C33 



ASSIZE. 



ASSIZE. 



G3J 



due upon a contract. In all under-leases, therefore, it is necessary 

 that part (a day will suffice) of the original term should remain in 

 the lessor. See Sheppard's ' Touchstone,' 266 ; Blackst. ' Cornm.' 

 vol. ii. p. 324 (Mr. Kerr'sed.) ; Bacon's 'Abr.' (7th edit) tit. Assignment. 

 [BILL OF SALE.] 



A Assignment of Goods, CJiattels, &c., is frequently made by bill of 

 sale, as to which, see BILL OF SALE. As to all goods and chattels 

 possession, no objection ever existed to their transfer and assign- 

 ment by deed or writing : but with respect to things in, action (as 

 debts, contracts, right of entry, and suit), according to an ancient 

 rule of the common law, now considerably modified, they could not 

 be assigned over by the party to whom they were due, since the 

 assignment gave to a third party a right of action against the 

 debtor, and thus led to the offence of maintenance that is, the 

 abetting and supporting of suits in the king's courts by others than 

 the actual parties to them. In the courts of common law this rule 

 exists (with some exceptions) at the present day. Thus, if the obligee 

 in a bond assign over the bond to a third party, the assignee cannot 

 sue on the bond at common law in his own name ; but such an 

 assignment generally contains (and ought always to do so) a power 

 of attorney from the obligee to the assignee, to sue in the obligee's 

 name on the bond. Courts of equity have always protected such 

 assignments, and regarded the assignee, for valuable consideration, as 

 the actual owner of the bond ; and the courts of common law so 

 far recognise the right of the assignee, that if the obligor, after iiotice 

 of the assignment, pay the money on the bond to the obligee, the 

 courts will not permit him to plead such payment to an action brought 

 by the assignee in the obligee's name on the bond. In order to con- 

 stitute a good equitable assignment of a bond, or chose in action, 

 writing is not necessary. A personal trust or confidence cannot be 

 assigned over, however able the assignee may be to execute it ; and 

 therefore all trust deeds and settlements contain express provisos for 

 the retiring of trustees, and for fresh appointments, with the consent 

 of the cestui '[ue trusts. Neither the future whole-pay nor the future 

 half-pay of an officer are capable of being assigned, it being considered 

 contrary to public policy that a stipend given to a man for his public 

 services should be transferred to another man not capable of perform- 

 ing them. The exceptions to the rule that clt'jes in action are not 

 assignable at law are many. The king might at all times become the 

 assignee of a chute in action ; and after such an assignment was entitled 

 to have execution against the body, lands, and goods of the debtor. 

 But this prerogative, having been abused by the king's debtors, was 

 restrained by stat. 7 Jac. I. c. 15, by a privy seal, in 12 James I., and 

 by rule of court of 15 Car. I. ; and the practice of actually assigning 

 debts to the king by his debtors has long become obsolete. Bilk of 

 exchange are assignable by indorsement, in virtue of the custom of 

 merchants [Bn.L OF EXCHANGE] ; and promissory notes, by virtue 

 of the 344 Ann. cap. 9. Bail bonds are assignable by the sheriff to 

 plaintiff in the suit under 4 Ann. c. 16, 8. 20. [BAIL.] .Replevin 

 , by the 11 Geo. II. c. 19. [BANKRUPT; BOND; CHOSE IN ACTION; 

 INSOLVENT DEBTORS; REPLEVIN.] 



ASSIZE. This word has been introduced into our legal phraseology 

 from the French asfii, and is ultimately derived from the Latin verb 

 uaideo, to sit by, or, as Lord Coke translates it, to sit together. The 

 word assido is also to be found in legal records, and has in law-latin a 

 different meaning from assideo, signifying to assess, fix, or ordain. 

 Thus in the potlea, or formal record of a verdict in a civil action, it ia 

 said that the jury find for the plaintiff, et assidunt dumna ad decent 

 toKde ; ' and they assess the damages at ten shillings ; ' and then the 

 judgment of the court is given for the damages ' per juratoris in forma 

 pncdicta assessa.' It is possible that the word assize, in cases where it 

 signifies an ordinance, decree, or assessment, may be derived from this 

 word. This etymology is not, however, given by Du Cange, Spelman, 

 or any learned writer on this subject ; though it obviously leads much 

 more distinctly to several meanings of the word assize than the deri- 

 vation from astideo. With reference to English law, the word assize 

 has been called by Littleton nomen aquivocttm, on account of its 

 application to a great variety of objects, in many of which neither the 

 etymology of the word nor its original meaning can be readily traced. 

 Thus, 1. The term is used to signify an ordinance or decree made either 

 immediately by the king, or by virtue of some delegation of the royal 

 authority. The Assizes of Jerusalem are a well-known code of feudal 

 jurisprudence framed for the kingdom of Jerusalem, formed in 1099, 

 under Godfrey of Bouillon. In this sense, Fleta speaks of ' the laws, 

 customs, and assizes of the realm,' and the ordinances made by the 

 great council of nobles and prelates assembled by Henry II. in 1164 

 ami commonly known as the ' Constitutions of Clarendon," are called by 

 Hoveden ' Assitae Henrici Regis facto apud Clarendonum.' In like 

 manner the assizes of the forest were rules and regulations made by 

 the courts to which the management of the royal forests belonged. 



2. Analogous to these were the assizes or ordinances regulating the 

 price of bread, ale, fuel, and other common necessaries of life ; called 

 <in Latin assita; venalium. The earliest express notice of any regulation 

 of this kind in England is in the reign of John (1203), when a procla- 

 mation was made enforcing the observance of the assize of bread ; but 

 it is probable that there were more ancient ordinances of the same 

 kind. In very early times these aasiste mnalium appear to have been 

 merely royal ordinances, and their arrangement and superintendence 



were under the direction of the clerk of the market of the king's house- 

 hold. But at a subsequent period many statutes were passed regu- 

 lating the assize of articles of common consumption ; the earliest of 

 these is the assize of bread and ale, assisa panis et cervisice, commonly 

 called the stat. of 51 Henry III., though its precise date is somewhat 

 doubtful. The provisions of the act with regard to ale, establishing a 

 scale of prices varying with the price of wheat, were altered in some 

 measure by 23 Henry VIII. c. 4, which left a discretionary power with 

 the justices of the peace of fixing the price of ale within their juris- 

 diction [ALE] ; but the assize of bread was imposed by this Act, and 

 enforced from time to time by orders of the privy council until the 

 reign of Queen Anne. In cities and towns corporate the power of 

 regulating the assize of bread and ale was frequently given by charter 

 to the local authorities, and the interference of the clerk of the King's 

 household was often expressly excluded. Books of assize were for- 

 merly published, under authority of the privy council, by the clerk of 

 the market of the king's household, and there is one still in existence 

 which was printed in the reign of Henry VIII. The stat. 8 Anne, 

 c. 19, repealed the 51 Henry III. and imposed a new assize of bread, 

 making various other regulations respecting it. Several subsequent 

 Acts have been passed on the subject ; but by the 55 Geo. III. c. 99, 

 the practice was expressly abolished in London and its neighbourhood, 

 and in other places it has fallen into disuse. There was also an assize 

 of wood and coal (34 & 35 Henry VIII. c. 3) ; and so late as the reign 

 of Queen Anne, we find an Act (9 Anne, c. 20) enforcing former regu- 

 lations for the assize of billet. Besides these, various other articles 

 wine, fish, tiles, cloths, &c., have at different times been subject to 

 assize. The object of these regulations was the prevention of fraud 

 and monopoly; and it is not surprising that in the early stages of 

 legislation it should have appeared to be one of the first duties of 

 government to secure to its subjects the prime necessaries of life at a 

 reasonable and uniform rate. But subsequent experience and more 

 enlightened views have shown, that to attempt to fix by law the prices 

 of commodities, is not only useless and mischievous, but in most cases 

 impracticable ; and that when government has established an uniform 

 scale of weights and measures, and, so far as it can be done, an uniform 

 measure of value, the rest may safely be left to competition, and to 

 the mutual bargaining which takes place between the buyer and the 

 seller. 



3. The word assize is also used to denote the peculiar kind of jury 

 by whom the writ of right was formerly tried, who were called the 

 grand assize. The trial by the grand assize is said to have been devised 

 by Chief Justice Glanville, in the reign of Henry II., and was a great 

 improvement upon the trial by judicial combat, which it in a great 

 degree superseded. Instead of being left to the senseless and barbarous 

 determination by battle, which had previously been the only mode o< 

 deciding a writ of right, the alternative of a trial by the grand assi/e 

 was offered to the tenant or defendant. Upon his choosing this mode 

 of trial, a writ issued to the sheriff directing him to return four knights, 

 by whom twelve others were to be elected, and the whole sixteen com- 

 posed [the jury, or grand assize by whom the matter of right was 

 tried. The stat. 3 & 4 Will. IV. c. 27, has abolished this mode of trial, 

 the cumbrous machinery of which was entirely unfit for the habits of 

 modern society. [JURY.] The jury in criminal cases in Scotland, 

 which is fifteen in number, are still technically called the assize. 



4. The common and popular use of the term assize, at the present 

 day in England, is to denote the sessions of the judges of the superior 

 courts, holden periodically in each county for the purpose of adminis- 

 tering civil and criminal justice. These assemblies no doubt originally 

 derived their denomination from the business which was at first 

 exclusively imposed upon them, namely, the trial of writs of assize. 

 According to the common law, assizes could only be taken (that is, 

 writs of assize could only be tried) by the judges sitting in term at 

 Westminster, or before the justices in eyre at their septennial circuits. 

 This course was productive of great delay to suitors, and much vexation 

 and expense to the juries, or grand assize, who might have to travel 

 from Cornwall or Northumberland, to appear in court at Westminster. 

 To remedy this grievance, it was provided by Magna Cliarta, in 1225, 

 that the judges should visit each county once in every year, to take 

 assizes of novel disseisin and mort d'ancestor. From this provision the 

 name of justices of assize was derived ; and by several later Acts of 

 parliament various authorities have been given to them by that deno- 

 mination. The 13 Edward I. c. 3, (stat. of Westminster the second,) 

 enacted that the justices of assize for each shire should be two sworn 

 judges, associating to themselves one or two discreet knights of the 

 county ; and they are directed to take the assizes not more than three 

 times in every year. By the same statute, authority is given them to 

 determine inquisitions of trespass and other pleas pleaded in the courts 

 of King's Bench and Common Pleas. From this important Act of 

 parliament the jurisdiction of the judges of assize to try civil causes, 

 other than the writs of assize above mentioned, originally arose ; and 

 as, with some modifications, it forms the basis of their civil authority 

 at the present day, it may be desirable to endeavour to explain the 

 complex and argumentative process by which the provisions of the 

 statute are practically effected. Besides the general authority to deter- 

 mine civil issues, it was provided by the statute of Westminster 2, 

 that no inquest in a civil action should be taken by the judges of the 

 superior courts when sitting at Westminster unless the judicial writ 



