A New Law Dictionary and Institute of the Whole Law

ARMY-continued.

Court martials were established for the first time, in 1718, by a clause in the Mutiny Bill of that year, and have since been continued under the annual Mutiny Act.

The statute 8 Geo. 2, c. 30, prohibits troops from appearing at elections; and in 1741 a resolution was made in the Commons declaring that it was a high infringement of the liberty of the subject for the troops to have appeared (as they had done) at the Westminster election of that year.

II. Militia:-The freeholders of each county were originally summoned by the earl for self-defence, and were under a general duty to be properly furnished with arms for that purpose. By the Statute of Winchester (13 Edw. 1.), in aid of the Common Law, all male persons between the ages of fifteen and sixty were required to keep arms in accordance with their station, and might at any time be called out as a posse comitatus by the sheriff, who had by that time taken the place of the earl, at least in matters of mere internal police. But these freeholders, keeping themselves in constant readiness, were capable of being mobilized as a militia for the purposes of the national defence.

The stat. of 1 Jac. 1, c. 25, established magazines of arms in each county, and Mary having previously created the body of lords-lieutenant, the militia was henceforth under the control of these latter officers, and a certain number of freeholders acted as a militia in relief of the general body. The Train Bands of London were a noted regiment of militia, formed in the reign of Henry VIII., and so called in the reign of Elizabeth (1588).

In 1642, the Long Parliament introduced a bill for regulating the militia, and assumed the right of nominating the lordslieutenant who were to have the command; but in 1660, the sole right over the militia was declared to reside in the Crown, and not in Parliament. In 1757, the militia were re-organised, and placed nearly on their present footing.

ARRAIGN, ARRAIGNMENT (ad rationem ponere). To arraign a prisoner is to call him to the bar of the Court to answer the matter charged against him in an indictment.

ARRAY signifies the ranking or setting forth in order. A challenge to the array, as applied to juries and as distinguished from a challenge to the polls, signifies an exception or objection against all the persons arrayed or impaneled on a jury on account of partiality, or some default of the sheriff or his under officer who arayed the panel.

ARREARS. From the French arrière (behind), denotes money remaining unpaid after it is due. Under the stat. 3 & 4 Will. 4, c. 27, six years is fixed as the amount of arrears of rent, dower, &c., which may be recovered out of the land, in respect of which the right to payment exists; but this does not prevent an action of covenant being brought under the stat. 3 & 4 Will. 4, c. 42, for twenty years' arrears. Hunter v. Nockolds, 1 Mac. & G. 640.

ARREST.

From the French arrêter (to stop), signifies the restraint of a man's person by substituting for his own will the constraints of the law. Arrests may be either in civil or in criminal cases; for the latter, see title CONSTABLE.

Arrests in civil cases were either by writ of capias or by writ of attachment, the former being the more general, the latter issuing only in cases of a contempt of Court. Such arrests were also either on mesne process or on final process; but arrest on mesne process was abolished by the stat. 1 & 2 Vict. c. 110 (with certain exceptions specified in the Act), more latterly arrest on final process for debt has been abolished by the stat. 32 & 33 Vict. c. 62 (with certain exceptions specified in the Act).

Certain places, called Sanctuaries, e.g., the Mint, the Savoy, &c., conferred a privilege from arrest; but such privileges were abolished by the stats. 8 & 9 Will. 3, c. 27; 9 Geo. 1, c. 28; and 1 Geo. 4, c. 116.

See also titles CAPIAS; ATTACHMENT.

ARREST OF JUDGMENT. The with. holding or staying of judgment, notwithstanding a verdict has been given, on the ground that there is some error appearing on the face of the record, which vitiates the proceedings (Steph. on Pleading, 106, 6th ed. See example in Roscorla v. Thomas 6 Jur. 929). As a general rule the error must be one of substance, and not merely formal, the Statutes of Amendments and Jeofails excluding it in respect of the latter. The defendant is of course the party who moves in ara st of judgment.

In criminal cases the accused may at any time between conviction and sentence, but not afterwards, move in arrest of judgment, and the Court will even in certain cases of its own motion arrest the judgment. By the stat. 7 Geo. 4, c. 64, s. 20, many formal defects in an indictment are made demurrable only, and are no longer available as a ground of motion to arrest.

ARRESTMENT. The Scotch term for arresting. It is applied either to the person or to the effects. Arrestment of the person takes place in cases in which

ARRESTMENT-continued.

there is reason to apprehend that the person will leave the jurisdiction of the judge, and so deprive the creditor of the means of redress. Arrestment of the effects is that process of the law by which a creditor attaches the debt due to him, or the moveables belonging to his debtor in the hands of a third party.

See title GARNISHMENT.

ARRIAGE AND CARRIAGE were indefinite services formerly demandable from tenants, but prohibited by 20 Geo. 2, c. 50, ss. 21, 22.

ARSON. From the Latin ardere (to burn), is the offence of unlawfully or maliciously setting property on fire. By the ancient Common Law, the offence was of two degrees,—either, (1) Felony, where the defendant wilfully burnt the house of another, or, (2) Misdemeanour, where he wilfully burnt his own house, with the intention of burning that of another. By statutes passed at various periods, arson of every kind was made a capital felony, but the severity of the statute law was mitigated by the consolidation statutes 7 & 8 Geo. 4, c. 30, and 7 Will. 4 & 1 Vict. c. 89, according to which certain arsons were made capital felonies, and the rest felonies not capital. The present law is embodied in the statute 24 & 25 Vict. c. 97. See Arch. Pl. Crim. Cases (17th ed.) pp. 503-520.

ARTICULI CLERI. The name of an ancient statute, 9 Edw. 2, st. 1, concerning the liberties and franchises of the clergy. The petitions presented to the Star Chamber by Archbishop Bancroft, in 1605, being thought to present some analogy to the statute of the 9 Edw. 2, were called by Lord Coke by the same name. 1 Hall. Const. Hist. p. 324.

The

ARTICULI SUPER CHARTAS. title of the stat. 28 Edw. 1, confirming Magna Charta and the Charta de Foresta, without the saving clauses which were contained in the Confirmatio Chartarum, 25 Edw. 1.

ARTICLED CLERK. Is a clerk under articles (i.e., heads and particulars) of an agreement to serve a solicitor in consideration of being initiated into the routine and mystery of the profession. No one solicitor may have more than two articled clerks at any one time (7 & 8 Vict. c. 73), but a firm of, say three, partners may have as many as six (3 × 2) such clerks among them, viz., two to each partner, provided each is bound separately to one of the partners only, and not generally to all. Where the clerk is (as usually happens) at the date of the articles under age, his parent or guardian

to Hawk. P. C. i, c. 62, § 1, an assault is an attempt or offer to do a corporal hurt to another, as by striking him, or presenting a gun at him at carrying distance, or pointing a pitchfork at him which might reach him, or holding up one's fist at him, or doing any such like act in an angry threatening manner; and a battery is any injury whatsoever to the person of a man done in an angry, revengeful, rude, or insolent manner. An assault and battery is the combination of both offences. By the Common Law, an assault or battery is only a misdemeanour; but by the stat. 9 Geo. 4, c. 31, s. 25, and subsequently by the stat. 24 & 25 Vict. c. 100, certain aggravated assaults are made felonies, and certain others, although remaining misdemeanours, are visited with severer punishment.

Either an action at suit of the injured party, or an indictment at suit of the Crown, or both, may be brought or laid for the offence, and the police magistrates have also a summary jurisdiction over the offence.

ASSEMBLY, UNLAWFUL, is defined to be the meeting of three or more persons with the intention of doing an unlawful act.

See also title ERROR.

ASSIGNMENT OF PERSONAL PROPERTY. This is the assigning over or transferring to another person the right or interest which one has in some matter or thing.

(1.) As applied to leasehold property or chattels real. See title CONVEYANCES. It was the rule of the Common Law, that all certain estates and interests in lands and tenements were assignable, but that mere titles, rights of entry, contingent interests, and possibilities, were not assignable (Co. Litt. 214 a, 266 a). But, under the stat. 8 & 9 Vict. c. 106, all such latter interests have become assignable.

(2.) As applied to personal property, and hereunder (a.) In possession. The assignment of that was always permitted by the Common Law, and is effected in the same way as the assignment of leaseholds.

(b.) Not in possession. Personal property not in possession is ordinarily designated a chose in action (see that title). By the Common Law, no such chose was assignable (Com. Dig. Assignment, c. 1, 2, 3); but in Equity every such chose is and always has been assignable, the Court requiring the assignor to perfect what he has done towards an assignment, and holding that an imperfect legal assignment is at any rate evidence of a contract to assign, which contract, when for value, the Court will enforce. But, as the result of gradual approximations on the part of Law to equitable principles-approximations attributable partly (as in the case of bills of

ASSIGNMENT OF PERSONAL PRO

PERTY-continued.

exchange) to mercantile usage, partly and chiefly (as in the case of policies of assurance) to statutes, in particular the culminating stat. 36 & 37 Vict. c. 66 (Judicature Act, 1873) s. 25, every chose in action is now become assignable equally in Law as in Equity.

ASSIGNS, or ASSIGNEES. These are the transferees under an assignment of personal property (see that title). They may be either (1.) general assignees, as in the case of bankruptcy, or (2.) particular assignees, as under a bill of sale (see both these titles). In cases of bankruptcy, they were either official assignees or trade, i. e., creditors', assignees; but, under the Bankruptcy Act, 1869, the word trustee is substituted for that of assignee, and the registrar is made the official trustee, and the nominee of the creditors is called simply the trustee.

It is a rule of law that assignees of a chose in action take subject to the equities, and that they do so although particular assignees for value and without notice. As to how far covenants are binding upon or can be made to bind assignees, see title COVENANTS.

ASSISE. This word is derived from assideo, to sit together; and is usually taken for the Court, place, or time where the judges of the three superior Courts at Westminster try all questions of fact issuing out of those Courts that are ready for trial by jury. These assizes are, indeed, neither more nor less than the sittings of the judges at the various places where they visit on their circuits, and which they usually make four times in every year in the respective vacations after term. The word assise also sometimes denotes a jury, and sometimes denotes a writ, as to all which, see succeeding titles.

ASSISA CADIT IN JURATAM. An assise was taken either "in modum assisa" or ‘in modum jurata," in which latter case it was said to fall into a jury (cadere in juratam.) The difference between the two forms of assise appears to have been this: (1.) In nature, the very matter alleged by the plaintiff as his ground of claim was traversed in the assisa, while in the jurata some fresh point was stated which went to destroy that ground of claim; and

(2.) In consequence, the jury could not be attainted for false verdict in the jurata, whereas in the assisa they might be attainted.

ASSISA CADIT IN PERAMBULATIONEM. The jury declaring their ig norance of the boundaries in a question of disputed boundaries, the judge would order

ASSISE DE UTRUM. This writ, which was called also assisa jurum utrum, lay for a parson against a layman, or for a layman against a parson, for lands or tenements, as to which it was doubtful whether they were lay-fees or free-alms. Cowel.

ASSISA PANIS ET CEREVISIÆ. This was the power of assising (at the time the judges on circuit assised) the weight of bread and the measures of beer. The stat. 51 Hen. 3, for fixing the price of bread and ale, was so called. Cowel; Tomlins.

ASSISE OF DARREIN PRESENTMENT. This was a writ which lay when a man or his ancestor had presented a clerk to a church, and after the church had become void by his death or otherwise a stranger presented his clerk to the church, in disturbance of the patron. F. N. B. 31 F.

ASSISE OF MORT D'ANCESTOR. writ that lay when a man's father, sister, mother, brother, &c., died seised of lands, tenements, rents, &c., that were held in fee, and after their death a stranger caused an abatement. See title ABATEMENT.

ASSISE OF NOVEL DISSEISIN. A remedy for the recovery of lands or tenements of which the party himself had been disseised.

ASSISE OF NUISANCE. A writ which lay against a man to redress or remove a nuisance which he had created to the freehold of another, which the latter held for life, in tail, or in fee simple. F. N. B. 183, I.

ASSISE RENTS. Are the certain established rents of the freeholders and ancient copyholders of a manor, and are so called precisely because they are assised or certain.

ASSISTANCE: See title WRIT OF ASSIST

ANCE.

ASSOCIATE JUDGE. Under the stat. 15 & 16 Vict. c. 73, ss. 1-6, there is an associate in each of the Common Law Courts, appointed by the respective chiefs of these Courts. Each associate appoints two clerks for assisting him in the discharge of his duties, such latter appointments being subject to the approval of the chief of the Court. No associate may act as either a barrister, a solicitor, or an attorney.

ASSUMPSIT. Is a promise (not being under seal) by which one person assumes or takes upon him to do some act or pay something to another. See also next title.

ASSUMPSIT, ACTION OF. Is the form of action given by law to recover damages for the non-performance of contracts, either express or implied, and which are neither of record nor under seal. In origin, it was an action on the case for non-performance of an agreement; and in Slade v. Morley, 4 Rep. 92 b, 44 Eliz., it was settled that assumpsit might even be brought for a sum certain. although debt was the more natural form of action.

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