AGAINST THE  WILL, pleadings.  In indictments for robbery from
the person, the words "feloniously and against the will," must be
introduced;   no other  words or  phrase will sufficiently charge
the offence. 1 Chit. Cr. 244.

   AGARD. An  old word  which signifies  award.  It  is  used  in
pleading, as nul agard, no award;

  AGE. The time when the law allows persons to do acts which, for
want of  years, they were prohibited from doing before. See Coop.
Justin. 446.

   2. For  males, before  they arrive  at fourteen years they are
said not  to be  of discretion;   at that age they may consent to
marriage and  choose a guardian. Twenty-one years is full age for
all private  purposes, and  the may then exercise their rights as
citizens by  voting for public officers;  and are eligible to all
offices, unless  otherwise provided  for in  the constitution. At
25, a  man may be elected a representative in Congress;  at 30, a
senator;   and at  35, he  may be  chosen president of the United
States. He  is liable  to serve  in the  militia from  18 to  45.
inclusive, unless exempted for some particular reason.

  3. As to females, at 12, they arrive at years of discretion and
may consent to marriage;  at 14, they may choose a guardian;  and
21, as  in males,  is fun  Age, when  they may  exercise all  the
rights which belong to their sex.

  4. In England no one can be chosen member of parliament till he
has attained 21 years;  nor be ordained a priest under the age of
24;   nor made  a bishop till he has completed his 30th year. The
age of serving in the militia is from 16 to 45 years.

  5. By the laws of France many provisions are made in respect to
age, among  wbich are  the following.  To  be  a  member  of  the
legislative body, the person must have attained 40 years;  25, to
be a  judge of  a tribunal  de remiere  instance;   27, to be its
president, or  to be judge or clerk of a cour royale ;  30, to be
its president  or procureur  general;  25, to be a justice of the
peace;   30, to be judge of a tribunal of commerce, and 35, to be
its president;   25,  to be  a  notary  public;    21,  to  be  a
testamentary witness;   30,  to be  a juror.  At 16,  a minor may
devise one  half of  his, property  as if he were a major. A male
cannot contract  marriage till  after the 18th year, nor a female
before full  15 years.  At 21, both males and females are capable
to perform  all the  act's of  civil life.. - Toull. Dr. Civ. Fr.
Liv. 1, Intr. n. 188.

   6. In  the civil law, the age of a man was divided as follows:
namely, the  infancy of males extended to the full accomplishment

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of the  14th year;  at 14, he entered the age of puberty, and was
said to  have acquired full puberty at 18 years accomplished, and
was major  on completing  his 25th year. A female was an infant -
til 7  years;   at 12,  she entered  puberty, and  accquired full
puberty at  14;   she became  of fall  age on completing her 25th
year. Lecons Elem. du Dr. Civ. Rom. 22.

   See Com.  Dig. Baron  and Feme, B 5, Dower, A, 3, Enfant, C 9,
10, 11,  D 3,   Pleader,  2 G 3, 2 W 22, 2 Y 8;  Bac. Ab. Infancy
and Age;   2  Vin. Ab.  131;   Constitution of the United States;
Domat. Lois  Civ. tome  1, p. 10;  Merlin, Repert. de Jurisp. mot
Age;   Ayl. Pand.  62;   1 Coke  Inst. 78;   1  Bl. Com. 463. See

  AGE-PRAYER, AGE-PRIER, oetatis precatio. English law, practise.
Wnen an  action is  brought against  an infant for lands which he
hath by  descent, he  may show  this to  the court, and pray quod
loquela remaneat  until he  shall become of age;  which is called
his age-prayer.  Upon this being ascertained, the proceedings are
stayed accordingly.  When the  lands did  not descend,  he is not
allowed this privilege. 1 Lilly's Reg. 54.

   AGED WITNESS.  When a  deposition is  wanted to  be  taken  on
account of  the age  of a  witness, he  must be  at least seventy
years old  to be  considered an  aged witness.  Coop. Eq. PI. 57;
Amb. R. 65;  13 Ves. 56, 261.

  AGENCY, contracts. An agreement, express , or implied, by which
one of the  parties, called the principal, confides to the other,
denominated the  agent, the  management of  some business;  to be
transacted in his name, or on his account, and by which the agent
assumes to  do the  business and to render an account of it. As a
general rule, whatever a man do by himself, except in virtue of a
delegated authority,  he may do by an agent. Combee's Case, 9 Co.
75.  Hence the maxim qui facit per alium facit per se.

  2. When the agency express, it is created either by deed, or in
writing not  by deed,  or verbally  without writing. 3 Chit. Com.
Law 104;   9  Ves. 250;  11 Mass. Rep. 27;  Ib. 97, 288;  1 Binn.
R. 450.  When the  agency is not express, it may be inferred from
the relation  of the  parties and  the nature  of the employment,
without any  proof of any express appointment. 1 Wash. R. 19;  16
East, R. 400;  5 Day's R. 556.

   3. The  agency must  be antecedently  given,  or  subsequently
adopted;   and in  the latter  case  there  must  be  an  act  of
recognition, or  an acquiescence  in the  act of  the agent, from
which a  recognition may  be fairly  implied. 9 Cranch, 153, 161;
26 Wend.  193, 226;   6 Man. & Gr. 236, 242;  1 Hare & Wall. Sel.
Dec. 420;   2  Kent, Com.  478;   Paley on  Agency;  Livermore on

   4. An  agency may  be dissolved in two ways - 1, by the act of
the principal or the agent;  2, by operation of law.

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   5. -  1. The  agency may be dissolved by the aet of one of the
parties. 1st.  As a  general rule,  it may  be laid down that the
principal has  a right  to revoke  the powers which he has given;
but this is subject to some exception, of which the following are
examples. When  the principal  has expressly  stipulated that the
authority shall  be irrevocable, and the agent has an interest in
its execution;   it  is to  be observed,  however, that  although
there may be an express agreement not to revoke, yet if the agent
has no  interest in  its execution, and there is no consideration
for the  agreement, it  will be  considered a  nude pact, and the
authority may  be revoked.  But when  an authority  or  power  is
coupled with  an interest,  or when  it is  given for  a valuable
consideration, or  when it  is a part of a security, then, unless
there is  an express  stipulation that  it shall be revocable, it
cannot be  revoked, whether  it be  expressed on  the face of the
instrument giving  the authority, that it be so, or not. Story on
Ag. 477;  Smith on Merc. L. 71;  2 Liv. on Ag. 308;  Paley on Ag.
by Lloyd, 184;  3 Chit. Com. f. 223;  2 Mason's R. 244;  Id. 342;
8 Wheat.  R. 170;   1  Pet. R.  1;   2 Kent,  Com. 643, 3d edit.;
Story on  Bailm. §209;   2  Esp. R. 665;  3 Barnw. & Cressw. 842;
10 Barnw. & Cressw. 731;  2 Story, Eq. Jur. §1041, 1042, 1043

  6. - 2. The ageacy may be determined by the renunciation of the
agent. If   the  renunciation be  made after  it has  been partly
executed, the  agent by  renouncing it,  becomes liable  for  the
damages which may thereby be sustained by his principal. Story on
Ag. §  478;   Story on Bailm. §436;  Jones on Bailm. 101;  4 John
r. 84.

   7. -  2 The  agency is  revoked by  operation of  law  in  the
following  cases:   1st.  When   the  agency  terminates  by  the
expiration of  the period,  during which  it was to exist, and to
have effect;   as,  if an  agency be created to endure a year, or
till the  happening of  a contingency,  it becomes extinct at the
end or on the happening of the contingency.

   8. -  2. When  a change of condition, or of state, produces an
incapacity in either party;  as, if the principal, being a woman,
marry, this  would be a revocation, because the power of creating
an agent  is founded  on the  right of  the principal  to do  the
business himself,  and a married woman has no such power. For the
same reason,  when the  principal becomes  insane, the  agency is
ipso facto  revoked. 8  Wheat. R.  174, 201 to @04;  Story on Ag.
§481;  Story on Bailm. §206. 2 Liv. on Ag. 307. The incapacity of
the agent  also amounts  to a   revocation  in law, as in case of
insanity,  and  the  like,  which  renders  an  agent  altogether
incompetent, but the rule does not reciprocally apply in its full
extent. For  instance, an  infant or  a married woman may in some
cases be  agents, althouah  they cannot  act for  themselves. Co.
Litt. 52a.

   9. -  3. The  death of  either principal  or agent revokes the
agency, unless  in cases  where the  agent has an interest in the

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thing actually  vested in  the agent.  8 Wheat. R. 174;  Story on
Ag. §486 to 499;  2 Greenl. R. 14, 18;  but see 4 W. & S. 282;  1
Hare & Wall. Sel. Dec. 415.

  10. - 4. The agency is revoked in law, by the extinction of the
subject-matter of  the agency,  or of  the principal's power over
it, or  by the  complete execution  of the trust. Story on Bailm.
§207, Vide generally, 1 Hare & Wall. Sel. Dec. 384, 422;  Pal. on
Ag.;  Story on Ag.;  Liv. on Ag.;  2 Bouv. Inst. n. 1269-1382.

   AGENT, practice.  An agent  is an  attorney who  transacts the
business of another attorney.

   2. The agent owes to his principal the unremitted exertions of
his skil  and ability,  and that  all his  transactions  in  that
character, shall  be  distinguished  by  punctuality,  honor  and
integrity. Lee's Dict. of Practice.

   AGENT, international  law. One  who is employed by a prince to
manage his  private affairs,  or, those  of his  subjects in  his
name, near a foreign, government. Wolff, Inst. Nat. §1237.

   AGENT, contracts.  One who undertakes to manage some affair to
be transacted  for another,  by his  authority on  account of the
latter, who  is called the principal, and to render an account of

   2. There are various descriptiona of agents, to whom different
appellations  are   given  according   to  the  nature  of  their
employments;   as brokers,  factors, supercargoes, attorneys, and
the like;   they  are all  included in  this  general  term.  The
authority is created either by deed, by simple writing, by parol,
or by  mere employment, according to the capacity of the parties,
or the nature of the act to be done. It is, therefore, express or
implied. Vide Authority.

   3. It  is said  to be general or special with reference to its
object, i.e.,  according as  it is confined to a single act or is
extended to all acts connected with a particular emplowment.

   4. With reference to the manner of its execution, it is either
limited or  unlimited, i.  e.  the  agent  is  bound  by  precise
instructions, (q. v.) or left to pursue his own discretion. It is
the duty  of an  agent, 1,  To perform  what he has undertaken in
relation to  his agency.  2, To  use all  necessary care.  3,  To
render an  account. Pothier,  Tr. du  Contrat de  Mandat, passim;
Paley, Agency,  1 and  2;   1 Livrm. Agency, 2;  1 Suppl. to Ves.
Jr. 67,  97, 409;   2  Id.   153, 165, 240;  Bac. Abr. Master and
Servant, 1;   1 Ves. Jr. R. 317. Vide Smith  on Merc. Law, ch. 3,
p.  43,.   et  seq.  and  the  articles  Agency,  Authority,  and

   5. Agents are either joint or several. It is a general rule of
ther common  law, that  when an authority is given to two or more

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persons to  do an  act, and  there is no several authority given,
all the  ageuts must  concur in  doing it,  in order  to bind the
principal. 3  Pick. R.  232;   2 Pick.  R. 346;  12 Mass. R. 185;
Co. Litt.  49 b,  112 b, 113, and Harg. n. 2;  Id. 181 b. 6 Pick.
R. 198  6 John. R. 39;  5 Barn. & Ald. 628.

   6. This  rule has  been so contrued that when the authority is
given jointly  and severally to three person, two cannot properly
execute it;  it must be done by all or by one only. Co. Litt. 181
b;   Com. Dig. Attorney, C 11;  but if the authority is so worded
that it  is apparent,  the principal  intended to  give power  to
either of  them, an  execution by two will be valid. Co. Litt. 49
b;   Dy. R.  62;  5 Barn. & Ald. 628. This rule aplies to private
agencies: for,  in public  agencies an  authority executed  by  a
major would be sufficient. 1 Co. Litt. 181b;  Com. Dig. Attorney,
C 15;  Bac. Ab. Authority, C;  1 T. R. 592.

   7. The  rule  in  commercial  transactions  however,  is  very
different;   and generally  when there  are several  agents  each
possesses the whole power. For example, on a consignment of goods
for sale to two factors, (whether they are partners or not,) each
of them  is understood  to possess the whole power over the goods
for the purposes of the consigment. 3 Wils. R. 94, 114;  Story on
Ag. §43.

   8.   As to  the persons who are capable of becoming agents, it
may be observed, that but few persons are excluded from acting as
agents, or from exercising authority delegated to them by others.
It is  not, therefore,  requisite that  a person be sui juris, or
capable of  acting in  his own right, in order to be qualified to
act for  others. Infants,  femes  covert,  persons  attainted  or
outlawed, aliens and other persons incompetent for many purposes,
may act  as agents for others. Co. Litt. 62;  Bac. Ab. Authority,
B;   Com. Dig.  Attorney, C 4;  Id. Baron and Feme, P 3;  1 Hill,
S. Car.  R. 271;  4 Wend. 465;  3 Miss. R. 465;  10 John. R. 114;
3 Watts, 39;  2 S. & R. 197;  1 Pet. R. 170.

   9. But  in the  case of a married woman, it is to be observed,
that she  cannot  be  an  agent  for  another  when  her  husband
expressly dissents,  particularly when  he may be rendered liable
for her  acts. Persons  who have  clearly  no  understanding,  as
idiots and lunatics cannot be agents for others. Story on Ag. §7.

     10.  There   is  another   class  who,   though   possessing
understanding, are  incapable of  acting as  agents  for  others;
these are  persons whose  duties and  characters are incompatible
with their  obligations to  the principal.  For example, a person
cannot act  as agent  in buying  for another,  goods belonging to
himself. Paley on Ag. by Lloyd, 33 to 38;  2 Ves. Jr. 317. 11. An
agent has  rights  which  he  can  enforce,  and  is,  liable  to
obligations  which   he  must  perform.  These  will  be  briefly

   1. The  rights  to  which  agents  are  entitled,  arise  from

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obligations due to them by their principals, or by third persons.

   12 -  1. Their  rights against  their principals  are, 1.,  to
receive a  just compensation  for their services, when faithfully
performed, in execution of a lawful agency, unless such services,
are entirely  gratuitous, or  the agreement  between the  parties
repels such  a  claim;    this  compensation,  usually  called  a
commission, is  regulated either  by particulaar agreement, or by
the usage  of trade,  or the presumed intention of the parties. 8
Bing. 65;  1 Caines, 349;  2 Caines, 357.

   2. To  be reimbursed  all their  just advances,  expenses  and
disbursemnts made  in the  course of their agency, on account of,
or for  the benefit  of their principal;  2 Liverm. on Ag. 11-23;
Story on Ag. §335;  Story on Bailm. §196;  Smith on Mer. Law, 56;
6 East,  392;   and also  to be paid interest upon such advances,
whenever from  the nature of the business, or the usage of trade,
or the  particular agreement  of the  parties, it  may be  fairly
presumed to  have been  stipulated for,  or due  to the  agent. 7
Wend. 315;   3 Binn. 295;  3 Caines, 226;  3 Camp. 467;  15 East,

  13. Besides the personal remedies which an agent has to enfored
his  claims  against  his  principal  for  his  commissions  and,
advancements, he has a lien upon the property of the principal in
his hand. See Lien, and Story on Ag. §351 to 390.

   14. -  2. The  rights of  agents against  third penons  arise,
either on  contracts made between such third persons and them, or
in consequence of torts committed by the latter. 1. The rights of
agents against  third persons  on contracts,  are, 1st,  when the
contract is  in writing  and made  expressly with  the agent, and
imports to  be a contract personally with him, although he may be
known to  act as  an agent;   as,  for example, when a promissory
note is  given to  the agent  as such,  for the  benefit  of  his
principal, and  the promise  is to pay the money to the agent, oe
nomine. Story  on Ag.  393, 394;  8 Mass. 103;  see 6 S.& R. 420;
1 Lev. 235;  3 Camp. 320;  5 B.& A. 27. 2d. When the agent is the
only  known   or  ostensible   pincipal,  and  therefore,  is  in
contemplation of  law, the  real contracting  party. Story on Ag.
§226, 270,  399. As,  if an  agent sell goods of his principal in
his own  name, as if he were the owner, he is entitled to sue the
buyer in  his own  name;   although his prncipal may also sue. 12
Wend. 413;  5 M.& S. 833. And on the other hand, if he so buy, he
may enforce  the contract  by action.  3d. When,  by the usage of
trade, the agent is authorized to act as owner, or as a principal
contracting party,  although his  character as agent is known, he
may enforce  his contract  by action.  For example, an auctioner,
who sells  the goods  of another  may maintain  an action for the
price, because  he has  a possession  coupled with an interest in
the goods,  and it  is a  general rule,  that whenever  an agent,
though  known   as  such,   has  a     special  property  in  the
subject-matter of  the contract, and not a bare -custody, or when
he has  acquired an  interest, or  has a lien upon it, he may sue

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upon the  contract. 2  Esp. R.  493;   1 H. Bl. 81, 84;  6 Wheat.
665;   3 Chit.  Com. Law,  10;   3 B. & A. 276. But this right to
bring an  action by  agents is  subordinate to  the rights of the
principal, who  may, unless in particular  cases, where the agent
has a lien, or some other vested right, bring a suit himself, and
suspend or  extinguish the right of the agent. 7 Taunt. 237, 243;
2 Wash.  C. C.  R. 283. 2. Agents are entitled to actions against
third persons  for torts  committed against them in the course of
their agency.  1st. They  may maintain  actions, of  trespass  or
trover against  third persons for any torts or injuries affecting
their possession of the goods which they hold as agents. Story on
Ag. §414;  13 East, 135;  9 B. & Cressw. 208;  1 Hen. Bl. 81. 2d.
When an  agent has been induced by the fraud of a third person to
sell or  buy goods  for his principal, and he has sustained loss,
he may  maintain an  action against  such third  person for  such
wrongful act, deceit, or fraud. Story on Ag. §415.

   15 -  §2. Agents  are liable  for  their  acts,  1,  to  their
principals;  and 2, to third person.

   16. -  1. The  liabilities of agents to their principals arise
from  a   violation  of  their  duties  and  obligations  to  the
principal, by exceeding their authority, by misconduct, or by any
negligence or  omission, or act by which the principal sustains a
loss. 3  B. &  Adol. 415;  12 Pick. 328. Agents may become liable
for damages  and loss  under a  special contract, contrary to the
general usages  of trade.  They may  also become responsible when
charging a del credere commission. Story on Ag. §234.

   17. - 2. Agents become liable to third persons;  1st, on their
contract;   1, when  the agent,  undertakes  to  do  an  act  for
another, and  does not  possess a  sufficient authority  from the
principal, and  that is  unknown to  the other  party, he will be
considered as  having acted  for himself  as a  principal. 3 B. 9
Adol. 114.  2. When  the agent  does not  disclose his agency, he
will be  considered as  a principal;  2 Ep. R. 667;  15 East, 62;
12 Ves.  352;  16 Martin's R. 530;  and, in the case of agents or
factors, acting  for merchants in a foreign country, they will be
considered liable  whether they  disclose their principal or not,
this being  the usage  of the trade;  Paley on Ag. by Lloyd, 248,
373;   1 B.&  P. 368;   but  this presumption  may be rebutted by
proof of  a contrary  agreement. 3. The agent will be liable when
he   expressly,    or   by   implication,   incurs   a   personal
responsibility. Story  on Ag. §156-159. 4. When the agent makes a
contract as such, and there is no other responsible as principal,
to whom resort can be had;  as, if a man sign a note as "guardian
of AB,"  an infant;   in  that case  neither the  infant nor  his
property will be liable, and the agent alone will be responsible.
5 Mass.  299;   6 Mass.,  58. 2d.  Agents become  liable to third
persons in  regard to  torts or wrongs done by them in the course
of their  agency. A  distinction has  been made,  in relation  to
third persons,  between acts  of misfeasance and non-feasance: an
agent is, liable for the former, under certain circumstances, but
not for  the latter;   he  being responsible for his non-feasance

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only to his principal. Story on Ag. §309, 310. An agent is liable
for misfeasance  as to  third  persons,  when,  intentionally  or
ignorantly, he  commits  a  wrong,  although  authorized  by  his
principal, because  no one  can  lawfully  authorize  another  to
commit a wrong upon the rights or property of another. 1 Wils. R.
328;   1 B.  & P.  410. 3d.  An agent is liable to  refund money,
when payment  to him  is void  ab initio,  so that, the money was
never  received   for  the  use  of  his  principal,  and  he  is
consequently not  accountable to the latter for it, if he has not
actually paid it over at the time he receives notice of the take.
2 Cowp.  565;   10 Mod. 233;  M.& S. 344. But unless "caught with
the money  in his  possession," the  agent is  not responsible. 2
Moore, 5;   8  Taunt. 136;   9 Bing. 878;  7 B.& C. 111;  1 Cowp.
69;   4 Taunt.  198. This  last rule is, however, subject to this
qualification, that  the money  shall have been lawfully received
by the  agent;   for  if,  in  receiving  it,  the  agent  was  a
wrongdoer, he  will not  be exempted from liability by payment to
his principal. 1 Campb. 396;  8 Bing. 424;  1 T. R. 62;  2 Campb.
122;   1 Selw.  N. P.  90, n.;  12 M. & W. 688;  6 A.& Ell. N. S.
280;  1 Taunt. 359;  3 Esp. 153.

  See Diplomatic dgent.

  AGENT AND PATIENT. This phrase is used to indicate the state of
a person  who is  required to do a thing, and is at the same time
the person  to wbom  it is  done;   as, when a man is indebted to
another, and he appoints him his executor, the latter is required
to pay  the debt  in his  capacity of  executor, and  entitled to
receive it in his own right, he is then agent and patient. Termes
de la ley.

   AGGRAVATION, crimes,  torts. That which increases the enormity
of a crime or the injury of a wrong. The opposite of extenuation.

   2. -  When a  crime  or  trespass  has  been  committed  under
aggravating circumstances,  it is  punished with  more  severity;
and, the damages given to vindicate the wrong are greater.

   AGGRAVATION, in  pleading. The introduction of matter into the
declaration which  tends to  increase the  amount of damages, but
does not  affect the  right of action itself. Steph. Pl. 257;  12
Mod. 597. See 3 An. Jur. 287, 313. An example of this is found in
the case  where a plaintiff declares in trespass for entering his
house, and  breaking his close, and tossing his goods about;  the
entry of  the house is the principal ground and foundation of the
action, and  the rest  is only  stated by  way of  agravation;  3
Wils. R. 294;  and this matter need not be proved by the plintiff
or answered by the defendant.

   AGGREGATE. A collection of particular persons or items, formed
into one   body;  as a corporation aggregate, which is one formed
of a  number of natural persons;  the union of individual charges
make an aggregate charge.

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   AGGRESSOR, crim.  law. He  who begins,  a quarrel  or dispute,
either by  threatening or  striking another.  No man  may  strike
another because  he has  threatened, or in consequence of the use
of any words.

   AGIO, aggio.  This term  is used  to denote  the difference of
price beteen  the value  of bank notes and nominal money, and the
coin of the country. - Encyc.

   AGIST, in  contrads. The taking of other men's cattle on one's
own ground at a certain rate. 2 Inst. 643;  4 Inst. 293.

  AGISTER. One who takes horses or other animals to agist.

   2. The  agister is  not, like  an innkeeper, bound to take all
horses offered  to him,  nor is  he liable for any injury done to
such  animals   in  his  care,  unless  he  has  been  guilty  of
negligence, or  from his  ignorance, negligence  may be inferred.
Holt's R. 457.

   AGISTMENT, contracts.  The taking  of another  person's cattle
into one's  own ground  to be fed, for a consideration to be paid
by the  owner. The  person who  receives the  cattle is called an

   2. An agister is bound to ordinary diligence, and of course is
responsible for  loses by  ordinary negligence;   but he does not
insure the  safety of  the cattle  agisted. Jones,  Bailm. 91;  I
Bell's Com.  458;   Holt's N.  P. Rep.  547;   Story, Bail. §443;
Bac. Ab. Tythes, C l.

   AGNATES. In  the sense  of the  Roman  law  were  those  whose
propinquity was  connected by  males only;   in  the relation  of
cognates, one or more females were interposed.

   2. By the Scotch lanv, agnates are all those who ar related by
the father,  even though  females intervene;   cognates are those
who are related by the mother. Ersk. L. Scot. B. 1, t. 7, s. 4.

   AGNATI, in  descents. Relations on the father's side: they are
different from  the cognati, they being relations on the mother's
side, affines,  who are allied by marriage, and the propinqui, or
relations in  general. 2  Bl. Com. 235;  Toull. Dr. Civ. Fr. tome
1, p. 139;  Poth. Pand. Tom. 22, p. 27. Calvini Lex.

   AGNATION, in  descents. The  relation by  blood  which  exists
between such  males as  are descended  from the  same father;  in
distinction from  cognation or  consanguinity, which includes the
descendants from  females. This  term is  principally used in the
civil law.

   AGRARIAN LAW.  Among the Romans, this name was given to a law,
which had  for its  object, the  division among the people of all
the lands which had been con-

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quered, and which belonged to the domain of the state.

   AGREEMENT, contract.  The  consent  of  two  or  more  persons
concurring, respecting  the transmissiou  of some property, right
or benefit,  with a  view of  contracting an obligation. Bac. Ab.
h.t.;  Com. Dig. h.t.;  Vin. Ab. h.t.;  Plowd. 17;  1 Com. Contr.
2;   5 East's  R. 16.  It will  be proper  to  consider,  1,  the
requisites of  an agreement;  2, the kinds of agreements;  3, how
they are annulled.

  2. - 1. To render an agreement complete six things must concur;
there must be, 1, a person able to contract;  2, a person able to
be contracted  with;   3, a  thing to  be contracted  for;   4, a
lawful consideration,  or quid  pro quo;  5, words to express the
agreement;  6, the assent of the contracting parties. Plowd. 161;
Co. Litt. 35, b.

   3. -  2. As to their form, agreements are of two kinds;  1, by
parol, or,  in writing,  as contradistinguished from specialties;
2, by specialty, or under seal. In relation to their performance,
agreements are  executed or executory. An agreement is said to be
executed when  two or  more persons  make over  their  respective
rights in a thing to one another, and thereby change the property
therein, either  presently and at once, or at a future time, upon
some event  that shall  give it full effect, without either party
trusting to  the other;  as where things are bought, paid for and
delivered. Executory  agreements, in  the ordinary acceptation of
the term,  are such  contracts as  rest on articles, memorandums,
parol promises,  or undertakings,  and the  like, to be performed
in future,  or which  are entered into preparatory to more solemn
and formal alienations of prtperty. Powel on Cont. Agreements are
also conditional  and unconditional.  They are  conditional  when
some condition  must be  fulfilled  before  they  can  have  full
effect;   they are  unconditional  when  there  is  no  condition

   4. -  3. Agreements  are annulled  or rendered  of no  effect,
first, by  the acts  of the  parties, as,  by payment;  release -
accord and satisfction;  rescission, which is express or implied;
1 Watts  & Serg. 442;  defeasance;  by novation: secondly, by the
acts of  the law, as, confusion;  merger;  lapse of time;  death,
as when a man who has bound himself to teach an apprentice, dies;
extinction of the thing which is the subject of the contract, as,
when the  agreement is  to deliver a certain horse and before the
time of delivery he dies. See Discharge of a Contract.

   5. The  writing or  instrument containing an agreement is also
called an agreement, and sometimes articles of agreement.(q. V.)

  6. It is proper, to remark that there is much dfference between
an agreement and articles of agreement which are only evidence of
it. From  the moment  that the  parties have given their consent,
the agreement  or contraet  is formed,  and, whether  it  can  be
proved or  not,  it  has  not  less  the  quality  to  bind  both

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contracting parties.  A want  of proof  does not  make  it  null,
because that  proof may be supplied aliunde, and the moment it is
obtained, the contract may be-enforced.

  7. Again, the agreement may be mull, as when it was obtained by
fraud, duress,  and the  like;  and the articles of agreement may
be good,  as far  as the  form is concerned. Vide Contract. Deed;
Guaranty;  Parties to Contracts.

  AGRI. Arable land in the common fields. Cunn. Dict. h. t.

   AGRICULTURE. The  art of  cultivating the  earth in  order  to
obtain  from  it  the    divers  things  it  can  produce;    and
particularly what  is useful  to man,  as grain, fruit's, cotton,
flax, and other things. Domat, Dr. Pub. liv. tit. 14, s. 1, n. 1.

  AID AND COMFORT. The constitution of the United States, art. 8,
s. 3,  declares, that  adhering to  the  enemies  of  the  United
States, giving  them aid  and comfort,  shall be  treason.  These
words, as they are to be understood in the constitution, have not
received a  full judicial  construction.  They  import,  however,
help, support,  assistance, countenance,  encouragement. The word
aid, which  oocurs in  the Stat.  West. 1, c. 14, is explained by
Lord Coke (2 just. 182) as comprehending all persons counselling,
abetting, plotting,  assenting, consenting, and encouraging to do
the act,  (and he  adds, what  is not  applicable to the Crime to
treason,) who  are not present when the act is done, See, also, 1
Burn's Justice, 5, 6;  4 Bl. Com. 37, 38.

   AID PRAYER,  English law.  A petition  to the court calling in
help from  another person  who has  an interest  in the matter in
dispute. For  example, a  tenant for life, by the courtesy or for
years, being  impleaded, may  pray aid of him in reversion;  that
is, desire  the court  that he  may be  called by writ, to allege
what he  thinks proper  for the  maintenance of  the right of the
person calling him, and of his own. F. N. B. 60;  Cowel.

   AIDERS,  crim.  law.  Those  who  assist,  aid,  or  abet  the
principal, and  who are   principals  in the  second  degree.  1.
Russell, 21.

   AIDS, Engl.  law. Formerly  they were  certain sums  of  money
granted by  the tenant  to his  lord in  times of  difficulty and
distress, but,  as usual  in such  cases, what  was received as a
gratuity by  the rich  and powerful  from the  weak and poor, was
soon claimed  as a matter of right;  and aids became a species of
tax to  be paid  by the tenant to his lord, in these cases: 1. To
ransom the  lord's person,  when taken priisoner;  2. To make the
lord's eldest  son a  knight;   - 3.  To marry  the lord's eldest
daughter, by  giving her  a suitable  portion. The first of these
remained  uncertain;    the  other  two  were  fixed  by  act  of
parliament at  twenty shillings each being the supposed twentieth
part of a knight's fee, 2 Bl. Com. 64.

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   AILE or  AYLE, domestic relations. This is a corruption of the
French word aieul, grandfather, avus. 3.Bl. Com. 186.

   AIR. That  fluid transparent  substance  which  surrounds  our

   2. No property can be had in the air it belongs equally to all
men,  being  indispensable  to  their  existence.  To  poison  or
materially to  change the air, to the annoyance of the public, is
a nuisance. Cro. Cr. 610;  2 Ld. Raym 1163;  I Burr. 333;  1 Str.
686   Hawk. B.  1, c. 75, s. 10;  Dane's Ab. Index h. t. But this
must be  understood with  this qualification,  that no  one has a
right to use the air over another man's land, in such a manner as
to be  injurious to  him. See 4 Campb. 219;  Bowy. Mod. Civ. Law,
62;   4 Bouv.  Inst. n.  36 1;  Grot. Droit de la Guerre et de la
Paix, liv. 2, c. 2, §3, note, 3 et 4.

   3. It is the right of the proprietor of an estate to enjoy the
light and  air that will come to him, and, in general, no one has
a right to deprive him of them;  but sometimes in building, a man
opens  windows  over  his  neighbor's  ground,  and  the  latter,
desirous of  building on  his own  ground, necessarily  stops the
windows already  built, and  deprives the  first builder of light
and air;   this  he has  the right  to do, unless the windows are
ancient lights, (q. v.) or the proprietor has acquired a right by
grant or  prescription to have such windows open. See Crabb on R.
P. §444 to 479 and Plan. Vide Nuisance.

   AJUTAGE. A  conical tube,  used in  drawing water  through  an
aperture, by the use of which the quantity of water drawn is much
increased. When  a privilege  to draw  water from a canal through
the forebay  or tunnel  by means of in aperture has been granted,
it is  not lawful  to  add  an  adjutage,  unless  such  was  the
intention of the parties. 2 Whart. R. 477.
 ALABAMA.  The name of one of the new states of the United States
of America.  This state  was  admitted  into  the  Union  by  the
resolution of  congress, approved  December 14th, 1819, 3 Sto. L.
U. S.  1804, by  which it  is resolved  that the state of Alabama
shall be  one, and  is hereby  declared to  be one  of the United
States of  America, and  admitted into  the  Union  on  an  equal
footing with  the  original states, in all respects whatever. The
convention which framed the constitution in this state, assembled
at the  town of Huntsville on Monday the fifth day of July, 1819,
and continued  in session by adjournment, until the second day of
August, 1819, when the constitution was adopted.

  2. The powers of the government are divided by the constitution
into three distinct, departments;  and each of them confided to a
separate body of magistracy, to wit: those which are legislative,
to one;   those which are executive, to another;  and those which
are judicial, to a third. Art. 2,

   3. -  1. The  legislative power  of the state is vested in two
distinct branches;   the  one styled  the senate,  the other  the

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house of representatives, and both together, the general assembly
of the  state of  Alabama. 1. The senate is never to be less than
one-fourth nor  more  than  one-third  of  the  whole  number  of
representatives. Senators  are chosen  by the  qualified electors
for the  term of  three years,  at the  same time,  in  the  same
manner, and at the same place, where they vote for members of the
house of  representatives;   one-third of  the  whole  number  of
senators are  elected every  year. Art. 3, s. 12. 2. The house of
representatives is  to consist  of not  less than forty-four, nor
more than  sixty members,  until the number of white inhabitant's
shall be  one hundred  thousand;  and after that event, the whole
number of  representatives shall  never be  less than  sixty, nor
more than  one hundred. Art. 3, B. 9. The members of the house of
representatives are chosen by the qualified electors for the term
of one  year, from  the commencement of the general election, and
no longer.

   4. -  2. The  supreme executive  power is  vested in  a  chief
magistrate, styled  the governor  of the  state of Alabama. He is
elected by  the qualified  electors, at  the time and places when
they respectively  vote for representatives;  he holds his office
for the  term of two years from the time of his installation, and
until a  successor is  duly qualified;   and is not eligible more
than four  years in  any term of six years. t. 4. He is invested,
among other  things, with  the veto power. Ib. s. 16. In cases of
vacancies, the  president of the senate acts as governor. Art. 4,
s. 18.

   5. -  3. The  judicial power  is vested  in one supreme court,
circuit courts  to be  held in each county in the state, and such
inferior courts  of law  and, equity, to consist of not more than
five members,  as the  general assembly  may, from  time to  time
direct, ordain, and establish. Art. 6, S. 1.

   ALBA FIRMA. Eng. law. When quit rents were reserved payable in
silver or  white money,  they wero  called white rents, or blanch
farms reditus  albi. When  they were  reserved payable  in  work,
grain, or the like, they were called reditus nigri or black mail.
2 Inst. 19.

  ALCADE, Span. law. The name of a judicial officer in Spain, and
in those  countries which  have received  the body  of their laws
from those of Spain.

   ALDERMAN. An  officer, generally appointed or elected in towns
corporate, or  cities, possessing  various  powers  in  different

   2. The aldermen of the cities of Pennsylvania, possess all the
powers and  jurisdictions civil  and criminal  of justices of the
peace. They  are besides,  in  conjunction  with  the  respective
mayors or recorders, judges of ibe mayor's courts.

   3. Among the Saxons there was an officer called the ealderman.

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ealdorman, or  aldernwn, which  appellation  signified  literally
elderman. Like  the Roman  senator, he  was  so  called,  not  on
account of  his age,  but because  of his wisdom and dignity, non
propter oetatem sed propter sapientism et dignitatem. He presided
with the bisbop at the scyregemote, and was, ex officio, a member
of the  witenagemote. At  one time he was a military officer, but
afterwards his office was purely judical.

   4. There  were several  kinds of aldermen, as king's aldermen,
aldermen of  all England, aldermen of the county, aldermen of the
hundred, &c., to denote difference of rank and jurisdiction.

   ALEA;   civil law.  The chance  of gain or loss in a contract.
This chance  results either  from the  uncertainty of  the  thing
sold, as the effects of a succession;  or from the uncertainty of
the price, as when a thing is sold for an annuity, which is to be
greater or  less on  the happening  of a  future event;    or  it
sometimes arises  in consequence  of the  uncertainty of  both. 2
Duv. Dr. Civ. Fr. n. 74.

  ALEATORY CONTRACTS, civil law. A mutual agreement, of which the
effects, with  respect both to the advantages and losses, whether
to all  the parties,  or to  some of them, depend on an uncertain
event. Civ. Code of Louis. art. 2951.

   2. - These contracts are of two kinds;  namely, 1. When one of
the parties  exposes himself  to lose  something which  will be a
profit to the other, in consideration of a sum of money which the
latter pays for the risk. Such is the contract of insurance;  the
insurer takes  all the  risk of  the sea,  and the assured pays a
premium to the former for the risk which he runs.

   3. -  2. In  the second  kind, each  runs a  risk which is the
consideration of  the engagement of the other;  for example, when
a person  buys an  annuity,  he  runs  the  risk  of  losing  the
consideration, in  case of  his death soon after, but he may live
so as  to receive three times the amount of the price he paid for
it. Merlin, Rep. mot Aleatoire.

   ALER SANS  JOUR, or  aller sans  jour, in  practice. A  French
phrase which  means  go without day;  and is used to signify that
the case  has been  finally dismissed the court, because there is
no further day assigned for appearance. Kitch. 146.

   ALFET, obsolete.  A vessel in which hot water was put, for the
purpose of dipping a criminal's arm in it up to the elbow.

   ALIA ENORMIA,  pleading. And  other wrongs.  In trespass,  the
declaration ought  to conclude  "and other  wrongs  to  the  said
plaintiff then and there did, against the peace," &c.

   2. Under  this allegation of alia enormia, some matters may be
given in evidence in aggravatiou of damages, though not specified
in other parts of the declaration. Bull. N. P. 89;  Holt, R. 699,

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700. For  example, a  trespass for breaking and entering a house,
the plaintiff  may, in  aggravation of  damages, give in evidence
the debauching  of his  daughter, or the beating of his servants,
under the general allegation alia enormia, &c. 6 Mod. 127.

  3. But under the alia nomia no evidence of the loss of service,
or any other matter which would of itself sustain an action;  for
if it  would, it  should be  stated specially.  In trespass quare
clausum fregit,  therefore, the  plaintiff would  not, under  the
above general  allegation, be  permitted to  give evidence of the
defendant's taking  away a  horse, &c.  Bull. N. P. 89;  Holt, R.
700;   1 Sid. 225;  2 Salk. 643;  1 Str. 61;  1 Chit. Pl. 388;  2
Greenl. Ev. §278.

   ALIAS, practice. This word is prefixed to the name of a second
writ of  the same  kind issued  in the  same cause;   as,  when a
summons has  been issued  and it is returned by the sheriff, nil,
and another  is issued, this is called an alias summons. The term
is used  to all  kinds of  writs, as  alias fi. fa.,  alias vend.
exp. and the like. Alias dictus, otherwise called;  a description
of the defendant by an addition to his real name of that by wbich
he is  bound in  the writing;   or when a man is indicted and his
name is  uncertain, he  may be indicted as A B, alias dictus C D.
See 4  John. 1118;   1  John. Cas.  243;   2 Caines,  R. 362;   3
Caines, R. 219.

   ALIBI, in  evidence. This  is a  Latin word  which  signifies,

   2. When  a person,  charged with a crime, proves (se eadem die
fuisse alibi,)  that he  was, at the time alleged, in a different
place from that in which it was committed, he is said to prove an
alibi, the  effect of  which  is  to  lay  a  founation  for  the
necessary inference,  that he  could not  have committed  it. See
Bract. fo. 140, lib. 3,  cap. 20, De Corona.

   3. This  proof  is  usually  made  out  by  the  testimony  of
witnesses, but  it is  presumed it might be made out by writings;
as if  the party  could prove by a record properly authenticated,
that on  the day  or at  the time  in question, he was in another

   4. It  must be  admitted that mere alibi evidence lies under a
great and general prejudice, and ought to be heard with un-common
caution;   but if  it appear,  to be  founded in truth, it is the
best negative  evidence that  can  be  offered;    it  is  really
positive evidence,  which in  the nature  of  things  necessarily
implies a  negative;   and in  many cases it is the only evidence
which an innocent man can offer.

   ALIEN, persons. One born out of the jurisdiction of the United
States,  who   has  not   since  been   naturalized  uuder  their
constitution and laws. To this there are some exceptions, as this
children of the ministers of the United States in foreign courts.

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See Citizen, Inhabitant.

   2. Aliens  are subject  to disabilities,  have rights, and are
bound to  perform duties,  which will  be briefly  considered. 1.
Disabilities. An  alien cannot  in general  acquire title to real
estate by the descent, or by other mere operation of law;  and if
he purchase  land, he may be divested of the fee, upon an inquest
of office  found.  To  this  general  rule  there  are  statutory
exceptions in  some  of  the  states;    in  Pennsylvania,  Ohio,
Louisiana, New  Jersey, Rev.  Laws, 604,  and Michigan,  Rev. St.
266, s.  26, the disability has been removed;  in North Carolina,
(but see  Mart. R.  48;   3 Dev.  R. 138;   2  Hayw. 104, 108;  3
Murph. 194;  4 Dev. 247;  Vermont and Virginia, by constitutional
provision;   and in  Alabama, 3  Stew R. 60;  Connecticut, act of
1824, Stat.  tit. Foreigners, 251;  Indiana, Rev. Code, a. 3, act
of January  25, 1842;   Illinois, Kentucky, 1 Litt. 399;  6 Mont.
266 Maine,  Rev. St,.  tit. 7, c. 93, s. 5 Maryland, act of 1825,
ch. 66;   2 Wheat. 259;  and Missouri, Rev. Code, 1825, p. 66, by
statutory provision it is partly so.

  3. An alien, even after being naturalized, is ineligible to the
office of president of the United States;  and in some states, as
in New  York, to  that of  govenor;   he cannot  be a  member  of
congress,  till   the  expiration   of  seven   years  after  his
naturalization.  An   alien  can  exercise  no  political  rights
whatever;   he cannot  therefore vote  at any political election,
fill any office, or serve as a juror. 6 John. R. 332.

   4. -  2. An alien has a right to acquire personal estate, make
and enforce  contracts in  relation to the same - he is protected
from injuries,  and wrongs,  to  his  person  and  property,  his
relative rights and character;  he may sue and be sued.

   5. - 3. He owes a temporary local allegiance, and his property
is liable  to taxation.  Aliens are either alien friends or alien
enemies. It  is only  alien friends  wbo have  the  rights  above
enumerated;  alien enemies are incapable, during the existence of
war to sue, and may be ordered out of the covntry. See generally,
2 Kent.  Com. 43  to 63;  1 Vin. Ab. 157;  13 Vin. ab. 414;  Bac.
Ab. h.t.;   1  Saund. 8,  n.2;   Wheat. Dig.  h.t.;   Bouv. Inst.
Index, h.t.

  ALIENAGE. The condition or state of alien.
 ALIENATE,  aliene, alien.  This is  a generic term applicable to
the various  methods of  transfering property  from one person to
another. Lord  Coke, says,  (1 Inst.  118 b,) alien cometh of the
verb alienate,  that is,  alienum facere vel ex nostro dominio in
alienum  trawferre   sive  rem   aliquam  in   dominium  alterius
transferre. These  methods vary,  according to  the nature of the
property to be conveyed and the particular objects the conveyance
is designed  to accomplish.  It  has  been  held,  that  under  a
prohibition to  alienate, long  leases are  comprehended. 2 Dow's
Rep. 210.

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   ALIENATION, estates.  Alienation is  an act  whereby  one  man
transfers the  property and  possession of  lands, tenements,  or
other things,  to another.  It is  commonly applied  to lands  or
tenements, as  to alien  (that is,  to convey)  land in  fee,  in
mortmain. Termes  de la  ley. See  Co. Litt.  118 b;  Cruise Dig.
tit. 32, c. 1, §1-8.

   2. Alienations may be made by deed;  by matter of record;  and
by devise.

   3. Alienations  by deed  may be  made by  original or  primary
conveyances, which  are those  by means  of which  the benefit or
estate is  created or  first arises;   by derivative or secondary
conveyances, by  which the  benefit or estate originally created,
is enlarged,  restrained, transferred, or extinguished. These are
conveyances by  the common  law.  To  these  may  be  added  some
conveyances which  derive their  force  and  operation  from  the
statute of  uses. The  original conveyances are the following: 1.
Feoffment;   2. Gift;   3.  Grant;   4. Lease;   6. Exchange;  6.
Partition. The  derivative are, 7. Release;  8. Confirmation;  9.
Surrender;  10. Assignment;  11. Defeasance. Those deriving their
force from  the statute  of uses,  are, 12.  Covenants  to  stand
seised to  uses;  13. Bargains and sales;  14. Lease and release;
15. Deeds  to lend  or declare  the uses  of  other  more  direct
conveyances;  16. Deeds of revocation of uses. 2 Bl. Com. ch. 20.
Vide Conveyance;   Deed.  Alienations by matter of record may be,
1. By  private acts  of the  legislature;   2. By  grants, as  by
patents of  lands;    3.  By  fines;    4.  By  common  recovery.
Alienations may also be made by devise (q.v.)

   ALIENATION, med. jur. The term alienation or mental alienation
is a  generic  expression  to  express  the  different  kinds  of
aberrations of the human understandiug. Dict. des Science Med. h.
t.;  1 Beck's Med. Jur. 535.

  ALIENATION OFFICE, Engligh law. An office to which all writs of
covenants   and entries  are carried  for the  recovery of  fines
levied thereon. See Alienate.

  TO ALIENE, contracts. See Alienate.

  ALIENEE. One to whom an alienation is made.

   ALIEXI JURIS.  Words applied to persons who are subject to the
authority of   another.  An infant  who is under the authority of
his father  or guardian,  and a  wife  under  the  power  of  her
husband, are said to be alieni juris. Vide sui juris.

  ALIENOR. He who makes a grant or alienation.

   ALIMENTS. In  the Roman and French law this word signifies the
food and  other things  necessary to  the  support  of  life,  as
clothing and  the like.  The same  name is  given  to  the  money
allowed for aliments. Dig. 50, 16, 43.

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   2. By  the common  law, parents  and children reciprocally owe
each other  aliments or maintenance. (q. v.) Vide 1 Bl. Com. 447;
Merl. Rep.  h. t.;   Dig.  25, 3,  5. In the common law, the word
alimony (q.v.) is used. Vide Allowance to a Prisoner.

  ALIMONY. The maintenance or support which a husband is bound to
give to  his wife upon separation from her;  or the support which
either father or mother is  bound to give to his or her children,
though this is more usually called maintenance.

   2. The  causes for  granting  alimony  to  the  wife  are,  1,
desertion, (q.  v.) or cruelty of the husband;  (q. v.) 4 Desaus.
R. 79,;  1 M'Cord's Ch. R. 205;  4 Rand. R. 662;  2 J. J;  Marsh.
R. 324.;   1 Edw. R. 62;  and 2, divorce. 4 Litt. R. 252;  1 Edw.
R. 382;   2 Paige, R. 62;  2 Binn. R. 202;  3 Yeates, R. 50;  S.&
R. 248;  9 S.& R. 191;  3 John. Ch. R. 519;  6 John. Ch. 91.

   3. In  Louisiana by  alimony is meant the nourishment, lodging
and support  of the  person who  claims it. It includes education
when the person to whom alimoiay is due is a minor. Civil Code of
L. 246.

   4. Alimony  is granted in proporion to the wants of the person
requiring it,  and the  circumstances of those who are to pay it.
By the common law, parents and children owe each other alimony. 1
Bl. Com.  447;   2 Com.  Dig. 498;.  3 Ves. 358;  4 Vin. Ab. 175;
Ayl. Parerg. 58;  Dane's Ab. Index. h.t.;  Dig. 34, 1. 6.

   5. Alimony  is allowed to the wife, pendente lite, almost as a
matter of  course whether  she be plaintiff or defendant, for the
obvious reason that she has generally no other means of living. 1
Clarke's R. 151. But there are special cases where it will not be
allowed, as when the wife, pending the progress of the suit, went
to her  father's, who  agreed with the husband to support her for
services. 1  Clarke's R. 460. See Shelf. on Mar. and Div. 586;  2
Toull. n. 612.

   ALITER, otherwise. This term is frequently used to point out a
difference between  two decisions;   as,  a point of law has been
decided in  a particular  way, in  such a case, aliter in another

   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

  ALL FOURS. This is a metaphorical expression, to signify that a
case agrees  in all its circumstances with another case;  it goes
as it were upon its four legs, as an animal does.

   ALLEGATA. A  word which  the emperors  formerly signed  at the
bottom  of  their  rescripts  and  constitutions;    under  other

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instrumets they usually wrote nata or testate. Ency. Lond.

   ALLEGATA AND  PROBATA. The  allegations made  by a  party to a
suit, and  the proof  adduced in  their support.  It is a general
rule of  evidence that  the allegata and probata must correspond;
that is,  the proof  must at  least be  sufficiently extensive to
cover all the allegations of the party. Greenl. Ev. §51;  3 R. s.

   ALLEGATION,  English  ecclesiastical  law.  According  to  the
practice of  the prerogative  court, the  facts  intended  to  be
relied on  in support  of the contested suit are set forth in the
plea, which  is termed  an allegation;   this is submitted to the
inspection of the counsel of the adverse party, and, if it appear
to them  objectionable in  form or  substance,  they  oppose  the
admission of  it. If  the opposition goes to the substance of the
allegation, and is held to be well founded, the court rejects it;
by which mode of proceeding the suit is terminated without, going
into any  proof of the facts. 1 Phil. 1, n.;  1 Eccl. Rep. ll, n.
S. C. See 1 Brown's Civ. Law, 472, 3, n.

  ALLEGATION, common law. The assertion, declaration or statement
of a party of what he can prove.

   ALLEGATI6N, civil  law. The citation or reference to a voucher
to support  a proposition.  Dict. de  jurisp.;  Encyclopedie, mot
Allegation;  1 Brown's Civ. Law, 473, n.

   ALLEGATION OF  FACULTIES When  a suit  is  instituted  in  the
English ecclesiastical courts, in order to obtain alimony, before
it is  allowed, an  alIegation must  be made  on the  part of the
wife, stating  the property  of the  husband. This  allegation is
called an allegation of faculties. Shelf. on Mar. and Div. 587.

   ALLEGIANCE. The tie which binds the citizen to the government,
in return for the protection which the government affords him.

   2. It  is natural,  acquired, or  local. Natural allegiance is
such as  is due  from all  men born  within  the  United  States;
acquired allegiance  is  that  which  is  due  by  a  naturalized
citizen. It  has never  been decided  whether a  citizen can,  by
expatriation, divest  himself absolutely  of  that  character.  2
Cranch, 64;  1 Peters' C. C. Rep. 159;  7 Wheat. R. 283;  9 Mass.
R. 461.  Infants cannot  assume allegiance,  (4 Bin. 49) although
they enlist in the army of the United States. 5 Bin. 429.

  3. It seems, however, that he cannot renounce his allegiance to
the United States without the permission of the government, to be
declared by  law. But  for commercial purposes he may acquire the
rights of  a citizen  of another  country, and  the place  of his
domicil determines  the character of a party as to trade. 1 Kent,
Com. 71;  Com. Rep. 677;  2 Kent, Com. 42.

   4. Local  allegiance is that which is due from an alien, while

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resident in  the United  States, for  the  protection  which  the
government affords  him. 1  Bl. Com.  366, 372;   Com.  Dig. h.t;
Dane's Ab. Index, h. t.;  1 East, P.C. 49 to 57.

   ALLIANCE, relationship.  The union or connexion of two persons
or families  by marraiage, which is also called affinity. This is
derived from  the Latin  preposition ad and ligare, to bind. Vide
Inst 1, 10, 6;  Dig 38, 10, 4, 3;  and Affinity.

   ALLIANCE, international  law. A  contract, treaty,  or  league
between two sovereigns or states, made to insure their safety and
common defence.

   2. Alliances  made for warlike purposes are divided in general
into defensive  and offensive;   in  the former  the nation  only
engages to defend her ally in case he be attacked;  in the latter
she unites  with him  for the  purpose of  making an  attack,  or
jointly waging the war against another nation. Some alliances are
both offensive  and defensive;   and there seldom is an offensive
alliance which is not also defensive. Vattel, B. 3, c. 6, §79;  2
Dall. 15.

   ALLISION, maritime  law. The  running of  one  vessel  against
another. It  is distiguished  from collision  in this,  that  the
latter means the running of two vessels against each other;  this
latter term is frequently used for allision.

   ALLOCATION,  Eng.  law.  An  allowance  upon  account  in  the
Exchequer;  or rather, placing or adding to a thing. Eucy. Lond.

   ALLOCATIONE FACIENDA.  Eng. law.  A writ  commanding  that  an
allowance be  made to  an accountant,  for such  moneys as he has
lawfully expended  in his  office. It  is directed  to  the  lord
treasurer and barons of the exchequer.

   ALLOCATUR, practice.  The allowance  of a  writ;  e. g. when a
writ of  habeeas corpus is prayed for, the judge directs it to be
done, by  writing the word allowed and signing his name;  this is
called the  allocator. In the English courts this word is used to
indicate the master or prothonotary's allowance of a sum referred
for his consideration, whether touching costs, damages, or matter
of account. Lee's Dict. h, t.

   ALLODIUM estates. Signifies an absolute estate of inheritance,
in coutradistinction to a feud.

   2. In  this country the title to land is essentially allodial,
and every tenant in fee simple has an absolute and perfect title,
yet in  technical language  his estate is called an estate in fee
simple, and  the tenure free and common socage. 3 Kent, Com. 390;
Cruise, Prel. Dis. c. 1, §13;  2 Bl. Com. 45.
For the  etymology of  this word,  vide 3  Kent Com. 398 note;  2
Bouv. Inst. n. 1692.

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   ALLONGE, French  law. When a bill of exchange, or other paper,
is too  small to receive the endorsements which are to be made on
it, another  piece of paper is added to it, and bears the name of
allonge. Pard.  n. 343;   Story  on P.  N. §121,  151;   Story on
Bills,  204. See Rider.

  ALLOTMENT. Distribution by lot;  partition. Merl. Rep. h. t.

   TO ALLOW, practice. To approve;  to grant;  as to allow a writ
of error,  is to  approve of  it, to grant it. Vide Allocatur. To
allow an amount is to admit or approve of it.

   ALLOWANCE TO  A PRISONER.  By the laws of, it is believed, all
the states,  when a poor debtor is in arrest in a civil suit, the
plaintiff is  compelled to pay an allowance regulated by law, for
his maintenance  and support,  and in  default of such payment at
the time  required, the  prisoner is  discharged. Notice  must be
given to the plaintiff before the defendant can be discharged.

   ALLOY, or ALLAY. An inferior metal, used with gold. and silver
in making  coin or  public money.  Originally, it  was one of the
allowances known  by the name of remedy for errors, in the weight
and purity  of coins.  The practice  of  making  such  allowances
continued in all European mints after the reasns, upon which they
were originally  founded, had, in a great measure, ceased. In the
imperfection of  the art  of coining,  the mixture  of the metals
used, and  the striking of the coins, could not be effected with,
perfect accuracy.  There would  be some variety in the mixture of
metals made  at different  times, although  intended to be in the
same proportions,  and in  different  pieces  of  coin,  although
struck by  the same process and from the same die. But the art of
coining metals  has now  so nearly attained perfection, that such
allowances have  become, if not altogether, in a great measure at
least, unnecessary.  The  laws  of  the  United  States  make  no
allowance for deficiencies of weight. See Report of the Secretary
of State  of the  United States, to the Senate of the U. S., Feb.
22, 1821, pp. 63, 64.

   2. The act of Congress of 2d of April, 1792, sect. 12, directs
that the  standard for all gold coins of the United States, shall
be eleven  parts fine  to one  part of alloy;  and sect. 13, that
the standard  for all silver coins of the United States, shall be
one thousand  four hundred  and eighty-five  parts fine,  to  one
hundred and  seventy-nine parts  alloy. 1 Story's L. U. S. 20. By
the act of Congress, 18th Feb. 1831, §8, it is provided, that the
stadard for both gold and silver coim of the United States, shall
be such, that of one thousand parts by weight, nine hundred shall
be of pure metal, and one hundred of alloy;  and the alloy of the
silver coins  shall be  of copper,  and the  alloy of  gold coins
shall be  of copper  and silver, provided, that the silver do not
exceed one-half  of the  whole alloy. See also, Smith's Wealth of
Nations, vol. i., pp. 49, 50.

   ALLUVION. The  insensible increase  of the earth on a shore or

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bank of a river by the force of the, water, as by a current or by
waves. It  is a  part of the definition that the addition, should
be so  gradual that  no one  can judge  how much is added at each
moment of  time. Just.  Inst. lib.  2, tit.  1, §20;   3  Barn. &
Cress. 91;  Code Civil Annote No. 556. The proprietor of the bank
increased by  alluvion is  entitled  to  the  addition.  Alluvion
differs from  avulsion in  this: that  the latter  is sudden  and
perceptible. See  avulsion. See  3 Mass. 352;  Coop. Justin. 458;
Lord Raym.  77;   2 Bl.  Com. 262, and note by Chitty;  1 Swift's
Dig. 111;   Coop.  Just. lib.  2, t. 1;  Angell on Water Courses,
219;   3 Mass.  R. 352;  1 Gill & Johns. R. 249;  Schultes on Aq.
Rights, 116;   2  Amer. Law  Journ. 282,  293;   Angell  on  Tide
Waters, 213;   Inst.  2, 1,  20;   Dig. 41, 1, 7;  Dig. 39, 2, 9;
Dig. 6,  1, 23;   Dig.  1, 41,  1, 5;  1 Bouv. Inst. pars 1, c. 1
art. 1, §4, s. 4, p. 74.

   ALLY, international  law. A  power which  has entered  into an
alliance with  another power.  A citizen or subject of one of the
powers in  alliance, is  sometimes called  an ally;  for example,
the rule  which renders  it unlawful  for a citizen of the United
States to  trade  or  carry  on  commerce  with  an  enemy,  also
precludes an  ally from  similar intercourse. 4 Rob. Rep. 251;  6
Rob. Rep. 406;  Dane's Ab, Index, h. t.;  2 Dall. 15.

   ALMANAC. A  table or  calendar, in  which  are  set  down  the
revolutions of  the seasons,  the rising  and setting of the sun,
the  phases  of  the  moon,  the  most  remarkable  conjunctions,
positions and phenomena of the heavenly bodies, the months of the
year, the  days of  the month  and week,  and a  variety of other

   2. The  courts will  take judicial notice of the almanac;  for
example, whether  a certain  day of  the month was on a Sunday or
not. Vin.  Ab. h.  t.;   6 Mod.  41;  Cro. Eliz. 227, pl. 12;  12
Vin. Ab.  Evidence (A,  b, 4.)  In dating instrments, some sects,
the Quakers,  for example,  instead of writing January, February,
March, &c.,  use the  terms, First  month,  Second  month,  Third
month, &c.,  and these are equally valid in such writings. Vide 1
Smith's Laws of Pennsylvania, 217.

   ALLODARII, Eng.  law, Book of Domesday. Such tenants, wbo have
as large  an estate  as a  subject can  have. 1 Inst. 1;  Bac. Ab
Tenure, A.

   ALMS. In  its most  extensive sense,  this  comprehends  every
species  of  relief  bestowed  upon  the  poor,  and,  therefore,
including all  charities. In  a more, limited sense, it signifies
what is  given by  public authority  for the  relief of the poor.
Shelford on Mortmain, 802, note (x);  1 Dougl. Election Cas. 370;
2 Id. 107;  Heywood on Elections, 263.

  ALTA PRODITIO, Eng. law. High treason.

   ALTARAGE, eccl. law. Offerings made on the altar;  all profits

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which accrue  to the  priest by means of the altar. Ayl. Par. 61;
2 Cro. 516.

   TO ALTER.  To change.  Alterations  are  made  either  in  the
contract itself,  or in  the instrument  which is evidence of it.
The contract  may at  any time be altered with the consent of the
parties, and  the alteration  may be  either in writing or not in

   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.

  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.

   4. When  the contract  is evidenced  by a specialty, and it is
altered by  parol, the  whole  will  be  considered  as  a  parol
agreement.  2   Watt  451;    9  Pick.  298.  For  alteration  of
instruments see  Erasure;    Interlineation.  See,  generally,  7
Greenl. 76, 121, 394;  15 John. 200;  2 Penna. R. 454.

   ALTERATION. An  act done  upon an  instrument in  writing by a
party entitled  under it, without the consent of the other party,
by which  its meaning  or language  is changed;   it imports some
fraud or design on the part of him who made it. This differs from
spoliation, which  is the mutilation of the instrument by the act
of a stranger.

  2. When an alteration has a tendency to mislead, by so changing
the character  of the instrument, it renders it void;  but if the
change has  not such  tendency, it  will  not  be  considered  an
alteration. 1 Greenl. Ev. 566.

   3. A  spoliation, on  the contrary,  will not affect the legal
character of  the instrument,  so long  as the  original  writing
remains legible;   and,  if it  be a  deed, any trace of the seal
remains. 1 Greenl. Ev. § 566. See Spoliation.

   ALTERNAT. The  name of a usage among diplomatists by which the
ranl and places of different powers, who have the same rights and
pretensions to  precedence, are changed from time to time, either
in a  certain regular order, or one determined by lot. In drawing
up treaties  and conventions,  for example,  it is  the usage  of
certain powers  to  alternate,  both  in  the  preamble  and  the
signatures, so  that each power occupies, in the copy intended to
be delivered  to it,  the first place. Wheat. Intern. Law, pt. 2,

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c. 3, § 4..

  ALTERNATIVE. The one or the other of two things. In contracts a
party has frequently the choice to perform one of several things,
as, if  he is  bound to  pay one hundred dollars, or to deliver a
horse, he  has  the  alternative.  Vide  Election;    Obligation;

   ALTIUS NON TOLLENDI, civil law. The name of a servitude due by
the owner  of a  house, by  which he  is restrained from building
beyond a certain height. Dig. 8, 2, 4, and 1, 12, 17, 25.

   ALTIUS TOLLENDI,  civil law.  The name  of a  servitude  which
consists in the right, to him who is entitled to it, to build his
house as  high as he may think proper. In general, however, every
one enjoys  this privilege,  unless he,  is  restrained  by  home
contrary title.

   ALTO ET  BASSO. High  and low.  This phrase  is applied  to an
agreement made  between two  contending  parties  to  submit  all
matters in dispute, alto et basso, to arbitration. Cowel.

  ALTUM MARE. The high sea. (q. v.)

   ALUMNUS, civil  law. A  child which  one has nursed;  a foster
child. Dig. 40, 2, 14.

   AMALPHITAN CODE.  The name  given to a collection of sea-laws,
complied about  the end of the eleventh century, by the people of
Amalphi. It consists of the laws on maritime subjects which were,
or had been, in force in counries bordering on the Mediterranean;
and, on  account of  its being collected into one regular system,
it was  for a long time received as authority in those countries.
1 Azun. Mar. Law, 376.

   AMANUENSIS. Oe who write another dictates. About the beginning
of the  sixth century,,  the tabellions (q.v.) were known by this
name. 1 Sav. Dr. Rom. Moy. Age, n. 16.

  AMBASSADOR, interaational law. A public minister sent abroad by
some sovereign  state or  prince, with  a  legal  commission  and
authority to  transact business on behalf of his country with the
government to  which he  is sent. He is a minister of the highest
rank, and represents the person of his sovereign.

   2. The United States have always been represented by ministers
plenipotentiary, never  having sent  a person  of the rald of an,
ambassador in the diplomatic sense. 1 Kent's Com. 39, n.

   3. Ambassadors,  when  acknowledged  as  such,  are  exempted,
absolutely from  all allegiance,  and from  all responsibility to
the laws.  If, however,  they should  be so  regardless of  their
duty, and  of the  object of  their privilege,  as to  insult  or
openly to  attack the laws of the government, their functions may

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be suspended  by a refusal to treat with them, or application can
be made  to their  own sovereign for their recall, or they may be
dismissed, and  required to  depart within  a reasonable time. By
fiction of  law, an ambassador is considered as if he were out of
the territory  of the  foreign power;    and  it  is  an  implied
agreement among nations, that the ambassador, while he resides in
the foreign  state, shall  be considered  as a  member of his own
country,  and   the  government   he  represents   has  exclusive
cognizance of  his  conduct,  and  control  of  his  person.  The
attendants of  the ambassador are attached to his person, and the
effects in  his use  are under his protection and privilege, and,
generally, equally exempt from foreign jurisdiction.

   4. Ambassadors  are  ordinary  or  extraordinary.  The  former
designation is  exclusively applied  to those  sent on  permanent
missions;   the  latter,  to  those  employed  on  particular  or
extraordinary occasions,  or residing  at a  foreign court for an
indeterminate period.  Vattel,  Droit  des  Gens,  1.  4,  c.  6,

   5. The  act of dtigress of April 30th, 1790, s. 25, makes void
any  writ  or  process  sued  forth  or  prosecuted  against  any
ambassador authorized and received by the president of the United
States, or any domestic servant of such ambassador;  and the 25th
section of  the same act, punishes any person who shall sue forth
or proseeute  such writ  or process,  and  all  attorneys  -  and
soliciters prosecuting  or  soliciting  in  such  case,  and  all
officers executing such writ or process, with an imprisonment not
exceeding three years, and a fine at the discretion of the court.
The act  provides that  citizens or  inhabitants  of  the  United
States who  were indebted  when they  went into the service of an
ambassador, shall  not be  protected as  to such  debt;   and  it
requires also that the names of such servants shall be registered
in the office of the secretary of state. The 16th section imposes
the like punishment on any person offering violence to the person
of an  ambassador or  other minister. P Vide 1 Kent, Com. 14, 38,
182;   Rutherf. Inst.  b. 2,  c. 9;  Vatt. b. 4, c. 8, s. 113;  2
Wash. C.  C. R.  435;  Ayl. Pand. 245;  1 Bl. Com. 253;  Bac. Ab.
h. t.;  2 Vin. Ab. 286;  Grot. lib. 2, c. 8, 1, 3;  1 Whart. Dig.
382;   2 Id.  314;   Dig. l.  50, t. 7;  Code I. 10, t. 63, l. 4;
Bouv. Inst. Index, h. t.

   6. The  British statute  7 Ann,  cap. 12;   is  similar in its
provisions;   it  extends  to  the  family  and  servants  of  an
ambassador, as  well when  they are the natives of the country in
which the ambassador resides, as when they are foreigners whom he
brings with  him. (3  Burr.  1776-7)  To  constitute  a  domestic
servant within  the meaning  of the  statute, it is not necessary
that the  servant should  lodge, at  night in  the house  of  the
ambassador, but it is necessary to show the nature of the service
he renders and the actual performance of it. 3 Burr. 1731;  Cases
Temp. Hardw.  5. He must, in fact, prove that he is bona fide the
ambassador's servant.  A land  waiter at  the custom house is not
such, nor  entitled to the privilege of the statute. 1 Burr. 401.

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A trader  is not  entitled to  the protection  of the  statute. 3
Burr. 1731;   Cases  Temp. Hardw.  5. A  person in debt cannot be
taken into  an ambassador's  service in  order to  protect him. 3
Burr. 1677.

  AMBIDEXTER. It is intended by this Latin word, to designate one
who plays  on both  sides;   in a  legal sense  it is taken for a
juror or  embraceor who  takes money  from the parties for giving
his verdict. This is seldom or never done in the United States.

  AMBIGUITY, contracts, construction. When au expression has been
used in  an instrument of writing which may be understood in more
than one sense, it is said there is an ambiguity,

   2. There  are two  sorts of  amiguities of  words,  ambiguitas
latens and ambiguitas patens.

  3. The first occurs when the deed or instrument is sufficiently
certain and free from ambiguity, but the ambiguity is produced by
something  extrinsic,  or  some  collateral  matter  out  of  the
instrument;   for example, if a man devise property to his cousin
A B,  and he  has two  cousins of  that name,  in such case parol
evidence will be received to explain the ambiguity.

   4. The  second or  patent ambiguity  occurs when a clause in a
deed, will,  or other  instrument, is  so defectively  expressed,
that a  court of  law, which  has to  put a  construction on  the
instrument, is  unable to  collect the intention of the party. In
such case,  evidence of  the declaration  of the  party cannot be
submitted to  explain his  intention, and the clause will be void
for its  uncertainty. In  Pennsylvania,  this  rule  is  somewhat
qualified. 3  Binn. 587;   4 Binn. 482. Vide generally, Bac. Max.
Reg. 23;   1  Phu. Ev.  410 to  420;  3 Stark. Ev. 1021 ;  I Com.
Dig. 575;  Sudg. Vend. 113. The civil law on this subject will be
found in  Dig. lib.  50, t. 17, 1. 67;  lib. 45, t. 1, 1. 8;  and
lib. 22, t. 1, 1. 4.

  AMBULATORIA VOLUNTAS. A phrase used to designate that a man has
the power  to alter  his will  or testament  as long as he lives.
This form  of phrase  frequently occurs  in writers  on the civil
law;   as ambulatoria res, ambulatoria actio, potestas, conditio,
&c. Calvini Lexic.

  AMENABLE. Responsible;  subject to answer in a court of justice
liable to punishment.

   AMENDE HONORABLE, EngIish law. A penalty imposed upon a person
by way of disgrace or infamy, as a punishment for any offence, or
for the  purpose of  making reparation  for any  injury  done  to
another, as the walking into church in a white sheet, with a rope
about the  neck, and  a torch in the hand, and begging the pardon
of God,  or  the  king,  or  any  private  individual,  for  some

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   2.   A punishment somewhat similar to this, and which bore the
same name,  was common in France;  it was abolished by the law of
the 25th of September, 1791. Merlin Rep. de Jur. h.'t.

   3. For  the form  of a  sentence  of  amende  horrorable,  see
D'Agaesseau, Oeuvres, 43 Plaidoyer, tom. 4, p. 246.

   AMENDMENT, legislation.  An alteration  or change of something
proposed in a bill.

   2. Either  house  of  the  legislature  has  a  rigt  to  make
amendments;   but, when  so made,  they must be sanctioned by the
other house before they can become a law. The senate has no power
to originate  any money  bills, (q.  v,) but may propose and make
amendments to  such as  have passed the House of representatives.
Vide Congress;  Senate.

   3. The  constitution of  the United  States, art.  5, and  the
constitutions of some of the states, provide for their amendment.
The provisions  contained  in  tho  constitution  of  the  United
States, are  as follows:  "Congress, whenever  two-thirds of both
houses shall  deem it necessary, shall propose amendments to this
constitution, or,  on the  application  of  the  legislatures  of
two-thirds of  the several  states, shall  call a  convention for
proposing amendments,  which, in  either case, shall be valid, to
all intents  and purposes,  as part  of this  constitution,  when
ratified by  the legislatures  of three-fourths  of  the  several
states, or by conventions in three-fourths thereof, as the one or
the other  mode of  ratification may  be  proposed  by  Congress:
Provided, that  no amendment  which may be made prior to the year
one thousand  eight hundred  and eight,  shall,  in  any  manner,
affect the  first and  fourth clauses in the ninth section of the
first article;   and that no state, without its consent, shall be
deprived of its equal suffrage in the Senate."

   AMMENDMENT, practice.  The correction,  by  allowance  of  the
court, of an error committed in the progress of a cause.

   2. Amendments  at common  law, independently  of any statutory
provision on  the subject,  are in all cases in the discretion of
the court,  for the furtherance of justice they may be made while
the proceedings  are in paper, that is, until judgment is signed,
and during  the term in which it is signed;  for until the end of
the  term   the  proceedings   are  considered   in  fieri,   and
consequently subject  to the  control of the court;  2 Burr. 756;
3 Bl.  Com. 407;   1  Salk. 47;   2 Salk. 666 ;  8 Salk. 31;  Co.
Litt. 260;   and  even after  judgment is  signed, and  up to the
latest period  of  the  action,  amendment  is,  in  most  cases,
allowable at  the discretion  of the court under certain statutes
passed for allowing amendments of the record;  and in later times
the judges  have been  much more  liberal than  formerly, in  the
exercise of  this discretion.  3 McLean,  379;  1 Branch, 437;  9
Ala. 647.  They may,  however, be  made after  the term, although
formerly the  rule was  otherwise;  Co. Litt. 260, a;  3 Bl. Com.

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407;   and even  after error  brought, where  there  has  been  a
verdict in  a civil  or criminal  case. 2  Serg. &  R. 432,  3. A
remittitur damna  may be  allowed after  error;   2 Dall. 184;  1
Yeates, 186;   Addis,  115, 116;   and  this, although  error  be
brought on  the ground of the excess of damages remitted. 2 Serg.
& R.  221. But the application must be made for the remittitur in
the court  below, as  the court  of error must take the record as
they find it. 1 Serg. & R. 49. So, the death of the defendant may
be suggested  after errer  coram nobis.  1 Bin.  486;   I  Johns.
Cases, 29;   Caines' Cases, 61. So by agreement of attormeys, the
record may be amended after error. 1 Bin. 75;  2 Binn. 169.

  3. Amendments are, however, always Iimited by due consideration
of the  rights of the opposite party;  and, when by the amendment
he would  be prejudiced  or exposed  to unreasonable delay, it is
not allowed.  Vide Bac.  Ab Com. Dig. h. t.;  Viner's. Ab. h. t.;
2 Arch.  Pr. 200;   Grah.  Pt. 524;   Steph. Pl. 97;  2 Sell. Pr.
453;  3 Bl. Com. 406;  Bouv. Inst. Index, h. t.

   AMENDS. A  satisfaction, given  by a  wrong doer  to the party
injured for a wrong committed. 1 Lilly's Reg. 81.

   2. By  statute 24  Geo. II.  c. 44, in England, and by similar
statutes in  some of  the United  States, justices  of the peace,
upon being  notified of an intended suit against them, may tender
amends fore  the wrong  alleged or done by them in their official
character, and if found sufficient, the tender debars the action.
See Act of Penn. 21 March, 1772, §§1 and.2;  Willes' Rep. 671, 2;
6 Bin. 83;  5 Serg. & R. 517, 299;  3 Id. 295;  4 Bin. 20.
 AMERCEMENT,  practice. A pecuniary penalty imposed upon a person
who is  in misericordia;   as, for example, when the defendant se
retaxit, or  recessit in  contemptum curioe.  8 Co. 58;  Bar. Ab.
Fines and  Amercements. By the common law, none can be amerced in
his absence,  except for  his default.  Non licet  aliquem in sua
absentia amerciare  nisi per  ejus defaltas.  Fleta, lib. 2, cap.
65, §15.

  2. Formerly, if the sheriff failed in obeying the writs, rules,
or orders  of the court, he might be amerced;  that is, a penalty
might be imposed upon bim;  but this practice has been superseded
by attachment.  In New  Jersey and  Ohio,  the  sheriff  may,  by
statutory provision,  be amerced  for making a return contrary to
the provision  of the  statute. Coxe, 136, 169;  6 Halst. 334;  3
Halst. 270,  271;   5 Halst.  319;   1 Green, 159, 341;  2 Green,
350;   2 South.  433;   1 Ham.  275;   2 Ham.  603;   6 Ham. 452;
Wright, 720.

   AMERCIAMENT, AMERCEMENT,  English law.  A pecuniary punishment
arbitrarily imposed  by some lord or count, in distinction from a
fine which  is expressed  according to  the statute.  Kitch.  78.
Amerciament royal,  when the  amerciament is made by the sheriff,
or any other officer of the king. 4 Bl. Com. 372.

   AMI. A  friend;   or, as it is written in old works, amy. Vide

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Prochein amy.

   AMICABLE ACTION,  Pennsylvania practice.  An action entered by
agreement of parties on the dockets of the courts;  when entered,
such action is considered as if it, had been adversely commenced,
and the defendant had been regularly summoned. An amicable action
may be  entered by  attorney, independently  of the provisions of
the act of 1866. 8 Er & R. 567.

   AMICUS CURIAE,  practice. A friend of the court. One, who as a
stander by,  when a  judge is doubtful or mistaken in a matter of
law, may  inform the  court. 2  Inst. 178;  2 Vin. Abr. 475;  and
any one, as amicus curia, may make an application to the court in
favor of an infant, though he be no relation. 1 Ves. Sen. 313.

   AMITA. A  paternal aunt;  the sister of one's father. Inst. 3,
6, 3.

   AMNESTY, government.  An act  of oblivion  of  past  offences,
granted by  the government  to those  who have been guilty of any
neglect or  crime, usually  upon condition  that they  return  to
their duty within a certain period.

   2. An  amnesty is  either express  or implied;  it is express,
when so  declared in  direct terms;   and  it is  implied, when a
treaty of  peace is made between contending parties. Vide Vattel,
liv. 4, c. 2, §20, 21, 22;  Encycl. Amer. h.t.

  3. Amnesty and pardon, are very different. The former is an act
of the  sove reign power, the object of which is to efface and to
cause to be forgotten, a crime or misdemeanor;  the latter, is an
act of  the same  authority, which exempts the individual on whom
it is bestowed from the punishment the law inflicts for the crime
he has  committed. 7  Pet. 160.  Amnesty  is  the  abolition  and
forgetfulness of the offence;  pardon is forgiveness. A pardon is
given to  one who  is certainly  guilty, or  has been  convicted;
amnesty, to those who may have been so.

   4. Their  effects are  also different.  That of pardon, is the
remission of the whole or a part of the punishment awarded by the
law;   the conviction  remaining unaffected  when only  a partial
pardon is  granted: an amnesty on the concrary, has the effect of
destroying the  criminal act, so that it is as if it had not been
committed, as far as the public interests are concerned.

   5. Their  application also  differs. Pardon is always given to
individuals, and  properly only  after  judgment  or  conviction:
amnesty may  be granted either before judgment or afterwards, and
it is  in general given to whole classes of criminals or supposed
criminals, for  the purpose  of  restoring  tranquillity  in  the
state. But  sometimes amnesties  are limited, and certain classes
are excluded from their operation.

  AMORTIZATION, contracts, English law. An alienation of lands or

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tenements in mortraain. 2 Stat. Ed. I.

   2. The  reduction of  the property  of lands  or tenements  to

  AMORTISE, contracts. To alien lands in mortmain.

   AMOTION. In corporations and companies, is the act of removing
an officer  from his  office;   it differs from disfranchisement,
which is  applicable to members, as such. Wille. on Corp. n. 708.
The power of amotion is incident to a corporation. 2 Str. 819;  1
Burr. 639.

   2. In  Rex v. Richardson, Lord Mansfield specified three sorts
of offences  for which  an officer  might be  discharged;  first,
such as  have no  immediate relation  to the  office, but  are in
themselves of  so infamous  a nature,  as to  render the offender
unfit to  execute any  public franchise;   secondly,  such as are
only  against  his  oath,  and  the  duty  of  his  office  as  a
corporator, and amount to breaches of the tacit condition annexed
to his  office;  thirdly, the third offence is of a mixed nature;
as being  an offence not only against the duty of his officer but
also a  matter indictable at common law. 2 Binn. R. 448. And Lord
Mansfield  considered   the  law   as  settled,   that  though  a
corporation has  express power of amotion, yet for the first sort
of offences  there must  be a previous indictment and conviction;
and that  there was  no authority  since Bagg's Case, 11 Rep. 99,
which says;   that  the power of trial as well as of amotion, for
the second offense, is not incident to every corporation. He also
observed: "We  think that  from the reason of the thing, from the
nature of  the corporation,  and for  the sake  of order and good
government, this power is incident as much as the power of making
by-laws." Doug. 149.

  See generally, Wilcock on Mun. Corp. 268;  6 Conn. Rep. 632;  6
Mass. R. 462;  Ang. & Am. on Corpor. 236.

   AMOTION, tort.  An amotion of possession from an estate, is an
ouster which  happens by a species of disseisin or turning out of
the legal  propritor before  his estate is determined. 3 Bl. Com.
198, 199.  Amotion is also applied to personal chattels when they
are taken  unlawfully out  of the  possession of the owner, or of
one who has a special property in them.

   AMPLIATION, civil law. A deferring of judgment until the cause
is further examined. In this case, the judges pronounced the word
amplius,  or   by  writing  the  letters  N.L.  for  non  liquet,
signifying that the cause was not clear. In practice, it is usual
in the  courts when  time is taken to form a judgment, to enter a
curia advisare vult;  cur. adv. vult. (q. v.)

   AMPLIATION, French law. Signifies the giving a duplicate of an
acquittance or other instrument, in order that it may be produced
in different  places. The  copies which notaries make out of acts

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passed before  them, and  which are delivered to the parties, are
also called ampliations. Dict. de Jur. h. t.

   AMY or  ami, a  French word, signifying, friend. Prochein amy,
(q. v.)  the next  friend. Alien amy, a foreigner, the citizen or
subject of some friendly power or prince.

  AN, JOUR, ET WASTE. See Year, day, and waste.

   ANALOGY, comtruction.  The similitude of relations which exist
between things compared.

  2. To reason analogically, is to draw conclusions based on this
similitude of  relations, on  the resemblance,  or the  connexion
which is  perceived between  the objects  compared. "It  is  this
guide," says  Toollier, which  leads the law lawgiver, like other
men, without  his observing  it. It  is analogy which induces us,
with reason,  to suppose  that,  following  the  example  of  the
Creator of the universe, the lawgiver has established general and
uniform laws,  which it is unnecessary to repeat in all analogous
cases." Dr.  Civ. Fr.  liv. 3,  t. 1,  c. 1.  Vide Ang.  on  Adv.
Enjoym. 30, 31;  Hale's Com. Law, 141.

   3. Analogy  has been  declared to  be an  argument or guide in
forming legal  judgments, and  is very  commonly a ground of such
judgments. 7  Barn. & Cres. 168;  3 Bing. R. 265;  8 Bing R. 557,
563;   3 Atk.  313;   1 Eden's R. 212;  1 W. Bl. 151;  6 Ves. jr.
675, 676;   3  Swanst. R. 561;  1 Turn. & R. 103, 338;  1 R. & M.
352, 475,  477;   4 Burr.  R. 1962;  2022, 2068;  4 T. R. 591;  4
Barn. &  Cr. 855;   7  Dowl. & Ry. 251;  Cas. t. Talb. 140;  3 P.
Wms. 391;  3 Bro. C. C. 639, n.

    ANARCHY.  The  absence  of  all  political  government;    by
extension, it signifies confusion in government.

  ANATHEMA, eccl. law. A punishment by which a person is separate
from, the  body of the church, and forbidden all intercourse with
the faithful:  it  differs  from  excommunication,  which  simply
forbids the person excommunicated, from going into the church and
communicating with the faithful. Gal. 1. 8, 9.

   ANATOCISM, civil law. Usury, which consists in taking interest
on interest,  or receiving  compound interest. This is forbidden.
Code, lib. 4, t. 32, 1, 30;  1 Postlethwaite's Dict.

   2. Courts  of equity have considered contracts for compounding
interest illegal,  and within  the  statute  of  usury.  Cas.  t.
Talbot, 40;   et vide Com. Rep. 349;  Mass. 247;  1 Ch. Cas. 129;
2 Ch. Cas. 35. And contra, 1 Vern. 190. But when the interest has
once accrued, and a balance has been settled between the parties,
they may  lawfully agree to turn such interest into principal, so
as to  carry interest  in futuro. Com. on Usury, ch. 2, s. 14, p.
146 et eq.

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   ANCESTOR, descents.  One who  has preceded another in a direct
line of  descent;   an ascendant.  In the common law, the word is
understood as  well of  the immediate  parents, as, of these that
are higher;   as  may appear  by the statute 25 Ed. III. De natis
ultra mare,  and so  in the  statute of  6 R. III. cap. 6, and by
many others.  But the  civilians relations in the ascending line,
up to the great grandfather's parents, and those above them, they
term, majores,  which common lawyers aptly expound antecessors or
ancestors, for  in the descendants of like degree they are called
posteriores. Cary's  Litt.45. The  term ancestor  is  applied  to
natural persons.  The words predecessors and successors, are used
in respect  to the  persons composing a body corporate. See 2 Bl.
Com. 209;  Bac. Abr. h. t.;  Ayl. Pand. 58.

   ANCESTRAL.  What  relates  to  or  has,  been  done  by  one's
ancestors;  as homage ancestral, and the like.

  ANCHOR. A measure containing ten gallons. Lex, Mereatoria.

   ANCHORAGE, merc. law. A toll paid for every anchor cast from a
ship into  a river,  and sometimes  a toll  bearing this  name is
paid, although  there be  no anchor cast. This toll is said to be
incident to  almost every port. 1 Wm. Bl. 413;  2 Chit. Com. Law,

   ANCIENT. Something  old, which  by age alone has acquired some
force;  as ancient lights, ancient writings.

   ANCIENT DEMESNE,  Eng. law.  Those  lands  which  either  were
reserved to  the crown  at the  original distribution  of  landed
property, or  such as  came to  it afterwards,  by forfeiture  or
other means. 1. Sal. 57;  hob. 88;  4 Inst. 264;  1 Bl. Com. 286;
Bac. Ab. h. t.;  F. N. B. 14.

   ANCIENT LIGHTS,  estates. Windows  which have  been opened for
twenty years  or more,  and enjoyed  without molestation  by  the
owner of the house. 5 Har. & John. 477;  12 Mass. R. 157,.220.

   2. It  is proposed  to consider,  1. How  the right of ancient
light is  gained. 2,  What amounts  to interruption of an ancient
light. 3, The remedy for obstructing an ancient light.

   3. -  §1. How the right of opening or keeping a window open is
gained. 1.  By grant. 2. By lapse of time. Formerly it was holden
that a  party could  not maintain  an action for a nuisance to an
ancient light,  unless he  had gained  a right  to the  window by
prescription. 1  Leon. 188;   Cro.  Eliz.  118.  But  the  modern
doctrine is,  that upon  proof of  an adverse enjoyment of light;
for twenty  yers or  upwards, unexplained, a jury may be directed
to presume  a right  by grant, or otherwise. 2 Saund. 176, a;  12
Mass. 159;  1 Esp. R. 148. See also 1 Bos. & Pull. 400.;  3 East,
299;   Phil. Ev.  126;   11 East, 372;  Esp. Dig. 636. But if the
window was opened during the seisin of a mere tenant for life, or
a tenaucy  for years,  and the owner in fee did not acquiesce in,

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or know of, the use of the light, he would not be bound. 11 East,
372;  3 Camp. 444;  4 Camp. 616. If the owner of a close builds a
house upon  one half  of it, with a window lighted from the other
half, he  cannot obstruct  lights on the premises granted by him;
and in  such case  no lapse  of time  necessary  to  confirm  the
grantee's right  to enjoy them. 1 Vent. 237, 289;  1 Lev. 122;  1
Keb. 553;   Sid.  167, 227;   L. Raym. 87;  6 Mod. 116;  1 Price,
27;   12 Mass.  159, Rep.  24;   2 Saund. 114, n. 4;  Hamm. N. P.
202;   Selw. N.  P. 1090;   Com.  Dig. Action  on the  Case for a
Nuisance, A.  Where a  building has been used twenty years to one
purpose, (as a malt house,) and it is converted to another, (as a
dwelling-house,) it is entitled in its new state only to the same
degree of light which was necessary in its former state. 1 Campb.
322;   and see 3 Campb. 80. It has been justly remarked, that the
English doctrine  as to  ancient lights can hardly be regarded as
applicable to  narrow lots  in the new and growing cities of this
country;   for the  effect of the rule would be greatly to impair
the value  of vacant  lots, or  those having  low buildings  upon
them, in  the neighborhood  of other  buildings more  than twenty
years old. 3 Kent, Com. 446, n.

   4. -  §2. What amounts to an interruption of an ancient light.
Where a  window has  been completely blocked up for twenty years,
it loses  its privilege. 3 Camp. 514. An abandonment of the right
by express agreement, or by acts from which an abandonment may be
inferred, will deprive the party having such ancient light of his
right to  it. The  building of  a blank  wall  where  the  lights
formerly existed, would have that effect. 3 B. & Cr. 332. See Ad.
& Ell. 325.

  5. - §3. Of the remedy for interrupting an ancient light. 1. An
action on  the case  will lie  against a  person who obstructs an
ancient light.  9 Co.  58;   2 Rolle's Abr. 140, 1. Nusans, G 10.
And see Bac. Ab. Actions on the Case, D;  Carth. 454;  Comb. 481;
6 Mod. 116.

   6.- Total deprivation of light is not necesary to sustain this
action, and  if the  party cannot  enjoy the light in so free and
ample a  manner as he did before, he may sustain the action;  but
there should be some sensible diminution of the light and air. 4.
Esp. R. 69. The building a wall which merely obstructs the right,
is not actionable. 9 Ca. 58, b;  1 Mod. 55.

   7. - 3. Nor is the opening windows and destroying, the privacy
of  the   adjoining  property;    but  such  new  window  may  be
immediately obstructed to prevent a right to it being acquired by
twenty years use. 3 Campb. 82.

  8. - 5. When the right is clearly established, courts of equity
will grant  an injunction  to restrain  a party  from building so
near the plaintiff's house as to darken his windows. 2 Vern. 646;
2 Bro.  C. C. 65;  16 Ves. 338;  Eden on Inj. 268, 9;  1 Story on
Eq §926;   1  Smith's Chan.  Pr. 593.;   4 Simm. 559;  2 Russ. R.
121. See Injunction;  Plan.

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   See generally  on this  subject, 1  Nels. Abr. 56, 7;  16 Vin.
Abr. 26;   1  Leigh's N.  P. C.  6, s. 8, p. 558;  12 E. C. L. R.
218;   24 Id.  401;   21 Id. 373;  1 id. 161;  10 Id. 99;  28 Id.
143;  23 Am. Jur. 46 to 64;  3 Kent, Com. 446, 2d ed. 7 Wheat. R.
106;   19 Wend. R. 309;  Math on Pres. 318 to 323;  2 Watts, 331;
9 Bing. 305;  1 Chit. Pr. 206, 208;  2 Bouv. Inst. n. 1619-23.

   ANCIENT WRITINGS,  evidence. Deeds,  wills, and other writings
more than thirty years old, are considered ancient writings. They
may in  general be  read in  evidence, without any other proof of
their execution  than that  they have  been in  the possession of
those claiming  rights under them. Tr. per Pais, 370;  7 East, R.
279;   4 Esp.  R. 1;   9  Ves. Jr. 5;  3 John. R. 292;  1 Esp. R.
275;  5 T. R. 259;  2 T. R. 466;  2 Day's R. 280. But in the case
of deeds, possession must have accompanied them. Plowd. 6, 7. See
Blath. Pres. 271, n. (2.)

   ANCIENTLY, English law. A term for eldership or seniority used
in the statute of Ireland, 14 Hen. Vni.

   ANCIENTS, English  law. A  term for  gentlemen in  the Inns of
Courts who  are of  a certain standing. In the Middle Temple, all
who have  passed their  readings are  termed ancients.  In Gray's
Inn, the  ancients are  the oldest barristers;  besides which the
society consists  of benchers,  barristers and  students. In  the
Inas of Chancery, it conts of ancients, and students or clerks.

  ANCILLARY. That which is subordinate on, or is. subordinate to,
some other decision. Encyc. Lond. 1

   ANDROLEPSY. The  taking by  one  nation  of  the  citizens  or
subjects of  another, in order to compel the latter to do justice
to the former. Wolff. §1164;  Molloy, de Jure lar. 26.

   ANGEL. An  ancient English  coin of the value of ten shillings
sterling. Jac. L. D. h. t.

   ANIENS. In  some of our law books signifies void, of no force.
F. N. B. 214.

   ANIMAL, property. A name given to every animated being endowed
with the  power of  voluntary motion.  In law,  it signifies  all
animals ecept those of the him, in species.

  2. Animals are distinguished into such as are domitae, and such
as are ferae naturae.

   3. It  is laid down, that in tame or domestic animals, such as
horse, kine,  sheep, poultry,  and the  like, a  man may  have an
absolute property,  because  they  coutiaue  perpetually  in  his
possession and  occupation, and will not stray from his house and
person unless  by accident or fraudulent enticement, in either of
which cases the owner does not lose his property. 2 Bl. Com. 390;

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2 Mod. 319. 1.

   4. But  in animals  ferae naturae,  a man can have no absolute
property;   they belong  to him  only while  they continue in his
keeping or  actual possession;   for  if at any they regain their
natural liberty,  his property instantly ceases, unless they have
animum revertendi, which is only to be known by their usual habit
of returning.  2 Bl. Com. 396;  3 Binn. 546;  Bro. Ab. Propertie,
37;  Com. Dig. Biens, F;  7 Co. 17 b;  1 Ch. Pr. 87;  Inst. 2, 1,
15. See  also 3  Caines' Rep.  175;   Coop. Justin.  457, 458;  7
Johns. Rep. 16;  Bro. Ab. Detinue, 44.

  5. The owner of a mischievous animal, known to him to be so, is
responsible, when  he permits him to go at large, for the damages
he may do. 2 Esp. Cas. 482;  4 Campb. 198;  1 Starkie's Cas. 285;
1 Holt,  617;  2 Str.1264;  Lord Raym. 110;  B. N. P. 77;  1 B. &
A. 620;  2 C. M.& R. 496;  5 C.& P. 1;  S. C. 24 E. C. L. R. 187.
This principle  agrees with  the civil law. Domat, Lois Civ. liv.
2, t.  8, s.  2. And  any person  may justify the killing of such
ferocious animals. 9 Johns. 233;  10. Johns. 365;  13 Johns. 312.
The owner,  of such  an animal  may  be  indicted  for  a  common
nuisance. 1 Russ. Ch. Cr. Law, 643;  Burn's Just., Nuisance, 1.

   6. In  Louisiana, the owner of an animal is answerable for the
damage he  may cause;   but if the animal be lost, or has strayed
more  than   a  day,   he  may   discharge  himself   from   this
responsibility, by abandoning him to the person who has sustained
the injury;   except  where the master turns loose a dangerous or
noxious animal;   for then he must pay all the harm done, without
being allowed  to make  the abndonment. Civ. Code, art. 2301. See
Bouv. Inst. Index, h. t.

   ANIMANLS OF  A BASE  NATURE. Those  which, though  they may be
reclaimed, are  not Such  that at  common law  a larceny  may  be
committed of  them, by  reason of  the baseness  of their nature.
Some animals,  which are  now usually  tamed,  come  within  this
class;   as dogs  and cats;   and  others which,  though wild  by
nature, and  oftener reclaimed  by art and industry, clearly fall
within the  same rule;  as, bears, foxes, apes, monkeys, ferrets,
and the  like. 3 Inst. 109,;  1 Hale, P. C. 511, 512;  1 Hawk. P.
C. 33,  s. 36;   4 Bl. Com. 236;  2 East, P. C. 614. See 1 Saund.
Rep. 84, note 2.

   ANIMUS. The  intent;   the mind with which a thing is done, as
animus.  cancellandi,   the  intention  of  cancelling;    animus
farandi, the  intention of  stealing;    animus  maiaendi;    the
intention of remaining;  auimus morandi, the intention or purpose
of delaying.

  2. Whether the act of a man, when in appearance criminal, be so
or not,  depends upon  the intention with which it was done. Vide

   ANIMUS CANCELLANDI.  An intention  to destroy  or cancel.  The

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least tearing  of a  will  by  a  testator,  animus  cancellandi,
renders it invalid. See Cancellation.

   ANIMUS FURANDI, crim. law. The intention to steal. In order to
comstitute larceny,  (q. v.)  the thief  must take  the  property
anino furandi;   but  this, is  expressed in  the  definition  of
larceny by  the word  felonious. 3 Inst. 107;  Hale, 503;  4. Bl.
Com. 229.  Vide 2  Russ. on  Cr. 96;   2 Tyler's R. 272. When the
taking of  property is  lawful, although  it  may  afterwards  be
converted animo  furandi to the taker's use, it is not larceny. 3
Inst. 108;   Bac.  Ab. Felony, C;  14 Johns. R. 294;  Ry. & Mood.
C. C. 160;  Id. 137;  Prin. of Pen. Law, c. 22, §3, p. 279, 281.

   ANIMUS MANENDI.  The intention  of  remaining.  To  acquire  a
domicil, the  party   must have  his abode in one place, with the
intention of  remaining there;  for without such intention no new
domicil can  be gained,  and  the  old  will  not  be  lost.  See

   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

   ANN, Scotch  law. Half a year's stipend over and above what is
owing for the incumbency due to a minister's relict, or child, or
next of  kin, after his decease. Wishaw. Also, an abbreviation of
annus, year;  also of annates. In the old law French writers, ann
or rather an, signifies a year. Co. Dig h. v.

  ANNATES, ecc. law. First fruits paid out of spiritual benefices
to the pope, being, the value of one year's profit.

  ANNEXATION, property. The union of one thing to another.

   2. In  the law  relating to  fixtures, (q.  v.) annexation  is
actual or  constructive. By actual annexation is understood every
movement by  which a  chattel can  be joined  or  united  to  the
freehold. By  constructive annexation  is understood the union of
such things  as have  been holden parcel of the realty, but which
are not  actually annexed,  fixed, or  fastened to  the freehold;
for example, deeds, or chattels, which relate to the title of the
inheritance. Shep. Touch. 469. Vide Anios & Fer. on Fixtures, 2.

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   3. This  term has been applied to the union of one country, to
another;   as Texas was annexed to the United States by the joint
reolution of Congress of larch 1, 1845., See Texas.

   ANNI NUBILES.  The age  at which a girl becomes by law fit for
marriage, which is twelve years.

   ANNIENTED. From  the French aneantir;  abrogated or made null.
Litt. sect. 741.

   ANNO DOMINI,  in the  year of our Lord, abbreviated, A. D. The
computation of  time from the incarnation of our Saviour which is
used as  the date  of all  public deeds  in the  United tites and
Christian countries,  on which  account it  is called the "vulgar

   ANNONAE CIVILES,  civil law.  A species of rent issuing out of
certain lands, which were paid to Rome monasteries.

     ANNOTATION,  civil  law.  The  designation  of  a  place  of
deportation. Dig. 32, 1, 3 or the summoning of an, absentee. Dig.
lib. 5.

  2. In another sense, annotations were the answers of the prince
to questions  put to  him  by  private  persons  respecting  some
doubtful point of law. See Rescript.

  ANNUAL PENSION, Scotch law. Annual rent. A yearly profit due to
a creditor  by way of interest for a given sum of money. Right of
annual rent,  the original  right of  burdening land with payment
yearly for the payment of money.

  ANNUITY, contracts. An anuity is a, yearly sum of money granted
by one  party to  another in  fee for life or years, charging the
person of the grantor only. Co. Litt. 144;  1 Lilly's Reg. 89;  2
Bl. Com. 40;  5 M. R. 312;  Lumley on Annuities. 1;  2 Inst. 293;
Davies' Rep. 14, 15.

   2. In  a less  technical sense,  however, when  the  money  is
chargeable on  land and  on the person, it is generally called an
annuity. Doet.  and Stud  Dial. 2,  230;   Roll. Ab.  226. See 10
Watts, 127.

  3. An anuuity is different from a rent charge, with which it is
frequently confounded,  in this;   a  rent  charge  is  a  burden
imposed upon  and issuing  out of  lands, whereas  an annuity  is
chargeable only  upon  the  person  of  the  grantee.  Bac.  Abr.
Annuity, A.  See, for  many, regulations  in England  relating to
annuities, the Stat,. 17 Geo. III. c. 26.

   3. An  annuity may  be created  by contract,  or by  will.  To
enforce the payment of an annuity, the common law gives a writ of
annuity which  may be  brought by  the grantee  or his  heirs, or

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their grantees,  against the grantor and his heirs. The action of
debt cannot be maintained at the common law, or by the Stat. of 8
Anne, c.  14, for the arrears of an annuity devised to A, payable
out of  lands during the life of B, to whom the lands are devised
for life, B paying the annuity out of it, so long as the freehold
estates continues.  4 M. & S. 113;  3 Brod. & Bing. 30;  6 Moore,
336. It  has been  ruled also,  that if  an action  of annuity be
brought, and  the annuity  determines pending  the suit, the writ
faileth forever  because  no  such  action  is  maintainable  for
arrearages only,  but for  the annuity  and the  arrearages.  Co.
Litt. 285, a.

   4. The  first payment  of an annuity is to be made at the time
appointed in  the instrument creating it. In cases where testator
directs the  annuity to  be paid at the end of the first quarter,
or other period before the expiration of the first year after his
death, it  is then  due;   but in  fact it  is not payable by the
executor till  the end  of the  year. 3 Mad. Ch. R. 167. When the
time is  not  appointed,  as  frequently  happens  in  will,  the
following distinction  is presumed  to exist.  If the  bequest be
merely in  the form  of an  annuity as  a gift  to a  man of  "an
annuity of  one hnndred  dollars for life" the first payment will
be due  at the end of the year after the testator's death. But if
the disposition  be of  a sum  of money,  and the  interest to be
given as  an annuity  to the same man for life, the first payment
will not  accrue before  the expiration  of the second year after
ihe testator's  death. This  distinction, though  stated from the
bench, does  not  appear  to  have  been  sanctioned  by  express
decision. 7 Ves. 96, 97.

   5. The  Civil Code of Louisiana makes the following provisions
in relation to annuities, namely: The contract of annuity is that
by which one party delivers to another a sum of money, and agrees
not to  reclaim it,  so long as the receiver pays the rent agreed
upon. Art. 2764.

  6. This annuity mav be perpetual or for life. Art. 2765.

  7. The amount of the annuity for life can in no case exceed the
double of  the conventional interest. The amount of the perpetual
annuity cannot  exceed the  double of  the conventional interest.
Art. 2766.

  8. Constituted annuity is essentially redeemable. Art. 2767.

   9. The  debtor of  a constituted  annuity may  be compelled to
redeem the  same: 1,  If he  ceases  fulfilling  his  obligations
during three  years: 2,  If he  does  not  give  the  lender  the
securities promised by the contract. Art. 2768.

   10. If the debtor should fail, or be in a state of insolvency,
the capital of the constituted annuity becomes exigible, but only
up to  the amount  at wich it is rated, according to the order of
contribution amongst the creditors. Art. 2769.

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   11. A  similar rule  to that contained in the last article has
been adopted  in England.  See stat. 6 Geo. IV., c. 16, s. 54 and
108;   note to  Ex parte  James, 5  Ves. 708;  l Sup. to Ves. Jr.
431;   note to Franks v. Cooper, 4 Ves. 763;  1 Supp. to Ves. Jr.
308. The  debtor, continues  the Code,  may be  compelled by  his
security to  redeem the  annuity within  the time  which has been
fixed in  the contract,  if any time has been fixed, or after ten
years, if no mention be made of the time in the act. Art. 2770.

   12. The  interest  of  the  sums  lent,  and  the  arrears  of
constituted and  life annuity,  cannot bear interest but from the
day a  judicial demand of the same has been made by the creditor,
and when  the interest  is due  for at  least one whole year. The
parties may only agree, that the same shall not be redeemed prior
to a time which cannot exceed ten years, or without having warned
the creditor  a time  before, which  they shall limit. Art. 2771.
See generally,  Vin. Abr.  Annuity;   Bac. Abr. Annuity and Rent;
Com. Dig.  Annuity;  8 Com. Dig. 909;  Doct. Plac. 84;  1 Rop. on
Leg. 588;   Diet. de Jurisp. aux mots Rentes viageres, Tontine. 1
Harr. Dig. h. t.

   ANNUM DIEM  ET VASTUM,  English law.  The title which the king
acquires in  land, when  a party,  who held  not of  the king, is
attainted of  felony. He  acquires the power not only to take the
profits for a full year, but to waste and demolish houses, and to
extirpate woods and trees.

  2. This is but a chattel interest.

   ANONYMOUS. Without  name. This  word is applied to such.books,
letters or papers, which are published without the author's name.
No man  is bound  to publish his name in connexion with a book or
paper he  has publisbed;  but if the publication is libellous, he
is equally responsible as if his name were published.

   ANSWER, pleading  in equity.  A defence  in writing  made by a
defendant, to  the charges  contained in  a bill  or information,
filed by the plaintiff against him in a court of equity. The word
answer involves  a double  sense;  it is one thing when it simply
replies to  a question,  another when  it meets  a charge;    the
answer in equity includes both senses, and may be divided into an
examination and  a defence.  In that  part which  consists of  an
examination, a  direct and full answer, or reply, must in general
be given  to every question asked. In that part which consists of
a defence, the defendant must state his, case distinctly;  but is
not required  to give  information respecting the proofs that are
to maintain it. Gresl . Eq. Ev. 19.

   2. As a defendant is called by a bill or information to make a
discovery of  the several  cbarges it  contains, he  must do  so,
unless he is protected either by a demurrer a plea or disclaimer.
It may  be laid down as an invariable rule, that whatever part of
a bill  or information  is not  covered by  one of these, must be

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defended by answer. Redesd. Tr. Ch. PI. 244.

   3. In form, it usually begins, 1st, with its title, specifying
which of the defendants it is the answer of, and the names of the
plaintiffs in  the cause  in which it is filed as answer;  2d, it
reserves to the defendant all the advantages which might be taken
by exception  to the  bill;   3d, the  substance of  the  answer,
according to  the defendant's knowledge, remembrance, information
and belief,  then follows,  in which the matter of the bill, with
the interrogatories  founded thereon, are answered, one after the
other, together  with such  additional matter  as  the  defendant
thinks necessary to bring forward in his, defence, either for the
purpose of  qualifying, or ad-ding to, the case made by the bill,
or to  state a new case on his own behalf;  4th, this is followed
by a  general traverse  or denial  of all  unlawful  combinations
charged in  the bill,  and of all other matters therein contained
5th, the answer is always upon oath or affirmation, except in the
case of  a corporation,  in which  case it is under the corporate

   4. In substance, the answer ought to contain, 1st, a statement
of facts  and not  arguments 2d,  a confession  and avoidance, or
traverse and  denial of  the material  parts of  the bill 3d, its
language ought  to be  direct and without evasion. Vide generally
as to  answers, Redes. Tr. Ch. PI. 244 to 254;  Coop. Pl. Eq. 312
to 327;  Beames PI. Eq. 34 et seq.;  Bouv. Inst. Index, h. t. For
an historical  account of  this instrument,  see 2 Bro. Civ. Law,
371, n. and Barton's Hist. Treatise of a Suit in Equity.

   ANSWER, practice. The declaration of a fact by a witness after
a question has been put asking for it.

   2. If  a witness unexpectedly state facts against the interest
of the  party calling  him, other  witnesses may be called by the
same party,  to disprove  those facts.  But the  party calling  a
witness cannot  discredit him,  by calling witnesses to prove his
bad character  for truth  and veracity, or by proving that he has
made statements out of court contrary to what he has sworn on the
trial;  B. N. P.;  for the production of the witness is virtually
an assertion by the party producing him, that he is credible.

   ANTECEDENT. Something that goes before. In the construction of
laws, agreements, and the like, reference is always to be made to
the last  antecedent;   ad proximun  antecedens fiat relatio. But
not only  the antecedents  but  the  subsequent  clauses  of  the
instrument   must    be   considered:    Ex   antecedentibus   et
consequentibus fit optima interpretatio.

   ANTE LITEM  MOTAM. Before  suit  brought,  before  controversy

   ANTEDATE. To, put a date to an instrument of a time before the
time it was written. Vide Date.

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   ANTENATI. Born  before. This term is applied to those who were
born or resided within the United States before or at the time of
the declaration  of independence.  These had  all the  rights  of
citizens. 2 Kent, Com. 51, et seq.

   ANTE-NUPTIAL. What  takes  place  before  marriage;    as,  an
ante-nuptial agreement,  which is an agreement made between a man
and a woman in contemplation of marriage. Vide Settlement.

  ANTHETARIUS, obsolete See Anti-thetarius.

  ANTI-MANlFESTO. The declaration of the reasons which one of the
belligerents publishes,  to show  that  the  war  as  to  him  is
defensive. Wolff, §1187. See Manifesto.

   ANTlCIPATION. The  act of  doing or  taking a thing before its
proper time.

   2. In  deeds of trust there is frequently a provision that the
income of  the estate  shall be  paid by  the trustee as it shall
accrue, and  not by  way of anticipation. A payment made contrary
to such  provision would  not be considered as a discharge of the

   ANTICHRESIS, contracts. A word used in the civil law to denote
the contract  by which  a creditor  acquires the right of reaping
the fruit  or other  revenues of  the immovables  given to him in
pledge, on  condition of deducting, annually, their proceeds from
the interest,  if any  is due  to him,  and afterwards  from  the
principal of  his debt.  Louis. Code,  art. 3143  Dict. de Juris.
Antichrese, Mortgage;   Code Civ. 2085. Dig. 13, 7, 7 ;  4, 24, 1
Code, 8, 28, 1.

   ANTINOMY. A  term used in the civil law to signify the real or
apparent contradiction  between two  laws or two decisions. Merl.
Repert. h. t. Vide Conflict of Laws.

   ANTIQUA CUSTOMA,  Eng. law.  A duty  or imposition  which  was
collected on  wool, wool-felts,  and leather, was so called. This
custom was  called nova  customa until  the 22  Edw. I., when the
king, without  parliament, set  a new  imposition of 40s. a sack,
and then,  for the  first time, the nova customa went by the name
of antiqua customa. Bac. Ab. Smuggling &c. B.

   ANTIQUA STATUTA.  In England the statutes are divided into new
and ancient  statutes;  since the time of memory;  those from the
time 1  R. I. to E. III., are called antiqua statuta - those made
since, nova statuta.

   ANTITHETARIUS, old  English law.  The name  given to a man who
endeavors to  discharge himself  of the  crime  of  which  he  is
accused, by  retorting the charge on the accuser. He differs from
an approver  (q, v.) in this, that the latter does not charge the
accuser, but others. Jacob's Law Dict.

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   APARTMENTS. A  part of a house occupied by a person, while the
rest is  occupied by  another, or  others. 7  Mann. & Gr. 95 ;  6
Mod. 214 ;  Woodf. L. & T. 178. See House.

   APOSTACY, Eng.  law. A  total renunciation  of  the  Christian
religion, and  differs from  heresy.  (q.  v.)  This  offence  is
punished by  the statute  of  9  and  10  W.  III.  c.  32.  Vide

   APOSTLES. In  the British  courts of  admiralty, when  a party
appeals from  a decision made against him, he prays apostles from
the judge,  which are  brief letters  of dismission,  stating the
case, and  declaring that  the  record  will  be  transmitted.  2
Brown's Civ. and Adm. Law, 438;  Dig. 49. 6.

   2. This  term was  used in  the civil  law. It is derived from
apostolos, a  Greek word,  which signifies  one sent, because the
judge from  whose sentence  an  appeal  was  made,  sent  to  the
superior judge  these letters  of dismission,  or apostles. Merl.
Rep. mot Apotres.

   APPARATOR or  APPARITOR, eccles.  law. An officer or messenger
employed to serve the process of the spiritual courts in England.

  APPARENT. That which is manifest what is proved. It is required
that all  things upon  which a court must pass, should be made to
appear, if matter in pays, under oath if matter of record, by the
record. It  is a  rule that those things which do not appear, are
to be  considered as  not existing  de non  apparentibus  et  non
existentibus eadem  est ratio.  Broom's Maxims, 20, What does not
appear, does not exist;  quod non apparet, non est.

   APPARLEMENT. Resemblance.  It  is  said  to  be  derived  from
pareillement, French, in like manner. Cunn. Dict. h. t.

   APPEAL, English  crim. law.  The accusation  of a person, in a
legal form,  for a  crime committed by him;  or, it is the lawful
declaration of  another man's crime, before a competent judge, by
one who sets his name to the declaration, and undertakes to prove
it, upon  the penalty which may ensue thereon. Vide Co. Litt. 123
b, 287  b;   6 Burr.  R. 2643, 2793;  2 W. Bl. R. 713;  1 B. & A.
405. Appeals  of murder,  as well as of treason, felony, or other
offences, together  with wager  of battle, are abolished by stat.
59 Geo. M. c. 46.

   APPEAL, practice.  The act  by which  a party  submits to  the
decision of  a superior court, a cause which has been tried in an
inferior tribunal. 1 S. & R. 78 Bin. 219;  3 Bin. 48.

   2. The  appeal generally  annuls the  judgment of the inferior
court, so far that no action can be taken upon it until after the
final decision  of the  cause. Its  object is to review the whole
case, and to secure a just judgment upon the merits.

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  3. An appeal differs from proceedings in error, under which the
errors committed in the proceedings are examined, and if any have
been committed  the first  judgment is  reversed;  because in the
appeal the  whole case  is exainined  and tried  as if it had not
been tried  before. Vide  Dane's Ab.  h. t.;   Serg.  Const.  Law
Index, h. t. and article Courts of the United States.

   APPEARANCE, practice.  Signifies the  filing common or special
bail to the action.

  2. The appearance, with all other subsequent pleadings supposed
to take  placein court,  should (in  accordance with  the ancient
practice) purport  to be  in term  time. It  is to  be  observed,
however,  that   though  the  proceedings  are  expressed  as  if
occurring in term time, yet, in fact, much of the business is now
done, in periods of vacation.

   3. The appearance of the parties is no longer (as formerly) by
the actual  presence in  court, either  by  themselves  or  their
attorneys;   but, it  must be  remembered, an  appearance of this
kind is  still supposed,  and exists in contemplation of law. The
appearance is  effected on  the part of the defendant (when be is
not arrested)  by making  certain formal  entries in  the  proper
office of  the court, expressing his appearance;  5 Watts & Serg.
215;   1 Scam. R. 250;  2 Seam. R. 462;  6 Port. R. 352;  9 Port.
R. 272;   6 Miss. R. 50;  7 Miss. R. 411;  17 Verm. 531;  2 Pike,
R. 26;   6  Ala. R.  784;   3 Watts & Serg. 501;  8 Port. R. 442;
or, in case of arrest, it may be considered as effected by giving
bail to  the action.  On the  part of  the plaintiff no formality
expressive of appearance is observed.

   4. In general, the appearance of either party may be in person
or by  attorney, and,  when by attorney, there is always supposed
to be  a warrant  of attorney  executed to  the attorney  by  his
client, authorizing such appearance.

   5. But  to this  general rule  there are  various  exceptions;
persons devoid  of understanding,  as idiots,  and persons having
understanding, if  they are  by law  deprived of  a  capacity  to
appoint an attorney, as married women, must appear in person. The
appearance of such persons must purport, and is so entered on the
record, to  be in person, whether in fact an attorney be employed
or not.  See Tidd's Pr. 68, 75;  1 Arch. Pract. 22;  2 John. 192;
8 John.  418;  14 John. 417;  5 Pick. 413;  Bouv. Inst. Index, h.

   6. There  must be  an appearance  in person  in the  following
cases: 1st.  An idiot  can appear  only  in  person,  and  as,  a
plaintiff he  may sue  in person  or by  his next  friend  2d.  A
married woman,  when sued  without her  hushand, should defend in
person 3  Wms. Saund. 209, b and when the cause of action accrued
before her  marriage, and  she is afterwards sued alone, she must
plead her  coverture in  person, and  not by  attorney. Co. Litt.

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125. 3d. When the party pleads to the jurisdiction, be must plead
in person.  Summ.on Pl.  51;  Merrif. Law of Att. 58. 4th. A plea
of misnomer  must always  be in  person, unless  it be by special
warrant of  attorney. 1  Chit. PI. 398;  Summ. on PI. 50;  3 Wms.
Saund. 209 b.

   7. An  infant cannot  appoint an  attorney;  he must therefore
prosecute or appear by guardian, or prochein ami.

   8. A  lunatic, if  of full  age, may appear by. attorney;  if,
under age, by guardian. 2 Wms. Saund. 335;  Id. 332 (a) n. (4.)

   9. When  an appearance  is lawfully  entered by the defendant,
both parties  are considered as being in court. lmp. Pr. 215. And
if the  defendant pleads  to issue,  defects of process are cured
but not,  if he  demurs to  the process,  (I Lord  Raym. 21,) or,
according to  the practice  of some courts, appears de bene esse,
or otherwise conditionally.

   10. In criminal cases, the personal presence of the accused is
often necessary.  It has  been held,  that if  the  record  of  a
conviction  of  a  misdemeaner  be  removed  by  certiorari,  the
personal presence of the defendant is necessary, in order to move
in arrest.  of judgment:  but, after a special verdict, it is not
necessary that  the defendant should be personally present at the
argument of  it. 2  Burr. 931  1 Bl.  Rep. 209,  S.  C.  So,  the
defendant must appear personally
in court, when an order of bastardy is quashed and the reason is,
he must  enter into a recognizance to abide the order of sessions
below. 1 Bl. Rep. 198.
So, in  a case,  when two justices of the peace, having confessed
an information for mishehaviour in the execution of their office,
and a motion was made to dispense with their personal appearance,
on their  clerks undertaking  in court to answer for their flues,
the court  declared the  rule to  be, that although such a motion
was subject  to the  discretion of  the court  either to grant or
refuse it,  in cases  where it is clear that the punishment would
not be corporal, yet it ought to be denied in every case where it
is either  probable or  possible that  the  punishment  would  be
corporal;   and therefore  the motion was overruled in that case.
And Wilmot  and Ashton,  Justices, thought,  that even  where the
punishment would most probably be pecuniary only, yet in offences
of a  very gross  and public nature, the persons convicted should
appear in  person, for  the sake of example and prevention of the
like offences being committed by other persons;  as the notoriety
of being  called up to answer criminally for such offences, would
very much  conduce to  deter others  from venturing to commit the
like. 3 Burr. 1786, 7.

   APPEARANCE DAY.  The day  on which  the parties  are bound  to
appear in  court. This  is regulated  in the  different states by
particular provisions.

     APPELLANT,  practice.  He  who  makes  an  appeal  from  one

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jurisdiction to another.

  APPELLATE JURISDICTION. The jurisdiction which a superior court
has to  bear appeals  of causes which have been tried in inferior
courts. It differs from original jurisdiction, which is the power
to entertain  suits instituted  in  the  first  in  stance.  Vide
Jurisdiction;  Original jurisdiction.

  APPELLEE, practice. The party in a cause against whom an appeal
has been taken.

   APPELLOR. A  criminal who  accuses his  accomplices;   one who
eballenges a jury.

   APPENDANT. An  incorporeal inheritance  belonging  to  another

   2. By  the word  appendant in  a deed, nothing can be conveyed
which is  itself substantial corporeal real property, and capable
of passing  by feoffment  and livery  of seisin:  for one kind of
corporeal  real   property  cannot   be  appendant   to   another
description of the like real property, it being a maxim that land
cannot be appendant to land. Co. Litt. 121;  4 Coke, 86;  8 Barn.
& Cr.  150;   6 Bing.  150. Only, such things can be appendant as
can consistently  be so,  as a  right of  way, and the like. This
distinction is  of importance,  as will  be seen by the following
case. If a wharf with the appurtenances be demised, and the water
adjoining the  wharf were  in tended to pass, yet no distress for
rent on  the demised  premises could  be made  on a  barge on the
water, because  it is  not a  place which could pass as a part of
the thing demised. 6 Bing. 150.

   3. Appendant differs from appurtenant in this, that the former
always arises  from prescription,  whereas an appurtenance may be
created at  any time.  1 Tho.  Co. Litt.  206;  Wood's Inst. 121;
Dane's Abr.  h. t.;   2  Vin. Ab. 594;  Bac. Ab. Common, A 1. And
things appendant  must have  belonged by  prescription to another
principal substantial  thing, which  is considered in law as more
worthy. The principal thing and the appendant must be appropriate
to each  other in  nature and quality, or such as may be properly
used together. 1 Chit. Pr. 154.

   APPENDITIA. From appendo, to hang at or on;  the appendages or
pertinances of  an estate  the appurtenauces  to a dwelling, &c.;
thus pent-houses, are the appenditia domus, &c.

   APPLICATION. The  act of  making a request for something;  the
paper  on  which  the  request  is  written  is  also  called  an
application;   as, an application to chancery for leave to invest
trust  funds;    an  application  to  an  insurance  company  for
insurance. In  the land  law of  Pennsylvania, an  application is
understood to  be a request in writing to have a certain quantity
of land at or near a certain place therein mentioned. 3 Binn. 21;
5 Id. 151;  Jones on Land Office Titles, 24.

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   2. An application for insurance ought to state the facts truly
as to  the object  to be insured, for if any false representation
be made  with a  fraudulent intent,  it will  avoid the policy. 7
Wend. 72.

   3. By  application is  also meant  the use or disposition of a
thing;  as the application of purchase money.

   4. In  some cases  a purchaser  who  buys  trust  property  is
required, to  see to  the application of thee purchase money, and
if be  neglects to  do so,  and it  be  misapplied,  he  will  be
considered as  a trustee of the property he has so purchased. The
subject will  be examined by considering, 1, the kind of property
to be  sold;  2, the cases where the purchaser is bound to see to
the application  of the  purchase money  in  consequence  of  the
wording of the deed of trust.

   5. -  1. Personal  property is  liable, in  the hands  of  the
executor,  for  the  payment  of  debts,  and  the  purchaser  is
therefore exempted from seeing to the application of the purchase
money, although  it may  have been  bequeathed to be sold for the
payment of debts. 1 Cox, R. 145;  2 Dick. 725;  7 John. Ch. Rep.,
150, 160;   11  S. &  R. 377,  385;  2 P. Wms. 148;  4 Bro. C. C.
136;  White's L. C. in Eq. 54;  4 Bouv. Inst. n. 3946.

   6. With  regard to real estate, which is not a fund at law for
the payment  of debt's,  except where  it is  made so  by act  of
assembly, or  by direction in the will of the testator or deed of
trust, the  purchaser from  an executor  or trustee may be liable
for the  application of  the purchase  money. And  it will now be
proper to consider the cases where such liability exists.

   7. -  2. Upon  the sale  of real estate, a trustee in whom the
legal title  is vested, can it law give a valid discharge for the
purchase money, because he is the owner at law. In equity, on the
contrary, the persons among whom the produce of the sale is to be
distributed are  considered the  owners;   and a  purchaser  must
obtain a discharge from them, unless the power of giving receipts
is either  expressly or by implication given to t-he trustees to,
give receipts  for the  purchase money.  It is,  for this reason,
usual to  provide in  wills and  trust deeds  that the  purchaser
shall not  be required  to see to the application of the purchase

   APPOINTEE. A  person  who  is  appointed  or  selected  for  a
particular purpose;   as  the appointee  under a  power,  is  the
person who is to receive the benefit of the trust or power.

   APPOINTOR. One  authorized by  the donor  under the statute of
uses, to execute
a power. 2 Bouv. Ins. n. 1923.

   APPOINTMENT, chancery practice. The act of a person authorized

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by a  will or other instrument to direct how trust property shall
be disposed  of, directing  such  disposition  agreeably  to  the
general directions of the trust.

   2. The  appointment must  be made  in such a manner as to come
within the spirit of the power. And although at law the rule only
requires that  some allotment,  however small,  shall be given to
each person,  when the  power is  to appoint to and among several
persons;   the rule  in equity  differs, and  requires a real and
substantial portion  to each, and a mere nominal allotment to one
is deemed  illusory and fraudulent. When the distribution is left
to discretion,  without any  prescribed rule,  Is to  such of the
children as the trustee shall think proper, he may appoint to one
only;   5 Ves.  857;  but if the words be, 'amongst' the children
as he  should think  proper, each  must have  a  share,  and  the
doctrine of  illusory appointment  applies. 4  Ves. 771 Prec. Ch.
256;   2 Vern.  513. Vide, generally, 1 Supp. to Ves. Jr. 40, 95,
201, 235,  237;   2 Id.  1 27;  1 Vern. 67, n.;  1 Ves. Jr. 31 0,
n.;   4 Kent, Com. 337;  Sugd. on Pow. Index, h. t.;  2 Hill. Ab.
Index, h. t.;  2 Bouv. Inst. n. 1921, et seq.

   APPOINTMENT, government,  wills. The  act by which a person is
selected and  invested with  an office;   as the appointment of a
judge, of  which the  making out  of his commission is conclusive
evidence. 1 Cranch, 137, 155;  10 Pet. 343. The appointment of an
executor, which  is done  by nominating  him as such in a will or

   2. By  appointment is  also understood  a  public  employment,
nearly synonymous  with office. The distinction is this, that the
term appointment  is  of  a  more  extensive  signification  than
office;   for example,  the act of authorizing a man to print the
laws of the United States by authority, and the right conveyed by
such an  act, is  an appointment,  but the right thus conveyed is
not an  office. 17  S. &  R. 219,  233. See 3 S. & R. 157;  Coop.
Just. 599, 604.

  APPORTIONMENT, contracts. Lord Coke defines it to be a division
or partition  of a  rent, common,  or the  like, or the making it
into parts.  Co .  Litt. 147.  This definition  seems incomplete.
Apportionment frequently denotes, not, division, but distribution
;   and in  its ordinary technical sense, the distribution of one
subject  in  proportion  to  another  previously  distributed.  1
Swanst. C. 87, n.

   2. Apportionment  will here  be considered only in relation to
contracts, by  talking a  view, 1, of such as are purely personal
and, 2, of such as relate to the realty.

   3. -  1. When  a Purely  personal contract  is entire  and not
divisible in its nature, it is manifest it cannot be apportioned;
as when  the subject  of the contract is but one thing, and there
is but  one creditor  and one  debtor, neither  can apportion the
obligation without  the consent  of the  other. In  such case the

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creditor cannot  force his  debtor to  pay him a part of his debt
only, and  leave the other part unpaid, nor can the debtor compel
his creditor  to receive  a part  only of  what is  due to him on
account of  his claim.  Nor can the assignee of a part sustain an
action for such part. 5 N. S. 192.

   4. When  there is  a special  contract between the parties, in
general no compensation can be received unless the whole contract
has been  actually fulfilled. 4 Greenl. 454;  2 Pick. R. 267;  10
Pick. R. 209;  4 Pick. R. 103;  4 M'Cord, R. 26, 246;  6 Verm. R.
35.  The   subject  of   the  contract  being  a  complex  event,
constituted by  the performance  of various  acts, the  imperfect
completion of the event, by the performance of only some of those
acts, cannot,  by virtue of that contract, of which it is not the
subject, afford  a title  to  the  whole,  or  any  part  of  the
stipulated benefit.  See 1 Swanst. C. 338, n. and the cases there
cited;   Story, Bailm. §441;  Chit. Contr. 168;  3 Watts, 331;  2
Mass. 147,  436;  3 Hen. & Munf. 407;  2 John. Cas. 17;  13 John.
R. 365;  11 Wend. 257;  7 Cowen, 184;  8 Cowen, 84;  2 Pick. 332.
See generally  on the  subject of  the apportionment, of personal
obligations, 16  Vin. Ab.  138;  22 Vin. Ab. 13;  Stark. Ev. part
4, p. 1622;  Com. Dig. Chancery, 2 E and 4 N 5;  3 Chit. Com. Law
129;  Newl. Contr. 159;  Long on Sales, 108. And for the doctrine
of the  civil law, see Dumoulin, de dividuo et individuo, part 2,
n. 6,  7;   Toull. Dr.  Civ. Fr.  liv. 3, tit 3, c. 4, n. 750, et

   5. -  2. With regard to rents, the law is different. Rents may
in general  be apportioned,  and this  may take  place in several
ways;   first, by  the act  of the landlord or reversioner alone,
and secondly,  by virtue of the statute of 11 Geo. II., c. 19, s.
15, or by statutes in the several states in which its
principles have been embodied.

   6. -  1. When  there is a subsisting obligation on the part of
the tenant  to pay  a certain  reat, the reversioner may sell his
estate in  different parts,  to as  many persons  as he  may deem
proper, and  the lessee  or tenant will be bound to pay to each a
proportion of  the rent. 3 Watts, 404;  3 Kent Com. 470, 3d. ed.;
Co. Litt.  158 a;   Gilb.  on Rents,  173;  7 Car. 23;  13 Co. 57
Cro. Eliz.  637, 651;   Archb.  L. &.  T. 172  5 B.  & A. 876;  6
Halst. 262.  It is usual for the owners of the reversion to agree
among themselves  as to the amount which each is to receive;  but
when there  is no  agreement, the rent will be apportioned by the
jury. 3 Kent, Com. 470;  1 Bouv. Inst. n. 697.

   7. -  2. Rent  may be  apportioned as to time by virtue of the
stat. 11  Geo. H., C. 19, s. 15, by which it is provided that the
rent due  by a tenant for life, who dies during the currency of a
quarter, of  a year,  or other division of time at which the rent
was made  payable, shall  be apportioned to the day of his death.
In Delaware,  Missouri, New  Jersey, and New York, it is provided
by statutes, that if the tenant for life, lessor, die on the rent
day, his  executors may  recover the  whole rent;   if  before, a

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proportional part. In Delaware, Kentucky, Missouri, and New York,
when one  is entitled to rents, depending on the life of another,
he may  recover them  notwithstanding the death of the latter. In
Delaware, Kentucky,  Missouri,  and  Virginia,  it  is  specially
provided, that  the hushand,  after the  death of  his wife,  may
recover the  rents of  her lands.  1 Hill.  Ab. c.  16,  §50.  In
Kentucky, the  rent is  to  be  apportioned  when  the  lease  is
determined upon any contingency.

   8. When the tenant is deprived of the land, as by eviction, by
title paramount,  or by quitting the premises with the landlord's
consent, in  the absence  of any  agreement to  the contrary, his
obligation to  pay rent ceases, as regards the current quarter or
half year,  or other day of payment, as the case may be. But rent
which is  due may  be recovered.  Gilb. on  Rents, 145;   3 Kent,
Comm. 376;   4  Wend. 423;   8 Cowen, 727 1 Har. & Gill, 308;  11
Mass. 493.  See 4  Cruise's Dig. 206;  3 Call's R. 268;  4 M'Cord
447;  1 Bailey's R. 469;  2 Bouv. Inst. n. 1675, et seq.

   APPOSAL OF SHERIFFS, English law. The charging them with money
received upon account of the Exchequer. 22 Car. II.

  APPOSER, Eng. law. An officer of the Court of Exchequer, called
the foreign apposer.

   APPOSTILLE, French  law. Postil.  In  general  this  means  an
addition or annotation made in the margin of an act, [contract in
writing,] or of some writing. Mer. Rep.

  APPRAISEMENT. A just valuation of property.

   2. Appraisements  are required  to be  made of the property of
persons dying  intestate, of insolvents and others;  an inventory
(q. v.)  of the  goods ought to be made, and a just valuation put
upon them.  When property  real or  personal is  taken for public
use, an  appraisement of  it is  made, that the owner may be paid
it's value.

   APPRAISER, practice. A person appointed by competent authority
to appraise or value goods;  as in case of the death of a person,
an appraisement  and inventory must be made of the goods of which
he died  possessed, or  was entitled to. Appraisers are sometimes
appointed to  assess the  damage done to property, by some public
work, or to estimate its value when taken for public use.

   APPREHENSION, practice. The capture or arrest of a person. The
term apprehension  is applied  to criminal  cases, and  arrest to
civil cases;   as,  one having  authority  may  arrest  on  civil
process, and apprehend on a criminal warrant.

   APPRENTICE, person,  contracts. A  person bound in due form of
law to  a master,  to learn  from him his art, trade or business,
and to serve him during the time of his apprenticeship. (q. v.) 1
Bl. Com.  426;   2 Kent,  Com. 211;  3 Rawle, Rep. 307;  Chit. on

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Ap. 4 T. R. 735;  Bouv. Inst. Index, h. t.

   2. Formerly  the name  of  apprentice  en  la  ley  was  given
indiscriminately to  all students  of law. In the reign of Edward
IV. they  were sometimes called apprentice ad barras. And in some
of the ancient law writers, the term apprentice and barrister are
synonymous. 2 Inst. 214;  Eunom. Dial, 2, §53, p. 155.

   APPRENTICESHIP, contracts.  A contract  entered into between a
person who  understands some  art, trade  or business, and called
the master,  and another  person commonly  a minor, during his or
her minority,  who is  called the apprentice, with the consent of
his or  her parent  or next friend by which the former undertakes
to teach  such minor  his art,  trade or  business, and to fulfil
such other  covenants as  may be  agreed upon;   and  the  latter
agrees to  serve the  master during a definite period of time, in
such  art,   trade  or   business.  In   a  common  indenture  of
apprenticeship, the  father is  bound for  the performance of the
covenants by the son. Daug. 500.

   2. The  term during  which the  apprentice is to serve is also
called his apprenticeship. Pardessus, )Dr. Com. n. 34.

   3. This  contract is  generally entered  into by  indenture or
deed, and  is to  continue no  longer than  the minority  of  the
apprentice. The  English statute  law as to binding out minors as
apprentices to  learn some  useful art,.  trade or  business, has
been generally adopted in the United States, with some variations
which cannot, be noticed here. 2 Kent, Com. 212.

   4. The  principal duties  of the  parties are as follows: 1st,
Duties of  the master.  He is bound to instruct the apprentice by
teaching him, bona fide, the knowledge of the art of which he has
undertaken to teach him the elements. He ought to, watch over the
conduct of  the apprentice, giving him prudent advice and showing
him a  good example,  and fulfilling  towards him the duties of a
father, as  in  his  character  of  master,  he  stands  in  loco
parentis. He  is also required to fulfil all the covenants he has
entered into  by the  indenture. He must not abuse his authority,
either by bad treatment, or by employing his apprentice in menial
employments, wholly  unconnected with  the  business  he  has  to
learn. He  cannot dismiss his apprentice except by application to
a competent  tribunal, upon  whose, decree  the indenture  may be
cancelled. But  an infant  apprentice is  not capable  in law  of
consenting to  his own  discharge.  1  Burr.  501.  Nor  can  the
justices, according  to  some  authorities,  order  money  to  be
returned on  the discharge  of an apprentice. Strange, 69 Contra,
Salk. 67,  68, 490;   11  Mod. 110  12 Mod.  498, 553.  After the
apprenticeship is  at an  end, he cannot retain the apprentice on
the ground  that  he  has  not  fulfilled  his  contract,  unless
specially authorized by statute.

   5. -  2d. Duties  of the apprentice. An apprentice is bound to
obey his  master in  all his  lawful commands,  take care  of his

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property, and  promote his  interest, endeavor to learn his trade
or business,  and perform  all the covenants in his indenture not
contrary to  law. He  must not  leave his master's service during
the term  of the  apprenticeship. The  apprentice is  entitled to
payment for  extraordinary services, when promised by the master;
1 Penn.  Law Jour.  368. See  1 Whart.  113;   and even  when  no
express promise  has been  made, under  peculiar circumstances. 2
Cranch, 240,  270;   3 Rob.  Ad. Rep. 237;  but see 1 Whart, 113.
See generally,  2 Kent,  Com.  211-214;    Bac.  Ab.  Master  and
Servant;   1 Saund. R. 313, n. 1, 2, 3, and 4;  3 Rawle, R. 307 3
Vin. Ab.  19;  1 Bouv. Inst. n. 396, et seq. The law of France on
this subject  is strikingly  similar to our own. Pardessus, Droit
Com. n. 518-522.

  6. Apprenticeship is a relation which cannot be assigned at the
common law 5
Bin. 428  4 T.  R. 373;   Doug.  70 3  Keble, 519;   12 Mod. 554;
although the  apprentice may  work with  a second master by order
and consent  of the  first, which is a service to the first under
the indenture.  4 T.  R. 373. But, in Pennsylvania and some other
states  the   assignment  of   indentures  of  apprenticeship  is
authorized by  statute. 1 Serg. & R. 249;  3 Serg. & R. 161, 164,

   APPRIZING. A  name for an action in the Scotch law, by which a
creditor formerly  carried off  the  estates  of  his  debtor  in
payment of  debts due  to him in lieu of which, adjudications are
now resorted to.

   APPROBATE AND  REPROBATE. In  Scotland this  term is  used  to
signify to  approve and  reject. It  is a  maxim quod approbo non
reprobo. For  example, if  a testator give his property to A, and
give A's  property to  B, A shall not be at liberty to approve of
the will  so far  as the legacy is given to him, and reject it as
to the  bequest of  his property  to B  in other words, he cannot
approve and reject the will. 1 Bligh. 21;  1 Bell's Com. 146.

   APPROPRIATION, contracts.  The application of the payment of a
sum of money, made by a debtor to his creditor, to one of several

  2. When a voluntary payment is made, the law permits the debtor
in the  first place, or, if he make no choice, then it allows the
creditor to  make an  appropriation of  such payment to either of
several debts which are due by the debtor to the creditor. And if
neither make an appropriation, then the law makes the application
of such  payment. This rule does not apply to payments made under
compulsory process  of law.  10 Pick.  129. It  will be proper to
consider, 1, when the debtor may make the appropriation;  2, when
the creditor may make it;  3, when it will be made by law.

  3. - 1. In general the appropriation may be made by the debtor,
but  this  must  be  done  by  his  express  declaration,  or  by
circumstances from  which his intentions can be inferred. 2 C. M.

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& R.  723;   14 East,  239;   1 Tyrw. & Gr. 137;  15 Wend. 19;  5
Taunt. 7  Wheat. 13;   2 Ear. & Gill, 159;  S. C. 4 Gill & Johns.
361;   1 Bibb,  334;  5 Watts, 544;  12 Pick. 463;  20 Pick. 441;
2 Bailey,  617;   4 Mass. 692;  17 Mass. 575. This appropriation,
it seems,  must be  notified to the creditor at the time;  for an
entry made  by  the  debtor  in  his  own  books,  is  not  alone
sufficient to  determine the  application of the payment. 2 Vern.
606;   4 B.  & C.  715. In  some cases,  in  consequence  of  the
circumstances, the  presumption will be that the payment was made
on account  of one  debt, in preference to another. 3 Caines, 14;
2 Stark.  R. 101.  And in  some cases  the debtor has no right to
make the  appropriation, as,  for example,  to  apply  4  partial
payment to  the liquidation  of the  principal, when  interest is
due. 1 Dall. 124;  1 H. & J. 754;  2 N. & M'C. 395;  1 Pick. 194;
17 Mass. 417.

  4. - 2. When the debtor has neglected to make an appropriation,
the creditor  may, in  general, make  it, but  this is subject to
some exceptions.  If, for  example, the  debtor owes  a  debt  as
executor,  and   one  in  his  own  right,  the  creditor  cannot
appropriate a  payment to  the liquidation of the former, because
that may  depend on the question of assets. 2 Str. 1194. See 1 M.
& Malk.
40;  9 Cowen, 409;  2 Stark. R. 74;  1 C. & Mees. 33.

   5. Though  it is  not clearly  settled in  England  whether  a
creditor is  bound to make the appropriation immediately, or at a
subsequent time  Ellis on  D. and  C. 406-408  yet in  the United
States, the  right to  make the  application at any time has been
recognized, and  the creditor  is not  bound to make an immediate
election. 4 Cranch, 317;  9 Cowen, 420, 436. See 12 S. & R. 301 2
B. & C. 65;  2 Verm. 283;  10 Conn. 176.

   6. When  once made, the appropriation cannot be changed;  and,
rendering an  account,  or  bringing  suit  and  declaring  in  a
particular way,  is evidence of such appropriation. 1 Wash. 128 3
Green. 314;  12

   APPROPRIATION, contracts.  The application of the payment of a
sum of money, made by a debtor to his creditor, to one of several

  2. When a voluntary payment is made, the law permits the debtor
in the  first place, or, if he make no choice, then it allows the
creditor to  make an  appropriation of  such payment to either of
several debts which are due by the debtor to the creditor. And if
neither make an appropriation, then the law makes the application
of such  payment. This rule does not apply to payments made under
compulsory process  of law.  10 Pick.  129. It  will be proper to
consider, 1, when the debtor may make the appropriation;  2, when
the creditor may make it;  3, when it will be made by law.

   3.- 1. In general the appropriation may be made by the debtor,

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but  this  must  be  done  by  his  express  declaration,  or  by
circumstances from  which his intentions can be inferred. 2 C. M.
& R.  723;   14 East,  239;   1 Tyrw. & Gr. 137;  15 Wend. 19;  5
Taunt. 7  Wheat. 13;   2 Ear. & Gill, 159;  S. C. 4 Gill & Johns.
361;   1 Bibb,  334;  5 Watts, 544;  12 Pick. 463;  20 Pick. 441;
2 Bailey,  617;   4 Mass. 692;  17 Mass. 575. This appropriation,
it seems,  must be  notified to the creditor at the time;  for an
entry made  by  the  debtor  in  his  own  books,  is  not  alone
sufficient to  determine the  application of the payment. 2 Vern.
606;   4 B.  & C.  715. In  some cases,  in  consequence  of  the
circumstances, the  presumption will be that the payment was made
on account  of one  debt, in preference to another. 3 Caines, 14;
2 Stark.  R. 101.  And in  some cases  the debtor has no right to
make the  appropriation, as,  for example,  to  apply  4  partial
payment to  the liquidation  of the  principal, when  interest is
due. 1 Dall. 124;  1 H. & J. 754;  2 N. & M'C. 395;  1 Pick. 194;
17 Mass. 417.

  4. - 2. When the debtor has neglected to make an appropriation,
the creditor  may, in  general, make  it, but  this is subject to
some exceptions.  If, for  example, the  debtor owes  a  debt  as
executor,  and   one  in  his  own  right,  the  creditor  cannot
appropriate a  payment to  the liquidation of the former, because
that may  depend on the question of assets. 2 Str. 1194. See 1 M.
& Malk.
40;  9 Cowen, 409;  2 Stark. R. 74;  1 C. & Mees. 33.

   5. Though  it is  not clearly  settled in  England  whether  a
creditor is  bound to make the appropriation immediately, or at a
subsequent time  Ellis on  D. and  C. 406-408  yet in  the United
States, the  right to  make the  application at any time has been
recognized, and  the creditor  is not  bound to make an immediate
election. 4 Cranch, 317;  9 Cowen, 420, 436. See 12 S. & R. 301 2
B. & C. 65;  2 Verm. 283;  10 Conn. 176.

   6. When  once made, the appropriation cannot be changed;  and,
rendering an  account,  or  bringing  suit  and  declaring  in  a
particular way,  is evidence of such appropriation. 1 Wash. 128 3
Green. 314;   12  Shepl. 29;  2 N. H. Rep. 193;  2 Rawle, 316;  5
Watts, 544;  2 Wash. C. C. 47;  1 Gilp. 106;  12 S. & R. 305.

   7. When  no application of the payment has been made by either
party, the  law will  appropriate it,  in such  a way  as  to  do
justice and  equity to  both parties.  6 Cranch, 8, 28;  4 Mason,
333;   2 Sumn.  99, 112;   5  Mason, 82;   1  Nev. & Man. 746;  5
Bligh, N.  S. 1;   11  Mass. 300;1  H. &  J. 754;  2 Vern. 24;  1
Bibb. 334;   2 Dea. & Chit. 534;  5 Mason, 11. See 6 Cranch, 253,
264;  7 Cranch, 575;  1 Mer. 572, 605;  Burge on Sur. 126-138;  1
M. &  M. 40.  See 1  Bouv Inst.  n. 8314.     8. In Louisiana, by
statutory enactment,  Civ.  Code,  art.  1159,  et  seq.,  it  is
provided that the debtor of several debts has a right to declare,
when he  makes a  payment, what  debt he  means to discharge. The
debtor of  a debt which bears interest or produces rents, cannot,
without the  consent of  the creditor, impute to the reduction of

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the capital,  any payment  he may make, when there is interest or
rent due.  When the  debtor  of  several  debts  has  accepted  a
receipt, by  which the  creditor has imputed what he has received
to one  of the debts especially, the debtor can no longer require
the imputation  to be made to a different debt, unless there have
been fraud  or surprise  on the  part of  the creditor.  When the
receipt bears  no imputation,  the payment must be imputed to the
debt  which   the  debtor  had  at  the  time  most  interest  in
discharging of  those that are equally due, otherwise to the debt
which has fallen due, though less burdensome than those which are
not yet payable. If the debts be of a like nature, the imputation
is made  to the  less burdensome;  if all things are equal, it is
made proportionally." This is a translation of the Codo Napoleon,
art. 1253-1256 slightly altered. See Poth. Obl. n. 528 translated
by Evans,  and the  notes;   Bac. Ab.  Obligations, F;  6 Watts &
Amer. Law Mag. 31;  1 Hare & Wall. Sel. Dec. 123-158.

   APPROPRIATION, eccl.  law. The setting apart an ecclesiastical
benefice, which  is the  general property  of the  church, to the
perpetual and  proper use  of some  religious  house,  bishop  or
college, dean  and chapter  and the  like. Ayl.  Pat. 86. See the
form of an appropriation in Jacob's Introd. 411.

   TO APPROVE,  approbare. To  increase the profits upon a thing;
as to approve land by increasing the rent. 2 Inst. 784.

   APPROVEMENT, English  crim. law.  The act  by which  a  person
indicted of  treason or  felony,  and  arraigned  for  the  same,
confesses the  same before  any plea pleaded, and accuses others,
his accomplices,  of the  same crime,  in  order  to  obtain  his
pardon. 2  This practice  is disused.  4 Bl. Com. 330 1 Phil. Ev.
37. In  modern practice,  an  accomplice  is  permitted  to  give
evidence against  his associates.  9 Cowen, R. 707;  2 Virg. Cas.
490;  4 Mass. R. 156;  12
Mass. R.  20;  4 Wash. C. C. R. 428;  1 Dev. R. 363;  1 City Hall
Rec. 8.  In Vermont,  on a trial for adultery, it was held that a
particeps criminis was not a competent witness, because no person
can be  allowed to  testify his own guilt or turpitude to convict
another. N. Chap. R. 9.

   APPROVEMENT, English  law. 1.  The inclosing  of  common  land
within the  lord's waste,  so as to leave egress and regress to a
tenant who  is a  commoner. 2. The augmentation of the profits of
land. Stat.  of Merton,  20 Hen. VIII.;  F. N. B. 72 Crompt. Jus.
250;  1 Lilly's Reg. 110.

   APPROVER, Bngl.  crim. law.  One confessing  himself guilty of
felony, and  approving others  of the same crime to save himself.
Crompt. Inst. 250 3 Inst. 129.

   APPURTENANCES. In  common parlance  and legal  acceptation, is
used  to   signify  something   belonging  to  another  thing  as
principal, and  which passes  as incident to the principal thing.
10 Peters,  R. 25;  Angell, Wat. C. 43;  1 Serg. & Rawle, 169;  5

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S. &  R. 110;   5 S. & R. 107;  Cro. Jac. 121 3 Saund. 401, n. 2;
Wood's Inst.  121 Rawle,  R. 342;  1 P. Wms. 603;  Cro. Jac. 526;
2 Co.  32;  Co. Litt. 5 b, 56 a, b;  1 Plowd. 171;  2 Saund. 401,
n. 2;   1 Lev. 131;  1 Sid. 211;  1 Bos. & P. 371 1 Cr. & M. 439;
4 Ad.,  & Ell.  761;   2 Nev.  & M. 517;  5 Toull. n. 531. 2. The
word appurtenances,  at least  in  a  deed,  will  not  pass  any
corporeal real  property,  but  only  incorporeal  easements,  or
rights and  privileges. Co.  Lit. 121;   8  B. & C. 150;  6 Bing.
150;  1 Chit. Pr. 153, 4. Vide Appendant.

  APPURTENANT. Belonging to;  pertaining to of right.

  AQUA. Water. This word is used in composition, as aquae ductus,
&c. 2.  It is  a rule  that water  belongs to  the land  which it
covers, when  it is stationary: aqua cedit solo. But the owner of
running water,  or of a water course, cannot stop it the inferior
inheritance having  a right  to the  flow: aqua  currit et  debet
currere, ut currere solebat.

  AQUAE DUCTUS, civil law. The name of a servitude which consists
in the right to carry water by means of pipes or conduits over or
through the  estate of  another. Dig.  8, 3,  1;    Inst.  2,  3;
Lalaure, Des Serv. c. 5, p. 23.

   AQUAE HAUSTUS,  civil law.  The  name  of  a  servitude  which
consists in  the right  to draw water from the fountain, pool, or
spring of another. Inst. 2, 3, 2;  Dig. 8, 3, 1, 1.

   AQUAE IMMITTENDAE,  Civil law.  The name of a servitude, which
frequently occurs  among neighbors.  It is  the right  which  the
owner of a house, built in such a manner as to be surrounded with
other buildings, so that it has no outlet for its waters, has, to
cast water  out of  his windows  on his  neighbor's roof court or
soil. Lalaure, Des. Serv. 23.

   AQUAGIUM, i.  e. aquae agium. 1. A water course. 2. A toll for

   AQUATIC RIGHTS.  This  is  the  name  of  those  rights  which
individuals have in water, whether it be running, or otherwise.

  ARBITER. One who, decides without any control. A judge with the
most extensive arbitrary powers;  an arbitrator.

  ARBITRAMENT. A term nearly synonymous with arbitration. (q. v.)

   ARBITRAMENT AND AWARD. The name of a plea to an action brought
for the  same cause  which had been submitted to arbitration, and
on which an award had been made. Wats. on Arb. 256.

  ARBITRARY. What depends on the will of the judge, not regulated
or established  by law.  Bacon (Aphor.  8) says,  Optima lex quae
minimum relinquit  arbitrio judicis  et (Aph.  46) optimus judex,
qui mi nimum sibi

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   2. In  all  well  adjusted  systems  of  law  every  thing  is
regulated, and  nothing arbitrary can be allowed;  but there is a
discretion which  is sometimes  allowed by  law which  leaves the
judge free  to act  as  he  pleases  to  a  certain  extent.  See

   ARBITRARY PUNISHMENTS,  practice. Those  punishments which are
left to  the decision  of the  judge, in  distinctiou from  those
which are defined by statute.

   ARBITRATION, practice.  A reference and submission of a matter
in dispute  concerning property,  or of  a personal wrong, to the
decision of one or more persons as arbitrators.

   2. They  are voluntary  or compulsory.  The voluntary  are, 1.
Those made  by  mutual  consent,  in  which  the  parties  select
arbitrators, and bind themselves by bond abide by their decision;
these are made without any rule of court. 3 Bl. Com. 16.

   3. - 2. Those which are made in a cause depending in court, by
a rule  of court,  before trial;  these are arbitrators at common
law, and the award is enforced by attachment. Kyd on Awards, 21.

   4. -  3. Those which are made by virtue of the statute, 9 & l0
Will. III.,  c. 15,  by which  it is  agreed to refer a matter in
dispute not  then in  court, to  arbitrators, and  agree that the
submission be  made a  rule of  court, which is enforced as if it
had been  made a  rule of  court;   Kyd on Aw. 22;  there are two
other voluntary arbitrations which are peculiar to Pennsylvania.

   5. - 4. The first of these is the arbitration under the act of
June 16,  1836, which  provides that the parties to, any suit may
consent to  a rule  of court for referring all matters of fact in
controversy to  referees, reserving  all matters  of law  for the
decision of  the court, and the report of the referees shall have
the effect of a special verdict, which is to be proceeded upon by
the court  as a special verdict, and either party may have a writ
of error to the judgment entered thereupon

   6. - 5. Those by virtue of the act of 1806, which authorizes "
any person  or  persons  desirous  of  settling  any  dispute  or
controversy, by  themselves, their  agents or attorneys, to enter
into  an   agreement  in   writing,  or  refer  such  dispute  or
controversy to  certain persons  to be  by them  mutually chosen;
and it shall be the duty of the referees to make out an award and
deliver 20it  to the  party in  whose favor  it  shall  be  made,
together with  the written agreement entered into by the parties;
and it shall be the duty of the prothonotary, on the affidavit of
a subscribing witness to the agreement, that it was duly executed
by the  parties, to  file the  same in  Iiis office;   and on the
agreement being  so filed  as aforesaid, he shall enter the award
on record,  which shall  be as  available in law as an award made
under a  reference issued  by the court, or entered on the docket

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by the parties."

     7.  Compulsory   arbitrations  are   perhaps   confined   to
Pennsylvania. Either  party in  a civil  suit or  action,, or his
attorney, may  enter at  the  prothonotary's  office  a  rule  of
reference, wherein  be shall  declare his  determination to  have
arbitrators chosen, on a day certain to be mentioned therein, not
exceeding thirty  days, for  the trial of all matters in variance
in the suit between the parties. A copy of this rule is served on
the opposite  party. On  the day.  appointed  they  meet  at  the
prothonotary's, and  endeavor to agree upon arbitrators;  if they
cannot, the  prothonotary makes out a list on whicb are inscribed
the names  of a  number of  citizens, and the parties alternately
strike each  one of  them  from  the  list,  beginning  with  the
plaintiff, until there are but the number agreed upon or fixed by
the prothonotary  left, who are to be the arbitrators;  a time of
meeting is  then agreed  upon or  appointed by  the prothonotary,
when the  parties cannot  agree,-at which  time the  arbitrators,
after being  sworn or  affirm and equitably to try all matters in
variance submitted  to them, proceed to bear and decide the case;
their award  is filed  in the office of the prothonotary, and has
the effect  of a judgment, subject, however, to appeal, which may
be entered  at any  time within  twenty days  after the filing of
such award. Act of 16th June, 1836, Pamphl. p. 715.

   8. This is somewhat similar to the arbitrations of the Romans;
there the  praetor selected  from a list Of citizens made for the
purpose, one  or more  persons, who were authorized to decide all
suits submitted  to them,  and which had been brought before him;
the authority  which the  proctor gave  them conferred  on them a
public character  and their  judgments were without appeal Toull.
Dr. Civ.  Fr. liv.  3, t. 3, ch. 4, n. 820. See generally, Kyd on
Awards;   Caldwel on  Arbitrations;   Bac. Ab. h. t.;  1 Salk. R.
69, 70-75;   2  Saund. R.  133, n 7;  2 Sell. Pr. 241;  Doct. PI.
96;  3 Vin. Ab. 40;  3 Bouv. Inst. n. 2482.
ARBITRATOR. A  private extraordinary  judge chosen by the parties
who have  a matter  in dispute, invested with power to decide the
same. Arbitrators  are so  called because  they have generally an
arbitrary power,  there being  in common  no  appeal  from  their
sentences, which  are called  awards. Vide Caldw. on Arb. Index,.
h. t.;  Kyd on Awards, Index, h. t. 3 Bouv. Inst. n. 2491.

  ARBOR CONSANGUINITATIS. A table, formed in the shape of a tree,
in order  to show  the genealogy  of a  family. The progenitor is
placed beneath,  as if for the root or stem the persons descended
from  him   are  represented   by  the  branches,  one  for  each
descendant.  For   example  :  if  it  be  desired  to  form  the
genealogical tree of Peter's family, Peter will be made the trunk
of the  tree;   if he  has two  sons, John and James, their names
will be  written on the first two branches, which will themselves
shoot as  many twigs as John and James have children;  these will
produce others, till the whole family shall be represented on the

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  ARCHAIONOMIA. The name of a collection of Saxon laws, published
during the  reign of  the English  Queen Elizabeth,  in the Saxon
language, with  a Latin  version, by  Mr.  Lambard.  Dr.  Wilkins
enlarged this.  collection in  his work,  en-titled  Leges  Anglo
Saxonicae, containing  all the  Saxon laws  extant, together with
those ascribed  to Edward  the Confessor,  in Latin;    those  of
William the  Conqueror, in  Norman and  Latin;   and of Henry I.,
Stephen, and Henry II., in Latin.

   ARCHBISHOP, eccl.  law. The  chief of  the clergy  of a  whole
province. He has the, inspection of the bishops of that province,
as well  as of  the inferior  clergy, and  may  deprive  them  on
notorious cause.  The archbishop  has also  his own  diocese,  in
which he exercises, episcopal jurisdiction, as in his province he
exercises archiepiscopal  authority. 1  Bl. Com.  380;   L. Raym.
541;  Code, 1, 2.

   ARCHES COURT.  The name  of one  of the English ecclesiastical
courts. Vide Court of Arches.

   ARCHIVES. Ancient  cbarters or titles, which concern a nation,
state, or  community, in  their rights  or privileges.  The place
where the  archives are kept bears the same name. Jacob, L. D. h.
t.;  Merl. Rep. h. t.

  ARCHIVIST. One to whose care the archives have been confided.

   ARE. A  French measure of surface. This is a square, the sides
of which  are of  the length  of ten  metres. The are is equal to
1076.441 square feet. Vide Measure.

   AREA. An  enclosed yard  or opening in a house;  an open place
adjoining to a house. 1 Chit. Pr. 176.

  AREOPAGITE. A senator, or a judge of the Areopagus. Solon first
established the  Areopagites;    although  some  say,  they  were
established in  the time of Cecrops, (Anno Mundi, 2553,) the year
that Aaron, the brother of Moses, died;  that Draco abolished the
order, and  Solon reestablished  it. Demosthenes, in his harangue
against  Aristocrates,   before  the  Areopagus,  speaks  of  the
founders of  that tribunal  as unknown. See Acts of the Apostles,
xviii. 34.

   AREOPAGUS. A tribunal established in ancient Athens, bore this
name. It  is variously  represented;   some considered  as having
been a model of justice and perfection, while others look upon it
as an  aristocratic court, which had a very extended jurisdiction
over all  crimes and  offences, and  which exercised  an absolute
power. See Acts 17, 19 and 22.

  ARGENTUM ALBUM. White money;  silver coin. See Alba Firma,

   ARGUMENT, practice.  Cicero  defines  it  ii  probable  reason
proposed in order to induce belief. Ratio probabilis et idonea ad

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faciendam fidem.  The logicians  define it more scientifically to
be  a  means,  which  by  its  connexion  between  two  extremes)
establishes a relation between them. This subject be-longs rather
to rhetoric and logio than to law.

   ARGUMENT LIST.  A list  of cases  put down for the argument of
some point of law.

  ARGUMENTATIVENESS. What is used by way of reasoning in pleading
is so

   2. It  is a rule that pleadings must not be argumentative. For
example, when  a defendant  is sued  for taking away the goods of
the plaintiff,  he must  not plead  that "the plaintiff never had
any goods,"  because although  this may be an infallible argument
it is  not a  good plea. The plea should be not guilty. Com. Dig.
Pleader R 3;  Dougl. 60;  Co. Litt. 126 a.

   ARGUMENTUM AB  INCONVENIENTI. An  argument  arising  from  the
inconvenience which  the construction of the law would create, is
to have effect only in a case where the law is doubtful where the
law is  certain, such  an argument is of no force. Bac. Ab. Baron
and Feme, H.

   ARISTOCRACY. That  form of  government in  which the sovereign
power is  exercised by a small number of persons to the exclusion
of the remainder of the people.

   ARISTODEMOCRACY. A  form of  government  where  the  power  is
divided between the great men of the nation and the people.

   ARKANSAS. The  name of  one of  the new  states of  the United
States. It  was admitted into the Union by the act of congress of
June 15th,  1836, 4  Sharsw. cont.  of Story's  L. U. S. 2444, by
which it is declared that the state of Arkansas shall be one, and
is hereby declared to be one of the United States of America, and
admitted into  the Union  on an  equal footing  with the original
states in all respects whatever.

   2. A  convention assembled  at Little Rock, on Monday, the 4th
day of  January, 1836, for the purpose of forming a constitution,
by which it is declared that " We, the people of the Territory of
Arkansas, by  our representatives  in  convention  assembled,  in
order to  secure to ourselves and our posterity the enjoyments of
all the  rights of  life, liberty  and  property,  and  the  free
pursuit of  happiness do  mutually agree  with each other to form
ourselves into  a free  and independent  state, by  the name  and
style of  `The State of Arkansas.' " The constitution was finally
adopted on the 30th day of January, 1836.

   3. The  powers  of  the  government  are  divided  into  three
departments;   each of  them is  confided to  a separate  body of
magistry, to  wit;   those which  are legislative, to one;  those

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which are  executive, to another and those which are judicial, to
a third.

   4. -  1. The legislative authority of the state is vested in a
general assembly,  which  consists  of  a  senate  and  house  of
representatives. Each  house shall  appoint its own officers, and
shall judge  of the  qualifications, returns and elections of its
own members.  Two-thirds of  each shall constitute a quorum to do
business, but  a smaller  number may adjourn from day to day, and
compel the  attendance of  absent members,  in such  manner,  and
under such penalties, as each house shall provide. Sect. 15. Each
house may  determine the rules of its own proceedings, punish its
own members for disorderly behaviour, and with the concurrence of
two-thirds of the members elected, expel a member;  but no member
shall be  expelled a second time for the same offence. They shall
each from  time to  time publish  a journal of their proceedings,
except such parts as, in their opinion, require secrecy;  and the
yeas and  nays shall  be entered on the journal, at the desire of
any five members. Sect. 16.

   5. The doors of each house while in session, or in a committee
of the  whole shall  be kept  open, except  in  cases  which  may
require  secrecy;    and  each  house  may  punish  by  fine  and
imprisonment, any  person, not  a member,  who shall be guilty of
disrespect to  the  house,  by  any  disorderly  or  contemptuous
behaviour in  their presence,  during, their  session;   but such
imprisonment shall  not extend  beyond the  final adjournment  of
that session. Sect. 17.

   6. Bills  may originate  in either  house, and  be amended  or
rejected in  the other  and every  bill shall  be read  on  three
different days  in each  house, unless  two-thirds of,  the house
where the  same is  pending shall  dispense with  the rules : and
every bill  having passed  both houses  shall be  signed  by  the
president of  the  senate,  and  the  speaker  of  the  house  of
Sect. 81.

   7. Whenever  an officer, civil or military, shall be appointed
by the  joint concurrent  vote of both houses, or by the separate
vote of  either house  of the general assembly, the vote shall be
taken viva voce, and entered on the journal. Sect. 19.

   8. The senators and representatives shall, in all cases except
treason, felony,  or breach  of the  peace,  be  privileged  from
arrest, during  the session  of the  general  assembly,  and  for
fifteen days before the commencement and after the termination of
each session;  and for any speech or debate in either house, they
shall not be questioned in any other place. Sect. 20.

  9. The members of the general assembly shall severally receive,
from the  public treasury, compensation for their services, which
may be  increased or  diminished;   but  no  alteration  of  such
compensation of  members shall take effect during t-he session at

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which it is-made. Sect. 21.

   10. - 1. The senate shall never consist of less than seventeen
nor more than thirty-three members. Art. 4, Sect. 31. The members
shall be  chosen for four years, by the qualified electors of the
several districts.  Art. 4, Sect. 5. No person shall be a senator
who shall  not have  attained the age of thirty years;  Who shall
not be a free white male citizen of the United States;  who shall
not have  been an inhabitant of this state for one year;  and who
shall not,  at the time of his election, have an actual residence
in the district he may be chosen to represent. Art. 4, Sect. 6.

   11. All  impeachments shall  be tried by the senate;  and when
sitting for  that purpose,  the senators  shall  be  on  oath  or
affirmation to do justice according to law and evidence. When the
governor shall  be tried,  the chief justice of the supreme court
shall preside;   and  no person  shall be  convicted without  the
concurrence of  two-thirds of the senators elected. Art. 4, Sect.

  12. - 2. The house of representatives shall consist of not less
than fifty-four, nor more than one hundred representatives, to be
apportioned among  the several  counties in this state, according
to the number of free white male inhabitants therein, taking five
hundred as the ratio, until the number of representatives amounts
to seventy-five;   and  when they  amount to  seventy-five,  they
shall not  be further increased until the population of the state
amounts to five hundred thousand souls. Provided that each county
now organized  shall, although  its population  may not  give the
existing ratio,  always be  entitled to  one representative.  The
members are  chosen every  second year, by the qualified electors
of the several counties. Art. 4, Sect. 2.

   13. The  qualification of an elector is as follows: he must 1,
be a  free, white  male citizen  of the  United States;   2, have
attained the  age of twenty-one years;  3, have been a citizen of
this state six months;  4, be must actually reside in the county,
or district where he votes for an office made elective under this
state or the United States. But no soldier, seaman, or marine, in
the army  of the  United States, shall be entitled to vote at any
election within this state. Art. 4, Sect. 2.

     14.  No   person  shall   be  a   member  of  the  house  of
representatives,  who   shall  not   have  attained  the  age  of
twenty-five years;   who  shall not be a free, white male citizen
of the  United States;   who shall not have been an inhabitant of
this state  one year;   and  who shall  not, at  the time  of his
election, have  an, actual  residence in  the county  he  may  be
chosen to represent. Art. 4,
Sect. 4.

   15. The  house of representatives shall have the sole power of
impeachment. Art. 4, Sect. 27.

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   16. §2. The supreme executive power of this state is vested in
a chief  magistrate, who is styled " The Governor of the State of
Arkansas." Art. 5, Sect. 1.

  17. - 1. He is elected by the electors of the representatives.

   18. -  2. He must be thirty years of age a native born citizen
of Arkansas,  or a native born citizen of the United States, or a
resident of  Arkansas ten  years previous to the adoption of this
constitution, if  not a  native of the United States;  and, shall
have been  a resident of the same at least four years next before
his election. Art. 4, s. 4.

   19. -  3. The  governor holds  his office for the term of four
years from the time of, his installation, and until his successor
shall be  duly qualified;   but  he is not eligible for more than
eight years in any term of twelve years. Art. 5, sect. 4.

   20. -  4. His  principal duties  are enumerated  in the  fifth
article of  the constitution,  and are  as follows:  He Shall  be
commander-in-chief of  the army of this state, and of the militia
thereof, except when they shall be called into the service of the
United States;   s.  6: He  may require  information, in writing,
from the  officers of  the executive  department, on  any subject
relating to the duties of their respective offices;  s. 7. He may
by proclamation,  on extraordinary occasions, convene the general
assembly, at  the seat of government, or at a different place, if
that shall  have become,  since their last adjournment, dangerous
from  an   enemy,  or   from  contagious  diseases.  In  case  of
disagreement between  the two houses, with respect to the time of
adjournment, he  may adjourn  them to such time as he shall think
proper, not  beyond the  day of  the next  meeting of the general
assembly;  s, 8. He shall, from time to time, give to the general
assembly  information   of  the  state  of  the  government,  and
recommend to  their consideration  such measures  as he  may deem
expedient;   s. 9. He shall take care that the laws be faithfully
executed s.  10. In all criminal and penal cases, except those of
treason and  impeachment, he  shall have  power to grant pardons,
after conviction,  and remit  fines and  forfeitures, under  such
rules and  regulations as  shall be prescribed by law in cases of
treason, he  shall have power, by and with the advice and consent
of the
senate, to  grant reprieve  sand pardons;   and  he may,  in  the
recess of  the senate,  respite the sentence until the end of the
next session  of the  general assembly s. 11. He is the keeper of
the seal  of the'  state, which  is to be used by him officially;
s. 12.  Every bill  which shall have passed both houses, shall be
presented to  the governor. If he approve, he shall sign it;  but
if he  shall not  approve  it,  he  shall  return  it,  with  his
objections, to  the house  in which it Shall have originated, who
shall enter  his objections  at large  upon their  journals,  and
proceed to  reconsider it.  If,  after  such  reconsideration,  a
majority of the whole number elected to that house shall agree to
pass the  bill, it  shall be  sent, with  the objections,  to the

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other house,  by which,  likewise, it shall be reconsidered;  and
if approved  by a  majority of  the whole  number elected to that
house it  shall be  a law;   but in such cases, the votes of both
houses shall  be determined  by yeas  and nays;  and the names of
persons voting  for or  against the bill, shall be entered on the
journals of  each house  respectively. If  the bill  shall not be
returned by  the governor  within three  days, Sundays  excepted,
after it  shall have  been presented  to him, the same shall be a
law, in  like manner  as if  be had signed it, unless the general
assembly, by their adjournment, prevent its return;  in such case
it shall  not be  a law;  s. 16. 5. In case of the impeachment of
the governor, his removal from office, death, refusal to qualify,
or absence  from the  state, the  president of  the senate  shall
exercise  all   the  authority  appertaining  to  the  office  of
governor, until  another governor  shall have  been  elected  and
qualified, or  until the  governor  absent  or  impeached,  shall
return or  be acquitted;   s.  18. If,  during the vacancy of the
office  of  governor,  the  president  of  the  senate  shall  be
impeached, removed  from office,  refuse to qualify, resign, die,
or be  absent from  the  state,  the  speaker  of  the  house  of
representatives shall, in like manner, administer the government;
s. 19.

   2l. -  §3. The  judicial power  of this state is vested by the
sixth article of the constitution, as follows

   22. -  1. The  judicial power of this state shall be vested in
one supreme  court, in  circuit courts,  in county courts, and in
justices of  the peace.  The general  assembly may also vest such
jurisdiction as  may be  deemed necessary, in corporation courts;
and, when  they  deem  it  expedient,  may  establish  courts  of

   23. -  2. The supreme court shall be composed of three judges,
one of  whom shall be styled chief justice, any two of whom shall
constitute a  quorum and  -the concurrence of any two of the said
judges shall,  in every  case, be  necessary to  a decision.  The
supreme  court,  except  in  cases  otherwise  directed  by  this
constitution, shall have appellate jurisdiction only, which shall
be coextensive  with the  state, under such rules and regulations
as may, from time to time, be prescribed by law;  it shall have a
general superintending control over all inferior and other courts
of law and equity it shall have power to issue writs of error and
Bupersedeas, certiorari  and habeas  corpus,  mandamus,  and  quo
warranto, and other remedial writs, and to hear and determine the
same;   said judges shall be conservators of the peace throughout
the state,  and shall  severally have  power to  issue any of the
aforesaid writs.

   24. -  3. The  circuit court  shall have jurisdiction over all
criminal cases  whicb shall  not be otherwise provided for by law
and exclusive  original jurisdiction  of all  crimes amounting to
felony.at common  law;   and original  jurisdiction of  all civil
cases which shall not be cognizable before justices of the peace,

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until otherwise  directed by  the general assembly;  and original
ju-risdiction in  all  matters  of  contract)  when  the  sum  in
controversy is  over one hundred dollars. It shall hold its terms
at such place in each county, as may be by law directed.

   25. -  4. The state shall be divided into convenient circuits,
each to  consist of  not less  than five,  nor  more  than  seven
counties contiguous  to each  other, for  each of  which a  judge
shall be  elected, who,  during his  continuance in office, shall
reside and  be a  conservator of the peace within the circuit for
which he shall have been elected.

   26. -  5. The  circuit courts  shall exercise a superintending
control over  the county  courts, and over justices of the peace,
in each  county in  their respective  circuits;   and shall  have
power to issue all the necessary writs to carry into effect their
general and specific powers.

   27. - 6. Until the general assembly shall deem it expedient to
establish courts  of chancery,  the  circuit  courts  shall  have
jurisdiction in  matters of  equity, subject  to  appeal  to  the
supreme court, in such manner as may be prescribed by law.

   28.-7. The  general asserably  shall, by  joint vote  of  both
houses, elect  the judges  of the  supreme and  circuit courts, a
majority of  the whole  number in joint vote being necessary to a
choice. The  judges of the supreme court-shall be at least thirty
years of age;  they shall hold their offices for eight years from
the date  of their  commissions. The judges of the circuit courts
shall be  at least twenty-five years of age, and shall be elected
for the term of four years from the date of their commissions.

   29. - 8. There shall be established in each county, a court to
be holden  by the  justices of  the peace,  and called the county
court, which  shall have jurisdiction in all matters relating, to
county taxes,  dishursements of money for county purposes, and in
every  other   case  that   may  be  necessary  to  the  internal
improvement and local concerns of the respective counties.

  30. - 9. There shall be elected by the justices of the peace of
the respective  counties, a  presiding judge of the county court,
to be  commissioned by  the governor, and hold his office for the
term of  two  years,  and  until  his  successor  is  elected  or
qualified. He  shall, in  addition to  the  duties  that  may  be
required of  him by  law, as presiding judge of the county court,
be a judge of the court of probate, and have such jurisdiction in
matters relative  to the  estates of deceased persons, executors,
administrators, and guardians, as may be prescribed by law, until
otherwise directed by the general assembly.

   31.- 10.  No judge shall preside in the trial of any cause, in
the event  of which  he may be interested, or where either of the
parties shall be connected with him by affinity or consanguinity,
within such  degrees as  may be proscribed by law, or in which he

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shall have  been of  counsel, or  have presided  in any  inferior
court, except by consent of all the parties.

  32. - 11. The qualified voters in each township shall elect the
justices of  the peace  for their respective townships. For every
fifty voters  there may  be elected  one justice  of  the  peace,
provided, that  each township,  however  small,  shall  have  two
justices of the peace. Justices of the peace shall be elected for
two years,  and shall be commissioned by the governor, and reside
in the  townships for  which they shall have been elected, during
their continuance in office. They shall have individually, or two
or more  of them  jointly, exclusive original jurisdiction in all
matters of contract, except in actions of covenant, where the sum
in controversy  is of  one hundred dollars and under. Justices of
the peace shall in no case have jurisdiction to try and determine
any criminal  case or  penal offence  against the state;  but may
sit as  examining courts,  and commit, discbarge, or recognize to
the court  having  jurisdiction,  for  further  trial,  offenders
against the  peace. For  the foregoing  purposes they  shall have
power to  issue all  necessary process they shall also bave power
to bind to keep the peace, or for good behaviour.

  ARM OF THE SEA. Lord Coke defines an arm of the sea to be where
the sea  or tide  flows or  reflows. Constable's Case, 5 Co. 107.
This term  includes bays, roads, creeks, coves, ports, and rivers
where the  water flows  and reflows, whether it be salt or fresh.
Ang. Tide  Wat. 61.  Vide Creek;    Haven;    Navigable;    Port;
Reliction;  River;  Road.

   ARMISTICE. A  cessation  of  hostilities  between  belligerent
nations for  a considerable time. It is either partial and local,
or general. It differs from a mere suspension of arms which takes
place to  enable the  two armies to bury their dead, their chiefs
to hold  conferences or  pourparlers, and the like. Vattel, Droit
des Gens,  liv. 3,  c. 16,  §233. The  terms truce,  (q. v.)  and
armistice, are sometimes used in the same sense. Vide Truce.

   ARMS. Any  thing that a man wears for his defence, or takes in
his hands,  or uses  in his  anger, to  cast  at,  or  strike  at
another. Co.  Litt. 161  b, 162  a;   Crompt. Just. P. 65;  Cunn.
Dict. h. t.

   2. The  Constitution of  the United  States, Amendm.  art.  2,
declares, "that  a well  regulated militia being necessary to the
security of  a free  state, the  right of  the people to keep and
bear arms  shall not  be infringed."  In Kentucky, a statute " to
prevent persons  from wearing  concealed arms," has been declared
to be  unconstitutional;   2 Litt.  R. 90;   while  in Indiana  a
similar statute  has been  holden  valid  and  constitutional.  3
Blackf. R.  229. Vide  Story, Const.-  §1889, 1890 Amer. Citizen,
176;  1 Tuck. Black. App. 300 Rawle on Const. 125.

   ARMS, heraldry. Signs of arms, or drawings painted on shields,
banners, and  the  like.  The  arms  of  the  United  States  are

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described in  the Resolution  of Congress, of June 20, 1782. Vide
Seal of the United States.

   ARPENT. A  quantity of land containing a French acre. 4 Hall's
Law Journal, 518.

  ARPENTATOR, from arpent. A measurer or surveyor of land.

   ARRAIGNMENT, crim.  law practice. Signifies the calling of the
defendant to  the bar  of the  court, to  answer  the  accusation
contained in the indictment. It consists of three parts.

   2. -  1. Calling  the defendant  to the  bar by  his name, and
commanding him to hold up his hand;  this is done for the purpose
of completely  identifying the  prisoner, as  the person named in
the indictment;   the  holding 20up  his hand  is  not,  however,
indispensable, for if the prisoner should refuse to do so, he may
be identified  by any admission that he is the person intended. 1
Bl. Rep. 3.

   3. -  2. The  reading of the indictment to enable him fully to
understand, the  charge to  be produced against him;  The mode in
which it is read is, after' saying, " A B, hold up your hand," to
proceed, "you  stand indicted  by the  name of A B, late of, &c.,
for that  you on,  &c." and  then go  through the  whole  of  the

   4. -  3. After  this is  concluded, the  clerk proceeds to the
third part,  by adding, " How say you, A B, are you guilty or not
guilty?" Upon  this, if  the prisoner,  confesses the charge, the
confession is recorded, and nothing further is done till judgment
if, on  the contrary,  he answers  "not  guilty",  that  plea  is
entered for  him, and the clerk or attorney general, replies that
he is  guilty;  when an issue is formed. Vide generally, Dalt. J.
h. t.;   Burn's  J. h. t.;  Williams;  J. h. t.;  4 Bl. Com. 322;
Harg. St.  Tr. 4  vol. 777,  661;  2 Hale, 219;  Cro. C. C. 7;  1
Chit. Cr. Law, 414.

   ARRAMEUR, maritime  law. The  name of  an ancient officer of a
port, whose business was to load and unload vessels.

   2. In the Laws of Oleron, art 11, (published in English in the
App. to  1 Pet.  Adm. R.  xxv.) some account of arrameurs will be
found in  these words: " There were formerly, in several ports of
Guyenne, certain  officers called arrameurs, or stowers, who were
master-carpenters by  profession, and were paid by the merchants,
who loaded  the ship.  Their business  was to  dispose right, ana
Stow closely,  all goods  in  casks,  bales,  boxes,  bundles  or
otherwise to  balance both  sides, to  fill up the vacant spaces,
and manage  every thing  to the  best advantage.  It was riot but
that the greatest part of the ship's crew understood this as well
as these stowers but they would not meddle with it, nor undertake
it, to  avoid falling  under the merchant's displeasure, or being
accountable for any ill accident that might.happen by that means.

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There were also sacquiers, who were very ancient officers, as may
be seen  in the  14th book  of  the  Theodosian  code,  Unica  de
Saccariis Portus  Romae, lib.  14. Their business was to load and
unload vessels  loaded with  salt, corn,  or fish, to prevent the
ship's crew  defrauding the  merchant by  false tale, or cheating
him of his merchandize otherwise." See Sacquier;  Stevedore.

   ARRAS, Span.  law. The property contributed by the hushand, ad
sustinenda onera  matrimonii, is  called arras.  The  hushand  is
under no  obligation to  give arras,  but it is a donation purely
voluntary. He is not permitted to give in arras more than a tenth
of his property. The arras is the exclusive property of the wife,
subject to  the hushand's  usufruct during his life. Burge on the
Confl. of Laws, 417.

   2. By  arras is also understood the donation which the hushand
makes to  his wife,  by reason  or on account of marriage, and in
consideration of  the dote,  or portion,  which be  receives from
her. Aso & Man. Inst. h. t. 7, c. 3.

   ARRAY, practice. The whole body of jurors summoned to attend a
court, as  -they are  arrayed or  arranged  on  the  panel.  Vide
Challenges, and  Dane's Ab.  Index, h. t.;  1 Chit. Cr. Law, 536;
Com. Dig. Challenge, B.

   ARREARAGE. Money remaining unpaid after it becomes due as rent
unpaid interest  remaining due  Pow. Mortgages,  Index, h. t.;  a
sum of  money remaining in the hands of an accountant. Merl. Rep.
h. t.;  Dane's Ab. Index, h. t.

   ARREST. To  stop;  to seize;  to deprive one of his liberty by
virtue of legal authority.

   ARREST IN CIVIL CASES, practice. An arrest is the apprehension
of a person by virtue of a lawful authority, to answer the demand
against him in a civil action.

   2. To constitute an arrest, no actual force or manual touching
of the  body is  requisite;   it is  sufficient if  the party  be
within the  power of  the officer, and submit to the arrest. 2 N.
H. Rep.  318;   8 Dana,  190;   3 Herring.  416;   1 Baldw.  239;
Harper, 453;   8  Greenl. 127;    1  Wend.  215  2  Blackf.  294.
Barewords, however,  will not  make an arrest, without laying the
person or  otherwise confining him. 2 H. P. C. 129 1 Burn's Just.
148;   1  Salk.  79.  It  is  necessarily  an  assault,  but  not
necessarily a battery. Cases Temp. Hardw.

  3. Arrests are made either on mesne or final process. An arrest
on mesne  process is  made in  order  that  the  defendant  shall
answer, after  judgment, to  satisfy the  claim of the plaintiff;
on being  arrested, the  defendant is entitled to be liberated on
giving sufficient  bail, which  the officer  is bound to take. 2.
When the  arrest is on final process, as a ca. sa., the defendant

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cannot generally  be dis  charged on  bail;  and his discharge is
considered as  an escape.  Vide, generally, Yelv. 29, a, note;  3
Bl. Com.  288, n.;   1  Sup. to Ves. Jr. 374;  Wats. on Sher. 87;
11 East, 440;  18 E. C. L. R. 169, note.

  4. In all governments there are persons who are privileged from
arrest in  civil cases.  In  the  United  States  this  privilege
continues generally  while the  defendant remains invested with a
particular character.  Members  of  congress  and  of  the  state
legislatures  are   exempted  while   attending  the   respective
assemblies to  which they  belong parties  and  witnesses,  while
lawfully attending  court;   electors, while  attending a  public
election;   ambassadors and  other foreign  ministers;  insolvent
debtors, when they have been lawfully discharged;  married women,
when sued  upon their  contracts, are  generally privileged;  and
executors and  administrators, when  sued in their representative
characters, generally  enjoy the same privilege. The privilege in
favor of  members of  congress, or  of the state legislatures, of
electors, and  of parties and witnesses in a cause, extend to the
time of going to, remaining at, and returning from, the places to
which they are thus legally called.

   5. The  code of civil practice of Louisiana enacts as follows,
namely: Art.  210. The  arrest is  one of the means which the law
gives the  creditor to-secure  the person of his debtor while the
suit is  pending, or  to compel  him to  give  security  for  his
appearance after  judgment.  Art.  211.  Minors  of  both  sexes,
whether emancipated  or  not,  interdicted  persons,  and  women,
married or  single, cannot  be arrested.  Art. 212. Any creditor,
whose debtor  is about  to leave  the state,  even for  a limited
time, without  leaving in  it sufficient  property to satisfy the
judgment which  he expects  to obtain  in the  suit he intends to
bring against  him, may  have the  person of such debtor arrested
and confined  until he  shall give  sufficient security  that  be
shall not  depart from  the state without the leave of the court.
Art. 213. Such arrest may be ordered in all demands brought for a
debt, whether  liquidated or  not, when  the term  of payment has
expired, and  even for  damages for  any injury  sustained by the
plaintiff in either his person or property. Art. 214. Previous to
obtaining an order of arrest against his debtor, to compel him to
give sufficient security that be shall not depart from the state,
the creditor must swear in the petition which he presents to that
effect to  any competent  judge, that  the debt,  or the  damages
which he  claims, and the amount of which he specifies, is really
due to  him, and  that he  verily believes that, the defendant is
about to remove from the state, without leaving in it and lastly,
that he does not -take this oath with the intention of vexing the
defendant, but  only in order to secure his demand. Art. 215. The
oath prescribed in the preceding article, ulay be taken either by
the creditor  himself, or in his absence, by his attorney in fact
or his  agent, provided  either the one or the other can swear to
the debt from his personal and direct knowledge of its being due,
and not  by what he may know or have learned from the creditor he
represent. Art.  216. The  oath which the creditor is required to

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take of  the existence  and nature of the debt of which he claims
payment, in the cases provided in the two preceding articles, may
be taken  either before  any judge or justice of the peace of the
place where  the court  is held,  before which he sues, or before
the judge  of any  other place,  provided the  signature of  such
judge be proved or duly authenticated. Vide Auter action pendant;
Lis pendens: Privilege;  Rights.

  ARREST, in criminal cases. The apprehending or detaining of the
person, in  order to  be forthcoming  to  answer  an  alleged  or
suspected crime.  The word  arrest is more properly used in civil
cases, and  apprehension in  criminal. A  man is arrested under a
capias ad  respondendum, apprehended under a warrant charging him
with a larceny.

   2. It  will be convenient to consider, 1, who may be arrested;
2, for  what crimes;  3, at what time;  4, in what places;  5, by
whom and by what authority.

   3. -  1. Who  may be  arrested. Generally all persons properly
accused of a crime or misdeameanor, may be arrested;  by the laws
of the  United States,  ambassadors  (q.  v.)  and  other  public
ministers are exempt from arrest.

  4. - 2. For what offences an arrest may be made. It may be made
for treason, felony, breach of the peace, or other misdemeanor.

   5. -  3. At  what time.  An arrest may be made in the night as
well as  in the day time and for treasons, felonies, and breaches
of the  peace, on Sunday as well as on other days. It may be made
before as well as after indictment found. Wallace's R. 23.

   6. -  4. At  what  places.  No  place  affords  protection  to
offenders against  the criminal  law;   a man  may  therefore  be
arrested in  his own  house, (q. v.) which may be broken into for
the purpose of making the arrest.

   7. -  5. Who may arrest and by what authority. An offender may
be arrested either without a warrant or with a warrant. First, an
arrest may  be made  without a warrant by a private individual or
by a  peace officer.  Private individuals  are enjoined by law to
arrest  an  offender  when  present  at  the  time  a  felony  is
committed, or  a dangerous wound given- 11 Johns. R. 486 and vide
Hawk. B.  1, c,  12, s.  1;  c. 13, F3. 7, 8;  4 Bl. Com. 292;  1
Hale, 587;  Com. Dig. Imprisonment, H 4;  Bac. Ab. Trespass, D.

   3. Peace  officers may, a fortiori, make an arrest for a crime
or misdemeanor  committed in  their view,  without any warrant. 8
Serg. &  R. 47.  An arrest  may therefore be made by a constable,
(q. v.)  a justice  of the  peace, (q.  v.) slieriff,  (q. v.) or
coroner. (q.  v.) Secondly,  an arrest may bb made by  irtue of a
warrant,  (q.   v.)  which   is  the   proper  course   when  the
circumstances of  the case  will permit  it. Vide,  generally,  1
Chit. Cr. Law, 11 to 71;  Russ. on Cr. Index, h. t.

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   ARREST OP  JUDGMENT. The  act of  a court  by which the judges
refuse to  give judgment, because upon the face of the record, it
appears that  the plaintiff  is not entitled to it. See Judgment,
arrest of.

   ARRESTANDIS bonis  ne dissipentur.  In the English law, a writ
for him  whose cattle or goods, being taken during a controversy,
are likely, to be wasted and consumed.

   ARRESTEE, law  of Scotland.  He in  whose  hands  a  debt,  or
property in  his possession,  has  been  arrested  by  a  regular
arrestment. If,  in contempt  of the  ar-restment, he  shall make
payment of  the sum,  or deliver the goods arrested to the common
debtor, he  is not  only liable  criminally  for  breach  of  the
arrestment, but he must pay the debt again to the arrester. Ersk.
Pr. L. Scot. 3, 6, 6.

   ARRESTER, law  of Scotland.  One who  sues out  and obtains an
arrestment of  his debtor's  goods or  movable obligations. Ersk.
Pr. L. Soot. 3, 6, 1.

   ARRESTMENT, Scotch  law. By  this term  is sometimes meant the
securing of  a criminal's  person till trial, or that of a debtor
till he give security judicio sisti. Ersk. Pr. L. Scot. 1, 2, 12.
It is  also the  order of a judge, by which he who is debtor in a
movable obligation  to the  arrester's debtor,  is probibited  to
make payment  or delivery  till the  debt due  to the arrester be
paid or  secured. Ersk.  Pr. L.  Scot. 3,  6, 1.  See Attachment,
foreign. where  arrestment proceeds on a depending action, it may
be loosed  by the common debtor's giving security to the arrester
for his debt, in the event it shall be found due. Id. 3, 6, 7.

   ARRET, French law. An arret is a judgment, sentence, or decree
of,  a  court  of  competent  jurisdiction.  Saisie-arret  is  an
attachment of  property in  the hands  of a third person. Code of
Pract. of Lo. art. 209.

   ARRETTED, arrectatus, i. e. ad rectum vocatus. Convened before
a judge  and charged  with a  crime. Ad  rectum malefactorem, is,
according to  Bracton, to have a malefactor forthcoming to be put
on his  trial. Sometimes  it is  used for  imputed or laid to his
charge;   as, no  folly may  be arretted  to any  one under  age.
Bract. 1. 3, tr. 2, c. 10;  Cunn. Dict. h. t.

   ARRHAE, contracts,  in the  civil law. Money or other valuable
things given  by the  buyer to  the seller,  for the  purpose  of
evidencing the contract earnest.

   2. There  are two  kinds of  arrbae;   one kind  given when  a
contract has  only been  proposed;   the other  when a  sale  has
actually taken  place. Those  which are  given when a bargain has
been merely  proposed, before  it has  been concluded,  form  the
matter of the contract, by which he who gives the arrhae consents

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and agrees to lose them, and to transfer the title to them in the
opposite party, in case he should refuse to complete the proposed
bargain;   and the  receiver of  arrhae is obliged on his part to
return double  the amount  to the giver of them in case be should
fail to complete his part of the contract. Poth. Contr. de Vente,
n. 498.  After the  contract of  sale  has  been  completed,  the
purchaser usually  gives arrbae as evidence that the contract has
been perfected.  Arrbae are  therefore defined  quod ante pretium
datur,  et  fidem  fecit  contractus,  facti  totiusque  pecuniae
solvendae. Id. n. 506;  Code, 4, 45, 2.

   TO ARRIVE.  To come  to  a  particular  place;    to  reach  a
particular or certain place as, the ship United States arrived in
New York. See 1 Marsh. Dec. 411.

   ARROGATION, civil  law. Signifies nearly the same as adoption;
the only  difference between them is this, that adoption was of a
person under  full age  but as  arrogation  required  the  person
arrogated, sui  juris, no  one could  be arrogated till he was of
full age. Dig. 1, 7, 5;  Inst. 1, 11, 3 1 Brown's Civ. Law, 119.

   ARSER IN  LE MAIN.  Burning in  the hand.  This punishment was
inflicted on  those who  received the benefit of clergy. Terms de
la Ley.

   ARSON, criminal law. At common law an offence of the degree of
felony;   and is  defined by  Lord Coke  to be  the malicious and
voluntary burning  of the  house of  another, by  night or day. 3
Inst. 66.

   2. In order to make this crime complete, there must be, 1st, a
burning of  the house,  or some  part of it;  it is sufficient if
any part  be consumed, however small it may be. 9 C. & P. 45;  38
E. C.  L. R. 29;  16 Mass. 105. 2d. The house burnt must;  belong
to another;   but  if a man set fire to his own house with a view
to burn  his neighbor's,  and does  so, it  is at  least a  great
misdemeanor, if  not a  felony. 1 Hale, P. C. 568;  2 East, P. C.
1027;  2 Russ. 487. 3d. The burning must have been both malicious
and willful.

   3. The offence of arson at common law, does not extend further
than the  burning of  the house of another. By statute this crime
is greatly  enlarged in  some of  the states, as in Pennsylvania,
where it  is extended  to the  burning of  any barn  or  outhouse
having bay  or grain therein;  any barrack, rick or stack of hay,
grain, or  bark;   any public buildings, church or meeting-house,
college, school  or library.  Act 23d  April, 1829;  2 Russell on
Crimes, 486;   1 Hawk. P. C. c. 39 4 Bl. Com. 220;  2 East, P. C.
c. 21,  s. 1, p. 1015;  16 John. R. 203;  16 Mass. 105. As to the
extension of  the offence  by the  laws of the United States, see
Stat. 1825, c. 276, 3 Story's L. U. S. 1999.

   ARSURA. The  trial of  money by fire after it was coined. This
word is obsolete.

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   ART. The  power of  doing. something  not taught  by nature or
instinct. Johnson.  Eunomus defines  art to  be a  collection  of
certain rules  for doing  anything in a set form. Dial. 2, p. 74.
The Dictionaire  des Sciences  Medicales, h.  v., defines  it  in
nearly the same terms.

   2. The  arts are divided into mechanical and liberal arts. The
mechanical arts  are those  which require more bodily than mental
labor;  they are usually called trades, and those who pursue them
are called  artisans or  mecbanics. The  liberal are  those which
have for  the sole  or principal  object, works  of the mind, and
those who  are engaged in them are called artists. Pard. Dr. Com.
n. 35.

  3. The act of Congress of July 4, 1836, s. 6, in describing the
subjects of patents, uses the term art. The sense of this word in
its usual  acceptation is perhaps too comprehensive. The thing to
be patented  is not a mere elementary, principle, or intellectual
discovery, but  a principle  put in practice, and applied to some
art, machine, manufacture, or composition of matter. 4 Mason, 1.

   4. Copper-plate printing on the back of a bank note, is an art
for which a patent may be granted. 4 Wash. C. C. R. 9.

   ART AND  PART, Scotch  law. Where  one is accessory to a crime
committed by  another;   a person  may be  guilty, art  and part,
either by  giving advice  or counsel to commit the crime;  or, 2,
by giving  warrant or  mandate to  commit it;  or, 3, by actually
assisting the criminal in the execution.

   2. In  the more  atrocious crimes,  it seems  agreed, that the
adviser is  equally punishable  with the criminal and that in the
slighter offences,  the circumstances  arising from the adviser's
lesser age,  the jocular or careless manner of giving the advice,
&c., may be received as pleas for softening the punishment.

   3. One  who gives  a mandate  to commit  a crime, as he is the
first spring  of the  action, seems  more guilty  than the person
20employed as the instrument in executing it.

   4. Assistance  may be  given to  the committer of a crime, not
only in  the actual  execution, but previous to it, by furnishing
him, with a criminal intent, with poison, arms, or other means of
perpetrating it.  That sort of assistance which is not given till
after the  criminal act,  and which  is commonly called abetting,
though it  be itself criminal, does not infer art and part of the
principal crime.  Ersk. Pr. L;  Scot. 4, 4, 4 ;  Mack. Cr. Treat.
tit. Art and Part.

   ARTICLES. A  division in  some books.  In agreements and other
writings, for  the sake  of perspicuity, the subjects are divided
into parts, paragraphs, or articles.

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   ARTICLES, chan. practice. An instrument in writing, filed by a
party to  a proceeding  in chancery,  containing  reasons  why  a
witness in the cause should be discredited.

   2. As  to the  matter which  ought to  be contained  in  these
articles, Lord  Eldon gave some general directions in the case of
Carlos v.  Brook, 10  Ves. 49.  " The court," says he, "attending
with great  caution to an application to permit any witness to be
examined after publication, has held where the proposition was to
examine a witness to credit, that the examination is either to be
confined to  general credit;   that is, by produciug witnesses to
swear, that  the person is not to be believed upon his oath;  or,
if you  find him swearing to a matter, not to issue in the cause,
(and therefore not thought material to the merits,) in that case,
as the  witness is  not produced to vary the case in evidence by,
testimony that  relates to matters in issue, but is to speak only
to the truth or want of veracity, with which a witness had spoken
to a  fact not, in issue, there is no danger in permitting him to
state that  such fact,  not put  in issue,  is false and, for the
purpose of  discrediting a  witness, the court has not considered
itself at liberty to sanction such a proceeding as an examination
to destroy the credit of another witness, who had deposed only to
points put  in issue.  In Purcell v. M'Namara, it was agreed that
after publication  it was competent to examine any witness to the
point, whether he would believe that man upon his oath. It is not
competent, even  at law,  to ask the ground of that opinion;  but
the general  question only  is permitted. In Purcell v. M'Namara,
the witness went into the history of his whole life and as to his
solvency, & c. It was not at all put at issue whether he had been
insolvent, or  had compounded  with his  creditors;   but, having
sworn the  contrary, they  proved by  witnesses, that he, who had
sworn to  a, matter not in issue, had sworn falsely to that fact;
and that  he had  been insolvent,  and had  compounded  with  his
creditors;   and it  would be  lamentable, if the court could not
find means  of getting  at it;   for he could not be indicted for
perjury, though  swearing falsely,  the fact  not being material.
The rule  is, in  general cases the cause is heard upon -evidence
given before  publication;    but  that  you  may  examine  after
publication, provided  you examine  to credit only, and do not go
to matters in issue in the cause, or in contradiction of them,
under pretence  of examing to credit only. Those depositions," he
continued, "  appear to  me material  to what  is in issue in the
cause;  and therefore must be suppressed," See a form of articles
in Gresl. Eq. Ev. 140, 141;  and also 8 Ves. 327;  9 Ves. 145;  1
S. & S. 469.

   ARTICLES, eccl.  law. A  complaint in  the form of a libel, ex
hibited to an ecclesiastical court.

   ARTICLES OF  AGREEMENT, contracts.  Relate either  to real  or
personal estate, or to both. An article is a memorandum or minute
of  an   agreement,  reduced  to  writing  to  make  some  future
disposition or  modification of property;  and such an instrument
will create  a trust  or equitable  estate, of  which a  specific

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performance will  be decreed in chancery. Cruise on Real Pr. tit.
32 c. 1, s. 31. And see Id. tit. 12, c. 1.

  2. This instrument should contain: 1, the name and character of
the parties;   2,  the subject-matter  of the  contracts;  3, the
covenants which  each of  the parties bind themselves to perform;
4, the date;  5, the signatures of the parties.

   3. - 1. The parties should be named, and their addition should
also be  mentioned, in  order to identify them. It should also be
stated which  persons are  of the first, second, or other part. A
confusion, in this respect, may occasion difficulties.

   4. - 2. The subject-matter of the contract ought to be set out
in clear  and explicit  language, and  the time  and place of the
performance of  the agreement  ought to  be mentioned  and,  when
goods are  to be  delivered, it  ought to  be provided  at  whose
expense they  shall be  removed, for there is a difference in the
delivery of  light  and  bulky  articles.  The  seller  of  bulky
articles is not in general bound to deliver them unless he agrees
to do so. 5 S. & R. 19 12 Mass. 300;  4 Shepl. 49.

   5. -  3. The covenants to be performed by each party should be
specially and  correctly stated,  as a  mistake in  this  respect
leads to  difficulties which  might have  been obviated  had they
been properly drawn.

  6. - 4. The instrument should be truly dated.

   7. -  5. It  should be  signed by the parties or their agents.
When signed  by an  agent he should state his authority, and sign
his principal's  name, and then his own, as, A B, by his agent or
attorney C D.

   ARTICLES OF  CONFEDERATION. The  compact which was made by the
original thirteen  states of  the United  States of America, bore
the name  of the  "Articles of  Confederation and perpetual union
between, the  states of  New Hampshire,  Massachusetts Bay, Rhode
Island and  Providence Plantations,  Connecticut, New  York,  New
Jersey,  Pennsylvania,   Delaware,  Maryland,   Virginia,   North
Carolina, South  Carolina, and  Georgia." It was adopted and went
into force  on the  first day of March, 1781, and remained as the
supreme law until the first Wednesday of March, 1789. 5 Wheat. R.
420. The  following analysis  of this  celebrated  instrument  is
copied from Judge Story's Commentaries on the Constitution of the
United States, Book 2, c. 3.

   2. "In  pursuance of  the design  already announced, it is now
proposed to  give an  analysis of  the articles of confederation,
or, as  they  are  denominated  in  the  instrument  itself,  the
Articles of Confederation and Perpetual Union between the States,
as they were finally adopted by the thirteen states in 1781.

   3. "The  style of  the Confederacy  was, by the first article,

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declared to  be, `The  United  States  of  America.'  The  second
article declared,  that  each  state  retained  its  sovereignty,
freedom, and  independence, and  every  power,  jurisdiction  and
right, which was not by this confederation expressly delegated to
the United  States, in  congress  assembled.  The  third  article
declared, that the states severally entered into a firm league of
friendship  with  each  other,  for  their  common  defence,  the
security of their liberties, and their mutual and general welfare
binding themselves to assist each other against all force offered
to, or  attacks made  upon them,  or any  of them,  on account of
religion, sovereignty, trade, or any other pretence whatever. The
fourth article declared, that the free inhabitants of each of the
states, (vagabonds  and fugitives  from justice excepted,) should
be entitled to all the privileges of free citizens in the several
states;   that the  people of each state should have free ingress
and regress to any from any other state, and should enjoy all the
privileges of  trade and commerce, subject to the same duties and
restrictions, as  the inhabitants;   that  fugitives from justice
should, upon the demand of the executive of the state, from which
they fled,  be delivered  up;   and that  full faith  and  credit
should be given, in each of the states, to the records, acts, and
judicial proceedings of the courts and magistrates of every other

   4. "Having  thus provided  for the security and intercourse of
the states,  the next article (5th) provided for the organization
of a  general congress, declaring that delegates should be chosen
in such  manner, as  the legislature of each state should direct;
to meet  in congress  on the  first Monday  in every year, with a
power, reserved  to each  state, to  recall any  or  all  of  the
delegates, and to send others in their, stead. No state was to be
represented in congress by less than two, nor than seven members.
No delegate  was eligible for more than three, in any term of six
years;   and no  delegate was  capable of  holding any  office of
emolument under the United States. Each state was to maintain its
own delegates;  and, in determining questions in congress, was to
have one  vote. Freedom  of speech and debate in congress was not
to be  impeached or  questioned in  any other  place;    and  the
members were to be protected from arrest and imprisonment, during
the time  of their going to and from, and attendance on congress,
except for treason, felony, or breach of the peace.

  5. "By subsequent articles, congress was invested with the sole
and exclusive  right and  power of  determining on peace and war,
unless in  case of  an invasion  of a  state by  enemies,  or  an
imminent danger  of an  invasion by  Indians;    of  sending  and
receiving ambassadors;   entering  into treaties  and  alliances,
under certain  limitations, as  to  treaties  of  commerce;    of
establishing rules  for deciding all cases of capture on land and
water, and  for the division and appropriation of prizes taken by
the land  or naval forces, in the service of the United States of
granting letters  of marque  and reprisal  in times of peace;  of
appointing  courts   for  the  trial  of  piracies  and  felonies
committed on  the high  seas;   and of  establishing  courts  for

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receiving  and  finally  determining  appeals  in  all  cases  of

  6. "Congress was also invested with power to decide in the last
resort, on  appeal, all  disputes and  differences between two or
more states concerning boundary, jurisdiction, or any other cause
whatsoever;   and the  mode  of  exercising  that  authority  was
specially  prescribed.   And  all  controversies  concerning  the
private right  of soil,  claimed under different grants of two or
more states  before the settlement of their jurisdiction, were to
be finally  determined in  the same  manner, upon the petition of
either of  the grantees.  But no  state was  to  be  deprived  of
territory for the benefit of the United

   7. "Congress  was also  invested with  the sole  and exclusive
right and  power of regulating the alloy and value of coin struck
by their  own authority, or that of the United States;  of fixing
the standard  of  weights  and  measures  throughout  the  United
States;   of regulating  the trade  and managing all affairs with
the Indians, not members of any of the states, provided, that the
legislative right  of any  state within its own limits should not
be infringed  or violated  of establishing  and  regulating  post
offices from one state to another, and exacting postage to defray
the expenses;   of  appointing all officers of the land forces in
the service of the United States, except regimental officers;  of
appointing all  officers of  the naval  forces, and commissioning
all officers whatsoever in the service of the United States;  and
of making rules for the government and regulation of the land and
naval forces, and directing their operations.

   8. "Congress  was also  invested with  authority to  appoint a
committee of  the states to sit in the recess of congress, and to
consist of one delegate from each state, and other committees and
civil  officers,  to  manage  the  general  affairs  under  their
direction;   to appoint  one of  their number  to preside, but no
person was to serve in the office of president more than one year
in the  term of three years;  to ascertain the necessary sums for
the, public  service, and  to appropriate  the same for defraying
the public  expenses;   to. borrow money and emit bills ou credit
of the  United States  to build  and equip a navy;  to agree upon
the number of land forces, and make requisitioins upon each state
for its  quota, in  proportion to the number of white inhabitants
in such state. The legislatures of each state were to appoint the
regimental officers,  raise the  men, and  clothe, arm, and equip
them at the expense of the United States.

   9. "Congress  was also  invested with power to adjourn for any
time not exceeding six months, and to any place within the United
States and provision was made for the publication of its journal,
and for  entering the  yeas and nays thereon, when desired by any

   10. "Such were the powers confided in congress. But even these

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were greatly restricted in their exercise;  for it was expressly.
provided, that  congress should never engage in a war;  nor grant
letters of  marque or reprisal in, time of peace;  nor enter into
any treaties  or alliances;  nor coin money or regulate the value
thereof;   nor ascertain  the sums or expenses necessary for the,
defence and  welfare of  the United  States, nor  emit bills  nor
borrow money  on the  credit of the United States nor appropriate
money;   nor agree upon the number of vessels of war to be built,
or purchased;   or the number of land or sea forces to be raised;
nor appoint  a commander-in-chief  of the  army or  navy;  unless
nine states  should assent  to the  same. And  no question on any
other point,  except for  adjournng from  day to  day, was  to be
determined, except by vote of the majority of the states.

   11. "The  committee of  the states  or any  tine of them, were
authorized in  the recess of congress to exercise such powers, as
congress, with  the  assent  of  nine  states,  should  think  it
expedient to  vest them with, except such powers for the exercise
of which,  by the  articles of  confederation, the assent of nine
states was required, which could not be thus delegated.

  12. "It was further. provided, that all bills of credit, moneys
borrowed, and  debts contracted  by or  under  the  authority  of
congress before the confederation, should be a charge against the
United States;   that  when land  forces were raised by any state
for the  common defence,  all officers  of or  under the  rank of
colonel should  be appointed  by the legislature of the state, or
in such  manner as  the state  should direct;   and all vacancies
should be  filled up  in the same manner that all charges of war,
and all other expenses for the common defence or general welfare,
should be  defrayed out  of a  common treasury,  which should  be
supplied by the several states, in proportion to the value of the
land within each state granted or surveyed, and the buildings and
improvements thereon,  to be  estimated  according  to  the  mode
prescribed by  congress;   and the taxes for that proportion were
to be  laid and  levied by  the legislatures of the states within
the time agreed upon by congress.

  13. "Certain prohibitions were laid upon the exercise of powers
by the  respective states.  No state,  without the consent of the
United States,  could send  an embassy  to, or receive an embassy
from, or  enter into,  any treaty with any king, prince or state;
nor could  any person holding any office under the United States,
or any  of them, accept any present, emolument, office -or title,
from any  foreign king,  prince or  state;   nor  could  congress
itself grant  any title  of nobility.  No two  states could enter
into any  treaty, confederation,  or alliance  with  each  other,
without the  consent of  congress. No state could lay any imposts
or duties,  which might  interfere with any proposed treaties. No
vessels of  war were to be kept up by any state in time of peace,
except deemed  necessary by  congress for  its defence, or trade;
nor any body of forces, except such as should be deemed requisite
by congress to garrison its forts, and necessary for its defence.
But every  state was  required always to keep up a well regulated

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and disciplined militia, sufficiently armed and accoutred, and to
be provided  with suitable field-pieces, and tents, and arms, and
amunition, and  camp equipage.  No  state  could  engage  in  war
without the  consent of  congress,  unless  actually  invaded  by
enemies, or  in danger  of invasion by the Indians. Nor could any
state grant  commissions to  any ships  of war,  nor  letters  of
marque and  reprisal,  except  after  a  declaration  of  war  by
congress, unless  such state  were infested  by pirates, and then
subject to  the determination of congress. No state could prevent
the removal  of any property imported into any state to any other
state, of  which the  owner was an inhabitant. And no imposition,
duties, or  restriction, could  be  laid  by  any  state  on  the
Property of the United States or of either of them.

  14. "There was also provision made for the admission of Canada,
into the  Union, and  of other  colonies with  the assent of nine
states. And  it was  finally declared,  that every  state  should
abide  by   the  determinations  of  congress  on  all  questions
submitted to  it by the confederation;  that the articles  should
be inviolably  observed by every state;  that the union should be
perpetual;  and that no alterations should. be made in any of the
articles, unless  agreed to  by congress,  and 'Confirmed  by the
legislatures of every state.

  15. "Such is the substance of this celebrated instrument, under
which the  treaty of  peace, acknowledging  our independence, was
negotiated, the war of the revolution concluded, and the union of
the  states   maintained  until  the  adoption  of.  the  present

   ARTICLES OF  IMPEACHMENT. An  instrument which,  in  cases  of
impeachment, (q.  v.) is used, and performs the same office which
an indictment  does, in  a common criminal case, is known by this
name. These  articles do  not usually  pursue the strict form and
accuracy of an indictment., Wood. Lect. 40, p. 605;  Foster, 389,
390;   Com. Dig.  Parliament, L  21.  They  are  sometimes  quite
general in  the form  of the  allegations, but always contain, or
ought to  contain, so  much certainty,  as to enable the party to
put himself  on the  proper defence, and in case of an acquittal,
to avail  himself  of  it,  as  a  bar  to  another  impeachment.
Additional articles  may, perhaps,  be exhibited  at any stage of
the prosecution. Story on the §806;  Rawle on the Const. 216.

   2. The  answer to  articles of  impeachment is  exempted  from
observing great strictness of form;  and it may contain arguments
as well  as facts.  It is  usual to  give a  full and  particular
answer to each article of the accusation. Story, §808.

   ARTICLES OF  PARTNERSHIP. The  name given  to an instrument of
writing by  which the  parties enter into a partnership, upon the
conditions therein  mentioned. This instrument generally contains
certain provisions which it is the object here to point out.

  2. But before proceeding more particularly to the consideration

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of the  Subject, it  will be  proper to  observe  that  sometimes
preliminary agreements  to enter  into a  partnership are formed,
and that  questions, not unfrequently, arise as to their effects.
These  are   not  partnerships,  but  agreements  to  enter  into
partnership at  a future  time. When  such an  agreement has been
broken, the  parties may  apply for  redress to  a court  of law,
where damages  will be  given, as  a compensation. Application is
sometimes made  to courts  of equity for their more efficient aid
to compel  a specific  performance. In  general these courts will
not entertain  bills for specific performance of such preliminary
contracts;   but in  order  to  suppress  frauds,  or  manifestly
mischievous consequences,  they will  compel such  performance. 3
Atk. 383;   Colly.  Partn. B.  2, c. 2, §2 Wats. Partn. 60;  Gow,
Partn. 109;  Story, Eq. Jur. §666, note;  Story,
Partn. §189;    1  Swanst.  R.  513,  note.  When,  however,  the
partnership may  be immediately  dissolved, it seems the contract
cannot be specifically enforeed. 9 Ves. 360.

   3. It is proper to premise that under each particular head, it
is intended briefly to examine the decisions which have been made
in relation to it.

   4. The  principal parts  of articles  of partnership  are here
1. The  names of  the contracting  parties. These  should all  be
severally set out.

   5. -  2. The  agreement  that  the  parties  actually  by  the
instrument enter  into partnership,  and care  must be  taken  to
distinguish  this   agreement  from  a  covenant  to  enter  into
partnership at a future time.

   6. - 3. The commencement of the partnership. This ought always
to be  expressly provided for. When no other time is fixed by it,
the commencement will take place from the date of the instrument.
Colly. Partn. 140 5 Barn. & Cres. 108.

  7. - 4. The duration of the partnership. This may be. for life,
or  for  a,  specific  period  of  time;    partnerships  may  be
conditional or  indefinite in  their duration,  or for  a  single
adventure or  dealing;  this period of duration is either express
or implied,  but it  will not  be presumed  to be  beyond life. 1
Swanst. R.  521. When  a term  is fixed, it is presumed to endure
until that  period has  elapsed;  and, when no term is fixed, for
the life  of the  parties, unless sooner dissolved by the acts of
one of them, by mutual consent, or operation of law. Story, Part.

  8. A stipulation may lawfully be introduced for the continuance
of the  partnership after the death of one of the parties, either
by his  executors or  administrators, or for the admission of one
or more  of his  children into the concern. Colly. Partn. 147;  9
Ves. 500.  Sometimes this  clause provides,  that the interest of
the partner  shall go  to such  persons, as be shall by his  last

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will name  and appoint,  and for  want  of  appointment  to  such
persons as  are there  named. In  these cases  it seems  that the
executors or  administrators  have  an  option  to  continue  the
partnership or  not. Colly.  Partn. 149;   1  McCl.  &  Yo.  569;
Colles, Parl. Rep. 157.

   9. when  the duration of the partnership has been fixed by the
articles, and  the partnership expires by mere effluxion of time,
and, after  such determination  it is  carried on by the partners
without any  new agreement,  in the  absence of all circumstances
which may  lead as  to the  true  intent  of  the  partners,  the
partnership will  not, in  general, be  deemed one for a definite
period;  17 Ves. 298;  but in other respects, the old articles of
the expired  partnership are to be deemed adopted, by implication
as the  basis of  the new  partnership during  its continuance. 5
Mason, R. 176, 185;  15 Ves. 218;  1 Molloy, R. 466.

   10. -  5. The business to be carried on and the place where it
is to  be conducted.  This clause  ought to  be very particularly
written, as courts of equity will grant an injunction when one or
more of  the partners  attempt, against the wishes of one or more
of them,  to extend  such busiress beyond the provision contained
in the articles. Story, Partn. §193;  Gow, Partn 398.

   11 -  6. The  name of  the firm,  as for example, John Doe and
Company, ought  to be ascertained. The members of the partnership
are required  to use  the name  thus agreed upon, and a departure
from it will make them individually liable to third persons or to
their partners, in particular cases. Colly. Partn. 141;  2 Jac. &
Walk. 266;  9 Adol. & Ellis, 314;  11 Adol. & Ellis, 339;  Story,
Partn. §102, 136, 142, 202.

   12.-7. A  provision is  not  unfrequently  inserted  that  the
business shall  be  managed  and  administered  by  a  particular
partner, 20or  that one  of its  departments shall  be under  his
special care.  In this  case, courts  of equity will protect such
partner in  his rights.  Story, Partn.  §172, 182,  193, 202, 204
Colly. Partn.  753. In  Louisiana, this provision is incorporated
in it's  civil code, art. 2838 to art. 2840. The French and civil
law also  agree as  to this  provision. Poth.  de Societe, n. 71;
Dig. 14, 1, 1, 13;
Poth. Pand. 14, 1, 4.

   13. Sometimes a provision is introduced that a majority of the
partners  shall  have  the  management  of  the  affairs  of  the
partnership. This  is requisite, particularly when the associates
are numerous, As to the rights of the majority, see Partners.

   14. -  8. A  provision should  be inserted as to the manner of
furnishing the  capital or  stock  of  the  partnership.  When  a
partner is  required to  furnish his  proportion of  the stock at
stated periods,  or pay by installments, he will, where there are
no stipulutions  to the  contrary, be  considered a debtor to the
firm. Colly.  Partn. 141;   Story, Partn. §203;  1 Swanst. R. 89,

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Sometimes a  provision is inserted that real estate, and fixtures
belonging to  the  firm  shall  be  considered,  as  between  the
partners, not as partnership but as several property. In cases of
bankruptcy this property will be treated as the separate property
of the  partners. Colly.  Partn. 141,  595, 600;   5 Ves. 189;  3
Madd. R. 63.

  15. - 9. A provision for the apportionment of the profits a and
losses among the partners should be introduced. In the absence of
all proof,  and controlling  circumstances, the  partners are  to
share in  both equally,  although one  may have furnished all the
capital, and  the other  only his skill, Wats. Partn. 59;  Colly.
Partn. 105;   Story,  Partn. §24;   3 Kent, Com. 28;  4th ed.;  6
Wend. R. 263;  but see 7 Bligh, R. 432;  5 Wils. & Shaw, 16.

   16. - 10. Sometimes a stipulation for an annual account of the
Property of  the partnership  whether in possession or in action,
and of  the debts  due by partnership is inserted. These accounts
when settled  are at least prima facie evidence of the facts they
contain. Colly. Partn. 146 Story Partn. §206;  7 Sim. R. 239.

   17. -  11. A provision is frequently introduced forbidding any
one partner  to carry  on any  other  business.  This  should  be
provided for,  though there  is an  implied  provision  in  every
partnership that no partner shall carry. on any separate business
inconsistent or contrary to the true interest of the partnership.
Story, Partn. §178, 179, 209.

   18.- 12.  When the partners are numerous, a provision is often
made for  the expulsion  of a  partner for  gross misconduct, for
insolvency, bankruptcy,  or other causes particularly enumerated.
This provision will govern when the case occurs.

   19. -  13. This  instrument should allways contain a provision
for winding  up the  business. This  is generally provided for in
one of  three modes:  first, by turning all the assets into cash,
and,  after  paying  all  the  liabilities  of  the  partnership,
dividing such money in proportion to the several interests of the
parties;  secondly, by providing that one or more of the partners
shall be  entitled to  purchase the  shares of  the others  at  a
valuation;   thirdly, that  all the property of partnership shall
be appraised,  and that  after paying  the partnership  debts, it
shall be  divided in  the proper  proportions. The first of these
modes is  adopted by  courts of  equity in the absence of express
stipulations. Colly. Partn. 145 Story, Partn. §207 8 Sim. R. 529.

   20. -  14. It  is not  unusual to  insert in these articles, a
provision that  in case of disputes the matter shall be submitted
to arbitration.  This clause  seems nugatory,  for no action will
lie for a breach of it, as that would deprive the courts of their
jurisdiction, which  the parties  cannot do.  Story, Partn. §215;
Gow, Partn. 72;  Colly. Partn, 165 Wats. Partn. 383.

   21. -  15. The  articles should  be dated, and executed by the

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parties. It is not requisite that the instrument, should be under
seal. Vide Parties to contracts;  Partners Partnership.

   ARTICLES OF  THE PEACE,  Eng. practice. An instrument which is
presented to  a court  of competent  jurisdiction, in  which  the
exhibitant shows  the grievances under which be labors, and prays
the protection of the court. It is made on oath. See a form in 12
Adol. & Ellis, 599;  40 E. C. L. R. 125, 126;  1 Chit. Pr. 678.

   2. The truth of the articles cannot be contradicted, either by
affidavit or  otherwise;   but the defendant may either except to
their sufficiency,  or tender  affidavits  in  reduction  of  the
amounts of bail. 13 East. 171.

  ARTICLES OF WAR. The name commonly given to a code made for the
of the army. The act of April 10, 1806, 2 Story's Laws U. S. 992,
contains the  rulesand articles by which the armies of the United
States shall be governed. The act of April 23, 1800, 1 Story's L.
U. S.  761, contains the rules and regulations for the government
of the navy of the United States.

   ARTICULATE ADJUDICATION.  A term  used in Scotch, law in cases
where there  is more than the debt due to the adjudging creditor,
when it  is usual  to accumulate each debt by itself, so that any
error that  may arise  in ascertaining  one of the debts need not
reach to all the rest.

   ARTIFICERS. Persons  whose  employment  or  business  consists
chiefly of  bodily labor.  Those who  are masters  of their arts.
Cunn. Dict. h. t. Vide drt.

   ARTIFICIAL. What  is the  result of,  or relates to, the arts;
opposed to  natural;   thus we say a corporation is an artificial
person, in  opposition to  a natural person. Artificial accession
is the  uniting one  property to  another by  art, opposed  to  a
simple natural union. 1 Bouv. Inst. n. 503.

   ARTIFICIAL PERSON.  In a  figurative sense,  a body  of men or
company are  sometimes called  an artificial  person, because the
law associates  them  as  one,  and  gives  them  various  powers
possessed by  natural persons.  Corporations are  such artificial
persons. 1 Bouv. Inst. n. 177.

   AS. A  word purely Latin. It has two significations. First, it
signifies weight,  and in  this sense,  the Roman as, is the same
thing as the Roman pound, which was composed of twelve ounces. It
was divided  also into  many other  parts (as  may be seen in the
law, Servum de hoeredibus, Inst. Lib. xiii. Pandect,) viz. uncia,
1 ounce;   sextans,  2 ounces;   quodrans,  3 ounces;   triens, 4
ounces quincunx,  5 ounces;  semis, 6 ounces;  septunx, 7 ounces;
bes, 8 ounces, dodrans, 9 ounces;  dextans, 10 ounces;  deunx, 11

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  2. From this primitive and proper sense of the word another was
derived: that  namely of  the totality  of a thing, Solidum quid.
Thus as signified the whole of an inheritance, so that an heir ex
asse, was  an heir  of the whole inheritance. An heir ex triente,
ex semisse,  ex besse,  or ex  deunce, was  an heir of one-third,
one-half, two-thirds, or eleven-twelfths.

  ASCENDANTS. Those from whom a person is descended, or from whom
he derives his birth, however remote they may be.

  2. Every one has two ascendants at the first degree, his father
and mother;   four at the second degree, his paternal grandfather
and grandmother,  and his  maternal grandfather  and grandmother;
eight at  the third.  Thus in going up we ascend by various lines
which  fork   at  every  generation.  By  this  progress  sixteen
ascendants are  found at  the fourth  degree;  thirty-two, at the
fifth sixty-four,  at the sixth;  one hundred and twenty-eight at
the seventh,  and so  on;  by this progressive increase, a person
has at  the twenty-fifth  generation, thirty-three  millions five
hundred and-fifty-four  thousand,  four  hundred  and  thirty-two
ascendant's. But  as many  of the  ascendants of  a  person  have
descended from  the same  ancestor, the  lines which were forked,
reunite to  the first  comnmon  ancestor,  from  whom  the  other
descends;  and this multiplication thus frequently interrupted by
the common ancestors, may be reduced to a few persons. Vide Line.

   ASCRIPTITIUS, civil  law. Among  the Romans,  ascriptitii were
foreigners, who  had been naturalized, and who had in general the
same rights as natives. Nov. 22, ch. . 17 Code 11, 47.

   ASPHYXY, med. jur. A temporary suspension of the motion of the
heart and  arteries;   swooning,  fainting.  This  term  includes
persons who  have been asphyxiated by submersion or drowning;  by
breathing mephitic  gas;   by the  effect of  lightning;   by the
effect of  cold;   by heat;  by suspension or strangulation. In a
legal point  of view it is always proper to ascertain whether the
person who -has thus been deprived of his senses is the victim of
another, whether  the injury  has been  caused  by  accident,  or
whether it is. the act of the sufferer himself.

   2. In  a medical  point of  view it  is important to ascertain
whether the  person is merely asphyxiated, or whether he is dead.
The following  general remarks  have been  made as to the efforts
which ought to be made to restore a person thus situated,

   1st. Persons  asphyxiated are  frequently in  a state  of only
apparent death.

   2d. Real  from apparent  death, can  be distinguished  only by

   3d. Till  putrefaction commences,  aid ought to be rendered to
persons asphyxiated.

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  4th. Experience proves that remaining several hours under water
does not always produce death.

  5th. The red, violet, or black color of
the face,  the coldness  of the body, the stiffness of the limbs,
are not always signs of death.

     6th.  The   assistance  to   persons  thus  situated,  maybe
administered by  any intelligent  person;  but to insure success,
it  must   be  done  without  discouragement  for  several  hours

   7th. All unnecessary persons should be sent away;  five or six
are in general sufficient.

   8th. The  place where the operation is performed should not be
too warm.

   9th. The  assistance should  be rendered  with  activity,  but
without precipitation.

   ASPORTATION. The act of carrying a thing away;  the removing a
thing from
one place to another. Vide Carrying away;  Taking.
ASSASSIN, crim,  law. An  assassin is  one  who  attacks  another
either traitorously,  or with  the advantage of arms or place) or
of a  number of  persons who  support him,  and kills his victim.
This being  done with  malice, aforethought,  is murder. The term
assassin is  but little  used in  the common  law, it is borrowed
from the civil law.

  ASSASSINATION, crim. law. A murder committed by an assassin. By
assassination is understood a murder committed for hire in money,
without any  provocation or  cause of  resentment  given  by  the
person against  whom the  crime is directed. Ersk. Inst. B. 4, t.
4, n. 45.

  ASSAULT, crim. law. An assault is any unlawful attempt or offer
with force  or violence to do a corporal hurt to another, whether
from malice  or wantonness;   for  example, by striking at him or
even holding  up the  fist at  him in  a threatening or insulting
manner, or  with other  circumstances as  denote at  the time. an
intention, coupled  with a  present ability,  of actual  violence
against his  person, as  by pointing  a weapon  at him when he is
within reach  of it. 6 Rogers Rec: 9. When the injury is actually
inflicted, it amounts to a battery. (q. v.)

   2. Assaults  are either  simple or  aggravated.  1.  A  simple
assault is  one Where  there is  no intention  to  do  any  other
injury. This  is punished at common law by fine and imprisonment.
2. An  aggravated assault is one that has in addition to the bare
intention to  commit it,  another object  which is also criminal;
for example,  if a  man should  fire a pistol at another and miss
him, the  former would  be guilty  of an  assault with  intent to

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murder;   so an  assault with intent to rob a man, or with intent
to spoil  his clothes, and the like, are aggravated assaults, and
they are  more severely  punished than  simple assaults.  General
references, 1  East, P.  C. 406;  Bull. N. P. 15;  Hawk. P. B. b.
1, c. 62, s. 12;  1 Russ.  Cr. 604;  2 Camp. Rep. 650 1 Wheeler's
Cr. C. 364;  6 Rogers' Rec. 9;  1 Serg. &  Rawle, 347 Bac. Ab. h.
t.;  Roscoe. Cr. Ev. 210.

   ASSAY. A chemical examination of metals, by which the quantity
of valuable  or  precious  metal  contained  in  any  mineral  or
metallic mixture is ascertained.
2. By  the acts  of Congress of March 3, 1823, 3 Story's L. U. S.
1924;   of June  25, 1834,  4 Shars. cont. Story's L. U. S. 2373;
and of  June 28,  1834, Id.  2377, it  is made  the duty  of  the
secretary of  the treasury to cause assays to be made at the mint
of the  United States,  of certain coins made current by the said
acts, and to make report of the result thereof to congress.

   ASSEMBLY. The  union of a number of persons in the same place.
There are several kinds of assemblies.

     2.  Political   assemblies,  or   those  authorized  by  the
constitution and  laws;  for example, the general assembly, which
includes the senate and house of representatives;  the meeting of
the electors  of the  president and  vice-president of the United
States, may also be called an assembly.

   3. Popular  assemblies are  those where  the  people  meet  to
deliberate upon  their rights;    these  are  guaranteed  by  the
constitution. Const.  U. S. Amend. art. 1 Const. of Penn. art. 9,
s. 20.

   4. Unlawful assemblies. An unlawful assembly is the meeting of
three or  more persons  to do  an unlawful act, although they may
not carry their purpose into execution. It differs from a riot or
rout, (q.  v.) because  in each of the latter-cases there is some
act done besides the simple meeting.

  ASSENT, contracts. An agreement to something that has been done

   2. It  is either  express, where  it is  openly declared;   or
implied, where  it is  presumed by  law.  For  instance,  when  a
conveyance is  made to  a man,  his assent to it is presumed, for
the following  reasons;   cause there  is a  strong intendment of
law, that it is for a person's benefit to take, and no man can be
supposed to  be unwilling  to do that which is for his advantage.
2. Because  it would  seem incongruous  and absurd,  that when  a
conveyance is completely executed on the part of the grantor, the
estate should  continue in  him. 3. Because it is contrary to the
policy of  law to  permit the  freehold to remain in suspense and
uncertainty. 2  Ventr. 201;  3 Mod. 296A 3 Lev. 284;  Show. P. C.
150;   3 Barn.  & Alders.  31;  1 Binn. R. 502;  2 Hayw. 234;  12
Mass IR. 461 4 Day, 395;  5 S. & R. 523 20 John. R. 184;  14 S. &

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R. 296 15 Wend. R. 656;  4 Halst. R. 161;  6 Verm. R. 411.

   3. When a devise draws after it no charge or risk of loss, and
is, therefore,  a mere bounty, the assent of the devisee to, take
it will be presumed. 17 Mass. 73, 4. A dissent properly expressed
would prevent  the title  from passing  from the grantor unto the
grantee. 1  2 Mass. R. 46 1. See 3 Munf. R. 345;  4 Munf. R. 332,
pl. 9  5 Serg. & Rawle, 523;  8 Watts, R. 9, 11 20 Johns. R. 184.
The rule  requiring an  express dissent, does not apply, however,
when the  grantee is  bound to  pay a consideration for the thing
granted. 1 Wash. C. C. Rep. 70.

  4. When an offer to do a thing has been made, it is not binding
on the  party making  it, until the assent of the other paity has
been given and such assent must be to the same subject-matter, in
the same  sense. 1  Summ. 218.  When such assent is given, before
the offer  is withdrawn,  the contract  is complete. 6 Wend. 103.
See 5 Wend. 523;  5 Greenl. R. 419;  3 Mass. 1;  8 S. R. 243;  12
John. 190;   19  John. 205;   4  Call, R.  379 1 Fairf. 185;  and

   5. In  general, when  an assignment  is made  to one  for  the
benefit  of  creditors  the  assent  of  the  assignees  will  be
presumed. 1  Binn. 502,  518;   6 W.  & S. 339;  8 Leigh, R. 272,
281. But see 24 Wend. 280.

   ASSERTORY COVENANT. One by which the covenantor affirms that a
certain fact  is in a particular way, as that the grantor of land
is lawfully  seised;   that it  is clear of encumbrances, and the
like. If  the assertion  is false, these covenants are broken the
moment that the instrument is signed. See 11 S. & R. 109, 112.

   TO ASSESS.  1. To  rate or  to fix  the proportion which every
person has  to pay of any particular tax. 2. To assess damages is
to ascertain  what damages  are due to the plaintiff;  in actions
founded on  writings, in many cases after interlocutory judgment,
the prothonotary  is directed  to assess  the damages;   in cases
sounding in tort the damages are frequently assessed on a writ of
inquiry by the sheriff and a jury.

   2. In  actions for  damages, the  jury are required to fix the
amount or to assess the damages. In the exercise of this power or
duty, the  jury must be guided by sound discretion, and, when the
circumstances will warrant it, may give high damages. Const. Rep.
500. The  jury must,  in the  assessment of  damages be guided by
their own  judgment, nd  not  by  a  blind  chance.  They  cannot
lawfully, therefore,  in making  up their  verdict, each  one put
down a  sum, add  the sums  together, divide the aggregate by the
number of  jurors, and  adopt the  quotient for  their verdict. 1
Cowen, 238.

   ASSESSMENT. The  making out a list of property, and fixing its
valuation or  appraisement;   it is  also applied to making out a
list  of  persons,  and  appraising  their  several  occupations,

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chiefly with  a  view  of  taxing  the  said  persons  and  their

  ASSESSMENT OF DAMAGES. After an interlocutory judgment has been
obtained, the  damages must  be, ascertained;   the  act of  thus
fixing the amount of damages is called the assessment of damages.

   2. In  cases sounding  in damages,  (q. v.)  that is, when the
object of  the action is to recover damages only, and not brought
for the  specific recovery of lands, goods, or sums of money, the
usual course  is to  issue a  writ of  inquiry, (q.  v.) and,  by
virtue of  such writ,  the sheriff,  aided by  twelve lawful men,
ascertains the  amount of  damages, and makes return to the court
of the  inquisition, which,  unless set aside, fixes the damages,
and a final judgment follows.

  3. When, on the contrary, the action is founded on a promissory
note, bond,  or other contract in writing, by which the amount of
money due  may be  easily computed,  it is  the practice, in some
courts, to  refer to  the clerk or prothonotary the assessment of
damages,. and  in such case no writ of inquiry is issued. 3 Bouv.
Inst. n. 8300.

   ASSESSORS, civil  law. So called from the word adsidere, which
Signifies to be seated with the judge. They were lawyers who were
appointed to  assist, by their advice, the Roman magistrates, who
were generally  ignorant of  law. being  mere military  men. Dig.
lib. 1, t. 22;  Code, lib. 1, t. 51.

  2. In our law an assessor is one who has been legally appointed
to value and
appraise property, generally. with a view of laying a tax on it.

   ASSETS. The  property in  the  hands  of  an  heir,  executor,
administrator  or   trustee,  which   is  legally   or  equitably
chargeable with  the  obligations,  which  such  heir,  executor,
administrator  or   other  trustee,  is,  as  such,  required  to
discharge, is  called assets. The term is derived from the French
word assez,  enough;   that is,  the heir  or trustee  has enough
property. But the property is still called assets, although there
may not  be enough  to discharge  all the  obligations;   and the
heir, executor, &c., is chargeable in distribution as far as such
property extends.

   2. Assets  are sometimes  divided by all the old writers, into
assets enter  mains and  assets per  descent;   considered as  to
their mode  of distribution,  they are 1egal or equitable;  as to
the property from which they arise, they are real or personal.

  3. Assets enter maim, or assets in hand, is such property as at
once comes  to the  executor or other trustee, for the purpose of
satisfying claims against him as such. Termes de la Ley.

  4. Assets per descent, is that portion of the ancestor's estate

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which descends  to the  heir, and  which is  sufficient to charge
him, as far as it goes, with the specialty debts of his ancestor.
2 Williams on Ex. 1011.

   5. Legal  assets, are  such as  constitute the  fund  for  the
payment of debts according to their legal priority.

  6. Equitable assets, are such as can be reached only by the aid
of a  court of  equity, and are to be divided,, pari passu, among
all the  creditors;   as when  a debtor  has  made  his  property
subject to  his debts generally, which, without his act would not
have been  so subject.  1 Madd. Ch. 586;  2 Fonbl. 40 1, et seq.;
Willis on Trust, 118.

   7. Real  assets, are such as descend to the heir, as in estate
in fee simple.

   8. Personal  assets, are  such goods and chattels to which the
executor or administrator is entitled.

  9. In commerce, by assets is understood all the stock in trade,
cash, and  all available  property belonging  to  a  merchant  or
company. Vide,  generally, Williams on Exec. Index, h. t.;  Toll.
on Exec. Index, h. t.;  2 Bl. Com. 510, 511;  3 Vin. Ab. 141;  11
Vin. Ab.  239;   1 Vern.  94;   3 Ves.  Jr. 117;  Gordon's Law of
Decedents, Index, h. t.;  Ram on Assets.

   ASSEVERATION. The proof which a man gives of the truth of what
be says,  by appealing to his conscience as a witness. It differs
from an  oath in  this, that by the latter he appeals to God as a
witness of  the truth  of what  he says,  and invokes  him as the
avenger of  falsehood and  perfidy, to punish him if he speak not
the truth. Vide Affirmation;  Oath;  and Merl. Quest. de
Droit, mot Serment.

   TO ASSIGN,  contracts;   practice. 1.  To make a right over to
another;   as to  assign an estate, an annuity, a bond, &c., over
to another.  5 John.  Rep: 391.  2. To appoint;  as, to appoint a
deputy,, &c.  Justices are  also said to be -assigned to keep the
peace. 3. To set forth or point out;  as, to " assign errors," to
show where  the error is committed;  or to assign false judgment,
to show wherein it was unjust. F. N. B. 19.

   ASSIGNATION, Scotch  law. The  ceding or  yielding a  thing to
another of which intimation must be made.

  ASSIGNEE. One to whom an assignment has been made.

   2. Assignees are either assignees in fact or assignees in law.
An assignee in fact is one to whom an assignment has been made in
fact by  the party having the right. An assignee in law is one in
whom the  law vest's  the right, as an executor or administrator.
Co. Litt.  210 a, note 1;  Hob. 9. Vide Assigns, and 1 Vern. 425;
1 Salk.  81 7  East, 337;   Bac.  Ab. Covenant, E;  a Saund. 182,

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note 1;   Arch.  Civ. PI. 50, 58, 70 Supp, to Ves. Jr, 72 2 Phil.
Ev. Index, h. t.

   ASSIGNMENT, contracts.  In common parlance this word signifies
the transfer of all kinds of property, real, personal, and mixed,
and whether  the same  be in  possession or  in action;    as,  a
general assignment.  In a  more technical  sense  it  Is  usually
applied to  the transfer  of a  term for  years;   but it is more
properly used  to signify a transfer of some particular estate or
interest in lands.

   2. The  proper technical  words of  an assignment are, assign,
transfer, and  set over;  but the words grant, bargain, and sell,
or any  other words  which will show the intent of the parties to
make a complete transfer, will amount to an assignment.

   3. A  chose in action cannot be assigned at law, though it may
be done  in equity;  but the assignee takes it subject to all the
equity to which it was liable in the hands of the original party.
2 John.  Ch. Rep.  443, and  the cases  there cited. 2 Wash. Rep.

   4. The deed by which an assignment is made,, is also called an
assignment. Vide,  generally, Com.  Dig. h.  t.;   Bac. Ab. h. t.
Vin. Ab.  h. t.;   Nelson's  Ab. h. t.;  Civ. Code of Louis. art.
2612.  In   relation  to   general  assignments,  see  Angell  on
Assignments, passim;  1 Hate & Wall. Sel. Dec. 78-85.

  5. By an assignment of a right all the accessories which belong
to it,  will pass  with it  as, if  the assignor  of a  bond  had
collateral security,  or  a  lien  on  property,  the  collateral
security and  the lien will pass with the assignment of the bond.
2 Penn. 361;  3 Bibb, 291;  4 B. Munroe, 529;  2 Drev. n. 218;  1
P. St.  R. 454. 6. The assignment of a thing also carries with it
all that belongs to it by right of accession;  if, therefore, the
thing produce interest or rent, the interest or the arrearages of
the rent  since the  assignment, will  belong to  the assignee. 7
John. Cas. 90 6 Pick. 360.

   ASSIGMENT OF DOWER. The act by which the rights of a widow, in
her deceased hushand's real estate, are ascertained and set apart
for her benefit. 2 Bouv. Inst. 242.

   ASSIGNMENT OF  ERRORS. The act by which the plaintiff in error
points out the errors in the record of which he complains.

  2. The errors should be assigned in distinct terms, such as the
defeudant in error may plead to;  and all the errors of which the
plaintiff complains  should be  assigned. 9  Port. 186;  16 Conn.
83;  6 Dana, 242 3 How. (Miss.) R. 77.

   ASSIGNOR. One  who makes  an assignment;   one  who  transfers
property to another.

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   2. In  general the  assignor can  limit the  operation of  his
assignment, and  impose whatever  condition he  may think proper,
but when  he makes  a general  assignment in trust for the use of
his creditors,  he can  impose no  condition whatever  which will
deprive them  of any  right;   14 Pick.  123;   15 John.  151;  7
Cowen, 735;   5  Cowen, 547  20 John. 442;  2 Pick. 129;  nor any
condition forbidden  by law;   as  giving preference when the law
forbids it.

   3. Ad  assignor may  legally choose  his own trustees. 1 Binn.

   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

   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,

   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.

   3. The  final judgment for the plaintiff in an assize of Novel
Disseisin, is,  that he recover per visum recognitorum, and it is
sufficiently certain. if the recognitors can put the demandant in

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possession. Dyer, 84 b;  10 Wentw. PI. 221, note. In this action,
the plaintiff  cannot be  compelled to be nonsuited. Plowd. 11 b.
See 17 Serg. & R. 187;  1 Rawle, Rep. 48, 9.

     4.  There   is,  however,  in  this  class  of  actions,  an
interlocutory judgment, or award in the nature of a judgment, and
which to divers intents and purposes, is a judgment;  11 Co. Rep.
40 b;  like the judgment of quod computet, in account render;  or
quod partitio  flat, in partition;  quod mensuratio fiat;  ouster
of aid;   award  of a  writ of inquiry, in waste.;  of damages in
trespass;   upon these  and the  like judgments,  a writ of error
does not  lie. 11  Co. Rep. 40 a;  Metcalf's Case, 2 Inst. 344 a:
24 Ed. III, 29 B 19.

   ASSIZE OF  MORT D' ANCESTOR. The name, of an ancient writ, now
obsolete. It  might have  been sued  out  by  one  whose  father,
mother, brother,  &c., died seised of lands, and tonements, which
they held  in fee  , and  which, after  their death,  a  stranger
abated. Reg. Orig. 223. See Mort d' Ancestor.

   ASSOCIATE. This  term is  applied to  a judge  who is  not the
president of a court;  as associate judge.

   ASSOCIATION. The  act of  a number of persons uniting together
for some  purpose;   the persons  so joined  are also  called  an
association. See Company.

  ASSUMPSIT, contracts. An undertaking either express or implied,
to perform a parol agreement. 1 Lilly's Reg. 132.

   2. An express assumpsit is where one undertakes verbally or in
writing, not  under seal,  or by  matter of record, to perform an
act, or to pa a sum of money to another.

   3. An  implied assumpsit  is where one has not made any formal
promise to do an act or to pay a sum of money to another, but who
is presumed  from his  conduct to  have assumed  to do what is in
point of law just and right;  for, 1st, it is to be presumed that
no one  desires to enrich himself at the expense of another;  2d,
it is  a rule  that he  who desires the antecedent, must abide by
the consequent;   as, if I receive a loaf of bread or a newspaper
daily sent  to my  house without  orders, and  I use  it  without
objection, I  am presumed  to have  accepted the terms upon which
the person  sending it  had in contemplation, that I should pay a
fair price  for it;   3d,  it is  also a  rule that  every one is
presumed to assent to what is useful to him. See Assent

   ASSUMPSIT, remedies,  practice., A form of action which may be
defined to  be an  action for  the recovery  of damages  for  the
non-performance of,  a parol  or simple  contract;   or, in other
words, a  contract not  under seal, nor of record;  circumstances
which distinguish this remedy from others. 7 T. R. 351;  3 Johns.
Cas. 60.  This action  differs from  the action of debt;  for, in
legal consideration,  that is  for the  recovery  of  a  debt  eo

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nomine, and in numero, and may be upon a deed as well as upon any
other contract.  1 h.  Bl. 554;   B.  N. P.  167. If differs from
covenant, which,  though brought for the recovery of damages, can
only be supported upon a contract under seal. See Covenant.

   2. It  will be proper to consider this subject with reference,
1, to  the contract  upon which this action may be sustained;  2,
the declaration 3, the plea;  4, the judgment.

  3. - 1. Assumpsit lies to recover damages for the breach of all
parol or simple contracts, whether written or not written express
or implied;   for the payment of money, or for the performance or
omission of  any other  act. For example, to recover, money lent,
paid, or  had and  received, to the use of the plaintiff;  and in
some cases,  where money  has been  received by the defendant, in
consequence of some tortious act to the plaintiff's property, the
plaintiff may waive the tort, and sue the defendant in assumpsit.
5 Pick.  285;   1 J. J. Marsh. 543 3 Watts, R. 277;  4 Binn. 374;
3 Dana,  R. 552;  1 N. H. Rep. 151;  12 Pick. 120 4 Call. R. 461;
4 Pick.  452. It  is the  proper remedy for work and. labor done,
and services  rendered 1  Gill, 95;   8 S. & M. 397 2 Gilman, 1 3
Yeates, 250 9 Ala. 788 but such work, labor, or services, must be
rendered at the request, express or implied, of the defendant;  2
Rep. Cons.  Ct. 848;  1 M'Cord, 22;  20 John. 28 11 Mass. 37;  14
Mass. 176;   5  Monr. 513  1 Murph.  181;   for  goods  sold  and
delivered;  6 J. J. Marsh. 441;  12 Pick. 120;  3 N. H. Rep. 384;
1 Mis.  430;   for a  breach of promise of marriage. 3 Mass. 73 2
Overton, 233  2 P.  S. R.  80.  Assumpsit  lies  to  recover  the
purchase money  for land  sold;   14 Johns. R. 210;  14 Johns. R.
162;  20 Johns. R. 838 3 M'Cord, R. 421;  and it lies, specially,
upon wagers;  2 Chit. PI. 114;  feigned issues;  2 Chit. PI. 116;
upon foreign  judgments;   8 Mass.  273;  Dougl. 1;  3 East, 221;
11 East, 124;  3 T. R. 493;  5 Johns. R. 132. But it will not lie
on a  judgment obtained  in a sister state. 1 Bibb, 361 19 Johns.
162;   3 Fairf. 94;  2 Rawle, 431. Assumpsit is the proper remedy
upon an  account stated. Bac. Ab. Assumpsit, A. It will lie for a
corporation, 2 Lev. 252;  1 Camp. 466. In England it does not lie
against a  corporation,  unless  by  express  authority  of  some
legislative act;   1  Chit. PI.  98;  but in this country it lies
against  a  corporation  aggregate,  on  an  express  or  implied
promise, in  the same  manner as against an individual. 7 Cranch,
297 9  Pet. 541;   3  S. & R. 117 4 S. & R. 16 12 Johns. 231;  14
Johns. 118;   2  Bay, 109 1 Chipm. 371, 456;  1 Aik. 180 10 Mass,
397. But see 3 Marsh. 1;  3 Dall. 496.

     4.  -  2.  The  declaration  must  invariably  disclose  the
consideration of  the contract,  the  contract  itself,  and  the
breach of it;  Bac. Ab. h. t. F 5 Mass. 98;  but in a declaration
on a  negotiable instrument  under the statute of Anne, it is not
requisite to, allege any consideration;  2 Leigh, R. 198;  and on
a note expressed to have been given for value received, it is not
necessary to  aver a  special consideration.  7 Johns.  321.  See
Mass. 97.  The gist of this action is the promise, and it must be
averred. 2 Wash. 187 2 N. H. Rep. 289 Hardin, 225. Damages should

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be laid  in a  sufficient amount  to cover the real amount of the
claim. See  4 Pick.  497;  2 Rep. Const. Ct. 339;  4 Munf. 95;  5
Munf. 23;   2  N. H.  Rep. 289;   1 Breese, 286;  1 Hall, 201;  4
Johns. 280;   11 S. & R. 27;  5 S. & R. 519 6 Conn. 176;  9 Conn.
508;  1 N. & M. 342;  6 Cowen, 151;  2 Bibb, 429;  3 Caines, 286.

   5. -  3. The  usual plea is non-assumpsit, (q. v.) under which
the defendant  may give in evidence most matters of defence. Com.
Dig. Pleader,  2 G  1. When  there are  several  defendants  they
cannot plead  the general issue severally;  6 Mass. 444;  nor the
same plea  in bar,  severally. 13  Mass. 152.  The  plea  of  not
guilty, in an action of assumpsit, is cured by verdict. 8 S. & R.
541;   4 Call.  451. See  1 Marsh,  602;  17 Mass. 623. 2 Greenl.
362;  Minor, 254 Bouv. Inst. Index, h. t.
6. -  4. Judgment.  Vide Judgment  in Assumpsit. Vide Bac. Ab. h.
t.;   Com. Dig.  Action upon the Case upon Assumpsit;  Dane's Ab.
Index, h.  t.;   Viner's Ab. h. t.;  1 Chit. Pi. h. t.;  Petersd.
h. t.;   Lawes  PI. in  Assumpsit  the  various  Digests,  h.  t.
Actions;   Covenant;    Debt;    Indebitatus  assumpsit;    Padum
Constitutiae pecuniae.

  ASSURANCE, com. law. Insurance. (q. v.)

  ASSURANCE, conveyancing. This is called a common assurance. But
the  term   assurances  includes,   in  an  enlarged  sense,  all
instruments which dispose of property, whether they be the grants
of private  persons, or  not;  such are fines and recoveries, and
private acts of the legislature. Eunom. Dial. 2, s. 5.

   ASSURED. A  person who  has been  insured  by  some  insurance
company, or  underwriter, against  losses or  perils mentioned in
the policy of insurance. Vide Insured.

   ASSURER. One  who insures  another against  certain perils and
dangers. The same as underwriter. (q. v.) Vide Insurer.

   ASSYTHMENT, Scotch law. An indemnification which a criminal is
bound to  make to  the party injured or his executors, though the
crime itself should be extinguished by pardon. Ersk. Pr. L. Scot.
4, 3, 13.

  ASYLUM. A place, of refuge where debtors and criminals fled for

   2. At  one time,  in Europe,  churches and  other  consecrated
places served as asylums, to the disgrace of the law. These never
protected criminals  in the  United States.  It may be questioned
whether the  house of  an ambassador  (q. v.)  would  not  afford
protection temporarily, to a person who should take refuge there.

   AT LAW. This phrase is used to point out that a thing is to be
done  according  to  the  course  of  the  common  law;    it  is
distinguished from a proceeding in equity.

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   2. In  many cases  when there is no remedy at law, one will be
afforded in equity. See 3 Bouv. Inst. n. 2411.

   ATAVUS. The  male ascendant in the fifth degree, was so called
among the  Romans, and  in tables  of genealogy the term is still

  ATHEIST. One who denies the existence of God.

   2. As  atheists have  not any  religion that  can  bind  their
consciences to  speak the  truth, they  are excluded  from  being
witnesses. Bull.  N. P. 292;  1 Atk. 40;  Gilb. Ev. 129;  1 Phil.
Ev. 19.  See also,  Co. Litt.  6 b.;   2 Inst. 606;  3 Inst. 165;
Willes, R. 451 Hawk. B. 2, c. 46, s. 148;  2 Hale's P. C. 279.

   TO ATTACH,  crim. law, practice. To an attachment for contempt
for the non-take or apprehend by virtue of the order of a writ or
precept, commonly called an attachment. It differs from an arrest
in this,  that he  who arrests  a man,  takes him  to a person of
higher power  to be  disposed of;  but be who attaches, keeps the
party attached, according to the exigency of his writ, and brings
him into  court oh  the day assigned. Kitch. 279;  Bract. lib. 4;
Fleta, lib. 5, c. 24;  17 S. & R. 199.

   ATTACHE'. Connected  with, attached  to. This  word is used to
signify those  persons who are attached to a foreign legation. An
attache is  a public  minister within  the meaning  of the Act of
April 30, 1790, s. 37, 1 Story's L. U. S. 89, which protects from
violence "the  person of an ambassador or other public minister."
1 Bald.  240 Vide 2 W. C. C. R. 205;  4 W. C. C. R. 531;  1 Dall.
117;   1 W. C. C. R. 232;  4 Dall. 321. Vide Ambassador;  Consul;
Envoy;  Minister.

   ATTACHMENT, crim. law, practice. A writ requiring a sheriff to
apprehend a particular person, who has been guilty of. a contempt
of court,  and to bring the offender before the court. Tidd's Pr.
Index, h. t.;  Grab. Pr. 555.

   2. It  may be  awarded by  the court  upon a  bare suggestion,
though generally an oath stating what contempt has been committed
is required,  or on  their own  knowledge without  indictment  or
information. An  attachment may be issued against officers of the
court for disobedience or contempt of their rules and orders, for
disobedience of  their process,  and for disturbing them in their
lawful proceedings.  Bac. Ab.  h. t.  A. in the nature of a civil
execution, and  it was therefore held it could not be executed on
Sunday;   1 T.  R. 266;   Cowper, 394;  Willes, R. 292, note (b);
yet, in.  one case,  it was decided, that it was so far criminal,
that it  could not  be granted in England on the affirmation of a
Quaker. Stra.  441. See  5 Halst.  63;  1 Cowen, 121, note;  Bac.
Ab. h. t.

   ATTACHMENT, remedies.  A writ  issued by  a court of competent
jurisdiction, commanding  the sheriff  or other proper officer to

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seize  any   property;    credit,  or  right,  belonging  to  the
defendant, in  whatever hands  the same  may be found, to satisfy
the demand which the plaintiff has against him.

   2. This writ always issues before judgment, and is intended to
compel  an   appearance  in  this  respect  it  differs  from  an
execution. In  some of the states this process can be issued only
against absconding  debtors, or those who conceal themselves;  in
others it  is issued  in the first instance, so that the property
attached may respond to the exigency of the writ, and satisfy the

   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

   4. -  2. The  domestic attachment  is issued  by the  court of
common pleas  of  the  county  in  which  any  debtor,  being  an
inhabitant of the commonwealth, may reside;  if such debtor shall
have absconded from the place of his usual abode within the same,
or shall  have remained  absent from  the commonwealth,  or shall
have confined  himself to  his own  house, or  concealed  himself
elsewhere,  with  a  design,  in  either  case,  to  defraud  his
creditors. It  is issued  on an  oath or  affirmation, previously
made by  a creditor of such person, or by some one on his bebalf,
of the  truth of  his debt,  and of  the  facts  upon  which  the
attachment may  be founded.  Any other  creditor of  such person,
upon affidavit  of his  debt as  aforesaid, may  suggest his name
upon the  record, and  thereupon such  creditor  may  proceed  to

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prosecute his  said writ,  if the  person suing  the  same  shall
refuse or  neglect to proceed thereon, or if he fail to establish
his right  to prosecute the same, as a creditor of the defendant.
The property  attached is  vested in  trustees to be appointed by
the court,  who are,  after   giving six  months public notice of
their appointment,  to distribute  the assets  attached among the
creditors under  certain regulations  prescribed by  the  act  of
assembly. Perishable  goods way  be sold  under an  order of  the
court, both  under a  foreign and domestic attachment. Vide Serg.
on Attachments Whart. Dig. title Attachment.

   5. By  the code of practice of Louisiana, an attachment in the
hands of  third person  is declared  to  be  a  mandate  which  a
creditor obtains from a competent officer, commanding the seizure
of any  property, credit  or right,  belonging to  his debtor, in
whatever hands  they may be found, to satisfy the demand which he
intends  to  bring  against  him.  A  creditor  may  obtain  such
attachment of the property of his debtor, in the following cases.
1. When  such debtor  is about  permanently  leaving  the  state,
without there  being a  possibility, in  the ordinary  course  of
judicial proceedings,  of obtaining or executing judgment against
him previous  to, his departure;  or when such debtor has already
left the state never again to return. 2. When such debtor resides
out of  the state.  3. When  he conceals  himself to  avoid being
cited or  forced to  answer to  the suit  intended to  be brought
against him. Articles 239, 240.

   6. By  the local  laws of  some of the New England states, and
particularly of  the states  of Massachusetts,  New Hampshire and
Maine, personal  property and  real estate  may be  attached upon
mesne process  to respond  the exigency  of the writ, and satisfy
the judgment.  In such  cases it  is the  common practice for the
officer to  bail the  goods attached,  to  some  person,  who  is
usually a  friend of  the debtor,  upon  an  express  or  implied
agreement on  his part,  to have  them forthcoming  on demand, or
in-time to respond the judgment, when the execution thereon shall
be issued.  Story on  Bailm. §124. As to the rights and duties of
the officer  or bailor  in such  cases, and  as to the rights and
duties of  the bailee, who is conmmonly called the receiptor, see
2 Mass.  514;  9 Mass. 112 11 Mass. 211;  6 Johns. R. 195 9 Mass.
104, 265;   10  Mass. 125 15 Mass. 310;  1 Pick. R. 232, 389. See
Metc. & Perk. Dig. tit. Absent and Absconding Debtors.

   ATTACHMENT OF PRIVILEGE, Eng. law. A process by which a man by
virtue of  his privilege, calls another to litigate in that court
to which he himself belongs;  and who has the privilege to answer

   ATTAINDER, English  criminal law.  Attinctura,  the  stain  or
corruption of  blood which  arises from  being condemned  for any

  2. Attainder by confession, is either by pleading guilty at the
bar before  the judges, and not putting one's self on one's trial

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by a  jury;   or before the coroner in sanctuary, when in ancient
times, the offender was obliged to abjure the realm.

  3. Attainder by verdict, is when the prisoner at the bar pleads
not guilty  to the  indictment, and  is pronounced  guilty by the
verdict of the jury.

   4. Attainder  by process or outlawry, is when the party flies,
and is subsequently outlawed. Co. Lit. 391.

   5. Bill  of attainder,  is a  bill brought into parliament for
attainting  persons   condemned  for   high   treason.   By   the
constitution of  the United  States, art.  1, sect.  9, §3, it is
provided that  no bill of attainder or ex post facto law shall be

   ATTAINT, English  law. 1.  Atinctus,  attainted,  stained,  or
blackened. 2.  A writ  which lies  to inquire  whether a  jury of
twelve men  gave a  false verdict.  Bract. lib. 4, tr. 1, c. 134;
Fleta, lib. 5, c. 22, §8.

   2. It was a trial by jury of twenty-four men empanelled to try
the goodness,  of a  former verdict. 3 Bl. Com. 351;  3 Gilb. Ev.
by Lofft, 1146. See Assize.

   ATTEMPT, criminal  law. An  attempt to  commit a  crime, is an
endeavor to  accomplish it,  carried beyond mere preparation, but
falling short of execution of the ultimate design, in any part of

   2. Between  preparations and  attempts to  commit a crime, the
distinction is  in many cases, very indeterminate. A man who buys
poison for  the purpose  of committing  a murder, and mixes it in
the food  intended for his victim, and places it on a table where
he may  take it,  will or  will not  be guilty  of an  attempt to
poison, from  the simple  circumstance of  his  taking  back  the
poisoned food  before or  after the victim has had an opportunity
to take  it;   for if  immediately on  putting it down, he should
take it up, and, awakened to a just consideration of the enormity
of the  crime, destroy it, this would amount only to preparations
and certainly  if before  he placed it on the table, or before he
mixed the  poison with the food, he had repented of his intention
there would  have been  no attempt  to commit  a crime;   the law
gives this  as a  locus penitentiae. An attempt to commit a crime
is a  misdemeanor;   and an  attempt to  commit a misdemeanor, is
itself a  misdemeanor. 1 Russ. on Cr. 44;  2 East, R. 8;  3 Pick.
R. 26;  3 Benth. Ev. 69;  6 C. & P. 368.

   ATTENDANT. One  who owes  a duty  or service to another, or in
some sort  depends upon  him. Termes  de la  Ley,  h.  t.  As  to
attendant terms, see Powell on Morts. Index, tit. Attendant term;
Park on Dower, c. 1 7.

   ATTENTAT, In  the language  of the  civil and  canon laws,  is

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anything whatsoever  in the  suit by  the judge a quo, pending an
appeal. 1 Addams, R. 22, n.;  Ayl. Par. 100.

   ATTERMINING. The  granting a time or term for the payment of a
debt. This
word is not used. See Delay.

   ATTESTATION, contracts  and evidence. The act of witnessing an
instrument of  writing, at  the request  of the  party making the
same, and subscribing it as a witness. 3 P. Wms. 254 2 Ves. 454 1
Ves. & B. 362;  3 Marsh. 146;  3 Bibb. 494;  17 Pick. 373.

   2. It  will be  proper to consider, 1. how it is to be made 2.
bow it  is proved;   3.  its effects  upon the  witness;   4. its
effect upon the parties.

   3.- 1.  The attestation  should be  made in the case of wills,
agreeably to  the direction of the statute;  Com. Dig. Estates, E
1 and  in the  case of deeds or other writings, at the request of
the party  executing the  same. A  person who  sees an instrument
executed, but  is not desired by the parties to attest it, is not
therefore an attesting witness, although he afterwards subscribes
it as  such. 3  Camp. 232.  See, as to the form of attestation, 2
South. R. 449.

   4. -  2. The general rule is, that an attested instrument must
be proved  by the  attesting witness.  But to this rule there are
various  exceptions,   namely:  1.   If  he  reside  out  of  the
jurisdiction of  the court;   22 Pick. R. 85;  2. or is dead;  3.
or becomes insane;  3 Camp. 283;  4. or has an interest;  5 T. R.
371;   5. or  has married the party who offers the instrument;  2
Esp. C.  698 6. or refuses to testify 4 M. & S. 353;  7. or where
the witness  swears he  did not  see the writing executed;  8. or
becomes infamous;  Str. 833;  9. or blind;  1 Ld.
Raym. 734.  From these  numerous cases,  and those to be found in
the books,  it would  seem that,  whenever  from  any  cause  the
attesting witness  cannot be had secondary evidence may be given.
But the  inability to  procure the witness must be absolute, and,
therefore, when  be is  unable to  attend from sickness only, his
evidence cannot  be dispensed  with. 4 Taunt. 46. See 4 Halst. R.
322;   Andr. 236  2 Str.  1096;   10 Ves.  174;   4 M. & S. 353 7
Taunt. 251;   6  Serg. & Rawle, 310;  1 Rep. Const.;  Co. So. Ca.
310;   5 Cranch,  13;    Com.  Dig.  tit.  Testmoigne,  Evidence,
Addenda;  5 Com. Dig. 441;  4 Yeates, 79.

   5. -  3. When  the witness attests an instrument which conveys
away, or  disposes of his property or rights, he is estopped from
denying the effects of such instrument;  but in such case he must
have been  aware of its contents, and this must be proved. 1 Esp.
C. 58.

  6. - 4. Proof of the attestation is evidence of the sealing and
delivery. 6  Serg. & Rawle, 311;  2 East, R. 250;  1 Bos. & Pull.
360;  7 T. R. 266. See, in general, Starkie's Ev. part 2, 332;  1

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Phil. Ev. 419 to 421;  12 Wheat. 91;  2 Dall. 96;  3 Rawle's Rep.
312 1  Ves. Jr.  12;   2 Eccl. Rep. 60, 214, 289, 367 1 Bro. Civ,
Law, 279, 286;  Gresl. Eq. Ev. 119 Bouv. Inst. n. 3126.

   ATTESTATION CLAUSE,  wills and  contracts. That clause wherein
the witnesses  certify that  the  instrument  has  been  executed
before them,  and the  manner of  the execution  of the same. The
usual attestation  clause to a will, is in the following formula,
to wit:  "Signed, sealed,  published and  declared by  the  above
named A  B, as  and for  his last  will  and  testament,  in  the
presence of  us, who  have hereunto  subscribed our  names as the
witnesses thereto,  in the  presence of the said testator, and of
each other."  That of  deeds is generally in these words " Sealed
and delivered in the presence of us."
 2.  When there  is an attestation clause to a will, unsubscribed
by witnesses, the presumption, though slight, is that the will is
in an unfinished state;  and it must be removed by some extrinsic
circumstances. 2  Eccl. Rep.  60. This 'presumption is infinitely
slighter, where  the writer's  iutention  to  have  it  regularly
attested, is  to  be  collected  only  from  the  single  vord  "
witnesses." Id.  214. See  3 Phillim. R. 323;  S. C. 1 Eng. Eccl.
R. 407.

   ATTESTING WITNESS. One who, upon being required by the parties
to an  instrument, signs  his name to it to prove it, and for the
purpose of identification.

  2. The witness must be desired by the parties to attest it, for
unless this  be done,  he  will  not  be  an  attesting  witness,
although he  may have  seen the parties execute it. 3 Campb. 232.
See Competent witness;  Credible witness;  Disinterested witness;
Respectable witness;  Subscribing witness;  and Witness;  Witness
instrumentary;  5 Watts, 399;  3 Bin. 194.

   ATTORNEY. One who acts for another by virtue of an appointment
by the latter. Attorneys are of various kinds.

  2. Attorney in fact. A person to whom the authority of another,
who is called the constituent, is by him lawfully delegated. This
term is  employed to  designate persons  who act  under a special
agency, or  a special  letter  of  attorney,  so  that  they  are
appointed  in  factum,  for  the  deed,  or  special  act  to  be
performed;   but in  a more  extended sense it includes all other
agents employed in any business, or to do any act or acts in pais
for another. Bac. Ab. Attorney;  Story, Ag. §25.

   3. All  persons who  are capable of acting for themselves, and
even  those  who  are  disqualified  from  acting  in  their  own
capacity, if  they have sufficient understanding, as infants of a
proper age and femes coverts, may act as attorneys of others. Co.
Litt. 52,  a;  1 Esp. Cas. 142;  2 Esp. Cas. 511 2 Stark. Cas. N.
P. 204.

   4. The  form of  his appointment is by letter of attorney. (q.

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   5. The  object of  his appointment  is the transaction of some
business of the constituent by the attorney.

  6. The attorney is bound to act with due diligence after having
accepted the employment, and in the end, to 'render an account to
his principal  of the  acts which  be has performed for him. Vide
Agency;  Agent;  Authority;  and Principal.

   7. Attorney  at law.  An officer in a court of justice, who is
employed by  a party  in a  cause to  manage the  same  for  him.
Appearance by  an attorney  has been allowed in England, from the
time of  the earliest records of the courts of that country. They
are mentioned  in Glanville,  Bracton, Fleta, and Britton;  and a
case turning  upon the  party's right  to appear  by attorney, is
reported, B.  17 Edw.  III.,  p.  8,  case  23.  In  France  such
appearances were  first allowed  by letters  patent of  Philip le
Bel, A.  D. 1290. 1 Fournel, Hist. des Avocats, 42;  43, 92, 93 2
Loisel Coutumes,  14, 15.  It results  from the  nature of  their
functions, and  of their  duties, as  well to the court as to the
client, that no one can, even by consent, be the attorney of both
the litigating parties, in the same controversy. Farresly, 47.

   8. In  some courts,  as in  the supreme  court of  the  United
States, advocates  are divided  into counsellors  at law, (q. v.)
and attorneys.  The business  of attorneys  is to  carry  on  the
practical and  formal parts of the suit. 1 Kent, Com. 307. See as
to their  powers, 2  Supp. to Ves. Jr. 241, 254;  3 Chit. Bl. 23,
338;   Bac. Ab. h. t.;  3 Penna. R. 74;  3 Wils. 374;  16 S. & R.
368;   14 S.  & R.  307;   7 Cranch,  452;   1 Penna.  R. 264. In
general, the agreement of an attorney at law, within the scope of
his employment,  binds his  client;   1 Salk.  86 as to amend the
record, 1  Binn. 75;  to refer a cause 1 Dall. Rep. 164;  6 Binn.
101;   7 Cranch,  436;   3 Taunt.  486;  not to sue out a writ of
error;   1 H.  Bl. 21,  23 2 Saund. 71, a, b;  1 Term Rep. 388 to
strike off  a non  pros;   1 Bin.  469-70 to  waive a judgment by
default;  1 Arcb. Pr. 26;  and this is but just and reasonable. 2
Bin. 161.  But the  act  must  be  within  the  scope  of  -their
authority. They  cannot, for  example, without special authority,
purchase lands  for the client at sheriff's sale. 2 S. & R. 21 11
Johns. 464.

  9. The name of attorney is given to those officers who practice
in courts  of common  law;   solicitors, in courts. of equity and
proctors,  in   courts  of   admiralty,  and   in   the   English
ecclesiastical courts.

   10. The  principal duties of an attorney are, 1. To be true to
the court  and to  his client;   2. To manage the business of his
client with  care, skill  and integrity.  4 Burr.  2061 1 B. & A.
202;   2 Wils.  325;   1 Bing.  R. 347;   3.  To keep  his client
informed as to the state of his business;  4. To keep his secrets
confided to him as such. See Client Confidential Communication.

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   11. For  a violation  of his duties, an action will in general
lie;   2 Greenl.  Ev. §145,  146;   and, in some cases, he may be
punished  by   an  attachment.  His  rights  are,  to  be  justly
compensated for  his services.  Vide 1  Keen's R.  668;   Client;
Counsellor at law.

   12. Attorney-general  of the  United  States,  is  an  officer
appointed by  the president. He should be learned in the law, and
be sworn or affirmed to a faithful execution of his office.

   13. His  duties are  to prosecute and conduct all suits in the
supreme court,  in which  the United  States shall  be concerned;
and give  his advice  upon questions of law, when required by the
president,  or  when  requested  by  the  heads  of  any  of  the
departments, touching matters that may Concern their departments.
Act of 24th Sept. 1789.

   14. His  salary is  three thousand  five hundred  dollars  per
annum, and  he is allowed one clerk, whose compensation shall not
exceed one  thousand dollars  per annum.  Act 20th  Feb. 1819,  3
Story's Laws,  1720, and  Act 20th  April, 1818,  s. 6, 3 Story's
Laws, 1693.  By the act of May 9, 1830, 4 Sharsw. cont. of Story,
L. U.  S. 2208, §10, his salary is increased five hundred dollars
per annum.

   ATTORNMENT, estates.  Was the  agreement of  the tenant to the
grant of  the seignory,  or of  a rent,  or the  agreement of the
donee in  tail, or  tenant for  life, or  years, to  a grant of a
reversion or  of a  remainder made  to another.  Co.  Litt.  309;
Touchs.  253.  Attornments  are  rendered  unnecessary,  even  in
England, by  virtue of sundry statutes, and they are abolished in
the United  States. 4 Kent, Com. 479;  1 Hill. Ab. 128, 9. Vide 3
Vin. Ab.  317;  1 Vern. 330, n.;  Saund. 234, n. 4;  Roll. Ab. h.
t.;  Nelson's Ab. h. t.;  Com. Dig. h. t.

   AU BESOIN.  This is  a French  phrase, used in commercial law.
When the  drawer of a foreign bill of exchange wishes as a matter
of precaution, and to-save expenses, he puts in the corner of the
bill, " Au besoin chez Messieurs or, in other words, " In case of
need, apply  to Messrs.  at __________  " ___________."   1 Bouv.
Inst. n. 1133 Pardess Droit Com. 208.

  AUBAINE, French law. When a foreigner died in France, the crown
by virtue of a right called droit d'aubaine, formerly claimed all
the personal property such foreigner had in France at the time of
his death.  This barbarous  law was  swept  away  by  the  French
revolution of 1789. Vide Albinatus Jus. 1 Malleville's Analyse de
la Discussion du Code Civil, pp. 26, 28 1 Toullier, 236, n. 265.

   AUCTION, commerce,  contract. A public sale of property to the
highest bidder. Among the Romans this kind of sale, was made by a
crier under a spear (sub hasta) stuck in the ground.

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   2. Auctions  are generally  held by express authority, and the
person who con-
ducts them is licensed to do so under various regulations.

   3. The  manner of conducting an auction is imaterial;  whether
it be by public
outcry or  by  any  other  manner.  The  essential  part  is  the
selection of  a purchaser  from a  number of  bidders. In  a case
where a woman continued silent during the whole time of the sale,
but whenever  anyone bid she gave him a glass of brandy, and when
the sale  broke up,  the person  who received  the last  glass of
brandy was  taken into  a private room, and he was declared to be
the purchaser;  this was adjudged to be an auction. 1 Dow. 115.

   4. The  law requires  fairness in  auction sales,  and when  a
puffer is employed to raise the property offered for sale on bona
fide bidders,  or a  combination is  entered into  between two or
more persons  not to  overbid each  other, the  contract  may  in
general be  avoided. Vide Puffer, and 6 John. R. 194;  8 John. R.
444;   3 John.  Cas. 29;   Cowp.  395;   6 T. R. 642;  Harr. Dig.
Sale, IV.;   and  the article  Conditions Sale.  Vide Harr.  Dig.
Sale, IV.;   13 Price, R. 76;  M'Clel. R. 25;  6 East, R. 392;  5
B. &  A. 257;   S. C. 2 Stark. R. 295;  1 Esp. R. 340;  5 Esp. R.
103 4  Taunt. R. 209;  1 H. Bl. R. 81;  2 Chit. R. 253;  Cowp. R.
395;  1 Bouv. Inst., n. 976.

   AUCTIONEER, contracts, commerce. A person authorized by law to
sell the goods of others at public sale.

  2. He is the agent of both parties, the seller and the buyer. 2
Taunt. 38, 209 4 Greenl. R. 1;  Chit. Contr. 208.

   3. His rights are, 1. to charge a commission for his services;
2. be  has an  interest  in  the  goods  sold  coupled  with  the
possession;  3. he has a lien for his commissions;  4. he may sue
the buyer for the purchase-money.

   4. He  is liable,  1. to the owner for a faithful discharge of
his duties in the sale, and if he gives credit without authority,
for the  value of the goods;  2. he is responsible for the duties
due to the government;  3. he is answerable to the purchaser when
he does  not disclose  the name  of the  principal;  4. be may be
sued when  he sells the goods of a third person, after notice not
to sell  them. Peake's  Rep. 120;   2 Kent, Com. 423, 4;  4 John.
Ch. R. 659;  3 Burr. R. 1921;.2 Taunt. R. 38;  1, Jac. & Walk. R.
350;   3 V. & B. 57;  13 Ves. R. 472;  1 Y. & J. R. 389;  5 Barn,
& Ald.  333;   1 H.  Bl. 81;   7 East, R. 558;  4 B. & Adolpb. R.
443;   7 Taunt.  209;   3 Chit.  Com. L. 210;  Story on Ag. §27 2
Liv. Ag.  335 Cowp. 395;  6 T. R. 642;  6 John. 194;  Bouv. Inst.
Index, h. t.

   AUCTOR. Among  the Romans  the seller  was called auctor;  and
public, sales  were made  by fixing  a spear  in the forum, and a
person who acted as crier stood by the spear the catalogue of the

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goods to be sold was made in tables called auctionariae.

  AUDIENCE. A hearing. It is usual for the executive of a country
to whom  a minister  has been  sent, to  give  such  minister  an
audience. And  after a minister has been recalled, au audience of
leave usually takes place.

   AUDIENCE COURT,  Eng. eccl.  law. A  court  belonging  to  the
archbishop of  Canterbury, having  the same  authority  with  the
court of arches. 4 Inst. 337.

  AUDIENDO ET TERMINANDO, oyer and terminer, English crim. law. A
writ, or rather a commission, directed to certain persons for the
trial and  punishment of such persons as have been concerned in a
riotous assembly, insurrection or other heinous misdemeanor.

   AUDITA QUERELA.  A writ  applicable to the case of a defendant
against whom a judgment has been recovered, (and who is therefore
in  danger  of  execution  or  perhaps  actually  in  execution,)
grounded on  some matter  of discharge  which happened  after the
judgment, and  not upon  any matter which might have been pleaded
as a defence to the action. 13 Mass. 453;  12 Mass. 270;  6 Verm.
243;  Bac. Ab. h. t.;  2 Saund. 148, n. 1;  2 Sell. Pr. 252.

  2. It is a remedial process, which bears solely on the wrongful
acts of  the opposite party, and not upon the erroneous judgments
or acts  of the  court. 10 Mass. 103;  17 Mass. 159;  1 Aik. 363.
It will  therefore, where  the cause  of complaint  is  a  proper
subject for a writ of error. 1 Verm. 433, 491;  Brayt. 27.

   3. An audita querela is in the nature of an equitable suit, in
which the  equitable rights of the parties will be considered. 10
Mass. 101;  14 Mass. 448 2 John. Cas. 227.

   4. An  audita querela  is a regular suit, in which the parties
may plead,  take issue,  &c. 17  John. 484.  But the writ must be
allowed in  open court,  and is  not, of  itself, a  supersedeas,
which may  or may not be granted, in the discretion of the court,
according to circumstances. 2 John. 227.

  5. In modern practice, it is usual to grant the same relief, on
motion, which might be obtained by audita querela: 4 John. 191 11
S. &  R. 274  and in Virginia, 5 Rand. 639, and South Carolina, 2
Hill, 298;   the  summary remedy,  by motion, has superseded this
ancient remedy. In Pennsylvania this writ. It seems, may still be
maintained, though  relief is  more generally obtained on motion.
11 S. & R. 274. Vide, generally, Pet. C. C. R. 269;  Brayt. 2 or,
28;   Walker, 66 1 Chipm. 387;  3 Conn. 260;  10 Pick. 439 1 Aik.
107;   1 Overt.  425 2 John. Cas. 227 1 Root;  151;  2 Root, 178;
9 John. 221 Bouv. Inst. Index, h. t.

   AUDITOR. An  officer whose  duty is to examine the accounts of
officers who  have received and dishursed public moneys by lawful
authority. See  Acts of  Congress, April 3, 1817;  3 Story's Laws

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U. S. 1630;  and the Act of February 24, 1819, 3 Story's L. U. S.

   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

  AUNT, domestic relations. The sister of one's father or mother;
she is  a relation  in the  third degree.  Vide 2  Com. Dig.  474
Dane's Ab. c. 126, a. 3. §4.

  AUTER. Another. This word is frequently used in composition, us
auter droit,
auter vie, auter action, &c. .

  AUTRE ACTION PENDANT. A plea that another action is pending for
the same cause.

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   2. It  is evident  that a plaintiff cannot have two actions at
the same  time, for  the same  cause, against the same defendant;
and when a second action is so commenced, and this plea is filed,
the first  action must  be discontinued,  and the costs paid, and
this ought  to be  done before  the plaintiff  replies  nul  tiel
record. Grah. Pr. 98. See Lis Pendens.

   3. But  the suit  must be for the same cause, in order to take
advantage of  it under  these circumstances,  for if  it be for a
different cause,  as,  if  the  action  be  for  a  lien,  as,  a
proceeding in,  rem to  enforce a  mechanic's lien,  it cannot be
pleaded in  abatement in an action for the labor and materials. 3
Scamm. 201. See 16 Verm. 234;  1 Richards, 438;  3 Watts & S. 395
7 Mete. 570;  9 N. H. Rep. 545.

  4. In general, the pending of another action must be pleaded in
abatement;   3 Rawle, 320;  1 Mass. 495;  5 Mass. 174, 179;  2 N.
H. Rep. 36 7 Verm. 124;  3 Dana, 157;  1 Ashm. 4, 2 Browne, 175 4
H. &  M. 487;   but  in a  penal action,  at the suit of a common
informer, the  priority of  a former suit for the same penalty in
the name  of a  third person,  may be pleaded in bar, because the
party who first sued is entitled to the penalty. 1 Chit. PI. 443.

   5. Having  once arrested a defendant, the plaintiff cannot, in
general, arrest  him again  for the  same cause  of action. Tidd.
184. But  under special  circumstance's, of  which the court will
judge, a  defendant may  be arrested a second time-. 2 Miles, 99,
100, 141, 142. Vide Bac. Ab. Bail in civil cases, B 3;  Grah. Pr.
98;   Troub. &  H. Pr.  44;   4 Yeates, 206, 1 John. Cas. 397;  7
Taunt. 151;  1 Marsh. 395;  and Lis Pendens.

   AUTER DROIT, or more properly, Autre Droit, another's right. A
man may sue Or be sued in another's right;  this is the case with
executors and administrators.

  AUTHENTIC. This term signifies an original of which there is no

   AUTHENTIC ACT,  civil law,  contracts, evidence. The authentic
act is  that which  has been  executed before  a notary  or other
public officer  authorized to execute such functions, or which is
testified by  a public  seal, or  has been rendered public by the
authority of  a competent  magistrate, or  which is  certified as
being a  copy of  a public register. Nov. 73, c. 2;  Code, 7, 52;
6;  Id. 4, 21;  Dig. 22, 4.

  2. In Louisiana, the authentic act, as it relates to contracts,
is that  which has  been executed before a notary public or other
officer authorized  to execute such functions, in presence of two
witnesses, free,  male, and  aged at  least fourteen years, or of
three witnesses,  if the  party be  blind. If  the party does not
know how  to sign, the notary must cause him to affix his mark to
the instrument. Civil Code of Lo., art. 2231.

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   3. The  authentic act is full proof of the agreement contained
in it,  against the  contracting  parties  and  their.  heirs  or
assigns, unless  it be  declared and  proved to be a forgery. Id.
art. 2233. Vide Merl. Rep. h. t.

   AUTHENTICATION, practice.  An attestation  made  by  a  proper
officer, by  which he  certifies that  a record is in due form of
law, and  that  the  person  who  certifies  it  is  the  officer
appointed by law to do so.

   2. The  Constitution of  the U.  S., art. 4, s. 1, declares, "
Full faith  and credit shall be given in each state to the public
acts, records  and judicial proceedings of every other state. And
congress may  by general  laws prescribe the manner in which such
acts,, records  and proceedings  shall be  proved, and the effect
thereof." The object of the authentication is to supply all other
proof of  the record. The laws of the United States have provided
a mode  of authentication  of public  records and  office papers;
these acts are here transcribed.

  3. By the Act of May 26, 1790, it is provided, "That the act of
the legislatures  of the several states shall be authenticated by
havig the  seal of  their respective states affixed thereto: That
the records  and judicial  proceedings of the courts of any state
shall be proved or admitted, in any other court within the United
States, by  the attestation  of the  clerk, and  the seal  of the
court annexed, if there be a seal, together with a certificate of
the judge, chief justice or presiding magistrate, as the case may
be, that  the said  attestation is  in due  form.  And  the  said
records and  judicial proceedings,  authenticated  as  aforesaid,
shall have  such faith  and credit  given to them, in every court
within the  United States,  as they have, by law or usage, in the
courts of the state from whence the said records are, or shall be

   4. The  above act  having provided  only for  one  species  of
record, it  was necessary  to pass  the Act of March 27, 1804, to
provide for  other cases.  By this act it is enacted, §1. " That,
from  and  after  the  passage  of  this  act,  all  records  and
exemplifications of office books, which are or may be kept in any
public office of any state, not appertaining to a court, shall be
proved or  admitted in  any other  court or  office in  any other
state, by  the attestation  of the  keeper of the said records or
books, and  the seal of his office thereto annexed, if there be a
seal, together with a certificate of the presiding justice of the
court of  the county  or district,  as the  case may be, in which
such office  is or  may be kept or of the governor, the secretary
of state,  the chancellor  or the keeper of the great seal of the
state, that  the said  attestation is  in due  form, and  by  the
proper  officer  and  the  said  certificate,  if  given  by  the
presiding justice  of a  court, shall be further authenticated by
the clerk  or prothonotary  of the said court, who shall certify,
under his  hand and  the  seal  of  his  office,  that  the  said
presiding justice  is duly commissioned and qualified;  or if the

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said certificate  be given  by the;   governor,  the secretary of
state, the  chancellor or  keeper of  the great seal, it shall be
under the  great seal  of the state in which the said certificate
is made. And the said records and exemplifications, authenticated
as aforesaid,  shall have  such faith and credit given to them in
every court  and office within the United States, as they have by
law or  usage in  the courts  or offices of the state from whence
the same are or shall be taken."

   5. -  §2. That  all the provisions of this act, and the act to
which this  is, a  supplement, shall apply, as well to the public
acts, records,  office books,  judicial proceedings,  courts, and
offices of  the respective  territories of the United States, and
countries subject to the jurisdiction of the United States, as to
the public  acts, records,  office books,  judicial  proceedings,
courts and offices of the several states."

   6. The  Act of  May 8,  1792, s.  12, provides:  That all  the
records and  proceedings of  the  court  of  appeals,  heretofore
appointed, previous  to the adoption of the present constitution,
shall be  deposited in  the office  of the  clerk of  the supreme
court of the United States, who is hereby authorized and directed
to give copies of all such records and proceedings, to any person
requiring and  paying for  the same,  in like manner as copies of
the records  and other  proceedings of  the said court are by law
directed to  be given;   which  copies shall  have like faith and
credit as all other proceedings of the said court."

   7. By  authentication is  also understood whatever act is done
either by  the party  or some other person with a view of causing
an instrument  to be  known and  identified as  for example,  the
acknowledgment of a deed by the grantor;  the attesting a deed by
witnesses. 2 Benth. on Ev. 449.

  AUTHENTICS, civ. law. This is the name given to a collection of
the Novels  of Justinian,  made by  an anonymous  author.  It  is
called authentic on account of its authority.

   2. There  is also  another collection  which bears the name of
authentics. It is composed of extracts made from the Novels, by a
lawyer named  Irnier, and  which he  inserted in the code at such
places as  they refer;  these extracts have the reputation of not
being correct. Merlin, Repertoire, mot Authentique.

  AUTHORITIES, practice. By this word is understood the citations
which are  made of  laws, acts  of the  legislature, and  decided
cases, and  opinions of  elementary writers. In its more confined
sense, this  word means, cases decided upon solemn argument which
are said to 'be authorities for similar judgments iii like cases.
1 Lilly's Reg. 219. These latter are sometimes called precedents.
(q. v.) Merlin, Repertoire, mot Autorites.

  2. It has been remarked, that when we find an opinion in a text
writer upon  any particular point, we must consider it not merely

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as the  opinion of  the author, but as the supposed result of the
authorities to which he refers;  3 Bos. & Pull. 361;  but this is
not always  the case, and frequently the opinion is advanced with
the reasons  which support it, and it must stand or fall as these
are or  are not well founded. A distinction has been made between
writers who  have, and  those who  have  not  holden  a  judicial
station;  the former are considered authority, and the latter are
not  so  considered  unless  their  works  have  been  judicially
approved as  such. Ram.  on Judgments,  93. But  this distinction
appears not to be well founded;  some writers who have occupied a
judicial station  do not  possess the  talents or the learning of
others who  have not  been so elevated, and the works or writings
of the  latter are  much  more  deserving  the  character  of  an
authority than those of the former. See 3 T. R. 4, 241.

   AUTHORITY, contracts. The delegation of power by one person to

   2. We  will consider,  1. The  delegation 2. The nature of the
authority. 3.  The manner it is to be executed. 4. The effects of
the authority.

  3. - 1. The authority may be delegated by deed, or by parol. 1.
It may  be delegated  by  deed  for  any  purpose  whatever,  for
whenever an  authority by  parol would be sufficient, one by deed
will be  equally so.  When the authority is to do something which
must be  performed  through  the  medium  of  a  deed,  then  the
authority must  also be  by deed, and executed with all the forms
necessary, to  render that  instrument perfect;   usless, indeed,
the principal  be present,  and verbally  or impliedly authorizes
the agent  to fix  his name to the deed;  4 T. R. 313;  W. Jones,
R. 268;   as,  if a  man be authorized to convey a tract of land,
the letter  of attorney must be by deed. Bac. Ab. h. t.;  7 T. R.
209;   2 Bos. & Pull, 338;  5 Binn. 613;. 14 S. & A. 331;  6 S. &
R. 90;   2  Pick. R. 345;  6 Mass. R. 11;  1 Wend. 424 9 Wend. R.
54, 68;   12 Wend. R. 525;  Story, Ag. §49;  3 Kent, Com. 613, 3d
edit.;   3 Chit. Com. Law, 195. But it does not require a written
authority to sign an unscaled paper, or a contract in writing not
under seal. Paley on Ag. by Lloyd, 161;  Story, Ag. §50.

   4. -  2. For  many purposes,  however, the authority may be by
parol, either  in writing  not under seal, or verbally, or by the
mere employment  of the agent. Pal. on Agen. 2. The exigencies of
commercial affairs  render  such  an  appointment  indispensable;
business would  be greatly  embarrassed, if  a regular  letter of
attorney were  required to sign or negotiate a promissory note or
bill of  exchange, or  sell or  buy goods,  or write a letter, or
procure a  policy for  another. This  rule of  the common law has
been adopted  and followed  from the  civil law.  Story, Ag. §47;
Dig. 3, 3, 1, 1 Poth. Pand. 3, 3, 3;  Domat, liv. 1, tit. 15, §1,
art. 5;  see also 3 Chit. Com. Law, 5, 195 7 T. R. 350.

   5. -  2. The  authority given  must have been possessed by the
person who delegates it, or it will be void;  and it must be of a

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thing lawful,  or it  will not  justify the  person to whom it is
given. Dyer,  102;   Kielw. 83.  It  is  a  maxim  that  delegata
potestas non  potest delegari,  so that  an agent  who has a mere
authority must  execute  it  himself,  and  cannot  delegate  his
authority to  a sub-agent. See 5 Pet. 390;  3 Story, R. 411, 425;
11 Gill  & John.  58;   26 Wend.  485;   15 Pick.  303, 307;    1
McMullan, 453;  4 Scamm. 127, 133-;  2 Inst.
597. See Delegation.

   6. Authorities  are divided into general or special. A general
authority is  one which  extends to  all acts  connected  with  a
particular employment;   a  special authority  is one confined to
"an individual instance." 15 East, 408;  Id. 38.

   7. They  are also divided into limited and unlimited. When the
agent is  bound by  precise instructions,  it is  limited;    and
unlimited when  be is  left to  pursue  his  own  discretion.  An
authority is either express or implied.

   8. An express authority may be by deed of by parol, that is in
writing not  under seal,  or verbally..  The authority  must have
been actually given.

   9. An implied authority is one which, although no proof exists
of its  having been  actually given,  may be  inferred  from  the
conduct of  the principal;   for  example, when  a man leaves his
wife without  support, the  law presumes he authorizes her to buy
necessaries for  her maintenance;   or  if a master, usually send
his servant to buy goods for him upon credit, and the servant buy
some things  without the  master's orders, yet the latter will be
liable upon  the implied authority. Show. 95;  Pal. on Ag. 137 to

   10. -  3. In considering in what manner the authority is to be
executed, it  will be  necessary  to  examine,  1.  By  whom  the
authority must be executed. 2. In what manner. 3. In what time.

   11. -  1. A  delegated authority  can be  executed only by the
person to  whom it  is given,  for the confidence being personal,
cannot be assigned to a stranger. 1 Roll. Ab. 330 2 Roll. Ab. 9 9
Co. 77 b .;  9 Ves. 236, 251 3 Mer. R. 237;  2 M. & S. 299, 301.

   12. An  authority given  to two cannot be executed by one. Co.
Litt. 112  b, 181  b. And an authority given to three jointly and
separately, is  not, in  general, well executed by two. Co. Litt.
181 b;  sed vide 1 Roll. Abr. 329, 1, 5;  Com. Dig. Attorney, C 8
3 Pick.  R. 232;   2  Pick. R. 345;  12 Mass. R. 185;  6 Pick. R.
198;   6 John.  R. 39;   Story,  Ag. §42. These rules apply to on
authority of  a private  nature, which must be executed by all to
whom it  is given;   and not to a power of a public nature, which
may be executed by all to whom majority. 9 Watts, R. 466;  5 Bin.
484, 5;   9  S, &  R. 99. 2. When the authority is particular, it
must in  general be  strictly pursued, or it will be void, unless
the variance be merely circumstantial. Co. Litt. 49 b, 303, b;  6

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T. R. 591;  2 H. Bl. 623 Co. Lit. 181 , b;  1 Tho. Co. Lit. 852.

   13. -  2. As to the form to be observed in the execution of an
authority, it is a general rule that an act done under a power of
attorney must  be done  in the  name Of  the person  who gives  a
power, and  not in the attorney's name. 9 Co. 76, 77. It has been
holden that  the name of the attorney is not requisite. 1 W. & S.
328, 332;   Moor,  pl. 1106;   Str.  705;  2 East, R. 142;  Moor,
818;   Paley on  Ag. by  Lloyd, 175;   Story on Ag. §146 T 9 Ves.
236: 1  Y. & J. 387;  2 M. & S. 299;  4 Campb. R. 184;  2 Cox, R.
84;  9 Co. R. 75;  6 John. R. 94;  9 John. Pi,. 334;  10 Wend. R.
87;  4 Mass. R. 595;  2 Kent, Com. 631, 3d ed. But it matters not
in what  words this  is done,  if it sufficiently appear to be in
the name  of the  principal, as,  for A  B, (the principal,) C D,
(the attorney,)  which has  been held  to be  sufficient. See  15
Serg. &  R. 55;   11  Mass. R. 97;  22 Pick. R. 168;  12 Mass. R.
237 9  Mass. 335;   16  Mass. R. 461;  1 Cowen, 513;  3 Wend. 94;
Story, Ag. §§154,275, 278, 395;  Story on P. N., §69;  2 East, R.
142;   7 Watt's  R. 121  6 John.  R. 94. But see contra, Bac. Ab.
Leases, J 10;  9 Co, 77;  l Hare & Wall. Sel. Dec. 426.

   14. - 3. The execution musr take place during the continuance,
of the  authority, which  is determined  either by revocation, or
performance of the commission.

   15. In  general, an authority is revocable, unless it be given
as a security, or it be coupled with an interest. 3 Watts & Serg.
14;   4 Campb.  N. P.  272;   7 Ver.  28;   2 Kent's Com. 506;  8
Wheat. 203;   2  Cowen, 196;  2 Esp. N. P. Cases, 565;  Bac. Abr.
h. t.  The revocation (q. v.) is either express or implied;  when
it is  express and  made known  to  the  person  authorized,  the
authority is  at an  end;   the revocation  is implied  when  the
principal dies,  or, if a female, marries;  or the subject of the
authority is  destroyed, as  if a  man have  authority to sell my
house, and  it is destroyed by fire or to buy for me a horse, and
before the execution of the authority, the horse dies.

   16. When  once the agent has exercised all the authority given
to him, the authority is at an end.

   17. -  4. An authority is to be so construed as to include all
necessary or  usual means  of executing  it with  effect 2 H. Bl.
618;   1 Roll. R. 390;  Palm. 394 10 Ves. 441;  6 Serg. & R. 149;
Com'. Dig.  Attorney, C  15;   4 Campb. R. 163 Story on Ag. 58 to
142;   1 J.  J. Marsh. R. 293 5 Johns. R. 58 1 Liv. on Ag. 103, 4
and when  the agent acts, avowedly as such, within his authority,
he is  not personally  responsible .  Pal. on  Ag.  4,  5.  Vide,
generally, 3 Vin. Ab. 416;  Bac. Ab. h. f.;  1 Salk. 95 Com. Dig.
h. t.,  and the titles there referred to. 1 Roll. Ab. 330 2 Roll.
Ab. 9  Bouv. Inst.  Index, h.  t.  and  the  articles,  Attorney;
Agency;  Agent;  Principal.

  AUTHORITY, government. The right and power which an officer has
in the  exercise of  a public function to compel obedience to his

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lawful commands.  A judge,  for example, has authority to enforce
obedience to his
not being correct. Merlin, Repertoire, mot Authentique.

   AUTOCRACY. The  name of  a government  where  the  monarch  is
unlimited by  law. Such  is the  power of  the emperor of Russia,
who, following the example of his predecessors, calls himself the
autocrat of all the Russias.

  AUTRE VIE. Another's life. Vide, Pur autre vie.

  AUTREFOIS. A French word, signifying formerly, at another time;
and is  usually  applied  to  signify  that  something  was  done
formerly, as autrefois acquit, autrefois convict, &c.

   AUTREFOIS ACQUIT,  crim. law,  pleading.  A  plea  made  by  a
defendant, indicted  for a  crime or  misdemeaner,  that  he  has
formerly been tried and acquitted of the same offence. See a form
of this plea in Arch. Cr. PI. 90.

   2. To  be a bar, the acquittal must have been by trial, and by
the verdict  of a  jury on a valid indictment. Hawk. B. 2, c. 25,
s. 1;   4 Bl. Com. 335. There must be an acquittal of the offence
charged in law and in fact. Stark. PI. 355;  2 Swift's Dig. 400 1
Chit. Cr. Law, 452;  2 Russ. on Cr. 41.

   3. The Constitution of the U. S., Amend. Art. 5, provides that
no person  shall be  subject for the same offence to be put twice
in jeopardy  of life  or limb.  Vide generally, 12 Serg. & Rawle,
389;  YeIv. 205 a, note.

  AUTREFOIS ATTAINT, crim. law. Formerly attainted.

   2. This  is a  good plea in bar, where a second trial would be
quite superfluous.  Co. Litt.  390 b,  note 2;   4  Bl. Com. 336.
Where, therefore,  any advantage  either to  public  justice,  or
private individuals,  would arise  from a second prosecution, the
plea will  not prevent it;  as where the criminal is indicted for
treason  after   an  attainder  of  felony,  in  which  case  the
punishment will  be more  severe and  more extensive. 3 Chit. Cr.
Law, 464.

   AUTREFOIS CONVICT,  crim. law,  pleading. A  plea  made  by  a
defendant, indicted  for a  crime or  misdemeanor,  that  he  has
formerly been tried and convicted of the same.

  2. As a man once tried and acquitted of an offence is not again
to be  placed in  jeopardy for the same cause, so, a fortiori, if
he has  suffered the  penalty due  to his offence, his conviction
ought to  be a  bar to  a second  indictment for  the same cause,
least he  should be  punished twice  for the  same crime. 2 Hale,
251;  4 Co, 394;  2 Leon,. 83.

  3. The form of this plea is like that of autrefois acquit;  (q.

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v.) it  must set  out the former record, and show the identity of
the offence and of the person by proper averments. Hawk. B. 2, c.
36;   Stark. Cr.  Pi. 363;   Arcb.  Cr, PI, 92;  1 Chit. Cr. Law,
462;  4 Bl. Com. 335;  11 Verm. R. 516.

  AVAIL. Profits of land;  hence tenant paravail is one in actual
possession, who  makes avail  or profits  of the land. Ham. N. P.

   AVALUM. By this word is understood the written engagement of a
third person  to guaranty  and to  become security that a bill of
exchange shall be paid when due.

  AVERAGE. A term used in commerce to signify a contribution made
by the  owners of  the ship,  freight and  goods,  on  board,  in
proportion to  their respective interests, towards any particular
loss or  expense sustained for the general safety of the ship and
cargo;  to the end that the particular loser may not be a greater
sufferer than the owner of the ship and the other owners of goods
on board.  Marsh. Ins. B. 1, c. 12, s. 7;  Code de Com. art. 397;
2 Hov. Supp. to Ves. jr. 407;  Poth. Aver. art. Prel.

  2. Average is called general or gross average, because it falls
generally upon the whole or gross amount of the ship, freight and
cargo;   and also  to distinguish  it from  what is  often though
improperly termed  particular average, but which in truth means a
particular or  partial, and  not a  general  loss;    or  has  no
affinity to  average properly  so called. Besides these there are
other small  charges, called  petty or accustomed averages;  such
as pilotage,  towage, light-money,  beaconage, anchorage,  bridge
toll, quarantine,  river charges,  signals, instructions,  castle
money, pier money, digging the ship out of the ice, and the like.

   3. A  contribution upon general average can only be claimed in
cases where,  upon as much deliberate on and consultation between
the captain  and his  officers as  the occasion will admit of, it
appears  that  the  sacrifice  at  the  time  it  was  made,  was
absolutely and  indispensably necessary  for the  preservation of
the ship  and cargo.  To entitle  the owner  of the  goods to  an
average contribution,  the loss  must evidently  conduce  to  the
preservation of  the ship and the rest of the cargo;  and it must
appear that  the ship  and the  rest of  the cargo  were in  fact
saved. Show. Ca. Parl. 20. See generally Code de Com. tit. 11 and
12;  Park, Ins. c. 6;  Marsh. Ins. B. 1, c. 12, s. 7 4 Mass. 548;
6 Mass.  125;   8 Mass.  467;  1 Caines' R. 196;  4 Dall. 459;  2
Binn. 547 4 Binn. 513;  2 Serg. & Rawle, 237, in note;  2 Serg. &
Rawle, 229  3 Johns.  Cas. 178;   1  Caines' R. 43;  2 Caines' R.
263;   Id. 274;   8  Johns. R  . 237,  2d edit 9 Johns. R. 9;  11
Johns. R  315 1 Caines' R. 573;  7 Johns R. 412;  Wesk. Ins. tit.
Average;  2 Barn. & Crest. 811 1 Rob. Adlm. Rep. 293;  2 New Rep.
378 18  Ves. 187;  Lex. Mer. Armer. ch. 9;  Bac Abr. Merchant, F;
Vin. Abr. Contribution and' Average;  Stev. on Av.;  Ben. on Av.

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

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is used  to include  horses of the plough, oxen and cattle. Cunn.
Dict. h. t.

  AVERIIS CAPTIS IN WlTHERNAM, Eng. law. The name of a writ which
lies in favor of a man whose cattle have been unlawfully taken by
another, and  driven out  of the county where they were taken, so
that they cannot be replevied.

   2. This  writ issues against the wrong doer to take his cattle
to the plaintiff's use. Reg. of Writs, 82.

   AVERMENT, pleading.  Comes from  the Latin  verificare, or the
French averrer,  and signifies  a positive  statement of facts in
opposition to argument or inference. Cowp. 683, 684.

   2. Lord  Coke says averments are two-fold, namely, general and
particular. A general averment is that which is at the conclusion
of an  offer to  make good  or prove  whole pleas  containing new
affirmative matter,  but this  sort of  averment only  applies to
pleas, replications,  or subsequent  pleadings for  counts and  a
vowries which  are in  the nature of counts, need not be averred,
the form of such averment being et hoc paratus. est verificare.

   3.  Particular  averments  are  assertions  of  the  truth  of
particular facts,  as the  life of tenant or of tenant in tail is
averred: and,  in these,  says Lord  Coke, et  hoc, &c.,  are not
used. Co.  Litt. 362 b. Again, in a particular averment the party
merely protests and avows the truth of the fact or facts averred,
but in general averments he makes an offer to prove and make good
by evidence what he asserts.

    4.  Averments  were  formerly  divided  into  immaterial  and
impertinent;  but these terms are now treated as synonymous. 3 D.
& R.  209. A  better  division  may  be  made  of  immaterial  or
impertinent averments,  which are those which need not be stated,
and, if  stated, need  not be proved;  and unnecessary averments,
which consist  of matters  which need  not  be  alleged,  but  if
alleged, must  be proved. For example, in an action of assumpsit,
upon a warranty on the sale of goods, allegation of deceit on the
part of  the seller  is impertinent,  and need  not be  proved. 2
East, 446;   17 John. 92. But if in an action by a lessor against
his tenant,  for negligently keeping his fire, a demise for seven
years be  alleged, and the proof be a lease at will only, it will
be a  fatal variance;    for  though  an  allegation  of  tenancy
generally would  have been  sufficient, yet  having unnecessarily
qualified it,  by stating  the precise term, it must be proved as
laid. Carth. 202.

   5. Averments  must contain  not only matter, but form. General
averments are  always in  the same  form. The most common form of
making particular  averments is  in express and direct words, for
example: And  the party  avers or  in fact saith, or although, or
because, or with this that, or being, &c. But they need not be in
these words,  for any  words which  necessarily imply  the matter

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intended to  be averred  are sufficient.  See, in general, 3 Vin.
Abr. 357  Bac. Abr. Pleas, B 4 Com. Dig. Pleader, C 50, C 67, 68,
69, 70;   1  Saund. 235  a, n. 8 3 Saund. 352, n. 3;  1 Chit. PI.
308;   Arch. Civ.  PI. 163;   Doct. PI. 120;  1 Lilly's Reg.  209
United States Dig. Pleading II (c);  3 Bouv. Inst. n. 2835-40.

   AVOIDANCE, eccl. law. It is when a benefice becomes vacant for
want of  an incumbent;   and,  in this  sense, it  is opposed  to
plenarty. Avoidances  are  in  fact,  as  by  the  death  of  the
incumbent or in law.

  AVOIDANCE, pleading. The introductiou of new or special matter,
which, admitting  the premises  of the  opposite party, avoids or
repels his conclusions. Gould on PI. c. 1 §24, 42.

   AVOIR DU  POIS, comm. law. The name of a peculiar weight. This
kind of  weight is  so named in distinction from the Troy weight.
One pound  avoir du  pois contains  7000 grains  Troy;   that is,
fourteen ounces,  eleven pennyweights  and sixteen  grains Troy a
pound avoir  du pois  contains sixteen  ounces;    and  an  ounce
sixteen drachms.  Thirty-two cubic  feet of pure spring-water, at
the temperature of fifty-six degrees of Fahrenheit's thermometer,
make a  ton of  2000 pounds  avoir du  pois, or  two thousand two
hundred and forty pounds net weight.
Dane's Abr.  c. 211, art. 12, §6. The avoir du pois ounce is less
than the  Troy ounce  in the  proportion of 72 to 79;  though the
pound is,  greater. Eneye.  Amer. art.  Avoir du  pois., For  the
derivation of  this phrase,  see Barr.  on the Stat. 206. See the
Report of  Secretary of State of the United States to the Senate,
February 22d, 1821, pp. 44, 72, 76, 79, 81, 87, for a learned
exposition of the whole subject.

   AVOUCIIER. The  call which  the tenant makes on another who is
bound to him by warranty to come into court, either to defend the
right against the demandant, or to yield him other land in value.
2 Tho. Co. Lit. 304.

   AVOW or  ADVOW, practice.  Signifies to justify or maintain an
act formerly  done. For  example, when  replevin is brought for a
thing distrained,  and the distrainer justifies the taking, he is
said to avow. Termes de la Ley. This word also signifies to bring
forth anything.  Formerly when  a stolen  thing was  found in the
possession of  any one"  he was  bound advocare, i. e. to produce
the seller  from whom he alleged he had bought it, to justify the
sale, and  so on  till they  found the thief. Afterwards the word
was taken  to mean anything which a man admitted to be his own or
done by  him, and in this sense it is mentioned in Fleta, lib. 1,
c. 5, par 4. Cunn., Dict. h. t.

  AVOWANT, practice, pleading. One who makes an avowry.

  AVOWEE, eccl. law. An advocate of a church benefice.

  AVOWRY, pleading. An avowry is where the defendant in an action

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of replevin,  avows the  taking of the distress in his own right,
or in  right of  his wife, and sets forth the cause of it, as for
arrears of  rent, damage done, or the like. Lawes on PI. 35 Hamm.
N. P. 464;  4 Bouv. Inst. n. 3571.

  2. An avowry is sometimes said to be in the nature of an action
or of.  a declaration,  and privity  of estate  is necessary. Co.
Lit. 320  a;   1 Serg. & R. 170-1. There is no general issue upon
an avowry  and it  cannot be traversed cumulatively. 5 Serg. & R.
377. Alienation  cannot be replied to it without notice;  for the
tenure is  deemed to  exist for  the purposes  of an  avowry till
notice be  given of the alienation. Ham. Parties, 131-2;  Ham. N.
P. 398, 426.

   AVOWTERER, Eng.  law. An  adulterer with  whom a married woman
continues in adultery. T. L.

  AVOWTRY, Eng. law. The crime of adultery.

  AVULSION. Where, by the immediate and manifest power of a river
or stream,  the soil  is taken suddenly from one man's estate and
carried to  another. In  such case  the property  belongs to  the
first owner.  An acquiescence  on his part, however, will in time
entitle the owner of the land to which it is attached to claim it
as his  own. Bract. 221;  Harg. Tracts, De jure maris, &c. Toull.
Dr. Civ.  Fr. tom.  3, p. 106;  2. Bl. Com. 262;  Schultes on Aq.
Rights, 115  to 138.  Avulsion differs  from alluvion  (q. v.) in
this, that  in the  latter case the change of the soil is gradual
and imperceptible.

   AVUS. Grandfather.  This term  is used  in making genealogical

   AWAIT, crim.  law. Seems  to signify what is now understood by
lying in wait, or way-laying.

  AWARD. The judgment of an arbitrator or arbitrators on a matter
submitted to  him or  them :  arbitrium est judicium. The writing
which contains such judgment is also called an award.

   2. The  qualifications requisite  to the  validity of an award
are, that it be consonant to the submission;  that it be certain;
be of things possible to be performed, and not contrary to law or
reason;  and lastly, that it be final.

   3. -  1. It is manifest that the award must be confined within
the powers  given to the arbitrators, because, if their decisions
extend beyond  that authority,  this is  all assumption of, power
not delegated,  which cannot  legally affect  the parties. Kyd on
Aw. 140  1 Binn. 109;  13 Johns. 187 Id. 271;  6 Johns. 13, 39 11
Johns. 133;   2  Mass. 164;  8 Mass. 399;  10 Mass. 442 Caldw. on
Arb. 98;  2 Harring. 347;  3 Harring. 22;  5 Sm. & Marsh. 172;  8
N. H.  Rep. 82;   6  Shepl. 251;   12 Gill & John. 456;  22 Pick.
144. If  the arbitrators,  therefore, transcend  their authority,

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their award  pro tanto  will be  void but if the void part affect
not the  merits. of  the submission, the residue will be valid. 1
Wend. 326;   13 John. 264;  1 Cowen, 117 2 Cowen, 638;  1 Greenl.
300;  6 Greenl. 247;  8 Mass. 399;  13 Mass. 244;  14 Mass.43;  6
Harr. &  John. 10;  Doddr. Eng, Lawyer, 168-176;  Hardin, 326;  1
Yeates, R. 513.

  4. - 2. The award ought to be certain, and so expressed that no
reasonable doubt  can  arise  on  the  face  of  it,  as  to  the
arbitrator's meaning,  or as  to the  nature and  extent  of  the
duties  imposed  by  it  on  the  parties.  An  example  of  such
uncertainty may  be found  in  the  following  cases:  An  award,
directing one  party to  bind himself  in an  obligation for  the
quiet enjoyment  of lands,  without expressing  in what  sum  the
obligor should  be bound.  5 Co.  77 Roll. Arbit. Q 4. Again , an
award that one should give security to the other, for the payment
of a  sum of  money, or  the performance  of any particular, act,
when the  kind of  security is  not specified. Vin. Ab. Arbitr. Q
12;   Com. Dig.  Arbitrament, E 11 Kyd on Aw. 194 3 S. & R. 340 9
John. 43;   2  Halst. 90;   2 Caines, 235 3 Harr. & John. 383;  3
Ham. 266  1 Pike,  206;   7 Metc. 316 5 Sm. & Marsh. 712 13 Verm.
53;  5 Blackf. 128;  2 Hill, 75 3 Harr 442.

   5. -  3. It  must be  possible to  be performed, be lawful and
reasonable. An  award  that  could  not  by  any  possibility  be
performed, as if it directed that the party should deliver a deed
not in  his possession,  or pay  a sum of money at a day past, it
would of course be void. But the, award that the party should pay
a sum  of money,  although he  might not  then be  able to do so,
would be  binding. The  award must not direct anything to be done
contrary to  law, such  as the  performance of an act which would
render the party a trespasser or a felon, or would subject him to
an action.  It must  also be  reasonable, for  if it be of things
nugatory in  themselves, and  offering no  advantage to either of
the parties, it cannot be enforced. Kirby, 253.

   6.- 4.  The award  must be final that is, it must conclusively
adjudicate all  the matters  submitted. 1  Dall. 173  2 Yeates, 4
Rawle, 304;  1 Caines, 304
Harr. &  Gill, 67  Charlt. 289;  3 Pike) 324;  3 Harr. 442;  1 P.
S. R. 395;  4
Blackf. 253;   11  Wheat. 446.  But if  the award is as final as,
under the circumstances of the case it might be expected, it will
be considered  as -valid.  Com. Dig. Arbitrament, E 15. As to the
form, the  award may  be by  parol or  by deed, but in general it
must be  made in  accordance with the provisions and requirements
of the submission. (q. v.) Vide, generally, Kyd on Awards, Index,
h. t.;   Caldwell  on Arbitrations,  Index, h. t.;  Dane's Ab. c.
13;   Com. Dig. Arbitrament, E;  Id Chancery, 2 K 1, &c.;  3 Vin.
Ab. 52,  372 1 158 15 East, R. 215;  1 Ves. Jr. 364 1 Saund. 326,
notes 1,  2, and  3;   Wats. on Arbitrations and Awards;  3 Bouv.
Inst., n. 2402 to 2500.

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

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wines it contained forty gallons.

AYANT CAUSE.  French law.  This term, which is used in Louisiana,
signifies one  to whom a right has been assigned, either by will,
gift, sale,  exchange, or  the like.  An assignee. An ayant cause
differs from  an heir  who acquires  the right  by inheritance. 8
Toull. n. 245.

   AYUNTAMIENTO, Spanish law. A congress of persons the municipal
council of  a city  or town.  1 White's  Coll. 416;  12 Pet. 442,

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