« SebelumnyaLanjutkan »
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 estate of deceased persons, executors, administrators and guardians, as may be prescribed by law, until otherwise directed by the General Assembly.
§ 12. 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 prescribed by law, or in which he shall have been of counsel, or have presided in any inferior court, except by consent of all the parties.
§ 15. 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 offenee against the state; but may sit as examining courts, and commit, discharge, 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 have 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. Com stable'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; Road; River.
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. Diet. h. t. 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 hear 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: Rawleon Const. 125.
ARMS, in heraldry. Vide Seal of the United States.
ARMISTICE. Vide Truce.
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.
I. 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 up his hand is not, however, indispensable, for if the prisoner should refuse to do so, he may be inentified by any admission, that he is the person intended.
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, <Scc," and then go through the whole of the indictment.
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 7" 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's 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,jnart<ime/air. The name of an ancient officer of a port, whose business was to load and unload vessels. 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, and 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 not but that the greatest part of the ship's crew understood this as well as these stowers; but they would not meddle with it, nor undertake it, to avoid falling under the merchant's displeasure, or being accountable for any ill accident that might happen by that means. There were also sacquiers, who were very ancient officers, as may be seen in the 14th book of the Theodosian code, Vnica de Saccariis Portus Roma, 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 merchandise otherwise." See Sacquier; Stevedore, i
ARRAS, Span. law. The property contributed by the husband, ad sustinenda onera matrimonii, is called arras. The husband 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 husband's usufruct during his life. Burge on the Confl. of Laws, 417. By arras is also understood the donation which the husband makes to his wife, by reason or on account of marriage, and in consideration of the dote, or portion, which he receives from her. Aso & Man. Inst. B. 1, t. 7, c 3.
ARRAY, practice, is 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 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. 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; 1 Baldw. 239; Harper, 453; 8 Greenl. 127; 1 Wend. 215; 2 Blackf. 294. Arrests are made either on mesne or final process. 1. 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. sq., the defendant cannot generally be discharged 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.
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 admin
istrators, when sued in their repre sentative characters, generally enjoy the same privilege. The privilege in favour of members of congress, or of the state legislatures, of electors, and of parties and witnesses in a cause extends to the time of going to, remaining at, and returning from the places to which they are thus legally called.
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 he 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 he 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 sufficient property to satisfy his demand; 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 may 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 represents.—Art. 216. The oath which the creditor is required to take of the existence and nature of the debt of which he claims payment, in the cases provided in the two preceding articles, may be taken either before any judge or justice of the peace of the place where the court is held, before which he sues, or before the judge of any other place, provided the signature of such judge be proved or duly authenticated. Vide Auter action pendant; Lis pendens; Privilege; Rights.
ARREST, in criminal cases, is the apprehending or detaining of the person, in order to be forthcoming to answer an alleged or suspected crime. 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.—1. Who may be arrested. Generally all persons properly accused of a crime or misdemeanor, may be arrested; by the laws of the United States, ambassadors (q. v.) and other public ministers are exempt from arrest.—2. For what offences an arrest may be made. It may be made for treason, felony, breach of the peace or other misdemeanor.—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 A. In 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 for the purpose of making the arrest. —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. l,c. 12, s. 1 ; c, 13, s. 7, 8; 4. BI. 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.), sheriff, (q. v.) and coroner, (q. v.) Secondly, an arrest may be made by virtue of a warrant (q. v.) which is the proper course when the circumstances of the case will permit it. Vide, generally, 1 Chit. Cr. Law, 11 to 71; Russ. on Cr. Index, h. t.
ARREST OF JUDGMENT, 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, in the law of Scotland, is he in whose hands a debt, or property in his possession, has been arrested by a regular arrestment. If, in contempt of the arrestment, he shall make payment of the sum, or deliver the goods arrested to the common debtor, he is not only liable criminally for breach of the arrestment, but he must pay the debt again to the arrester. Ersk. Pr. L. Scot. 3, 6, 6.
ARRESTER, in the law of Scotland, is one who sues out and obtains an arrestment of his debtor's goods or movable obligations. Ersk. Pr. L. Scot., 3, 6, 1.
ARRESTMENT, in the 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 prohibited 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. Ib. 3, 6, 7.
ARRETTED, arrectatus, i. e. ad rectum vocatus; convened before a judge and charged with a crime.— Ad rectum malefectorem, 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. Diet. h. t.
ARRrLE, contracts, in the civil law, are money or other valuable things given by the buyer to the seller for the purpose of evidencing the contract; earnest. There are two kinds of arrhae; one kind given when a contract has only been proposed; the other when a sale has actually taken place. Those which are given when a bargain has been
merely proposed, before it has been concluded, form the matter of the contract, by which he who gives the arrhoe consents and agrees to lose them, and to transfer the title to them in the opposite party, in case he should refuse to complete the proposed bargain; and the receiver of the arrhae is obliged on his part, to return double the amount to the giver of them in case he 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 arrhae as evidence that the contract has been perfected; arrhae are therefore defined quod ante pretium datur, et fidem fecit contractus, facti totiusque pecuniae solvendae, Ib. n. 506; Code, 4, 45, 2.
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, is at common law an offence of the degree of felony; and is defined by Lord Coke to be the malicious and voluntary burning the house of another, by night or day; 3 Inst. M. 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. 2nd. The house burnt must belong to another; but if a man set fire to his own house with a view to burn his neighbour's, and does so, it is at least