(3d.) Real estates, devised or ordered to be sold for payment of debts, not merely charged with such payment, and whether the inheritance, or a term carved out of it, be so limited.

These being equitable assets are to be applied in the payment of debts, pari passu. And in case the creditors are paid out of the personal estate, in payment of legatees pro tanto, whether specific or otherwise.

(4th.) Real estates descended, whether freehold or copyhold, and whether in the possession of the devisor at the date of his will, or subsequently acquired.

These being legal assets are to be applied to the payment of debts, and then of legacies pari passu, whether specific or pecuniary.

(5th.) Realty or personalty devised or bequeathed, charged with and subject to the payment of debts, and specifically disposed of sub

These being equitable assets are to be applied in payment of debts pari passu, and should the creditors be paid out of the personal estates, in payment of legatees pro tanto. Personalty given charged with debts seems equally liable with realty given so charged, in favor of general legatees, but as legal assets.

The distinction is this-the property of a deceased person, which is in the hands of an executor or administrator virtute officii, and which can be reached for the purpose of satisfying a creditor by an action at law is commonly termed legal assets, and will be applied, both at law and in equity, in the ordinary course of administra-ject to such debts. tion, which gives debts of a certain nature a priority over others; where, however, the assets are such as are recognized only in equity, they are termed equitable assets, and according to the well-known maxim that equality is equity, will, after satisfying those who have liens on any specific property, be distributed amongst the creditors of all grades equally, i. e. pari passu; or should the funds fall short, then ratably by way of dividend, without any regard to legal priority, all debts being equal when conscientiously considered. Equitable assets are of three kinds: (1.) those created by the acts of the testator, by charging or devising his land for payment of debts; (2.) those which not being recognized or attainable at law are created in equity-such as an equity of redemption or the separate estate of a deceased wife; and (3.) those so declared by statute.

The order in which Equity administers assets, partly legal and partly equitable, is this:

(1st.) Personalty, not exempted by a testator either by express words or manifest intent, from the payment of debts or not specifically bequeathed. Neither a charge upon land, nor a direction to sell, nor the creation of a term for payment of debts, will, however, exempt the personal estate.-Duke of Ancaster v. Mayer, 1 Bro. C. C. 454 (1783—1785); 1 White and Tudor's Lead. Cases, 415-439. The question, then, in each particular case resolves itself into this: Does there appear upon the whole testamentary disposition taken together an intention on the part of the testator so expressed as to convince a judicial mind that it was meant not merely to charge the real estate, but so to charge it as to exempt the personal estate; for it is not upon an intention to charge the real, but an expressed intention also to discharge the personal estate, that the question is to be decided, and every testator must be presumed to have been cognizant of the law.

This being legal assets, is to be applied in a course of administration for the payment of debts and legacies, according to their legal priorities. After the exhaustion of the unexempted personalty, which is the natural and first fund for the payment of debts, then

(2d.) A real fund created for the exclusive purpose of satisfying debts.

As to what amounts to a charge of debts, it is a rule, that a mere general direction by a testator, that his debts should be paid, effectually charges them upon his real estate. To this rule there are two exceptions: (1.) Where the testator, after a general direction for payment of his debts, has specified a particular fund for the purpose; because the general charge by implication is controlled by the specific charge made in the subsequent part of the will; (2.) Where the debts are directed to be paid by executors; for, in that case, it will be presumed, unless land be devised to them, that the debts are to be paid exclusively out of the assets which come to them as executors.

Where a testator gives his real estate to A. and his heirs, charged with his (the testator's) debts; that is a devise for a particular purpose, but not for that purpose only. If, however, the devise be, on trust to pay the testator's debts, that is a devise for a particular purpose, and nothing more. The wide difference of effect is this: the first mode is a devise of an estate of inheritance for the purpose of giving the devisee the beneficial interest, subject to a particular purpose; the latter is a devise for a particular purpose with no intention to give him any beneficial interest. When, therefore, the whole legal interest is given for the purpose of satisfying trusts expressed, and those trusts do not exhaust the whole, so much of the beneficial interest as is not exhausted belongs to the heir; but where the whole legal interest is given for a particular purpose, with an intention to give to the devisee of the legal estate the beneficial interest, if the whole be not exhausted by the particular purpose, the surplus goes to the devisee, as it was intended to be given to him.-1 Hov. on Frauds, 360.

(6th.) General pecuniary legacies pro ratâ. (7th.) Real estate devised, not charged with debts, and personal estate specifically or demon

stratively bequeathed, each contributing ratably, | unless one is made primarily liable.

The 3 & 4 Will. IV. c. 104, provides that when any person shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customaryhold, or copyhold, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in Equity for the payment of the just debts of such persons, as well debts due on simple contract as on specialty: and that the heir or heirs-at-law, customary heir or heirs, devisee or devisees of such debtor, shall be liable to all the same suits in Equity at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as the heir or heirs-at-law, devisee or devisees of any person or persons who died seised of freehold estates was or were before the passing of the act liable to in respect of such freehold estates at the suit of creditors by specialty in which the heirs were bound: provided always, that, in the administration of assets by Courts of Equity under and by virtue of this act, all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty in which the heirs are not bound shall be paid any part of their demands.

These assets are not administered in payment of legacies.

(8th.) Realty and Personalty, which the testator had power to appoint, and which he has appointed by his will.

(9th.) The testator's widow's paraphernalia. Where assets are partly legal, and partly equitable, though equity cannot take away the legal preference on legal assets, yet, if one creditor have been paid out of such legal assets, when satisfaction comes to be made out of equitable assets the court will postpone him till there is an equality in satisfaction to all other creditors, out of the equitable assets, proportionable to so much as the legal creditor has been satisfied out of the legal assets pursuant to the maxim that he who seeks equity shall do equity.

In commerce the term is used to designate the stock in trade and the entire property of all sorts, belonging to a merchant, or to a trading association. [See Story's Equity.

ASSEVERATION, an appeal to a witness for the truth of a representation.

ASSEWIARE, to draw or drain water from marsh grounds.-Cowel.

ASSIDERE, or ASSIDARE, to tax equally. Sometimes used in the sense of assigning an annual rent to be paid out of a particular farm, &c.-Mat. Par. anno 1232.

ASSIGN, variously applied; generally, to set over a right to another, or appoint a deputy; specially, to set forth or point at, as to assign error, false judgment, &c. The judges are said to be assigned to take assizes.

ASSIGNATION, anything simply ceded, yielded, and assigned to another.-Scotch Law. Assignatus utitur jure auctoris. (The assignee makes use of the right of his assignor.)

ASSIGNEE, or ASSIGN, a person appointed by another to do any act or perform any business; also a person, who takes some right, title, or interest in things by an assignment from an assignor. They are divided into: (1.) assignee by deed, as when a lessee of a term sells or assigns it to another, he is an assignee by deed; and, (2.) assignee by law, as when property devolves upon an executor without any specific appointment, the executor is assignee in law to the testator: assignees, however, are especially those persons in whom the property of a bankrupt vests by virtue of their appointment. These are either official assignees, appointed by the commissioner, or creditors' assignees, elected by the creditors who prove debts under the bankruptcy to the value of 101. or upwards, at the first public sitting, and confirmed by the commissioners. As to their duties, rights, and liabilities, consult Flather's Arch. Bankruptcy. As to assignees of insolvents, see 1 & 2 Vict. c. 110, s. 45 et seq. and 7 & 8 Vict. c. 96, s. 3.

ASSIGNMENT, a transfer of the whole of a particular estate, the operative verbs being "assign, transfer, and set over." An assignee is liable for the breach of all covenants running with the land broken during the subsistence of the assignment, but he may assign over to a mere beggar to get rid of his continuing liability under such covenants; although he cannot thus escape from liability on his covenant for indemnity. [See Angel on Assignments.]

ASSIMULARE, to connect highways.-Leg. Hen. I. c. 8.

ASSISA CADERE, to be nonsuited, as when there is such a plain and legal insufficiency in an action, that the plaintiff cannot successfully proceed any further in it.-Fleta, lib. 4, c. 15; Bracton, lib. 2, c. 7.

ASSISA CADIT IN JURATAM, to submit a controversy to trial by jury.-Fleta, lib. 4, c. 15.

ASSISA CONTINUANDA, an ancient writ addressed to the justices of assize for the continuation of a cause, when certain words alleged could not have been proved in time by the party having occasion for them.-Reg. Orig. 217.

ASSISA PANIS ET CEREVISIÆ, the power or privilege of assizing or adjusting the weight and measure of bread and beer.-51 Hen. III. Cowel. Repealed by 6 & 7 Wm. IV. c. 37.

ASSISA PROROGANDA, an obsolete writ. which was directed to the judges assigned to take assizes, to stay proceedings, by reason of a party to them being employed in the king's business.-Reg. Orig. 208.

ASSISE, or ASSIZE (fr. assideo, Lat. to sit together), a jury, who sit together for the purpose of trying a cause, or rather a court or jurisdiction, which summons a jury by a commission of assize to take the assizes. Hence the judicial assemblies held by the Queen's commission in every county as well to take indictments as to try causes at Nisi Prius, are commonly termed the assizes. There are two commissioners, (I.) general, which is issued twice a year to the judges of the Superior Courts of Common Law at Westminster; two of whom are assigned to every circuit. See CIRCUITS. The judges have

The ordinary division of this action is into (1.) common or indebitatus assumpsit, brought for the most part on an implied promise; and (2.) special assumpsit, founded on an express promise.-1 Selw. N. P. 42 ; Steph. Plead. 18, 40. [See Gould on Pleading; Troubat and Haly's Prac.]

ASSUMPTION, the day of the death of a saint, quia ejus anima in cœlum assumitur (because his soul is taken into heaven).-Du Cange. Also a usurpation.

ASSURANCE, the legal evidences of the translation of property, called common assurances, by which every man's property is secured to him, and controversies, doubts, and difficulties prevented and removed.-2 Bl. Com. 293.

ASSURANCE. See INSURANCE.

ASSYSERS (jurors), persons, who, in an inquest, serve a man, heir, or judge, the probation in criminal causes.-Scotch Law.

ASSYTHMENT, a reparation made for mutilation or slaughter.-Ibid.

ASSYTH THE KING, to cause malefactors to pay a modified fine.-Scotch Law.

ASTEISM (fr. ásvɛčos, Gk.), in rhetoric, an ingenious irony, or polite way of deriding another. ASTER or HOMO ASTER, a resident. Brit. 151.

ASTIPULATION (fr. astipulor, Lat.), a mutual agreement, assent and consent between parties; also a witness or record.

ASTRARIUS HÆRES (fr. astre, Fr.. the hearth of a chimney), an heir apparent, who has been placed, by conveyance, in possession of his ancestor's estate, during such ancestor's lifetime. Co. Litt. 8.

ASTRICTION (fr. astrictio, Lat.) TO A MILL, a servitude, by which grain growing on certain lands or brought within them, must be carried to a certain mill to be ground, a certain multure or price being paid for the same.Jacob.

ASTRIHILIBET, a forfeiture of double the

damage.

ASTRUM, a house or place of habitation.Cowel.

A summo remedio ad inferiorem actionem, non habetur ingressus neque auxilium. Fleta, 1.6. (From the highest remedy to the lower action there is neither ingress nor assistance.) ASYLE, a sanctuary, or place of refuge for offenders to fly into.

ASYLUM (fr. "Aovλov, Gk., a place free from violence), a sanctuary of refuge, also a place set apart for the treatment and habitation of persons of unsound mind. See 16 & 17 Vict. cc. 96, 97; 18 & 19 Vict. c. 105; and 19 & 20 Vict. c. 87.

ATAVUS, the great grandfather's or great grandmother's grandfather. The ascending line of lineal ancestry runs thus: Pater, Avus, Proavus, Abavus, Atavus, Tritavus, the seventh generation in the ascending scale will be Tritavipater, and the next above it Proavi-atavus.Juv. Sat. iii. 312.

ATHANATION, the ancient name of the island of Thanet, in Kent.

ATHE, ATHA, or ATH (Sax.), an oath.— Blount.

ing an oath in cases of right and property.Blount.

ATHEISM, the disbelief of a God. The Scottish Law ranks it under the head of blasphemy, and punishes it with death.

ATHELING. See ETHELING.

ATHESIS FLUVIUM, the ancient name of the river Tees, in Cumberland.

ATIA, an ancient writ of inquiry whether a person be committed to prison on just cause of suspicion. Cowel; Ash.

ATILIA, utensils or country implements.Blount.

ATONEMENT, an agreement, union, or reconciliation. The word seems to be compounded of at and one, as it were a making at one. ATRIUM, a court before a house, or a churchyard.—Cowel.

ATTACH, to take or apprehend by commandment of a writ or precept. It differs from arrest, because it takes not only the body, but sometimes the goods, whereas an arrest is only against the person; besides, he who attaches keeps the party attached in order to produce him in court on the day named, but he who arrests lodges the person arrested in the custody of a higher power, to be forthwith disposed of. -Fleta, lib. 5, c. 24

ATTACHÉ, a person associated with a foreign legation.

ATTACHIAMENTA BONORUM, a distress formerly taken upon goods and chattels, where a person is sued for personal estate or debt by the legal attachiators or bailiffs, as security to answer an action.-Blount.

ATTACHIAMENTA DE SPINIS ET BOSCIS, a privilege granted to the officers of a forest to take to their own use thorns, brush, and windfalls, within their precincts.-Kenn. Par. Antiq. 209.

ATTACHMENT, a process from a Court of Record, awarded by the judges at their discretion on a bare suggestion, or on their own knowledge, against a person guilty of a contempt, who is punishable in a summary manner. Contempts may be thus classed: (1.) Disobedience to the Queen's writs; (2.) Contempts in the face of a court; (3.) Contemptuous words or writings concerning a court; (4.) Refusing to comply with the rules and awards of a court; (5.) Abuse of the process of a court; and, (6.) Forgery of writs, or any other deceit tending to impose on a court.-Leach's Hawk. P. Cr. c. 22, s. 33. [See Sergeant on Attachment.]

ATTACHMENT, FOREIGN, a process which takes the goods of foreigners found in some liberty to satisfy creditors.Com. Dig. tit. Attachment, Foreign. Also a judicial proceeding, by means of which a creditor may obtain the security of the goods or other personal property of his debtor, in the hands of a third per son, for the purpose, in the first instance, of enforcing the appearance of the debtor to answer an action; and afterwards, upon his continued default, of obtaining the goods or property in satisfaction of the demand. It is also called garnishment. [See FOREIGN ATTACHMENT.]

ATTACHMENT OF THE FOREST, one of the three courts held in forests. The highest ATHE, or ADDA, a privilege of administer-court is called Justice in Eyre's seat; the mid

ATTACHMENT OF PRIVILEGE. When a person, by virtue of his privilege, calls another into that court, to which he himself belongs, to answer some action, as an attorney, &c. It is also a power to apprehend a person in a privileged place. Termes de la Ley, 59. The 2 Wm. IV. c. 39 (commonly called the Uniformity of Process Act), virtually abolished this proceeding, and the 1 & 2 Vict. c, 110, enacts that all personal actions in any of the Superior Courts of Common Law at Westminster shall be commenced by writ of summons.

ATTAINDER (fr. tingo, Lat.), the stain or corruption of the blood of a criminal capitally condemned; it is the immediate inseparable consequence, by the common law, on sentence of death being pronounced, or of outlawry for a capital offence. The criminal then becomes dead in law, technically called civiliter mortuus. It differs from conviction, in that it is after judgment, whereas, conviction is upon the verdict of guilty, but before judgment pronounced, and may be quashed upon some point of law reserved, or judgment may be arrested. The consequences of attainder are forfeiture of property and corruption of blood.-4 Bl. Com. 380.

dle, the Swainmote; and the lowest, the attach- person entitled to the inheritance, then became, ment.-Manwood, 90, 99. according to equitable principle, entitled to the beneficial interest in such term, and the termor was held to be such person's trustee, This beneficial interest was subordinate to and merely attendant upon the higher estate possessed by the owner of the inheritance, and yet completely consolidated with it, following the inheritance in all the various modifications and changes to which it might be subjected by act of law or arrangements of the owner. The advantage of preserving these terms, and assigning them to trustees (thus preventing the legal presumption of surrender), with an express declaration that they shall attend upon the inheritance was this: If it had at any time appeared that prior to the purchase or mortgage, but posterior to the creation of the term, there had been an intermediate alienation or incumbrance of the fee in favor of another person, to which the then trustee of the term had not been a party, and of which the purchaser or mortgagee had had no notice, when he paid the purchase or mortgage-money, he would be protected against it through the medium of the term so assigned, which being the elder title, would have taken the priority in point of legal effect. Hence the expression "protecting against mesne (middle) incumbrances." The estate was thus defended from being defeated or injured by such titles or charges, however valid they might have been, or by any subsequent disposition of the vendor or mortgagor; it thus conduced to the safety of honest purchasers of mortgagees, to whom it afforded a protection not very unlike that of the Registry Acts; whereas, if he neglected to take such assignment, he exposed himself to the risk of some other person (whose title or interest might even have been acquired subsequently to his own) obtaining the assignment of the term, and using such benefit to his detriment. Besides, by such assignment, he could in many instances carry back his title to the possession for a much longer period than he could show a clear title to the inheritance, and thus a defective title might have been cured. It was sometimes the case, where an assignment of a term had been generally in trust to attend upon the inheritance, and the old trustees were approved of, and the new purchaser or mort gagee had the possession of all the title-deeds, to rely upon a declaration of trust of such term, but this was a dangerous practice, and for this simple reason: a mere declaration of trust would not protect the inheritance against a subsequent bona fide purchaser or mortgagee, without notice of it, who procured a proper assignment of the term to his own trustees. As to the point of notice of intermediate incumbrances, it was not necessary that a person should be unaffected with notice, when he procured an assignment of an outstanding term, if he had been clear of notice at the time of his purchase, mortgage, or other charge, for Equity allowed him in such case to avail himself of any protection against defect of title or charge, which he might have subsequently discovered; an outstanding term or legal estate being considered tabula in naufragio, of which the first who acquired it was allowed the full benefit. There were in

A descendant may now trace through an attainted ancestor; for "when the person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in consequence of such attainder, before the 1st of January, 1834."3 & 4 Wm. IV. c. 106, s. 10. [The Court of the U. S., provides that no Bill of Attainder, or ex post facto law shall be enacted.]

ATTAINT, WRIT OF, issued to inquire whether a jury of twelve men gave a false verdict, that so the judgment following thereupon might be reversed. This writ was abolished by 4 Geo. IV. c. 50, ss. 60, 61. A corrupt juror is punishable by fine and imprisonment, upon an indictment or information.

ATTAINTURE, legal censure.

ATTAL SARISIN (i. e. the leavings of the Sarasins, Sassins, or Saxons), an old deserted mine, so called by the Cornish miners.-Cowel. ATTEGIA, a little house.-Blount.

ATTEMPT, an endeavor to commit a crime. ATTENDANT, one who owes a duty or service to another, or depends upon another.-Termes de la Ley, 61.

ATTENDANT TERM, terms for years in real property are created for many purposes, e. g. to furnish money for the payment of debts, to secure rent-charges or jointures, to raise portions for younger children, daughters, &c. Now although the purpose for which the term was originally created, has been satisfied or has failed, yet, not being surrender, it continued to exist, the legal interest remaining in the trustees, to whom it was at its creation limited, or, if deceased, in their personal representatives, but the