ATTORNEY, Attornatus, in law, a person appointed by another to do something in his stead; particularly to solicit and carry on a lawsuit. See AGENT, DEPUTY, etc. See also CAUSE, PROCESS, ACTION, etc. Attorneys in common law are much the same with Procurators, Proctors, or Syndics, in the civil law. See PROCURATOR, PROCTOR, etc. The word is compounded of the Latin ad, to; and the French tourner, to turn; q.d. to turn a business over to another.—The ancient Latin name, according to Bracton, is Responsalis. See RESPONSALIS. Anciently, those of authority in courts had it in their power whether or no to suffer men to appear or sue by another than themselves; as appears from Fitz. de Nat. Brev. in the writ, Dedimus potestatem de Attornato faciendo; where it is shown, that men were driven to procure the king’s writs, or letters patent, to appoint attorneys for them: But ’tis since provided by statutes, that it shall be lawful to appoint an Attorney without such circumvention; as appears by several statutes, 20 Hen. III. cap. 10; 6 Edw. I. cap. 8, etc.
ATTORNMENT, in Law, a transferring of Duty and Service to another Lord; or an Acknowledgment which a Tenant makes of Homage and Service to a new Lord. See LORD and TENANT. Thus, when one is Tenant for Life, and he in Reversion grants his Right to another; it is necessary the Tenant for Life agree thereto, which is called Attornment; and without which nothing passes by the Grant.—If the Grant be by Fine, in Court of Record, he shall be compelled to Attourn. Stat. 27 Hen. VIII. The Words used in Attournment are these; I agree me to the Grant made to you, or more commonly, Sir, I Attourn to you by force of the same Grant; or, I become your Tenant, or deliver to the Grantee a Penny by way of Attournment, Littl. Lib. 3. Attournment is either by Word, or by Act; voluntary, or compulsory; by the Writ, Per quae servitia, or by Distress—It may be made to the Lord himself or to his Steward in Court. There is Attournment in Deed, and Attournment in Law. Coke. Attournment in Law is an Act, which though it be no express Attournment, yet in Intendment of Law it is of equal Force. Coke on Littl.
AUBAINE, in the French Customs, the act of inheriting after a Foreigner, who dies in a Country where he is not naturalized. The Word is form’d of aubain, a Foreigner; which Menage derives further from the Latin, Alibi natus; Cujas, from Advena; du Cange from Albanus, a Scot, or Frisian; by reason these were anciently much given to travelling and living abroad. The King of France, by the right of Aubaine, claims the Inheritance of all Foreigners in his Dominions; exclusive of all other Lords, and even of any Testament the deceased could make. An Ambassador, though not naturalized, is not subject to the right of Aubaine. The Swiss, Savoyards, Scots, and Portuguese are also exempted from the Aubaine, as being reputed Natives and Regnicoles.
AUSCULTARE, in our ancient customs.—In regard the reading of prayers with a graceful tone or accent, makes some impression on the hearers; there was anciently a person appointed, in monasteries, to hear the monks read, who instructed them how to perform it, before they were admitted to read publicly in the church, or before the people—This was call’d auscultare, q. d. to hear, listen, quicunque letturus vel cantaturus est aliquid in monasterio si necesse habeat ab eo, viz. cantore, priusquam incipiat debet auscultare. Lanfranc in Decret. pro Ord. Benedict.
AUXILIUM, in law. See AID. Auxilium Curia, signifies an order of the court for the summoning of one party at the suit of another. Auxilium ad filium militem faciendum et filiam maritandam, was a writ directed to the sheriff of every county, where the king or other lord had any tenants, to levy of them reasonable aid, towards the knighting his son, and the marriage of his eldest daughter. See AID.
AVENAGE, in Law, a certain Quantity of Oats, paid to a Landlord, in lieu of some other Duties; or, as a Rent, from the Tenant. The Word is French, form’d of the Latin, avena, Oats.
AVERAGE, AVERAGIUM, in Law, that Duty or Service which the Tenant is to pay the King, or other Lord, by his Beasts and Carriages. See SERVICE. The Word is derived from the base Latin, Averia, or the French, Oeuvre, Work.
AVERAGE is also used in Navigation and Commerce, for the Damage which a Vessel, or the Goods and Loading thereof, sustains, from the time of its Departure to its Return; as also, for the Charge or Contributions towards defraying such Damages.
AVERAGE is also used in Navigation and Commerce, for the Damage which a Vessel, or the Goods and Loading thereof, sustains, from the time of its Departure to its Return; as also, for the Charge or Contributions towards defraying such Damages.
AVERMENT, in Law, usually signifies an Offer of the Defendant to make good, or justify an Exception pleaded in Abatement or Bar of the Plaintiff's Action. The Word also signifies the Act as well as the Offer of justifying the Exception. Averment is twofold, general and particular.—A general Averment is the Conclusion of every Plea to the Writ, or in Bar of Replications, or other Pleadings; (for Counts, or Avowries in Nature of Counts, need not be averred,) containing Matter affirmative, ought to be averred with an hoc paratus est verificare. Particular Averment is when the Life of a Tenant for Life, or Tenant in Tail, is averred, etc. And an Averment contains as well the Matter as the Form thereof.
AVOIDANCE, in Law, has two Significations: The one, when a Benefice becomes void of an Incumbent; the other, when we say in Pleadings in Chancery, contested or avoided, traversed or denied, etc. See VACANCY.