KFLCC Kingdom Law 2nd Ed.

108

AVAILS

AVERAGE

Benedict v. Huntington, 32 N. T. 224; Brig ham v. Tillinghast, 13 N. Y. 2ia This word seems to have been construed only In reference to wills, and in them it means the corpus or proceeds of the estate after the payment of the debts. 1 Amer. & Eng. Enc. Law, 1039. See Allen v. De Witt, 3 N. T. 279; McNaughton T. McNaughton, 34 N. T. 201. AVAL. In French law. The guaranty of a bill of exchange; so called because usu ally placed at the foot or bottom {aval) of the bill. Story, Bills, §§ 394, 454. The act of subscribing one's signature at the bottom of a promissory note or of a bill of exchange; properly an act of suretyship, by the party signing, in favor of the party to whom the note or bill is given. 1 Low. Can. 221. AVANTUBE. L. Fr. Chance; hazard; mischance. AVARIA, AVARIE. Average; the loss and damage suffered in the course of a navi gation. Poth. Mar. Louage, 105. AVENAGE. A certain quantity of oats paid by a tenant to his landlord as rent, or in lieu of some other duties. A mischance causing the death of a man, as where a person is suddenly drowned or killed by any accident, without felony. Co. Litt. 391. AVER. L. Fr. To have. —Aver et tener. In old conveyancing. To have and to hold. AVER, v. In pleading. To declare or assert; to set out distinctly and formally; to allege. In old pleading. To avouch or verify. Litt. § 691; Co. Litt 3626. To make or prove true; to make good or justify a plea. In old English and French. Property; substance, estate, and particular ly live stock or cattle; hence a working ibeast; a horse or bullock. —Aver corn. A rent reserved to religious houses, to be paid by their tenants in corn. —Aver land. In feudal law. Land plowed by the tenant for the proper use of the lord of the soil.—Aver penny. Money paid towards the king's averages or carriages, and so to be freed thereof.—Aver silver. A custom or rent formerly so called. AVERAGE. A medium, a mean propor tion. In old English law. A service by horse or carriage, anciently due by a tenant to his AVAILS. Profits, or proceeds. AVENTURE, or ADVENTURE. AVER, n.

lord. Cowell. A labor or service performed with working cattle, horses, or oxen, or with wagons and carriages. Spelman. Stubble, or remainder of straw and grass left in corn-fields after harvest. In Kent it is called "gratten," and in other parts "roughings." In maritime law. Loss or damage acci dentally happening to a vessel or to its cargo during a voyage. Also a small duty paid to masters of ships, when goods are sent in another man's ship, for their care of the goods, over and above the freight. In marine insurance. Where loss or damage occurs to a vessel or Its cargo at sea, average is the adjustment and appor tionment of such loss between the owner, the freight, and the cargo, in proportion to their respective interests and losses, in order that one may not suffer the whole loss, but each contribute ratably. Coster v. Insurance Co., 2 Wash. C. C. 51, 6 Fed. Cas. 611; Insur ance Co. v. Bland, 9 Dana (Ky») 147; Whit teridge v. Norris, 6 Mass. 125; Nlckerson v. Tyson, 8 Mass. 467; Insurance Co. v. Jones, 2 Bin. (Pa.) 552. It is of the follow ing kinds: General average (also called "gross") con sists of expense purposely incurred, sacrifice made, or damage sustained for the common safety of the vessel, freight, and cargo, or the two of them, at risk, and is to be con tributed for by the several interests in the proportion of their respective values exposed to the common danger, and ultimately sur viving, including the amount of expense, sacrifice, or damage so incurred in the con tributory value. 2 Phil. Ins. f 1269 et seq. 2 Steph. Comm. 179; Padelford v. Board man, 4 Mass. 548. Particular average is a loss happening to the ship, freight, or cargo which is not to be shared by contribution among all those in terested, but must be borne by the owner of the subject to which it occurs. It is thus called in contradistinction to general aver age. Bargett v. Insurance Co., 3 Bosw. (N. Y.) 395. Petty average. In maritime law. A term used to denote such charges and disburse ments as, according to occurrences and the custom of every place, the master necessari ly furnishes for the benefit of the ship and cargo, either at the place of loading or un loading, or on the voyage; such as the hire of a pilot for conducting a vessel from one place to another, towage, light money, bea conage, anchorage, bridge toll, quarantine and such like. Park, Ins. 100. The particulars belonging to this head depend, however, en tirely upon usage. Abb. Ship. 404. Simple average. Particular average, (q. v.) —Average charges. "Average charges for toll and transportation" are understood to mean, and do mean, charges made at a mean rate, ob tained by dividing the entire receipts for toll