40. An apprentice barber in Dundee, bound by indenture not to absent himself holiday or week-day, was found not bound to work any portion of the Sabbath (House of Lords), reversing decision of the Court of Session finding him bound to work between the hours of 7 and 10 o'clock on the Sabbath morning. Per Lord Brougham: 'It would have been a most unfortunate circumstance had your Lordships felt bound to give your support to the judgment of the Court below, which appears for the first time to have decided that what has been prohibited by the statute-namely, handy labour and working on the Sunday-can be enforced by the decision of a Court of justice under indenture of apprenticeship.'-20th Feb. 1837, Philips, 9 Jur. 462, 2 S. and M'L. 465.

41. The justices found that an indenture was not binding, in a question with the first master, where the second master was aware that the apprentice was already bound, and their judgment was affirmed.-31st May 1825, M'Gregor, 4 Shaw 51.

·

42. A charge for payment of penalty was suspended, and the apprentice liberated, because of acts of intemperate and excessive chastisement, and not provoked or excused by any material fault on the lad's part at the time, though he had misbehaved on other occasions.'-1794, Smart, Hume's Decisions, 18.

43. A cautioner in an indenture being charged on letters of horning for the penalty in the indenture, on the ground of the apprentice having deserted, the Court passed a suspension without caution. If the apprentice had really been guilty of desertion, the master might have applied to the justices or sheriff to get him to return, and he might have sued the cautioner for damages.'-7th July 1737, Munro. 44. A minor cannot enter into an indenture without consent of his father or guardian.-14th Nov. 1797, Hume's Dec. 422. The apprentice was 18 years of age. Note. This appears to have been a very special case, and there was a reduction on the ground of fraud. It does not appear to have been followed in practice.

45. Where a workman, aged 17, and earning wages, entered into a contract with his employer for two years, deserted, and was convicted under the Act 4 Geo. IV. c. 34, it was held that minority was no objection to the contract. Per Lord Justice-Clerk: The Court would set aside a contract in which advantage had been taken of the minor. But is it to be said that a young man of 17 years of age, able to earn 20s. in the week, requires such protection?'-16th June 1853, Argo (Justiciary), 25 Jur. 450.

Note. Other cases in the Justiciary Court under the Act 4 Geo. IV. c. 34 will be found under Master and Servant; and though the Act be repealed, the principles of law remain. The provisions of the Employers and Workmen's Act, 1875, are made specially applicable to apprentices.-See Master and Servant.

APPRIZING-The ancient name for adjudications of heritage.

APPROBATE and REPROBATE. As a general rule, a deed or act must be taken or rejected as a whole, and a party cannot stand to one part and repudiate another. This in English law is called Election. The election must be made with the full knowledge of the party's legal rights.-22d Nov. 1854, Lord Panmure, 17 D. 85, 27 Jur. 18; 20th June 1877, Caithness Trustees, 4 Rettie 937.

APPROVER, or PROVER, in the law of England, is equivalent to the king's or queen's witness in Scotland-a party in guilt giving evidence against an associate, or socius criminis. His evidence must be corroborated by pure testimony. If he has been once arraigned, and pled not guilty, he cannot afterwards be taken as an approver.

APPURTENANCES, in English law, may either be heritable or moveable, attached or appertaining to another as principal. The word 'pertinents' is more frequently used in Scotland to denote accessories.

APUD ACTA-Citations or notices given at one diet to parties and witnesses then present to attend at another and adjourned diet, without new citation. Great care should be taken that all parties be present, and the notice very distinctly and accurately given; and it would be well that the record bore the names of the witnesses so present and thus warned.

AQUEDUCTUS and AQUÆHAUSTUS are two servitudes derived from the Roman or civil law, obtained by grants or prescriptive possession. The former is the right to draw water through the lands of another. The party receiving the benefit is bound to keep the conduits in repair, and prevent damage to the lands

burdened, but not to indemnify from extraordinary damage; and the proprietor of these lands is bound to give access for all necessary purposes. The latter-named servitude is the right to water cattle at the watering-places of another's lands, but not to the exclusion of the proprietor's own cattle, or of operations which may still leave sufficient for the servitude right.

ARAGE-An old term, denoting services performed by horses.

ARATRUM TERRÆ-PLOUGHGATE-A ploughgate of land, or eight oxgates of land, said to be derived from the fact that eight oxen were anciently applied to one plough.

ARBITRARY PUNISHMENT is where the punishment is not defined by statute or fixed by common law, and so is left to the discretion of the judge, but which cannot extend to a capital sentence. Where the charge implies a capital punishment, the public prosecutor must restrict the libel to an arbitrary punishment, to relieve the judge from the duty of pronouncing the highest penalty of the law.

ARBITRATION and AWARD is the contract whereby parties withdraw their disputes from the ordinary Courts of law, and submit them to one or more persons mutually or separately chosen as arbiters. Where one is chosen, he is termed sole arbiter. The chief recommendation of arbitration is finality. The deed of reference is called a submission, reference, or arbitration. It is either general, comprehending all disputes; or special, applying to certain specified matters. If the arbiters differ in opinion, they either then, or before differing (which is preferable), name an umpire or oversman, and devolve on him the decision by a deed of devolution. Separate letters from each of the arbiters to the oversman have been held sufficient devolution.-2d June 1868, M'Kenzie, 40 Jur. 499. The judgment of arbiters or oversmen is called a decreet-arbitral. A deed of submission has a clause authorizing registration for execution, under which summary diligence is at once obtained on registration of that deed, and the award. All these deeds behove to be written on stamped paper (10s.), and tested as regular deeds in legal form. -12th Feb. 1817, Stewart. A practice has crept in of writing references without a clause of registration, upon an agreement (6d.) stamp, which appears sufficient to warrant an action on the award, but cannot have the benefit of summary diligence. A reference held good where both submission and award are improbative but in re mercatoria.-13th Jan. 1869, Dykes, 7 MP. 357. The arbiters appoint a clerk, generally a professional gentleman, to keep their proceedings in form. Unless the deed has a special limitation, the powers of the arbiters fall on the lapse of one year; but if they have the power of prorogation given them, they may prorogate from year to year, and the parties themselves may renew the submission after it has fallen.-23d Dec. 1820, Stark, 20 F. C. 3; 17th Dec. 1868, Clark, 6 S. L. R. 185. When a depending process at law is withdrawn to arbitration, it is done by a minute of reference, and the Court interpones its authority thereto. This is called a judicial reference, and the arbiter is called the referee; and his judgment an award, which, on being reported to the Court, becomes its decree. This, too, falls by the lapse of a year. The several steps in this judicial reference are exempt from stamp duty. The Court cannot supersede a judicial reference on the ground of miscarriage.-13th March 1855, Mather and Co. In England it has been held by a majority of the Court that counsel has power to refer a cause.-Livengen, 1 Com. B. 364. The English award is in many respects different from the decreetarbitral in Scotland; and it is therefore unsafe to follow English authorities on this branch of law. A decreet-arbitral and award cannot be reviewed on the merits, but may be set aside on the following grounds: 1st, bribery, corruption, and falsehood-Act of Regulations, 2d Nov. 1695, c. 25 (for what must be established under this head, see 25th Jan. 1868, Cameron, 6 M P. 269); 2d, where the arbiter has not fully heard the parties; 3d, refused to receive evidence, or proceeded in absence of one of the parties-18th Dec. 1867, Cox Brothers, 6 MP. 161; or, lastly, has exceeded his powers, as limited by the deed of appointment.28th Jan. 1835, Earl of Dunmore, 13 S. 347. A question of value may be decided without hearing parties, unless otherwise stipulated-16th Feb. 1855, M'Nair, 27 Jur. 189; 10th March 1855, Miller and Sons, 17 D. 689; or where the oversman has been present at the proofs and hearing before the arbiters.-4th Feb. 1858, Crawford, 30 Jur. 263. A valid obligation may be constituted in a lease to refer

to arbitration, though arbiters be not named.-15th July 1859, Merry, 31 Jur. 733. An arbiter may award expenses of the reference without a special clause of authority. -6th Dec. 1836, Robertson, 15 S. 199. A formal action of reduction is necessary where the award is challenged; verbal references are good in matters below, but not above £8, 6s. 8d.; but the agreement to refer can only be proved by the parties' oaths, and the award by those of the referees.-5th June 1824, Ferrie, 3 S. 113. Clauses of reference to a person not named, but holding office, as Lord Advocate or Sheriff of Edinburgh, are null, unless parties homologate the nomination by going before the party holding the office.-28th Feb. 1810, Davidson, 17 F. C. 607. But a rule in friendly societies to refer disputes was held binding.-11th March 1825, Cooper, 3 S. 619. Submissions to a person named, of questions which may arise under articles of roup, are valid, though of doubtful expediency, especially in contracts of building, where the architect is often made the judge of his own plans.21st March 1831, M'Caul; 9th Feb. 1858, Turnbull, 20 D. 514. A trustee and commissioner under the Bankrupt Act may refer disputed claims. The judgment of a non-professional arbiter is held arbitrium boni viri. By the statute 13 and 14 Vict. c. 36, s. 50 (1850), a judicial reference is introduced, whereby parties in an action in the Court of Session may refer judicially any issue for trial, to one, three, five, or seven persons, who shall sit as a jury, and a majority may decide. But in practice this provision has not been acted on.

ARCHES COURT-The chief Consistory Court of the Archbishop of Canterbury, so called from being held in the Church of Saint Mary-le-Bow (Sancta Maria de Arcubus).

ARLES-EARNEST—A piece of money given in evidence, but not essential to a contract of service.-See Master and Servant.

ARMIGER-ARMORIAL BEARINGS.-The former denotes one carrying or wearing arms-the law term for Esquire. The jurisdiction in such questions is with the Lord Lyon King-at-Arms.-30 and 31 Vict. c. 17 (1867). But advocation to the Court of Session is competent.-12th June 1848, Cunninghame, 22 Jur. 437. ARMY (ENLISTMENT).-10 and 11 Vict. c. 37 (1847); 12 and 13 Vict. c. 73 (1849); 18 and 19 Vict. c. 4 (1855); 33 and 34 Vict. c. 67 (1870); 34 and 35 Vict. c. 86 (1871).

ARMY (PRIZE MONEY).-27 and 28 Vict. c. 36 (1864).

ARRAIGN, in England, is equivalent to the Scotch term indict; and the clerk of the criminal Courts is termed clerk of the arraigns.' In trials for high treason in Scotland, under commission of oyer and terminer, the English terms and procedure are strictly adopted. The last commission was in 1820 in the west of Scotland. ARREARS-ARRERAGIUM.-Arrears, or unpaid rents or other sums arising from heritable funds, are held as moveable in all questions with creditors, and in succession, unless otherwise expressly provided for and declared.

ARREST-Apprehension of a person.

ARREST OF JUDGMENT—A motion in English Courts in bar of judgment, and not unknown in Scotch criminal Courts, where objections are offered to the verdict when judgment is asked by the prosecutor.

ARRESTMENT OF MOVEABLES FOR DEBT (ATTACHMENT in England). 1. Jurisdictionis Fundandæ Causa (or to found jurisdiction) is used against foreigners, whereby their moveable effects are attached in Scotland to render them liable to the jurisdiction of the Scotch Courts. The attachment may proceed on the warrant of the Court of Session, sheriff, or burgh magistrates, but not of the justices of the peace; and the subsequent action for the debt could formerly only be brought in the Court of Session. But now, under certain circumstances, is competent in the Sheriff Court, under the Sheriff Court Act, 40 and 41 Vict. c. 50 (1877). Such arrestment does not compete with arrestments in security and for payment, so that a new arrestment to that effect is necessary after the action has been raised. An action to fix status, as husband and wife, is not competent under this mode. The decree is valid to its extent, independent of the value of the effects attached.-20th Nov. 1855, London and North-Western Railway Co., 28 Jur. 17; aff. 23d Feb. 1858, 30 Jur. 336; 1st July 1865, Longworth, 37 Jur. 552; 8th Dec. 1866, 39 Jur. 57. A foreigner with heritable property in Scotland is liable to the jurisdiction of the Court of Session, without such arrestment, at least in all questious

with regard to that property. A foreigner is cited edictally at an office in the Register House, Edinburgh.

2. Arrestment in security is used on the dependence of an action, even though it be carried to the Court of Session or House of Lords. It is also competent on a bill before its maturity where the debtor is vergens ad inopiam.-3d Dec. 1875, Symington, 3 R. 205. The arrestment not only covers principal and interest, but the expenses of the process until its final issue, into whatever Court it may be carried. The precept to arrest may be contained in the summons, or in a separate writ.-16 and 17 Vict. c. 80, s. 1. The summons must be executed within twenty days after the arrestment, and called or enrolled within other twenty days, otherwise it falls-1 and 2 Vict. c. 114, s. 17 and 19.-See Sheriff Court Act, 1876. Justices may issue arrestments in actions falling within their ordinary jurisdiction, and under their Small Debt Act, but only in the form directed. No warrant can be given to arrest for a debt, independently of an action. The author has seen a warrant by a justice, without any summons, to arrest the effects of a debtor until a debt should be paid, and which, if acted on, might have exposed the parties to an action of damages for the irregularity. The arrestment in security becomes one for payment or in execution, on decree being obtained, without the necessity of any new arrestment. Arrestments in security may be loosed, on caution found by the debtor to make forthcoming whatever has been attached; and a loosing may be either special as to certain arrestments, or general, applicable to all arrestments.

3. Arrestment in execution proceeds on a decree or registered protested bill, or other valid obligation of debt, and no previous charge is necessary.-2d Feb. 1814, Weir. Such arrestments are not removeable on caution, but only on payment of the debt, or by the Court, on cause shown. Where the arrestee resides in another county, a supplement or indorsation is necessary.-1 and 2 Vict. c. 114, s. 13 and 19 (1838); 17 F. C. 540.

4. The fund or subject arrested must be in the hands of a third party, and not of the debtor, his factor, or servant.-18th Jan. 1709, Donaldson; 25th June 1856, Kellas. But see the Mercantile Law Amendment Act, 19 and 20 Vict. c. 60, s. 3. The test is, that the person in whose hand the arrestment is laid is the proper person to be sued for the debt at the instance of the common debtor; or if the debtor took possession against the custodier's consent, it would be no theft in him; but if the custodier disposed of the subjects without his consent, it would support a charge of theft against the custodier. Arrestment of a farmer's horse in a stable on a market-day therefore appears inept. Arrestments fall by the death of the arrestee, unless renewed: so the heir may pay if in good faith; but if he holds the fund, a forthcoming is good on the first arrestment, and it subsists notwithstanding the death of the arrester and common debtor.-22d Dec. 1738, Earl of Aberdeen. Debts due to a company cannot be arrested for the debts of a partner; but an arrestment may be laid in the hands of a company, to attach his interest in the division. Arrestment in the hands of the treasurer or manager of incorporations and joint-stock companies, and of acting trustees, is the proper mode of attachment of a partner's share and interest. The test here is, that the arrestment should be in the hands of the same persons who would be the proper parties to call in an action for the debt. Widows' annuities and other alimentary funds are declared by private deeds and public statutes exempt from arrestment.-10th June 1852, Lewis, 24th Jur. 514. Arrestments are valid to affect the produce of heritage where directed to be sold; and though an arrestment does not cover future debts, it includes an obligation to account for a management then current. Bills and bill debts are not arrestable, as they can be passed by indorsation. Rents and interests, both current and in arrear, are arrestable, and each term forms a separate debt, requiring separate arrestments, and the term-day must be complete before the arrestment can attach the next term.-15th Jan. 1813, Handyside. Current rents are liable to all exceptions which may occur between the date of arrestment and the term of payment, such as adjudications of the property, destruction of the subjects, and other claims which are good against the common debtor; and, generally, the arrester is liable to all defences which would be good against the common debtor before the date of the arrestment. They cannot be proved by a reference to his oath, but he may be a witness.

5. Arrestments, both in security and in execution, may be removed or restricted under the Act 1 and 2 Vict. c. 114, s. 21 and 22 (Personal Diligence Act, 1838), whereby the Lord Ordinary, in any case in the Court of Session, or sheriff where the warrant is from him, on petition of the debtor intimated to the creditor or pursuer, may recall or restrict such arrestments, on caution or without caution. The application is proceeded with as a summary case, and the judgment is subject to review. In ancient practice, the security for loosing arrestments was taken by the messenger arresting.

6. The creditor arresting is called the arrester, the original debtor the common debtor; the person in whose hands the arrestment is laid, the arrestee; and in case of more arrestments or claimants, the fund or effects form the fund in medio. The arrestment in execution, or that in security after decree is obtained, is enforced by an action of forthcoming, which must be brought in the Court having jurisdiction over the arrestee-23d June 1710, Dalrymple; and the common debtor is only called for his interest, to allow him to show that the original debt is discharged or reduced, and to aid in fixing the true amount of funds or effects in the hands of the arrestee; and, being so called, he cannot be afterwards heard to object against the proceedings and decree of forthcoming. Under Sheriff Court Act, 1876, s. 67, the forthcoming can be brought in the Court to whose jurisdiction the arrestees are liable, though the common debtor does not reside within the jurisdiction. Where there are more arrestments or other claims, the arrestee, or any claimant in his name, may bring an action of multiplepoinding on the ground of double distress.See Multiplepoinding.

7. Arrestments reckon in preference according to their dates, whether in security or in execution. Even a difference of two hours (but not one) between arrestments will give a preference. Arrestments compete and rank with assignations, according to the date of intimation of the latter. In case of any undue delay (mora), the first forthcoming, though on a posterior arrestment, is preferred, as being the first completed diligence; arrestment being only an inchoate or imperfect step in the diligence, places a nexus on property, but does not operate as a transference. So, too, a completed poinding of moveables, though previously arrested, voids the arrestment. Arrestments used within sixty days of notour bankruptcy, or four months after, rank pari passu or rateably, according to the amount of their debts. The same rule applies to sequestration of a deceased party.-23d Jan. 1857, Hume.

8. If the arrester pays in breach of the arrestment, he is liable to pay the value of the funds and effects arrested, at least to the extent of the arrester's debt-25th Jan. 1838, Laidlaw; and is exposed to a criminal prosecution for breach of arrestment, as a contempt of Court, and which therefore must only be prosecuted in the Court under whose authority the arrestment was used. But this action is now little known. Arrestments cover interest on the debt and expenses of process, but not the expenses of the forthcoming.-7th June 1825, May, 4 Shaw 76.

9. Arrestments prescribe, unless judicially insisted in, formerly in five (1669, c. 9), now in three years (1 and 2 Vict. c. 114, s. 21, 1838), after being laid on, or after the decree in the depending action. Under the Sheriff Small Debt Act, the arrestments fall in three months, unless renewed every three months.

10. Damages may be given for the nimious and oppressive use of arrestment; but the mere failure of success in the action is not sufficient, if there existed probable cause of action, and no excessive use of arrestments to attach sums beyond the probable amount of the claim. But malice and want of probable cause must be alleged and proved.

11. Workmen's Wages.-By the Act 8 and 9 Vict. c. 39 (1845), all arrestments of wages on the dependence of sheriff small debt summonses, of whatever amount, were declared not to be lawful or competent; and by the existing Sheriff Small Debt Act, 1 Vict. c. 41, s. 7 (1837), it is declared that wages of labourers and manufacturers shall, so far as necessary for their subsistence, be deemed alimentary, and in like manner as servants' fees and other alimentary funds, not liable to arrestment of any kind. It was often very difficult to ascertain the excess of wages subject to arrestment.-See Lord Cuninghame's opinion in the case of Shanks, 11th July 1838, 10 Jur. 593.

The difficulty of apportionment chiefly arose from the varied circumstances