英文法律词典 A-132

AUCTOR. Among the Romans the seller was called auctor; and public, sales were made by fixing a spear in the forum¹, and a person who acted as crier stood by the spear the catalogue of the goods to be sold was made in tables called auctionariae.

AUDIENCE. A hearing. It is usual for the executive of a country to whom a minister has been sent, to give such minister an audience. And after a minister has been recalled, au audience of leave usually takes place.

AUDIENCE COURT, Eng. eccl. law. A court belonging to the archbishop of Canterbury, having the same authority with the court of arches. 4 Inst. 337.

AUDIENDO ET TERMINANDO, oyer and terminer, English crim. law. A writ², or rather a commission, directed to certain persons for the trial and punishment of such persons as have been concerned in a riotous³ assembly, insurrection or other heinous⁴ misdemeanor.

AUDITA QUERELA. A writ applicable to the case of a defendant⁵ against whom a judgment⁶ has been recovered, (and who is therefore in danger of execution or perhaps actually in execution,) grounded on some matter of discharge which happened after the judgment, and not upon any matter which might have been pleaded as a defence to the action. 13 Mass. 453; 12 Mass. 270; 6 Verm. 243; Bac. Ab. h. t.; 2 Saund. 148, n. 1; 2 Sell. Pr. 252.

2. It is a remedial process, which bears solely⁷ on the wrongful acts of the opposite party, and not upon the erroneous judgments⁸ or acts of the court. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363. It will therefore, where the cause of complaint is a proper subject for a writ of error. 1 Verm. 433, 491; Brayt. 27.

3. An audita querela is in the nature of an equitable⁹ suit, in which the equitable rights of the parties will be considered. 10 Mass. 101; 14 Mass. 448 2 John. Cas. 227.

4. An audita querela is a regular suit, in which the parties may plead, take issue, &c. 17 John. 484. But the writ must be allowed in open court, and is not, of itself, a supersedeas, which may or may not be granted, in the discretion¹⁰ of the court, according to circumstances. 2 John. 227.

5. In modern practice, it is usual to grant the same relief, on motion, which might be obtained by audita querela: 4 John. 191 11 S. & R. 274 and in Virginia, 5 Rand. 639, and South Carolina, 2 Hill, 298; the summary remedy, by motion, has superseded¹¹ this ancient remedy. In Pennsylvania this writ. It seems, may still be maintained, though relief is more generally obtained on motion. 11 S. & R. 274. Vide, generally, Pet. C. C. R. 269; Brayt. 2 or, 28; Walker, 66 1 Chipm. 387; 3 Conn. 260; 10 Pick. 439 1 Aik. 107; 1 Overt¹². 425 2 John. Cas. 227 1 Root; 151; 2 Root, 178; 9 John. 221 Bouv. Inst. Index, h. t.

AUDITOR¹³. An officer whose duty is to examine the accounts of officers who have received and dishursed public moneys by lawful¹⁴ authority. See Acts of Congress, April 3, 1817; 3 Story's Laws U. S. 1630; and the Act of February 24, 1819, 3 Story's L. U. S. 1722.

AUDITORS¹⁵, practice. Persons lawfully¹⁶ appointed to examine and digest accounts referred to them, take down the evidence in writing, which may be lawfully offered in relation to such accounts, and prepare materials on which a decree or judgment may be made; and to report the whole, together with their opinion, to the, court in which such accounts originated. 6 Cranch, 8; 1 Aik. 145; 12 Mass. 412.

2. Their report is not, per se, binding¹⁷ and conclusive¹⁸, but will become so, unless excepted to. 5 Rawle, R. 323. It may be set aside, either with or without exceptions to it being filed. In the first case, when errors are apparent on its face, it may be set aside or corrected. 2 Cranch, 124; 5 Cranch, 313. In the second case, it may be set aside for any fraud, corruption¹⁹, gross misconduct, or error. 6 Cranch, 8; 4 Cranch, 308; 1 Aik. 145. The auditors ought to be sworn, but this will be presumed. 8 Verm. 396.

3. Auditors are also persons appointed to examine the accounts subsisting²⁰ between the parties in an action of account render, after a judgment quod computet. Bac. Ab. Accompt, F.

4. The auditors are required to state a special account, 4 Yeates, 514, and the whole is to be brought down to the time when they make an end of their account. 2 Burr. 1086. And auditors are to make proper charges and credits without regard to time, or the verdict. 2 S. & R. 317. When the facts or matters of law are disputed before them, they are to report them to the court, when the former will be decided²¹ by a jury, and the latter by the court, and the result sent to the auditors for their guidance. 5 Binn. 433.

AUGMENTATION, old English law. The name of a court erected²² by Henry VIII., which was invested with the power of determining suits and controversies²³ relating to monasteries²⁴ and abbey lands.

AULA REGIS. The name of an English court, so called because it was held in the great hall of the king's palace. Vide Curia Regis.

AUNT, domestic relations. The sister of one's father or mother; she is a relation in the third degree. Vide 2 Com. Dig. 474 Dane's Ab. c. 126, a. 3. 4.

AUTER. Another. This word is frequently used in composition, us auter droit, auter vie, auter action, &c. .