ATTAINDER, English criminal law. Attinctura, the stain or corruption¹ of blood which arises from being condemned² for any crime.

2. Attainder by confession³, is either by pleading guilty at the bar before the judges, and not putting one's self on one's trial by a jury; or before the coroner in sanctuary⁴, when in ancient times, the offender⁵ was obliged to abjure⁶ the realm.

3. Attainder by verdict, is when the prisoner at the bar pleads not guilty to the indictment⁷, and is pronounced guilty by the verdict of the jury.

4. Attainder by process or outlawry⁸, is when the party flies, and is subsequently outlawed¹⁰. Co. Lit. 391.

5. Bill of attainder, is a bill brought into parliament for attainting persons condemned for high treason. By the constitution of the United States, art. 1, sect¹¹. 9, 3, it is provided that no bill of attainder or ex post facto law shall be passed.

ATTAINT, English law. 1. Atinctus, attainted, stained, or blackened. 2. A writ¹² which lies to inquire whether a jury of twelve men gave a false verdict. Bract. lib. 4, tr. 1, c. 134; Fleta, lib. 5, c. 22, 8.

2. It was a trial by jury of twenty-four men empanelled to try the goodness, of a former verdict. 3 Bl. Com. 351; 3 Gilb. Ev. by Lofft, 1146. See Assize.

ATTEMPT, criminal law. An attempt to commit a crime, is an endeavor to accomplish it, carried beyond mere¹³ preparation, but falling short of execution of the ultimate design, in any part of it.

2. Between preparations and attempts to commit a crime, the distinction is in many cases, very indeterminate. A man who buys poison for the purpose of committing a murder, and mixes it in the food intended for his victim, and places it on a table where he may take it, will or will not be guilty of an attempt to poison, from the simple circumstance of his taking back the poisoned food before or after the victim has had an opportunity to take it; for if immediately on putting it down, he should take it up, and, awakened¹⁴ to a just consideration of the enormity of the crime, destroy it, this would amount only to preparations and certainly if before he placed it on the table, or before he mixed the poison with the food, he had repented¹⁵ of his intention there would have been no attempt to commit a crime; the law gives this as a locus¹⁶ penitentiae. An attempt to commit a crime is a misdemeanor; and an attempt to commit a misdemeanor, is itself a misdemeanor. 1 Russ. on Cr. 44; 2 East, R. 8; 3 Pick. R. 26; 3 Benth. Ev. 69; 6 C. & P. 368.

ATTENDANT. One who owes a duty or service to another, or in some sort depends upon him. Termes de la Ley, h. t. As to attendant terms, see Powell on Morts. Index, tit. Attendant term; Park on Dower, c. 1 7.

ATTENTAT, In the language of the civil and canon laws, is anything whatsoever¹⁷ in the suit by the judge a quo, pending¹⁸ an appeal. 1 Addams, R. 22, n.; Ayl. Par⁹. 100.

ATTERMINING. The granting a time or term for the payment of a debt. This word is not used. See Delay.

ATTESTATION²⁰, contracts and evidence. The act of witnessing an instrument of writing, at the request of the party making the same, and subscribing²¹ it as a witness. 3 P. Wms. 254 2 Ves. 454 1 Ves. & B. 362;3 Marsh²². 146; 3 Bibb. 494; 17 Pick. 373.

2. It will be proper to consider, 1. how it is to be made 2. bow it is proved; 3. its effects upon the witness; 4. its effect upon the parties.

3. – 1. The attestation should be made in the case of wills, agreeably to the direction of the statute²³; Com. Dig. Estates, E 1 and in the case of deeds or other writings, at the request of the party executing the same. A person who sees an instrument executed, but is not desired by the parties to attest¹⁹ it, is not therefore an attesting²⁴ witness, although he afterwards subscribes²⁵ it as such. 3 Camp. 232. See, as to the form of attestation, 2 South. R. 449.

4. – 2. The general rule is, that an attested²⁶ instrument must be proved by the attesting witness. But to this rule there are various exceptions, namely: 1. If he reside out of the jurisdiction²⁷ of the court; 22 Pick. R. 85; 2. or is dead; 3. or becomes insane; 3 Camp. 283; 4. or has an interest; 5 T. R. 371; 5. or has married the party who offers the instrument; 2 Esp. C. 698 6. or refuses to testify 4 M. & S. 353; 7. or where the witness swears he did not see the writing executed; 8. or becomes infamous²⁸; Str. 833; 9. or blind; 1 Ld. Raym. 734. From these numerous cases, and those to be found in the books, it would seem that, whenever from any cause the attesting witness cannot be had secondary evidence may be given. But the inability to procure²⁹ the witness must be absolute, and, therefore, when be is unable to attend from sickness only, his evidence cannot be dispensed³⁰ with. 4 Taunt³¹. 46. See 4 Halst. R. 322; Andr. 236 2 Str. 1096; 10 Ves. 174; 4 M. & S. 353 7 Taunt. 251; 6 Serg. & Rawle, 310; 1 Rep. Const.; Co. So. Ca. 310; 5 Cranch, 13; Com. Dig. tit. Testmoigne, Evidence, Addenda³²; 5 Com. Dig. 441; 4 Yeates, 79.

5. – 3. When the witness attests³³ an instrument which conveys away, or disposes of his property or rights, he is estopped from denying the effects of such instrument; but in such case he must have been aware of its contents, and this must be proved. 1 Esp. C. 58.

6. – 4. Proof of the attestation is evidence of the sealing and delivery. 6 Serg. & Rawle, 311; 2 East, R. 250; 1 Bos. & Pull. 360; 7 T. R. 266. See, in general, Starkie's Ev. part 2, 332; 1 Phil. Ev. 419 to 421; 12 Wheat. 91; 2 Dall. 96; 3 Rawle's Rep. 312 1 Ves. Jr. 12; 2 Eccl. Rep. 60, 214, 289, 367 1 Bro. Civ, Law, 279, 286; Gresl. Eq. Ev. 119 Bouv. Inst. n. 3126.