ASSISE DE UTRUM. This writ, which was called also assisa jurum utrum, lay for a parson against a layman, or for a layman against a parson, for lands or tenements, as to which it was doubtful whether they were lay-fees or free-alms. Cowel. ASSISA PANIS ET CEREVISIÆ. This was the power of assising (at the time the judges on circuit assised) the weight of bread and the measures of beer. The stat. 51 Hen. 3, for fixing the price of bread and ale, was so called. Cowel; Tomlins. ASSISE OF DARREIN PRESENTMENT. This was a writ which lay when a man or his ancestor had presented a clerk to a church, and after the church had become void by his death or otherwise a stranger presented his clerk to the church, in disturbance of the patron. F. N. B. 31 F. A ASSISE OF MORT D'ANCESTOR. writ that lay when a man's father, sister, mother, brother, &c., died seised of lands, tenements, rents, &c., that were held in fee, and after their death a stranger caused an abatement. See title ABATEMENT. ASSISE OF NOVEL DISSEISIN. A remedy for the recovery of lands or tenements of which the party himself had been disseised. ASSISE OF NUISANCE. A writ which lay against a man to redress or remove a nuisance which he had created to the freehold of another, which the latter held for life, in tail, or in fee simple. F. N. B. 183, I. ASSISE RENTS. Are the certain established rents of the freeholders and ancient copyholders of a manor, and are so called precisely because they are assised or certain. ASSISTANCE: See title WRIT OF ASSIST ANCE. ASSOCIATE JUDGE. Under the stat. 15 & 16 Vict. c. 73, ss. 1-6, there is an associate in each of the Common Law Courts, appointed by the respective chiefs of these Courts. Each associate appoints two clerks for assisting him in the discharge of his duties, such latter appointments being subject to the approval of the chief of the Court. No associate may act as either a barrister, a solicitor, or an attorney. ASSUMPSIT. Is a promise (not being under seal) by which one person assumes or takes upon him to do some act or pay something to another. See also next title. ASSUMPSIT, ACTION OF. Is the form of action given by law to recover damages for the non-performance of contracts, either express or implied, and which are neither of record nor under seal. In origin, it was an action on the case for non-performance of an agreement; and in Slade v. Morley, 4 Rep. 92 b, 44 Eliz., it was settled that assumpsit might even be brought for a sum certain. although debt was the more natural. form of action. See also titles ACTION; SIMPLE CON TRACT. ASSURANCE. This word is the same as Insurance, which see. A ATTACHMENT (attachiamentum). taking, apprehending, or seizing by command of a judicial writ, termed a writ of attachment. The process of attachment was frequently resorted to in the Court of Chancery, to enforce the appearance of a party who had been served with a subpoena, and who had taken no notice of it; and under the present practice, the plaintiff may (although it is unusual to) exercise the same process against a defendant refusing to appear to the bill (1 Dan. Ch. Pr. 384-5). And generally, an attachment may issue in all cases for a contempt of Court, arising from a refusal to obey or to comply with its process. ATTACHMENT, FOREIGN. This was a peculiar and ancient remedy open to creditors within the jurisdiction of the city of London, Exeter, and some other ancient cities, by which they were enabled to satisfy their own debts by attaching or seizing the money or goods of their debtor in the hands of a stranger or third person within the jurisdiction of such city. M'Grath v. Hardy (4 Bing. N. C. 785), contains a very luminous statement of the proceedings in foreign attachment. The Lord Mayor's Court of the City of London still exercises very extensive powers of this character. See also next title. ATTACHMENT OF DEBTS. Under the stat. 17 & 18 Vict. c. 125, s. 60, a creditor who has obtained a judgment in a superior Court of Law may apply to the Court or a judge for a rule or order that the judgment debtor should be orally examined as to what debts are owing to him, and under s. 61, upon affidavit that the debt or debts are still unsatisfied, and that some third person (to be specified) within the jurisdiction is indebted to the defendants, the judge may order that all debts owing or accruing from such third person (called the garnishee) to the debtor shall be attached to answer the judgment debt. The stat. 33 & 34 Vict. c. 30, prohibits the attachment of wages. ATTAINDER. The taint, stain, or corruption of blood, which the law attaches to criminal who is capitally condemned. He is then called attaint (attinctus), stained or blackened, and is no longer of any credit or reputation, and is considered already dead in law, and incapable of performing the functions of another man. The effect of an attainder used to be a forfeiture of the party's honours and dignities; he used to become degraded in the eye of the law, so that his children could not be heirs to him nor to any other ancestor through him, and these consequences could only be removed by authority of Parliament (Co. Litt. 391 b, s. 745). But under the Forfeiture for Felony Abolition Act, 1870 (33 & 34 Vict. c. 23), s. 1, no conviction for any treason or felony is to cause any attainder or corruption of blood, or any forfeiture or escheat. ATTEMPT. Is defined in jurisprudence as that which, if not prevented, would have resulted in the full consummation of the act attempted. Wherefore there can be no attempt to steal a purse from an empty pocket (R. v. Collins, L. & C. 471); but an action of trespass for the assault may lie (see title ASSAULT), or a count for the misdemeanour may be framed; and generally all attempts to commit a felony, not being murder, which are frustrated may be treated as misdemeanours. And under the stat. 14 & 15 Vict. c. 100, s. 9, it is competent to the Court to convict of the attempt upon an indictment for the felony according to the evidence adduced at the trial. ATTENDANCE OF WITNESSES. May be enforced by subpoena ad testificandum, a refusal to obey which is a contempt of Court, and may be punished by attachment. ATTENDANT TERMS. Terms of years created by the owner of the inheritance by way of mortgage, or otherwise, used when satisfied to become attendant upon the inheritance, either by operation of law, or by express declaration, for the protection of the inheritance. But under the Satisfied Terms Act (8 & 9 Vict. c. 112), all such terms are absolutely to cease for all purposes whatsoever, excepting that terms attendant by express declaration on the 31st of December, 1845, are to protect the inberitance as before. See title SATISFIED TERMS. ATTESTING WITNESS: See title Evi DENCE. ATTORNEY. One who is put in the place or stead of another to act for him. ATTORNEY-continued. There are two kinds of attorneys: one who acts in a private capacity, and is simply called an attorney while his authority to act for such other party is in existence (see title ATTORNEY, POWER OF); the other, who acts in a public capacity as an officer in Her Majesty's Courts at Westminster, and who is called an attorney-at-law, and whose duty consists in transacting and superintending the legal business of his clients, as in prosecuting and defending actions at law, in furnishing his clients with legal advice, and in performing various other important matters connected with the practice of the law. Such latter attorneys are sometimes, and indeed more commonly called solicitors (see that title). Every attorney must have been an articled clerk (see that title), and must have been admitted by the Master of the Rolls to the office of attorney; and must also take out annually a certificate to practise, paying the stamp imposed by the Stamp Act, 1870 (33 & 34 Vict. c. 97). Under the stat. 23 & 24 Vict. c. 27, being in the Law List is prima facie evidence of being duly qualified. Under the stat. 33 & 34 Vict. c. 28, a solicitor or attorney is enabled to make an agreement with respect to future (as he was already able with respect to past) costs; but all such agreements are subject to taxation. See also titles LIEN; RETAINER; and This is an ATTORNEY, POWER OF. instrument by which one person empowers another to act in his stead. The donor of the power is called the principal; the donee is called the attorney, or (when appointed by a corporation aggregate to receive administration) the syndic. A power of attorney which simply authorizes the attorney to vote is called a proxy; one which simply authorizes the attorney to appear in an action and confess the action or suffer judgment to go by default, is called a warrant of attorney. All other authorities are called simply powers of attorney, the power being special if it is to do one particular act, and general if to do generally all matters connected with a particular employment. And even where the power of attorney is general, a further special power of attorney is occasionally necessary, even for a matter comprised in the general power, e.g., in a foreclosure suit to receive the purchase-money (Bourdillon v. Roche, 27 L. J. (Ch.) 681); also in an action or suit in which money has been paid into Court, to receive that money out of Court (Middleton v. Younger, 22 L. J. (Ch.) 1005). And, again, a general power of attorney may be either limited, as when it leaves nothing to the discretion of the ATTORNEY, POWER OF—continued. attorney; or unlimited, as when it leaves everything to his discretion. I. Persons capable of making attorneys. An infant cannot execute a power of attorney, unless to do an act which is for his own benefit, e.g., to receive livery of seisin for him (Palfryman v. Grobic, 1 Roll, Abr. 730), not also to make livery for him, (Whittingham's Case, 8 Rep. 45 a.), although at the age of fifteen years he may, under a custom, be able to make a feoffment in his own person. The guardian is able to appoint the infant's attorney (Graham v. Maclean, 2 Curt. 659), and he may even be ordered to do so (Ruck v. Barworth, 25 L. T. 242). A lunatic cannot execute a power of attorney; but where a person apparently sane at the time executes a general power of attorney, under which his attorney enters into a fair and bona fide contract on his behalf, such contract, after it is executed, cannot be set aside, although the principal should be afterwards found to have been a lunatic at the time of the execution of the power. Ex parte Bradbury, 1 Mont. & Ch. 625. A married woman cannot execute a power of attorney; and if she join with her husband in executing one, the power of attorney is that of the husband alone, and therefore ceases with his death (In re Jones, 5 W. R. 336). But, so far as she has separate estate, whether existing by creation of equity, or in virtue of the M. W. P. Act, 1870 (33 & 34 Vict. c. 93), she is fully able to execute a power of attorney; but, semble, she has no such capacity in respect of the separate estate created upon judicial separation by the Act 20 & 21 Vict. c. 85 (Faithorne v. Blaquire, 6 M. & S. 73). And where a married woman an executrix or administratrix, she must join her husband in the execution of a power of attorney (Wms. Exors, 5th ed. 869. But with reference to a fund in Court belonging to a married woman, she may, after being examined, execute a power of attorney directing a payment out of Court of the fund to her husband. Allatt v. Bailey, 1 W. R. 383. Generally, also, when an act is intended to be personal to the party, he cannot constitute, by power of attorney or otherwise, a deputy to perform it for him, e.g., the doing of fealty (Combes' Case, 9 Rep. 76 a); the duties of trustees (Att.-Gen. v. Scott, 1 Ves. Sen. 413); unless indeed, but only with reference to trustees, in a case of moral necessity (Joy v. Campbell, 1 Sch. & Lef. 341; Stuart v. Norton, 9 W. R. 320; Hopkinson v. Roe, 1 Beav. 180). Similarly, railway companies cannot, unless authorized by Parliament, delegate to another ATTORNEY, POWER OF-continued. company, or to other companies, the statutory powers conferred on themselves (Winch v. Birkenhead, &c., Ry. Co., 16 Jur. 1035; Great Northern Ry. Co. v. Eastern Counties Ry. Co., 9 Hare, 306). Also, one joint tenant or tenant in common cannot appoint an attorney for himself and his cotenants; but one partner may do so for himself and his co-partners in matters usual in the partnership (Ex parte Mitchell, 14 Ves. 597), but not in matters beyond what are usual. Hambridge v. De la Crouce, 4 D. & L. 466. All other persons are capable of making attorneys. II. Instrument constituting attorney. An attorney to make or take livery, or to execute a deed, must be constituted by deed; and so also the attorney for a corporation aggregate in all matters of solemnity (Dumper v. Syms, Cro. Eliz. 816). But an attorney of a corporation sole, and, generally, any private person who is capable of appointing an attorney at all, may appoint one by deed, writing not under seal, or parol, as he pleases, according as the greater or less solemnity of the occasion requires. Ex purte Candy, 5 L. J. (N. S.) Ch. 14. It is not necessary that the attorney should be a party to the indenture constituting him. Moyle v. Ewer, Cro. Eliz. 905. It is competent to authorize the attorney to appoint a sub-attorney, and the substitute, when appointed, has full capacity. Blandy v. Price, 8 Jarm. Conv. 12, n. (8.). The attestation of the execution of the deed constituting the attorney is generally by two witnesses, the Bank of England and certain other public bodies insisting upon that number, inasmuch as if a power of attorney is forged, it is a nullity as regards the misapparent principal. Davis v. Bank of England, 2 Bing. 393; 5 B. & C. 185. When the power of attorney authorizes the doing of a certain act, it impliedly authorizes the doing also of everything properly incident to that act (Bayley v. Wilkins, 7 C. B. 886); e.g., a power to sell goods implies a power to receive payment on the sale (Capel v. Thornton, 3 C. & P. 352), and a power to manage a mine is an implied power to incur debts for wages (Ex parte Chippendale, In re German Mining Company, 4 De G. M. & G. 19). Nevertheless, the power is to be construed strictly, and therefore the attorney cannot bind his principal by any act beyond the scope of his authority (Fenn v. Harrison, 3 T. R. 757), e.g., a power to indorse bills remitted to the principal, or to indorse and negotiate such bills, would not authorize the making of acceptances (Attwood v. ATTORNEY, POWER OF-continued. Munnings, 7 B. & C. 278), nor will the general words which are usually thrown in at the end of the power be construed as enlarging the authority beyond matters strictly incident to the principal object of the power (Esdaile v. La Nauze, 1 V. & C. 394). However, when the attorney merely exceeds his authority, the excess alone is a nullity (Perkins, 189); and where he varies from the power, the variation, being immaterial, will not avoid the act. 1 Salk. 96. A power of attorney is inherently revocable, and words purporting to make it not so are void for repugnancy (Vynior's Case, 8 Rep. 82 a.); nevertheless, when the power forms part of a security, or is for value, it is irrevocable (Bromley v. Holland, 7 Ves. 28). The revocation may be either express or implied; and if express, then by either party or by both, and either by deed, writing not under seal, or word of mouth, no matter in which of these ways it may itself have been created; and if implied, then by the exhaustion of the power, whether in substance or in time, or by the death of the person constituting the attorney. And with reference to death as an implied revocation, this distinction is taken, that when the power is a power simply, it is always revoked both at Law and in Equity; but when it forms part of a security, then it is revoked at Law (Watson v. King, 4 Camp. 272), but continues good in Equity (Brasier v. Hudson, 9 Sim. I); and of course it is good both at Law and in Equity as to things already effected under it before the death. And, again, with regard to things effected after the death, but without notice of the death, these are good in Equity (Hughes v. Walmsley, 12 Jur. 833); and of course, since the Judicature Act, 1873, at Law also, although formerly they were doubtfully so. Lastly, with regard to things done after the death, and with notice of the death, these are necessarily bad when the power is a power simply, but good when the power forms part of a security (Kiddill v. Farnell, 3 Sm. & Gif. 428). And see as to trustees and personal representatives, 22 & 23 Vict. c. 35, s. 26. In executing a deed pursuant to his power, the attorney ought to seal and deliver, in the case of a simple power, in the name of his principal, e.g., "A. B., by his attorney, C. D;" and in the case of a power forming part of a security, in his own name. Therefore, leases, submissious to an award, and such like, should be in the principal's name. A ATTORNMENT (attornamentum). tenant's acknowledgment of his new landlord on the alienation of lands by the former landlord. It is of feudal origin, for by the feudal law the feudatory could not aliene or dispose of the feud without the consent of the lord, nor the lord aliene or transfer his seigniory without the consent of his feudatory (Bract. 41; Spelman, verb. Atturnamentum). And generally to the validity of any grant of a seigniory, reversion, or remainder, the attornment of the tenant was necessary; insomuch that if two successive grants were made of the same seigniory, reversion, or remainder, and the tenant attorned to the second grantee, the first grantee was defeated. Nor was there any legal means of compelling the tenant's attornment; but the grant might be made by fine, which dispensed with the necessity of attornment. However, by stat. 4 Anne, c. 16, ss. 9, 10, the necessity for attornment is dispensed with in all cases, although attornment is still permissible; and by the further stat. Îl Geo. 2, c. 19, s. 11, attornments are deprived of any tortious effect, when made to strangers claiming the land as against the rightful landlord. The payment of rent under a mistake as to the claimant's title is held not to amount to an attornment. Gregory v. Doidge, 3 Bing. 474. AUCTION. This consists in the sale of lands or goods in public, as opposed to a sale thereof by private contract. The sale of real estate by auction is now regulated by the 30 & 31 Vict. c. 48, the short contents of which Act are as follows: (1.) No puffer is to be employed, otherwise the sale is void; (2.) The conditions of sale are to state whether or not the sale is without reserve; also, (3.) Whether or not a right to bid is reserved; and (4.) The practice of opening the biddings See also titles CONDITIONS OF SALE; AUCTIONEER. Under the stats. 8 & 9 Vict. c. 15, and 27 & 28 Vict. c. 56, must have a licence. In case he have not himself (but through his clerk only (Bird v. Boulter, 4 B. & Ad. 443) signed the memorandum of agreement, he may sue the buyer (Robinson v. Rutter, 4 E. & B. 954); without prejudice, however, to the purchaser's right to set off any debt due from the principal (the vendor). Coppen v. Craig, 7 Taunt. 243. AUDITA QUERELA. A writ which lies for a defendant, against whom judg AUDIT QUEREL— continued. ment has been recovered, and who is therefore in danger of having execution issued against him, to relieve or discharge him upon shewing some good ground for discharge which has arisen since the recovery of such judgment, e.g., a release. This remedy is now rarely resorted to, inasmuch as the Courts may now grant the like relief in a summary way upon motion. The writ audita querela is a proceeding of common right and ex debito justitiæ; but by the rules of H. T. 1853, r. 79, the writ is not allowed unless by rule of Court or judge's order. By the C. L. P. Act, 1854, s. 84, any pleadable matter which arises after the time for pleading may be set up by way of auditâ querela. In an auditâ querelâ the rule (if any) which the Court grants is absolute in the first instance. Giles v. Hutt, 1 Exch. 59. AUGMENTATION, COURT OF. The name of a Court erected in 27 Henry 8, for the purpose that the King might be justly dealt with concerning the profits of such religious houses and their lands as were given to him by Act of Parliament in that year. The Court was so called because the revenues of the Crown were so much augmented by the suppression of such of the said religious houses as the King reserved to the Crown. Les Termes de la Ley. AUTERFOIS ACQUIT. This is a plea pleaded by a criminal, signifying that he has been formerly acquitted on an indictment for the same alleged offence, it being a maxim of the Common Law of England, that no man's life is to be put in jeopardy more than once for the same offence. Co. 3 Inst. See also next two titles. AUTERFOIS ATTAINT. A plea by a criminal that he has been before attainted either for the same or some other offence. For wherever a man is attainted of felony by judgment of death, either upon a verdict or on confession, by outlawry, and formerly by abjuration, he may plead such attainder in bar to any subsequent indictment on appeal for the same or any other felony. The reason of this is, that any proceeding on a second prosecution cannot be to any purpose, as the prisoner is dead in law by the first attainder, his blood is already corrupted, and he has forfeited all that he has. AUTERFOIS CONVICT. A plea by a criminal that he has been before convicted of the same identical crime; it is similar in its nature to that mentioned in the last title but one. AVERAGE. Is the contribution that merchants and others make towards the losses of those who have their goods cast into the sea for the safeguard of the ship or of the other goods and of the lives therein; it is called an average because it is proportioned after the rate of every man's goods carried. Such average is either general or gross on the one hand, or particular and petty on the other; as to the former, see title GENERAL AVERAGE; and as to the latter, it arises when any particular damage is done to the cargo or vessel by accident or otherwise, such as the loss of an anchor or cable, the starting of a plank, or such like other particular losses which do not endanger the general safety. All such latter losses rest where they fall. of a justice of the peace cannot be enforced or executed in any other county than that in which he has jurisdiction, unless a justice of such other county wherein it is to be executed indorses or writes on the back of such warrant an authority for that purpose, which is thence termed backing the warrant. 2 Robinson's Mag. Assist. 572; 24 Geo. 3, c. 55; 5 Geo. 4, c. 18, s. 6. BAIL (ballium). The setting at liberty of a person who is arrested in any action, formerly civil or criminal, but now only criminal, on his finding sureties for his reappearance. It is, however, usually understood for the sureties themselves; as, if A. is arrested and puts in bail, this means that he has found persons who have become sureties for his re-appearance, and who take upon themselves the responsibility of his returning or not returning when required. There are or were several kinds of bail, of which the principal are the following: viz. (1.) Bail below, or Bail to the sheriff; (2.) Bail above, Special Bail, or Bail to the action; (3.) Bail in error; and (4.) Common Bail. Now, taking each of these four varieties of bail in order: (1.) Bail below, or to the sheriff, was such as a defendant put in when arrested upon a writ of capias. This he did by entering |