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190; 19 John. 205; 4 Call, R. 379; 1 Fairf. 185; and Offer.
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 assessed on a writ of inquiry by the sheriff and a jury.
ASSESSMENT, is the making out a list of property and fixing its valuation or appraisement; it is also applied to making out a list of persons, and appraising their several occupations, chiefly with a view of taxing the said persons and their property.
ASSESSORS, in the civil law, were 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. 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 liable to discharge 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. 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 legal or equitable; as to the property from which they arise, they are real or personal.
Assets enter mains, 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.
Assets per descent, is that portion of the ancestor's estate 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.
Legal assets, are such as constitute the fund for the payment of debts according to their legal priority.
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. 401, et seq.; Willis on Trust. 118.
Real assets, are such as descend to the heir, as an estate in fee<simple.
Personal assets, are such goods and chattels to which the executor or administrator is entitled.
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.
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, in the 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. Assignees are either assignees in fact or assignees in law. An assignee in fact is one to whom an assignment is made in fact by the party having the right. An assignee in law is one on whom the law vests 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; 3 Saund. 182, note 1; Arch. Civ. PI. 50, 58, 70; 1 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. 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. A chose in action cannot be assigned at law, though it may be done in equity; but the assignee takes it subject to all the equity to which it was liable in the hands of the original party. 2 John. Ch. Rep. 443, and the cases there cited. 2 Wash. Rep. 233. The deed in which an* assignment is written 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.
ASSIGNS, contracts, means those to whom rights have been transmitted by particular title, such as sale, gift, legacy, transfer or cession. Vide Ham. Parties, 230; Lofft. 316.
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. 2 Profession d'Avocat, par Dupin, 674 to 680.
ASSIZE, Eng. law. A particular court where writs of assize and other causes were decided. Vide Dane's Ab. Index, h. t.; Bract. lib. 3; Merl. Repert. h. t. By assize is also understood a remedy for the restitution of a freehold, of which the complainant has been disseised. Bac. Ab. h. t.
ASSIZE, remedies, is an old remedy which was used for the restitution of a freehold, of which the complainant had been disseised. This remedy has given way to others less perplexed, and which are more expeditious. Bac. Ab. h. t.; Co. Litt. 153, 154, 155.
ASSOCIATE. This term is applied to a judge who is not the president of a court, as associate judge.
ASSUMPSIT, in contracts, is an undertaking, either express or implied, to perform a parol agreement. 1 Lilly's Reg. 132.
ASSUMPSIT, remedies, practice, is a form of action which may be defined to be an action for the recovery of damages for the non-performance of a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. 7 T. R. 351; 3 Johns. Cas. 60. This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine, and in numero, and may be upon a deed as well as upon any other contract. 1 H. Bl. 554; B. N. P. 167. It differs from covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal. See Covenant. 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.
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. 451; 4 Pick. 452. Assumpsit lies to recover the purchase money for land sold, 14 Johns. R. 210; 14 Johns. R. 162; 20 Johns. R. 338; 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; 4 T. R. 493 ; 5 Johns. N. 132. But it will not lie on a judgment obtained in a sister state. 1 Bibb, MI ; 19 Johns. 162; 3 Fairf. 94; 2 Rawle, MI. 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. PL 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 s«e 3 Marsh. 1; 3 Dall. 496.
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 5 Mass. 97. The gist of this action is the promise, and it must be averred. 2 Wash. 187; 2 N. H. Rep. 289; Hardin, 225. Damages should be laid in a sufficient amount to cover the real amount of the claim. See 4 Pick. 497; 2 Rep. Const. Ct. 339;
4 Munf. 95; 5 Munf. 23; 2 N. H. Rep. 289; 1 Breese, 286; 1 Hall, 201; 4 Johns. 280; 11 S. & R. 27;
5 S. & R. 519; 6 Conn. 176; 9 Conn. 508; 1 N. & M. 342; 6 Cowen, 151; 2 Bibb, 429; 3 Caines, 286.
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.
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's PI. in Assumpsit; the various digests, h. t. Actions; Covenant; Debt; Indebitatus assumpsit; Pactum Constitute pecunia.
ASSURANCE, comm. law. Insurance, (q. v.)
ASSURANCE, conveyancing.— The deed by which lands and tenements are conveyed. Vide Touchst. on Com. Assurances.
ASYLUM. A place of refuge where debtors and criminals fled for safety. 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.
ASSYTHMENT, in the Scotch law, is 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.
ATHEIST, one who denies the existence of God. 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. P. C, B. 2, c. 46, s. 148; 2 Hale's P. C. 279.
TO ATTACH, crim. law, prac tice, to take or apprehend by virtue of the order of a writ or precept, commonly called an attachment. It differs from arrest in this, that
he who arrests a man, takes him to a person of higher power, to be disposed of; but he who attaches, keeps the party attached, according to the exigency of his writ, and brings him into court on the day assigned. Kitch. 279; Bract. lib. 4; Fleta, lib. 5, c. 24.
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, is a writ requiring a sheriff to arrest 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.; Grah. Pr. 555. 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. An attachment for contempt for the non-performance of an award is considered 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 affirmamation of a Quaker. Stra. 441. See 5 Halst. 63; 1 Cowen, 121, note; Bac. Ab. h. t.
ATTACHMENT, remedies, is a writ issued by a court of competent jurisdiction, commanding the sheriff or other proper officer to seize any property, credit, or right belonging to the defendant, in whatever hands the same may be found, to satisfy the demand which the plaintiff has against him. This writ always issues before judgment and is intended to compel an appearance; in this respect it differs from an execution. In some of the states this process can be issued only against absconding debtors, or those who conceal themselves; in others it' is issued in the first instance, so that the property attached may respond to the exigency of the writ, and satisfy the judgment.
[ 2 J In New York, when a person who is indebted within the state, absconds, or is concealed, a creditor to whom he owes one hundred dollars, or any two creditors to whom he owes one hundred and fifty dollars, or any three to whom he owes two hundred dollars may, on application to a judge or commissioner, on legal proof of the departure or concealment, procure his real or personal estate to be attached; and on due public notice of the proceedings, if, within three months, the debtor does not return and satisfy the creditor, or appear and contest the validity of the demand, and give the requisite security, then trustees are to be appointed, in whom the debtor's estate becomes vested; and they are to collect and sell it, settle controversies, and make dividends among all his creditors in the mode prescribed. From the time of the notice, all sales and assignments are declared void. The property of a debtor who resides out of the state may be attached and sold in like manner, but the trustees are not to be appointed until
one year after public notice of the proceeding. Persons imprisoned in the state prison for a less period than life, are liable to be proceeded against as absconding debtors. 2 Kent, Com. 327.
[ 3 ] There are two kinds of attachment in Pennsylvania, the for. eign attachment, and the domestic attachment. 1. 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 eventually be made liable to the amount of the plaintiff's 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 I 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