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
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. & 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 Offer.
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.
1. To rate or to fix the proportion which every person has to pay of any
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
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, chiefly with a view of taxing the said
persons and their property.
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
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
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 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
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
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
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, 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
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. 233.
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
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. 514.
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, 6.
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. 153-155.
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 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'
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 pay a sum of money
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 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.
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.
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 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
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
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
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
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 employed.
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.
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 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
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 judgment.
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 plaintiff.
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 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
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 there.
ATTAINDER, English criminal law. Attinctura, the stain or corruption
of blood which arises from being condemned for any crime.
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 by a jury; or before the
coroner in sanctuary, when in ancient times, the offender was obliged to abjure
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 passed.
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.