New York Lawyer WS
New York Layer, law dictionary, legal dictionary, dictionary online, word search, lawyer search, law and order, attorney, law school    
 
Google
 
Web new-york-lawyer.ws
 
A

ARTICLES. A division in some books. In agreements and other writings, for the sake of perspicuity, the subjects are divided into parts, paragraphs, or articles.

ARTICLES, chan. practice. An instrument in writing, filed by a party to a proceeding in chancery, containing reasons why a witness in the cause should be discredited.

2. As to the matter which ought to be contained in these articles, Lord Eldon gave some general directions in the case of Carlos v. Brook, 10 Ves. 49. " The court," says he, "attending with great caution to an application to permit any witness to be examined after publication, has held where the proposition was to examine a witness to credit, that the examination is either to be confined to general credit; that is, by produciug witnesses to swear, that the person is not to be believed upon his oath; or, if you find him swearing to a matter, not to issue in the cause, (and therefore not thought material to the merits,) in that case, as the witness is not produced to vary the case in evidence by, testimony that relates to matters in issue, but is to speak only to the truth or want of veracity, with which a witness had spoken to a fact not, in issue, there is no danger in permitting him to state that such fact, not put in issue, is false and, for the purpose of discrediting a witness, the court has not considered itself at liberty to sanction such a proceeding as an examination to destroy the credit of another witness, who had deposed only to points put in issue. In Purcell v. M'Namara, it was agreed that after publication it was competent to examine any witness to the point, whether he would believe that man upon his oath. It is not competent, even at law, to ask the ground of that opinion; but the general question only is permitted. In Purcell v. M'Namara, the witness went into the history of his whole life and as to his solvency, & c. It was not at all put at issue whether he had been insolvent, or had compounded with his creditors; but, having sworn the contrary, they proved by witnesses, that he, who had sworn to a, matter not in issue, had sworn falsely to that fact; and that he had been insolvent, and had compounded with his creditors; and it would be lamentable, if the court could not find means of getting at it; for he could not be indicted for perjury, though swearing falsely, the fact not being material. The rule is, in general cases the cause is heard upon evidence given before publication; but that you may examine after publication, provided you examine to credit only, and do not go to matters in issue in the cause, or in contradiction of them, under pretence of examing to credit only. Those depositions," he continued, " appear to me material to what is in issue in the cause; and therefore must be suppressed," See a form of articles in Gresl. Eq. Ev. 140, 141; and also 8 Ves. 327; 9 Ves. 145; 1 S. & S. 469.

ARTICLES, eccl. law. A complaint in the form of a libel, ex hibited to an ecclesiastical court.

ARTICLES OF AGREEMENT, contracts. Relate either to real or personal estate, or to both. An article is a memorandum or minute of an agreement, reduced to writing to make some future disposition or modification of property; and such an instrument will create a trust or equitable estate, of which a specific performance will be decreed in chancery. Cruise on Real Pr. tit. 32 c. 1, s. 31. And see Id. tit. 12, c. 1.

2. This instrument should contain: 1, the name and character of the parties; 2, the subject-matter of the contracts; 3, the covenants which each of the parties bind themselves to perform; 4, the date; 5, the signatures of the parties.

3. 1. The parties should be named, and their addition should also be mentioned, in order to identify them. It should also be stated which persons are of the first, second, or other part. A confusion, in this respect, may occasion difficulties.

4. 2. The subject-matter of the contract ought to be set out in clear and explicit language, and the time and place of the performance of the agreement ought to be mentioned and, when goods are to be delivered, it ought to be provided at whose expense they shall be removed, for there is a difference in the delivery of light and bulky articles. The seller of bulky articles is not in general bound to deliver them unless he agrees to do so. 5 S. & R. 19 12 Mass. 300; 4 Shepl. 49.

5. 3. The covenants to be performed by each party should be specially and correctly stated, as a mistake in this respect leads to difficulties which might have been obviated had they been properly drawn.

6. 4. The instrument should be truly dated.

7. 5. It should be signed by the parties or their agents. When signed by an agent he should state his authority, and sign his principal's name, and then his own, as, A B, by his agent or attorney C D.

ARTICLES OF CONFEDERATION. The compact which was made by the original thirteen states of the United States of America, bore the name of the "Articles of Confederation and perpetual union between, the states of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia." It was adopted and went into force on the first day of March, 1781, and remained as the supreme law until the first Wednesday of March, 1789. 5 Wheat. R. 420. The following analysis of this celebrated instrument is copied from Judge Story's Commentaries on the Constitution of the United States, Book 2, c. 3.

2. "In pursuance of the design already announced, it is now proposed to give an analysis of the articles of confederation, or, as they are denominated in the instrument itself, the Articles of Confederation and Perpetual Union between the States, as they were finally adopted by the thirteen states in 1781.

3. "The style of the Confederacy was, by the first article, declared to be, `The United States of America.' The second article declared, that each state retained its sovereignty, freedom, and independence, and every power, jurisdiction and right, which was not by this confederation expressly delegated to the United States, in congress assembled. The third article declared, that the states severally entered into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. The fourth article declared, that the free inhabitants of each of the states, (vagabonds and fugitives from justice excepted,) should be entitled to all the privileges of free citizens in the several states; that the people of each state should have free ingress and regress to any from any other state, and should enjoy all the privileges of trade and commerce, subject to the same duties and restrictions, as the inhabitants; that fugitives from justice should, upon the demand of the executive of the state, from which they fled, be delivered up; and that full faith and credit should be given, in each of the states, to the records, acts, and judicial proceedings of the courts and magistrates of every other state.

4. "Having thus provided for the security and intercourse of the states, the next article (5th) provided for the organization of a general congress, declaring that delegates should be chosen in such manner, as the legislature of each state should direct; to meet in congress on the first Monday in every year, with a power, reserved to each state, to recall any or all of the delegates, and to send others in their, stead. No state was to be represented in congress by less than two, nor than seven members. No delegate was eligible for more than three, in any term of six years; and no delegate was capable of holding any office of emolument under the United States. Each state was to maintain its own delegates; and, in determining questions in congress, was to have one vote. Freedom of speech and debate in congress was not to be impeached or questioned in any other place; and the members were to be protected from arrest and imprisonment, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.

5. "By subsequent articles, congress was invested with the sole and exclusive right and power of determining on peace and war, unless in case of an invasion of a state by enemies, or an imminent danger of an invasion by Indians; of sending and receiving ambassadors; entering into treaties and alliances, under certain limitations, as to treaties of commerce; of establishing rules for deciding all cases of capture on land and water, and for the division and appropriation of prizes taken by the land or naval forces, in the service of the United States of granting letters of marque and reprisal in times of peace; of appointing courts for the trial of piracies and felonies committed on the high seas; and of establishing courts for receiving and finally determining appeals in all cases of captures.

6. "Congress was also invested with power to decide in the last resort, on appeal, all disputes and differences between two or more states concerning boundary, jurisdiction, or any other cause whatsoever; and the mode of exercising that authority was specially prescribed. And all controversies concerning the private right of soil, claimed under different grants of two or more states before the settlement of their jurisdiction, were to be finally determined in the same manner, upon the petition of either of the grantees. But no state was to be deprived of territory for the benefit of the United States.

7. "Congress was also invested with the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or that of the United States; of fixing the standard of weights and measures throughout the United States; of regulating the trade and managing all affairs with the Indians, not members of any of the states, provided, that the legislative right of any state within its own limits should not be infringed or violated of establishing and regulating post offices from one state to another, and exacting postage to defray the expenses; of appointing all officers of the land forces in the service of the United States, except regimental officers; of appointing all officers of the naval forces, and commissioning all officers whatsoever in the service of the United States; and of making rules for the government and regulation of the land and naval forces, and directing their operations.

8. "Congress was also invested with authority to appoint a committee of the states to sit in the recess of congress, and to consist of one delegate from each state, and other committees and civil officers, to manage the general affairs under their direction; to appoint one of their number to preside, but no person was to serve in the office of president more than one year in the term of three years; to ascertain the necessary sums for the, public service, and to appropriate the same for defraying the public expenses; to. borrow money and emit bills ou credit of the United States to build and equip a navy; to agree upon the number of land forces, and make requisitioins upon each state for its quota, in proportion to the number of white inhabitants in such state. The legislatures of each state were to appoint the regimental officers, raise the men, and clothe, arm, and equip them at the expense of the United States.

9. "Congress was also invested with power to adjourn for any time not exceeding six months, and to any place within the United States and provision was made for the publication of its journal, and for entering the yeas and nays thereon, when desired by any delegate.

10. "Such were the powers confided in congress. But even these were greatly restricted in their exercise; for it was expressly. provided, that congress should never engage in a war; nor grant letters of marque or reprisal in, time of peace; nor enter into any treaties or alliances; nor coin money or regulate the value thereof; nor ascertain the sums or expenses necessary for the, defence and welfare of the United States, nor emit bills nor borrow money on the credit of the United States nor appropriate money; nor agree upon the number of vessels of war to be built, or purchased; or the number of land or sea forces to be raised; nor appoint a commander-in-chief of the army or navy; unless nine states should assent to the same. And no question on any other point, except for adjournng from day to day, was to be determined, except by vote of the majority of the states.

11. "The committee of the states or any tine of them, were authorized in the recess of congress to exercise such powers, as congress, with the assent of nine states, should think it expedient to vest them with, except such powers for the exercise of which, by the articles of confederation, the assent of nine states was required, which could not be thus delegated.

12. "It was further. provided, that all bills of credit, moneys borrowed, and debts contracted by or under the authority of congress before the confederation, should be a charge against the United States; that when land forces were raised by any state for the common defence, all officers of or under the rank of colonel should be appointed by the legislature of the state, or in such manner as the state should direct; and all vacancies should be filled up in the same manner that all charges of war, and all other expenses for the common defence or general welfare, should be defrayed out of a common treasury, which should be supplied by the several states, in proportion to the value of the land within each state granted or surveyed, and the buildings and improvements thereon, to be estimated according to the mode prescribed by congress; and the taxes for that proportion were to be laid and levied by the legislatures of the states within the time agreed upon by congress.

13. "Certain prohibitions were laid upon the exercise of powers by the respective states. No state, without the consent of the United States, could send an embassy to, or receive an embassy from, or enter into, any treaty with any king, prince or state; nor could any person holding any office under the United States, or any of them, accept any present, emolument, office or title, from any foreign king, prince or state; nor could congress itself grant any title of nobility. No two states could enter into any treaty, confederation, or alliance with each other, without the consent of congress. No state could lay any imposts or duties, which might interfere with any proposed treaties. No vessels of war were to be kept up by any state in time of peace, except deemed necessary by congress for its defence, or trade; nor any body of forces, except such as should be deemed requisite by congress to garrison its forts, and necessary for its defence. But every state was required always to keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and to be provided with suitable field-pieces, and tents, and arms, and amunition, and camp equipage. No state could engage in war without the consent of congress, unless actually invaded by enemies, or in danger of invasion by the Indians. Nor could any state grant commissions to any ships of war, nor letters of marque and reprisal, except after a declaration of war by congress, unless such state were infested by pirates, and then subject to the determination of congress. No state could prevent the removal of any property imported into any state to any other state, of which the owner was an inhabitant. And no imposition, duties, or restriction, could be laid by any state on the Property of the United States or of either of them.

14. "There was also provision made for the admission of Canada, into the Union, and of other colonies with the assent of nine states. And it was finally declared, that every state should abide by the determinations of congress on all questions submitted to it by the confederation; that the articles should be inviolably observed by every state; that the union should be perpetual; and that no alterations should. be made in any of the articles, unless agreed to by congress, and 'Confirmed by the legislatures of every state.

15. "Such is the substance of this celebrated instrument, under which the treaty of peace, acknowledging our independence, was negotiated, the war of the revolution concluded, and the union of the states maintained until the adoption of. the present constitution."

ARTICLES OF IMPEACHMENT. An instrument which, in cases of impeachment, (q. v.) is used, and performs the same office which an indictment does, in a common criminal case, is known by this name. These articles do not usually pursue the strict form and accuracy of an indictment., Wood. Lect. 40, p. 605; Foster, 389, 390; Com. Dig. Parliament, L 21. They are sometimes quite general in the form of the allegations, but always contain, or ought to contain, so much certainty, as to enable the party to put himself on the proper defence, and in case of an acquittal, to avail himself of it, as a bar to another impeachment. Additional articles may, perhaps, be exhibited at any stage of the prosecution. Story on the 806; Rawle on the Const. 216.

2. The answer to articles of impeachment is exempted from observing great strictness of form; and it may contain arguments as well as facts. It is usual to give a full and particular answer to each article of the accusation. Story, 808.

ARTICLES OF PARTNERSHIP. The name given to an instrument of writing by which the parties enter into a partnership, upon the conditions therein mentioned. This instrument generally contains certain provisions which it is the object here to point out.

2. But before proceeding more particularly to the consideration of the Subject, it will be proper to observe that sometimes preliminary agreements to enter into a partnership are formed, and that questions, not unfrequently, arise as to their effects. These are not partnerships, but agreements to enter into partnership at a future time. When such an agreement has been broken, the parties may apply for redress to a court of law, where damages will be given, as a compensation. Application is sometimes made to courts of equity for their more efficient aid to compel a specific performance. In general these courts will not entertain bills for specific performance of such preliminary contracts; but in order to suppress frauds, or manifestly mischievous consequences, they will compel such performance. 3 Atk. 383; Colly. Partn. B. 2, c. 2, 2 Wats. Partn. 60; Gow, Partn. 109; Story, Eq. Jur. 666, note; Story, Partn. 189; 1 Swanst. R. 513, note. When, however, the partnership may be immediately dissolved, it seems the contract cannot be specifically enforeed. 9 Ves. 360.

3. It is proper to premise that under each particular head, it is intended briefly to examine the decisions which have been made in relation to it.

4. The principal parts of articles of partnership are here enumerated. 1. The names of the contracting parties. These should all be severally set out.

5. 2. The agreement that the parties actually by the instrument enter into partnership, and care must be taken to distinguish this agreement from a covenant to enter into partnership at a future time.

6. 3. The commencement of the partnership. This ought always to be expressly provided for. When no other time is fixed by it, the commencement will take place from the date of the instrument. Colly. Partn. 140 5 Barn. & Cres. 108.

7. 4. The duration of the partnership. This may be. for life, or for a, specific period of time; partnerships may be conditional or indefinite in their duration, or for a single adventure or dealing; this period of duration is either express or implied, but it will not be presumed to be beyond life. 1 Swanst. R. 521. When a term is fixed, it is presumed to endure until that period has elapsed; and, when no term is fixed, for the life of the parties, unless sooner dissolved by the acts of one of them, by mutual consent, or operation of law. Story, Part. 84.

8. A stipulation may lawfully be introduced for the continuance of the partnership after the death of one of the parties, either by his executors or administrators, or for the admission of one or more of his children into the concern. Colly. Partn. 147; 9 Ves. 500. Sometimes this clause provides, that the interest of the partner shall go to such persons, as be shall by his last will name and appoint, and for want of appointment to such persons as are there named. In these cases it seems that the executors or administrators have an option to continue the partnership or not. Colly. Partn. 149; 1 McCl. & Yo. 569; Colles, Parl. Rep. 157.

9. when the duration of the partnership has been fixed by the articles, and the partnership expires by mere effluxion of time, and, after such determination it is carried on by the partners without any new agreement, in the absence of all circumstances which may lead as to the true intent of the partners, the partnership will not, in general, be deemed one for a definite period; 17 Ves. 298; but in other respects, the old articles of the expired partnership are to be deemed adopted, by implication as the basis of the new partnership during its continuance. 5 Mason, R. 176, 185; 15 Ves. 218; 1 Molloy, R. 466.

10. 5. The business to be carried on and the place where it is to be conducted. This clause ought to be very particularly written, as courts of equity will grant an injunction when one or more of the partners attempt, against the wishes of one or more of them, to extend such busiress beyond the provision contained in the articles. Story, Partn. 193; Gow, Partn 398.

11 6. The name of the firm, as for example, John Doe and Company, ought to be ascertained. The members of the partnership are required to use the name thus agreed upon, and a departure from it will make them individually liable to third persons or to their partners, in particular cases. Colly. Partn. 141; 2 Jac. & Walk. 266; 9 Adol. & Ellis, 314; 11 Adol. & Ellis, 339; Story, Partn. 102, 136, 142, 202.

12. 7. A provision is not unfrequently inserted that the business shall be managed and administered by a particular partner,20or that one of its departments shall be under his special care. In this case, courts of equity will protect such partner in his rights. Story, Partn. 172, 182, 193, 202, 204 Colly. Partn. 753. In Louisiana, this provision is incorporated in it's civil code, art. 2838 to art. 2840. The French and civil law also agree as to this provision. Poth. de Societe, n. 71; Dig. 14, 1, 1, 13; Poth. Pand. 14, 1, 4.

13. Sometimes a provision is introduced that a majority of the partners shall have the management of the affairs of the partnership. This is requisite, particularly when the associates are numerous, As to the rights of the majority, see Partners.

14. 8. A provision should be inserted as to the manner of furnishing the capital or stock of the partnership. When a partner is required to furnish his proportion of the stock at stated periods, or pay by installments, he will, where there are no stipulutions to the contrary, be considered a debtor to the firm. Colly. Partn. 141; Story, Partn. 203; 1 Swanst. R. 89, Sometimes a provision is inserted that real estate, and fixtures belonging to the firm shall be considered, as between the partners, not as partnership but as several property. In cases of bankruptcy this property will be treated as the separate property of the partners. Colly. Partn. 141, 595, 600; 5 Ves. 189; 3 Madd. R. 63.

15. 9. A provision for the apportionment of the profits a and losses among the partners should be introduced. In the absence of all proof, and controlling circumstances, the partners are to share in both equally, although one may have furnished all the capital, and the other only his skill, Wats. Partn. 59; Colly. Partn. 105; Story, Partn. 24; 3 Kent, Com. 28; 4th ed.; 6 Wend. R. 263; but see 7 Bligh, R. 432; 5 Wils. & Shaw, 16.

16. 10. Sometimes a stipulation for an annual account of the Property of the partnership whether in possession or in action, and of the debts due by partnership is inserted. These accounts when settled are at least prima facie evidence of the facts they contain. Colly. Partn. 146 Story Partn. 206; 7 Sim. R. 239.

17. 11. A provision is frequently introduced forbidding any one partner to carry on any other business. This should be provided for, though there is an implied provision in every partnership that no partner shall carry. on any separate business inconsistent or contrary to the true interest of the partnership. Story, Partn. 178, 179, 209.

18. 12. When the partners are numerous, a provision is often made for the expulsion of a partner for gross misconduct, for insolvency, bankruptcy, or other causes particularly enumerated. This provision will govern when the case occurs.

19. 13. This instrument should allways contain a provision for winding up the business. This is generally provided for in one of three modes: first, by turning all the assets into cash, and, after paying all the liabilities of the partnership, dividing such money in proportion to the several interests of the parties; secondly, by providing that one or more of the partners shall be entitled to purchase the shares of the others at a valuation;thirdly, that all the property of partnership shall be appraised, and that after paying the partnership debts, it shall be divided in the proper proportions. The first of these modes is adopted by courts of equity in the absence of express stipulations. Colly. Partn. 145 Story, Partn. 207 8 Sim. R. 529.

20. 14. It is not unusual to insert in these articles, a provision that in case of disputes the matter shall be submitted to arbitration. This clause seems nugatory, for no action will lie for a breach of it, as that would deprive the courts of their jurisdiction, which the parties cannot do. Story, Partn. 215; Gow, Partn. 72; Colly. Partn, 165 Wats. Partn. 383.

21. 15. The articles should be dated, and executed by the parties. It is not requisite that the instrument, should be under seal. Vide Parties to contracts; Partners Partnership.

ARTICLES OF THE PEACE, Eng. practice. An instrument which is presented to a court of competent jurisdiction, in which the exhibitant shows the grievances under which be labors, and prays the protection of the court. It is made on oath. See a form in 12 Adol. & Ellis, 599; 40 E. C. L. R. 125, 126; 1 Chit. Pr. 678.

2. The truth of the articles cannot be contradicted, either by affidavit or otherwise; but the defendant may either except to their sufficiency, or tender affidavits in reduction of the amounts of bail. 13 East. 171.

ARTICLES OF WAR. The name commonly given to a code made for the government of the army. The act of April 10, 1806, 2 Story's Laws U. S. 992, contains the rulesand articles by which the armies of the United States shall be governed. The act of April 23, 1800, 1 Story's L. U. S. 761, contains the rules and regulations for the government of the navy of the United States.

ARTICULATE ADJUDICATION. A term used in Scotch, law in cases where there is more than the debt due to the adjudging creditor, when it is usual to accumulate each debt by itself, so that any error that may arise in ascertaining one of the debts need not reach to all the rest.

ARTIFICERS. Persons whose employment or business consists chiefly of bodily labor. Those who are masters of their arts. Cunn. Dict. h. t. Vide drt.

ARTIFICIAL. What is the result of, or relates to, the arts; opposed to natural; thus we say a corporation is an artificial person, in opposition to a natural person. Artificial accession is the uniting one property to another by art, opposed to a simple natural union. 1 Bouv. Inst. n. 503.

ARTIFICIAL PERSON. In a figurative sense, a body of men or company are sometimes called an artificial person, because the law associates them as one, and gives them various powers possessed by natural persons. Corporations are such artificial persons. 1 Bouv. Inst. n. 177.

AS. A word purely Latin. It has two significations. First, it signifies weight, and in this sense, the Roman as, is the same thing as the Roman pound, which was composed of twelve ounces. It was divided also into many other parts (as may be seen in the law, Servum de hoeredibus, Inst. Lib. xiii. Pandect,) viz. uncia, 1 ounce; sextans, 2 ounces; quodrans, 3 ounces; triens, 4 ounces quincunx, 5 ounces; semis, 6 ounces; septunx, 7 ounces; bes, 8 ounces, dodrans, 9 ounces; dextans, 10 ounces; deunx, 11 ounces.

2. From this primitive and proper sense of the word another was derived: that namely of the totality of a thing, Solidum quid. Thus as signified the whole of an inheritance, so that an heir ex asse, was an heir of the whole inheritance. An heir ex triente, ex semisse, ex besse, or ex deunce, was an heir of one-third, one-half, two-thirds, or eleven-twelfths.

ASCENDANTS. Those from whom a person is descended, or from whom he derives his birth, however remote they may be.

2. Every one has two ascendants at the first degree, his father and mother; four at the second degree, his paternal grandfather and grandmother, and his maternal grandfather and grandmother; eight at the third. Thus in going up we ascend by various lines which fork at every generation. By this progress sixteen ascendants are found at the fourth degree; thirty-two, at the fifth sixty-four, at the sixth; one hundred and twenty-eight at the seventh, and so on; by this progressive increase, a person has at the twenty-fifth generation, thirty-three millions five hundred and fifty-four thousand, four hundred and thirty-two ascendant's. But as many of the ascendants of a person have descended from the same ancestor, the lines which were forked, reunite to the first comnmon ancestor, from whom the other descends; and this multiplication thus frequently interrupted by the common ancestors, may be reduced to a few persons. Vide Line.

ASCRIPTITIUS, civil law. Among the Romans, ascriptitii were foreigners, who had been naturalized, and who had in general the same rights as natives. Nov. 22, ch. . 17 Code 11, 47.

ASPHYXY, med. jur. A temporary suspension of the motion of the heart and arteries; swooning, fainting. This term includes persons who have been asphyxiated by submersion or drowning; by breathing mephitic gas; by the effect of lightning; by the effect of cold; by heat; by suspension or strangulation. In a legal point of view it is always proper to ascertain whether the person who has thus been deprived of his senses is the victim of another, whether the injury has been caused by accident, or whether it is. the act of the sufferer himself.

2. In a medical point of view it is important to ascertain whether the person is merely asphyxiated, or whether he is dead. The following general remarks have been made as to the efforts which ought to be made to restore a person thus situated,

1st. Persons asphyxiated are frequently in a state of only apparent death.

2d. Real from apparent death, can be distinguished only by putrefaction.

3d. Till putrefaction commences, aid ought to be rendered to persons asphyxiated.

4th. Experience proves that remaining several hours under water does not always produce death.

5th. The red, violet, or black color of the face, the coldness of the body, the stiffness of the limbs, are not always signs of death.

6th. The assistance to persons thus situated, maybe administered by any intelligent person; but to insure success, it must be done without discouragement for several hours together.

7th. All unnecessary persons should be sent away; five or six are in general sufficient.

8th. The place where the operation is performed should not be too warm.

9th. The assistance should be rendered with activity, but without precipitation.

ASPORTATION. The act of carrying a thing away; the removing a thing from one place to another. Vide Carrying away; Taking.

ASSASSIN, crim, law. An assassin is one who attacks another either traitorously, or with the advantage of arms or place) or of a number of persons who support him, and kills his victim. This being done with malice, aforethought, is murder. The term assassin is but little used in the common law, it is borrowed from the civil law.

ASSASSINATION, crim. law. A murder committed by an assassin. By assassination is understood a murder committed for hire in money, without any provocation or cause of resentment given by the person against whom the crime is directed. Ersk. Inst. B. 4, t. 4, n. 45.

ASSAULT, crim. law. An assault is any unlawful attempt or offer with force or violence to do a corporal hurt to another, whether from malice or wantonness; for example, by striking at him or even holding up the fist at him in a threatening or insulting manner, or with other circumstances as denote at the time. an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it. 6 Rogers Rec: 9. When the injury is actually inflicted, it amounts to a battery. (q. v.)

2. Assaults are either simple or aggravated. 1. A simple assault is one Where there is no intention to do any other injury. This is punished at common law by fine and imprisonment. 2. An aggravated assault is one that has in addition to the bare intention to commit it, another object which is also criminal; for example, if a man should fire a pistol at another and miss him, the former would be guilty of an assault with intent to murder; so an assault with intent to rob a man, or with intent to spoil his clothes, and the like, are aggravated assaults, and they are more severely punished than simple assaults. General references, 1 East, P. C. 406; Bull. N. P. 15; Hawk. P. B. b. 1, c. 62, s. 12; 1 Russ. Cr. 604; 2 Camp. Rep. 650 1 Wheeler's Cr. C. 364; 6 Rogers' Rec. 9; 1 Serg. & Rawle, 347 Bac. Ab. h. t.; Roscoe. Cr. Ev. 210.

 
 
 
Copyright © 2004 New-York-Lawyer .WS