Gambar halaman

time to answer, &c. The foreign attachment is issued solely for the benefit of the plaintiff. 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, preriously made by a creditor of such person, or by some one on his behalf, of the truth of his debt, and of the facts upon which the attachment may be founded. Any other creditor of such person, upon affidavit of his debt as aforesaid, may suggest his name upon the record, and thereupon such creditor may proceed to prosecute his said writ, if the person suing the same shall refuse or neglect to proceed thereon, or if he fail to establish his right to prosecute the same, as a creditor of the defendant. The property attached is vested in trustees to be appointed by the court, who are, after giving six months' public notice of their appointment, to distribute the assets attached among the creditors under certain regulations prescribed by the act of assembly. Perishable goods may be sold under an order of the court, both under a foreign and domestic attachment. Vide Berg, on Attachments; Whart. Dig. title Attachment.

[ 4 ] By the code of practice of Louisiana, an attachment in the hands of third persons 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 leaving permanently 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.

[ 5 ] 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 commonly 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 Mete. 6c Perk. Dig. tit. Absent and Absconding Debtors.


Attachment, 1.

1. Defined, 1.

2. In New York, 2.

1. Against residents, 2.

2. Against absentees, 2.

3. In Pennsylvania, 3.
1. Foreign, 3.

1. By whom it may be issued, 3.

S. Against whom, 3.

3. Mode of proceeding, 3.

2. Domestic, 3.

4. In Louisiana, 4.

1. When the debtor ia about to leave

the state, 4. 8. When he resides out of the state, 4.

3. When he conceals himself, 4.

5. In the New England states, 5.

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

ATTAINDER, English criminal law; attinctura, the stain or corruption of blood which arises from being condemned for any crime.—Attainder by confession, is either by pleading guilty at the bar before the judges, and not putting oneself on one's trial by a jury; or before the coroner in sanctuary, when, in ancient times, the offender was obliged to abjure the realm, —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.—Attainder by process or outlawry, is when the party flies, and is subsequently outlawed. Co. Litt. 391. Bill of attainder is a bill brought into parliament for attainting persons condemned for high treason. By the constitution of the United States, art. 1, sect. 9, § 3, it is provided that no bill of attainder or ex post facto law shall be passed.

ATTAINT, English Imw, 1. At. tinctus, attainted, stained or blackened. 2. A writ which lies to inquire whether a jury of twelve men gave a false verdict. A verdict cannot be attainted by less than twelve men. Bract. lib. 4, tr. 1, c. 134; Fleta, lib. 5, c. 22, § 2.

ATTEMPT, criminal law. An attempt to commit a crime, is an endeavour to accomplish it, carried beyond mere preparation but falling

short of execution of the ultimate design, in any part of it. 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 penitentia. 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 Mortg. Index, tit. Attendant terms; Park on Dower, ch. 17.

ATTENTAT. In the language of the civil and canon laws, is any thing whatsoever wrongfully innovated or attempted in the suit by the judge a quo pending an appeal. I 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, in contracts, and evidence, is the act of witnessing an instrument of writing, at the request of the party making the same, and subscribing it as a witness. It will be proper to consider, 1st, how it is to be made; 2dly, how it is proved; 3dly, its effects upon the witness; 4thly, its effects upon the parties.

1. The attestation should be made, in the case of wills, agreeably to direction of the statute of frauds, 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.

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 this inability of procuring the witness must be absolute, and, therefore, where he is unable to attend from sickness only, his evidence cannot be dispensed with. 4 Taunt. 46. Sec 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.

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.

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 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.

ATTESTATION CLAUSE, in wills and contracts, is 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 witnesses thereto, in the presence of the said testator, and of each other." That of contracts is generally in these words: "Sealed and delivered in the presence of us."

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 intention to have it regularly attested, is to be collected only from the single word "witnesses." Ib. 214. See 3 Phillim. R. 323; S. C. 1 Eng. Eccl. R. 407.

ATTORNEY IN FACT, contracts, is 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. 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. The form of his appointment is by letter of attorney, (q. v.) The object of his appointment is the transaction of some business of the constituent by the attorney. 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 he has performed for him. Vide Agency; Agent; Authority; and Principal.

ATTORNEY AT LAW, officers, an officer in a court of justiee, who is employed by a party In a cause to manage the same for him, as his advocate. 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 more mechani. cal parts of the suit. 1 Kent, Com.! 307; see as to their powers, 2 Supp. to Ves. Jr. 241, 454; 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; I Penna. R. 264.

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

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. 302; 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. For a violation of his duties, an action will in general lie; 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.

ATTORNEY GENERAL OF THE UNITED STATES, is an officer appointed by the president. He must be learned in the law, and be sworn or affirmed to a faithful execution of his office. 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 24 Sept. 1789; his salary is three thousand five hundred dollars per annum, and he is allowed one clerk, whose compensation shall not exceed one thousand per annum ; Act 20 Feb. 1819, 3 Story's Laws, 1720, and Act 20 April, 1818, s. 6, 3 Story's Laws, 1693. By the act of May 29, 1830, 4 Shaw, 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.

AUBAINE. Vide Albinatus Jus.

AUCTION, commerce, contract, is a place, authorised by law, where property is publicly sold to the highest bidder. Auctions are generally held by express authority, and the persons who keep them are licensed to do so under various regulations. The sale of the property is also called an auction. The manner of conducting an auction is immaterial; 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 any one 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. The law requires fairness in auction sales, and when a buffer 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 mav in general be avoided. Vide Pufer, 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 of Sale. Vide Harr. Dig. Sale, W.;

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.

AUCTIONEER, contracts, commerce, is a person authorised by law to keep an action, and sell the goods of others at public sale. He is the agent of both parties, the seller and the buyer, 2 Taunt. 38, 209; 4 Greenl. R. 1; Chit. Contr. 208. His rights are, 1st, to charge a commission for his services; 2ndly, he has an interest in the goods sold coupled with the possession; 3dly, he has a lien for his commissions; 4thly, he may sue the buyer for the purchase-money. He is liable, 1st, 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; 2dly, he is responsible for the duties due to the government; 3dly, he is answerable to the purchaser when he does not disclose the name of the principal; 4thly, he 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. & Aid. 333; 1 H. Bl. 81; 7 East, R. 558; 4 B. & Adolp. 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.

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.

AUD1ENDO ET TERMINANDO, English crim. law. A writ or rather a commission directed to certain persons for the trial and punish

« SebelumnyaLanjutkan »