ATTEMPT, criminal law. An attempt to commit a crime, is an endeavor to accomplish it, carried beyond mere preparation, but falling short of execution of the ultimate design, in any part of it.
2. 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 penitentiae. 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 Morts. Index, tit. Attendant term; Park on Dower, c. 1 7.
ATTENTAT, In the language of the civil and canon laws, is anything whatsoever in the suit by the judge a quo, pending an appeal. 1 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, contracts and evidence. The act of witnessing an instrument of writing, at the request of the party making the same, and subscribing it as a witness. 3 P. Wms. 254 2 Ves. 454 1 Ves. & B. 362;3 Marsh. 146; 3 Bibb. 494; 17 Pick. 373.
2. It will be proper to consider, 1. how it is to be made 2. bow it is proved; 3. its effects upon the witness; 4. its effect upon the parties.
3.- 1. The attestation should be made in the case of wills, agreeably to the direction of the statute; 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.
4. - 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 the inability to procure the witness must be absolute, and, therefore, when be is unable to attend from sickness only, his evidence cannot be dispensed with. 4 Taunt. 46. See 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.
5. - 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.
6. - 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 Bouv. Inst. n. 3126.
ATTESTATION CLAUSE, wills and contracts. 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 the witnesses thereto, in the presence of the said testator, and of each other." That of deeds is generally in these words " Sealed and delivered in the presence of us."
2. 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 iutention to have it regularly attested, is to be collected only from the single vord " witnesses." Id. 214. See 3 Phillim. R. 323; S. C. 1 Eng. Eccl. R. 407.
ATTESTING WITNESS. One who, upon being required by the parties to an instrument, signs his name to it to prove it, and for the purpose of identification.
2. The witness must be desired by the parties to attest it, for unless this be done, he will not be an attesting witness, although he may have seen the parties execute it. 3 Campb. 232. See Competent witness; Credible witness; Disinterested witness; Respectable witness; Subscribing witness; and Witness; Witness instrumentary; 5 Watts, 399; 3 Bin. 194.
ATTORNEY. One who acts for another byvirtue of an appointment by the latter. Attorneys are of various kinds.
2. Attorney in fact. 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.
3. 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.
4. The form of his appointment is by letter of attorney. (q. v.)
5. The object of his appointment is the transaction of some business of the constituent by the attorney.
6. 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 be has performed for him. Vide Agency; Agent; Authority; and Principal.
7. Attorney at law. An officer in a court of justice, who is employed by a party in a cause to manage the same for him. Appearance by an attorney has been allowed in England, from the time of the earliest records of the courts of that country. They are mentioned in Glanville, Bracton, Fleta, and Britton; and a case turning upon the party's right to appear by attorney, is reported, B. 17 Edw. III., p. 8, case 23. In France such appearances were first allowed by letters patent of Philip le Bel, A. D. 1290. 1 Fournel, Hist. des Avocats, 42; 43, 92, 93 2 Loisel Coutumes, 14, 15. It results from the nature of their functions, and of their duties, as well to the court as to the client, that no one can, even by consent, be the attorney of both the litigating parties, in the same controversy. Farresly, 47.
8. 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 formal parts of the suit. 1 Kent, Com. 307. See as to their powers, 2 Supp. to Ves. Jr. 241, 254; 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; 1 Penna. R. 264. In general, the agreement of an attorney at law, within the scope of his employment, binds his client; 1 Salk. 86 as to amend the record, 1 Binn. 75; to refer a cause 1 Dall. Rep. 164; 6 Binn. 101; 7 Cranch, 436; 3 Taunt. 486; not to sue out a writ of error; 1 H. Bl. 21, 23 2 Saund. 71, a, b; 1 Term Rep. 388 to strike off a non pros; 1 Bin. 469-70 to waive a judgment by default; 1 Arcb. Pr. 26; and this is but just and reasonable. 2 Bin. 161. But the act must be within the scope of their authority. They cannot, for example, without special authority, purchase lands for the client at sheriff's sale. 2 S. & R. 21 11 Johns. 464.
9. The name of attorney is given to those officers who practice in courts of common law; solicitors, in courts. of equity and proctors, in courts of admiralty, and in the English ecclesiastical courts.
10. 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. 202; 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.
11. For a violation of his duties, an action will in general lie; 2 Greenl. Ev. 145, 146; 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.
12. Attorney-general of the United States, is an officer appointed by the president. He should be learned in the law, and be sworn or affirmed to a faithful execution of his office.
13. 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 24th Sept. 1789.
14. His salary is three thousand five hundred dollars per annum, and he is allowed one clerk, whose compensation shall not exceed one thousand dollars per annum. Act 20th Feb. 1819, 3 Story's Laws, 1720, and Act 20th April, 1818, s. 6, 3 Story's Laws, 1693. By the act of May 9, 1830, 4 Sharsw. 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.
AU BESOIN. This is a French phrase, used in commercial law. When the drawer of a foreign bill of exchange wishes as a matter of precaution, and to-save expenses, he puts in the corner of the bill, " Au besoin chez Messieurs or, in other words, " In case of need, apply to Messrs. at __________ " ___________." 1 Bouv. Inst. n. 1133 Pardess Droit Com. 208.
AUBAINE, French law. When a foreigner died in France, the crown by virtue of a right called droit d'aubaine, formerly claimed all the personal property such foreigner had in France at the time of his death. This barbarous law was swept away by the French revolution of 1789. Vide Albinatus Jus. 1 Malleville's Analyse de la Discussion du Code Civil, pp. 26, 28 1 Toullier, 236, n. 265.
AUCTION, commerce, contract. A public sale of property to the highest bidder. Among the Romans this kind of sale, was made by a crier under a spear (sub hasta) stuck in the ground.
2. Auctions are generally held by express authority, and the person who con- ducts them is licensed to do so under various regulations.
3. The manner of conducting an auction is imaterial; 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 anyone 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.
4. The law requires fairness in auction sales, and when a puffer 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 may in general be avoided. Vide Puffer, 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 Sale. Vide Harr. Dig. Sale, IV.; 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; 1 Bouv. Inst., n. 976.
AUCTIONEER, contracts, commerce. A person authorized by law to sell the goods of others at public sale.
2. He is the agent of both parties, the seller and the buyer. 2 Taunt. 38, 209 4 Greenl. R. 1; Chit. Contr. 208.
3. His rights are, 1. to charge a commission for his services; 2. be has an interest in the goods sold coupled with the possession; 3. he has a lien for his commissions; 4. he may sue the buyer for the purchase-money.
4. He is liable, 1. 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; 2. he is responsible for the duties due to the government; 3. he is answerable to the purchaser when he does not disclose the name of the principal; 4. be 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, & Ald. 333; 1 H. Bl. 81; 7 East, R. 558; 4 B. & Adolpb. 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; Bouv. Inst. Index, h. t.
AUCTOR. Among the Romans the seller was called auctor; and public, sales were made by fixing a spear in the forum, and a person who acted as crier stood by the spear the catalogue of the goods to be sold was made in tables called auctionariae.
AUDIENCE. A hearing. It is usual for the executive of a country to whom a minister has been sent, to give such minister an audience. And after a minister has been recalled, au audience of leave usually takes place.
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.
AUDIENDO ET TERMINANDO, oyer and terminer, English crim. law. A writ, or rather a commission, directed to certain persons for the trial and punishment of such persons as have been concerned in a riotous assembly, insurrection or other heinous misdemeanor.
AUDITA QUERELA. A writ applicable to the case of a defendant against whom a judgment has been recovered, (and who is therefore in danger of execution or perhaps actually in execution,) grounded on some matter of discharge which happened after the judgment, and not upon any matter which might have been pleaded as a defence to the action. 13 Mass. 453; 12 Mass. 270; 6 Verm. 243; Bac. Ab. h. t.; 2 Saund. 148, n. 1; 2 Sell. Pr. 252.
2. It is a remedial process, which bears solely on the wrongful acts of the opposite party, and not upon the erroneous judgments or acts of the court. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363. It will therefore, where the cause of complaint is a proper subject for a writ of error. 1 Verm. 433, 491; Brayt. 27.
3. An audita querela is in the nature of an equitable suit, in which the equitable rights of the parties will be considered. 10 Mass. 101; 14 Mass. 448 2 John. Cas. 227.
4. An audita querela is a regular suit, in which the parties may plead, take issue, &c. 17 John. 484. But the writ must be allowed in open court, and is not, of itself, a supersedeas, which may or may not be granted, in the discretion of the court, according to circumstances. 2 John. 227.
5. In modern practice, it is usual to grant the same relief, on motion, which might be obtained by audita querela: 4 John. 191 11 S. & R. 274 and in Virginia, 5 Rand. 639, and South Carolina, 2 Hill, 298; the summary remedy, by motion, has superseded this ancient remedy. In Pennsylvania this writ. It seems, may still be maintained, though relief is more generally obtained on motion. 11 S. & R. 274. Vide, generally, Pet. C. C. R. 269; Brayt. 2 or, 28; Walker, 66 1 Chipm. 387; 3 Conn. 260; 10 Pick. 439 1 Aik. 107; 1 Overt. 425 2 John. Cas. 227 1 Root; 151; 2 Root, 178; 9 John. 221 Bouv. Inst. Index, h. t.
AUDITOR. An officer whose duty is to examine the accounts of officers who have received and dishursed public moneys by lawful authority. See Acts of Congress, April 3, 1817; 3 Story's Laws U. S. 1630; and the Act of February 24, 1819, 3 Story's L. U. S. 1722.
AUDITORS, practice. Persons lawfully appointed to examine and digest accounts referred to them, take down the evidence in writing, which may be lawfully offered in relation to such accounts, and prepare materials on which a decree or judgment may be made; and to report the whole, together with their opinion, to the, court in which such accounts originated. 6 Cranch, 8; 1 Aik. 145; 12 Mass. 412.
2. Their report is not, per se, binding and conclusive, but will become so, unless excepted to. 5 Rawle, R. 323. It may be set aside, either with or without exceptions to it being filed. In the first case, when errors are apparent on its face, it may be set aside or corrected. 2 Cranch, 124; 5 Cranch, 313. In the second case, it may be set aside for any fraud, corruption, gross misconduct, or error. 6 Cranch, 8; 4 Cranch, 308; 1 Aik. 145. The auditors ought to be sworn, but this will be presumed. 8 Verm. 396.
3. Auditors are also persons appointed to examine the accounts subsisting between the parties in an action of account render, after a judgment quod computet. Bac. Ab. Accompt, F.
4. The auditors are required to state a special account, 4 Yeates, 514, and the whole is to be brought down to the time when they make an end of their account. 2 Burr. 1086. And auditors are to make proper charges and credits without regard to time, or the verdict. 2 S. & R. 317. When the facts or matters of law are disputed before them, they are to report them to the court, when the former will be decided by a jury, and the latter by the court, and the result sent to the auditors for their guidance. 5 Binn. 433.
AUGMENTATION, old English law. The name of a court erected by Henry VIII., which was invested with the power of determining suits and controversies relating to monasteries and abbey lands.
AULA REGIS. The name of an English court, so called because it was held in the great hall of the king's palace. Vide Curia Regis.
AUNT, domestic relations. The sister of one's father or mother; she is a relation in the third degree. Vide 2 Com. Dig. 474 Dane's Ab. c. 126, a. 3. 4.
AUTER. Another. This word is frequently used in composition, us auter droit, auter vie, auter action, &c. .
AUTRE ACTION PENDANT. A plea that another action is pending for the same cause.
2. It is evident that a plaintiff cannot have two actions at the same time, for the same cause, against the same defendant; and when a second action is so commenced, and this plea is filed, the first action must be discontinued, and the costs paid, and this ought to be done before the plaintiff replies nul tiel record. Grah. Pr. 98. See Lis Pendens.
3. But the suit must be for the same cause, in order to take advantage of it under these circumstances, for if it be for a different cause, as, if the action be for a lien, as, a proceeding in, rem to enforce a mechanic's lien, it cannot be pleaded in abatement in an action for the labor and materials. 3 Scamm. 201. See 16 Verm. 234; 1 Richards, 438; 3 Watts & S. 395 7 Mete. 570; 9 N. H. Rep. 545.
4. In general, the pending of another action must be pleaded in abatement; 3 Rawle, 320; 1 Mass. 495; 5 Mass. 174, 179; 2 N. H. Rep. 36 7 Verm. 124; 3 Dana, 157; 1 Ashm. 4, 2 Browne, 175 4 H. & M. 487; but in a penal action, at the suit of a common informer, the priority of a former suit for the same penalty in the name of a third person, may be pleaded in bar, because the party who first sued is entitled to the penalty. 1 Chit. PI. 443.
5. Having once arrested a defendant, the plaintiff cannot, in general, arrest him again for the same cause of action. Tidd. 184. But under special circumstance's, of which the court will judge, a defendant may be arrested a second time-. 2 Miles, 99, 100, 141, 142. Vide Bac. Ab. Bail in civil cases, B 3; Grah. Pr. 98; Troub. & H. Pr. 44; 4 Yeates, 206, 1 John. Cas. 397; 7 Taunt. 151; 1 Marsh. 395; and Lis Pendens.
AUTER DROIT, or more properly, Autre Droit, another's right. A man may sue Or be sued in another's right; this is the case with executors and administrators.