capacity of doing ill, or contracting guilt, rather by years -nd days, than the strength of the delinquent's judginent. 4 Black 22, 25.

Thas a girl of thirteen has been burnt for king her mistress; and one boy of ten and asocher of nine years old, who had killed their companions, have been sentenced to death; and he of ten years actually hanged, because it appeared upon their trials, that the one hid hinseif, and the other hid the body be had killed; which hiding man fested a consciousness of guilt, and a discretion to discern between good and evi'. 1 Hale P. C. c. 26, 27.

Thus also in very modern times, a boy of ten years old was convicted on his own confession of murder ng his bedfellow: there appear ng in his whole behaviour a variety of acts done with that deliberation, which shewed ht- judgment sufficiently ripe to render him accountable for his actions and as the sparing of this boy merely on account of tender years might be of dangerous consequence to the public by encouraging a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges, that he was a proper subject of capital punishment. Forster 70-2.

However, under seven years of age, an infant cannot be guilty of felony; for hen a felonious discretion is almost an impossiblity in nature: but at eight years old he may be guilty of felony. Mir. c. 4. 16. 1 Hale P. C. 27. Dall. Just. 147. 4 Bluck 23.

And there was an instance in the last centary, where a boy of eight years old was tried at Abingdon, for firing two barns; and it appearing tha he had malice, revenge, and cunn ng, he was found guilty, condemned, and hanged accordingly. Emlyn. 1 Hale P. C. 25

As to how far infants may be admitted to give ev dence, it is to be observed, that all persons may be witnesses who appear to have a competent knowledge of the nature and consequences of an oath and that therefore infants of very tender years, may be witnesses. Co. Lit. 6 1 Bac. Abr. tit. Evidence.

Thus an infant of nine years has been allowed to give evidence. 1 Hale P. C.

263.

And an infant under the age of seven years may be a witness in a criminal prosecntion, provided such infant appears, upon examination, to possess a sufficient knowledge of the nature and consequences of an oath, for there is no precise or fixed rule, as to the time, within which infants are excluded from giving evidence: their admissibility depends, upon the sense they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the court; but if they

are found incompetent to take an oath, their testimony cannot be received. Leach's C. L. 104, 180.

And to prevent a want of due justice, Mr. Justice Roo e, in a criminal prosecu tion that was coming on to be tried before him at Gloucester, find ng that the principal witness was an infant, who was wholly incompetent to take an oath, postponed the trial till the following assizes, and ordered the child to be instructed in the mean time by a clergyman,io the principles of her duty, and the nature and obligation of an oath: at the next ass zes the prisoner was put upon his trial, and the child was produced as witness; and being found by the court upon examination, to have a proper sense of the nature of an oath, was sworn: and upon her testimony, the prisoner was convicted and afterwards executed: this was afterwards ment oned by Rooke, J. at the Old Bailey, 1795, in the case of Patrick Murphy for a rape on a child of seven years: and he said that upon a conference with the other judges, upon his return from the circuit, they had unanimously approved of what he had done. Gwillim on Bac. Abr. tit. Ev. 577.

AGE-PRIER, (ætatem precari, or ætatis precatio) is, when an action being brought, against a person under age, for lands which he hath by descent, he by petition or motion shews the matter to the court, and prays that the action may stay till his full age, which the court generally agrees to. Terms de Ley 30. Cowel. Blount. This is called parol demurrer, i. e a staying or delaying of the plea or suit. Parol signifies the plea or suit, demurrer to stay or abate. See Purol Demurrer.

AGENFRIDA, the true lord or owner of any thing. Cowel. Blount.

AGENHINE, a guest at an inn after three nights, who was then accounted one of the family. Cowel. Blount.

AGENT. An agent is a person employed to enter into contracts, manage property, or transact business for another; and whatever acts he may do in such capacity, are to be taken to have been done for the use and benefit of his principal.

Therefore where an agent has been employed, his principa has, in equity, in many cases, a right to a discovery of his transactions, and to demand the property with which he has been entrusted, or the value of it, against those with whom the agent has had dealings and therefore where a merchant, who had employed a factor to sell his goods, filed a bill against the persons to whom the goods had been sold, for an account and to be paid the money for which the goods had been sold, and which had not been paid to the factor, a demurrer was over-ruled. Muf. 142.

But if an agent or factor sell goods at a less price than he is commissioned, the sale

But a trustee or particular agent, shall not be allowed to become the purchaser, of that which he holds in trust, and thereby raise an interest in himself opposite to that of his principal. 2 Fonbl. Eq. 187.

And notice to the agent or purchaser for another, is a good notice to the principal, because it is a presumptive notice to the party. 2 Fonbl. 153.

Where a man acts in exccution of the authority given him by another, either expressly or impliedly; that it is, by relation, the act of that other, and he acquires no right, nor brings any obligation on himself: yet if a verdict is obtained against an agent or trustee, equity will not relieve against such verdict, but will decree that he shall be reimbursed by his principal, and stand in the place of the creditor. 1 Fonbl. 296-7.

And the difference is, where the agent undertaking for, or on the behalf of another, has an authority so to do, and where he has not. If he has not, then it is a fraud; and he ought himself to be liable: but where there is such an authority given, it is only acting for another, like the case of a factor or broker, acting for their principals, who were never held to be personally liable: but to protect themselves from being so personally bound, they must strictly preserve their authority. 4 Bur. 2108. 6 Ter. Rep. 411.

AGENT AND PATIENT, The agent is doer of a thing, and the patient the party suffering the thing to be done: as where a woman endows herself of the best part of her husband's possessions, this being the sole act of herself to herself, makes her agent and patient. Also if a man be indebted unto another, and afterwards he makes the creditor his execu. tor, and dies, the executor may retain so much of the goods of the deceased as will satisfy his debt; and by this retainer he is agent and patient, that is, the party to whom the debt is due, and the person that pays the saine, But a man shall not be judge in his own cause, quia iniquum est aliquem suæ rei esse judicem. 8 Rep. 138. Cowel. Blount.

AGILD, from the Saxon a priv. and zeldan selvert, quasi sine mulcta, signifies to be free from penalties, not subject to the customary fine or imposition. Cowel. Blount. Agilde was also taken to be a person so vile, that whoever killed him was to pay no mulct for his death. Ibid.

AGILER, from the Saxon a gile, observer or informer. Ibid.

shepherd on his flock. And lords of manors had likewise their hey-wards, to take care of the tillage, harvest work, &c. and see that there were no encroachments made on their lordships. Cowel, Blount, and others. This is now in most places the business of bailiffs: yet in many manors the custom continues.

AGIST, (from the French giste, a bed or resting-place,) signifies to take in and feed the cattle of strangers in the king's forest, and to gather up the money due for the same. Chart. de Foresta, 9 Hen. 3. c. 9. The officers appointed for this purpose are called agisters, or gist-takers, and are made by the king's letters patent: there are four of them in every forest wherein the king hath any pawnage. Manw. For. Laws 80. They are also called, according to Cowel, agistators, to take an account of the cattle agisted.

AGISTMENT, (agistamentum,) is where other men's cattle are taken into any ground, at a certain rate per week: it is so called, because the cattle are suffered agiser, that is, to be levant and couchant there: and many great farms are employed to this purpose. 2 Inst. 643.

Our graziers call cattle which they thus take into keep, guisements; and to guise or juice the ground, is when the occupier thereof feeds it not with his own stock, but takes in the cattle of others to agist or pasture it. Cowel. Blount.

Agistment is likewise the profit of such feeding in a ground or field and extends to he depasturing of barren cattle of the owner, for which tithes shall be paid to the parson. Ibid.

There is agistment of sea-banks, where lands are charged with a tribute to keep out the sea. Terre agistata are lands whose owners are bound to keep up the sea-banks. Ibid. Spelm. on Romney-Marsh.

AGITATIO ANIMALIUM IN FORESTA, the drift of beasts in the forest. Leg. Forest. Cowel. Blount.

AGIUS, (Gr. i. e. holy.)-Ego triumphalem trophæum agiæ crucis impressi. Mon. Angl. p. 15, 17.

AGNUS DEI, a piece of white wax in a flat oval form, like a small cake, stamped with the figure of a lamb, and consecrated by the pope. Cowel.

præmunire." See Papisis. AGNATI, the relations by the father, who

were preferred by the Roman laws to the cognati, or relations by the mother: till the edict of the emperor Justinian, Nov. 118, abolished all distictions between them. 2 Black 235.

AGRARIA LEX, a law made by the Romans for the distribution of lands among the common people. Cowel

AGREEMENT, is the consent of two or more persons, concerning, the one in parting with, and the other receiving some property, right, or benefit. 1 Bar. Abr. til. Agr.

And it is defined to be aggregatio mentium in re aliqua facta vel facienda, and it ought to be so certain and complete, that each party may have an action upon it. Plow. Com. 5, &. ங்க.

To an agreement or contract, there is not any prescribed form of words, but such words as shew the assent of the parties are sufficient, so as the agreement be certain and complete, and therefore it is not material by which of the parties the words of the agreement or contract are used, if the assent of the other appears.

And there are three sorts of agreements: 1st. An agreement executed already at the beginning, as where money is paid for the thing agreed, or other satisfaction made at the time of the execution: 2dly, where an enent subsequent is given to an act precedent; as where one doth such a thing, and another person agrees or assents to it afterwards,and by such assent the agreement is also executed: 3dly, an agreement executory, is an agreement to execute a deed, pay a sum of money, or perform some act at a future day. Plowd. Com. 8 9. Terms de Ley.

31.

Abr. 161.

and then the defendant files his cross bill for relief upon the covenant, the court will retain it, because the validity of the covenant is disputed in that court, and on an head properly cognizable there; and therefore if the validity of the deed be established, the court will direct an issue for the quantum of the damages. Ch. Rep. 158. Abr. Eq. 17.

So where the agreement is to do something in specie, as to convey lands, execute a deed, or the like, there it will be proper to apply to a court of equity for a specific execution, to which the party is entitled, if the agreement be good and sufficiently proved, when otherwise, he could only recover damages at law. Ch. Cas. 42.

And it is now by a series of decisions established, that courts of equity may decree a contract to be performed in specie at least, wherever a court of law would give damages, for the non-performance of it; but which damages would not be an adequate compensation for the non-performance, the party wanting the thing in specie. 1 Fonbl. 30.

However, though equity will in general enforce the specific performance of contracts, if the party wants the thing in specie, and cannot have it in any other way, yet if the breach of contract can be or was intended to be compensated in damages, courts of equity will not interpose. Bro. Rep. 341: 1 Pere Wms. 570. Bunb. 135.

And in the exercise of this equitable jurisdiction, the court may either direct the master to enquire, what damage the plaintiff hath sustained by the defendant's nonperformance of his agreement, and upon the report, decree satisfaction; or, otherwise, send it to be tried at law upon a quantum damnificatus; when the bill prays a specific performance of such agreement, which cannot be decreed, as where the defendant has by sale of the estate, or the like, put it out of his power. Abr. Eq. Cas. 18. pl. 7. 1 Fonbl.

389.

But here it must be observed, that agreements, out of which an equity can be raised, for a decree in specie, ought to be obtained with all imaginable fairness, and without any mixture tending to surprize or circumvention, and that they be not unreasonable in themselves. Abr. Eq. 17. 1 Bac. Abr. 109.

But inadequacy of price simply and of itself, independently of any other circum stances, is not a ground with the court to annul an agreement, though executory, still less is it a ground to rescind one already executed and in Heathcote v. Paignon, 2 Bro. Ch. Rep. 167. Lord Thurlow admitted, that mere inadequacy of price was scarcely sufficient, but said, that there was a difference between that and evidence arising from in

:

adequacy: if there is such inadequacy as to shew that the person did not understand the bargain he made, or was so oppressed that he was glad to make it, knowing its inadequacy, it will shew a command over him, which may amount to fraud. 1 Fonbl. 128.

And where agreements are endeavoured to be set aside for supposed weakness of understand ng, for breach of confidence, or other substantive reason, the inequality of the terms may be a material ingredient in the case as evidence of imposition. 3 Woudes

455.

It is also to be observed, that where an agreement appears to be very unequal, the courts will lay hold of very slight circumstances, to avo d enforcing the execution of it; as where the plan iff had not made out his title by the time stimulated; a circumstance which in general has not any weight with them. 2 Bio. Ch. Rep. 396. 1 Atk.

12.

But as these cases, and all others on this head, depend so much upon circumstances, and are to stand or fal, according to the degrees of fraud or circumvention attending them, and proved in the cause, or by what appears unreasonable on the face of them; it is only to be observed, that a court of equity will much more easily be prevailed on, to dismiss a bill which prays a specific execution of an unreasonable agreement, than set aside an agreement, though not strictly fair on a bill for that purpose, for this deprives the party of what he had a right to by law; and that when such agreements are set aside, it must be on refunding what was bona fide paid, making allowances for improvements. 1 Bac. Abr. 111. Thus the court will not compel a purchaser to take a title which is at a 1 doubtful. 1 Br. Ch. Rep. 75. 4 Br. Ch. Rep. 80. Nor will they interpose where a party has forborne to insist upon an agreement for several years, unless the delay can be accounted for,by special circumstances: nor in case of a written agreement afterwards discharged by parol: nor in the case of a sale by auction, where an accident has happened to cast a damp upon the sale; as where the vendor's agent, known to be such to the company present, bid for the purchase: nor if the agreement be to do a thing which would tend to extortion or promote inebrie y: nor if damages be s'ipulated, though in general they will in the case of a penalty, designed merely as a medium for securing the performance of the contract: nor will they interpose if the agreement be founded on an illegal consideration, as that of st fling a prosecution for felony or for fraud Ibid.

And as so em:: conveyances, releases, and agreements by parties are not slightly to be blown off and set aside, equity will not void a reasonable and fair agreement, though founded on mistake; or though the party

were intoxicated, or in prison, at the time he entered into it,or somepaternal authority were exerted, and some benefit accrue to the father under it: nor will the court decree a forfeiture after an agreement, in which, if it were a mistake, it was a mistake of all the parties to it. Ibid.

As to voluntary agreements.] It is laid down that as men have a right to their acquisitions, so may they dispose of them at their pleasure, and without valuable consideration; but if a man promises to convey lands, or to give goods, without valuable consideration, or without delivering possession of them, this alters no property, nor has the party any remedy at law or equity, it being nudum pactum unde non oritur actio. 3 Co. 81. 6. 2 Black. Com. 443. Dy. 336. b. 2 Buls 225.

But if it be done, by deed duly executed under seal, this is good in law, though there be no consideration, or no delivery of possession, because a man is estopped to deny his own deed, or affirm any thing contrary to the manifest solemnity of contracting. Plow. 308, 309. Yelv. 196. Cro. Jac. 270. Brown 111. Fonbl. $35.

3 Bur. 1637. 2 Bl. 446. 1

And equity will not carry a merely voluntary contract beyond the letter of it. 2 Vern. 692. And in decreeing the execution of agreements, it regards the intent of the parties, and does not confine itself, to the strictly legal operation of the words; where therefore marriage articles, literally, taken would give the husband or wife an estate tail, it decrees a strict settlement; for otherwise the provisions for the issue, the object of the settlement, might be defeated. 1 Bac. Abr. 113.

Also in contracts, proper for a specific performance, equity considers them often as actually performed, from the time they are entered into: thus money agreed to be laid out in land, it considers as land, and it will go to the heir and not to the executor. 1 Pere Wms. 483. Pr. Ch. 540. 2 Pere Wms. 171. 3 Pere Wms. 221. And land agreed to be sold, it treats as money, which thus circumstanced, will be deemed as part of the personal estate. 2 Vern. 295. 1 Br. Ch. Rep 236, 368. thus investing each with the qualities of the other. 1 Bac. Abr. 113.

Parol agreements.] By statute 29 Car. 2. c. 3. "no action shall be brought whereby "to charge any executor or administrator, upon any special promise to answer da

66

mages out of his own estate, or whereby "to charge the defendant, upon any special "promise to answer for the debt, default, or