATUR, practice. The allowance of a writ; e. g. when a
writ of habeeas corpus is prayed for, the judge directs it to be
done, by writing the word allowed and signing his name; this is
called the allocator. In the English courts this word is used to
indicate the master or prothonotary's allowance of a sum referred
for his consideration, whether touching costs, damages, or matter
of account. Lee's Dict. h, t.
ALLODIUM estates. Signifies an absolute estate of inheritance,
in coutradistinction to a feud.
2. In this country the title to land is essentially allodial,
and every tenant in fee simple has an absolute and perfect title,
yet in technical language his estate is called an estate in fee
simple, and the tenure free and common socage. 3 Kent, Com. 390;
Cruise, Prel. Dis. c. 1, §13; 2 Bl. Com. 45.
For the etymology of this word, vide 3 Kent Com. 398 note; 2
Bouv. Inst. n. 1692.
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ALLONGE, French law. When a bill of exchange, or other paper,
is too small to receive the endorsements which are to be made on
it, another piece of paper is added to it, and bears the name of
allonge. Pard. n. 343; Story on P. N. §121, 151; Story on
Bills, 204. See Rider.
ALLOTMENT. Distribution by lot; partition. Merl. Rep. h. t.
TO ALLOW, practice. To approve; to grant; as to allow a writ
of error, is to approve of it, to grant it. Vide Allocatur. To
allow an amount is to admit or approve of it.
ALLOWANCE TO A PRISONER. By the laws of, it is believed, all
the states, when a poor debtor is in arrest in a civil suit, the
plaintiff is compelled to pay an allowance regulated by law, for
his maintenance and support, and in default of such payment at
the time required, the prisoner is discharged. Notice must be
given to the plaintiff before the defendant can be discharged.
ALLOY, or ALLAY. An inferior metal, used with gold. and silver
in making coin or public money. Originally, it was one of the
allowances known by the name of remedy for errors, in the weight
and purity of coins. The practice of making such allowances
continued in all European mints after the reasns, upon which they
were originally founded, had, in a great measure, ceased. In the
imperfection of the art of coining, the mixture of the metals
used, and the striking of the coins, could not be effected with,
perfect accuracy. There would be some variety in the mixture of
metals made at different times, although intended to be in the
same proportions, and in different pieces of coin, although
struck by the same process and from the same die. But the art of
coining metals has now so nearly attained perfection, that such
allowances have become, if not altogether, in a great measure at
least, unnecessary. The laws of the United States make no
allowance for deficiencies of weight. See Report of the Secretary
of State of the United States, to the Senate of the U. S., Feb.
22, 1821, pp. 63, 64.
2. The act of Congress of 2d of April, 1792, sect. 12, directs
that the standard for all gold coins of the United States, shall
be eleven parts fine to one part of alloy; and sect. 13, that
the standard for all silver coins of the United States, shall be
one thousand four hundred and eighty-five parts fine, to one
hundred and seventy-nine parts alloy. 1 Story's L. U. S. 20. By
the act of Congress, 18th Feb. 1831, §8, it is provided, that the
stadard for both gold and silver coim of the United States, shall
be such, that of one thousand parts by weight, nine hundred shall
be of pure metal, and one hundred of alloy; and the alloy of the
silver coins shall be of copper, and the alloy of gold coins
shall be of copper and silver, provided, that the silver do not
exceed one-half of the whole alloy. See also, Smith's Wealth of
Nations, vol. i., pp. 49, 50.
ALLUVION. The insensible increase of the earth on a shore or
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bank of a river by the force of the, water, as by a current or by
waves. It is a part of the definition that the addition, should
be so gradual that no one can judge how much is added at each
moment of time. Just. Inst. lib. 2, tit. 1, §20; 3 Barn. &
Cress. 91; Code Civil Annote No. 556. The proprietor of the bank
increased by alluvion is entitled to the addition. Alluvion
differs from avulsion in this: that the latter is sudden and
perceptible. See avulsion. See 3 Mass. 352; Coop. Justin. 458;
Lord Raym. 77; 2 Bl. Com. 262, and note by Chitty; 1 Swift's
Dig. 111; Coop. Just. lib. 2, t. 1; Angell on Water Courses,
219; 3 Mass. R. 352; 1 Gill & Johns. R. 249; Schultes on Aq.
Rights, 116; 2 Amer. Law Journ. 282, 293; Angell on Tide
Waters, 213; Inst. 2, 1, 20; Dig. 41, 1, 7; Dig. 39, 2, 9;
Dig. 6, 1, 23; Dig. 1, 41, 1, 5; 1 Bouv. Inst. pars 1, c. 1
art. 1, §4, s. 4, p. 74.
ALLY, international law. A power which has entered into an
alliance with another power. A citizen or subject of one of the
powers in alliance, is sometimes called an ally; for example,
the rule which renders it unlawful for a citizen of the United
States to trade or carry on commerce with an enemy, also
precludes an ally from similar intercourse. 4 Rob. Rep. 251; 6
Rob. Rep. 406; Dane's Ab, Index, h. t.; 2 Dall. 15.
ALMANAC. A table or calendar, in which are set down the
revolutions of the seasons, the rising and setting of the sun,
the phases of the moon, the most remarkable conjunctions,
positions and phenomena of the heavenly bodies, the months of the
year, the days of the month and week, and a variety of other
matter.
2. The courts will take judicial notice of the almanac; for
example, whether a certain day of the month was on a Sunday or
not. Vin. Ab. h. t.; 6 Mod. 41; Cro. Eliz. 227, pl. 12; 12
Vin. Ab. Evidence (A, b, 4.) In dating instrments, some sects,
the Quakers, for example, instead of writing January, February,
March, &c., use the terms, First month, Second month, Third
month, &c., and these are equally valid in such writings. Vide 1
Smith's Laws of Pennsylvania, 217.
ALLODARII, Eng. law, Book of Domesday. Such tenants, wbo have
as large an estate as a subject can have. 1 Inst. 1; Bac. Ab
Tenure, A.
ALMS. In its most extensive sense, this comprehends every
species of relief bestowed upon the poor, and, therefore,
including all charities. In a more, limited sense, it signifies
what is given by public authority for the relief of the poor.
Shelford on Mortmain, 802, note (x); 1 Dougl. Election Cas. 370;
2 Id. 107; Heywood on Elections, 263.
ALTA PRODITIO, Eng. law. High treason.
ALTARAGE, eccl. law. Offerings made on the altar; all profits
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which accrue to the priest by means of the altar. Ayl. Par. 61;
2 Cro. 516.
TO ALTER. To change. Alterations are made either in the
contract itself, or in the instrument which is evidence of it.
The contract may at any time be altered with the consent of the
parties, and the alteration may be either in writing or not in
writing.
2. It is a general rule that the terms of a contract under
seal, cannot be changed by a parol agreement. Cooke, 500; 3
Blackf. R. 353; 4 Bibb. 1. But it has been decided that an
alteration of a contract by specialty, made by parol, makes it
all parol. 2 Watts, 451; 1 Wash. R. 170; 4 Cowen, 564; 3 Harr.
& John. 438; 9 Pick. 298; 1 East, R. 619; but see 3 S.& R.
579.
3. When the contract is, in writing, but not under seal, it may
be varied by parol, and the whole will make but one agreement. 9
Cowen, 115; 5.N. H. Rep. 99; 6 Harr. & John, 38; 18 John. 420;
1 John. Cas. 22; 5 Cowen, 606; Pet. C. C. R. 221; 1 Fairf.
414.
4. When the contract is evidenced by a specialty, and it is
altered by parol, the whole will be considered as a parol
agreement. 2 Watt 451; 9 Pick. 298. For alteration of
instruments see Erasure; Interlineation. See, generally, 7
Greenl. 76, 121, 394; 15 John. 200; 2 Penna. R. 454.
ALTERATION. An act done upon an instrument in writing by a
party entitled under it, without the consent of the other party,
by which its meaning or language is changed; it imports some
fraud or design on the part of him who made it. This differs from
spoliation, which is the mutilation of the instrument by the act
of a stranger.
2. When an alteration has a tendency to mislead, by so changing
the character of the instrument, it renders it void; but if the
change has not such tendency, it will not be considered an
alteration. 1 Greenl. Ev. 566.
3. A spoliation, on the contrary, will not affect the legal
character of the instrument, so long as the original writing
remains legible; and, if it be a deed, any trace of the seal
remains. 1 Greenl. Ev. § 566. See Spoliation.
ALTERNAT. The name of a usage among diplomatists by which the
ranl and places of different powers, who have the same rights and
pretensions to precedence, are changed from time to time, either
in a certain regular order, or one determined by lot. In drawing
up treaties and conventions, for example, it is the usage of
certain powers to alternate, both in the preamble and the
signatures, so that each power occupies, in the copy intended to
be delivered to it, the first place. Wheat. Intern. Law, pt. 2,
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c. 3, § 4..
ALTERNATIVE. The one or the other of two things. In contracts a
party has frequently the choice to perform one of several things,
as, if he is bound to pay one hundred dollars, or to deliver a
horse, he has the alternative. Vide Election; Obligation;
Alternative.
ALTIUS NON TOLLENDI, civil law. The name of a servitude due by
the owner of a house, by which he is restrained from building
beyond a certain height. Dig. 8, 2, 4, and 1, 12, 17, 25.
ALTIUS TOLLENDI, civil law. The name of a servitude which
consists in the right, to him who is entitled to it, to build his
house as high as he may think proper. In general, however, every
one enjoys this privilege, unless he, is restrained by home
contrary title.
ALTO ET BASSO. High and low. This phrase is applied to an
agreement made between two contending parties to submit all
matters in dispute, alto et basso, to arbitration. Cowel.
ALTUM MARE. The high sea. (q. v.)
ALUMNUS, civil law. A child which one has nursed; a foster
child. Dig. 40, 2, 14.
AMALPHITAN CODE. The name given to a collection of sea-laws,
complied about the end of the eleventh century, by the people of
Amalphi. It consists of the laws on maritime subjects which were,
or had been, in force in counries bordering on the Mediterranean;
and, on account of its being collected into one regular system,
it was for a long time received as authority in those countries.
1 Azun. Mar. Law, 376.
AMANUENSIS. Oe who write another dictates. About the beginning
of the sixth century,, the tabellions (q.v.) were known by this
name. 1 Sav. Dr. Rom. Moy. Age, n. 16.
AMBASSADOR, interaational law. A public minister sent abroad by
some sovereign state or prince, with a legal commission and
authority to transact business on behalf of his country with the
government to which he is sent. He is a minister of the highest
rank, and represents the person of his sovereign.
2. The United States have always been represented by ministers
plenipotentiary, never having sent a person of the rald of an,
ambassador in the diplomatic sense. 1 Kent's Com. 39, n.
3. Ambassadors, when acknowledged as such, are exempted,
absolutely from all allegiance, and from all responsibility to
the laws. If, however, they should be so regardless of their
duty, and of the object of their privilege, as to insult or
openly to attack the laws of the government, their functions may
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be suspended by a refusal to treat with them, or application can
be made to their own sovereign for their recall, or they may be
dismissed, and required to depart within a reasonable time. By
fiction of law, an ambassador is considered as if he were out of
the territory of the foreign power; and it is an implied
agreement among nations, that the ambassador, while he resides in
the foreign state, shall be considered as a member of his own
country, and the government he represents has exclusive
cognizance of his conduct, and control of his person. The
attendants of the ambassador are attached to his person, and the
effects in his use are under his protection and privilege, and,
generally, equally exempt from foreign jurisdiction.
4. Ambassadors are ordinary or extraordinary. The former
designation is exclusively applied to those sent on permanent
missions; the latter, to those employed on particular or
extraordinary occasions, or residing at a foreign court for an
indeterminate period. Vattel, Droit des Gens, 1. 4, c. 6,
§§70-79.
5. The act of dtigress of April 30th, 1790, s. 25, makes void
any writ or process sued forth or prosecuted against any
ambassador authorized and received by the president of the United
States, or any domestic servant of such ambassador; and the 25th
section of the same act, punishes any person who shall sue forth
or proseeute such writ or process, and all attorneys - and
soliciters prosecuting or soliciting in such case, and all
officers executing such writ or process, with an imprisonment not
exceeding three years, and a fine at the discretion of the court.
The act provides that citizens or inhabitants of the United
States who were indebted when they went into the service of an
ambassador, shall not be protected as to such debt; and it
requires also that the names of such servants shall be registered
in the office of the secretary of state. The 16th section imposes
the like punishment on any person offering violence to the person
of an ambassador or other minister. P Vide 1 Kent, Com. 14, 38,
182; Rutherf. Inst. b. 2, c. 9; Vatt. b. 4, c. 8, s. 113; 2
Wash. C. C. R. 435; Ayl. Pand. 245; 1 Bl. Com. 253; Bac. Ab.
h. t.; 2 Vin. Ab. 286; Grot. lib. 2, c. 8, 1, 3; 1 Whart. Dig.
382; 2 Id. 314; Dig. l. 50, t. 7; Code I. 10, t. 63, l. 4;
Bouv. Inst. Index, h. t.
6. The British statute 7 Ann, cap. 12; is similar in its
provisions; it extends to the family and servants of an
ambassador, as well when they are the natives of the country in
which the ambassador resides, as when they are foreigners whom he
brings with him. (3 Burr. 1776-7) To constitute a domestic
servant within the meaning of the statute, it is not necessary
that the servant should lodge, at night in the house of the
ambassador, but it is necessary to show the nature of the service
he renders and the actual performance of it. 3 Burr. 1731; Cases
Temp. Hardw. 5. He must, in fact, prove that he is bona fide the
ambassador's servant. A land waiter at the custom house is not
such, nor entitled to the privilege of the statute. 1 Burr. 401.
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A trader is not entitled to the protection of the statute. 3
Burr. 1731; Cases Temp. Hardw. 5. A person in debt cannot be
taken into an ambassador's service in order to protect him. 3
Burr. 1677.
AMBIDEXTER. It is intended by this Latin word, to designate one
who plays on both sides; in a legal sense it is taken for a
juror or embraceor who takes money from the parties for giving
his verdict. This is seldom or never done in the United States.
AMBIGUITY, contracts, construction. When au expression has been
used in an instrument of writing which may be understood in more
than one sense, it is said there is an ambiguity,
2. There are two sorts of amiguities of words, ambiguitas
latens and ambiguitas patens.
3. The first occurs when the deed or instrument is sufficiently
certain and free from ambiguity, but the ambiguity is produced by
something extrinsic, or some collateral matter out of the
instrument; for example, if a man devise property to his cousin
A B, and he has two cousins of that name, in such case parol
evidence will be received to explain the ambiguity.
4. The second or patent ambiguity occurs when a clause in a
deed, will, or other instrument, is so defectively expressed,
that a court of law, which has to put a construction on the
instrument, is unable to collect the intention of the party. In
such case, evidence of the declaration of the party cannot be
submitted to explain his intention, and the clause will be void
for its uncertainty. In Pennsylvania, this rule is somewhat
qualified. 3 Binn. 587; 4 Binn. 482. Vide generally, Bac. Max.
Reg. 23; 1 Phu. Ev. 410 to 420; 3 Stark. Ev. 1021 ; I Com.
Dig. 575; Sudg. Vend. 113. The civil law on this subject will be
found in Dig. lib. 50, t. 17, 1. 67; lib. 45, t. 1, 1. 8; and
lib. 22, t. 1, 1. 4.
AMBULATORIA VOLUNTAS. A phrase used to designate that a man has
the power to alter his will or testament as long as he lives.
This form of phrase frequently occurs in writers on the civil
law; as ambulatoria res, ambulatoria actio, potestas, conditio,
&c. Calvini Lexic.
AMENABLE. Responsible; subject to answer in a court of justice
liable to punishment.
AMENDE HONORABLE, EngIish law. A penalty imposed upon a person
by way of disgrace or infamy, as a punishment for any offence, or
for the purpose of making reparation for any injury done to
another, as the walking into church in a white sheet, with a rope
about the neck, and a torch in the hand, and begging the pardon
of God, or the king, or any private individual, for some
delinquency.
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2. A punishment somewhat similar to this, and which bore the
same name, was common in France; it was abolished by the law of
the 25th of September, 1791. Merlin Rep. de Jur. h.'t.
3. For the form of a sentence of amende horrorable, see
D'Agaesseau, Oeuvres, 43 Plaidoyer, tom. 4, p. 246.
AMENDMENT, legislation. An alteration or change of something
proposed in a bill.
2. Either house of the legislature has a rigt to make
amendments; but, when so made, they must be sanctioned by the
other house before they can become a law. The senate has no power
to originate any money bills, (q. v,) but may propose and make
amendments to such as have passed the House of representatives.
Vide Congress; Senate.
3. The constitution of the United States, art. 5, and the
constitutions of some of the states, provide for their amendment.
The provisions contained in tho constitution of the United
States, are as follows: "Congress, whenever two-thirds of both
houses shall deem it necessary, shall propose amendments to this
constitution, or, on the application of the legislatures of
two-thirds of the several states, shall call a convention for
proposing amendments, which, in either case, shall be valid, to
all intents and purposes, as part of this constitution, when
ratified by the legislatures of three-fourths of the several
states, or by conventions in three-fourths thereof, as the one or
the other mode of ratification may be proposed by Congress:
Provided, that no amendment which may be made prior to the year
one thousand eight hundred and eight, shall, in any manner,
affect the first and fourth clauses in the ninth section of the
first article; and that no state, without its consent, shall be
deprived of its equal suffrage in the Senate."
AMMENDMENT, practice. The correction, by allowance of the
court, of an error committed in the progress of a cause.
2. Amendments at common law, independently of any statutory
provision on the subject, are in all cases in the discretion of
the court, for the furtherance of justice they may be made while
the proceedings are in paper, that is, until judgment is signed,
and during the term in which it is signed; for until the end of
the term the proceedings are considered in fieri, and
consequently subject to the control of the court; 2 Burr. 756;
3 Bl. Com. 407; 1 Salk. 47; 2 Salk. 666 ; 8 Salk. 31; Co.
Litt. 260; and even after judgment is signed, and up to the
latest period of the action, amendment is, in most cases,
allowable at the discretion of the court under certain statutes
passed for allowing amendments of the record; and in later times
the judges have been much more liberal than formerly, in the
exercise of this discretion. 3 McLean, 379; 1 Branch, 437; 9
Ala. 647. They may, however, be made after the term, although
formerly the rule was otherwise; Co. Litt. 260, a; 3 Bl. Com.
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407; and even after error brought, where there has been a
verdict in a civil or criminal case. 2 Serg. & R. 432, 3. A
remittitur damna may be allowed after error; 2 Dall. 184; 1
Yeates, 186; Addis, 115, 116; and this, although error be
brought on the ground of the excess of damages remitted. 2 Serg.
& R. 221. But the application must be made for the remittitur in
the court below, as the court of error must take the record as
they find it. 1 Serg. & R. 49. So, the death of the defendant may
be suggested after errer coram nobis. 1 Bin. 486; I Johns.
Cases, 29; Caines' Cases, 61. So by agreement of attormeys, the
record may be amended after error. 1 Bin. 75; 2 Binn. 169.
3. Amendments are, however, always Iimited by due consideration
of the rights of the opposite party; and, when by the amendment
he would be prejudiced or exposed to unreasonable delay, it is
not allowed. Vide Bac. Ab Com. Dig. h. t.; Viner's. Ab. h. t.;
2 Arch. Pr. 200; Grah. Pt. 524; Steph. Pl. 97; 2 Sell. Pr.
453; 3 Bl. Com. 406; Bouv. Inst. Index, h. t.
AMENDS. A satisfaction, given by a wrong doer to the party
injured for a wrong committed. 1 Lilly's Reg. 81.
2. By statute 24 Geo. II. c. 44, in England, and by similar
statutes in some of the United States, justices of the peace,
upon being notified of an intended suit against them, may tender
amends fore the wrong alleged or done by them in their official
character, and if found sufficient, the tender debars the action.
See Act of Penn. 21 March, 1772, §§1 and.2; Willes' Rep. 671, 2;
6 Bin. 83; 5 Serg. & R. 517, 299; 3 Id. 295; 4 Bin. 20.
AMERCEMENT, practice. A pecuniary penalty imposed upon a person
who is in misericordia; as, for example, when the defendant se
retaxit, or recessit in contemptum curioe. 8 Co. 58; Bar. Ab.
Fines and Amercements. By the common law, none can be amerced in
his absence, except for his default. Non licet aliquem in sua
absentia amerciare nisi per ejus defaltas. Fleta, lib. 2, cap.
65, §15.
2. Formerly, if the sheriff failed in obeying the writs, rules,
or orders of the court, he might be amerced; that is, a penalty
might be imposed upon bim; but this practice has been superseded
by attachment. In New Jersey and Ohio, the sheriff may, by
statutory provision, be amerced for making a return contrary to
the provision of the statute. Coxe, 136, 169; 6 Halst. 334; 3
Halst. 270, 271; 5 Halst. 319; 1 Green, 159, 341; 2 Green,
350; 2 South. 433; 1 Ham. 275; 2 Ham. 603; 6 Ham. 452;
Wright, 720.
AMERCIAMENT, AMERCEMENT, English law. A pecuniary punishment
arbitrarily imposed by some lord or count, in distinction from a
fine which is expressed according to the statute. Kitch. 78.
Amerciament royal, when the amerciament is made by the sheriff,
or any other officer of the king. 4 Bl. Com. 372.
AMI. A friend; or, as it is written in old works, amy. Vide
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Prochein amy.
AMICABLE ACTION, Pennsylvania practice. An action entered by
agreement of parties on the dockets of the courts; when entered,
such action is considered as if it, had been adversely commenced,
and the defendant had been regularly summoned. An amicable action
may be entered by attorney, independently of the provisions of
the act of 1866. 8 Er & R. 567.
AMICUS CURIAE, practice. A friend of the court. One, who as a
stander by, when a judge is doubtful or mistaken in a matter of
law, may inform the court. 2 Inst. 178; 2 Vin. Abr. 475; and
any one, as amicus curia, may make an application to the court in
favor of an infant, though he be no relation. 1 Ves. Sen. 313.
AMITA. A paternal aunt; the sister of one's father. Inst. 3,
6, 3.
AMNESTY, government. An act of oblivion of past offences,
granted by the government to those who have been guilty of any
neglect or crime, usually upon condition that they return to
their duty within a certain period.
2. An amnesty is either express or implied; it is express,
when so declared in direct terms; and it is implied, when a
treaty of peace is made between contending parties. Vide Vattel,
liv. 4, c. 2, §20, 21, 22; Encycl. Amer. h.t.
3. Amnesty and pardon, are very different. The former is an act
of the sove reign power, the object of which is to efface and to
cause to be forgotten, a crime or misdemeanor; the latter, is an
act of the same authority, which exempts the individual on whom
it is bestowed from the punishment the law inflicts for the crime
he has committed. 7 Pet. 160. Amnesty is the abolition and
forgetfulness of the offence; pardon is forgiveness. A pardon is
given to one who is certainly guilty, or has been convicted;
amnesty, to those who may have been so.
4. Their effects are also different. That of pardon, is the
remission of the whole or a part of the punishment awarded by the
law; the conviction remaining unaffected when only a partial
pardon is granted: an amnesty on the concrary, has the effect of
destroying the criminal act, so that it is as if it had not been
committed, as far as the public interests are concerned.
5. Their application also differs. Pardon is always given to
individuals, and properly only after judgment or conviction:
amnesty may be granted either before judgment or afterwards, and
it is in general given to whole classes of criminals or supposed
criminals, for the purpose of restoring tranquillity in the
state. But sometimes amnesties are limited, and certain classes
are excluded from their operation.
AMORTIZATION, contracts, English law. An alienation of lands or
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tenements in mortraain. 2 Stat. Ed. I.
2. The reduction of the property of lands or tenements to
mortmain.
AMORTISE, contracts. To alien lands in mortmain.
AMOTION. In corporations and companies, is the act of removing
an officer from his office; it differs from disfranchisement,
which is applicable to members, as such. Wille. on Corp. n. 708.
The power of amotion is incident to a corporation. 2 Str. 819; 1
Burr. 639.
2. In Rex v. Richardson, Lord Mansfield specified three sorts
of offences for which an officer might be discharged; first,
such as have no immediate relation to the office, but are in
themselves of so infamous a nature, as to render the offender
unfit to execute any public franchise; secondly, such as are
only against his oath, and the duty of his office as a
corporator, and amount to breaches of the tacit condition annexed
to his office; thirdly, the third offence is of a mixed nature;
as being an offence not only against the duty of his officer but
also a matter indictable at common law. 2 Binn. R. 448. And Lord
Mansfield considered the law as settled, that though a
corporation has express power of amotion, yet for the first sort
of offences there must be a previous indictment and conviction;
and that there was no authority since Bagg's Case, 11 Rep. 99,
which says; that the power of trial as well as of amotion, for
the second offense, is not incident to every corporation. He also
observed: "We think that from the reason of the thing, from the
nature of the corporation, and for the sake of order and good
government, this power is incident as much as the power of making
by-laws." Doug. 149.
See generally, Wilcock on Mun. Corp. 268; 6 Conn. Rep. 632; 6
Mass. R. 462; Ang. & Am. on Corpor. 236.
AMOTION, tort. An amotion of possession from an estate, is an
ouster which happens by a species of disseisin or turning out of
the legal propritor before his estate is determined. 3 Bl. Com.
198, 199. Amotion is also applied to personal chattels when they
are taken unlawfully out of the possession of the owner, or of
one who has a special property in them.
AMPLIATION, civil law. A deferring of judgment until the cause
is further examined. In this case, the judges pronounced the word
amplius, or by writing the letters N.L. for non liquet,
signifying that the cause was not clear. In practice, it is usual
in the courts when time is taken to form a judgment, to enter a
curia advisare vult; cur. adv. vult. (q. v.)
AMPLIATION, French law. Signifies the giving a duplicate of an
acquittance or other instrument, in order that it may be produced
in different places. The copies which notaries make out of acts
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passed before them, and which are delivered to the parties, are
also called ampliations. Dict. de Jur. h. t.
AMY or ami, a French word, signifying, friend. Prochein amy,
(q. v.) the next friend. Alien amy, a foreigner, the citizen or
subject of some friendly power or prince.
AN, JOUR, ET WASTE. See Year, day, and waste.
ANALOGY, comtruction. The similitude of relations which exist
between things compared.
2. To reason analogically, is to draw conclusions based on this
similitude of relations, on the resemblance, or the connexion
which is perceived between the objects compared. "It is this
guide," says Toollier, which leads the law lawgiver, like other
men, without his observing it. It is analogy which induces us,
with reason, to suppose that, following the example of the
Creator of the universe, the lawgiver has established general and
uniform laws, which it is unnecessary to repeat in all analogous
cases." Dr. Civ. Fr. liv. 3, t. 1, c. 1. Vide Ang. on Adv.
Enjoym. 30, 31; Hale's Com. Law, 141.
3. Analogy has been declared to be an argument or guide in
forming legal judgments, and is very commonly a ground of such
judgments. 7 Barn. & Cres. 168; 3 Bing. R. 265; 8 Bing R. 557,
563; 3 Atk. 313; 1 Eden's R. 212; 1 W. Bl. 151; 6 Ves. jr.
675, 676; 3 Swanst. R. 561; 1 Turn. & R. 103, 338; 1 R. & M.
352, 475, 477; 4 Burr. R. 1962; 2022, 2068; 4 T. R. 591; 4
Barn. & Cr. 855; 7 Dowl. & Ry. 251; Cas. t. Talb. 140; 3 P.
Wms. 391; 3 Bro. C. C. 639, n.
ANARCHY. The absence of all political government; by
extension, it signifies confusion in government.
ANATHEMA, eccl. law. A punishment by which a person is separate
from, the body of the church, and forbidden all intercourse with
the faithful: it differs from excommunication, which simply
forbids the person excommunicated, from going into the church and
communicating with the faithful. Gal. 1. 8, 9.
ANATOCISM, civil law. Usury, which consists in taking interest
on interest, or receiving compound interest. This is forbidden.
Code, lib. 4, t. 32, 1, 30; 1 Postlethwaite's Dict.
2. Courts of equity have considered contracts for compounding
interest illegal, and within the statute of usury. Cas. t.
Talbot, 40; et vide Com. Rep. 349; Mass. 247; 1 Ch. Cas. 129;
2 Ch. Cas. 35. And contra, 1 Vern. 190. But when the interest has
once accrued, and a balance has been settled between the parties,
they may lawfully agree to turn such interest into principal, so
as to carry interest in futuro. Com. on Usury, ch. 2, s. 14, p.
146 et eq.
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ANCESTOR, descents. One who has preceded another in a direct
line of descent; an ascendant. In the common law, the word is
understood as well of the immediate parents, as, of these that
are higher; as may appear by the statute 25 Ed. III. De natis
ultra mare, and so in the statute of 6 R. III. cap. 6, and by
many others. But the civilians relations in the ascending line,
up to the great grandfather's parents, and those above them, they
term, majores, which common lawyers aptly expound antecessors or
ancestors, for in the descendants of like degree they are called
posteriores. Cary's Litt.45. The term ancestor is applied to
natural persons. The words predecessors and successors, are used
in respect to the persons composing a body corporate. See 2 Bl.
Com. 209; Bac. Abr. h. t.; Ayl. Pand. 58.
ANCESTRAL. What relates to or has, been done by one's
ancestors; as homage ancestral, and the like.
ANCHOR. A measure containing ten gallons. Lex, Mereatoria.
ANCHORAGE, merc. law. A toll paid for every anchor cast from a
ship into a river, and sometimes a toll bearing this name is
paid, although there be no anchor cast. This toll is said to be
incident to almost every port. 1 Wm. Bl. 413; 2 Chit. Com. Law,
16.
ANCIENT. Something old, which by age alone has acquired some
force; as ancient lights, ancient writings.
ANCIENT DEMESNE, Eng. law. Those lands which either were
reserved to the crown at the original distribution of landed
property, or such as came to it afterwards, by forfeiture or
other means. 1. Sal. 57; hob. 88; 4 Inst. 264; 1 Bl. Com. 286;
Bac. Ab. h. t.; F. N. B. 14.
ANCIENT LIGHTS, estates. Windows which have been opened for
twenty years or more, and enjoyed without molestation by the
owner of the house. 5 Har. & John. 477; 12 Mass. R. 157,.220.
2. It is proposed to consider, 1. How the right of ancient
light is gained. 2, What amounts to interruption of an ancient
light. 3, The remedy for obstructing an ancient light.
3. - §1. How the right of opening or keeping a window open is
gained. 1. By grant. 2. By lapse of time. Formerly it was holden
that a party could not maintain an action for a nuisance to an
ancient light, unless he had gained a right to the window by
prescription. 1 Leon. 188; Cro. Eliz. 118. But the modern
doctrine is, that upon proof of an adverse enjoyment of light;
for twenty yers or upwards, unexplained, a jury may be directed
to presume a right by grant, or otherwise. 2 Saund. 176, a; 12
Mass. 159; 1 Esp. R. 148. See also 1 Bos. & Pull. 400.; 3 East,
299; Phil. Ev. 126; 11 East, 372; Esp. Dig. 636. But if the
window was opened during the seisin of a mere tenant for life, or
a tenaucy for years, and the owner in fee did not acquiesce in,
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or know of, the use of the light, he would not be bound. 11 East,
372; 3 Camp. 444; 4 Camp. 616. If the owner of a close builds a
house upon one half of it, with a window lighted from the other
half, he cannot obstruct lights on the premises granted by him;
and in such case no lapse of time necessary to confirm the
grantee's right to enjoy them. 1 Vent. 237, 289; 1 Lev. 122; 1
Keb. 553; Sid. 167, 227; L. Raym. 87; 6 Mod. 116; 1 Price,
27; 12 Mass. 159, Rep. 24; 2 Saund. 114, n. 4; Hamm. N. P.
202; Selw. N. P. 1090; Com. Dig. Action on the Case for a
Nuisance, A. Where a building has been used twenty years to one
purpose, (as a malt house,) and it is converted to another, (as a
dwelling-house,) it is entitled in its new state only to the same
degree of light which was necessary in its former state. 1 Campb.
322; and see 3 Campb. 80. It has been justly remarked, that the
English doctrine as to ancient lights can hardly be regarded as
applicable to narrow lots in the new and growing cities of this
country; for the effect of the rule would be greatly to impair
the value of vacant lots, or those having low buildings upon
them, in the neighborhood of other buildings more than twenty
years old. 3 Kent, Com. 446, n.
4. - §2. What amounts to an interruption of an ancient light.
Where a window has been completely blocked up for twenty years,
it loses its privilege. 3 Camp. 514. An abandonment of the right
by express agreement, or by acts from which an abandonment may be
inferred, will deprive the party having such ancient light of his
right to it. The building of a blank wall where the lights
formerly existed, would have that effect. 3 B. & Cr. 332. See Ad.
& Ell. 325.
5. - §3. Of the remedy for interrupting an ancient light. 1. An
action on the case will lie against a person who obstructs an
ancient light. 9 Co. 58; 2 Rolle's Abr. 140, 1. Nusans, G 10.
And see Bac. Ab. Actions on the Case, D; Carth. 454; Comb. 481;
6 Mod. 116.
6.- Total deprivation of light is not necesary to sustain this
action, and if the party cannot enjoy the light in so free and
ample a manner as he did before, he may sustain the action; but
there should be some sensible diminution of the light and air. 4.
Esp. R. 69. The building a wall which merely obstructs the right,
is not actionable. 9 Ca. 58, b; 1 Mod. 55.
7. - 3. Nor is the opening windows and destroying, the privacy
of the adjoining property; but such new window may be
immediately obstructed to prevent a right to it being acquired by
twenty years use. 3 Campb. 82.
8. - 5. When the right is clearly established, courts of equity
will grant an injunction to restrain a party from building so
near the plaintiff's house as to darken his windows. 2 Vern. 646;
2 Bro. C. C. 65; 16 Ves. 338; Eden on Inj. 268, 9; 1 Story on
Eq §926; 1 Smith's Chan. Pr. 593.; 4 Simm. 559; 2 Russ. R.
121. See Injunction; Plan.
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See generally on this subject, 1 Nels. Abr. 56, 7; 16 Vin.
Abr. 26; 1 Leigh's N. P. C. 6, s. 8, p. 558; 12 E. C. L. R.
218; 24 Id. 401; 21 Id. 373; 1 id. 161; 10 Id. 99; 28 Id.
143; 23 Am. Jur. 46 to 64; 3 Kent, Com. 446, 2d ed. 7 Wheat. R.
106; 19 Wend. R. 309; Math on Pres. 318 to 323; 2 Watts, 331;
9 Bing. 305; 1 Chit. Pr. 206, 208; 2 Bouv. Inst. n. 1619-23.
ANCIENT WRITINGS, evidence. Deeds, wills, and other writings
more than thirty years old, are considered ancient writings. They
may in general be read in evidence, without any other proof of
their execution than that they have been in the possession of
those claiming rights under them. Tr. per Pais, 370; 7 East, R.
279; 4 Esp. R. 1; 9 Ves. Jr. 5; 3 John. R. 292; 1 Esp. R.
275; 5 T. R. 259; 2 T. R. 466; 2 Day's R. 280. But in the case
of deeds, possession must have accompanied them. Plowd. 6, 7. See
Blath. Pres. 271, n. (2.)
ANCIENTLY, English law. A term for eldership or seniority used
in the statute of Ireland, 14 Hen. Vni.
ANCIENTS, English law. A term for gentlemen in the Inns of
Courts who are of a certain standing. In the Middle Temple, all
who have passed their readings are termed ancients. In Gray's
Inn, the ancients are the oldest barristers; besides which the
society consists of benchers, barristers and students. In the
Inas of Chancery, it conts of ancients, and students or clerks.
ANCILLARY. That which is subordinate on, or is. subordinate to,
some other decision. Encyc. Lond. 1
ANDROLEPSY. The taking by one nation of the citizens or
subjects of another, in order to compel the latter to do justice
to the former. Wolff. §1164; Molloy, de Jure lar. 26.
ANGEL. An ancient English coin of the value of ten shillings
sterling. Jac. L. D. h. t.
ANIENS. In some of our law books signifies void, of no force.
F. N. B. 214.
ANIMAL, property. A name given to every animated being endowed
with the power of voluntary motion. In law, it signifies all
animals ecept those of the him, in species.
2. Animals are distinguished into such as are domitae, and such
as are ferae naturae.
3. It is laid down, that in tame or domestic animals, such as
horse, kine, sheep, poultry, and the like, a man may have an
absolute property, because they coutiaue perpetually in his
possession and occupation, and will not stray from his house and
person unless by accident or fraudulent enticement, in either of
which cases the owner does not lose his property. 2 Bl. Com. 390;
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2 Mod. 319. 1.
4. But in animals ferae naturae, a man can have no absolute
property; they belong to him only while they continue in his
keeping or actual possession; for if at any they regain their
natural liberty, his property instantly ceases, unless they have
animum revertendi, which is only to be known by their usual habit
of returning. 2 Bl. Com. 396; 3 Binn. 546; Bro. Ab. Propertie,
37; Com. Dig. Biens, F; 7 Co. 17 b; 1 Ch. Pr. 87; Inst. 2, 1,
15. See also 3 Caines' Rep. 175; Coop. Justin. 457, 458; 7
Johns. Rep. 16; Bro. Ab. Detinue, 44.
5. The owner of a mischievous animal, known to him to be so, is
responsible, when he permits him to go at large, for the damages
he may do. 2 Esp. Cas. 482; 4 Campb. 198; 1 Starkie's Cas. 285;
1 Holt, 617; 2 Str.1264; Lord Raym. 110; B. N. P. 77; 1 B. &
A. 620; 2 C. M.& R. 496; 5 C.& P. 1; S. C. 24 E. C. L. R. 187.
This principle agrees with the civil law. Domat, Lois Civ. liv.
2, t. 8, s. 2. And any person may justify the killing of such
ferocious animals. 9 Johns. 233; 10. Johns. 365; 13 Johns. 312.
The owner, of such an animal may be indicted for a common
nuisance. 1 Russ. Ch. Cr. Law, 643; Burn's Just., Nuisance, 1.
6. In Louisiana, the owner of an animal is answerable for the
damage he may cause; but if the animal be lost, or has strayed
more than a day, he may discharge himself from this
responsibility, by abandoning him to the person who has sustained
the injury; except where the master turns loose a dangerous or
noxious animal; for then he must pay all the harm done, without
being allowed to make the abndonment. Civ. Code, art. 2301. See
Bouv. Inst. Index, h. t.
ANIMANLS OF A BASE NATURE. Those which, though they may be
reclaimed, are not Such that at common law a larceny may be
committed of them, by reason of the baseness of their nature.
Some animals, which are now usually tamed, come within this
class; as dogs and cats; and others which, though wild by
nature, and oftener reclaimed by art and industry, clearly fall
within the same rule; as, bears, foxes, apes, monkeys, ferrets,
and the like. 3 Inst. 109,; 1 Hale, P. C. 511, 512; 1 Hawk. P.
C. 33, s. 36; 4 Bl. Com. 236; 2 East, P. C. 614. See 1 Saund.
Rep. 84, note 2.
ANIMUS. The intent; the mind with which a thing is done, as
animus. cancellandi, the intention of cancelling; animus
farandi, the intention of stealing; animus maiaendi; the
intention of remaining; auimus morandi, the intention or purpose
of delaying.
2. Whether the act of a man, when in appearance criminal, be so
or not, depends upon the intention with which it was done. Vide
Intention.
ANIMUS CANCELLANDI. An intention to destroy or cancel. The
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least tearing of a will by a testator, animus cancellandi,
renders it invalid. See Cancellation.
ANIMUS FURANDI, crim. law. The intention to steal. In order to
comstitute larceny, (q. v.) the thief must take the property
anino furandi; but this, is expressed in the definition of
larceny by the word felonious. 3 Inst. 107; Hale, 503; 4. Bl.
Com. 229. Vide 2 Russ. on Cr. 96; 2 Tyler's R. 272. When the
taking of property is lawful, although it may afterwards be
converted animo furandi to the taker's use, it is not larceny. 3
Inst. 108; Bac. Ab. Felony, C; 14 Johns. R. 294; Ry. & Mood.
C. C. 160; Id. 137; Prin. of Pen. Law, c. 22, §3, p. 279, 281.
ANIMUS MANENDI. The intention of remaining. To acquire a
domicil, the party must have his abode in one place, with the
intention of remaining there; for without such intention no new
domicil can be gained, and the old will not be lost. See
Domicile.
ANIMUS RECIPIENDI. The intention of receiving. A man will
acquire no title to a thing unless he possesses it with an
intention of receiving it for himself; as, if a thing be bailed
to a man, he acquires no title.
ANIMUS REVERTENDI. The intention of returning. A man retains
his domicil, if he leaves it animo revertendi. 3 Rawle, R. 312;
1 Ashm. R. 126; Fost. 97; 4 Bl. Com. 225; 2 Russ. on Cr. 18;
Pop. 42,. 62; 4 Co. 40.
ANIMUS TESTANDI. An intention to make a testament or will. This
is required to make a valid will; for whatever form may have
been adopted, if there was no animus testandi, there can be no
will. An idiot for example, can make no will, because he has no
intention.
ANN, Scotch law. Half a year's stipend over and above what is
owing for the incumbency due to a minister's relict, or child, or
next of kin, after his decease. Wishaw. Also, an abbreviation of
annus, year; also of annates. In the old law French writers, ann
or rather an, signifies a year. Co. Dig h. v.
ANNATES, ecc. law. First fruits paid out of spiritual benefices
to the pope, being, the value of one year's profit.
ANNEXATION, property. The union of one thing to another.
2. In the law relating to fixtures, (q. v.) annexation is
actual or constructive. By actual annexation is understood every
movement by which a chattel can be joined or united to the
freehold. By constructive annexation is understood the union of
such things as have been holden parcel of the realty, but which
are not actually annexed, fixed, or fastened to the freehold;
for example, deeds, or chattels, which relate to the title of the
inheritance. Shep. Touch. 469. Vide Anios & Fer. on Fixtures, 2.
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3. This term has been applied to the union of one country, to
another; as Texas was annexed to the United States by the joint
reolution of Congress of larch 1, 1845., See Texas.
ANNI NUBILES. The age at which a girl becomes by law fit for
marriage, which is twelve years.
ANNIENTED. From the French aneantir; abrogated or made null.
Litt. sect. 741.
ANNO DOMINI, in the year of our Lord, abbreviated, A. D. The
computation of time from the incarnation of our Saviour which is
used as the date of all public deeds in the United tites and
Christian countries, on which account it is called the "vulgar
vera."
ANNONAE CIVILES, civil law. A species of rent issuing out of
certain lands, which were paid to Rome monasteries.
ANNOTATION, civil law. The designation of a place of
deportation. Dig. 32, 1, 3 or the summoning of an, absentee. Dig.
lib. 5.
2. In another sense, annotations were the answers of the prince
to questions put to him by private persons respecting some
doubtful point of law. See Rescript.
ANNUAL PENSION, Scotch law. Annual rent. A yearly profit due to
a creditor by way of interest for a given sum of money. Right of
annual rent, the original right of burdening land with payment
yearly for the payment of money.
ANNUITY, contracts. An anuity is a, yearly sum of money granted
by one party to another in fee for life or years, charging the
person of the grantor only. Co. Litt. 144; 1 Lilly's Reg. 89; 2
Bl. Com. 40; 5 M. R. 312; Lumley on Annuities. 1; 2 Inst. 293;
Davies' Rep. 14, 15.
2. In a less technical sense, however, when the money is
chargeable on land and on the person, it is generally called an
annuity. Doet. and Stud Dial. 2, 230; Roll. Ab. 226. See 10
Watts, 127.
3. An anuuity is different from a rent charge, with which it is
frequently confounded, in this; a rent charge is a burden
imposed upon and issuing out of lands, whereas an annuity is
chargeable only upon the person of the grantee. Bac. Abr.
Annuity, A. See, for many, regulations in England relating to
annuities, the Stat,. 17 Geo. III. c. 26.
3. An annuity may be created by contract, or by will. To
enforce the payment of an annuity, the common law gives a writ of
annuity which may be brought by the grantee or his heirs, or
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their grantees, against the grantor and his heirs. The action of
debt cannot be maintained at the common law, or by the Stat. of 8
Anne, c. 14, for the arrears of an annuity devised to A, payable
out of lands during the life of B, to whom the lands are devised
for life, B paying the annuity out of it, so long as the freehold
estates continues. 4 M. & S. 113; 3 Brod. & Bing. 30; 6 Moore,
336. It has been ruled also, that if an action of annuity be
brought, and the annuity determines pending the suit, the writ
faileth forever because no such action is maintainable for
arrearages only, but for the annuity and the arrearages. Co.
Litt. 285, a.
4. The first payment of an annuity is to be made at the time
appointed in the instrument creating it. In cases where testator
directs the annuity to be paid at the end of the first quarter,
or other period before the expiration of the first year after his
death, it is then due; but in fact it is not payable by the
executor till the end of the year. 3 Mad. Ch. R. 167. When the
time is not appointed, as frequently happens in will, the
following distinction is presumed to exist. If the bequest be
merely in the form of an annuity as a gift to a man of "an
annuity of one hnndred dollars for life" the first payment will
be due at the end of the year after the testator's death. But if
the disposition be of a sum of money, and the interest to be
given as an annuity to the same man for life, the first payment
will not accrue before the expiration of the second year after
ihe testator's death. This distinction, though stated from the
bench, does not appear to have been sanctioned by express
decision. 7 Ves. 96, 97.
5. The Civil Code of Louisiana makes the following provisions
in relation to annuities, namely: The contract of annuity is that
by which one party delivers to another a sum of money, and agrees
not to reclaim it, so long as the receiver pays the rent agreed
upon. Art. 2764.
6. This annuity mav be perpetual or for life. Art. 2765.
7. The amount of the annuity for life can in no case exceed the
double of the conventional interest. The amount of the perpetual
annuity cannot exceed the double of the conventional interest.
Art. 2766.
8. Constituted annuity is essentially redeemable. Art. 2767.
9. The debtor of a constituted annuity may be compelled to
redeem the same: 1, If he ceases fulfilling his obligations
during three years: 2, If he does not give the lender the
securities promised by the contract. Art. 2768.
10. If the debtor should fail, or be in a state of insolvency,
the capital of the constituted annuity becomes exigible, but only
up to the amount at wich it is rated, according to the order of
contribution amongst the creditors. Art. 2769.
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11. A similar rule to that contained in the last article has
been adopted in England. See stat. 6 Geo. IV., c. 16, s. 54 and
108; note to Ex parte James, 5 Ves. 708; l Sup. to Ves. Jr.
431; note to Franks v. Cooper, 4 Ves. 763; 1 Supp. to Ves. Jr.
308. The debtor, continues the Code, may be compelled by his
security to redeem the annuity within the time which has been
fixed in the contract, if any time has been fixed, or after ten
years, if no mention be made of the time in the act. Art. 2770.
12. The interest of the sums lent, and the arrears of
constituted and life annuity, cannot bear interest but from the
day a judicial demand of the same has been made by the creditor,
and when the interest is due for at least one whole year. The
parties may only agree, that the same shall not be redeemed prior
to a time which cannot exceed ten years, or without having warned
the creditor a time before, which they shall limit. Art. 2771.
See generally, Vin. Abr. Annuity; Bac. Abr. Annuity and Rent;
Com. Dig. Annuity; 8 Com. Dig. 909; Doct. Plac. 84; 1 Rop. on
Leg. 588; Diet. de Jurisp. aux mots Rentes viageres, Tontine. 1
Harr. Dig. h. t.
ANNUM DIEM ET VASTUM, English law. The title which the king
acquires in land, when a party, who held not of the king, is
attainted of felony. He acquires the power not only to take the
profits for a full year, but to waste and demolish houses, and to
extirpate woods and trees.
2. This is but a chattel interest.
ANONYMOUS. Without name. This word is applied to such.books,
letters or papers, which are published without the author's name.
No man is bound to publish his name in connexion with a book or
paper he has publisbed; but if the publication is libellous, he
is equally responsible as if his name were published.
ANSWER, pleading in equity. A defence in writing made by a
defendant, to the charges contained in a bill or information,
filed by the plaintiff against him in a court of equity. The word
answer involves a double sense; it is one thing when it simply
replies to a question, another when it meets a charge; the
answer in equity includes both senses, and may be divided into an
examination and a defence. In that part which consists of an
examination, a direct and full answer, or reply, must in general
be given to every question asked. In that part which consists of
a defence, the defendant must state his, case distinctly; but is
not required to give information respecting the proofs that are
to maintain it. Gresl . Eq. Ev. 19.
2. As a defendant is called by a bill or information to make a
discovery of the several cbarges it contains, he must do so,
unless he is protected either by a demurrer a plea or disclaimer.
It may be laid down as an invariable rule, that whatever part of
a bill or information is not covered by one of these, must be
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defended by answer. Redesd. Tr. Ch. PI. 244.
3. In form, it usually begins, 1st, with its title, specifying
which of the defendants it is the answer of, and the names of the
plaintiffs in the cause in which it is filed as answer; 2d, it
reserves to the defendant all the advantages which might be taken
by exception to the bill; 3d, the substance of the answer,
according to the defendant's knowledge, remembrance, information
and belief, then follows, in which the matter of the bill, with
the interrogatories founded thereon, are answered, one after the
other, together with such additional matter as the defendant
thinks necessary to bring forward in his, defence, either for the
purpose of qualifying, or ad-ding to, the case made by the bill,
or to state a new case on his own behalf; 4th, this is followed
by a general traverse or denial of all unlawful combinations
charged in the bill, and of all other matters therein contained
5th, the answer is always upon oath or affirmation, except in the
case of a corporation, in which case it is under the corporate
seal.
4. In substance, the answer ought to contain, 1st, a statement
of facts and not arguments 2d, a confession and avoidance, or
traverse and denial of the material parts of the bill 3d, its
language ought to be direct and without evasion. Vide generally
as to answers, Redes. Tr. Ch. PI. 244 to 254; Coop. Pl. Eq. 312
to 327; Beames PI. Eq. 34 et seq.; Bouv. Inst. Index, h. t. For
an historical account of this instrument, see 2 Bro. Civ. Law,
371, n. and Barton's Hist. Treatise of a Suit in Equity.
ANSWER, practice. The declaration of a fact by a witness after
a question has been put asking for it.
2. If a witness unexpectedly state facts against the interest
of the party calling him, other witnesses may be called by the
same party, to disprove those facts. But the party calling a
witness cannot discredit him, by calling witnesses to prove his
bad character for truth and veracity, or by proving that he has
made statements out of court contrary to what he has sworn on the
trial; B. N. P.; for the production of the witness is virtually
an assertion by the party producing him, that he is credible.
ANTECEDENT. Something that goes before. In the construction of
laws, agreements, and the like, reference is always to be made to
the last antecedent; ad proximun antecedens fiat relatio. But
not only the antecedents but the subsequent clauses of the
instrument must be considered: Ex antecedentibus et
consequentibus fit optima interpretatio.
ANTE LITEM MOTAM. Before suit brought, before controversy
moved.
ANTEDATE. To, put a date to an instrument of a time before the
time it was written. Vide Date.
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ANTENATI. Born before. This term is applied to those who were
born or resided within the United States before or at the time of
the declaration of independence. These had all the rights of
citizens. 2 Kent, Com. 51, et seq.
ANTE-NUPTIAL. What takes place before marriage; as, an
ante-nuptial agreement, which is an agreement made between a man
and a woman in contemplation of marriage. Vide Settlement.
ANTHETARIUS, obsolete See Anti-thetarius.
ANTI-MANlFESTO. The declaration of the reasons which one of the
belligerents publishes, to show that the war as to him is
defensive. Wolff, §1187. See Manifesto.
ANTlCIPATION. The act of doing or taking a thing before its
proper time.
2. In deeds of trust there is frequently a provision that the
income of the estate shall be paid by the trustee as it shall
accrue, and not by way of anticipation. A payment made contrary
to such provision would not be considered as a discharge of the
trustee.
ANTICHRESIS, contracts. A word used in the civil law to denote
the contract by which a creditor acquires the right of reaping
the fruit or other revenues of the immovables given to him in
pledge, on condition of deducting, annually, their proceeds from
the interest, if any is due to him, and afterwards from the
principal of his debt. Louis. Code, art. 3143 Dict. de Juris.
Antichrese, Mortgage; Code Civ. 2085. Dig. 13, 7, 7 ; 4, 24, 1
Code, 8, 28, 1.
ANTINOMY. A term used in the civil law to signify the real or
apparent contradiction between two laws or two decisions. Merl.
Repert. h. t. Vide Conflict of Laws.
ANTIQUA CUSTOMA, Eng. law. A duty or imposition which was
collected on wool, wool-felts, and leather, was so called. This
custom was called nova customa until the 22 Edw. I., when the
king, without parliament, set a new imposition of 40s. a sack,
and then, for the first time, the nova customa went by the name
of antiqua customa. Bac. Ab. Smuggling &c. B.
ANTIQUA STATUTA. In England the statutes are divided into new
and ancient statutes; since the time of memory; those from the
time 1 R. I. to E. III., are called antiqua statuta - those made
since, nova statuta.
ANTITHETARIUS, old English law. The name given to a man who
endeavors to discharge himself of the crime of which he is
accused, by retorting the charge on the accuser. He differs from
an approver (q, v.) in this, that the latter does not charge the
accuser, but others. Jacob's Law Dict.
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APARTMENTS. A part of a house occupied by a person, while the
rest is occupied by another, or others. 7 Mann. & Gr. 95 ; 6
Mod. 214 ; Woodf. L. & T. 178. See House.
APOSTACY, Eng. law. A total renunciation of the Christian
religion, and differs from heresy. (q. v.) This offence is
punished by the statute of 9 and 10 W. III. c. 32. Vide
Christianity.
APOSTLES. In the British courts of admiralty, when a party
appeals from a decision made against him, he prays apostles from
the judge, which are brief letters of dismission, stating the
case, and declaring that the record will be transmitted. 2
Brown's Civ. and Adm. Law, 438; Dig. 49. 6.
2. This term was used in the civil law. It is derived from
apostolos, a Greek word, which signifies one sent, because the
judge from whose sentence an appeal was made, sent to the
superior judge these letters of dismission, or apostles. Merl.
Rep. mot Apotres.
APPARATOR or APPARITOR, eccles. law. An officer or messenger
employed to serve the process of the spiritual courts in England.
APPARENT. That which is manifest what is proved. It is required
that all things upon which a court must pass, should be made to
appear, if matter in pays, under oath if matter of record, by the
record. It is a rule that those things which do not appear, are
to be considered as not existing de non apparentibus et non
existentibus eadem est ratio. Broom's Maxims, 20, What does not
appear, does not exist; quod non apparet, non est.
APPARLEMENT. Resemblance. It is said to be derived from
pareillement, French, in like manner. Cunn. Dict. h. t.
APPEAL, English crim. law. The accusation of a person, in a
legal form, for a crime committed by him; or, it is the lawful
declaration of another man's crime, before a competent judge, by
one who sets his name to the declaration, and undertakes to prove
it, upon the penalty which may ensue thereon. Vide Co. Litt. 123
b, 287 b; 6 Burr. R. 2643, 2793; 2 W. Bl. R. 713; 1 B. & A.
405. Appeals of murder, as well as of treason, felony, or other
offences, together with wager of battle, are abolished by stat.
59 Geo. M. c. 46.
APPEAL, practice. The act by which a party submits to the
decision of a superior court, a cause which has been tried in an
inferior tribunal. 1 S. & R. 78 Bin. 219; 3 Bin. 48.
2. The appeal generally annuls the judgment of the inferior
court, so far that no action can be taken upon it until after the
final decision of the cause. Its object is to review the whole
case, and to secure a just judgment upon the merits.
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3. An appeal differs from proceedings in error, under which the
errors committed in the proceedings are examined, and if any have
been committed the first judgment is reversed; because in the
appeal the whole case is exainined and tried as if it had not
been tried before. Vide Dane's Ab. h. t.; Serg. Const. Law
Index, h. t. and article Courts of the United States.
APPEARANCE, practice. Signifies the filing common or special
bail to the action.
2. The appearance, with all other subsequent pleadings supposed
to take placein court, should (in accordance with the ancient
practice) purport to be in term time. It is to be observed,
however, that though the proceedings are expressed as if
occurring in term time, yet, in fact, much of the business is now
done, in periods of vacation.
3. The appearance of the parties is no longer (as formerly) by
the actual presence in court, either by themselves or their
attorneys; but, it must be remembered, an appearance of this
kind is still supposed, and exists in contemplation of law. The
appearance is effected on the part of the defendant (when be is
not arrested) by making certain formal entries in the proper
office of the court, expressing his appearance; 5 Watts & Serg.
215; 1 Scam. R. 250; 2 Seam. R. 462; 6 Port. R. 352; 9 Port.
R. 272; 6 Miss. R. 50; 7 Miss. R. 411; 17 Verm. 531; 2 Pike,
R. 26; 6 Ala. R. 784; 3 Watts & Serg. 501; 8 Port. R. 442;
or, in case of arrest, it may be considered as effected by giving
bail to the action. On the part of the plaintiff no formality
expressive of appearance is observed.
4. In general, the appearance of either party may be in person
or by attorney, and, when by attorney, there is always supposed
to be a warrant of attorney executed to the attorney by his
client, authorizing such appearance.
5. But to this general rule there are various exceptions;
persons devoid of understanding, as idiots, and persons having
understanding, if they are by law deprived of a capacity to
appoint an attorney, as married women, must appear in person. The
appearance of such persons must purport, and is so entered on the
record, to be in person, whether in fact an attorney be employed
or not. See Tidd's Pr. 68, 75; 1 Arch. Pract. 22; 2 John. 192;
8 John. 418; 14 John. 417; 5 Pick. 413; Bouv. Inst. Index, h.
t.
6. There must be an appearance in person in the following
cases: 1st. An idiot can appear only in person, and as, a
plaintiff he may sue in person or by his next friend 2d. A
married woman, when sued without her hushand, should defend in
person 3 Wms. Saund. 209, b and when the cause of action accrued
before her marriage, and she is afterwards sued alone, she must
plead her coverture in person, and not by attorney. Co. Litt.
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125. 3d. When the party pleads to the jurisdiction, be must plead
in person. Summ.on Pl. 51; Merrif. Law of Att. 58. 4th. A plea
of misnomer must always be in person, unless it be by special
warrant of attorney. 1 Chit. PI. 398; Summ. on PI. 50; 3 Wms.
Saund. 209 b.
7. An infant cannot appoint an attorney; he must therefore
prosecute or appear by guardian, or prochein ami.
8. A lunatic, if of full age, may appear by. attorney; if,
under age, by guardian. 2 Wms. Saund. 335; Id. 332 (a) n. (4.)
9. When an appearance is lawfully entered by the defendant,
both parties are considered as being in court. lmp. Pr. 215. And
if the defendant pleads to issue, defects of process are cured
but not, if he demurs to the process, (I Lord Raym. 21,) or,
according to the practice of some courts, appears de bene esse,
or otherwise conditionally.
10. In criminal cases, the personal presence of the accused is
often necessary. It has been held, that if the record of a
conviction of a misdemeaner be removed by certiorari, the
personal presence of the defendant is necessary, in order to move
in arrest. of judgment: but, after a special verdict, it is not
necessary that the defendant should be personally present at the
argument of it. 2 Burr. 931 1 Bl. Rep. 209, S. C. So, the
defendant must appear personally
in court, when an order of bastardy is quashed and the reason is,
he must enter into a recognizance to abide the order of sessions
below. 1 Bl. Rep. 198.
So, in a case, when two justices of the peace, having confessed
an information for mishehaviour in the execution of their office,
and a motion was made to dispense with their personal appearance,
on their clerks undertaking in court to answer for their flues,
the court declared the rule to be, that although such a motion
was subject to the discretion of the court either to grant or
refuse it, in cases where it is clear that the punishment would
not be corporal, yet it ought to be denied in every case where it
is either probable or possible that the punishment would be
corporal; and therefore the motion was overruled in that case.
And Wilmot and Ashton, Justices, thought, that even where the
punishment would most probably be pecuniary only, yet in offences
of a very gross and public nature, the persons convicted should
appear in person, for the sake of example and prevention of the
like offences being committed by other persons; as the notoriety
of being called up to answer criminally for such offences, would
very much conduce to deter others from venturing to commit the
like. 3 Burr. 1786, 7.
APPEARANCE DAY. The day on which the parties are bound to
appear in court. This is regulated in the different states by
particular provisions.
APPELLANT, practice. He who makes an appeal from one
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jurisdiction to another.
APPELLATE JURISDICTION. The jurisdiction which a superior court
has to bear appeals of causes which have been tried in inferior
courts. It differs from original jurisdiction, which is the power
to entertain suits instituted in the first in stance. Vide
Jurisdiction; Original jurisdiction.
APPELLEE, practice. The party in a cause against whom an appeal
has been taken.
APPELLOR. A criminal who accuses his accomplices; one who
eballenges a jury.
APPENDANT. An incorporeal inheritance belonging to another
inheritance.
2. By the word appendant in a deed, nothing can be conveyed
which is itself substantial corporeal real property, and capable
of passing by feoffment and livery of seisin: for one kind of
corporeal real property cannot be appendant to another
description of the like real property, it being a maxim that land
cannot be appendant to land. Co. Litt. 121; 4 Coke, 86; 8 Barn.
& Cr. 150; 6 Bing. 150. Only, such things can be appendant as
can consistently be so, as a right of way, and the like. This
distinction is of importance, as will be seen by the following
case. If a wharf with the appurtenances be demised, and the water
adjoining the wharf were in tended to pass, yet no distress for
rent on the demised premises could be made on a barge on the
water, because it is not a place which could pass as a part of
the thing demised. 6 Bing. 150.
3. Appendant differs from appurtenant in this, that the former
always arises from prescription, whereas an appurtenance may be
created at any time. 1 Tho. Co. Litt. 206; Wood's Inst. 121;
Dane's Abr. h. t.; 2 Vin. Ab. 594; Bac. Ab. Common, A 1. And
things appendant must have belonged by prescription to another
principal substantial thing, which is considered in law as more
worthy. The principal thing and the appendant must be appropriate
to each other in nature and quality, or such as may be properly
used together. 1 Chit. Pr. 154.
APPENDITIA. From appendo, to hang at or on; the appendages or
pertinances of an estate the appurtenauces to a dwelling, &c.;
thus pent-houses, are the appenditia domus, &c.
APPLICATION. The act of making a request for something; the
paper on which the request is written is also called an
application; as, an application to chancery for leave to invest
trust funds; an application to an insurance company for
insurance. In the land law of Pennsylvania, an application is
understood to be a request in writing to have a certain quantity
of land at or near a certain place therein mentioned. 3 Binn. 21;
5 Id. 151; Jones on Land Office Titles, 24.
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2. An application for insurance ought to state the facts truly
as to the object to be insured, for if any false representation
be made with a fraudulent intent, it will avoid the policy. 7
Wend. 72.
3. By application is also meant the use or disposition of a
thing; as the application of purchase money.
4. In some cases a purchaser who buys trust property is
required, to see to the application of thee purchase money, and
if be neglects to do so, and it be misapplied, he will be
considered as a trustee of the property he has so purchased. The
subject will be examined by considering, 1, the kind of property
to be sold; 2, the cases where the purchaser is bound to see to
the application of the purchase money in consequence of the
wording of the deed of trust.
5. - 1. Personal property is liable, in the hands of the
executor, for the payment of debts, and the purchaser is
therefore exempted from seeing to the application of the purchase
money, although it may have been bequeathed to be sold for the
payment of debts. 1 Cox, R. 145; 2 Dick. 725; 7 John. Ch. Rep.,
150, 160; 11 S. & R. 377, 385; 2 P. Wms. 148; 4 Bro. C. C.
136; White's L. C. in Eq. 54; 4 Bouv. Inst. n. 3946.
6. With regard to real estate, which is not a fund at law for
the payment of debt's, except where it is made so by act of
assembly, or by direction in the will of the testator or deed of
trust, the purchaser from an executor or trustee may be liable
for the application of the purchase money. And it will now be
proper to consider the cases where such liability exists.
7. - 2. Upon the sale of real estate, a trustee in whom the
legal title is vested, can it law give a valid discharge for the
purchase money, because he is the owner at law. In equity, on the
contrary, the persons among whom the produce of the sale is to be
distributed are considered the owners; and a purchaser must
obtain a discharge from them, unless the power of giving receipts
is either expressly or by implication given to t-he trustees to,
give receipts for the purchase money. It is, for this reason,
usual to provide in wills and trust deeds that the purchaser
shall not be required to see to the application of the purchase
money.
APPOINTEE. A person who is appointed or selected for a
particular purpose; as the appointee under a power, is the
person who is to receive the benefit of the trust or power.
APPOINTOR. One authorized by the donor under the statute of
uses, to execute
a power. 2 Bouv. Ins. n. 1923.
APPOINTMENT, chancery practice. The act of a person authorized
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by a will or other instrument to direct how trust property shall
be disposed of, directing such disposition agreeably to the
general directions of the trust.
2. The appointment must be made in such a manner as to come
within the spirit of the power. And although at law the rule only
requires that some allotment, however small, shall be given to
each person, when the power is to appoint to and among several
persons; the rule in equity differs, and requires a real and
substantial portion to each, and a mere nominal allotment to one
is deemed illusory and fraudulent. When the distribution is left
to discretion, without any prescribed rule, Is to such of the
children as the trustee shall think proper, he may appoint to one
only; 5 Ves. 857; but if the words be, 'amongst' the children
as he should think proper, each must have a share, and the
doctrine of illusory appointment applies. 4 Ves. 771 Prec. Ch.
256; 2 Vern. 513. Vide, generally, 1 Supp. to Ves. Jr. 40, 95,
201, 235, 237; 2 Id. 1 27; 1 Vern. 67, n.; 1 Ves. Jr. 31 0,
n.; 4 Kent, Com. 337; Sugd. on Pow. Index, h. t.; 2 Hill. Ab.
Index, h. t.; 2 Bouv. Inst. n. 1921, et seq.
APPOINTMENT, government, wills. The act by which a person is
selected and invested with an office; as the appointment of a
judge, of which the making out of his commission is conclusive
evidence. 1 Cranch, 137, 155; 10 Pet. 343. The appointment of an
executor, which is done by nominating him as such in a will or
testament.
2. By appointment is also understood a public employment,
nearly synonymous with office. The distinction is this, that the
term appointment is of a more extensive signification than
office; for example, the act of authorizing a man to print the
laws of the United States by authority, and the right conveyed by
such an act, is an appointment, but the right thus conveyed is
not an office. 17 S. & R. 219, 233. See 3 S. & R. 157; Coop.
Just. 599, 604.
APPORTIONMENT, contracts. Lord Coke defines it to be a division
or partition of a rent, common, or the like, or the making it
into parts. Co . Litt. 147. This definition seems incomplete.
Apportionment frequently denotes, not, division, but distribution
; and in its ordinary technical sense, the distribution of one
subject in proportion to another previously distributed. 1
Swanst. C. 87, n.
2. Apportionment will here be considered only in relation to
contracts, by talking a view, 1, of such as are purely personal
and, 2, of such as relate to the realty.
3. - 1. When a Purely personal contract is entire and not
divisible in its nature, it is manifest it cannot be apportioned;
as when the subject of the contract is but one thing, and there
is but one creditor and one debtor, neither can apportion the
obligation without the consent of the other. In such case the
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creditor cannot force his debtor to pay him a part of his debt
only, and leave the other part unpaid, nor can the debtor compel
his creditor to receive a part only of what is due to him on
account of his claim. Nor can the assignee of a part sustain an
action for such part. 5 N. S. 192.
4. When there is a special contract between the parties, in
general no compensation can be received unless the whole contract
has been actually fulfilled. 4 Greenl. 454; 2 Pick. R. 267; 10
Pick. R. 209; 4 Pick. R. 103; 4 M'Cord, R. 26, 246; 6 Verm. R.
35. The subject of the contract being a complex event,
constituted by the performance of various acts, the imperfect
completion of the event, by the performance of only some of those
acts, cannot, by virtue of that contract, of which it is not the
subject, afford a title to the whole, or any part of the
stipulated benefit. See 1 Swanst. C. 338, n. and the cases there
cited; Story, Bailm. §441; Chit. Contr. 168; 3 Watts, 331; 2
Mass. 147, 436; 3 Hen. & Munf. 407; 2 John. Cas. 17; 13 John.
R. 365; 11 Wend. 257; 7 Cowen, 184; 8 Cowen, 84; 2 Pick. 332.
See generally on the subject of the apportionment, of personal
obligations, 16 Vin. Ab. 138; 22 Vin. Ab. 13; Stark. Ev. part
4, p. 1622; Com. Dig. Chancery, 2 E and 4 N 5; 3 Chit. Com. Law
129; Newl. Contr. 159; Long on Sales, 108. And for the doctrine
of the civil law, see Dumoulin, de dividuo et individuo, part 2,
n. 6, 7; Toull. Dr. Civ. Fr. liv. 3, tit 3, c. 4, n. 750, et
seq.
5. - 2. With regard to rents, the law is different. Rents may
in general be apportioned, and this may take place in several
ways; first, by the act of the landlord or reversioner alone,
and secondly, by virtue of the statute of 11 Geo. II., c. 19, s.
15, or by statutes in the several states in which its
principles have been embodied.
6. - 1. When there is a subsisting obligation on the part of
the tenant to pay a certain reat, the reversioner may sell his
estate in different parts, to as many persons as he may deem
proper, and the lessee or tenant will be bound to pay to each a
proportion of the rent. 3 Watts, 404; 3 Kent Com. 470, 3d. ed.;
Co. Litt. 158 a; Gilb. on Rents, 173; 7 Car. 23; 13 Co. 57
Cro. Eliz. 637, 651; Archb. L. &. T. 172 5 B. & A. 876; 6
Halst. 262. It is usual for the owners of the reversion to agree
among themselves as to the amount which each is to receive; but
when there is no agreement, the rent will be apportioned by the
jury. 3 Kent, Com. 470; 1 Bouv. Inst. n. 697.
7. - 2. Rent may be apportioned as to time by virtue of the
stat. 11 Geo. H., C. 19, s. 15, by which it is provided that the
rent due by a tenant for life, who dies during the currency of a
quarter, of a year, or other division of time at which the rent
was made payable, shall be apportioned to the day of his death.
In Delaware, Missouri, New Jersey, and New York, it is provided
by statutes, that if the tenant for life, lessor, die on the rent
day, his executors may recover the whole rent; if before, a
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proportional part. In Delaware, Kentucky, Missouri, and New York,
when one is entitled to rents, depending on the life of another,
he may recover them notwithstanding the death of the latter. In
Delaware, Kentucky, Missouri, and Virginia, it is specially
provided, that the hushand, after the death of his wife, may
recover the rents of her lands. 1 Hill. Ab. c. 16, §50. In
Kentucky, the rent is to be apportioned when the lease is
determined upon any contingency.
8. When the tenant is deprived of the land, as by eviction, by
title paramount, or by quitting the premises with the landlord's
consent, in the absence of any agreement to the contrary, his
obligation to pay rent ceases, as regards the current quarter or
half year, or other day of payment, as the case may be. But rent
which is due may be recovered. Gilb. on Rents, 145; 3 Kent,
Comm. 376; 4 Wend. 423; 8 Cowen, 727 1 Har. & Gill, 308; 11
Mass. 493. See 4 Cruise's Dig. 206; 3 Call's R. 268; 4 M'Cord
447; 1 Bailey's R. 469; 2 Bouv. Inst. n. 1675, et seq.
APPOSAL OF SHERIFFS, English law. The charging them with money
received upon account of the Exchequer. 22 Car. II.
APPOSER, Eng. law. An officer of the Court of Exchequer, called
the foreign apposer.
APPOSTILLE, French law. Postil. In general this means an
addition or annotation made in the margin of an act, [contract in
writing,] or of some writing. Mer. Rep.
APPRAISEMENT. A just valuation of property.
2. Appraisements are required to be made of the property of
persons dying intestate, of insolvents and others; an inventory
(q. v.) of the goods ought to be made, and a just valuation put
upon them. When property real or personal is taken for public
use, an appraisement of it is made, that the owner may be paid
it's value.
APPRAISER, practice. A person appointed by competent authority
to appraise or value goods; as in case of the death of a person,
an appraisement and inventory must be made of the goods of which
he died possessed, or was entitled to. Appraisers are sometimes
appointed to assess the damage done to property, by some public
work, or to estimate its value when taken for public use.
APPREHENSION, practice. The capture or arrest of a person. The
term apprehension is applied to criminal cases, and arrest to
civil cases; as, one having authority may arrest on civil
process, and apprehend on a criminal warrant.
APPRENTICE, person, contracts. A person bound in due form of
law to a master, to learn from him his art, trade or business,
and to serve him during the time of his apprenticeship. (q. v.) 1
Bl. Com. 426; 2 Kent, Com. 211; 3 Rawle, Rep. 307; Chit. on
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Ap. 4 T. R. 735; Bouv. Inst. Index, h. t.
2. Formerly the name of apprentice en la ley was given
indiscriminately to all students of law. In the reign of Edward
IV. they were sometimes called apprentice ad barras. And in some
of the ancient law writers, the term apprentice and barrister are
synonymous. 2 Inst. 214; Eunom. Dial, 2, §53, p. 155.
APPRENTICESHIP, contracts. A contract entered into between a
person who understands some art, trade or business, and called
the master, and another person commonly a minor, during his or
her minority, who is called the apprentice, with the consent of
his or her parent or next friend by which the former undertakes
to teach such minor his art, trade or business, and to fulfil
such other covenants as may be agreed upon; and the latter
agrees to serve the master during a definite period of time, in
such art, trade or business. In a common indenture of
apprenticeship, the father is bound for the performance of the
covenants by the son. Daug. 500.
2. The term during which the apprentice is to serve is also
called his apprenticeship. Pardessus, )Dr. Com. n. 34.
3. This contract is generally entered into by indenture or
deed, and is to continue no longer than the minority of the
apprentice. The English statute law as to binding out minors as
apprentices to learn some useful art,. trade or business, has
been generally adopted in the United States, with some variations
which cannot, be noticed here. 2 Kent, Com. 212.
4. The principal duties of the parties are as follows: 1st,
Duties of the master. He is bound to instruct the apprentice by
teaching him, bona fide, the knowledge of the art of which he has
undertaken to teach him the elements. He ought to, watch over the
conduct of the apprentice, giving him prudent advice and showing
him a good example, and fulfilling towards him the duties of a
father, as in his character of master, he stands in loco
parentis. He is also required to fulfil all the covenants he has
entered into by the indenture. He must not abuse his authority,
either by bad treatment, or by employing his apprentice in menial
employments, wholly unconnected with the business he has to
learn. He cannot dismiss his apprentice except by application to
a competent tribunal, upon whose, decree the indenture may be
cancelled. But an infant apprentice is not capable in law of
consenting to his own discharge. 1 Burr. 501. Nor can the
justices, according to some authorities, order money to be
returned on the discharge of an apprentice. Strange, 69 Contra,
Salk. 67, 68, 490; 11 Mod. 110 12 Mod. 498, 553. After the
apprenticeship is at an end, he cannot retain the apprentice on
the ground that he has not fulfilled his contract, unless
specially authorized by statute.
5. - 2d. Duties of the apprentice. An apprentice is bound to
obey his master in all his lawful commands, take care of his
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property, and promote his interest, endeavor to learn his trade
or business, and perform all the covenants in his indenture not
contrary to law. He must not leave his master's service during
the term of the apprenticeship. The apprentice is entitled to
payment for extraordinary services, when promised by the master;
1 Penn. Law Jour. 368. See 1 Whart. 113; and even when no
express promise has been made, under peculiar circumstances. 2
Cranch, 240, 270; 3 Rob. Ad. Rep. 237; but see 1 Whart, 113.
See generally, 2 Kent, Com. 211-214; Bac. Ab. Master and
Servant; 1 Saund. R. 313, n. 1, 2, 3, and 4; 3 Rawle, R. 307 3
Vin. Ab. 19; 1 Bouv. Inst. n. 396, et seq. The law of France on
this subject is strikingly similar to our own. Pardessus, Droit
Com. n. 518-522.
6. Apprenticeship is a relation which cannot be assigned at the
common law 5
Bin. 428 4 T. R. 373; Doug. 70 3 Keble, 519; 12 Mod. 554;
although the apprentice may work with a second master by order
and consent of the first, which is a service to the first under
the indenture. 4 T. R. 373. But, in Pennsylvania and some other
states the assignment of indentures of apprenticeship is
authorized by statute. 1 Serg. & R. 249; 3 Serg. & R. 161, 164,
166.
APPRIZING. A name for an action in the Scotch law, by which a
creditor formerly carried off the estates of his debtor in
payment of debts due to him in lieu of which, adjudications are
now resorted to.
APPROBATE AND REPROBATE. In Scotland this term is used to
signify to approve and reject. It is a maxim quod approbo non
reprobo. For example, if a testator give his property to A, and
give A's property to B, A shall not be at liberty to approve of
the will so far as the legacy is given to him, and reject it as
to the bequest of his property to B in other words, he cannot
approve and reject the will. 1 Bligh. 21; 1 Bell's Com. 146.
APPROPRIATION, contracts. The application of the payment of a
sum of money, made by a debtor to his creditor, to one of several
debts.
2. When a voluntary payment is made, the law permits the debtor
in the first place, or, if he make no choice, then it allows the
creditor to make an appropriation of such payment to either of
several debts which are due by the debtor to the creditor. And if
neither make an appropriation, then the law makes the application
of such payment. This rule does not apply to payments made under
compulsory process of law. 10 Pick. 129. It will be proper to
consider, 1, when the debtor may make the appropriation; 2, when
the creditor may make it; 3, when it will be made by law.
3. - 1. In general the appropriation may be made by the debtor,
but this must be done by his express declaration, or by
circumstances from which his intentions can be inferred. 2 C. M.
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& R. 723; 14 East, 239; 1 Tyrw. & Gr. 137; 15 Wend. 19; 5
Taunt. 7 Wheat. 13; 2 Ear. & Gill, 159; S. C. 4 Gill & Johns.
361; 1 Bibb, 334; 5 Watts, 544; 12 Pick. 463; 20 Pick. 441;
2 Bailey, 617; 4 Mass. 692; 17 Mass. 575. This appropriation,
it seems, must be notified to the creditor at the time; for an
entry made by the debtor in his own books, is not alone
sufficient to determine the application of the payment. 2 Vern.
606; 4 B. & C. 715. In some cases, in consequence of the
circumstances, the presumption will be that the payment was made
on account of one debt, in preference to another. 3 Caines, 14;
2 Stark. R. 101. And in some cases the debtor has no right to
make the appropriation, as, for example, to apply 4 partial
payment to the liquidation of the principal, when interest is
due. 1 Dall. 124; 1 H. & J. 754; 2 N. & M'C. 395; 1 Pick. 194;
17 Mass. 417.
4. - 2. When the debtor has neglected to make an appropriation,
the creditor may, in general, make it, but this is subject to
some exceptions. If, for example, the debtor owes a debt as
executor, and one in his own right, the creditor cannot
appropriate a payment to the liquidation of the former, because
that may depend on the question of assets. 2 Str. 1194. See 1 M.
& Malk.
40; 9 Cowen, 409; 2 Stark. R. 74; 1 C. & Mees. 33.
5. Though it is not clearly settled in England whether a
creditor is bound to make the appropriation immediately, or at a
subsequent time Ellis on D. and C. 406-408 yet in the United
States, the right to make the application at any time has been
recognized, and the creditor is not bound to make an immediate
election. 4 Cranch, 317; 9 Cowen, 420, 436. See 12 S. & R. 301 2
B. & C. 65; 2 Verm. 283; 10 Conn. 176.
6. When once made, the appropriation cannot be changed; and,
rendering an account, or bringing suit and declaring in a
particular way, is evidence of such appropriation. 1 Wash. 128 3
Green. 314; 12
APPROPRIATION, contracts. The application of the payment of a
sum of money, made by a debtor to his creditor, to one of several
debts.
2. When a voluntary payment is made, the law permits the debtor
in the first place, or, if he make no choice, then it allows the
creditor to make an appropriation of such payment to either of
several debts which are due by the debtor to the creditor. And if
neither make an appropriation, then the law makes the application
of such payment. This rule does not apply to payments made under
compulsory process of law. 10 Pick. 129. It will be proper to
consider, 1, when the debtor may make the appropriation; 2, when
the creditor may make it; 3, when it will be made by law.
3.- 1. In general the appropriation may be made by the debtor,
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but this must be done by his express declaration, or by
circumstances from which his intentions can be inferred. 2 C. M.
& R. 723; 14 East, 239; 1 Tyrw. & Gr. 137; 15 Wend. 19; 5
Taunt. 7 Wheat. 13; 2 Ear. & Gill, 159; S. C. 4 Gill & Johns.
361; 1 Bibb, 334; 5 Watts, 544; 12 Pick. 463; 20 Pick. 441;
2 Bailey, 617; 4 Mass. 692; 17 Mass. 575. This appropriation,
it seems, must be notified to the creditor at the time; for an
entry made by the debtor in his own books, is not alone
sufficient to determine the application of the payment. 2 Vern.
606; 4 B. & C. 715. In some cases, in consequence of the
circumstances, the presumption will be that the payment was made
on account of one debt, in preference to another. 3 Caines, 14;
2 Stark. R. 101. And in some cases the debtor has no right to
make the appropriation, as, for example, to apply 4 partial
payment to the liquidation of the principal, when interest is
due. 1 Dall. 124; 1 H. & J. 754; 2 N. & M'C. 395; 1 Pick. 194;
17 Mass. 417.
4. - 2. When the debtor has neglected to make an appropriation,
the creditor may, in general, make it, but this is subject to
some exceptions. If, for example, the debtor owes a debt as
executor, and one in his own right, the creditor cannot
appropriate a payment to the liquidation of the former, because
that may depend on the question of assets. 2 Str. 1194. See 1 M.
& Malk.
40; 9 Cowen, 409; 2 Stark. R. 74; 1 C. & Mees. 33.
5. Though it is not clearly settled in England whether a
creditor is bound to make the appropriation immediately, or at a
subsequent time Ellis on D. and C. 406-408 yet in the United
States, the right to make the application at any time has been
recognized, and the creditor is not bound to make an immediate
election. 4 Cranch, 317; 9 Cowen, 420, 436. See 12 S. & R. 301 2
B. & C. 65; 2 Verm. 283; 10 Conn. 176.
6. When once made, the appropriation cannot be changed; and,
rendering an account, or bringing suit and declaring in a
particular way, is evidence of such appropriation. 1 Wash. 128 3
Green. 314; 12 Shepl. 29; 2 N. H. Rep. 193; 2 Rawle, 316; 5
Watts, 544; 2 Wash. C. C. 47; 1 Gilp. 106; 12 S. & R. 305.
7. When no application of the payment has been made by either
party, the law will appropriate it, in such a way as to do
justice and equity to both parties. 6 Cranch, 8, 28; 4 Mason,
333; 2 Sumn. 99, 112; 5 Mason, 82; 1 Nev. & Man. 746; 5
Bligh, N. S. 1; 11 Mass. 300;1 H. & J. 754; 2 Vern. 24; 1
Bibb. 334; 2 Dea. & Chit. 534; 5 Mason, 11. See 6 Cranch, 253,
264; 7 Cranch, 575; 1 Mer. 572, 605; Burge on Sur. 126-138; 1
M. & M. 40. See 1 Bouv Inst. n. 8314. 8. In Louisiana, by
statutory enactment, Civ. Code, art. 1159, et seq., it is
provided that the debtor of several debts has a right to declare,
when he makes a payment, what debt he means to discharge. The
debtor of a debt which bears interest or produces rents, cannot,
without the consent of the creditor, impute to the reduction of
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the capital, any payment he may make, when there is interest or
rent due. When the debtor of several debts has accepted a
receipt, by which the creditor has imputed what he has received
to one of the debts especially, the debtor can no longer require
the imputation to be made to a different debt, unless there have
been fraud or surprise on the part of the creditor. When the
receipt bears no imputation, the payment must be imputed to the
debt which the debtor had at the time most interest in
discharging of those that are equally due, otherwise to the debt
which has fallen due, though less burdensome than those which are
not yet payable. If the debts be of a like nature, the imputation
is made to the less burdensome; if all things are equal, it is
made proportionally." This is a translation of the Codo Napoleon,
art. 1253-1256 slightly altered. See Poth. Obl. n. 528 translated
by Evans, and the notes; Bac. Ab. Obligations, F; 6 Watts &
Amer. Law Mag. 31; 1 Hare & Wall. Sel. Dec. 123-158.
APPROPRIATION, eccl. law. The setting apart an ecclesiastical
benefice, which is the general property of the church, to the
perpetual and proper use of some religious house, bishop or
college, dean and chapter and the like. Ayl. Pat. 86. See the
form of an appropriation in Jacob's Introd. 411.
TO APPROVE, approbare. To increase the profits upon a thing;
as to approve land by increasing the rent. 2 Inst. 784.
APPROVEMENT, English crim. law. The act by which a person
indicted of treason or felony, and arraigned for the same,
confesses the same before any plea pleaded, and accuses others,
his accomplices, of the same crime, in order to obtain his
pardon. 2 This practice is disused. 4 Bl. Com. 330 1 Phil. Ev.
37. In modern practice, an accomplice is permitted to give
evidence against his associates. 9 Cowen, R. 707; 2 Virg. Cas.
490; 4 Mass. R. 156; 12
Mass. R. 20; 4 Wash. C. C. R. 428; 1 Dev. R. 363; 1 City Hall
Rec. 8. In Vermont, on a trial for adultery, it was held that a
particeps criminis was not a competent witness, because no person
can be allowed to testify his own guilt or turpitude to convict
another. N. Chap. R. 9.
APPROVEMENT, English law. 1. The inclosing of common land
within the lord's waste, so as to leave egress and regress to a
tenant who is a commoner. 2. The augmentation of the profits of
land. Stat. of Merton, 20 Hen. VIII.; F. N. B. 72 Crompt. Jus.
250; 1 Lilly's Reg. 110.
APPROVER, Bngl. crim. law. One confessing himself guilty of
felony, and approving others of the same crime to save himself.
Crompt. Inst. 250 3 Inst. 129.
APPURTENANCES. In common parlance and legal acceptation, is
used to signify something belonging to another thing as
principal, and which passes as incident to the principal thing.
10 Peters, R. 25; Angell, Wat. C. 43; 1 Serg. & Rawle, 169; 5
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S. & R. 110; 5 S. & R. 107; Cro. Jac. 121 3 Saund. 401, n. 2;
Wood's Inst. 121 Rawle, R. 342; 1 P. Wms. 603; Cro. Jac. 526;
2 Co. 32; Co. Litt. 5 b, 56 a, b; 1 Plowd. 171; 2 Saund. 401,
n. 2; 1 Lev. 131; 1 Sid. 211; 1 Bos. & P. 371 1 Cr. & M. 439;
4 Ad., & Ell. 761; 2 Nev. & M. 517; 5 Toull. n. 531. 2. The
word appurtenances, at least in a deed, will not pass any
corporeal real property, but only incorporeal easements, or
rights and privileges. Co. Lit. 121; 8 B. & C. 150; 6 Bing.
150; 1 Chit. Pr. 153, 4. Vide Appendant.
APPURTENANT. Belonging to; pertaining to of right.
AQUA. Water. This word is used in composition, as aquae ductus,
&c. 2. It is a rule that water belongs to the land which it
covers, when it is stationary: aqua cedit solo. But the owner of
running water, or of a water course, cannot stop it the inferior
inheritance having a right to the flow: aqua currit et debet
currere, ut currere solebat.
AQUAE DUCTUS, civil law. The name of a servitude which consists
in the right to carry water by means of pipes or conduits over or
through the estate of another. Dig. 8, 3, 1; Inst. 2, 3;
Lalaure, Des Serv. c. 5, p. 23.
AQUAE HAUSTUS, civil law. The name of a servitude which
consists in the right to draw water from the fountain, pool, or
spring of another. Inst. 2, 3, 2; Dig. 8, 3, 1, 1.
AQUAE IMMITTENDAE, Civil law. The name of a servitude, which
frequently occurs among neighbors. It is the right which the
owner of a house, built in such a manner as to be surrounded with
other buildings, so that it has no outlet for its waters, has, to
cast water out of his windows on his neighbor's roof court or
soil. Lalaure, Des. Serv. 23.
AQUAGIUM, i. e. aquae agium. 1. A water course. 2. A toll for
water.
AQUATIC RIGHTS. This is the name of those rights which
individuals have in water, whether it be running, or otherwise.
ARBITER. One who, decides without any control. A judge with the
most extensive arbitrary powers; an arbitrator.
ARBITRAMENT. A term nearly synonymous with arbitration. (q. v.)
ARBITRAMENT AND AWARD. The name of a plea to an action brought
for the same cause which had been submitted to arbitration, and
on which an award had been made. Wats. on Arb. 256.
ARBITRARY. What depends on the will of the judge, not regulated
or established by law. Bacon (Aphor. 8) says, Optima lex quae
minimum relinquit arbitrio judicis et (Aph. 46) optimus judex,
qui mi nimum sibi
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2. In all well adjusted systems of law every thing is
regulated, and nothing arbitrary can be allowed; but there is a
discretion which is sometimes allowed by law which leaves the
judge free to act as he pleases to a certain extent. See
Discretion
ARBITRARY PUNISHMENTS, practice. Those punishments which are
left to the decision of the judge, in distinctiou from those
which are defined by statute.
ARBITRATION, practice. A reference and submission of a matter
in dispute concerning property, or of a personal wrong, to the
decision of one or more persons as arbitrators.
2. They are voluntary or compulsory. The voluntary are, 1.
Those made by mutual consent, in which the parties select
arbitrators, and bind themselves by bond abide by their decision;
these are made without any rule of court. 3 Bl. Com. 16.
3. - 2. Those which are made in a cause depending in court, by
a rule of court, before trial; these are arbitrators at common
law, and the award is enforced by attachment. Kyd on Awards, 21.
4. - 3. Those which are made by virtue of the statute, 9 & l0
Will. III., c. 15, by which it is agreed to refer a matter in
dispute not then in court, to arbitrators, and agree that the
submission be made a rule of court, which is enforced as if it
had been made a rule of court; Kyd on Aw. 22; there are two
other voluntary arbitrations which are peculiar to Pennsylvania.
5. - 4. The first of these is the arbitration under the act of
June 16, 1836, which provides that the parties to, any suit may
consent to a rule of court for referring all matters of fact in
controversy to referees, reserving all matters of law for the
decision of the court, and the report of the referees shall have
the effect of a special verdict, which is to be proceeded upon by
the court as a special verdict, and either party may have a writ
of error to the judgment entered thereupon
6. - 5. Those by virtue of the act of 1806, which authorizes "
any person or persons desirous of settling any dispute or
controversy, by themselves, their agents or attorneys, to enter
into an agreement in writing, or refer such dispute or
controversy to certain persons to be by them mutually chosen;
and it shall be the duty of the referees to make out an award and
deliver 20it to the party in whose favor it shall be made,
together with the written agreement entered into by the parties;
and it shall be the duty of the prothonotary, on the affidavit of
a subscribing witness to the agreement, that it was duly executed
by the parties, to file the same in Iiis office; and on the
agreement being so filed as aforesaid, he shall enter the award
on record, which shall be as available in law as an award made
under a reference issued by the court, or entered on the docket
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by the parties."
7. Compulsory arbitrations are perhaps confined to
Pennsylvania. Either party in a civil suit or action,, or his
attorney, may enter at the prothonotary's office a rule of
reference, wherein be shall declare his determination to have
arbitrators chosen, on a day certain to be mentioned therein, not
exceeding thirty days, for the trial of all matters in variance
in the suit between the parties. A copy of this rule is served on
the opposite party. On the day. appointed they meet at the
prothonotary's, and endeavor to agree upon arbitrators; if they
cannot, the prothonotary makes out a list on whicb are inscribed
the names of a number of citizens, and the parties alternately
strike each one of them from the list, beginning with the
plaintiff, until there are but the number agreed upon or fixed by
the prothonotary left, who are to be the arbitrators; a time of
meeting is then agreed upon or appointed by the prothonotary,
when the parties cannot agree,-at which time the arbitrators,
after being sworn or affirm and equitably to try all matters in
variance submitted to them, proceed to bear and decide the case;
their award is filed in the office of the prothonotary, and has
the effect of a judgment, subject, however, to appeal, which may
be entered at any time within twenty days after the filing of
such award. Act of 16th June, 1836, Pamphl. p. 715.
8. This is somewhat similar to the arbitrations of the Romans;
there the praetor selected from a list Of citizens made for the
purpose, one or more persons, who were authorized to decide all
suits submitted to them, and which had been brought before him;
the authority which the proctor gave them conferred on them a
public character and their judgments were without appeal Toull.
Dr. Civ. Fr. liv. 3, t. 3, ch. 4, n. 820. See generally, Kyd on
Awards; Caldwel on Arbitrations; Bac. Ab. h. t.; 1 Salk. R.
69, 70-75; 2 Saund. R. 133, n 7; 2 Sell. Pr. 241; Doct. PI.
96; 3 Vin. Ab. 40; 3 Bouv. Inst. n. 2482.
ARBITRATOR. A private extraordinary judge chosen by the parties
who have a matter in dispute, invested with power to decide the
same. Arbitrators are so called because they have generally an
arbitrary power, there being in common no appeal from their
sentences, which are called awards. Vide Caldw. on Arb. Index,.
h. t.; Kyd on Awards, Index, h. t. 3 Bouv. Inst. n. 2491.
ARBOR CONSANGUINITATIS. A table, formed in the shape of a tree,
in order to show the genealogy of a family. The progenitor is
placed beneath, as if for the root or stem the persons descended
from him are represented by the branches, one for each
descendant. For example : if it be desired to form the
genealogical tree of Peter's family, Peter will be made the trunk
of the tree; if he has two sons, John and James, their names
will be written on the first two branches, which will themselves
shoot as many twigs as John and James have children; these will
produce others, till the whole family shall be represented on the
tree.
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ARCHAIONOMIA. The name of a collection of Saxon laws, published
during the reign of the English Queen Elizabeth, in the Saxon
language, with a Latin version, by Mr. Lambard. Dr. Wilkins
enlarged this. collection in his work, en-titled Leges Anglo
Saxonicae, containing all the Saxon laws extant, together with
those ascribed to Edward the Confessor, in Latin; those of
William the Conqueror, in Norman and Latin; and of Henry I.,
Stephen, and Henry II., in Latin.
ARCHBISHOP, eccl. law. The chief of the clergy of a whole
province. He has the, inspection of the bishops of that province,
as well as of the inferior clergy, and may deprive them on
notorious cause. The archbishop has also his own diocese, in
which he exercises, episcopal jurisdiction, as in his province he
exercises archiepiscopal authority. 1 Bl. Com. 380; L. Raym.
541; Code, 1, 2.
ARCHES COURT. The name of one of the English ecclesiastical
courts. Vide Court of Arches.
ARCHIVES. Ancient cbarters or titles, which concern a nation,
state, or community, in their rights or privileges. The place
where the archives are kept bears the same name. Jacob, L. D. h.
t.; Merl. Rep. h. t.
ARCHIVIST. One to whose care the archives have been confided.
ARE. A French measure of surface. This is a square, the sides
of which are of the length of ten metres. The are is equal to
1076.441 square feet. Vide Measure.
AREA. An enclosed yard or opening in a house; an open place
adjoining to a house. 1 Chit. Pr. 176.
AREOPAGITE. A senator, or a judge of the Areopagus. Solon first
established the Areopagites; although some say, they were
established in the time of Cecrops, (Anno Mundi, 2553,) the year
that Aaron, the brother of Moses, died; that Draco abolished the
order, and Solon reestablished it. Demosthenes, in his harangue
against Aristocrates, before the Areopagus, speaks of the
founders of that tribunal as unknown. See Acts of the Apostles,
xviii. 34.
AREOPAGUS. A tribunal established in ancient Athens, bore this
name. It is variously represented; some considered as having
been a model of justice and perfection, while others look upon it
as an aristocratic court, which had a very extended jurisdiction
over all crimes and offences, and which exercised an absolute
power. See Acts 17, 19 and 22.
ARGENTUM ALBUM. White money; silver coin. See Alba Firma,
ARGUMENT, practice. Cicero defines it ii probable reason
proposed in order to induce belief. Ratio probabilis et idonea ad
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faciendam fidem. The logicians define it more scientifically to
be a means, which by its connexion between two extremes)
establishes a relation between them. This subject be-longs rather
to rhetoric and logio than to law.
ARGUMENT LIST. A list of cases put down for the argument of
some point of law.
ARGUMENTATIVENESS. What is used by way of reasoning in pleading
is so
called.
2. It is a rule that pleadings must not be argumentative. For
example, when a defendant is sued for taking away the goods of
the plaintiff, he must not plead that "the plaintiff never had
any goods," because although this may be an infallible argument
it is not a good plea. The plea should be not guilty. Com. Dig.
Pleader R 3; Dougl. 60; Co. Litt. 126 a.
ARGUMENTUM AB INCONVENIENTI. An argument arising from the
inconvenience which the construction of the law would create, is
to have effect only in a case where the law is doubtful where the
law is certain, such an argument is of no force. Bac. Ab. Baron
and Feme, H.
ARISTOCRACY. That form of government in which the sovereign
power is exercised by a small number of persons to the exclusion
of the remainder of the people.
ARISTODEMOCRACY. A form of government where the power is
divided between the great men of the nation and the people.
ARKANSAS. The name of one of the new states of the United
States. It was admitted into the Union by the act of congress of
June 15th, 1836, 4 Sharsw. cont. of Story's L. U. S. 2444, by
which it is declared that the state of Arkansas shall be one, and
is hereby declared to be one of the United States of America, and
admitted into the Union on an equal footing with the original
states in all respects whatever.
2. A convention assembled at Little Rock, on Monday, the 4th
day of January, 1836, for the purpose of forming a constitution,
by which it is declared that " We, the people of the Territory of
Arkansas, by our representatives in convention assembled, in
order to secure to ourselves and our posterity the enjoyments of
all the rights of life, liberty and property, and the free
pursuit of happiness do mutually agree with each other to form
ourselves into a free and independent state, by the name and
style of `The State of Arkansas.' " The constitution was finally
adopted on the 30th day of January, 1836.
3. The powers of the government are divided into three
departments; each of them is confided to a separate body of
magistry, to wit; those which are legislative, to one; those
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which are executive, to another and those which are judicial, to
a third.
4. - 1. The legislative authority of the state is vested in a
general assembly, which consists of a senate and house of
representatives. Each house shall appoint its own officers, and
shall judge of the qualifications, returns and elections of its
own members. Two-thirds of each shall constitute a quorum to do
business, but a smaller number may adjourn from day to day, and
compel the attendance of absent members, in such manner, and
under such penalties, as each house shall provide. Sect. 15. Each
house may determine the rules of its own proceedings, punish its
own members for disorderly behaviour, and with the concurrence of
two-thirds of the members elected, expel a member; but no member
shall be expelled a second time for the same offence. They shall
each from time to time publish a journal of their proceedings,
except such parts as, in their opinion, require secrecy; and the
yeas and nays shall be entered on the journal, at the desire of
any five members. Sect. 16.
5. The doors of each house while in session, or in a committee
of the whole shall be kept open, except in cases which may
require secrecy; and each house may punish by fine and
imprisonment, any person, not a member, who shall be guilty of
disrespect to the house, by any disorderly or contemptuous
behaviour in their presence, during, their session; but such
imprisonment shall not extend beyond the final adjournment of
that session. Sect. 17.
6. Bills may originate in either house, and be amended or
rejected in the other and every bill shall be read on three
different days in each house, unless two-thirds of, the house
where the same is pending shall dispense with the rules : and
every bill having passed both houses shall be signed by the
president of the senate, and the speaker of the house of
representatives.
Sect. 81.
7. Whenever an officer, civil or military, shall be appointed
by the joint concurrent vote of both houses, or by the separate
vote of either house of the general assembly, the vote shall be
taken viva voce, and entered on the journal. Sect. 19.
8. The senators and representatives shall, in all cases except
treason, felony, or breach of the peace, be privileged from
arrest, during the session of the general assembly, and for
fifteen days before the commencement and after the termination of
each session; and for any speech or debate in either house, they
shall not be questioned in any other place. Sect. 20.
9. The members of the general assembly shall severally receive,
from the public treasury, compensation for their services, which
may be increased or diminished; but no alteration of such
compensation of members shall take effect during t-he session at
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which it is-made. Sect. 21.
10. - 1. The senate shall never consist of less than seventeen
nor more than thirty-three members. Art. 4, Sect. 31. The members
shall be chosen for four years, by the qualified electors of the
several districts. Art. 4, Sect. 5. No person shall be a senator
who shall not have attained the age of thirty years; Who shall
not be a free white male citizen of the United States; who shall
not have been an inhabitant of this state for one year; and who
shall not, at the time of his election, have an actual residence
in the district he may be chosen to represent. Art. 4, Sect. 6.
11. All impeachments shall be tried by the senate; and when
sitting for that purpose, the senators shall be on oath or
affirmation to do justice according to law and evidence. When the
governor shall be tried, the chief justice of the supreme court
shall preside; and no person shall be convicted without the
concurrence of two-thirds of the senators elected. Art. 4, Sect.
27.
12. - 2. The house of representatives shall consist of not less
than fifty-four, nor more than one hundred representatives, to be
apportioned among the several counties in this state, according
to the number of free white male inhabitants therein, taking five
hundred as the ratio, until the number of representatives amounts
to seventy-five; and when they amount to seventy-five, they
shall not be further increased until the population of the state
amounts to five hundred thousand souls. Provided that each county
now organized shall, although its population may not give the
existing ratio, always be entitled to one representative. The
members are chosen every second year, by the qualified electors
of the several counties. Art. 4, Sect. 2.
13. The qualification of an elector is as follows: he must 1,
be a free, white male citizen of the United States; 2, have
attained the age of twenty-one years; 3, have been a citizen of
this state six months; 4, be must actually reside in the county,
or district where he votes for an office made elective under this
state or the United States. But no soldier, seaman, or marine, in
the army of the United States, shall be entitled to vote at any
election within this state. Art. 4, Sect. 2.
14. No person shall be a member of the house of
representatives, who shall not have attained the age of
twenty-five years; who shall not be a free, white male citizen
of the United States; who shall not have been an inhabitant of
this state one year; and who shall not, at the time of his
election, have an, actual residence in the county he may be
chosen to represent. Art. 4,
Sect. 4.
15. The house of representatives shall have the sole power of
impeachment. Art. 4, Sect. 27.
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16. §2. The supreme executive power of this state is vested in
a chief magistrate, who is styled " The Governor of the State of
Arkansas." Art. 5, Sect. 1.
17. - 1. He is elected by the electors of the representatives.
18. - 2. He must be thirty years of age a native born citizen
of Arkansas, or a native born citizen of the United States, or a
resident of Arkansas ten years previous to the adoption of this
constitution, if not a native of the United States; and, shall
have been a resident of the same at least four years next before
his election. Art. 4, s. 4.
19. - 3. The governor holds his office for the term of four
years from the time of, his installation, and until his successor
shall be duly qualified; but he is not eligible for more than
eight years in any term of twelve years. Art. 5, sect. 4.
20. - 4. His principal duties are enumerated in the fifth
article of the constitution, and are as follows: He Shall be
commander-in-chief of the army of this state, and of the militia
thereof, except when they shall be called into the service of the
United States; s. 6: He may require information, in writing,
from the officers of the executive department, on any subject
relating to the duties of their respective offices; s. 7. He may
by proclamation, on extraordinary occasions, convene the general
assembly, at the seat of government, or at a different place, if
that shall have become, since their last adjournment, dangerous
from an enemy, or from contagious diseases. In case of
disagreement between the two houses, with respect to the time of
adjournment, he may adjourn them to such time as he shall think
proper, not beyond the day of the next meeting of the general
assembly; s, 8. He shall, from time to time, give to the general
assembly information of the state of the government, and
recommend to their consideration such measures as he may deem
expedient; s. 9. He shall take care that the laws be faithfully
executed s. 10. In all criminal and penal cases, except those of
treason and impeachment, he shall have power to grant pardons,
after conviction, and remit fines and forfeitures, under such
rules and regulations as shall be prescribed by law in cases of
treason, he shall have power, by and with the advice and consent
of the
senate, to grant reprieve sand pardons; and he may, in the
recess of the senate, respite the sentence until the end of the
next session of the general assembly s. 11. He is the keeper of
the seal of the' state, which is to be used by him officially;
s. 12. Every bill which shall have passed both houses, shall be
presented to the governor. If he approve, he shall sign it; but
if he shall not approve it, he shall return it, with his
objections, to the house in which it Shall have originated, who
shall enter his objections at large upon their journals, and
proceed to reconsider it. If, after such reconsideration, a
majority of the whole number elected to that house shall agree to
pass the bill, it shall be sent, with the objections, to the
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other house, by which, likewise, it shall be reconsidered; and
if approved by a majority of the whole number elected to that
house it shall be a law; but in such cases, the votes of both
houses shall be determined by yeas and nays; and the names of
persons voting for or against the bill, shall be entered on the
journals of each house respectively. If the bill shall not be
returned by the governor within three days, Sundays excepted,
after it shall have been presented to him, the same shall be a
law, in like manner as if be had signed it, unless the general
assembly, by their adjournment, prevent its return; in such case
it shall not be a law; s. 16. 5. In case of the impeachment of
the governor, his removal from office, death, refusal to qualify,
or absence from the state, the president of the senate shall
exercise all the authority appertaining to the office of
governor, until another governor shall have been elected and
qualified, or until the governor absent or impeached, shall
return or be acquitted; s. 18. If, during the vacancy of the
office of governor, the president of the senate shall be
impeached, removed from office, refuse to qualify, resign, die,
or be absent from the state, the speaker of the house of
representatives shall, in like manner, administer the government;
s. 19.
2l. - §3. The judicial power of this state is vested by the
sixth article of the constitution, as follows
22. - 1. The judicial power of this state shall be vested in
one supreme court, in circuit courts, in county courts, and in
justices of the peace. The general assembly may also vest such
jurisdiction as may be deemed necessary, in corporation courts;
and, when they deem it expedient, may establish courts of
chancery.
23. - 2. The supreme court shall be composed of three judges,
one of whom shall be styled chief justice, any two of whom shall
constitute a quorum and -the concurrence of any two of the said
judges shall, in every case, be necessary to a decision. The
supreme court, except in cases otherwise directed by this
constitution, shall have appellate jurisdiction only, which shall
be coextensive with the state, under such rules and regulations
as may, from time to time, be prescribed by law; it shall have a
general superintending control over all inferior and other courts
of law and equity it shall have power to issue writs of error and
Bupersedeas, certiorari and habeas corpus, mandamus, and quo
warranto, and other remedial writs, and to hear and determine the
same; said judges shall be conservators of the peace throughout
the state, and shall severally have power to issue any of the
aforesaid writs.
24. - 3. The circuit court shall have jurisdiction over all
criminal cases whicb shall not be otherwise provided for by law
and exclusive original jurisdiction of all crimes amounting to
felony.at common law; and original jurisdiction of all civil
cases which shall not be cognizable before justices of the peace,
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until otherwise directed by the general assembly; and original
ju-risdiction in all matters of contract) when the sum in
controversy is over one hundred dollars. It shall hold its terms
at such place in each county, as may be by law directed.
25. - 4. The state shall be divided into convenient circuits,
each to consist of not less than five, nor more than seven
counties contiguous to each other, for each of which a judge
shall be elected, who, during his continuance in office, shall
reside and be a conservator of the peace within the circuit for
which he shall have been elected.
26. - 5. The circuit courts shall exercise a superintending
control over the county courts, and over justices of the peace,
in each county in their respective circuits; and shall have
power to issue all the necessary writs to carry into effect their
general and specific powers.
27. - 6. Until the general assembly shall deem it expedient to
establish courts of chancery, the circuit courts shall have
jurisdiction in matters of equity, subject to appeal to the
supreme court, in such manner as may be prescribed by law.
28.-7. The general asserably shall, by joint vote of both
houses, elect the judges of the supreme and circuit courts, a
majority of the whole number in joint vote being necessary to a
choice. The judges of the supreme court-shall be at least thirty
years of age; they shall hold their offices for eight years from
the date of their commissions. The judges of the circuit courts
shall be at least twenty-five years of age, and shall be elected
for the term of four years from the date of their commissions.
29. - 8. There shall be established in each county, a court to
be holden by the justices of the peace, and called the county
court, which shall have jurisdiction in all matters relating, to
county taxes, dishursements of money for county purposes, and in
every other case that may be necessary to the internal
improvement and local concerns of the respective counties.
30. - 9. There shall be elected by the justices of the peace of
the respective counties, a presiding judge of the county court,
to be commissioned by the governor, and hold his office for the
term of two years, and until his successor is elected or
qualified. He shall, in addition to the duties that may be
required of him by law, as presiding judge of the county court,
be a judge of the court of probate, and have such jurisdiction in
matters relative to the estates of deceased persons, executors,
administrators, and guardians, as may be prescribed by law, until
otherwise directed by the general assembly.
31.- 10. No judge shall preside in the trial of any cause, in
the event of which he may be interested, or where either of the
parties shall be connected with him by affinity or consanguinity,
within such degrees as may be proscribed by law, or in which he
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shall have been of counsel, or have presided in any inferior
court, except by consent of all the parties.
32. - 11. The qualified voters in each township shall elect the
justices of the peace for their respective townships. For every
fifty voters there may be elected one justice of the peace,
provided, that each township, however small, shall have two
justices of the peace. Justices of the peace shall be elected for
two years, and shall be commissioned by the governor, and reside
in the townships for which they shall have been elected, during
their continuance in office. They shall have individually, or two
or more of them jointly, exclusive original jurisdiction in all
matters of contract, except in actions of covenant, where the sum
in controversy is of one hundred dollars and under. Justices of
the peace shall in no case have jurisdiction to try and determine
any criminal case or penal offence against the state; but may
sit as examining courts, and commit, discbarge, or recognize to
the court having jurisdiction, for further trial, offenders
against the peace. For the foregoing purposes they shall have
power to issue all necessary process they shall also bave power
to bind to keep the peace, or for good behaviour.
ARM OF THE SEA. Lord Coke defines an arm of the sea to be where
the sea or tide flows or reflows. Constable's Case, 5 Co. 107.
This term includes bays, roads, creeks, coves, ports, and rivers
where the water flows and reflows, whether it be salt or fresh.
Ang. Tide Wat. 61. Vide Creek; Haven; Navigable; Port;
Reliction; River; Road.
ARMISTICE. A cessation of hostilities between belligerent
nations for a considerable time. It is either partial and local,
or general. It differs from a mere suspension of arms which takes
place to enable the two armies to bury their dead, their chiefs
to hold conferences or pourparlers, and the like. Vattel, Droit
des Gens, liv. 3, c. 16, §233. The terms truce, (q. v.) and
armistice, are sometimes used in the same sense. Vide Truce.
ARMS. Any thing that a man wears for his defence, or takes in
his hands, or uses in his anger, to cast at, or strike at
another. Co. Litt. 161 b, 162 a; Crompt. Just. P. 65; Cunn.
Dict. h. t.
2. The Constitution of the United States, Amendm. art. 2,
declares, "that a well regulated militia being necessary to the
security of a free state, the right of the people to keep and
bear arms shall not be infringed." In Kentucky, a statute " to
prevent persons from wearing concealed arms," has been declared
to be unconstitutional; 2 Litt. R. 90; while in Indiana a
similar statute has been holden valid and constitutional. 3
Blackf. R. 229. Vide Story, Const.- §1889, 1890 Amer. Citizen,
176; 1 Tuck. Black. App. 300 Rawle on Const. 125.
ARMS, heraldry. Signs of arms, or drawings painted on shields,
banners, and the like. The arms of the United States are
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described in the Resolution of Congress, of June 20, 1782. Vide
Seal of the United States.
ARPENT. A quantity of land containing a French acre. 4 Hall's
Law Journal, 518.
ARPENTATOR, from arpent. A measurer or surveyor of land.
ARRAIGNMENT, crim. law practice. Signifies the calling of the
defendant to the bar of the court, to answer the accusation
contained in the indictment. It consists of three parts.
2. - 1. Calling the defendant to the bar by his name, and
commanding him to hold up his hand; this is done for the purpose
of completely identifying the prisoner, as the person named in
the indictment; the holding 20up his hand is not, however,
indispensable, for if the prisoner should refuse to do so, he may
be identified by any admission that he is the person intended. 1
Bl. Rep. 3.
3. - 2. The reading of the indictment to enable him fully to
understand, the charge to be produced against him; The mode in
which it is read is, after' saying, " A B, hold up your hand," to
proceed, "you stand indicted by the name of A B, late of, &c.,
for that you on, &c." and then go through the whole of the
indictment.
4. - 3. After this is concluded, the clerk proceeds to the
third part, by adding, " How say you, A B, are you guilty or not
guilty?" Upon this, if the prisoner, confesses the charge, the
confession is recorded, and nothing further is done till judgment
if, on the contrary, he answers "not guilty", that plea is
entered for him, and the clerk or attorney general, replies that
he is guilty; when an issue is formed. Vide generally, Dalt. J.
h. t.; Burn's J. h. t.; Williams; J. h. t.; 4 Bl. Com. 322;
Harg. St. Tr. 4 vol. 777, 661; 2 Hale, 219; Cro. C. C. 7; 1
Chit. Cr. Law, 414.
ARRAMEUR, maritime law. The name of an ancient officer of a
port, whose business was to load and unload vessels.
2. In the Laws of Oleron, art 11, (published in English in the
App. to 1 Pet. Adm. R. xxv.) some account of arrameurs will be
found in these words: " There were formerly, in several ports of
Guyenne, certain officers called arrameurs, or stowers, who were
master-carpenters by profession, and were paid by the merchants,
who loaded the ship. Their business was to dispose right, ana
Stow closely, all goods in casks, bales, boxes, bundles or
otherwise to balance both sides, to fill up the vacant spaces,
and manage every thing to the best advantage. It was riot but
that the greatest part of the ship's crew understood this as well
as these stowers but they would not meddle with it, nor undertake
it, to avoid falling under the merchant's displeasure, or being
accountable for any ill accident that might.happen by that means.
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There were also sacquiers, who were very ancient officers, as may
be seen in the 14th book of the Theodosian code, Unica de
Saccariis Portus Romae, lib. 14. Their business was to load and
unload vessels loaded with salt, corn, or fish, to prevent the
ship's crew defrauding the merchant by false tale, or cheating
him of his merchandize otherwise." See Sacquier; Stevedore.
ARRAS, Span. law. The property contributed by the hushand, ad
sustinenda onera matrimonii, is called arras. The hushand is
under no obligation to give arras, but it is a donation purely
voluntary. He is not permitted to give in arras more than a tenth
of his property. The arras is the exclusive property of the wife,
subject to the hushand's usufruct during his life. Burge on the
Confl. of Laws, 417.
2. By arras is also understood the donation which the hushand
makes to his wife, by reason or on account of marriage, and in
consideration of the dote, or portion, which be receives from
her. Aso & Man. Inst. h. t. 7, c. 3.
ARRAY, practice. The whole body of jurors summoned to attend a
court, as -they are arrayed or arranged on the panel. Vide
Challenges, and Dane's Ab. Index, h. t.; 1 Chit. Cr. Law, 536;
Com. Dig. Challenge, B.
ARREARAGE. Money remaining unpaid after it becomes due as rent
unpaid interest remaining due Pow. Mortgages, Index, h. t.; a
sum of money remaining in the hands of an accountant. Merl. Rep.
h. t.; Dane's Ab. Index, h. t.
ARREST. To stop; to seize; to deprive one of his liberty by
virtue of legal authority.
ARREST IN CIVIL CASES, practice. An arrest is the apprehension
of a person by virtue of a lawful authority, to answer the demand
against him in a civil action.
2. To constitute an arrest, no actual force or manual touching
of the body is requisite; it is sufficient if the party be
within the power of the officer, and submit to the arrest. 2 N.
H. Rep. 318; 8 Dana, 190; 3 Herring. 416; 1 Baldw. 239;
Harper, 453; 8 Greenl. 127; 1 Wend. 215 2 Blackf. 294.
Barewords, however, will not make an arrest, without laying the
person or otherwise confining him. 2 H. P. C. 129 1 Burn's Just.
148; 1 Salk. 79. It is necessarily an assault, but not
necessarily a battery. Cases Temp. Hardw.
300.
3. Arrests are made either on mesne or final process. An arrest
on mesne process is made in order that the defendant shall
answer, after judgment, to satisfy the claim of the plaintiff;
on being arrested, the defendant is entitled to be liberated on
giving sufficient bail, which the officer is bound to take. 2.
When the arrest is on final process, as a ca. sa., the defendant
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cannot generally be dis charged on bail; and his discharge is
considered as an escape. Vide, generally, Yelv. 29, a, note; 3
Bl. Com. 288, n.; 1 Sup. to Ves. Jr. 374; Wats. on Sher. 87;
11 East, 440; 18 E. C. L. R. 169, note.
4. In all governments there are persons who are privileged from
arrest in civil cases. In the United States this privilege
continues generally while the defendant remains invested with a
particular character. Members of congress and of the state
legislatures are exempted while attending the respective
assemblies to which they belong parties and witnesses, while
lawfully attending court; electors, while attending a public
election; ambassadors and other foreign ministers; insolvent
debtors, when they have been lawfully discharged; married women,
when sued upon their contracts, are generally privileged; and
executors and administrators, when sued in their representative
characters, generally enjoy the same privilege. The privilege in
favor of members of congress, or of the state legislatures, of
electors, and of parties and witnesses in a cause, extend to the
time of going to, remaining at, and returning from, the places to
which they are thus legally called.
5. The code of civil practice of Louisiana enacts as follows,
namely: Art. 210. The arrest is one of the means which the law
gives the creditor to-secure the person of his debtor while the
suit is pending, or to compel him to give security for his
appearance after judgment. Art. 211. Minors of both sexes,
whether emancipated or not, interdicted persons, and women,
married or single, cannot be arrested. Art. 212. Any creditor,
whose debtor is about to leave the state, even for a limited
time, without leaving in it sufficient property to satisfy the
judgment which he expects to obtain in the suit he intends to
bring against him, may have the person of such debtor arrested
and confined until he shall give sufficient security that be
shall not depart from the state without the leave of the court.
Art. 213. Such arrest may be ordered in all demands brought for a
debt, whether liquidated or not, when the term of payment has
expired, and even for damages for any injury sustained by the
plaintiff in either his person or property. Art. 214. Previous to
obtaining an order of arrest against his debtor, to compel him to
give sufficient security that be shall not depart from the state,
the creditor must swear in the petition which he presents to that
effect to any competent judge, that the debt, or the damages
which he claims, and the amount of which he specifies, is really
due to him, and that he verily believes that, the defendant is
about to remove from the state, without leaving in it and lastly,
that he does not -take this oath with the intention of vexing the
defendant, but only in order to secure his demand. Art. 215. The
oath prescribed in the preceding article, ulay be taken either by
the creditor himself, or in his absence, by his attorney in fact
or his agent, provided either the one or the other can swear to
the debt from his personal and direct knowledge of its being due,
and not by what he may know or have learned from the creditor he
represent. Art. 216. The oath which the creditor is required to
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take of the existence and nature of the debt of which he claims
payment, in the cases provided in the two preceding articles, may
be taken either before any judge or justice of the peace of the
place where the court is held, before which he sues, or before
the judge of any other place, provided the signature of such
judge be proved or duly authenticated. Vide Auter action pendant;
Lis pendens: Privilege; Rights.
ARREST, in criminal cases. The apprehending or detaining of the
person, in order to be forthcoming to answer an alleged or
suspected crime. The word arrest is more properly used in civil
cases, and apprehension in criminal. A man is arrested under a
capias ad respondendum, apprehended under a warrant charging him
with a larceny.
2. It will be convenient to consider, 1, who may be arrested;
2, for what crimes; 3, at what time; 4, in what places; 5, by
whom and by what authority.
3. - 1. Who may be arrested. Generally all persons properly
accused of a crime or misdeameanor, may be arrested; by the laws
of the United States, ambassadors (q. v.) and other public
ministers are exempt from arrest.
4. - 2. For what offences an arrest may be made. It may be made
for treason, felony, breach of the peace, or other misdemeanor.
5. - 3. At what time. An arrest may be made in the night as
well as in the day time and for treasons, felonies, and breaches
of the peace, on Sunday as well as on other days. It may be made
before as well as after indictment found. Wallace's R. 23.
6. - 4. At what places. No place affords protection to
offenders against the criminal law; a man may therefore be
arrested in his own house, (q. v.) which may be broken into for
the purpose of making the arrest.
7. - 5. Who may arrest and by what authority. An offender may
be arrested either without a warrant or with a warrant. First, an
arrest may be made without a warrant by a private individual or
by a peace officer. Private individuals are enjoined by law to
arrest an offender when present at the time a felony is
committed, or a dangerous wound given- 11 Johns. R. 486 and vide
Hawk. B. 1, c, 12, s. 1; c. 13, F3. 7, 8; 4 Bl. Com. 292; 1
Hale, 587; Com. Dig. Imprisonment, H 4; Bac. Ab. Trespass, D.
3. Peace officers may, a fortiori, make an arrest for a crime
or misdemeanor committed in their view, without any warrant. 8
Serg. & R. 47. An arrest may therefore be made by a constable,
(q. v.) a justice of the peace, (q. v.) slieriff, (q. v.) or
coroner. (q. v.) Secondly, an arrest may bb made by irtue of a
warrant, (q. v.) which is the proper course when the
circumstances of the case will permit it. Vide, generally, 1
Chit. Cr. Law, 11 to 71; Russ. on Cr. Index, h. t.
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ARREST OP JUDGMENT. The act of a court by which the judges
refuse to give judgment, because upon the face of the record, it
appears that the plaintiff is not entitled to it. See Judgment,
arrest of.
ARRESTANDIS bonis ne dissipentur. In the English law, a writ
for him whose cattle or goods, being taken during a controversy,
are likely, to be wasted and consumed.
ARRESTEE, law of Scotland. He in whose hands a debt, or
property in his possession, has been arrested by a regular
arrestment. If, in contempt of the ar-restment, he shall make
payment of the sum, or deliver the goods arrested to the common
debtor, he is not only liable criminally for breach of the
arrestment, but he must pay the debt again to the arrester. Ersk.
Pr. L. Scot. 3, 6, 6.
ARRESTER, law of Scotland. One who sues out and obtains an
arrestment of his debtor's goods or movable obligations. Ersk.
Pr. L. Soot. 3, 6, 1.
ARRESTMENT, Scotch law. By this term is sometimes meant the
securing of a criminal's person till trial, or that of a debtor
till he give security judicio sisti. Ersk. Pr. L. Scot. 1, 2, 12.
It is also the order of a judge, by which he who is debtor in a
movable obligation to the arrester's debtor, is probibited to
make payment or delivery till the debt due to the arrester be
paid or secured. Ersk. Pr. L. Scot. 3, 6, 1. See Attachment,
foreign. where arrestment proceeds on a depending action, it may
be loosed by the common debtor's giving security to the arrester
for his debt, in the event it shall be found due. Id. 3, 6, 7.
ARRET, French law. An arret is a judgment, sentence, or decree
of, a court of competent jurisdiction. Saisie-arret is an
attachment of property in the hands of a third person. Code of
Pract. of Lo. art. 209.
ARRETTED, arrectatus, i. e. ad rectum vocatus. Convened before
a judge and charged with a crime. Ad rectum malefactorem, is,
according to Bracton, to have a malefactor forthcoming to be put
on his trial. Sometimes it is used for imputed or laid to his
charge; as, no folly may be arretted to any one under age.
Bract. 1. 3, tr. 2, c. 10; Cunn. Dict. h. t.
ARRHAE, contracts, in the civil law. Money or other valuable
things given by the buyer to the seller, for the purpose of
evidencing the contract earnest.
2. There are two kinds of arrbae; one kind given when a
contract has only been proposed; the other when a sale has
actually taken place. Those which are given when a bargain has
been merely proposed, before it has been concluded, form the
matter of the contract, by which he who gives the arrhae consents
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and agrees to lose them, and to transfer the title to them in the
opposite party, in case he should refuse to complete the proposed
bargain; and the receiver of arrhae is obliged on his part to
return double the amount to the giver of them in case be should
fail to complete his part of the contract. Poth. Contr. de Vente,
n. 498. After the contract of sale has been completed, the
purchaser usually gives arrbae as evidence that the contract has
been perfected. Arrbae are therefore defined quod ante pretium
datur, et fidem fecit contractus, facti totiusque pecuniae
solvendae. Id. n. 506; Code, 4, 45, 2.
TO ARRIVE. To come to a particular place; to reach a
particular or certain place as, the ship United States arrived in
New York. See 1 Marsh. Dec. 411.
ARROGATION, civil law. Signifies nearly the same as adoption;
the only difference between them is this, that adoption was of a
person under full age but as arrogation required the person
arrogated, sui juris, no one could be arrogated till he was of
full age. Dig. 1, 7, 5; Inst. 1, 11, 3 1 Brown's Civ. Law, 119.
ARSER IN LE MAIN. Burning in the hand. This punishment was
inflicted on those who received the benefit of clergy. Terms de
la Ley.
ARSON, criminal law. At common law an offence of the degree of
felony; and is defined by Lord Coke to be the malicious and
voluntary burning of the house of another, by night or day. 3
Inst. 66.
2. In order to make this crime complete, there must be, 1st, a
burning of the house, or some part of it; it is sufficient if
any part be consumed, however small it may be. 9 C. & P. 45; 38
E. C. L. R. 29; 16 Mass. 105. 2d. The house burnt must; belong
to another; but if a man set fire to his own house with a view
to burn his neighbor's, and does so, it is at least a great
misdemeanor, if not a felony. 1 Hale, P. C. 568; 2 East, P. C.
1027; 2 Russ. 487. 3d. The burning must have been both malicious
and willful.
3. The offence of arson at common law, does not extend further
than the burning of the house of another. By statute this crime
is greatly enlarged in some of the states, as in Pennsylvania,
where it is extended to the burning of any barn or outhouse
having bay or grain therein; any barrack, rick or stack of hay,
grain, or bark; any public buildings, church or meeting-house,
college, school or library. Act 23d April, 1829; 2 Russell on
Crimes, 486; 1 Hawk. P. C. c. 39 4 Bl. Com. 220; 2 East, P. C.
c. 21, s. 1, p. 1015; 16 John. R. 203; 16 Mass. 105. As to the
extension of the offence by the laws of the United States, see
Stat. 1825, c. 276, 3 Story's L. U. S. 1999.
ARSURA. The trial of money by fire after it was coined. This
word is obsolete.
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ART. The power of doing. something not taught by nature or
instinct. Johnson. Eunomus defines art to be a collection of
certain rules for doing anything in a set form. Dial. 2, p. 74.
The Dictionaire des Sciences Medicales, h. v., defines it in
nearly the same terms.
2. The arts are divided into mechanical and liberal arts. The
mechanical arts are those which require more bodily than mental
labor; they are usually called trades, and those who pursue them
are called artisans or mecbanics. The liberal are those which
have for the sole or principal object, works of the mind, and
those who are engaged in them are called artists. Pard. Dr. Com.
n. 35.
3. The act of Congress of July 4, 1836, s. 6, in describing the
subjects of patents, uses the term art. The sense of this word in
its usual acceptation is perhaps too comprehensive. The thing to
be patented is not a mere elementary, principle, or intellectual
discovery, but a principle put in practice, and applied to some
art, machine, manufacture, or composition of matter. 4 Mason, 1.
4. Copper-plate printing on the back of a bank note, is an art
for which a patent may be granted. 4 Wash. C. C. R. 9.
ART AND PART, Scotch law. Where one is accessory to a crime
committed by another; a person may be guilty, art and part,
either by giving advice or counsel to commit the crime; or, 2,
by giving warrant or mandate to commit it; or, 3, by actually
assisting the criminal in the execution.
2. In the more atrocious crimes, it seems agreed, that the
adviser is equally punishable with the criminal and that in the
slighter offences, the circumstances arising from the adviser's
lesser age, the jocular or careless manner of giving the advice,
&c., may be received as pleas for softening the punishment.
3. One who gives a mandate to commit a crime, as he is the
first spring of the action, seems more guilty than the person
20employed as the instrument in executing it.
4. Assistance may be given to the committer of a crime, not
only in the actual execution, but previous to it, by furnishing
him, with a criminal intent, with poison, arms, or other means of
perpetrating it. That sort of assistance which is not given till
after the criminal act, and which is commonly called abetting,
though it be itself criminal, does not infer art and part of the
principal crime. Ersk. Pr. L; Scot. 4, 4, 4 ; Mack. Cr. Treat.
tit. Art and Part.
ARTICLES. A division in some books. In agreements and other
writings, for the sake of perspicuity, the subjects are divided
into parts, paragraphs, or articles.
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ARTICLES, chan. practice. An instrument in writing, filed by a
party to a proceeding in chancery, containing reasons why a
witness in the cause should be discredited.
2. As to the matter which ought to be contained in these
articles, Lord Eldon gave some general directions in the case of
Carlos v. Brook, 10 Ves. 49. " The court," says he, "attending
with great caution to an application to permit any witness to be
examined after publication, has held where the proposition was to
examine a witness to credit, that the examination is either to be
confined to general credit; that is, by produciug witnesses to
swear, that the person is not to be believed upon his oath; or,
if you find him swearing to a matter, not to issue in the cause,
(and therefore not thought material to the merits,) in that case,
as the witness is not produced to vary the case in evidence by,
testimony that relates to matters in issue, but is to speak only
to the truth or want of veracity, with which a witness had spoken
to a fact not, in issue, there is no danger in permitting him to
state that such fact, not put in issue, is false and, for the
purpose of discrediting a witness, the court has not considered
itself at liberty to sanction such a proceeding as an examination
to destroy the credit of another witness, who had deposed only to
points put in issue. In Purcell v. M'Namara, it was agreed that
after publication it was competent to examine any witness to the
point, whether he would believe that man upon his oath. It is not
competent, even at law, to ask the ground of that opinion; but
the general question only is permitted. In Purcell v. M'Namara,
the witness went into the history of his whole life and as to his
solvency, & c. It was not at all put at issue whether he had been
insolvent, or had compounded with his creditors; but, having
sworn the contrary, they proved by witnesses, that he, who had
sworn to a, matter not in issue, had sworn falsely to that fact;
and that he had been insolvent, and had compounded with his
creditors; and it would be lamentable, if the court could not
find means of getting at it; for he could not be indicted for
perjury, though swearing falsely, the fact not being material.
The rule is, in general cases the cause is heard upon -evidence
given before publication; but that you may examine after
publication, provided you examine to credit only, and do not go
to matters in issue in the cause, or in contradiction of them,
under pretence of examing to credit only. Those depositions," he
continued, " appear to me material to what is in issue in the
cause; and therefore must be suppressed," See a form of articles
in Gresl. Eq. Ev. 140, 141; and also 8 Ves. 327; 9 Ves. 145; 1
S. & S. 469.
ARTICLES, eccl. law. A complaint in the form of a libel, ex
hibited to an ecclesiastical court.
ARTICLES OF AGREEMENT, contracts. Relate either to real or
personal estate, or to both. An article is a memorandum or minute
of an agreement, reduced to writing to make some future
disposition or modification of property; and such an instrument
will create a trust or equitable estate, of which a specific
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performance will be decreed in chancery. Cruise on Real Pr. tit.
32 c. 1, s. 31. And see Id. tit. 12, c. 1.
2. This instrument should contain: 1, the name and character of
the parties; 2, the subject-matter of the contracts; 3, the
covenants which each of the parties bind themselves to perform;
4, the date; 5, the signatures of the parties.
3. - 1. The parties should be named, and their addition should
also be mentioned, in order to identify them. It should also be
stated which persons are of the first, second, or other part. A
confusion, in this respect, may occasion difficulties.
4. - 2. The subject-matter of the contract ought to be set out
in clear and explicit language, and the time and place of the
performance of the agreement ought to be mentioned and, when
goods are to be delivered, it ought to be provided at whose
expense they shall be removed, for there is a difference in the
delivery of light and bulky articles. The seller of bulky
articles is not in general bound to deliver them unless he agrees
to do so. 5 S. & R. 19 12 Mass. 300; 4 Shepl. 49.
5. - 3. The covenants to be performed by each party should be
specially and correctly stated, as a mistake in this respect
leads to difficulties which might have been obviated had they
been properly drawn.
6. - 4. The instrument should be truly dated.
7. - 5. It should be signed by the parties or their agents.
When signed by an agent he should state his authority, and sign
his principal's name, and then his own, as, A B, by his agent or
attorney C D.
ARTICLES OF CONFEDERATION. The compact which was made by the
original thirteen states of the United States of America, bore
the name of the "Articles of Confederation and perpetual union
between, the states of New Hampshire, Massachusetts Bay, Rhode
Island and Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia." It was adopted and went
into force on the first day of March, 1781, and remained as the
supreme law until the first Wednesday of March, 1789. 5 Wheat. R.
420. The following analysis of this celebrated instrument is
copied from Judge Story's Commentaries on the Constitution of the
United States, Book 2, c. 3.
2. "In pursuance of the design already announced, it is now
proposed to give an analysis of the articles of confederation,
or, as they are denominated in the instrument itself, the
Articles of Confederation and Perpetual Union between the States,
as they were finally adopted by the thirteen states in 1781.
3. "The style of the Confederacy was, by the first article,
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declared to be, `The United States of America.' The second
article declared, that each state retained its sovereignty,
freedom, and independence, and every power, jurisdiction and
right, which was not by this confederation expressly delegated to
the United States, in congress assembled. The third article
declared, that the states severally entered into a firm league of
friendship with each other, for their common defence, the
security of their liberties, and their mutual and general welfare
binding themselves to assist each other against all force offered
to, or attacks made upon them, or any of them, on account of
religion, sovereignty, trade, or any other pretence whatever. The
fourth article declared, that the free inhabitants of each of the
states, (vagabonds and fugitives from justice excepted,) should
be entitled to all the privileges of free citizens in the several
states; that the people of each state should have free ingress
and regress to any from any other state, and should enjoy all the
privileges of trade and commerce, subject to the same duties and
restrictions, as the inhabitants; that fugitives from justice
should, upon the demand of the executive of the state, from which
they fled, be delivered up; and that full faith and credit
should be given, in each of the states, to the records, acts, and
judicial proceedings of the courts and magistrates of every other
state.
4. "Having thus provided for the security and intercourse of
the states, the next article (5th) provided for the organization
of a general congress, declaring that delegates should be chosen
in such manner, as the legislature of each state should direct;
to meet in congress on the first Monday in every year, with a
power, reserved to each state, to recall any or all of the
delegates, and to send others in their, stead. No state was to be
represented in congress by less than two, nor than seven members.
No delegate was eligible for more than three, in any term of six
years; and no delegate was capable of holding any office of
emolument under the United States. Each state was to maintain its
own delegates; and, in determining questions in congress, was to
have one vote. Freedom of speech and debate in congress was not
to be impeached or questioned in any other place; and the
members were to be protected from arrest and imprisonment, during
the time of their going to and from, and attendance on congress,
except for treason, felony, or breach of the peace.
5. "By subsequent articles, congress was invested with the sole
and exclusive right and power of determining on peace and war,
unless in case of an invasion of a state by enemies, or an
imminent danger of an invasion by Indians; of sending and
receiving ambassadors; entering into treaties and alliances,
under certain limitations, as to treaties of commerce; of
establishing rules for deciding all cases of capture on land and
water, and for the division and appropriation of prizes taken by
the land or naval forces, in the service of the United States of
granting letters of marque and reprisal in times of peace; of
appointing courts for the trial of piracies and felonies
committed on the high seas; and of establishing courts for
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receiving and finally determining appeals in all cases of
captures.
6. "Congress was also invested with power to decide in the last
resort, on appeal, all disputes and differences between two or
more states concerning boundary, jurisdiction, or any other cause
whatsoever; and the mode of exercising that authority was
specially prescribed. And all controversies concerning the
private right of soil, claimed under different grants of two or
more states before the settlement of their jurisdiction, were to
be finally determined in the same manner, upon the petition of
either of the grantees. But no state was to be deprived of
territory for the benefit of the United
States.
7. "Congress was also invested with the sole and exclusive
right and power of regulating the alloy and value of coin struck
by their own authority, or that of the United States; of fixing
the standard of weights and measures throughout the United
States; of regulating the trade and managing all affairs with
the Indians, not members of any of the states, provided, that the
legislative right of any state within its own limits should not
be infringed or violated of establishing and regulating post
offices from one state to another, and exacting postage to defray
the expenses; of appointing all officers of the land forces in
the service of the United States, except regimental officers; of
appointing all officers of the naval forces, and commissioning
all officers whatsoever in the service of the United States; and
of making rules for the government and regulation of the land and
naval forces, and directing their operations.
8. "Congress was also invested with authority to appoint a
committee of the states to sit in the recess of congress, and to
consist of one delegate from each state, and other committees and
civil officers, to manage the general affairs under their
direction; to appoint one of their number to preside, but no
person was to serve in the office of president more than one year
in the term of three years; to ascertain the necessary sums for
the, public service, and to appropriate the same for defraying
the public expenses; to. borrow money and emit bills ou credit
of the United States to build and equip a navy; to agree upon
the number of land forces, and make requisitioins upon each state
for its quota, in proportion to the number of white inhabitants
in such state. The legislatures of each state were to appoint the
regimental officers, raise the men, and clothe, arm, and equip
them at the expense of the United States.
9. "Congress was also invested with power to adjourn for any
time not exceeding six months, and to any place within the United
States and provision was made for the publication of its journal,
and for entering the yeas and nays thereon, when desired by any
delegate.
10. "Such were the powers confided in congress. But even these
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were greatly restricted in their exercise; for it was expressly.
provided, that congress should never engage in a war; nor grant
letters of marque or reprisal in, time of peace; nor enter into
any treaties or alliances; nor coin money or regulate the value
thereof; nor ascertain the sums or expenses necessary for the,
defence and welfare of the United States, nor emit bills nor
borrow money on the credit of the United States nor appropriate
money; nor agree upon the number of vessels of war to be built,
or purchased; or the number of land or sea forces to be raised;
nor appoint a commander-in-chief of the army or navy; unless
nine states should assent to the same. And no question on any
other point, except for adjournng from day to day, was to be
determined, except by vote of the majority of the states.
11. "The committee of the states or any tine of them, were
authorized in the recess of congress to exercise such powers, as
congress, with the assent of nine states, should think it
expedient to vest them with, except such powers for the exercise
of which, by the articles of confederation, the assent of nine
states was required, which could not be thus delegated.
12. "It was further. provided, that all bills of credit, moneys
borrowed, and debts contracted by or under the authority of
congress before the confederation, should be a charge against the
United States; that when land forces were raised by any state
for the common defence, all officers of or under the rank of
colonel should be appointed by the legislature of the state, or
in such manner as the state should direct; and all vacancies
should be filled up in the same manner that all charges of war,
and all other expenses for the common defence or general welfare,
should be defrayed out of a common treasury, which should be
supplied by the several states, in proportion to the value of the
land within each state granted or surveyed, and the buildings and
improvements thereon, to be estimated according to the mode
prescribed by congress; and the taxes for that proportion were
to be laid and levied by the legislatures of the states within
the time agreed upon by congress.
13. "Certain prohibitions were laid upon the exercise of powers
by the respective states. No state, without the consent of the
United States, could send an embassy to, or receive an embassy
from, or enter into, any treaty with any king, prince or state;
nor could any person holding any office under the United States,
or any of them, accept any present, emolument, office -or title,
from any foreign king, prince or state; nor could congress
itself grant any title of nobility. No two states could enter
into any treaty, confederation, or alliance with each other,
without the consent of congress. No state could lay any imposts
or duties, which might interfere with any proposed treaties. No
vessels of war were to be kept up by any state in time of peace,
except deemed necessary by congress for its defence, or trade;
nor any body of forces, except such as should be deemed requisite
by congress to garrison its forts, and necessary for its defence.
But every state was required always to keep up a well regulated
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and disciplined militia, sufficiently armed and accoutred, and to
be provided with suitable field-pieces, and tents, and arms, and
amunition, and camp equipage. No state could engage in war
without the consent of congress, unless actually invaded by
enemies, or in danger of invasion by the Indians. Nor could any
state grant commissions to any ships of war, nor letters of
marque and reprisal, except after a declaration of war by
congress, unless such state were infested by pirates, and then
subject to the determination of congress. No state could prevent
the removal of any property imported into any state to any other
state, of which the owner was an inhabitant. And no imposition,
duties, or restriction, could be laid by any state on the
Property of the United States or of either of them.
14. "There was also provision made for the admission of Canada,
into the Union, and of other colonies with the assent of nine
states. And it was finally declared, that every state should
abide by the determinations of congress on all questions
submitted to it by the confederation; that the articles should
be inviolably observed by every state; that the union should be
perpetual; and that no alterations should. be made in any of the
articles, unless agreed to by congress, and 'Confirmed by the
legislatures of every state.
15. "Such is the substance of this celebrated instrument, under
which the treaty of peace, acknowledging our independence, was
negotiated, the war of the revolution concluded, and the union of
the states maintained until the adoption of. the present
constitution."
ARTICLES OF IMPEACHMENT. An instrument which, in cases of
impeachment, (q. v.) is used, and performs the same office which
an indictment does, in a common criminal case, is known by this
name. These articles do not usually pursue the strict form and
accuracy of an indictment., Wood. Lect. 40, p. 605; Foster, 389,
390; Com. Dig. Parliament, L 21. They are sometimes quite
general in the form of the allegations, but always contain, or
ought to contain, so much certainty, as to enable the party to
put himself on the proper defence, and in case of an acquittal,
to avail himself of it, as a bar to another impeachment.
Additional articles may, perhaps, be exhibited at any stage of
the prosecution. Story on the §806; Rawle on the Const. 216.
2. The answer to articles of impeachment is exempted from
observing great strictness of form; and it may contain arguments
as well as facts. It is usual to give a full and particular
answer to each article of the accusation. Story, §808.
ARTICLES OF PARTNERSHIP. The name given to an instrument of
writing by which the parties enter into a partnership, upon the
conditions therein mentioned. This instrument generally contains
certain provisions which it is the object here to point out.
2. But before proceeding more particularly to the consideration
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of the Subject, it will be proper to observe that sometimes
preliminary agreements to enter into a partnership are formed,
and that questions, not unfrequently, arise as to their effects.
These are not partnerships, but agreements to enter into
partnership at a future time. When such an agreement has been
broken, the parties may apply for redress to a court of law,
where damages will be given, as a compensation. Application is
sometimes made to courts of equity for their more efficient aid
to compel a specific performance. In general these courts will
not entertain bills for specific performance of such preliminary
contracts; but in order to suppress frauds, or manifestly
mischievous consequences, they will compel such performance. 3
Atk. 383; Colly. Partn. B. 2, c. 2, §2 Wats. Partn. 60; Gow,
Partn. 109; Story, Eq. Jur. §666, note; Story,
Partn. §189; 1 Swanst. R. 513, note. When, however, the
partnership may be immediately dissolved, it seems the contract
cannot be specifically enforeed. 9 Ves. 360.
3. It is proper to premise that under each particular head, it
is intended briefly to examine the decisions which have been made
in relation to it.
4. The principal parts of articles of partnership are here
enumerated.
1. The names of the contracting parties. These should all be
severally set out.
5. - 2. The agreement that the parties actually by the
instrument enter into partnership, and care must be taken to
distinguish this agreement from a covenant to enter into
partnership at a future time.
6. - 3. The commencement of the partnership. This ought always
to be expressly provided for. When no other time is fixed by it,
the commencement will take place from the date of the instrument.
Colly. Partn. 140 5 Barn. & Cres. 108.
7. - 4. The duration of the partnership. This may be. for life,
or for a, specific period of time; partnerships may be
conditional or indefinite in their duration, or for a single
adventure or dealing; this period of duration is either express
or implied, but it will not be presumed to be beyond life. 1
Swanst. R. 521. When a term is fixed, it is presumed to endure
until that period has elapsed; and, when no term is fixed, for
the life of the parties, unless sooner dissolved by the acts of
one of them, by mutual consent, or operation of law. Story, Part.
§84.
8. A stipulation may lawfully be introduced for the continuance
of the partnership after the death of one of the parties, either
by his executors or administrators, or for the admission of one
or more of his children into the concern. Colly. Partn. 147; 9
Ves. 500. Sometimes this clause provides, that the interest of
the partner shall go to such persons, as be shall by his last
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will name and appoint, and for want of appointment to such
persons as are there named. In these cases it seems that the
executors or administrators have an option to continue the
partnership or not. Colly. Partn. 149; 1 McCl. & Yo. 569;
Colles, Parl. Rep. 157.
9. when the duration of the partnership has been fixed by the
articles, and the partnership expires by mere effluxion of time,
and, after such determination it is carried on by the partners
without any new agreement, in the absence of all circumstances
which may lead as to the true intent of the partners, the
partnership will not, in general, be deemed one for a definite
period; 17 Ves. 298; but in other respects, the old articles of
the expired partnership are to be deemed adopted, by implication
as the basis of the new partnership during its continuance. 5
Mason, R. 176, 185; 15 Ves. 218; 1 Molloy, R. 466.
10. - 5. The business to be carried on and the place where it
is to be conducted. This clause ought to be very particularly
written, as courts of equity will grant an injunction when one or
more of the partners attempt, against the wishes of one or more
of them, to extend such busiress beyond the provision contained
in the articles. Story, Partn. §193; Gow, Partn 398.
11 - 6. The name of the firm, as for example, John Doe and
Company, ought to be ascertained. The members of the partnership
are required to use the name thus agreed upon, and a departure
from it will make them individually liable to third persons or to
their partners, in particular cases. Colly. Partn. 141; 2 Jac. &
Walk. 266; 9 Adol. & Ellis, 314; 11 Adol. & Ellis, 339; Story,
Partn. §102, 136, 142, 202.
12.-7. A provision is not unfrequently inserted that the
business shall be managed and administered by a particular
partner, 20or that one of its departments shall be under his
special care. In this case, courts of equity will protect such
partner in his rights. Story, Partn. §172, 182, 193, 202, 204
Colly. Partn. 753. In Louisiana, this provision is incorporated
in it's civil code, art. 2838 to art. 2840. The French and civil
law also agree as to this provision. Poth. de Societe, n. 71;
Dig. 14, 1, 1, 13;
Poth. Pand. 14, 1, 4.
13. Sometimes a provision is introduced that a majority of the
partners shall have the management of the affairs of the
partnership. This is requisite, particularly when the associates
are numerous, As to the rights of the majority, see Partners.
14. - 8. A provision should be inserted as to the manner of
furnishing the capital or stock of the partnership. When a
partner is required to furnish his proportion of the stock at
stated periods, or pay by installments, he will, where there are
no stipulutions to the contrary, be considered a debtor to the
firm. Colly. Partn. 141; Story, Partn. §203; 1 Swanst. R. 89,
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Sometimes a provision is inserted that real estate, and fixtures
belonging to the firm shall be considered, as between the
partners, not as partnership but as several property. In cases of
bankruptcy this property will be treated as the separate property
of the partners. Colly. Partn. 141, 595, 600; 5 Ves. 189; 3
Madd. R. 63.
15. - 9. A provision for the apportionment of the profits a and
losses among the partners should be introduced. In the absence of
all proof, and controlling circumstances, the partners are to
share in both equally, although one may have furnished all the
capital, and the other only his skill, Wats. Partn. 59; Colly.
Partn. 105; Story, Partn. §24; 3 Kent, Com. 28; 4th ed.; 6
Wend. R. 263; but see 7 Bligh, R. 432; 5 Wils. & Shaw, 16.
16. - 10. Sometimes a stipulation for an annual account of the
Property of the partnership whether in possession or in action,
and of the debts due by partnership is inserted. These accounts
when settled are at least prima facie evidence of the facts they
contain. Colly. Partn. 146 Story Partn. §206; 7 Sim. R. 239.
17. - 11. A provision is frequently introduced forbidding any
one partner to carry on any other business. This should be
provided for, though there is an implied provision in every
partnership that no partner shall carry. on any separate business
inconsistent or contrary to the true interest of the partnership.
Story, Partn. §178, 179, 209.
18.- 12. When the partners are numerous, a provision is often
made for the expulsion of a partner for gross misconduct, for
insolvency, bankruptcy, or other causes particularly enumerated.
This provision will govern when the case occurs.
19. - 13. This instrument should allways contain a provision
for winding up the business. This is generally provided for in
one of three modes: first, by turning all the assets into cash,
and, after paying all the liabilities of the partnership,
dividing such money in proportion to the several interests of the
parties; secondly, by providing that one or more of the partners
shall be entitled to purchase the shares of the others at a
valuation; thirdly, that all the property of partnership shall
be appraised, and that after paying the partnership debts, it
shall be divided in the proper proportions. The first of these
modes is adopted by courts of equity in the absence of express
stipulations. Colly. Partn. 145 Story, Partn. §207 8 Sim. R. 529.
20. - 14. It is not unusual to insert in these articles, a
provision that in case of disputes the matter shall be submitted
to arbitration. This clause seems nugatory, for no action will
lie for a breach of it, as that would deprive the courts of their
jurisdiction, which the parties cannot do. Story, Partn. §215;
Gow, Partn. 72; Colly. Partn, 165 Wats. Partn. 383.
21. - 15. The articles should be dated, and executed by the
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parties. It is not requisite that the instrument, should be under
seal. Vide Parties to contracts; Partners Partnership.
ARTICLES OF THE PEACE, Eng. practice. An instrument which is
presented to a court of competent jurisdiction, in which the
exhibitant shows the grievances under which be labors, and prays
the protection of the court. It is made on oath. See a form in 12
Adol. & Ellis, 599; 40 E. C. L. R. 125, 126; 1 Chit. Pr. 678.
2. The truth of the articles cannot be contradicted, either by
affidavit or otherwise; but the defendant may either except to
their sufficiency, or tender affidavits in reduction of the
amounts of bail. 13 East. 171.
ARTICLES OF WAR. The name commonly given to a code made for the
government
of the army. The act of April 10, 1806, 2 Story's Laws U. S. 992,
contains the rulesand articles by which the armies of the United
States shall be governed. The act of April 23, 1800, 1 Story's L.
U. S. 761, contains the rules and regulations for the government
of the navy of the United States.
ARTICULATE ADJUDICATION. A term used in Scotch, law in cases
where there is more than the debt due to the adjudging creditor,
when it is usual to accumulate each debt by itself, so that any
error that may arise in ascertaining one of the debts need not
reach to all the rest.
ARTIFICERS. Persons whose employment or business consists
chiefly of bodily labor. Those who are masters of their arts.
Cunn. Dict. h. t. Vide drt.
ARTIFICIAL. What is the result of, or relates to, the arts;
opposed to natural; thus we say a corporation is an artificial
person, in opposition to a natural person. Artificial accession
is the uniting one property to another by art, opposed to a
simple natural union. 1 Bouv. Inst. n. 503.
ARTIFICIAL PERSON. In a figurative sense, a body of men or
company are sometimes called an artificial person, because the
law associates them as one, and gives them various powers
possessed by natural persons. Corporations are such artificial
persons. 1 Bouv. Inst. n. 177.
AS. A word purely Latin. It has two significations. First, it
signifies weight, and in this sense, the Roman as, is the same
thing as the Roman pound, which was composed of twelve ounces. It
was divided also into many other parts (as may be seen in the
law, Servum de hoeredibus, Inst. Lib. xiii. Pandect,) viz. uncia,
1 ounce; sextans, 2 ounces; quodrans, 3 ounces; triens, 4
ounces quincunx, 5 ounces; semis, 6 ounces; septunx, 7 ounces;
bes, 8 ounces, dodrans, 9 ounces; dextans, 10 ounces; deunx, 11
ounces.
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2. From this primitive and proper sense of the word another was
derived: that namely of the totality of a thing, Solidum quid.
Thus as signified the whole of an inheritance, so that an heir ex
asse, was an heir of the whole inheritance. An heir ex triente,
ex semisse, ex besse, or ex deunce, was an heir of one-third,
one-half, two-thirds, or eleven-twelfths.
ASCENDANTS. Those from whom a person is descended, or from whom
he derives his birth, however remote they may be.
2. Every one has two ascendants at the first degree, his father
and mother; four at the second degree, his paternal grandfather
and grandmother, and his maternal grandfather and grandmother;
eight at the third. Thus in going up we ascend by various lines
which fork at every generation. By this progress sixteen
ascendants are found at the fourth degree; thirty-two, at the
fifth sixty-four, at the sixth; one hundred and twenty-eight at
the seventh, and so on; by this progressive increase, a person
has at the twenty-fifth generation, thirty-three millions five
hundred and-fifty-four thousand, four hundred and thirty-two
ascendant's. But as many of the ascendants of a person have
descended from the same ancestor, the lines which were forked,
reunite to the first comnmon ancestor, from whom the other
descends; and this multiplication thus frequently interrupted by
the common ancestors, may be reduced to a few persons. Vide Line.
ASCRIPTITIUS, civil law. Among the Romans, ascriptitii were
foreigners, who had been naturalized, and who had in general the
same rights as natives. Nov. 22, ch. . 17 Code 11, 47.
ASPHYXY, med. jur. A temporary suspension of the motion of the
heart and arteries; swooning, fainting. This term includes
persons who have been asphyxiated by submersion or drowning; by
breathing mephitic gas; by the effect of lightning; by the
effect of cold; by heat; by suspension or strangulation. In a
legal point of view it is always proper to ascertain whether the
person who -has thus been deprived of his senses is the victim of
another, whether the injury has been caused by accident, or
whether it is. the act of the sufferer himself.
2. In a medical point of view it is important to ascertain
whether the person is merely asphyxiated, or whether he is dead.
The following general remarks have been made as to the efforts
which ought to be made to restore a person thus situated,
1st. Persons asphyxiated are frequently in a state of only
apparent death.
2d. Real from apparent death, can be distinguished only by
putrefaction.
3d. Till putrefaction commences, aid ought to be rendered to
persons asphyxiated.
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4th. Experience proves that remaining several hours under water
does not always produce death.
5th. The red, violet, or black color of
the face, the coldness of the body, the stiffness of the limbs,
are not always signs of death.
6th. The assistance to persons thus situated, maybe
administered by any intelligent person; but to insure success,
it must be done without discouragement for several hours
together.
7th. All unnecessary persons should be sent away; five or six
are in general sufficient.
8th. The place where the operation is performed should not be
too warm.
9th. The assistance should be rendered with activity, but
without precipitation.
ASPORTATION. The act of carrying a thing away; the removing a
thing from
one place to another. Vide Carrying away; Taking.
ASSASSIN, crim, law. An assassin is one who attacks another
either traitorously, or with the advantage of arms or place) or
of a number of persons who support him, and kills his victim.
This being done with malice, aforethought, is murder. The term
assassin is but little used in the common law, it is borrowed
from the civil law.
ASSASSINATION, crim. law. A murder committed by an assassin. By
assassination is understood a murder committed for hire in money,
without any provocation or cause of resentment given by the
person against whom the crime is directed. Ersk. Inst. B. 4, t.
4, n. 45.
ASSAULT, crim. law. An assault is any unlawful attempt or offer
with force or violence to do a corporal hurt to another, whether
from malice or wantonness; for example, by striking at him or
even holding up the fist at him in a threatening or insulting
manner, or with other circumstances as denote at the time. an
intention, coupled with a present ability, of actual violence
against his person, as by pointing a weapon at him when he is
within reach of it. 6 Rogers Rec: 9. When the injury is actually
inflicted, it amounts to a battery. (q. v.)
2. Assaults are either simple or aggravated. 1. A simple
assault is one Where there is no intention to do any other
injury. This is punished at common law by fine and imprisonment.
2. An aggravated assault is one that has in addition to the bare
intention to commit it, another object which is also criminal;
for example, if a man should fire a pistol at another and miss
him, the former would be guilty of an assault with intent to
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murder; so an assault with intent to rob a man, or with intent
to spoil his clothes, and the like, are aggravated assaults, and
they are more severely punished than simple assaults. General
references, 1 East, P. C. 406; Bull. N. P. 15; Hawk. P. B. b.
1, c. 62, s. 12; 1 Russ. Cr. 604; 2 Camp. Rep. 650 1 Wheeler's
Cr. C. 364; 6 Rogers' Rec. 9; 1 Serg. & Rawle, 347 Bac. Ab. h.
t.; Roscoe. Cr. Ev. 210.
ASSAY. A chemical examination of metals, by which the quantity
of valuable or precious metal contained in any mineral or
metallic mixture is ascertained.
2. By the acts of Congress of March 3, 1823, 3 Story's L. U. S.
1924; of June 25, 1834, 4 Shars. cont. Story's L. U. S. 2373;
and of June 28, 1834, Id. 2377, it is made the duty of the
secretary of the treasury to cause assays to be made at the mint
of the United States, of certain coins made current by the said
acts, and to make report of the result thereof to congress.
ASSEMBLY. The union of a number of persons in the same place.
There are several kinds of assemblies.
2. Political assemblies, or those authorized by the
constitution and laws; for example, the general assembly, which
includes the senate and house of representatives; the meeting of
the electors of the president and vice-president of the United
States, may also be called an assembly.
3. Popular assemblies are those where the people meet to
deliberate upon their rights; these are guaranteed by the
constitution. Const. U. S. Amend. art. 1 Const. of Penn. art. 9,
s. 20.
4. Unlawful assemblies. An unlawful assembly is the meeting of
three or more persons to do an unlawful act, although they may
not carry their purpose into execution. It differs from a riot or
rout, (q. v.) because in each of the latter-cases there is some
act done besides the simple meeting.
ASSENT, contracts. An agreement to something that has been done
before.
2. It is either express, where it is openly declared; or
implied, where it is presumed by law. For instance, when a
conveyance is made to a man, his assent to it is presumed, for
the following reasons; cause there is a strong intendment of
law, that it is for a person's benefit to take, and no man can be
supposed to be unwilling to do that which is for his advantage.
2. Because it would seem incongruous and absurd, that when a
conveyance is completely executed on the part of the grantor, the
estate should continue in him. 3. Because it is contrary to the
policy of law to permit the freehold to remain in suspense and
uncertainty. 2 Ventr. 201; 3 Mod. 296A 3 Lev. 284; Show. P. C.
150; 3 Barn. & Alders. 31; 1 Binn. R. 502; 2 Hayw. 234; 12
Mass IR. 461 4 Day, 395; 5 S. & R. 523 20 John. R. 184; 14 S. &
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R. 296 15 Wend. R. 656; 4 Halst. R. 161; 6 Verm. R. 411.
3. When a devise draws after it no charge or risk of loss, and
is, therefore, a mere bounty, the assent of the devisee to, take
it will be presumed. 17 Mass. 73, 4. A dissent properly expressed
would prevent the title from passing from the grantor unto the
grantee. 1 2 Mass. R. 46 1. See 3 Munf. R. 345; 4 Munf. R. 332,
pl. 9 5 Serg. & Rawle, 523; 8 Watts, R. 9, 11 20 Johns. R. 184.
The rule requiring an express dissent, does not apply, however,
when the grantee is bound to pay a consideration for the thing
granted. 1 Wash. C. C. Rep. 70.
4. When an offer to do a thing has been made, it is not binding
on the party making it, until the assent of the other paity has
been given and such assent must be to the same subject-matter, in
the same sense. 1 Summ. 218. When such assent is given, before
the offer is withdrawn, the contract is complete. 6 Wend. 103.
See 5 Wend. 523; 5 Greenl. R. 419; 3 Mass. 1; 8 S. R. 243; 12
John. 190; 19 John. 205; 4 Call, R. 379 1 Fairf. 185; and
Offer.
5. In general, when an assignment is made to one for the
benefit of creditors the assent of the assignees will be
presumed. 1 Binn. 502, 518; 6 W. & S. 339; 8 Leigh, R. 272,
281. But see 24 Wend. 280.
ASSERTORY COVENANT. One by which the covenantor affirms that a
certain fact is in a particular way, as that the grantor of land
is lawfully seised; that it is clear of encumbrances, and the
like. If the assertion is false, these covenants are broken the
moment that the instrument is signed. See 11 S. & R. 109, 112.
TO ASSESS. 1. To rate or to fix the proportion which every
person has to pay of any particular tax. 2. To assess damages is
to ascertain what damages are due to the plaintiff; in actions
founded on writings, in many cases after interlocutory judgment,
the prothonotary is directed to assess the damages; in cases
sounding in tort the damages are frequently assessed on a writ of
inquiry by the sheriff and a jury.
2. In actions for damages, the jury are required to fix the
amount or to assess the damages. In the exercise of this power or
duty, the jury must be guided by sound discretion, and, when the
circumstances will warrant it, may give high damages. Const. Rep.
500. The jury must, in the assessment of damages be guided by
their own judgment, nd not by a blind chance. They cannot
lawfully, therefore, in making up their verdict, each one put
down a sum, add the sums together, divide the aggregate by the
number of jurors, and adopt the quotient for their verdict. 1
Cowen, 238.
ASSESSMENT. The making out a list of property, and fixing its
valuation or appraisement; it is also applied to making out a
list of persons, and appraising their several occupations,
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chiefly with a view of taxing the said persons and their
property.
ASSESSMENT OF DAMAGES. After an interlocutory judgment has been
obtained, the damages must be, ascertained; the act of thus
fixing the amount of damages is called the assessment of damages.
2. In cases sounding in damages, (q. v.) that is, when the
object of the action is to recover damages only, and not brought
for the specific recovery of lands, goods, or sums of money, the
usual course is to issue a writ of inquiry, (q. v.) and, by
virtue of such writ, the sheriff, aided by twelve lawful men,
ascertains the amount of damages, and makes return to the court
of the inquisition, which, unless set aside, fixes the damages,
and a final judgment follows.
3. When, on the contrary, the action is founded on a promissory
note, bond, or other contract in writing, by which the amount of
money due may be easily computed, it is the practice, in some
courts, to refer to the clerk or prothonotary the assessment of
damages,. and in such case no writ of inquiry is issued. 3 Bouv.
Inst. n. 8300.
ASSESSORS, civil law. So called from the word adsidere, which
Signifies to be seated with the judge. They were lawyers who were
appointed to assist, by their advice, the Roman magistrates, who
were generally ignorant of law. being mere military men. Dig.
lib. 1, t. 22; Code, lib. 1, t. 51.
2. In our law an assessor is one who has been legally appointed
to value and
appraise property, generally. with a view of laying a tax on it.
ASSETS. The property in the hands of an heir, executor,
administrator or trustee, which is legally or equitably
chargeable with the obligations, which such heir, executor,
administrator or other trustee, is, as such, required to
discharge, is called assets. The term is derived from the French
word assez, enough; that is, the heir or trustee has enough
property. But the property is still called assets, although there
may not be enough to discharge all the obligations; and the
heir, executor, &c., is chargeable in distribution as far as such
property extends.
2. Assets are sometimes divided by all the old writers, into
assets enter mains and assets per descent; considered as to
their mode of distribution, they are 1egal or equitable; as to
the property from which they arise, they are real or personal.
3. Assets enter maim, or assets in hand, is such property as at
once comes to the executor or other trustee, for the purpose of
satisfying claims against him as such. Termes de la Ley.
4. Assets per descent, is that portion of the ancestor's estate
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which descends to the heir, and which is sufficient to charge
him, as far as it goes, with the specialty debts of his ancestor.
2 Williams on Ex. 1011.
5. Legal assets, are such as constitute the fund for the
payment of debts according to their legal priority.
6. Equitable assets, are such as can be reached only by the aid
of a court of equity, and are to be divided,, pari passu, among
all the creditors; as when a debtor has made his property
subject to his debts generally, which, without his act would not
have been so subject. 1 Madd. Ch. 586; 2 Fonbl. 40 1, et seq.;
Willis on Trust, 118.
7. Real assets, are such as descend to the heir, as in estate
in fee simple.
8. Personal assets, are such goods and chattels to which the
executor or administrator is entitled.
9. In commerce, by assets is understood all the stock in trade,
cash, and all available property belonging to a merchant or
company. Vide, generally, Williams on Exec. Index, h. t.; Toll.
on Exec. Index, h. t.; 2 Bl. Com. 510, 511; 3 Vin. Ab. 141; 11
Vin. Ab. 239; 1 Vern. 94; 3 Ves. Jr. 117; Gordon's Law of
Decedents, Index, h. t.; Ram on Assets.
ASSEVERATION. The proof which a man gives of the truth of what
be says, by appealing to his conscience as a witness. It differs
from an oath in this, that by the latter he appeals to God as a
witness of the truth of what he says, and invokes him as the
avenger of falsehood and perfidy, to punish him if he speak not
the truth. Vide Affirmation; Oath; and Merl. Quest. de
Droit, mot Serment.
TO ASSIGN, contracts; practice. 1. To make a right over to
another; as to assign an estate, an annuity, a bond, &c., over
to another. 5 John. Rep: 391. 2. To appoint; as, to appoint a
deputy,, &c. Justices are also said to be -assigned to keep the
peace. 3. To set forth or point out; as, to " assign errors," to
show where the error is committed; or to assign false judgment,
to show wherein it was unjust. F. N. B. 19.
ASSIGNATION, Scotch law. The ceding or yielding a thing to
another of which intimation must be made.
ASSIGNEE. One to whom an assignment has been made.
2. Assignees are either assignees in fact or assignees in law.
An assignee in fact is one to whom an assignment has been made in
fact by the party having the right. An assignee in law is one in
whom the law vest's the right, as an executor or administrator.
Co. Litt. 210 a, note 1; Hob. 9. Vide Assigns, and 1 Vern. 425;
1 Salk. 81 7 East, 337; Bac. Ab. Covenant, E; a Saund. 182,
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note 1; Arch. Civ. PI. 50, 58, 70 Supp, to Ves. Jr, 72 2 Phil.
Ev. Index, h. t.
ASSIGNMENT, contracts. In common parlance this word signifies
the transfer of all kinds of property, real, personal, and mixed,
and whether the same be in possession or in action; as, a
general assignment. In a more technical sense it Is usually
applied to the transfer of a term for years; but it is more
properly used to signify a transfer of some particular estate or
interest in lands.
2. The proper technical words of an assignment are, assign,
transfer, and set over; but the words grant, bargain, and sell,
or any other words which will show the intent of the parties to
make a complete transfer, will amount to an assignment.
3. A chose in action cannot be assigned at law, though it may
be done in equity; but the assignee takes it subject to all the
equity to which it was liable in the hands of the original party.
2 John. Ch. Rep. 443, and the cases there cited. 2 Wash. Rep.
233.
4. The deed by which an assignment is made,, is also called an
assignment. Vide, generally, Com. Dig. h. t.; Bac. Ab. h. t.
Vin. Ab. h. t.; Nelson's Ab. h. t.; Civ. Code of Louis. art.
2612. In relation to general assignments, see Angell on
Assignments, passim; 1 Hate & Wall. Sel. Dec. 78-85.
5. By an assignment of a right all the accessories which belong
to it, will pass with it as, if the assignor of a bond had
collateral security, or a lien on property, the collateral
security and the lien will pass with the assignment of the bond.
2 Penn. 361; 3 Bibb, 291; 4 B. Munroe, 529; 2 Drev. n. 218; 1
P. St. R. 454. 6. The assignment of a thing also carries with it
all that belongs to it by right of accession; if, therefore, the
thing produce interest or rent, the interest or the arrearages of
the rent since the assignment, will belong to the assignee. 7
John. Cas. 90 6 Pick. 360.
ASSIGMENT OF DOWER. The act by which the rights of a widow, in
her deceased hushand's real estate, are ascertained and set apart
for her benefit. 2 Bouv. Inst. 242.
ASSIGNMENT OF ERRORS. The act by which the plaintiff in error
points out the errors in the record of which he complains.
2. The errors should be assigned in distinct terms, such as the
defeudant in error may plead to; and all the errors of which the
plaintiff complains should be assigned. 9 Port. 186; 16 Conn.
83; 6 Dana, 242 3 How. (Miss.) R. 77.
ASSIGNOR. One who makes an assignment; one who transfers
property to another.
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2. In general the assignor can limit the operation of his
assignment, and impose whatever condition he may think proper,
but when he makes a general assignment in trust for the use of
his creditors, he can impose no condition whatever which will
deprive them of any right; 14 Pick. 123; 15 John. 151; 7
Cowen, 735; 5 Cowen, 547 20 John. 442; 2 Pick. 129; nor any
condition forbidden by law; as giving preference when the law
forbids it.
3. Ad assignor may legally choose his own trustees. 1 Binn.
514.
ASSIGNS, contracts. Those to whom rights have been transmitted
by particular title, such as sale, gift, legacy, transfer, or
cession. Vide Ham. Paities, 230; Lofft. 316. These words, and
also the word forever, are commonly added to the word heirs in
deeds conveying a fee simple, heirs and assigns forever "but they
are in such cases inoperative. 2 Barton's Elem. Convey. 7, (n.)
But see Fleta, lib. 3, cap. 14, §6. The use of naming them, is
explained in Spencer's Case, 5 Rep. 16; and Ham. Parties, 128.
The word heirs, however, does not include or imply assigns. 1
Anderson's Rep. 299.
ASSISES OF JERUSALEM. The name of a code of feudal law, made at
a general assembly of lords, after the conquest of Jerusalem. It
was compiled principally from the laws and customs of France.
They were reduced to form about the year 1290, by Jean d'Iblin,
comte de Japhe et d'Ascalon. Fournel (Hist. des Avocats, vol. i.
p. 49,) calls them the most precious monument of our (French)
ancient law. He defines the word assises to signify the
assemblies of the great, men of the realm. See also, 2 Profession
d'Avocat, par Dupin, 674 to 680; Steph. on Plead. App. p. xi.
ASSISORS, Scotch law. This term corresponds nearly to that of
jurors.
ASSIZE, Eng. law. This was the name of an ancient court; it
derived its name from assideo, to sit together. Litt. s. 234;
Co. Litt. 153 b., 159 b. It was a kind of jury before which no
evidence was adduced, their verdict being regarded as a statement
of facts, which they knew of their own knowledge. Bract. iv. 1,
6.
2. The name of assize was also given to a remedy for the
restitution of a freehold, of which the complainant had been
disseised. Bac. Ab. h. t. Assizes were of four kinds: Mort
d'ancestor Novel Disseisin Darrien Presentment; and Utrum.
Neale's F. & F. 84. This reimedy has given way to others less
perplexed and more expeditious. Bac. Ab. h. t.; Co. Litt.
153-155.
3. The final judgment for the plaintiff in an assize of Novel
Disseisin, is, that he recover per visum recognitorum, and it is
sufficiently certain. if the recognitors can put the demandant in
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possession. Dyer, 84 b; 10 Wentw. PI. 221, note. In this action,
the plaintiff cannot be compelled to be nonsuited. Plowd. 11 b.
See 17 Serg. & R. 187; 1 Rawle, Rep. 48, 9.
4. There is, however, in this class of actions, an
interlocutory judgment, or award in the nature of a judgment, and
which to divers intents and purposes, is a judgment; 11 Co. Rep.
40 b; like the judgment of quod computet, in account render; or
quod partitio flat, in partition; quod mensuratio fiat; ouster
of aid; award of a writ of inquiry, in waste.; of damages in
trespass; upon these and the like judgments, a writ of error
does not lie. 11 Co. Rep. 40 a; Metcalf's Case, 2 Inst. 344 a:
24 Ed. III, 29 B 19.
ASSIZE OF MORT D' ANCESTOR. The name, of an ancient writ, now
obsolete. It might have been sued out by one whose father,
mother, brother, &c., died seised of lands, and tonements, which
they held in fee , and which, after their death, a stranger
abated. Reg. Orig. 223. See Mort d' Ancestor.
ASSOCIATE. This term is applied to a judge who is not the
president of a court; as associate judge.
ASSOCIATION. The act of a number of persons uniting together
for some purpose; the persons so joined are also called an
association. See Company.
ASSUMPSIT, contracts. An undertaking either express or implied,
to perform a parol agreement. 1 Lilly's Reg. 132.
2. An express assumpsit is where one undertakes verbally or in
writing, not under seal, or by matter of record, to perform an
act, or to pa a sum of money to another.
3. An implied assumpsit is where one has not made any formal
promise to do an act or to pay a sum of money to another, but who
is presumed from his conduct to have assumed to do what is in
point of law just and right; for, 1st, it is to be presumed that
no one desires to enrich himself at the expense of another; 2d,
it is a rule that he who desires the antecedent, must abide by
the consequent; as, if I receive a loaf of bread or a newspaper
daily sent to my house without orders, and I use it without
objection, I am presumed to have accepted the terms upon which
the person sending it had in contemplation, that I should pay a
fair price for it; 3d, it is also a rule that every one is
presumed to assent to what is useful to him. See Assent
ASSUMPSIT, remedies, practice., A form of action which may be
defined to be an action for the recovery of damages for the
non-performance of, a parol or simple contract; or, in other
words, a contract not under seal, nor of record; circumstances
which distinguish this remedy from others. 7 T. R. 351; 3 Johns.
Cas. 60. This action differs from the action of debt; for, in
legal consideration, that is for the recovery of a debt eo
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nomine, and in numero, and may be upon a deed as well as upon any
other contract. 1 h. Bl. 554; B. N. P. 167. If differs from
covenant, which, though brought for the recovery of damages, can
only be supported upon a contract under seal. See Covenant.
2. It will be proper to consider this subject with reference,
1, to the contract upon which this action may be sustained; 2,
the declaration 3, the plea; 4, the judgment.
3. - 1. Assumpsit lies to recover damages for the breach of all
parol or simple contracts, whether written or not written express
or implied; for the payment of money, or for the performance or
omission of any other act. For example, to recover, money lent,
paid, or had and received, to the use of the plaintiff; and in
some cases, where money has been received by the defendant, in
consequence of some tortious act to the plaintiff's property, the
plaintiff may waive the tort, and sue the defendant in assumpsit.
5 Pick. 285; 1 J. J. Marsh. 543 3 Watts, R. 277; 4 Binn. 374;
3 Dana, R. 552; 1 N. H. Rep. 151; 12 Pick. 120 4 Call. R. 461;
4 Pick. 452. It is the proper remedy for work and. labor done,
and services rendered 1 Gill, 95; 8 S. & M. 397 2 Gilman, 1 3
Yeates, 250 9 Ala. 788 but such work, labor, or services, must be
rendered at the request, express or implied, of the defendant; 2
Rep. Cons. Ct. 848; 1 M'Cord, 22; 20 John. 28 11 Mass. 37; 14
Mass. 176; 5 Monr. 513 1 Murph. 181; for goods sold and
delivered; 6 J. J. Marsh. 441; 12 Pick. 120; 3 N. H. Rep. 384;
1 Mis. 430; for a breach of promise of marriage. 3 Mass. 73 2
Overton, 233 2 P. S. R. 80. Assumpsit lies to recover the
purchase money for land sold; 14 Johns. R. 210; 14 Johns. R.
162; 20 Johns. R. 838 3 M'Cord, R. 421; and it lies, specially,
upon wagers; 2 Chit. PI. 114; feigned issues; 2 Chit. PI. 116;
upon foreign judgments; 8 Mass. 273; Dougl. 1; 3 East, 221;
11 East, 124; 3 T. R. 493; 5 Johns. R. 132. But it will not lie
on a judgment obtained in a sister state. 1 Bibb, 361 19 Johns.
162; 3 Fairf. 94; 2 Rawle, 431. Assumpsit is the proper remedy
upon an account stated. Bac. Ab. Assumpsit, A. It will lie for a
corporation, 2 Lev. 252; 1 Camp. 466. In England it does not lie
against a corporation, unless by express authority of some
legislative act; 1 Chit. PI. 98; but in this country it lies
against a corporation aggregate, on an express or implied
promise, in the same manner as against an individual. 7 Cranch,
297 9 Pet. 541; 3 S. & R. 117 4 S. & R. 16 12 Johns. 231; 14
Johns. 118; 2 Bay, 109 1 Chipm. 371, 456; 1 Aik. 180 10 Mass,
397. But see 3 Marsh. 1; 3 Dall. 496.
4. - 2. The declaration must invariably disclose the
consideration of the contract, the contract itself, and the
breach of it; Bac. Ab. h. t. F 5 Mass. 98; but in a declaration
on a negotiable instrument under the statute of Anne, it is not
requisite to, allege any consideration; 2 Leigh, R. 198; and on
a note expressed to have been given for value received, it is not
necessary to aver a special consideration. 7 Johns. 321. See
Mass. 97. The gist of this action is the promise, and it must be
averred. 2 Wash. 187 2 N. H. Rep. 289 Hardin, 225. Damages should
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be laid in a sufficient amount to cover the real amount of the
claim. See 4 Pick. 497; 2 Rep. Const. Ct. 339; 4 Munf. 95; 5
Munf. 23; 2 N. H. Rep. 289; 1 Breese, 286; 1 Hall, 201; 4
Johns. 280; 11 S. & R. 27; 5 S. & R. 519 6 Conn. 176; 9 Conn.
508; 1 N. & M. 342; 6 Cowen, 151; 2 Bibb, 429; 3 Caines, 286.
5. - 3. The usual plea is non-assumpsit, (q. v.) under which
the defendant may give in evidence most matters of defence. Com.
Dig. Pleader, 2 G 1. When there are several defendants they
cannot plead the general issue severally; 6 Mass. 444; nor the
same plea in bar, severally. 13 Mass. 152. The plea of not
guilty, in an action of assumpsit, is cured by verdict. 8 S. & R.
541; 4 Call. 451. See 1 Marsh, 602; 17 Mass. 623. 2 Greenl.
362; Minor, 254 Bouv. Inst. Index, h. t.
6. - 4. Judgment. Vide Judgment in Assumpsit. Vide Bac. Ab. h.
t.; Com. Dig. Action upon the Case upon Assumpsit; Dane's Ab.
Index, h. t.; Viner's Ab. h. t.; 1 Chit. Pi. h. t.; Petersd.
h. t.; Lawes PI. in Assumpsit the various Digests, h. t.
Actions; Covenant; Debt; Indebitatus assumpsit; Padum
Constitutiae pecuniae.
ASSURANCE, com. law. Insurance. (q. v.)
ASSURANCE, conveyancing. This is called a common assurance. But
the term assurances includes, in an enlarged sense, all
instruments which dispose of property, whether they be the grants
of private persons, or not; such are fines and recoveries, and
private acts of the legislature. Eunom. Dial. 2, s. 5.
ASSURED. A person who has been insured by some insurance
company, or underwriter, against losses or perils mentioned in
the policy of insurance. Vide Insured.
ASSURER. One who insures another against certain perils and
dangers. The same as underwriter. (q. v.) Vide Insurer.
ASSYTHMENT, Scotch law. An indemnification which a criminal is
bound to make to the party injured or his executors, though the
crime itself should be extinguished by pardon. Ersk. Pr. L. Scot.
4, 3, 13.
ASYLUM. A place, of refuge where debtors and criminals fled for
safety.
2. At one time, in Europe, churches and other consecrated
places served as asylums, to the disgrace of the law. These never
protected criminals in the United States. It may be questioned
whether the house of an ambassador (q. v.) would not afford
protection temporarily, to a person who should take refuge there.
AT LAW. This phrase is used to point out that a thing is to be
done according to the course of the common law; it is
distinguished from a proceeding in equity.
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2. In many cases when there is no remedy at law, one will be
afforded in equity. See 3 Bouv. Inst. n. 2411.
ATAVUS. The male ascendant in the fifth degree, was so called
among the Romans, and in tables of genealogy the term is still
employed.
ATHEIST. One who denies the existence of God.
2. As atheists have not any religion that can bind their
consciences to speak the truth, they are excluded from being
witnesses. Bull. N. P. 292; 1 Atk. 40; Gilb. Ev. 129; 1 Phil.
Ev. 19. See also, Co. Litt. 6 b.; 2 Inst. 606; 3 Inst. 165;
Willes, R. 451 Hawk. B. 2, c. 46, s. 148; 2 Hale's P. C. 279.
TO ATTACH, crim. law, practice. To an attachment for contempt
for the non-take or apprehend by virtue of the order of a writ or
precept, commonly called an attachment. It differs from an arrest
in this, that he who arrests a man, takes him to a person of
higher power to be disposed of; but be who attaches, keeps the
party attached, according to the exigency of his writ, and brings
him into court oh the day assigned. Kitch. 279; Bract. lib. 4;
Fleta, lib. 5, c. 24; 17 S. & R. 199.
ATTACHE'. Connected with, attached to. This word is used to
signify those persons who are attached to a foreign legation. An
attache is a public minister within the meaning of the Act of
April 30, 1790, s. 37, 1 Story's L. U. S. 89, which protects from
violence "the person of an ambassador or other public minister."
1 Bald. 240 Vide 2 W. C. C. R. 205; 4 W. C. C. R. 531; 1 Dall.
117; 1 W. C. C. R. 232; 4 Dall. 321. Vide Ambassador; Consul;
Envoy; Minister.
ATTACHMENT, crim. law, practice. A writ requiring a sheriff to
apprehend a particular person, who has been guilty of. a contempt
of court, and to bring the offender before the court. Tidd's Pr.
Index, h. t.; Grab. Pr. 555.
2. It may be awarded by the court upon a bare suggestion,
though generally an oath stating what contempt has been committed
is required, or on their own knowledge without indictment or
information. An attachment may be issued against officers of the
court for disobedience or contempt of their rules and orders, for
disobedience of their process, and for disturbing them in their
lawful proceedings. Bac. Ab. h. t. A. in the nature of a civil
execution, and it was therefore held it could not be executed on
Sunday; 1 T. R. 266; Cowper, 394; Willes, R. 292, note (b);
yet, in. one case, it was decided, that it was so far criminal,
that it could not be granted in England on the affirmation of a
Quaker. Stra. 441. See 5 Halst. 63; 1 Cowen, 121, note; Bac.
Ab. h. t.
ATTACHMENT, remedies. A writ issued by a court of competent
jurisdiction, commanding the sheriff or other proper officer to
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seize any property; credit, or right, belonging to the
defendant, in whatever hands the same may be found, to satisfy
the demand which the plaintiff has against him.
2. This writ always issues before judgment, and is intended to
compel an appearance in this respect it differs from an
execution. In some of the states this process can be issued only
against absconding debtors, or those who conceal themselves; in
others it is issued in the first instance, so that the property
attached may respond to the exigency of the writ, and satisfy the
judgment.
3. There are two kinds of attachment in Pennsylvania, the
foreign attachment, and the domestic attachment. l. The foreign
attachment is a mode of proceeding by a creditor against the
property of his debtor, when the debtor is out of the
jurisdiction of the state, and is not an inhabitant of the same.
The object of this process is in the first instance to compel an
appearance by the debtor, although his property may even
eventually be made liable to the amount of the plaintiff Is
claim. It will be proper to consider, 1. by whom it be issued;
2. against what property 3. mode of proceeding. 1. The plaintiff
must be a creditor of the defendant; the claim of the plaintiff
need not, however, be technically a debt, but it may be such on
which an action of assumpsit would lie but an attachment will not
lie for a demand which arises ex delicto; or when special bail
would not be regularly required. Serg. on Att. 51. 2. The writ of
attachment may be issued against the real and personal estate of
any person not residing within the commonwealth, and not being
within the county in which such writ may issue, at the time. of
the issuing thereof. And proceedings may be had against persons
convicted of crime, and sentenced to imprisonment. 3. The writ of
attachment is in general terms, not specifying in the body of it
the name of the garnishee, or the property to be attached, but
commanding the officer to attach the defendant, by all and
singular his goods and chattels, in whose hands or possession
soever the same may be found in his bailiwick, so that he be and
appear before the court at a certain time to answer, &c. The
foreign attachment is issued solely for the benefit of the
plaintiff.
4. - 2. The domestic attachment is issued by the court of
common pleas of the county in which any debtor, being an
inhabitant of the commonwealth, may reside; if such debtor shall
have absconded from the place of his usual abode within the same,
or shall have remained absent from the commonwealth, or shall
have confined himself to his own house, or concealed himself
elsewhere, with a design, in either case, to defraud his
creditors. It is issued on an oath or affirmation, previously
made by a creditor of such person, or by some one on his bebalf,
of the truth of his debt, and of the facts upon which the
attachment may be founded. Any other creditor of such person,
upon affidavit of his debt as aforesaid, may suggest his name
upon the record, and thereupon such creditor may proceed to
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prosecute his said writ, if the person suing the same shall
refuse or neglect to proceed thereon, or if he fail to establish
his right to prosecute the same, as a creditor of the defendant.
The property attached is vested in trustees to be appointed by
the court, who are, after giving six months public notice of
their appointment, to distribute the assets attached among the
creditors under certain regulations prescribed by the act of
assembly. Perishable goods way be sold under an order of the
court, both under a foreign and domestic attachment. Vide Serg.
on Attachments Whart. Dig. title Attachment.
5. By the code of practice of Louisiana, an attachment in the
hands of third person is declared to be a mandate which a
creditor obtains from a competent officer, commanding the seizure
of any property, credit or right, belonging to his debtor, in
whatever hands they may be found, to satisfy the demand which he
intends to bring against him. A creditor may obtain such
attachment of the property of his debtor, in the following cases.
1. When such debtor is about permanently leaving the state,
without there being a possibility, in the ordinary course of
judicial proceedings, of obtaining or executing judgment against
him previous to, his departure; or when such debtor has already
left the state never again to return. 2. When such debtor resides
out of the state. 3. When he conceals himself to avoid being
cited or forced to answer to the suit intended to be brought
against him. Articles 239, 240.
6. By the local laws of some of the New England states, and
particularly of the states of Massachusetts, New Hampshire and
Maine, personal property and real estate may be attached upon
mesne process to respond the exigency of the writ, and satisfy
the judgment. In such cases it is the common practice for the
officer to bail the goods attached, to some person, who is
usually a friend of the debtor, upon an express or implied
agreement on his part, to have them forthcoming on demand, or
in-time to respond the judgment, when the execution thereon shall
be issued. Story on Bailm. §124. As to the rights and duties of
the officer or bailor in such cases, and as to the rights and
duties of the bailee, who is conmmonly called the receiptor, see
2 Mass. 514; 9 Mass. 112 11 Mass. 211; 6 Johns. R. 195 9 Mass.
104, 265; 10 Mass. 125 15 Mass. 310; 1 Pick. R. 232, 389. See
Metc. & Perk. Dig. tit. Absent and Absconding Debtors.
ATTACHMENT OF PRIVILEGE, Eng. law. A process by which a man by
virtue of his privilege, calls another to litigate in that court
to which he himself belongs; and who has the privilege to answer
there.
ATTAINDER, English criminal law. Attinctura, the stain or
corruption of blood which arises from being condemned for any
crime.
2. Attainder by confession, is either by pleading guilty at the
bar before the judges, and not putting one's self on one's trial
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by a jury; or before the coroner in sanctuary, when in ancient
times, the offender was obliged to abjure the realm.
3. Attainder by verdict, is when the prisoner at the bar pleads
not guilty to the indictment, and is pronounced guilty by the
verdict of the jury.
4. Attainder by process or outlawry, is when the party flies,
and is subsequently outlawed. Co. Lit. 391.
5. Bill of attainder, is a bill brought into parliament for
attainting persons condemned for high treason. By the
constitution of the United States, art. 1, sect. 9, §3, it is
provided that no bill of attainder or ex post facto law shall be
passed.
ATTAINT, English law. 1. Atinctus, attainted, stained, or
blackened. 2. A writ which lies to inquire whether a jury of
twelve men gave a false verdict. Bract. lib. 4, tr. 1, c. 134;
Fleta, lib. 5, c. 22, §8.
2. It was a trial by jury of twenty-four men empanelled to try
the goodness, of a former verdict. 3 Bl. Com. 351; 3 Gilb. Ev.
by Lofft, 1146. See Assize.
ATTEMPT, criminal law. An attempt to commit a crime, is an
endeavor to accomplish it, carried beyond mere preparation, but
falling short of execution of the ultimate design, in any part of
it.
2. Between preparations and attempts to commit a crime, the
distinction is in many cases, very indeterminate. A man who buys
poison for the purpose of committing a murder, and mixes it in
the food intended for his victim, and places it on a table where
he may take it, will or will not be guilty of an attempt to
poison, from the simple circumstance of his taking back the
poisoned food before or after the victim has had an opportunity
to take it; for if immediately on putting it down, he should
take it up, and, awakened to a just consideration of the enormity
of the crime, destroy it, this would amount only to preparations
and certainly if before he placed it on the table, or before he
mixed the poison with the food, he had repented of his intention
there would have been no attempt to commit a crime; the law
gives this as a locus penitentiae. An attempt to commit a crime
is a misdemeanor; and an attempt to commit a misdemeanor, is
itself a misdemeanor. 1 Russ. on Cr. 44; 2 East, R. 8; 3 Pick.
R. 26; 3 Benth. Ev. 69; 6 C. & P. 368.
ATTENDANT. One who owes a duty or service to another, or in
some sort depends upon him. Termes de la Ley, h. t. As to
attendant terms, see Powell on Morts. Index, tit. Attendant term;
Park on Dower, c. 1 7.
ATTENTAT, In the language of the civil and canon laws, is
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anything whatsoever in the suit by the judge a quo, pending an
appeal. 1 Addams, R. 22, n.; Ayl. Par. 100.
ATTERMINING. The granting a time or term for the payment of a
debt. This
word is not used. See Delay.
ATTESTATION, contracts and evidence. The act of witnessing an
instrument of writing, at the request of the party making the
same, and subscribing it as a witness. 3 P. Wms. 254 2 Ves. 454 1
Ves. & B. 362; 3 Marsh. 146; 3 Bibb. 494; 17 Pick. 373.
2. It will be proper to consider, 1. how it is to be made 2.
bow it is proved; 3. its effects upon the witness; 4. its
effect upon the parties.
3.- 1. The attestation should be made in the case of wills,
agreeably to the direction of the statute; Com. Dig. Estates, E
1 and in the case of deeds or other writings, at the request of
the party executing the same. A person who sees an instrument
executed, but is not desired by the parties to attest it, is not
therefore an attesting witness, although he afterwards subscribes
it as such. 3 Camp. 232. See, as to the form of attestation, 2
South. R. 449.
4. - 2. The general rule is, that an attested instrument must
be proved by the attesting witness. But to this rule there are
various exceptions, namely: 1. If he reside out of the
jurisdiction of the court; 22 Pick. R. 85; 2. or is dead; 3.
or becomes insane; 3 Camp. 283; 4. or has an interest; 5 T. R.
371; 5. or has married the party who offers the instrument; 2
Esp. C. 698 6. or refuses to testify 4 M. & S. 353; 7. or where
the witness swears he did not see the writing executed; 8. or
becomes infamous; Str. 833; 9. or blind; 1 Ld.
Raym. 734. From these numerous cases, and those to be found in
the books, it would seem that, whenever from any cause the
attesting witness cannot be had secondary evidence may be given.
But the inability to procure the witness must be absolute, and,
therefore, when be is unable to attend from sickness only, his
evidence cannot be dispensed with. 4 Taunt. 46. See 4 Halst. R.
322; Andr. 236 2 Str. 1096; 10 Ves. 174; 4 M. & S. 353 7
Taunt. 251; 6 Serg. & Rawle, 310; 1 Rep. Const.; Co. So. Ca.
310; 5 Cranch, 13; Com. Dig. tit. Testmoigne, Evidence,
Addenda; 5 Com. Dig. 441; 4 Yeates, 79.
5. - 3. When the witness attests an instrument which conveys
away, or disposes of his property or rights, he is estopped from
denying the effects of such instrument; but in such case he must
have been aware of its contents, and this must be proved. 1 Esp.
C. 58.
6. - 4. Proof of the attestation is evidence of the sealing and
delivery. 6 Serg. & Rawle, 311; 2 East, R. 250; 1 Bos. & Pull.
360; 7 T. R. 266. See, in general, Starkie's Ev. part 2, 332; 1
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Phil. Ev. 419 to 421; 12 Wheat. 91; 2 Dall. 96; 3 Rawle's Rep.
312 1 Ves. Jr. 12; 2 Eccl. Rep. 60, 214, 289, 367 1 Bro. Civ,
Law, 279, 286; Gresl. Eq. Ev. 119 Bouv. Inst. n. 3126.
ATTESTATION CLAUSE, wills and contracts. That clause wherein
the witnesses certify that the instrument has been executed
before them, and the manner of the execution of the same. The
usual attestation clause to a will, is in the following formula,
to wit: "Signed, sealed, published and declared by the above
named A B, as and for his last will and testament, in the
presence of us, who have hereunto subscribed our names as the
witnesses thereto, in the presence of the said testator, and of
each other." That of deeds is generally in these words " Sealed
and delivered in the presence of us."
2. When there is an attestation clause to a will, unsubscribed
by witnesses, the presumption, though slight, is that the will is
in an unfinished state; and it must be removed by some extrinsic
circumstances. 2 Eccl. Rep. 60. This 'presumption is infinitely
slighter, where the writer's iutention to have it regularly
attested, is to be collected only from the single vord "
witnesses." Id. 214. See 3 Phillim. R. 323; S. C. 1 Eng. Eccl.
R. 407.
ATTESTING WITNESS. One who, upon being required by the parties
to an instrument, signs his name to it to prove it, and for the
purpose of identification.
2. The witness must be desired by the parties to attest it, for
unless this be done, he will not be an attesting witness,
although he may have seen the parties execute it. 3 Campb. 232.
See Competent witness; Credible witness; Disinterested witness;
Respectable witness; Subscribing witness; and Witness; Witness
instrumentary; 5 Watts, 399; 3 Bin. 194.
ATTORNEY. One who acts for another by virtue of an appointment
by the latter. Attorneys are of various kinds.
2. Attorney in fact. A person to whom the authority of another,
who is called the constituent, is by him lawfully delegated. This
term is employed to designate persons who act under a special
agency, or a special letter of attorney, so that they are
appointed in factum, for the deed, or special act to be
performed; but in a more extended sense it includes all other
agents employed in any business, or to do any act or acts in pais
for another. Bac. Ab. Attorney; Story, Ag. §25.
3. All persons who are capable of acting for themselves, and
even those who are disqualified from acting in their own
capacity, if they have sufficient understanding, as infants of a
proper age and femes coverts, may act as attorneys of others. Co.
Litt. 52, a; 1 Esp. Cas. 142; 2 Esp. Cas. 511 2 Stark. Cas. N.
P. 204.
4. The form of his appointment is by letter of attorney. (q.
v.)
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5. The object of his appointment is the transaction of some
business of the constituent by the attorney.
6. The attorney is bound to act with due diligence after having
accepted the employment, and in the end, to 'render an account to
his principal of the acts which be has performed for him. Vide
Agency; Agent; Authority; and Principal.
7. Attorney at law. An officer in a court of justice, who is
employed by a party in a cause to manage the same for him.
Appearance by an attorney has been allowed in England, from the
time of the earliest records of the courts of that country. They
are mentioned in Glanville, Bracton, Fleta, and Britton; and a
case turning upon the party's right to appear by attorney, is
reported, B. 17 Edw. III., p. 8, case 23. In France such
appearances were first allowed by letters patent of Philip le
Bel, A. D. 1290. 1 Fournel, Hist. des Avocats, 42; 43, 92, 93 2
Loisel Coutumes, 14, 15. It results from the nature of their
functions, and of their duties, as well to the court as to the
client, that no one can, even by consent, be the attorney of both
the litigating parties, in the same controversy. Farresly, 47.
8. In some courts, as in the supreme court of the United
States, advocates are divided into counsellors at law, (q. v.)
and attorneys. The business of attorneys is to carry on the
practical and formal parts of the suit. 1 Kent, Com. 307. See as
to their powers, 2 Supp. to Ves. Jr. 241, 254; 3 Chit. Bl. 23,
338; Bac. Ab. h. t.; 3 Penna. R. 74; 3 Wils. 374; 16 S. & R.
368; 14 S. & R. 307; 7 Cranch, 452; 1 Penna. R. 264. In
general, the agreement of an attorney at law, within the scope of
his employment, binds his client; 1 Salk. 86 as to amend the
record, 1 Binn. 75; to refer a cause 1 Dall. Rep. 164; 6 Binn.
101; 7 Cranch, 436; 3 Taunt. 486; not to sue out a writ of
error; 1 H. Bl. 21, 23 2 Saund. 71, a, b; 1 Term Rep. 388 to
strike off a non pros; 1 Bin. 469-70 to waive a judgment by
default; 1 Arcb. Pr. 26; and this is but just and reasonable. 2
Bin. 161. But the act must be within the scope of -their
authority. They cannot, for example, without special authority,
purchase lands for the client at sheriff's sale. 2 S. & R. 21 11
Johns. 464.
9. The name of attorney is given to those officers who practice
in courts of common law; solicitors, in courts. of equity and
proctors, in courts of admiralty, and in the English
ecclesiastical courts.
10. The principal duties of an attorney are, 1. To be true to
the court and to his client; 2. To manage the business of his
client with care, skill and integrity. 4 Burr. 2061 1 B. & A.
202; 2 Wils. 325; 1 Bing. R. 347; 3. To keep his client
informed as to the state of his business; 4. To keep his secrets
confided to him as such. See Client Confidential Communication.
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11. For a violation of his duties, an action will in general
lie; 2 Greenl. Ev. §145, 146; and, in some cases, he may be
punished by an attachment. His rights are, to be justly
compensated for his services. Vide 1 Keen's R. 668; Client;
Counsellor at law.
12. Attorney-general of the United States, is an officer
appointed by the president. He should be learned in the law, and
be sworn or affirmed to a faithful execution of his office.
13. His duties are to prosecute and conduct all suits in the
supreme court, in which the United States shall be concerned;
and give his advice upon questions of law, when required by the
president, or when requested by the heads of any of the
departments, touching matters that may Concern their departments.
Act of 24th Sept. 1789.
14. His salary is three thousand five hundred dollars per
annum, and he is allowed one clerk, whose compensation shall not
exceed one thousand dollars per annum. Act 20th Feb. 1819, 3
Story's Laws, 1720, and Act 20th April, 1818, s. 6, 3 Story's
Laws, 1693. By the act of May 9, 1830, 4 Sharsw. cont. of Story,
L. U. S. 2208, §10, his salary is increased five hundred dollars
per annum.
ATTORNMENT, estates. Was the agreement of the tenant to the
grant of the seignory, or of a rent, or the agreement of the
donee in tail, or tenant for life, or years, to a grant of a
reversion or of a remainder made to another. Co. Litt. 309;
Touchs. 253. Attornments are rendered unnecessary, even in
England, by virtue of sundry statutes, and they are abolished in
the United States. 4 Kent, Com. 479; 1 Hill. Ab. 128, 9. Vide 3
Vin. Ab. 317; 1 Vern. 330, n.; Saund. 234, n. 4; Roll. Ab. h.
t.; Nelson's Ab. h. t.; Com. Dig. h. t.
AU BESOIN. This is a French phrase, used in commercial law.
When the drawer of a foreign bill of exchange wishes as a matter
of precaution, and to-save expenses, he puts in the corner of the
bill, " Au besoin chez Messieurs or, in other words, " In case of
need, apply to Messrs. at __________ " ___________." 1 Bouv.
Inst. n. 1133 Pardess Droit Com. 208.
AUBAINE, French law. When a foreigner died in France, the crown
by virtue of a right called droit d'aubaine, formerly claimed all
the personal property such foreigner had in France at the time of
his death. This barbarous law was swept away by the French
revolution of 1789. Vide Albinatus Jus. 1 Malleville's Analyse de
la Discussion du Code Civil, pp. 26, 28 1 Toullier, 236, n. 265.
AUCTION, commerce, contract. A public sale of property to the
highest bidder. Among the Romans this kind of sale, was made by a
crier under a spear (sub hasta) stuck in the ground.
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2. Auctions are generally held by express authority, and the
person who con-
ducts them is licensed to do so under various regulations.
3. The manner of conducting an auction is imaterial; whether
it be by public
outcry or by any other manner. The essential part is the
selection of a purchaser from a number of bidders. In a case
where a woman continued silent during the whole time of the sale,
but whenever anyone bid she gave him a glass of brandy, and when
the sale broke up, the person who received the last glass of
brandy was taken into a private room, and he was declared to be
the purchaser; this was adjudged to be an auction. 1 Dow. 115.
4. The law requires fairness in auction sales, and when a
puffer is employed to raise the property offered for sale on bona
fide bidders, or a combination is entered into between two or
more persons not to overbid each other, the contract may in
general be avoided. Vide Puffer, and 6 John. R. 194; 8 John. R.
444; 3 John. Cas. 29; Cowp. 395; 6 T. R. 642; Harr. Dig.
Sale, IV.; and the article Conditions Sale. Vide Harr. Dig.
Sale, IV.; 13 Price, R. 76; M'Clel. R. 25; 6 East, R. 392; 5
B. & A. 257; S. C. 2 Stark. R. 295; 1 Esp. R. 340; 5 Esp. R.
103 4 Taunt. R. 209; 1 H. Bl. R. 81; 2 Chit. R. 253; Cowp. R.
395; 1 Bouv. Inst., n. 976.
AUCTIONEER, contracts, commerce. A person authorized by law to
sell the goods of others at public sale.
2. He is the agent of both parties, the seller and the buyer. 2
Taunt. 38, 209 4 Greenl. R. 1; Chit. Contr. 208.
3. His rights are, 1. to charge a commission for his services;
2. be has an interest in the goods sold coupled with the
possession; 3. he has a lien for his commissions; 4. he may sue
the buyer for the purchase-money.
4. He is liable, 1. to the owner for a faithful discharge of
his duties in the sale, and if he gives credit without authority,
for the value of the goods; 2. he is responsible for the duties
due to the government; 3. he is answerable to the purchaser when
he does not disclose the name of the principal; 4. be may be
sued when he sells the goods of a third person, after notice not
to sell them. Peake's Rep. 120; 2 Kent, Com. 423, 4; 4 John.
Ch. R. 659; 3 Burr. R. 1921;.2 Taunt. R. 38; 1, Jac. & Walk. R.
350; 3 V. & B. 57; 13 Ves. R. 472; 1 Y. & J. R. 389; 5 Barn,
& Ald. 333; 1 H. Bl. 81; 7 East, R. 558; 4 B. & Adolpb. R.
443; 7 Taunt. 209; 3 Chit. Com. L. 210; Story on Ag. §27 2
Liv. Ag. 335 Cowp. 395; 6 T. R. 642; 6 John. 194; Bouv. Inst.
Index, h. t.
AUCTOR. Among the Romans the seller was called auctor; and
public, sales were made by fixing a spear in the forum, and a
person who acted as crier stood by the spear the catalogue of the
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goods to be sold was made in tables called auctionariae.
AUDIENCE. A hearing. It is usual for the executive of a country
to whom a minister has been sent, to give such minister an
audience. And after a minister has been recalled, au audience of
leave usually takes place.
AUDIENCE COURT, Eng. eccl. law. A court belonging to the
archbishop of Canterbury, having the same authority with the
court of arches. 4 Inst. 337.
AUDIENDO ET TERMINANDO, oyer and terminer, English crim. law. A
writ, or rather a commission, directed to certain persons for the
trial and punishment of such persons as have been concerned in a
riotous assembly, insurrection or other heinous misdemeanor.
AUDITA QUERELA. A writ applicable to the case of a defendant
against whom a judgment has been recovered, (and who is therefore
in danger of execution or perhaps actually in execution,)
grounded on some matter of discharge which happened after the
judgment, and not upon any matter which might have been pleaded
as a defence to the action. 13 Mass. 453; 12 Mass. 270; 6 Verm.
243; Bac. Ab. h. t.; 2 Saund. 148, n. 1; 2 Sell. Pr. 252.
2. It is a remedial process, which bears solely on the wrongful
acts of the opposite party, and not upon the erroneous judgments
or acts of the court. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363.
It will therefore, where the cause of complaint is a proper
subject for a writ of error. 1 Verm. 433, 491; Brayt. 27.
3. An audita querela is in the nature of an equitable suit, in
which the equitable rights of the parties will be considered. 10
Mass. 101; 14 Mass. 448 2 John. Cas. 227.
4. An audita querela is a regular suit, in which the parties
may plead, take issue, &c. 17 John. 484. But the writ must be
allowed in open court, and is not, of itself, a supersedeas,
which may or may not be granted, in the discretion of the court,
according to circumstances. 2 John. 227.
5. In modern practice, it is usual to grant the same relief, on
motion, which might be obtained by audita querela: 4 John. 191 11
S. & R. 274 and in Virginia, 5 Rand. 639, and South Carolina, 2
Hill, 298; the summary remedy, by motion, has superseded this
ancient remedy. In Pennsylvania this writ. It seems, may still be
maintained, though relief is more generally obtained on motion.
11 S. & R. 274. Vide, generally, Pet. C. C. R. 269; Brayt. 2 or,
28; Walker, 66 1 Chipm. 387; 3 Conn. 260; 10 Pick. 439 1 Aik.
107; 1 Overt. 425 2 John. Cas. 227 1 Root; 151; 2 Root, 178;
9 John. 221 Bouv. Inst. Index, h. t.
AUDITOR. An officer whose duty is to examine the accounts of
officers who have received and dishursed public moneys by lawful
authority. See Acts of Congress, April 3, 1817; 3 Story's Laws
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U. S. 1630; and the Act of February 24, 1819, 3 Story's L. U. S.
1722.
AUDITORS, practice. Persons lawfully appointed to examine and
digest accounts referred to them, take down the evidence in
writing, which may be lawfully offered in relation to such
accounts, and prepare materials on which a decree or judgment may
be made; and to report the whole, together with their opinion,
to the, court in which such accounts originated. 6 Cranch, 8; 1
Aik. 145; 12 Mass. 412.
2. Their report is not, per se, binding and conclusive, but
will become so, unless excepted to. 5 Rawle, R. 323. It may be
set aside, either with or without exceptions to it being filed.
In the first case, when errors are apparent on its face, it may
be set aside or corrected. 2 Cranch, 124; 5 Cranch, 313. In the
second case, it may be set aside for any fraud, corruption, gross
misconduct, or error. 6 Cranch, 8; 4 Cranch, 308; 1 Aik. 145.
The auditors ought to be sworn, but this will be presumed. 8
Verm. 396.
3. Auditors are also persons appointed to examine the accounts
subsisting between the parties in an action of account render,
after a judgment quod computet. Bac. Ab. Accompt, F.
4. The auditors are required to state a special account, 4
Yeates, 514, and the whole is to be brought down to the time when
they make an end of their account. 2 Burr. 1086. And auditors are
to make proper charges and credits without regard to time, or the
verdict. 2 S. & R. 317. When the facts or matters of law are
disputed before them, they are to report them to the court, when
the former will be decided by a jury, and the latter by the
court, and the result sent to the auditors for their guidance. 5
Binn. 433.
AUGMENTATION, old English law. The name of a court erected by
Henry VIII., which was invested with the power of determining
suits and controversies relating to monasteries and abbey lands.
AULA REGIS. The name of an English court, so called because it
was held in the great hall of the king's palace. Vide Curia
Regis.
AUNT, domestic relations. The sister of one's father or mother;
she is a relation in the third degree. Vide 2 Com. Dig. 474
Dane's Ab. c. 126, a. 3. §4.
AUTER. Another. This word is frequently used in composition, us
auter droit,
auter vie, auter action, &c. .
AUTRE ACTION PENDANT. A plea that another action is pending for
the same cause.
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2. It is evident that a plaintiff cannot have two actions at
the same time, for the same cause, against the same defendant;
and when a second action is so commenced, and this plea is filed,
the first action must be discontinued, and the costs paid, and
this ought to be done before the plaintiff replies nul tiel
record. Grah. Pr. 98. See Lis Pendens.
3. But the suit must be for the same cause, in order to take
advantage of it under these circumstances, for if it be for a
different cause, as, if the action be for a lien, as, a
proceeding in, rem to enforce a mechanic's lien, it cannot be
pleaded in abatement in an action for the labor and materials. 3
Scamm. 201. See 16 Verm. 234; 1 Richards, 438; 3 Watts & S. 395
7 Mete. 570; 9 N. H. Rep. 545.
4. In general, the pending of another action must be pleaded in
abatement; 3 Rawle, 320; 1 Mass. 495; 5 Mass. 174, 179; 2 N.
H. Rep. 36 7 Verm. 124; 3 Dana, 157; 1 Ashm. 4, 2 Browne, 175 4
H. & M. 487; but in a penal action, at the suit of a common
informer, the priority of a former suit for the same penalty in
the name of a third person, may be pleaded in bar, because the
party who first sued is entitled to the penalty. 1 Chit. PI. 443.
5. Having once arrested a defendant, the plaintiff cannot, in
general, arrest him again for the same cause of action. Tidd.
184. But under special circumstance's, of which the court will
judge, a defendant may be arrested a second time-. 2 Miles, 99,
100, 141, 142. Vide Bac. Ab. Bail in civil cases, B 3; Grah. Pr.
98; Troub. & H. Pr. 44; 4 Yeates, 206, 1 John. Cas. 397; 7
Taunt. 151; 1 Marsh. 395; and Lis Pendens.
AUTER DROIT, or more properly, Autre Droit, another's right. A
man may sue Or be sued in another's right; this is the case with
executors and administrators.
AUTHENTIC. This term signifies an original of which there is no
doubt.
AUTHENTIC ACT, civil law, contracts, evidence. The authentic
act is that which has been executed before a notary or other
public officer authorized to execute such functions, or which is
testified by a public seal, or has been rendered public by the
authority of a competent magistrate, or which is certified as
being a copy of a public register. Nov. 73, c. 2; Code, 7, 52;
6; Id. 4, 21; Dig. 22, 4.
2. In Louisiana, the authentic act, as it relates to contracts,
is that which has been executed before a notary public or other
officer authorized to execute such functions, in presence of two
witnesses, free, male, and aged at least fourteen years, or of
three witnesses, if the party be blind. If the party does not
know how to sign, the notary must cause him to affix his mark to
the instrument. Civil Code of Lo., art. 2231.
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3. The authentic act is full proof of the agreement contained
in it, against the contracting parties and their. heirs or
assigns, unless it be declared and proved to be a forgery. Id.
art. 2233. Vide Merl. Rep. h. t.
AUTHENTICATION, practice. An attestation made by a proper
officer, by which he certifies that a record is in due form of
law, and that the person who certifies it is the officer
appointed by law to do so.
2. The Constitution of the U. S., art. 4, s. 1, declares, "
Full faith and credit shall be given in each state to the public
acts, records and judicial proceedings of every other state. And
congress may by general laws prescribe the manner in which such
acts,, records and proceedings shall be proved, and the effect
thereof." The object of the authentication is to supply all other
proof of the record. The laws of the United States have provided
a mode of authentication of public records and office papers;
these acts are here transcribed.
3. By the Act of May 26, 1790, it is provided, "That the act of
the legislatures of the several states shall be authenticated by
havig the seal of their respective states affixed thereto: That
the records and judicial proceedings of the courts of any state
shall be proved or admitted, in any other court within the United
States, by the attestation of the clerk, and the seal of the
court annexed, if there be a seal, together with a certificate of
the judge, chief justice or presiding magistrate, as the case may
be, that the said attestation is in due form. And the said
records and judicial proceedings, authenticated as aforesaid,
shall have such faith and credit given to them, in every court
within the United States, as they have, by law or usage, in the
courts of the state from whence the said records are, or shall be
taken."
4. The above act having provided only for one species of
record, it was necessary to pass the Act of March 27, 1804, to
provide for other cases. By this act it is enacted, §1. " That,
from and after the passage of this act, all records and
exemplifications of office books, which are or may be kept in any
public office of any state, not appertaining to a court, shall be
proved or admitted in any other court or office in any other
state, by the attestation of the keeper of the said records or
books, and the seal of his office thereto annexed, if there be a
seal, together with a certificate of the presiding justice of the
court of the county or district, as the case may be, in which
such office is or may be kept or of the governor, the secretary
of state, the chancellor or the keeper of the great seal of the
state, that the said attestation is in due form, and by the
proper officer and the said certificate, if given by the
presiding justice of a court, shall be further authenticated by
the clerk or prothonotary of the said court, who shall certify,
under his hand and the seal of his office, that the said
presiding justice is duly commissioned and qualified; or if the
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said certificate be given by the; governor, the secretary of
state, the chancellor or keeper of the great seal, it shall be
under the great seal of the state in which the said certificate
is made. And the said records and exemplifications, authenticated
as aforesaid, shall have such faith and credit given to them in
every court and office within the United States, as they have by
law or usage in the courts or offices of the state from whence
the same are or shall be taken."
5. - §2. That all the provisions of this act, and the act to
which this is, a supplement, shall apply, as well to the public
acts, records, office books, judicial proceedings, courts, and
offices of the respective territories of the United States, and
countries subject to the jurisdiction of the United States, as to
the public acts, records, office books, judicial proceedings,
courts and offices of the several states."
6. The Act of May 8, 1792, s. 12, provides: That all the
records and proceedings of the court of appeals, heretofore
appointed, previous to the adoption of the present constitution,
shall be deposited in the office of the clerk of the supreme
court of the United States, who is hereby authorized and directed
to give copies of all such records and proceedings, to any person
requiring and paying for the same, in like manner as copies of
the records and other proceedings of the said court are by law
directed to be given; which copies shall have like faith and
credit as all other proceedings of the said court."
7. By authentication is also understood whatever act is done
either by the party or some other person with a view of causing
an instrument to be known and identified as for example, the
acknowledgment of a deed by the grantor; the attesting a deed by
witnesses. 2 Benth. on Ev. 449.
AUTHENTICS, civ. law. This is the name given to a collection of
the Novels of Justinian, made by an anonymous author. It is
called authentic on account of its authority.
2. There is also another collection which bears the name of
authentics. It is composed of extracts made from the Novels, by a
lawyer named Irnier, and which he inserted in the code at such
places as they refer; these extracts have the reputation of not
being correct. Merlin, Repertoire, mot Authentique.
AUTHORITIES, practice. By this word is understood the citations
which are made of laws, acts of the legislature, and decided
cases, and opinions of elementary writers. In its more confined
sense, this word means, cases decided upon solemn argument which
are said to 'be authorities for similar judgments iii like cases.
1 Lilly's Reg. 219. These latter are sometimes called precedents.
(q. v.) Merlin, Repertoire, mot Autorites.
2. It has been remarked, that when we find an opinion in a text
writer upon any particular point, we must consider it not merely
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as the opinion of the author, but as the supposed result of the
authorities to which he refers; 3 Bos. & Pull. 361; but this is
not always the case, and frequently the opinion is advanced with
the reasons which support it, and it must stand or fall as these
are or are not well founded. A distinction has been made between
writers who have, and those who have not holden a judicial
station; the former are considered authority, and the latter are
not so considered unless their works have been judicially
approved as such. Ram. on Judgments, 93. But this distinction
appears not to be well founded; some writers who have occupied a
judicial station do not possess the talents or the learning of
others who have not been so elevated, and the works or writings
of the latter are much more deserving the character of an
authority than those of the former. See 3 T. R. 4, 241.
AUTHORITY, contracts. The delegation of power by one person to
another.
2. We will consider, 1. The delegation 2. The nature of the
authority. 3. The manner it is to be executed. 4. The effects of
the authority.
3. - 1. The authority may be delegated by deed, or by parol. 1.
It may be delegated by deed for any purpose whatever, for
whenever an authority by parol would be sufficient, one by deed
will be equally so. When the authority is to do something which
must be performed through the medium of a deed, then the
authority must also be by deed, and executed with all the forms
necessary, to render that instrument perfect; usless, indeed,
the principal be present, and verbally or impliedly authorizes
the agent to fix his name to the deed; 4 T. R. 313; W. Jones,
R. 268; as, if a man be authorized to convey a tract of land,
the letter of attorney must be by deed. Bac. Ab. h. t.; 7 T. R.
209; 2 Bos. & Pull, 338; 5 Binn. 613;. 14 S. & A. 331; 6 S. &
R. 90; 2 Pick. R. 345; 6 Mass. R. 11; 1 Wend. 424 9 Wend. R.
54, 68; 12 Wend. R. 525; Story, Ag. §49; 3 Kent, Com. 613, 3d
edit.; 3 Chit. Com. Law, 195. But it does not require a written
authority to sign an unscaled paper, or a contract in writing not
under seal. Paley on Ag. by Lloyd, 161; Story, Ag. §50.
4. - 2. For many purposes, however, the authority may be by
parol, either in writing not under seal, or verbally, or by the
mere employment of the agent. Pal. on Agen. 2. The exigencies of
commercial affairs render such an appointment indispensable;
business would be greatly embarrassed, if a regular letter of
attorney were required to sign or negotiate a promissory note or
bill of exchange, or sell or buy goods, or write a letter, or
procure a policy for another. This rule of the common law has
been adopted and followed from the civil law. Story, Ag. §47;
Dig. 3, 3, 1, 1 Poth. Pand. 3, 3, 3; Domat, liv. 1, tit. 15, §1,
art. 5; see also 3 Chit. Com. Law, 5, 195 7 T. R. 350.
5. - 2. The authority given must have been possessed by the
person who delegates it, or it will be void; and it must be of a
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thing lawful, or it will not justify the person to whom it is
given. Dyer, 102; Kielw. 83. It is a maxim that delegata
potestas non potest delegari, so that an agent who has a mere
authority must execute it himself, and cannot delegate his
authority to a sub-agent. See 5 Pet. 390; 3 Story, R. 411, 425;
11 Gill & John. 58; 26 Wend. 485; 15 Pick. 303, 307; 1
McMullan, 453; 4 Scamm. 127, 133-; 2 Inst.
597. See Delegation.
6. Authorities are divided into general or special. A general
authority is one which extends to all acts connected with a
particular employment; a special authority is one confined to
"an individual instance." 15 East, 408; Id. 38.
7. They are also divided into limited and unlimited. When the
agent is bound by precise instructions, it is limited; and
unlimited when be is left to pursue his own discretion. An
authority is either express or implied.
8. An express authority may be by deed of by parol, that is in
writing not under seal, or verbally.. The authority must have
been actually given.
9. An implied authority is one which, although no proof exists
of its having been actually given, may be inferred from the
conduct of the principal; for example, when a man leaves his
wife without support, the law presumes he authorizes her to buy
necessaries for her maintenance; or if a master, usually send
his servant to buy goods for him upon credit, and the servant buy
some things without the master's orders, yet the latter will be
liable upon the implied authority. Show. 95; Pal. on Ag. 137 to
146.
10. - 3. In considering in what manner the authority is to be
executed, it will be necessary to examine, 1. By whom the
authority must be executed. 2. In what manner. 3. In what time.
11. - 1. A delegated authority can be executed only by the
person to whom it is given, for the confidence being personal,
cannot be assigned to a stranger. 1 Roll. Ab. 330 2 Roll. Ab. 9 9
Co. 77 b .; 9 Ves. 236, 251 3 Mer. R. 237; 2 M. & S. 299, 301.
12. An authority given to two cannot be executed by one. Co.
Litt. 112 b, 181 b. And an authority given to three jointly and
separately, is not, in general, well executed by two. Co. Litt.
181 b; sed vide 1 Roll. Abr. 329, 1, 5; Com. Dig. Attorney, C 8
3 Pick. R. 232; 2 Pick. R. 345; 12 Mass. R. 185; 6 Pick. R.
198; 6 John. R. 39; Story, Ag. §42. These rules apply to on
authority of a private nature, which must be executed by all to
whom it is given; and not to a power of a public nature, which
may be executed by all to whom majority. 9 Watts, R. 466; 5 Bin.
484, 5; 9 S, & R. 99. 2. When the authority is particular, it
must in general be strictly pursued, or it will be void, unless
the variance be merely circumstantial. Co. Litt. 49 b, 303, b; 6
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T. R. 591; 2 H. Bl. 623 Co. Lit. 181 , b; 1 Tho. Co. Lit. 852.
13. - 2. As to the form to be observed in the execution of an
authority, it is a general rule that an act done under a power of
attorney must be done in the name Of the person who gives a
power, and not in the attorney's name. 9 Co. 76, 77. It has been
holden that the name of the attorney is not requisite. 1 W. & S.
328, 332; Moor, pl. 1106; Str. 705; 2 East, R. 142; Moor,
818; Paley on Ag. by Lloyd, 175; Story on Ag. §146 T 9 Ves.
236: 1 Y. & J. 387; 2 M. & S. 299; 4 Campb. R. 184; 2 Cox, R.
84; 9 Co. R. 75; 6 John. R. 94; 9 John. Pi,. 334; 10 Wend. R.
87; 4 Mass. R. 595; 2 Kent, Com. 631, 3d ed. But it matters not
in what words this is done, if it sufficiently appear to be in
the name of the principal, as, for A B, (the principal,) C D,
(the attorney,) which has been held to be sufficient. See 15
Serg. & R. 55; 11 Mass. R. 97; 22 Pick. R. 168; 12 Mass. R.
237 9 Mass. 335; 16 Mass. R. 461; 1 Cowen, 513; 3 Wend. 94;
Story, Ag. §§154,275, 278, 395; Story on P. N., §69; 2 East, R.
142; 7 Watt's R. 121 6 John. R. 94. But see contra, Bac. Ab.
Leases, J 10; 9 Co, 77; l Hare & Wall. Sel. Dec. 426.
14. - 3. The execution musr take place during the continuance,
of the authority, which is determined either by revocation, or
performance of the commission.
15. In general, an authority is revocable, unless it be given
as a security, or it be coupled with an interest. 3 Watts & Serg.
14; 4 Campb. N. P. 272; 7 Ver. 28; 2 Kent's Com. 506; 8
Wheat. 203; 2 Cowen, 196; 2 Esp. N. P. Cases, 565; Bac. Abr.
h. t. The revocation (q. v.) is either express or implied; when
it is express and made known to the person authorized, the
authority is at an end; the revocation is implied when the
principal dies, or, if a female, marries; or the subject of the
authority is destroyed, as if a man have authority to sell my
house, and it is destroyed by fire or to buy for me a horse, and
before the execution of the authority, the horse dies.
16. When once the agent has exercised all the authority given
to him, the authority is at an end.
17. - 4. An authority is to be so construed as to include all
necessary or usual means of executing it with effect 2 H. Bl.
618; 1 Roll. R. 390; Palm. 394 10 Ves. 441; 6 Serg. & R. 149;
Com'. Dig. Attorney, C 15; 4 Campb. R. 163 Story on Ag. 58 to
142; 1 J. J. Marsh. R. 293 5 Johns. R. 58 1 Liv. on Ag. 103, 4
and when the agent acts, avowedly as such, within his authority,
he is not personally responsible . Pal. on Ag. 4, 5. Vide,
generally, 3 Vin. Ab. 416; Bac. Ab. h. f.; 1 Salk. 95 Com. Dig.
h. t., and the titles there referred to. 1 Roll. Ab. 330 2 Roll.
Ab. 9 Bouv. Inst. Index, h. t. and the articles, Attorney;
Agency; Agent; Principal.
AUTHORITY, government. The right and power which an officer has
in the exercise of a public function to compel obedience to his
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lawful commands. A judge, for example, has authority to enforce
obedience to his
not being correct. Merlin, Repertoire, mot Authentique.
AUTOCRACY. The name of a government where the monarch is
unlimited by law. Such is the power of the emperor of Russia,
who, following the example of his predecessors, calls himself the
autocrat of all the Russias.
AUTRE VIE. Another's life. Vide, Pur autre vie.
AUTREFOIS. A French word, signifying formerly, at another time;
and is usually applied to signify that something was done
formerly, as autrefois acquit, autrefois convict, &c.
AUTREFOIS ACQUIT, crim. law, pleading. A plea made by a
defendant, indicted for a crime or misdemeaner, that he has
formerly been tried and acquitted of the same offence. See a form
of this plea in Arch. Cr. PI. 90.
2. To be a bar, the acquittal must have been by trial, and by
the verdict of a jury on a valid indictment. Hawk. B. 2, c. 25,
s. 1; 4 Bl. Com. 335. There must be an acquittal of the offence
charged in law and in fact. Stark. PI. 355; 2 Swift's Dig. 400 1
Chit. Cr. Law, 452; 2 Russ. on Cr. 41.
3. The Constitution of the U. S., Amend. Art. 5, provides that
no person shall be subject for the same offence to be put twice
in jeopardy of life or limb. Vide generally, 12 Serg. & Rawle,
389; YeIv. 205 a, note.
AUTREFOIS ATTAINT, crim. law. Formerly attainted.
2. This is a good plea in bar, where a second trial would be
quite superfluous. Co. Litt. 390 b, note 2; 4 Bl. Com. 336.
Where, therefore, any advantage either to public justice, or
private individuals, would arise from a second prosecution, the
plea will not prevent it; as where the criminal is indicted for
treason after an attainder of felony, in which case the
punishment will be more severe and more extensive. 3 Chit. Cr.
Law, 464.
AUTREFOIS CONVICT, crim. law, pleading. A plea made by a
defendant, indicted for a crime or misdemeanor, that he has
formerly been tried and convicted of the same.
2. As a man once tried and acquitted of an offence is not again
to be placed in jeopardy for the same cause, so, a fortiori, if
he has suffered the penalty due to his offence, his conviction
ought to be a bar to a second indictment for the same cause,
least he should be punished twice for the same crime. 2 Hale,
251; 4 Co, 394; 2 Leon,. 83.
3. The form of this plea is like that of autrefois acquit; (q.
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v.) it must set out the former record, and show the identity of
the offence and of the person by proper averments. Hawk. B. 2, c.
36; Stark. Cr. Pi. 363; Arcb. Cr, PI, 92; 1 Chit. Cr. Law,
462; 4 Bl. Com. 335; 11 Verm. R. 516.
AVAIL. Profits of land; hence tenant paravail is one in actual
possession, who makes avail or profits of the land. Ham. N. P.
393.
AVALUM. By this word is understood the written engagement of a
third person to guaranty and to become security that a bill of
exchange shall be paid when due.
AVERAGE. A term used in commerce to signify a contribution made
by the owners of the ship, freight and goods, on board, in
proportion to their respective interests, towards any particular
loss or expense sustained for the general safety of the ship and
cargo; to the end that the particular loser may not be a greater
sufferer than the owner of the ship and the other owners of goods
on board. Marsh. Ins. B. 1, c. 12, s. 7; Code de Com. art. 397;
2 Hov. Supp. to Ves. jr. 407; Poth. Aver. art. Prel.
2. Average is called general or gross average, because it falls
generally upon the whole or gross amount of the ship, freight and
cargo; and also to distinguish it from what is often though
improperly termed particular average, but which in truth means a
particular or partial, and not a general loss; or has no
affinity to average properly so called. Besides these there are
other small charges, called petty or accustomed averages; such
as pilotage, towage, light-money, beaconage, anchorage, bridge
toll, quarantine, river charges, signals, instructions, castle
money, pier money, digging the ship out of the ice, and the like.
3. A contribution upon general average can only be claimed in
cases where, upon as much deliberate on and consultation between
the captain and his officers as the occasion will admit of, it
appears that the sacrifice at the time it was made, was
absolutely and indispensably necessary for the preservation of
the ship and cargo. To entitle the owner of the goods to an
average contribution, the loss must evidently conduce to the
preservation of the ship and the rest of the cargo; and it must
appear that the ship and the rest of the cargo were in fact
saved. Show. Ca. Parl. 20. See generally Code de Com. tit. 11 and
12; Park, Ins. c. 6; Marsh. Ins. B. 1, c. 12, s. 7 4 Mass. 548;
6 Mass. 125; 8 Mass. 467; 1 Caines' R. 196; 4 Dall. 459; 2
Binn. 547 4 Binn. 513; 2 Serg. & Rawle, 237, in note; 2 Serg. &
Rawle, 229 3 Johns. Cas. 178; 1 Caines' R. 43; 2 Caines' R.
263; Id. 274; 8 Johns. R . 237, 2d edit 9 Johns. R. 9; 11
Johns. R 315 1 Caines' R. 573; 7 Johns R. 412; Wesk. Ins. tit.
Average; 2 Barn. & Crest. 811 1 Rob. Adlm. Rep. 293; 2 New Rep.
378 18 Ves. 187; Lex. Mer. Armer. ch. 9; Bac Abr. Merchant, F;
Vin. Abr. Contribution and' Average; Stev. on Av.; Ben. on Av.
AVERIA. Cattle. This word, in its most enlarged signification
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is used to include horses of the plough, oxen and cattle. Cunn.
Dict. h. t.
AVERIIS CAPTIS IN WlTHERNAM, Eng. law. The name of a writ which
lies in favor of a man whose cattle have been unlawfully taken by
another, and driven out of the county where they were taken, so
that they cannot be replevied.
2. This writ issues against the wrong doer to take his cattle
to the plaintiff's use. Reg. of Writs, 82.
AVERMENT, pleading. Comes from the Latin verificare, or the
French averrer, and signifies a positive statement of facts in
opposition to argument or inference. Cowp. 683, 684.
2. Lord Coke says averments are two-fold, namely, general and
particular. A general averment is that which is at the conclusion
of an offer to make good or prove whole pleas containing new
affirmative matter, but this sort of averment only applies to
pleas, replications, or subsequent pleadings for counts and a
vowries which are in the nature of counts, need not be averred,
the form of such averment being et hoc paratus. est verificare.
3. Particular averments are assertions of the truth of
particular facts, as the life of tenant or of tenant in tail is
averred: and, in these, says Lord Coke, et hoc, &c., are not
used. Co. Litt. 362 b. Again, in a particular averment the party
merely protests and avows the truth of the fact or facts averred,
but in general averments he makes an offer to prove and make good
by evidence what he asserts.
4. Averments were formerly divided into immaterial and
impertinent; but these terms are now treated as synonymous. 3 D.
& R. 209. A better division may be made of immaterial or
impertinent averments, which are those which need not be stated,
and, if stated, need not be proved; and unnecessary averments,
which consist of matters which need not be alleged, but if
alleged, must be proved. For example, in an action of assumpsit,
upon a warranty on the sale of goods, allegation of deceit on the
part of the seller is impertinent, and need not be proved. 2
East, 446; 17 John. 92. But if in an action by a lessor against
his tenant, for negligently keeping his fire, a demise for seven
years be alleged, and the proof be a lease at will only, it will
be a fatal variance; for though an allegation of tenancy
generally would have been sufficient, yet having unnecessarily
qualified it, by stating the precise term, it must be proved as
laid. Carth. 202.
5. Averments must contain not only matter, but form. General
averments are always in the same form. The most common form of
making particular averments is in express and direct words, for
example: And the party avers or in fact saith, or although, or
because, or with this that, or being, &c. But they need not be in
these words, for any words which necessarily imply the matter
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intended to be averred are sufficient. See, in general, 3 Vin.
Abr. 357 Bac. Abr. Pleas, B 4 Com. Dig. Pleader, C 50, C 67, 68,
69, 70; 1 Saund. 235 a, n. 8 3 Saund. 352, n. 3; 1 Chit. PI.
308; Arch. Civ. PI. 163; Doct. PI. 120; 1 Lilly's Reg. 209
United States Dig. Pleading II (c); 3 Bouv. Inst. n. 2835-40.
AVOIDANCE, eccl. law. It is when a benefice becomes vacant for
want of an incumbent; and, in this sense, it is opposed to
plenarty. Avoidances are in fact, as by the death of the
incumbent or in law.
AVOIDANCE, pleading. The introductiou of new or special matter,
which, admitting the premises of the opposite party, avoids or
repels his conclusions. Gould on PI. c. 1 §24, 42.
AVOIR DU POIS, comm. law. The name of a peculiar weight. This
kind of weight is so named in distinction from the Troy weight.
One pound avoir du pois contains 7000 grains Troy; that is,
fourteen ounces, eleven pennyweights and sixteen grains Troy a
pound avoir du pois contains sixteen ounces; and an ounce
sixteen drachms. Thirty-two cubic feet of pure spring-water, at
the temperature of fifty-six degrees of Fahrenheit's thermometer,
make a ton of 2000 pounds avoir du pois, or two thousand two
hundred and forty pounds net weight.
Dane's Abr. c. 211, art. 12, §6. The avoir du pois ounce is less
than the Troy ounce in the proportion of 72 to 79; though the
pound is, greater. Eneye. Amer. art. Avoir du pois., For the
derivation of this phrase, see Barr. on the Stat. 206. See the
Report of Secretary of State of the United States to the Senate,
February 22d, 1821, pp. 44, 72, 76, 79, 81, 87, for a learned
exposition of the whole subject.
AVOUCIIER. The call which the tenant makes on another who is
bound to him by warranty to come into court, either to defend the
right against the demandant, or to yield him other land in value.
2 Tho. Co. Lit. 304.
AVOW or ADVOW, practice. Signifies to justify or maintain an
act formerly done. For example, when replevin is brought for a
thing distrained, and the distrainer justifies the taking, he is
said to avow. Termes de la Ley. This word also signifies to bring
forth anything. Formerly when a stolen thing was found in the
possession of any one" he was bound advocare, i. e. to produce
the seller from whom he alleged he had bought it, to justify the
sale, and so on till they found the thief. Afterwards the word
was taken to mean anything which a man admitted to be his own or
done by him, and in this sense it is mentioned in Fleta, lib. 1,
c. 5, par 4. Cunn., Dict. h. t.
AVOWANT, practice, pleading. One who makes an avowry.
AVOWEE, eccl. law. An advocate of a church benefice.
AVOWRY, pleading. An avowry is where the defendant in an action
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of replevin, avows the taking of the distress in his own right,
or in right of his wife, and sets forth the cause of it, as for
arrears of rent, damage done, or the like. Lawes on PI. 35 Hamm.
N. P. 464; 4 Bouv. Inst. n. 3571.
2. An avowry is sometimes said to be in the nature of an action
or of. a declaration, and privity of estate is necessary. Co.
Lit. 320 a; 1 Serg. & R. 170-1. There is no general issue upon
an avowry and it cannot be traversed cumulatively. 5 Serg. & R.
377. Alienation cannot be replied to it without notice; for the
tenure is deemed to exist for the purposes of an avowry till
notice be given of the alienation. Ham. Parties, 131-2; Ham. N.
P. 398, 426.
AVOWTERER, Eng. law. An adulterer with whom a married woman
continues in adultery. T. L.
AVOWTRY, Eng. law. The crime of adultery.
AVULSION. Where, by the immediate and manifest power of a river
or stream, the soil is taken suddenly from one man's estate and
carried to another. In such case the property belongs to the
first owner. An acquiescence on his part, however, will in time
entitle the owner of the land to which it is attached to claim it
as his own. Bract. 221; Harg. Tracts, De jure maris, &c. Toull.
Dr. Civ. Fr. tom. 3, p. 106; 2. Bl. Com. 262; Schultes on Aq.
Rights, 115 to 138. Avulsion differs from alluvion (q. v.) in
this, that in the latter case the change of the soil is gradual
and imperceptible.
AVUS. Grandfather. This term is used in making genealogical
tables.
AWAIT, crim. law. Seems to signify what is now understood by
lying in wait, or way-laying.
AWARD. The judgment of an arbitrator or arbitrators on a matter
submitted to him or them : arbitrium est judicium. The writing
which contains such judgment is also called an award.
2. The qualifications requisite to the validity of an award
are, that it be consonant to the submission; that it be certain;
be of things possible to be performed, and not contrary to law or
reason; and lastly, that it be final.
3. - 1. It is manifest that the award must be confined within
the powers given to the arbitrators, because, if their decisions
extend beyond that authority, this is all assumption of, power
not delegated, which cannot legally affect the parties. Kyd on
Aw. 140 1 Binn. 109; 13 Johns. 187 Id. 271; 6 Johns. 13, 39 11
Johns. 133; 2 Mass. 164; 8 Mass. 399; 10 Mass. 442 Caldw. on
Arb. 98; 2 Harring. 347; 3 Harring. 22; 5 Sm. & Marsh. 172; 8
N. H. Rep. 82; 6 Shepl. 251; 12 Gill & John. 456; 22 Pick.
144. If the arbitrators, therefore, transcend their authority,
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their award pro tanto will be void but if the void part affect
not the merits. of the submission, the residue will be valid. 1
Wend. 326; 13 John. 264; 1 Cowen, 117 2 Cowen, 638; 1 Greenl.
300; 6 Greenl. 247; 8 Mass. 399; 13 Mass. 244; 14 Mass.43; 6
Harr. & John. 10; Doddr. Eng, Lawyer, 168-176; Hardin, 326; 1
Yeates, R. 513.
4. - 2. The award ought to be certain, and so expressed that no
reasonable doubt can arise on the face of it, as to the
arbitrator's meaning, or as to the nature and extent of the
duties imposed by it on the parties. An example of such
uncertainty may be found in the following cases: An award,
directing one party to bind himself in an obligation for the
quiet enjoyment of lands, without expressing in what sum the
obligor should be bound. 5 Co. 77 Roll. Arbit. Q 4. Again , an
award that one should give security to the other, for the payment
of a sum of money, or the performance of any particular, act,
when the kind of security is not specified. Vin. Ab. Arbitr. Q
12; Com. Dig. Arbitrament, E 11 Kyd on Aw. 194 3 S. & R. 340 9
John. 43; 2 Halst. 90; 2 Caines, 235 3 Harr. & John. 383; 3
Ham. 266 1 Pike, 206; 7 Metc. 316 5 Sm. & Marsh. 712 13 Verm.
53; 5 Blackf. 128; 2 Hill, 75 3 Harr 442.
5. - 3. It must be possible to be performed, be lawful and
reasonable. An award that could not by any possibility be
performed, as if it directed that the party should deliver a deed
not in his possession, or pay a sum of money at a day past, it
would of course be void. But the, award that the party should pay
a sum of money, although he might not then be able to do so,
would be binding. The award must not direct anything to be done
contrary to law, such as the performance of an act which would
render the party a trespasser or a felon, or would subject him to
an action. It must also be reasonable, for if it be of things
nugatory in themselves, and offering no advantage to either of
the parties, it cannot be enforced. Kirby, 253.
6.- 4. The award must be final that is, it must conclusively
adjudicate all the matters submitted. 1 Dall. 173 2 Yeates, 4
Rawle, 304; 1 Caines, 304
Harr. & Gill, 67 Charlt. 289; 3 Pike) 324; 3 Harr. 442; 1 P.
S. R. 395; 4
Blackf. 253; 11 Wheat. 446. But if the award is as final as,
under the circumstances of the case it might be expected, it will
be considered as -valid. Com. Dig. Arbitrament, E 15. As to the
form, the award may be by parol or by deed, but in general it
must be made in accordance with the provisions and requirements
of the submission. (q. v.) Vide, generally, Kyd on Awards, Index,
h. t.; Caldwell on Arbitrations, Index, h. t.; Dane's Ab. c.
13; Com. Dig. Arbitrament, E; Id Chancery, 2 K 1, &c.; 3 Vin.
Ab. 52, 372 1 158 15 East, R. 215; 1 Ves. Jr. 364 1 Saund. 326,
notes 1, 2, and 3; Wats. on Arbitrations and Awards; 3 Bouv.
Inst., n. 2402 to 2500.
AWM, or AUME. An ancient measure, used in measuring Rhenish
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wines it contained forty gallons.
AYANT CAUSE. French law. This term, which is used in Louisiana,
signifies one to whom a right has been assigned, either by will,
gift, sale, exchange, or the like. An assignee. An ayant cause
differs from an heir who acquires the right by inheritance. 8
Toull. n. 245.
AYUNTAMIENTO, Spanish law. A congress of persons the municipal
council of a city or town. 1 White's Coll. 416; 12 Pet. 442,
notes.
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