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Dictionary, legal meaning of, ALIENAGE... AYUNTAMIENTO

    22.2.12  

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.
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 esta te 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.
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 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.

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 habeas 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.
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 standard for both gold and silver coin 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 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, who 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 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 rank 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, 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 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. 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.

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 hte neck, and a ortch in the hand, and begging the pardon of God, or the king, or any private individual, for some delinquency.
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.

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 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 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 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.
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, 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.
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.

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 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 rathe r 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.
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.

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.


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.
/B>. 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.
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.
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.
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.

APPELLANT, practice. He who makes an appeal from one 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 challenges 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.
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 the 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.
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 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 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 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 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 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 Servabt; 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.

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 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
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 deliver20it 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 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.
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, entitled 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 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 belongs 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.

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 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 holding20up 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. 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</'B>. 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 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 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 be made by virtue 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.
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 arrestment, 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 isdebtor 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 arrhae; 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 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.
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 person20employed 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.

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.
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.
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 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. & 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, 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.

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, 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.
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 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 pay 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 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. It 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 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.
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 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 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 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.

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 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.


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.

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.

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 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 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. .

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 whichthere 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.
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.

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 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.

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.
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.

AVERIA. Cattle. This word, in its most enlarged signification 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.

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 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.

AWM, or AUME. An ancient measure, used in measuring Rhenish 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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